301 



it has been cultivated of late years too exclusively either by professional 

 jurists or by philosophers unfamiliar with the details of the law, and 

 hence, the following strictures of Bacon may be applied to them as well 

 ae to ourselves. 



"All who have written concerning laws have written either as philo- 

 sophers or lawyers. The philosophers lay down many principles fair in 

 argument, but not applicable to use ; the lawyers being subject and ad- 

 dicted to the positive rules, eiiher of the laws of their own country, or 

 else of the Roman or pontifical law, have no freedom of opinion, but, as 

 it were, walk in fetters."* Pantagruel expresses the same opinion of the 

 French lawyers, in somewhat more forcible language: "Seeing," he 

 says, "that the law is excerpted from the very bowels of moral and 

 natural philosophy, how should these people know the law? who, by 

 . . . . , have read no more in philosophy than my ass." 



NOTES. 



(a) Thus, Bentham regarded the expressions, the law of nature and natural rights, as 

 purely metaphorical. "The primitive sense of the word law," he says, "under ordi- 

 nary meaning of the word, is the will, or command of the legislator." " The law of 

 nature is a figurative expression, in which nature is represented as a being, and such 

 and such a disposition is attributed to her, which is ailirmatively called a law. Natural 

 rights are the creatures of natural law. They are a metaphor which derive their exist- 

 ence from another metaphor." And he adds : " In this anti-legal sense, the word right 

 is the greatest enemy of reason, and the most terrible destroyer of governments. There 

 is no reasoning with fanatics, armed with natural rights " (Principles oj Legislation) . 



Austin, also, while admitting the possibility of a natural law, enacted by the Creator, 

 in effect denies that it could be known to us, except through the commands of the gov- 

 ernment ; and thus practically arrives at the same conclusion. 



(6) Hence, as observed by St. Germain, Doctor and Student, pp. 11 and 12, " it is not 

 used, among them that be learned in the laws of England, to reason what thing is com- 

 manded or prohibited by the law of nature, and what not ; but .... when anytliing is 

 grounded upon the law of nature, they say reason will that such a thing be done ; and if 

 it be prohibited by the law of nature, they say that it is against nature, or that nature 

 will not suffer it to be done." And the same view is asserted by Coke, in his celebrated 

 saying, that "Nihil quod est contra rationem est licitum," aud that "the common law itself 

 is nothing else but reason " [Co. LitL, 976) ; and by Mansfield, more accurately, in the 

 definition that it is nothing else but reason modified by habit and authority ; and by 

 Burke, in saying that it is " the collected reason of ages, containing the principles of 

 original justice with the infinite variety of human affairs." 



(c) " After nature had become a household word in the mouths of the Romans, the 

 belief gradually prevailed, among the Roman lawyers, that the old jus gentium was, in 

 fact, the lost code of nature .... by which nature had governed man in the primitive 

 state." " Romnn jurisconsults, in order to account for the improvement of their juris- 

 prudence by the praetor, borrowed from Greece the doctrine of a natural-state man — a 

 natural society, anterior to the organization of commonwealths, governed by positive 

 law." And, again : " The law of nature confused the past aud the present ; logically, it 

 implied a state of nature which had once been regulated by natural law. Yet the juris- 



* Bacon's De Aug., 8, 3. 



PROC. AMEB. PHILOS. SOC. XXXIV. 148. 2 M. PRINTED NOV. 4, 1895. 



