y expressed by them. It does not seem to
have been wholly academic, but to have been actually applied at times.
In his history of Rome, Mommsen relates that even during the nearly
absolute sway of Sulla, after the fall of Marius, the Cornelian Laws
enacted to deprive various Italian communities of their Roman
franchise were ignored in judicial proceedings as null and void; also
that, contrary to Sulla's decree, the jurists held that the franchise
of citizenship was not forfeited by capture and sale into slavery
during the civil war with Marius. Later, when the church became a
power in the state there are instances where laws adjudged to be
contrary to the laws of God were refused effect. In England as late as
the middle of the 17th century Chief Justice Hobart, a judge of high
repute, asserted that "even an act of Parliament made against natural
equity, as to make a man judge in his own case, is void in itself for
the laws of nature are immutable and they are the laws of laws." In
the 18th century Blackstone assented to the doctrine of a _jus
naturale_ and wrote of it: "This law of nature being coeval with
mankind and dictated by God himself is of course superior in
obligation to any other.... No human laws are of any validity if
contrary to this, and such of them as are valid derive all their force
and all their authority, mediately or immediately, from this
original." True, Blackstone combated the doctrine that duly enacted
statutes were to be held void if the judges thought them contrary to
reason, but he admitted that that extreme doctrine was more generally
held. In this country the doctrine of a higher law than the
Constitution even, and to be obeyed rather than the Constitution and
laws enacted in accordance therewith, has had and even now has earnest
advocates.

But the contrary doctrine of Carneades and the Sophists would not
down. After Cicero and the civilians, after Hobart and Blackstone,
came our modern utilitarians, or sophists, Bentham, Mill, Austin, and
others, who have vigorously maintained with weighty arguments the
utilitarian theory of justice; and that theory is now generally
accepted by lawyers and statesmen as at least the most workable
theory in human affairs. There still exists, however, in the minds of
many the belief that above and behind all the turmoil and strife of
politics, all the flux and reflux of social movements and public
sentiment, the confusion of enactments, amendments, and repea