THE REVIVAL OF NATURAL LAW CONCEPTS A Study of the Establishment and of the Interpretation of Limits on Legislatures with special reference to the Development of certain phases of American Constitutional Law BY CHARLES GROVE HAINES Professor of Political Science, University of California at Los Angeles HARVARD UNIVERSITY PRESS CAMBRIDGE, MASSACHUSETTS 1930 LONDON : HUMPHREY MILFORD OXFORD UNIVERSITY PRESS PREFACE THE investigation of the practice of the review of legislative acts by the courts to test their conformity with the provisions of written constitutions has involved the consideration of theories of natural law and of ideas of superior fundamental laws. These theories and ideas are closely related to doctrines of higher or superior laws which have accompanied the growth of legal systems. Due to the importance of such ideas in public law and in the development of limits on the different branches of modern governments, a study has been made of the main stages in the evolution of higher law concepts. A considerable part of the study is devoted to the significance of natural law ideas in the interpretation of the state and federal constitutions in the United States, where natural law doctrines have been extensively applied. The review of the growth of natural law ideas and the presentation of representative opinions of European publicists are intended to aid in the interpretation of American theories and as a perspective to evaluate some modern tendencies in constitutional development in the United States. It is evident that the concepts of natural law and of fundamental law are frequently associated. Though natural law may be thought of with little relation to the notion involved in fundamental laws, and fundamental laws may be conceived unrelated to natural law, it is customary at various stages of such analyses for one idea to merge into the other. Carlyle, in speaking of the views of the Roman jurists on natural law, doubted whether any of the lawyers had very clear conceptions upon the matter. As a matter of fact all theories of natural law have a singular vagueness which is both an advantage and disadvantage in the application of the theories. Philosophers emphasize the fact that such a term as natural law is a value concept and the result of an attitude -- an attitude which presupposes certain psychic processes. Such value concepts are in one sense subjective, and in another sense they have a normative objectivity. It is beyond the scope of this treatise to deal with the philosophical and psychological processes which underlie natural law thinking. The purpose is to present different types of theories in their legal development and to note their applications by jurists and lawyers. Articles by the writer relating in part to this subject have appeared in the Yale Law Journal, Illinois Law Review, and the Texas Law Review. The portions used from these articles have been rewritten in a continuous account with the exception of extracts from the Texas Law Review which are reprinted with some minor changes by permission of the editors. In the presentation of ideas relating to natural law in European countries, I have received invaluable assistance from Professor Georgio del Vecchio, Rector of the University of Rome, and Professor Louis Le Fur of the Faculty of Law of the University of Paris, who have favored me with very useful Italian and French publications relating to natural law. In addition I have been accorded the privilege by authors and publishers to translate and reprint portions of the works of European authorities on natural law. I take pleasure in expressing my appreciation for aid received from Dean Roscoe Pound, who has frequently indicated in books and in articles the influence of natural law concepts in the development of American law. CHARLES GROVE HAINES Los ANGELES, CALIFORNIA November, 1929 CONTENTS PART I A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES I. ANCIENT AND MEDIAEVAL NATURAL LAW THEORIES . . 3 1. Graeco-Roman Concepts ............ 4 2. Natural Law in the Middle Ages ......... 12 3. Theories following the Reformation ........ 17 4. Types of Natural Law Ideas in Ancient and Mediaeval Times ................. 24 II. ENGLISH HIGHER LAW DOCTRINES .......... 28 1. Natural Law Ideas and English Doctrines relating to Fundamental Laws .............. 29 2. Natural Law and the Doctrine of the Supremacy of the Law ................... 32 3. Evidences of Natural Law Ideas in Judicial Decisions 39 4. Types of Natural Law Theories applied in English Law..................... 43 5. Differences between the Anglo-American and the Continental Legal Points of View ........ 44 III. AMERICAN AND FRENCH NATURAL LAW DOCTRINES . . 49 1. Transition from Natural Law Doctrines to Theories of Natural Rights ................ 49 2. American Theories of Natural Law and of Inalienable Rights ................... 52 3. French Natural Law Concepts .......... 59 4. The Decline of the Natural Rights Philosophy ... 65 PART II THE ACCEPTANCE OF NATURAL LAW OR SUPERIOR LAW CONCEPTS IN THE PUBLIC LAW OF THE UNITED STATES IV. JUDICIAL CONSTRUCTION or IMPLIED LIMITS ON AMERICAN LEGISLATURES ................. 75 1. Denial of the Application of Natural Law Concepts . 75 2. Natural Law Theories in the Formative Period of American Law ................ 77 3. Higher Law Theories as a Sanction for the Establishment of the Review of Legislative Acts by Courts 80 4. Limits on Legislatures resulting from the Nature of the Social Compact and from the Nature of Free Republican Governments ............ 86 5. Construction of Limits on Legislatures to protect Vested Rights ................ 88 6. The Main Purpose of the Establishment of Express and Implied Limits on Legislative Powers .... 95 7. A Reaction from the Federalist Doctrine of Limiting Legislative Activities ............. 97 8. The Return to the Former Natural Law Theories . . 99 V. NATURAL LAW THEORIES AND DUE PROCESS OF LAW . . 104 1. Divergent Views on the Meaning of Due Process of Law..................... 104 2. Due Process of Law as applied by the Justices of the State Courts prior to 1870 ........... 108 3. Cooley's Efforts to extend the Meaning of Due Process of Law........ ......... 116 4. Economic and Legal Bases for a Revival of Natural Law Thinking ................ 117 5. Due Process of Law made an Agency for the Maintenance of Reactionary Tendencies ........ 122 PART III THE FOURTEENTH AMENDMENT AND NATURAL LAW THEORIES VI. THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION AND DUE PROCESS OF LAW ...... 143 1. Period of Restricted Interpretation ........ 145 2. Economic and Political Pressure brings about a Change in Supreme Court Decisions .......... 149 3. Reversal of the Former Opinions on the Meaning of Due Process of Law .............. 154 (a) Due Process of Law applied to the Procedure in the Regulation of Public Utilities ...... 154 (6) Due Process of Law and Liberty of Contract . . 160 VII. THE DEVELOPMENT OF A GENERAL RULE OF REASON TO DETERMINE THE VALIDITY OF LEGISLATIVE ACTS . . 166 1. Arbitrary Legislative and Administrative Acts are Void .................... 166 2. Acts Contrary to Fundamental Rights are Void . . 172 3. Police Regulations must be Reasonable ...... 177 4. Results of the Extension of the Meaning of Due Process of Law ................ 182 5. Some Examples of Higher Law Concepts in Recent Supreme Court Decisions ........... 185 VIII. NATURAL LAW DOCTRINES AID IN CHANGING THE BASIS FOR JUDICIAL REVIEW OF LEGISLATIVE ACTS ..... 196 1. Conservative Doctrines and Judicial Review of Legislation .................... 198 2. Underlying Purpose of the Revival of the Natural Law Philosophy in American Constitutional Law . 210 3. Types of Natural Law applied in the United States . 216 Appendix ... ............... 232 PART IV THE REVIVAL OF DROIT NATUREL, NATURRECHT, AND SUPERIOR LAW DOCTRINES IN THE JURISTIC PHILOSOPHY OF EUROPEAN WRITERS IX. THE BACKGROUND FOR RECENT THEORIES OF NATURAL LAW AND THE GERMAN DOCTRINE OF A "RECHTSSTAAT" 237 1. Continuance of Natural Law Theories in Europe . . 237 2. German Doctrine of a Rechtsstaat ......... 245 3. Current Views Relating to Natural Law in Germany 246 X. FRENCH THEORIES RELATING TO SUPERIOR LAW: HIGHER LAW DOCTRINES OF KRABBE .......... 252 1. Views of Saleilles and Charmont ......... 252 2. Views of Duguit and Hauriou .......... 260 3. Higher Law Doctrines of Krabbe ......... 274 XI. REVIVAL OF NATURAL LAW IN METAPHYSICAL AND THEOLOGICAL SPECULATIONS; NATURAL LAW THEORIES AND INTERNATIONAL LAW ............ 278 1. Natural Law Doctrines of Del Vecchio ....... 279 2. Theological Interpretation of Natural Law by Victor Cathrein .................. 286 3. Metaphysical Doctrines of Geny ......... 288 4. Natural Law Theories and International Law ... 294 5. Theories of Natural Law Prevalent in Europe ... 302 PART V SIGNIFICANCE OF THE REVIVAL OF HIGHER LAW CONCEPTS IN THE PUBLIC LAW OF EUROPE AND OF AMERICA XII. OBJECTIVES IN THE MODERN REVIVAL OF NATURAL LAW THINKING .................. 309 1. Natural Law as a Device to introduce Ethical Concepts into the Law .............. 310 2. Natural Law as an Ideal or Philosophical Standard . 316 3. Higher Laws to guide Judges as Legislators..... 323 4. Higher Law Theories as a Basis for Limits on State Sovereignty .................. 331 5. Limits on the Power to amend Constitutions in America due to Fundamental Principles and Rights 336 6. Concluding Comments ............. 342 BIBLIOGRAPHY ..................... 353 TABLE OF CASES .................... 373 INDEX ........................ 381 PART I A SURVEY OF THE DEVELOPMENT OF NATURAL LAW DOCTRINES CHAPTER I ANCIENT AND MEDIAEVAL NATURAL LAW THEORIES THE conviction that there are superior principles of right, or higher laws to which the ordinary civil rules made by man must conform and which necessarily place limits on the operation of such rules, is one of the most persistent ideas in the evolution of legal thought. There have been times when the import of higher law concepts has been discredited or their directive force in legal growth has been concealed by a different terminology. But legal ideas have seldom been free from superior law influences. Though the significance of this conviction in the growth of systems of law has been examined frequently by exponents or critics of natural law theories, the consideration of the ideas therein involved never ceases to be of interest. Current tendencies in the legal thought of Europe and of America render it appropriate to review once more certain applications of these higher law concepts, and to consider their purport in giving direction to various processes of modern legal adjustments. Only some representative uses of these ideas in Europe may be considered as a basis for comparison and contrast with their pervasive applications in the public law of the United States. The best-known and most influential form of the higher law doctrines centers around the term "natural law" or "law of nature."[1] 1. Graeco-Roman Concepts. Few terms in the history of law have had such a variety of meanings as the "law of nature" or "natural law." This phrase is not only used differently by writers in the same period but is also not infrequently employed in either a confused sense or with varying connotations by the same writer.[2] And, as with most legal expressions, it has conveyed divergent ideas in various stages of legal history. Because of the variety of meanings attributed to the term, efforts have often been made to discredit its use and to discard references to it in relation to legal phenomena. Thereby it was thought clear thinking might be facilitated. It remains to be seen whether such efforts have attained the desired object. A summary of some of the more common uses of this term forms a necessary background for a consideration of the modern revival of natural law thinking. There have been times when the term "law of nature" has been thought of as comprising a customary law of divine origin. Such a divine origin of law tended in early Greece to foster a distinction between laws which were fundamental as in accordance with nature or ancient custom, and the conventional rules resulting from ordinary human enactments.[3] The historical background of natural law concepts has been so frequently analyzed that it seemed unnecessary to attempt to retrace it again, and it is not the purpose of this study to treat in detail the evolution of such ideas. A succinct summary will indicate the stages through which natural law concepts have passed since the time of the Greeks. The distinction between the laws made by man and laws which are in accordance with nature or of divine origin may be traced in the works of many Greek writers.[4] Throughout much of Greek thought there was a contrast between fusiV (or phusis) -- a process of growing in the physical sense, and nomoV (or nomos) -- man's formulation of rules regarding such growth.[5] Early Greek philosophers speculated chiefly about the physical universe, but the Sophists directed attention toward the state and its relations to individuals.[6] With the Sophists the man-made nomoi were likely to be contrasted with the universal laws emanating from the gods.[7] Sophocles, who refers at various times to the notion of higher laws, has Antigone say, in defence of the charge that she had wilfully disobeyed the king's orders: "Nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of today or yesterday, but for all time, and no man knows when they were first put forth."[8] The distinction between natural law, which is universal and divine, and positive law, which is local and human, is attributed to Hippias by Plato in the Protagoras.[9] As politics and ethics were to the Greeks nothing more than two phases of the same formula it was to be expected that chief interest would be manifested in the ethical phases of the natural law concept. The Greek idea of law being primarily "a coherent interpretation and reasoned revision of custom" it was inevitable that principles and rules of reason should predominate in this interpretation.[10] Aristotle put the distinction between fundamental and ordinary laws into a standard formula which has greatly influenced subsequent legal thought. To Aristotle justice was either natural, as in accordance with nature, and hence universal; or local and conventional, as applicable to a particular place.[11] The higher law, as Aristotle conceived it, was unwritten, universal, eternal and immutable, and in accordance with nature. He divided law into that which is common, being in accordance with nature and in force everywhere, and that which is peculiar to each separate community. When an advocate was pleading a cause and found the positive law was against him, Aristotle suggested that he might then appeal to the law of nature as rendering the act void.