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THE INSTITUTES OF LAW 
 
lias etrn vo/xos evpTj/xa fi.h> koI SiZpov ©ccov. 
 
 — Demosthenes. 
 
 "Das eine Gesetzbuch dos Reclits ist die Gottliche "Weltordnung. " 
 
 — Krattse. 
 
 "All human laws are, properly speaking, only declaratory.'' 
 
 -^Bitktce. 
 
 MoVov yap fiovL/xov to ko.t' d£iav 'itrov, ko! to %x elv T °- iwuv. 
 
 — Aristotle. 
 
 "The unfettered multitiide is not dearer to me than the unfettered king." 
 
 — Channing. 
 
THE INSTITUTES OF LAW . ri . 
 
 I tl !;/ l:f 
 
 A TREATISE OF THE 
 
 PEINCIPLES OF JUEISPEUDENCE 
 
 AS DETERMINED BY 
 
 NATURE 
 
 BY 
 
 JAMES LORIMEK 
 
 ADVOCATE, REGIUS PROFESSOR OF PUBLIC LAW AND OF THE LAW OF NATURE AND 
 
 NATIONS IN THE UNIVERSITY OF EDINBURGH, MEMBER OF THE INSTITUTE 
 
 OF INTERNATIONAL LAW, AND CORRESPONDING MEMBER OF THE 
 
 ACADEMY OF JURISPRUDENCE OF MADRID, ETC. 
 
 3 
 
 SECOND EDITION, REVISED AND ENLARGED 
 CO 
 
 o • 
 III 
 
 fit 
 
 WILLIAM BLACKWOOD AND SONS 
 
 EDINBURGH AND LONDON 
 
 MDOCOLXXX 
 
 G 
 
 All Rights reserved 
 
PREFACE TO THE SECOND EDITION. 
 
 It has often been a subject of regret to me that the specula- 
 tive tendencies of my countrymen were not directed more 
 definitely to the life of man in Society and in the State. 
 Had those great thinkers who have rendered the Scottish 
 School of Philosophy illustrious set before them the task 
 of placing Politics and Jurisprudence on a scientific basis, 
 Political Economy might, long ago, have ceased to be the 
 only practical science for which the world was indebted to 
 a Scotch professor. 
 
 This task I recognized as more immediately incumbent on 
 the occupant of the Chair which I had been called to fill ; 
 and the desire of contributing, however humbly, to its accom- 
 plishment, has determined the character both of my oral 
 teaching and of this Text -book. 
 
 Although the present is not a speculative age, in some 
 respects it has, unquestionably, been favourable to the work 
 which I had in hand. That mitigation of dogmatism which 
 Mr Herbert Spencer has wittily described as the " theological 
 thaw," by enabling us to distinguish between the temporary, 
 local, and relative, and the permanent, universal, and absolute 
 elements in religious systems, has given to the history of 
 
Vlll PREFACE TO THE SECOND EDITION. 
 
 religious opinion a value for secular purposes which it did not 
 formerly possess. I have, consequently, not hesitated to avail 
 myself of the rich materials with which oriental scholarship 
 has now furnished us, in order to bring into prominence the 
 unvarying ethical element which underlies all variations of 
 dogma and of ritual. This ethical element — clearer, from the 
 first, in the higher than in the lower races of mankind — 
 becomes clearer and more definite as the conscious life of each 
 race evolves itself, and as its accordance with subjective and 
 objective revelations of the scheme of the universe is perceived. 
 As faith becomes more reasonable, reason becomes more faith- 
 ful, and ultimately we must hope that the great problem of 
 Scholasticism will be solved by their culmination in a joint 
 result. It is to the rule of life thus gradually recognized, 
 that I have given the name of Natural Law, and, in the 
 concrete realization of which I have sought the line along 
 which all true Positive Legislation must necessarily travel. 
 
 Conformity or non-conformity with Natural Law, in this 
 sense, is, to my mind, the only conceivable measure of the 
 value of social activity that is either permanent or uni- 
 versal ; and it is on this ground that I have adhered to the 
 academical method which relied on it, in place of adopting 
 the method of measuring actions by results, on which the 
 modern science of Sociology depends. Before we can measure 
 by results, the results must be . measured ; and my difficulty 
 with reference to utility, when proposed as the ultimate 
 measure, as I have elsewhere explained, is — quis mstodit 
 custodem? Utility, in its turn, must be measured by some 
 end or object which it seeks, and, till we reach a teleological 
 
PREFACE TO THE SECOND EDITION. IX 
 
 measure that transcends individual or national tastes and 
 sentiments, Pilate's question regarding truth will apply to it. 
 Short of nature there is no science of ends ; and to ascribe 
 either utility or inutility to means irrespective of ends, is 
 mere baseless dogmatism. If the results which we declare to 
 be useful be identified with the objects of nature's legislation, 
 the whole aspect of the affair, of course, is changed. Our 
 results become ends, and not only they, but all the means 
 that contribute to their attainment may safely be labelled as 
 useful. But, in that case, Sociology presupposes scientific 
 jurisprudence. 
 
 Utilitarianism, as anything more than a phase of the in- 
 ductive method, scarcely crossed the Border, and never crossed 
 the Channel at all. But so firm was the hold which it took 
 on England in the last generation, that to many of my elderly 
 and middle-aged readers the possibility of its "utility" being 
 called in question has probably never presented itself. On 
 the other hand, it is rare, I believe, even in England, to find 
 a Benthamite pur sang who is under forty. I do not think 
 one has turned up amongst my students for the last ten years, 
 though many of them have been graduates of the English 
 universities ; and before another decade elapses, the preference 
 for the older and grander traditions which Grotius inherited 
 from Socrates, "the great lawyer of antiquity," as Lord Mans- 
 field called him, through the Stoics and the Koman Jurists, 
 over. those which Bentham transmitted to Austin, will, I hope; 
 be as universal and unequivocal as that for classical and 
 mediseval architecture over the architecture of the Georgian 
 era has already become. 
 
X PKEEACE TO THE SECOND EDITION. 
 
 This second edition does not differ essentially from the 
 .first ; but in many directions, I trust, it has been rendered 
 clearer in statement and more consistent in argument, 
 in consequence of the sincere though generous criticisms 
 of my colleagues of the Institute of International Law, 
 and the daily friction of the lecture - room, where, for the 
 last seven years, the first edition has been used as a text- 
 book by the exceptionally advanced and cultivated class of 
 students whom it has been my privilege to address. As I 
 have been careful to avail myself of suggestions and indica- 
 tions of opinion from both sources, whenever they appeared 
 ■to me to be of value, the work in its present form may be 
 regarded as the result of a process of development, rather 
 than of a single effort of composition. To some extent it has 
 the character of a bill that has not only been read a second 
 time, but has passed through committee ; and for this reason 
 I present it to the profession and to the public with fewer 
 misgivings than I felt in the case of its predecessor. For 
 many valuable suggestions, and criticisms of a minuter kind, 
 as well as for the revision of the sheets as they passed through 
 the press — an aid which my imperfect sight has rendered 
 more indispensable than formerly — I am indebted to my friend 
 Mr John Kirkpatrick. As Mr Kirkpatrick is a graduate of 
 three universities — Cambridge, Heidelberg, and Edinburgh 
 — and has had much literary experience, both as a writer 
 and an editor, his kind interposition on this occasion has 
 been a boon to my readers as well as a favour to me. 
 
 With all these advantages I must not hope that I have suc- 
 ceeded in making this work even a perfect expression of what 
 
PREFACE TO THE SECOND EDITION. xi 
 
 was, no doubt, an imperfect conception. But I have been 
 mindful that, as all is not gold that glitters, so all is not deep 
 that is dark ; and I can honestly say that I have left no in- 
 tentional " secrets " for my readers to puzzle out. The English 
 language is , capable of conveying clearly whatever we have 
 got clearly into our heads, and the apology which Coleridge 
 offered to those who accused him of obscurity — intelligibility 
 haud intellectum adfero— is one which must be very sparingly 
 used. The book is intended not for jurists only, but- for 
 cultivated persons generally, and if it is not generally intelli- 
 gible, the fault is mine. 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 PAGE 
 
 Preliminary Definitions and Divisions, . 1 
 
 BOOK I. 
 OF THE SOUECES OF NATURAL LAW. 
 
 Chapter I.— Op the Sources op Natural Law. 
 
 I. The Primary Source, or Source of Law itself, ... 21 
 II. The Secondary Sources or Channels of the Revelation of Natural 
 
 Law, . ....... 35 
 
 1st, Direct revelation, . .... 35 
 
 («) Miraculous revelation to man, . 35 
 
 (b) Miraculous revelation through man, ... 35 
 
 (c) Special revelation through man, . . .36 
 2d, Indirect revelation, . . ... 37 
 
 Chapter II. — Op the Schools op Jurisprudence. 
 
 1st, The Theological School, ...... 39 
 
 (a) Its reality, . . . . . . .39" 
 
 (b) Its adequacy, ..... .40 
 
 2d, The Inductive or Observational School (Subjective and Objective), . 45 
 
 3d, The Subjective, or so-called Philosophical School, ... 46 
 
 4th, The Objective, or Sensational School, . . 48 
 
 Chapter III. — Op the Autonomy op Human Nature. 
 
 1st, Our nature asserts its existence, and vindicates its assertion, . 55 
 
 2d, Our nature guarantees the veracity of its testimony with reference to 
 
 its qualities, . . . . . . .56 
 
XIV 
 
 CONTENTS. 
 
 3d, Our nature asserts that it is the result of a cause external to itself, 
 
 and independent of its volition, .... 57 
 
 4th, Our nature accepts itself as a gift, voluntarily given, but necessarily 
 
 received, ........ 58 
 
 5th, In accepting itself as- necessary, our nature accepts itself as right, 
 and its fundamental qualities and radical impulses as the 
 absolute criteria of right and wrong, .... 59 
 
 Chapter IV. — Inquiry into the History of Opinion with 
 
 REFERENCE TO HUMAN AUTONOMY. 
 
 {A) The canon of the limitation of the historical method, . 63 
 
 (B) The canon of the application of the historical method, . . 66 
 
 (C) The regulative canons for the application of the historical method, 66 
 1st, Preference must be given to the best witnesses, . . 67 
 2d, Even amongst the witnesses whom we admit, the principle that 
 
 testimonia ponderanda sunt, non numeranda, must be applied, . 72 
 3d, The abstract value of two witnesses being equal, the value of a 
 coincidence between their testimony will increase in proportion 
 to the dissimilarity, and diminish in proportion to the similar- - 
 
 ity, of the circumstances in which it is given, ... 73 
 
 (A) Of Oriental, or ante-Classical Anthropology generally, . . 74 
 
 (a) The Shemitic Paces, ... 74 
 
 (J) The Aryan or Indo-Germanie Races, . 77 
 
 1st, The original Aryan Family, . 80 
 
 2d, The Eastern, or Indian Branch, . 94 
 
 3d, The Western Asiatic Branch, .... 102 
 
 4th, Non--Aryan and Mixed Races of Asia, . . 104 
 
 5th, Buddhism, .... . 105 
 
 (c) The Turanian Races, . . . . 119 
 
 The Chinese, ... . 120 
 
 {B) Of Classical Anthropology, ...... 126 
 
 (a) Greece, .... . . 126 
 
 (6) Rome, ... . 145 
 
 1. The Roman Law, . . . 154 
 
 2. International Law, . . .157 
 (c) Alexandria, . . , . 159 
 
 (C) Shemitic and Christian Anthropology, .... 161 
 
 (a) The Bible, ... . . 161 
 (5) The Fathers, . . . . .162 
 
 (c) The Schoolmen and Ecclesiastical Jurists, . .165 
 
 (d) The Reformation, . . . , . .171 
 
CONTENTS. , xv 
 
 Chapter V. — Human Natube Reveals its own Impotence, . 175 
 
 Chapter VI. — How Man becomes Co&nizant of the Rule op Life. 
 
 (a) The rule of life is prescribed by bur whole nature, . . .184 
 
 (i) Conscience is not a separate faculty, ..... 186 
 
 Chapter VII. — Of the Rights and Duties which Nature Reveals. 
 
 1. Nature reveals no rights in relation to the Creator, . . , 205 
 
 2. Nature reveals to us duties in relation to the Creator, . . . 207 
 
 3. In our relation to creation, animate and inanimate, nature reveals 
 
 rights, ........ 212 
 
 («) The fact of being involves the right to be, . . . 212 
 
 (6) The right to be involves the right to continue to be, . . 213 
 
 (c) Like the right to be, the right to continue to be has ho validity 
 
 against God, ....... 214 
 
 {d) The right to be, and to continue to be, implies a right to the 
 
 conditions of existence, . . . . . .215 
 
 (e) The right to be implies a. right to develop our being, and to the 
 
 conditions of its development, ..... 222 
 (/) The right to be involves the right to reproduce and multiply our 
 
 being, ........ 226 
 
 (gO The right to reproduce and multiply our being involves the right 
 
 of transmitting to our offspring the conditions of the existence 
 
 which we confer, ...... 229 
 
 (h) The right to be involves the right to dispose of the fruits of 
 
 being, inter vivos, ...... 230 
 
 (i) The right to be involves the right to dispose of the fruits of 
 
 being, mortis ams&, ...... 233 
 
 (/) All our subjective rights resolve themselves into the right to 
 
 liberty, ........ 235 
 
 (k) In the limitations which nature imposes on our subjective rights, 
 
 we have the first revelation of the principle of order, . . 236 
 
 (Z) Nature reveals to us the possibility and the consequences of the 
 
 transgression of her laws, ..... 237 
 
 (m) Nature reveals objective rights which exactly correspond to our 
 
 subjective rights, . . . . . . . 238 
 
 4. Nature reveals objective duties, or dirties by others to us, which 
 
 exactly correspond to our subjective duties, or duties by us to 
 others, ........' 242 
 
 5. The existence of subjective and objective rights and duties, and of 
 
 their mutual dependence, constitute the sole revelation which 
 nature makes to us with reference to human relations, . . 242 
 
xvi CONTENTS. 
 
 Chapter VIII. — How wis become Cognizant of Law in General. 
 
 1. Natural laws are rational inferences from the facts of nature, . . 244 
 
 2. Natural laws are nocossary inferences from tlio facts of nature, . 24 5 
 
 3. Natural laws determine the ultimate objocts of positive laws, and fix 
 
 the principles of jurisprudence as a whole, . . . 247 
 
 4. The natural or do facto basis on which positive law rests being 
 
 known, the positive law which governs any given human relation 
 
 may be discovered, ...... 250 
 
 5. Though necessarily existent and discoverable, positivo laws never 
 
 have been, and probably nevor will be, perfectly discovered, 258 
 
 Chapter IX.— Of the Laws of Nature, or Principles of Jurispru- 
 dence which Result from the Human Rights and Duties which 
 Nature Reveals as Facts. 
 
 {a) All human laws are declaratory, ..... 255 
 
 (b) Law cannot change the character, or altor the relations of persons, . 259 
 ('■) Law cannot constitute, extend, or circumscribe a proprietary relation, 259 
 {d) Law cannot change the price of any commodity, . . . 274 
 
 Chapter X.— Of the Relation between Legislation and 
 Jurisdiction. 
 
 Tho function of the judgo, as such, is limited to the interpretation and 
 
 application of written or of consuetudinary law, . . . 277 
 
 Chapter XI. — Of the History of the Distinction between Perfect 
 and Imperfect Obligations, and its Effect in giving rise to 
 the Negative School of Jurisprudence. 
 
 (a) Rights and duties being throughout reciprocal and co-extensive, thcro 
 is no distinction, in principle — i.e., in nature — between one class 
 of obligations and another, ..... 282 
 
 {!>) Tho attompt to distinguish between perfect and imperfect obligations 
 
 was not unknown to antiquity, ..... 286 
 
 (c) It is generally ascribed to Thomasius, .... 288 
 
 Chapter XII.— Of Justice and Charity. 
 
 (a) The principles of justice and charity are identical ; their separato 
 realization is impossible ; and their common realization necessarily 
 culminates in tho same action, ..... 314 
 
CONTENTS. xvu 
 
 (6) The doctrine of the identity of the principles of justice and charity 
 was taught by Christ's mediatorial sacrifice, and is implied in the 
 whole scheme of redemption, ..... 334 
 
 (c) The doctrine of the identity of justice and charity was not first pro- 
 mulgated by Christ, and is not exceptionally Christian, . . 339 
 
 BOOK II. 
 
 OF THE OBJECTS OF NATURAL LAW AND JURIS- 
 PRUDENCE IN GENERAL. 
 
 Chapter I. — Op the Relation between Jurisprudence and Ethics. 
 
 (a) The ultimate object of jurisprudence is the realization of the idea in 
 
 the ideal of humanity, ...... 353 
 
 (ft) The proximate object of jurisprudence, the object which it seeks as a 
 
 separate science, is liberty, . . . 353 
 
 Chapter II. — Op the Relation between Order and Liberty. 
 
 Order and liberty, like justice and charity, are in principle identical. ' 
 They can be realized only in conjunction, and necessarily cul- 
 minate together, . . . . . 368 
 
 Chapter III. — Op the History op the Doctrine that the Idea op 
 Liberty involves the Idea op Absolute Equality. 
 
 (a) As a protest against authority, . . 378 
 
 (6) By the Jesuits, . . .378 
 
 379 
 385 
 388 
 392 
 393 
 
 (c) By Hobbes, 
 
 (d) Spinoza. 
 
 (e) Rousseau, 
 
 (/) Democrats of the Revolution, 
 (g) Ahrens, 
 
 Chapter IV. — Op the Relation of Equality to Liberty continued. 
 
 In what sense is equality involved in the idea of liberty '! The idea of 
 liberty involves the idea of equality in one sense only — that which 
 is popularly called "equality before the law,' - . . 402 
 
 (a) Analytic justice, ....... 405 
 
 (6) Synthetic justice, ....... 406 
 
xviii CONTENTS. 
 
 Chapter V. — Of the Limits within which Aggression is a 
 Natural Eight. 
 
 (a) Aggression is a natural right, the extent of which is measured by the 
 
 power which God has bestowed on the aggressor, or permitted him 
 to develop. Up to this point, the right of conquest, individual, 
 social, political, and ethnical, is involved in the idea of liberty, 
 and included in the objects of jurisprudence, . . . 414 
 
 (b) An end that is just, justifies the means requisite for its attainment ; 
 
 the right of aggression, consequently, justifies the application of 
 force, and involves the right of war, when, and to the extent to 
 which, force or war is necessary for its vindication, . . 419 
 
 BOOK III. 
 
 OF THE SOURCES OF POSITIVE LAW, OE SPECIAL 
 JURISPRUDENCE. 
 
 Chapter I. — Of the Ultimate Sources of Positive Law. 
 
 (a) The Law of Nature, ....... 425 
 
 (b) The conditions of existence under which that law must be realized, . 425 
 
 Chapter II. — Of the Proximate Sources of Positive Law. 
 
 (a) The primary source of positive law is the real power of the whole 
 community subject to the law, as exhibited in and measured by 
 its rational will, . " . . . . . . 426 
 
 (6) The secondary sources of positive law are the means by which the 
 community vindicates its real as distinguished from its merely 
 apparent power, ....... 426 
 
 Chapter III. — Of the Primary Source of Positive Law. 
 
 (a) Real positive law, as distinguished from mere enacted law, will exist in 
 a community, and the community will be practically autonomous, 
 to the extent to which power and reason exist and coincide in it, . 426 
 
 (6) Positive law can originate and subsist in a community only to the 
 extent to which that community is free, and all true legislation 
 is thus, in the last analysis, self-legislation, . . . 429 
 
 (c) Positive law can spring only from the whole autonomous community 
 
 which obeys it, . . . , _ 434 
 
CONTENTS. XIX 
 
 (d) As the presence of positive law is proportioned to the existence and 
 coincidence of power and reason, the contributions which the in- 
 dividual members of the community are in a condition to make 
 to it will be proportioned to the existence and coincidence of 
 power and reason, or the existence of real power, in each of them, 436 
 
 Chapter IV. — The Doctrine of the Necessary Sovereignty of the 
 Kational Will of the Whole Community is in accordance 
 with the Common-sense of Mankind, . . .437 
 
 Chapter V. — -Of the Secondary Sources of Positive Law. 
 
 The secondary sources of positive law are the means by which the com- 
 munity vindicates its real as distinguished from its merely ap- 
 parent power, ....... 447 
 
 I. The means by which the community forms its rational will, 447 
 
 1. The Church, ....... 448 
 
 (1.) It alone seeks to influence the will, not only indirectly, 
 
 through the understanding, but directly, . . . 450 
 
 (2. ) It appeals to the classes that are least within the reach of 
 
 other influences, and retains its hold on them during life, 453 
 
 2. The School, including the University, in so far as the latter is 
 
 regarded merely as a means of instruction and discipline, and 
 
 not as an organ for the advancement of science, . . 459 
 
 3. The Press, ...... 469 
 
 4. The Polling-booth, . . . . . ' . 472 
 
 II. The means by which the community develops its rational will, . 476 
 
 (a) Conscious effort on the part of individuals and classes, . . 476 
 
 (b) Social organisation, ...... 491 
 
 (c) By the selection, and setting apart, of exceptional workmen for 
 
 exceptional work, ...... 494 
 
 III. The means by which the community ascertains its rational will, . 504 
 
 (a) The amount of organization requisite for the ascertainment of the 
 rational will is in an inverse ratio to the amount of direct per- 
 sonal contact with each other, on the part of the individuals 
 whose rational will is to be ascertained, . . . 505 
 
 (J) For purposes of practical legislation it will, in general, be neces- 
 sary that all citizens included in each political class or category 
 be dealt, with as contributing an equal amount of rational will, 510 
 
 (c) The classification which exists for economical and social pur- 
 
 poses, for the time being, affords the measure of that which is 
 requisite for legislative purposes, .... 513 
 
 (d) The electoral system, . . • , . 514 
 
XX 
 
 CONTENTS. 
 
 IV. The means by which the community declares its rational will, 
 (a) Legislation, . • • • 
 
 (fi) Consuetude, 
 
 V. The means by which the rational will of the community is applied 
 to the special case may be either spontaneous or by jurisdiction, 
 VI. The means by which the community enforces its rational will, 
 Of the Arm}', ...... 
 
 The Police, . 
 
 Public Prosecution of Crime, 
 
 515 
 515 
 516 
 
 516 
 
 517 
 518 
 519 
 520 
 
 BOOK IV. 
 
 OF THE OBJECTS OE POSITIVE LAW. 
 
 Chapter I. — Of the Ultimate and Proximate Objects of Posi- 
 tive Law, . .... 
 
 Chapter II. — Or the Primary and Secondary Objects of 
 Positive Law. 
 
 (a) Primary, 
 
 (b) Secondary, 
 
 The objects of positive law may be classified with reference either to the 
 spheres within which they seek their realization, or to the forms 
 ■ in which they are manifested, .... 
 1. The Soman division into public law and private law, 
 (1.) Public law within the State, called in England constitutional law, 
 (2.) Public law without the State, or the jus inter gentes, 
 (3.) Private law within the State, or municipal law, 
 (4.) Private law without the State, or private international law, 
 II. The second scheme divides positive law into national and interna- 
 tional ; and these again into public and private, . 
 1st, National public law ; and national private law, 
 2d, International public law ; and international private law, 
 III. Classification of the various branches of positive law, from the 
 domains which they severally embrace, 
 
 Chapter III.— Conclusion. 
 
 Of the reconciliation which the system of positive law, logically resulting 
 from the principles of jurisprudence as determined by nature, 
 tends to establish between the progressive and conservative 
 schools of European politics, ... 
 
 Index, 
 
 523 
 
 523 
 524 
 
 537 
 537 
 537 
 538 
 538 
 538 
 
 539 
 539 
 539 
 
 539 
 
 540 
 555 
 
THE INSTITUTES OF LAW. 
 
 INTEODUCTIOK 
 
 Preliminary Definitions and Divisions. 
 
 I. T\EFINITIONS and divisions are possible only after the 
 subject of them is known. They must consequently 
 be the goal, rather than the starting - point, of scientific in- 
 quiry. But, on the other hand, inasmuch as the sight of the 
 butt is necessary to the archer, we shall do well to place 
 before us at the outset, as clearly as we can, the object at 
 which we aim. This proceeding is the more necessary in 
 consequence of the want, in our own system of legal instruc- 
 tion, of any preliminary course corresponding to what, in 
 Continental Universities, is called Encyclopaedia, in which the 
 skeleton, so to speak, of the science upon which the student 
 is about to enter is exhibited to him. It has been said with 
 great truth that the philosophy of law, on the ground that it 
 stands in a general relation to each of the special branches of 
 the science of law, is itself an encyclopaedia, but that it is a 
 philosophical encyclopaedia. 1 Such an encyclopaedia I hope to 
 
 1 Michelet, NaturrecM, pp. 17 and 18. 
 A 
 
2 INTRODUCTION. 
 
 furnish in the sequel of this work; but it is a dogmatic 
 sketch alone which I can attempt at the outset. 
 
 With this limited aim, then, the branch of science with 
 the study of which we shall be here engaged, may be de- 
 scribed as having for its object the discovery of that law 
 which, by the nature of all rational creatures, and independ- 
 ently of their volition, determines their relations to each other 
 and to surrounding existences, in so far as this law is medi- 
 ately or immediately revealed to human reason and realizable 
 by human will, under the conditions of human existence in 
 time and space. The validity of the law of nature, it is true, 
 is not, or at any rate cannot be conceived by us to be, limited 
 to humanity, or to humanity under the conditions of time and 
 space. Culverwell accordingly defines it as " that law which 
 is intrinsical and essential to a rational creature ; " 1 and Hegel, 
 regarding it as the divine conception of Kosmos in human 
 relations, by which the limited or relative will of the creature 
 is harmonized with the unlimited or absolute will of the 
 Creator, speaks of it as " the reign of liberty realized." Seen 
 from this latter point of view, we might define it as the law 
 which determines the conditions of perfect human co-existence, 
 or, of progress towards the realization of such co-existence. 
 It is in this light that it specially concerns the jurist, as dis- 
 tinguished from the metaphysician and the moral philosopher ; 
 for it is when thus regarded that he begins to see in it the 
 permanent element of positive law. 
 
 The Kosmic character of existence, or, in other words, its 
 absolute rectitude, as we shall see hereafter, is an assumption 
 1 Light of Nature, p. 57. 
 
INTRODUCTION. 3 
 
 which is psychologically inevitable. Eelative will cannot 
 contend with absolute will, even ' in thought. In its origin, 
 law, like existence, is thus involuntary and inexplicable. It 
 is an objective phenomenon which consciousness presents to 
 us, not from without but from within : a conception which 
 is imposed on our cognitive faculties a priori: a postulate 
 necessitated by the fact that we are. Law thus comes out 
 of mystery, just as it goes out into mystery. The conscious- 
 ness which brings it within the sphere of finite vision is as 
 dark as the consciousness which carries it back into the 
 infinite; for the one marks its passage into, and the other 
 its passage out of, the conditions of time and space. Over 
 its coming and its going we have no more control than over 
 a ray of sunshine. But, even at the risk of misapprehension, 
 I must, for the present, refrain from pursuing the subject 
 further in this aspect; and in addressing myself to pro- 
 fessional students, and having practical rather than theoreti- 
 cal objects in view, I shall endeavour throughout to avoid all 
 forms, both of thought and expression, which may not fairly 
 be assumed to be familiar to cultivated persons generally in 
 this country. 
 
 In designating this subject the law of nature, it is obvious 
 that, whilst the term law is employed in the general sense 
 of Kosmical arrangement, we use the term nature in a more 
 restricted sense than that in which it is often identified with 
 created existence. The law of nature, in the jural sense, is 
 not the whole scheme of the universe, but the branch of that 
 scheme which has reference to human relations. It does 
 not deal with the inevitable relations in which man stands 
 
4 INTRODUCTION. 
 
 to the external world, whether animate or inanimate. The 
 laws of generation, of growth and decay, of digestion, assimila- 
 tion, respiration, and the like, lie beyond its sphere, just as 
 much as the laws of space and number, or the laws of thought. 
 These are laws which wholly shut out the element of human 
 volition. The natural laws by which human relations are 
 governed, on the other hand — the laws of ethics, politics, 
 and jurisprudence — are, in a limited sense, laws of freedom. 
 They are laws the violation of which is physically possible, 
 not only to the individual, but to the state, and even to the 
 community of nations. Whether they can be permanently 
 and ultimately violated even in this world, is a question 
 which belongs to philosophy and theology rather than to juris- 
 prudence. But for the immediate purposes of his science, the 
 jurist must accept the task of demonstrating the inevitable 
 character of these laws. He must show that, though natural 
 laws, in the sense which he attaches to them, may certainly 
 be broken, for a time at least — nay, though it be inconceiv- 
 able that imperfect beings should ever observe them perfectly 
 — they are essentially self-avenging. To use a happy Ger- 
 man distinction, which I fear is hardly translatable, they are 
 thus Soll-Gesetze, though not Muss-Gesetze 1 (' ought-laws, not 
 must-laws '). Their consequences are as inevitable as their 
 character is unchangeable ; it is their fulfilment or non-fulfil- 
 ment alone that is dependent on human volition. As natural 
 laws, it belongs to their conception that the rewards attached 
 to their fulfilment, and the punishments which attach to their 
 violation, depend as little on the wills of those who fulfil them 
 
 1 Krause's SecJits-Philosophie, p. 36. 
 
INTRODUCTION. 5 
 
 or violate them as the rising and the setting of the sun. It 
 is this character, as we shall presently see, which distinguishes 
 natural laws from mere human enactments, which may or may 
 not be in conformity with them, and which, consequently, may 
 or may not he permanently set at naught. 
 
 As illustrating the difficulty of defining natural law in the 
 jural sense, so as to keep it apart from theology on the one 
 hand and physiology on the other, I may mention the modes 
 in which law as a whole has been divided by two of the 
 greatest minds that ever were brought to bear on its elucida- 
 tion, — St Thomas Aquinas, and our own not less saintly 
 Hooker. The first, which was generally followed by the 
 theologians and schoolmen, was this : — 
 
 1. Eternal Law : that of the Divine and general govern- 
 ment of the universe. Of this law Culverwell has finely said, 
 that "it was in a manner incarnated in the law of nature." 1 
 
 2. Natural Law: 2 that of finite creatures endowed with 
 reason. 
 
 3. Human Law : that which has reference to human 
 relations. 
 
 4. Divine Law : the order of salvation specially provided 
 for man. 3 
 
 The second (Hooker's scheme) was this : — 
 
 1. Law" which God from the beginning set for Himself. 
 
 2. Law which natural agents observe. 
 
 3. Law which the angels obey. 
 
 1 Light of Natwre, p. 50. 
 
 * Lex naturalis nihil aliud est, quam participatio le^is seternfe iu rationali 
 creatura. 
 3 Summa Theologiai, Prima Secundas, Qucestio xci. 
 
6 INTRODUCTION. 
 
 4. Law -which directs man to the imitation of God. 1 
 Without entering on the manifest objections which might 
 be stated to each of these schemes, many of which were 
 obviated in the rich and varied discussions to which they gave 
 rise, we may repeat, in a word, that our conception of natural 
 law is — the law for the general government of the universe, 
 only in so far as it has reference to the. relations of men, or 
 is " incarnated " in human society. 
 
 II. Natural law, when treated as a science, is often called 
 the philosophy of law. 2 But, inasmuch as nature is a more 
 definite conception than philosophy, the former epithet is 
 preferable ; and for this reason, probably, recent writers seem 
 mostly to have reverted to it. I have adopted the terms 
 " Institutes of Law," and " Principles of Jurisprudence as 
 determined by Nature," in order to indicate the fundamental 
 relation in which the subject stands to all the departments 
 of positive law. 
 
 III. The science of the law of nature, or the philosophy 
 of law, professes to furnish us with the doctrines of natural 
 law in the abstract. The law of nature is thus the subject 
 with which this science is conversant ; but it is no more 
 identical with the science than the subject of any other 
 branch of study is identical with the study itself — than, 
 e.g., the laws of the vegetable or animal creation, with the 
 
 1 Ecclesiastical Polity, vi. p. 72. 
 
 2 See the list of works at the end of the first volume of Ahrens's Cours de Droit 
 Naturel, p. 325. Michelet says that it was called Naturrecht by the jurists, aud 
 Rechtsphilosophie by the later philosophers, p. 1. The names are now synony- 
 mous, and it is taught both in the faculties of philosophy and of law, both by 
 philosophers and jurists. 
 
INTRODUCTION. 7 
 
 sciences of botany, zoology, anatomy, or physiology. There 
 are laws of nature which govern the growth and decay of 
 plants and animals, whether we know and obey, or ignore 
 and violate them. And just in the same way there is a 
 law of nature which governs the human life of man, whether 
 we discover it and follow it, or blindly and ignorantly 
 set it at defiance. " It is," says Ahrens, " with moral order 
 as with physical order. The law of attraction existed and 
 governed the relations of natural existences before it was 
 discovered by Newton and determined by science." In like 
 manner Max Miiller tells us how long it was before the 
 Greeks arrived at a complete nomenclature for the parts of 
 speech. But there were parts of speech before they were dis- 
 covered by the Greeks, and, strange as it may seem to us, they 
 were known to Sanscrit literature. What is true of the laws 
 of life and of language, is not less obviously true of the laws 
 of thought, or of their applications. Logic may have been dis- 
 covered by Aristotle, but it was both used and abused in the 
 Garden of Eden. To suppose, then, that because positive laws 
 existed before the natural laws, of which they were imperfect, 
 local, and temporary realizations, had been scientifically evolved, 
 or systematically enunciated, positive law therefore preceded 
 natural law in point of time — as is done by those who identify 
 natural law with the laws which they imagine to have existed 
 in the imaginary state of nature — is just as great an absurdity 
 as to suppose that because houses were built up and tumbled 
 down before the law of attraction was discovered, they did 
 not stand or fall in accordance with that law ; or that, because 
 men spoke before they knew the parts of speech, they did not 
 
8 INTRODUCTION. 
 
 make use of nouns and verbs every time they gave -utterance 
 to articulate sounds. And as the law of nature existed before 
 i» was scientifically discovered, it existed equally before it was 
 divinely revealed. "It was long extant," says Culverwell, 
 " before Moses was born ; long before Aaron rung his golden 
 bells ; before there was a prophet or a judge in Israel." l 
 
 IV. The science of jurisprudence differs from the science 
 of natural law, and from the philosophy of law, in this 
 respect, that, in addition to the discovery of the doctrines of 
 natural law and their general and permanent action, it in- 
 cludes their local and temporal realization — i.e., positive law, 
 properly so called, 2 in all its branches. Jurisprudence thus 
 embraces legislation, whether the subjects with which it deals 
 be political, economical, or social, national or international, 
 
 1 Ut sup. p. 68. 
 
 5 I find that the expression " positive law," in the sense in which I here use it — 
 viz., of natural law realized in time and place — has occasioned confusion in the 
 minds of some of my readers, which, even at this early stage of our discussions, 
 it may be desirable to remove. The sense attached to positive law in England, I 
 am told, is "law as it is " — that is to say, law enacted by a recognized authority, 
 whether in conformity with, or in opposition to, natural law. Law which sets the 
 principles of human nature and the facts of society at defiance is, in this sense, 
 positive law just as much as law which recognizes them ; — sense and nonsense, if 
 formally enacted, stand on a footing of perfect equality. Now the modicum of 
 truth which this conception contains is sufficiently taken into account when we 
 recognize the necessary imperfection of all human enactments. It is quite true 
 that " law as it is " can never quite coincide with "law as it ought to be," or, in 
 other words, can never quite realize natural law in time and place, and conse- 
 quently, that if we were to adhere strictly to our definition, we could never have 
 any positive law at all. But this does not hinder the " law which is " from being 
 more or less positive, in proportion to the extent to which it approaches to, or 
 recedes from, its own ideal ; nor does it prevent this ideal from determining the 
 only sense in which positive law can be formally or scientifically understood. 
 The true equivalent for " law as it is " is thus not " positive law," but "enacted 
 law." which, without losing its character, may set both the laws and the facts of 
 nature at defiance. — Infra, p. 10. 
 
INTRODUCTION. 9 
 
 civil or ecclesiastical, public or private, general or particular, 
 as well as jurisdiction and execution ; whilst the sphere of 
 an academical Faculty of Law extends to the study of the 
 whole human relations, whether these relations be necessary 
 and permanent, or accidental and transitory. 
 
 V. Positive law may be regarded either as a science or as 
 an art. The science is the result of a process of analysis — 
 the art is that of a process of synthesis resting on the 
 previous analysis ; and inasmuch as the existence of the 
 synthesis without the analysis is impossible, there can be no 
 art of positive law without a science of positive law. 
 
 (A) The science of positive law has for its object the dis- 
 covery (Erkenntnis's) of the law of nature in special circum- 
 stances, and with reference to special relations. 
 
 (2?) The art of positive law has for its objects the recogni- 
 tion (Anerlcennung) of the law of nature by special enactments, 
 and its vindication in special circumstances and relations. 
 
 Law as an art assumes three functions : (a) Legislation, 
 (b) Jurisdiction, (c) Execution, which in the earlier stages of 
 its development are not sharply distinguished from each other. 
 
 Apart from their realization in positive laws, the rules of 
 natural law are merely hypothetical and contingent, depending 
 for their concrete forms on the answers which may be given by 
 observation and experience to questions of fact which they do 
 not profess to solve. Natural law thus forms the major premiss 
 of the syllogism of which the legislative enactment, or the 
 judicial sentence, is the conclusion ; or, to use a professional 
 illustration, it draws the issue to which positive law returns 
 the verdict. 
 
10 INTRODUCTION. 
 
 Every sound legislative enactment thus involves the previous 
 decision of a question of natural law ; and every sound judicial 
 sentence involves the acceptance of that decision. The three 
 moments of jurisprudence are thus — natural law, human enact- 
 ment, and (in case of controversy) judicial decision. 
 
 VI. In consequence of the imperfection which clings to 
 humanity, human enactments never attain to the full character 
 of positive laws. But they possess the character of positive 
 laws, more or less, in proportion to the extent to which they 
 are, or are not, interpretations and realizations of the law of 
 natura Enactments, in so far as they fail to realize the law of 
 nature, must be errors, and may be crimes. Even where there 
 - is no want of good intention on the part of the legislature, laws 
 formally enacted may fall short of the character of positive laws 
 from three causes : — 
 
 (a) Erom an erroneous conception of the law of nature to be 
 realized. 
 
 (&) From an erroneous appreciation of the special circum- 
 stances in which the law of nature is to be realized, and, as a 
 necessary consequence, of the provisions by which the law of 
 nature is realizable. 
 
 (c) Erom changes in the special circumstances of the com- 
 munity, rendering inoperative those provisions by which the 
 law of nature was formerly realized. 
 
 But, inasmuch as men are liable to err, not only in inter- 
 preting and realizing the law of nature anew, but in judging 
 of the manner in which it has already been interpreted and 
 realized, great caution ought to be exercised in condemning and 
 altering enacted laws. Moreover, as all human enactments 
 
INTRODUCTION. 1 1 
 
 must embody some element of error, it does not follow that an 
 existing law should be altered the moment that the fact of its 
 divergence from natural law, or even the direction in which it 
 diverges, has been discovered. In the latter case, the manner 
 in which it must ultimately be altered, or developed, will, in a 
 general way, be known; but the means of its amendment — i.e., 
 the special form which the new enactment ought to assume — 
 may still be undetermined. 
 
 VII. Judicial sentences may honestly fail to realize the law 
 of nature in the individual case, from three causes : — 
 
 (a) From failure on the part of the judge to discover, or 
 to understand, the enactment in which the law of nature has 
 been more or less perfectly embodied in the wider sphere of 
 legislation. 
 
 (b) From failure on the part of the litigant, or his represen- 
 tative, to present the facts of the individual case, or to present 
 them intelligibly, to the judge. 
 
 (c) From, failure on the part of the judge to apprehend the 
 facts of the individual case when intelligibly presented to him. 
 
 VIII. The law of nature may further be negatively denned 
 by distinguishing it from the following subjects with which it 
 has often been confounded : — 
 
 (<z) From a primitive code, or body, of consuetudinary law, 
 which is supposed to have prevailed in an imaginary " state of 
 nature." Such a code, had it ever existed, would, like all other 
 codes, have been a body of positive law; and, as the work of 
 an age destitute of experience, and of minds destitute of cul- 
 ture, it must have been a very imperfect one. 
 
 (5) From a " primitive contract " by which men are supposed 
 
12 INTRODUCTION. 
 
 to have agreed to observe the principles of justice in their deal- 
 ings with each other, — a contract into which they could not 
 have entered until these principles were known to them, and 
 the assumption of which consequently involves a petitio 
 principii: 
 
 (c) From a preliminary department special to the law of 
 nations, to which natural law stands, as we shall see, scien- _ 
 tifically in the same relation as to all the other departments 
 of positive law. 
 
 (d) From those rules of the law of nations which rest on 
 consuetude, and not on treaty, or which are enforced by 
 opinion or by war, and not by judicial authority — the manner 
 of their generation, or of their enforcement, making no differ- 
 ence as to the positive character of these rules. 
 
 (e) From the jus naturale of the Eomans, which extended 
 to the lower animals, and included the laws of their physical 
 generation and life 1 — thus embracing, or at any rate mixing 
 itself up with, another branch of natural law, in the wide 
 sense in which natural law is identical with the general 
 scheme of existence. 
 
 (/) From the jus gentium of the Eomans, which was a 
 body of equitable rules, possessing, in a general sense, the 
 character of positive law, and intended to regulate the rela- 
 tions between those who were and those who were not 
 Boman citizens. Gaius's conception of the jus gentium, how- 
 ever, as quod naturalis ratio inter omnes homines constitute? 
 
 1 Quod natura omnia animalia docuit, nam jus istud non humani generis pro- 
 priuin est, sed omnium animalium quae in caelo, quae in terra, quae in mari nas- 
 cuntur, avium quoque commune est. — Dig. 1. 1. 1. 
 
 2 Dig. 1. 1. (dejust. etjure), 9. 
 
INTRODUCTION. 1 3 
 
 comes very close on the modern conception of natural law ; 
 and a still closer approximation is to be found in the sense 
 in which Cicero and the Stoics frequently speak of the jus 
 naturale, and in which it occasionally appears in the Digest — 
 e.g., " Id quod senvper cequum et bonum est jus dicitur, ut est jus 
 naturale." l 
 
 (g) From equity, in the English, and to a certain extent in 
 the Eoman sense of a hody of positive rules supplementary to 
 the rules of the common law ; and, indeed, from equity in any 
 other sense, if such there he, in which it is not simply an 
 equivalent for justice. 
 
 Even when the Praetorian law is spoken of as naturalis 
 cequitas {Praztor naturalem cequitatem sequi dicitur) and the 
 like, it is meant that the Prsetor, in the absence of any 
 positive law, finds out what the positive law of the case 
 really is — i.e., discovers the decision which, in the concrete 
 instance, 2 is in accordance with natural law. 
 
 IX. The most noteworthy divisions of the science of juris- 
 prudence are the following : 3 — 
 
 i. That of Ulpian, into — 
 
 (a) Jus naturale : Laws of Animal being ; 
 (&) Jus Gentium: General Laws of Human wellbeing; 
 (c) Jus Civile : Eoman Municipal Law ; 
 the two latter being subordinated to the former. 
 
 The following objections to this scheme present them- 
 selves: — 
 
 1 Dig. 1. 1. 11. Troplong, de V Influence du Ghristicmisme sur le Droit Civil 
 p. 53. 
 
 2 Dig. ut sup. ; Gul. Grotii Encheir., p. 14. 
 
 3 Savigny, System des Heutigen Bom. EecMs, Beylage T. vol. i. p. 413. 
 
14 INTRODUCTION. 
 
 1st, Jus naturalc being equivalent to the laws, not of human 
 wellbeing, but of animal being, includes matter that belongs 
 to physiology and not to jurisprudence. It consequently 
 is not exhausted by its subordinate members, the jus gen- 
 tium and the jus civile, which refer exclusively to human 
 wellbeing. 
 
 2d, The meaning of the jus gentium is indefinite, wavering 
 between that of the jus naturale in the modern sense, and the 
 jus inter gentes or international law — e.g., the law adminis- 
 tered by the Praetor Peregrinus, out of which many of the rules 
 of private international law have arisen. 
 
 dd, No other provision is made for the jus inter gentes. 
 Cosmopolitan conceptions were familiar to the Stoics, and are 
 traceable to Socrates, 1 but from the relation in which the 
 Eomans stood to the rest of the world, they did not recognize 
 international law as a separate branch of jurisprudence. From 
 the conflicts of jurisprudence, however, that ultimately arose 
 from differences in the various municipal systems of the con- 
 quered nations, which the Eomans did not wholly abolish, 
 they were led to work out many important questions of 
 private international law. 
 
 ii. That of Gaius. 
 
 (a) Jus Gentium : General Laws of Human wellbeing, or 
 Modern Natural Law. 
 
 (b) Jus Civile : Eoman Municipal Law. 
 
 Savigny holds this division not only to be the correct one, 
 but the one that was generally adopted by the Eoman jurists. 
 
 1 Zeller, Socrates and the Socratic Schools, p. 139 ; and Stoics, Epicureans, and 
 Sceptics, p. 308. 
 
INTRODUCTION. 1 5 
 
 It is open, I think, notwithstanding, to the following ob- 
 jections : — 
 
 1st, The -jus gentium and naturalis ratio are sometimes used 
 by Gaius as equivalent terms (Digest 1. 1. 9), and the concep- 
 tion which he attached to these terms certainly approaches 
 very closely to the modern idea of natural law, but it is 
 scarcely equivalent to it. It varies between the conception 
 of natural law, as a sort of equity of which the Praetorian 
 rather than the civil law was the viva vox, and that of the 
 jus inter gentes. 
 
 2ol, The jus civile, supposing it to include the municipal law 
 of other nations, as well as that of Eome in all its branches, is 
 not equivalent to positive law, because it does not include the 
 jus inter gentes. It consequently does not exhaust the science 
 of jurisprudence on its positive side. It would have done so, 
 however, had the fiction of a universal empire, which the 
 Eomans cherished, become a reality ; because there could in 
 that case have been no jus inter gentes. This last objection 
 consequently has no logical validity against the Eoman jurists. 
 
 3d, The Koman term which most nearly approaches to the 
 modern conception of positive law in general, is lex. Cicero 1 
 opposes natura to lex, and explains natura by the term jus 
 gentium, and leges as equivalent to jus civile. Elsewhere he 
 divides jus into natura and lex. Elsewhere, again, he uses 
 it in a sense which would identify it with the modern 'jus 
 naturale.' Lex est ratio summa, insita in natura, qucejubet ea 
 qum facienda sunt, prohibetque contraria (De legg. i..6). 
 
 In general, however, the word lex was used in a narrower 
 1 De off. iii. 5. 
 
1 6 INTRODUCTION. 
 
 and wholly technical sense. Lex est quod Populus Bomanus 
 senatorio magistratu interrogante, veluti consule, constituebat 
 (Just. 1, 2, 4); or Generate jussum populi aut plebis, rogante 
 magistratu (Capito; Gell. x. 20). This Cicero speaks of as 
 the popular use of the word (De legg. i. 6). 
 
 J%is civile, again, is no doubt used in a wider or a narrower 
 sense, according as it does or does not include the jus ponti- 
 ficium, or is or is not opposed to the jus prcetorium or honor- 
 arium. But it is never intended to include in it the jus gen- 
 tium in the Eoman, and still less in the modern sense, and 
 consequently it never corresponds to positive law, as a whole. 
 
 iii. Modem Division. 
 
 (a) Natural Law, or Permanent and Universal Laws of the 
 human relations. 
 
 (b) Positive Law, or Variable and Particular Laws of the 
 human relations. 
 
 Positive law being further subdivided into — 
 
 (c) Municipal Law : the jus civile, or jus gentis, public 
 and private. 1 
 
 (d) International Law : the jus inter gentes, public and 
 private. 
 
 Vindication of the Modern Division. 
 
 The modern division proceeds on the hypothesis that the 
 question, to what extent the limits of positive law shall be 
 made, for the time and place under consideration, co-extensive 
 with those of natural law — that is to say, to what extent 
 
 1 The division of law into public and private was known both to the Greeks 
 (Demosth. in Timoerat. 760, § 192), and to the Romans (Instit. 1. 1. 4). 
 
INTRODUCTION. 17 
 
 natural law shall be enforced, or left to vindicate itself indi- 
 rectly — is a question of what is vulgarly called expediency ; 
 and this hypothesis, as we shall afterwards see, is warranted 
 by the results of the science of jurisprudence. No portion of 
 the sphere of natural law 1 is theoretically, or ex hypothesi, 
 excluded from the sphere of positive law. Its realization may 
 be impossible, or it may be unnecessary and therefore inex- 
 pedient, but it is never illegitimate ; — and municipal and 
 international law, which form the sole constituent elements 
 of positive law, are thus adequate to exhaust the sphere of 
 natural law in the modern, though not in the ancient sense. 
 
 1 As to the relation between natural law and ethics, v. infra, book ii. chap. 1. 
 
BOOK I. 
 
 OF THE SOUKCES OF NATUKAL LAW 
 
CHAPTER I. 
 
 OF THE SOUECES OF NATURAL LAW. 
 
 rTIHE word source, when applied to the science of jurispru- 
 dence, is frequently used in a double sense. On the one 
 hand it is taken to indicate the fountain froni which natural 
 law and all subsequent laws derive their authority ; on the 
 other ■ hand it is used to designate the means by which we 
 become acquainted with the precepts of law. It is from this 
 cause that doctrines which are really complementary are so 
 often regarded as exclusive of each other. With this dis- 
 tinction, then, in view, — 
 
 The sources of natural law — which, taken in conjunction 
 with the local and temporary relations in which man stands 
 to surrounding existences, are likewise the sources of positive 
 law — may be divided into Primary and Secondary. 
 
 1st, The Primary Source, or Source of Law itself. — God, 1 
 the Creator, the One first Cause of all things, is the one 
 
 1 Some of my critics have objected that by making God the Source, of natu- 
 ral law, I give in my adhesion, at the outset, to the theological school. They 
 might just as well have said that a botanist, by making God the Creator of 
 plants, asserted that the science of botany was directly revealed. So far, surely, 
 we may say with Chrysostom, " 'i-vav 5i dirw i^v <j>i<riv, Qebv \eyui." 
 
22 OF THE SOURCES OF NATURAL LAW. 
 
 Primary Source of natural law — the inevitable postulate of 
 jurisprudence, as of all other sciences. 
 
 I take it for granted that the necessary character of our 
 recognition of a single cause, as the starting-point of being, 
 has already been brought under your * notice in the classes 
 of metaphysics and moral philosophy, 2 and that I should be 
 wasting your time were I to insist on such propositions as 
 that, by the constitution of our minds, we can neither think 
 of the series of effects and causes as interminable, or as 
 terminable. We must be contented to begin with a postulate 
 • — that is to say, with an assumption which we do not seek to 
 explain ; and the narrowest basis of assumption is philosophi- 
 cally the best. To postulate two causes would be to stop 
 short of the last step which reason necessitates. Nor shall I 
 detain you with the testimony from the history of opinion 
 which might readily be produced in support of this proposi- 
 tion ; for, as the laws of thought admit of no exceptions, if its 
 acceptance be a necessity to any mind, it must be a necessity 
 to every mind. As I shall explain to you more fully here- 
 after, when we consider the canons which limit and regulate 
 the application of historical evidence, it is only when the 
 necessary character of a truth is equivocal that an a posteriori 
 demonstration of its acceptance by mankind becomes important. 
 
 The study of the attributes of Deity belongs specially to 
 the science of theology ; and as the jurist is beholden to the 
 metaphysician for the primary source of his science, so there 
 
 1 Here, and occasionally throughout, I have permitted the style of direct ad- 
 dress to my students to remain unchanged, as I believe it will occasion no incon- 
 venience to the general reader. 
 
 a Hamilton, Metaph. vol. ii. p. 353 tt seq. Krause, Naturrecht, p. 14. 
 
OF THE SOURCES OF NATURAL LAW. 23 
 
 are certain characteristics of that source which he accepts at 
 the hands of the theologian. The reality of the attributes of 
 omnipotence and perfection is guaranteed by evidence as 
 irrefragable as that which assures us of the existence of the 
 Creator, for — 
 
 (a) Creative power and omnipotence are equivalent terms. 
 We cannot think of a power that is limited as creative, for in 
 that case what do we make of the power that limits it ? It, 
 of course, becomes the creative power, and we only go a step 
 further back. From this difficulty even the hypothesis of 
 dualism does not save us ; for that is the denial of any 
 original starting-point. Dualists, consequently, as we shall 
 see hereafter,, either prove untrue to their own system by 
 giving supremacy to one or other of two different principles, 
 or take refuge, like the rest of us, in a single postulate. And 
 if this be true of dualism, it is still more true of polytheism, 
 which is simply a surrender of the problem of creation 
 altogether. "Whatever may be said for the historical priority 
 of polytheism, it is a creed which must vanish with the first 
 streaks of the dawn of speculation even in the savage mind. 
 
 (6) The creature, as such, can have no ultimate measure of 
 perfection but the Creator. In acknowledging His existence, 
 we consequently accept His character, and own allegiance to 
 His law. 
 
 These Divine attributes — omnipotence and perfection — the 
 one of which subsumes relative under absolute freedom, and 
 the other of which subsumes relative under absolute reason — 
 are inseparable from the conception of a primary source of 
 law ; for — 
 
24 OF THE SOURCES OF NATURAL LAW. 
 
 (a) "Force," as lias been well said, "being the root idea 
 of law," x if God were not potent He could not be a source 
 of law at all. 2 
 
 (b) If He were not omnipotent, nature might have another, 
 anterior, and superior lawgiver. And finally, — 
 
 (c) If He were not perfect, the laws which nature has 
 received from Him would not carry their own warrant with 
 them, and there might be better and wiser laws to which it 
 would be our duty to conform. The attribute of omnipotence, 
 as we shall find hereafter, is our warrant for the assumption 
 that in the last analysis, ultimately, absolutely, might is right, 
 and the first stone in the edifice of the de facto system of 
 jurisprudence. The attribute of perfection is, in like manner, 
 our warrant for the assumption that right is might, and the 
 first stone in the edifice of the de jure system of jurisprudence. 
 And these two systems, so often opposed by the narrowness of 
 human intelligence, are just as inseparable as power and good- 
 ness in our conception of God. Take away absolute power — 
 
 1 Reign of Law, by the Duke of Argyll, p. 70. 
 
 3 " To set up laws as self-acting," said Dr Carpenter in his presidential address 
 to the British Association (Aug. 14, 1872), "and as either excluding or render- 
 ing unnecessary the power which alone can give them effect, appears to me as 
 arrogant as it is imphilosophical. To speak of any law as ' regulating ' or 
 ' governing ' phenomena, is only permissible on the assumption that the law is 
 the inodus operandi of a governing power. I was once in a great city which 
 for two days was in the hands of a lawless mob. Magisterial authority was sus- 
 pended by timidity and doubt ; the force at its command was paralysed by want 
 of resolute direction. The ' laws ' were on the statute-book, but there was no 
 power to enforce them. And so the powers of evil did their terrible work, and 
 fire and rapine continued to destroy life and property without check, until new 
 power came in, when the reign of law was restored." The short and terrible 
 episode of the Commune to which Dr Carpenter here refers, was a case in which 
 the powers of kosmos and chaos, good and evil, were fairly pitted against each 
 other, and in which the vis major proved to be the former. 
 
OF THE SOURCES OP NATURAL LAW. 25 
 
 omnipotence — and you convert the Creator into a creature, and 
 frame a system of jurisprudence which you have no means 
 of realizing — a mere ethical dream. Take away goodness — 
 absolute perfection — and your God, for anything you can assert 
 to the contrary, may become a devil, your ethical dream 
 vanishes, and you have nothing to realize. This appears to 
 have been the sad outcome of Mr Mill's philosophy. 
 
 For these reasons it is obvious that a science of natural 
 law can no more be founded on an hypothesis of polytheism, 
 dualism, or pessimism, than on the hypothesis of atheism or 
 nihilism. 
 
 Of the extent to which a natural law may be realizable 
 under a polytheistic scheme, which, whilst ascribing certain 
 divine qualities to many separate beings, confines creative 
 power to a single divinity, I shall have something to say 
 hereafter. But it may be proper that I should at once explain 
 that under the epithet " dualism " I include any religious sys- 
 tem, whether professing to be Christian or not, which divides 
 power, ultimately, and as a necessary consequence, equally 
 between a good and an evil principle ; and that I characterise 
 as "pessimism" any system which makes its supreme God 
 guilty of what the nature which He has implanted in us 
 characterises as sin, — as, for example, by imputing to Him 
 the condemnation of unbaptized infants to everlasting tor- 
 ments, the creation of a race of beings originally sinful, the 
 predestination of beings whom He made in His own image 
 to everlasting and objectless damnation, the creation of 
 a world where evil exists which is not the mysterious 
 minister of good, or any other transgression of His own 
 
26 OP THE SOURCES OF NATURAL LAW. 
 
 laws, as these laws are revealed to us through nature. 
 The existence of such a being appears to me to involve 
 contradictions which render it unthinkable. I extremely 
 regret that, by an expression of opinion involving what I 
 believe is called " Universalism," I should separate myself 
 from many theologians, both dead and living, whom I love 
 and reverence, — nay, that I should run counter to what, if 
 orthodoxy were to be determined by a show of hands, might 
 still perhaps claim to be the " teaching of the Church." But 
 holding as I do that our last appeal is to our own reason, as 
 at once the representative and the interpreter of the divine 
 element within each of us, I feel that no amount of authority 
 could commend to me a doctrine which my reason rejects as 
 inconsistent with the goodness, the power, and the wisdom 
 which she teaches me to attribute to the Source of my being. 1 
 As regards logical consistency, the pessimistic has advantages 
 over the dualistic hypothesis. On the hypothesis of dualism 
 a system of jurisprudence which entirely reversed our present 
 conceptions of right and wrong would be equally legitimate. 
 Whilst I am teaching here in the name of Ormuzd, a colleague 
 in the next room might be teaching with equal authority 
 in the name of Ahriman. On the hypothesis of pessimism, 
 on the contrary, my colleague would be entitled to turn me 
 out. Had Mr Mill given supremacy to the devil, he would 
 have found in his omnipotence a " Source " on which he could 
 logically build. If he could not bring Might and Eight 
 together, he might have brought Might and Wrong together, 
 
 1 The opposite view is stated, with great learning and acuteness, in Universal- 
 ism and Eternal Punishment, by the Rev. John Gibson Cazenove, M.A. 
 
OF THE SOURCES OE NATURAL LAW. 27 
 
 and thus have found what his friend Mr Bentham would have 
 called a "sanction" for evil. But denying as he does the 
 supremacy of either principle, he fails to set foot on the " rock 
 of ages " altogether, and builds his house on the sand. He 
 stops short, indeed, at mere human opinion, or rather at his 
 own opinion, and declares that to be right which he conceives 
 to be useful to him, and to those whose tastes correspond with 
 his, and its contrary to be wrong. 
 
 To pantheism the jurist stands in a somewhat different 
 relation, because it is a creed which assumes various forms, 
 and has received many explanations, some of them probably 
 not inconsistent with the belief in the existence of a single 
 beneficent power, the study of which power, in its manifes- 
 tations, might reveal an absolute law of human life and pro- 
 gress. 1 But whenever pantheism is carried beyond an assertion 
 of the universal presence of the Divine, and consequent pre- 
 valence of law, — an assertion which is not inconsistent with 
 the Christian conception either of God or man, — the follow- 
 ing objections seem fatal to it as an hypothesis on which to 
 base jurisprudence. 
 
 1st, The identification of the universe with God — of Be- 
 coming with Being — leads to the same result as the identifica- 
 tion of God with the universe, — of Being with Becoming, — 
 viz., an alternative between atheism, i.e., the denial of Creative 
 Power altogether, and a postulate of separate creative power, 
 the character of which may be good or evil. So far pantheism 
 is on all-fours with materialism — it is either incomplete or 
 illogical. It is incomplete if it leaves nature still in want of 
 1 This is probably what Grotius meant — Prolog. § xi. 
 
28 OF THE SOUJEtCES OF NATURAL LAW. 
 
 a postulate, still unaccounted for, and its character undeter- 
 mined. It is illogical if it assumes the beneficent Creative 
 Power independent of nature, which it professes to repudiate. 
 Materialism, thus arrayed in borrowed feathers, is what is 
 commonly meant by pantheism, — in this country at all events, 
 and in France. 
 
 2d, The hypothesis of a. self-developing -God is an anthro- 
 pomorphic conception which implies imperfection. The qual- 
 ities or attributes of such a God could never furnish a start- 
 ing-point to existence, or supply an absolute standard of right 
 and wrong. 1 
 
 3d, Pantheism, by identifying the soul of man with the 
 souL of the universe, not only sets ultimate limits to human 
 freedom — as every scheme which recognises Divine Omnipo- 
 tence must do — but even within these limits it renders 
 freedom merely apparent. 2 By annihilating personal respon- 
 sibility in man, it thus takes away from the human law- 
 giver all right to enforce compliance with the conditions of 
 
 1 Ahrens, i. p. 75. 
 
 2 To what extent Hegelianisin may or may not be open to these or any other 
 objections against pantheism, is a question on which I offer no opinion. Whether 
 or not Hegel laid an adequate basis for freedom is a point on which much differ; 
 ence of opinion prevails. That he intended to do so, on the other hand, is a fact 
 which cannot, in common fairness, be disputed. The first three sections of 
 Bunsen's God in Sistory contain what I believe to be a correct statement of 
 the relation in which the later German schools stand to pantheism ; and I think 
 that, as regards much of the criticism of them in this country, Bunsen has hit the 
 nail on the head, when, in speaking of the Chinese, he says afterwards (p. 248), 
 "It is by no means needful to extort from the Chinese a confession of faith in 
 ' a personal God,' in order to free them from the reproach of holding a completely 
 materialistic view. For those who talk of a personal God often use expressions 
 concerning Him which betray a very low and unworthy religious consciousness. 
 But a conscimis God there must be, and this consciousness must correspond to our 
 
OF THE SOUKCES OF NATURAL LAW. 29 
 
 wellbeing and progress, even supposing these conditions to 
 be discoverable. 
 
 : By thus reverting to fatalism, and rendering results in- 
 dependent of voluntary action, pantheism takes away all 
 motive either for complying or enforcing compliance with 
 these conditions. In this respect a curious meeting of prac- 
 tical consequences is exhibited between the philosophical 
 system which denies the personality of God, and the re- 
 ligious system which recognizes monotheism in its extremest 
 form. Were any European nation really to adopt pantheism 
 as its . creed, in the sense in which pantheism identifies 
 itself with materialism, it would probably suffer from the 
 famines and pestilences which so often overtake Mahometan 1 
 populations. 2 
 
 4th, By identifying the creature with the Creator, pan- 
 theism annihilates the conception not only of responsibil- 
 
 consciousness of Him." The same thought is more fully elaborated in other pas- 
 sages of. this great work — e.g., vol. ii. pp. 317-346. The correct view of the matter 
 probably is, that God is not a person, but the person — personality itself ; where- 
 as man is a person in virtue of his limited realization of personality. It is to 
 personality when seen from the side of its limitations that we give the name of 
 individuality. As regards human freedom, again, if all that German speculation 
 has done is to distinguish it from mere lawless caprice, and to define it as con- 
 sisting in an identification of the limited personal with the unlimited universal 
 will, in what does this differ from the common Christian conception of freedom 
 in which we have all been brought up? Do we not say that the "service" of 
 God is " perfect freedom," and are we not taught to pray that our will may be 
 blended with His ? Had not even the heathen world come to recognize the fact 
 that Deo parere libertas est! Zeller's Stoics, Epicureans, and Sceptics, pp. 169, 
 315, notes. 
 
 1 In the spelling of this word, having no opinion of my own, I have followed 
 Sir "William Muir. 
 
 2 That Germany is not practically pantheistic, whatever she may be theo- 
 retically, is demonstrated by her recent history ; for no country in our time, or 
 probably any other time, ever trusted so little to Fate. 
 
30 OF THE SOURCES OF NATURAL LAW. 
 
 ity, but of separate existence in the creature. When unity 
 is asserted in this exclusive sense, all law of relations dis- 
 appears ; for if all be God there are no creatures, and con- 
 sequently there can be no relations between them. Thus, 
 whether pantheism be true or not ultimately and absolutely, 
 it can never form the basis for a science of jurisprudence. A 
 human science must be contented to accept the phenomenal 
 as the real, and the separate character of our own existence 
 is a phenomenon which we at any rate cannot question. On 
 the other hand, however, this separation between Creator and 
 creature differs essentially from the separation between crea- 
 ture and creature. Even creatures, it is true, are not separ- 
 ated in the sense of being entirely independent of each 
 other; but their mutual relations resemble that of branch 
 to branch, whereas they are all related to the Creator as 
 branch to root. The root continues to send its influences — 
 in this connection, its will — through the whole of them, and 
 it is this continued relation to and identification with the 
 Divine which renders a direct revelation of Divine will by con- 
 sciousness conceivable. In revealing the Divine will, human 
 consciousness reveals its own ultimate will, 1 and is thus 
 within its legitimate sphere. The objection to direct internal 
 revelation, that consciousness can reveal nothing beyond its 
 own phenomena, thus falls to the ground, for the Divine will 
 is seen to be a phenomenon of consciousness, both in the 
 individual and in the race. It does not follow, however, that 
 it is not a phenomenon, the reality and the character of which 
 the ego will do well to test by observation of the non-ego, — and 
 1 Infra, p. 60, note. 
 
OF THE SOURCES OF NATURAL LAW. 31 
 
 hence, as we shall see hereafter, the importance which attaches 
 to the historical method. 
 
 From these observations it will be apparent that, on the 
 penalty of relinquishing an absolute basis for his science 
 altogether, the jurist must be a believer in the absolute 
 supremacy and goodness of one personal, that is to say, con- 
 scious, God; and it is a historical fact of great significance, 
 that this creed has actually been held by every jurist whose 
 system rises above mere empiricism, not only in Christian, 
 but in heathen times. To the extent, then, of vindicating 
 this simple creed, the science of jurisprudence, in laying its 
 own foundations, falls together with the sciences of theology, 
 ethics, and psychology. 
 
 As regards the further relation of jurisprudence to these 
 sciences, — absolutely there is, of course, no philosophical 
 question which is indifferent to the jurist ; and hence the 
 necessity of that general scientific training which precedes 
 his professional studies. But on the principle of the divi- 
 sion of labour, which applies to scientific research as to 
 every other department of activity, he will do well to decline 
 all discussions which bear on his science only in the wide 
 sense in which it was regarded by the Jesuits as a branch 
 of theology, 1 and in which some Protestant writers have 
 identified it with ethics. 
 
 The question, for example, whether the law of nature, or 
 
 the moral law, originated in an act of God's free will, or 
 
 whether it existed from all eternity and continues* to exist 
 
 independently of His will, — whether it be a law of God or a 
 
 1 E.g. , V>y Suarez of Grenada, in his great work He Leqibus. 
 
32 OF THE SOURCES OF NATURAL LAW. 
 
 law to God, — much as it has been discussed both by jurists 
 and moralists, 1 may be dismissed, not only as insoluble, 
 otherwise than by the identification of God and Law, but 
 as irrelevant, because the science of jurisprudence will rest 
 with equal security on either of the two alternatives which 
 it offers. All that is demanded for the foundation of a human 
 science is a starting-point which transcends humanity. 
 
 For similar reasons we may well content ourselves with 
 humbly recognizing the hitherto impenetrable mystery which 
 covers the origin of evil. As regards the nature of evil, how- 
 ever, the case is different ; for if a belief in the absolute charac- 
 ter of good be indispensable to the attainment of a basis for 
 our science, this belief will scarcely be gained unless our study 
 of nature should enable us to assign a relative character to 
 evil. To make evil absolute, and sin, which God hates, eter- 
 nal, is to limit His power, and to put Him very nearly on a 
 footing of equality with the devil. If not altogether dualism, 
 it is certainly Manicheism. On this point the lawyer's creed 
 must be that of Plato and St Augustine, 2 — the creed which 
 had been revealed to Job, 3 which Heraclitus had divined, 4 and 
 which, with Bunsen, 5 I believe to be the instinctive creed of 
 mankind. 
 
 1 Leibnitz has stated the argument for the independence of law with great 
 force, but the solution at which Suarez arrives, lex-deus ipse, seems to me the true 
 one. See Trendelenburg's Kleine Schriften, and Historisehe Beitrage zur Philo- 
 sophie, where the fullest information regarding Leibnitz's incidental activity as a 
 jurist will be found. 
 
 On the respective views of Cudworth and Descartes, v. Tulloch's national 
 Theology, vol. ii. p. 289. 
 
 2 Emile Saisset's introduction to his translation of the Civilas Dei, p. xxxi. 
 
 3 Job i- 6-12. 4 Schwegler's Hist, of PHI. p. 22. 
 
 6 Ut sup. i. 23. Bunsen has brought out the important fact that the original 
 
OF THE SOUKCES OF NATURAL LAW. 33 
 
 The necessity of this opinion, for the purposes of our science, 
 has been strongly felt by the latest school of scientific jurists 
 in Germany, 1 those who agree with Hegel in scarcely anything 
 else accepting his dictum that evil must be regarded as " a 
 negative element." 2 
 
 Without dwelling further, then, on subjects which belong to 
 the sphere of theology, permit me, in conclusion, to indi- 
 cate one very important practical effect which the recognition 
 of the divine origin of jurisprudence has exercised on the 
 organization of society. 
 
 The place everywhere assigned to the lawyer lies between 
 that of the priest and the secular layman, — in general consider- 
 ably nearer to the former than the latter. 
 
 In the East, in theocratic countries, and amongst the Shemitic 
 races more especially, the offices of the lawyer and the priest 
 are combined in the same individual. The laws of Moses and 
 of Mahomet, and in a lesser degree those of Manu, and even 
 of Confucius, are religious as well as legal systems. In those 
 of Zoroaster the former is the prevailing character, though both 
 are combined. Scribes, Pundits, Muftis, Ulemas, Mollahs, 
 Kadis, all belong to the sacerdotal class. Nor do the races 
 which trust to indirect, differ much from those which lay claim 
 to direct inspiration in this respect. The classical nations spoke 
 of us as " Priests of Justice." You remember the magnificent 
 passage. from Ulpian with which the Digest opens; in which, 
 after deriving jus from justitia, he exclaims : " Cujus merito quis 
 
 Hebrew conception of Satan (Azazel) was that not of the opponent and rival, but 
 of the servant of God — God's Retributive Justice. God in History, vol. i. p. 102. 
 
 1 Krause, pp. 216-220. Ahrens, pp. 128, H7, 170, 172, &c. 
 
 2 Phil, of History, Bohn's trans., p. 16. 
 
34 OF THE SOURCES OF NATURAL LAW. 
 
 nos sacerdotes appellet. Justitiam namque colimus : et boni et 
 tequi notitiam profitemur : sequum ab iniquo separantes : licitum 
 ab illieito discernentes : bonos non solum metu pcenarum, 
 verum etiam prsemiorum quoque exhortatione efficere cupientes: 
 veram, nisi fallor, philosophiam, non simulatam affectantes.'' 
 In Christian times the separation between the priest and the 
 jurist dates from the period when the universal priesthood of 
 Christians was acknowledged, and it has been fully accepted 
 only in those countries in which that recognition has taken 
 place. In the middle ages the canonists, and not unfrequently 
 the civilians, were priests ; and in Eome, so far as the papal 
 authority extends, the same arrangement prevails at the present 
 hour. The Lord Chancellor of England, till the eve of the 
 ' Eeformation, was invariably an ecclesiastic, and there are 
 instances of the Seals having been held by bishops down to 
 so late a period as 1625. Even now many of the functions 
 of the Chancellor are connected with the Church, and it is 
 only yesterday that its ecclesiastical character was laid aside 
 by an important branch of the legal profession in England. 
 The judicial character of the House of Lords still (1880) 
 exists with reference to Scotland, and bishops may sit in 
 Scotch Appeals. On the Scotch Bench, as originally consti- 
 tuted, one - half of the judges, besides the president, were 
 Churchmen, and Churchmen sat upon it even after the Eeforma- 
 tion. In the academical hierarchy of all European countries, 
 the Legal ranks next to the Theological Faculty, and by some 
 Universities it has been regarded as dealing with the same 
 subjects. 1 As civilization advances, and social arrangements be- 
 1 Suarez, Be Legibus, lib. iii. 
 
