Tradition : Principally with Reference to Mythology and the

THE LA W OF NA TIONS. 351
(2.) That this tradition was invariably associated with
the golden age, e.g.:
" After nature had become a household word in the mouths of the
Romans, the belief gradually prevailed among the Roman lawyers,9
that the old jus gentium was in fact the lost code of nature, and that the
praetors, in framing an edictal jurisprudence on the principles of the
jus gentium, were gradually restoring a type from which law had only
departed to deteriorate " (p. 56). " But then, while the jus gentium
had little or no antecedent credit at Rome, the theory of a law of
nature came in surrounded with all the prestige of philosophical
authority, and invested with the charms of association with an elder
and more blissful condition of the race " (p. 60). " The law of nature
confused the past and the present. Logically it implied a state of
nature which had once been regulated by natural law ; yet the jurisconsults
do not speak clearly or confidently of the existence of such a
state, which indeed is little noticed by the ancients except when it
finds a poetical expression in the fancy of a golden age" (p. 73). " Yet
it was not on account of their simplicity and harmony that these
finer elements were primarily respected, but on the score of their
descent from the aboriginal reign of nature" (p. 74). "Yet it is a remarkable
proof of the essentially historical character of the conception
that, after all the efforts which have been made to evolve the code of
nature from the necessary characteristics of the natural state [i.e. a
priori] so much of the result is just what it would have been if men
had been satisfied to adopt the dicta of the Roman lawyers without
questioning or reviewing them. Setting aside the conventional or
treaty law of nations, it is surprising how large a part of the system
is made up of pure Roman law " (p. 97). [Because the Roman law
was in the main stream of the tradition.]10
9 Either, then, the Roman lawyers fell back upon the old traditions, or
else the lawyers introduced the superstition of the law of nature, and
then became victims to the superstition they had invented. In any case,
the "belief" in "the lost code of nature gradually prevailed/' I am presently
going to discuss with Sir H. Maine how far in the latter case such a
belief is likely to have prevailed.
10 Vide also Sir H, Maine, p. 77: "It is important, too, to observe that
m
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in later days, was not entirely the product of imagination. It was never
thought of as founded on quite untested principles. The notion was that
it underlay existing law, and must be looked for through it. Its functions