[12] Thus a basis was laid in philosophic thought for a dualism between the customary, natural, and universal in law, and the local, conventional, and ordinary enactments of a separate group of men. It was this dualism to which mediaeval thinkers recurred when they sought to contrast the natural and divine laws with the civil laws of a particular time and place, and to which later jurists have turned when some standard was sought to test the value or efficacy of existing positive laws. The Greeks perceived rather vaguely the ideal of fundamental laws as now understood and they instituted a unique plan for the guardianship of such laws. This was in the form of an action against the proponent of a measure or an action to secure annulment of the act. If the action was instituted within one year of the enactment of the law, proceedings could be brought against the proponent of the measure, but if instituted later the process applied only to the annulment of the law. The action might be brought "for infringement of legal rules, neglecting forms of procedure or some regulation bearing on the legislative process."[13] In their efforts to establish a rule of law based on the ancient customary rules the Greeks regarded certain laws of such permanence that it was a matter of serious public concern to change them.[14] The idea of the sovereignty of law was one of the fundamental principles of Greek thought;[15] it prevailed widely during the Middle Ages; and it was transmitted to modern times in the form of theories of the supremacy of law or of the reign of law. Though the Greeks were among the first to formulate ideas of natural law the Romans made more use of such theories and put their views along this line into more enduring forms. The first indications of the application of this concept are to be found in the work of the praetors. In the development of a law relating to the commercial dealings between citizens and aliens, where formerly only the principle of bona fides or good faith prevailed, the praetor peregrinus gradually built a legal system based on reason and common sense.[16] The praetor, by means of the edict and through his right to refuse an action worked out an equitable law -- the jus gentium -- which tended to displace the rigors of the jus civile.[17] It was in this connection that the doctrine of jus naturale became associated with the growth of the Roman law. Though jus naturale was seldom used in this period of Roman law the term served to give sanction to the jus gentium as a universal system of law which was gradually superseding the jus civile.[18] Thus principles of natural law or natural justice found their expression in the hands of the judge and the practical administrator rather than in the writings of political philosophers. It is interesting to see that at times when legal thinkers attached little weight to such principles they formed convenient sources for the extraction of new legal ideas by those who found the law too harsh and too formalistic in its applications. As the Roman law developed into a coherent system the three main sources of its growth were legislation, administrative edicts, and juristic reasoning. It was in juristic reasoning that natural law concepts were extensively used, for the authority of the opinions of the jurists in their responses depended upon the reasonableness of their comments. As a basic concept for a jus gentium or universal law, natural law was extensively applied in connection with the Stoic philosophy and with the application of Stoic principles in the Roman law.[19] Zeno, the founder of Stoicism, has a remarkable passage extolling natural law as the eternal and universal law of God governing and directing all things. The Stoics emphasized the ethical side of Aristotle's conception of natural justice and considered it as a guiding principle immanent in the universe. This immanent principle was reason and its expression was natural law.[20] To Cicero, who became an advocate of Stoic doctrines, the law of nature became the source and limit of all rights.[21] The best exposition of Cicero's view is as follows: Of all these things respecting which learned men dispute there is none more important than clearly to understand that we are born for justice, and that right is founded not in opinion but in nature. There is indeed a true law (lex), right reason, agreeing with nature and diffused among all, unchanging, everlasting, which calls to duty by commanding, deters from wrong by forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated. Nor can we be released from this law either by the senate or by the people. Nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law today and another hereafter; but the same law, everlasting and unchangeable, will bind all nations and all times; and there will be one common lord and ruler of all, even God, the framer and proposer of this law.[22] To Cicero civil laws were merely the application of this eternal natural law. He also emphasized the natural equality of men in contrast with the Aristotelian theory of inequality and thus foreshadowed one of the interesting ideas of the Roman jurists. The Ciceronian conception of the law of nature was to exert a formative influence on legal thought for the succeeding centuries, but it was modified in its transmission by the form into which the concept was put by the Roman jurists and incorporated in the Digest and Institutes of Justinian. The Roman lawyers accepted the Greek conceptions of natural justice and natural law and applied them as a means of legal reform. To these conceptions may be traced some of the significant ideas of the Roman law relating to equity. Gaius considered the jus naturale as virtually equivalent to the jus gentium, which was recognized through reason as a body of principles, universal and equitable in their applications.[23] For him natural law was a body of principles recognized through the reason as useful and just. Ulpian and other Roman jurists seemed vaguely to distinguish between the jus naturale and the jus gentium, the former partaking more of the primitive and instinctive rules applicable to all life, and the latter, of the conventional rules of mankind at a given time and place.[24] Thus the later Roman jurists regarded slavery as contrary to the jus naturale, since men by the law of nature are born free and equal,[25] but as sanctioned by the jus gentium. By the time of Justinian the jus naturale had come to mean a body of ideal principles which men could rationally apprehend and which included the perfect standards of right conduct and of justice.[26] The compilers of the Institutes attempted to discriminate between the rules and instincts common to animals -- the jus naturale; rules common to all mankind -- the jus gentium; and the particular rules of a community -- jus civile. This classification, though merely suggested by Roman commentators, was followed with scrupulous care by certain mediaeval jurists.[27] Later civilians, like the older jurists, used natural law vaguely and sometimes in an ambiguous way, referring perchance to rules arising from animal instincts, to a common law created by man and corresponding to the jus gentium, or in Christian thinking to the laws of the Bible. But from some statements in Justinian's Institutes Carlyle concludes that "by the sixth century the phrase was certainly taking that meaning which it has throughout the Middle Ages and later -- that is, that the jus naturale means that body of principles of justice and reason which men can rationally apprehend, and which forms the ideal norm or standard of right conduct and of the justice of social institutions."[28] All were agreed that natural law was immutable and not subject to change by civil enactments. It is well to note that two ideas which become prominent in the later stages of the growth of natural law concepts, namely, a primitive state of nature and, arising therefrom, a natural freedom and a natural equality, are the peculiar results of Roman legal thought in the Lower Empire. It was not until the mediaeval period, however, that the philosophy of natural law was given a dominant place in legal thinking. 2. Natural Law in the Middle Ages. A significant development of the concept of natural law is to be found in the Middle Ages, when the theories of Cicero and of the Roman jurists were adapted to the teachings of Christianity. In the writings of the philosophers and of the jurists of this period the concept of natural law was uppermost. The theory gained in significance by its association with the concept of a state of nature which had been recognized by some of the later Roman jurists.[29] Primary consideration was given at this time to divine laws or to what were regarded as the eternal laws of the universe, over which man had no control. But subordinate to these divine and eternal laws was the law of nature. That the theory of natural law was given an important place in early Christian thought may be gathered from the writings of Origen, St. Ambrose, and St. Jerome. Referring to a passage of St. Paul (Rom. ii, 12-14) they spoke of natural law as equivalent to the law of God and as universal in contrast with the written laws made by man.[30] But it was Isadore of Seville who formulated a view of natural law which through the Decretum of Gratian became a part of the Canon Law. He recurred to the analysis of Ulpian and the Roman jurists and classified law as jus naturale, jus civile, and jus gentium with this difference, that jus naturale became the common law of nations without any reference to animal instincts.[31] In other respects he followed closely the Roman doctrines of the Code and the Institutes and thus gave these doctrines a primary position in mediaeval legal thought. Gratian introduced a distinction which became basic in the Canon Law -- natural law was identified with divine law and human law with custom; the jus gentium and the jus civile were included under the latter.[32] "To the mediaeval canonist, then, as to the Fathers," says Carlyle, "the jus naturale is identical with the law of God, it is embodied in the 'law and the Gospel,' for it represents the general moral principles which God has implanted in human nature, and it is, in its essential character, immutable." It is true that it is set aside by some of the legitimate institutions of society, but this is to be explained as a necessary accommodation to the corrupt state of human nature, and is justified by the ultimate purpose of setting forward the principles of the jus naturale. The jus naturale is to the canonists the norm by which any law or institution must be justified.[33] The great philosopher of the Middle Ages, Thomas Aquinas, distinguished the eternal and divine laws as forming a part of the universe and as emanating from God, from natural laws which were the result of the participation of man as a rational creature in applying to human affairs the eternal law by which he distinguished between good and evil. To Aquinas the particular rules of the lex naturalis were not immutable. As rational laws designed for human ends, they were subject to change as human conditions varied.[34] The mediaeval churchmen invariably identified nature and reason with a personal God and law and rights emanated from his will. Following the method of Thomas Aquinas, the current divisions of law were: divine, natural, and positive. Mediaeval jurists usually accepted the tripartite division of law, suggested by Roman thinkers, into natural law, law of nations, and civil law. Through commentaries on the Institutes, such as that of Azo, the Roman classification was applied to the peculiar conditions of the Middle Ages. In the main they used the phrase jus naturale as meaning a body of principles, which may be rationally comprehended and which are immutable. In due course the jus gentium was thought of as the customary law of mankind and the jus civile as the customs of a particular community. Mediaeval legal doctrines were based essentially on superior legal concepts which regarded law in its origin as of equal rank with the state and as not depending on the state for its existence. The idea persisted for centuries that the end of the state is the attainment of justice and that civil authorities act legitimately only when they follow the principles of justice. Mediaeval thinkers believed that it was the purpose of the state to realize the ideas of law and "it was never doubtful that the highest Might, were it spiritual or were it temporal, was confined by true limitations."[35] Customs as well as enactments in order to be valid in mediaeval times were expected to be reasonable, which for the standards of that day meant in harmony with divine reason. Estimates of reasonableness were made by a triple standard applied with varying degrees of effectiveness: (a) revelation or the laws regarded as given directly from God; (b) church law, as embodied in the papal decrees or the canonical codes; and (c) natural law, conceived as common to the natural sentiments of man. As strengthening the mediaeval concept of the law of nature as law, it is important to recognize that in this age there was little legislation in the modern sense. Enactments were usually designed to affirm existing rules or customs or to remedy abuses in administration.[36] To the mediaeval jurists and theologians, with such exceptions as St. Augustine and St. Gregory, law was an expression of the principles of justice and all governmental agencies were subservient to these principles. So important was this factor in mediaeval life that to understand legal thought it is regarded necessary to disregard the ordinary conception of a sovereign, the commands of whom are considered as law.[37] Civilians thought of law, not as the creation of human will, but as the application of principles or customs. Along with the almost universal belief in the divine origin of political power and with the insistence on unlimited obedience to civil rulers because their authority came from God, there was a growing demand that for kings to be assured obedience they must rule justly and according to law.[38] Such political theorists as John of Salisbury and Althusius developed the distinction between a king who ruled legitimately according to law and a tyrant, who was guided by his individual whims.[39] A theory of the election of rulers was advocated which would render it possible to depose a tyrant. In the theory of the election of the ruler and in the requirement that he govern justly lay the germs of the later notion of a social contract, as the foundation of civil government. There was prevalent at this time a conception of an inflexible code, emanating from the divine will interpreted and applied through the light of reason, and from this conception came the doctrine that the higher laws of reason or of nature controlled the lower laws or enactments of man. Sometimes a distinction was made between certain immutable principles and rules derived therefrom, which were subject to change.[40] In practice natural law might be referred to as a guide to interpretation or in certain instances it might be appealed to where no rule of law had been declared. All laws in conflict with natural law, it was urged, must be considered void.