OF THE SOURCES OP NATURAL LAW. 35 
 
 come more complicated, a division of labour becomes inevitable, 
 by which the judicial is separated from the sacerdotal office ; 
 but their original connection ought never to be forgotten by 
 the lawyer who would duly appreciate the dignified and sacred 
 character of the profession which it is his privilege to exercise. 
 
 II. The secondary sources or channels of the Eevelation of 
 Natural Law are of two kinds, — Direct and Indirect. 
 
 1st, Direct revelation. 
 
 (a) Miraculous revelation to man. — All direct revelation 
 partakes of a supernatural character ; but its miraculous 
 character is most marked when it assumes the shape of an 
 external communication from God to man — in other' words, 
 when God, as what we, by analogy, call a Person, manifests 
 himself to man, and makes him acquainted with His will. 
 Of revelation, in this sense, the only instances admitted in 
 Christian countries are those narrated in the Bible. Whether 
 these interpositions are to be regarded as violations or suspen- 
 sions of natural law, or as acts in accordance with higher 
 natural laws than are known to man or traceable by his 
 present faculties, is one of the many speculative questions 
 which the jurist, as such, is not called upon to discuss. 
 
 (b) Miraculous revelation through man. — When God makes 
 choice of an individual man as a passive instrument for the 
 conveyance of His will to mankind — though that will be not 
 conveyed to him by an external communication — the revela- 
 tion still possesses not only a supernatural but a miraculous 
 character. The revelation of which the prophets and the 
 apostles were the organs was of this kind, in all cases in which 
 they do, not profess to report the very words that were spoken 
 
36 OP THE SOURCES OF NATURAL LAW. 
 
 to them by God. It is to this kind of revelation also that 
 Mahomet, for the most part, lays claim in the Koran. 
 
 (c) Special revelation through man. — This occurs when God, 
 by the ordinary influences of His grace, makes His law known 
 to the individual mind otherwise than through its conscious 
 processes. 
 
 We have here still, apparently, the immediate operation of 
 the primary, -without the intervention of a secondary cause, 
 which is said, on the high authority of St Thomas Aquinas, as 
 quoted by Dante, to constitute the character of a miracle. 1 
 But it differs from the miracle, in the ordinary sense, in this : 
 that it is not entirely independent of the will of the recipient, 
 as manifested either in the relation in which he places him- 
 self to God, or by direct petition. This revelation, through 
 the reason (vm>i), assumes a plainly supernatural, and comes 
 very close on a miraculous character, when it is granted in 
 unusual measure, as, for example, to Socrates. 
 
 Bunsen, in my opinion, spoke quite accurately when he 
 characterised Socrates as " the Saint of Athens," 2 and I assent 
 to the expressions which he uses in a letter to a friend, as 
 reproduced in his life. 3 Beferring to the manner in which 
 his friend had spoken of the religious aspirations of the great 
 heathens, Bunsen says : " I should express myself differently 
 as to the religious aspirations of Homer and Socrates, as not 
 derived from exterior sources, no more than the philosophical 
 notions of Deity in Plato, but from that inward revelation of 
 the Spirit of God to which St Paul alludes.'' Such I believe 
 
 1 De Monorchia, lib. ii. sec. 4. 
 
 6 Preface to the Thsologia Germanica, lvii. 3 Vol. ii. p. 424. 
 
OF THE SOURCES OF NATURAL LAW. 37 
 
 to have been the character of the revelation of ethical truth 
 to Socrates. What he said of the Aal^wv, I take to have been 
 a mere figurative way of indicating the immediate relation in 
 which he occasionally felt himself to stand to the Divine, and 
 of which all sages and poets, seers and makers, are more or 
 less distinctly conscious. Apart, however, from the loftier 
 character of the subjects to which these revelations usually 
 refer, there is, I think, a difficulty in establishing a distinction 
 in kind between them and those intuitive acts of the mind 
 by which logical processes, for more ordinary purposes, are 
 unconsciously performed. 1 All " happy thoughts " come from 
 God, and may, in a wide and loose sense, be called revela- 
 tions, seeing that the mind in which they arise stands, for the 
 time being, in an exceptionally close relation to Him. 
 
 2d, Indirect revelation. 
 
 Indirect revelation is the ordinary means by which the law 
 of nature, or, in other words, the will of God, with reference 
 to temporal affairs, is communicated to man. 
 
 It is divided into two branches — 
 
 (a) Subjective, — The teaching of consciousness, or the re- 
 velation derived from the study of the Ego. 
 
 (6) Objective, — The teaching of external observation, or 
 the revelation derived from the study of the Non-Ego, whether 
 material or immaterial. 
 
 1 Duke of Argyll's Reign of Law, p. 318. 
 
38 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 CHAPTEK II. 
 
 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 The questions whether the various sources of knowledge, 
 direct or indirect, which we have enumerated, he really 
 channels of the revelation of the absolute law — and, if so, 
 to what extent — can be answered only when the character 
 and scope of their teaching has been investigated. On the 
 assumption, however, that they are entitled to that character, it 
 is obvious that the information which they communicate must 
 be harmonious and coincident, even where it is not identical ; 
 and that no one of them can be entitled to repudiate another. 
 The methods, however, to which they give rise differ so essen- 
 tially, and commend themselves to temperaments and races 
 and generations of men so different, as to have originated 
 various schools of jurisprudence, each of which, in its turn, 
 has claimed exclusive possession of the key of knowledge. 
 Of these the most clearly distinguishable are — 
 
 1st, The Theological School. 
 
 2d, The Inductive or Observational School (Subjective and 
 Objective). 
 
 3d, The Subjective, or Philosophical School. 
 
 4th, The Objective, or Sensational School. 
 
 A few observations on the methods on which these schools 
 severally rely may be serviceable in enabling you to recognise 
 the co-efficient character which, in reality, belongs to them all. 
 
OF THE SCHOOLS OF JURISPRUDENCE. 39 
 
 1st, The Theological School 1 professes to discover the law of 
 nature, not in the study of nature itself, but in the study of 
 what God has told us of nature. The legitimacy of this 
 method- is implied in what has already been said of direct 
 revelation. If the law of nature be identical with the Divine 
 Law, — i.e., with the will of God, — it certainly is possible, and 
 not inconceivable, that He may have made this law known to 
 man directly. No prudent or reverent man, however, I think, 
 will venture on a very sharp definition of the word " directly," 
 when used in this connection. 
 
 The legitimacy of the theological method being admitted, 
 the only questions with reference to it which here are logically 
 open to us are, first, as to its reality ; and, second, as to its 
 adequacy or exclusive sufficiency, 
 
 (a) Its reality. — Though it be possible and credible that 
 God should have revealed His will to man externally as well 
 as internally, it by no means follows that He has done so 
 at all, or that He has done so with reference to the matter 
 in hand. The first of these questions it is not necessary, 
 and would not be suitable, that we should discuss. A direct 
 revelation, with reference to the relations in which man 
 stands to God, is an occurrence in which all Christians and 
 Mahometans, and most Heathens, profess to believe. We 
 shall here assume its reality, with the remark that, inasmuch 
 as it does not profess to have been given to all, its reality is 
 a fact which those who have not personally received it, must 
 always accept from those who have. It is only to the prophet 
 himself that the prophecy is directly revealed. His followers 
 1 Ahrens, pp. 61, 66. 
 
40 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 receive it on his word. As regards the facts of consciousness, 
 on the other hand, each man is his own prophet. 1 
 
 (6) Its adequacy. — But assuming its reality, does this revela- 
 tion bear on the secular relations of men ? and, if so, does it 
 alone furnish us with means adequate to the determination of 
 these relations ? Tor this, we must bear in mind, is the thesis 
 which the theological school, as such, professes to maintain. 
 
 The leading doctrines of the moral law are, no doubt, laid 
 down in the Holy Scriptures, and inasmuch as the law of 
 nature with reference to the relations of man to man is neither 
 more nor less than these doctrines traced out into their conse- 
 quences in special directions, the law of nature may, in this 
 sense, be said to have been directly revealed. But recent 
 scholarship has taught us that this assertion must not be 
 limited to the Christian or Hebrew Scriptures. Whether or not 
 the starting-point of ethics was thus attained anywhere may 
 well be questioned, but it is not doubtful 2 that its grand out- 
 lines have the double sanction of direct and indirect injunction. 
 
 1 The remarkable revival which Catholicism has experienced, and the attempts 
 which have been made to introduce the confessional into Protestant communions, 
 alongside of, and no doubt as reactions against, materialism and irreligion in our 
 own day, have given ■■• practical importance to the doctrines of the theological 
 school which they did not possess half a century ago. Men knew then, indeed, that 
 such persons as Molina and Bellarmine had asserted that, if the Pope, as the in- 
 fallible interpreter of external revelation, should declare virtue to be vice and 
 vice virtue, all good Catholics were bound to believe him ; but, in a speculative 
 age, the assertion was rather welcomed as a reductio ad absurdum which rendered 
 the system innoxious. Now, however, in the absence of philosophy, it is widely 
 accepted as the only refuge against scepticism, which, beginning with religion, has 
 extended to morality, and which, in our own department, threatens to deprive 
 jurisprudence and politics of any basis that is independent of individual caprice. 
 
 2 Meander, Ch. His. i. p. 9. Donaldson's History of Christian Literature, ii. 
 pp. 167, 183, 198, 225. Ackermann's Christian Element in Plato, pp. 19, 53. 
 Aristot. Mctaph. x. 8. 
 
OF THE SCHOOLS OF JURISPRUDENCE. 41 
 
 On the other hand, however, it is important to remark that, 
 in the vast majority of instances, whilst the information which 
 is conveyed to us with reference to the relations of man to 
 God are express, that which has reference to the relations of 
 man to man only admits of being partially gathered from 
 incidental expressions, or from the life and conduct of Christ. 
 What is revealed, primarily at least, " is the ways of God to 
 man," not of man to man. The previous acquaintance of man- 
 kind with the law of nature is, manifestly, assumed ; and in 
 this assumption we cannot but perceive a plain recognition 
 of, and reference to, other sources of knowledge. 1 
 
 Then, so far from preaching any separate system of positive 
 law relating to secular affairs, one of the objects of Christ's 
 mission was to abolish the only system of the kind that ever 
 was directly revealed to man, and to place the Jews once 
 more in the same position as the rest of mankind. The 
 Koinan law, under which Christ himself lived, was expressly 
 founded on indirect revelation interpreted by mere human 
 reason, and, from the beginning to the end of His teaching, 
 there is not the slightest indication of an opinion that it 
 either ought to have rested, or could have rested, on any 
 other. 
 
 The exclusive pretensions of the theological school of juris- 
 prudence are specially inexcusable in Christian countries, 
 seeing that Christianity, as a learned and ingenious French- 
 man has observed, is "the first religion which does not 
 pretend that law is dependent on it." 2 A natural conse- 
 
 1 The 119th Psalm is a long prayer for the indirect revelation of natural law. 
 
 2 Do Coulanges, Cite Antique, p. 518. 
 
42 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 quence of thus attempting to derive guidance from a source 
 •which was not intended to afford it, has been the most won- 
 derful diversity in the results arrived at by theological in- 
 quirers. From absolute monarchy and patriarchal and hier- 
 archal despotism, ^ to democracy, communism, and anarchy, 
 there is no condition of political or social existence which 
 has not sought to justify itself by an appeal to the theological 
 method. 1 Nor is it wonderful that such should have been 
 the case, for it is obvious that anything may be proved by 
 a system which relies on documents compiled for other 
 purposes, and which, by repudiating reason, has moreover 
 freed itself from the fetters of an independent organ of 
 interpretation. 
 
 But though the teaching even of Christ was not intended 
 to supersede the revelation through nature, and from the 
 identity of their source in the divine, to say nothing of the 
 human character of Christ himself, cannot possibly have 
 contradicted it, it does not follow that Christianity did not 
 correct and supplement the conceptions which mankind had 
 hitherto entertained, or would otherwise have been in a con- 
 dition to form, of natural law. To the fact of its having done 
 so, the vast difference between our conceptions of the rights 
 and duties of human beings and those entertained by heathen 
 or Mahometan nations, or even by the classical nations of 
 antiquity, bears witness. Wherever any secular doctrine is to 
 be found, then, in the Holy Scriptures, the presumption — inas- 
 much as God does nothing needlessly — is, that it communi- 
 cates knowledge beyond what was attainable, or at any rate 
 1 For an enumeration of writers, v. Ahrens, p. 64. 
 
OF THE SCHOOLS OF JUBISPKUDENCE. 43 
 
 had, up to that period, been attained by the ordinary means 
 of observation and reasoning, and it is therefore to be studied 
 by the jurist with reverent diligence and care. When com- 
 pared with the information which he obtains through the 
 indirect channels of our knowledge, he will often find that the 
 greater completeness of its dicta enables him to decide be- 
 tween conflicting opinions, and even becomes the starting- 
 point ~of new scientific investigations. 
 
 Let me give a single instance of what I mean. The 
 school of jurisprudence which sets out with the vindication 
 of the rights of the individual, very frequently falls into the 
 error of teaching us to prefer ourselves to our neighbours, and 
 ends in justifying selfishness, either in the form of unjustifi- 
 able aggrandisement, or equally unjustifiable non-intervention. 
 The opposite school, which proposes to itself the inculcation 
 of the duties of the individual, tells us to prefer our neigh- 
 bour to ourselves, and often falls into asceticism and fanaticism, 
 and recommends institutions and enactments by which our 
 neighbour suffers even more than ourselves. But the Bible 
 enjoins us to love our neighbour as ourselves ; and in thus 
 proclaiming the exact reciprocity of rights and duties, direct 
 revelation, whilst it confirms the ethical teaching of the 
 Socratic school, indicates the direction in which scientific 
 jurisprudence, by supplying a measure at once of rights and 
 duties, yields, as we shall see hereafter, its last and most pre- 
 cious fruits. 
 
 Yet how universally human such a sentiment is, appears 
 from such a fact as that the Brahmans reproached the Bud- 
 dhists with having stolen the precept of universal benevolence 
 
44 OE THE SCHOOLS OF JURISPRUDENCE. 
 
 from the Veda. 1 It was consequently a sentiment which 
 both professed to hold, and at which we can scarcely imagine 
 that either of them arrived otherwise than by what are com- 
 monly called human means. 
 
 Englishmen generally, including Mr Herbert Spencer, 2 as 
 the latest exponent of national peculiarities, fall into the error 
 of representing Christianity as exclusively "altruistic," and 
 heathenism, as exhibited in the Greek and Eoman writers, as 
 exclusively " egoistic." Both statements possess truth enough 
 to suit them for popular and declamatory purposes, but, in 
 any stricter sense, are quite erroneous. As regards Christian- 
 ity," let the example which I have given above suffice. As 
 regards Heathenism, I shall take an example far more remote 
 from Christianity than the Greek and Eoman writers. In the 
 Chinese classics, the " golden rule " is everywhere to be found. 
 In the Confucian Analects, for example (Book V. Chap. XL), 
 it is written : " Tsze Kung said, ' What I do not wish men to 
 do to me, I also wish not to do to men.' The master (Con- 
 fucius) said, 'Tsze, you have not attained to that.'" In a 
 previous passage the doctrine of the master is thus explained : 
 " The master went out, and the other disciples asked Tsang, 
 saying, ' What do his words mean ? ' Tsang said, ' The doctrine 
 of our master is to be true to the principles of our nature, 
 and the benevolent exercise of them to others, — this, and 
 nothing more.' " 3 Again, in the ' Doctrine of the Mean,' 
 (p. 258), we find that this view was held not less firm- 
 ly by the followers of Confucius than by himself. " When 
 
 1 Max Muller's History of Ancient Sanscrit Literature, p. 85. 
 
 2 Sociology, p. 184. 3 Chinese Classics, vol. i. pp. 33, 34, and 41. 
 
OP THE SCHOOLS OF JURISPRUDENCE. 45 
 
 one cultivates to the utmost the principles of his nature, 
 and exercises them on the principles of reciprocity, he is 
 not far from the path. What you do not like when done 
 to yourself, do not do to others." Passages to a similar effect 
 might be quoted to almost any extent from the religious 
 literature of the other oriental races with which scholars have 
 made us acquainted during the last twenty years. 
 
 2d. The inductive or observational school (subjective and ob- 
 jective). 
 
 Apart from such knowledge as is conveyed to us directly, 
 or which we ohtain by efforts of which we are unconscious, all 
 that we know either of the law of nature, or of anything else, 
 must be learned by the ordinary processes of conscious obser- 
 vation and reasoning ; and, consequently, all the actual, or 
 indeed possible, schools of jurisprudence, except in certain 
 aspects the theological, belong, strictly speaking, to a single 
 class — viz., the inductive or observational. 
 
 Bacon did not limit the inductive method to physical in- 
 quiries, but declared it to be the true method of scientific 
 inquiry universally. Since the time of Descartes, at all events, 
 its applicability to the study of man and his relations has 
 scarcely been disputed ; and whether we prosecute it subject- 
 ively or objectively, or both, the science of jurisprudence is 
 an inductive science, just as much as chemistry or psycho- 
 logy. But the inductive or observational school of juris- 
 prudence, though its two branches rest on a common founda- 
 tion, is a house divided against itself, the occupants of which 
 have been in the habit of barring their doors against each 
 other even more determinedly than against the theologians, 
 
46 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 with whom some of them l have even been willing to claim 
 kindred. 
 
 The inductive school as a whole, then, may be divided into two 
 sections, — the subjective and the objective, or that which relies 
 for its starting-point on the observation of internal phenomena, 
 and that which regards external phenomena as all-sufficient. 
 
 By including the sources on which they respectively rest 
 amongst the sources of our science, we have already recognized 
 the legitimacy both of the subjective and objective methods, 
 and entered our protest against the claim of either of them to 
 exclude the other. In support of this protest, and in illus- 
 tration of their necessary dependence on each other, one con- 
 sideration alone would seem to suffice — viz., that the supreme 
 rule of life which we seek is neither a doctrine of rights nor a 
 doctrine of duties, but a doctrine of the relation between rights 
 and duties. But a relation can become intelligible to us only 
 when we know both of the parties related ; and as rights have 
 a subjective and duties an objective origin, a knowledge of 
 the relation in which they stand to each other necessarily 
 implies a reference both to subjective and objective sources of 
 knowledge. 
 
 These considerations, however, obvious as they seem, have 
 not prevented men opposed to each other by personal and 
 national genius from attempting to create two schools, each 
 resting solely on one avenue of knowledge, and as such mutu- 
 ally exclusive. 
 
 3d, The subjective, or so-called 'philosophical school. — The ex- 
 
 1 Paley, for example, who occupies the singularly incongruous position of a 
 theological utilitarian. 
 
OF THE SCHOOLS OF JURISPRUDENCE. 47 
 
 elusive claims of the study of our subjective nature (the per- 
 sonal Ego) to enlighten us with reference to the ultimate law, 
 rest on metaphysical speculations which have lost their hold 
 on the country in which they originated, and are so little in 
 accordance with the habits of thought which prevail amongst 
 ourselves that, even if I possessed a clear understanding of 
 them myself, which is far from being the case, I should be 
 disposed to leave them to the experimental refutation which, 
 I trust, the use of the double method of inquiry in the sub- 
 sequent pages will supply. 1 One advantage over all other 
 methods the subjective method (die Ableitung aus der reinen 
 Vernunft) unquestionably possesses— viz., that to mankind in 
 general, it alone is or can be direct. Our faculties of self- 
 observation may indeed deceive us, but we cannot be deceived 
 by another. We take nothing on external testimony, and thus 
 avoid at least one source of error. But to my mind, the objec- 
 tion just stated — that a relation cannot be known by a know- 
 ledge of one of its terms — seems to be fatal to the exclusive 
 claims of the subjective method, to an extent to which it is not, 
 theoretically at least, to the objective method. An objective 
 induction, sufficiently wide and sufficiently accurate, would 
 yield a law of relations which might be assumed to include 
 the subject, and thus to possess universal validity ; but inas- 
 much as we could have no security that the individual was not 
 exceptional, no observation of subjective phenomena, however 
 exhaustive, could with equal safety be assumed to cover the 
 
 1 In saying this, I am far from questioning the necessity of starting from the 
 Ego (infra, p. 53). On the contrary, I fully subscribe to the saying of Krause, 
 that "im Gedanken des Ich, der Gedanke der Rechts wesentlich mitenthalten 
 iind mitaufgegeben ist," p. 87. 
 
48 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 field of objective existence. Neither method, as we have said, 
 would be trustworthy, apart from the other ; but in this point 
 of view, at least, the objective method would offer many 
 chances to one, whereas the subjective method would offer 
 only one chance to many. The subjective method, on the 
 other hand, would have the advantage in its starting-point ; 
 for how could I ever come to know anything of my neighbour's 
 rights except by contrasting them with my own ? The exclu- 
 sive claims of the subjective method, however, for the reason I 
 have mentioned, need scarcely be discussed in this country. 
 
 4:th, The objective, or sensational school. — The case is very 
 different with the claims of objective experience, which for 
 generations has seemed to the common English mind not only 
 to supply the sole legitimate method of inquiry into the rule 
 of life, but, by furnishing a rule of life in itself, to supersede 
 the necessity of the inquiry altogether. 
 
 The utilitarian doctrine thus occupies two positions, from the 
 one to the other of which it is continually shifting, but which 
 require to be carefully distinguished, seeing that in the one it is, 
 and in the other it is not, entitled to take rank as a legitimate 
 method, and to claim a place in the science of jurisprudence. 
 
 1. In the first and most ambitious position which it as- 
 sumes, the doctrine of utility claims to furnish us with a test 
 of the quality of our actions, to constitute in itself a rule of 
 life, and thus to supply the place of the law of nature, the 
 reality of which it denies. Of the confusion of thought in- 
 volved in this claim we have instantaneous proof if we reply 
 to it by the question, " Useful for what ? " Actions are means, 
 not ends, and their quality can be tested only by reference 
 
OP THE SCHOOLS OP JURISPRUDENCE. 49 
 
 to some final end or object (re\os) which they seek to attain, 
 the measure of their value, being the approach which they 
 make to its attainment. If the rule be, "follow virtue," 
 "follow pleasure," "follow nature," the realization of what- 
 ever we may choose to characterize as "virtue," or "pleas- 
 ure," or " nature," is the object of the rule ; and the value 
 of each particular action will be greater or less in pro- 
 portion to the extent to which it accomplishes this realiza- 
 tion. But " follow utility " is a rule which has no object — 
 a fingerpost that points nowhere ! So far, then, from possess- 
 ing the merit so often claimed for it, of supplying the simplest 
 of all tests of conduct, the utilitarian system furnishes no test 
 at all, and has consequently to accept its test from some one 
 or other of the systems which it repudiates. It is for this 
 reason that it is held by persons of the most opposite char- 
 acter and opinions, who deduce from it the most opposite re- 
 sults. In Mr Bentbam's hands, and those of the majority of 
 his conscious followers, its object has been "happiness," so 
 defined as to rise little above animal enjoyment, and utili- 
 tarianism has thus been equivalent, not to eudaemonism in the 
 Aristotelian sense, but to hedonism in the sense of the later 
 Epicureans. Stung by the reproaches to which so ignoble an 
 object and so degrading a system exposed their adherents, Mr 
 Mill, in his later writings, has sublimated utilitarianism into 
 something that might be called transcendental-eudaemonism. 1 
 
 1 In an interesting passage in his Autobiography, p. 189, he even speaks of the 
 " highest realizable ideal of human life " as the true object of human endeavour, 
 though how this ideal should have possessed such value in the eyes of one who 
 regarded " the pretended perfection of the order of nature and of the universe " as 
 a " superstition," is not explained. Neither do we learn the means of its dis- 
 
 D 
 
50 OP THE SCHOOLS OF JURISPRUDENCE. 
 
 The improvement as regards the object is great. But he has 
 not improved the pretensions of utilitarianism to the character 
 of a self-determining system, or its claim to any higher position 
 than that of a method of inquiry into the objects of life and 
 the means of attaining them, or, in other words, into the law 
 of nature — a position which was never denied to it by any 
 one, except perhaps a subjective idealist. 
 
 Let us consider its merits, then, in this latter aspect. 
 
 2. Viewed as a method of inquiry into the law of nature, 
 utilitarianism is merely a somewhat unphilosophical application 
 of the method of external observation, — a method which, in 
 the hands of scientific inquirers, has assumed two leading forms. 
 
 (a) The statistical, or empirical, which is chiefly known in 
 this country, and of which Mr Herbert Spencer is a brilliant 
 disciple ; and — 
 
 (l) The historical, of which, in its primary phase, Hugo, 
 Savigny, 1 and the late Sir George Cornewall Lewis may be 
 
 covery. If nature and the universe were imperfect it could not come from within, 
 for human nature could have no perfect ideal to reveal. Neither could it come 
 from without, seeing that direct revelation was repudiated as a still grosser super- 
 stition. Disbelief in the order of nature is intelligible, if to nature we attach the 
 lower sense in which the opponents of Stoicism have always taken it. To believe 
 in nature in this sense, in a world in which there is so much relative sin and 
 phenomenal misery, would involve a denial of the distinction between right 
 and wrong. But to disbelieve in the order of the universe, or in nature in the 
 sense in which it is identified with the order of the universe, is the ne plus 
 ultra of scepticism. Even Strauss, in his last and wildest manifestations of 
 unbelief, believed in the " Kosmic conception;" and to abandon Kosmos is 
 surely to part company with reason altogether — in other words, to go mad. 
 To talk of " reverence " after that is to use a word which can have no possible 
 meaning. 
 
 1 A statement of the very sound position which Savigny ultimately took up, 
 and which differs considerably from that which is still popularly ascribed to him, 
 will be found in the introduction to Mr Guthrie's excellent translation of the 
 
OF THE SCHOOLS OF JURISPRUDENCE. 51 
 
 regarded as the leading representatives, and which the specu- 
 lative mind of Hegel developed in new directions. 
 
 Theoretically, it is difficult to deny the pretensions of ex- 
 ternal observation, when directed both to contemporaneous and 
 past events, to the character even of an independent method, 
 because it is possible to imagine an intelligent being, conver- 
 sant with human life and action, and yet not human. Such a 
 being could, of course, have no subjective revelation of human 
 nature, or of the laws by which that nature is governed ; and 
 yet he might, to a certain extent, become acquainted with 
 human nature and its laws by the objective revelation of 
 events — by external observation of actions and their results. 
 To an omniscient mind the a posteriori method would, no doubt, 
 yield conclusions universally valid, and we cannot speak of its 
 application as impossible. For a human being to exclude his 
 own nature from his consideration whilst investigating human 
 nature in general, I believe to be impossible.. To him the 
 subjective is the only possible starting-point. And as he is 
 himself the mirror in which he beholds the universe, his aban- 
 donment of the subjective point of view must always be partial, 
 and is generally illusory. But some approximation to such a 
 one-sided position is perhaps attainable ; and to the utilitarian 
 who lays claim to it, all that I can object is, that his method 
 is. needlessly imperfect. If he is a human being, he is wantonly 
 throwing away the opportunities which the subjective study of 
 his own human nature affords him of becoming, acquainted with 
 human nature in general, and its laws. He is urging, moreover, 
 
 treatise on Private International Law, whiuh forms the 8th vol. of the System des 
 Heutigen RBmischen Eeehts, p. 12. 
 
52 OP THE SCHOOLS OF JUEISPKUDENCE. 
 
 on his own behalf, an exclusive claim which he certainly would 
 not concede to his opponent, who, with equal truth, might allege 
 that, as humanity as a whole is present in the nature of each 
 individual, the study of the Ego is alone sufficient to reveal it. 
 When the claims of the method of external observation are 
 not pushed to this length, it has been eminently fruitful in 
 results ; and those who believed that they were demonstrating 
 the non-existence of natural law have often been amongst its 
 best expositors. Still, several very serious practical objections 
 apply to it, which have been stated with great force by its 
 opponents in Germany. 
 
 A. Supposing our acquaintance with recent events — the 
 immediate effect of recent enactments, we shall say — to be 
 accurate in point of fact, it is with difficulty that we appreciate 
 them, or, in other words, determine their " utility " for the 
 attainment of any given end whatever, for two reasons — 
 
 (a) Because their ultimate consequences are still in the 
 future ; and — t 
 
 (b) Because we see them through the distorting medium of 
 our own feelings and interests. 
 
 B. As regards events long past, our information is seldom 
 complete, and even then it is coloured by a triple medium — 
 
 (a) That through which the narrator saw it. 
 
 (&) That through which he intended that we should see it. 
 
 (c) That through which our own passions, prejudices, igno- 
 rances, and those of our own time, permit us to see it. 
 
 0. From diversity of circumstances, it is for the most part 
 inapplicable as a rule of present conduct. 
 
 D. Humanity has not yet culminated, and its absolute laws 
 
OF THE SCHOOLS OF JURISPRUDENCE. 53 
 
 cannot therefore be revealed by the study of its previous history. 
 On the assumption that it is progressive, the experience of the 
 present must be more instructive than that of any former period ; 
 and, in this point of view at all events, the facts of statistics 
 are of greater value than the facts of history. The remark of 
 Lord Bacon is, however, to be borne in mind, that the most useful 
 examples are those taken from times most resembling our own, 
 and that these are not always the times that are nearest to us. 1 
 E. But the leading objection to external observation in all 
 its forms, as an exclusive source of knowledge, is that we can- 
 not begin with it. 2 In whatever light " facts " may be viewed 
 by the historian or statistician, 3 to the jurist they are not 
 ends but means ; and external facts are means which he 
 cannot use till he has gained a starting-point, and acquired 
 a standard which they cannot supply. After we know what 
 our nature craves, and what God wills that it should aspire to, 
 there is scarcely a fact, however insignificant, of observation or 
 experience, which may not furnish precious suggestions for the 
 realization of these objects. Nay, farther, even as regards 
 these objects themselves, it is most true that " there is a light 
 which shines on the ways of God out of a better knowledge, 
 even of man's ways." 4 But the light which man's ways afford 
 is lighted within him, and the reflected light which shines from 
 without has reference far more to the concrete and variable, 
 than to the abstract and permanent element of law. The 
 science of jurisprudence, like charity, must " begin at home ; " 
 
 1 De Jvstitia Universale, Aphorism xxiv. 3 Krause, p. 91. 
 
 As to the scientific significance of Statistic, o. Ahrens, vol. i. p. 5, note. 
 4 Reign of Law, p. 5. 
 
54 OP THE AUTONOMY OP HUMAN NATURE. 
 
 and the proper answer to the empiric is that which St Luke 1 
 tells us our Lord made to the Pharisees when they asked Him 
 when the kingdom of God should come. " The kingdom of God 
 cometh not with observation: neither shall they say, Lo here I 
 or, lo there ! for, behold, the kingdom of God is within you." 2 
 
 CHAPTEE III. 
 
 OF THE AUTONOMY OF HUMAN NATURE. 
 
 The science of the law' of nature divides itself substantially 
 into three inquiries — 
 
 1st, Is the nature of man autonomous ; is he a kosmic or 
 a chaotic creature, or, in other words, is man "a law unto 
 himself"? 
 
 2d, If so, in what manner is this law revealed to him ? 
 
 3d, What is the law which man's nature imposes on him, 
 or binds him to impose on himself ? 
 
 Each of these branches admits of being prosecuted, and has 
 always been prosecuted in point of fact by competent investi- 
 gators, 3 more or less systematically, both by the philosophical 
 and the historical methods. In so far as it seems possible, we 
 shall not fail to avail ourselves of this double avenue to truth ; 
 but in seeking a response to the first question, we shall 
 listen in the first place to what our nature tells us directly. 
 
 1 xvii. 20, 21. 
 
 a ' ' The master said, ' The path is not far from man. When men try to pursue 
 a course which is far from the common indications of consciousness, this course 
 cannot be considered The Path.' "— Legge's Chinese Classics, vol. i. p. 257. 
 
 * Gulielmi Grotii Enchiridion, Index, p. 3. 
 
OF THE AUTONOMY OF HUMAN NATURE. 55 
 
 The direct or subjective revelations which our nature makes 
 to us of its legislative character, appear to be presented in the 
 following order: — 
 
 1st, Our nature asserts its existence, and vindicates its 
 assertion. 
 
 Life being the root at once of our rights and our obligations, 
 the knowledge that life is a fact must -of necessity be the 
 first step in the science of jurisprudence, as of every other 
 branch of the science of man. Till we know that we are, 
 we can neither know how we are, nor inquire how we ought 
 to be. But our existence is a fact, which each of us must 
 ascertain for himself ; and the knowledge of which, by another, 
 we can only assume. If a man tells me that he is not 
 conscious that he lives, I can no more contradict him than 
 if he tells me that he is not conscious that he loves. So far, 
 the primary dictum of consciousness is on a footing of equality 
 with all the subsequent dicta. But it differs from them in 
 this respect, that neither its reality nor its veracity can be 
 denied, or even doubted. If. my neighbour tells me that he 
 is conscious that he does not love, I am bound to believe him ; 
 but if he tells me that he is conscious that he does not live, 
 or thinks that he does not live, or doubts, whether he lives 
 or not, his assertion disproves itself. "The very statement 
 of doubt," as Dr Adam Fergusson has said, " is a dogmatic 
 assumption of personal existence and thought." x 
 
 Nor does the accuracy of this assumption admit of question 
 any more than the fact of the assumption ; for, in so far as 
 its first dictum is concerned, the fact that consciousness truly 
 1 Fergusson's Principles of Moral and Political Science, vol. i. p. 79. 
 
56 OF THE AUTONOMY OF HUMAN NATURE. 
 
 testifies, is proof enough that it testifies truly. "To doubt 
 of the reality of that of which we are conscious," says Sir W. 
 Hamilton, " is impossible, for as we can only doubt through 
 consciousness, to doubt of consciousness is to doubt of con- 
 sciousness by consciousness. If, on the one hand, we affirm 
 the reality of the doubt, we thereby explicitly affirm the reality 
 of consciousness, and contradict our doubt ; if, on the other 
 hand, we deny the reality of consciousness, we implicitly deny 
 the reality of our denial itself." 1 
 
 2d, Our nature guarantees the veracity of its testimony 
 with reference to its qualities. 
 
 It is true that, without incurring the contradiction which 
 the denial of the primary assertion of subjective being 
 implies, we may deny the veracity of every subsequent 
 assertion of consciousness. But such denial cannot possibly 
 admit of proof, because the truth of the denial can never rest 
 on higher testimony than the truth of the assertion. If the 
 consciousness which tells me that I love be fallacious, the 
 consciousness which tells me that I doubt or deny that I love 
 may be fallacious too. It thus appears that if we deny the 
 truth of any single dictum of consciousness the reality of 
 which as a phenomenon is admitted, the whole fabric of truth 
 is shaken. " If our immediate internal experience could 
 possibly deceive us," said Leibnitz, "there would no longer 
 be any truth of fact, or any truth of reason." 2 
 
 Consciousness, or subjective nature, being thus a living, 
 
 1 Sir W. Hamilton's Lect. on Metaph., vol. i. p. 27<t ; Descartes' Second Medi- 
 tation, and St Augustine's Civitas Dei, I. xi, o. 26. See also the introduction to 
 M. Saisset's Translation of the Civitas Dei, pp. lix.Jxi. 
 
 2 Hamilton, ut sup. , p. 265. 
 
OF THE AUTONOMY OF HUMAN NATURE. 57 
 
 truth-telling witness, let us try what we can learn from it 
 with reference to its legislative character, and the laws 
 which it acknowledges. 
 
 3d, Our nature asserts that it is the result of a cause 
 external to itself, and independent of its volition. 
 
 It has often heen said that the sentiment of unconditional 
 dependence is the essential element of all religion. If the 
 same assertion can he made with reference to jurisprudence, 
 we have the first stone of the edifice of the de facto system. 
 Is this proposition, then, in accordance with the revelation of 
 nature ? 
 
 We have seen that our first feeling — that with which 
 consciousness begins — is the feeling of existence, and not of 
 activity ; of being, and not of doing. 1 This circumstance at 
 once throws the causative act by which we came into exist- 
 ence out of consciousness. We cannot, therefore, know that 
 we created ourselves. Any theory 2 which does not ascribe 
 our being to a cause independent, of our volition, either leaves 
 it unaccounted for, or accounts for it by a gratuitous assump- 
 tion, at variance with our knowledge so far as it goes. 
 
 But from this assumption we are shut out by two con- 
 siderations — 
 
 (a) It involves the necessity of conceiving human activity 
 prior to human existence, and by thus ascribing original 
 creative power to a second cause, contradicts our primary 
 postulate of a single first cause. 
 
 1 That actuality must precede potentiality had already become apparent to 
 Aristotle. — Grant's Aristotle, vol. i. p. 231. 
 3 Such as that of Miiller on Sin. 
 
58 OF THE AUTONOMY OF HUMAN NATUKE. 
 
 (5) It implies the conception of volition which is uncon- 
 scious — i.e., of will, without the self-directing quality which 
 is its essence. 
 
 4th,. Our nature accepts itself as a gift, voluntarily given, 
 but necessarily received. 
 
 In pronouncing its source to be independent of its own 
 activity, our nature exhibits itself to itself in the character of 
 a free gift — the gift, by an external and independent agency, 
 to every man of himself, with all the powers and faculties 
 which constitute personality. But it is implied in the idea 
 of a free gift, that no previous right or title to its possession 
 existed in the person of the recipient, 1 even supposing the 
 recipient's person to have pre-existed — a supposition which in 
 the present case is excluded. Whatever rights may result 
 from our nature, it is obvious that no rights can have pre- 
 ceded it, because in that case nature, with its inherent rights, 
 would become a recognition of something which, we had 
 already done in our own behalf; and as doing implies 
 being, we should again be entangled in the assumption of 
 self-creation. 
 
 Eegarding this as the first step in the process of self-inves- 
 tigation, in a strictly jural direction, we see that nature reveals 
 to us not a right, but a possession, the result of no antecedent 
 right, and the necessary source of all subsequent rights. This 
 is a fact to which I beg to direct special attention, as it is 
 one the forgetfulness of which has introduced much confusion 
 into the study of jurisprudence. Eights, it is true, precede 
 
 1 Actus justitiae est reddere debitum, sed Deus nulli est debitor : Ergo, Deo 
 non co'mpetit justitia. Th. Aq. Summa. Pars prim. Quass. xxi. 
 
OF THE AUTONOMY OP HUMAN NATURE. 5 9 
 
 obligations, as we shall see hereafter, because we must exist 
 before we can come in contact with external existence ; but 
 existence is the source and the measure of both, because 
 neither rights nor obligations can spring from, or centre in, 
 the non-existent. A proclamation of the nature of man must 
 consequently take precedence of a proclamation either of the 
 rights or duties of man. 1 
 
 But further, the primary possession of existence thus 
 freely bestowed, must not only be freely but fully accepted. 
 
 (a) We cannot refuse it, for from that course we are cut 
 off by the fact that the act of refusal, in this case, already 
 implies the possession of the object refused. 
 
 Ere the birth of my life, 
 
 If I wished it or no ; 
 No question was asked me, 
 
 It could not be so. 2 
 
 (5) But if we had neither right to demand existence nor 
 power to refuse it, it follows equally that we had neither 
 right nor power to determine or modify its character. " Shall 
 the thing formed say to him that formed it, Why hast thou 
 made me thus ? Hath not the potter power over the clay, 
 of the same lump to make one vessel unto honour, and 
 another unto dishonour ? " 3 Accordingly — 
 
 5th, In accepting itself as necessary, our nature accepts 
 itself as right, and its fundamental qualities and radical 
 
 1 The remark that the only means of getting a speculative foundation for the 
 idea of right, is by resting it on an ultimate fact, is as old as Thomas Aquinas. 
 "Nihil constat flrmiter secundum rationem speculativam nisi per resolutionem 
 ad prima principia indemonstrabilia, vol. vi. p. 290. 
 
 2 Coleridge's Suicide's Argument. 3 Rom. ix. 20, 21. 
 
60 OF THE AUTONOMY OF HUMAN NATURE. 
 
 impulses — those qualities and propensities ■which are normal 
 to it — as absolutely normal, and consequently as the criteria 
 of right and wrong. 1 Eelatively it must he right — it must 
 be right to us — because we can have no higher standard than 
 its necessity by which to measure its rectitude. It may be 
 wrong ontologically, but we are logically shut out from sup- 
 posing it to be so. The universal validity of natural law, if 
 not unquestionable, is undeniable. 
 
 At first sight, then, it seems as if this proposition, bike the 
 preceding ones, might be left to rest on subjective evidence. 
 Still, the subjective evidence here is only negative. We 
 cannot deny the fundamental rectitude of our nature, but our 
 affirmation seems to stop with the assertion of its individual 
 necessity. 
 
 This proposition consequently differs in character, very 
 essentially, from the four preceding ones, and as it is on its 
 acceptance or rejection that the question of the possibility or 
 impossibility of the revelation of a law-natural through nature 
 essentially turns, it is necessary that we should consider it 
 with scrupulous care. 
 
 If we assume the perfect character of the Creator to have 
 been made known to us by a revelation, not through our 
 nature, but to it, a science of jurisprudence may then be 
 
 1 As to the distinction between our normal qualities and those which, as in- 
 dividuals, we actually exhibit in time and place, see Krause, p. 85 : — 
 
 " Ich unterscheide mich selbst als ganzes Ich, ganz bestinunt von meiner 
 individuellen Erscheinung des Lebens in der Zeit. Ich finde mich iiber mir selbst, 
 sofern Ich diese zeitliche Person bin." " I distinguish myself as a whole quite 
 clearly from my individual manifestation as life in time. I find myself above 
 myself, in so far as I am a temporal person." 
 
OF THE AUTONOMY OF HUMAN NATURE. 61 
 
 arrived at by a synthetic and deductive process, which does 
 not start from a belief in the rectitude of human nature ; for 
 the known character of the lawgiver would, in this case, be a 
 sufficient guarantee for the character of the law. The law 
 would still be guaranteed to us, no doubt, but the guarantee 
 would be external. It is on this, the theological hypothesis, 
 that all theocracies rest ; and if they can scarcely be said to 
 be scientific, in the sense of resting on nature, they cannot be 
 reproached with being illogical. But in so far as a know- 
 ledge of the duties which arise from our relation either to 
 God or man is to be arrived at through nature, it is plain 
 that its possibility rests on the reality of the dictum of con- 
 sciousness which I have mentioned; because a nature that 
 was self-condemned, though it might reveal a necessary law, 
 could neither reveal a self-justifying law, nor afford ground 
 for the inference of a self- justified lawgiver. It is at this 
 point that the distinction between fatalism and obedience to 
 self-accepted, though not self-imposed law, makes itself felt. 
 The divine element in man — the relatively divine — recog- 
 nises the validity of the law which the absolutely Divine 
 imposes. 
 
 The ultimate test of the reality of this, as of every other 
 dictum of consciousness is, of course, a subjective one — do 
 we or do we not feel that our fundamental nature — our nature 
 in its general and, in this sense, normal, as opposed to its 
 special and exceptional impulses — is self-approving, and that 
 the acts of which we instinctively disapprove are acts by 
 which that nature is violated? Personally I should not 
 hesitate to exclaim with St Augustine — " In his tribus nulla 
 
62 OF THE AUTONOMY OP HUMAN NATURE. 
 
 nos falsitas verisiniilis turbat, — et sumus, et nos esse novimus, 
 et id (nostrum) esse ac nosse diligimus." 1 Still we are not 
 compelled on the penalty of contradiction to admit our 
 qualities, as we are our being. We cannot think that we are 
 not ; but without violating the laws of thought, we may per- 
 haps imagine that we were created by the devil, and formed 
 originally in the image of the father of lies. Disbelief in 
 Kosmos, or in man's power of discovering it, would bring 
 us, it is true, very near to the creed of the reformer who, 
 in 1848, formulated the following project of a constitution: 
 " Art. l er et unique. II riy a plus rien." 2 But Mr Mill has 
 shown us that, in the form of scepticism at all events, it is an 
 abyss from which even gifted men are not safe. As the admis- 
 sion of the dreary creed which it involves would amount to 
 a denial of the possibility of natural jurisprudence altogether, 
 the question whether or not it be, in point of fact, the 
 response of humanity, is for us indeed a critical one. That 
 it is not new in our day, but has prevailed, or recurred, 
 under many modifications of irreligion and sensualism on the 
 one hand, and fanaticism and asceticism on the other, both in 
 heathen and Christian times, 3 is unquestionable ; but the fol- 
 lowing trains of thought and tracks of inquiry, which I can 
 only indicate, if duly carried out, I believe will convince you 
 that the response of the general conscience, and consequently 
 the central belief of mankind, has always been to the 
 opposite effect. 
 
 1 Civitas Dei, lib. xi. cap. xxvi. 
 
 2 JRevue de Droit Interl., 1873, i. and ii. p. 320. 
 
 3 Lecky, History of Europ. Morals, vol. i. p. 99. 
 
INQUIRY INTO THE HISTORY OF OPINION". 63 
 
 CHAPTEE IV. 
 
 INQUIRY INTO THE HISTORY OF OPINION "WITH REFERENCE 
 TO HUMAN AUTONOMY. 1 
 
 For the reasons stated at the end of last chapter, it seems 
 proper that we should, for the present, stop short in our in- 
 quiry into the direct teaching of nature, and that I should 
 invite you to test the accuracy of our last dictum, with the 
 aid which I conceive the historical to he always in a condition 
 to afford to the philosophical method. 
 
 As this is the first occasion on which we have resorted to 
 the historical method, and as its relation to the philosophical 
 method is frequently misunderstood, it may he well to assign 
 the limits and indicate the modes of its application. And 
 first, let me offer for your acceptance what I shall call — 
 
 (A) The canon of the limitation of the historical method. 
 
 We are not called upon, in the interests of science, to prove 
 by an appeal to the consciousness of mankind any proposi- 
 tion which is self-evident — i. e., which is guaranteed unequivo- 
 cally to the individual mind by the laws of thought ; or, in 
 other words, we are scientifically entitled to assume that man- 
 kind always did believe what we ourselves must believe. 
 
 1 The discussion in this chapter presents many analogies with that which 
 Baron Bunsen has presented, with such wealth of thought and learning, in his 
 God in History. Our theses, however, are not identical. His is to prove that 
 there is a moral order in the universe — mine to prove that men feel themselves 
 capable of discovering this order in their own relations. 
 
64 INQUIRY INTO THE HISTORY OP OPINION 
 
 No concurrence of objective opinion could give strength to 
 our subjective opinion that twice two are four. 
 
 Xenophon tell us l that Socrates was wont to say that it 
 was absurd to consult the gods about things that might be 
 discovered by meditation ; and in like manner, to the extent 
 which this canon indicates, there can, I think, be no question 
 that, in the pursuit of truth, the philosophical has no claim on 
 the historical method. Eeason is anterior to history; and 
 where the testimony of reason is conclusive, history has noth- 
 ing further to teach. It is on the ground that they rest on 
 a deeper foundation than the historical, that we have assumed 
 as facts the existence and independence of the Creator, and 
 the existence and dependence of the creature. 
 
 At first sight it seems as if we might, with equal confi- 
 dence, dispense with historical proof of human rectitude. If 
 the necessity of the Divine nature be a sufficient guarantee for 
 its perfection, why should the same necessity not carry the 
 same guarantee as regards human nature ? If the testimony of 
 a single individual be a sufficient guarantee for the fact that 
 a perfect God made man, why should the testimony of man- 
 kind, as a whole, be requisite to prove that He made him per- 
 fectly ? The a priori method entitles us, I think, to dismiss, 
 without inquiry, such an allegation as that in the Buddhist 
 system, which is probably the creed of little short of a third 
 of the human race, " There is not a trace of the idea of God," 2 
 
 » Mem. i. 1-7 ; iii. 9-14. 
 
 2 " II n'y a pas trace de l'idie de Dieu dans le Bouddhisme entiere, ni au debut 
 ni au terme." — Le Bouddha et sa Religion, par J. Barthelemy Saint Hilaire, c. 
 iv., 164, &c. See also Dr Goldstucker's article In Cfutmbers's Encyclopaedia, voce 
 "Buddhist." 
 
WITH REFERENCE TO HUMAN AUTONOMY. 65 
 
 as a manifest misinterpretation ; 1 and we do not hesi- 
 tate, in virtue of the same method, to cut short all discus- 
 sion as to our own existence with a summary cogito ergo 
 sum. "Why then should we not, with equal confidence, dis- 
 miss the notion that a perfect Creator produced an imper- 
 fect creature ? The distinction arises from the contradictory 
 phenomena which consciousness presents in the latter case. 
 Here the mind itself forbids us to obey its own laws. It 
 is as impossible for us to believe that we are perfect, as to 
 see how a perfect God could have made us otherwise. Per- 
 fection and imperfection, good and evil, are irreconcilable 
 phenomena of our nature, of the reality of each of which it is 
 equally impossible to doubt, and which, if equally real, would 
 neutralize each other. Neither can thus be shut out by the 
 contradiction which threatens to exclude both, and to leave 
 the mind void of any guiding principle, either right or wrong. 
 In these circumstances, a far more delicate psychological in- 
 vestigation becomes requisite, and one which we can scarcely 
 
 1 The misinterpretation seems to consist in an attempt to determine as a nega- 
 tion what is merely an indefinite acknowledgment of ignorance as to the nature 
 or character of God, or of impotence to think a first, or uncaused, cause. All that 
 the so-called atheism of the Buddhist thus amounts to is a recognition, not, of course 
 very clearly or accurately expressed, that the infinite and uncreated is incogniz- 
 able ; or, in other words, that cognition is limited to the sphere of cause and effect, 
 which is surely no great heresy. " The word Atheist," says Mr Alabaster, speak- 
 ing of the Siamese, " is among us a word of reproach, and I do not like to apply 
 it to those who, so far as I see, do not deny the existence of a God, but only 
 reverentially abstain from defining that which it is impossible to comprehend. " 
 — Wheel of the Zaw, lii. Schlagintweit, Buddhism in Thibet, p. 108 ; Hardy, 
 Manual of Buddhism, pp. 393-398, &c; Max Muller's Chips, vol. i. p. 231, and 
 p. 255, where he says, most truly, that such a, religion as has been ascribed to 
 Buddha could have existed only in a madhouse. See this subject more fully dis- 
 cussed, infra, p. 80, 85, et scq. 
 
 E 
 
66 INQUIRY INTO THE HISTOEY OF OPINION 
 
 venture to confine within the limits of the individual mind. 
 Admitting the reality of both phenomena, the question comes 
 to be, whether they do, in our nature, so balance each other 
 as to exclude the assertion of supremacy by either ? or 
 whether the one be not fundamental, involuntary, and de- 
 termining : the other superinduced, and, to a great extent, 
 voluntary and self-determined ? Should the latter supposi- 
 tion be the correct one, humanity, though imperfect, will 
 neither be necessarily anarchical nor heteronomous ; and the 
 possibility of a law-natural will be saved. 
 
 (B) The canon of the application of the historical method 
 then comes to be this — 
 
 An appeal to the history of opinion becomes practically 
 important in support of any proposition, the opposite of which 
 the individual conscience is compelled to entertain, even par- 
 tially. It is not, however, scientifically indispensable, because 
 the individual mind might determine the preponderance. 
 But as the general or universal cannot differ fundamentally 
 from the individual consciousness, its testimony may be 
 legitimately called in for purposes of exegesis, and as' a 
 means of widening the basis of our induction. 
 
 (C) The regulative canons for the application of the his- 
 torical method again are — the laws of evidence applicable to 
 historical inquiry. 1 
 
 The investigation of the laws of evidence constitutes a 
 branch of special jurisprudence which cannot receive adequate 
 discussion in a treatise on general jurisprudence. All that I 
 
 1 On this subject the best work, perhaps, in any language, is Sir G. C. Lewis's 
 Methods of Observation and Reasoning in Polities. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 67 
 
 shall attempt is to indicate one or two of those laws which 
 have been most generally violated in dealing with anthro- 
 pology from a historical point of view. 
 
 1st, Preference must be given to the best witnesses. 
 
 In virtue of this rule we may, without hesitation, confine 
 our investigations almost exclusively^ 
 
 (a) To the higher races of mankind. 
 
 (&) To the more vigorous periods of their moral, intellectual, 
 and political life ; and — 
 
 (c) To the more highly developed portion of each com- 
 munity, as represented by its more prominent individual 
 members. 
 
 It is from forgetfulness of this rule that so many investi- 
 gators of this problem have been led into fruitless attempts 
 to determine the primitive beliefs of mankind in point of 
 time, and the existing opinions of the non-historical races. 
 Partly, indeed, the problem itself has been mistaken, and a 
 confusion, similar to that between the law of nature in the 
 scientific sense and the laws of the so-called " state of 
 nature," 1 has arisen between the fundamental, normal, and 
 permanent beliefs which we seek, and beliefs which, as be- 
 longing to the earliest stage of social life, even if discoverable, 
 would probably be abnormal, exceptional, and evanescent. 
 
 Much difference of opinion prevails not only as to the 
 origin of life, but as to the condition in which mankind, as 
 such, first appeared on the earth. In favour of the savage 
 state we have the testimony of recent physiological investi- 
 gation, which, to a certain class of minds, is altogether con- 
 
 1 Introd., pp. 11, 12. 
 
68 INQUIRY INTO THE HISTORY OF OPINION 
 
 elusive. On the other hand, the science of comparative 
 philology 1 has come to the aid of those old traditions of 
 primitive civilization and subsequent, prehistoric degeneracy, 
 the universal prevalence of -which was formerly conceived to 
 settle the question in the opposite direction. Amongst the 
 philosophers, too, in our own times, Schelling has appeared as 
 the advocate of a sort of golden age, on the ground that it is 
 inconceivable that man, as he now appears, should have been 
 able of himself to raise himself from instinct to consciousness, 
 from animality to rationality ; 2 and Sir Alexander Grant, the 
 learned Principal of the University of Edinburgh, in criticising 
 the Darwinian hypothesis, has expressed his opinion that the 
 higher races from the first, in addition to the human faculties 
 which savages now exhibit, must have possessed " an inward 
 impulse which led to the evolution of civilization." "The 
 extremely unprogressive character of savage society," he says, 
 " is an obstacle to believing that the first civilization of the 
 world — that of the Aryan and Semitic races — can ever have 
 taken its start from such a society, in primeval ages." 3 
 
 Even putting aside all distinction, in kind, between the 
 different races, there is, as it appears to me, nothing inad- 
 missible, a priori, in the conjecture that barbarism may, for 
 the first time, have resulted from causes similar to those 
 which have so often occasioned retrogression in other times. 
 We are so familiar with the phenomenon of continuous pro- 
 gress, or what we believe to be such, in modern times, that 
 
 1 Max Miiller's Oxford Essays, 1856, p. 5, and elsewhere. 
 
 2 Schwegler, p. 303. 
 
 3 Lecture to Edin. University Phil. Soc, April 6, 1871. May there not be 
 Protoplasm and Protoplasm ? 
 
WITH KEFEK.ENCE TO HUMAN AUTONOMY. 69 
 
 we put away from ourselves the thought even of temporary or 
 partial retrogression almost as an impossibility. But is it 
 certain that we are warranted in this comfortable conclusion ? 
 Anarchy is a phenomenon but too familiar to the historian; 
 and not many generations of anarchy, if continuous, will, at 
 any time, or in any race, bring about the total loss of civiliza- 
 tion. Mexico has retrograded to a point below that which 
 has been now attained by the Sandwich Islands ; and it 
 has at times seemed questionable whether the Latin civiliza- 
 tion of Europe, with all the aids of material progress, will 
 ultimately survive the disorganizing and demoralizing influ- 
 ences to which it is at present subjected,' from democracy and 
 consequent despotism on the one hand, and superstition and 
 consequent infidelity on the other. Eeactions, no doubt, con- 
 tinually occur ; but it by no means follows that each reaction 
 should reach the previous point of departure. Algeria has 
 improved amazingly under French rule, and India, we trust, 
 has done the same under our own. But no portion of the 
 north coast of Africa has ever regained the point which it had 
 reached in the days of Tertullian and Augustine ; and the high 
 tide of Hindu civilization left its mark in an age the remote- 
 ness of which even comparative philology hesitates to compute. 
 The same may be said of the civilization of China ; and the 
 monuments discovered by the Spaniards in South America, when 
 contrasted with the then existing institutions of the people, 
 told a like tale of degeneracy. In 1794 — towards the end of 
 the " Eeign of Terror " — we are told, matters in France had 
 come to the pass that "at Meudon there was a tannery of 
 human skins, — such of the guillotined as seemed worth flay- 
 
70 INQUIRY INTO THE HISTORY OF OPINION 
 
 ing, — of which perfectly good -wash-leather was made, for 
 hreeclies and other uses j" 1 whilst the scalps of the women of 
 the higher classes who were guillotined — their hair, from the 
 preponderance of Prankish blood, being fairer than that of the 
 common people — were in great demand as perruques-hlondes? 
 A few months later we know that these horrors were at an 
 end; and that they were regarded at the time by the vast 
 majority of French men and women in the same light as by 
 the rest of civilized mankind cannot be doubted. But just as 
 a whole private family is apt to suffer a moral degradation 
 when a foul crime is committed by one of its members, so the 
 subsequent history of France, and " the recent horrible episode 
 of the Commune," 3 afford too much reason to fear that she has 
 not yet recovered from the influences of the " first Eeign of 
 Terror." That by the union of liberty and order during a long 
 course of years, she may wipe out the blood-stained pages of 
 her horrible past, must be the hope of all, and, for the present, 
 is the confident expectation of many. 
 
 But the question as to the condition of primitive mankind 
 loses all real importance for our purpose when we consider 
 that, just in proportion to the degree in which man at any 
 period of his career, or from whatever cause, either as an indi- 
 vidual or a race, approaches the condition of the lower animals, 
 and recedes from that which is special to humanity, his value 
 for the anthropologist diminishes, both as a specimen and a 
 witness. "Whatever be the qualities with which we are occu- 
 
 1 Carlyle's French Revolution, vol. iii. pp. 209, 210. s lb. p. 209. 
 
 3 See M. Renan's Biforirw Intelhctuelle et Morale, p. 56, one of the most re- 
 markable political treatises in existence. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 71 
 
 pied, it is in the highest and not the lowest specimens of the 
 organism that we seek for their typical manifestation. 1 If we 
 wish to ascertain the characteristics of animal life, we examine 
 a man or a horse, and not a worm or a snail. And amongst 
 men and horses, we select European men and Arabian horses, 
 not Hottentots and Icelandic ponies. Viewed as a specimen, 
 then, if the primitive man resembled a Bushman or an ape, or 
 a spoonful of protoplasm, he would throw less light on the 
 characteristics of humanity than our next-door neighbour. 
 
 Then, as to his opinion, consciously emitted ; if we do not 
 apply to savages or monkeys for our knowledge of physiology 
 or zoology, why should we call them in to instruct us in 
 psychology or anthropology ? The whole nature of man 
 probably exists in all men at all times, and the "intuition 
 of Kosnios" 2 will, consequently, be wholly absent from none ; 
 but it is in the highest men at the highest times that nature 
 exists in the greatest health and vigour, and it is there and 
 then only that this intuition commonly manifests itself as a 
 self-revealing power. 
 
 On the other hand, however, it is true that, as the charac- 
 teristics of animal life are sometimes best exhibited by the 
 phenomena of infancy and disease, so the study of the unde- 
 veloped and lapsed races of man may sometimes throw light 
 
 1 "Quid illud? num dubitas, quin specimen naturae capi debeat ex optima 
 quaque natura?" — Cicero, Tuscul. Qucest. i. c. 14. Ae< Se ciunreiv 4v tois Kara 
 <(>6aiv i?xow» piaXKov tb <f>A<rei, Kal /iJ) iv tois SietpSapfievois. — Aristot. Polit. i. i;. ii. 
 10. Professor Bastian of Berlin has made a wonderful collection of the " abomi- 
 nations et les enfantillages " of savages. " Rechtsverhaltnisse der verschiedenen 
 Vblker der Erde. " — Revue de Droit Ifiierl. , 1873, iii. p. 497. See also Maclennau's 
 Primitive Marriage. 
 
 "'- Bunsen, ut sup. p. 56. 
 
72 INQUIRY INTO THE HISTORY OF OPINION 
 
 on his nature. Instruction may be derived from comparing 
 them, not only with the higher phases of civilization, but 
 with each other. The errors of a Eed-Indian differ from 
 those of a Ked-Eepublican very widely ; but they are about 
 equally great, and the contrast which they offer is not with- 
 out value for anthropological study. Nor are their analogies 
 uninstructive. The institutions of property and marriage, for 
 example, are the two pillars on which civilization rests. The 
 one supports it on its moral, the other on its material side ; 
 and to these two institutions they are equally opposed. The 
 communistic savage has retrograded to the point which the 
 polyandric savage had failed to pass. " Le titre du contrat de 
 mariage est aoroge"," was M. Emile Acolas's proposed amendment 
 of the provisions of the Code Civil on that head. A Eed- 
 Indian could go no farther, and probably would not go so far. 
 Still, as the child or the fool does not teach the man or the 
 sage to the extent to which the man or the sage teaches the 
 child and ought to teach the fool, so neither does pathology 
 throw so much light on physiology or psychology as these 
 throw on pathology. Our best instructors in anthropology will 
 therefore be the higher races, and these races not only at the 
 period of their highest endowment, culture, and organic life, but 
 as represented by their sanest, most gifted, and most cultivated 
 members. For our purposes, the single life of Socrates is of 
 greater value than the whole existence of the negro race. 
 
 2d, Even amongst the witnesses whom we admit, the prin- 
 ciple that testimonies ponderanda sunt, non numeranda must be 
 applied. 
 
 The calling in of historical testimony at all, is an admission 
 
WITH REFERENCE TO HUMAN AUTONOMY. 73 
 
 that the case is one in which the value of numbers comes into 
 play, and in which the rule holds good that, ceteris paribus, two 
 witnesses are better than one. At the same time we must re- 
 member that it is the reality of a fact, and not the mere preva- 
 lence of an opinion, that is the ultimate object of our inquiry ; 
 and that a fact can be ascertained only from those that know 
 it. The vast majority of human beings, even of the higher 
 races of mankind, would no doubt still be ready to swear that 
 the sun goes round the earth ; but the fact has been ascer- 
 tained to be otherwise by the testimony of a mere handful of 
 witnesses. The fact in question with us here, though perhaps 
 ascertainable without special culture, is scarcely ascertainable 
 without special gifts, and is very far from -being one with 
 reference to which all men are equally in a condition to bear 
 testimony. 
 
 3d, The abstract value of two witnesses being equal, the 
 value of a coincidence between their testimony will increase 
 in proportion to the dissimilarity, and diminish in proportion 
 to the similarity, of the circumstances in which it is given. 
 It is on this principle that the value of historical, as compared 
 with contemporaneous testimony, chiefly rests. Very possibly 
 our ancestors were no wiser than ourselves ; but the circum- 
 stances in which they thought and acted differed from ours 
 more extensively than those of contemporaries, and hence the 
 greater care with which we are willing to discuss their 
 opinions. The effect is the same where the difference of cir- 
 cumstances arises from distance in space, in race, in social 
 position, education, occupation, and the like, as in time. A 
 coincidence of opinion between a Chinaman and an English- 
 
7-i INQUIRY INTO THE HISTORY OF OPINION 
 
 man will do more towards establishing a fact, and a difference 
 of opinion will do less towards invalidating it, than a simi- 
 lar coincidence, or difference, between an Englishman and a 
 Scotchman. 
 
 Having indicated these rules for the application of the his- 
 torical method to anthropological inquiries generally, our next 
 duty is to determine whether the central creed of humanity 
 has hitherto affirmed or denied the fundamental rectitude of 
 man, and the consequent existence, in his nature, of a law for 
 its guidance. 
 
 To answer this question must, to each of us, be the business 
 of his life, rather than of any single spasmodic effort. Were 
 I to profess to deal with it exhaustively within the limits of 
 such a work as this, I should simply give proof of insensi- 
 bility to its magnitude and its difficulty. All that I can do 
 is to indicate its scope, and to signalize a few of the leading 
 considerations which, to my own miud, notwithstanding all 
 the sin and folly which we behold, and to which we contri- 
 bute, appear to warrant an affirmative answer. 
 
 (A) Of oriental, or ante-classical anthropology generally. — The 
 " old colossal religions of Asia," as Neander called them, 1 fall 
 mainly into two classes — those of the Shemitic, and those of 
 the Aryan races. 
 
 (a) The Shemitic races. — As the religions of all the Shemitic 
 races rest on direct revelation, real or pretended, and as they 
 are not accompanied by independent rational or speculative 
 systems, their anthropology is necessarily a reflex of their 
 theology. The value of the former consequently depends on 
 
 1 Gliurch History, vol. ii. p. 6, Bolin's translation. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 75 
 
 the authenticity of the latter. But as we admit the authen- 
 ticity of one direct revelation only, and as all the others, if 
 genuine, must have agreed with it, it follows that from this 
 one we shall learn all that the Shemitic religions can teach 
 us. The only Shemitic anthropological doctrine with which 
 we need concern ourselves thus comes to he that contained in 
 the Old Testament. The question whether this doctrine affirms 
 or denies the radical soundness of humanity is of vital import- 
 ance, not only in a religious, but in a scientific point of view, 
 because it furnishes, when rightly understood, and taken in 
 conjunction with the teaching of Christ and His apostles, the 
 only external touchstone by which the accuracy of our natural 
 interpretation of human nature can be tested. But as the 
 religion of the Hebrews, in so far as it possesses any perma- 
 nent value for humanity, forms a untcm quid with Christi- 
 anity, we shall defer the consideration of it till we speak of 
 Christian anthropology. 
 
 Baron Bunsen regards the ancient Egyptians as a branch 
 of the Shemitic race, 1 and their monuments as exhibiting the 
 earliest form of Shemitic consciousness, ethical and religious. 
 The point is one about which Egyptologists and philologists 
 are not agreed, and on which I can presume to offer no opinion. 
 As to the substance of their anthropological beliefs, enough 
 appears to be known to warrant us in affirming that they 
 embraced a direct relation between the human and divine, 
 and that the character ascribed to the divinity Osiris 2 was 
 beneficent. How they conceived themselves to have arrived at 
 this creed is another question, the answer to which will prob- 
 
 1 God in History, i. p. 223. 2 P. 226. 
 
76 INQUIRY INTO THE HISTORY OF OPINION 
 
 ably very much depend on the race to which ethnologists may 
 ultimately assign them. 
 
 The Phoenicians and Carthaginians have left no traces of 
 anthropological or ethical speculation, and it is no doubt to 
 the want of any rational conception of the human relations 
 amongst them that we must ascribe the limited success which 
 attended their efforts at political organization, notwithstanding 
 their great commercial prosperity. 
 
 But it may seem that the above dictum requires some 
 modification in favour of the Arabs, in virtue of the schools of 
 philosophy which grew up under the Caliphs, and flourished 
 more especially at Bokhara and Cordova. As regards such 
 exceptional individuals as Avieenna and Averrhoes, and two or 
 three others, this may very possibly be the case. In their 
 study of logic and metaphysics they must have come in con- 
 tact with spiritual laws, just as in their study of mathematics, 
 natural history, and medicine, they came in contact with 
 physical laws ; and that these laws were not revealed in the 
 Koran was a subject on which they can have harboured no 
 delusion. It is even said that the two great men whose 
 names I have mentioned were not by any means the slavish 
 followers of Aristotle, but that they exhibited a good deal of 
 mental independence. From the rational study of man in his 
 relations, whether to God or to his fellow-men, however, they 
 were shut out by the finality which they ascribed to the pre- 
 tended revelations of the Prophet; and there is, besides, nothing 
 in the facts of their external history to show that their eth- 
 nological genius carried them at all in the direction of that 
 branch of science. The low conditions of their social and 
 
WITH REFERENCE TO HUMAN AUTONOMY. 77 
 
 political life, even in their best days, the barbarous character 
 of their law of status, and the entire absence of cosmopolitan 
 conceptions, are, in their case, just as in the case of, the 
 Phoenicians, conclusive proof of the little aptitude they pos- 
 sessed for tracing out the ethical laws, of which the life of 
 the family, of the state, and of the community of nations, is 
 the realization. As traders the Phoenicians were great, and 
 of their law of contract, in so far as we know it, we must in 
 justice speak in very different terms. But there never was, 
 and there probably never will be, a political community 
 of indigenous Shemitic growth, entitled to claim international 
 recognition. The Jews are, of course, by far the ablest of 
 the Shemitic races ; but it is very doubtful whether a state 
 capable of discharging international duties could be founded 
 on the principles of Judaism, as distinguished from those of 
 Christianity. It would not be so hopeless as a Mahometan 
 state founded on the principles of the Koran ; but an imperfect 
 or incomplete external revelation, even if partially true, has a 
 tendency to obscure the light of internal revelation, and to 
 generate those exclusive conceptions by which Shemitic life 
 has hitherto cut itself off from the stream of scientific pro- 
 gress. It is within their own horizon alone that human 
 autonomy is plain to the Shemitic races, and that they 
 recognize the reciprocity of rights and duties. Within that 
 horizon, however, their ethical creed does not differ essentially 
 from that of the rest of mankind ; and so far as their testi- 
 mony goes, it is in favour of human autonomy. 
 
 (b) The Aryan or Indo-Gfermanic races. — The popular reli- 
 gions of the Aryan races, like those of the Shemites, usually 
 
78 INQUIRY INTO THE HISTORY OF OPINION 
 
 lay claim to direct revelation, and consist mainly in traditions 
 of external manifestations of divinity, and expressions of divine 
 will. But they differ from them in one very important re- 
 spect — viz., that this mythical and sensuous element does not 
 stand alone, but appears to have been preceded, and is always 
 accompanied, by what, if not a speculative, is at any rate a 
 rational element, in the shape of a body of theological and 
 ethical doctrines resting on a study, more or less accurate, of 
 natural phenomena. In India this rational faith is known 
 not only to have preceded the existing polytheistic mythology, 
 but to characterize the original Vedic hymns themselves, as 
 compared with subsequent portions of the Vedic literature 
 which are represented as directly inspired. 1 "In many a 
 hymn the author says plainly that he, or his friends, made it 
 to please the gods." As regards the sensuous polytheism of 
 later times, in so far as it proceeded from the Aryan mind at 
 all, and was not the result of contact with the inferior races, 
 there is reason to believe that it was addressed entirely to the 
 populace, and was intended to enforce and illustrate rather 
 than to express the fundamental national belief. It is certain, 
 at all events, that the preponderance of the sensuous, or the 
 rational element, depended, not on their relation to each other 
 in point of time, but on the stage of civilization at which the' 
 nation stood for the time being. As the Aryans of India 
 degenerated, sensuism absorbed spiritualism, and the rational 
 gave way to the mythical element ; 2 as the Aryans of Greece 
 
 1 Max Miiller's Ancient Sanscrit Literature, chap. i. 19. 
 
 2 See Professor Roth's theory of the supersession of the worship of Varnna by 
 that of Indra, as stated by Dr Mnir— Sanskrit Texts, vol. v. p. 116. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 79 
 
 advanced, the process was reversed — spiritualism absorbed 
 sensuism, and myths and mysticism alike gave way before 
 the influence of reason. 
 
 Great obscurity rests on the relation in which the eastern 
 and western branches of the Aryan race stood to each other 
 during the long period 1 which elapsed between their separa- 
 tion and the commencement of the history of the classical 
 nations. 2 There was a tradition that Pythagoras visited the 
 East, and even India. But the existence of any real con- 
 nection between Eastern and Western thought, previous to 
 Alexander's expedition, scarcely admits of proof from classical 
 sources ; and it is to that noble phalanx of oriental scholars, 
 whose labours form perhaps the most remarkable phenomenon 
 in the whole annals of learning, that we are indebted for our 
 knowledge of the fact that the rational creed of Socrates and 
 Plato had its historical prototype in that of the Veda, the 
 Zend-Avesta, and the Dhammapada, rather than in that of 
 Homer. It is in these remarkable monuments of the earliest 
 forms of Aryan meditation, and not in the popular beliefs of 
 later ages, whether in the East or the West, that we must 
 look for partial anticipations of the ultimate results of Greek 
 thought and Christian teaching. In this rational element, 
 which as an undercurrent never altogether disappears from 
 the Aryan religions, we have an expression of human con- 
 sciousness which we miss in the religions of the Shemitic 
 
 1 lb. i. pp. 2-4, 2d ed., and v. p. 2. 
 
 2 Professor Benfey of GSttingen has called in question the theory of the Eastern 
 home, and has maintained the greater antiquity of the Aryans of the north of 
 Europe ; and Professor Max Muller, in his lecture at Strasshurg, has recognized it 
 as an open question— Contemporary Review, June 1872. 
 
