Ancient Law: Its Connection to the History of Early Society by Henry Sumner, Sir Maine

By Henry Sumner, Sir Maine

Advent by way of J. H. MORGAN

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In proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. It is surprising to note how many of the Sophismes Anarchiques which Dumont published for Bentham, and which embody Bentham's exposure of errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the principal eras of the Revolution.

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 conceding 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 conceding the birthstate of men, though visibly intended to be identical with that of Ulpian and his contemporaries, has assumed an altogether different form and meaning.

They are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. Grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. They may be read in the introductory chapters of our own Blackstone, who has transcribed them textually from Burlamaqui, and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the Roman hypothesis.

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