[41] A change in viewpoint preceding the period of the Reformation may be illustrated by William of Ockham's classification of natural law as (a) Universal rules of conduct dictated by natural reason. (b) Rules which would be accepted as reasonable without any positive law. (c) Rules which are arrived at by deduction from the precepts of the law of nature and are liable to change by positive enactments.[42] Rules of the third class were eventually referred to as the secondary laws of nature. 3. Theories following the Reformation. Not until after the Reformation were philosophers able to detach natural law theories from ideas of God and to find their source in an impersonal human reason. This detachment was hastened and the doctrine of natural law was given wider currency through the writings of Albertis Gentilis[43] and of Hugo Grotius. Spanish jurists in the sixteenth and seventeenth centuries, antedating the work of Grotius,[44] formulated a theory of a supreme and immutable law of nature, changeless by God himself and based on "a state of nature antecedent to the state of corruption, and thus affording the type of perfection for all actual societies."[45] The mediaeval theological concept of the law of nature had its culmination in the philosophy of Saurez wherein the law of nature became an inflexible code willed by God and interpreted by reason. All enactments civil or religious which contravened this law were ipso facto void.[46] The Spanish jurists also fostered the belief in the natural rights of man, which it was the duty of the state to protect. These rights were thought to arise from a natural condition of equality in which the faculties inherent in men were to have a free opportunity for development.[47] To Grotius, who put in a form which became more popular the theories of Vittoria, Suarez, and Gentilis, the emphasis was placed on natural right, which was "the dictate of right reason, indicating that any act, from its agreement or disagreement with the rational nature has in it moral turpitude or moral necessity; and consequently that such act is forbidden or commanded by God, the author of nature." Grotius distinguished the law of nature, which was unalterable even by the Deity, from positive law and from the law of nations[48] and divided it into divine rules ordained by God and rules prescribed by man.[49] He and his successors made use of the law of nature theory in formulating the basic principles of international law,[50] and for a long time natural law and the law of nations were thought of as closely related. Building on natural law as a source and sanction of legal rules mediaeval jurists laid the basis for the concept of inborn and indestructible rights belonging to the individual as such. Roman thinkers, such as Seneca, had suggested that men in their natural state were free and equal.[51] The Church Fathers accepted this theory and tried to explain the differences and inequalities in human conditions as due to the fall of man and the consequent conditions of sin. Doctrines of freedom and equality were made an integral part of the law of nature by the canon lawyers. With the development of the sense of individual personality which became a feature of Christian thought during the Middle Ages and was fostered by church reformers, similar ideas were considered a part of an individual's right and heritage. To ecclesiastical thinkers men were equal in the eyes of God; to the anti-clericals they were equal in the eyes of men.[52] In the natural law of this period lurked the germ of revolution, for on the basis of these precepts the whole structure of the state was subjected to criticism from the rationalist point of view. Catholics vied with Protestants in formulating a philosophic background for limiting the powers of the state.[53] To both, the primary rules of natural law were above all earthly rulers. The law of nature used by the church to support the Catholic morals and faith was found to be a convenient weapon to oppose the church in setting over against canonist decrees the rules of life discovered by human reason. In the conflict between the Empire and the Papacy, then, both disputants made frequent use of the law of nature. Mediaevalists agreed on the existence of natural law; they differed merely as to its force and effectiveness. To some a statute or an executive act which violated natural law was void; to others, interested either in the claims of kings and princes to be sovereign in the civil domain or in the idea of popular sovereignty, natural law comprised guiding principles, directive only in the processes of lawmaking. At the same time that men were engaged in discovering new grounds for limiting political authority, an ingenious Frenchman, following the lead of the Italian, Machiavelli, was formulating a theory of sovereignty which was destined to leave small place for the laws of nature. Recognizing a condition wherein the state as represented by an absolute king accountable only to God was claiming omnipotent authority, Jean Bodin developed a theory of sovereignty suitable to the times. To him the sovereign must be absolute and can be fettered by no human laws. He admitted that there were superior laws of morality and religion to which princes were bound but for breaches thereof they were accountable to God alone. Thus Bodin furnished the broad outlines of a theory which was accepted and elaborated upon by Hobbes, Spinoza, and Austin. Later developed by modern schools of legal philosophy it ultimately weakened the respect for, and largely replaced the law of nature theories of mediaeval times.[54] "Natural law," "natural rights," and "natural justice," during most of the Middle Ages, were terms which were often used interchangeably. Thomas Hobbes undertook to distinguish between jus naturale as a natural right and lex naturalis as natural law. To him a natural right was a liberty possessed by every man in a state of nature, of doing what seemed best for the preservation of his existence. Natural law, on the other hand, was a body of principles or restraints which were devised by reason to make life secure. The philosophy of Bodin, Hobbes,[55] and Spinoza tended to discredit the old natural law ideas and to make the state the sole source of law. They repudiated the legal significance of the "idea of natural law which aimed at finding a higher written law, above the rule promulgated by the state, to which this rule must accommodate itself so far as it aims to be, not a mere command of force, but an ordinance of justice."[56] They were formulating a basis for a doctrine of state omnipotence which was eventually to become one of the dominant dogmas of modern political thought. Samuel Pufendorf followed Grotius in separating the law of nature from theology and in regarding most of the law of nature as the dictate of right reason determining what is right and wrong in human conduct. The natural rights philosophy was put into its most systematic form in the works of Pufendorf.[57] Foremost in his system were the natural rights of the individual, independent of society and of the state, arising from a condition similar to Seneca's primitive state of nature. The law of nations was regarded merely as a fragment of natural law. There was the foundation here for what has been called "the unruly emphasis on rights" which culminated in the French declaration of 1789. Locke regarded the law of nature as a body of rules for the conduct of men in their natural condition. Reason, Locke considered as the interpreter of this law; equality, its fundamental condition. Conceiving men as existing in a state of nature Locke constructed his doctrine of natural rights which belong to man in the pre-political state. These rights were life, liberty, and property.[58] Legislatures were bound to rule, in his judgment, according to the law of nature and to carry on their functions by fixed and general laws rather than by arbitrary decrees; and laws which transgressed certain fundamental principles were not laws "properly so-called."[59] There seems to be a warrant here for the opinions of American justices that acts of the legislature which are arbitrary, though not expressly prohibited, may nevertheless be void because not "legislative in character." Locke's ideas relating to the social compact, government under the law of nature, popular sovereignty, the right of revolution, and natural rights superior to the government and civil laws, were to reappear in constitutions, laws, and judicial decisions in phrases adapted to American legal thinking. Thus the dualism of Aristotle had taken definite form. There was an immutable law which was of divine origin or the product of right reason, but whatever its source it was common to all men and universal. And there were positive enactments which were made by man to meet the contingencies of the moment. The two systems were in constant conflict -- one a perfect and rational order and the other an imperative and positive one.[60] Natural law, emanating from the divine will or from divine reason, consisted only of certain basic principles. Positive law elaborated this natural law and through practical reason adapted it to the ordinary activities of life. Differing from the idealistic interpretations of the concept in Greece and in Rome natural laws were conceived as norms and positive laws that were not in accord with the natural law were unjust and therefore had no validity, though the means to prevent their enforcement were not always at hand. Thus a criterion was available to measure, in a theoretical way at least, the validity of civil enactments.[61] 4. Types of Natural Law Ideas in Ancient and Mediaeval Times. It is difficult to classify the various types of natural law theories which prevailed in ancient and mediaeval times, but it seems essential to undertake a tentative classification. With the early Greeks natural law was law in accordance with nature in the physical sense, similar to the laws of the natural sciences in modern terminology. Such a meaning of the laws of nature has been seldom referred to since the time of the Greeks, though it has had counterparts in Ulpian's laws common to all animals, in the eternal laws of Aquinas from a quite different setting, and in a curious medley of ideas in the nineteenth century, when natural law comprised a resume of ideas relating to the physical universe, of moral and ethical concepts, and of legal doctrines and principles. Natural law was also considered as divine in origin and either comprised rules given to man by the Deity or his representatives or consisted of divine law from which principles of right and justice might be deduced by man's reason. This source of natural law only incidentally mentioned by the Greeks became to the theologians of the Middle Ages its main origin and sanction. Following the authoritative presentation of this view by Thomas Aquinas and other mediaeval theologians it has continued as the accepted view of Catholic jurists and of others who have chosen to emphasize the religious factors in the processes of lawmaking. Believers in this type of natural law may be found in all countries wherein the philosophy and traditions of the Middle Ages are fostered by religious and ethical agencies. The Greeks also set a standard for a natural law of an idealist type -- comprised of universal and immutable principles apprehended chiefly by philosophers and jurists. It was a law which reasonable creatures were everywhere bound to obey. Positive laws to have validity emanated from the ideal natural laws. This type of natural law was closely related to the current ideas of religion and morality and became prominent in Stoic political thought. During the Middle Ages it was conceived as an absolute law of reason which on account of its rational basis binds all reasonable beings. Differing in certain respects from the immutable natural law of the Stoics, a type of natural law was formulated by ancient and mediaeval thinkers which was comprised of rules or principles of law and justice, divorced partially, at least, from divine origins. These were sometimes referred to as the unwritten laws ingrained in the hearts of men. Such principles were used by the praetors and jurists in rendering decisions which were just and equitable, and in adapting the rigid formulas of the jus civile to form the jus gentium. It was this kind of natural law -- principles of common law recurring among different nations -- on which international law and certain parts of developing public law were based in the sixteenth century. It is a type which is always present in the practical applications of the law where it is molded to accord with advancing notions of morality in human conduct. Stripped of some of its immutable characteristics, its modern use may be found in the principles of reasonable conduct applied in English law and in the authority accorded the judges in certain European countries to fall back on principles of reason and justice to fill gaps in the law. Continental jurists also make frequent use of the rationalist form of natural law to measure the efficacy of existing positive enactments. It thus becomes the prototype for a "natural law with a variable content." The main trend of ancient and mediaeval theories of natural law, as Pollock suggests, was rationalist and progressive in its implications. There was also a natural law arising from an original and primitive state of nature from which men derived natural rights -- such as rights of equality and freedom. To the mediaevalists this state of nature corresponded to the condition of men before the origin of sin. Sometimes these rights were regarded as an inheritance of the individual from his birth and of such significance that it was the prime duty of the state to protect them. The Reformation encouraged the tendency to consider such rights as natural and as belonging to the individual as such. It remained for the English, French, and American philosophers to make them the foundation of civil government. Natural law was also conceived as a theoretic foundation for axiomatic truths from which a system of positive law could be deduced. From this viewpoint the lex naturalis existed prior to the formation of the state and from it directly or indirectly came all legal rules. It would be a mistake to think that the different types of natural law were either clearly defined by ancient and mediaeval writers or were formulated in such a way as to be readily differentiated. Most of the ideas relating to natural law, then as since, were vague and theories often involved a confusion of ideas which make it almost impossible to attempt any classification of views. Certain trends are evident, however, which may be indicated. And, above all, it is apparent that, owing to the continual efforts to contrast the natural and the conventional, the ancient and mediaeval periods furnished rich soil for the germination of natural law concepts. Natural law theories had passed through a cycle from the ideal and philosophical form of the Greeks and Romans to a standard, presumedly derived from divine sources, which the mediaeval canonists used as a criterion to measure the validity of the acts of civil and secular rulers, and thence to a series of rationalist concepts forming a basis for international law and for other branches of civil law.