80 INQUIRY INTO THE HISTORY OF OPINION 
 
 races ; and for this reason it is to those who were our own 
 progenitors in the flesh, and with whom as a nation we have 
 been so singularly reunited, and not to the kindred of those 
 who were chosen to be the channel of direct revelation, that 
 we have to look for the roots, not only of the languages which 
 we speak, but of the theological and anthropological beliefs 
 on which our natural religion, our ethics and jurisprudence, 
 and even the external framework of our social and political 
 life depends. 1 And if it is to this rationalistic element in the 
 Aryan mind, as manifested by its Eastern representatives, that 
 we must look for instruction as to our own past, it is on it 
 that we must work if we would influence their future. The 
 missionary who can appeal to it will find no want of that 
 sympathy, the lack of which impedes the progress of his 
 brother who seeks to inculcate dogma, or to institute ritual- 
 istic observances. 
 
 1st, The original Aryan family. — The Aryan family, before 
 their separation, believed in a Creator whose character they 
 accepted as the standard of rectitude, and they ascribed to 
 humanity, as represented by themselves, a fundamental nature 
 in accordance with that clmracter. 
 
 I am not myself an oriental scholar, and I must therefore 
 be contented to establish this proposition by referring you to 
 a few expressions of opinion by those who are. I shall be 
 careful, however, that these expressions, be, as far as possible, 
 
 1 A very powerful argument in favour of the views of those who are endeavour- 
 ing to remove the obstructions with which the pedantry of last century has barri- 
 caded the approaches to the two classical languages, is furnished by the fact that, 
 in place of abandoning Greek and Latin, our sons will now have to add Sanscrit 
 to the studies of a learned education. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 81 
 
 both trustworthy and unequivocal. On hoth grounds it will, 
 I believe, be admitted that precedence is due to the opinion of 
 Professor Max Miiller, not as an oriental scholar alone, but as 
 a man of vast general culture, great depth of sympathetic in- 
 sight into human character, and whose open and dispassionate • 
 temper enables him to preserve the happy critical medium be- 
 tween credulity on the one hand and scepticism on the other. 
 
 " Dieu," said Mirabeau, " est aussi ndcessaire que la liberty ; " 
 and in his History of Ancient Sanscrit Literature (p. 528) Max 
 Miiller thus expresses himself: — 
 
 "We look in vain for the effect produced on the human 
 mind by the first rising of the idea of God. To the poets of 
 the Veda that idea is an old and familiar idea : it is under- 
 stood, never questioned, never denied." In proof of this 
 " monotheism of the Aryan nations," he adduces many pas- 
 sages, both in the earlier and the later Vedic hymns. From 
 these passages it is apparent that a monotheistic conception 
 not only preceded, but all along accompanied, the polytheistic 
 mythology. " There is," he says, " a monotheism that precedes 
 the polytheism of the Veda, and even in the invocations of 
 their innumerable gods, the remembrance of a god, one and 
 infinite, breaks through the mist of idolatrous phraseology, 
 like the blue sky that is hidden by passing clouds " (p. 559). 
 The different divinities were but the various aspects in which 
 the One self-existent presented Himself, and hence the ascrip- 
 tion to each of them in succession of the whole of His attri- 
 butes. Such, indeed, is the explanation of them which is 
 given expressly in some of the hymns. "They call (Him) 
 Indra, Mitra, Varuna, Agni; then He is the well -winged 
 
 F 
 
82 INQUIRY INTO THE HISTORY OF OPINION 
 
 heavenly Garutmat ; that which is One, the wise call it many- 
 ways — they call it Agni, Yama, Matarisvan" (p. 567). In 
 another hymn, also falling within the ancient period, the same 
 belief is even more definitely expressed : " He who gives life, 
 He who gives strength, whose blessing all the bright gods 
 desire ; He who is God above all gods." 1 
 
 Nor does this primitive belief appear ever to have been 
 abandoned. The Puranas are the main source of the existing 
 popular creed of the Hindus. They are little better than a 
 caricature of the ancient theology ; and yet a learned Hindu of 
 Benares, in a lecture delivered before an English and native 
 audience, indignantly repudiates the charge of polytheism, on 
 the ground that there are " thousands of texts in the Puranas, 
 declaring, in clear and unmistakable terms, that there is but 
 one God, who manifests Himself as Brahma, Vishnu, and 
 Eudra (Siva), in His function of creation, preservation, and 
 destruction. In support of these statements, this eloquent 
 advocate quotes numerous passages from the sacred literature 
 of the Brahmans, and he sums up his view of the three mani- 
 festations of the Deity, in the words of their great poet 
 Kalidasa, as translated by Mr Griffith — 
 
 " In those Three Persons, the One God was shown, 
 Each First in place, each Last, — not one alone ; 
 Of Siva, Vishnu, Brahma, each may be 
 First, second, third, among the Blessed Three." 2 
 
 Nor has this doctrine disappeared from the popular creed, 
 even at the present day. Mr Hunter tells us, in his Annals 
 
 1 P. 569. Quoted also by Bunsen, God in History, vol. i. p. 303. 
 
 2 Chips, preface, xviii. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 83 
 
 of Rural Bengal (p. 116), that "The modern pundit's reply to 
 the missionary who accuses him of polytheism is : Oh, these 
 are only various manifestations of the One God ; the same as, 
 though the sun be one in the heavens, yet he appears in multi- 
 form reflections upon the lake. The various sects are only 
 different entrances to the one city." l Whatever an Arian or 
 a Socinian might say to such a creed, it will scarcely do for 
 a people who repeat the Athanasian Creed in their churches to 
 accuse its holders of polytheism ! 
 
 The charge of dualism, on the ground that it is traceable 
 in the Persian branch of the Aryan family, seems equally to 
 melt away before closer inspection. There can, I imagine, be 
 no doubt that, as Baron Bunsen asserts, the appearance of 
 this doctrine, to the extent to which it did appear, is to be 
 regarded simply as an evidence, not of the abandonment of 
 monotheism, but of the superseding of the worship of external 
 nature by an ethical faith. " The antagonisms of light and 
 darkness, of sunshine and storm, became transformed into 
 antagonisms of good and evil, of powers exerting a beneficent 
 or corrupting influence on the mind." 2 But the question for 
 us is as to the relative position ascribed to these powers — 
 were they equals ? or, if not, which of them exercised suprem- 
 acy over the other ? On these points Bunsen has no hesita- 
 tion ; but lest in his case you should imagine, from his thesis 
 being substantially my own, that the wish were father to the 
 fact, I shall call, in preference even to Miiller, 3 another wit- 
 ness from another nation. 
 
 1 Chips, p. 116. 2 God in History, vol. i. p. 273. 
 
 3 For whose opinion see Chips, vol. i, p. 140, 155, 173. 
 
84 INQUIRY INTO THE HISTORY OF OPINION 
 
 " It is very certain," says the Comte de Gobineau, 1 " that 
 from the first period, when the Aryans still inhabited Aryana- 
 Vaeja, they had formed the conception that the cause of all 
 impurity, of all obscurity, of all evil, lurked in the essence of 
 a perverse spirit, which it was their duty to combat and resist 
 at any price. There is nothing to show that that perverse 
 spirit was then considered as equal in power to the Eternal 
 Light to which they paid their adorations. The Aryans did 
 not profess dualism. No trace of that dogma is to be found 
 in the Gathas, the most ancient parts of the Avesta: the 
 Vedas give no indication of it : the primitive Greeks knew 
 nothing of it : nothing resembling it has been discovered 
 either among the ancient Scythians or the later Scandina- 
 vians. Evil exists, unquestionably, in the form of incess- 
 ant protest and revolt against the supreme Divinity. But 
 this Divinity rules alone, secure of final victory, and master 
 of all things in the immensity of His creations." 
 
 I am aware that there is a class of Sanscrit scholars by 
 whom a belief in the unity of God, in the earliest period, is 
 contested on the ground that it first appears in the Brah- 
 manas and Upanishads. To a limited extent this view claims 
 the sanction of the distinguished name of Dr Muir, who has 
 treated the subject, in the fifth volume of his Sanskrit Texts, 2 
 with his usual caution and moderation ; and it has been 
 maintained in several able articles by Mr Fairbairn in the 
 Contemporary Review. I cannot, of course, discuss either 
 the authenticity or the antiquity of Sanscrit texts with 
 
 1 Histoire des Perses, par le Comte dc Gobineau, vol. i. p. 40. 
 
 2 Sect. xxi. p. 350. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 85 
 
 Sanscrit scholars. The fact of the existence of passages in 
 which the unity of God is directly asserted being confined 
 to the more recent portions of the Vedic literature may, 
 or may not, admit of the explanation which Max Miiller 
 has given of it 1 — viz., that many of the verses in which 
 such expressions occur, though incorporated in the Upani- 
 shads, can be traced to their original places in the Eig-Veda 
 Sanhita. 
 
 But there is another ground, which I have already partially 
 explained, 2 on which I believe in the monotheism not of the 
 Aryan race in particular, but of mankind in general, and 
 which seems to me to remove the question from the category 
 of things which are open to historical discussion, and to force 
 upon us a recurrence to the psychological method. The idea 
 of unity I hold to be involved in that of causality, and, like it, 
 to be a necessary idea, the existence of which, in virtue of the 
 canon of limitation, 3 may be taken for granted, at all times and 
 in all places. But in this connection we are not called upon 
 to discuss the existence or non-existence of necessary, and as 
 such, innate ideas ; for whether original or acquired, the pres- 
 ence of the idea of number in the mind of the worshipper is 
 assumed by the advocate of polytheism. He has further 
 assumed the idea of God. We have thus both number and 
 causality given us — in plurality — many Gods. Man, for 
 anything I assert, may be incapable of either idea prior to 
 experience. But here he has them both already given. Now, 
 whatever be the subject to which the formal idea of number 
 is applied, it is, as Pythagoras asserted, and as Hegel has 
 
 1 Sanscrit Lit., p. 567. 2 Ante, p. 63. 3 Pp. 63, 64. 
 
86 INQUIRY INTO THE HISTORY OF OPINION 
 
 shown in his logic, 1 manifestly impossible to think two — i.e., 
 two ones — till we have thought one — i.e., one one. But this 
 One one, which we must begin with, is the common starting- 
 point of thought and of existence, 2 and as such, is necessarily- 
 exclusive of all others. To think of two is always to think 
 of one twice over ; and as thinking takes place in time, one of 
 the thoughts must have preceded the other, in which case the 
 latter loses its assumed significance. A second cause — i.e., a 
 second first cause — is a contradiction in terms. But a dualist, 
 or a polytheist (in the sense of a believer in two or more 
 primary Gods), is supposed to think of two ones, or of many 
 ones, firsts, or causes, before he thought of one. The idea of 
 unity is thus at once ascribed to him and denied to him ; or, 
 in other words, he is credited with thinking twice, or oftener, 
 what he never thought at all. Dr Muir's error, as it appears 
 to me, consists in assuming that in thinking of God as one, 
 we form an abstract conception of Deity. 3 But abstraction 
 implies the existence of that from which we abstract, and 
 cannot, consequently, be the starting-point either of thought or 
 existence. An abstract conception is a result of reasoning at 
 which it may be that the Aryan nations, at this stage of their 
 history, were incapable of arriving. But the idea of unity is 
 not a result, but a condition of reasoning, an ultimate datum 
 of consciousness which is inseparable from intelligent exist- 
 ence, and must have existed in men at the beginning, just as 
 much as at any subsequent stage of their historical life. And 
 
 1 Schwegler's Hist, of Philos. by Stirling, p. 325. 
 
 2 " That one breathed calmly, self-supported ; there was nothing different from, 
 or above it." — Muir, Sanskrit Texts, vol. v. p. 357. 
 
 3 lb. p. 351. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 87 
 
 in this case, besides, Dr Muir has assumed it, because he has 
 taken for granted that mankind not only got the length of it, 
 but got beyond it. 
 
 Professor Max Miiller has adopted this view with one 
 breath, but he appears to have rejected it with the next in 
 virtue of a distinction which I cannot see to be more than 
 verbal. " It is too often forgotten," he says, " by those who 
 believe that a polytheistic worship was the most natural un- 
 folding of religious life, that polytheism must everywhere have 
 been preceded by a more or less conscious theism. In no 
 language does the plural exist before the singular. No 
 human mind could have conceived the idea of Gods without 
 having previously conceived the idea of a God. It would be, 
 however, quite as great a mistake to imagine, because the 
 idea of a God must exist previously to that of Gods, that 
 therefore a belief in one God preceded, everywhere, the 
 belief in many Gods. A belief in God as exclusively One, 
 - involves a distinct negation of more than one God, and that 
 negation is possible only after the conception, whether real or 
 imaginary, of many Gods." 
 
 " The primitive intuition of the Godhead is neither mono- 
 theistic nor polytheistic, and it finds its most natural expres- 
 sion in the simplest and yet most important article of faith 
 that God is God. This must have been the faith of the 
 ancestors of mankind previously to any division of race or 
 confusion of tongues. It might seem, indeed, as if in such a 
 faith the oneness of God, though not expressly asserted, was 
 implied, and that it existed, though latent, in the first revela- 
 tion of God. History, however, proves that the question of 
 
88 INQUIRY INTO THE HISTORY OF OPINION 
 
 oneness was yet undecided in that primitive faith, and that 
 the intuition of God was not yet secured against the illusions 
 of a double vision. There are in reality two kinds of oneness 
 which, when we eater into metaphysical discussions, must he 
 carefully distinguished, and which for practical purposes are 
 well kept separate by the definite and indefinite articles. 
 There is one kind of oneness which does not exclude the 
 idea of plurality ; there is another which does. When we 
 say that Cromwell was a Protector of England, we do not 
 assert that he was the only protector. But if we say that 
 he was the Protector of England, it is understood that he 
 was the only man who bore that title. If, therefore, an 
 expression had been given to that primitive intuition of the 
 Deity, which is the mainspring of all later religion, it would 
 have been ' There is a God,' but not yet, ' There is but One 
 God.' The latter form of faith, the belief in One God, is 
 properly called monotheism ; whereas the term of henotheism 
 would best express the faith in a single God." 1 
 
 My reply to this train of reasoning and illustration is, that 
 it is wholly inapplicable to ultimate causality, of which the 
 essence is priority. One caiose excludes all other causes, 
 whether simultaneous or subsequent. The intuition of a God, 
 of which Professor Muller speaks, is an intuition not of a 
 secondary cause which is also a result, but of a first cause, 
 for it is this conception alone which is intuitive, or, in other 
 words, which is forced on the mind by its own laws. A sec- 
 ondary cause is always a contingency. There need not be a 
 secondary cause for a phenomenon, because the primary cause 
 1 Chips, i. 353-356. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 89 
 
 may have acted directly. But there must be a first cause. 
 Simultaneity of creation is quite conceivable, the Creator 
 being there. God could have created two Cromwells at the 
 same time. The English Commonwealth might have chosen 
 two Protectors by a single vote, as the Koman Senate chose 
 two Consuls. Duality might have belonged to the idea; but 
 simultaneity of ultimate creative power (and no power is crea- 
 tive which is not itself ultimate) is inconceivable. The idea 
 of it could not have arisen, and we are entitled to assume, 
 never did dwell in any sane mind, either savage or civilized, 
 either consciously or unconsciously. There must, then, be a 
 first cause. Further, inasmuch as two firsts is a contradiction 
 in terms, the assumption of a God (or one first cause) is, eo 
 ipso, a negation of any other God (or second-first cause). In 
 order to make room for the second-first cause, the first-first 
 cause must be removed. But its removal could take place 
 only by its own instrumentality. We have thus to take it 
 for granted in order to get rid of it ; and in getting rid of it 
 we are still left with it, becaxise the cause which removed 
 it immediately becomes the first. It may be quite true that 
 the idea of one necessitates the idea of two ; but that is of no 
 consequence so long as it is certain that the idea of two pre- 
 supposes the idea of one. That there is " one kind of oneness 
 which does not exclude the idea of plurality" is, therefore, 
 nothing to the purpose ; because I am willing to go the length 
 of admitting that every kind of oneness includes the idea of 
 plurality in the sense of necessitating it. But the subsequent 
 admission of plurality, whether contingent or necessary, can 
 be of no avail in the question of priority, after unity has 
 
90 INQUIRY INTO THE HISTORY OF OPINION 
 
 already been assumed. As regards the precedence, if not the 
 necessity of its existence, then, the Pythagoreans were unques- 
 tionably right in placing the One — the Undivided, the Eternal 
 — in antithesis to all other numerals. 1 
 
 It must have been the misleading influence of his philo- 
 logical illustration which induced so clear-headed a man as 
 Professor Muller, on this occasion, to argue himself out of 
 what, plainly, is his own general view. Probably, too, he 
 may have felt that, if we carry this mode of reasoning beyond 
 the point at which it guarantees the existence of a single 
 cause, it may become, as St Anselm suspected, a temptation 
 from Satan. 2 The cognition of the absolute may be the 
 "Forbidden Fruit." For my own part, however, I conceive 
 the intuition of the single starting-point of existence to be the 
 ultimate, though hidden factor, in the conception of divinity. 8 
 
 But for our knowledge of the character of the cause of our 
 being, and, consequently, of our being itself — of the fact that 
 God is a righteous and beneficent God, and that His creation 
 is " very good," — we must appeal not to the laws of thought 
 alone or specially, but to Kosmos as a whole ; and here no 
 one can accept more gladly than I do the teaching of the 
 historical school.* 
 
 1 Bunsen, vol. ii. p. 95 ; where will be found an interesting and intelligible 
 account of the Pythagorean Pentagram. 
 5 Neander, vol. viii. p. 123. 
 
 3 See the opposite view by the Rev. A. M. Fairbairn, in his Essay on the " Idea 
 of God," Contemporary Review, Oct. 1871. I had not the benefit of hearing 
 Principal Fairbairn's " Muir Lectures" delivered in the University of Edin- 
 burgh th;s winter, and what I have said here has reference only to his published 
 writings (1880). 
 
 4 It has been said that in using this argument from number, I appeal to a, form 
 
WITH REFERENCE TO HUMAN AUTONOMY. 91 
 
 The question, then, as we have already seen, which it con- 
 cerns us to establish historically, is not the number but the 
 character which man has ascribed to the Single Source of his 
 being, and as a necessary consequence to his being itself. As 
 bearing on this point, the absence of dualism, in the sense of 
 equality of powers, and the preponderance assigned to the 
 power of light and life over the power of darkness and death, 
 in the earliest period, is of exceeding interest and importance. 
 
 So far as we have any means of judging, it would seem 
 
 of reasoning which is applicable only to the exact sciences. But those who speak 
 of polytheism surely bring the subject into this region more decidedly than those 
 who speak of monotheism. I don't say whether or not a savage may be capable of 
 thinking numerically at all. Those who are acquainted with him tell me that he is 
 able only to thinks/sue. But if he thinks fire, he must have thought one first ; and if 
 he thought one cause first, he excluded all other causes, and thus thought one God. 
 He came into the sphere of the "exact sciences" of his own accord without my 
 assistance, and there can be no reasonable question that " to suppose plurality is 
 to suppose unity already given. " This subject is very ably discussed in Ferrier's 
 Institute of Metaphysic, p. 88. It is in the sphere of metaphysics, behind and 
 beyond that which either Muller or Fairbairn has touched, that the difficulty as 
 to the starting-point of thought and existence really lies. As Pythagoras pointed 
 out, unity and plurality, in the absolute sense, are equally inconceivable ; be- 
 cause unity implies divisibility, and divisibility implies unity. All that this time- 
 honoured subtilty amounts to, however, is a proof of the limitation of human in- 
 telligence. We must start with a postulate ; but it is not necessary to start with 
 two, still less with many. We can refuse them, one after another, till we reach 
 the last ; but to refuse it is to subscribe to the dialectic of Gorgias, and to accept his 
 demonstration that "nothing exists " — Article l er et unique — II n'y a plus rien. 
 Unity and divisibility go together. But even in this case unity has the best of 
 it, for as it came first it stays longest. As there could be no division till there was 
 something to divide, so there can be no division when there is nothing to divide. 
 Divisibility thus rests on the assumption of the undivided, and reduces substance 
 to unity by a necessity similar to that which we recognized in the case of causa- 
 tion. What remains to us and defies all analysis, is one cause and one effect- 
 subject and object, mind and matter. V. Grant's Arist., p. 138, and pp. 290- 
 328 and 440. That both Plato and Aristotle regarded the assumption of unity 
 as the only refuge from absolute scepticism is beyond question. 
 
92 INQUIRY INTO THE HISTORY OF OPINION 
 
 that the original Aryan family believed not only in the purity 
 of the Source of being, but in the beneficence of its manifes- 
 tations in the work of creation. 1 The most satisfactory evi- 
 dence on this point consists in the earliest conceptions of 
 Deity which they exhibit in their new abodes, of which I 
 shall have occasion to speak presently. But with reference 
 to the character which they assigned to humanity even in 
 their original dwelling-place, we derive from the science of 
 comparative philology direct evidence of a very curious and 
 satisfactory kind. Prom this source we have unequivocal 
 testimony to the fact, that the duties which relatives were 
 supposed by our earliest progenitors to discharge to each other, 
 within the domestic circle, very closely resembled those which 
 we ourselves assign to them. 
 
 " The mere fact that the names for father, mother, brother, 
 sister, daughter, are the same in most of the Aryan languages, 
 might at first sight seem of immaterial significance, yet even 
 these words are full of import. 2 That the name of father was 
 coined at that early period, shows that the father acknow- 
 ledged the offspring of his wife as his own, for thus only had 
 he a right to claim the title of father. Father is derived from 
 a root, pa, which means, not to beget, but to protect, to sup- 
 port, to nourish. The father as genitor, was called in Sanscrit 
 ganitas ; as protector, or supporter of his offspring, he was 
 called pitdr. Hence, in the Veda, these two names are used 
 together, in order to express the full idea of father. Thus, the 
 poet says (i. 168, 33)— 
 
 1 Miiller's Ancient Sans. Lit. , pp. 527, 559, 568, 569, &c. 
 
 ' Max Miiller's Essay on Comparative Mythology. Oxford Essays, 1856. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 93 
 
 Dyaiis me pitS. ganita T 
 Jupiter mei pater geuitor 
 Zeis tfiov irarfy) yeverfip. 
 
 In similar manner mdtar, mother, is joined with ganitri, geni- 
 trix (Rv. iii. 48, 2), which shows that the word mdtar must 
 soon have lost its etymological meaning, and have become an 
 expression of respect and endearment. For among the early- 
 Aryans mdtar had the meaning of maker, from ma, to fashion ; 
 and in this sense, and with the same accent as the Greek 
 prfrqp, mdtar, not yet determined by a feminine affix, is used 
 in the Veda as a masculine. . . . The natural relation between 
 brother and sister had been hallowed at that early period, and 
 it had been sanctioned by names which had become traditional 
 before the Aryan family broke up into different colonies. The 
 original meaning of bhrdtar seems to have been he who carries 
 or assists ; of svasar, she who pleases or consoles — svasti mean- 
 ing, in Sanscrit, joy or happiness. In duhitar, again, we find 
 a name which must have become traditional long before the 
 separation took place. It is a name identically the same in 
 all the dialects, except Latin, and yet Sanscrit alone could 
 have preserved a consciousness of its appellative power. 
 Duhitar, as Professor Lassen has shown, is derived from duh, 
 a root which, in Sanscrit, means to milk. It is, perhaps, the 
 Latin duco, and the transition of meaning would be the same 
 as between trahere, to draw, and traire, to milk. Now the 
 name of milkmaid, given to the daughter of the house, opens 
 before our eyes a little idyl of the poetical and pastoral life 
 of the early Aryans. One of the few things by which the 
 
 1 Jove, my paternal genitor. 
 
94 INQUIRY INTO THE HISTORY OP OPINION 
 
 daughter, before she was married, might make herself useful 
 in a nomadic household, was the milking of the cattle ; and it 
 discloses a kind of delicacy and humour, even in the rudest 
 state of society, if we imagine a father calling his daughter 
 his little milkmaid, rather than Sut&, his begotten, or film, 
 the suckling. This meaning, however, must have been for- 
 gotten long before the Aryans separated. Duhitar was then 
 no longer a nickname, but it had become a technical term, or, 
 so to say, the proper name for daughter." x 
 
 So much for that "veiled life," before which, as Baron 
 Bunsen says, when we read the Veda, " we stand in a similar 
 position to that which we should occupy with regard to the 
 unfolding of the Hebrew mind from the age of Abraham to 
 that of Jeremiah, if we possessed nothing but the Book of 
 Psalms." 2 Let us now look into that period with reference 
 to which the testimony of the Veda is direct. 
 
 2d, The Eastern, or Indian Branch. — After their separation, 
 the branch of the Aryan family which migrated towards the 
 East, carried with them, into their new abodes, their ancient 
 faith both in God and man. 
 
 Whatever be the date of the earlier hymns of the Veda in 
 point of time, there can be no doubt that- they carry us back 
 to the earliest settlement of the Aryan race in India, which 
 probably took place several centuries before the date of 
 Zoroaster. 3 
 
 Now the character ascribed to the elementary powers whom 
 the Aryans of India worshipped, or, more correctly speaking, 
 
 1 P. 17. 2 P. 298. 3 Bunsen, ut sup., vol. i. p. 298. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 95 
 
 to the various forms of manifestation under which they wor- 
 shipped the One Power, is a beneficent character. 
 
 " God of gods, Thou art to me 
 
 A father, mother, kinsmen, friends ; 
 I knowledge, riches, find in Thee ; 
 All good Thy being comprehends. " ' 
 
 Whether the special object of adoration, for the time being, be 
 Indra, or Varuna, or Agni, or Ushias, the permanent sentiment 
 is still, that " God is love." 
 
 " Thou, Indra, art a friend, a brother, 
 A kinsman dear, a father, mother ; 
 Though thou hast troops of friends, yet we 
 Can boast no other friend but thee. 
 With this our hymn thy skirt we grasp, 
 As boys their fathers' garments clasp ; 
 Our ardent prayers thy form embrace, 
 As women's arms their lords enlace, 
 They round thee cling with gentle force, 
 Like saddle-girth around a horse." 2 
 
 Even when Indra appears in the character of the Thunderer, 
 it is in behalf of mankind that his terrors are displayed, and 
 his bolts are hurled ; and in his conflict with Vitra, the demon 
 of drought, the victory remains with the life-giving power. 3 
 
 1 Br Muir's Metrical Translations from Sanscrit Writers, p. 2. This very 
 interesting and instructive volume is a collection of translations which Dr Muir 
 had published in various forms from time to time, and from which the passages 
 in the former edition of this work were selected. In its present shape it con- 
 tains prose translations by which the accuracy of the metrical translations may 
 be tested even by those who cannot refer to the originals, and ample references 
 to corresponding passages in Greek and Roman writers and in the Holy Scrip- 
 tures. The work is of great interest and importance, as showing the universally 
 human character of much of which we have been accustomed to regard as exclu- 
 sively Christian. 
 
 ' 2 Ib. p. 171. 3 Muir's Sanskrit Texts, p. 174. 
 
96 INQUIRY INTO THE HISTORY OF OPINION 
 
 The blue expanse of heaven was apparently the manifesta- 
 tion of the Divine which first became an object of worship ; 
 and it is to Varuna " the Surrounder," whom philologists have 
 identified with the Greek Oipavos, one of the offspring of 
 Aditi, the God of Space, that the character of omniscience is 
 especially ascribed. " No one rules for the twinkling of an 
 eye apart from him." 
 
 " Two think they are not overheard, 
 Who sit and plot as if alone ; 
 Their fancied secrets all are known — 
 Unseen, the god is there, a third." 
 
 But Varuna is not an object of suspicion — he is a terror only 
 
 to evil-doers. 
 
 " He marks the good and ill within 
 The hearts of men — the false and true 
 Discerns with never-erring view ; 
 He hates deceit, chastises sin. 
 His viewless bonds, than cards and gyves 
 More hard to burst, the wicked bend 
 In vain, within their folds confined, 
 To cast them off the sinner strives. 
 And yet the god will not refuse 
 His grace to one who inly moans, 
 When, fetter-bound, his errors owns, 
 And for forgiveness meekly sues." 1 
 
 In like manner it is in his benefieent aspects that Agni 
 (Ignis), the God of Fire, presents himself, as one at the sight 
 of whose daily return, " both heaven and earth, and gods and 
 men rejoice." 
 
 " In every house thou art a welcome guest, 
 The household's tutelary lord, a son, 
 A father, mother, brother, all in one ; 
 A friend by whom thy faithful friends are blest." 2 
 
 1 Pp. 161, 162. p 18i 
 
WITH REFERENCE TO HUMAN AUTONOMY. 97 
 
 And Ushias — the Dawn — is represented as a beautiful 
 bride decked for her husband — ■ 
 
 ' ' Thou sweetly smilest, goddess fair, 
 Disclosing all thy youthful grace, 
 Thy bosom bright, thy radiant face, 
 And lustre of thy golden hair. 1 
 
 ***** 
 
 " Bright goddess, let thy genial rays 
 To us bring stores of envied wealth 
 In kine and steeds, and sons, with health, 
 And joy of heart, and length of days. " 2 
 
 After the character ascribed to Deity, the point next in 
 importance in the Hindu creed is the relation between the . 
 Divine Essence and the human soul. This relation the 
 Oriental Aryans held to be of the most intimate kind. 
 
 ' ' When Brahma framed the world of men, 
 He made it all Brahmanic then. 
 By no distinction marked of class, 
 They formed one homogeneous mass. 
 
 But when in time they showed diverse 
 And widely varying characters, 
 Those men whose natures were the same, 
 Conjoined received a separate name. " 3 
 
 The life of humanity as a whole, like the life of every 
 individual man, they regarded as a starting from, and pro- 
 gressing towards, the Divine life. "The highest object of 
 their religion," says Miiller, " was to restore that bond by 
 which their own self (atman) was linked to the Eternal Self 
 (paramatman) ; to recover that unity which had been clouded 
 and obscured by the magical illusions of reality by the 
 
 i P. 180. 2 P. 183. 3 P. 66. 
 
 G 
 
98 INQUIRY INTO THE HISTORY OF OPINION 
 
 so-called Maya of creation." 1 And again, " A Hindu speak- 
 ing of himself, spoke also, though unconsciously, of the soul 
 of the universe, and to know himself was to him to know hoth 
 his own self and the Universal Self, or to know himself in 
 the Divine Self. The Sanscrit ' atmanam atmana pasya ' — see 
 (thy) self by (thy) self — had a deeper signification than the 
 Greek yv&Ot o-tavrov, because it has not only a moral, but also 
 a metaphysical meaning." 2 I should scarcely be disposed to 
 say that the Greek yv50i a-eavrbv was destitute of metaphysical 
 significance even at the first, and ultimately it was discovered 
 to have no lack of it. But even seen exclusively in its moral 
 aspect, the recurrence of such a maxim, semper ubique, et ab 
 omnibus, would alone go far to establish our present thesis. 
 Of the fact that it is neither a Greek nor a Sanscrit, but a 
 human maxim, we have a striking indication in its existence 
 in China. 3 And here is a dialogue to the same effect between 
 a husband and a wife. 
 
 Wife. — " What my Lord knoweth (of immortality) may he 
 tell that to me." 
 
 Husband. — " Thou who art truly dear to me, thou speakest 
 dear words. Sit down, I will explain it to thee, and listen 
 well to what I say." And he said, " A husband is loved, not 
 because you love the husband, but because you love (in him) 
 the Divine Spirit. A wife is loved, not because we love the 
 wife, but because we love (in her) the Divine Spirit. Children 
 
 1 Sanscrit Lit. , p. 19. See also some interesting passages from the Bhagavad 
 GltS, quoted in the Introduction to Dr Muir's Metrical Translations from San- 
 scrit Writers, p. xvi, &c. 
 
 2 Pp. 21, 22. s Bunsen, vol. i. p. 208. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 99 
 
 are loved, not because we love the children, but because we 
 love the Divine Spirit in them." 1 
 
 " It was surely," says Miiller, " the logical result of such 
 a creed, that the Hindus should recognize law and virtue, as 
 we. see in their sacred poetry, as well as in their codes of 
 law." 2 
 
 A very interesting indication of the Hindu conception of 
 humanity, to which sufficient importance seems scarcely to 
 have been attached, is furnished by a single word, — the name 
 given to the author of, or, more correctly speaking, the source 
 assigned to, their most renowned law-book. Manu, we are 
 now told by all the authorities, does not mean a man, but 
 Man in the abstract. The "laws of Manu," consequently, 
 do not profess to be a code or system of law revealed to a 
 particular man, like the laws of Moses or Mahomet, but bear 
 on the face of them to be the laws of mankind, or, in other 
 words, the laws which man's nature teaches him. 
 
 Sir William Jones, in the preface to his translation of the 
 laws of Manu, identifies Manu with Adam. Subsequent in- 
 vestigations do not seem to indicate any linguistic affinity 
 between the epithets ; but the idea of an earth-born son of 
 God was certainly common to them, and St Paul carries out 
 the same conception when he speaks of Christ as the " second 
 man" 3 and "the last Adam." 4 
 
 In his Sanskrit Texts, 5 and in a paper which he contri- 
 buted to the Journal of the Royal Asiatic Society in 1862, 
 
 1 Sanscrit Lit, p. 23. 2 lb. p. 26. 3 Rom. v. 
 
 4 1 Cor. xv. 5 Vol. i. p. 161, 2d edition. 
 
100 INQUIRY INTO THE HISTORY OF OPINION 
 
 p. 406, Dr Muir has abundantly shown that the Aryan 
 Indians, if not the whole Aryan race, regarded Manu at once 
 as their earthly progenitor, and as the link by which their 
 own nature and the Divine nature were united. That the 
 use of the word, in the sense thus attached to it, was not 
 confined to India, but extended, at all events, to the branches 
 of the Aryan family to which we ourselves belong, is proved 
 by the statement of Tacitus, that the ancient Germans wor- 
 shipped Mannus, the son of Tuisco, their primary divinity, as 
 the human founder of their race. 
 
 "It has been remarked," says Dr Muir, "by various authors 
 (as Kuhn, Zeitschrift, iv. 94 f.), that in analogy with Manu, 
 or Manush, as the father of mankind, or of the Aryyas, Ger- 
 man mythology recognizes Mannus as the ancestor of the 
 Teutons. Tacitus says, 1 ' Celebrant carminibus antiquis Tuis- 
 conem deuni terra editum, et filium Mannum, originem gentis 
 conditoresque. Manno tres filios adsignant, &c.' " 
 
 The English " man " and the German " Mann," appear also 
 to be akin to the word manu ; and the German " Mensch " 
 presents a close resemblance to "Manush." 2 
 
 The subject seems to merit, if it has not already received, 
 further investigation at the hands of the learned. 
 
 In carrying with them the word, the Teutonic settlers in 
 our own country did not fail to carry with them the tradition 
 which it indicated to their ancestors. A very curious instance 
 of this occurs in one of the earliest of our vernacular poets. 
 It has been remarked by Dean Milman that the author of 
 Piers Ploughman, in the original form of the poem as it 
 
 1 Germania, 2. 2 Journal of the Asiatic Society, ut sup., p. 430. 
 
WITH REFEKENCE TO HUMAN AUTONOMY. 101 
 
 appears in text A, represents Piers as "merely the highest 
 type of the honest small farmer, whose practical justice and 
 Christianity were so approved by Truth (who is the same with 
 God the Father), that he is intrusted with a Bull of Pardon 
 of -more value than even the Pope's." At this stage of his 
 development, Piers, it would seem, was little more than the 
 John Bull, the typical honest man of our own day. " But 
 towards the conclusion of the B text (or later version) the 
 poet strikes a higher note, and makes him the type of human 
 nature in its highest form of excellence — the human flesh 
 within whom dwelt the divine soul of Christ our Saviour. 
 By a sort of parody on the text in 1 Cor. x. 4, he asserts 
 that Petrus est Christus, that Piers is Christ, and he likens 
 the Saviour to a champion who fights in Piers' armour — that 
 is to say, in human flesh, hwmana natura." 1 Piers, in short, 
 was Manu, the ideal man, and, in virtue of the divine nature 
 present in his manhood, the Christ of the generation in which 
 he appeared. 
 
 There is scarcely a variety of scepticism, or of speculative 
 infidelity, known to the modern world which has not its proto- 
 type amongst the conflicting systems which the subtle intellect 
 of Hindostan ultimately developed. There, as here, thought 
 has dashed itself in its pride .against the insoluble problems 
 of God's government, and sunk in despair. 2 But there too, 
 as here, controversy has at any rate taught the lesson that, 
 whilst error is multiform and evanescent, truth, even when 
 
 1 Skeat's Piers Ploughman, Introd., p. xxiv. 
 
 8 Of this assertion, those who do not wish to go any farther, will find abun- 
 dant proof in the Metrical Translations already so often referred to — e.g., in 
 Jabali's Sophistical Discourse and llama's Reply, p. 14. 
 
102 INQUIRY INTO THE HISTORY OF OPINION 
 
 incomplete, is one and abiding ; and the only systems which 
 have never quitted the field have been those which sought the 
 image of a perfect God, and the traces of an absolute law, in 
 the primary characteristics and normal impulses of man. In 
 our own age, when pessimistic leanings are so prevalent, it is 
 well to remember that the optimism of Manu with reference 
 to the present life, 1 all along preponderated. Even the pop- 
 ular religion continued to bear traces of what may be called 
 the orthodoxy of the speculative systems. When, during the 
 epic period, Brahma gradually disappears, and Vishnu and 
 Siva come into the foreground, the first place is assigned 
 to Vishnu, the good principle ; and in the conception of the 
 Trimurti, the Hindu Trinity, both Brahma and Vishnu take 
 precedence of Siva. 
 
 3d, The Western Asiatic Branch. — The other typical re- 
 ligion of the Aryan nations in Asia was that of the Iranian 
 or Persian branch, and it too, as we have already seen, 2 
 was not only monotheistic but optimist, — the character of 
 the creature corresponding to that of the Creator. This 
 statement is one about which oriental scholars are now 
 so entirely agreed, and which is so generally accepted, 3 
 that I need scarcely occupy your time in substantiating it 
 by further references. The most marked characteristic of 
 the creed of Persia is, that here, for the first time, we find 
 these fundamentally human dogmas separated from mere 
 nature - worship, and exhibiting themselves as individual 
 
 1 P. 34. 2 Ante, p. 61, 
 
 3 Neaudcr, Gh. His., vol. ii. p. 6. Hegel's Philos. of History, p. 186, Bonn's 
 translations. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 103 
 
 ethical beliefs. Baron Bunsen has said of Zoroaster that 
 he is the Aryan Abraham and Moses in one; and if the 
 Veda he older than the Zendavesta, it is equally certain that 
 Zoroaster preceded any other known prophet of heathendom 
 by a vast space of time. Before the time of Buddha we 
 scarcely hear of any hero -teacher in India, of outstanding 
 magnitude^ with the partial exception, perhaps, of the author 
 or authors of the Laws of Mann ; and between Zoroaster and 
 Buddha there are about 2500 years. The faith of Zoroaster 
 is revealed to us in a hymn which Bunsen 1 gives in 
 translation, and on which Count Gobineau 2 has commented. 
 From this document, the authenticity of which does not 
 seem to be contested, we learn that Zoroaster believed in 
 one primordial divinity, " one all- wise and living God," with 
 whom the spirit, " the firstling of creation dwells," whom he 
 called Ahura-Mazda, and whom Gobineau, and Muir though 
 less confidently, 3 identify with the Varouna of the Veda and 
 the Ouranos of the Greeks. But in my view of the matter, 
 as I have already said, absolute dualism — i.e., two self-created 
 and independent existences — is an impossible creed. 4 The only 
 point to which I attach importance is the character ascribed 
 to the divinity to whom precedence is granted. On this point 
 the name itself is instructive, for in the old language of Bactra, 
 we are told Ahura means the spirit, and Mazda the wise, the 
 wisdom-giving; 5 and the hymn in question is as explicit as 
 is conceivable in such a composition. " The pious hearts dost 
 thou give to inherit the earth, and dost punish those who are 
 
 1 Vol. i. p. 206. - Vol. i. p. 40. 3 Texts, vol. v. p. 72. 
 
 4 Ante, p. 8i et se%. 5 Bunsen, ut svjp.,, 259. 
 
104 INQUIRY INTO THE HISTORY OF OPINION 
 
 void of truth and false to their promise." 1 It is in the same 
 strain that the disciples of Zoroaster sing in the Gathas — 
 "I would fain inquire of thee, O thou living God; open 
 unto me the truth ! How arose the hest present life " 
 (their world) ? " By what means are the present things to 
 he supported 1 Thou Spirit, All - Holy, Mazda, art the 
 sanctuary of all truth ! " And the hymn concludes thus : 
 " What I would ask thee, tell me right, thou living God ! 
 Who made the gentle light and warmth ? Who made wak- 
 ing and sleeping ? Who hath made day and night to remind 
 the wise man continually of his duties ? " A man who could 
 take such a view as this of God and His kingdom on earth, 
 was not very far from the kingdom of heaven. 
 
 4th, Non-Aryan and Mixed Races of Asia. — What has been 
 called the Devil-worship of the hill-tribes, or non-Aryan and 
 inferior races of India, the " black skins," 2 like the character- 
 istics of savages generally, 3 in no degree invalidates the proof 
 of the fundamental beliefs of humanity derived from the senti- 
 ments of the higher races. It does not prove the absence of 
 such a sentiment even in these races. There is no stronger 
 proof of the consciousness that right is right, than the con- 
 sciousness that wrong is wrong ; and the deprecatory rites of 
 the poor Khond or Santal indicate a mistaken theology rather 
 than a mistaken anthropology. His recognition of himself as 
 a sinner is no error at all ; and his conception of God only as 
 an avenger of sin, though a deplorable error, is not quite so 
 conclusive a proof even against his theology as is sometimes 
 imagined. No opponent of Christianity ever maintained that 
 
 1 Bunsen, ut sup., 280. = Ante, p. 73. a Ante, p. 51. 
 
WITH KEFEKENCE TO HUMAN AUTONOMY. 105 
 
 it was a worship of the Devil; and yet there have been 
 Christian doctrines, if not Christian practices, which were 
 simply diabolical. 1 On such doctrines it is true that no 
 rational system either of theology or jurisprudence can be 
 directly built ; but, indirectly, they indicate the presence of 
 the very sentiments which they professedly exclude, and it 
 is in this respect that their superiority to mere want of 
 thought and feeling becomes apparent. On the ground that 
 it is as a being who prays and worships that man is distin- 
 guishable from the brutes, something may perhaps be said even 
 for the religious observances of the ancient Mexicans, and for 
 the " grand custom " of Dahomey. Whether beings that pray 
 and worship after such fashions be human beings, in the full 
 sense of the word, is a question which I shall leave those who 
 contend for the equality of races to answer. It is probable 
 that our knowledge of their real sentiments is very imperfect, 
 and all that I shall say is, that though I do not recognize 
 them as breaking that chain of unity, and consequently of 
 uniform belief, which binds humanity together, I do not ac- 
 cept them as other than very imperfect interpreters and 
 illustrators of the fundamental beliefs and normal impulses 
 of humanity. 
 
 5th, Buddhism. — A much more serious difficulty than is 
 presented by Fetichism, or the lower forms of idolatry, 
 whether in India or elsewhere, arises out of the character- 
 istics usually ascribed to Buddhism. Buddhism is said to 
 be the prevailing religion of the world. Its adherents are 
 estimated at from 300,000,000 to 400,000,000, and it is 
 
 1 See Lecky, Hist, of Europ. Morals, passim. ] 
 
106 INQUIRY INTO THE HISTORY OF OPINION 
 
 not likely that they fall much, if at all, below a third of the 
 human race. 1 It had its rise, too, amongst the Aryans of 
 India ; and though its adherents at the present day for the 
 most part belong to other races, they are races which exhibit 
 moral and intellectual qualities entitling them to rank im- 
 mediately after, if not on a par with, men of Indo-Germanic 
 blood. 
 
 Now, though we may get over the difficulty of their so- 
 called atheism on the ground already stated, 2 it does at first 
 seem very bewildering that such a population as this should 
 believe that existence is an evil, that human life on the 
 whole is miserable, a curse and not a blessing, and that this 
 misery is not a mere taint in it, the removal of which would 
 make it happy, but its very essence. "How," we exclaim, 
 " can the law of such a nature as this guide us either to 
 perfection or wellbeing ? " and we seem driven, with Gua- 
 tama, to sigh for escape from it, and to accept Nirvana in 
 this, its common acceptation, as the highest object of desire. 
 But " there is," as Bunsen 3 has said, " no more utter denial 
 of a divine order of the world, or of the science of its laws, 
 than the assumption that existence is nothing but a curse, 
 and that the aim of human effort is its own annihilation, and 
 that of its motive-spring." If such a creed were really held 
 by a third of the human race, and if from the other two- 
 thirds we deduct those who have no appreciable creed at all, 
 
 1 Schlagintweit (pp. 12-15) makes their numbers exceed those of Christians 
 by 5,000,000; whilst Max Mtiller (Chips, vol. i. p. 215) gives the numerical 
 superiority to Christians. Bunsen's estimate is 300,000,000. 
 
 2 Ante, pp. 47, 65, 85 et seq. 
 
 3 Ut sup., vol. i. p. 245. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 107 
 
 it would really become a very doubtful point whether man be 
 an autonomous being. 
 
 At first we feel disposed to reject the statement as utterly 
 erroneous, on the ground of its inconsistency, not only with 
 our own subjective experience, but also with the character 
 which is ascribed, even by those by whom it is made, to 
 the great religious and moral reformer whose name it bears. 
 By what, if we may use the word without irreverence, can be 
 best described as a " fluke," Buddha has been canonized, and 
 by the name of St Josaphat, is now a saint both of the 
 Eastern and of the Western Church. 1 But it is with his 
 moral character, which even canonization does not always 
 guarantee, that we are chiefly concerned; and that in his 
 life and doctrine, as regarded secular duty at all events, 
 Buddha approached more nearly to the Divine Author of 
 our own religion than any other historical character, is a 
 matter of general agreement. There is scarcely a Christian 
 virtue which he did not preach and practise. But if the 
 whole object of his life had been its extinction, it must 
 surely have been difficult, as Bunsen has said, 2 " to escape 
 the conclusion that suicide, or absolute recklessness, would 
 lead more surely to that end than an arduous and painful 
 process of sanctification to be reached by a life of incessant 
 self-denial and privation." 
 
 The highest authority for this account of Nirvana is 
 Eugene Burnouf, whose early death was an irreparable loss 
 to science ; but it is and has long been the common opinion. 3 
 
 1 Chips, vol. iv. p. 188. 2 P. 367. 
 
 3 Barthelemy St Hilaire, ut sup., Dr Goldstiicker (?) in Chambers's Encyc, &c. 
 
108 INQUIRY INTO THE HISTORY OF OPINION 
 
 Max Muller adopts a middle course. He holds Nirvana to 
 have meant annihilation, " blowing out," and not absorption ; 
 but he declines to express any positive opinion whether such 
 was the view of Buddha himself, or only of his disciples. 1 
 Bunsen adopts the opposite view, and, as concerns Buddha 
 himself, or any expressions of opinion which, with proba- 
 bility, can be traced to him, I think he has shown 
 (chiefly from the Dhammapada ^ — Footprints of the Law, or, 
 Path of Virtue, the oldest of the Pali books, published since 
 Burnouf s death) that his conception of Nirwana, or Nirvana, 
 was indeed annihilation, and annihilation of self, — but of self 
 not in the sense of being, but of passion. It was the conquest, 
 in short, of the lower and exceptional by the higher and 
 normal, nature of man, — absorption, not of separate existence, 
 but of separate will, — precisely what all saints and sages 
 have aimed at, and generally by means very similar to those 
 which Buddha recommended. 
 
 "He who should conquer in battle ten times a hundred 
 thousand," says the Dhammapada, " were indeed a hero ; but 
 truly a greater hero is he who has but once conquered him- 
 self." Who is not reminded of Solomon's proverb : " He that 
 is slow to anger is better than the mighty ; and he that ruleth 
 his spirit than he that taketh a city " ? 3 
 
 " He who lives in lust for a hundred years, ever unquiet in his 
 heart ; much better a single day of a temperate, thoughtful life." 
 
 " The best prayer is patience, ever gentle ; " 
 
 1 Chips, vol. i. p. 284. 
 
 2 A complete translation of the Dhammapada was published by Max Miiller in 
 1870, as an introduction to Captain Rogers's Translation of the Parables of B%d- 
 dhaghosha. 3 Chap. xvi. 32. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 109 
 
 " To Buddhas, Nirvana is the name of that which is alone 
 good." 
 
 Immortality is frequently mentioned — a fact which in itself 
 seems a conclusive answer to the charge of absolute anni- 
 hilation. 
 
 " He who lives a hundred years, and does not behold the 
 path to immortality ; " 
 
 " Much better a single day of him who desires that path." 
 
 " He who strives not to obtain aught for himself, who 
 never doubts after he has perceived the truth, he who has 
 come to know immortality, him alone do I call a Brahmana." 
 
 " He who is free from disquietude, whose heart and longing 
 are on the other shore of the two worlds" &c. 
 
 " The evil-doer mourns in this world, and he mourns in the 
 next ; he mourns in both." 
 
 But the most curious passage I have found is this : " Some 
 people are born again ; evil-doers go to hell ; righteous people 
 go to heaven ; those who are free from worldly desires enter 
 Mrv&na." 1 Heaven is often spoken of, but the relation in 
 which it stands to Nirvana is not very obvious, and the prefer- 
 ence given to holiness in the following passage is very remark- 
 able : " Better than sovereignty over the earth, better than 
 going to heaven, better than lordship over all worlds, is the 
 reward of the first step in holiness." Nor is any undue value 
 attached to ascetic observances. " Not nakedness, not platted 
 (matted ?) hair, not dirt, not fasting or lying on the earth, not 
 rubbing with dust, not sitting motionless, can purify a mortal 
 who has not overcome desires." 
 
 1 BuddhagJwsha, ut sup., p. xciv. 
 
110 INQUIRY INTO THE HISTORY OF OPINION 
 
 Patience and resignation are the burthen of the song. 
 
 " He who when assailed does not resist, but speaks mildly 
 to his tormentors " (turns to them the other cheek ?) ; 
 
 " He who grudges nothing to him who grudges him all, him 
 alone I call a Brahmana." 
 
 " He who puts from him desire and hatred, pride and hypo- 
 crisy," 
 
 " As a grain that flies from the point of an arrow ; him do 
 I call a Brahmana." 
 
 " Hatred does not cease by hatred at any time : hatred 
 ceases by love ; this is an old rule." 
 
 If to passages like these we add the account which Buddha 
 gave of his own state three months before his death, 1 we 
 shall have little hesitation as to his conception of the object 
 of life. 
 
 " I have attained the highest wisdom ; I am without wishes ; 
 I desire nothing. I am stripped of selfishness, personal feeling, 
 pride, obstinacy, enmity. Till now I have borne hatred, been 
 passionate, erring, in bondage, a slave to the conditions of birth, 
 of age, of sickness, of sorrow, of pain, of suffering, of care, of 
 misfortune. May many thousands forsake their homes, live 
 as saints, and after they have devoted their lives to meditation 
 and renounced all pleasure, be born again to a portion in the 
 worlds of Brahma, and fill those worlds in countless hosts ! " 2 
 
 This, then, was what was meant by becoming a Buddha, — 
 
 this was Nirvana as Buddha himself conceived it. But the 
 
 question for us here is not what an exceptional person like 
 
 Buddha thought or taught, but what his 300,000,000 fol- 
 
 1 Bunsen, ut sup. , vol. i. p. 360. 2 P. 360. 
 
WITH REFEKENCE TO HUMAN AUTONOMY. Ill 
 
 lowers found it possible to believe. Did they accept Nirvana 
 as it was explained by Buddha, or as it has been explained by 
 M. Burnouf, M. Barthelemy St Hilaire, and others ? Now 
 the true answer to this, as to many questions with reference 
 to popular conceptions of doctrine, whether religious or politi- 
 cal, seems to be, that the original view was not lost, but that 
 it was confused, exaggerated, and corrupted. The ordinary 
 man does not differ from the extraordinary man in kind, but 
 only in degree. The facts of nature on the conscious recog- 
 nition of which the creed of the latter rests, and as a neces- 
 sary consequence the truths which that creed embodies, are 
 imperfectly apprehended by the former ; and then the errors 
 to which these partial apprehensions give rise are worked out 
 into their logical results by the one-sided tendencies of the 
 inferior mind. The truth which Buddha had taught, that 
 bliss and virtue being coincident, the former is attainable only 
 by the self-mortification — the death of the lower and excep- 
 tional self — demanded by the latter, was too wide a concep- 
 tion for the pedants who professed to be his interpreters ; and 
 yet there were natural instincts which forbade its absolute 
 rejection. It was accepted, accordingly, in the Abidhedharma, 
 or metaphysical portion of the canon, not in its integrity, as a 
 rational " belief, but partially, as an incomprehensible dogma, 
 which, when applied to practice, generated two kinds of error. 
 1st, The exceptional and contradictory elements of individual 
 nature, in virtue of which it becomes self-destructive, being 
 mistaken for, or confounded with, the fundamental nature of 
 humanity itself, the condemnation which Buddha had pro- 
 nounced on the -former was applied to the latter; and the 
 
112 INQUIRY INTO THE HISTORY OF OPINION 
 
 followers of Buddha * became ascetics, just as those of Socrates 
 and of Christ did after them. 2d, Self-abnegation, which 
 Buddha intended as a means, was accepted as an end ; and 
 men mortified themselves not in order that they might live, 
 but lived in order that they might mortify themselves. Death 
 thus became the object of life. Viewed in this light, Nirvana 
 — self-annihilation — in place of being an exceptional and 
 unintelligible phenomenon, becomes merely an illustration of 
 what I shall have frequent occasion to dwell upon hereafter 
 as the commonest of all human errors — viz., a wholly false 
 conclusion logically deduced from premises which are only a 
 partial misunderstanding of the truth. 
 
 It is quite true, as Max Miiller has said, 2 that such 
 could never have been the creed of millions of men — that 
 however it might have been promulgated by pedantic logi- 
 cians, the great human heart must always have rejected it. 
 In the deeper' sense of faith, or in the conscious sense of 
 reason, I believe it to have been as impossible a creed for 
 one man as for 300,000,000. Nobody ever really believed 
 it. On the other hand, we. must remember with what 
 prodigious tenacity the masses can cling to the errors of 
 their teachers, even when these errors conflict with the 
 feelings of nature. For many ages, in Christian "Europe, 
 whilst men daily thanked God for His gifts, scarcely any 
 
 1 That an ascetic character was ascribed to Buddha himself is plain from the 
 custom affixing the word Muni, solitary (Greek fiovos, alone), to his family name, 
 Sakya, and prefixing Sramana, ascetic, to Guatama — the epithet of the ' ' Solar " 
 race from which the family was sprung. Chambers s Encyclqp. , v. Buddha. 
 
 2 Chips, p. 285. The subject is more fully discussed in the Introduction to 
 Buddhaghosha, p. xl et seg. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 113 
 
 one doubted the merit of rejecting them ; and there is 
 reason to believe that more than the half of Christendom, 
 at this moment, holds, with equal tenacity, two views of the 
 Divine nature which directly contradict each other. God is 
 believed to be perfectly good and absolutely powerful; and 
 yet He is represented not only as incapable of vanquishing 
 sin in others, but as Himself committing what He has taught 
 human beings to regard as sin. The explanation of the 
 phenomenon consists in the rash acceptance of irreconcilable 
 premises, from which there is no longer any means of escape. 
 It has been the same with our politics as with our religion. 
 Buddha, as we shall see, taught that all men are equal before 
 the law — relatively equal, that is, not absolutely. In this 
 respect his teaching was in accordance with that of nature, 
 as interpreted by the daily experience and fundamental con- 
 sciousness of humanity in all ages ; and over a large portion 
 of the East it seems to have been accepted. But, in Europe 
 and America, for now more than a century, theoretical 
 shallowness and dishonesty, coupled with popular passion and 
 stupidity, have constantly transformed the dogma into an asser- 
 tion of absolute equality; and in this shape it has yielded 
 logical results the very reverse of those which would have 
 followed from the original maxim — viz., anarchy and des- 
 potism, in place of liberty and order. Now no honest man, 
 in his sober senses, knowingly accepts anarchy or despotism 
 as the object of his life as a citizen ; and yet there is too 
 much reason to believe that a creed which logically offers 
 no other alternative is, in our own day, the professed creed 
 of a large proportion of civilized mankind ! 
 
114 INQUIRY INTO THE HISTORY OP OPINION 
 
 Without, then, abandoning our belief in the fundamental 
 agreement of humanity with reference to the object of its 
 existence, we may assume, in accordance with what appears 
 to be the best evidence, that, to the followers of Buddha 
 generally, though not to himself, Nirwana or Nirvana meant, 
 and means, not perhaps absolute annihilation, but at all events 
 escape from, and the impossibility of return to, existence in 
 the sense of activity. Thus understood, it differs very widely 
 from tbe ideal result — the summum honum — of European life 
 either here or hereafter. It is the very opposite of the old 
 Greek conception of what man was to strive after in the 
 present life ; and putting it at the highest, it embraces only 
 the negative side of the Christian conception of the life to 
 come ; though, if we reflect how difficult it is, when oriental 
 imagery is laid aside, to ascribe to Heaven, when represented 
 as a life from which hope is shut out by fruition, any positive 
 element beyond the ecstasy of divine contemplation — which 
 Nirwana probably did not exclude — we may hesitate in pro- 
 nouncing the antithesis here to be quite so absolute. Nor is 
 the longing for the negation of passion so exceptional a sen- 
 timent on the Buddhist's part. Have we not the nepenthes 
 {vrprevOri's) of Homeric legend, 1 and the apathy (cbrafleia) of the 
 Stoics, to say nothing of the various sects of Christian quietists ? 
 We must bear in mind, moreover, that the conception which 
 man, either as an individual or a race, forms of the objects of 
 life, or the consequences of death, is very much an affair of 
 temperament, and of climate, which is one great determiner 
 of temperament. So far Montesquieu was right ; and there 
 1 Bunsen, vol. i. p. 340. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 115 
 
 was truth in Pascal's saying, that good and evil, truth and 
 falsehood, differ with a few degrees of latitude. Just as it 
 is in the highest races, so it is in the most genial climates 
 alone that we must look for normal human thoughts and 
 feelings. The enervating and joyless monotony of a tropical 
 sky takes away the power of endurance and the love of life ; 
 just as the gloomy and blustering north inures to suffering 
 and hardens the character. When men of Teutonic or Celtic 
 blood come to a region where the grape ripens, the Protestant 
 hell of the north finds, for the fortunate majority of mankind, 
 a partial substitute in the milder purgatory of the Eoman 
 Catholic. Even in heathen times, it was only in very 
 exceptional social circumstances that Europeans ever were 
 disposed, in any numbers, to lay claim, prematurely, to 
 " nature's privilege to die." In a precisely similar manner, 
 it would seem that when the man of the south comes under 
 the influence of the blessed alternations of summer and winter, 
 seed-time and harvest, presently his longing for the cessation 
 of positive existence disappears. Schlagintweit tells us 1 that, 
 in Tibet, Klrw&na has become a mythical doctrine peculiar 
 to the priesthood, and that " in general the Tibetans of the 
 present day do not properly distinguish between Nirwana and 
 Sukhavati," the latter being a heaven of positive happiness. 2 
 
 But whether or not Buddhist conceptions of the consumma- 
 tion to be attained, either in time or in eternity, differ from 
 our own to the extent that so many seem anxious to believe, 
 
 1 P. 99. 
 
 2 Mr Alabaster's account of the Siamese is to the same effect. — The Wheel of 
 the Law, xxxviii. 
 
116 INQUIRY INTO THE HISTORY OF OPINION 
 
 what is undeniable, and far more important for our purpose, 
 is, that both the law — "the path," as they happily charac- 
 terize it — by which the object of life may be reached, and 
 the method by which this path is to be discovered, remain 
 the same. It was part and parcel of the creed of this vast 
 section of mankind, that Buddha — who was not a god, but 
 the ideal man — in realizing what was the legitimate object of 
 existence, as he conceived it,; had been guided by a law which 
 his own nature revealed to him, and which the nature of his 
 followers would reveal to them. The Buddhist lays claim to 
 no external revelation whatever. His system is essentially 
 subjective -, 1 the law in which he believes is " within him;" and 
 his belief, moreover, is that he can find it himself — for every 
 Buddhist is his own priest. But what, then, is the character 
 of this law which the nature of the Buddhist reveals to him 
 for a purpose which is said to be so strange to us ? To our 
 relief and astonishment we find that it is the very same law 
 which our nature reveals to us. The Buddhist is to seek an- 
 nihilation, as we seek life eternal, — by abstaining from murder, 
 theft, adultery, lying, and drunkenness ; by obeying his parents, 
 revering the aged, confessing his sins, and saying his pTayers 
 (to whom ?), 2 and being charitable to all men. Characteristi- 
 cally enough, the duties of abstinence, or, as they are called, 
 "the precepts of aversion," take precedence of the precepts 
 of action, to which Christianity gives so prominent a place. 3 
 
 1 Max Muller, Sanscrit Lit. , p. 32. Alabaster, ut sup. , xviii. 
 
 2 The existence of the "praying wheel," so much dwelt upon by those whose 
 effort is to depreciate the religion of the Buddhist, is alone sufficient to refute 
 their" allegations with reference to the Buddhist creed. 
 
 3 Ecce Homo, p. 175. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 117 
 
 But the precepts, in so far. as nature can reveal them, are 
 identical, and if the Buddhist has no theology, it is plain 
 that ethics and jurisprudence are not shut out from him by 
 his creed. In this world, at all events, he believes in God. 
 The ground, too, on which Buddhism arose, as a protest 
 against Brahmanism, is instructive, as illustrating the soli- 
 darity of heathen and Christian ethics. I refer to the 
 substantial identity between a movement which was inde- 
 pendent of Christianity, and which we must therefore ascribe 
 to what we are in the habit, very erroneously probably, of 
 designating " unassisted nature," and the tendencies of modern 
 European life which we trace to Christian influences. Bud- 
 dhism was a protest against the exclusiveness of caste — a pro- 
 clamation of les carri&res ouvertes, of equality before the law, of 
 universal charity, and, in a word, of the positive jurisprudence- 
 of the nineteenth century. In this respect M. Barthelemy St 
 Hilaire's recognition of its merits are so ample, as to form a 
 strange contrast with what I cannot but regard as his preju- 
 dice against it as a theological doctrine. The phenomenon 
 of a religious system drifting away from the ethics of nature, . 
 and inculcating doctrines which the human heart rejects, is 
 not unknown, indeed, even to Christian times. But it is 
 difficult to imagine that an ethical system which preaches 
 universal charity, which seeks " to cure not the society of 
 India but the human race," 1 can have come out of, or co- 
 existed with, a religious system which inculcates pure selfish- 
 ness. 2 Either the one or the other was pretty sure to have 
 given way ; and that the ethical system was not only at the 
 1 Max Miiller, Sanscrit Lit., p. 145. 2 lb., p. 150. 
 
118 INQUIRY INTO THE HISTORY OF OPINION 
 
 root of the religious system in the first instance, but that it 
 continued to hold its own, seems to be matter of general 
 admission. 
 
 It may be questioned whether the enthusiasm of Buddha's 
 French expositors for his ethics and politics, as contrasted 
 _ with his theology, would have been quite so ardent if they had 
 reflected on the fact that his conception of " fraternity " by no 
 means involved the one-sided notion of the human relations 
 to which they cling with so much tenacity. In preaching 
 brotherhood, Buddha did not forget that it is to Fatherhood 
 that precedence is due, and consequently "there is no trace 
 of social levelling, or democratic communism, in any of his 
 sermons." * On the contrary, we find in the Dhammapada — 
 " He who cherishes reverence in his heart, and ever honours 
 his superiors," 
 
 " To him shall be ever added these four gifts : Long life, 
 beauty, joy, power." 2 
 
 1 Chips, vol. i. p. 343. Alabaster, xxxvi. 
 
 a Bunsen, ut sup., vol. i. 347. There is one distinction between European ex- 
 clusiveness, even in its sharpest and hardest form, and the system of castes in 
 India, which an Indian friend pointed out to me, and which it is important to 
 bear in mind. In Europe the upward passage from class to class alone is blocked, 
 whereas in the East the passage is blocked both ways. In old France, e.g., 
 the noblesse was shut against the bourgeoisie, but not the bourgeoisie against the 
 noblesse. The valves, so to speak, opened downwards ; and in the modified 
 form in which exclusiveness has existed in this country, it has always acted in the 
 same manner. A millionaire who was deficient in culture or refinement might 
 have some difficulty in finding his way into the aristocracy, but an aristocrat who 
 had lost his fortune, or made a marriage below his class, if there was no other 
 objection to him, would be well enough received by the class to which he had 
 chosen to ally himself. But in the East, if a man quits the caste to which he 
 belongs, he quits all caste — he falls out of caste — i.e., out of the sphere of Hindu 
 society altogether. He becomes an outcast — a pariah ; and it is this circumstance 
 more than any other that has opposed the spread of Christianity. The ideal of 
 
WITH REFERENCE TO HUMAN AUTONOMY. 119 
 
 (c) The Turanian Races. — In so far as the anthropological 
 beliefs of the partially civilized Turanian races have been 
 investigated, apart from their religious dogmas, they do not 
 differ substantially from those of the Aryan race. On the 
 principle of selecting the best witnesses, the whole of the vast 
 Turanian family might perhaps be passed over in silence, in 
 so slight a sketch as we are here attempting. The character- 
 istic of the religions of the Mongolian tribes of Asia — to which 
 the Turks belong — like that of the lower, less developed, and 
 retrograde races generally, is enthusiasm. 1 Their light being 
 supposed to proceed entirely from external sources, the link 
 which connects them with the divine is not reason, but senti- 
 ment, which rises into ecstasy in proportion to the extent to 
 which reason is silenced by sleep, by disease, by exhaustion, 
 intoxication, and the like. This tendency diminishes, of course, 
 as the race rises in importance, till we reach its highest mani- 
 festation in the Magyars, who exhibit a sanity of character to 
 which the Celtic branch of the Aryan race can scarcely lay 
 claim, and whose ancient liberties sufficiently attest their sense 
 of human autonomy. But it is to their connection, though 
 not, as it seems, their identity, with the Chinese, that these 
 races owe their chief interest, 
 
 social organization is open classification — a classification in which the individual 
 shall be free either to rise or to fall — and to this we certainly come nearer in this 
 country than anywhere else. Even in the case of our hereditary nobility, it is 
 in the case of the eldest son only that we endeavour to prevent a change of class ; 
 and now that intermarriage between the Royal family and subjects has been 
 sanctioned, there is nothing to prevent a grandson of the Queen from sinking to 
 any position to which his worthlessness or incapacity may degrade him, except, 
 indeed, the contingency of his succeeding to the crown, or to any intermediate 
 honour which might chance to open to him. 
 1 lb., vol. i. p. 237. 
 
120 INQUIRY INTO THE HISTORY OF OPINION 
 
 The Chinese. — The earliest form of anthropological belief ex- 
 hibited by the Chinese, and that to which they have constantly 
 adhered during the whole course of their long national life, 
 embraces a direct recognition of human autonomy. "Whether 
 or not Baron Bunsen be correct in asserting that " the actual 
 aboriginal tribe of the primeval home of man has settled itself 
 in the extreme east of Asia, and maintained itself there up to 
 the present day," and that the language of China " forms an 
 irrefragable testimony to the autochthonic character of the 
 unique"" position which it occupies," there can, I imagine, be no 
 doubt of the strictly national character of two out of the three 
 religions which exist, side by side, in that strange country, or 
 of the great antiquity of that which forms, at the present day, 
 the basis of the civil life of the State. Confucius was born in 
 551 B.C., and died in 479 B.C. 1 But "Confucius is not the 
 religious prophet of Ancient China. The Sacked Books (King) 
 are his work in so far as he saved them from perishing by 
 making this collection, but they are not his composition. 
 They are now fragments remaining from a very ancient epoch, 
 and they were so, no doubt, at that time." 2 This being so, these 
 documents may probably be held to contain the earliest state- 
 ment which we possess of an anthropological creed ; and in 
 this point of view, considering the very wonderful qualities of 
 the race who held it, we owe a debt of gratitude to those who 
 have brought it under our notice. Following Bunsen, 3 then, 
 as our most convenient, and, from the vast extent of his 
 
 1 Bunsen, p. 259. 2 lb., p. 244. 
 
 3 From such further acquaintance with the subject as I have been able to make 
 through Professor Legge's translation of the Chinese Classics, I am convinced that 
 the view here presented of Chinese opinion, though slight, is not inaccurate. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 121 
 
 general as well as special learning, probably most trustworthy 
 guide, " let us listen to one or two of the utterances of these 
 Sacred Books, which bear most closely on the point which con- 
 cerns us. This is from the Shi-King. ' The opinion and judg- 
 ment of Heaven is learned (reveals itself) through the opinion 
 and judgment of our people. Heaven's approval and disap- 
 proval (is recognized) through the approval and disapproval 
 of our people. An intimate relation subsists between the 
 upper and lower world. Oh, how careful should those be 
 who govern countries I'" 1 
 
 Apropos of this remarkable specimen of antediluvian politics, 
 Bunsen relates an interesting anecdote of our own day. Gutz- 
 laff told him, he says, that " when after the peace of Nankin, 
 in 1845, the Emperor of China felt himself impelled to refuse 
 his assent to the execution of that article of the treaty by 
 which the Tartar city of Canton was to be opened to foreigners, 
 he justified his repudiation by this great maxim of the Sacred 
 Books. And 'the voice of the people is the voice of God,' 
 resounded once more through the whole empire. When the 
 Emperor's edict was published, and everywhere formed the 
 subject of discussion, it was said to Gutzlaff by patriotic 
 Chinese : ' That maxim of our Sacred Books is well known to 
 us — it is our watchword ; but this was a new thing to us, that 
 the Mandshu Emperor should publicly appeal to this sacred 
 text of the Scriptures, which testifies against himself.' " 2 By 
 what qualifications our primeval ancestors — if such they were 
 — guarded this profound but perilous maxim against the false 
 interpretations which it has received, and still receives, amongst 
 
 1 Bunsen, p. 252. 2 lb., pp. 252, 253. 
 
122 INQUIRY INTO THE HISTORY OF OPINION 
 
 ourselves, we are not informed. But it surely is a striking 
 instance of the consensus of mankind in their anthropological 
 conceptions, that a maxim which embodies so much of the 
 truth and nearly all the falsehood of modern politics, should 
 have been familiar to the ears of what there is reason to 
 believe was the oldest civilized community. There is, indeed, 
 no lore which brings home to us so forcibly the unity of man- 
 kind as that of maxims, proverbs, gnomes, and the like. We 
 find the yv&Oi creavrbv, like the golden rule, everywhere ; and 
 here is another remarkable instance of the fact that Socrates, 
 like the rest of us, had his precursors. Lao-tse was more than 
 half a century 1 older than Confucius, and 136 years older 
 than Socrates, and we are told that he was in the habit of 
 saying that the wise man is he who " knows that he knows 
 nothing ! " 2 Yet the Chinese were, and are, far from a 
 speculative people; so far from it, indeed, that those who 
 have made a study of their language tell us that " to express 
 mind, thought itself — that which predicates — it has absolutely 
 no term whatever ; " 3 and Bunsen tells us, as the result of his 
 studies, that but for this very faith in the innateness of the 
 personal element — of absolute reason — in man, its realism 
 " would have sunk down into the slime of materialism." 4 
 In a subsequent passage he thus sums up their wisdom — 
 " If we sum up the whole, we find one thought continually 
 recurring in the works of all those sages, as the root-idea of the 
 ancient system, and we may express it thus : There is a law 
 which governs the All, in nature and in man, and this One Law 
 is reasonable. Thus, indeed, it had been said by Meng-Zo, the 
 
 1 Bunsen, p. 259. 2 P. 265. ; 3 P. 256. 4 P. 255. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 123 
 
 renowned successor of Confucius, in the fourth century before 
 our era, ' He who knows his own nature, and that of all things, 
 knows what Heaven is; for Heaven is, indeed, the inward essence 
 aud the vital energy of all things.' This thought is the dowry 
 of the Chinese intellect in the general history of man; the 
 conception of a Kosmos in, if not above, the various objects, 
 which, however, attains personality only in the human mind. 
 Man's life is to be orderly, like that of nature ; the sphere of 
 this life in which the Chinese recognize something divine, is 
 that of the family ; the bond between parents and children is 
 to him the most sacred of all bonds." 1 In these two concep- 
 tions — of the dignity of the person on the one hand, and the 
 sacredness of paternal authority and filial obedience on the 
 other — we have the secret of that marvellous length of days 
 which, notwithstanding all their faults', has been granted to 
 this strange people. Had the political philosophy of our own 
 day kept a place for the second of these conceptions, and re- 
 membered "the first commandment with promise," our pro- 
 gressive realization of the other would have been effected with- 
 out those outbursts of anarchic fury which make the streets of 
 Paris periodically run with blood. 
 
