THE CONCEPTION OF A STATE OF NATURE

The conception of an original state of nature was the third Important agency constantly relied upon by the publicists who translated the idea of natural equality into the law of nations. This conception had no necessary connection #ith that of natural law, or of natural, equality, although historically it was closely associated with them both. The literature of antiquity abounds in allusions to the condition of man prior to the institution of human government and indeed prior to any social life. This natural condition was of no great interest to philosophers like Aristotle or Cicero, who held that man was by nature adapted to political society. For later philosophers, however, it had an absorbing interest. It occupied an important place in the political theories of Seneca at the beginning of the Christian era. One of the most important differences between the political theories of Cicero and of Seneca is to be found in the latter's conception of the primitive state of innocence: to Seneca's opinion there was a golden age antedating the age of conventional institutions:

According

But the first, men and their immediate descendants followed Nature; pure and uncorrupt; and held the same both for their leader and law; by an orderly submission of the worse to the better: for this was ever the rule of simple Nature. .Exquisitely happy then must the people have been, among whom none could obtain power but he that was a good man: for he may do whatever he pleases, who thinks he can do no more than what he ought to do. Posidonius therefore judgeth, that wise men only ruled in the age that was called the golden.

They

What could he happier than the race of man? enjoyed all nature in common; she as a kind parent was the protectress of all mena and gave them secure possession of the public wealth.

The contrast which Seneca drew between primitive and con

ventional institutions probably represented a tradition which was current among at least some of the Stoic thinkers

of his time.

Apparently this tradition had no great influence on the Roman jurists. Mr. Carlyle thinks that he has detected a

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disposition in Ulpian, Tryphoninus, and Florentinus to contrast the primitive with the conventional state of society in connection with the institution of slavery; he suggests that this disposition may have had something to do with the rise of the distinction between the jus gentium and the jus naturale. The evidence is not very conclusive. In general it may be said that the jus naturale of the Roman lawyers had no connection with the primitive state of nature. The Jurists were not troubled about primitive man, nor did they believe that in the jus naturale they had discovered a "lost code of nature." They were content to leave such speculations to the poets and the philosophers.

The Fathers, on the other hand, were very much under
They conceived of the

the influence of this conception.

state of man before the Fall much as Seneca conceived of the

70 Ad Lucilium epistalaram moralium, Epist. 90 (Morell's transl.).

Cf. Digest,

71 Med. Pol. Theory, Vol. I, pp. 42-44. 1,1,4; 1,1,5; 1,5,4; XII,6,64; Institutes, 1,2,2.

golden age. They professed to believe that there had been a time when men were free and equal, goods were possessed

in common, and government was not necessary.

"And this is

not to be regarded as a poetic fiction, but as the truth,"

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declared Lactantius. They held that because of sin man

passed out of this primitive state and into that condition
in which the conventional institutions of society became
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necessary.

The patristic view of slavery, property, and government turned upon this distinction between the primitive

and the conventional.

The theory of a state of nature was reproduced in a variety of forms by writers of the Middle Ages. Although it, was not a subject of great interest to the civilians, they frequently accounted for the existence of institutions contrary to natural law by assuming that the law of nature was appropriate to a natural or primitive condition of mankind, while the actual institutions of society had perforce been accomodated to other and less perfect conditions. The idea found occasional expression in the treatises of feudal lawyers. There is a passage in Britton in the chapter on villenage which illustrates the conception's influence:

This condition was of ancient time changed from freedom to bondage by the constitution of nations, and not by the law of nature, as it stood at the time of the flood and earlier, when all things were common to every one, and all men were entirely free, and lived according to the law of nature.

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Divinarum institutionum, V,5.

St Augustine, De civitate Dei, XIX,15.

1,32,1 (Nichols' transl.). Cf. Beaumanoir, Coutumes de Beauvaisis, sec. 1453, Vol. II, p. 235.