[62] As an ideal not wholly divorced from its divine connotations natural law was not infrequently called upon to measure the reason, necessity, or convenience of the beginnings in the way of modern legislation. The cycle was barely completed when a new turn in legal and political speculation changed the course of natural law thinking and gave a marked impetus to the emphasis upon certain higher law concepts. As the new meaning accorded to these concepts resulted from the social and political developments in England, in America, and in France, it is necessary to trace briefly the course of the development of natural law doctrines in these countries. 1. For sketches of the origin of the higher law ideas in relation to "the law of nature," see John W. Salmond, "The Law of Nature," Law Quarterly Renew, XI (April, 1895), 121; James Bryce, "The Law of Nature," Studies in History and Jurisprudence, II, 556; and Sir Frederick Pollock, "The History of the Law of Nature," Journal of the Society of Comparative Legislation, II (1900), 418-433, and Essays in the Law (London, 1922), chap. 2. Reprinted in Columbia Law Review, 1 (January, 1901), 11. See also Guilio de Montemayor, Storia del diritto naturale (Naples, 1911). 2. Among the most common ideas involved in the word "natural," when used in such phrases as "natural justice," "natural right," and "natural law" are: rational; reasonable; in accordance with nature; in agreement with ancient customs; just; equitable; divine, or in accord with the will of God; ideal, as differentiated from the actual; appropriate; and, necessary. For a summary of the various ideas involved in the term "natural" in this connection, see B F. Wright, Jr., "American Interpretations of Natural Law," in American Political Science Review, XX (August, 1926), 542, 543. 3. For an account of the evolution of Greek ideas relating to natural law, consult E. Burle, Essai historique sur le développement de la notion de droit naturel dans l'antiquité grecque (Trevoux, 1908). Cf., especially, for natural law ideas of Sophocles, of Socrates, and of Plato. 4. See Burle, op. cit., beginning at chap. 2. The Pythagoreans taught that "law ought to be in conformity with nature and it will be if it is made in the image of natural law which attributes to each according to his merit" (ibid., p. 86). For the views of the Sophists see ibid., pp. 103 ff. Greek philosophers, it is observed, constantly referred to an eternal law, the reason of a supreme being, and absolute and immutable law, which it was the duty of the public authorities to recognize and enforce in defining the relations and duties of human beings. In the Socratic philosophy an act which resulted in injustice had only the appearance of a law (ibid.; p. 157). 5. John L. Myres, The Political Ideas of the Greeks (New York, 1927), p. 270. For reference to the antithesis between the two concepts, see Ernest F. Barker, Greek Political Theory: Plato and His Predecessors (London, 1918), pp. 64 ff. See also Gilbert Murray, "The Stoic Philosophy," in Essays and Addresses (London, 1921), pp. 96, 97. 6. "The principal problem examined by the Sophists in regard to jurisprudence was how far the basic laws of society can be regarded as ingrained in the nature of things, and how far they are merely artificial establishment." Sir Paul Vinogradoff, Outlines of Jurisprudence, vol. II, The Jurisprudence of the Greek City (London, 1922), p. 26. Vinogradoff thinks the contrast between fusiV and nomoV may be traced to Demokritos (ibid., pp. 26 ff.). 7. Xenophon, Memorabilia, 4. 4. 19; Walter Eckstein, Das antike Naturrecht im sozial philosophischer Beleuchtung (Wien und Leipzig, 1926), chap. 11. 8. Sophocles, Antigone, pp. 450 ff. 9. Barker, op. cit., p. 64. 10. Cf. Myres, op. cit., p. 47; Eckstein, op. cit., chaps. 2, 3. 11. Nicomachean Ethics, 7; Burle, op. cit., chap. 14. There is, Aristotle maintained, a natural law anterior to the positive laws and from which the latter take their origin. To render a political order stable there must be administered in it a justice independent of arbitrary rules or of human enactments and superior to every individual interest (ibid., pp. 178 ff.; Bryce, op. cit., pp. 567, 568; Salmond, op. cit., p. 127). 12. Rhet. 1375, a, 27; Bryce, op. cit., p. 567; Eckstein, op. cit., chap. 5. 13. Vinogradoff, Jurisprudence of the Greek City, p. 138. 14. Cf. also G. M. Calhoun, "Greek Law and Modern Jurisprudence" in California Law Review, XI (July, 1923), 308, and D. Goodell, "An Athenian Parallel to a Function of our Supreme Court," in Yale Review, II (May, 1893), 64. 15. See Plato, The Laws; also Ernest Barker, op. cit., chap. 15. To Plato the rule of law meant that every authority in the state was exercised under a code of laws which was definitely established and which was fundamental. In the Republic and the Politicus Plato rejected to a certain extent this idea of the sovereignty of law. 16. Sohm's Institutes, 3d ed., trans. by J. C. Ledlie (London, 1907), pp. 64 ff. 17. Ibid., p. 79. 18. W. W. Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), p. 54. 19. W. W. Buckland, A Manual of Roman Private Law (Cambridge, 1925), pp. 28 ff. The Romans, it is observed, were influenced "by the Stoic conception of life according to nature with its corollary of a natural law -- rules of conduct implanted in man by nature. This notion of a jus naturale, principles intuitive in man, his very nature, and capable of universal application appears frequently in Roman sources. Occasionally it is declared to be a principle on which all law rests, but the habitual attitude of the Roman lawyers is different: jus naturale is the ideal to which it is desirable that law should conform, but it was not really at any time a test of the validity of a rule of law." Cf. also Buckland, A Textbook of Roman Law from Augustus to Justinian (Cambridge, 1921), pp. 53 ff; R. W. and A. J. Carlyle, A History of Medieval Political Theory in the West (New York and London, 1903), I, 36 ff.; M. Voigt, Die Lehre vom jus naturale, aequum et bonum und jus gentium der Römer (Leipzig, 1856), secs. 52-64 and 89-96; and Theodor Kipp, Geschichte der Quellen des römischen Rechts, 4e ed. (Leipzig, 1919), pp. 14 ff. 20. For an analysis of the original Stoic concepts of a "law of right reason" see Burle, op. cit., pp. 399 ff., and Eckstein, op. cit., chap. 7. 21. Cicero was, of course, not presenting original ideas but was putting into current phraseology some of the commonplace political ideas of the time. "The theory of natural law is to Cicero the form of the theory of justice in society, and it is also the groundwork upon which the whole structure of human society rests." Carlyle, op. cit., I, 6. 22. De Legibus II, 4, 10; Carlyle, op. cit., I, 3 ff.; cf. Salmond, op. cit., pp. 127 ff. and Bryce, op. cit., pp. 568 ff. 23. "That law which any people establishes for itself is peculiar to itself, and is called the civil law (jus civile), as being the particular law of the state (jus proprium civitatis). But that law which natural reason has established for all men, is observed by all peoples alike and is called the law of nations (jus gentium), as being that which all nations use." From Introduction to Commentaries of Gaius. Carlyle, op. cit., I, 37 ff. 24. Ibid., pp. 39 ff. Pollock thinks that Ulpian's distinction was not generally understood by the Roman lawyers of his day and that its incorporation into the Digest and the Institutes gave it a currency quite beyond its intrinsic merit. Cf. Appendix to Maine's Ancient Law (New York, 1906), pp. 399, 400, and Essays in the Law (London, 1922), pp. 36-38. 25. Digest 1, 1, 4. On the relations between the jus naturale and jus gentium in Roman law see Pollock, "History of the Law of Nature," in Essays in the Law. By the Roman lawyers, Ulpian, Tryphoninus, and Florentinus, men are considered by nature free and equal. Quod ad jus naturale attinet, omnes homines aequales sunt. 1.17. 32. Cum jure naturali omnes liberi nascentur. Dig. 2. 1. 4; also 2. 5. 4. Cf. Carlyle, op. cit., I, chap. 5; and Albert Vaunois, De la notion du droit naturel chez les romains (Paris, 1884), especially chaps. 1, 2. 26. E. D. Dickinson, The Equality of States in International Law (Cambridge, 1920), pp. 16, 17. For reference to the Greek origin of the phrase in Justinian's Digest, that this is law, to which it is proper that all men conform (Digest, 1. 3. 2), see John L. Myres, op. cit., pp. 309 ff. 27 Carlyle, op. cit., II, 28 ff. For opinions holding that imperial rescripts contrary to natural law are void, see ibid., pp. 32, 33. The Greeks and the Romans seldom conceived of legal rights inhering in the individual and hence they did not formulate notions of natural rights. On this distinction, see J. Walter Jones, "Acquired and Guaranteed Rights," Cambridge Legal Essays (London, 1926), pp. 223 ff. 28. Carlyle, op. cit., I, 74, 75. 29. An original conception of a primitive state of nature is found in the writings of Seneca. Carlyle, op. cit., I, 23 ff. 30. For extracts from these writers, see Carlyle, op. cit., I, 104, 105. 31. Carlyle, op. cit., I, 106 ff. Cf. also, Heinrich Singer, "Das Naturrecht im Codex iuris canonici," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 206-215. Dr. Singer observes that the authors and contributors of the Codex iuris canonici were instructed to state the law so as to agree with the principles of natural law. An effort was made to reconcile the jus divinum or revealed law with jus naturale or rules resulting from the rational processes of man. Ibid., pp. 209 ff. 32. Carlyle, op. cit., II, 28, 98, 102, 105. 33. Ibid., II, 113; also Pollock, Essays in the Law, p. 40. 34. Summa Theologiae, 1, 2, q. 91, art. 2 and q. 93, art. 1. The theories of Thomas Aquinas are based to a considerable extent upon the doctrines of predecessors in the twelfth and thirteenth centuries whose works are usually neglected. For the contributions of some of these men consult Martin Grabmann, "Das Naturrecht der Scholastic von Gratian bis Thomas von Aquin," Archiv für Rechts- und Wirtschaftsphilosophie, XVI (1922-23), 12-53. Alessandro Bonnucci also traces the scholastic philosophy of natural law in La derogabilita del diritto naturale nella scholastica (Perugia, 1906). Rufinus was one of the first to suggest that jus naturale was "a certain quality implanted in mankind by nature, which leads men to do what is good and to avoid what is evil." Carlyle, op. cit., II, 103, 107. 35. Otto Gierke, Political Theories of the Middle Ages, trans. by F. W. Maitland (Cambridge, 1922), pp. 74ff.; cf. p. 172 for note by Maitland on the theories of natural law in the Middle Ages. "Men supposed," says Gierke, "that before the State existed the Lex Naturalis already prevailed as an obligatory statute and that immediately or mediately from this flowed those rules of right to which the State owed even the possibility of its own rightful origin. And men also taught that the highest power on earth was subject to the rules of Natural Law. They stood above the Pope and above the Kaiser, above the Ruler and above the Sovereign People, nay, above the whole Community of Mortals. Neither statute nor act of government, neither resolution of the People nor custom could break the bounds that thus were set. Whatever contradicted the eternal and immutable principles of Natural Law was utterly void and would bind no one. The mediaeval theory declared 'that every act of the Sovereign which broke the bonds drawn by Natural Law was formally null and void.' ... As null and void, therefore, every judge and every other magistrate who had to apply the law was to treat, not only every unlawful executive act, but every unlawful statute, even though it were published by the Pope or Emperor." Ibid., pp. 75, 84. Cf. also, Carlyle, op. cit., I, 174; III, 32, 128; and Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staats-theorien, 3d ed. (Breslau, 1913), chap. 6. 36. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910), pp. 43, 46, and "Magna Carta and Common Law" in Malden, Magna Carta Commemoration Essays, pp. 140, 141. See also, Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 165 ff. 37. Carlyle, op. cit., III, chap. 3. 38. "Any form of government is right and just," said Aquinas, "in which the rulers seek to promote the common good, but not otherwise." A. J. Carlyle, "The Political Theories of St. Thomas Aquinas," Scottish Review, XXVII (January, 1896), 126, 141. 39. For an exhaustive analysis of the theories of Althusius and of the "Monarchomachs," consult Gierke, Johannes Althusius. The whole view of the Vindiciae contra Tyrannos, says Laski, "is built on the assumption that it is the duty of the magistrate to represent the popular idea of right." Harold J. Laski, A Defence of Liberty against Tyrants: A translation of the Vindiciae contra Tyrannos by Junius Brutus (London, 1924), pp. 47, 48. 40. In the Middle Ages, says Maitland, "God Himself appeared as being the ultimate cause of Natural Law. This was so, if, with Ockham, Gerson, D'Ailly, men saw in Natural Law a Command proceeding from the Will of God, which command therefore was righteous and binding. It was so, if, with Hugh de St. Victor, Gabriel Biel and Almain, they placed the constitutive moment of the Law of Nature in the Being of God, but discovered dictates of Eternal Reason declaring what is right, which dictates were unalterable even by God Himself. Lastly it was so, if, with Aquinas and his followers, they (on the one hand) derived the content of the Law of Nature from the Reason that is immanent in the being of God and is directly determined by that Natura Rerum which is comprised in God Himself, but (on the other hand) traced the binding force of this law to God's Will." Gierke, Political Theories of the Middle Ages, p. 172. 41. Thus Baldus claimed that on the authority of the law of nature neither the Emperor nor the Pope could validate the taking of usury. For interesting efforts to justify slavery and the ownership of property though contrary to the law of nature see Carlyle, op. cit., I, chaps. 10, 12, 16 and II, Pt. I, chaps. 4, 5, Pt. II, chaps. 5, 6. See also, Gierke, Johannes Althusius, pp. 272 ff. 42. Goldast, Monarchia, II, 932 and Gierke, Political Theories of the Middle Ages, pp. 172, 173. For the distinction between principal and secondary rules of the law of nature, see ibid., p. 175; also, Johannes Althusius, pp. 273, 274. 43. To Gentilis, who with Grotius may be credited with the formulation of systematic rules of international law based largely on the law of nature, natural law comprised "such rules of justice as would govern men as moral and responsible beings, living in society independently of human institutions -- in other words, in a 'state of nature.'" De legationibus, II, 18, and Coleman Phillipson in Great Jurists of the World (Boston, 1914), pp. 119, 120. 