former could hardly be expected to exist in universal practice, but they were in any case to be desired.

The latter

As the two

25

was positive law, enforced everywhere in the Roman Empire, and conceived of as common to all mankind. systems apparently converged towards the same goal there was a tendency to call one by the name of the other. Cicero came very near to suggesting such an identity. Gaius in the second century impliedly recognized it as complete. A group of Jurists at the beginning of the third century, however, denied a complete identification. It is a significant circumstance that the appearance in Foman juristic writings of this disposition to distinguish jus gontium and jus natarale corresponds in point of time with the appearance of certain new phrases about human nature and with the aogmatic assertion of the natural liberty and equality of men.

26

25 Institutes, I,1, incorporated in Justinian's Digest I,1,9. This passage from Galus has been taken frequently as authority for the proposition that there was no real distinction between the jus gentium and the as naturale in Roman Law. See Barbeyrac's Grotius, II,8,1, notes 1 and 4; Barbeyrac's Pufendorf, II,3,23, note3; Blackstone, Commentaries, Introd., p. 44; Taylor, fummary of Foran Law, p. 53. Sir Henry Maine gave popular currency to this interpretation in the nineteenth century, particularly arong Fnglish and American writers. Ancient Law P. 55. See Lawrence, Tssays, P. 186; Salmond, in.. (1895), Vol. 1, p. 129; Taylor, Int. Pab. Law, pp. 2, 76; Westlake, Collected Papers, pp. 22, 47. Vore recent investigation has discredited this interpretation and has done much to clear up one of the most aifficult points in Foman legal theory. See Bryce, Studies, pp. 583-585; Carlyle, Med. 201. Theory, Vol. I, pp. 36-54; Voigt, Tas jus naturale, Vol. I, secs. 42, 89-96, 100, and passim. See the explanation for the above passage from Gaius in Kriep, Gai Institutionum.

p.

26 Carlyle, Hed. Fol. Theory, Vol. 7, p. 45.

IV

THE IDEA OF NATURAL EQUALITY IN ANTIQUITY

The origin of the idea of natural equality is lost in the obscurity that prevails with reference to the period between Aristotle and Cicero. Somewhere in that period there occurred at least one decisive change in political thinking, a change that is of profound significance in connection with the present subject. Aristotle taught the natural inequality of human nature.

"But is there a slave by

nature," he queried, and his answer was affirmative:

There is: from the hour of their birth some are intended to command, others to obey; they work together, and the better the workman, the better the work.

... Does not this use of language clearly imply that there are two classes of men, the slave by nature and the freeman by nature? And where there is a marked superiority in one class and a marked inferiority in another, there the relation of master and slave springs up; and this relation, when arising naturally and not resting mergy on law and force, is a kindly and bene

ficent one.

Cicero on the other hand proclaimed the natural equality of mankind:

For there is no one thing so like or so equal to another, as in every instance man is to man. And if the corruption of customs, and the variation of opinions did not induce an imbecility of minds, and turn them aside from the course of nature, no one would more nearly resemble himself than all men would resemble all men. Therefore, whatever definition we give of man, will be applicable to the whole human race. And this is a good argument that there is no dissimilarity of kind among men; because if this were the case, one definition could not include all men..

27 Politics, I,5-6 (Jowett's transl.).