WHAT IS CIVIL LIBERTY? 293 



that it may have entered into the Stoic philosophy in some vague 

 way. We find it in the lawyers of the third century. Ulpian says : 

 " In civil law, slaves are considered null. Not, however, by natu- 

 ral right ; because, as regards natural right, all men are equal/' * 

 And Florentinus : " Liberty is the natural faculty of that which 

 it is permitted to any one to do, unless something has been pro- 

 hibited to him by force or law. Slavery is an institution of the 

 law of nations, by which any one is subjected to the rule of 

 another, against nature. Servi are so called because military 

 commanders are wont to sell captives, and so to preserve (servare) 

 them and not kill them." f The doctrine, therefore, gets into the 

 Institutes of Justinian : \ " Slavery is the institute of the law of 

 nations by which a human being is subjected to another's control 

 against nature." These propositions, however, in the law, re- 

 mained entirely barren, and were not different from the academi- 

 cal utterances of the philosophers. It was the voice of reason and 

 conscience recognizing a grand abstract doctrine, but without 

 power to solve the social problems which would arise if that doc- 

 trine should be in any measure admitted into the existing order. 

 The Christians alone seem to carry on the doctrine as something 

 more than a pious hope, something not more distant than any 

 other feature of the kingdom of heaven, and easily realizable in 

 that kingdon. The vague elements of social and political innova- 

 tion in the revolt of the Donatists and the Bagaudes bear witness 

 to the extent to which some such doctrines had been popularized. 

 The latter had a very naive definition of natural rights, and, on 

 the whole, as good a one as has ever been given : " Natural rights 

 are born with us, about which nothing is said." # 



By the seventh century, the churchmen had made the doctrine 

 of natural liberty one of the tenets of the Church. Gregory the 

 Great writes : " Since our Redeemer, Creator of all creatures, 

 deigned to put on human form, in order by his divine grace to 

 break the bonds of the servitude by which we were held as cap- 

 tives, that he might restore us to our ancient liberty, it is fitting 

 and advantageous that those whom Nature has made free, and 

 whom the law of nations has made subject to the yoke of servi- 

 tude, should be restored, by enfranchisement, to that liberty in 

 which they were born." [| This passage became authoritative for 

 the middle ages, as well for the point of view of the doctrine, and 

 the sanction of it, as for its substance. It is a familiar fact that 



* " Digest," 1, IT, 32. f " Digest," v, 4. % I, tit. iii, 2. 



* See Jung, Sybel's " Zeitschrift," xlii, 65. He gives no authority for the definition of 

 natural rights. Another topic which might be investigated with great advantage to social 

 science is the history of popular revolts, with especial attention to their common elements 

 of political and social dogma. 



U Epistles, book vi, ep. VI; 11 Migne, 803. 