44. Edited by Ernest Nys (Washington, 1917). Cf. works of Francisco di Vittoria, De Jure Belli and De Indis (1557). 45. William A. Dunning, Political Theories from Luther to Montesquieu (New York, 1905), pp. 132 ff. 46. Ibid., pp. 13 ff. "There was also a philosophic, deductive law of nations before Grotius, resting upon the same foundations as the natural law of the schoolmen, and cultivated particularly by the Spanish moralists, especially by Francisco Vittoria and his followers." General Survey of European Authors (Continental Legal History Series), p. 412. For theories of a state of nature and of an original compact, cf. Suarez, De Legibus, III, 4, and Mariana, De Rege, I, 1, 2, 8. 47. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, 1922), pp. 82, 83. 48. Professor Dickinson, referring to the fact that the natural law theories of Grotius are often misunderstood, claims that "Grotius presented a less comprehensive discussion of natural law than either Suarez before him or Pufendorf who came after." The Equality of States in International Law, p. 43. The law of nature which these men found, Pollock observes "was no mere speculative survival or rhetorical ornament. It was a quite mediaeval theory. What is more, it never ceased to be essentially rationalist and progressive. Modern aberrations have led to the widespread belief that the law of nature is only a cloak for arbitrary dogmas or fancies." Essays in the Law, p. 32. 49. Cf. De Jure Belli ac Pacis, Book I, chap. 1. 50. For indications of the use of the doctrine of natural law and natural rights by jurists and text writers in formulating principles of international law, see Grotius, op. cit. (1672); Pufendorf, De Jure Naturae et Gentium (1672); Burlamaqui, Principes du droit naturel (1758); Rutherford, Institutes of Natural Law (1754-56). The natural law doctrine that contracts are binding was in Grotius' opinion a limitation on the authority of sovereigns. Grotius, op. cit., Book III, chap. 24. 51. Referring to the ancient origin of the idea of equality, Professor Radin observes that "the East gave to Rome both the practical fact of inequality, fixed into unescapable ordines and regulated by the needs of the state, and the corrective ideal of a perfect city of equals living in accordance with a Law of Nature." "Roman Concepts of Equality," Political Science Quarterly, XXXVIII (June, 1923), 288. 52. "Every one in a state of grace," thought Wycliffe, "has real lordship over the whole universe." De Civili Dominio (ed. by R. L. Poole), pp. xxii-xxiv. 53. Harold J. Laski, op. cit., Introduction, and Pollock, Essays in the Law, p. 50. For the way in which the leaders of the Reformation built on the political ideas of the church theologians, such as the theory of the social contract, the sovereignty of princes, etc., see Jean Brissaud, The History of French Public Law, trans. by James W. Gamer in Continental Legal History Series (Boston, 1915), p. 536. With the exception of Bodin, Hobbes, and Bossuet, he notes, most political writers followed the theories of natural law and attempted to justify political power on the basis of the idea of justice. 54. See William S. Holdsworth, History of English Law, IV (London 1922-25), 190 ff., and Dunning, op. cit., chap. 3. Cf. Gierke, Johannes Althusius, pp. 299 ff., on the doctrine of Staatsraison, which tended to weaken the limitations on the state attributed to divine and natural laws. 55. Despite his positivist tendencies Hobbes regarded natural law as eternal and immutable. Leviathan, chap. 15; cf. Pollock, Essays in the Law, pp. 59, 60. 56. General Survey of Events, Sources, Persons and Movements in Continental Legal History, Continental Legal History Series (Boston, 1912), p. 415. 57. On Pufendorf and the development of the law of nature, consult Coleman Phillipson's account in the Great Jurists of the World, pp. 311 ff.; also Gierke, Johannes Althusius, pp 300 ff. 58. John Locke, Second Treatise of Civil Government, Book II, sec. 6. "The state of nature has a law to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions." 59. John Locke, op. cit., chap. 11. "These are the bounds which the trust, that is put in them by the society and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government. First: They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court, and the countryman at plough. Secondly: These laws also ought to be designed for no other end ultimately but the good of the people. Thirdly: They must not raise taxes on the property of the people without the consent of the people, given by themselves or their deputies.... Fourthly: The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." Ibid., chaps. 11, 18, and Discourses Concerning Government, III, sec. 11. John Neville Figgis, The Divine Right of Kings (2d ed, Cambridge, 1922), p. 242, "The more closely Locke's treatise is studied, the more clearly will it be seen that it is an attack directed far more against the idea of sovereignty, than against the claims of absolute monarchy." 60. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," Appendix to Kohler, The Philosophy of Law, trans by Adalbert Albrecht in Modern Legal Philosophy Series (Boston, 1914), XII, 335. 61. Cf. J. Castillejoy Duarte, "Kohler's Philosophical Position," XII, 352, 353. "The exponents of the law of nature are not always at one in every particular, but their fundamental conception is that 'Nature' represents the supreme, unifying, controlling power manifesting itself in the universe at large; and that 'Reason' is a special aspect of this principle looked at from the point of view of man and the operation of his mental and moral faculties. In so far as men are men they possess common elements; and in their political and social life these elements inevitably emerge and are recognizable in custom and law. Hence the substratum of this law is thought to be of necessity established by the universal guiding force, personified as nature. Such natural law represents the permanent portion of human law in general, and it is prior and superior to positive legislation, which is only a supplement thereto demanded by changing circumstances in different localities. Conventional justice may well elaborate or extend its applications, but must not alter its essential content or violate its spirit." Coleman Phillipson in Great Jurists of the World, p. 311. 62. Georges Davy, Le droit, l'idéalisme et l'expérience (Paris, 1922), pp. 41 ff. CHAPTER II ENGLISH HIGHER LAW DOCTRINES THE traditional view of English legal historians was that in English law there are relatively slight traces of the influence of the Roman law or of its mediaeval offshoot, the canonical codes. It was taken for granted, therefore, that the ancient and mediaeval concepts of natural law, though occasionally referred to by English text writers and judges, were never accepted in any authoritative way as principles of English law. Recent investigations in English legal history have modified to some extent the traditional views regarding the acceptance of Roman law principles and have tended to indicate some important connections between the main currents of continental legal thought and the emerging common law of England.[1] And we are now assured that one of the main connecting links between the two legal systems was the doctrine of the law of nature or law of reason of ancient and mediaeval times. 1. Natural Law Ideas and English Doctrines relating to Fundamental Laws. In the processes by which Anglo-Saxon and Norman customs were transformed into law, may be traced the growth of ideas relating to a superior law in England. Authorities do not agree, however, as to the significance of higher law concepts in the development of English law. Certain authors maintain, with Professor McIlwain, that customary laws with no assignable beginning and accepted as a rule without question, in the course of time acquired a character of inviolability; and whether this inviolability be the result or the cause of the preservation of these customs, the feeling has somehow come into existence that there is a law fundamental and unalterable, and rights derived from it indefeasible and inalienable. The content of the law may not be definite, -- in England it was always far from definite, -- but the idea has lodged itself in men's minds as a formative principle, and once lodged it colors everything.[2] This idea though vague and indefinite in outline was at times, they assert, a significant force in the development of law in mediaeval England,[3] and as a result of it certain principles of mediaeval customary law were thought to be beyond the power of Parliament to change, and were likely to be identified with the law of nature.[4] A few provisions of Magna Carta were occasionally referred to as fundamental and immutable. William E. Holdsworth,[5] William S. McKechnie,[6] Edward Jenks,[7] and L. O. Pike[8] have questioned the great claims made for Magna Carta as a charter for constitutional government and have emphasized that the barons who forced the King's signature to the document "were guided by class interests and aimed at reaction and anarchy rather than at legality and progress." Vinogradoff[9] thinks that these historians fail to explain the reasons for the great influence of the document on the national life of England and why it became the watchword of English legalism. He believes that the feudal interpretation of the Charter fails to take into account sufficiently that certain provisions tended to impress upon all the necessity of the appreciation of the rule of law in ordinary legal relations and to carry over this idea from the class justice of the feudal lords to the common law of the growing commonwealth.[10] At least there are some vague general statements which appear to consider Magna Carta in the nature of a superior law.[11] Whether or not these ancient customs and the written provisions of the Great Charter had the characteristics of fundamental laws which were not subject to change by statutes is a controversial matter which need not be determined here. It will suffice to note that as a result of a careful study of the Yearbooks Mr. Plucknett concludes that the examples which Professor McIlwain cites to sustain his contention that there were fundamental laws in England in the mediaeval period "afford no support for the thesis of a supreme, fundamental law."[12] Whatever conclusion may be arrived at in this controversy there is substantial agreement among the authorities that not infrequent use was made of the concept of natural law. Mr. Plucknett regards the instances of such use, which he discovered in the fourteenth century, as rather loose and vague references to custom, to conscience, or to the colloquial sense of the unreasonable.[13] Perhaps the difference in interpretation of these legal phenomena may be due in part to the point of view of the investigator just as many American legal historians find no bona fide traces of natural law doctrines in the legal decisions of the American courts and others discover many illustrations of the applications of these doctrines in the opinions of the judges. The use of the term "law of nature" was quite sparing[14] and seems to have been avoided in the development of equity. More frequent applications of the term may be found in the beginnings of the law merchant.[15] If natural law terms were not adopted in the beginning of English equity procedure, generous use of the ideas involved therein was made by the chancellors. The common lawyers of the thirteenth and early fourteenth centuries according to Holdsworth included under the term "equity" such ideas as abstract justice and analogy. The ecclesiastical chancellors, on the other hand, based their equity on the more restricted idea that the court ought to compel each individual litigant to fulfill all the duties which reason and conscience would dictate to a person in his situation. Reason and conscience must decide how and when the injustice caused by the generality of the rules of law was to be cured. They were the executive agents in the work of applying to each individual case those dictates of the law of God and nature, upon which the ecclesiastical chancellors considered equity to rest.[16] Maitland believed that there was a more direct and insistent use of the law of nature ideas in the development of equity.[17] 2. Natural Law and the Doctrine of the Supremacy of the Law. The evolution of English ideas relating to a higher law was intimately bound up with the emerging concept of the supremacy of law. From the dominant idea of mediaeval thinkers that law should be supreme, and superior to the state itself, English judges evolved the peculiar English doctrine of the supremacy of the law, which bound even the King.[18] Bracton, for instance, who made use of the Roman concept of natural law, regarded the King as subject to law but did not suggest any effective remedy for a breach of law by the King.[19] However, the courts of law at this time were regarded as possessing certain political functions on which Professor Holdsworth comments as follows: The law was a rule of conduct which all members of the state, rulers and subjects alike, were bound to obey, the whole conduct of government consisted in the enforcement of the law, and in the maintenance of the rights and duties to which it gave rise. It was a necessary consequence of this theory of government that the courts should possess political functions; for they existed not merely to do justice as between private persons, but also to see that the law itself was not arbitrarily infringed or altered by the king or any other person.[20] The doctrine that there were superior principles of right and justice which acts of Parliament might not contravene was asserted and defended vigorously and effectively by Lord Coke in his controversy with the Stuart Kings.[21] In the well-known case of Dr. Bonham, wherein the Royal College of Physicians attempted to impose a fine for illegal practice of medicine, Coke asserted that it was an established maxim of the common law that no man can be judge in his own case. And he continued: "It appears in our books that in many cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void; for when an act of Parliament is against common right or reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void."[22] A number of cases were cited in support of this dictum.[23] Concerning this opinion there have been many disputes. Supporters of Coke have tried to show that the opinion with the precedents upon which it is based is an essentially accurate reflection of the situation in England at the time when the principle of the supremacy of law was winning its way over the tendencies toward the establishment of an absolute monarchy.