 Lest it should be supposed that the view which I have 
 here presented rests on a single authority, it may be proper 
 that I should mention that to whatever extent Baron Bunsen's 
 view of the autochthonous character of the Chinese may be 
 peculiar, his opinion on the point with which we are concerned 
 is the common opinion. All are agreed that the teaching of 
 Confucius, " the Master," is the most faithful expression of the 
 
 1 Bmisen, pp. 268, 269. 
 
124 INQUIRY INTO THE HISTORY OF OPINION 
 
 national mind, and that that teaching was hased on the revela- 
 tions of our common nature. " I teach you nothing," he says, 
 " but what you might learn yourselves — viz., the observance of 
 the three fundamental laws of relation between sovereign and 
 subject, father and child, husband and wife ; and the five 
 capital virtues, — universal charity, impartial justice, conform- 
 ity to ceremonies and established usages, rectitude of heart 
 and mind, and pure sincerity." 1 
 
 To the same effect we have the testimony of Dr Legge. 2 
 " He truly said of himself that he was a transmitter and not 
 a maker. He held that the rule of life for men in all their 
 relations was to be found within themselves, and that the 
 right development of the rule was to be found in the words 
 and institutions of the ancient sages." 3 
 
 That Confucius failed to infer any species of natural 
 theology from so sound an ethical system is the statement 
 usually made, and for a criticism of which I refer you to 
 Bunsen's and Legge's pages. To the extent to which it is 
 true it shows, of course, the absence of speculative genius. 
 But it does not invalidate the assertion that, in proclaiming 
 humanity to be autonomous, his anthropological creed agreed 
 with that of the. rest of mankind in affording a sufficient basis 
 for a system of natural jurisprudence. In farther proof of 
 this assertion I shall venture on one additional quotation too 
 
 1 Chambers's Encyc, v. Confucius. 
 
 2 Lecture in Philosophical Institution of Edinburgh, Dec. 14, 1869. Dr Legge, 
 formerly of Hong-Kong, is now the Professor of Chinese in the University of 
 Oxford ; and his work on the Chinese Classics, already referred to, is the leading 
 authority on the subject. 
 
 3 Chinese Classics, vol. i. p. 59. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 125 
 
 remarkable to be omitted. It is from " the Doctrine of the 
 Mean." 1 
 
 " 1. What heaven has conferred is called THE nature ; an 
 accordance with this nature is called the path of duty ; the 
 regulation of this path is called instruction." 
 
 " 2. The path may not be left for an instant. If it could 
 be left it would not be the path. On this account the superior 
 man does not wait till he sees things to be cautious, nor till 
 he hears things to be apprehensive." 
 
 " 3. There is nothing more visible than what is secret, and 
 nothing more manifest than what is minute. Therefore the 
 superior man is watchful over himself when he is alone." 
 
 " 4. While there are no stirrings of pleasure, anger, sorrow, 
 or joy, the mind may be said to be in the state of equi- 
 librium. When those feelings have been stirred, and they 
 act in their due degree, there ensues what may be called 
 the state of harmony. This equilibrium is the great root 
 from which grow all the human actings in the world, and 
 this harmony is the universal path which they all should 
 pursue." 
 
 " 5. Let the states of equilibrium and harmony exist in per- 
 fection, and a happy order will prevail throughout heaven and 
 earth, and all things will be nourished and nourish." Further 
 on, the Master said — " The path is not far from man. When 
 men try to pursue a course which is far from the common 
 indications of consciousness, this course cannot be considered 
 the path." 2 But this is what, in one form or other, the 
 Master is saying continually — e.g., in the Analects — "Is 
 1 Chinese Classics, vol. i. p. 246. 2 P. 257. 
 
126 INQUIRY INTO THE HISTORY OF OPINION 
 
 virtue a thing remote ? I wish to he virtuous, and lo ! virtue 
 is at hand." 
 
 As our hest witnesses, however, we must return to the 
 Aryan race, and follow it into those seats in which it 
 attained the highest stage of development that mankind, 
 apart from Christian influences, so far as we know, had 
 reached. 
 
 (B) Of Classical Anthropology. — When we pass from the 
 oriental to the occidental branch of the leading family of man- 
 kind, we find that faith in God and nature still forms the 
 centre of belief and the mainspring of action. 
 
 (a) Greece. — The polytheism of Greece, as of India, was a 
 sensuous or anthropomorphic embodiment of intuitive concep- 
 tions of the divine origin and character of nature, the conscious 
 recognition of which, as a spiritual belief, has always been a 
 difficulty to the popular mind. This spiritual creed, though 
 no doubt in a very simple and imperfect form, preceded these 
 mythical symbols in point of time, 1 accompanied them as a 
 deeper undertone during the whole period of their existence, 
 
 1 "Long prior to any popular myths,'' says Kant, "there lay extant in the 
 human mind its primeval substratum of religion, the first rough development of 
 which uncultivated susceptibility did, during the earlier twilight of dawning 
 knowledge, tend merely to superstitions or hero-worships, and occasioned for their 
 behoof just those various mythical revelations ; and thus to those textures, 
 woven by the plastic energies of depictive fancy, there always has adhered some 
 unconscious trait, sufficiently indicative of the character of their supersensible 
 origin." — Theory of Religion, Semple's translation, p. 142. Plato believed in 
 the unity of the great final Cause : j^t 1 a5 SiSo tu^ 6ck (ppovovpre iavroTs kvamla 
 (rrptyeiv airov ("nor let it be said that there are two gods, of contrary senti- 
 ments, causing the universe to turn"). — Politieus, Bekker, vol. iv. p. 507. 
 And probably of far greater antiquity is the Orphic verse — Zeis Kt<pa\4, Zefcs 
 /LifVcra. Aibs y Ik vdvra t4tvkto.i. — Hermann's Orphica, p. 457. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 127 
 
 and gradually becoming clearer and more definite as humanity 
 advanced, ultimately superseded them altogether. The h ko.1 
 ■n-av of Xenophanes, 1 for example, was an anticipation of the 
 monotheism which Socrates taught more definitely, and of his 
 polemics against the anthropomorphism of the popular reli- 
 gion. 2 After the time of Socrates the myths were abandoned 
 by those whom we must regard as the interpreters and expo- 
 nents of the deeper consciousness of the nation, and by degrees 
 even the popular mind drifted away from them ; till at last, 
 as Mr Leckie has said, " The children and old women ridiculed 
 Cerberus and the Furies, or treated them as mere metaphors 
 for conscience." But when the popular creed gave way, it 
 was only to make place for a reasoned belief in the old Aryan 
 doctrines which it originally symbolized. 
 
 1 Schwegler, p. 16. 
 
 2 Zeller, Socrates and the Socratic Schools, p. 144, refers to Xenophon, Mem. 
 iv. 3, 13, in proof of his assertion that Socrates distinguished the Creator and 
 Ruler of the Uniyerse from the rest of the gods, and answers Krische's argument 
 against the genuineness of the passage. The fact that such was Socrates' creed 
 fortunately does not rest on any single passage, but on his habitual use, unless 
 all his disciples have misrepresented him, of the word 0«fs. When, for example, 
 he winds up the magnificent passage in the Apologia, § 17 in Bekker's edition, 
 on the folly of not preferring death, which, for all that we know of it, may be 
 good just as well as evil, to neglect of duty which we know to be evil, by telling 
 the Athenians that, much as he loved them, he would obey God rather than them 
 {velaoiiuu Se /jlZWov t$ 8e$ % fy""), an< l that he would teach wisdom and proclaim 
 the superiority of the soul to the body, if he should die many deaths, because it 
 was God's will (toCto yap xe\eiei 5 8e6s), who can doubt that the God of whom 
 he spoke was his and our Father in Heaven ? Aristotle invariably, I think, uses 
 the word in this sense, Polit., vii. c. iv. Of the similarity between his conception 
 of the divinity, and that to which we are accustomed, a very remarkable instance 
 occurs in the Politics, vii. c. i., where he speaks of Him as blessed, not in the 
 possession of external goods, but in His own nature, U euW/«w p.4v 4<rri kcH 
 uaviptos Si' oiBtv Si rav QantpiK&v ayaB&v a\\a Si' ai-rbv airbs ko! t^j iroids tis 
 etvai tV ipvaiv. 
 
128 INQUIRY INTO THE HISTORY OF OPINION 
 
 The difficulties which surround the interpretation of Greek 
 mythology are so great as, in themselves, to form a strong 
 argument in favour of the advice of Socrates to his pupils 
 to look for truth elsewhere; and the subject is so vast as 
 to forbid any attempt at independent treatment of it here, 
 even if I possessed a far more accurate acquaintance with 
 it than I can at all pretend to. But on the fundamental 
 point of the original conception of Deity which it exhib- 
 its, it is necessary that I should mention the opinion which 
 has been arrived at by the highest. authorities; and the high- 
 est of all authorities on Greek mythology is Welcker, 1 to 
 whom, as Max Miiller has said, the present generation of 
 German scholars, " a race not quite contemptible in itself," 
 looks up, as the Greeks looked up to Nestor. In doing so 
 I am fortunately enabled to offer the further guarantee which 
 is implied in Professor Miiller's words. 2 "Nowhere," says 
 Miiller, "have we seen the original character of the wor- 
 ship of Zeus as the God (6 0eos), or, as he is called in later 
 times, as the Father of the Gods, as the God of Gods, drawn 
 with so sure and powerful a hand as in Welcker's My- 
 thology. When we ascend with him to the most distant 
 heights of Greek history, the idea of God as the Supreme 
 Being stands before us as a simple fact. Next to this ado- 
 ration of One God, the Father of Heaven, the Father of men, 
 we find in Greece a worship of nature (the manifestation of 
 God). The powers of nature originally worshipped as such, 
 were afterwards ehanged into a family of Gods, of which 
 
 1 Griechische GStteslehre, von F. G. Welcker, 1857. 
 
 2 Chips, vol. ii. pp. 151, 152. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 129 
 
 Zeus became the king and father. 1 This third phase is what 
 is generally called Greek mythology ; but it was preceded in 
 time, or at least rendered possible in thought, by the two 
 prior conceptions — a belief in a Supreme God and a worship 
 of the powers of nature. The Greek religions, says Welcker, 
 if they are analyzed and reduced to their original form, are 
 far more simple than we think. It is so in all great things. 
 And the better we are acquainted with the variety and com- 
 plications of all that has grown up around them, the more we 
 feel surprised at the smallness of the first seeds, the simplicity 
 of the fundamental ideas. The divine character of Zeus, as 
 distinct from his mythological character, is more carefully 
 brought out by Welcker. He avails himself of all the dis- 
 coveries of comparative philology in order to show more 
 clearly how the same idea which found expression in the 
 ancient religion of the Brahmans, the Sclaves, and the Ger- 
 mans, had been preserved und^r the same simple, clear, and 
 sublime name by the original settlers of Hellas." 2 
 
 It is, and probably will continue to be, impossible to con- 
 nect the creed of the Western with that of the Eastern branch 
 of the Aryan race by the links of external history. But such 
 evidence of a common origin as internal coincidences afford is 
 abundant. Stripped of its drapery, the religion of Greece, bike 
 that of India, was simply a worship of creative power, and a 
 deification of its manifestations. Nature — not in the sense of 
 mere existence, but of ordered activity, Kosmos — was God ; 
 
 1 As to the progress from physiolatry to the embodiment of ethical ideas, v. 
 Bunsen's God in History, vol. ii. e. 2. 
 
 2 Chips, ut sup. 
 
 1 
 
130 INQUIRY INTO THE HISTORY OF OPINION 
 
 and the sun, the brightest and most beneficent manifestation 
 of nature, the source of heat and light, the fountain of life 
 in man, and beast, and tree, and plant, was the greatest of the 
 gods. "Orpheus," says Eratosthenes, quoting the Bassarides 
 of iEschylus, " did not honour Dionysus, but believed the sun 
 to be the greatest of the gods, whom also he called Apollo ; 
 and, rising up in the night, ascended before dawn to the 
 mountain called Pangaeum, that he might see the sun first, 
 at which Dionysus, being enraged, sent upon him the Bas- 
 saridee," 1 &c. In the first part of this beautiful myth, which 
 will remind many of the sublime passage in Wordsworth's 
 " Excursion," beginning — 
 
 " Upon the breast of new-created earth Man walked ; " 2 
 it is extremely probable that we have the tradition of an 
 actual custom ; and, if so, its oriental origin can scarcely be 
 doubted. 
 
 " The religion of the sun,'i it has been said, with much 
 truth I believe, " is inevitable ; " 3 but it is remarkable that 
 the primitive beliefs of the classical nations are constantly re- 
 ferred by themselves, not to natural inspiration, to which we 
 should have been led to ascribe them, nor yet to external 
 revelation, like those of- Shemitic races, but to tradition for 
 which they do not profess to account. "The tradition has 
 come down from very ancient times, being left in a mythical 
 garb to succeeding generations, that the heavens are gods, and 
 that the Divine embraces the whole of nature. And round 
 this idea other mythical statements have been agglomerated, 
 with a view to influencing the vulgar, and for political and 
 1 Smith's Diet., v. Orpheus. 2 Book iv. 3 Chips, vol. i. p. 241. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 131 
 
 moral expediency ; as, for instance, they feign that these gods 
 have human shape, and are like certain of the animals ; and 
 other stories of the kind are added on. Now, if any one will 
 separate from all this the first point alone — viz., that they 
 thought the first and deepest grounds of existence to he Gods 
 (on 0£ovs <3ovto ras irp.oJras oicr/as eTvai), he may consider it a 
 Divine utterance." 1 It is this utterance which Bunsen has 
 traced through the epic and lyric poetry of Greece, and which, 
 with Socrates, he believed to have formed the basis of the 
 Mysteries, and even of the popular cultus. 
 
 The first step in the direction of philosophy, or of the dis- 
 covery of a rational basis of belief, is generally supposed to 
 have consisted in the so-called Cosmologies, or physical and 
 material theories of the viniverse ; and physical is thus sup- 
 posed to have preceded ethical and political science. Now, 
 except in so far as cosmology was identified with theology, 
 as in the worship of the sun, and confined itself to the 
 recognition of an unknown power, of which the sun was 
 regarded as' the manifestation, I cannot subscribe to this 
 statement ; nor can I concur in the view that it was with 
 Socrates and the sophists that thought was first directed to 
 the rationale of human life. 2 In so far as they had for their 
 object the discovery of the laws of space and number, I do 
 not of course deny to the physical investigations of the Greeks 
 the character of science. But their theories as to the organ- 
 ization of external nature were as vague as their conjectures 
 as to its origin ; and of the laws which govern growth and 
 
 1 Aristot, Metaphys., xi. vi. x. Grant's Aristotle, vol. i. p. 230. 
 
 2 Grant's Aristotle, vol. i. p. 44. 
 
132 INQUIRY INTO THE HISTORY OF OPINION 
 
 development, decay and decomposition, chemical combination, 
 or the like, they had not the faintest conception. "When 
 Thales tells us that the principle of all things is water, or 
 Anaximenes that it is air, we neither learn anything, nor get 
 hold of the means by which anything is to be learned. To 
 the merit of aspirants they are no doubt entitled ; but to the 
 character of discoverers of method they have no more claim 
 than to that of discoverers of truth. Pythagoras, says 
 Bunsen, * was "the first of all historical men to utter the 
 great word Kosmos, in the sense which we attach to it." 
 The Pythagorean principle of harmony, or proportion, was, no 
 doubt, a very remarkable recognition of the universal preva- 
 lence of law ; but, beyond the region of mathematics, Pytha- 
 goras appears to have traced the action of law in the spheres 
 of social and political rather than of physical life. It is on 
 this ground that Bunsen contrasts him with the other students 
 of nature, as "the first to reconduct speculation once more 
 back to what was human and ethical." 2 But it was the 
 same with the other cosmologists, in so far as they are en- 
 titled to the character of scientific inquirers at all. They 
 were philosophical statesmen and moralists in a far higher 
 and truer sense than they were physicists. It was on the 
 ground of his ethico -political wisdom 3 that the name of 
 Thales stood at the head of the seven sages. Heraclitus 
 
 1 Vol. ii. p. 92. 
 
 * Vol. ii. p. 337. Would that we had another Pythagoras ! I hare often regretted 
 the tendency of our Scottish philosophers to prefer logic and metaphysics to 
 ethics and politics. Had Sir 'William Hamilton let the "quantification of the 
 predicate " alone, he might have given Mr Mill much to think of in directions 
 which lay far nearer to the real interests of humanity. 
 
 3 Schwegler, p. 9. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 133 
 
 taught that evil is to be regarded as an element that co- 
 operates to the harmony of the whole, thus attempting, in the 
 only manner that has yet seemed possible, to remove the 
 element of contradiction in nature which opposes itself to 
 the recognition of natural law ; whilst the voSs of Anaxagoras 
 may be regarded as the first indication of the conscious and 
 reasoned character of self-legislation. 
 
 But it is when we abandon those ambitious speculators 
 who professed to explain the laws of the universe, and turn to 
 the statesmen and legislators who made it their business to 
 study mankind with a view to the discovery and practical 
 vindication of the laws which govern their natural relations, 
 that we come in contact with what really was science, though 
 not called by that name. The results attained by these latter 
 inquirers were exhibited both in deeds and in words : they 
 were exhibited in deeds, first by the foundation of the free 
 cities of Ionia, in which the mental as well as the political 
 life of Greece originated ; and then by the Doric legislation, 
 which bore the half-mythical names of Minos and Lycurgus, 
 and which, whatever its real date may have been, was long 
 anterior to the cosmologists ; and lastly, in the Constitution of 
 Solon at Athens and. that of Servius Tullius at Eome ; — and 
 they were exhibited in words by proverbs and maxims, which, 
 like the institutio.ns with which they were probably contem- 
 poraneous, remount to an unknown antiquity. The earliest 
 historical institutions both of the Greeks and Eomans were 
 disfigured by the exclusiveness which marred the whole po- 
 litical life of antiquity, which in the East called for the re- 
 form of Buddha, and which, in the modern world, has been 
 
134 INQUIRY INTO THE HISTORY OF OPINION 
 
 the parent of so many revolutions. But in other respects — as, 
 for example, in the recognition of individual inequality as 
 the source of the organic structure of society — they come 
 closer to natural law, and/ as such, were more scientific than 
 the Constitutions which find favour in our own day. So far 
 from being entitled to dismiss them as mere curiosities, as 
 we do the cosmologies, we find in them those principles of 
 order and liberty which it will be the duty of the Christian 
 statesmen of the future to realize amongst the many, as their 
 authors did amongst the few. * 
 
 As regards the maxims, of which these institutions were 
 the external realization, they were expressed, it is true, in so 
 simple a manner as to have exposed them to the reproach 
 of being " yeoman's morality." 2 But, in addition to the 
 reflection that simplicity is of the essence of the maxim — 
 that our own maxims are as simple as those of the Greeks, 
 and that Aristotle, when he uses them, which he does con- 
 tinually, is as great a child of nature as Hesiod, — we must 
 bear in mind, with reference to the maxims in question, more 
 especially, that • if they were yeoman's morality, they were 
 yeoman's science also. They were results and not guesses, 
 like the dicta of the cosmologists, or our own " leaps in the 
 dark ; " and they were results, moreover, of the very same 
 process of investigation which, in antiquity, culminated in 
 the philosophy of Plato and the jurisprudence of Justinian, 
 and which we ourselves must return to if we would go 
 
 1 It is in this point of view that the ethics and politics of Aristotle are so much 
 more valuable than his physics. 
 
 2 Grant's Aristotle, vol. i. p. 56. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 135 
 
 beyond Plato and Justinian — the process, viz., of studying 
 human nature on the assumption that in revealing itself 
 it reveals an absolute and permanent law. 
 
 We shall more readily see the manner in which this process 
 was applied, if we attend to the characteristics of the three 
 eras into which Sir Alexander Grant and others have divided 
 the ethical history of Greece. "We must accept them, how- 
 ever, as indicating stages of mental progress rather than 
 chronological epochs ; bearing in mind, moreover, that the 
 great prophet -minds which have determined the transition 
 from earlier to later belong invariably to both. First, then, 
 there is the era of popular or unconscious morals ; second, 
 the transitional, sceptical, or sophistical era ; and, third, the 
 philosophical or conscious era. 1 Now it is obvious that if 
 the first and third of these eras agree in their results, the 
 second, which was polemical and destructive, and never aimed 
 at the production of positive results at all, may be discounted, 
 in any other sense than as an effort of development, a throe 
 of parturition, or, at most, a receding wave in the advancing 
 tide. Let us then compare the primitive ethical and political 
 intuitions with the ultimate beliefs of Greece. The first 
 phase in which both theology and anthropology appear in 
 Greece is, no doubt, wholly concrete. Principles are not 
 stated; they are represented in action, and are commended, 
 or condemned, in the persons who exhibit them by the 
 Nemesis whose organ the epic or lyric poet has become. 
 Now, in this primitive form of its manifestation, the national 
 mind of Greece exhibits, not disbelief or doubt, but perfect 
 1 lb., vol. i. p. 46. 
 
136 INQUIRY INTO THE HISTORY OF OPINION 
 
 confidence, faith in God and man. The religion of the heroic 
 age, as exhibited by Homer, has in recent years been made the 
 subject of elaborate study in Germany ; and of the care with 
 which it has been investigated amongst ourselves, the works 
 of Mr Gladstone and Colonel Mure are sufficient monuments. 
 But without entering on what is almost a shoreless sea, the 
 schoolboy-reading of most of us, I believe, will offer sufficient 
 guarantees for the accuracy of what appears to have been 
 almost the unanimous verdict — viz., that it consists, as Sir 
 Alexander Grant has said, " in a celebration of the beauty 
 of the world, and in a deification of the strong, bright, and 
 brilliant qualities of human nature;" 1 and embraces, as Pro- 
 fessor Blackie has remarked, a recognition of the fundamental 
 rectitude of "the whole nature of man." 2 To such allegations 
 as that, " in those early days there seems no trace of a moral 
 nature in the Greeks," 3 Bunsen's reply is sufficient, that the 
 whole scope and object of the Epos is ethical — the exhibition 
 of the Divine Nemesis in the destruction of Troy as a punish- 
 ment for crimed " The wrong committed by Paris must be 
 atoned for ; therefore Troy is doomed to its fate, as Hector 
 himself knows and believes." 5 "The Homeric use of the word 
 Nemesis," as Bunsen elsewhere remarks, 6 " is alone sufficient 
 to prove its purely moral origin. Neither in the Iliad nor in 
 the Odyssey is Nemesis a deity, or even a personified moral 
 quality. The word is there, in the sense in which it lived in 
 the spontaneous feelings and speech of the Ionic people. It 
 
 1 Grant's Aristotle, vol. i. p. 51. 2 Blackie's Homer. 
 
 3 Donaldson's History of Christian Literature, vol. ii. , introduction. 
 
 4 God in History, vol. i. p. 23, and vol. ii. , passim. 
 
 6 lb., vol. ii. p. 101. B lb., vol. ii. p. 63. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 137 
 
 signifies that moral indignation which we feel at the sight of 
 sinful presumption setting itself up against gods and men ; 
 the shrinking, or awe, associated with shame ; in other words, 
 the verdict of the inward judge, and the recognition that the 
 universal conscience is man's true consciousness of God and 
 the highest earthly tribunal — the veritable oracle of God." 
 
 A very considerable step in advance — though in many 
 respects a step downwards — is made when we pass from 
 Homer to Hesiod. The poet tells us that we are already in 
 the iron age. Contemplation, Jhe child of experience, has 
 been begotten, and whatever may have been the relation of 
 the two eras in point of time, about which there was much 
 difference of opinion even in antiquity, in point of thought it 
 is plain that we are in the gnomic period. Now a gnome 
 (yviSfirj or xnroOrjKi)) is a statement not only of an intuitive 
 belief — like that in Nemesis — but of an intuitive feeling of 
 the method by which this belief was reached. Of the gnome, 
 as thus denned, there are many examples in Hesiod, which 
 Aristotle was fond of quoting, and with which you are 
 probably familiar. But the most famous instance of the 
 gnome, and that which is most important for our purposes, 
 is the yv<o6i a-eavrbv, which was inscribed on the temple of 
 Apollo at Delphi. "We found it in India 1 and in China; 2 and 
 as it was of unknown antiquity in Greece, and its authorship 
 was unknown, unless we are to regard it as the utterance 
 of an instinct common to mankind, which I believe to be the 
 true conception of it, it may with considerable probability be 
 viewed, like the language in which it was couched, as an heir- 
 1 Ante, pp. 98-116. 2 Ante, p. 122. 
 
138 INQUIRY INTO THE HISTORY OF OPINION 
 
 loom which the earliest settlers brought from their former 
 abodes, and which the oracle as a pious custodier of patriarchal 
 wisdom had preserved. If the proverb, " Count not your 
 chickens before they be hatched," and La Fontaine's fable 
 of Perrette the milkmaid, have been traced to an Eastern 
 home, 1 why should not the same process be possible in the 
 case of a maxim which must have been suggested by the first 
 dawning of consciousness ? This view of the historical origin 
 of this and other gnomic sayings - derives some confirmation 
 from the fact that they were transmitted chiefly through the 
 rural classes — always the most faithful guardians of tradition, 
 and whose occupations on the slopes of Mount Parnassus 
 resembled those of their remote forefathers in Upper Asia. 
 Hesiod himself, in contrast to Homer, has been called "the 
 poet of the plough ; " and the strong resemblance between his 
 verses and those of the Pythia — in one instance their absolute 
 identity; — is well known. But be this as it may, the yviaOi 
 a-eavrbv, as I have said, was written on the human heart 
 before it was written on the temple of Apollo ; and the value 
 of the maxim, as indicating a radical belief in the self- 
 revealing and self-legislating character of humanity, is equally 
 great whether we regard it, in the form in which we have 
 received it, as having thus retained its possession of the 
 Ayran mind, or as having a second time descended from 
 heaven, and forced itself on the acceptance of the national 
 consciousness of Greece. 
 
 But the yvZOi o-eawov is by no means the only instance of 
 a gnome which possessed absolute scientific value. The MySw 
 * Chips, vol. iv. p. 145. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 139 
 
 ayai/ of Solon, and the MeVpoi/ apwrov of Cleobulus, in their 
 primary aspects, were neither more nor less than exhortations 
 not to outrage "the modesty of nature," by disturbing the 
 harmony of her laws. I need not tell you how fruitful 
 they became in the MtTptoTrjs of Plato and the Mco-oV^s of 
 Aristotle ; 1 nor insist on the manner in which they link 
 the two periods together. I shall mention only one other 
 instance of the gnome. It is the saying of Simonides that 
 justice consists in " paying one's debts." " It is easy," says 
 Sir Alexander Grant, " to show this definition inadequate, and 
 yet it was a beginning." To me it seems that it was one 
 of those beginnings which include the end ; for, fully compre- 
 hended, it embraces the whole theory of justice, and it holds 
 in gremio the ultimate doctrine of the SUawv, just as the 
 firjSev ayav does that of the pea-orris, and is thus unconsciously 
 scientific in the highest degree. To the members of my own 
 profession I need not point out its analogy with the suum 
 cuique tribuere of Ulpian ; and one of the objects of this work 
 will be to show how entirely our whole duty, not only to 
 our neighbours, but to God and to ourselves, is included in 
 " paying our debts." 
 
 It is in these two doctrines, indeed (the /ueo-oVijs and the 
 SUaiov), more than in anything else, that the allegiance of the 
 Socratic ethics to the central doctrine of humanity, and, as 
 we shall see hereafter, their fruitfulness for scientific juris- 
 prudence, mainly consist. But these, again, are the central 
 
 1 See Sir A. Grant's interesting and valuable dissertation on " the Doctrine of 
 the Mean," Aristot., vol. i. p. 201 et seq., and compare with the Confucian " Doc- 
 trine of the Mean," translated by Dr Legge, and above referred to, p. 124. 
 
140 INQUIRY INTO THE HISTORY OF OPINION 
 
 doctrines of the Socratic ethics. Amidst all the divergences 
 which Plato and Aristotle, the two greatest expositors of 
 the ethical problem, exhibit in the points of view from 
 which they regard it, they are at one in regarding that 
 problem itself as consisting in the realization of the har- 
 mony -which nature demands as the condition of the free 
 action of her various energies, and the full gratification of 
 her various impulses ; and in holding that this is to be 
 accomplished by recognizing the measure of power which 
 she herself has meted out to each. 
 
 If our previous remarks 1 are well founded, the attempt to 
 establish a distinction between Plato and Aristotle, and to lay 
 claim to the Stagyrite as " a judicious utilitarian," 2 on the 
 ground that he attached greater importance than Plato to 
 the teaching of external observation, is a failure ; for the 
 distinction, when admitted, proves not different objects of 
 search, but different methods of searching. Cicero asserts 
 expressly, 3 that, as regards the doctrine here in question, 
 Aristotle's view of nature did not differ from that of the other 
 members of the Socratic school; and that, like Socrates — 
 execrare eum solebat qui primus utilitatem a naturd sejunxisset. * 
 It would be easy to cite passages from Aristotle in confirma- 
 tion of Cicero's view. The leading discussion is contained in 
 the last four chapters of the Seventh Book of the Nicomachean 
 Mhics. Several passages are not free from difficulty, but the 
 drift of the whole plainly enough is that nature has in it 
 something divine {-n-avra yap <j>v<ru cx«i ti 6iiov), and that happi- 
 
 1 Ante, p. 49. 2 Mill's Liberty, p. 46. 
 
 3 Be Fin., iv. 24. * Be Bivinationc, L. i. § 31. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 141 
 
 ness consists in activity in accordance with nature. For the 
 rest I may refer to Ethic. Nic., i. ix. 5, x. ii. 4 ; and Politic., 
 i. i. 8, where he says expressly, -q Se <£wis reAos eoriv; i. ii. 10, 
 &c. Conformity or nonconformity to nature, throughout the 
 Politics, is consistently adopted as the test of the qualities 
 of different forms of government. Take, for example, such 
 a passage as that at hi. xi. 10. Education he°understands in 
 its literal sense of a drawing out of the natural qualities of 
 the individual, vii. xv. 1 
 
 Nor does any substantial divergence arise from the fact of 
 Aristotle's " being distinguished among the ancients," as Mr 
 Leckie has said, " for the emphasis with which he dwelt 
 upon the utility of virtue," 2 for this merely proves the 
 more hopeful view which he took of the affairs of this 
 world, that he believed not only in the identity of virtue 
 and happiness in the abstract, but in the possibility of 
 realizing this identity, in a great measure, in human life. 
 That Aristotle was an eudsemonist is admitted on all hands, 
 but so was Socrates before him, and the Christian fathers 
 and schoolmen 3 after him; and it no more follows there- 
 from that he was a hedonist like Bentham, than that, like 
 ' Mr Mill, he believed in a method of investigating mental 
 phenomena which excluded a direct appeal to the phenomena 
 themselves. 
 
 1 In these quotations and references I have used the Tauchnitz edition of 1831. 
 
 2 As to Aristotle's conception of the relation between the xp^""/*"" and the 
 na\6v there is an instructive passage, Polit. iv. i., see also vii. viii.; and Thomas 
 Aquinas, Swmma, Prima Secundce, quaes, xc. art. ii. 
 
 8 Many excellent observations on this subject will be found in Professor 
 Blackie's Four Phases of Morals. 
 
142 INQUIRY INTO THE HISTORY OF OPINION 
 
 More respect is due to Zeller's objection that, in the incom- 
 plete condition in which Socrates himself left his ethical 
 theory, it furnished no external test of the character of the 
 good, and had thus " the appearance of being founded on 
 utility." 1 " Just as his speculative philosophy stopped with the 
 general requirement that knowledge belonged to conceptions 
 only, so his practical philosophy stopped with the indefinite 
 postulate that actions must correspond to their conceptions. 
 But how, with so vague a principle, can it be determined what 
 actions are moral ? " 2 The answer, I think, is that human 
 life was viewed by Socrates as an action, which, like other 
 actions, must correspond with its conception. The conception 
 of human life, or, in other words, the idea of humanity, was 
 thus the Socratic, as it had always been the natural human, 
 and afterwards became in a conscious manner 3 both the 
 Aristotelian and the Stoical standard of morality. Between 
 such a theory, and the doctrine of the identity of the good and 
 the useful, which Xenophon ascribes to Socrates, and which I 
 believe him to have held, there is, as it appears to me, no 
 inconsistency whatever. 
 
 In his essay on "the disagreement between the ethical 
 systems of Kant and Aristotle," 4 Professor Trendelenburg has 
 discussed, with great acuteness, the relation in which Aris- 
 totle's system stands to all those systems, whether ancient 
 or modern, in which happiness, in the sense of immediate 
 gratification, is made at once the rule and the object of life. 
 Kant does not mention Aristotle expressly, and Professor 
 
 1 Socrates and the Socratic Schools, p. 129. 2 lb., p. 123. 
 
 3 Zeller, ut sup., p. 128. * VermiscMe Abhandlungen, vol. in. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 143 
 
 Trendelenburg says that he knew him chiefly at second hand ; 
 but the ground on which he is supposed to have insinuated 
 the charge of hedonism was that Aristotle sought in human 
 nature both the source of ethical determination and the object 
 of ethical endeavour. " Know thyself, in order that thou 
 mayest become thyself." In answer to this allegation, Tren- 
 delenburg has shown that the absolutely universal moral law, 
 for which Kant contends (das Allgemeine), suffers no disparage- 
 ment by being sought by man where alone it is discoverable 
 by him — viz., in his own nature ; or by being realized, as alone 
 he can realize it — viz., in the development of that nature itself. 
 It is the old Aryan postulate of the existence of a divine 
 element in man — claiming, and from his normal and general 
 nature obtaining, a willing obedience, and rewarding it with 
 happiness — which gives its ethical character to Aristotle's 
 eudsemonism ; whilst, at the same time, it prevents his con- 
 ception of virtue from assuming that hard and repulsive 
 character which is common with so many moralists and theo- 
 logians, and which even Kant has communicated to it. Of 
 the consequences of thus thrusting human feeling aside and 
 insisting on an absolute separation of the agreeable from the 
 good, Trendelenburg has given a remarkable instance in Kant 
 himself. Driven by the stern necessities of his system, he 
 found himself compelled to limit the idea of duty to acts " un- 
 willingly 1 performed," thus giving up the possibility of even 
 an approximation to the realization of that very ethical " good- 
 will," of which on other grounds he is justly regarded as the 
 
 1 "Die Pflieht ist eine Nothigung zu einem ungern genommenen Zweck." 
 —Metaphysisdve Anfangsgrilnde der TugendUhre, ix. p. 230. 
 
144 INQUIRY INTO THE HISTORY OF OPINION 
 
 apostle. There can be no "goodwill" if everything that is 
 good must be done unwillingly. 
 
 It is in the integrity, the wholeness, and consequent sanity 
 of the Socratic and Aristotelian ethics, and not in their exhaus- 
 tive treatment of special questions, that their enduring value — 
 one might almost say their novelty even for the modern world 
 — consists. There and in the Bible alone are we consistently 
 taught the " solidarity " of the divine and the human, of our 
 highest and our lowest interests and enjoyments, and the 
 consequent possibility of making " the best of both worlds," 
 or rather the impossibility of taking what God intended for 
 us, and what is really our own, out of either " world," apart 
 from the other. "When the distinction between eudsemonism as 
 the harmonious gratification of our nature as a whole, including' 
 even the much-maligned " flesh," and hedonism as the exces- 
 sive and disproportionate gratification of a portion of it, is as 
 clearly maintained as Aristotle has maintained it, it appears 
 to us that eudsemonism admits of being defended on somewhat 
 higher grounds than Professor Trendelenburg, or even Professor 
 Blackie has taken up. The coincidence of happiness and 
 virtue, wherever happiness and virtue are really positive 
 quantities, and not mere self-destructive negations, is not only 
 possible but necessary. Happiness not in accordance with 
 virtue is more than counterbalanced by its opposite, even in 
 this world ; and virtue which is not " its own reward " — i. e., 
 which is not a source of subjective happiness, whatever its 
 objective value may be — has no subjective value at all. " The 
 Lord loveth a cheerful giver;" and the spirit which He 
 demands in giving a mite must govern the acceptance of the 
 
WITH REFERENCE TO HUMAN AUTONOMY. 145 
 
 martyr's crown. Trendelenburg, who is a consistent Aristote- 
 lian, has elsewhere shown l that vicious gratification consists, 
 not in the gratification even of individual nature as a whole — 
 for every sane human being is an epitome of humanity — and 
 not in the harmonious gratification of all our propensities, in- 
 cluding the lowest, — but in the rebellion and self-assertion of a 
 part of our individual nature against the whole of it. It is a 
 formidable risk to offer any opinion with reference to Aristotle 
 which appears to be at variance with that presented in any 
 portion of Professor Trendelenburg's writings, even when one 
 seems to find encouragement from them elsewhere. But on 
 this point, if we take the theory of the /aeo-otijs alone, viewed 
 as a doctrine of harmony and not of limitation, in the light in 
 which Sir Alexander Grant has presented it, 2 and in which it 
 was understood by Confucius long before Aristotle was born, 
 it seems sufficient to warrant the conclusion that Aristotle 
 recognized the necessary coincidence of virtue, not with the 
 dicta of any exceptional faculty, but with the normal impulses 
 of individual nature as a whole. 
 
 (b) Home. — In so far as Stoicism is entitled to the char- 
 acter of a speculative doctrine, it belongs to Greece. But 
 when we regard it in the aspect in which it was really 
 important, that, namely, of an active faith — almost of a 
 religion — our eyes instinctively turn to Borne. Its value 
 to humanity, in this point of view, has been excellently 
 brought out by Mr Leckie, and appears to have been 
 strangely overlooked by Bunsen, with whose idealistic habits 
 of thought it no doubt jarred. 
 
 L NaturrecM. See infra, cap. vi. 2 Ut supra. 
 
 K 
 
146 INQUIRY INTO THE HISTORY OF OPINION 
 
 The Stoics were pre-eminently the custodiers and expositors 
 of the severer ethical teaching of the Socratic school. By 
 them the doctrine of human autonomy was formulated into 
 practical rules of life, in the three directions of the Individual, 
 the Nation, and the Community of Nations. 
 
 The more closely the history of ancient society is investi- 
 gated, the more clearly does it appear that the Stoics were the 
 Parsons 1 of paganism, as the Cynics have been said to be the 
 monks of Stoicism. Notwithstanding the popularity of Epi- 
 cureanism, and the many points of resemblance to Stoicism 
 which it exhibited, 2 its professors never approached to the 
 influence which the Stoical doctors enjoyed. And the reason 
 was a very obvious one. So long as the path of life lies 
 through the green pastures and by the still waters of self- 
 indulgence, the ordinary instincts even of very ordinary men 
 will enable them to find it and to follow it. But when the 
 rugged steeps of self-sacrifice have to be surmounted, or the 
 rude tempests of passion to be braved, loftier principles of 
 action become requisite, and those who can call them forth are 
 eagerly longed for. This task the Stoics undertook. Unlike 
 the Epicureans, who shrank from the sterner realities of life, 
 they professed to be friends in need, and pilots in the storm ; 
 and, as a necessary consequence, an unusual veneration at- 
 tached to their persons, and an unusual importance to their 
 maxims. It is not wonderful that men so situated should 
 
 1 As to the idea of the Parson, or Persona, see Coleridge's Church and State, 
 c. vi. p. 66, Pickering's ed. 
 
 2 Even on the point which concerns us here, "the divine origin of the human 
 race," they were at one with the Stoics. Zeller's Stoics and Epicureans, 
 pp. 431-477. 
 
WITH REFERENCE TO HITMAN AUTONOMY. 147 
 
 have been credited with the invention of the doctrines which 
 they inculcated; and we find, accordingly, that not only the 
 general doctrine of the rectitude of the fundamental instincts 
 of humanity, but still more its embodiment in the famous 
 precept to " follow nature " (ofioXoyov/iivai^ rrj <j>vo-ei ifiv} con- 
 venienter congruenterque naturae vivere), have been popularly 
 ascribed to the Stoics. To the merit of calling attention to 
 its practical application in many new directions, and, above all, 
 in that of positive law, the Stoics are largely entitled ; but to 
 the character of discoverers, either in ethics or in natural law, 
 there is no reason to believe that the Stoics had higher claims 
 than the leaders of the Corn Law League might have set up 
 to that of discoverers in political economy. Cicero, who was 
 a direct inheritor of their traditions, 2 and was by no means 
 disposed to be unfair to them, asserts not only that the theo- 
 retical doctrine in question was common to the whole Socratic 
 school,? but fixes on the individual academic to whom the 
 Stoics were indebted for the practical maxim. In the 
 Academic Questions i he asserts that both Zeno and Arcesilas 
 had been diligent hearers of Polemo. In the Be Finibus 5 he 
 repeats the same statement, and, speaking of the Stoics gen- 
 erally, he adds, qui de rebus bonis et malis sentirent, ea quce 
 
 1 The t# ipiirei is said to have been an addition by Cleanthes to the original 
 dogma of Zeno. If so, not Zeno but Cleanthes would be entitled to the char- 
 acter of the father of the Stoical ethics, for conformity must mean conformity with 
 something. The 6/ioKoyovfUvais alone would have been no more definite a guide 
 than our own "utility;" it was the tj? <pi<rei that gave it point. But the 
 thought, if not the word, was, as we have seen, far older than either of them. 
 
 2 There is an unbroken list of the Stoical doctors from Chrysippus to Posidonius, 
 and Posidonius was master to Cicero. — Grant, p. 273. 
 
 3 Acad. Quaes. , passim ; Nat. Deor, i. 7 ; De Fin., iii. and iv, 
 
 4 Book I. c. 9. 5 Book IV. t.-. 22. 
 
148 INQUIRY INTO THE HISTORY OF OPINION 
 
 rib hoc Polemone Ze.no cognoverat, having previously l asserted 
 that what they did learn was secundum naturam vivere. The 
 only two passages ascribed to Polemo himself, which have 
 been preserved to us, fully bear out Cicero's statement as to 
 the nature of his teaching. 2 
 
 There is only one other point of historical importance in 
 connection with Cicero's views to which I wish to call the 
 attention of my readers — viz., the clear conception which he 
 himself had of the fact that the end of life, and the method 
 of its attainment, are equally revealed to us by nature ; and 
 that, consequently, the modified Stoicism which he taught 
 was entitled to the character of science, both on teleologi- 
 cal and methodical grounds. In the Academic Questions? 
 after mentioning the tripartite division of philosophy into 
 ethics, physiology, and logic, as common to the Peripatetics 
 and Academics, and derived by both from Plato, he thus 
 expresses himself : " Ac primam illam partem, bene vivendi, a 
 naturS. petebant, eique parendum esse dicebant (the rule of 
 life), neque ulla ali§, in re, nisi in naturci, quserendum esse 
 illud summum bonum, quo omnia referentur" (the end). 4 
 Now utility may yield a method, but it can never yield an end. 
 
 The unspeculative, and, as a necessary consequence, the 
 
 1 Book IV. c. 6. 
 
 2 See Smith's Diet., wee Polemon, and Madvig's De Finihus, p. 499. 
 
 3 L. i. c. 5. 
 
 4 There has been a tendency in Germany to disparage Cicero ; but Hegelianism, 
 at least in the person of its founder, cannot be charged with it. Hegel was fully 
 alive to the scientific character of Cicero's method, and the advantage which it 
 had over that of Grotius, Philosophy of History, Bonn's trans. , p. 459. That 
 Cicero took much of his information at second hand, and that, from the haste 
 with which his treatises were compiled, he allowed himself to be betrayed into 
 
WITH REFERENCE TO HUMAN AUTONOMY. 149 
 
 one-sided character of the Stoics, which was so marked as to 
 point them out as exceptional characters amongst their original 
 countrymen, and which no doubt recommended them to the 
 narrower and more practical mind of Eome, has been often 
 remarked ; but I am not aware that it was ever accounted for 
 till Sir Alexander Grant pointed out the singular fact that, 
 from the places of their birth, we may infer, with high prob- 
 ability, that they were mostly of Shemitic blood. 1 They 
 were wanting in the subtlety which many Jews have exhibited. 
 We shall seek in vain for a Spinoza or a Meander amongst 
 them. Like the Shemites in general, they were intense and 
 unsparing in the application of a narrow logic ; but, as 
 their premises did not rest on a sufficient analysis of in- 
 ternal phenomena, they ultimately fell away from the spirit 
 of their own rule more egregiously than even their opponents. 
 A departure from nature is the reproach which Cicero con- 
 tinually brings against them ; 2 and there can be little doubt 
 that the Cynic who lived in a tub, or the Stoic who com- 
 mitted suicide, outraged nature even more flagrantly than 
 the Cyrenaic or the Epicurean who sipped nectar on a bed 
 of roses, and was true at least to his lower instincts. 
 
 It is their betrayal of this, their own principle, too, as we 
 
 inconsistent expressions, is, I fear, unquestionable. The expression Prima 
 naiurce (ri. rrp&ra Karh <pi<r ti>), whencesoever it may have come (Madvig, ut supra, 
 Excursios, iv. p. 815), is certainly unfortunate ; and specially so if we forget, as 
 we are apt to do, that both vpunos and primus often mean "first in rank and 
 importance," rather than first in actual time. Probably ultima naiurce would 
 have better conveyed, to most of us, what was no doubt Cicero's conception of the 
 fundamental, radical impulses, which he accepted as the rule of life. 
 
 1 Aristot., vol. i. p. 246. 
 
 2 Be Fin., iv. c. 11 and 19 ; Pro Murena, c. 29, 30, 31. 
 
150 INQUIRY INTO THE HISTORY OF OPINION 
 
 shall see hereafter (cap. vi.), which gives point to the, polemic 
 which Sir Alexander Grant has directed against Bishop 
 Butler's famous " apologia " for Stoicism. In so far as Sir 
 Alexander's attack is directed against the maxim "follow 
 nature," in itself — i.e., in its wider and Socratic as opposed 
 to its narrower and Stoical sense — it is an attack on science 
 itself ; and I wish that the learned Principal had marked the 
 two points of view more clearly than he has done. Johnson's 
 whimsical chapter in Basselas, on "the happiness of a life 
 led according to nature," has often been ignorantly regarded 
 as a reductio ad absurdum of the Stoical maxim. But when 
 the Prince of Abyssinia demanded of the philosopher that he 
 should tell him what nature was, he only reminded him of 
 the task which his profession as a philosopher imposed on 
 him. The vagueness of the philosopher's response proves, it is 
 true, how small was the advance which moral and political 
 science had made in England in Dr Johnson's time, or rather 
 how imperfect was Dr Johnson's own knowledge of it — for 
 we must not forget that he was the contemporary and per- 
 sonal friend of Edmund Burke. But what should we think 
 of a chemist or a physiologist who should decline the chal- 
 lenge to fight on the field of nature, in our day ? Nature 
 may be a mistress who is not wooed with equal facility by 
 all her suitors ; but her wooing, in all departments alike, is 
 the condition of science, sine qud non. 
 
 I shall have occasion to point out hereafter 1 the imperfec- 
 tions of the Socratic doctrine in the aspect in which the Stoics 
 presented it. But inasmuch as the practical recognition of 
 
 1 Cap. vi. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 151 
 
 a doctrine by mankind, their acting consistently as if they 
 believed it, is a more unequivocal proof of their belief than 
 any expression of opinion, either direct or indirect, it may not 
 be unimportant to this branch of the discussion that we 
 should dwell for a little on the vast acceptance which Stoicism 
 experienced, and the influence which it exercised. With the 
 single exception of Christianity — from which, in the point we 
 are considering, it does not differ 1 — no form of belief ever 
 took possession of so great a number of Europeans, or held it 
 so long ; and though it was not particularly fortunate in its 
 expositors, or distinguished by the subtilty, or even the sound- 
 ness, of its analysis of human nature in detail, it moulded 
 human institutions and affected human destiny to a greater 
 extent than all the other philosophical systems either of the 
 ancient or modern world. In Greece the objections which 
 presented themselves to the physical and metaphysical specu- 
 lations on which the Stoics pretended to found their ethical 
 system, seriously affected its influence ; but in Eome these 
 were not understood, and if they had been understood would 
 not have been heeded. Accordingly, during the youth and 
 vigour of the Eepublic, it ruled Eoman life unconsciously 
 before it had any theoretical footing at all ; during the period 
 of bloom it held its own against Epicureanism amongst the 
 better spirits ; and when finally, as a rule of citizen life, it 
 experienced the relaxing and deadening influences of the 
 empire, it kept alive, as the prevalent theoretical opinion, the 
 idea of virtue as the chief good, and the aspiration after liberty 
 within the sphere of individuality, and the idea of universal 
 1 Infra, p. 161 el seq. 
 
152 INQUIRY INTO THE HISTORY OF OPINION 
 
 charity and cosmopolitan benevolence, as the means to its 
 attainment. 1 Nor ought it to be forgotten that when social 
 corruption and degeneracy had reached their culminating point, 
 and the world of antiquity was about to expire, the last 
 words which she addressed to her successor, the advice which 
 guided the spirit of the middle age and moulded its institu- 
 tions — its asceticism, its chivalry, and even its romance — 
 consisted in the inculcation of Stoicism. The famous work of 
 Boethius, like the system which it taught, owed very little 
 either to the abilities of its author, or to the speculative 
 value of its subject-matter ; to us, it is a disappointing book ; 
 and yet, for nearly a thousand years, it enjoyed a reputation 
 such as perhaps never fell to the lot of any other confessedly 
 human production. Composed in his prison at Pavia, where he 
 was confined for the crime of having " hoped for the restoration 
 of Koman liberty," by him whom Gibbon has characterised as 
 "the last of the Eomans whom Cato or Tully would have 
 acknowledged for their countryman," 2 it formed one of the 
 most important connecting links between the classical and the 
 Christian world ; and, as regards the history of our own Eng- 
 lish civilization, it is a fact of no insignificant importance that 
 the task of presenting it to our countrymen in the vernacular 
 speech was undertaken, successively, by Alfred, by Chaucer, 
 and by Queen Elizabeth ! Whether Boethius was a Christian 
 or a pagan is still a subject of dispute. His name, like that 
 of Buddha, 3 was enrolled amongst Catholic saints and martyrs ; 
 
 1 How much nobler than the idea of the point d'honneur which M. Prevost 
 Paradol said was the only remaining conception of virtue in the mind of a 
 Frenchman. 
 
 2 vii. u. xxix. p. 45. 3 Ante, p. 107. 
 
WITH KEFEKENCE TO HUMAN AUTONOMY. 153 
 
 but the theological works ascribed to him are probably the 
 work of another, and there is, at any rate, no evidence of their 
 authenticity at all sufficient to counterbalance the fact that 
 Christianity is never once mentioned in the Consolatio Philo- 
 sophies, the topics discussed being such as to render its acci- 
 dental omission almost impossible. Like many of the more 
 serious men of his time, and even like Epictetus and the 
 Antonines of a former time, Boethius probably hovered on the 
 confines of both faiths. But, in his relation to the one and to 
 the other, there would seem to have been this difference, that, 
 whilst he may have been unconsciously affected by the Chris- 
 tian elements that pervaded the moral atmosphere which he 
 breathed, he was a direct and - conscious inheritor of the Ethics 
 of the Porch. But the work of Boethius, and the innumerable 
 commentaries, translations, and imitations which it produced 
 — e.g., Chaucer's Testament of Love, and the King's Com- 
 plaint — were by no means the only reproductions of degen- 
 erate Stoicism that fed the spirit of the middle ages. The 
 meditations of Marcus Aurelius were never forgotten ; and the 
 Disticha de Mbribus, or Catechism of Morals, ascribed to a 
 certain Dionysius Cato, of whom nobody has ever been able to 
 discover anything, was extensively used as a school-book from 
 the age of Alcuin downwards. It is frequently quoted by 
 Chaucer, and no wonder ; for so popular was it about his time, 
 that more than thirty editions were published in the fifteenth 
 century. 1 It was in imitation of these expiring efforts of 
 Stoicism that the Summa of the schoolmen and casuists began 
 
 1 See Merivale's Borne, last vol. ; Stanley's Eastern Church, p. 228, and his 
 article on Boethius in Smith's Dictionary. 
 
154 INQUIRY INTO THE HISTORY OF OPINION 
 
 to be composed — of which the Summa of Thomas Aquinas 
 is the noblest specimen ; and they in their turn gave rise to 
 the Spanish Theological Jurists — Dominicans and Jesuits — 
 who were the predecessors of Grotius, Soto, and Suarez of 
 Grenada. 1 
 
 The substantial accordance of the Socratic ethics, even in 
 the peculiarly exaggerated and one - sided form of Eoman 
 Stoicism, with the old revelation of nature on the one hand, 
 and the new revelation of the Gospel on the other, accounts 
 for the fact of its having survived the marvellous and mirac- 
 ulous revolution of opinion in which polytheism perished. 
 Chronologically, as well as philosophically, Socraticism, or 
 rather that universally human doctrine of which Socrates was 
 the prophet to the western branch of the Aryan race, forms, 
 as I have said, the connecting link between the ancient and 
 the modern world. To trace the various forms in which this 
 connection manifested itself belongs to, or rather constitutes, 
 the history of ethics and jurisprudence, and all that we can 
 here attempt is to indicate a few additional points of view 
 which specially claim attention. 
 
 1. The Roman Law. — The civil law of Eome, which, during 
 the abode of our Lord on earth, received His constant tacit 
 and occasionally His express approval, and which the Christian 
 accepted from the heathen world, makes no claim to direct 
 inspiration, but is professedly founded on the revelation 
 through nature, and the consequent assumption of human 
 autonomy. 
 
 Its general character is post-classical : in many respects it 
 
 1 Infra, p. 165 et seq. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 155 
 
 is national : and, in the form in which we know it best, it 
 comes to us from Christian times ; and yet, in the respect I 
 have mentioned, it entirely falls in with the central tendency 
 of Hellenic and Indo-Germanic thought. The great practical 
 people of antiquity had the wisdom and happiness to repudiate 
 the sensationalism and empiricism which constitute the re- 
 proach of our country and our time, and which hitherto have 
 prevented the jurisprudence of England from attaining the 
 character of a science. The foundations of the Eoman law 
 were laid deep in the study of nature, both in its subjective 
 and objective manifestations. Like the Christian Apologists 
 and Fathers, the Eoman jurists accepted the Socratic ethics, 
 chiefly in the form in which the Stoical doctors presented 
 them. The two centres around which their whole system of 
 rights and obligations grouped themselves were thepersona — i.e., 
 the rational and responsible ego and non ego on the one hand 
 — and the res, the irrational and irresponsible non ego, animate 
 and inanimate, on the other. Of the logical rigour with which 
 the rights of the persona were guarded, we have a remarkable 
 illustration in the fact, that the Eoman theory of slavery 
 rested, not on a denial of liberty to the person, but of per- 
 sonality to the slave. The slave was regarded not as a 
 persona, but as a res. By nature he was admittedly a per- 
 sona, a free man, and as such incapable of belonging to an- 
 other ; but, by a fiction of law, he was declared a res, in order 
 that, like an ox, or an ass, or a movable chattel, he might be 
 capable of being held as property. The foregone conclusion 
 in favour of slavery was thus reached without sacrificing the 
 logic of the civil law. A false premiss was devised which 
 
156 INQUIRY INTO THE HISTORY OF OPINION 
 
 contradicted nature, and separated law from fact. It was by 
 a similar expedient, as we shall see hereafter, that Hobbes 
 saved the logic of his political system, 1 when, with contemp- 
 tuous cynicism, he threw the fiction of absolute equality, like 
 an apple of Sodom, into the midst of mankind. The jurist 
 and the politician were alike accurate in their estimate of 
 human intelligence. Both of them knew how much commoner 
 is the gift of reasoning than of reason, that fictions to many 
 are as good as facts, and that for one man who can discover 
 a false premiss, there are fifty who can point out a false con- 
 clusion. The fiction of the one justified slavery for ages to 
 the Eoman world; the fiction of the other still justifies 
 democratic imperialism to many in our own day. In one 
 respect, however ( they differed ; for it was the jurist alone 
 who, in virtue of his Stoical training, had the grace to 
 acknowledge his error, and to admit that his doctrine was 
 contra naturam. 2 It is wonderful that Aristotle, having got 
 hold of the principle of relative equality, 3 did not apply it 
 to the subject of slavery, for, as Professor Trendelenburg has 
 truly remarked, his conclusion in favour of slavery * is not 
 warranted by his assumption that some men are by nature 
 more suited for servants than for masters. 5 That is an assump- 
 tion which there is every reason to believe is warranted by 
 nature, and in dealing with inferior races, it might very well 
 have been held to justify servitude, in the sense of perpetual 
 pupillarity. Whether Aristotle intended to push it greatly 
 
 1 Infra, Book II. chap. iii. 
 
 2 Dig., 1. 1. 1, § 4 {Ulp.) ; 1. 1. 5, pr. ; Inst., 1. 3. 2. 
 
 3 Infra, Book II. chap. iv. 4 Natmrecht, i. c. 2. 5 Politic. , i. c. 2. 
 
WITH KEFERENCE TO HUMAN AUTONOMY. 157 
 
 beyond that point is rendered somewhat doubtful by a passage 
 in the First Book of the (Economics. This Book, at all events, 
 I believe is acknowledged to be his, and in it he argues that 
 liberty should be held out to the slave as an ultimate object, 
 on grounds not only of expediency but of justice. 1 
 
 The recognition of the legitimacy of infanticide by Aristotle, 2 
 and in the Twelve Tables, is a stronger instance than even 
 that of slavery, of want of appreciation by antiquity of the 
 value of the 'persona, the sacredness of humanity as such. It 
 must ever redound to the glory of the Stoics that they were 
 the first explicitly to proclaim the unity of the human race, 
 whilst they avoided the sin and folly of laying claim to an 
 equality which God has denied. It was this latter error which 
 in the East degraded the natural distinction of classes into the 
 unnatural distinction of castes ; which, in classical times, and 
 in the dealings of modern nations with the inferior races, has 
 aggravated servitude into slavery ; and which, in our own day, 
 by denying the rights of private property, has invaded the 
 sanctity of the persona in the name of liberty, and threatens 
 to arrest the progress of God's kingdom by repudiating the 
 means which He has appointed. 
 
 2. International Law. — International jurisprudence owed its 
 origin to those who were the special expositors of the doctrine of 
 human autonomy in antiquity, and has always rested on the 
 assumption of its truth. 
 
 The advantages of the rational and philosophical conception 
 
 * Xph Si inti 1-eA.os &plcrBai irairiv. Atucuov y&p Kal ffv/Mptpov rijv i\ev6eplar 
 KcTo-floi a0\m>. BovKovtcu yap iroveiv, Zthv -/j &8Aov Kal S %pivot &>puxp.4vos. — i. c. v. 
 2 Politic., vii. c. 16. 
 
158 INQUIRY INTO THE HISTORY OF OPINION 
 
 which the Eomans formed of the sources of jurisprudence were 
 not confined to the development of a municipal system which, 
 after the lapse of ages, still illuminates the path of modern 
 legislation. The idea of the persona was felt to contain the 
 germs of that cosmopolitan system, the realization of which 
 the ancient world was not privileged to behold, and which we 
 ourselves, even now, have seen but in part. The sentiment 
 of a brotherhood of mankind is one of those innate conceptions 
 which belong to humanity as such. Were its absence con- 
 ceivable from any sane mind, we should be compelled to relin- 
 quish our doctrine of the necessary recognition of the rights 
 of the non ego, and to accept Hobbes's dreary conclusion of a 
 natural state of war. 1 It is not surprising, then, that oriental 
 scholars should have found it in Buddha and Confucius, that 
 Bunsen should have traced it in Homer, 2 or that he should 
 maintain that it " underlies all the Mosaic superstructure." 3 
 Like all that was true in Stoicism, moreover, it had its roots 
 in the more catholic creed of Socrates. Still, in this direction 
 especially, the Stoics surpassed their master. It is impossible 
 not to see in Zeno's universal state, and in the cosmopolitan 
 notions of the Stoics as a school, a clearer presentiment than 
 any their greater predecessors possessed of the possibility of a 
 system of international law ; and as regards the Eoman jurists, 
 
 1 Infra, Book II. chap. iii. 2 God in Hist. , vol. ii. p. 104. 
 
 3 lb. , vol. i. p. 95. There can be no doubt that the idea of the unity of mankind 
 is involved in the doctrine of man's participation in the divinity of one God. But 
 Bunsen acknowledges that any special hold on it which the Jews may have had 
 in this direction was lost when the Jewish nation "set itself up, in contradis- 
 tinction to mankind at large, as the elect people of God," and that it did not 
 again obtain prominence till the coming of Christ. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 159 
 
 it is instructive to remember that it was through them, as 
 apostles of the doctrine of personality, that the seed which 
 the Stoics had sown ultimately germinated. Grotius was not 
 himself specially a civilian, but he was born in a family and 
 bred in a school saturated to the core with the doctrines of 
 the civil law ; and in a family and school, moreover, in which 
 these doctrines were sedulously studied in connection with 
 Greek philosophy. Of his more eminent successors, including 
 Lord Stowell; similar assertions might be made. In this 
 country we have few names that deserve mention, either in 
 scientific jurisprudence or in international law. But many of 
 our municipal lawyers have been great ; and the greatest of 
 them — Lord Mansfield and our own Lord Stair — have freely 
 acknowledged their obligations to these heathen prophets. 
 The utterance of Lord Mansfield, with reference to Socrates, 
 is very memorable. " I will take the -liberty to call him the 
 great lawyer of antiquity, since the first principles of all law 
 are derived from his philosophy." l 
 
 (c) Alexandria. — The central doctrine of the Socratic ethics 
 met with acceptance at Alexandria, even from persons who 
 were not of pure Aryan blood. 
 
 This was a direction in which speculative thought assumed 
 a subtler and deeper aspect than in the Eoman world. At 
 Alexandria the traditional doctrines of the Socratic school as 
 to the sources of ethical science, in place of being limited and 
 rendered more definite by being viewed exclusively as a reve- 
 lation in and through humanity, held by the characteristics 
 to which Plato had given partial recognition, of a revelation 
 1 Lord Campbell's Lives of the Justices, vol. ii. p. 391 . 
 
160 INQUIRY INTO THE HISTORY OF OPINION 
 
 to humanity. But though in laying claim to illumination, 
 Neo-Platonism offered meeting-points not only with the old 
 Shemitic traditions, but ultimately with Christianity, this side 
 of its teaching manifested itself in features x so exaggerated, 
 and often so entirely sensuous, as to alienate the professors of 
 a pure and spiritual faith. It was the common ground on 
 which their ethical systems rested which enabled the Christian 
 Fathers to join hands with the saner teachers of the old phil- 
 osophy, and to perceive the identity of object, and even in 
 many respects the analogy of method, which bound together 
 all genuine and honest seekers after truth. Even the learned 
 Jews, who contributed so characteristic an element to the in- 
 tellectual life of Alexandria, and formed, as it were, a con- 
 necting link between Christians and heathens, accepted the 
 common anthropology of nature, and in them it yielded the 
 same practical results. Professor Trendelenburg, in his Nat-ur- 
 recht? remarks that Philo had imbibed Stoical notions, and 
 mentions, as a consequence, that he condemned slavery as 
 contrary to nature. The same belief in the rectitude of 
 human nature which led the jurists at Pome to the idea of 
 the indefeasible and inalienable dignity of the person, thus 
 led the typical representative of old Jewish culture at Alex- 
 andria beyond them, to one of the most important practical 
 consequences of that idea, and one which, as we have just 
 seen, the jurists failed to derive from it. In like manner Cle- 
 ment, though professedly an eclectic, was more of a Stoic than 
 anything else, as indeed were all those who opposed the dualism 
 
 1 In extravagances somewhat resembling our table-turning and spirit-rapping. 
 
 2 P. 157. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 161 
 
 of the orientalized Gnostics on the one hand, and the blind 
 faith in continued and miraculous interposition, held by 
 the Montanists and the narrower Christian sects on the 
 other. 
 
 (C) Shemitic and Christian Anthropology. — The belief in 
 human autonomy constitutes the common element of heathen and 
 Christian faith ; or, in other words, of the revelation with refer- 
 ence to humanity which God has given thrmu/h human nature, 
 and to human nature. 
 
 We have now reached the point at which Aryan came into 
 immediate contact with Shemitic thought, and at which the 
 creed of God-created and God-developed is tested by that of 
 God-instructed humanity. And the question which we have 
 here to ask of history is, not whether the anthropological 
 doctrines of reason and revelation agreed in all respects, 
 or wherein they differed, but simply whether they coincided 
 in asserting the autonomous character of humanity. If the 
 answer be in the affirmative, it is manifest that the adequacy 
 of the natural sources of jurisprudence is affirmed, and, as a 
 necessary consequence, the exclusive pretensions of the theo- 
 logical school are shut out. 
 
 (a) The Bible. — Now, as regards the doctrine in question, 
 there is no essential discrepancy between heathen opinion and 
 the teaching of the Holy Scriptures. " God created man in 
 His own image, in the image of God created He him." 1 
 That is the original statement, and the doctrinal teaching of 
 the Old Testament mainly consists of its continual reasser- 
 tion. When we f;urn to the New Testament, in the passage 
 
 1 Gen. i. 27. 
 
 L 
 
162 INQUIRY INTO THE HISTORY OF OPINION 
 
 in St Luke's gospel a which sets forth the human pedigree of 
 Christ, we are again told that " Adam was the son of God ; " 
 and St Paul, preaching at Athens, brought the identity of 
 Christian and heathen belief on this point expressly before 
 his hearers, by referring to the heathen poets in support of his 
 assertion, that " we also are His offspring." 2 Nor is this 
 primary conception of the essential relation between the Divine 
 and the human, and the consequent autonomous character of 
 the persona, invalidated by the intervention of voluntary trans- 
 gression. The assertion that this parental image, marred and 
 defaced but not obliterated, is traceable in himself by every 
 subsequent member of the family, is consistently maintained. 
 It was as the Son of Man that the Son of God appeared on 
 earth, and encouraged the greatest sinner to address His and 
 Our Father in heaven. 
 
 (b) The Fathers. — It is not wonderful, then, that the Chris- 
 tian apologists accepted " the morality of Socrates as healthy 
 and sound," 3 or that the apostles themselves should have 
 made use of the very expressions in which the followers of 
 Socrates had clothed his ethical consciousness. We find, 
 accordingly, that it was the belief of Justin Martyr, and 
 Clement of Alexandria, and Origen, and in general of the 
 orthodox fathers of the Church, just as it had been of Plato 
 the Greek and Philo the Jew, that the Divine Logos, which 
 was present at the creation of man, was not alien from the 
 human Logos. 4 Nor did they hesitate to apply to the latter 
 
 1 iii. 38. 2 Acts xvii. 28. 
 
 3 Donaldson, Mist, of Chris. Lit. and Doctrine, vol. ii. p. 26. 
 
 4 Neand., Ch. Hist., vol. ii. p. 423. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 163 
 
 the very same epithet (Ao'yos o-irepnartKos) by which heathen 
 philosophers had characterized it. 1 
 
 "The Logos," says Justin Martyr, "was present at the 
 creation of man," and "the whole race of men partook of 
 Him." . . . " He is in every one." " The seed of the 
 Logos is implanted in the whole race of men, and those who 
 lived with the Logos were Christians, even though they were 
 reckoned atheists — such as among the Greeks, Socrates, 
 Heraclitus, and men like them ; and among barbarians, Abra- 
 ham, and Ananias, and Azarias, and Misael, and Elias, and 
 many others." 2 In proof of how entirely this view is in 
 accordance with best modern theological opinion, I might 
 quote to any extent not only from the writings of the " Broad 
 Church party," but even from such works as Mr Newman's 
 Avians, which was published before that party existed. 3 I 
 shall content myself, however, with referring to the second 
 Book of Bunsen's God in History ; and quoting a couple of 
 passages from Neander, in which he has expressed, very defi- 
 nitely, the opinion which pervades all his writings. 
 
 "Christianity proceeds on the assumption that all the tenden- 
 cies which belonged to the original idea of humanity, and which 
 had been distorted and circumscribed by sin, are to be realized. 
 This is what is meant by the saying of Christ, that He was 
 come not to destroy the law but 'to fulfil it, which must not 
 be understood as having reference only to the law of the 
 
 1 Zeller's Stoics, p. 162. Bunsen, God in History, vol. ii. p. 316. 
 
 2 Donaldson, ut sup., vol. ii. p. 225. 
 
 3 It was published originally in 1842, and reprinted, with the author's permis- 
 sion, by the Rev. O. H. Forbes of Burntisland, whose much learning did not lead 
 him in the direction of the Broad Church. 
 
164 INQUIRY INTO THE HISTOKY OF OPINION 
 
 Old Testament." In commenting on the miracle at Cana of 
 Galilee, he thus sums up his conception of its import : " It is 
 the peculiarity of Christ's spirit and labours, the peculiarity of 
 the work of Christianity, not to destroy what is natural, but to 
 ennoble and transfigure it ; to enable it, as the organ of Divine 
 power, to produce effects beyond its original capacities. To 
 energize the power of water into that of wine, is, indeed, in 
 every sense, the peculiar office of Christianity." 1 
 
 1 OeschicMe der ehristlichen Etlvik, p. 17. Nor does there seem any reason why 
 this process of the gradual realization of the human idea, even as regards its 
 manifestation in separate individual existence, should he confined to this life. 
 The strongest argument for the existence of the individual soul after death, has 
 always seemed to me to consist in the undeveloped possibilities which manifestly 
 belong to it. Individual peculiarities are not faults in our nature : they belong 
 to it normally ; they are part of its original conception, of its idea ; they are con- 
 stituents of the Ego, just as much as those which it possesses in common with 
 existence in general. Why then should not these constituents of each ideal Ego 
 survive, and receive more perfect realization, like its other constituents ? If 
 cessation of existence, in the sense of annihilation, be unthinkable as regards the 
 whole, why should it be thinkable as regards the part. The pantheists say that 
 the Ego survives, not as a separate Ego, hut as a constituent of universal existence. 
 But if separation, peculiarity, individuality, belong to the conception of the Ego, 
 how can the Ego subsist without them ? Or how can humanity subsist only as a 
 whole, in general, if the very conception of it he that it is something which is 
 made up of parts possessing special characteristics which must perish when the 
 individuals of whom they are the characteristics no longer subsist ? The analogy 
 of a drop returning to the ocean, so often used by pantheists, is nothing to the 
 purpose, because separation into drops forms no necessary part of our conception 
 of the sea, whereas separations into individuals does form a necessary part of our 
 conception of humanity. It is separability, not separation, which belongs to the 
 conception of water. We can think of a bucket of water apart from the drops 
 into which it might he divided. But separation into individuals belongs to the 
 conception of humanity. We cannot think of a mob apart from the individ- 
 uals into which it must be divided. You can have tea-cupfuls of water, table- 
 spoonfuls of water, &c. — the unity is arbitrary — but you can only have individuals. 
 When you come to human existence the unity is necessary. You cannot have 
 half a man, or a mob composed of legs, or arms, or heads, or feet. To annihilate 
 individuality, therefore, is to annihilate that which consists of individuality ; 
 
WITH REFERENCE TO HUMAN AUTONOMY. 165 
 
 (c) The Schoolmen and Ecclesiastical Jurists. — No mistake 
 could well be greater than to set down the ecclesiastical 
 writers on jurisprudence, previous to the Eeformation, in- 
 discriminately, as holding the opinions of such men as Bel- 
 larmine l and Molina, and consequently as representatives of 
 the theological school, in the sense of a school which ignores 
 any source of knowledge except direct revelation, as inter- 
 preted by the Church. We think of all these men mostly 
 as monkish ascetics, who had renounced this world for the 
 next, and whose prayer was not for "the garish day" 2 of 
 knowledge, but for guidance in a night of voluntary ignorance. 
 It is true that the idea which lies at the root of all asceticism 
 and fanaticism, whether Catholic or Protestant, whether heathen 
 or Christian, is always the repudiation of the teaching of 
 nature in its integrity. The hermit in his cave, or the 
 anchorite on his pillar, was a natural infidel, just as much as 
 the cynic in his tub ; and it is to be feared that the Protestant 
 
 and our choice seems to lie not between separate existence and pantheism, but 
 between separate existence and " Nirwana," in the popular sense of annihilation 
 — "blowing out." The objection to this argument, of course, is 'that to some 
 extent it is applicable to individuality as manifested in the lower animals, or 
 even in plants. It proves too much. — See the end of Sir A. Grant's article on 
 Grote's Aristotle in the Edinburgh Review, October 1872. 
 
