assert particular rights or power. All the citizens were equal before the law; each possessed his civic franchise: free speech before the court and in the assembled council of the people." Public courts protected citizens against officers. Personal liberty was guaranteed by right to give bail. "No law might be promulgated relating to a single individual without applying equally to all (24). These laws were put in writing to be read by all. They stood on pillars, and this was the Athenian popular government with a written constitution (25). "The good fortune of the Athenians consisted in this: that instead of their possessing an uncertain and formless idea of liberty, the liberty they desired was contained in their ancient and legally-established constitution" (26). "The admirable bearing of the Athenians is solely to be accounted for by the laws of Solon, which, through all the troubles of the times, had with invisible force educated the Athenians to a free citizenship resting on the foundation of morality" (27).

The Senate and Areopagus were representative of the people-changing bodies, checks upon each other, and also against popular passion (28).

24 Curtius, vol. 1, pp. 423, 424.

25 B. C. 594.

26 Curtius, vol. 2, p. 424.

27 Id., pp. 423, 424.

281 Curtius, pp. 356, 357. Compare 1 Kent, Com. *232, and notes. The view of Professor Curtius is an extreme one and must be confined to the brightest period of Athenian law. The analogy presented by the ancient examples of representative government was of dangerous utility in argument favoring the formation and adoption of the present constitution. The authors of the Federalist were correspondingly careful in reference to the subject. See also Federalist, No. 63.

Thus, we see in the Grecian land two streams of law whose sources are each asserted to be in the fountains of nature; and, to take a simile from Bacon, "Like as waters do take tincture and taste from the soil through which they run, so do civil laws vary according to the region and governments where they are planted, though they proceed from the same fountains" (29). The one, flowing through a soil impregnated with Wisdom and Justice; the other, passing through a soil rich in Knowledge and Power, changing into a stream of Tyranny and Oppression.

The influence of this incipient Grecian philosophy concerning the equality of men as members of society and in the eye of the law never lost its hold upon this eastern society. Dynasties changed, the early kings were displaced by the emperors, and they in turn by tribunes who claimed to rule at the election of the people, and with their representatives the senate, but philosophy never wholly lost its influence, and forever kept the Roman state in a condition of conflict between those who would establish slavery and those who would maintain the dignity of Roman citizenship, the jus aequum of the Roman law.

This supremacy of the natural law is voiced by Justinian. It is reiterated by Blackstone; it is one of the foundation principles in that court of justice where conscience and equity are the ruling forces. But not until the levelling process of the Declaration of Independence and the establishment of the American Commonwealth

291 Bacon's Works, vol. 1, p. 238.

was this principle of equal right made a foundation stone in the edifice of a Nation (30).

§ 15. The Roman system-The law of nature. As the Roman empire soon swallowed up the Grecian state, we naturally turn our attention to the Roman law.

Bacon (31) says that "the Decumvirs laws (the XII Tables) were laws upon laws not the original, for they grafted the laws of Graecia upon the Roman stock of laws and customs; but such was their success that the twelve tables which they compiled were the main body of the law which framed and wielded the great body of that estate" (32).

The law of nature.-Half a century before the Christian era, Cicero, the exponent of advanced thought in philosophy and law at Rome, declares that "Reason prescribes the law of nature and of nations; and all positive institutions, however modified by accident (33) or custom, are drawn from the rule of right, which Deity has inscribed on every virtuous mind” (34).

The translator of D'Lioy's Philosophy of Law says: "The extension of the original jus civile by the jus gentium did not change its character, and the jus naturale

30 "But however great the variety and inequality of men may be with regard to virtue, talents, taste, and acquirements, there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all there is an equality in rights and obligations; there is that jus aequum, that equal law, in which the Roman placed true freedom." 1 Wilson's Works, 275.

31 Bacon's Works, vol. 2, p. 234; 1 Kent, Com. 52.

32 Compare Gibbon, Decline and Fall, ch. 44, and Professor Hammond's introduction to Sandars' Justinian.

33 Divine Right of Kings and Slavery.

34 Gibbon, Decline and Fall, ch. 44, p. 322.

was only an alien philosophical infusion introduced by Cicero and the jurists from the schools of Greece" (35).

Sandars says: "By far the most important addition to the system of Roman law which the jurists (36) introduced from Greek philosophy was the conception of lex naturae. We learn from Cicero whence this conception came, and what was understood by it."

"With respect to the sources of Law the Romans had the following notions: every individual member of a political community is, as an animal, subject to the laws of Instinct; as a human being, to those which are dictated by the reason of mankind; and, lastly, as an individual member of a political community, to those laws which are sanctioned by the sovereign powers of that community. These three sorts of laws are respectively designated by the Romans jus naturale, jus gentium, sometimes also jus naturale and jus civile, in its most extensive sense. The proper source of this jus gentium is what in modern times is called the moral sense, or the natural feeling of justice; this, together with the moral notions at the time common to all nations, the Romans were not backward in recognizing as authority, although they did not feel themselves compelled to found their jus gentium wholly upon it. The jus gentium of the Romans,

35 Translator's Preface, p. 11, Mackeldy says: "The scientific treatment of the law in the period (from Cicero to Alexander Servius, 50 B. C. to 250 A. D., p. 24) attained its highest excellence, which was particularly owing to the connection of law with philosophy and Greek literature." Introduction to Roman Law, p. 35.

36 Introduction to Sandars' Justinian, p. 15.

being dependent entirely upon natural feeling, did not rest upon any abstract principle. They did, however, recognize many principles as general rules, particularly the principle, that by the natural law all agreements should be observed, and that, in the absence of any special right, no one ought to enrich himself to the damage or from the property of another" (37).

§ 16. Slavery held contrary to the law of nature. The Institutes mark an important change of thought in regard to the origin of slavery. Lib. 1, tit. 2, sec. 2, says: "Wars arose, and in their train captivity and slavery, which is contrary to the law of nature, for by that law all men are originally born free." This doctrine is the direct opposite of the doctrine of Aristotle. The probable explanation for this change is the influence of Christianity and a consequently modified conception of the law of nature. Here then, in Rome, at the time of Justinian, the doctrine of the divine right of kings has given place to the principle that the people have, by a compact of submission, made over irrevocably to the emperor their whole power and authority, and the institution of slavery is ranked as a misfortune of war instead of the result of natural differences of capacity in human beings.

In August, 1774, James Wilson published his celebrated address to the colonists, wherein he denies the Jurisdiction of Parliament to legislate for the Colonies. In the course of his argument he says: "All men are by nature equal and free; no one has a right to any authority over

37 Thibaut's System Des Pandekten Rechts, Lindley's Translation,