[24] On the other hand, historians have endeavored to prove that the cases on which Coke based his theory of the supremacy of the common law courts do not bear the construction which he gave to them. Most English legal authorities agree that there is no specific case on record in which an English court of justice has directly overruled or disregarded the plain meaning of an act of Parliament.[25] In England the mediaeval doctrine that law is above the state, which meant that there was a fundamental law which could not be changed, came to mean primarily the supremacy of law which Parliament could change at will. The dictum of Coke in Bonham's case that courts may refuse to enforce an act of Parliament when it is "against common right and reason," or "repugnant, or impossible to be performed," Holdsworth considers as founded on little mediaeval authority. The cases cited by Coke, he thinks, amount to little more than that the courts will interpret statutes strictly.[26] Even when the supremacy of Parliament was recognized there were few who would have admitted that Parliament possessed unlimited powers. Even Sir Francis Bacon, who took the side of the King against Coke in his assertions of common law supremacy admitted the superior force of the law of nature.[27] But the theoretical limits conceived as binding Parliament lost much of their significance when this body asserted its authority over the King and the courts.[28] Recognizing that in the first few centuries after the establishment of Parliament there were doubts whether private acts could be passed which were judicial in character, such as bills of attainder, it was contended that in Henry VIII's reign all such doubts were removed and "the judges were obliged to admit that these acts, however morally unjust, must be obeyed."[29] Whatever effects Coke's attempt to set up a superior and fundamental law may have had, the Revolution of 1688 marked the abandonment of his doctrine as a practical principle of English politics.[30] It is necessary to distinguish between the idea of an appeal to a fundamental law, when the appeal is primarily in the nature of a criticism and finds its chief sanction in the ancient right to resist arbitrary authority by revolutionary methods, and an appeal to a fundamental law which the courts must hold as binding in order to protect citizens from arbitrary authority. The appeal to a fundamental law as embodying superior principles of right or of equity is a common method of resisting injustice and accounts in part for the extreme pretensions of Coke. It was in this connection that the assertive chief justice set about to revive interest in Magna Carta as a fundamental charter of liberties.[31] After a period of comparative neglect the Charter was rendered popular by its use as a weapon to check the extensive prerogatives claimed by James and Charles. Coke, Hampden, Eliot, and Pym gave an interpretation to long-forgotten clauses of Magna Carta that supported their partisan views of constitutional reform. The Great Charter, McKechnie observes, "as enshrined in the imaginations of the parliamentary leaders of the Puritan Rebellion was, to a great extent, the creation of Coke's legal intellect." So great was this creative effort of Coke and his followers that a contrast may well be made between two Great Charters -- one, the original feudal charter; the other, the seventeenth-century charter, as it came to be accepted by the political leaders, the judges and lawyers, and the majority of the people of England.[32] A middle ground between the pretensions of Coke, that both the King and Parliament were limited by a common reason and superior principles of justice of which the common law courts were the ultimate interpreters, and that of Pollock, Holland, and Holdsworth, to the effect that no cases are on record in which the will of the King and of Parliament were thwarted by the courts, resting their opinion on a higher law basis, probably comes nearer to stating the actual situation in England. Even if it be true, as is claimed, that there is no case on record in which the clearly expressed will of the King and of Parliament were really checked by the courts there were instances in which the courts, interpreting the common law changed the meaning of statutes, refused to give them the effect intended, or to apply a rule of his majesty in council until the King, Lords, and Commons joined in an unmistakable mandate, which the courts reluctantly at times conceded it was their duty to obey. Short of such mandates clearly and unequivocally expressed there was a wide realm in which the courts applied the basic principles of reason of the common law and were seldom interfered with either by the King or by Parliament.[33] Moreover, the frequent confirmations or reaffirmations of Magna Carta served to impress upon the public mind that enshrined therein were fundamental principles upon which the superstructure of the English constitution might arise. Coke's reiteration of these principles served to strengthen the basic doctrine of the supremacy of the law. It was Coke's version of the supremacy of the common law, as an exemplification of rules of reason and of justice, which the courts must enforce even above the King and Parliament, that served as a convenient argument when American justices were confronted with the demand that limits must be placed on legislative powers to safeguard individual rights and privileges.[34] Blackstone in his Commentaries gave a version of natural law which, through the popularity of his work, was given wide currency. "Man, considered as a creature," he said, must necessarily be subject to the laws of his Creator.... This will of his maker is called the law of nature.... This law of nature, being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately and immediately, from this original.... Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say no human laws should be suffered to contradict these ... nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we offend both the natural and the divine.[35] He placed these precepts in the realm of moral restraints by later admitting that no authority could prevent Parliament from enacting laws contrary to them. With the supremacy of Parliament generally accepted the references to superior natural laws become less frequent. 3. Evidences of Natural Law Ideas in Judicial Decisions. The efforts to predicate a basis for a fundamental law, which were gradually brushed aside as Parliament gained ascendency over the other departments of government, are by no means the only attempts to apply the ancient and mediaeval concepts of natural law in England. Sir Frederick Pollock has indicated the inaccuracy of the prevailing view that English law was comparatively free from the influence of natural law doctrines.[36] When Roman and canon law doctrines came into disrepute in England Pollock observes that the law of nature terminology was frowned upon and gradually dropped, only, to be restored in common law terminology in the words "reason" and "reasonable." Due to a natural aversion to Continental ideals and to the influences of church law and of Roman law it became the English practice to speak of reason in preference to the mediaeval concept of the law of nature.[37] Natural justice or reason which the common law recognizes and applies does not differ from the law of nature which the Romans identified with jus gentium and the mediaeval jurists accepted as being divine law revealed chiefly through man's natural reason.[38] Pollock's summary of the extensive ramifications of the doctrine of reasonableness or the English version of natural law deserves to be quoted: Reasonable price and reasonable time are among the most familiar elements in our law of contract. Oftentimes no more definite instruction can be given to a jury than to award reasonable damages. "Natural reason and the just construction of the law," as Blackstone said, have given us the various applications of the common counts, extending to the whole field of what we now call quasi-contract. In Lord Mansfield's hands the principles of natural equity were an enchanter's wand to call a whole new world of justice into being. The test of what a reasonable man's conduct would be in the circumstances governs our modern law of negligence and underlies those branches of it which have been specialized into groups of definite rules. Almost in our own time a simple and wholly untechnical conception of the same kind has been developed into the doctrine of estoppel "in pais," perhaps the most powerful and flexible instrument to be found in any system of civil jurisprudence.[39] Since the Middle Ages the law of nature or its offshoot, the law of reason, has been an important factor in the development of equity, of the law merchant, and of the law of nations.[40] Principles of natural justice are also recognized and applied today in cases where the courts review the exercise of quasi-judicial powers by administrative boards, committees, or commissions.[41] One need not seek far in English case law to find impressive examples of the use of the doctrine of reason or reasonableness, though the law of nature connotations of these phrases may be inadvertently or purposely concealed.[42] The law of nature as "the living embodiment of the collective reason of mankind" has, indeed, been adopted by the common law in substance if not in express terms.[43] Despite the persistent applications of natural law concepts in English law certain English jurists frequently refer to the philosophy of law as comprehended under Naturrecht as a German product, and criticize such thinking as "a mere system of elaborate trifling."[44] 4. Types of Natural Law Theories applied in English Law. It is apparent that natural law concepts of one kind or another served various purposes in English legal history. First, there was in mediaeval times an identification of the term "natural" with the "customary" rules of the common law. The importance attached to these natural or customary rules, the origins of which were unknown, gave an element of certainty and permanence to the emerging system of the common law, and encouraged the belief that certain laws were fundamental. As the courts were the prime agencies in the application of these rules it encouraged the recognition of the supremacy of the law as interpreted by the justices. Second, the doctrine of the supremacy of the law was given a prominent place in the conflict between the King and the barons when resistance to the King was supported by reference to the fundamental immemorial rights of Englishmen -- essentially a form of appeal to a higher law. The assertion of the idea that there was a law above the King and above Parliament as that body gained in prominence, despite the differences of opinion regarding its significance, became a vital principle in the growth of English constitutionalism. It encouraged a more definite recognition of the distinction between ordinary law and fundamental law. As a means of supporting the revolt against arbitrary rulers the concepts of natural law and natural justice were revolutionary and idealistic. Third, the theory that law is of divine origin and that such rules as accord with this law are natural and valid was inherited from Continental European thought and was accepted by some English lawyers and jurists until the bonds with the Roman church and the mediaeval canonists were severed. As in Blackstone's Commentaries, the theory may be repeated at times with little reference to its practical importance in English law. Fourth, law of nature ideas were the sources from which the common law judges derived their notions of rules of reason and natural justice whereby they aimed to rationalize the legal processes. In this role these ideas became active and progressive principles of legal growth. They assisted in establishing close relations between legal logic and practical experience. The growth of the common law in an inductive, experimental, and pragmatic manner was conditioned by the famous rule of reason, which prevented the rigid and archaic procedure and rules of the system from remaining long in force when they were not in accord with social and economic conditions. The manifold appearances of the rule of reason in Anglo-American law bear witness to the fact that natural law doctrines are not ignored or discarded in the jurisdictions which are subject to this law. But differences in terminology have tended to obscure the continuous applications in English law of natural law concepts which play an important rôle in Continental legal systems. 5. Differences between the Anglo-American and the Continental Legal Points of View. The fact that in Continental systems of law two words are in use for the ideas comprehended in the English word "law" differentiates certain phases of legal thought of Continental nations in contrast with that of Anglo-American countries. Two sets of words to express two ideas of law are: Latin jus lex German Recht[45] Gesetz French droit loi Italian diritto legge Spanish derecho ley Though the two terms are not always clearly distinguished, lex is the term which commonly designates written enactments or rules and jus[46] refers to those rules which are just or inherently right or equitable. To the Romans jus naturale comprised the eternal principles of justice, as understood and appreciated by the human reason; but in the Middle Ages, as we have seen, the jus naturale frequently became the lex naturalis, or positive enactments proceeding from God, which were considered superior to all human laws. When law was based largely on custom and on the application of traditional rules, and legislation was comparatively rare, the lex or loi was regarded as the embodiment of reason, for customs and traditions to be valid were expected to be reasonable. Later the distinction between droit and loi was more clearly drawn. In modern terminology la loi is a declaration of the will of the sovereign upon an object of common interest,[47] and droit is the aggregate of precepts or laws (lois) governing the conduct of man toward his fellows, the observance of which it is possible, and at the same time useful, to assure by way of external coercion. Thus with a term to characterize the enactments, usually in writing, to which men are expected to conform and the rules or ideas of justice which are to guide and control civil conduct, it is possible to differentiate between the ordinary conventional laws of a time and place and the underlying rules and principles which form the very groundwork of the legal structure. The terms droit or Recht[48] combining the ideas of a rule of civil conduct and a principle of justice, necessarily mingle law and morals in juridical speculation, whereas with a single term -- law -- English jurists have been inclined to divorce law and ethics. "To this difference of language, and to the consequent difference in the tone of juridical speculation," Mr. Salmond thinks, we may attribute, more than to any other single cause, the acceptance on the Continent and the rejection in England of that which the French call droit naturel, and the Germans Naturrecht.