 1 Bellarmine "used his influence over Pope Clement VIII. to prevent the intro- 
 duction of the Platonic philosophy into the University of Rome, on the ground 
 that it was pernicious ; and held the Pope to be the supreme authority in morals 
 as well as in doctrine." — Disputationes. See Chambers's Eneyelop. v. Bellarmine. 
 Molina wrote a commentary on the Summa of Thomas Aquinas, and an elaborate 
 treatise on Justice and Right, which I do not know. I am consequently not 
 entitled to speak of him. But if Bellarmine said that, "if the Pope declared 
 vice virtue, or virtue vice, we were bound to believe him," it is clear that he left 
 no ground for natural jurisprudence to stand on. 
 
 3 Newman's hymn, "Lead, kindly Light." 
 
166 INQUIRY INTO THE HISTORY OF OPINION 
 
 in Ms pulpit is not always free from the same reproach. But 
 it is to normal and sane, and not to one-sided and crack-brained 
 representatives of doctrines that we must look for their exposi- 
 tion. Saint Anthony and Saint Simeon were no more entitled 
 to be regarded as exponents of the theology or anthropology 
 of the Church, than Diogenes was to be regarded as a represen- 
 tative of the Socratic school, or a Eanter or a Shaker at an 
 American revival to be taken for a normal Protestant. But 
 even to the sanest of the ecclesiastical jurists, it will be said, 
 the Church took the place of nature, just as to ecclesiastical 
 theologians she took the place of the Bible ; and as the Church, 
 moreover, was her own interpreter, their jurisprudence must 
 thus have formed part of a theological system which excluded 
 any ultimate appeal to reason or to nature, even in secular 
 questions. It is this view, I am persuaded, that has handed 
 over to " the moth, the worm, and the spider," J more than one 
 work of genius and learning on the subject of our present 
 studies, to which the modern literature, even of Germany, 
 scarcely furnishes parallels. The allegation that the finality 
 which the Church asserted for her dogma, even as regarded 
 secular opinion, had the effect of excluding the laity from free 
 anthropological as well as theological inquiry, is no doubt true ; 
 and it is this fact which, down even to our own day, seems to 
 render the existence of Eoman Catholicism and political auto- 
 nomy irreconcilable. 2 In Germany they are resisting each 
 other like oil and water, and in Italy and in Belgium they are 
 
 i Hallam, vol. i. p. 373. 
 
 2 M. Renan, viewing it chiefly from its political side, speaks of the Reforma- 
 tion as " la plus belle chose des temps modernes." — La Mforme IntellecluelU et 
 Morale, p. 129. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 167 
 
 anything but reconciled. But in earlier times, except when 
 it gave rise to political antagonism, the dogma of the Church 
 did not affect either the methods of inquiry followed by the 
 clergy themselves, or the results of these inquiries, to anything 
 like the extent that is generally supposed ; and this for the 
 simple reason that the clergy were the Church. Beyond a 
 certain point, tradition was binding on the clergy themselves, 
 just as the admitted words of Scripture are binding on modern 
 theologians. Even Saint Thomas Aquinas could not contradict 
 Saint Augustin. Before he ventured to differ from him he 
 must explain him away. But, if the point chanced to be one 
 on which Saint Augustin neither required to be contradicted 
 nor explained — if Saint Augustin said that there was a reve- 
 lation of law through nature as well as to nature, 1 — then to 
 nature Saint Thomas could go. The door of science was open 
 to him. He could pronounce nature to be an immutable guide 
 to truth. 2 He could seek for a natural law for the govern- 
 ment of the human relations ; he could work out its realization 
 in time and place ; and this he could do by the observation 
 either of subjective or objective phenomena. Now this was 
 precisely what took place. Not Saint Augustin alone, but 
 the whole of the Fathers of the Church, maintained, as we 
 have seen, the continued presence of the .divine element in 
 humanity. This element it was the function of Christianity 
 to evoke and potentiate ; and its subjective utterances, conse- 
 quently, whether through the individual consciousness or that 
 of the race, formed a portion of the dogma on the strictest 
 
 1 See the De Ubero arbtt., i. 6, quoted Sum., Prim. Sec, quces. xoi. art. iii. 
 
 2 Veritas rerum naturalium immutabilis est, Prim., quaes, xvi. art. viii. 
 
168 INQUIRY INTO THE HISTORY OF OPINION 
 
 principles of orthodoxy. 1 Armed with this authority, and 
 true to the instincts of the Aryan race, the general problem 
 which the Schoolmen set before them was the reconciliation 
 of theology and philosophy, of faith and reason ; a problem, 
 the mere statement of which amounted to an assertion of 
 the fundamental rectitude of humanity, and the validity of 
 indirect or subjective, equally with direct or objective, rev- 
 elation. 
 
 Nor, on the assumption that truth is one, that, as Neander 2 
 has finely said, " there is no schism in the spirit," was their 
 position as honest seekers for truth affected by the allegiance 
 which they owed to the Augustinian maxim that " fides prse- 
 cedit intellectum," or by the fact that they began their investi- 
 gations from the theological and not from the philosophical 
 point of view. It was in the fullest confidence that reason had 
 nothing to reveal which faith need fear, that Anselm wrote 
 his Fides qucerens intellectum; and that Abelard, bolder still, 
 pronounced Christianity to be a Reformatio juris naturalis, 
 composed a work on ethics to which he gave the significant 
 title, Scito te ipsum, and maintained that " the old philosophers 
 came very near to apostolical perfection, and were not very 
 far, if at all, removed from Christianity." 3 Abedard, it is 
 true, was condemned as a heretic ; but the vast popularity of 
 his teaching, and the influence which it exercised even on his 
 opponents, showed to how great an extent his sentiments were 
 in accordance with the spiritual consciousness of his time. 
 
 1 " Catholica fides non solum dooet, quatenus parendum est Deo, supernatural - 
 iter prsecipienti, sed etiam quid nature vetet, jubeat, vel permittat." — Suarez, 
 de Legibus, ii. o. v. and vi. 
 
 2 Vol. viii. p. 19. 3 Neander, vol. viii. pp. 41, 42. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 169 
 
 We find, accordingly, that the characteristic of the third 
 period of scholasticism, from Alexander of Hales to Occam, 
 which included the brilliant era of Thomas Aquinas, was a 
 complete alliance between the Church and the Aristotelians 
 — a proclamation of the doctrine that the truth of reason is 
 essentially one with divine truth, and that, as Neander, fol- 
 lowing Thomas Aquinas, has somewhere said, " The Christian 
 graces of Faith, Hope, and Charity, are but the complement 
 of the old cardinal virtues of Prudence, Justice, Temperance, 
 and Fortitude." 1 
 
 It is a striking proof at once of the universality of this 
 belief, and of the influence of philosophical on theological 
 studies, that, in defiance of the exclusive tendencies of 
 Shemitic thought in the direction of the supernatural, the 
 Arabian scholars of this period became anxious to discover a 
 scientific basis for their creed also, and sought to perform for 
 "the Koran the same office that Christians were performing for 
 the Bible. 
 
 Grotius is often credited by his admirers with the merit 
 of having separated jurisprudence from theology, and vin- 
 dicated for the former the character of a secular science. 
 The statement is true in the sense of his having been the 
 earliest Protestant writer of importance on the subject ; and 
 having, as such, contended against the political subordination 
 of the laity to the clergy, and of the State to the Church, for 
 which the Spanish Jesuits, who were his immediate prede- 
 cessors, had argued so keenly. 2 But it is anything but true 
 
 1 As to the relation between them, v. Sum., Prim. Sec, quces. lxi. 
 
 a When Suarez, in arguing for the divine origin of the civil law, lib. iii. , sums 
 
170 INQUIRY INTO THE HISTORY OF OPINION 
 
 in the sense of his having separated the human element in 
 jurisprudence from the divine, or having discovered, or sought 
 to discover for it, any other basis than that which these 
 writers had ascribed to it. The divine character of that law 
 of nature to which he appealed as his ultimate authority, is 
 the key-note of Grotius throughout ; whilst, on the other 
 hand, the coincidence of the lex divina with the lex ncduralis, 
 and of both with the lex humana, finds no fuller recognition 
 in any part of the writings, of Grotius than in those remark- 
 able chapters of the Summa in which Thomas Aquinas treats 
 of laws, 1 in Dominic Soto's treatise De Justitia et Jure, or 
 in Suarez of Grenada's De Legibus et Deo Legislatore. That 
 Grotius did much to develop those cosmopolitan conceptions 
 of justice which we have traced to Socrates and the Stoics, 
 and with which the ecclesiastical writers — Suarez in par- 
 ticular 2 — were well acquainted, is beyond all dispute. But 
 it may be doubted whether the study of jurisprudence, as a 
 science of nature, gained anything very important, in point 
 of method, from his labours, 3 and the neglect of the true 
 method is a reproach which may be urged with far greater 
 justice against those who came after him, than against those 
 
 up with the exclamation, " Non immerit&, igitur, sub Mo saltern ratione, omnium 
 legum disoussio est Theologicae Faoultatis," it is impossible, knowing who he 
 was, not to suspect that he was influenced by considerations which were not ex- 
 clusively scientific. 
 
 1 Prim. Sec, qwxs. xc.-c. 2 ii. c. xvii. and xviii. 
 
 3 Grotius's claim to be the discoverer of the inductive method in jurisprudence 
 is on a par with that of Bacon to be the discoverer of the inductive method itself. 
 As to the latter, see Sir David Brewster's opinion, stated in a letter so early as 
 1824 — IAfe, p. 128 et seq. — and afterwards repeated in his Life of Newton. It 
 is surprising for how many good things Grotius and Bacon got credit from the 
 
WITH REFERENCE TO HUMAN AUTONOMY. 171 
 
 who went before him. The device of founding jurisprudence 
 on "contracts" and "conventions" dictated by personal or 
 national conceptions of "utility," was reserved for the eigh- 
 teenth century; and it was the prophets of the nineteenth 
 century, and of our own country, who first addressed them- 
 selves to the lofty and enlightened task of "modifying," 
 "adapting," and "limiting" the law of nature! 1 Grotius 
 seized the true spirit of the Baconian teaching, and there 
 can be no doubt that it influenced his own very favourably. 
 But it is difficult to imagine that he derived much help from 
 the little work which Bacon devoted expressly to the subject. 
 It is entitled, Be Justitia universali sive de fortibus Juris ; but 
 it does not fulfil the promise of its title. It consists of a 
 series of aphorisms, exhibiting much shrewdness, of course, 
 but very slenderly linked together, and making no claim to 
 the character of a system. 
 
 (d) The Reformation. — If the merit of Grotius, like that of 
 Bacon, consisted, not in the invention of any new or separate 
 method of inquiry, but in giving a wider range of application 
 to the method from which.no man of real insight had ever 
 departed — the method, namely, of investigating nature as the 
 only ultimate standard, or possible organ of truth' — his posi- 
 tion, in this respect, did not differ from that of European 
 thinkers generally since the time of the Keformation. The 
 single doctrine of " Les carrieres ouvertes " — let nature have 
 
 ignorance of their readers — e.g., the saying that "peace is the object of war," is 
 generally ascribed to Grotius ; but Aristotle, at any rate, had said ttSk^/wv /mc 
 etprivris x a P Lv {Politic., Ivii. 112), and I am pretty sure that oriental predecessors 
 could be found for both of them. 
 1 Infra, cap. ix. 
 
172 INQUIRY INTO THE HISTORY OF OPINION 
 
 her way — sums up not only all the truth of the Bevolution, 
 but all the novelty of the Eeformation. 
 
 Nature, since the Eeformation, in Protestant countries at 
 all events, has hidden her face from no one. In all directions 
 the artificial barriers to inquiry were then broken down. All 
 reapers were welcomed to the harvest of science. Each man 
 was not only permitted to think and labour for himself, but 
 was called upon to think and labour for all, each according 
 to the measure of his powers. But the field ' on which they 
 were to labour was the old field of nature, and the tools they 
 were to use were the old tools of natural reason. The field 
 was wide enough for all, and no one was so weak that he 
 might not pick up a straw, or break a clod. But the mis- 
 chief was, that, as all rushed in indiscriminately, the new- 
 comers impeded the work nearly as much as they forwarded 
 it ; and modern cultivation, in politics and jurisprudence 
 more especially, has consequently resembled the heaving to 
 and fro of a mob, rather than the onward march of a disci- 
 plined army. In politics, the autonomy of all has been pro- 
 claimed ; but its realization has been hindered by the claim 
 for the equal autonomy of each ; and a fact which the history 
 of antiquity might well have taught, and which ancient pre- 
 cept had abundantly inculcated, 1 is even now being learned 
 over again by bitter experience — the fact, I mean, that the 
 unfettered activity of all is rendered possible only by the 
 recognition of the natural distribution of gifts and powers. 
 Kbr did theology differ in this respect from secular science. 
 Luther discovered no new highway to truth. His appeal 
 1 Livy, i. cap. xlii. § 4. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 173 
 
 was not from dogmatism to reason — for all revealed religion 
 must be dogmatic, and reason is its only possible interpreter. 
 But he appealed from the dogma of tbe Church to the dogma 
 of Scripture, and from the reason of churchmen to the reason 
 of all men. The barrier between the Church and the laity- 
 was removed. The Bible was thrown open to all. All were 
 called to read ; and if the layman read deeper than the 
 churchman, his reading was not, professedly at least, rejected 
 by the Church. God was thus called upon, as it were, to 
 select His own interpreters. But even those who were thus 
 consecrated were rarely set aside to the work. When the 
 monasteries were destroyed, and the vast provision which our 
 ancestors had made for the support of the spiritual life of the 
 community was in a great measure diverted to other purposes, 
 the only order in the Church which may be said to have been 
 retained, and even reinforced, was that of Predicant Friars. 
 But the activity of the preaching clergy in disseminating 
 knowledge almost excluded them from its cultivation. Out 
 of the Universities, the pursuit of theological truth- was 
 everybody's business alike, and what is everybody's business 
 is nobody's business. The loss of the common language of 
 the learned, moreover, was very inadequately compensated by 
 translations, so that even in the countries which adopted the 
 doctrines of the Reformation in common, the theological 
 .teaching of the Churches had to rely mainly on national 
 resources. The doctrine of our universal priesthood was a 
 bold and emphatic proclamation of the divine element in 
 humanity. But from the other causes which I have men- 
 tioned, there is reason to doubt whether the Church of the 
 
174 INQUIRY INTO THE HISTORY OF OPINION, ETC. 
 
 Keformation, as a whole, has maintained the position which 
 naturally belongs to what is the spiritualizing institution, 
 par excellence, in all well-ordered communities. At the very- 
 outset, in asserting the opposition between faith and works, 
 it exhibited a tendency to forget the fundamental identity of 
 grace and nature. But, begotten of opposition, this tendency 
 disappeared with the occasion which had called it forth, and 
 the minds of men, such as Luther and Melanchthon, were 
 ultimately reconciled to the philosophy which for a time they 
 had repudiated. 1 With such partial and temporary excep- 
 tions, ultimate accordance between the dicta of nature and 
 those of revelation have either been taken for granted, or 
 stoutly asserted when called in question, from the days of 
 Wickliff 2 downwards, by all but the narrowest sects. A 
 scientific basis for ethics and jurisprudence has thus been 
 maintained by the better class of theologians, of whom the 
 so-called " Cambridge Platonists " 3 are the most conspicuous 
 examples in this country. Of course, it is impossible to deny 
 that clerical teaching has too often been confined within the 
 limits which each particular sect assigned to " the Word," and 
 Protestant has merely changed places with Catholic dogma. 
 That it has failed to occupy, with greater security, a position 
 
 1 Melanchthon was the author of several treatises on ethics, and not only 
 asserted the indispensability of philosophy as an auxiliary to theology, but re- 
 commended especially that of Aristotle, without confining his praise to his logic ; 
 whilst, in the sphere of practical activity, Bunsen has stated, as the fourth of the 
 five propositions in which the Reformer sums up the distinctive characteristics of 
 Protestantism, that " there is no difference between spiritual or religious acts 
 (so called 'good works') and secular acts." — Vol. iii. p. 200. 
 
 2 Neander, vol. ix. p. 238. 
 
 8 See Rational Theology in England in the Seventeenth Century, by Principal 
 Tulloch. 
 
HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 175 
 
 which is essentially untenable, is proved by the prevalence 
 of exaggerated naturalism in most of the modern schools of 
 secular thought. The " casting vote " * has been given to 
 reason, where no casting vote ought to have been called for ; 
 and a heathen character has thus been imparted to secular 
 science, from which it must be our effort to deliver it, with- 
 out permitting its free development to be fettered by any 
 final dogma whatever, either theological or philosophical. 
 
 CHAPTEE V. 
 
 HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 
 
 From the earnestness with which, in last chapter, I insisted 
 on the fundamental identity of heathen and Christian an- 
 thropological beliefs, the reader may possibly be disposed 
 to ask me why it was, if the theory of antique life was 
 not at fault, that the practical life of antiquity, which was, 
 or ought to have been, a realization of that theory, broke 
 down. My reply shall be comprised in a single sentence 
 — The want was not the want of knowledge, but the want 
 of faith — i. e., confidence that God by His grace, or special 
 presence in our nature, will aid us to realize His law 2 — 
 and of the strength 3 " to remove mountains " which faith 
 
 1 Tenneman, 282. 
 
 2 As to the distinction between Grace and Nature, see Kant, Religion, p. 259. 
 
 3 It is in the failure of this strength, or power to realize the law which nature 
 
176 HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 
 
 communicates. The law was not unknown, but it was " weak 
 through the flesh ; " 1 and thus the presence of the Divine was 
 recognized rather than realized. 
 
 " One is the race of gods and men, 
 And from one mother are we both descended : 
 But for the power — there the main difference lies. " 2 
 
 Apart from the doctrine of faith as the source of power, we 
 have difficulty in pointing to a doctrine that is exclusively 
 and exceptionally Christian. 3 And yet that doctrine, or 
 rather the fact of which the doctrine is the recognition, did 
 not originate with Christianity ; but, on the contrary, as has 
 been grandly said, faith "is an eternal reality, an actual ex- 
 istence in the spiritual world, as real as the physical forces 
 revealed by Galileo or Newton ; and which we have natural 
 faculties capable of discerning, when revealed to tos, in the 
 same way as we have faculties capable of apprehending 
 physical realities." 4 We can recognize its necessity when 
 found, but we could not find it ; and it is in revealing it 
 
 reveals, that we find the warrant for the jural recognition of the abnormal rela- 
 tions of war, neutrality, &o. Of this matter I shall treat fully in the Institutes 
 of the Law of Nations, which I hope soon to publish as a sequel to the present 
 work, and the introduction to which has already appeared in French under the 
 title of ProUgomenes d'un Systeme Raisonni de Droit International, Revue de 
 Droit International, livr. III., 1878. 
 
 1 Matt. xvii. 20 ; 1 Cor. xiii. 2 ; Rom. viii. 3. Augustin, Relractationes, i. i. 
 This point has been excellently brought out by Professor Seeley, Eeee Homo, 
 pp. 90, 175, 179, &c. 
 
 2 Cary's Pindar Bern. , vi. 
 
 3 "What is now called the Christian religion,'' says St Augustin, "has 
 existed among the ancients, and was not absent from the beginning of the 
 human race, until Christ came in the flesh, from which time true religion, which 
 existed already, began to be called Christian." — TJt sup., i. 13. Max Miiller's 
 Chips, pref. xi. 
 
 4 Erskine's Spiritual Order, p. 92. 
 
HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 1*77 
 
 that Christianity, of which it is the centre, differs from 
 heathenism. It is in this sense, I think, rather than as 
 "lighting another candle of the Lord," 1 that we must take 
 the saying ■' uhi desinit natura, ibi incipit gratia." 
 
 The imperfection of man's actual life was as well known, and 
 almost as deeply deplored in the heathen as in the Christian 
 world. The freedom of the will, and consequent voluntary 
 character of transgression, the justice of God, and the in- 
 separable relation between guilt and misery, were all clearly 
 recognized and freely acknowledged. Confession is an exer- 
 cise which has been familiar to the pious of all ages ; and 
 supplication, as has often been pointed out, has always been 
 the special characteristic of humanity. " Seul entre tous les 
 e"tres ici-bas l'homme prie." 2 Both confession and prayer 
 constitute important elements in the religious literature 
 which the later Stoics have transmitted to us, and oriental 
 literature is full of them. 3 Even the error of trusting to 
 
 1 Culverwell, p. 224. 3 Guizot, L'Eglise et la Sociiti Chrttiennes, p. 22. 
 
 3 By those who desire to give prominence to the exceptional character of Chris- 
 tianity, as well as by those who dispute the intuitive recognition of the Divine, 
 this point is often disputed in the case of Confucius, on what appears to me to 
 be very slender grounds. The most instructive passage I have been able to find 
 is in the eighth book of the Confucicm Analects, Legge, vol. i. p. 70, cap. xxiv. 
 ' ' The Master being very sick, Tsze-loo asked leave to pray for him. He said, 
 'May such a thing be done?' Tsze-loo replied, 'It may.' In the prayers, it 
 is said, ' prayer has been made to the spirits of the upper and lower worlds. ' 
 The Master said, ' My praying has been for a long time.'" On this Dr Legge 
 has a note with the very doubtful heading, ' ' Confucius declines to be prayed 
 for," in which he says, " Tsze-loo must have been referring to some well-known 
 collection of prayers. Choo-He says, ' prayer is the expression of repentance and 
 promise of amendment, to supplicate the help of the spirits. If there may not be 
 those things, then there is no need for praying. In the ease of the Sage, he had 
 committed no errors, and admitted of no amendment. In all his conduct he had 
 been in harmony with the spiritual intelligences, and therefore he said, My pray- 
 
 M 
 
178 HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 
 
 wisdom, 1 of believing in the perfectibility of humanity, and 
 in the possible realization of the human ideal by human 
 effort, with which the Stoics were so deeply chargeable, 
 was an aberration from the central creed of our race ; for 
 to the extent not only of recognizing the need, but of 
 cherishing the hope of aid from above, there can be no 
 question of the accuracy of Tertullian's assertion that the 
 soul is naturally Christian. 2 All of us, I am sure, remember 
 Horace's charming ode 3 to a country maiden, beginning — 
 
 ' ' Ccelo supinas si tuleris maims, 
 Nascente Lima, rustica Phidyle ; " 
 
 and to some of us M. Guizot's remark will occur — " C'est 
 sur une foi naturelle au surnaturel, sur un instinct inne" du 
 surnaturel, que toute religion se fonde." 4 
 
 " As under the (Mosaic) law," says Neander, " man's sense 
 of its insufficiency to work out his justification was accom- 
 panied by the promise of One who should accomplish what 
 the law could never do, so, in the progress of the pagan 
 mind under the law of nature, there arose a sense of the 
 
 ing has been for a long time.' "We may demur, "1idds Dr Legge, "to some of 
 these expressions, but the declining to he prayed for, and concluding remark, do 
 indicate the satisfaction of Confucius with himself. Here, as in other places, we 
 wish our information about him were not so stinted and fragmentary." To me 
 these expressions seem rather to indicate that Confucius prayed habitually, and 
 regarded his being prayed for by another, on an exceptional occasion, as super- 
 fluous. Even if they should go the length of indicating his disapproval of prayers 
 for health, it is by no means clear that his disapproval would have extended to 
 prayers for grace or for the guidance of the spirits along " the Path," whether in 
 health or in sickness. 
 
 1 Kant's Theory of Religion — Semple's translation, p. 68. 
 
 2 Apologet., c. 17. Neander, vol. i. p, 240. a Lib. iii. car. 23. 
 4 Guizot, itt sup., p. 20. 
 
HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 179 
 
 necessity of a new revelation from heaven, and a longing 
 desire for a higher order of things. The notion of a Messiah, 
 carried about by the Jews in their intercourse with different 
 nations, everywhere found a point of contact with the re- 
 ligious sense of men, and thus natural and revealed religion 
 worked into each other, as well as separately, in preparing 
 the way for the appearance of Christ." x 
 
 Scarcely in accordance with this, which is Meander's pre- 
 vailing view, is the passage 2 in which he seeks to confine 
 the idea of Christian humility to the Platonic system, on the 
 ground that the word Tcwmvos, 3 generally used in a bad sense, 
 is to be met with in Plato and the Platonists as the desig- 
 nation of a pious, virtuous temper ; or that * in which he 
 attacks Thomas Aquinas for adopting Aristotle's doctrine of 
 the fueyakoxlrvxta, which Neander declares to "belong wholly 
 to heathen morality, and to be necessarily connected with 
 the ethical self-sufficiency, the self- feeling of antiquity." 5 
 Now, so far from being peculiar to Platonism, I believe there 
 
 1 Neander's Life of Christ, p. 28. 2 Vol. p. i. 26. 
 
 3 raneivhrts—iuKpo^vx^a; Arist. Shet., 2, 6, 10. Socrates is said to have used 
 it in a good sense. 
 
 4 Vol. viii. p. 242. 
 
 5 A clerical friend has kindly furnished me with the following valuable re- 
 marks : " There is a right self-assertion which is nowise contrary to sound moral- 
 ity or to Christianity. St Paul is humble in his religious attitude towards God 
 and man ; but his humility does not stand in the way of a most decided self- 
 assertion in the presence of Agrippa, of Felix, and above all, towards the magis- 
 trates of Philippi, who had dared to wrong a Roman citizen, and then wanted to 
 hush up the matter without apology (Acts xvi. 37 ; cf. 2 Cor. x. 8). And perhaps 
 those are right who see a kind of self-assertion in the dignified refusal of Christ 
 to plead before a court unable to appreciate His position and claims (Matt, xxvii. 
 14)." See also Matth. v. 16, and Sir A. Grant's excellent note on Aristot. Ethics, 
 jv. iii. 35-37, vol. ii. p. 78. 
 
180 HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 
 
 is no system whatever, either of ethics or religion, which 
 ever obtained general acceptance with mankind, in which 
 the so-called Christian principle of humility does not appear. 
 We know, at any rate, that in Buddhism, the most prevalent 
 of them all, it holds a prominent place, and that it was 
 strikingly exhibited in the personal character of Confucius, 
 and strongly insisted on in his teaching. 1 I confess to you, 
 then, that I agree with Thomas Aquinas in thinking that 
 the genuine and normal opinion of antiquity, whether as 
 exhibited in the doctrine referred to, or in the central doctrine 
 of the Socratic ethics, did not exclude the idea of Christian 
 humility or any other Christian doctrine whatever* 
 
 And if subjective observation does not fail to tell us the 
 unwelcome truth of our own imperfections, objective observa- 
 tion is still more outspoken with reference to the imperfec- 
 tions of our neighbours. No two men's faults of character 
 are exactly alike ; and each is always fully alive to the exists 
 ence, in the other, of the faults which he does not share. 
 Even the faults which we have in common with others, if 
 we see them at all, are magnified to us when reflected on 
 an objective canvas. On the other hand, however, there 
 is nothing which has so great a tendency to conceal our 
 own shortcomings from us altogether as finding that they are 
 shared by vast masses around us. In such circumstances we 
 cannot see the wood for the trees ; and it is for this reason 
 that the members of great states or great communities are 
 always less cosmopolitan than the members of smaller ones, 
 the stage of individual culture being the same. A French- 
 1 Legge's Chinese Glassies, vol. i. p. 95, prolegomena. 
 
HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 181 
 
 man, for example, is a far more prejudiced being than a Swiss 
 or a Belgian; and there is no Englishman who is so insensible 
 to the defects of his own country, or to the merits of any- 
 other, as an Englishman who has been educated at a great 
 English public school, and who lives in London. "We have 
 only to look into a London newspaper in order to be con- 
 vinced that to such a person, not only Paris or Berlin or St 
 Petersburg, but even Edinburgh, is bewildering and often quite 
 unintelligible. Everything elsewhere that differs from what 
 he has been accustomed to in London appears to him . absurd ; 
 every opinion that is new to him he declares to be wrong ; 
 and thus, in later life at any rate, even travel is of no use to 
 him. But if his cosmopolitan vision be narrow, his metro- 
 politan vision is wide, and it does not follow that the faults 
 which he sees elsewhere are not often real faults. At all 
 events there can be no doubt that he believes them to be S0i 
 and that the view which he takes of the wisdom or virtue of 
 humanity, as a whole, is not an exaggerated one. 
 
 Abstractly, doctrinally considered, then, there is no reason 
 to impugn the completeness of nature's teaching. There is no 
 gap in the premises which consciousness and external observa- 
 tion place within the reach of reason. A man like Cicero 
 might, logically, have developed a rule of human relations 
 identical with that of Christianity, and he did, in fact, come 
 very close on such a rule, whatever may be said of the man- 
 ner in which he observed it. 1 
 
 But the light which nature sheds on the phenomena of the 
 will, though not deceptive, is flickering and intermittent ; and 
 1 See Froude's Caesar— passim. 
 
182 HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 
 
 either the fact of its freedom, or the fact of its feebleness, 
 almost always vanishes from the sphere of mere human vision. 
 The former has been the error of most Asiatics, whose ten- 
 dency is to lapse into fatalism. The latter was that of the 
 energetic and self-confident nations of classical antiquity. 
 The Stoics, it is true, were the Pharisees of natural religion, 
 as Josephus, who was himself a Pharisee, said of them. But 
 as the Pharisees were exaggerated rather than exceptional 
 Jews, so the Stoics were exaggerated rather than exceptional 
 Gentiles. The pride which peeped through the holes in the 
 mantle of Antisthenes was the besetting sin of antiquity as a 
 whole. The belief that, being awovofUK, man must also be 
 avrapK-q's, rested on a partial reception of the teaching of con- 
 sciousness, and a consequent failure to recognize the contra- 
 dictory principles which, however mysterious their union may 
 be, consciousness does unquestionably reveal. Such a violation 
 of the law of integrity will be more or less exhibited in pro- 
 portion to the extent to which men have departed from or 
 adhered to the central creed of the race. The notion of 
 avrapKnua. (self-sufficiency), so prominent in Aristotle, is less 
 conspicuous in Plato ; and in the teaching of their great 
 master it probably appeared in a still more qualified shape. 
 But it corresponds to the fallen side of humanity. No 
 system of mere human ethics has ever proved an adequate 
 safeguard against it, which did not speedily degenerate into 
 the opposite error. Even if Stoics and Epicureans had never 
 rent humanity in twain, there is no reason to believe that 
 Socraticism would have succeeded in preserving the balance 
 between the deification of the will which dishonours God, and 
 
HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 183 
 
 the fatalistic distrust of it which dishonours His creature. 
 Even within the pale of the Christian Church one or other of 
 these tendencies has been at the root of almost every heresy 
 that has arisen; and it may now, I think, be laid down as a 
 dictum of experience, that they represent the two directions 
 in which the anthropology of unaided reason tends to conflict 
 with that of revelation, and in so doing, to diverge from the 
 actual teaching of nature. In asserting that " man is a law 
 unto himself," and even in enunciating that law, the revelation 
 through nature and the revelation to nature are at one ; but it 
 is the latter alone which consistently couples this fact with 
 the asseveration that " strength belongeth unto God." 1 It was 
 only by the reunion of the human to the divine, by means of 
 the incarnation of Christ, and the continued communication 
 of His grace, that humanity could be potentiated to receive the 
 law which it had never ceased to proclaim. 
 
 But here it is, too, that anthropology passes into theology ; 
 that ethics and jurisprudence, sensible of their own insuffi- 
 ciency, take refuge in religion ; and that academic students 
 and teachers touch the boundary line which divides the 
 Faculty of Law from the Faculty of Divinity. 
 
 1 Ps. lxii. 11. 
 
184 HOW MAN BECOMES COGNIZANT 
 
 CHAPTEE VI. 
 
 HOW MAN BECOMES COGNIZANT OF THE KULE OF LIFE. 
 
 Having seen reason to conclude that, even in the absence of 
 supernatural revelation, ' mankind acknowledges, and always 
 has acknowledged, the presence of an internal rule of life, our 
 next investigation must have reference to the manner in which 
 he becomes cognizant of this rule. 
 
 (a) The rule of life is prescribed by our whole nature, and 
 consequently, in accepting the maxim, "follow nature," we em- 
 ploy the word nature, not in a higher and different, but in a 
 " wholer," more complete, and more perfect sense than is popularly 
 attached to it. 
 
 The second of the three rules which Sir William Hamilton 
 has given us l for verifying the apparent dicta of our nature — 
 viz., that "the whole facts of consciousness must be taken 
 without reserve or hesitation" — is that of which the for- 
 getfulness has perhaps most gravely invalidated both the 
 theories and the practice of men. 2 As regards the matter in 
 hand, at all events, you will find that the distinction between 
 what is true or false in anthropology turns, almost invariably, 
 on whether or not this " law of integrity " has been obeyed. 
 
 tics, vol. i. p. 268. 
 
 * It has always appeared to me that one of the most useful directions in which 
 concrete logic could be prosecuted would be in the construction of a science of 
 aberrations. Aristotle has laid the foundation of this, as of so many other in- 
 quiries, in his doctrines of the iraptK$&<rfis. — Politic, lib. iv. c. ii. 
 
OF THE RULE OF LIFE. 185 
 
 On such a subject total error is scarcely possible for any one 
 who retains the instincts of a man, and accordingly, there is 
 no anthropological system of any importance which does not 
 rest on a modicum of truth. But, on the other hand, from 
 the extent to which opinion is influenced by temperament and 
 genius, both national and individual, there is no subject on 
 which exaggeration and consequent one-sidedness have been so 
 conspicuously exhibited. It was by failing to accept the teach- 
 ing of nature in her integrity that the Cynics and the Stoics 1 
 fell away from the Socratic ethics in the one direction, and 
 the Cyrenaics and Epicureans in the other, till the one sect 
 almost forgot that they had bodies, and the other that they 
 had souls. Their respective merits, it is true, were very dif- 
 ferent, for the ODe obeyed an elevating and saving, and the 
 other a degrading and destroying tendency. But their errors, 
 if not equally perilous in their practical, were equally extrava- 
 gant in their theoretical results ; for whilst Epicureanism, like 
 modern Sensationalism, ended in denying the existence of any 
 absolute criterion of conduct, and thus proclaiming the impos- 
 sibility of ethics altogether, Stoicism ended in a rule of life, 
 the realization of which was impossible, and which, if realized, 
 would have been fitter for Prometheus on the rock, or Mil- 
 ton's Satan, than for beings whom God had created to obey in 
 order that they might enjoy. The phenomenon which these 
 divergent sects exhibited, in a manner so prominent as to 
 render them the typical instances of it to other ages, is one 
 which history has repeated in endless phases, and which our 
 own life is continually reproducing. In heathen times it 
 
 1 Ante, cap. iv. 
 
186 HOW MAN BECOMES COGNIZANT 
 
 was only when so wonderfully complete a manifestation of 
 humanity as Socrates appeared, that men were recalled for a. 
 time to a sense of the harmonious character of nature as a 
 whole, and that a stride was made directly upwards, which 
 crowded more history into a single life than many ordinary 
 generations exhibit. Under Christian influences, progress, on 
 the whole, has been less intermittent, because, apart altogether 
 from its supernatural action on the will, one of the effects of 
 Christianity has been to keep the harmonious character of 
 nature, and, as a consequence, the organic character of society, 
 more steadily before the eyes of men. It is in its sanity 
 rather than its novelty that the etbical teaching of Christianity 
 surpasses that of the Socratic School. But Christianity itself 
 is one thing, and Christianity as interpreted by human teachers 
 is quite another thing ; and we have had many anthropological 
 doctrines in Christian times which were not Christian. 
 
 (b) Conscience is not a separate faculty ; but the phase in 
 which our whole normal nature appears, when manifesting itself 
 ethically. It may be briefly defined as moral-consciousness. 
 
 The most recent example of the class of errors which 
 springs out of a violation of the law of integrity 1 consists in 
 representing our knowledge of right and wrong as imparted 
 to us by an exceptional organ, which is so far from being in 
 harmony with our other faculties and senses, that its very 
 object is to condemn the impulses of our general nature. As 
 Scotland is still, 2 probably, the headquarters of this ethical 
 
 1 Hamilton, Metaph., vol. i. p. 268. 
 
 2 I am glad to know that the doctrine of conscience is not taught, in this sense, 
 by the present learned occupant of the Chair of Moral Philosophy in Edinburgh. 
 I hope it now rarely finds utterance in the pulpit. If the harmouy of the 
 
OF THE RULE OF LIFE. 187 
 
 heresy which she contributed largely to originate, it seems 
 desirable that we should consider it in somewhat greater de- 
 tail than is consistent with the general scheme of this work. 
 It is generally supposed that the device of thus accounting 
 for our moral emotions belongs altogether to modern times, 
 and the discovery of the "moral sense" is ascribed to Lord 
 Shaftesbury, whilst our own Hutcheson l gets credit for 
 having developed the theory of its action. But this state- 
 ment, though true in the main, is not altogether true. I do 
 not attach much importance to the fact pointed out by Pro- 
 fessor Trendelenburg, 2 that the word conscience (conscientia, 
 avveiSrjo-is), even when taken to indicate the ethical information 
 which our nature conveys .to us with reference to itself — 
 what we may call its ethical self-revelation — is not to be 
 found in Greek philosophy before the time of the Stoics, and 
 scarcely anywhere in Scripture except in the Epistles of St 
 Paul. That fact, as it seems to me, amounts merely to this, 
 that the language of philosophy, and language itself through 
 philosophy, were enriched as time went on, and as thinking 
 
 teaching of conscience with the fundamental impulses of our nature be admitted, 
 the question whether it be or be not a separate faculty may, for practical pur- 
 poses, be relegated to the sphere of ethical psychology. It needlessly complicates 
 our conception of our moral nature, but does not exclude natural law. The as- 
 sumption of such a faculty is a sin against " the law of parsimony,'' rather than 
 against the law of integrity, though the statement of its necessity gives to it 
 something of this latter character also. If the other faculties and impulses of our 
 nature are in need of it, they cannot be fundamentally sound. Its assumption 
 is still a libel on nature in general. — Calderwood, p. 78. 
 
 1 Hutcheson, Eeid, and Stewart held the same opinion with reference to in- 
 tellectual as to moral consciousness ; and the whole of the discussion in Lectures 
 XI. and XII. of Hamilton's Metaphysics (vol. i. p. 182 et seq.) is applicable to 
 the subject of this chapter. 
 
 2 Naturrecht, p. 53. 
 
188 HOW MAN BECOMES COGNIZANT 
 
 became more definite and precise. It does not indicate any 
 change of opinion with reference either to human nature or 
 the methods of its revelation, and this indeed is very much 
 Professor Trendelenburg's own view. 1 But it is important 
 to remark that the sense attached to the word, when it did 
 come into technical use, whether by the later representatives 
 of the Socratic school of ethics, or by the orthodox Christian 
 Church, was not that of a separate faculty, still less of a 
 sense, resembling, in any degree however remote, our physical 
 senses. Conscience, as they understood it, was not a part 
 of our nature sitting in judgment on the rest of our nature, 
 and condemning it ; but the phase in which our whole, and 
 as such, our normal nature appears when manifesting itself 
 ethically. 
 
 The common statement then is correct, in so far as it 
 affirms, merely, that Lord Shaftesbury's theory had not been 
 anticipated by St Paul and the Stoics, nor yet by such 
 writers as Cicero, 2 who uses the word " conscience " in the 
 sense which has always been attached to it in popular 
 speech — the sense, viz., of ethical reflection — a sense to 
 which Bishop Butler adhered, and which is far more in 
 accordance with the ancient theory than with the modern 
 one. But the moralists of the eighteenth century had a 
 predecessor of another class whom they would have been 
 
 •en, vol. iii. p. 199. 
 
 2 Kg., " Conscientia conviotus, repente conticuit" (In Oat. 3, 5); "magna vis 
 est conscientiae " (pro Mil. 23, 61), &c. Professor Blackie has pointed out that 
 (rvviiSria-is, as a popular word, is "as old as Periander and Bias." — Four Phases 
 of Morals, p. 366. As to the period of its introduction into philosophy, see 
 Hamilton's Metaph., vol. i. p. 197. 
 
OP THE RULE OF LIFE. 189 
 
 less willing to acknowledge. The existence of an excep- 
 tional moral faculty, or moral sense, was a doctrine of our 
 countryman, if such he was, the heretic Pelagius, in the 
 fifth century — a doctrine which he opposed to the orthodox 
 teaching of the Church as represented by Augustin. In 
 obedience to this hypothesis, Pelagius denied not only the 
 Socratic doctrine of the fundamental rectitude of humanity, 
 which the Church held, but the especially, though not ex- 
 ceptionally, Christian doctrine of the Fall ; for it was un- 
 necessary to -assume that a nature had fallen which was 
 originally imperfect. It is an instructive instance of the 
 manner in which every error involves all error, as every 
 truth involves all truth, that a denial of the original recti- 
 tude of humanity should, by leading to the denial of sin, 
 have developed itself into a theory of the perfectibility of 
 human nature by its own efforts, and thence to the denial 
 of the necessity of divine grace! Yet such appears to have 
 been the outcome of Pelagius's speculations, and still more ex- 
 plicitly of those of his friend and disciple Ccelestius. 1 With 
 this curious glimpse into the experience of the fifth century 
 to guide us, let us see how the doctrine of the moral sense 
 originated, and what have been the consequences that have 
 resulted to our own and other branches of science from its 
 adoption, in our own age. 
 
 In Shaftesbury's mind it arose as a protest against the 
 moral scepticism which had resulted from Locke's rejection 
 of the theory of innate ideas. If sensation and reflection on 
 sensible phenomena were the only sources of our knowledge, 
 
 1 Meander, vol. iv. pp. 229, 309. 
 
190 HOW MAN BECOMES COGNIZANT 
 
 the existence of a moral sense, or organ of direct moral cog- 
 nition, seemed necessary to enable our nature to prescribe 
 rules for its guidance. The merit of the hypothesis consisted 
 in placing in an intelligible light, not necessarily inconsistent 
 either with the metaphysics or theology of the time, the 
 assertion that man could distinguish right from wrong, with- 
 out denying the sinfulness of his human nature, which its 
 authors conceived themselves bound to admit. They re- 
 volted from the moral scepticism of the age, but they were 
 not bold enough to break loose from the narrow and erron- 
 eous interpretation of Christianity out of which, in conjunc- 
 tion with the metaphysics of Locke, this scepticism had 
 sprung. Their theological guides dwelt on the too obvious 
 fact that the heart of man is " deceitful above all things, and 
 desperately wicked," 1 and applied the dictum to the original 
 and fundamental conception of humanity : their philosophical 
 guides assured them, not without reason, that if this was so, 
 man as man could not distinguish right from wrong, and that 
 natural ethics and jurisprudence, in any other sense than mere 
 empiricism, were impossible. They were resolved to escape 
 the conclusion, but they feared to touch either of the pro- 
 positions on which it rested; and they attempted to evade 
 the dilemma in which they found themselves by the assump- 
 tion of a natural faculty opposed to nature. But the remedy 
 was still an ineffectual one ; for, as their opponents were not 
 slow to urge, the moral sense was still but a part of a nature 
 fundamentally corrupt ; and if the fact of its approval or dis- 
 approval was the criterion of right and wrong, moral distinc- 
 
 1 Jer. xvii. 9. 
 
OF THE RULE OF LIFE. 191 
 
 tions, if not arbitrary, were relative to the individual, and 
 there was still no absolute rule of life. In order to escape 
 from this consequence, it was necessary that conscience should 
 be made, not a legislator, but a judge — not a lawgiver, but 
 an interpreter of an absolute objective law ; and accordingly 
 it was declared to be the voice, not of humanity either normal 
 or abnormal — not God's voice in nature — but God's com- 
 mands to nature, — each separate dictum thus becoming a 
 direct revelation. By this means the absolute character of 
 moral distinctions was saved ; but it was saved at the ex- 
 pense of presenting a wholly erroneous conception not only 
 of human nature, but of the Divine nature itself. For whose 
 work, in this case, was our general nature, and whose voice 
 spoke in its normal impulse ? Was God's voice raised only 
 to condemn His own work, or was the whole nature of man, 
 with the single exception of one alien faculty by which it 
 was judged and condemned, the work of the devil ? Here 
 surely was dualism or Manichseism, at the very least of it. 
 When stated thus broadly, it is plain enough that such a 
 conception of humanity is at variance with all religion, both 
 natural and revealed, and conflicts most flagrantly with our 
 daily experience of God's nature and government ; and yet it 
 is grievous to think that we should, all of us, have heard it 
 preached so often. 
 
 Then how was the moral progress, or retrogression, which 
 was visible both in individuals and in communities, to be 
 accounted for, and what has always been one of the strongest 
 arguments of utilitarianism to be met, if the presence of such 
 an infallible oracle was inseparable from the possession of a 
 
192 HOW MAN BECOMES COGNIZANT 
 
 human soul ? No advance in intelligence could render more 
 audible a voice which all must hear, or make clearer com- 
 mands which none could misunderstand. Knowledge and 
 virtue were thus dissevered, and the study of nature, in any- 
 other direction than physics, even if possible, was needless. 
 In order to know his duty, man had only to listen, and the 
 " reverential study of social and political science," which, we 
 are told, the Buddhists regard as " the highest religious 
 duty," 1 was henceforth to be abandoned by Christian nations. 
 The Empirics were thus left in undisputed possession of the 
 field of science by those who professed to be their stoutest 
 opponents. It is true that those who reject the theory of a 
 special moral faculty do not always refrain from laying upon 
 consciousness, as a whole, the unnecessary burden of reveal- 
 ing a ready-made moral law. Kant was no believer in " an 
 innate sense or guardian nature which whispers into our 
 ear," 2 and yet he held the moral law, as such, in its com- 
 pleted form, to be revealed to us as a practical law h priori. 
 " If the question be put, . . . how do we arrive at the 
 consciousness of the moral law ? The answer is the same 
 as in the case of any other proposition A priori, that we are 
 conscious of a practical law (n priori, as we are conscious of 
 theoretical ones, by attending to the necessity with which 
 reason obtrudes them on the mind." 3 Again, " our con- 
 sciousness of this fundamental law is an ultimate fact of 
 reason, for it issues from no preceding data — e.g., the con- 
 
 1 Alabaster, The Wheel of the Law, p. 22. 
 
 2 Semple's trans, of the Metaph. of Ethics, p. 41. See also pp. 39, 92, 112, &c. 
 
 3 lb., p. 101. 
 
OF THE BULE OF LIFE. 193 
 
 sciousness of freedom — but is thrust upon the mind directly, 
 as a synthetic b, priori proposition, and is bottomed on no 
 intuition whatever, whether d priori or & posteriori. . . . 
 When it is said that this law is given, I beg it may be under- 
 stood that it is not known by observation and experience, 
 but that it is the single isolated fact of practical reason, 
 announcing itself as originally legislative — sic volo, sic jubeo." 1 
 Kant's objection to utility, as the test of morality, is the well- 
 founded one that it requires extended experience and ac- 
 quaintance with the world, and thus assumes the knowledge 
 which it professes to communicate. Now, the very same 
 objection, as it seems to me, applies to the assumption of 
 a ready-made moral law. The law which Kant asserts to 
 be thus revealed, as you are no doubt aware, is his famous 
 " categorical imperative," or fundamental moral law of reason : 
 "So act that thy maxims of will might become law in a 
 system of universal moral legislation." 2 I cannot but think 
 that this law contains a great deal not only of reason, but 
 of reasoning and observation, that it is far too complicated 
 a matter for consciousness to reveal by any single act, and, 
 with all due deference for so great an authority, that, in 
 enunciating it, Kant sinned against Sir William Hamilton's 
 " law of parsimony " as egregiously as the Scottish moralists 
 in general have sinned against his " law of integrity." How, 
 for example, is any one to know, with reference to a par- 
 ticular act, that it is " fit for law universal," any more than 
 that it is useful or expedient ? Is not the question at issue 
 this very " law universal," the knowledge of which Kant does 
 
 1 Semple's translation of the Metaph. of Ethics, p. 103. " lb., p. 102. 
 
 N 
 
194 HOW MAN BECOMES COGNIZANT 
 
 not explain, but gratuitously, needlessly, assumes, just as the 
 utilitarian assumes our knowledge of what is expedient or 
 useful ? The difficulty is always with the " what." When I 
 am told to "follow what is useful" I have still to ask 
 " what is useful ? " "When I am told to follow " what is 
 according to law universal," I must ask " what is according to 
 law universal ? " But " conscience " and " nature " are both 
 measures of the " what ; " and all I contend for is, that 
 nature as a whole is a better measure than conscience, 
 which is only a part of nature. 
 
 The only hypothesis, then, which appears to explain, our 
 knowledge of the absolute law, without running us into 
 anthropological dualism, appears to be that which identifies 
 conscience with the dicta of our general and normal nature 
 as a whole, as opposed to our special and exceptional nature, 
 and which looks for the moral law, the rule of life, as a 
 gradual manifestation and recognition of this nature, to and 
 by itself. 
 
 The manifestation, I say, will be gradual, as well as the 
 recognition ; by which I mean that what is actually mani- 
 fested to the individual will become more definite iu its 
 outline at every stage of our increasing moral stature ; 
 for the more perfect the man is, the more perfect will be 
 the type of humanity which he manifests to himself, and 
 the consequent test of the quality of actions with which 
 his nature supplies him. 1 It is the ultimate object of the 
 manifestation, the ideal in which the human meets the divine, 
 which alone is unchangeable. Humanity, like the burning 
 1 As to the study of savages, vide ante, p. 67. 
 
OF THE KULE OP LIFE. 195 
 
 bush, is always divinely illuminated, but it becomes more 
 capable of gazing -on the ineffable light that is within it 
 as its moral eyesight strengthens. It is in "this strengthening 
 of the moral eyesight that the development of conscience, 
 or, as I prefer to say, ethical progress, consists. The law 
 that is within a savage is the self-same law that is within 
 a civilized man, otherwise the savage would not be a man ; 
 but the savage does not know — is not conscious of the law to 
 the same extent. Such I believe to be the ethical creed at 
 which most men who are capable of forming one at all are 
 arriving ; and it is highly noteworthy that the moral con- 
 sciousness of the modern world, in this as in so many other 
 instances, seems fast tending to identify itself with what was, 
 at bottom, the prevailing consciousness of humanity, even 
 in heathen times. In order that you may see how complete 
 this identification in some cases has become, let me first refer 
 you to a passage in Trendelenburg's Natural Law, 1 in which 
 he has stated the characteristics and functions of conscience 
 as he understands them. " The appetites and desires, con- 
 fined and limited, are separate and particular sides of human 
 nature, of the human being regarded as a whole ; and an evil 
 conscience consists in the reflex action of the whole man 
 against a part which has attempted to assert an undivided 
 supremacy — an action which exhibits itself in the form of 
 remonstrances, accompanied with certain painful aid pleasur- 
 able emotions. The phenomenon of a good conscience is still 
 more readily intelligible. It is the assent of the whole man 
 to the action of a part which has remained in harmony with 
 1 Naturrecht, p. 56 et seq. 
 
196 HOW MAN BECOMES COGNIZANT 
 
 his general nature. What is called a warning conscience 
 still rests on the same ground. It consists in remonstrances 
 which, arising out of the whole man, forbid the promptings 
 of the self-asserting part before they have vindicated their 
 supremacy by action. In this view conscience consists in 
 the action and retro-action of the whole man against the 
 parts, by means of remonstrances with their attendant feel- 
 ings, and as such the conscience is the power which ratifies 
 the decrees of the will. Moreover, as the whole man is 
 founded in the idea of humanity, and this idea originates 
 with God, the feelings of conscience necessarily remount, 
 in their own proper train, to the relation with the divine. 
 In this sense conscience is the voice of God within us, 
 which, deeply seated in the recesses of our nature, and 
 uncorrupted, seeks honour from God and not from man. 
 In conscience man rests upon himself and his God. It is 
 he who thinks, it is he who feels ; but what he thinks, 
 and what he feels, he thinks not as the dictate of his dis- 
 cretion, he feels not as his liking, but as what, for the will, 
 is a matter of necessity. It is for this reason that man 
 perceives in conscience the deepest unity of his nature, 
 and that where conscience is not recognized he becomes a 
 mere machine." " Language," he continues, " has striking 
 pictures by which to characterize those acts of self-judgment 
 which terminate in profound emotions. She speaks of the 
 conscience being stunned and benumbed ; thereby indicating 
 that condition in which either the old desires and passions, 
 or some new-born desire or passion, has so absorbed the whole 
 man as to prevent any association of ideas from an opposite 
 
OF THE RULE OE LIFE. 197 
 
 point, any thought which represents the whole man from 
 coming to light, or from gaining the ascendancy. A sleep- 
 ing conscience, again, is opposed to a waking conscience, 
 the former exhibiting very nearly the phenomena just de- 
 scribed, whereas the latter indicates the condition in which, 
 after peace has been established, either the whole man, or 
 another side of the man from that which dominated him 
 before, comes into action, and vindicates the ascendancy of 
 his better impulses." 
 
 In the sentences which conclude this remarkable passage, 1 
 Professor Trendelenburg refers to a subject which I have 
 just indicated, and which, more or less explicitly, will occupy 
 us again and again. I mean the development of conscience, 
 public and private. For the present I shall translate his 
 words without comment, merely by way of breaking ground. 
 
 " "When the rise of conscience is correctly stated," he says, 
 " in its natural connection and mental origin, it becomes 
 evident that it is no ready-made organ, with a definite and 
 positive purport, but that it develops itself in the midst 
 of the relations of life and the experiences of the individual. 
 Though the idea of the whole man — the idea of humanity 
 in the individual — which constitutes the last determining 
 ground of conscience, is the same always and in all, it 
 depends upon a number of subjective circumstances which 
 are ever changing in the inner life of the individual to what 
 extent the whole man is active through means of conscience. 
 By directing our attention to the manner in which conscience 
 
 1 Very sad that we shall have no more passages from that pen. Ave, pia 
 anima 1 January 1872. , 
 
198 HOW MAN BECOMES COGNIZANT 
 
 is developed, we become acquainted with the means by which 
 it may be awakened and sharpened, rectified, deepened, called 
 into action, and guarded, in- order that it may become a clear 
 and pure divine voice. Of itself it is exposed to individual 
 distortion and deception. Pride and vanity, inseparable 
 from the natural man, contribute largely to what is called 
 a good conscience ; and the fear of man is not unfrequently 
 that which presents itself in the form of an evil conscience. 
 The constraint and solicitation of the passions assume the 
 character of ethical necessity and freedom. For these reasons 
 the judgments which we form of our individual actions 
 deserve the name of dicta of conscience only in so far as 
 they arise from a frame of mind which is elevated above 
 selfish considerations into the region of the good." 1 In 
 criticising this passage, Professor Calderwood says : " The 
 ground is solid, but not sufficient. In two respects the 
 insufficiency appears, ' The whole man does not always 
 resent the action of the self-seeking part ' — den selbstsuchtigen 
 Theil, — and what then ? But more especially, we want an 
 explanation of antagonism or acquiescence. And if we may 
 progress in our feeling of resentment or approval, we 
 need knowledge in order to determine the line in which 
 progress shall be esteemed true moral culture." 2 In 
 answer to the first of these objections — "that the whole 
 man does not always resent the action of the self-seeking 
 part" — I ask if man is to be regarded only at times as a 
 moral and responsible being ? The contention of Professor 
 Trendelenburg, in which I concur, of course is that the 
 
 1 See, to the same effect, Krause, p. 38. 2 Handbook, p. 79. 
 
OP THE RULE OF LIFE. 199 
 
 general nature always resents the rebellion of the part, 
 though its resentment may be ineffectual, — why it should 
 be so is another question, -which would lead into a dis- 
 cussion of the nature of sin. Then, as to the second ob- 
 jection — that "we want an explanation of antagonism or 
 acquiescence " — I reply that the antagonism or acquiescence 
 of our general nature, as opposed to a part, is not more 
 inexplicable, and is surely more authoritative, than the an- 
 tagonism or acquiescence of a part, as opposed to our general 
 nature. 
 
 The other expression of opinion to which I wish to call 
 attention, though less developed, points clearly in the same 
 direction. Sir Alexander Grant, in the second essay prefixed 
 to his Aristotle, says : " The very word ' conscience,' on 
 which right so much depends, is only another term to express 
 ' consciousness,' and a man differs from a machine in this, that 
 the one has a law in itself, — is moved, as Aristotle would say, 
 Kara Xoyov; the other is moved jueto Xoyov, has the law both in 
 and for himself." 1 The use of the word " consciousness " in 
 this passage, as identical with conscience, would alone seem 
 decisive as to which side of the controversy Sir Alexander 
 Grant had embraced, for " consciousness " surely is not a 
 separate faculty. 
 
 My special reason for insisting that .conscience is the reve- 
 lation of our whole nature, and not of a special faculty, will 
 be apparent to you when you come to see that it is this view 
 of the indivisibility of our moral nature which warrants our 
 -repudiation of the distinction between perfect and imperfect 
 
 1 Vol. i. p. 49. 
 
200 HOW MAN BECOMES COGNIZANT 
 
 obligations, and furnishes the foundation for the positive, or 
 what has been called by its German expositors, the " harmon- 
 ious " system of jurisprudence. 1 But in connection with the 
 historical considerations recently submitted to you, it is im- 
 portant to remark that, in the fact that we appeal to our 
 whole nature for the rule of life, we have the answer to the 
 polemic, — not against the peculiarities of Stoicism indeed, 
 which, when Stoicism is taken in its separate and special 
 aspect, I regard as unanswerable, — but against the maxim 
 "follow nature," itself, a polemic which Sir A. Grant — not 
 very consistently, as it seems to me, with the passage I have 
 just quoted to you — has extended to that maxim even in the 
 form in which it was revived by Bishop Butler in his Sermons 
 on Human Nature. 
 
 Sir Alexander Grant speaks disparagingly of Butler. " Into 
 the difficulties of the question," he says, " Butler has not 
 entered. For instance, while he is perfectly successful in 
 establishing against the Hobbists the reality of the moral 
 elements in man's nature, he does not tell us whether or not 
 he would agree with the Stoics in ultimately giving the entire 
 supremacy to a man's reason and conscience, so as to supplant 
 the other instincts, or at what point he would stop." Had 
 Sir Alexander Grant said that Bishop Butler does not explain 
 all the phenomena presented by the action of the will ; that 
 he does not tell us why we do not always will to act in 
 accordance with the fundamental principles of our nature ; or 
 why, when we do so will, or seem to ourselves to will, our 
 willing meets with insuperable internal impediments ; that he 
 
 1 Ahrens, passim. 
 
OF THE RULE OF LIFE. 201 
 
 does not, in short, explain the nature and origin of voluntary- 
 transgression, — -he would have pointed out the direction in 
 which Butler's, like all other explanations, is inadequate. 
 But as he puts the objection, Butler's answer, I imagine, 
 would have been plain enough. He would have told him 
 that he does not admit the antithesis between "the other 
 instincts '' and " reason and conscience ; " that the supposition 
 of the other instincts being ranged on one side, and reason 
 and conscience on the other side, is a supposition not war- 
 ranted by the phenomena which human nature presents, or 
 which> on the principles of optimism — on the assumption of 
 the rectitude of God Himself— any nature created by Him 
 can present. Butler's view of the matter is substantially in 
 accordance with that which I have above submitted. Though 
 he often speaks of " conscience or reflection" as a special faculty, 
 and assigns to it a pre-eminence over the other faculties, his 
 whole argument is directed against the supposition that it is 
 in conflict with all, or indeed with any of them, when normally 
 manifested. He regards it rather as a certain harmony, balance, 
 or proportion, which, in their normal condition, they tend to 
 preserve amongst themselves, and the action of which we must 
 conceive rather as the result of their joint activity than as a 
 force opposed to or even alien from them. 1 That this harmony 
 may be destroyed, Butler is, of course, very far from denying ; 
 but when such destruction takes place, he ascribes it, not to the 
 action of our general nature against conscience as an opposing 
 force, but — in exact accordance with the passages from Tren- 
 delenburg, and from Grant himself, to which I referred above 
 1 Ser. ii. p. 19 ; ser. iii. p. 24— ed. 1839. 
 
202 HOW MAN BECOMES COGNIZANT 
 
 — to the action of one or more of the principles of which 
 this nature is made up against the general principle which 
 animates it all. The whole ohjection of Sir Alexander Grant, 
 and of the very numerous class of reasoners who join with 
 him, good old Samuel Johnson included, consists, I think, in 
 their failure to recognize in nature the power of dictating to 
 man anything else than the pursuit of immediate pleasure, or 
 the escape from actual or visibly impending suffering. " Is 
 the life of the saints and martyrs," Sir Alexander asks, " to 
 be called a life according to nature ? If not, is it better or 
 worse ? and if better, is not man to aim at the better ? . . . 
 There is one mode of representation which describes life as a 
 progress, a conflict, a good fight ; another which makes it the 
 following of nature. On the one hand, there is the spirit of 
 aspiration and effort, the tendency to asceticism, the victory 
 of the will ; on the other hand, there are the genial, kindly 
 human feelings, there is the wise passivity of mind, there is 
 the breadth of sympathy which counterbalances an over-con- 
 centrated intensity of aim. To make the formula 'Live 
 according to nature ' of any value, we require to have these 
 conflicting tendencies harmonized with each other." I entirely 
 concur with Sir Alexander Grant when he says that the whole 
 question is one not of mere words, but implying the discussion 
 of a very important subject — namely, the way -in which life 
 is to be conceived, and, I would add, in which jurisprudence 
 is to be treated, not only as a science, but, in no small measure, 
 as a practical art. Here, then, let me sum up what I con- 
 ceive to be not only the Socratic, but the human, and as such 
 the Christian, answer to the train of reasoning which Sir 
 
OF THE RULE OF LIFE. 203 
 
 Alexander Grant has pursued, — and an answer which, if I 
 am not greatly mistaken, would have had the concurrence of 
 Bishop Butler. " The spirit of aspiration and effort " is not 
 opposed to the "genial, kindly human feelings," nor to the 
 " breadth of sympathy '' of which he speaks. " The progress, 
 the conflict, the good fight," is an effort not by an external 
 power to drive nature from her course, or even to control her 
 activity, but by nature herself, as revealed to us internally 
 and externally, to vindicate her supremacy over the denatu- 
 ralizing influences, over the rebellious subjects within her own 
 realm which oppose her free development and harmonious 
 action. When the conflict is peculiarly hard ; when the 
 external principle of disorder has succeeded in ranging the 
 animal and sensual against the rational and spiritual, pro- 
 pensities ; and when nature herself, as a whole, is in danger 
 of being degraded from a human nature into something worse 
 than a brute nature, — she calls — and in the case of saints and 
 martyrs calls not in vain — for aid from above. But it is 
 for aid, not for her destruction, but for her preservation and 
 support ; it is that she may become not less herself, but more 
 herself, in this her hour of trial ; and that, in her triumph, she 
 may save, not the higher principles, alone from degradation, 
 but very often also the lower propensities, " the law in the 
 members," x from self-destruction by excess of present grati- 
 
 1 "Omnia ilia ad quse homo habet naturalem inclinationem," says Thomas 
 Aquinas, " ratio naturaliter apprehendit ut bona, et per eonsequens ut opere per-, 
 sequenda, et contraria eorum ut mala et vitanda.'' And again, "Omnes hujus- 
 modi inclinationes, quarumoumque partium naturae humansj (putsi eoncupiscibilis 
 et irasoibilis), secundum quod regantur ratione, pertinent ad legem naturalem. " 
 — Prim. Sec, quses. xciv. art. 2. 
 
204 OF THE EIGHTS AND DUTIES 
 
 fication. The whole effort of the will, when directed to the 
 realization of the higher life, is an effort not against nature, 
 but in favour of nature, 1 in every sense that can be attached 
 to that word except the single, and, even if true, surely very 
 narrow sense of it in which it is taken to mean the tendency 
 to the unbridled indulgence of one or more of our irrational 
 appetites. "Man," says Kant, "is unholy enough, but the 
 humanity inhabiting his person (his proper person) must be 
 holy." 2 
 
 CHAPTEK VII. 
 
 OF THE EIGHTS AND DUTIES WHICH NATUEE EEVEALS. 
 
 We now enter on the third of the three branches into which, 
 as I mentioned at the commencement of Chapter III., 3 an 
 inquiry into the law of nature, or a treatise on the principles 
 of law, divides itself. 
 
 Having seen that the legislative character of our nature is 
 guaranteed to us, both by the dicta of subjective consciousness 
 and by the manifestations of objective consciousness in the 
 history of opinion, and having further, to a certain extent, 
 examined the manner in which this revelation takes place, we 
 must now place ourselves in contact with objective existence, 
 and inquire whether the nature which we are thus to obey 
 
 1 Butler, ut sup., ser. ii. p. 19. 
 
 2 Metaph. of Ethics, p. 137, and Theory of Religion, p. 69, Semple's trans. 
 
 3 Ante, p. 54. 
 
WHICH NATURE REVEALS. 205 
 
 reveals to us rights and duties as existing in ourselves and 
 others, and if so, what is their character, and what are their 
 relations and their limits ? 
 
 1. Nature reveals no rights in relation to the Creator. 
 
 The necessary truth of this proposition has already, I trust, 
 been sufficiently established. 1 It places us at once in a dif- 
 ferent relation to God from that in which we stand to all 
 created existences. In asserting that it is the result of a 
 cause external to itself and independent of its volition, and 
 in joyfully accepting itself as it is, our nature negatives the 
 conception of rights on the part of the creature, or duties on 
 the part of the Creator. 2 The importance of this assertion in 
 religion consists in differencing the relations of Creator and 
 creature from those of creature and creature, not in degree, 
 but in kind, and indicating the necessity of a different revela- 
 tion. 3 Its moral importance consists in founding jurispru- 
 dence, not on primary rights, but on primary facts, by which all 
 subsequent rights are measured, and their respective spheres, 
 whether subjective or objective, are determined ah extra, and 
 will become more and more apparent as we proceed. We shall 
 find that it is this de facto origin which, by removing our 
 human rights beyond the reach of human volition, communi- 
 cates to them their divine character ; and, moreover, which 
 gives to positive law, as the rule determining these rights in 
 the special instance 7 , the declaratory character which clothes 
 it also with a similar sanctity. 
 
 1 Chap. iii. sec. 3, 4. 2 Ante, p. 58. 
 
 3 Summa, ii. ii., quaes. Ivii. art. i. vol. viii. p. 417; and Semple's Kant's 
 Theory of Religion, p. 203, n. 
 
206 OF THE EIGHTS AND DUTIES 
 
 There is one sense, indeed, in which some have thought 
 that rights exist in the creature in relation to the Creator — 
 viz., that it is impossible, or at least unthinkable, that He 
 should do them wrong. 1 But such an assertion plainly in- 
 volves a vicious circle ; for it assumes a criterion of right and 
 wrong which is dependent on the character of the actions to 
 which we seek to apply it. Unless we had a measure of 
 virtue independent both of nature, which is God's work, and 
 revelation, which is God's word, the two assertions — first, that 
 God must do what is right ; and second, that what God does 
 is right, in so far as His creatures are concerned at all events 
 —must be absolutely identical. For this reason I never could 
 see the object of the controversy as to whether morality be 
 dependent on God's will, or God's will dependent on morality. 2 
 Our conception of goodness, like all our conceptions, must rest 
 on a postulate in the last instance — fatalism, in this sense, is 
 inevitable — and if we assume a standard of morality anterior 
 to or apart from God's will, we simply assume another god 
 whose will it is. Nor is any real progress made by the 
 modification of the theological doctrine originated by Leibnitz, 
 who has been followed by Krause and Eoder, and, I believe, by 
 Professor Mansel, which seeks the origin of morals not in the 
 will, but in the nature of God; for here the distinction is 
 either merely verbal, or else it carries us into a region where 
 consciousness is silent and knowledge impossible. If God's 
 nature and His will be harmonious, we have merely substi- 
 
 1 " Das Fromme ist nicht das Fromme weil die Gotter es lieben ; sondern die 
 Gotter lieben es, weil es das Fromme ist." 
 
 2 Cudworth, preface, p. xxviii. et passim. 
 
WHICH NATURE REVEALS. 207 
 
 tuted one word for another : if they are discordant, the nature 
 of a being so constituted is no better a measure of virtue than 
 his will, and neither of them will furnish us with a basis of 
 morality or a criterion of right and wrong. 1 
 
 2. Nature reveals to us duties in relation to the Creator. 
 
 That notwithstanding the absence of all corresponding 
 rights, we owe to God the religious duties of gratitude, adora- 
 tion, obedience, and faith — or trust in His beneficence, even 
 where it is not apparent to our understandings — has never 
 been substantially questioned by sane men, however rude or 
 corrupt. 
 
 But the feeling that God is absolutely independent of us, 
 and that it is only in a figurative sense that we can talk of 
 serving Him, has led many, even amongst ourselves, to infer 
 that our secular duties have reference exclusively to our 
 fellow-creatures — that it is to man and not to God that we 
 owe them — and this erroneous conception of secular duty has 
 led to two very unfortunate results. 
 
 1st, A cleft has been made between religion and morality, 
 which has led to the notion that our devotion to one class of 
 our duties must necessarily be in an inverse ratio, whereas in 
 reality it is in a direct ratio, to our zeal and industry in the 
 other. Not only in mediaeval but in modern times, men 
 
 1 See the opposite view stated by Shaftesbury {Inquiry concerning Virtue, vol. i. 
 pt. iii.) and Leokie (vol. i. p. 55). " The theory, "' says the latter, ' ' which teaches 
 that the arbitrary will of the Deity is the one rule of morals, and the anticipation 
 of future rewards and punishments the one reason for conforming to it, consists 
 of two parts — the first annihilates the goodness of God, the second the virtue of 
 man." The "two parts" appear to me to be entirely independent ; and whilst 
 the first proposition rests, I believe, on a logomachy, Mr Lecldo's dissent from 
 the second has my warmest sympathy. 
 
208 OP THE RIGHTS AND DUTIES 
 
 have become " slothful in business," in the belief that they 
 " were thereby serving the Lord," and in extreme cases have 
 arrived at the still more objectionable conclusion that it was 
 possible to be pious without being honest. 
 
 2d, A line has been drawn between the subjective and 
 objective sides of morality, by which the former has been 
 robbed of the character of virtue. 
 
 From failing to regard our subjective duties, or duties to 
 ourselves, as duties imposed on us by the constitution of our 
 nature and the scheme of the universe, our subjective rights 
 have come to be regarded as destitute of any other sanction 
 than the reflected one which they derive from such duties to 
 our neighbours as their performance may involve. If the 
 rights which I assert, or the acts which I perform in my own 
 behalf, can be shown to minister to the interests of another, 
 to this extent they become not my rights but his. On my 
 part they are duties which I owe to him, and their perform- 
 ance by me is admitted to possess the character of virtue 
 which belongs to all acts of duty. But if, on the other hand, 
 I alone am interested in them (and this isolation of self- 
 interest though impossible as a fact, is the only hypothesis to 
 which we are entitled, so long as we are dealing with the sub- 
 jective side of morality exclusively), these rights, when viewed 
 apart from the relation in which I stand to God, assume the 
 character of assertions of my solitary being as opposed to 
 being in general. 
 
 It is this train of thought which, if I am not mistaken, has 
 led to the identification of virtue with benevolence by Hutche- 
 son, and still gives vitality to a scheme of ethics amounting 
 
WHICH NATURE REVEALS. 209 
 
 to nothing short of a surrender to the opponents of absolute 
 morality of the common ground on which not only subjective 
 but objective duty ultimately rests. 1 
 
 It is quite true that, from the necessary interdependence of 
 subjective and objective interests, the whole of our subjective 
 rights are in reality objective duties. In the sequel I hope 
 to show that there is no right subsisting in any creature the 
 assertion of which is not a duty owed by that creature to 
 his fellow-creatures. But though the reality of our subjec- 
 tive rights thus admits of confirmation from an objective point 
 of view, it is not thus that they arise ; and it is not from the 
 objective but the subjective side that we must enter the field 
 of ethics in search of a natural basis for the science of juris- 
 prudence. In relation to the creature and to created exist- 
 ence, we begin not with duties but with rights, just as in the 
 process of respiration we begin with inspiration and not with 
 expiration. 
 
