There is a single example which very strikingly illustrates the
effects of the theory of natural law on modern society, and indicates
how very far are those effects from being exhausted. There cannot, I
conceive, be any question that to the assumption of a Law Natural we
owe the doctrine of the fundamental equality of human beings. That
"all men are equal" is one of a large number of legal propositions
which, in progress of time, have become political. The Roman
jurisconsults of the Antonine era lay down that "omnes homines natura
aequales sunt," but in their eyes this is a strictly juridical axiom.
They intend to affirm that, under the hypothetical Law of Nature, and
in so far as positive law approximates to it, the arbitrary
distinctions which the Roman Civil Law maintained between classes of
persons cease to have a legal existence. The rule was one of
considerable importance to the Roman practitioner, who required to be
reminded that, wherever Roman jurisprudence was assumed to conform
itself exactly to the code of Nature, there was no difference in the
contemplation of the Roman tribunals between citizen and foreigner,
between freeman and slave, between Agnate and Cognate. The
jurisconsults who thus expressed themselves most certainly never
intended to censure the social arrangements under which civil law fell
somewhat short of its speculative type; nor did they apparently
believe that the world would ever see human society completely
assimilated to the economy of nature. But when the doctrine of human
equality makes its appearance in a modern dress it has evidently
clothed itself with a new shade of meaning. Where the Roman
jurisconsult had written "aequales sunt," meaning exactly what he said,
the modern civilian wrote "all men are equal" in the sense of "all men
ought to be equal." The peculiar Roman idea that natural law coexisted
with civil law and gradually absorbed it, had evidently been lost
sight of, or had become unintelligible, and the words which had at
most conveyed a theory concerning the origin, composition, and
development of human institutions, were beginning to express the sense
of a great standing wrong suffered by mankind. As early as the
beginning of the fourteenth century, the current language concerning
the birth-state of men, though visibly intended to be identical with
that of Ulpian and his contemporaries, has assumed an altogether
different form and meaning. The preamble to the celebrated ordinance
of King Louis Hutin enfranchising the serfs of the royal domains would
have sounded strangely to Roman ears. "Whereas, according to natural
law, everybody ought to be born free; and by some usages and customs
which, from long antiquity, have been introduced and kept until now in
our realm, and peradventure by reason of the misdeeds of their
predecessors, many persons of our common people have fallen into
servitude, therefore, We, etc." This is the enunciation not of a legal
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