[49] It follows that our language can supply no equivalent for these terms, for they combine ethical and juridical significations in a manner not permitted to English speech. To express the ethical meaning we must use the terms natural right or natural justice; while the juridical meaning is expressed by the terms natural law or the law of nature. For a full equivalent for the French and German expressions, we may resort to the corresponding Latin jus naturale, which possesses the same twofold meaning, being either justitia naturalis or lex naturae.[50] The differences in terminology and points of view are likely to be exaggerated, for whether or not separate words be used for definite written enactments and for rules of right or principles of justice the results in legal thinking do not vary greatly on this account. The fact that writers in Europe give a great deal more attention to legal speculations and that the schools of droit naturel or Naturrecht have produced elaborate and influential treatises is due rather to a different approach to philosophy and to speculative thought than to variations in terms. The Englishman's effort to divorce morals and law is, of course, not successful and his vain attempts to repudiate natural law thinking have failed to conceal the substratum of rationalizing in accordance with well-known natural law connotations. The obvious methods of suppression of natural law concepts are but a reflex of a type of mind which depreciates rationalizing and philosophizing at the same time that new ideas and new institutions are being molded in accordance with the assumptions and preconceived notions of particular schools of philosophic thought.[51] Englishmen are less prone to formulate the speculative ideas which are the warp and woof of their social fabric and they have been masters in the application of theories which, however, have been thought to be more acceptable because they were believed to be concealed.[52] It was in the United States and in France, however, that different types of natural law concepts were to take shape. Higher law ideas were soon to become in these countries the source and sanction for portions of private and public law. 1. C. H. McIlwain, The High Court of Parliament and its Supremacy (New Haven, 1910). Sir Frederick Pollock thinks "there is a real link between the mediaeval doctrine of the law of nature and the principles of the common law. It is given by the use -- correct in both systems, though constant, indeed exclusive in the Common Law, and rather sparing in the Canon Law -- of the words 'reason,' and 'reasonable.'" Essays in the Law, p. 57; see also Holdsworth's A History of English Law, II, 133 ff. for a modern interpretation of the adoption of Roman law ideas in English law. "English as well as Continental jurists and judges," says Professor H. D. Hazeltine, "were under the influence of doctrines which ascribed the jus divinum and the jus naturale the quality of immutability and rendered the man-made positive law opposed to them null and void. Bracton writes under the influence of these doctrines; and the early common lawyers treat the common law itself as the embodiment of the jus naturale in the guise of 'reason.'" Preface to Theodore F. T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), p. xxiii. 2. C. H. McIlwain, op. cit., pp. 51, 52. See also Sir Paul Vinogradoff, "Magna Carta Chapter 39," Malden, Magna Carta Commemoration Essays, p. 85. 3. McIlwain, op. cit., p. 53. McIlwain continues: "There is a fundamental law which binds a king and beyond which he may not go. The principle has persisted through all changes.... Men may not always have been clear as to what particular rights or liberties were guaranteed by the fundamental law, but as to the existence of such a law there was no doubt, and any act that violated it was in a true sense felt to be no law." Ibid., pp. 57, 63. For the use of the term "common law" as signifying in a real sense a fundamental law, cf. McIlwain, "Magna Carta and Common Law," in Magna Carta Commemoration Essays (London, 1917), pp. 122 ff. and 175 ff. This judgment is not in accord with the opinions of a number of English legal historians, who regard the theories of a fundamental law, which is superior to the King and to Parliament, as having little evidence to substantiate them, so far as the actual operation of the law in England is concerned. 4. McIlwain, The High Court of Parliament and its Supremacy, p. 99. Expressing the view that the omnipotence of the British Parliament, on which English jurists have usually built their theories of sovereignty, is really exceptional, Sir Frederick Pollock says: "The omnipotence of Parliament was not the orthodox theory of English law, if orthodox at all, even in Holt's time. It was formally adopted, and then not without lip-service to natural law, in Blackstone's Commentaries. Sir Thomas Smith had asserted it plainly enough two centuries before Blackstone; but he spoke the mind of the Tudor councillors of state, not the judges and serjeants. Down to the Revolution the common legal opinion was that statutes might be void as 'contrary to common right' -- an insular version, as I have pointed out elsewhere, and generally received natural law." "A Plea for an Historical Interpretation," Law Quarterly Review, XXXIX (April, 1923), 165. See also the Expansion of the Common Law (London, 1904), p. 123. 5. A History of English Law, II, 207 ff. 6. Magna Carta (New York, 1915). 7. "The Myth of Magna Carta," The Independent Review, IV (1904-05), 260 ff. 8. Constitutional History of the House of Lords (London, 1894). 9. Sir Paul Vinogradoff, "Magna Carta Chapter 39," Magna Carta Commemoration Essays, p. 79. 10. Vinogradoff, op. cit., pp. 84, 95. 11. Cf. citations in Rodney L. Mott, Due Process of Law (Indianapolis, 1926), chap. 3. 12. Op. cit., pp. 26-31, 35, 36. For a critical analysis by the same author of Coke's broad claims for the existence of a fundamental law in England, see also "Bonham's Case and Judicial Review," Harvard Law Review, XL (November, 1926), 30. 13. Op. cit., pp. 35, 36. 14. See Fortescue, De Natura Legis Naturae and De Laudibus Legum Angliae, chap. 16, and Calvin's Case, 7 Co. Rep. 121. Holdsworth finds an occasional use of the term "law of nature" in the Yearbooks and rather frequent references to the idea that law must accord with reason, Appendix II, Holdsworth's History of English Law, II, 602. 15. Cf. Malines, Lex Mercatoria (1656), p. 311, and Sir John Davis, Concerning Impositions (1656), chap. 3. Pollock, Essays in the Law (London, 1922), pp. 53 ff. 16. Op cit., V, 216. 17. "On the whole, my notion is that with the idea of a law of nature in their minds, they decided cases without much reference to any written authority, now making use of some analogy drawn from the common law and now some great maxim of jurisprudence which they borrowed from the canonists or the civilians." F. W. Maitland, Equity, p. 9. 18. Holdsworth, op. cit., II, 131, 195, 196. Professor Adams speaks of "the idea that there existed a body of understood, more or less definitely formulated rights which the king was bound to observe," as a "guiding and creative principle" of the English constitution. George Burton Adams, The Origin of the English Constitution (New Haven, 1920), p. 157. 19. De Legibus el Consuetudinibus Angliae, III, 9, 2, fol. 107 b and Holdsworth, II, 252, 256. Bracton copied with slight changes his account of jus naturale from Azo, who in his edition of the Institutes, follows Ulpian's classification. See Professor Maitland's Selections 8, Selden Society's Publications (London, 1895), p. 33. A passage of the Roman code indicated that it was the duty of the Emperor to acknowledge that he was bound by law, Code 1. 14, 4. This idea was accepted by Azo and through him was incorporated in Bracton's De Legibus et Consuetudinibus Angliae, II, 16, 3. See also Carlyle, A History of Mediaeval Political Theory in the West, III, 34 ff., for Bracton's theory of limits on the king's authority. 20. Op. cit., IV, 169. The author refers to two striking examples of mediaeval courts which actually exercised political powers, namely, the Justizia of Aragon and the Parlement of Paris. "The supremacy of the law was a theme on which Coke was never tired of dilating. In fact, it would not be going too far to say that it was the view of all the leading lawyers, statesmen and publicists of the Tudor period." Ibid., pp. 201, 202. 21. See Bonham's Case, 8 Co. 118a, b; Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 30; also C. G. Haines, The American Doctrine of Judicial Supremacy (New York, 1914), pp. 25 ff. 22. 8 Co. (C.P. 1610) 114a and 2 Brownl. (C.P. 1610) 255, 265. 23. Tregor's Case Y. B. Pasch, 8 Edw. III, 26; Fitzherbert, Annuitie 41. For a thorough analysis of these cases, consult Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922), pp. 66-70 "and Bonham's Case and Judicial Review," Harv. Law Rev., XL, 35 ff. Cf. also Holdsworth, op. cit., V, 428, 454, 491 ff. 24. Cf. views of Sir Henry Hobart in Day v. Savadge, Hobart, 85 (K. B. 1614) and Lord Holt in City of London v. Wood, 12 Modern 669, 687 (Mayor's Court, 1701). 25. Pound, "Common Law and Legislation," Harv. Law Rev., XXI (April, 1908), 391. "We find," says Pollock, "a series of dicta, extending to the early part of the eighteenth century, to the effect that statutes contrary to 'natural justice' or 'common right' may be treated as void. This opinion is most strongly expressed by Coke, but like many of his confident opinions, is extra-judicial. Although Coke was no canonist, we may be pretty sure that it was ultimately derived from the canonist doctrine prevailing on the continent of Europe. In England it was never a practical doctrine." The Expansion of the Common Law, pp. 121, 122. He claims that no case is known in fact, in which an English court of justice has openly taken on itself to overrule or disregard the plain meaning of an act of Parliament. First Book of Jurisprudence (3d ed, 1911), p. 264, and Essays in the Law (London, 1922), p 41. This view of Pollock is confirmed by J. G. Holland, who states that "these dicta, though approved of by Lord Holt in London v. Wood, appear never to have been followed in practice." The Elements of Jurisprudence (12th ed., New York, 1917), pp. 37, 38. Plucknett notes that this judgment needs to be slightly modified so as to account for the few instances in which courts refused to apply acts regarded as impossible to carry out or absurd in their consequences, Harv. Law Rev., XL, 36 ff. 26. Holdsworth, op. cit., II, 441-443. This view is supported by F. W. Maitland, who thinks that the precedents cited by Coke do not bear him out. The Constitutional History of England (Cambridge, 1909), p 301. From this slim foundation, Plucknett observes, Coke developed a theory all his own -- to the effect that there was a superior body of rules which bound the King and Parliament. The subsequent results of Coke's ideas are traced in "Bonham's Case," Harv. Law. Rev., XL, 49 ff. This article should be consulted for an analysis of the cases reported by Coke and those in which his views were approved. 27. "Our law is grounded upon the law of nature.... For as the common law is more worthy than the statute law, so this law is more worthy than them both" Bacon, Works (ed. by Spedding, Ellis, and Heath), XV, 202 ff. 28. Holdsworth explains the merging of the supremacy of law with the concept of parliamentary supremacy, as follows: "But when the Act of Parliament had acquired this authority, the last remnants of the idea that there might be fundamental laws, which could not be changed by any person or body of persons in the state, necessarily disappeared. It was obviously difficult to assign any limits to the power of the Acts of a body which had effected changes so sweeping as those effected by the Reformation Parliament. I do not forget that Coke sometimes writes as it he believed in the supremacy of a law which even Parliament could not change But it would, I think, be a mistake to lay too much stress on isolated statements of this kind. In the first place, Coke was often inconsistent because he had the mind of an advocate, and therefore often allowed himself to be carried away by the argument which he was urging at the moment. In the second place, he was so thoroughly steeped in mediaeval law that he sometimes reproduces ideas which he himself would have admitted to be archaic. In the third place, he is often writing and thinking of the supremacy of the existing law, and not of the question whether Parliament was competent to change it. When Parliament is not sitting it is the existing law, as interpreted by the judges, which is supreme; and when, as in the seventeenth century, the different component parts of the Parliament cannot act together, the same result ensues. In the Fourth Institute, when he is dealing specifically with the powers of Parliament, and in other passages, he admits its supremacy freely and fully. In the sixteenth century, therefore (whatever may be true of earlier periods), it is clear that the supremacy of the law, taught by Bracton and the Yearbooks, has come to mean, not the supremacy of an unchangeable law, but the supremacy of a law which Parliament can change. The supremacy of the law is coming to mean the supremacy of Parliament. That the lawyers never placed any difficulty in the way of this evolution was a fact which had large effects upon the future development, both of the constitution and of the common law." Op. cit., IV, 186, 187. 29. Holdsworth, op. cit., IV, 185. "It was only in England that the powers of Parliament had come to be regarded as the main security for the supremacy of the law; for it was only in England that the lawyers, by freely admitting the legislative supremacy of Parliament, had gained the support of Parliament and the nation for the mediaeval doctrine of the supremacy of law." Ibid., p. 189. 30. On the tendency of Coke to assume the rôle of a strenuous advocate in the causes which enlisted his interest, on his lack of consistency in relation to such matters as the supremacy of the common law, and on his uncritical use of authorities, see Holdsworth, op. cit., V, 474 ff; also Plucknett, "Bonham's Case," Harv. Law Rev., XL, 58, for citation of cases recognizing the supremacy of Parliament. 31. For an analysis of Coke's ideas relating to a fundamental law, see R. A. MacKay, "Coke -- Parliamentary Sovereignty or the Supremacy of the Law," Michigan Law Review, XXII (January, 1924), 215. "In every government there must be Somewhat Fundamental, Somewhat like a Magna Carta, which should be standing, be unalterable.... That Parliament should not make themselves perpetual is a Fundamental. Of what assurance is a law to prevent so great an evil, if it lie in the same legislature to un-law it again? Is such a Law like to be lasting? It will be a rope of sand." Cromwell's Speech of September 12, 1654. 