 My neighbour is but a reflected image of me. I cannot 
 interrogate his consciousness, or ascertain the revelations that 
 nature makes to him. My knowledge of his rights and duties 
 
 1 "Men come into the world," says Mr Leckie, "with their benevolent 
 affections very inferior in power to their selfish, and the function of morals is to 
 invert this order. The extinction of all selfish feeling is impossible for an in- 
 dividual, and if it were general, it would result in the dissolution of society. The 
 question of morals must always he a question of proportion or degree." — Leckie's 
 Europ. Morals, vol. i. p. 103 ; see also p. 4. Now, if the extinction of this feel- 
 ing would result in the dissolution of society, how can an approximation to this 
 extinction be the question of morals ? Is society held together only by a principle 
 which morality seeks to extinguish ? The false antithesis between the subjective 
 and objective sides of duty, and the representation of the former as vice and the 
 latter as virtue, is an error which pervades the whole of this learned and most 
 interesting work. 
 
 
 
210 OF THE EIGHTS AND DUTIES 
 
 is thus only inferential. It is an inference, as we shall see 
 presently, which my nature compels me to draw. Still it is 
 an inference derived from self-knowledge; and if I do not 
 know that my own rights and duties are absolute, I have no 
 ground for inferring that his are so. An abandonment of the 
 absolute character of subjective rights is thus an abandon- 
 ment of the absolute character of objective rights — i.e., of 
 morality altogether. 
 
 The true view of the matter, and that in which the opposing 
 systems represented in this country by Hobbes and Hutche- 
 son — who were, however, by no means their originators — find 
 their meeting-point and their complement, I believe to be this. 
 
 Our subjective rights, though not rights exigible by us 
 against God, are not the less on that account rights exigible 
 by God against us, and by us against others in God's name, 
 for the simple reason that they are rights inherent in the 
 nature which God has formed, and with which, by the act of 
 its creation, He has identified Himself. To these rights, duties 
 to God, and through Him to our own nature, correspond, the 
 fulfilment of which, in His eyes, and with reference to the 
 whole scheme of His government, are just as imperative as 
 those which correspond to the objective rights of others. 
 Moreover, that the performance of these duties on man's 
 part possesses the character of virtue, not less than the per- 
 formance of his duties to his neighbour, will, I think, be 
 apparent from two considerations. 
 
 1st, The acts which these duties imply — viz., self-defence, 
 self-support, self-respect, self-development, and in the end, it 
 may be, the still harder task of bearing life under intense 
 
WHICH NATURE REVEALS. 211 
 
 bodily and mental suffering till God in His mercy shall take 
 it away, — all these are voluntary acts, often neglected, and 
 when performed at all, performed often at a fearful sacrifice 
 of present ease, or immediate relief. 
 
 2d, Being acts which tend to the realization of the idea 
 of nature, they are in accordance with that nature as a whole, 
 and consequently with the will of its Author and the scheme of 
 His government. But acts voluntarily performed, in opposi- 
 tion to the abnormal and exceptional impulses of our nature, 
 with a view to the realization of its central idea, fulfil, as it 
 seems to me, all the conditions which attach to the idea of virtue. 
 Another consideration which points at the same conclusion 
 is this. In popular speech we continually talk of " duties to 
 ourselves ; " and the existence of such duties is not denied 
 even by those who refuse to assign to their discharge the 
 character of virtue. Self-respect, they say, imposes on every 
 man the duty of supporting himself to the extent of not 
 becoming a burden on his relatives or the parish. But why 
 should the duty stop there ? The very same principle which 
 carries him the length of not being an object of self-reproach, 
 does not cease to appeal to him till he has availed himself, to 
 the fullest extent, of the powers which God has bestowed on 
 him ; and the extent to which, and the circumstances in which, 
 this duty is performed, are the measure of the virtue which 
 attaches to the performance. I do not qualify the character 
 which I assign to this duty even by saying that its fulfilment 
 is a virtue " to the fullest extent compatible with the interests 
 of others," because the interests of all are not only reconcil- 
 able, but inseparable, and the highest forms of self-interest and 
 
212 OF THE EIGHTS AND DUTIES 
 
 benevolence are ultimately identical. 1 It is from the latent 
 consciousness of the equal sanctity -which attaches to all natu- 
 ral rights, and the fact of the identity of interests, that the very 
 same acts which the one class of philosophers lauds as benev- 
 olent and virtuous, the other, on selfish grounds, commends 
 as useful, and that the practical outcome of the two systems 
 is far less divergent than their authors believe and intend. 
 On the other hand, however, the effect of the one-sidedness 
 which belongs to them both is but too often exhibited in the 
 tendency of the one to a forgetfulness of our duties to our- 
 selves, which ends either in morbid self-condemnation or 
 insincere sentimentalism ; and of the other to a forgetfulness 
 of our duties to others, which leads to acts of flagrant injustice. 
 The remedy is the very simple and obvious one of conforming 
 to the law of integrity 2 by remembering that we are God's 
 creatures ourselves as well as our neighbours, and that His 
 command to us with reference to others will be fulfilled if we 
 love them, as He desires and intends that we should love 
 ourselves. 
 
 3. In our relation to creation, animate and inanimate, nature 
 reveals rights. 
 
 (a) The fact of being involves the right to be. — Law and fact, 
 like right and might — like truth and existence 3 — in the last 
 
 1 "The happiness and welfare of mankind are evolved much more from our 
 selfish than from what are termed our virtuous acts," &c. ; and yet he regards the 
 former as vicious and the latter as virtuous ! — Leckie, vol. i. p. 38. Does not 
 such a train of reflection show that what are termed our selfish may be also our 
 virtuous acts ? Selfishness, as we shall see below, consists of self-assertion pushed 
 beyond the point at which it begins to be self-contradictory and suicidal — infra, 
 cap. xii. 
 
 2 Ante, p. 183. 3 Ferrier's Institutes of Metaphysic. 
 
WHICH NATURE REVEALS. 213 
 
 analysis, are identical, and therefore it is that Plato has said 
 that law is the finding out of what really is — tov oVtos l&vpea-K. 1 
 Though the relation of Creator and creature excludes the 
 idea of a right to existence on the part of the latter, the 
 moment existence is conferred that relation hestows on it the 
 character of a right which neither its possessor nor any other 
 creature is entitled to dispute. 2 In life, as a phenomenon 
 presented to us by consciousness, we have thus a revelation 
 not only of the fact of possession, but of the idea of property — 
 i.e., of possession held on a title, or possession and right. But, 
 further, the consciousness of life is a feeling of separation from, 
 and independence of, other created organisms. It is a feeling, 
 not of abstract and general, but of concrete and special, exist- 
 ence — not of something is, but of I am. Nor is this feeling 
 of individuality a consciousness of separation merely, but of 
 power and energy to resist surrounding influences which tend 
 to produce dissolution or absorption. 3 The Ego consists in, 
 and is measured by, the power which it possesses to dispense 
 with the aid, and resist the influences of the non-Ego ; and as 
 the right corresponds to the fact of existence, we thus per- 
 ceive that the measure of the right to he is the power of being. 
 In subjective morality we thus find the origin, as in objective 
 morality, rightly understood, I trust we shall find the justifi- 
 cation, of the recognition of de facto power and possession in 
 every department of jurisprudence. 
 
 (b) The right to be involves the right to continue to be. — The 
 
 1 Culverwell, p. 43. 2 Cousin, Philosophie SensualUte, p. 322. 
 
 3 It is in the consciousness of free energy that the Ego perceives and affirms its 
 own existence. — Cousin, ut sup. 
 
214 OF THE BIGHTS AND DUTIES 
 
 existence of which we are thus the rightful possessors is an 
 existence in time. The right to he consequently brings along 
 with it a right to continue to be, which, in its duration as in 
 its extent, is limited only by the power of its assertion. In 
 this natural right to continue our existence we behold the 
 origin of the right of self-defence, and of the laws which we 
 enact for the security of the person ; whereas in its objective 
 or reflected aspect, as we shall see hereafter, it imposes the 
 duty not only of protecting the lives of other human beings, 
 but of prohibiting, and, as far as we are able, preventing 
 the wanton destruction of human, animal, or even vegetable 
 life. 
 
 (c) Like the right to be, the right to continue to be has no 
 validity against God. — The withdrawal of the power to live, by 
 Him, is a withdrawal of the right to live ; and there is, conse- 
 quently, no injustice, in any sense which created beings can 
 attach to that word, in natural death, or in natural decay. 
 The shrinking which we feel from natural dissolution, in 
 so far as it is a natural sentiment, is probably an instinct 
 which is reflected on our finite from our infinite nature. 
 We are reluctant to leave what consciousness tells us is an 
 unfinished task ; and if we take the ars longa in its highest 
 conception as the realization of the idea of humanity in the 
 individual and in society, it affords the strongest argument in 
 favour of the belief that the vita brevis applies to this life 
 only. It is at variance with our necessary conception of the 
 Divinity that He should not enable us to complete a work 
 which He has assigned to us ; to realize an idea that He has 
 set up within us ; and the limitation of conscious existence to 
 
WHICH NATURE REVEALS. 215 
 
 this life thus seems to involve a contradiction. But, on the 
 other hand, immortality in this world is manifestly at variance 
 with the scheme of the universe, as we see it with our own 
 eyes. When, from the incapacity of a man's existing organ- 
 ism, spiritual and corporeal, to sustain further development, or 
 even continued activity, the period of his natural death has 
 arrived, he has no more right to live than he had to be born 
 before his time, or to be raised from the dead. His right, 
 then, is to die ; for it is by that reorganization, that new syn- 
 thesis which follows on the analysis which we call death, that 
 alone he can be righted — i.e., kept in harmony with organic 
 existence as a whole, and enabled to live — in Kosmos. What 
 is true of individual is probably not less true of national life ; 
 and as regards both we can thus see, even by the light of 
 reason, that " to die is gain." 
 
 (d) The right to he, and to continue to be, implies a right to 
 the conditions of existence. 
 
 Hitherto we have considered life as consisting only of the 
 power of repelling aggression, with its corresponding right. 
 But^active qualities of another class belong not less certainly 
 to its essence, and its continuance is not less obviously de- 
 pendent on their exercise. These are the powers which every 
 living organism possesses of attracting to itself and assimilat- 
 ing such external agencies as are necessary to its being. As 
 our natural powers of repulsion furnish the warrant for our 
 laws of self-protection, so it is in the powers of attraction of 
 which we now speak that our rights of property and laws of 
 exclusive l possession originate. 
 
 1 The importance of exelusiveness as an element in value is dwelt upon by 
 
216 OF THE RIGHTS AND DUTIES 
 
 It is when the idea of property is seen in its inseparable 
 connection, not only with the life of man, but with organic 
 existence altogether, that we get hold of the final answer to 
 that whole phalanx of social, political, and economical errors, 
 which, under the names of communism, socialism, levelling, 
 equality, and the like, have so tortured mankind, which still 
 make up the popular conception of what, abroad, is called" 
 " the revolution," and of what we and the Americans are apt 
 to include in our conceptions of " progress." 
 
 The powers of respiration and digestion, by which animal 
 life is sustained, exhibit themselves in acts of appropriation 1 
 which are involuntary even in man ; and it is obvious, con- 
 sequently, that the amount of appropriation which these 
 powers warrant, in other words, which nature dictates to 
 them, is the amount of which they are capable. The lungs 
 of a man, or of a horse, are capable of decomposing, and their 
 stomachs of digesting, a vastly greater amount of nutriment 
 than the lungs or the stomachs of a monkey or a mouse ; and 
 to precisely the quantity which the animal can appropriate, 
 the animal, in each case, is entitled, so long as he is entitled 
 to be an animal at all. Nay, in proportion to the extent to 
 which the powers of life increase or diminish in the same 
 animal, does his right to the conditions of life go along with 
 them. A child is not entitled to a grown man's food, either 
 in quantity or in quality ; nor a sick man to the food of a 
 
 Aristotle, Polit., ii. 1.- — Bhutto, yhp &ri/te\e£as rvyxdvei rh irXiiaruv koiv6v — a 
 significant hint for the communists. 
 
 1 The act of appropriation supplies the element of labour, which certainly ac- 
 companies but does not constitute the right of property, seeing that labour pre- 
 supposes power, and power presupposes life, and life is property. 
 
WHICH NATURE REVEALS. 217 
 
 man in health ; and though the child or the sick man should 
 possess boundless wealth, we do not hesitate to impose re- 
 straints on either of them. 
 
 Nor is the law that life confers rights to its exercise, cor- 
 responding in extent to the powers of which it consists, con- 
 fined to animal life. By analogy it embraces the whole range 
 of organized being. The life of a tree, we have every reason 
 to believe, is an unconscious life ; and the tree has therefore 
 no rights or duties in the human sense, or even in the more 
 limited form in which they may be ascribed to the higher 
 animals. But the life of the tree involves, or implies, this 
 very same power of preserving its separate existence by what, 
 analogically, may be called acts, not of repulsion merely, but 
 of aggression and appropriation. So long as it lives, and 
 in proportion to the life which is in it, it resists the influ- 
 ences which produce decomposition, and assimilates the sub- 
 stances which conduce to its support. Farther, the particles 
 of carbon, oxygen, hydrogen, &c, which the tree takes up 
 from the circumjacent earth and circumambient air, become, 
 in a sense, its property — property which it holds by the 
 very same tenure by which it holds its life, whereas, up to 
 the moment of appropriation, no such relation subsisted be- 
 tween them. 
 
 But the analogy between Vegetable life and those acts of 
 appropriation by which man vindicates the rights of his being 
 is a very limited one. It is not till we reach the higher 
 animals that we come in contact with voluntary activity, and 
 begin to trace, in the germ, that consciousness of the relation 
 between power and right which lies at the root of the human 
 
218 OF THE EIGHTS AND DUTIES 
 
 idea of justice. When a stag stands at bay, when a dog barks 
 on his chain, growls over a bone, or manifests affections which 
 often place him in favourable contrast with human beings, 
 they give unequivocal indications of a sense that life, liberty, 
 external objects, and individual sentiments belong to them, 
 are theirs, their property; and we find, moreover, that our 
 instinctive tendency to recognize the justice or righteousness 
 of this sentiment is precisely in proportion to the power 
 which it exhibits. 1 The needless destruction of a worm, 
 like that of a flower or a shrub, scarcely rises above the 
 character of malicious mischief. But the needless destruc- 
 tion of a horse or a dog, the wanton infliction on them of 
 suffering, or even the unnecessary limitation of their liberty 
 or their enjoyments, we have no hesitation in regarding as 
 cruelty, or injustice to them, and, on man's part, as an 
 unjust violation of their rights. We would not for the 
 world even hurt their feelings. In the case of the higher 
 animals, then, it is apparent that life can be justifiably taken 
 away, or liberty restrained, only on behalf of life or liberty, 
 with a view, i.e., to the securing more or higher life or liberty 
 on the whole. We may kill an ox to eat him, and there are 
 objects for the attainment of which perhaps even human life 
 may justifiably be taken away ; but if we kill an ox, even if 
 it be our own ox, from mere wanton love of destruction, we 
 
 1 Both Hegel and Fichte deny the rights of animals altogether, and reduce 
 them to living machines. Fichte said that the cry of an animal means no more 
 than the creaking of the hinge of a door. The veriest Cockney in England knows 
 them better. Krause does not go quite so far, but he doubts if animals have 
 rights, p. 98. Surely even the doubt vanishes if we accept power as the source 
 of right, for of their powers there can be no question. 
 
WHICH NATURE REVEALS. 219 
 
 do a cruel and wicked act ; and if we kill a man in similar 
 circumstances, we commit murder. 
 
 It is to these natural feelings, rather than to any real belief 
 in a metempsychosis, that the doctrine of the absolute sacred- 
 ness of life has been indebted for its advocates in historical 
 circumstances so various. In like manner it is from the pro- 
 tection which nature herself casts around them that the degree 
 of safety to life and property attained is the surest test of 
 the grade of civilization which a community has reached. 
 
 Professor Eoder, and many other excellent thinkers and 
 writers of the school of Krause, are of opinion that there are 
 no circumstances in which the voluntary destruction of human 
 life is not a violation of natural law. The higher animals, 
 they say, may destroy the lower, but man being the highest 
 created existence on earth, his life can be lawfully taken 
 away by God only. Its destruction by man never can pro- 
 mote life on the whole, though it may seem to do so in an 
 individual instance, or at a particular stage of social progress. 
 This argument, though it does not involve vegetarianism, ap- 
 pears to carry us the length of an absolute prohibition not 
 only of capital punishment, but of war. Whether the con- 
 sciousness of humanity, under the guidance of Christian in- 
 fluences, be not developing itself in directions which may 
 render the acceptance even of these consequences imperative, 
 is a question on which it is not desirable that we should 
 enlarge in this place. A few words, however, I shall venture 
 to say, by way of placing the discussion on what I conceive 
 to be its true basis. 
 
 The question which has been so often asked, whether the 
 
220 OF THE RIGHTS AND DUTIES 
 
 right to punish, and, above all, to punish capitally, be an 
 absolute or a relative right, arises, as it seems to me, from a 
 confusion between natural and positive law. Natural law, 
 resting on a postulate of the rectitude of nature, is neces- 
 sarily absolute. As an end in itself, it is to be vindicated 
 for its own sake. Positive law, on the other hand, as its real- 
 ization in time and place, is absolute only on condition of 
 this realization, and to the extent to which it is effected. If 
 positive law realizes absolute law, it partakes of its absolute 
 character — if I may be permitted the phrase, it is relatively 
 absolute. Now the law which inflicts capital punishment for 
 murder is a positive law. The natural, absolute law is " Thou 
 shalt not kill." That law is imposed on us by our nature, 
 and, for us at least, it is an end in itself. The positive law 
 which says the killer shall be killed, is absolute only in so 
 far as it tends to prevent killing, and thus to realize the 
 natural law. It proceeds on the assumption that he who has 
 killed once is likely to kill again ; that his example will incite 
 others to kill; and that killing, on the whole, will be prevented 
 by killing him. If there be an easier and cheaper mode of 
 vindicating the absolute law — i. e., a mode in which the 
 murderer's life can be spared without sacrificing other lives, 
 then capital punishment is forbidden by the absolute law by 
 which on the opposite assumption it was justified ; but that 
 is a question which can be answered only relatively, and to 
 which the same answer will not be always and everywhere 
 the true one. The argument against this relative view of 
 capital punishment is that the absolute law, " Thou shalt not 
 kill," applies to society as well as to its individual members, 
 
WHICH NATURE REVEALS. 221 
 
 and that capital punishment is thus a violation of an absolute, 
 natural law, be the circumstances what they may. To this 
 the answer is that society stands in God's place as regards its 
 individual members, and that God takes life, away in accord- 
 ance with laws which we assume to be righteous. The final 
 difficulty for the relative argument seems to be that God 
 gives life, and society does not. But to admit this as an 
 argument against capital punishment would be to admit it as 
 an argument against all punishment. Society can no more 
 restore time or liberty than it can restore life. Society, or 
 the general will, it is true, is an imperfect realization of 
 absolute justice, but it is the only possible realization of it 
 on earth. The theory of the divine right of sovereignty was 
 an error, only when sovereignty was centred in a single will ; 
 for till we remount to an earthly absolute, there is no ultimate 
 resting-place or starting-point for positive law of any kind. 
 The fact that one form of punishment attains the object of 
 the absolute law better than another must be proved ; but 
 the competence of the legislature to determine the adequacy 
 of the proof must be assumed as the hypothesis on which all 
 positive law rests. This relative view of the right of society 
 to punish, even capitally, is, of course, at variance with 
 Kant's famous saying, that though society were on the point 
 of dissolution, the last murderer ought to be put to death. 
 Human punishment, I think, has always reference to the 
 future, and as here there is ex hypothesi, no future, the killing 
 being justified by no hope of preventing killing, would fall 
 under the prohibition " Thou shalt not kill." The case would 
 be in God's hands. The same line of argument which we 
 
222 OF THE RIGHTS AND DUTIES 
 
 have here indicated with reference to capital punishment, 
 yields, of course, the same relative result with reference to 
 another question much agitated in our midst — the question, 
 viz., of vivisection. I never could see that anything heyond 
 a relative or hypothetical answer could be given in this case 
 either. If the suffering and loss of life caused by vivisection 
 does diminish suffering and save life, and life of a higher 
 kind, — on the whole, then, to the extent to which it does so, 
 it is justified, but not otherwise or farther. Both end in 
 questions of fact, not of principle. The former question — 
 that of capital punishment — seems to admit of the applica- 
 tion of the ordinary statistical method of inquiry; and the 
 application of that method has recently led to a revival of 
 the practice in several countries in which it had been aban- 
 doned. To get the vivisection question out of the region of 
 opinion, or perhaps of interested assertion, seems much more 
 difficult. Even supposing his object to be justifiable, who 
 but the experimenter can tell how many experiments may be 
 requisite to attain it ? 
 
 (e) The right to be implies a right to develop our being, and 
 to the conditions of its development. — It is in the consciousness 
 of the right and duty of self-development that the peculiar 
 characteristics of humanity ultimately exhibit themselves. 
 The acts by which the higher members of the brute creation 
 assert their rights are neither involuntary nor, in a certain 
 sense, unconscious ; but they have reference either to the con- 
 tinuance and transmission of existence as it is, or, at most, 
 to the growth of the physical frame. If there be anything 
 beyond this, it takes place in accordance with laws of pro- 
 
WHICH NATURE REVEALS. 223 
 
 gress which do not affect the relations between rights and 
 powers at each stage of the action of these laws. Whatever 
 may be the answer which shall ultimately be given to the 
 question as to the relation between apes and men, that 
 answer will not affect the assertion that there is analogy 
 enough between physical growth or animal training on the 
 one hand, and . spiritual development on the other, to exhibit 
 the universality of the law that powers assign the only limits 
 to rights, and that rights involve the conditions of their own 
 assertion. The right of development in man exceeds the 
 right of development in the other creatures, precisely in pro- 
 portion to the extent to which his capacities of development 
 surpass theirs. The rights of the man will exceed the rights 
 of the ape, so long as the one continues to be a man and the 
 other an ape, and the question whether or not the one may 
 pass into the other is nothing to the purpose. And the same 
 law holds true in reference to individual members and races 
 of the human species. It is no more possible to bring natural 
 inequalities to a level by means of education, than to teach 
 music to the deaf or painting to the blind ; and what we are 
 forbidden to accomplish we are not called upon to attempt. 
 Moreover, as man, even physically considered, is the most 
 dependent of animals, so it is in this peculiarly human direc- 
 tion that his dependenoe becomes most conspicuous. Our 
 physical growth, like that of any other animal, will attain its 
 possible limits by the aid of our parents and a very few of 
 those with whom we are immediately surrounded. But the 
 spiritual maturity of a single individual, in so far as it- is 
 attainable at all, will be the result of the past and present 
 
224 OF THE RIGHTS AND DUTIES 
 
 efforts of the whole human family. So far, then, from search- 
 ing for the ultimate characteristics of humanity in primitive 
 man, the chances of finding them, or rather of approximating 
 them, in individuals or in generations, will always be in 
 favour of those on whom the widest range of historical influ- 
 ences has been brought to bear. Unlike the lower creatures, 
 the alternative of a stationary existence, even within the 
 limits of his own species, is not offered to man. His choice 
 lies between progress — which, in so far as his individual 
 powers permit, knows no limits short of absolute conformity 
 with the divine nature, which is the true human ideal — and 
 moral and intellectual retrogression, which ultimately becomes 
 irreconcilable even with his physical existence, and is merci- 
 fully cut short by his disappearance from the earth. A non- 
 historical is usually a decaying race ; and the same is true of 
 families, for the simple reason that men do not record activity 
 or indolence of which they are ashamed. It is consequently 
 not without reason that the presumption of society is in 
 favour of families having long pedigrees. It is in this pecu- 
 liarity of our nature that we see the foundation of the right 
 of the individual to demand such education as he has capa- 
 city to receive on the one hand, and of the duty of the 
 parent, and of the State, to communicate it on the other. 
 Nor is there any other point of view in which the righteous- 
 ness of the principle of Us carriires ouvertes becomes more 
 apparent, both in a subjective and an objective direction, 
 than this. To rob a man of the fruits of such powers of 
 spiritual development as God may have seen fit to implant 
 in him, is the last and highest form of injustice ; whereas 
 
WHICH NATURE REVEALS. 225 
 
 as regards others, the loss of a single mtin of genius (supposing 
 such an event to be possible) would, in most cases, be a far 
 greater disaster than the loss of a battle even to the community 
 in which it occurred, whilst it would be one in which man- 
 kind and futurity would participate far more extensively. 
 
 The question of education by the State, like that of charity 
 by the State, and, indeed, like positive law altogether, is thus 
 reduced from a question of principle to a question of fact. 
 In so far as individuals or communities will or can educate 
 themselves, that is the arrangement which nature approves 
 in the first instance. If they will not, or cannot, then State 
 interference assumes the aspect of a subjective right, the 
 reality of which is guaranteed by the existence of an indis- 
 putable objective duty. Free State schools are justifiable 
 only under the same limitations as free State charity ; and 
 the same principle applies to aided schools, in so far as the 
 aid exceeds the benefits conferred on the classes from whom 
 it is derived. Compulsory attendance is a substitute for 
 voluntary attendance which only necessity can justify, but 
 which necessity unquestionably does justify. It is an inter- 
 ference with lower in behalf of higher freedom of the indi- 
 vidual. It is the State treating the parents just as the 
 parents treat, or ought to treat, their children — imposing on 
 them the bondage of school, that they may be freed from the 
 greater bondage of ignorance. All questions as to rights thus 
 resolve themselves into questions as to capacities or powers. 
 Till the presence of these has been established, the rights do 
 not emerge. But their absence must not be hastily assumed ; 
 and on whatever career any individual wishes to enter, that 
 
 p 
 
226 OF THE EIGHTS AND DUTIES 
 
 career he or she is clearly entitled to have thrown open to 
 him or to her. The desire is a prima facie proof of the 
 power. That the distinctions which nature has established 
 between the functions of the sexes, and the endowments of 
 individuals and races of mankind, will speedily make them- 
 selves apparent, is a subject with reference to which we may 
 spare ourselves all anxiety. Of the clearness with which 
 these considerations are everywhere forcing themselves on the 
 public mind, in our own day, the adoption, and probably the 
 exaggeration, 1 of the system of competitive examinations, is 
 perhaps the most conspicuous proof. 
 
 (/) The right to be involves the right to reproduce and mul- 
 tiply our being. 
 
 No divine command, directly given, is more obviously in 
 unison with the promptings of nature as revealed by con- 
 sciousness, than the command to " be fruitful and multiply." 
 After the instinct of self-preservation, by far the most power- 
 ful, in all healthy natures, is that of propagation. The con- 
 comitant of man's purest and loftiest affections and of his 
 vilest and most degrading passions, inextricably intertwined 
 with his moral as with his physical life, the root of the 
 family, the mainspring of ambition, the incentive to vanity, 
 it is not wonderful that its due regulation should occupy so 
 large a space in every code of laws, civil and criminal. The 
 power of reproducing our species being nature's compensation 
 for the waste of individual life and the limits which she has 
 imposed on its duration, is usually manifested in greatest 
 vigour in the circumstances which appear most to call for its 
 1 Thoughts upon Government, by Arthur Helps, p. 62. 
 
WHICH NATURE REVEALS. 227 
 
 exercise. New communities grow vastly more rapidly than 
 old ones : colonizing than stay-at-home nations : the ravages 
 of war and pestilence are supplied with wonderful rapidity : 
 and even the high death-rate occasioned by our manufacturing 
 system and our city life, is compensated by a birth-rate 
 unknown amongst the long-lived inhabitants of our rural 
 districts. In all this the closest analogy is apparent between 
 man and "the grass of the field." The command which 
 nature lays upon the one she fulfils spontaneously in the 
 other. Again, the contradiction which seems to arise be- 
 tween the command on the one hand, and the narrow limits 
 within which obedience to it appears necessarily to be con- 
 fined, finds its counterpart both in the lower animals and in 
 the vegetable creation, and thus the action of. those legal and 
 even social impediments to marriage, which sometimes pre- 
 sent themselves to the mind as the worst of evils, take their 
 place in the general arrangements of nature. Of the pollen 
 which is scattered by every summer wind, and even of the 
 seed which every autumn ripens, the proportion which comes 
 to maturity as plants and trees is certainly not greater 
 than that of the human beings that spring from the endless 
 potentialities which seem to lie in every community and in 
 each generation. Amongst all animals, again, with the excep- 
 tion of man, the limitations to multiplication which man 
 feels called upon voluntarily to impose on himself, are 
 involuntarily enforced, not only by the necessities of the 
 carnivorous species, but by the power of propagation being 
 dependent on physical conditions which recur only at certain 
 seasons. The object of nature, throughout, seems to be the 
 
228 OF THE RIGHTS AND DUTIES 
 
 reproduction of the same type, not deteriorated, but, if possible, 
 improved by individual selection ; and the object of all marriage- 
 laws which obey her behests, will be the production of the 
 greatest possible amount, not of animal being, but of human 
 wellbeing. A man who cannot bestow a human education on 
 his children has no more natural right to marry than a man 
 who cannot beget them. But how the poor or improvident 
 man can legally be prohibited from marrying, is a problem 
 which no legislator has yet succeeded in solving, and which 
 probably does not belong to legislation. There is yet one 
 other direction in which the analogy which runs through 
 the natural laws of reproduction, both in the vegetable and 
 animal kingdoms, is suggestive. Weeds grow more readily 
 and multiply more rapidly than grain ; reptiles than animals 
 suited for domestic purposes ; and worthless, improvident, 
 and diseased human beings, than those that are virtuous, 
 frugal, and healthy. Why it should be so is a question which 
 we must probably be contented to hand over, unanswered, to 
 that element of apparent contradiction in the government of 
 the universe, which will for ever defy explanation by us. 
 But the political suggestion which is offered by the undoubted 
 fact is very obvious — viz., that it is not by positive restric- 
 tion imposed by our marriage-laws, which would certainly be 
 inoperative, but by improving the conditions of life physically, 
 but still more intellectually and morally, of the whole people, 
 that we must seek for a remedy to the evil of over-population. 
 If the festering masses which congregate in our great centres 
 of population could be spread over the land, and raised to the 
 position of intelligence and wellbeing of the prosperous rural 
 
WHICH NATUEE EEVEALS. 229 
 
 population of this and other countries, the problem of over- 
 population would be solved by those natural laws on the con- 
 tinued action of which we can safely rely. Let us hope that, 
 to some extent, this may be effected by those changes in our 
 land -laws which are now in contemplation. But, at all 
 events, do not let us delude ourselves by regarding the rapid 
 multiplication of our town-populations as anything else than 
 an indication of the low conditions of their average life. Of 
 the many idola insulce which we cherish, few have been so 
 hurtful to us as that of accepting our birth-rate as a test of 
 material wellbeing. 
 
 (<?) The right to reproduce and multiply our being involves 
 the right of transmitting to our offspring the conditions of the 
 existence which we confer. 
 
 As regards our children and our direct descendants, the 
 right of transmitting property springs as obviously from the 
 right of transmitting life, as the right to possess property 
 springs from the right to possess life. And inasmuch as the 
 character of the life which we possess determines the character 
 of its conditions, so it is of the life which we transmit. We 
 are entitled not only to live, but to live humanly; and the life 
 which we are entitled to transmit is not bare existence in the 
 abstract, but human existence. Human life, however, involves 
 the conditions, not only of its continuance, but of its develop- 
 ment, and in this respect also the same privileges cling to 
 the life which we are entitled to transmit. What is commonly 
 and quite correctly regarded as a duty to our children, is thus 
 at the same time a right inherent in ourselves, which we are 
 entitled to assert as against other created existences ; and our 
 
230 OF THE RIGHTS AND DUTIES 
 
 laws of inheritance, as well as our laws of property, have thus 
 their root in the subjective persona, and their validity when 
 seen simply from the subjective side. 
 
 (h) The right to be involves the right to dispose of the fruits 
 of being, inter vivos. 
 
 The children we beget are fruits which grow on the tree 
 of life. Up to the period of maturity, the rights of the tree 
 to its fruits are the same as to its leaves. They are part of 
 it, and cannot be separated from it without injustice — injury 
 to it, destruction to them, loss, in short, to organized exist- 
 ence. But this right terminates when the period arrives at 
 which the tree no longer draws nourishment from, or com- 
 municates nourishment to, the fruit. The ripe fruit falls to 
 the ground, and becomes directly or indirectly a source of 
 separate organic life. Now, a relation very closely analogous 
 to this subsists between human beings and the fruits of their 
 bodies. In the earlier and ruder stages of society, children 
 are regarded as the property of their parents, and, till they 
 have attained to maturity, they continue in civilized states to 
 be more or less closely dependent on the parent stem. In 
 this principle we see the natural foundation of the laws of 
 guardianship, and their natural limits, and the answer to all 
 those fraternal theories of separate and independent individual 
 rights so prevalent in France and other democratic countries at 
 the present time, on the one hand, and to the paternal theories 
 of the old despotic monarchies and aristocratic republics, on 
 the other. 
 
 Nor do the rights of man to the fruits of his labour differ 
 from those to the fruit of his loins, either in their origin or 
 
WHICH NATURE REVEALS. 231 
 
 in the principle which limits them. Property, as we have 
 seen, is a consequence of life ; 1 like life it is God's gift, and, 
 absolutely considered, it is God alone who can take it away. 
 Till this occurs, the rights of the proprietor are limited only 
 by his capacities of use and enjoyment. 2 He may sell it — i.e., 
 exchange it for property in another form — or give it away, even 
 to a stranger, for any object which is not insane or criminal, 
 — for any object, that is, which is not really at variance with 
 his own use of it. But the right to property which nature 
 reveals affords no warrant for waste, or for the exercise of 
 mere caprice. A blind man, for example, would have no 
 right to burn a library, or a picture-gallery, which belonged 
 to him, or even to shut it up, 3 though he might sell it, or 
 exchange it, or give it away. On the same ground, that 
 there is no right of mere exclusion, it has become an estab- 
 lished rule of international law, that an unoccupied country 
 cannot be acquired, even by the first discoverer, by a proclama- 
 tion, the setting up of a flag, or the like, but must be actually 
 taken possession of, and occupied. We know how utterly 
 futile were all those " proprietary grants " of unoccupied terri- 
 tory in America to private individuals by the Stuart kings. 4 
 Indeed, it is in the inseparable relation between rights and 
 powers of use and enjoyment, as we shall see more fully here- 
 after, 5 that the de facto principle, in all its applications, finds 
 
 1 Ante, p. 215. 2 Ante, p. 216. 
 
 3 May a total abstainer build up his cellar, as a distinguished citizen of Edin- 
 burgh is said to have done ? No ! If he is right in condemning the use of 
 strong drink, he is bound to destroy it ; if he is wrong, he is not entitled to keep 
 it from his friends. 
 
 4 Creasy's Constitutions, p. 120. 5 Infra, Book ii. cap. iv. 
 
232 OF THE EIGHTS AND DUTIES 
 
 its justification. Whether this principle may not be found to 
 limit the rights of private property in directions which have 
 scarcely been thought of as yet, is a question which the future 
 alone can answer. History is full of examples in which 
 principles have been revealed by events ; and the Irish Land 
 Bill ofl870(33&34 Vict. c. 46) was probably only a com- 
 mencement, in this country, of that legislation for the con- 
 version of nominal into real proprietorship, in the direction 
 of which almost all the progressive countries of Europe seem 
 to be tending. 1 The great practical obstacle to all legislation 
 affecting rights of exclusive possession, even where these have 
 been confessedly carried to the extent of being self-destructive, 
 arises from the irrational and criminal outcry for equalization 
 to which it immediately gives rise. It may be possible, as 
 is often asserted, that, by a redistribution of land, and 
 readjustment of taxation, which would in nowise affect the 
 relative importance or essential wellbeing of the propertied 
 classes, combined with a system of compulsory education 
 maintained by the State, the evils and dangers both of 
 pauperism and proletarianism might be in a great measure 
 removed. But no such arrangement is possible so long as 
 the ignorant majority claim, and are incited to claim, not only 
 that they shall be relieved of all the burdens, but that they 
 shall absorb the whole authority of the State. Graduated 
 taxation might possibly be a great benefit, but it might also 
 be a great evil, to the community ; for it means either a corre- 
 sponding graduation of political power, or else confiscation of 
 
 1 Reports from Her Majesty's Representatives respecting the Tenure of Land 
 in the several countries of Europe, 1869-70. 
 
WHICH NATURE KEVEALS. 233 
 
 the property of the few by the many — i.e., public robbery, 
 public demoralization, and the ultimate loss of civilization, 
 not spiritual alone, but also material. 
 
 (i) The right to be involves the right to dispose of the fruits of 
 being, mortis causa. 
 
 The right of executing mortis causd dispositions would at first 
 sight seem to be excluded by a doctrine which declares that all 
 rights originate in life, that they continue to be measured by 
 life, and terminate with life. But if we analyze the character of 
 such transactions more closely, we shall find that, to the full ex- 
 tent to which they are legitimate at all, they originate in the 
 powers of life, and thus fall fairly within the scope of the de 
 facto principle. And here the first consideration which presents 
 itself is that a mortis causd deed is a transaction, not between 
 a dead man and a living man, but between two living men, — 
 the man who gives at the moment of giving, and the man who 
 receives at the moment of receiving, are both in possession of 
 the powers of life — to the extent, at all events, of being capable 
 of consent. The only difference between it and what are usually 
 known as transactions inter vivos arises from the fact that the 
 one man must have lost his power of giving before the other 
 can exercise his power of receiving. But this difference loses 
 its importance when we consider that, substantially, the same 
 thing takes place in every transference. In the very act of 
 transferring a pound of tea, we shall say, the proprietor, qud 
 proprietor, expires — his proprietorship ceases, just as much as 
 if he had dropt down dead. Now this is precisely what occurs . 
 when, at the moment of death, the property of one man becomes 
 the property of another. The proprietary will of the testator 
 
234 OF THE EIGHTS AND DUTIES 
 
 gives place to the proprietary will of the heir, just as the pro- 
 prietary will of the seller gives place to the proprietary will 
 of the buyer. The apparent difficulty arises from the fact 
 that because a period after death must intervene before the 
 fact of transference can be proved, we imagine that such a 
 period intervenes before the fact of transference exists, and, 
 consequently, that it is an act of the dead. But the trans- 
 ference, in all cases, is instantaneous. The last breath of the 
 expiring proprietor is immediately followed by the first breath 
 of his successor, and thus " the king never dies." l Again, it 
 may be said that deeds to take effect after death are, neces- 
 sarily, future, and that, in this respect at least, they differ from 
 those which are intended to receive present execution. To 
 this objection the answer is, that inasmuch as the present, so 
 to speak, is a mathematical point of time, every transaction 
 necessarily has reference to the future ; and, further, that 
 inasmuch as life is uncertain, every transaction, tacitly at 
 least, contemplates the possibility of its execution after death. 
 But the only effect of physical death is to mark the point of 
 dissolution of the proprietary will. Even the impossibility of 
 predetermining the period of death makes no difference ; for 
 have we not bills of exchange payable at sight, on presenta- 
 tion, to order, and even conditionally ? But the heir of the 
 
 1 In the case of transference by offer and acceptance conducted by correspond- 
 ence, a considerable time must elapse between the act of will which constitutes 
 the offer and that which constitutes the acceptance. The point of transference is 
 that at which the wills meet, and the intermediate death of the offerer does not 
 prevent this occurrence. The heir of the offerer cannot repudiate the offer on 
 the ground that the offerer died before the offer was accepted. 
 
WHICH NATURE REVEALS. 235 
 
 testator, it may be said, may repudiate the succession. The 
 answer to this is that, if one heir repudiates, the next may 
 take, and that, failing all of them, the will to take is always 
 present in the Crown. On the part of some heir there is 
 thus always present will to meet that of the testator's at 
 the moment of death. On one occasion, I remember that an 
 ingenious objection was made to this train of reasoning by 
 one of my pupils, to the effect that no man dies willingly, and 
 that therefore there is no act of volition on the part of the 
 testator. Supposing the fact to be true, all that the objection 
 amounts to, I think, is that the act of will is conditional, and 
 conditioned only by an occurrence which the testator knows 
 to be inevitable. As regards their origin, there is thus no 
 difference at all between rights of transmitting the fruits of 
 life inter vivos and mortis causd. 
 
 (j) All our subjective rights resolve themselves into the right to 
 liberty. 
 
 The right to liberty — i.e., to the exercise of our own subjec- 
 tive powers — not only embraces the rights we have mentioned, 
 but it transcends them. Passing into the sphere of objectivity, 
 it constitutes a claim on the aid of our fellow-men. Liberty has 
 thus a positive as well as a negative side ; it is a claim not only 
 not to be hindered, but to be helped: This right to the positive 
 conditions of liberty, as we shall see, is the correlative to the 
 duties of mutual aid and charity, and forms the basis of the 
 positive side of jurisprudence, the claims of which form so 
 prominent an object in the teaching of the later schools of 
 Germany. 
 
236 OF THE EIGHTS AND DUTIES 
 
 (k) In the limitations which nature imposes on our subjective 
 rights, we have the first revelation of the principle of order. 
 
 Order is popularly supposed to spring entirely from objec- 
 tive rights. Let us see how the matter really stands. In 
 the dicta of our subjective nature we have found a warrant 
 for that side of jurisprudence by which our liberties are 
 asserted and vindicated. We have seen that the right to be, 
 is but a summary expression for the right to the free exer- 
 cise and development of the powers of our physical and 
 rational existence. We have seen, moreover, in each par- 
 ticular instance, that the rights of which we become con- 
 scious are not absolute and unlimited, but relative to, and 
 circumscribed by, the powers in. which they inhere. Absolute 
 rights, like absolute powers, belong to God only. He no 
 more communicates the former to His creatures than the 
 latter, and it thus appears that our rights are limited, not, 
 as is generally supposed, by rights which are opposed to 
 them, but in their own nature. Each individual comes into 
 existence and continues to exist only to the extent of his 
 powers. When these powers cease the rights are non- 
 existent. The great subjective limitation is death. Without 
 quitting the region of subjectivity, we thus perceive the 
 error of opposing objective to subjective interests, and of 
 supposing that our rights to life, liberty, property, and the 
 like, owe their limitations to the necessity of sharing them 
 with our fellow-creatures. So far is this from being so, that 
 whereas the subjective limitations of our rights are real, the 
 objective limitations, in so far as they are in accordance with 
 natural law at all, are only apparent. I may appear to 
 
WHICH NATURE REVEALS. 237 
 
 abandon, in your behalf, rights which but for you I should 
 have enjoyed. But the abandonment, in so far as natural 
 law calls upon me to perform it, is in reality a gain to me 
 precisely to the same extent to which it is a gain to you. 
 The recognition of your rights is just as much a condition of 
 the exercise of mine, as the acts of appropriation which I 
 make on my own behalf. In myself, however, I am a finite 
 and limited being, and the subjective limitations of my rights 
 are realities which consciousness reveals to me, and which do 
 not admit of being explained away. Now these limitations, 
 marking off as they do the sphere of subjective from that of 
 objective activity, are manifestations of the principle of order ; 
 and thus order takes its proper place, not as an end in itself, 
 as it has been the custom of despotic governments to main- 
 tain, but as a means towards the attainment of liberty, which 
 is the end of jurisprudence, and which, in its turn, as we 
 shall see hereafter, becomes a means towards the attainment 
 of the ultimate ends of human life. 1 
 
 (J) Nature reveals to us the possibility and the consequences of 
 the transgression of her laws. 
 
 Taken simply as a phenomenon, 2 no revelation of subjec- 
 tive consciousness is more unequivocal than the freedom of 
 the will. Though nature tells us neither of powers nor of 
 rights which transcend her limits, she informs us that we are at 
 perfect liberty to transgress them. But here a singular anomaly 
 appears. The consciousness of power is no longer accom- 
 
 1 Infra, Book ii. cap. i. 
 
 2 As' to the value of this phenomenon in the controversy between Liberty and 
 Necessity, see Hamilton's Metaph., vol. ii. p. 542. 
 
238 OE THE RIGHTS AND DUTIES 
 
 panied by the consciousness of right. In abandoning us to 
 ourselves and rendering us the authors of our own actions, 
 nature does not deceive us. On the contrary, as we have 
 seen, she bestows on us an autonomous character, which she 
 mercifully places beyond the reach of our volition, and thus 
 not only enables us to discover, but forces us to feel, that all 
 transgressions of her laws are acts of subjective as well as 
 of objective injustice, and that, apart from considerations of 
 future rewards and punishments altogether, every sin or folly 
 which we commit is, in principle, an act of self-destruction. 
 The suicidal character of abnormal and inharmonious action, 
 is a doctrine which the revelation of nature teaches as un- 
 equivocally as the revelation of Holy Writ ; though it leaves 
 the remedy against the mysterious propensity which seems 
 to reside in each of our separate tendencies to assert itself 
 in isolation, and to claim an exclusive dominion over us, a 
 hopeless enigma. It is in the limitation which this myste- 
 rious element of imperfection, the presence of which in our 
 phenomenal nature we cannot ignore, imposes on the freedom 
 of our will, that we recognize the necessity of admitting the 
 abnormal relations of war, neutrality, &c, within the pale of 
 jurisprudence. It is with a view to their annihilation alone 
 that they are recognized. Jurisprudence refuses to take 
 cognizance of them otherwise than as vanishing quantities. 
 
 (m) Nature reveals objective rights which exactly correspond to 
 our subjective rights. 
 
 The question whether or not objective rights, or, in other 
 words, the objective side of morality (which, as we have seen, 
 has often been erroneously regarded as embracing morality 
 
WHICH NATURE REVEALS. 239 
 
 altogether), 1 rest upon nature or upon convention ; and, con- 
 sequently, whether a science of jurisprudence, or of equal 
 justice between man and man, be possible or impossible, 
 turns wholly on the previous question, whether our recogni- 
 tion of objective rights springs from the same source, and rests 
 on the same basis, as that of the subjective rights which we 
 have just considered. "We have seen that the so-called selfish 
 system speaks with the voice of nature in what it claims for 
 the Ego. As regards the relations of creatures to each other, 
 we have farther seen that rights precede duties. 2 We have 
 adopted the dictum of Spinoza, that "nature, considered in 
 general, has a sovereign right over everything which is within 
 her power — that is to say, that the rights of nature extend 
 just as far as her power extends." 3 Must we then follow him 
 the whole length to which he himself, reluctantly, followed 
 Hobbes, and concur in rejecting the counter-dictum of Grotius, 
 that " it is false to say that, by nature, every animal is im- 
 pelled to seek only its own advantage " ? 4 
 
 Now this question appears already to have received its 
 answer from the subjective revelations with which we have 
 become acquainted. 
 
 In the limitations inherent in our subjective rights, and in 
 their dependence for their assertion on our recognition of the 
 objective rights which are erroneously supposed to limit them, 
 we have discovered, as it were, the unappropriated territory 
 which nature assigns to objective activity. The rights of the 
 Ego, so far from exhausting existence, are not even self-vindi- 
 
 1 Ante, pp. 208, 209. 3 Ante, p. 209. 
 
 3 Vol. i. pp. 204, 205, and vol. ii. p. 251, Saisset's ed. 4 Proleg., sec. 6. 
 
240 OP THE RIGHTS AND DUTIES 
 
 eating, for the voluntary aid of other created existences is one 
 of the conditions which nature has imposed on their exercise. 
 The principles of the selfish system itself thus furnish us 
 with the grounds for repudiating its conclusions. The rights 
 of the Ego are an adequate guarantee for the rights of the 
 noii-Ego. 
 
 But objective rights stand, nevertheless, upon a separate 
 correlative basis of objective powers. If the recognition of 
 rights be inseparable from the recognition of life in our own 
 case, and if the objective validity of this subjective assevera- 
 tion be guaranteed to us by the analogy of organic existence 
 as a whole, then surely the recognition of our neighbour's life 
 involves the necessary and involuntary recognition of his 
 rights. To recognize human life, and then to deny to it 
 characteristics or qualities which belong to, and indeed con- 
 stitute life in general, would be to involve ourselves in 
 contradiction. 
 
 The only question that remains then is, Have we a neigh- 
 bour ? or, in other words, are there external existences at 
 all ? Into the metaphysical or physiological discussions as to 
 the manner in which we became cognizant of the non-Ego, 
 and the character in which it presents itself to our know- 
 ledge, whether material and physical, or immaterial and dyna- 
 mical, or both, the jurist, as such, is not called upon to enter. 
 That there are other existences than my own is a fact which, 
 to my mind, is sufficiently proclaimed by the consciousness of 
 my own existence as separate, for separation involves the exist- 
 ence of both the objects separated. The doctrine that the 
 simultaneous knowledge of opposites is necessary, appears to 
 
WHICH NATURE REVEALS. 241 
 
 me to admit of as little question as that the simultaneous 
 knowledge of contradictories is impossible ; and to the extent 
 of holding that consciousness gives us our knowledge of the 
 object in the same act in which it gives us our knowledge of 
 the subject, I am a " Natural Eealist." 1 But be this as it 
 may — external existence is a fact, at the practical recognition 
 of which all minds arrive by some process ; and such being 
 the case, it is a fact which, in a treatise on jurisprudence, I 
 shall take the liberty to assume. The assumption of this fact 
 then, our previous conclusions being sound, is one which, as 
 I have said, carries the whole of our subjective rights over 
 to the objective side ; for every right which was inseparable 
 from my life necessarily clings to the life of my neighbour. 
 My recognition of objective rights is thus dictated, neither by 
 a sense of my own interests nor by a voluntary tenderness 
 for those of others, neither by the hopes and fears of Hobbes, 
 nor by the benevolence of Hutcheson. It is founded on no 
 contract, either verbal or tacit, upon no law which man has 
 made, for its roots are in a nature of which we all were passive 
 recipients, and over the constitution and primary character- 
 istics of which none of us has or can have the slightest control. 
 Lastly, the proportion which we found to subsist between 
 subjective rights and powers, necessarily passes over along with 
 them to the objective side. The equality which my neighbour 
 can righteously demand, or which I can righteously concede 
 to him, is an equality, not of powers and rights, but of their 
 recognition. 2 I must accept him as I conceive that God has 
 
 1 Hamilton's Metaph. Miiller on Sin, vol. i. p. 80. 
 
 3 See this subject fully discussed, Book ii. chaps, iii. and iv. 
 
242 OF THE RIGHTS AND BURDENS 
 
 made him, and as life has developed him, and not as either 
 he or I think he ought to be, or ought to have been. It by- 
 no means follows, however, that the estimate which I form of 
 his qualities is an accurate one. If his nature be deeper and 
 richer than mine, I am in danger of involuntarily doing him 
 injustice ; if it be shallower and poorer, I shall probably de- 
 ceive myself and lavish on him, or her, 1 a degree of tenderness 
 of which he, or she, is not worthy. 
 
 4. Nature reveals objective duties, or duties by others to us, 
 which exactly correspond to our subjective duties, or duties by us 
 to others. 
 
 The truth of this proposition follows from the preceding as 
 a matter of course, for, on the same grounds on which our 
 rights become our neighbour's, his rights must become ours. 
 It is this revelation which constitutes our warrant for the 
 enforcement of our rights, the necessity of such enforcement 
 for their vindication having been ascertained, for all unneces- 
 sary exercise of force is a waste of power, whether it be by 
 the baton or the sword, and nature abhors waste as she abhors 
 a vacuum — which, indeed, is a waste of space. 
 
 Viewed as efforts for the benefit, direct or indirect, temporal 
 or spiritual, of those against whom they are apparently directed, 
 and whose immediate freedom it is their object to constrain, 
 both the laws of war and criminal laws find their justification 
 and their measure in the objective rights of which we treated 
 in the last section. 
 
 5. The existence of subjective and objective rights and duties, 
 
 1 Adam Bede, p. 308. 
 
WHICH NATURE REVEALS. 243 
 
 and of their mutual dependence, constitute the sole revelation which 
 nature makes to us with reference to human relations. 
 
 As the Ego and non-Ego exhaust the sphere of being, so, in 
 like manner, the rights and duties of the Ego and non-Ego 
 exhaust the sphere of justice. And as the Ego and non-Ego 
 are inseparable ontologically, so likewise are rights and duties 
 linked together by the necessities of our ethical nature. It is 
 as this nexus, or necessary interdependence, and not as any 
 separate and independent principle of our nature, that we 
 must understand the otVaWis of the Stoics, on which the sys- 
 tem of Grotius is founded. Viewed as a general principle of 
 society, it is a mere generalization of the intuitive and in- 
 voluntary tendency which manifests itself in each individual 
 mind, to extend to the object the rights of the subject. It is 
 not a primary or separate fact of nature, but a natural law, 
 evolved from the primary facts of nature by our reasoning 
 faculties. 1 In this respect it very much resembles " con- 
 science," viewed as the harmonious verdict of our general 
 nature. Its popular meaning is obvious and important ; but 
 I fail to see its scientific necessity or value. Eousseau has 
 seen and stated this view very clearly. " Meditating upon 
 the first and most simple operations of the human mind, I 
 believe myself to see there two principles anterior to reason, 
 of which the one interests us in the liveliest manner in our 
 own wellbeing and preservation, and the other inspires into 
 us a natural repugnance to see a sensible being, above all, a 
 being of our own race, perish or suffer. It is from the con- 
 course and combination which our mind is in a condition to 
 1 Infra, cap. viii. 
 
244 HOW WE BECOME COGNIZANT 
 
 make of these two principles, without the necessity of intro- 
 ducing that of sociability, that all the rules of natural law 
 appear to me to follow." - 1 
 
 CHAPTER VIII. 
 
 HOW WE BECOME COGNIZANT OF LAW IN GENERAL. 
 
 1. Natural lavjs are rational inferences from the facts of 
 nature. 
 
 In the preceding chapter we have seen that what conscious- 
 ness directly reveals to us is not laws or principles, but powers 
 and rights. In this, as in all other instances, our experience 2 
 of the particular precedes our recognition of the general, and 
 we shall examine the dicta of nature in vain, not only for the 
 positive or concrete laws by which separate communities 
 ought to be governed, but even for those abstract laws which 
 assign the necessary conditions of human wellbeing and pro- 
 gress. The suum cuigue of the Romans, for example, is an 
 abstract or natural law so universal in its application as not 
 
 1 Discours sur Vorigme et les fondements de Vi/nAgaliU, preface, p. 50. It is in 
 such occasional utterances that we see what might have come of Rousseau had he 
 been favoured by education and circumstances. As Cicero said of Socrates that 
 he was the Homer of Philosophers {Titscul., quaes. i..32), so we may say of Rous- 
 seau that he was the Burns of Publicists. 
 
 I here and elsewhere use the word ' ' experience " as implying the recognition 
 of internal equally with external phenomena. The facts of consciousness are 
 facts of experience, just as much as the facts of touch or taste. 
 
OF LAW IN GENERAL. 245 
 
 to be confined even to human relations. In this respect it 
 differs widely from any special or positive law by which the 
 suum is defined and the cuique individualized — from such a 
 law, we shall say, as that the patriot, potestas (the suum) belongs 
 to the grandfather, if alive (the cuique). But the abstract law 
 is no more revealed to us by consciousness than the concrete 
 law. On the contrary, all that nature teaches us directly is, 
 first, that we ourselves, and, second, that the other organized 
 existences of which we are cognizant, possess individual powers, 
 with correspondent individual rights. From these data, by 
 the aid of our reasoning faculties, we infer the general . law 
 that " right corresponds to power.'' 
 
 2. Natural laws are necessary inferences from the facts of 
 nature. 
 
 We have seen that the ascription to the object of the rights 
 of which the subject is conscious is an involuntary act, and 
 that in each individual case our knowledge of our rights 
 and our knowledge of our duties rest on the same basis of 
 nature. 1 But this act is only the first step in a process of 
 induction, every subsequent step of which possesses the same 
 involuntary character. The moment that an objective exist- 
 ence is recognized, the recognition of rights proportioned to 
 his powers, more or less clearly apprehended, is forced upon us. 
 In addition to powers and rights, the relation which subsists 
 between them thus forms part of the phenomena presented by 
 our cognitive to our discursive faculties, and as the latter must 
 accept the data which they receive, the only imaginable alter- 
 native lies between reasoning out these separate cognitions 
 
 1 Ante, p. 242. 
 
246 HOW WE BECOME COGNIZANT 
 
 into corresponding laws, and not reasoning at all. But the 
 latter alternative, happily, does not lie within our reach, for 
 the option of reasoning is no more given to man than the 
 option of being. He may cease to reason, it is true, if he may 
 cease to be ; but even on the improbable hypothesis of self- 
 annihilation being possible to him, he can no more avoid 
 having reasoned than he can avoid having been. To this 
 extent, and no further, as it seems to me, our knowledge of 
 natural law may be said to be intuitive. We cannot wholly 
 ignore our neighbours' rights. A being who could do so would 
 not' be a man. But each man will recognize them more and 
 more as he becomes more and more of a man, — becomes, as 
 we say, more " humane." Nay, further, there will be more to 
 recognize — for rights and obligations, as we shall see, keep pace 
 with each other, and the obligations of a civilized man are 
 greater than those of a barbarian. Whether his power of 
 recognizing them does more than grow in proportion to the 
 growth of the rights to be recognized, is a question which I 
 shall leave for your own consideration. 
 
 Our knowledge of the laws of nature, if less immediate, is 
 thus as inevitable as our knowledge of the facts of nature, and 
 the character of these laws is as independent of our volition 
 as the character of the facts of which they are generalizations. 
 And these remarks apply to the laws which govern the ab- 
 normal as well as to those which govern the normal relations of 
 human beings, whether as individuals, as citizens, or as politi- 
 cal communities, — to criminal laws and to the laws of neutral- 
 ity and war just as much as to the laws of status, of contract, 
 or of international recognition. Sin and folly, however in- 
 
OF LAW IN GENERAL. 247 
 
 explicable may be their origin, are facts of our nature the 
 existence of which that nature reveals, and for which, in de- 
 termining their true character, relatively at all events, she 
 suggests appropriate laws. The only distinction between the 
 laws which govern normal jural relations and abnormal jural 
 relations which concerns us here, is that the object of the 
 former is the protection and perpetuation of the relations 
 which they govern, whereas the object of the latter is the 
 annihilation of the relations which they govern. 
 
 3. Natural laws determine the ultimate objects of positive laws, 
 and fix the principles of jurisprudence as a whole. 
 
 From our previous discussions it has resulted that nature 
 assigns the realization of her own ideal in each genus, species, 
 and individual (which ideal in the case of humanity is the 
 Divine image which humanity reflects) as the object (reXos) of 
 her being. What we call life in time, is the process by 
 which the idea of that which lives is revealed to it, and 
 realized by it. Life, nature, like the divine, of which they 
 are manifestations, thus embrace their own ends, are ends 
 to themselves. 1 This ideal or object must consequently be 
 the final object of all laws, whether abstract or concrete. 
 But what we call natural or abstract laws are a statement of 
 the necessary, and, as such, invariable conditions of the attain- 
 ment of this object. 2 These conditions, then, which nature 
 
 1 " By an idea, 1 ' says Coleridge, " I mean that conception of a thing which is 
 given by the knowledge of its ultimate aim." — Church and State, p. 10. If the 
 thing be fully conscious, its idea and its ultimate aim will be identical, and their 
 identification will progress as it advances in consciousness. 
 
 2 I cannot go along with Coleridge (ut sup., p. 12) in identifying laws with the 
 idea, though he has, no doubt, Platonic authority for doing so. 
 
248 HOW WE BECOME COGNIZANT 
 
 prescribes to life as a whole, are necessarily binding upon life 
 in its partial manifestations. The laws of nature thus fix the 
 permanent conditions, or, as they are popularly but some- 
 what vaguely called, the principles of positive law, in all its 
 departments, and assign to it its necessary character. 
 
 The principles of jurisprudence, or abstract laws, find their 
 realization in wider and in narrower spheres : and it is for 
 this reason, and not from any substantial diversity in the 
 principles themselves, that they are divided into natural laws, 
 or principles in the abstract ; principles of legislation (i.e., the 
 framing of positive laws) ; and principles of jurisdiction (i.e., 
 the applying of positive laws to special cases). The first are 
 the necessary conditions of life in accordance with nature 
 generally ; the second, the necessary conditions of life in 
 accordance with nature in a special community, or between 
 special communities for a special time ; and the third, the 
 necessary conditions of individual life in accordance with 
 nature, in the like circumstances of time and place. 
 
 As the laws of nature, or general principles of jurisprudence, 
 hold to legislation or law-giving precisely the same relation 
 that legislation holds to jurisdiction or the administration of 
 the law, it will be obvious that for men to arrogate to them- 
 selves, or others to confide to them, the duties of legislation 
 whilst they are ignorant of the laws of nature, would be just 
 as absurd in itself, and would be likely to be productive of 
 far wider mischief than if men were to be raised to the bench 
 who had no knowledge of the laws of their country. And 
 yet the former occurrence is, I fear, far more frequent than 
 the latter ; for whilst positive law is studied in general with 
 
OF LAW IN GENERAL. 249 
 
 infinite care, and nothing short of long and siiccessful practice 
 will satisfy us of the efficiency of our judges, almost any man 
 is considered fit to be a legislator, and all men equally fit to 
 choose one. In such circumstances, should we find enacted 
 laws which are at variance with the principles of nature, or 
 which realize these principles imperfectly, the fact is one 
 which we may well deplore, but at which we cannot wonder. 
 That the errors of our legislation do in practice arise from mis- 
 taken or imperfect conceptions of the ultimate objects which 
 legislation ought to seek, quite as frequently as of the means 
 — which in their turn of course become proximate objects — 
 by which its ultimate objects are to be attained, is a fact 
 which will become apparent more and more as we compare 
 the objects of positive laws with the objects of natural laws ; 
 and there is, moreover, this very important difference between 
 these two sources of error, that whereas a law which employs 
 inadequate means calls only for amendment, a law which aims 
 at a false object demands immediate repeal. The means, 
 being temporary, may be adapted to the end ; but the end, 
 being permanent, cannot be adapted to the means. When 
 the legislative engine is set on the right rails and turned in 
 the right direction, all that is requisite is that the greatest 
 amount of speed that is consistent with safety should be 
 attained. But if it is on the wrong line, or has run off the 
 rails, the journey will never be accomplished, and danger to 
 life and property increases every instant that the engine con- 
 tinues in motion. 1 And these remarks apply a fortiori when 
 
 1 " If the principle of a law be wrong," says Burke, "the more perfect the 
 law is made, the worse it becomes." — Tracts on the Popery Laws, cap. iii. part i. 
 
250 HOW WE BECOME COGNIZANT 
 
 from the sphere of municipal we pass to that of international 
 jurisprudence. The question, then, " what are the laws which 
 nature assigns to our human relations," in addition to its 
 lofty speculative interest, is the practical question which 
 must take precedence of every other, because in this depart- 
 ment of jurisprudence it is often undetermined, and it is on it 
 that all other practical questions depend for their solution. 
 
 4. The natural or de facto basis on which positive law rests 
 being hnown, the positive law which governs any given human 
 relation may be discovered. 
 
 From what we have seen of the genesis of our rights and 
 duties, we are now, I trust, in a condition to accept the three 
 following propositions. 
 
 1st, The laws of nature are logical, and, as such, necessary 
 inferences, which it belongs to the scientific jurist to make 
 from the facts which consciousness or internal observation, 
 and experience or external observation, reveal to him as the 
 necessary conditions of human life. 
 
 2d, The laws of the nation, public and private, and the 
 laws of nations, public and private, are similar inferences, 
 which it belongs to the legislator or practical jurist to make ; 
 (a) from the laws of nature, which he accepts as facts ; and (6) 
 from the local and temporal facts or circumstances of the nation, 
 or of the nations, which it is his business to ascertain. 
 
 3d, Judicial sentences, or judgments — i.e., the laws of the 
 individual case — are inferences, equally necessary, which it be- 
 longs to the judge to make ; (a) from the laws of the nation, 
 or of the nations, which he accepts as facts in themselves, 
 and, consequently, as decisive of the law of nature ; and (b) 
 
OF LAW IN GENERAL. 251 
 
 from the facts — i.e., the characteristics and circumstances of 
 the individual — which it is his duty to ascertain. 
 
 There is probably no way in which the absolute and neces- 
 sary character of positive law in all its branches, and the 
 fact of jurisprudence being a science of nature, even in its 
 minutest details, can be better illustrated than by remarking 
 the close analogy which subsists between it and the sciences 
 of external nature on the one hand, and the wide gulf which, on 
 the other, separates both it and them from any system of rules 
 logically deduced from premises which have been arbitrarily 
 assumed. As an example of the latter, let us take the so-called 
 science of heraldry. A witty writer, in reviewing a heraldic 
 book, claimed for the " noble science " a foundation in nature, 
 on the ground that " man is a blazoning animal." But though 
 the nature of man may impel him to blazon, it leaves him to 
 blazon as he chooses, at least in so far as his actions are free 
 at all. There might be fifty sciences of heraldry, each as 
 good as the other, and this, not in different circumstances, but 
 in circumstances absolutely identical. At any time it would 
 be possible to put a sponge over such a "science," and to 
 construct another diametrically opposed to it in every par- 
 ticular, and yet not inferior to it in any respect. The 
 second would be just as true to -nature as the first, just 
 as true absolutely, because neither of them would have any 
 basis in nature, any absolute truth. The premises in both 
 cases being entirely arbitrary, so arbitrary that they might 
 have been determined by the casting of a die, if the rules 
 were adhered to and the conclusions logically deduced, that 
 is all that could be demanded in order to place them on a 
 
252 HOW WE BECOME COGNIZANT 
 
 footing of perfect equality. Both would be systems, neither 
 would be sciences ; and in place of two such systems coincid- 
 ing, it would be quite wonderful if they bore the slightest 
 resemblance to each other, even if the circumstances out of 
 which they arose exhibited the closest analogy. But with 
 the sciences which have nature for their object, and with 
 the arts which rest upon these sciences, the very reverse is 
 the case. If the Chinese had a system of heraldry resem- 
 bling ours, it would be as wonderful as if we were accidentally 
 to fall on the letters of their alphabet, and the marks on their 
 tea-chests, or if we were to find them playing our game of 
 whist. But if the Chinese had a science of geometry different 
 from ours, it would be no science at all. If they measured 
 the earth by it, their measurements would be incorrect. If 
 they built houses in accordance with it, they would tumble 
 down. And so of their chemistry, of their physiology, and 
 their psychology, at least to the extent to which the bodies 
 and souls of Chinamen resemble those of other human beings. 
 Now it is the same with their jurisprudence. Their positive 
 law differs from ours, no doubt, very widely in its special pro- 
 visions ; but these differences arise wholly from two causes — 
 viz., (a) Error or imperfection in their conceptions of natural 
 law, or in ours — for though natural law be infallible, all 
 human interpretations of it are subject to many errors ; and 
 (6) difference of circumstances, which necessarily varies the 
 means by which the same principles, or natural laws, are 
 realizable in different places or at different times. Still, 
 there are certain invariable conditions of human life, such as 
 the relations and the limits of power, and, consequently, of 
 
OF LAW IN GENERAL. 253 
 
 right, the necessity of mutual aid, the relations of the sexes, 
 &c, which communicate certain features of resemblance even 
 to the positive rules by which the laws of nature are realized 
 in different countries and different ages. Such laws, in short, 
 differ in proportion to the extent to which they are the result 
 of differences of original genius, or of stages of intellectual and 
 moral development in the people, or of climate and other con- 
 ditions of inanimate nature ; they approximate in proportion to 
 the extent to which these circumstances are assimilated. Were 
 the genius and the circumstances of two nations the same in 
 all respects, and their laws perfectly adapted to them, these 
 laws would be identical in their minutest details. It is a 
 profound saying of Kant, 1 though not, as we shall see here- 
 after, consistent with the distinction between perfect and im- 
 perfect obligations which he has adopted, that "there can no 
 more be two decisions in the same case than there can be two 
 straight lines between the same two points." As we can only 
 have a right line, and a crooked one, so we can only have a 
 right decision and a wrong one ; whereas, a case which has no 
 decision is as inconceivable as two points between which no 
 straight line can be drawn, or as a circle which has no centre. 
 It is an elevating thought on entering on the practice of 
 our profession, that there is thus no case that can be presented 
 to us so humble or insignificant that it may not be so decided 
 as that we shall be entitled to say, with Kepler, that we 
 have "thought God's thoughts after Him." 
 
 5. Though necessarily, existent and discoverable, positive laws 
 never have been, and probably never will be, perfectly discovered. 
 1 Metaphysic of Ethics, Semple's trans., p. 222. 
 
254 HOW WE BECOME COGNIZANT OE LAW IN GENERAL. 
 
 The truth of this proposition results only too plainly from 
 the existence of that disturbing and bewildering element, 
 which in our moral nature we recognize as sin, and in our 
 intellectual nature as imperfection. "Why we cannot discover 
 a perfect law, even when we seem to possess all the elements 
 of knowledge and reason, or obey a perfect law when we seem 
 to be conscious both of freedom and of will, is as great a mys- 
 tery as, but not a greater mystery than, why we cannot draw 
 a perfect line or describe a perfect circle, though we know, 
 and can demonstrate, the conditions of perfection in both. 
 But the impossibility of discovering, or of obeying, perfect 
 laws, is no greater argument against making principle the 
 guide of our practice, and bringing positive as nearly as pos- 
 sible into conformity with natural law, than the impossibility 
 of making perfect lines or circles would be an argument 
 against making our straight lines the shortest distance we 
 can discover between the points they are intended to unite, 
 or all the radii of our circles as equal as we can. We cannot 
 tell how near it may consist with the scheme of the Divine 
 government that either the individual, or the race, should, in 
 this life, approximate to completeness, either of knowledge or 
 of obedience. But our ignorance, in this respect, need cause 
 no irresolution to beings whose nature does not cease to re- 
 mind them of the rule of life in its broader aspects, or set 
 limits to the extent to which they may trace out and conform 
 to its minuter prescriptions. The law of action and reaction, 
 of which our extravagant and one-sided tendencies, and our 
 consequent reformations, and revolutions, and reform -bills, 
 and party strifes, and party victories, are humiliating and 
 
OF THE LAWS OF NATURE. 255 
 
 degrading manifestations, is, to all appearance, just as in- 
 separable from national life, as transgression and repentance 
 are from individual life. History holds out no hope that the 
 upward progress of humanity will ever be otherwise than in- 
 termittent and indirect. But if there be any lesson of en- 
 couragement that history teaches at all, it seems to be that 
 the experience which men purchase at so fearful a cost is 
 never wholly lost by them, as a race. The ultimate identity 
 of knowing and being asserts itself more and more. Though 
 the tendency to act on half-truths never disappears, the 
 opposite reasons begin to tell sooner, and reaction takes place 
 at an earlier period, at each successive stage of the life of a 
 progressive people ; and even where an individual nation has 
 run so far into excess as to render its continued advance, or 
 even existence impossible, its fate is more readily recognized 
 as a warning, and its story as a contribution to that slowly 
 accumulating mass of recognized truth and realized knowledge 
 which is power and progress. 
 
 CHAPTER IX. 
 
 OF THE LAWS OF NATURE, OR PRINCIPLES OF JURISPRUDENCE 
 WHICH RESULT FROM THE HUMAN RIGHTS AND DUTIES 
 WHICH NATURE REVEALS AS FACTS. 
 
 (a) All human laws are declaratory. 
 
 The first great principle of jurisprudence, and that to 
 which it owes at once its sacred and its scientific character, 
 
256 OF THE LAWS OF NATURE. 
 
 is determined by the necessity under which we have seen 
 that our nature lies to accept itself as right and to seek its 
 own realization. 1 I cannot state it better than in the golden 
 maxim of the greatest of our own statesmen, which I have 
 adopted as a motto to this work. 
 
 The passage, as a whole, is so instructive that I shall quote 
 it at length. " It would be hard," says Burke, " to point out 
 any error more truly subversive of all the order and beauty, 
 of all the peace and happiness of human society, than the 
 position that any body of men have a right to make what 
 laws they please; or that laws can derive any authority 
 whatever from their institution merely, and independent of 
 the quality of their subject-matter. . . . All human laws 
 are, properly speaking, only declaratory. They may alter the 
 mode and application, but have no power over the substance 
 of original justice." 2 To the same effect, and with almost 
 equal felicity, Lord Bacon has said, that the rule points to 
 the law, as the compass points to the pole, but does not make 
 it. " Eegula enim legem (ut acus nautica polos) indicat, non 
 statuit." — Be Justitia Universali, Aphor. lxxxv. 
 
 As laws are inferences from powers and rights, 3 existing 
 in wider or narrower spheres, it is obvious that powers and 
 rights cannot owe their origin to laws. We have seen that 
 out of the original powers and rights which God bestows on 
 His creatures, new powers and consequent rights may be 
 generated, and new relations evoked, by their free activity. 
 In this sense there may be new natural laws. These new 
 
 1 Ante, p. 60. 2 Tracts on the Popery Laws, cap. iii. part i. 
 
 3 Ante, pp. 245-248. 
 
OF THE LAWS OP NATURE. 257 
 
 powers and rights may assume the form either of increased 
 personal capabilities of action, or of increased dominion over 
 external objects, and the latter more especially may be trans- 
 mitted and inherited. 1 On the other hand, a process of retro- 
 gression may have been in operation, and the individual or 
 the community may have dwindled, — may have become less 
 of an individual or less of a community than at a previous 
 period. The relations which formerly subsisted between them 
 will be limited, and they will generate less natural law. In 
 either case, and in all similar cases, it is obvious from the 
 necessary relation between power and right, that at each step, 
 whether of progress or retrogression, existing powers are the 
 sources of existing rights, that they measure their extent, and 
 assign the limits of their recognition, whether that recogni- 
 tion be effected internationally by treaty, nationally by statute, 
 or individually by judicial sentence. 
 
 Keeping this fundamental principle in view, you will at 
 once perceive the absurdity of the popular belief — of the pre- 
 valence of which even in professional minds 2 too many in- 
 
 1 Ante, pp. 230, 233. 
 
 2 Wheaton, History, pp. 99, 100, 104, 105 ; Philimore, vol. i. p. 21, and Mani- 
 festo of Great Britain to Russia in 1780, which he quotes. In such cases it is 
 always difficult to distinguish between loose writing and erroneous thinking ; but 
 the former in the author is too likely to become the latter in the reader. Even 
 Grotius is by no means so careful as could be wished. As an instance, take the 
 concluding sentence of sect. 40 of the Prolegomena to the de Jure Belli et Pads. 
 In that passage he speaks of a kind of law " Quod ex certis principiis certa argu- 
 mentatione deduei non potest, et tamen ubique observatum apparet, sequitur ut ex 
 voluntate libera ortum habeat." The only hypothesis on which this passage is 
 reconcilable with the general principle that all positive law is necessary and de- 
 claratory, is, that Grotius is here speaking of mere enacted law which has failed 
 to realize the law of nature. But that such is not his meaning is plain from the 
 fact that he says the law of which he is speaking is of a kind that is ubique oo- 
 
 E 
 
258 OF THE LAWS OF NATURE. 
 
 stances might be given — that rights may be " conferred," 
 "constituted," "modified," "limited," "adapted," and even 
 " altered " by law. Formally, or rather nominally, of course, 
 the thing may be done ; because anything however absurd 
 may be enacted. But the effect of such an enactment is not 
 to change rights, but to outrage them ; not to declare new 
 truths, but to proclaim falsehoods. The vd/x<o KaXbv v6fua 
 
 servatum. In stating, then, that there is a species of purely voluntary law, origi- 
 nating ex voluntate libera, which is ubique observatum, and which rests on no cer- 
 tain principles, and in speaking of this jus voluntarium in other passages — e. g. , 
 i. i. ix. 2, and i. i. xiii.— this great man has not only forgotten, for the moment, 
 the natural basis of jurisprudence, but has contradicted his own doctrine, as set 
 forth in sects. 12, 15, 16, 17, of the Prolegomena and elsewhere. Voluntary law, 
 in this sense, would not be the "grandchild" (sect 16), but the bastard of 
 natural law. In the main, fundamentally and substantially, the system of 
 Grotius is both sound and consistent ; but in studying him we must be actuated 
 by the sentiment with which he himself approached Aristotle : " Nobis proposi- 
 tum est Aristotelem magnifacere, sed cum ea libertate quam ipse sibi in suos 
 magistros, veri studio, indulsit. " — Proleg., sect. 45. A similar charge of inaccuracy 
 of expression, though not of thought, might be brought against Leibnitz, who 
 frequently speaks of Jus Voluntarium. There is one sense, indeed, in which, with- 
 out positive inaccuracy, law may thus be spoken of in a popular way. We have 
 seen above that new laws may be generated by new facts or circumstances, and these 
 facts or circumstances may, no doubt, arise from the voluntary activity or inactivity 
 of mankind. But it is not the laws, but the circumstances which determine the 
 forms of their manifestation, which are under human control. The circumstances 
 being given — the relations being formed — a marriage, for example, being con- 
 tracted — the laws which govern, and when enunciated define the relations, are as 
 inevitable as the laws of physical nature, of logic, or of numbers. The points 
 between which the straight line, to which Kant happily likened law, may, 
 within the limits to which man's free activity extends, be changed indefinitely, 
 but, whatever position they assume, and whether they be visible or invisible, the 
 straight line which unites them will always be inevitable. We may draw a 
 crooked line, of course, or as many crooked lines as we choose ; and in like 
 manner there is no limit to the number of so-called positive laws which we may 
 enact. But there can be but one positive law, in the sense of a law which 
 realizes the natural law of the relation ; and positive law is thus as little volun- 
 tary as natural law. 
 
OF THE LAWS OF NATUEE. 259 
 
 kclkov is an aspiration not only after the unjust, but the 
 impossible. 
 
 The inflexible and universal character of the de facto prin- 
 ciple, as it is called in international law, will be best illus- 
 trated by bringing it in contact with special relations, and 
 mentioning a few of the directions in which legislation, by 
 attempting to set it at defiance, has caused an antagonism 
 between enacted and true positive law. 
 
 (h) Law cannot change the character, or alter the relations of 
 persons. 
 
 We cannot advance or retard the progress of human life 
 or reason by simple enactment — -e.g., we cannot make men 
 majors or minors, or give them or deprive them of contract- 
 ing or legislating power ; all that we can do is to discover 
 and declare the fact of its existence or non-existence in the 
 special sphere with which we deal. We cannot resolve all 
 relationships into fraternity, in order to fit them in with a 
 predetermined political theory ; neither can we raise relation- 
 ships of affinity to the rank of relationships of consanguinity, 
 in order to conform to theological traditions. 
 
 (c) Law cannot constitute, extend, or circumscribe a proprie- 
 tary relation. 
 
 That possession is " nine points of the law," or, in other 
 words, that it constitutes the primd facie title to possess, is a 
 maxim common to popular speech and to every department 
 of positive law. 
 
 The object which the thief has stolen is presumed to be 
 his till previous possession has been established by another, 
 to whom the presumption of property is then transferred. 
 
260 OF THE LAWS OF NATURE. 
 
 The intruder can only be ejected by a previous possessor, 
 whose title the law declares to be preferable. 
 
 The law of prescription, by which questions of previous 
 title are excluded, is even a stronger illustration of the de 
 facto origin, and consequent declaratory character, of juris- 
 prudence, inasmuch as it rests on the presumption, that after 
 a limited time, no other proof of property can be equal to 
 actual possession. 
 
 In like manner, in public international law, de facto exist- 
 ence as a state is the ground of de jure recognition, whilst in 
 unappropriated territories actual possession and use must pre- 
 cede a claim to exclusive title as against future occupants. 
 We have seen that paper titles, such as the Papal Bulls of 
 other times, are now repudiated as violations of natural right, 
 on the ground that they are destitute of the fundamental 
 element of fact on which right reposes. Even partial occupa- 
 tion, such as that of savage and semi-civilized nations, is held 
 to confer an exclusive right only to such portions of territory 
 as are actually occupied industrially, and not simply wandered 
 over, or occasionally resorted to as hunting-ground or pastur- 
 age. It is on the same ground that paper blockades have 
 been repudiated by neutral states. 1 
 
 Such are a few of the most obvious, though not by any 
 means the most indisputable instances of the declaratory 
 character which belongs to all true legislation, and to all real 
 positive law. It is by a more consistent adherence to, and a 
 more extensive application of, the de facto principle alone that 
 legislative progress is possible ; and there are few legislative 
 
 1 "Solemn Declaration " of Paris, April 16, 1856. 
 
OF THE LAWS OF NATURE. 261 
 
 difficulties to which we cannot, by its means, perceive the 
 possibility at least of a theoretical solution. I have spoken 
 elsewhere 1 of its applications to international legislation, by 
 the abandonment of the two errors of permanence and equal- 
 ity. Let us here 2 revert to the most delicate of all questions 
 of internal legislation — viz., Whether any, and if any, what 
 limits may justly be set to the accumulation and retention of 
 private property ? 
 
 The principle that there is no right which does not arise 
 from, and continue to depend upon, power, and consequently 
 that law cannot carry a proprietary relation beyond the 
 bounds of its possible exercise, which decides this question in 
 the case of the savage, is equally sound, though of far more 
 difficult application, in the case of the civilized man. That 
 alone can be declared to be his which is his, and that alone is 
 his which he has Trmde, and continues to make, his. Law deals 
 with the actual, not the hypothetical. It has nothing to do 
 with " may-be's " or " might-have-been's ; " and as law can 
 neither increase nor diminish the faculties which God has 
 given to the individual man, or which he has developed, so 
 neither can it assert or vindicate for him rights which are in 
 excess of these faculties, and which he cannot exercise. To 
 create rights is as impossible as to create the individual in 
 whom they inhere, to add a cubit to his stature, or to raise 
 
 1 Transactions of the Royal Society of Edinburgh, vol. xxiv. 1867 : "On the 
 application of the Principle of relative or proportional Equality to International 
 Organization." Revue de Droit International, 1871, No. I.: "Proposition d'nn 
 Congres international, base sur le principe de facto ; " and 1877, No. II. : " Le 
 Probleme final du Droit International. " 
 
 3 Ante, p. 215 et seq. 
 
262 OF THE LAWS OF NATURE. 
 
 him from the dead ; and to declare rights in excess of his 
 faculties is simply to declare what is not. But the powers 
 and faculties both of individuals and communities increase as 
 civilization advances, or rather, civilization consists in the in- 
 crease which takes place in these powers and faculties by 
 means of their exercise. A civilized community, or a culti- 
 vated man, is thus in a condition to use and enjoy objects, 
 which in the hands of undeveloped communities, or indi- 
 viduals, are mere useless tools. The powers of action and 
 capacities of enjoyment and suffering of the latter are mainly 
 physical ; whereas those of the former, without ceasing to be 
 physical, are in a still greater degree spiritual, arising from 
 the intellect, the imagination, and the taste. These additional 
 powers and capacities are, in reality, new elements of life, and 
 they become additional sources of rights over external objects, 
 which it is the function of legislation to ascertain, to declare, 
 to vindicate. Within the same community, the rights of those 
 who are more or less gifted by nature and developed by edu- 
 cation, stand in precisely the same relation to each other, in 
 kind, as the rights of the superior and inferior, or of the civil- 
 ized and savage races of mankind. Even if the same means 
 of culture could be placed within the reach of all, men's 
 powers of availing themselves of it differ so widely, that, 
 relatively at least, the barbarian, like " the poor," we shall 
 " have with us always." It must not be forgotten, however, 
 that the opportunity of energizing rationally depends, prox- 
 imately, not on the possession of wealth, but of leisure (o-x°H) ; 
 and that if the possession of means in proportion to powers 
 gives leisure, the possession of means in excess of powers 
 
QF THE LAWS OF NATURE. 263 
 
 takes leisure away. A millionaire, unless his position or 
 character he very exceptional, is a fidvavo-os in the true Aris- 
 totelian sense, almost as inevitably as a pauper. 1 
 
 This, then, being so, whenever the external means and ap- 
 pliances of energizing in accordance with nature, in the case 
 of individuals, of classes, or of communities, are at variance 
 with their powers and capacities of so energizing, they are 
 wronged, and legislative action is called for to bring right 
 into conformity -with fact, and positive into harmony with 
 natural law. And to the extent to which the facts can be 
 measured, the rights may be defined. The special rights 
 being dependent on the special — i.e., the local and temporal 
 facts — and variable with them, can never, of course, find ex- 
 pression in any general or permanent formula. But when the 
 general rights of humanity, of which the de facto principle is 
 the expression, are brought in contact, not with the local and 
 temporal, but with the general and permanent facts of human- 
 ity, the following general principles stand out for the guidance 
 of legislation. 
 
 (1.) All men being equally men, and as such capable of 
 energizing humanly — i.e., of using and enjoying the means of 
 human existence — are equally entitled to use and enjoy them. 
 
 But the means of existing -humanly, we have seen, 2 in- 
 clude the means of developing humanly. This principle 
 consequently brings compulsory taxation for the support and 
 education of the poor within the sphere of justice, and to 
 this extent limits the exclusive rights of property. 
 
 (2.) All men not being equal men, are not capable of ener- 
 1 Polit. , vii. cxiii. s Ante, p. 222. 
 
264 OF THE LAWS OF NATURE. 
 
 gizing equally — i.e., of using and enjoying the means of human 
 existence to the same extent ; all men, consequently, are not 
 entitled to the same means of energizing, and a legislative 
 enactment which should attempt to bring about an equal dis- 
 tribution of means -would sin against nature by wasting her 
 gifts in two directions. 
 
 (a) It would deprive those whose powers were above the 
 average of humanity of means which they were capable of 
 using for the common benefit, and would thus cause a waste 
 of power. 
 
 (6) It would confer on those whose powers were below the 
 average of humanity means which they were incapable of 
 using, and would cause a waste of means. 
 
 Natural law, then, which is the ideal of economy as well as 
 of justice, demands that a proportionate relation shall be main- 
 tained between means and powers. 
 
 (3.) No man being more than a man, and man's powers 
 both of action and enjoyment, even when developed to the 
 utmost, being confined within very narrow limits, his right to 
 the means of energizing are necessarily limited both in extent 
 and in duration. 
 
 There can, I think, be no question that this latter principle 
 warrants legislative interposition to prevent the indefinite 
 accumulation of property, and more especially landed prop- 
 erty, in the hands of single individuals. This may be effected 
 in various ways, e.g. — 
 
 1st, By enforcing the partition, though not, as a rule, the 
 equal partition, of property amongst the children of the family. 
 The de facto principle by no means forbids either a law of 
 
OF THE LAWS OF NATUEE. 265 
 
 primogeniture, or the legal preference of males to females ; 
 but it brings both within the scope of the principle of pre- 
 serving the proportion between rights and powers. "We can- 
 not accumulate the whole powers of a family in a single son, 
 or merge the powers of women in the powers of men; so 
 neither can we accumulate or merge their rights. But as the 
 presumption of fact is in favour of the powers of the eldest 
 son exceeding those of his younger brothers at the period of 
 the father's death, and of those of the brothers exceeding 
 those of their sisters, it is in accordance with the de facto 
 principle that the law of intestate succession, at all events, 
 which must proceed on such assumptions, should prefer them. 
 The extent of the preference is a question of fact for which 
 natural law offers, of course, no solution ; and its silence seems 
 to point unmistakably to the admission of some measure of 
 paternal discretion. That, whether exercised by the parent or 
 the state, this preference ought to be greater in rude and war- 
 like than in civilized and peaceful times is obvious ; but rest- 
 ing, as it does to some extent, on permanent facts of age and 
 sex, it ought never to be wholly abolished by positive law. 
 
 2d, In the absence of children, the creation of unlimited legal 
 rights may be obviated by a compulsory distribution amongst 
 collaterals, or by the adoption of the Crown, or the public, as 
 joint heir with any individual favoured by the deceased, as is 
 already partially done by our graduated scale of legacy-duties. 
 
 The practical difficulties which stand in the way of even an 
 approximate estimate of the amount of means which may be 
 really possessed and employed by a single individual, for the 
 purposes of human life, are so great as in general to have dis- 
 
266 OF THE LAWS OF XATUKE. 
 
 couraged modern legislators from attempting to realize a prin- 
 ciple, an inconsiderate application of -which would lead to many 
 of the evils -which in former times attended those sumptuary 
 laws, the ohject of which was to prevent waste in the direc- 
 tion not of accumulation, hut of expenditure. If we reflect, 
 however, on the marvellous rapidity with which wealth accu- 
 mulates after it has passed the hounds of possible enjoyment, 
 and the tendency which it has to become a burden and a 
 snare to its nominal possessor, and a source of corruption to 
 the society which it ought to fertilize, we shall see the advan- 
 tage which might arise from the embodiment in actual legis- 
 lation of the principle of the subjective limitation of rights. 1 
 That legislation from the subjective side, which should define 
 the rights of the possessor, would be infinitely less dangerous 
 than legislation from the objective side, which should declare 
 the apparent rights or interests of others, is plain enough. 
 Absolute spoliation could scarcely occur. Still the task of 
 framing such an enactment is too delicate to render it 
 probable that it will ever be satisfactorily performed. The 
 tendency of a democratic legislature unquestionably would 
 be to take cognizance all but exclusively of mere physical 
 powers, and thus to bring about an equalization of wealth 
 which would deprive the spiritual life, first of individuals, 
 and then of the community, of all means of support. 2 No 
 
 1 Aristotle was quite familiar with the notion of wealth being limited from the 
 subjective side. He points out that aK-qBu/bs 7rAoSros is that only which contrib- 
 utes to the completeness of human life (ayaBty C<ni)v). — Polit., L iii. i. 15. 
 
 2 The almost total indifference of the legislature of this country to the interests 
 of the higher educational institutions, which we owe to our forefathers, is already 
 au indication of this tendency. 
 
OF THE LAWS OF NATUEE. 267 
 
 one is .more sensible than I am of the danger of " society 
 becoming top-heavy with unbounded wealth at the top, and 
 discontent, poverty, and comparative barbarism at the bot- 
 tom." 1 But I shrink from most of the remedies which are 
 proposed for what I acknowledge to be an evil. Like so 
 many principles of natural law, the principle which limits the 
 accumulation of means to physical and spiritual powers of 
 enjoyment, though it may he enforced, is one which will be 
 far more easily and safely realized by men in their individual 
 and domestic, than in their citizen capacity. In this sense the 
 task is one which is almost wholly in the hands of the class 
 whose ultimate interests call manifestly for its performance ; 
 and private action, even at the sacrifice of a few cherished 
 traditions, ought not therefore to be hopeless. No substantial 
 loss of physical enjoyment or social consideration would, I 
 believe, be demanded by a voluntary redistribution of wealth 
 which would remove all force from the argument that a waste 
 of means resulted from the accumulation of property ; whilst 
 by increasing the numbers of the cultivated classes, a really 
 trustworthy barrier would be erected against those barbarian 
 influences from within, — that " republic from below," as the 
 Spaniards call it, — which at the present time endanger the 
 upward progress of humanity far more seriously than any 
 barbarian aggression from without, and against which the 
 weapons of mere physical warfare offer no protection whatever. 
 I fully admit the difficulties which cling to all questions of 
 degree ; but still, if we take a few extreme instances, we shall 
 see that oven these difficulties, like other things, have their 
 
 1 Review in Glasgow Herald, July 25, 1871. 
 
268 OF THE LAWS OF NATUKE. 
 
 limits. There are bounds beyond which they cease altogether, 
 and these bounds may be rendered more definite by careful 
 study of the circumstances in which we seek to impose them. 
 
 When Mr Hole, in his beautiful Booh about Roses} says : 
 " Trop n'est pas assez ; and if I had Nottinghamshire full of 
 roses, I should desire Derbyshire for a budding-ground," — we 
 can see that he is speaking as a rose-maniac fully conscious of 
 his infirmity, and we are as little led astray by him as by 
 Beau Brummell when he said that, " with strict economy, a 
 young gentleman might dress himself for a thousand a-year." 
 But such illustrations prove only that there are limits to what 
 may be rationally desired, or sanely expended, by reducing the 
 opposite proposition ad absurdum. Let us try whether we 
 cannot come somewhat nearer to the point at which use 
 ceases and waste begins, and thus turn the utilitarian prin- 
 ciple to its true use — that, namely, of guiding us to the 
 means by which natural law is realized. 
 
 A man, for example, in addition to providing for the require- 
 ments of his position, as a man and a citizen, may purchase an 
 estate of moderate dimensions, for the gratification of his taste 
 and the indulgence of his pleasure. If no vested rights oppose 
 him, he may even clear it of its inhabitants, and turn it into 
 a park or a deer-forest, because these are forms in which he, 
 or his friends, or his heirs, may be presumed to be capable of 
 really enjoying it and exercising the rights of property over it. 
 But iTimrod himself would have no claim to depopulate even 
 so small a country as Scotland or Switzerland for sporting pur- 
 poses ; and if a modern millionaire were to absorb a single 
 
 1 P. 62. 
 
OF THE LAWS OF NATURE. 269 
 
 county or a single canton for his pleasure, or indeed under 
 any plea of occupancy, and attempt to give it permanently 
 the character of a single possession, he would certainly evoke 
 feelings, and probably provoke measures of a kind which would 
 be very prejudicial to the cultivated classes, and ultimately to 
 civilization. When we pass limits which, though they cannot 
 be absolutely, may be relatively denned, the earth can be no 
 more appropriated than the air or the sea. It then becomes 
 a res publica, and any attempt to establish rights of property 
 over it will be scorned as a failure, and resented as an in- 
 justice. The plea that a valid title has been given, or that a 
 money value has been paid, will go for nothing, because that 
 cannot be conveyed which cannot be held, and the commodity 
 is one the value of which can be measured only by incommut- 
 able personal services of ownership, which are impossible. 
 The plea of prescription will be equally unavailing, because 
 prescription is essentially an allegation of the continuance of 
 such services ; and that cannot be continued which never 
 began. The imperfection of our knowledge may entitle us 
 after a time to presume the existence of what may have been, 
 but there can be no presumption in favour of what certainly 
 was not. We may presume that a man was stronger or 
 swifter than we can prove him to have been — nay, than we 
 can prove any man to have been ; but we cannot presume that 
 he was stronger than a horse, or swifter than a bird. We 
 may presume that he is alive 100 years after his birth, but 
 not that he is alive 200 years after his birth. 
 
 The de facto principle thus assigns temporal, just as it 
 assigns local, limits to rights of property. After the lapse of 
 
270 OF THE LAWS OF NATURE. 
 
 a few centuries, or even generations, permanency, when applied 
 to human rights, becomes almost as unmeaning a word as 
 infinitude. "We transmit to our descendants, or to those 
 whom we adopt in their stead, the conditions of physical and 
 spiritual life and development on the same title on which we 
 transmit life itself. 1 But our descendants' will be lost in the 
 crowd of humanity that is to come after us, as our ancestors 
 have been lost in the crowd of humanity that went before us. 
 The longest posterity, like the longest pedigree, will have its 
 limits, and when these limits are reached, the basis of fact, 
 on which the right of transmission rested, will be lost. The 
 right, consequently, must be held to be non-existent, or rather 
 to be transmuted into some new right in harmony with the 
 new fact which has been generated. In declaring the exist- 
 ence of this new relation between right and fact, there is 
 manifestly no interference whatever with the original right of 
 property, because that right, in its original form, has already 
 perished. Here, as in the former case of the limitation of rights 
 in point of extent, questions of fact of the most delicate kind 
 remain for the solution of the practical legislator ; but the 
 abstract formula of legislation plainly is this — 
 
 So long as, and to the full extent to which, the facts on which 
 rights of property formerly rested remain unchanged, these rights 
 are inviolable ; but no longer, and no farther. 
 
 The right which A transferred to B not being an absolute 
 and unlimited, but a relative, conditional, and limited right, 
 B's right will cease, or change its character, when the con- 
 dition fails, or the limit is reached. 
 
 1 Ante, p. 215 et scq. 
 
OF THE LAWS OF NATURE. 271 
 
 Of temporal limitations of rights arising out of the de facto 
 principle, we have numerous examples in positive legislation. 
 
 When rights of property are limited or resumed, as is said, 
 for public purposes — e.g., for the construction of a railway — the 
 true theory of the transaction is, not that the individual has 
 been deprived by law of a portion of what belonged to him, 
 but that his right was all along limited or conditioned by the 
 necessity of enjoying it as a member of the community, and 
 that it can be so enjoyed now only under the additional 
 burden, or new condition, which the law declares. From the 
 first it held in gremio, so to speak, a contingent subjective 
 limitation which has now emerged, and which has its counter- 
 part in an objective right on the part of the community to 
 enforce a sale for public purposes. 
 
 Precisely on the same principle, charitable and educational 
 endowments are modified by the Legislature. When they 
 cease to fulfil their object, the rights which centre in them 
 have no longer the basis of fact on which they originally 
 rested. An endowment for the benefit of slaves, or for the 
 support of an Established Church, becomes inoperative on the 
 abolition of slavery or the disestablishment of the Church. 
 But in such cases the Legislature is by no means entitled 
 simply to confiscate the property and apply it to the ordinary 
 uses of the State. It must look not to the immediate, but to 
 the ultimate object which the testator or benefactor had in 
 view, and this it will effect by ascertaining the new facts and 
 the consequent rights which have arisen, and vindicating the 
 latter by new arrangements. The Protestant Church of Ire- 
 land was established, and many bequests were made to it for 
 
272 OF THE LAWS OF NATURE. 
 
 objects which were not found to be attainable by its means. 
 These bequests were thus in the position of legacies, with 
 conditions attached to them which had proved to be impos- 
 sible. That fact being ascertained — if it was ascertained — 
 and Parliament having declared the Church itself to have 
 ceased to exist as an Establishment — that being one of the 
 conditions of its existence, which was henceforth inconsis- 
 tent with the attainment of its ultimate object — future rights 
 which would have continued to spring from its existence as 
 an Establishment were declared to be no longer emergent in 
 their original forms. The rights of present incumbents, on 
 the other hand, were sustained, on the ground that the con- 
 ditions on which they accepted their offices remained unal- 
 tered. The only respect in which the recent disestablish- 
 ment of the Protestant Church of Ireland differed from the 
 dismemberment of the Eoman Catholic Church at the 
 Eeformation was, that the establishment of the Irish Church 
 was held to have been an error, or an act of injustice from 
 the first, — the facts never having warranted the rights which 
 had been legislatively affirmed, and the institution having 
 rested on enacted, and not on natural positive law. 1 But 
 
 1 Our Edinburgh hospitals, in this respect, were in the same position as the 
 Established Church of Ireland. They never fulfilled the professed objects of 
 their founders — that, viz., of bringing up the children of poor parents to be 
 thrifty, industrious, and self-helping citizens. Had their founders anticipated 
 that they would be nurseries of future, as well as asylums for present paupers, it 
 is to be presumed they would not have founded them. To make arrangements 
 then by which their bequests could otherwise benefit the poor was clearly to carry 
 out their wills. The case would be different if it were proposed to disestablish the 
 Church of England, or the Presbyterian Church of Scotland. The plea would 
 then be that of " tempora mutantur, nos et (those whom they once benefited) 
 mutamur in illis." 
 
OF THE LAWS OF NATURE. 273 
 
 the effect of the two measures on private bequests was pre- 
 cisely similar. The Eeformation rendered half the founders' 
 wills in Oxford obsolete, and Christianity must have swept 
 away those of the pious donors of heathendom still more 
 extensively. Eights, the validity of which had been recog- 
 nized for ages, were repudiated on the ground, not that they 
 were bad originally, but that they would have been bad had 
 the circumstances of society been what they had become. 
 The same effect would have been followed had the donors or 
 the founders lived ; for no endowment by a living man would 
 now entitle him to have masses said for his soul by the 
 Fellows of an Oxford college, or a temple of Venus built 
 alongside of a Free kirk. In saying this, I am far from seek- . 
 ing to justify the spoliation of what Mr Coleridge has called 
 the " nationality," and the application of this common pro- 
 perty to the material, in place of the spiritual uses of the com- 
 munity, which took place at the Eeformation. 1 That was a 
 diversion of it not from its immediate but its ultimate object, 
 that object remaining as valuable and as attainable as ever, 
 though not precisely by the same means. Men had not ceased 
 to have souls, nor had their higher secular interests ceased to 
 demand aid which they can never receive from popular sym- 
 pathy. I am quite of Coleridge's opinion that the civilization 
 of Europe received a check at the Eeformation from which it 
 has never recovered. But when we come to consider, not the 
 end to be attained, or the means of attaining it as a whole, 
 but the special application of the means and the rights thence 
 
 1 I hope it is not being repeated in Ireland now, and will not be repeated in 
 Belgium, as there is little doubt that it has been in France and Italy and Spain. 
 
 S 
 
274 OF THE LAWS OF NATURE. 
 
 arising to individuals or classes, the case comes to be anal- 
 ogous to that in which a change has taken place in the value 
 of money. The powers on which the rights were founded 
 were then measured by the money which the testator willed 
 should be paid for them. But if the money which was then 
 a fair price for them no longer measures their value, — if it 
 has risen, to force the buyer to give it, or, if -it has fallen, to 
 force the present possessors of the commodities, supposing 
 them to exist, to accept it, would not be to vindicate the rights 
 of the buyer, but to invade those of the seller, or vice versd. 
 This remark suggests another illustration of the de facto basis, 
 and consequently of the declaratory character of law. 
 
 (d) Law cannot change the price of any commodity. 
 
 Political economy first became a science when it was 
 acknowledged to be a statement, not of the ingenious devices 
 of men, but of the laws by which nature, independently of 
 human contrivance, regulates the relations of trade, or, in other 
 words, of the acquisition and transference of wealth ; and it is 
 to the frankness with which political economists have accepted, 
 and the fidelity with which they have acted on the declaratory 
 or de facto principle, to which all true scientific inquirers owe 
 allegiance, that we are indebted for the superiority of the 
 departments of our practical jurisprudence which fall within 
 its sphere, over those by which the relations of the citizen, 
 and even the status of the individual are governed. "Whilst 
 we have been "making" political and social laws, we have 
 been contented to discover the laws of trade, and the conse- 
 quence has been that, whereas in the one direction the neces- 
 sity of unmaking what experience had repudiated has absorbed 
 
OF THE LAWS OP NATURE. 275 
 
 more than half our energies, and there is still the widest 
 divergence between the laws of different communities even 
 where their circumstances are the same, in the other a system 
 has been developed which has met with so wide an accept- 
 ance as to have brought mankind almost to the condition of 
 a single family. But mercantile legislation had not always 
 the guidance of this monitor ; and in former times nothing 
 was more common than to fix the prices of commodities, 
 including labour, by law. The price of a commodity is the 
 right to the commodity valued in money, or, in other words, 
 the pecuniary measure of the right. Now it is plain that a 
 law which declares the right of the possessor to be measured 
 by the price he can get for it, or, in other words, gives him an 
 action for whatever he can establish to be the value of his 
 commodity, gives him his due (his suum), and determines his 
 natural relation to others with reference to that object. But 
 if a nominal price be set on it, or a right in it be " consti- 
 tuted by law," different from its market value, a wrong is 
 done, either to the possessor and possible seller of the com- 
 modity, or to the rest of the community. If the price assigned 
 to it be below its market value, the possessor is robbed of the 
 difference ; if it be above the market value, a monopoly to the 
 extent of the difference is created in his favour. But in 
 neither case is the real value *of the commodity changed, or 
 the right of its possessor, of which its value is the measure, 
 affected by the arbitrary price which has been fixed by the 
 law. Such a law, it is true, may be enforced, or what is 
 far more easy, the parties defrauded by it may be punished 
 for its evasion. But it can no more become a law, in the 
 
276 OF THE" LAWS OF NATURE. 
 
 genuine sense in which alone positive laws find their warrant 
 in nature, and take their place in the science of jurisprudence, 
 than the arbitrary price can become the real price, in accord- 
 ance with the science of political economy. To put it on a 
 footing of equality with a law which declares that the seller 
 shall have the real value of his commodity, on the ground that 
 it has been enacted by a competent authority from some 
 fancied motive of expediency, is to separate law from justice 
 altogether, and to fall back again on the old fallacy of the vo/wo 
 
 KdXov VO/JM KO.KOV. 
 
 All legislative errors are not equally absurd, and a law 
 fixing a price for a commodity at variance with its real value, 
 or declaring all men to be equal, at variance with the facts 
 both of nature and society, is not so manifestly ridiculous as 
 a law declaring that sweet shall be bitter, 1 that black shall be 
 white. But all laws which set the facts of nature and the 
 arrangements of Providence, with their legitimate consequences, 
 at defiance, are equally at variance with the principles of the 
 science of jurisprudence, and for this simple reason that the 
 object of that science is not to redistribute God's gifts accord- 
 ing to any principle, either just or unjust, but to discover aud 
 to recognize the distribution which He has made. What I 
 have here said, of course, does not invalidate the right of the 
 State, in the public interest, to determine the real value of a 
 commodity — e.g., of land required for public purposes, and to 
 fix the price which shall be paid for it to its possessor, as the 
 measure of that value. Moreover, inasmuch as in an or- 
 ganized community the opinion of the individual must give 
 1 The eSficp y\vicb v6fi(p iriKpSv of Democritus. 
 
RELATION BETWEEN LEGISLATION AND JURISDICTION. 277 
 
 way to the opinion of the State, and the will of the individual 
 must give way to the will of the State, the real value of a 
 commodity is that which the State, through its constituted 
 organ, shall ascertain and declare to be the market value for 
 the time being. Any personal sacrifice of feeling which the 
 transaction may impose on the individual, is merely the price 
 which he pays for the privileges of citizenship. 
 
 CHAPTEE X. 
 
 OF THE RELATION BETWEEN LEGISLATION AND JURISDICTION. 
 
 The function of the judge, as such, is limited to the inter- 
 pretation and application of written or of consuetudinary law. 
 
 Though I have been careful and anxious to bring out the 
 importance of the distinction which, when seen in the light 
 of the science of jurisprudence, or with a view to legislation, 
 exists between a positive law and a mere arbitrary enactment, 
 I hope no one will impute to me any such opinion as that the 
 citizen is entitled to disobey, or that the judge is emancipated 
 from enforcing an enactment, by what may appear to either of 
 them to be its imperfection, or even its absurdity. The fact 
 that it has been enacted, or is recognized by their sovereign, 
 whether that sovereign be an individual or a community, 
 renders it a positive law to the one qud citizen, and the other 
 qud judge, because the citizen existence of the one, and the 
 judicial existence of the other, rests on the hypothesis that 
 their sovereign is a true interpreter of the law of nature in 
 
278 OF THE RELATION BETWEEN 
 
 the circumstances of that community. It is this hypothesis 
 which gives validity to the jurisdiction of the judge on the 
 one hand, and on the other places every suitor who asks his 
 judgment virtually in the position of the people of Israel when 
 they came to Moses " to inquire of God." x The law of the 
 land is the major premiss, so to speak, of every judgment which 
 is pronounced ; and the judge would not only act illegally but 
 illogically, if, in defiance of it, he either exercised his private 
 judgment, or arrogated to himself the functions of the Legislature. 
 But whilst his duty, as the official representative of the 
 sovereign will, is clear beyond all dispute, it is needless to 
 deny that cases may, and do occasionally occur, not only to 
 the judge, but to the citizen, in which the duty of the 
 individual gives rise to most painful hesitation. Ought the 
 judge to administer, or the citizen to obey, a positive law 
 which the one or the other believes to be at variance with 
 the law of nature and the will of God ? or ought not rather 
 each of them to relinquish by anticipation, the one the office, 
 and the other the allegiance, which he knows may impose on 
 him such a duty. To all generous minds the affirmative 
 answer will at once suggest itself. Cleaxly, it will be said, no 
 man ought to obey, far less to administer, a law which he 
 believes to be wrong. But as a warning against hasty con- 
 clusions, even in the right direction, just consider what would 
 be the consequences of such a rule if it were rigorously applied 
 to the relations of any mere man, however good and wise, and 
 any actual, or, I fear, any possible community of human beings. 
 Human judgments, being fallible, are diverse, not accidentally 
 
 1 Exod. xviii. 15. 
 
LEGISLATION AND JURISDICTION. 279 
 
 but necessarily. That the citizen or judge should sometimes, 
 as an individual, dissent from the ruling voice of his country- 
 men, is therefore inevitable ; and if on the occurrence of every 
 such difference of opinion, however trifling, he thought it 
 necessary for conscience' sake that he should vindicate his 
 own views, or even decline to accept theirs, the woolsack 
 would be converted into a bed of thorns, and human society 
 would be impossible. We should have but one social pheno- 
 menon to contemplate, and that a phenomenon with which 
 we -in Scotland are but too well acquainted, — a perpetual 
 hiving -off of minorities — one never - ending " Disruption." 
 Now a "Disruption," be it remembered, is in principle a 
 revolution, and the right of revolution is a right which can 
 scarcely emerge in a constitutional State, or be asserted by a 
 Christian citizen. It is his duty to turn his other cheek to 
 the law that has smitten him, till he can procure its con- 
 stitutional repeal. He who cannot accept martyrdom in that 
 form, is at best a " martyr by mistake." He may throw away 
 his worldly comfort and wellbeing, but he can scarcely claim 
 to have done it " for conscience' sake." It is clearly of the 
 nature of every community, whether lay or ecclesiastical, that 
 it should set certain limits to the right of private judgment of 
 its members ; nor will these limits be so difficult to assign, in 
 the particular instance, as may at first appear, if, on the one 
 side and the other, it be kept in mind that their object is not 
 the restriction, but the greatest possible extension of the 
 borders of liberty to all. To pursue this subject further 
 would bring us on ground which we must tread hereafter, 1 
 1 Infra, Book iii. cap. iii. 
 
280 RELATION BETWEEN LEGISLATION AND JURISDICTION. 
 
 and for the present I shall content myself with referring to 
 the remarks of Dr Lushington, Dean of the Arches, in the 
 famous case of Williams v. Bishop of Salisbury. 1 
 
 The nearest approach to legislation which is permitted to 
 the judge consists in the dispensation of what is called 
 "equity," by which, in its original though scarcely in its later 
 English technical sense, he is understood to modify the letter 
 of the law to the extent of enabling him to apply its spirit — 
 i.e., to administer justice in circumstances which were unfore- 
 seen when it was enacted. We must guard, however, against 
 the error of supposing that in dispensing equity the judge 
 dispenses justice of a different kind from that on which law 
 reposes. There is but one kind of justice ; and legal justice 
 and equity, as we shall see hereafter, 2 are identical. Some- 
 thing different from law, in the sense of common or statutory 
 law, he, no doubt, does dispense. But the whole object of 
 his departing from law is to enable him to adhere to justice, 
 and this not justice in any special sense, not justice of a 
 " higher and finer kind," 3 as Aristotle, or Eudemus, some- 
 what misleadingly tells us, but the ordinary justice of the 
 case, which the law as it stands has failed to embrace. He 
 extemporizes, so to speak, an exceptional law (repentinum 
 edictum) to meet the exigencies of exceptional circumstances 
 (jprout res incidit). In the possibility of the occurrence of 
 cases calling for so irregular a use of the judicial office, or 
 resulting in a legitimate conflict between enacted law and 
 the most recent discoveries of' physical science or theological 
 
 1 Morris, P. C. Cases, 375. 2 Cap. xi. xii. 
 
 3 Grant, Arist., vol. v. c. 10, note p. 139. 
 
PERFECT AND IMPERFECT OBLIGATIONS. 281 
 
 learning and thought, we behold the extreme importance of 
 such a constant revision of our statute-books, lay and ecclesi- 
 astical, as shall at all times preserve the harmony between 
 their provisions and the prevailing beliefs of the existing gen- 
 eration. It is very far, however, from indicating that the 
 binding force of erroneous law, whilst unrepealed, arises, as 
 Mr Austin supposed, from some other ultimate source than 
 natural law. Up to the moment that an enacted law is 
 repealed, it enjoys the presumption that it is not erroneous, 
 — in other words, it continues to be the interpretation of the 
 law of nature which the community has authorized ; and it is 
 surprising that Mr Austin should not have seen that it was to 
 this still unbroken link which binds it to the source of all 
 law, the fountain of all legislation, that its authority is due. 1 
 
 CHAPTEE XL 
 
 OF THE HISTORY OF THE DISTINCTION BETWEEN PERFECT AND 
 IMPERFECT OBLIGATIONS ; AND ITS EFFECT IN GIVING RISE 
 TO THE NEGATIVE SCHOOL OF JURISPRUDENCE. 
 
 I do not propose here to enter into any analysis of the 
 idea of duty beyond what I formerly said of it, that it is a 
 
 1 Austin, vol. i. p. 234. This is only one of many objections which I might 
 urge to a book and to a system, which, more than any other, have received ac- 
 ceptance in England. But in the case of one whose character I esteem so highly 
 as I do Mr Austin's, I gladly avoid polemics, and in all cases, indeed, I prefer 
 the constructive to the destructive process. Unless I can put another system 
 
282 OF THE HISTORY OF THE DISTINCTION 
 
 dictum of consciousness which results inevitably from the re- 
 cognition of an objective existence, similar to that subjective 
 existence in which we have already recognized rights. The 
 question with which we are here concerned is simply whether 
 there be two separate kinds of duty, one of which having cor- 
 responding rights, admits of being enforced by external means ; 
 and the other of which, having no corresponding rights, does 
 not admit of being so enforced. 
 
 (a) Bights and duties being throughout reciprocal and co- 
 extensive, there is no distinction, in principle — i.e., in nature 
 — between one class of obligations and another. 
 
 Our previous inquiries 1 led us to the result that the duty 
 of affording mutual aid infers, in every case, a corresponding 
 right to claim such aid, and that the rights and duties which 
 bind human beings to each other are throughout reciprocal 
 and co-extensive. 
 
 It will readily be perceived that this doctrine is inconsis- 
 tent with the distinction by which rights on the one hand, 
 and duties and obligations on the other, have been divided 
 into two classes, called perfect and imperfect, of which the 
 first are said to possess, and the second to want, those in- 
 herent qualities which warrant the use of force to secure 
 their fulfilment. Let us inquire into the character of this 
 distinction, and of the arguments by which it has been 
 maintained. 
 
 in its stead, I am not entitled to pull down Mr Austin's. If I succeed in doing so, 
 it will give way of its own accord, and I shall be spared the pain of saying words 
 that might seem disrespectful, and the inconvenience of crowding my pages 
 with quotations which I believe to have no absolute value. 
 1 Ante, p. 204 et seq. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 283 
 
 The distinction, as we shall see immediately, has been 
 variously stated by different schools of jurists and moralists, 
 but under all the modifications of it which do not amount to 
 entire repudiation, it means essentially what I have stated ; 
 and of all the stumbling-blocks with which pedantry has en- 
 cumbered our science, I think it is that which has proved 
 most fatal to its progress. 
 
 It is true that there is a meaning which is sometimes 
 attached to this distinction by practical lawyers, to which, 
 as it has no scientific significance, there can be no theoretical 
 objection, except this, that not being the meaning which was 
 assigned to it by any of the theoretical writers from whom 
 the practitioners ignorantly adopted it, its use is perplexing, 
 and is only a confused and roundabout way of getting at a 
 distinction which is perfectly plain, if simple men would be 
 contented with simple words. In the sense to which I refer, 
 it merely asserts that there is one class of obligations which, 
 at a given time and place, would, and another which, at the 
 same time and place, would not, and ought not, to be accepted 
 as good grounds of action in a court of law, without attempt- 
 ing to explain the reasons which led to the formation of the 
 two classes. So stated, it amounts to nothing more than the 
 distinction between positive and natural law, and in that 
 sense, as I said, my only objection to it is that it is needless. 
 But I object to it on far higher grounds when I hear it in the 
 mouths of theoretical jurists, when I find it imported into 
 natural law, and when obligations are ranged in virtue of it 
 into two classes, differing not in degree but in kind, and that 
 so essentially, as that one of them falls permanently without, 
 
284 OF THE HISTORY OF THE DISTINCTION 
 
 and another permanently within, an imaginary line which is 
 supposed to mark off the sphere of ethics from that of juris- 
 prudence. To say that some obligations are more important, 
 or more sacred than others, would . be merely to say that all 
 the transactions of life are not of equal magnitude — a proposi- 
 tion too obvious to be supported by argument, even by Puf- 
 fendorf. 1 Nor would it be less of a commonplace to assert 
 that some of them, on the ground of their greater importance, 
 are more frequently enforced, or because they have reference 
 to external objects, may be enforced more readily than others. 
 But to say that one half of them rests on a half dictum of 
 conscience, and the other half on a whole dictum of con- 
 science, that though the observance of all of them be right, 
 there is one half of which the violation is not wrong, and 
 that this half of them falls beyond the domain of justice — 
 these are propositions which seem to me not only unsound in 
 theory, but fraught with practical dangers of a more than 
 ordinarily serious kind. It was of a system in which this 
 distinction was carried out to its legitimate consequence of 
 a complete separation between law and ethics, that Hugo 
 
 1 But even in this respect obligations continually change places. In general 
 it is a more sacred obligation that I should pay my debts than that I should go 
 out to dinner. But suppose the debt is an omnibus-fare, and that the dinner is 
 a feast of reconciliation. Quid juris ? When Professor Calderwood says that 
 there is an ethical use of the distinction, to which apparently he does not object, 
 "that some duties are always binding, others only in certain circumstances," I 
 dissent on the ground that no duties can be exercised in vacuo, and consequently 
 that they have no existence till some circumstances arise. Duty is essentially 
 an objective conception, and could not exist in u. solitary subject. The only 
 conceivable solitary subject is the Creator, and to Him we have seen that the 
 idea of duty does not apply even after creation, otherwise than as identical with 
 His free will. 
 
BETWEEK PERFECT AND IMPERFECT OBLIGATIONS. 285 
 
 applied the epithet of a cut-throat code 1 (eine Todtschlag- 
 moral), and I shall point out to you instances of its effects 
 by-and-by, which will convince you that the expression did 
 not go beyond the occasion. Yet so far is this error from 
 being an exploded and innocuous one, that, at a period com- 
 paratively recent, it formed, even in Germany, the basis of the 
 prevailing doctrines of scientific jurisprudence, and the only 
 ones which ever largely influenced the thought of this country; 
 whilst, with little knowledge of its history, and less percep- 
 tion of its consequences, it is still adopted and retailed by 
 our latest writers, and not unfrequently acted on by our 
 statesmen and legislators. It is in virtue of it that a recent 
 writer of great ability 2 has asserted that, in passing from the 
 doctrine of recognition to that of intervention, we betake our- 
 selves to a " high and summary procedure, which may some- 
 times snatch a remedy beyond the reach of law," of which 
 " its essence is its illegality and its justification its success ; " 
 and it is in obedience to it that, shrinking from " the fluctuat- 
 ing and trackless depths of policy," in which this writer finds 
 no guiding principle at all, our newspapers have advocated 
 and our Government has adopted the cowardly and heartless 
 doctrine that we may blamelessly withhold our aid from 
 nations struggling with oppression, even on the assumption 
 that it is in- our power to afford it without counterbalancing 
 loss, or even danger, to ourselves. 3 
 
 1 Tennemann, p. 361. 
 
 9 Historicus (Sir W. Vernon-Harcourt) on International Law, p. 41. 
 
 3 When these lines were written (1872), the direction in which this false dis- 
 tinction acted on our external policy was generally that of producing an exagger- 
 ated notion of neutrality. Neutrality was regarded as a line of conduct which a 
 
286 OP THE HISTORY OF THE DISTINCTION 
 
 (b) The attempt to distinguish between perfect and imperfect 
 obligations was not unknown to antiquity. 
 
 I cannot agree with Warnkonig, or with his authorities, 
 when he states 1 that neither amongst the Greeks nor Eomans 
 are any indications to be found of the distinction in question, 
 and that it was Thomasius who, in 1705, for the first time 
 divided ethics into two portions — viz., morals and natural law, 
 the first embracing those imperfect duties which cannot con- 
 sistently with justice, and the second those perfect duties 
 which must consistently with justice, be enforced. On the 
 contrary, I believe, that like most theoretical distinctions which 
 admit of many practical applications, and offer many conve- 
 nient compromises, it was early suggested by foregone conclu- 
 sions which it served to justify ; and that thus, in substance 
 at least, it has a place in the history of speculation in every 
 age and country. As regards classical antiquity, at all events, 
 
 State was always morally entitled to adopt, if it chose, whatever the circumstances 
 of the case might be, and the adoption of which was universally to be commended. 
 Now (1880) it acts, with equal force, exactly in the opposite direction — viz., as 
 a defence for intervention confessedly at variance with the ordinary rules of mor- 
 ality. Ptmch, at once the wisest and the wittiest of our periodicals, in his number 
 for January 24, 1880, p. 29, comments, more suo, on an almost incredible specimen 
 of this latter aberration on the part of the Fall Mall Gazette. Many similar, 
 though more guarded utterances, might be quoted from other party organs, and 
 from the Times within the last two years. Now, do people who write such pas- 
 sages really suppose that there are two distinct codes of morality, one of which 
 embraces the golden rule, and the other o£ which does not ; and that the former 
 ought to govern men in their national, and the latter in their international rela- 
 tions ? If so, can they wonder if thieves and swindlers should avail themselves 
 of so convenient a distinction in denning the relations in which they stand to 
 honest men ? The general election, which has just occurred, will probably con- 
 vince them that the people of England, at all events, have no intention of separ- 
 ating either their politics or their patriotism from morality. 
 1 Delineatio, p. 6. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 28'7 
 
 it is not only distinctly traceable in the later stoical dis- 
 tinction between the KaOfjuov and the Kar6p9u>fm} but we find 
 that Socrates regarded it as part of the prevalent teaching of 
 his time, and that it was his strong sense of the evils which 
 resulted from the sophistical habit of subordinating the virtues 
 to each other, and thus withdrawing from them severally the 
 sacred character which could not be refused to them as a whole, 
 that led him to contend so keenly for their unity, and the 
 ultimate identification of each with all, and of all with each. 
 Then look at the middle ages. Asceticism, in so far as it 
 aimed only at self-discipline on the one hand, or at a severer 
 training for the service of God and man on the other, rested 
 alike on objective and subjective conceptions of duty; for 
 every man is bound, in duty to God and his fellow-creatures, 
 as well as to himself, to use the talents that have been com- 
 mitted to him, and he can claim no merit, if, in order to ren- 
 der them available, he has to fortify by external appliances a 
 will which he recognizes to be free. But when ascetic prac- 
 tices came to be regarded as works of supererogation — when 
 it came to be thought that God's favour could be secured by 
 them, just in proportion to the extent to which they tran- 
 scended the bounds of duty, — then, as of old, the virtues came 
 to be referred to separate principles, and an order of them was 
 imagined to which no rights corresponded, and the obligation 
 
 1 Grant's Aristotle, vol. i. p. 262. Zeller's Stoics, p. 271. Sir Alexander 
 Grant translates KaBrjKov, suitable, and /caTcfpSayta, right, — and this seems to be 
 borne out by the passages which Zeller gives. Grant remarks, however, that 
 KaBrjicov came to be translated by the Latin word officium. It is on this ground, 
 probably, that Calderwood (p. 38) has opposed KaBrjuov to Ka\6y. It is rather 
 equal to tca\6v, and is translated by officiv/n only when qfficiitm medium is 
 meant. 
 
288 OF THE HISTORY OP THE DISTINCTION 
 
 to perform which was imperfect. It was on this distinction 
 that a large part of the science of casuistry T rested, which 
 differed from jurisprudence in this, that, whilst jurisprudence 
 dealt with duties which, seen from the opposite point of view, 
 became rights, casuistry was occupied mainly with the apti- 
 tudes, as they were called, or unilateral duties. 2 
 
 Lastly, as regards the earlier masters of our own science 
 in modern Europe : 3 the fact that the distinction is indicated 
 by Suarez, and had found admission into such works as those 
 of Grotius and Puffendorf, is proof enough that, though they 
 had* no thought of pushing it to the negative consequences 
 which it ultimately yielded, the idea of turning it to account 
 as a means of denning the province of jurisprudence was not 
 reserved for Thomasius in 1705, and still less for Mr Philips 
 in 1864 ! 5 
 
 (c) It is generally ascribed to Thomasius. 
 
 Whether justly or not, the distinction in question, when 
 viewed as a doctrine defining the limits of the science of 
 jurisprudence, is generally coupled with the name of Christian 
 Thomasius, almost in the character of a discovery, a circum- 
 stance amongst others which proves, though we hear little of 
 him now, that he was a man of first-rate importance in his 
 
 1 It was in virtue of their admission of the i.Sid<j>opa that the Stoics became the 
 founders of casuistry. — Zeller's Stoics, pp. 218, 281. It is a curious coincidence 
 that Seneca was a Spaniard by birth. 
 
 2 Meander. 
 
 3 The general position taken up by Thomas Aquinas excludes the distinction, 
 see infra, cap. xii. ; but see also the doubtful passage, vol. vi. p. 436. 
 
 4 Gulielmi Grotii, Enchiridion, p. 121, where he no doubt speaks for his great 
 brother, as well as for himself. 
 
 5 Philips on Jurisprudence, Introd. pp. 5-7. Austin has the opposite view, 
 vol. i. p. 20. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 289 
 
 own day, and renders it desirable that I should preface my 
 criticism of his system with some slight account of his per- 
 sonal character and position. Descended from a professorial 
 family in Leipzig, his father was the still more and more 
 justly celebrated Jacob Thomasius, the author of many val- 
 uable works on Philology and the History of Ancient and 
 Scholastic Philosophy. Christian, the son, was born in 1655, 
 and was educated under the eye of his father, who held a 
 chair in the university ; Leibnitz, the son of another professor, 
 who through life expressed the greatest affection and rever- 
 ence for the elder Thomasius„ having been his pupil some 
 years earlier. 1 Being naturally vain, and possessed with a 
 mania for being thought original, Christian Thomasius early 
 pushed himself into notice as a leader of the party of innova- 
 tion, already in the ascendant. Safe in the armour of Bacon 
 and Descartes, he attacked the scholastic philosophy, and 
 attempted to turn Aristotle into ridicule by the poor device 
 of translating selected passages from his writings, word for 
 word, into German. "With more reason, he protested against 
 the use of Latin in the schools, and professed to deliver, in the 
 language of common life, a philosophical system which should 
 be intelligible to common understandings. It affords a curious 
 illustration of the difficulty which attended the application of 
 the modern languages to learned pursuits, that almost every 
 one of Thomasius's graver works was written in Latin. But, 
 whatever justice there may have been in the claims which 
 Thomasius advanced to the character of an original thinker, 
 there can be no doubt that he was a copious writer on all 
 
 1 Leibnitz was born in 1646. 
 T 
 
290 OF THE HISTORY OF THE DISTINCTION 
 
 subjects connected with jurisprudence. So varied were his 
 labours and acquirements, that "Warnkonig goes the length of 
 speaking of him as a modern Antistius Labeo, though, as regarded 
 his opinions, one would have thought that of the duo decora 
 pacis, he bore the stronger resemblance to Capito. In 1687 
 he commenced a monthly journal under the foolish title of 
 Freimuthige, lustige und ernsthafte, jedoch vemunft- und gesetz- 
 mdssige Gedariken oder Mbnatgesprdche uber allerhand, vornehm- 
 lich ether neue Bucher (outspoken, merry, sincere, yet rational and 
 legitimate thoughts, or monthly talk, about all sorts of books, 
 but especially new ones). The opposition which this publica- 
 tion excited, together with his adoption of German in his 
 lectures, rendered him so unacceptable in Leipzig that he 
 went to Berlin, and thence to Halle, under the patronage of 
 the Brandenburg Court. He was honourably distinguished 
 as the opponent of trial for witchcraft and punishment by 
 torture. His character, though tasteless and shallow, was no 
 doubt active and progressive. Of his influence in Germany, 
 the University of Halle, which owes its origin to him, and to 
 which, as its first rector, he stood in a relation similar to that 
 in which Leibnitz stood to Berlin, is a sufficient monument. 
 But in this country it is probable that the title of his work 
 on natural law commended it to notice more than even the 
 fame of its author. It is called Fundamenta juris naturae et 
 gentium ex sensiH communi deducta ; and Christian Thomasius, 
 consequently, is one of the one hundred and six witnesses- 
 whose testimony Sir William Hamilton cites in proof of the 
 universality of the philosophy of common - sense. 1 But 
 
 1 Hamilton's Reid, p. 785. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 291 
 
 whether it was to this circumstance or to deeper causes 
 connected with the general tone of thinking which then 
 prevailed that they owed the favour they enjoyed, the doc- 
 trines of Thomasius and his followers in jurisprudence and 
 natural law were in high repute amongst our countrymen a 
 hundred years ago. There is every reason to believe that it 
 was from the writers of this school, probably from Thomasius 
 himself, that Hutcheson, in particular, adopted the distinc- 
 tion between natural law and ethics ; and the opinions of 
 Hutcheson influenced those of his successors, both here and 
 in England, very extensively. The doctrine, in the form in 
 which Thomasius presents it, in so far as it had an immediate 
 historical source, is said by Ahrens, 1 I think justly, to have 
 sprung from a misapplication of the tripartite division of 
 justice which his friend and contemporary Leibnitz had intro- 
 duced a few years before, in a tract on the " Method of learning 
 and teaching jurisprudence." 2 It was a juvenile production, 
 and is not included in some editions of his works ; but it ac- 
 quired importance from the fact that he refers to it, and accepts 
 the view of justice which it advocated, in the celebrated preface 
 to his Codex Diplomaticus Juris Gentium 3 (quemadmodum rem 
 adolescens olim in libello, de methodo juris, adumbravi). 
 
 Justice, Leibnitz taught, manifested itself in three degrees : 
 
 (1) strict justice (jus striatum), which consists in commutative 
 justice, and may be resumed in the principle alium non Icedere ; 
 
 (2) equity (cequitas), or distributive justice, equivalent to the 
 
 1 P. 553. 
 
 2 Nova Methodus discendce docendceque Jurispriidentice. 
 
 3 Diisertatio, vol. i. sect. xii. 
 
292 OF THE HISTORY OF THE DISTINCTION 
 
 principle suum cuique tribuere ; and (3) piety (pietas), or prob- 
 ity (prdbitas), enunciated in the maxim honesU vivere} 
 
 I do not think that the fioman Juris prcecepta 2 can be 
 maintained, even as a division of degree, in any absolute sense. 
 The first and the third branches are simply the second (suum 
 cuique), exhibited in different points of view ; for not to hurt 
 our neighbour is neither more nor less than to give him his own, 
 and the same is, I think, plainly the ultimate meaning of the 
 honeste vivere also. On the principle, then, that things which 
 are equal to the same thing are equal to one another, if the first 
 branch and the third admit of being identified with the second, 
 they are themselves identical ; and the whole resolves itself into 
 a series of distinctions without differences. Aristotle has said 
 that an incapacity to draw nice and subtle distinctions is the 
 characteristic intellectual defect of the vulgar. 3 With equal 
 truth, perhaps, he might have stated the characteristic defect 
 of the learned to consist in distinguishing too often and too 
 much. 
 
 But, be this as it may, Leibnitz did not establish, or mean 
 to establish, any absolute distinction between the stricium jus 
 and the others, on ethical grounds. He is not contented with 
 tracing all of them to an ethical source, as Professor Calder- 
 wood seems to be ; on the contrary, he indicates, in the pre- 
 face to the Codex Diplomaticus, a very clear opinion to the 
 effect that the distinction between them is created by positive 
 law, by the action of which alone an aptitudo, as he expresses 
 it, is converted into a facultas. That such was Leibnitz's 
 
 1 Ahrens, ut sup. 2 Inst. , "1. 1 . 3. 
 
 3 Th dioplfetp ovk etTTi ru>v iroWuf. — Ethic. Nic. t vol. x. 2. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 293 
 
 view, is further proved by the fact that he elsewhere identifies 
 justice with the " charity of the wise " (Justitiam igitur, qiite 
 virtus est hujus affectus rectrix quern ^iXavOpamta Grseci vocant, 
 coinmodissime, ni fallor, definiemus caritatem sapientis, hoc 
 est, sequentem sapientise dictata). As Leibnitz does not assert 
 that there is a charity of the foolish (caritas stulti), differing 
 from and transcending the charity of the wise, we may take 
 the liberty of separating his general dictum that justice may 
 be defined as charity, from his qualification {sapientis), which 
 he probably introduced for no other reason than to guard 
 against the popular abuse of speech, by which the name 
 of charity is too often given to mere irrational sympathy, 
 or it may be ostentatious profusion. It is on the ground 
 of his thus asserting the absolute identity, in principle, be- 
 tween justice and charity — a subject of which I shall speak 
 fully hereafter — that Ahrens, when treating of Leibnitz's 
 views, says that "justice, according to him, does not concern 
 the external relations of men alone, but extends as far as 
 reason and the rational relations of men with all other beings." 1 
 How little sympathy Leibnitz had with any scheme for separ- 
 ating jurisprudence from ethics, becomes further apparent from 
 an interesting passage in one of his letters, which is probably 
 less known than those I have quoted. "Ethicse," he says, 
 " est docere virtutem, jurisprudents hunc quern dixi usum 
 ejus ostendere. . . . Opinio, quae jus naturae ad externa re- 
 stringit, nee veteribus Philosophis, nee Jurisconsultis olim 
 gravioribus placuit, donee Pufendorfius, vir parum Juriscon- 
 sultus et minime Philosophus, quosdam seduxit : Est ejus non 
 
 1 P. 553. 
 
294 OF THE HISTORY OF THE DISTINCTION 
 
 magna apud me auctoritas ; quam fere popularia tantum de 
 suo adferat, et in cortice hsereat." l 
 
 But if Thomasius cannot claim Leibnitz as a predecessor, 
 he had many loyal and illustrious followers in Germany. Of 
 these, the most devoted were perhaps Gerard and Gundling, 2 
 and certainly by far the most illustrious was Immanuel Kant. 
 To Kant's influence, more than to any other cause, was prob- 
 ably due the unhesitating confidence with which, till a 
 recent period, this distinction was generally maintained and 
 applied. In Kant's hands, it is true, it assumed a somewhat 
 different form — a form which admitted of its being more 
 readily brought to the test of experience, and which, on that 
 account, has led to its being absolutely rejected by a greater 
 number of those who came in contact with it in Germany as 
 expounded by Kant and his followers, than of those who still 
 know it, as is the case in England, only as his predecessors 
 had stated it. Like Thomasius, Kant held that there are two 
 distinct classes of duties — those which may, and those which 
 may not be enforced consistently with the dictates of natural 
 law, and, of course, of positive law in its true and proper 
 sense. The line by which these two classes of duties are 
 divided, he believed to be absolute and permanent — not a 
 line indicated by external circumstances, traced by particular 
 systems of positive law, and varying with time and place; but 
 a line drawn by the constitution of human nature, and the 
 necessary relations of human society. So far, indeed, neither 
 
 1 Epistola, vii. Leibnitz's position in this and other matters relating to 
 jurisprudence may now be readily discovered from Professor Trendelenburg's 
 Kleine Schriften, &c, ante, p. 32, note. 
 
 2 Tennemann, p. 352. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 295 
 
 Kant nor Thomasius stated anything that was new, but the 
 teaching of Thomasius contained the germ of a principle 
 which Kant worked out and applied, and which may, I 
 think, be regarded as the distinctive feature of the Kantian 
 school of natural law, as it unquestionably is that which 
 distinguishes it from the school which is now fast gaining 
 the ascendant in a speculative, as in so many directions it 
 has already done in a practical point of view. 1 The principle 
 to which I refer, is that which assigns negative rights and 
 duties alone to justice as their source, whilst it holds all the 
 positive rights and duties of humanity to be based on the 
 honestum and decorum. Kant perceived that very little pro- 
 gress was made towards rendering the old distinction between 
 perfect and imperfect obligations available for practical purposes, 
 by asserting that the perfect obligations were enforceable, and 
 that the imperfect obligations were not. To define a perfect 
 obligation as one that was enforceable, and then an enforceable 
 obligation as one that was perfect, was to reason in a circle, 
 from which it was possible to escape only by the adoption of 
 an external test by which either the one characteristic or the 
 other could be positively determined. Now, such a test was 
 afforded by the principle which I have mentioned — the prin- 
 ciple, viz., of confining the sphere of justice to negative rights 
 and duties ; and though its application is correctly ascribed to 
 Kant, there are passages in Thomasius which, I think, estab- 
 
 1 The fact of Ahrens having been selected to write the article on Rechtsphi- 
 losophie in HoltzendorflFs JEneyclqpcedia, shows that he was regarded in 1873 
 as the leading representative of the subject in Germany. Trendelenburg, who 
 agreed with him in this matter, held the same position amongst those who dealt 
 with the subject from a philosophical point of view, as Ahrens did amongst' jurists. 
 
296 OF THE HISTORY OF THE DISTINCTION 
 
 lish his claim to its discovery. In particular, let me refer 
 to the passage where he says, " Prsecepta negativa pertinent 
 ad prsecepta justi, prsecepta affirmativa autem ad prsecepta 
 decori," &C. 1 
 
 Adopting this principle, then, Kant taught that the obliga- 
 tion not to interfere with the liberty of our neighbour was the 
 only perfect and enforceable obligation. All the positive duties 
 which we owe to our neighbour he held that we owe him 
 morally only — they are imperfect, non-enforceable obligations, 
 and beyond the sphere of jurisprudence, forbidden to legisla- 
 tion, not accidentally or generally, but necessarily and invari- 
 ably. It is not a little remarkable that so stanch an adhe- 
 rent of what the Utilitarians call the intuitive system as Kant, 
 in this the almost solitary instance in which he allowed his 
 opinion to be formed by what seemed the manifest teaching 
 of experience, should have fallen into what, had he lived to 
 our day, experience would probably have induced him to 
 repudiate as an error. The following I believe to be pretty 
 nearly the history of this occurrence. The curse of Kant's 
 time was over-legislation. To what extent the philosophical 
 doctrines, with which the Wolfian school was now opposing 
 the negative teaching of Thomasius, is chargeable with the 
 fact may be questioned ; but the fact itself is certain. Trade, 
 religion, social life and progress in all directions, were regu- 
 lated and restricted. In Germany, Frederick the Great 2 and 
 
 1 P. 213, ed. 1718. 
 
 2 In his Anti-Macckiavelli Frederick indicates the points of difference and agree- 
 ment between himself and the Italian. Unlike Macchiavelli, he puts the interests 
 of the Prince, as an individual, altogether into the background ; but he sacrifices 
 his personal morality also to the interests of the State. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 297 
 
 Joseph the Second were patriarchal monarchs, who, as Ahrens * 
 has said, unhesitatingly put " le salut public audessus du droit 
 et de la liberty des individus." In his marvellous book on 
 France, before the Eevolution, M. de Tocqueville has shown 
 us that, in no small measure, it was the interference of the 
 State, by means of intendants and other officials, with the 
 liberties of the individual that brought about the French 
 Eevolution ; and in its earlier stages, so long as it could be 
 regarded as a protest in favour of liberty, Kant, like Burke 
 and so many others who afterwards shrank in horror from its 
 excesses, and turned in contempt from its exaggerations, was 
 a zealous sympathizer with the movement. In corruptissimd 
 republicd plurimce leges, is the saying of one 2 who had lived 
 through a still darker epoch ; and the whole Liberal party in 
 Europe, Kant being of the number, were so sensible of the 
 fact that liberty had suffered before their eyes from the very 
 science of Government of which it was the true object, more 
 than from any other cause, that they sought to confine positive 
 law within the narrowest limits. Their aim was to elaborate 
 a system in accordance with which the State should become 
 a mere police, which should never interfere with individual 
 action except for the purpose of preventing interference ; and 
 in order to lay a theoretical groundwork for such a system, it 
 was plainly necessary that the sphere of jurisprudence should 
 be declared to be a purely negative sphere. Kant, as may 
 readily be imagined, occupied himself chiefly with the theo- 
 retical groundwork, but that he aimed at the same practical 
 end as his contemporaries, is plain enough ; and if we wish to 
 1 Ahrens, vol. ii. p. 20. 2 Tacitus. 
 
298 OF THE HISTORY OF THE DISTINCTION 
 
 see the principles of his system worked out, not perhaps to 
 the full results which they logically yield, but to those which 
 it is probable Kant contemplated, we have only to turn to 
 the pages of another illustrious German of the generation 
 which immediately followed. In his work, entitled Thoughts 
 with a View to Determine the Limits of the Action of the State} 
 Wilhelm von Humboldt sought to prove that the community, 
 as such, was necessarily and permanently incapacitated from 
 aiding the individual directly, and that the only influence 
 which it could legitimately exercise over him was confined to 
 prohibiting him from interfering with other individuals. 
 
 " The doctrine of Kant," 2 as Ahrens has said, " completes 
 the distinction established by Thomasius between morality 
 and law; law, however, preserves an intimate relation with 
 the good, because it exists only for the purpose of assuring 
 the personality and the moral liberty of man. The school 
 of Kant has often forgotten this relation in separating legal 
 liberty, or the liberty which exists of right, both in civil and 
 political arrangements, from moral liberty. But Kant himself 
 had the fullest consciousness of the connection which exists 
 between these two kinds of liberty, though he has not deter- 
 mined it with sufficient precision." Eeaders of Ahrens's own 
 discussion 3 may perhaps be permitted to doubt whether the 
 praise which he has bestowed on Kant in the last sentence be 
 not pretty nearly all which he himself is entitled to claim. 
 " Law and morals," he says finely, " lend each other mutual 
 
 1 Ideen zu einem Versuch die Grenzen der Wirksamkeit des Stoats zu bestimmen. 
 
 s P. 44. 
 
 3 Distinction et rapports entre le droit et la Morale, vol. i. p. 159. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 299 
 
 support ; separated or confounded, they produce social disorder, 
 but, distinguished and united, they are the two most powerful 
 levers of all real progress." The sin of separating them, of 
 which Kant was unintentionally guilty, Ahrens certainly does 
 not commit. He carries his opposition to the negative school 
 so far, as, in my opinion, to fall back into the per/Ice te ipsum 
 of Wolff, and thus to lose the distinction between natural law 
 and ethics altogether ; but perhaps I had better not accuse 
 him of confounding them till I have submitted to" the reader 
 my own attempt to distinguish them. 1 
 
 The difficulty which led Kant to adopt the distinction 
 between negative and positive, in preference to that between 
 perfect and imperfect obligations, had pressed itself on the 
 better class of thinkers in our own country at an earlier 
 period ; and whilst Eutherford states the old distinction 
 without the slightest misgiviDg as to its serving the purpose 
 of establishing a permanent and workable line of demarcation 
 between law and ethics, Hutcheson, follower of Thomasius 
 though he was, was far less confident. 2 In his first book (p. 
 68), indeed, he seems to lean to the Socratic view of justice 
 by which the distinction, as we shall see presently, was ex- 
 cluded ; and in the second book, though he states it, he quali- 
 fies it thus : " Yet the boundaries between perfect and imper- 
 fect obligations are not always easily seen. There is a sort 
 
 1 Infra, Book ii. cap. i. 
 
 2 As in all similar cases, the more we look into the question, the less do we 
 find it to be new. Here, for example, is a clear expression of opinion on the 
 part of Thomas Aquinas in favour of the positive school: "Plus est operari 
 bonum quam vitare malum. Et ideo in prseceptis affirmativis virtute includuntur 
 praeceptanegativa." — Summa, Sccunda, Secimdce, quaes, ii, 3, 3. 
 
300 OF THE HISTORY OF THE DISTINCTION 
 
 of scale, or gradual ascent, through several almost insensible 
 steps, from the lowest and weakest claims of humanity to 
 those of higher and more sacred obligation, till we arrive at 
 some imperfect rights so strong that they can scarce be dis- 
 tinguished from the perfect, according to the variety of bonds 
 among mankind, and the various degrees of merit and claims 
 upon each other. Any innocent person may have some claims 
 upon us for certain offices of humanity. But our fellow- 
 citizen, or neighbour, would have a stronger claim in the like 
 case. A friend, a benefactor, a brother, or a parent, would 
 have still a stronger claim, even in those things which we 
 reckon matters of imperfect obligation." 
 
 The ground of hesitation which Hutcheson here indicates 
 has reference, not to the form of the distinction as commonly 
 stated in his time, but to its substance. He doubts if the 
 duties of humanity can be identified with those which are 
 imperfect, and as such non-enforceable; and hence we may 
 probably infer that unless, like Kant, he had been carried 
 away by the spirit of the rising generation, he would have 
 pronounced the test of negative and positive to be illusory. 
 