32. W. S. McKechnie, "Magna Carta (1215-1915)" in Malden, Magna Carta Commemoration Essays (London, 1917), p. 12. McKechnie thinks that the inaccurate eulogies of Coke and Hampden rendered a great service to the cause of constitutional government. Ibid., p. 19. 33. Plucknett, Statutes and their Interpretation in the Fourteenth Century, Part II. 34. Cf. The American Doctrine of Judicial Supremacy, chap. 2 and Plucknett, "Bonham's Case and Judicial Review," Harv. Law Rev., XL, 61 ff. 35. I, 41-43. See also, Hooker, The Laws of Ecclesiastical Polity, Book III, chap. 9. 36. "The History of the Law of Nature," Journal of Society of Comparative Legislation, II (1900), 418, and Columbia Law Review, I (Jan., 1901), 11. Cf. also Pollock, The Expansion of the Common Law (London, 1904), pp. 107-138. "The term 'law of nature,' or natural law, has been in use in various applications ever since the time of the later Roman Republic. Their variety and apparent diversity have tended to obscure the central idea which underlies them all, that of an ultimate principle of fitness with regard to the nature of man as a rational and social being, which is, or ought to be the justification of every form of positive law. Such a principle, under the name of reason, reasonableness, or sometimes natural justice, is fully recognized in our own system, but the difference in terminology has tended to conceal the similarity from English lawyers during the last century or more." Pollock, "The History of the Law of Nature," Col. Law Rev., p. 11. 37. Christopher St. Germain, Doctor and Student, Dial., 1. chap. 5. St. Germain aimed to popularize the canonist conception of equity and to define its relations to the common law, and he exercised a great influence on the development of modern English equity. Holdsworth, op. cit., V, 266 ff. 38. "The Common Law is pictured invested with a halo of dignity, peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man," Figgis, The Divine Right of Kings, pp. 228, 229. "Common Law is the perfect ideal law; for it is natural reason developed and expounded by the collective wisdom of many generations." Ibid., p. 220. 39. The Expansion of the Common Law, p. 108, also Pollock, Essays in the Law, pp. 63, 68, 69. 40. The Expansion of the Common Law, pp. 108-113. Pollock speaks of this law of nature or law of reason as a "pervading ideal, of which it would be hardly too much to say that it is the life of the modern Common Law," ibid., p. 109. 41. Pollock, Essays in the Law, p. 70 See Local Government Board v. Arlidge (1913) 1 K. B. 463; (1914) 1 K. B. 160; (1915) A. C. 120. In the Arlidge Case administrative proceedings which did not accord the injured party a hearing or an opportunity to see the record on which the decision of the officers had been rendered were held valid. The first trial in the Court of King's Bench resulted in the approval of the administrative action. The failure to grant a hearing or to permit an examination of the records, the Court of Appeal held to be contrary to the principles of natural justice on which the English common law is based. See especially, opinion of J. Vaughn Williams, Rex v. Local Government Board (1914) 1 K. B. 160, 176. By the House of Lords this decision was reversed on the ground that the acts of Parliament expressly authorized such administrative proceedings and did not provide in these instances for review by the courts. Lord Shaw disapproved of the ground on which the Court of Appeal based its judgment. He observed: "In so far as the term 'natural justice' means that a result or process should be just, it is harmless though it may be a high-sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous." Local Government Board v. Arlidge (1915) A. C. 120, 138. Lord Moulton also objected to the use of the phrase "contrary to natural justice" in this connection, ibid., 150. Cf. also Sir Paul Vinogradoff, Yale Law Journal, XXXIV, 68, and decisions and remarks in the cases of Scott v. Scott (1913) C. 417, 176 (an action for the nullity of a marriage in which proceedings were conducted in camera) and of Chester v. Bateson (1920) 1 K. B. 829 (interference with rights of citizens through ministerial orders under the Defence of the Realm Act). 42. Cf. Pollock, The Expansion of the Common Law, pp, 123 ff. A few applications of law of nature concepts may be cited: Certain decisions relating to the validity of the procedure of foreign courts when judgments had been rendered without notice or through fraud made use of the phrase "contrary to natural justice." For example, Lord Ellenborough said: "It is contrary to the first principles of reason and justice that either in civil or criminal proceedings, a man should be condemned before he is heard." Buchanan v. Rucker (1807) 1 Camp. 63, 66. For a criticism of this language of Ellenborough as no more than declamation, see J. Blackburn in Schibsby v. Westenholz (1870) L. R. 6 Q. B. 155, 160. Bramwell B. "It this were the case of a judgment obtained by reason of untrue statements contained in an affidavit in a foreign court where the procedure is contrary to natural justice, then we might refuse to give effect to that judgment.... If the proceedings be in accordance with the practice of the foreign court, but that practice is not in accordance with natural justice, this court will not allow itself to be concluded by them." In Crawley v. Isaacs (1867) 16 L. T R. 529, 531. Mellish, L. J. "It was always held that a foreign judgment could be impeached at law as contrary to the principles of natural justice, as, for instance, on the ground of the defendant having had no notice of the foreign action, or not having been summoned or of want of jurisdiction, or that the judgment was fraudulently obtained." In Ochsenbein v. Papelier (1873) L. R. 8 Ch. 695, 700. "Our common-law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise." Justice James Parke in Mirehouse v. Rennell (1833) 1 Cl. & F. 527, 546. A modern illustration of the application of the old doctrine of natural rights is made by Justice Farwell when in giving judgment on certain rights involved in underground water courses he remarks: "The foundation of the right as stated throughout all the cases is jus naturae [citations to a number of cases follow] ... I have come to the conclusion, therefore, that jus naturae is used in these cases as expressing that principle in English law which is akin to, if not derived from, the jus naturale of Roman law. English law is, of course, quite independent of Roman law, but the conception of aequum et bonum and the rights flowing therefrom which are included in the jus naturale underlie a great part of English common law; although it is not usual to find 'the law of nature' or 'natural law' referred to in so many words in English cases." Bradford Corporation v. Ferrand (1902) 2 Ch. 655, 661, 662. Cf. Lord Mansfield's reference to obligations of justice and equity in Moses v. Macferlen (1760) 2 Burr. 1005, 1012 and opinions of Baron Martin in Freeman v. Jeffries (1869) L. R. 4 Ex. 189, 199 and Justice Buller in Master v. Miller (1791) 4 T. R. 320, 342. Justice Parker, referring to the custom that a mortgage on the real estate of a married woman might be executed by her husband without having been acknowledged by her, said "It is quite clear that for a custom to be good it must be reasonable or, at any rate, not unreasonable. The words 'reasonable or not reasonable' imply an appeal to some criterion higher than the mere rules or maxims embodied in the common law, for it is no objection to a custom that it is not in accordance with these rules or maxims.... A custom to be valid must be such that, in the opinion of a trained lawyer, it is consistent or, at any rate, not inconsistent, with those general principles which, quite apart from particular rule or maxims, lie at the root of our legal system.... 'Custom,' as it is put in Needier v. Bishop of Winchester (Hob. 220, 225) 'must not deprive the law of nature.' Lawyers of today do not refer to the law of nature as freely or confidently as lawyers did centuries ago, but, translated into modern phraseology, I think this means that a custom ... must be according to the principles of our common law." Johnson v. Clark (1908) 1 Ch. 303, 311, 312. 43. In British India the law of nature has been used as a device to aid in the introduction of English legal ideas The judges are instructed in various Indian provinces to act "according to justice, equity and good conscience." Pollock, Essays in the Law, p. 70 and Expansion of the Common Law, pp. 132 ff. 44. W. G Miller, The Law of Nature and Nations in Scotland (Edinburgh, 1896), p. 5. 45. The German Recht is never quite our "right" or quite our "law" says Maitland in his introduction to Political Theories of the Middle Ages by Otto Gierke, p. lxiii. Closely related to the German Recht is what is called by Ihering the Sittlichkeit, "the system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." See Lord Haldane, "Higher Nationality: A Study in Law and Ethics," American Bar Association Reports, XXXVIII (1913), 393. Though there is no word in English which exactly expresses the meaning of Sittlichkeit, it is sometimes translated as "social ethics." 46. "There is nothing in the Greek language exactly corresponding to the Latin jus. The Roman term cannot be translated by nomoV, which is mainly used for statutory law -- lex. Nor is to dikaion an equivalent, for it signifies "the just." ... These phraseological peculiarities point to the highly important fact that the Greeks regarded law primarily as the embodiment of justice." Vinogradoff, Jurisprudence of the Greek City, p. 19. 47. Laurent, Principes du droit civil français, vol. I, sec. 2, also Baudry-Lacantinerie, Precis de droit civil, vol. I, sec. 1. 48. "Recht is 'right and law' -- the law looked at not merely as courts enforce it, but also with reference to what the courts are seeking to attain through the judicial administration of justice." Pound, Law and Morals, pp. 84, 8s. 49. It may be observed that the German terms Recht and Naturrecht include only a portion of good conduct, the remainder being covered by Tugend, Sittlichkeit, and Moralität. In France, droit and droit naturel are opposed to moralité. Sir Frederick Pollock speaks of the Continental schools of jurisprudence as either ethical or historical. "By the ethical school I mean ... those authors who throw their main strength on investigating the universal moral and social conditions of government and laws, and expounding what such government and laws are or ought to be, so far as determined by conformity to those conditions. This is the nearest account I can give in few words of what is implied in modern usage by the terms law of nature, droit naturel or Naturrecht." An Introduction to the History of the Science of Politics, p. 110. 50. "The Law of Nature," Law Quar. Rev., XI (April, 1926), 121. 51. "English lawyers are not, and never have been ready," says Professor Holdsworth, "to receive and use as the basis of their reasoning the theories of legal and political philosophers." Some Lessons from our Legal History (New York, 1928), p. 109. 52. Generalizations, often assumed and followed without any definite formulation, are likely to form the major premises of judicial reasoning. For some interesting examples of this type, cf. H. Rottschaefer, "Legal Theory and the Practice of the Law," Minnesota Law Review, X (April, 1926), 382. Mr. Rottschaefer notes that not only are such generalizations subsumed in much judicial thinking but similar generalizations serve as a background for those who criticize legal rules. CHAPTER III AMERICAN AND FRENCH NATURAL LAW DOCTRINES BY THE time political theories and customs were taking definite shape in the American Colonies the characteristic ideas relating to natural law in England and in Continental Europe had been introduced into the environment of a pioneer rural civilization. But before the transmission took place a change in emphasis was under way which was accentuated under the peculiar conditions prevailing in America. 1. Transition from Natural Law Doctrines to Theories of Natural Rights. When the standard works of Gentilis, Grotius, Pufendorf, and Burlamaqui aimed to present the basic principles of the public and private law of Europe natural law doctrines were generally approved. As the importance of the canon law declined the doctrines were limited in their applications and, in certain countries, except for their use as critical standards to oppose the arbitrary and dictatorial policies of princes and kings, they were sparingly used in the practical operation of the law. But all branches of the law were subjected to natural law influences. The original concepts of natural law, however, were to undergo a marked transformation, when the Reformation leaders, following Roman and mediaeval authorities, gave great significance in political and religious matters to the rights and liberties of the individual. Instead of natural law or rules of superior validity jus naturale was translated into a theory of natural rights -- qualities inherent in man which it was the duty of the state to protect. Grotius was one of the foremost mediaeval thinkers to find a source of natural rights in certain inherent qualities belonging to the individual. These rights, which were sanctioned by natural law, might be discovered by human reason.[1] Montesquieu and the Physiocrats in France and English philosophers also formulated theories of natural rights as inherent in the individual, with certain formulas derived therefrom designed to limit all public authorities.[2] Moreover, the distinction suggested several centuries earlier that rulers were bound not only by the primary laws of nature but also by certain fundamental secondary natural laws which were expressed in positive laws, was formally enunciated.[3] One of the popular writers of the eighteenth century, who based his political philosophy on rights inherent in the individual, was Vattel, whose volume on The Law of Nations appeared in many editions, French, English, and German.[4] As a representative authority Vattel's views, as well as those of Grotius, Pufendorf, and Burlamaqui, were extensively studied and followed during the formative period of American law. Vattel, who was a follower of Frederic von Wolff, began to translate Wolff's work, Jus Naturae Methodo Scientifica Pertractatum, and to render it available to the public and the result was that he put the doctrines of Wolff into such form that a relatively new and popular treatise was prepared. To Vattel, it was regarded as settled on the basis of natural law "that liberty and independence belong to man by his very nature, and that they cannot be taken from him without his consent." Moreover, "the whole Nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all its undertakings.... We must therefore," he continued, "apply to nations the rules of the natural law to discover what are their obligations and their rights; hence, the law of Nations is in its origin merely the law of Nature applied to Nations." Vattel regarded this law immutable as