 The relation in which Dr Eeid stood to the prevailing 
 doctrine is a still more curious illustration of the gradual 
 manner in which the truth dawns even upon clear-sighted 
 men. In the first place, 1 he states the distinction in the 
 usual way, without any apparent hesitation as to its sound- 
 ness ; then, on the following page, 2 he says " that the two 
 classes, like the colours in a prismatic image, run into each 
 other, so that the best eye cannot fix the precise boundary 
 
 1 Hamilton's Eeid, p. Ui. 2 P. 615. 
 
BETWEEK PERFECT AND IMPERFECT OBLIGATIONS. 301 
 
 between them ; " and finally, he returns 1 to the ancient view, 
 and admits charity, and, as a necessary consequence, all the 
 other imperfect obligations, within the sphere of justice, — thus 
 practically repudiating the distinction altogether, 
 
 Dugald Stewart, notwithstanding his vigorous and repeated 
 protests against the manner in which natural law was taught 
 by the civilians, in which I generally concur, does not seem 
 to have freed his own mind from what was probably their 
 greatest error ; for we find him admitting that " justice is the 
 only branch of virtue in which there is always a right on the 
 one hand, corresponding to an obligation on the other." 2 
 
 The first of our countrymen — and, so far as I know, the 
 only English writer of importance even yet — who has con- 
 sciously abandoned the distinction, and expressly separated 
 himself from the prevailing doctrine, was Dr Thomas Brown. 
 As, in doing so, he had the merit of having been one of the 
 earliest modern thinkers in Europe to assert the universal 
 character of ethics, and thereby to place the science of juris- 
 prudence on what was its ancient, and what I hope before 
 long will be universally recognized as its true basis, I shall 
 quote the passage from his lectures in which he expresses his 
 views. It occurs towards the end of Lect. 91. 3 
 
 " I have treated," he says, " of our moral duties with only 
 few remarks on what are commonly denominated rights ; for 
 this best of reasons, that the terms right and duty are, in the 
 strictest sense, in morality at least, corresponding and com- 
 mensurable. "Whatever service it is my duty to do to any one, 
 he has a moral right to receive from me. ... I do not speak 
 1 Pp. 658, 659. 2 Outlines, p. 269. 3 P. 615. 
 
302 OF THE HISTORY OF THE DISTINCTION 
 
 at present, it is to be remembered, of the additional force of 
 law (that is, positive law) as applied to particular moral duties, 
 a force which it may be expedient variously to extend of limit, 
 but of the moral duties alone; and in these, alike in every case, 
 the moral duty implies a moral right, and a moral right a moral 
 duty. . . . The laws, indeed, have made a distinction of our 
 duties, enforcing the performance of some of them, and not 
 enforcing the performance of others ; but this partial interfer- 
 ence of law, useful as it is in the highest degree to the happi- 
 ness of the world, does not alter the nature of the duties 
 themselves, which, as resulting from the moral nature of man, 
 preceded every legal institution. ... On this very simple 
 distinction of duties which the law enforces, and of " those 
 which for obvious reasons it does not attempt to enforce, and 
 on this alone, as I conceive, is founded the division of perfect 
 and imperfect rights, which is so favourite a division with 
 writers in jurisprudence, and with those ethical writers whose 
 systems, from the prevailing studies and habits of the time, 
 were in a great measure vitiated by the technicalities of law. 
 The very use of these terms, however, has unfortunately led 
 to the belief that, in the rights themselves, as moral rights, 
 there is a greater or less degree of perfection or moral incum- 
 bency, when it is evident that morally there is no such dis- 
 tinction ; or I may even say that if there were any such dis- 
 tinction, the rights which were legally perfect would be of less 
 powerful moral force than rights which are legally said to be 
 imperfect. There is no one I conceive who would not feel 
 more remorse, a deeper sense of moral impropriety, in having 
 suffered his benefactor, to whom he owed his affluence, to per- 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 303 
 
 ish in a prison for some petty debt, than if he had failed in 
 the exact performance of some trifling conditions of a contract 
 in terms which he knew well that the law would hold to be 
 definite and of perfect obligation. It is highly important, 
 therefore, for your clear views in ethics, that you should see 
 distinctly the nature of this difference to which you must 
 meet with innumerable allusions, and allusions that evince 
 an obscurity, which could not have been felt but for the un- 
 fortunate ambiguity of the phrases employed to distinguish 
 rights that are easily determinable by law, and therefore en- 
 forced by it, from rights which are founded on circumstances 
 less easily determinable, and therefore not attempted to be 
 enforced by legal authority." And he thus sums up his view : 
 " All rights are morally perfect ; because wherever there is a 
 moral duty to another living being, there is a moral right in 
 that other, and when there is no duty there is no right. There 
 is as little an imperfect right, in a moral sense, as there is in 
 logic an imperfect truth or falsehood." 
 
 This very clear exposition of the fallacy of the distinction 
 between perfect and imperfect obligations, in any other sense 
 than as a distinction between ethics, or natural law, on the 
 one hand, and positive law on the other, was, as I have said, 
 one of the earliest in Europe after the revival of what in 
 antiquity had formed part of the teaching of the Sophists by 
 Thomasius, and its application by Kant and his followers in 
 the eighteenth century. 
 
 Brown lectured for the first time, as Dugald Stewart's 
 assistant, in 1810; and his brilliant career was terminated 
 by his too early death in 1820. The passage which I have 
 
304 OF THE HISTORY OF THE DISTINCTION 
 
 quoted must consequently have been written during the in- 
 tervening ten years. 
 
 In Germany the fame of its original patrons protected the 
 distinction from question for the better part of another decade. 
 The first writer who is mentioned by Trendelenburg as pro- 
 fessing the opposite doctrine is the now recognized father of 
 the positive school, Karl Chr. Fr. Krause. 1 Then there are 
 his two leading disciples — who have toiled at the dissemina- 
 tion of his doctrines, "mehr als ein Menschenalter hindurch" 2 
 — Ebder, 3 whose Politik appeared in 1837, and Ahrens, 4 the 
 first edition of whose work appeared in 1839. Stahl 5 in 1830, 
 and Schleiermacher, 6 as was natural in one who was built on 
 Plato, in 1835, adhered to the ancient doctrine from different 
 points of view, though neither of them were of Krause's 
 school in other respects. Of later writers, Trendelenburg 
 classes as adherents of what by that time was becoming the 
 prevalent doctrine, Wirth in 1841, Chalybseus in 1850, and 
 the younger Fichte in the same year, the elder Fichte having 
 in this matter adhered to Kant. To these writers, Hegel, 
 though differing from most of them very widely in other re- 
 spects, falls in this respect to be added ; and Trendelenburg 
 himself, as by no means one of the least important — his work 
 
 1 His lectures were published in full by Professor Roder in 1874 : Das System 
 der Rechtsphilosophie ; Vorlesungen, &c. — Leipzig, Broekhaus. Hitherto 
 Krause's system had been known only from the Abriss des Systemes der Phi- 
 losophie des Rechts, oder des Naturrechts, 1828. 
 
 2 Rbder's Krause, Vorlericht, p. xii. 
 
 3 Naturrecht, oder EeehtspMlosophie, 1860. 
 
 4 Cours de Droit Naturel ou de Philosophie du Droit, 6th edit, 1868. 
 6 Philosophie des Eechts. 
 
 6 Entwurf eines Systems der Sittenlehre. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 305 
 
 on Natural Law, 1 which appeared in 1860, having had for its 
 express object to restore the connection between law and 
 ethics, which the influence of the Kantian school had so 
 seriously weakened. Warnkonig, who was an eclectic, and 
 not very much of a philosopher, can scarcely be said to have 
 taught a system of his own, but on this point he was a firm 
 adherent to the same view. Amongst the various shades of 
 opinion which he enumerates 2 he mentions that of a writer 
 called Piatt, who carried his opposition to the limitations of 
 the negative school so far as to maintain that there are no 
 perfect obligations. Tennemann mentions more than one 
 philosopher who rejoiced in this ominous cognomen. I am 
 not myself acquainted with the work to which Warnkonig 
 refers ; but if all that the writer in question meant was that 
 there are no obligations so perfect, morally, as not to require 
 that, in some conditions of society, they should be made the 
 subjects of positive law, I should be very much disposed to 
 assent to his proposition, provided he could demonstrate the 
 possibility of its practical application. There is surely no 
 natural obligation so perfect as " Thou shalt not kill," and yet 
 murder is forbidden by positive law in every Christian country. 
 In the other direction there is nothing so trivial as not to be 
 regulated by positive law of some kind. It is the law of our 
 dinner-tables to present fish immediately after soup. In 
 Germany there is a different law ; but in both there is a 
 positive law. If, then, we extend the term positive law, so 
 
 1 Naturreeht aufdem Grunde der Ethik, 1860. 
 
 2 Philosophies Juris delineatio, p. 26. His own views will be found in the 
 doctrinal portion, p. 79. 
 
 L r 
 
306 OP THE HISTORY OF THE DISTINCTION 
 
 as to include under it the rules of society and the regulations 
 of religious bodies, and if we recognize opinion as one of its 
 so-called sanctions, the number even of subjective obligations 
 which fall within its scope will probably be found to be very 
 much greater than we are accustomed to suppose. 
 
 But it is the followers of Krause who, not only by their 
 writings but by their annual congresses and other proceedings, 
 have made themselves the practical representatives and ex- 
 positors of the positive school ; and for this reason it may be 
 desirable that I should state their views in somewhat greater 
 detail. Their leading thought, more particularly as repre- 
 sented by Eoder, 1 is guardianship ( Vormundschaft). All legis- 
 lative action, all government — which the Kantian school 
 had identified with police — Eoder (reminding one of Plato's 
 <£vAokes) resolves into guardianship, exercised by those who 
 are majors over those who are minors, and having for its 
 object, in the first instance, the benefit of the latter. I say 
 that they give precedence to the interests of the minors ; for 
 one cannot but feel that the tendency of the whole class of 
 writers to which Eoder belongs is, theoretically, to repeat 
 
 1 Professor Eoder, whose recent death (20th December 1879) is an irreparable 
 loss to science and to his friends, did me the honour to review this work in the 
 Tiibinger Zeitschrift fur die Gesammte Staatswissenschaft for 1873 (ii. Heft, pp. 
 213-232) under the title of Neure Rechtsfilosofie in England. His generous and 
 indulgent criticism finds many exceptions, more particularly, of course, at the 
 points at which I have adhered to the Kantian system in preference to that of 
 Krause. But he does not allege that I have misunderstood or misrepresented his 
 general meaning even there ; and with reference to one matter he pays me the 
 compliment to say (p. 222) that I belong to the sehr Wenigen who have pene- 
 trated to the full sense ! I consequently hope that with the slight alterations 
 I have made on it, the statement of his doctrine in the text will be found to 
 be fairly accurate. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 307 
 
 what I have elsewhere pointed out as the error of the school 
 of benevolence, 1 and to forget the existence of subjective 
 rights altogether, whilst practically they would sacrifice the 
 fraternal to the paternal principle, and fall back on abso- 
 lutist doctrines of legislation. No such objections, however, 
 necessarily attach to their system ; for the interests of all 
 being ultimately identical, in consulting the real interests 
 of their wards the guardians really consult their own inter- 
 ests also, and vice versd. This thought then Ebder adopts, 
 quite legitimately, as expressing the principle of the positive 
 school ; and he follows it out in all possible directions, and 
 finds for it all possible applications. It determines the true 
 spheres of action and of passion, and fixes the limits of inter- 
 ference and non-interference in every department of juris- 
 prudence ; for interference shall take place when, and only 
 when, it conduces to the benefit of the minor — i. e., when it 
 enables him, or tends to enable him, to attain the perfection of 
 his being and the ends of his human existence. Wisely and 
 considerately Kbder professes to draw no absolute lines, either 
 as regards public or private relations, between those whose 
 duty it is to aid, and those whose privilege or misfortune it is 
 to accept aid; and the sphere of guardianship thus always 
 diminishes just in proportion to the extent to which its 
 objects are accomplished. The minor, who is majoritati 
 proximus, is not entitled to the full rights, or bound to 
 undertake the whole responsibilities of a major ; but he is 
 no longer an infant, and must mainly trust to self-guidance 
 and self-help. It is needless that I should point out the 
 
 1 Ante, p. 208. 
 
308 OF THE HISTORY OP THE DISTINCTION 
 
 manner in which this principle, originating in the relations of 
 parent and child, is extended to the other domestic relations, 
 and even determines the conditions and limitations under 
 which free contracting power must be recognized between 
 third parties. But, in these times, I must not fail to call 
 attention to the difference between the order of political ideas 
 resulting from a system which, starting from the relation 
 of parent and child, embraces the family relations in their 
 integrity, and the ordinary democratic one, which, taking cog- 
 nizance of the brotherly relation (JratemiU) alone, degenerates, 
 in the end, into individual isolation and collective anarchy. 
 The watchword, or rather the war-cry of the democratic party 
 is, " L' elimination de" toutes les tutelles, le d^gagement le plus 
 complet possible de la personne humaine." 1 " Je ne reconnais 
 d'autre souverain," exclaims M. Acolas, " pour moi-m^me que 
 moi-me'me." 2 But what if I should be able to exercise the 
 sovereignty only by the help of another 1 A sovereign may 
 be a minor like other people. What if I should be a minor 
 in age, in intelligence, in natural gifts ? The greater number 
 of grown men are savages, and are consequently in their 
 minority ; and there are very few of us, I fear, who are not 
 more or less in the same position. 
 
 Applied to public law, the principle of guardianship not 
 only binds the community into a single organism, but it sup- 
 plies a rule for the gradual admission of the whole community 
 to share the rights and responsibilities of self-government. It 
 is thus liberal in the fullest and strictest sense. But it mani- 
 festly shuts out the notion of an equal participation in these 
 
 1 Emile Acolas, La Mipublique, p. 8. " P. 31. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 309 
 
 rights and responsibilities, and in this respect is strongly anti- 
 democratic. Professor Eoder 1 is consequently an advocate for 
 the principle of political graduation, which I have so long 
 maintained, and a determined enemy to levelling (Gleich- 
 macherei). Even ,a restricted suffrage, a suffrage which for 
 the time being should shut out a large proportion of the 
 community from all participation in government, he holds to 
 be fully justified by his system, so long as power shall be 
 thereby placed in the hands of those, and of those only, who 
 can exert it better for the common good — who can act as 
 guardians. The result is unquestionably legitimate, — at least 
 I can see no ground on which it can be assailed, even though 
 greater prominence were given to individual rights than 
 Eoder's system, in this aspect, would seem to allow them. 
 But by a proper application of the principle of graduation, in 
 the manner which I have elsewhere explained, 2 I think the 
 limits of total exclusion might be restricted to a greater 
 extent than Professor Eoder and the class of writers to which 
 he belongs, seem to have contemplated. It is plain, however, 
 that this principle excludes all forms of government which 
 have in view the exclusive interests either of an individual or 
 of a class — absolute monarchy, oligarchy, and democracy, — 
 together with those forms which, though affecting to be con- 
 
 1 Such, at all events, is his general doctrine ; but, like Ahrens, he has not 
 always maintained it consistently, and at vol. ii. p. 141 of his Naturrecht, you 
 will find a passage in which he asserts the equivalence of functions. On the 
 other hand, in his Polttik he goes very boldly in th e opposite direction, and in 
 the review above referred to explains and vindicates this passage in the Natur- 
 recht on grounds which I confess I do not quite understand. 
 
 2 Political Progress not necessarily Democratic, 1857; and Constitutionalism of 
 the Futwre, 1865. 
 
310 , OF THE HISTOKY OF THE DISTINCTION 
 
 fided equally to all, are in reality exercised by a mere numeri- 
 cal majority ; and these, on grounds which I shall explain 
 more fully hereafter, I believe to be the only forms of govern- 
 ment the realization of which will ultimately be found to be 
 irreconcilable with order, progress, or even civilization. 
 
 The idea of guardianship has its application also in external 
 politics, — the jus inter gentes. The principle of graduation 
 introduces a new element into the doctrine of Eecognition, 
 and finds an appropriate function in the ranking of states for 
 purposes of arbitration and intervention, 1 whilst it furnishes 
 the ground, and I believe the only ground, on which the 
 continued rule over a peaceable but semi-barbarous or retro- 
 grade nation — our own rule in India, for example — can be 
 justified. 2 Seen froml'the side of the conquered people alone, 
 however, the true view of the matter is that, so long and so 
 far as external government by a higher or more advanced race 
 does really promote the human development of the lower or 
 retrograde race, that government is just. It is an interference 
 in favour of liberty on the whole, and thus falls in with the 
 object of Kant's system, to which we shall ultimately see 
 grounds to give in our adhesion, though it conflicts with the 
 negative character of his means, which, I believe, we must 
 reject. 3 The moment that the lower or retrograde race be- 
 comes capable of attaining this end by its own efforts, the 
 
 1 P. 261, note. 
 
 2 That of the French in Algeria might perhaps stand on the opposite ground 
 — viz., that, in suppressing a. nest of pirates, they were asserting rights on the 
 part of the trading nations of Europe not less real than any which the Algerians 
 had to their guardianship. 
 
 3 Infra, Book ii. cap. 1. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 311 
 
 rule of the higher race, unless spontaneously retained, degen- 
 erates into tyranny. 
 
 But it is in the region of criminal law that Ebder conceives 
 his principle to be peculiarly fruitful, and he is never weary, 
 of dilating on the benefits of its practical application. The 
 true object of punishment, he says, is neither vengeance nor 
 terror, but the amendment of the criminal for his own benefit 
 and the benefit of others, his resumption of the duties and 
 restoration to the rights of a free man. It is not to increase 
 evil in the world by extending to the transgressor the suffering 
 he has inflicted on others, but to diminish the evil by con- 
 verting the criminal's will, which, if it be a curse to his fellow- 
 mortals, is a still greater curse to him. If our object were 
 simply to torture him, we have only to let him alone. But 
 it is in the fact that this object is one which we are not 
 entitled to set before us, that punishment finds at once its 
 reason and its justification. It is the medicine to the en- 
 feebled and vitiated will, and the criminal has a right to it, 
 just as those who are sick in body have to the apothecary's 
 draught or the surgeon's knife, that the starving and impotent 
 have to the soup, the foul to the soap, or the ignorant to the 
 instruction that is doled out to them by the hand of voluntary 
 or compulsory charity. The compulsion in all such cases, both 
 in the case of him who gives and of him who receives the 
 benefit, may be held to be illusory ; for, even in the case of 
 punishment, Boder would agree with Hegel in holding that by 
 the conscious commission of crime the higher nature of man 
 consents to punishment, and that all that is effected by the 
 jury, or the judge, is to ascertain the fact of this consent, and 
 
312 OF THE HISTORY OF THE DISTINCTION 
 
 to assign the form and measure of its concrete realization. 
 But no man is entitled finally to abandon himself, and con- 
 sequently no man can be held to have consented to punish- 
 ment which is not for his own ultimate benefit. On this 
 ground Eoder is an opponent of capital punishment, which he 
 holds — somewhat hastily perhaps even with a view to this 
 world — to cut the criminal off from the opportunity of amend- 
 ment; and to all forms of corporal punishment, which he 
 believes to degrade him. On the first of these difficult ques- 
 tions I do not wish to go beyond what I have already said. 1 
 But, as regards the second, it sometimes occurs to me that a 
 little more experience of criminal courts might probably lead 
 a good many philanthropists to ask themselves whether there 
 be not human beings whom no corporal punishment could 
 degrade, and to whose " sittliche Bildung " it might even con- 
 tribute. 2 Nor is it inconceivable that the last penalty of the 
 law, carried out after an adequate period for reflection and 
 repentance, might conduce more to the human perfection of 
 the criminal than the prolongation of his life; or that his re- 
 moval from society would be more beneficial to others than any 
 future career that would be possible to a nature so degraded. 
 On the other hand, the theory of guardianship furnishes by far 
 the most complete answer to the common objection to the 
 employment of criminals in remunerative labour, on the ground 
 that it interferes with the labour of honest men. If we regard 
 the criminal in the light of a pupil, the brush-maker, or mat- 
 
 1 Ante, p. 219. 
 
 * When acting as a magistrate, I have myself observed the vastly greater im- 
 pression which a sentence of whipping produced on boys than a sentence of 
 imprisonment with hard labour. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 313 
 
 maker whose earnings are depressed by his enforced com- 
 petition, has no more reason to complain than he would have 
 if a neighbouring brush-maker or mat-maker compelled his 
 idle young varlet of a son to work. The State is simply the 
 parent who wields the rod; and the interests of the criminal 
 are no more separated from those of the community than the 
 interests of the rebellious child. But it is not hujus loci to 
 discuss these matters farther, or to follow out the theory of 
 guardianship into all the results which it is supposed by 
 Professor Eoder to yield within the sphere of positive law, 
 civil or criminal. As regards the latter, more especially, we 
 continually encounter his thoughts in every one of his works ; 
 and he has, besides, set them forth very fully in a separate 
 treatise on the prevailing doctrines of crime and punishment. 1 
 Having made these preliminary observations on the history 
 and present position of opinion with reference to the distinc- 
 tion, the admission or rejection of which is now recognized 
 as the touchstone by which the character of systems of juris- 
 prudence and their relation to ethics must be tried, I must 
 now endeavour to enter somewhat more closely into the 
 grounds on which I hold that on this, as on so many other 
 points, 2 we must return to what I believe always to have 
 been the central creed of humanity, and accept, with the added 
 light which Christianity affords, the teaching of the great 
 thinkers of the heathen world. In doing so I shall take the 
 subject up in the light in which the Greeks loved to discuss 
 
 1 Die herrschenden Grimdhhren von Verbrechen und Strafe in ihren inneren 
 Widerspriichen, 1867. 
 5 Ante, cap. iv. passim. 
 
314 OF JUSTICE AND CHARITY. 
 
 it, and endeavour to discover the true relations which subsist 
 between the virtues, and more particularly between justice and 
 charity — the highest types of the two orders into which the 
 virtues have been distributed. 
 
 CHAPTER XII. 
 
 OF JUSTICE AND CHAEITY. 
 
 The question which the preceding chapter seems to force 
 upon us is, whether justice covers the whole ethical field from 
 one point of view, and charity from the other — whether they 
 be the same principle realized in different circumstances — or, 
 whether they divide that field between them, and are essen- 
 tially different principles. My contention will be that — 
 
 (a) The principles of justice and charity 1 are identical ; their 
 separate realization is impossible ; anal their common realization 
 necessarily culminates in the same action. 
 
 Though it may not hitherto have been found possible to dis- 
 tinguish obligations either into perfect and imperfect, or into 
 
 1 Thomas Aquinas distinguishes between caritas and liberalitas — the former 
 being a Christian grace unattainable by the heathen, the latter a moral virtue. 
 Charity in the sense in which I here use it, which is the popular and common 
 ethical sense, thus corresponds to liberalitas, not to caritas', which is the Ayitri) 
 of St Paul. In this sense the relation to justice which the great schoolman as- 
 signs to charity entirely corresponds with that for which I contend, though I do 
 not admit that absolute justice does not include caritas even in its theological 
 sense. For charity, the word equity might perhaps be substituted, though to 
 the English legal mind it would be confusing. — Summa, Prim. Sec. , qiues. lxvi. 
 art. 3 and i. See also Prim. Sec. , quass. lxxxviii. art. 2, in which he lays it 
 down that a peccatum veniale may be converted into a peccaium mortale by a 
 change of circumstances, and vice versd. 
 
OF JUSTICE AND CHARITY. 315 
 
 negative and positive, in such a manner as thereby to discover 
 the basis for a definition of the sphere of jurisprudence, is 
 that any sufficient reason for concluding that obligations do 
 not admit of a distinction in principle of any kind, and that 
 all delimitation of our science in that direction must be aban- 
 doned as a mistake ? That such a protest against the doctrine 
 which I have espoused should still arise in the minds of some 
 of my readers, is all the more conceivable as it has the sup- 
 port of a writer whose views on the origin of our rights, and 
 on the idea of property, coincide with those which I previ- 
 ously submitted, .more closely than the views of any other 
 writer with whom I am acquainted ; I mean M. Cousin. 
 
 In his criticism of Smith's doctrine that labour is the origin 
 of property, M. Cousin raises the question whether the whole 
 field of human duty falls within the domain of the principle 
 of justice, and consequently within the limits of natural law. 
 To this question, which under another aspect is precisely that 
 with the discussion of which we are at present occupied, he 
 returns a negative answer. "The principle, which is the 
 soul of Smith's book,'' M. Cousin says, " is the grand principle 
 of the liberty of labour. Before this principle Smith has 
 beaten down all obstacles, interior and exterior, which oppose 
 themselves to liberty, and consequently to the power of pro- 
 duction, to the development of riches, private and public, in 
 each country, and in the world at large. By this means he 
 has greatly reduced the function of governments ; and, to tell 
 the truth, he has too much reduced it. It is from Smith's 
 book that has proceeded the famous maxim, Zaissez /aire, et 
 laissez passer : superintend everything, and interfere with 
 
316 OF JUSTICE AND CHARITY. 
 
 nothing, or with scarcely anything. Here Smith's errors 
 commence, and they are the exaggeration of a truth, as he 
 himself said of the errors of the moral theories which had 
 preceded his. Yes, justice consists in the respect for and the 
 maintenance of liberty. It is the grand law of society, and 
 of the State which represents society ; but is justice the only 
 moral law ? We have proved that alongside of that law 
 there is another which does not simply oblige us to respect 
 the rights of others, but which makes it a duty for us to 
 solace their miseries of every kind, to come to the aid of 
 our fellow-creatures, even to the detriment of our own for- 
 tune and wellbeing. Examine the principle of the smallest 
 alms : you cannot reduce it to justice alone, for that trifling 
 sum of money which you believe it to be a duty to give to 
 an unfortunate, he has not the smallest right to exact from 
 you. This duty does not correspond to a right; it has its 
 principle in a disposition of our nature, and in a particular law 
 which we have elsewhere analyzed with care, 1 and denomin- 
 ated charity. Strange as it may seem, the same man who 
 had reduced all morality to sympathy scarcely recognized in 
 politics any other right than that of justice. This fact may 
 aid us in conjecturing what would have been the character of 
 Smith's grand political treatise. Judging by the maxims 
 scattered over the inquiry into the nature and causes of the 
 wealth of nations, we may be permitted to conjecture that his 
 natural jurisprudence reduced the function of laws and of 
 government to the protection of liberty. 2 We ourselves, by 
 
 1 -Philosophie Sensualiste, Premier Appendice, p. 313, mfra, p. 322. 
 
 2 It is not improbable that Smith may have changed his mind on this subject, 
 
OF JUSTICE AND CHARITY. 317 
 
 our own reflections and the development of our principles, 
 have arrived at the conclusion that justice, the protection of 
 liberty, is the fundamental principle and the special mission 
 of the State. But we believe that we have established, at 
 the same time, that it is absolutely impossible not to ascribe 
 to that great individual whom we call a society, some portion 
 at least of that duty of charity which speaks so energetically 
 to every human soul. According to us the State ought, above 
 all, to vindicate justice ; but it ought also to have a heart and 
 bowels. It has not fulfilled all its task when it has caused 
 rights to be respected. Something else remains for it to do — 
 something grand and noble : it remains for it to exercise a 
 mission of love and charity at once sublime and perilous ; for 
 we must not forget that everything has its danger : justice, 
 whilst respecting the liberty of a man, may, in all good con- 
 science, leave him to die of hunger ; charity, in saving him 
 morally and physically, but above all morally, may arrogate 
 to herself the fight to do him violence." Charity has covered 
 the world with admirable institutions; but bewildered and 
 corrupted, it is she also who has raised and authorized and 
 consecrated many a tyranny. We must restrain charity by 
 justice, but we must not abolish it, or interdict its exercise to» 
 society. Smith did not comprehend this, and from fear of 
 one excess he has fallen into another." * 
 
 Now I quite admit that Smith has committed the error of 
 which Cousin has accused him, and that he has so limited the 
 
 as his lectures on jurisprudence and natural theology were amongst the papers 
 ■which he burned a few days before his death. — Life prefixed to M'Culloch's 
 edition of the Wealth of Nations, p. xviii. 
 1 Ecole Ecossaise, p. 296 et seq. 
 
318 OF JUSTICE AND CHARITY. 
 
 functions of society and of the State, which is the organized 
 expression of society, as to rob it of many of its most sacred 
 rights, and to deprive it of many of its most important offices. 
 In the very mildest view of the matter, Smith has absolved 
 mankind from a large portion of the duties which God has 
 laid upon man. But, in so doing, he has simply given in his 
 adhesion to the school of jurisprudence prevalent in his day, 
 to which Cousin has also unwittingly committed himself. In 
 excluding charity from the protection of the State, Smith has 
 only recognized a legitimate consequence of its separation 
 from justice, for which M. Cousin himself contends so keenly. 
 The consequence is one which Smith accepts, in common 
 with all the other adherents of the absolute distinction be- 
 tween perfect and imperfect obligations, M. Cousin being, so 
 far as I know, the only writer of note who, whilst throwing 
 charity beyond the sphere of justice, insists that it shall be 
 recognized as one of the objects of jurisprudence, and admitted 
 within the pale of positive law. The theoretical source of 
 Smith's error, moreover, if I am not greatly deceived, is 
 altogether different from that which Cousin has indicated. 
 Smith's mistake consists not in failing to call into action 
 another principle than justice, but in limiting the action of 
 justice itself; and this inadequate view of justice is one 
 which we shall see presently is common to Smith and his 
 critic. He has seen only the negative side of justice, and 
 consequently, like Kant, he has assigned to legislation, which 
 is built upon it, only the negative duties of restraint. But is 
 there any reason why justice should not say "do," as well as "do 
 not ; " " act in behalf of liberty," as well as " do not act against 
 
OF JUSTICE AND CHAEITY. 319 
 
 it ; " " anticipate the restraints which will be imposed upon it 
 by poverty, ignorance, brutality, and tyranny, and prevent 
 the occurrence of crime, as well as its recurrence " ? If liberty 
 be the object of justice, whatever is antagonistic to liberty it 
 belongs to justice to remove ; and Smith needed not to travel 
 beyond his own principle in order to find grounds upon which 
 to recognize all the duties which Cousin properly assigns to 
 the State. But if Smith was thus led, by an inadequate con- 
 ception of the nature of justice, to exclude from its province 
 a large domain which legitimately belongs to it, was it not 
 an equally inadequate conception of it which led Cousin to 
 assign this domain to another principle, which, at bottom, is 
 neither more nor less than the principle of justice itself, act- 
 ing in different relations — i.e., under different external circum- 
 stances ? If it were true that the duties of charity were 
 duties which, being measured by no corresponding rights, fell 
 into an independent territory of their own, where the voice of 
 justice was unheard, they would indeed, as M. Cousin says, 
 be " perilous duties ; " and I believe it is the popular adhesion 
 to the doctrine which he advocates with so much zeal which 
 has gathered around them more than half their perils. But 
 have we in reality any ground for reverting to a belief in 
 this neutral territory 1 between justice and injustice, which 
 Thomas Aquinas rejected so emphatically in his day, 2 even 
 in deference to such names as Kant and Cousin ? 
 
 1 " If we contemplate actions in their true and real connection, we shall find 
 that nothing is indifferent, because every action is either one corresponding, or 
 one not corresponding to the order of reason (ordo rationis), and nothing can be 
 conceived as holding a middle place. "— Meander, vol. viii. p. 239. 
 
 2 Summa Theologies, Prima Seamdce, quses. xviii. art. 9. 
 
320 OF JUSTICE AND CHARITY. 
 
 Justice and injustice are not, like pleasure and pain, con- 
 traries merely, but contradictories ; 1 for not only does the 
 affirmation of the one imply the negation of the other, but 
 the negation of the one implies the affirmation of the other. 
 Between pleasure and pain there is a border-land of indif- 
 ference, though even this is debateable ground ; but justice 
 and injustice, right and wrong, both reach the watershed on 
 the mountain-top ; and that charity which does not flow down 
 the valley of life like a fertilizing stream, will speedily find 
 its way to join those headlong torrents which roar down the 
 valley of the shadow of death. Omne minus bonum habet 
 rationem mali 2 seems true, at least to the extent to which 
 it hands over to the dominion of darkness whatever does not 
 belong to the kingdom of light ; though it is not true as 
 excluding degrees of virtue and vice, 3 and a consequent pro- 
 gress in perfection or degradation. Viewed in this aspect, the 
 question of the limits of justice belongs to the subject of 
 theology rather than of jurisprudence ; and it is to the theo- 
 logians and schoolmen of the middle ages, to their modem in- 
 terpreters in Germany, and to the " Cambridge Platonists," as 
 
 1 Hamilton's Led., vol. ii. p. 436. 
 
 2 "Malum enim est privatio boni." — St Augustin quoted by T. Aquinas, 
 Prima Secundce, quajs. xviii. sect. viii. Muller on Sin, vol. i. p. 61. 
 
 3 The inability of the Stoics to maintain the distinction between obligations 
 which they had partially recognized was probably the cause of most of their " con- 
 tradictions. " For example, they violated it by maintaining that there is no mean 
 between virtue and vice, and that virtue admits neither of increase nor diminution, 
 the latter maxim being again contradicted by the whole object of their system, 
 which was increase in virtue, the natural implantation of which in all men was 
 the very root of their doctrine. — Zeller's Stoics, p. 249. As regards the identity 
 of justice and charity in particular, they seem to have been consistently incon- 
 sistent, Seneca being specially explicit. — Zeller, 298. 
 
OF JUSTICE AND CHARITY. 321 
 
 they are called in this country, 1 that I must consequently 
 refer for its exhaustive discussion. It is necessary that we 
 should bear in mind, however, as I have said already, that 
 the whole doctrine of the Eoman Catholic Church on the 
 subject of works of supererogation 2 (opera swperwogationis) — 
 works, that is to say, which profess to transcend the law — rests 
 on the same limited and imperfect conception of justice which 
 in jurisprudence has led to the distinction between perfect 
 and imperfect obligations. They were regarded not as duties, 
 but as good works beyond the sphere of duty, and independent 
 of it ; just as works of charity, in which in no small measure 
 they consisted, are regarded by M. Cousin as beyond the sphere 
 and independent of the principle of justice. The fallacy in- 
 volved in the train of reasoning by which these works were 
 inculcated, and of the consequent distinction in principle be- 
 tween consilia and prcecepta, of which we find traces even in 
 Thomas Aquinas, 3 is excellently exposed by Miiller on Sin. 4 
 But our present object will be better attained by examining 
 for ourselves the far clearer, if less subtle, exposition which 
 
 1 national Theology and Christian Philosophy in England in the Seventeenth 
 Century, by Principal Tulloch. Mr Maurice has some excellent remarks on the 
 subject in his Lectvtres on Christian Ethics, Lect. xiii. p. 201. 
 
 2 A modern English writer maintains that to do away with the belief in the 
 possibility of works which transcend the sphere of duty was one of the special 
 functions of Christianity. "Extraordinary services to humanity become ordi- 
 nary and imperative in the Christian commonwealth." — Ecce Homo, p. 299. 
 
 3 Prim. Sec. , quaes, cviii. art. 4. 
 
 4 Vol. i. p. 50. This important but somewhat abstruse work is now very fairly 
 translated into English. Considering the poverty of our native literature, it is 
 surprising that the industry of translators does not oftener take the direction of 
 jurisprudence. A well-selected series of works, or portions of works, beginning 
 with the scholastic jurist, and ending, say, with Leibnitz, would make a precious 
 addition to most law-libraries, and-might be profitable even to the booksellers. 
 
322 OF JUSTICE AND CHARITY. 
 
 M. Cousin lias presented of what essentially is the very same 
 argument against which Miiller contends. Let us examine 
 his statement, then, that there are duties which have no 
 reciprocal rights in the light of the illustrations which he 
 has adduced ; and for this purpose let us turn to that portion 
 of his writings to which he refers in the passage I have 
 just quoted. It is the appendix to his work on the Sen- 
 sualist Philosophy ; 1 and in it will be found an elaborate 
 discussion of the mutual relations and limits of justice and 
 charity. Almost at the very outset of this discussion the 
 following pointed sentence seems to concede the whole matter 
 in dispute : " Duty and right are brothers ; their common 
 mother is liberty. They are born the same day, they grow 
 up, they develop, and they perish together." We cannot be 
 so unjust to M. Cousin as to set down this pithy dictum as 
 a mere rhetorical embellishment ; and if we are to attach to 
 it a serious meaning, we can regard it as nothing short of an 
 unqualified recognition of the fact that rights and duties are 
 reciprocal and co-extensive. Yet this same dictum, in terms 
 which, if not identical, are equally unequivocal, might be 
 quoted from the writings of moralists and jurists without 
 number, who, like M. Cousin, repudiate the results to which 
 it leads, 2 and who, with him, would indignantly reject the 
 notion of confining the sphere of duties within the limits 
 
 1 P. 313 et seg. 
 
 2 A curious illustration of tlie consequences of separating the juslwm from the 
 decorum is given by Barbeyrac. "When commenting on Grotius (vol. i. p. 68), 
 he says that according to his author, though it may be honest and commendable 
 to content oneself with one wife, one cannot be said to do wrong in taking two. 
 Such was no doubt the logical consequence of what Grotius had said, but it was 
 heartless in Barbeyrac to point it out. 
 
OP JUSTICE AND CHARITY. 323 
 
 which they themselves had assigned to that of rights. If 
 the truth be, as we contend, that the two spheres are abso- 
 lutely co-extensive, and that as regards human relations the 
 reciprocity of rights and duties has neither limits nor excep- 
 tions (for in relation to the divinity, as I have already ex- 
 plained, we are debtors', only, and not creditors), the circum- 
 stance of this fact being propounded thus unawares, and as 
 it were involuntarily, furnishes a striking illustration of the 
 greater trustworthiness which often belongs to the instinctive 
 perceptions of the reason than to the results of our conscious 
 mental processes. Let us test it, then, by the instance which 
 M. Cousin regards as most clearly fatal. The poor, he tells 
 us, have no rights — none at all events which constitute claims 
 on our justice — and consequently our duties to them, if they 
 exist at all, must be founded on another principle. If the fact 
 be as stated, the inference is indisputable ; and our concern 
 is consequently with the question of fact. "With a view to 
 its solution let us recall for a moment what we have formerly 
 said of the origin of our rights. We found them to originate 
 in the power of life, or, in other words, in the distribution 
 which God had made of His gifts to His creatures, it being 
 true, without exception, that every gift which we receive from 
 Him comes to us accompanied by the consciousness of a right 
 to its retention, its exercise, and the results of its exercise. 
 In this view we have the fullest concurrence of M. Cousin 
 himself. " Property is sacred," he says, " because it repre- 
 sents the right of personality itself. The first act of free 
 and personal thought is an act of appropriation. Our first 
 property is ourselves, is our ego, is our liberty, is our power 
 
324 OF JUSTICE AND CHARITY. 
 
 of thought ; all other properties are derived from this, and 
 reflect it." 1 
 
 Now, if this be so, the question whether a pauper has rights 
 resolves itself into the question whether he has possessions, or 
 rather, whether he has that original possession of personality, 
 of human life, in which, as M. Cousin says, all other posses- 
 sions originate. If the answer to this question be negative, 
 if we are dealing not with a persona but a res, we postulate 
 the condition, not of pauperism, but of slavery, which even 
 the Eoman jurists pronounced to be an institution contra 
 naturam, and which, in our view of the matter, cannot claim 
 to exist either ethically or legally. The theory of slavery, 
 moreover, annihilates duties as well as rights, for we can 
 have no duties, in the human sense, towards things. It thus 
 carries us beyond the pale of charity, as M. Cousin defines it, 
 as well as that of justice. On the other hand, the moment 
 we depart from this theory, in its absolute rigour, we just in 
 so far assume the existence of a persona more or less perfect, 
 and answer the question in the affirmative. But M. Cousin 
 is not dealing with slavery, and the existence of the persona is 
 inseparable from freedom. The answer then, in the pauper's 
 case, must be affirmative. But if the answer be affirmative 
 — if the existence of the persona and its consequences be ad- 
 mitted — then it is clear that the rights which accompany this 
 primary possession and its adjuncts exist in the humblest 
 specimen of humanity, just as fully as do the rights that 
 accompany the more multifarious possessions which have 
 sprung from the self-same source in others. Now, though M. 
 
 1 Philosophic Sensualiste, p. 319. 
 
OF JUSTICE AND CHARITY. 325 
 
 Cousin maintains that there may be duties to which no rights 
 correspond, he does not hold the converse of the proposition, 
 and maintain that there are rights without corresponding 
 duties — though he maintains that I may have duties towards 
 you which confer on you no rights, he does not maintain that 
 you may have rights against me which impose on me no duties. 
 If the pauper has rights then, on M. Cousin's own showing, 
 I have duties towards him corresponding to his rights, what- 
 ever they may be ; and as it is only duties which do not 
 spring from rights that fall beyond the sphere of justice, my 
 duties to the pauper not being of that description, necessarily 
 fall within the sphere of justice. 
 
 It is no answer to this argument to allege that, by parallel 
 reasoning, it would be easy so to extend the domain of charity 
 as to make it include that of justice; because what I am 
 contending for is that the principles which lie at the root of 
 justice and charity are identical, though seen from different 
 points of view. The principle which, in the case' of justice, 
 we see in the light of a right to claim, in that of charity pre- 
 sents itself in the light of a duty to give. 
 
 But however conclusive this argument may seem, does it 
 not, by limiting the legitimate action of the principle of jus- 
 tice, lead at least to partial injustice 1 In imposing on me 
 the duty of preserving his life, does not the pauper, to that 
 extent, make an inroad on my possessions, and rob me, so to 
 speak, of gifts which were a consequence of the original gift 
 of life to me ? My answer must be to remind you that sub- 
 jective rights are self-limited, 1 their exercise being dependent 
 
 1 Ante, cap. vii. . 
 
326 OF JUSTICE AND CHARITY. 
 
 on the recognition of objective rights. 1 So far from adding to 
 my gifts, my rights, or my liberties, by refusing to recognize 
 those of my neighbour, I should diminish them, or, in other 
 words, render their exercise impossible, to that extent. There 
 is no duty, however painful it may be, and however great may 
 be the amount of immediate self-sacrifice involved in its per- 
 formance, which, when fully understood, is not also a privi- 
 lege, the exercise of which may be claimed as a right. Nay, 
 on the principle of that profound maxim that " it is more 
 blessed to give than to receive," it would seem that the bal- 
 ance of gain is necessarily in favour of him who performs the 
 sacrifice, not of him for whom it is performed. If, with a 
 view to this gain, he seeks for an occasion of self-sacrifice 
 which the rights of his neighbour do not impose on him, he 
 performs a work of supererogation, to which no reward is 
 attached in the order of the universe. He has been guilty of 
 an act of mistaken selfishness, which, like all selfishness, is a 
 loss precisely to the extent to which it oversteps the line of 
 duty. Our duties to others and to ourselves, our own rights 
 and interests, thus fit in exactly. There is no vacant space 
 over, which we can crop with charity and reap for our own 
 private ends. We can no more be selfishly-unselfish than we 
 can be unselfishly-selfish. To the fullest extent, therefore, to 
 which charity is a duty founded on the rights of others, it is 
 thus a duty founded on our own rights. As mankind is con- 
 stituted, the interests of the subject and the object — my rights 
 and thy rights — are inseparable ; and it is only when I carry 
 the exercise of charity beyond the sphere of justice, when I 
 
 1 Ante, p. 236. 
 
OF JUSTICE AND CHARITY. 327 
 
 pass the point at which liberty degenerates into licence, that 
 I begin to squander my means, to abridge my powers, and, in 
 the mistaken belief that I am adding to the means and the 
 powers of my neighbour, commit an act of injustice from which 
 we mutually and equally suffer. Just as we shall see presently 
 that the highest liberty implies the most perfect order, so here 
 the widest charity is identical with the strictest justice. The 
 two culminate in the same point. Beyond this point each 
 sinks into its own opposite, by the weight of the self-contra- 
 diction which all further attempt at its realization involves. 
 Up to this point all is mutual gain, and all sacrifice on either 
 side is merely apparent ; beyond this point all is common 
 loss. 1 
 
 But it will be objected that, according to this view, self- 
 denial and self-interest practically become synonymous. Such 
 unquestionably is the case ; the only difference between the 
 self-interest of which we here speak and that which commonly 
 exhibits itself in the form of selfishness, being that the former 
 is an enlightened self-interest, such as perfect intelligence 
 would prescribe ; whereas the other, always in reality, though 
 not always demonstrably, is unenlightened, and such as only 
 folly or knavery would commend. 2 
 
 1 My late gifted colleague, Dr Robert Lee, talking of this subject to me, said, 
 very truly, that, " when argued out, natural law assumes the precision of mathe- 
 matics. " Would that the same could be said of the concrete factor of positive 
 law ! But it is something surely to be protected against error, even on one side. 
 
 3 This conception of the solidariU of interests, and the possibility of reducing 
 .vice to ignorance, as well as virtue to knowledge, on which so much of the argu- 
 ment in favour of compulsory education rests in modern states, though not acted 
 upon to the,same extent, was as familiar to the better minds of heathendom as of 
 Christendom. — See Plato, Protag., c. 37, sec. 38, etpass. 
 
328 OF JUSTICE AND CHARITY. 
 
 On the very same principle on which " honesty is the best 
 policy," charity, in so far as it is an act of justice, nay, to the 
 full extent to which it is not an act of injustice to others, is 
 self-interest. Nor need we be scared from these conclusions 
 by the consideration that, as mankind is constituted, policy 
 would, in general, be a very unsafe ground on which to preach 
 Charity, or even honesty. It is the shortness of our vision 
 which makes the ground unsafe. If we saw through the 
 whole vista of policy as God sees through it, the ground 
 would be sufficient ; and we should not only, with Kepler, 
 "think God's thoughts," but do God's deeds after Him. 
 
 But though, in preventing the poor of our own neighbour- 
 hood, or our children and near relatives, from diminishing what 
 may be regarded as the common stock of human life and 
 liberty by sacrificing the gifts which God has bestowed on 
 them, we may be fulfilling the requirements of that principle 
 of justice of which life and liberty are the objects, what shall 
 we say when we come to other virtuous acts, to deeds of 
 general philanthropy, or to those special acts of heroic self- 
 devotion by which the rights, the interests, and the liberties 
 of the individual, nay, the individual himself, are freely sacri- 
 ficed for the interests of others ? M. Cousin, following Cicero, 1 
 adduces the instance of Publius Decius and his descendants. 
 The positive laws of most modern states have made charity 
 compulsory, and the laws of all civilized states have enforced 
 the mutual obligations of parents and children ; but no code 
 of laws ever decreed, or could decree, that, for the sake of his 
 country, a man should court death with greater eagerness than 
 1 JDeFin., lib. ii. c. 19. 
 
OF JUSTICE AND CHARITY. 329 
 
 ever Epicurean courted pleasure, still less that three members 
 of the same family in succession should do so. Was the self- 
 devotion of the Decii then, or the martyr-death of Eegulus, 
 we shall say, an act of justice ? We answer the question by 
 another. Was it an act of injustice ? or must we again take 
 refuge in a neutral territory between the just and the unjust ? 
 Or some may perhaps be disposed to say that, though an act 
 of the highest virtue to others, it was an act of injustice to 
 himself. Decius, I reply, was God's creature as much as any 
 other Eoman, and God cannot have so ordered the world as 
 that an act of virtue to one should be an act of injustice to 
 another. If it was an act of virtue at all, it certainly was an 
 act of justice also — the fulfilment of a duty, if not of the kind 
 which men can impose upon men, at all events of the kind 
 which God imposes on heroes and on saints. And yet this 
 error is one which is constantly committed, as, for example, in 
 defending capital punishment, intervention, &c, on the ground 
 of expediency, whilst admitting their injustice. If they can- 
 not be brought within the range of justice they cannot be 
 justified — they are unjust. To suppose the same action to 
 be at once virtuous and unjust would be to justify injustice, 
 to confound virtue and vice. 
 
 The mention of Cicero will recall to many the discussion 
 in the De, Finibus, in which Eegulus is maintained to have 
 been actually happier in the midst of tortures than Thorius, 
 stretched on a bed of roses sipping the choicest wines. In 
 identifying virtue with utility and self-interest, even in this 
 present world, I of course accept this argument to the fullest 
 extent, though I do not deny the tendency which it has to 
 
330 OF JUSTICE AND CHARITY. 
 
 degenerate into a mere logomachy, turning on two distinct 
 meanings of the word " happiness." But what I wish to point 
 out as important for our present purpose, is, that in consulting 
 his real as opposed to his apparent interest in circumstances 
 so painful, Eegulus is represented by Cicero, not as having 
 exceeded, but as having nobly fulfilled his duty. The great 
 philosophic jurist knew nothing of works of supererogation, 
 and the great juristic philosopher knew as little. " It is a 
 mistake," says Kant, not very consistently with his own 
 system, " to suppose that anything a good man may do can 
 surpass his duty." * 
 
 Not satisfied with the few classical instances of the union 
 of self-devotion and duty, of which I had reminded him, my 
 learned friend and colleague, M. Brocher, has invited me to 
 enter with him still further on the field of casuistry, and I 
 cannot decline the challenge of so distinguished and so con- 
 siderate a critic. 2 
 
 Heroes and saints are exceptionally endowed and sustained, 
 and their responsibilities are exceptional in proportion to their 
 gifts. They are, as it were, official representatives of human- 
 ity ; and to say that it was the duty of Begulus to die for his 
 country, is only like saying that in a shipwreck, if the last 
 man cannot be saved, it is the captain's duty to see that he is 
 that man. "Where the question is between death and dishon- 
 our, we do not require to stretch self-interest very far in order 
 to reconcile it with self-sacrifice. But M. Brocher rightly 
 
 1 Theory of Religion, Semple's trans. , p. 58. 
 
 3 In addition to being professor of law in the University, M. Brocher is presi- 
 dent of the Cour de Cassation at Geneva, and it would be difficult to name any 
 living jurist who combines science with experience in so eminent a degree. 
 
OF JUSTICE AND CHARITY. 331 
 
 insists that if the identification of justice and charity, of duty 
 and devotion, of might and right be complete, we ought to 
 find in it a rule of conduct of universal applicability ; and, in 
 order to demonstrate its inadequacy for this purpose, he falls 
 back on the old device of the plank : " If two individuals are 
 thrown by shipwreck on a plank which can save only one, and 
 they mutually endeavour to plunge each other into the abyss, 
 they act on a brutal instinct of self-preservation against which 
 it is vain to inveigh. Impunity is conceivable, but we cannot 
 go the length of commendation. If one of these individuals 
 sacrificed himself to the other, it is he most certainly who 
 should receive our sympathies." Now, to say that, in cir- 
 cumstances so inimical to the exercise of reason, an ordinary 
 human being might be entitled to escape human punishment 
 for yielding to an irrational impulse, no more touches the ques- 
 tion of the ultimate identification of justice and charity, or 
 of might and right, than to say that a madman is entitled to 
 impunity for murdering his keeper. The ground on which 
 impunity would be extended to either case would not be the 
 righteousness of the actor, but the impossibility of ascertaining 
 the presence or measuring the extent of his responsibility. 
 And if in employing the word commendation (louange), M. 
 Brocher supposes that my principle carries me the length of 
 commending the stronger man for pushing the weaker man 
 into the sea, he certainly, as he himself indulgently suggests, 
 has gravely mistaken my meaning. This would be to con- 
 found the spasmodic exercise of ephemeral force with force 
 exercised in accordance with reason ; or, in other words, the 
 fundamental and general with the superficial and exceptional 
 
332 OF JUSTICE AND CHARITY. 
 
 impulses of our nature, to the former of which I have been 
 careful to limit the epithets of might and power. The 
 stronger man, in the circumstances M. Brocher has imagined, 
 would he in one or other of these three positions : (a) He 
 would be self-possessed, as is popularly but not inaccurately 
 said, to the extent of having his exceptional and ephemeral 
 impulses under the control of his general and permanent will 
 — his physical force would be subject to his rational power. 
 In such circumstances it is conceivable that his knowledge 
 of the relative value of his own life and that of his fellow- 
 sufferer, from an absolute point of view, might be such as to 
 enable him to decide the question of life and death between 
 them. It is conceivable that the other man might be a mur- 
 derer under sentence of death, or that he might just have 
 committed a murder, or have been mortally wounded and be 
 already at the very point of death. But it is far more likely 
 that the case would be one in which, in justice and in charity 
 alike to his neighbour and to himself, he ought to commit his 
 own soul to God rather than run the risk of a false decision ; 
 and that his real power, in place of enabling him to push the 
 other from the plank, would give him strength of will to plunge 
 himself into the sea, (&) He would be wholly bereft of rational 
 power, in which case the instinct on which he acted would 
 have no more moral significance than if he had accidentally 
 killed his neighbour or himself. It would be one of those 
 physical occurrences which are outside of the sphere of ethics 
 and jurisprudence, just as much as the storm that caused the 
 shipwreck, (c) He might be partially responsible and partially 
 irresponsible. In this case, whether he drowned his comrade 
 
OF JUSTICE AND CHARITY. 333 
 
 or himself, his act would have that mixed character which 
 belongs to most human actions. But it would fail in justice 
 and in duty, on the one side and the other, precisely to the 
 same extent to which it failed in charity and in devotion ; and 
 if he himself were the survivor, his own after-life would tell 
 him how inseparable were the principles. 1 
 
 1 No mistake could be greater than to suppose that the phenomenon of the in- 
 stinct of self-preservation giving place to loftier motives is one rarely exhibited 
 by ordinary persons. It is rare, on the contrary, to find a soldier or a sailor who 
 does not exhibit it, or who would not be ashamed to regard it as transcending 
 his duty. If it be responsibility that shows the man, as Aristotle tells us, on 
 the authority of Bias (eS So/ce? %x elv T0 T °" jSfai'Tos, SVi apx& rbv &v5pa Seifci, Ethic. 
 Nic., v. 1. 15.), it is danger that tests his fundamental characteristics; and I 
 cannot bring home to my readers more impressively the fact that these character- 
 istics are as I have represented them in the text, than by quoting a few touching 
 lines commemorative of an actual occurrence, which I adduced for a similar pur- 
 pose many years ago. — Inaugural Lecture, 1863, p. 30. A young private in one 
 of our infantry regiments was taken prisoner by the Chinese, and commanded to 
 perform the Koutm, on pain of instant death. - He unhesitatingly preferred the 
 latter alternative. The simple story was told by Sir Francis Doyle, in verses 
 which I hope will preserve a permanent place in our literature : — 
 
 " Last niyjbt, among his fellow-roughs, 
 
 He jested, quaffed, and swore, 
 A drunken private of the Buffs, 
 
 Who never looked before. 
 To-day, beneath the foeman's frown, 
 
 He stands in Elgin's place, 
 Ambassador from Britain's crown, 
 
 And type of all her race. 
 
 Poor, reckless, rude, low-horn, untaught, 
 
 Bewildered and alone ; 
 A heart with Fuglish instinct fraught 
 
 He yet can call his own. 
 Ay, tear his body limb from limb, 
 
 Bring cord, or axe, or flame ; 
 He only knows that not through him 
 
 Shall England come to shame. 
 
 Far Kentish hop-fields round him seem'd 
 
 Like dreams to come and go ; 
 Bright leagues of cherry-blossom gleam 'd 
 
 One sheet of living snow. 
 The smoke above his father's door, 
 
 In grey soft eddyings hung j 
 Must he, then, watch it rise no more — 
 
 Doom'd by himself so young ? 
 
334 OF JUSTICE AND CHARITY. 
 
 (6) The doctrine, of the identity of the principles of justice 
 and charity was taught by Christ's mediatorial sacrifice, and is 
 implied in the whole scheme of redemption. 
 
 The reader will only be giving utterance to a sentiment 
 which has received much prominence from the teaching, not 
 of Christianity, I think, but of Christians, if he should meet 
 the doctrine which I have been enunciating by the question, 
 whether Divine justice be not transcended by Divine mercy ? 
 The act of our creation as fallible beings may fall beyond the 
 sphere of our ethical contemplation, and revelation may have 
 done nothing to bring it within our ken. But have we not 
 been told expressly that the act of our redemption from the 
 just consequences of our sins was a work of supererogation ? 
 The very highest view that has ever been taken by Christians 
 of the merit of good works, the most extreme construction that 
 ever has been put on the Epistle of St James, falls far short 
 of bringing the goodness of God within the limits of justice. 
 
 Yes, honour calls ! — with strength like steel 
 
 He put the vision by ; 
 Let dusky Indians whine and kneel ; 
 
 An English lad must die. 
 And thus, with eyes that would not shrink, 
 
 "With knee to man unhent, 
 Unfaltering on its dreadful Drink, 
 
 To his red grave he went. 
 
 Vain, mightiest fleets of iron fram'd, 
 
 Vain, those all-shattering guns, 
 Unless proud England keep untam'd 
 
 The strong heart of her sons. 
 So let his deed through Europe ring : 
 
 A man of mean estate, 
 Who died as firm as Sparta's king, 
 
 Because his soul was great." 
 
 Once for all, then, it is might of the kind that this poor young fellow exhibited, 
 and not the might that enables one man to push another off a plank, that is iden- 
 tical with right. It is this kind of might which made the colonial empire of 
 England, which, I contend, governs the world, and which I claim as the basis of 
 the de facto system of jurisprudence. 
 
OF JUSTICE AND CHARITY. 335 
 
 According to the theology of all the Churches of the Befor- 
 mation, it is to God's free grace alone, and not to our right- 
 eousnesses — " that are as filthy rags " 1 — that we are indebted 
 for His bounty. Here, then, is surely an instance in point, 
 for the charity of God, in transcending the limits of justice, 
 cannot possibly pass over into the opposite region of injustice. 
 Since God cannot possibly be unjust, there must be some other 
 principle, reconcilable but not identical with justice, on which 
 He acts : some neutral territory between justice and injustice 
 on which His mercy displays itself. But what, in this view, 
 do we make of the merits of Christ which are imputed to us ? 
 of His vicarious suffering for sin, and of our faith in this 
 suffering which is " counted to us for righteousness " ? 2 An 
 argument derived from God's forgiveness of sin, so long as it 
 was viewed by the light of natural religion alone, might have 
 been maintained in support of M. Cousin's doctrine; and it 
 was in this view, that in treating of creation, and of the con- 
 sequent relation of Creator to creature in general, we admitted 
 that the correspondence between rights and duties which 
 governs human relations is there inconceivable. By the 
 light of natural reason we can no more understand why a just 
 God should forgive sin than why a perfect God should permit 
 it ; and if we maintain even the relative character of sin, we 
 are compelled either to despair of forgiveness altogether, or 
 else to take refuge in a merciful God who is willing to sacri- 
 fice justice. But when taken in connection with the scheme 
 of redemption, the Divine clemency, so far from supporting the 
 notion of a possible separation between charity and justice, 
 
 1 Isa. lxiv. 6. a Gal. iii. 6. 
 
336 OF JUSTICE AND CHARITY. 
 
 seems absolutely fatal to it ; for the whole end and object of 
 that scheme was to bring the mercy and long-suffering of God 
 within the sphere of His justice — to reconcile it with justice, 
 or to prevent it, unmerited as it was by mere man, from 
 being unjust. 1 If even God himself cannot, consistently with 
 justice, extend to His creatures a mercy beyond their merits, 
 without falling back on an expedient which is at variance 
 with the ordinary arrangements of His providence, much more 
 must such a proceeding be impossible to creatures who are 
 absolutely bound by these arrangements. In this case, most 
 emphatically, the rule is proved by the exception ; since even 
 the exception is removed by the miraculous interposition of 
 Him who " of God is made unto us righteousness." 2 If justi- 
 fication by free grace on God's part be a mystery, on man's 
 part it is an impossibility ; and human pardon, mercy, charity, 
 and, to sum up all, virtue in every form, must be contented 
 to keep within the pale of the most rigid justice. 
 
 Nor is the case altered if, in place of the ordinary view of 
 redemption as a mysterious buying-off from merited punish- 
 ment, we adopt the deeper, and probably far truer view of 
 it, as progressive deliverance from sin by a growing conscious- 
 ness of the filial relation in which we stand to God, and con- 
 sequent acceptance of His will. For, if mercy be dependent 
 on, and proportioned to, the extent to which man is thus 
 purified from sin by reunion with the Divine, then is mercy 
 plainly coincident with justice, and this equally by whatever 
 means this reunion may have been effected. The regenerated 
 creature, the new man in Christ, in so far as the original 
 1 Matt. v. 17, 18 ; Luke xvi. 16, 17; Eom. iii. 31. 2 1 Cor. i. 30. 
 
OF JUSTICE AND CHABITY. 337 
 
 image in which he was formed is restored to him, has become 
 entitled to mercy, or, in other words, the mercy which is ex- 
 tended to him has become justice. The act of grace, like the 
 origin of sin, " passeth all understanding," and remains unex- 
 plained. But its reality, which to a certain extent may be 
 tested even by objective evidence, being admitted, it lays a 
 logical foundation for what is technically called " absolution.'' 
 The wew-man can claim absolution on the de facto principle. 
 God has given him a right to it, in place of giving it to him 
 without right, or contrary to right. 
 
 Nor was the doctrine of the unity of justice and mercy 
 peculiar to the New Testament. "Those who conceive of 
 justice as opposed to mercy," says Mr Erskine, 1 " must regard 
 the Psalmist's utterance, ' Also unto Thee, Lord, belongeth 
 mercy, for Thou renderest to every man according to his 
 works,' 2 as a complete subversion of the meaning of words ; 
 and I have sometimes thought they must be tempted to con- 
 jecture that the copyist has, by mistake, substituted the word 
 •mercy for justice. They have been accustomed to suppose 
 that nothing worse could befall them than that God should 
 render unto them according to their works, and their hope in 
 His mercy has just been the hope that He would not so deal 
 with them ; the idea, therefore, that mercy itself will render 
 unto them according to their works, seems to be the annihila- 
 tion of all hope." 
 
 " I believe," he continues, " that all this is founded on mis- 
 apprehension, and that in God mercy and justice are one and 
 the same thing, — that His justice never demands punishment 
 
 1 Spiritual Order, p. 71. 2 Psalm Ixii. 12. 
 
 Y 
 
338 OF JUSTICE AND CHARITY. 
 
 for its own sake, and can be satisfied with nothing but right- 
 eousness, and that His mercy seeks the highest good of man, 
 which certainly is righteousness, and will therefore use any 
 means, however painful, to produce it in him. If men could 
 understand that God's purpose, in rendering to them according 
 to their works, is to instruct them in the true nature and 
 character of their works, that so they may apprehend the 
 eternal connection between sin and misery, between right- 
 eousness and blessedness, and thus be led to flee from sin 
 and take hold of righteousness, they would also understand 
 that it is in mercy that He deals thus with them, and that, 
 in fact, the purposes of mercy can in no other way be ac- 
 complished." 
 
 " I know that I should be a minister of good to many if I 
 could help them to apprehend that this is the meaning of 
 God's justice, and therefore that it is to be as much trusted as 
 His mercy. They have been accustomed to look upon Christ 
 as their Saviour, because He has delivered them from justice 
 by suffering the penalty which it denounced against them, 
 whilst, in truth, He is their Saviour, by revealing to them that 
 justice is their friend, being only the enemy of their enemy.'' 
 
 It is in the direction of separating justice from mercy, as 
 here indicated, rather than of separating mercy from justice, 
 that the ordinary teaching of Christianity has gone most 
 widely astray. That God could not be merciful without being 
 just seems always somehow to have been admitted, however 
 irrationally it might be explained ; but that He might be just 
 without being merciful was, and is still, strenuously contended 
 for. Of all the fruits of this unhappy severance of the Divine 
 
OF JUSTICE AND CHARITY. 339 
 
 attributes, the bitterest surely has been the belief in a region 
 of final reprobation from which mercy is for ever shut out, 
 and to which those who are impenitent in this world are 
 condemned for ever, not for their good or for any good — not, 
 indeed, with any object at all, except simply the satisfaction 
 of what is called " God's justice." I say " belief ; " for as we 
 cannot penetrate into each others' minds, I am bound to accept 
 as the beliefs of others what they tell me they believe, however 
 little they may be in accordance with their conduct. But 
 often and earnestly as I have heard this doctrine preached, I 
 should be guilty of great dishonesty if I were to say that I 
 ever believed it. And the longer I live the less consistent 
 does it seem to me with the teaching of Him who said that 
 " His yoke was easy and His burden light." I have been ac- 
 cused of being " one of those who are terribly at ease in Zion." 
 But I cannot but think that much of the uneasiness which 
 many suffer, with reference both to this world and the next, 
 arises from their believing too little in God and too much in 
 the Devil. 
 
 (c) The doctrine of the identity of justice and charity was not 
 first 'promulgated by Christ, and is not exceptionally Christian. 
 
 Truth is one and eternal. No truth, then, no portion or 
 aspect of truth, no doctrine that is true, can be either excep- 
 tional or new. Moreover, to ascribe either the revelation of 
 truth to mankind, or its recognition by mankind, to a partic- 
 ular epoch, is to cut off humanity of the previous time from 
 the Divine element which constitutes the human charac- 
 teristic, and to interrupt the current of human identity. 
 More definite and consistent revelation from within and 
 
340 OP JUSTICE AND CHAEITY. 
 
 from without, clearer recognition and fuller acceptance of 
 the truth, and not the discovery of novelties, are the pheno- 
 mena of progress in all those departments of science which 
 have man for their object. I altogether repudiate the division 
 of the history of mankind into epochs in which man was and 
 was not conscious. Man, as such, is a conscious being. An 
 unconscious man is a contradiction in terms ; and — inasmuch 
 as the doctrine in question is a revelation of consciousness, 
 as well as of external observation, and of the word — I no 
 more agree with those who maintain that Christ first taught 
 that charity was a duty, than with those who date fraternity 
 from the French Revolution, or with Hegel when he says 
 that "the mandate know thyself was first given to the 
 Greeks." l 
 
 But if this was so, the doctrine in question must have a 
 place in the history of opinion. We find, accordingly, that 
 it was pre-eminently the doctrine of that ethical school which 
 I regard as representative of what, more or less definitely, 
 have always been the central beliefs of mankind. Nor is 
 there any doctrine in their adhesion to which the disciples 
 of Socrates followed his leading more unswervingly, or with 
 reference to which they were more unanimous. I am aware 
 that in this, as in so many other directions, an attempt has 
 been made to separate Aristotle 2 from the other members of the 
 Socratic school ; and his divergence in so important a matter, 
 if real, would, in so far as ethics are concerned, no doubt place 
 
 1 Phil, of Hist., p. 230. That it was given to those from whom the Greeks 
 sprang is, at any rate, a historical fact. — Ante, pp. 98, 116, 122. 
 
 2 Zeller's Socrates and the Socratic Schools, Eng. trans., p. 120 ; Grant's Aris- 
 totle, vol. i. p. 163. 
 
OF JUSTICE AND CHARITY. 341 
 
 him amongst the imperfect Socratics. The case is one in which 
 it is difficult to reconcile the various expressions ascribed to 
 him, so as to discover what Aristotle's opinion really was. My 
 own impression is, that his objection to the manner in which 
 Plato states the prevailing opinion arose merely from his 
 sense of the danger which there was of the analytical ex- 
 amination of the virtues, as separate manifestations, being 
 abandoned in consequence of their fundamental identification ; 
 and that, on this, as on all other occasions, he stepped 
 forward as the champion of the analytical method. This 
 view is strongly supported by the remarkable passage in the 
 Nkom. Ethics (v. i. 15), in which he speaks of 8u«uo<rvvr) as 
 TcAeia //.dXio-ra apcr-q, and as comprehending the others, 1 a pas- 
 sage which, to the mind of Thomas Aquinas, seemed not 
 only to settle the opinion of Aristotle, but which greatly 
 influenced his own view as to the inseparable character of 
 the virtues. 2 
 
 As Sir Alexander Grant disputes the genuineness of the 
 fifth Book, his argument is not wholly invalidated by this 
 passage, though it is seriously weakened by it in consequence 
 of his admission that even the Eudemian Ethics are not an 
 independent work, but merely Eudemus's " exposition of the 
 theory of Aristotle, slightly modified by his own views." 
 That Eudemus should have misunderstood Aristotle, or that 
 he wholly dissented from his views and silently and inten- 
 
 1 Afrrij pxv ofai i) Btnaiotritvri ov ficpns iperfc, aWa ffAij dpertj iarXv. ovi' i] hmnlA 
 aSttcia, litpos KaKias, 4AA" 3A.J7 Kaicla. — Nicom. Ethics, v. i. 19. 
 
 2 " Virtutes morales perfectas necesse est ad invicem connexas esse, ut altera 
 sine altera esse non valeat." — Prim. Sec, quaes. Ixv. art. 1. And as to their 
 relation to justice, v. Sec. Sec, quaes. Iviii. art. 6 and 12. 
 
342 OF JUSTICE AND CHARITY. 
 
 tionally misrepresented them on a subject so often discussed 
 in the school, are neither of them probable solutions of the 
 difficulty. But be this as it may, if there be any single 
 opinion that is traceable to Socrates personally, it would seem 
 to be that of the unity of the virtues ; and this instance, 
 though by no means the only one, is perhaps one of the most 
 remarkable, of the extent to which the views ascribed to 
 him by tradition were anticipations of the teaching of Christ. 
 I might refer to many passages in Xenophon, and also in the 
 Eepublic and the Laws ; but I shall select one which, be- 
 longing to the earlier Dialogues, is more unquestionably So- 
 cratic, and which has the farther advantage of taking up 
 the discussion more directly in the aspect in which I have 
 presented it. 
 
 The main point at issue between- Socrates and Protagoras, 
 in the dialogue which bears the arch-sophist's name, is almost 
 identical with that which we have just been discussing with 
 M. Cousin, and the solution which Socrates forced on his 
 reluctant antagonist is precisely that at which M. Cousin 
 might have arrived by a surer way than any that was open 
 to Protagoras. The earlier portions of the dialogue contain 
 perhaps the most vivid picture of the intellectual life of 
 Athens to be found in the whole range even of these 
 marvellous productions. The gayest banter is mixed with 
 the deepest wisdom ; whilst the sharpest satire that ever 
 perhaps was turned against human pretentiousness and self- 
 sufficiency is tempered, as it always is by Socrates, not only 
 by an urbanity which would have done no discredit to the 
 best days of chivalry, but by a forbearance and charity which 
 
OF JUSTICE AND CHARITY. 343 
 
 would have done great honour to the milder times in which 
 we live. At last the point is reached at which Socrates, in 
 a manner the least likely to alarm him, and, as it were by 
 the way, places the Sophist face to face with the main 
 difficulty. "But still, Protagoras, I am a little at fault in 
 a small matter, which I must ask you to clear up for me, 
 if you would have me complete. You say that virtue 
 admits of being taught; and if I could be persuaded of 
 it by any man, I should be persuaded of it by you. But, 
 whilst you have been discoursing, there is a matter which 
 has puzzled me, and regarding which I beg that you will 
 set my sold at rest. You say that Zeus sent justice and 
 modesty to men ; and frequently, in the course of the 
 discussion, you have spoken of justice, and temperance, and 
 piety, and the like, as if taken together they were one — 
 namely, virtue. Tell me then plainly whether virtue is a 
 unity (h), of which justice, temperance, and piety form 
 component parts (jwpia), or whether these are all but differ- 
 ent names for that same unity, which bears also the name 
 of virtue. It, is this which I miss in your discourse hith- 
 erto." "Nothing is more easy, my good Socrates, than to 
 answer that question ; for, virtue being one, those qualities 
 of which you speak are clearly parts of it." " But whether," 
 I said, " are they parts of it in the sense in which the 
 features of the face, the mouth, the nose, the eyes, the ears, 
 are parts of the face ; or, in the sense in which portions of 
 gold which differ neither from each other, nor from the 
 whole, except in size, are parts of the mass of gold which 
 they compose ? " " As the features are parts of the face, 
 
344 OF JUSTICE AND CHARITY. 
 
 Socrates, so it appears to me." "Do some men, then," I 
 asked, "possess one, and others another, of these parts of 
 virtue, or must he who has one have all ? " ". By no means," 
 he replied ; " since many are brave without being just, and 
 just without being wise." "Are wisdom and courage, then, 
 also parts of virtue ? " " Above all," he said, " wisdom more 
 especially, seeing that it is the greatest of all the parts.'' 
 " Each of them is different from the other ? " " Certainly ! " 
 " And each of them has a special function, like the features 
 of the face ; for the eye is not like the nose, nor is its 
 function the same ; neither of the others is one like another, 
 either in the function which belongs to it or any other 
 respect. Is it so, also, with the parts of virtue ? Is no one 
 like another, either in its function or in any other respect ? 
 Plainly it must be so, if our example holds." "It is so, 
 Socrates," he replied. " And," I continued, " then none of 
 the other parts of virtue resemble knowledge, or justice, or 
 courage, or temperance, or piety ? " " None of them." " Come 
 along, then, and let us inquire together what each of them is 
 like ; and, first, after this fashion : Is justice anything or 
 nothing ? I hold it to be something ; what say you ? " "I 
 agree with you." " How, then, if any one were to say to us, 
 Tell me, Protagoras and Socrates, is this thing which you 
 call justice a just thing or an unjust thing ? I would answer, 
 a just thing. What vote would you give ? the same, or a 
 different one ? " " The same," he said. 
 
 A similar inquiry is instituted regarding piety — it, too, is 
 a thing, and a holy thing ; and Protagoras, on the principle 
 that things which are equal to the same thing are equal to 
 
OF JUSTICE AND CHARITY. 345 
 
 one another, is dragged into the admission, first, of the 
 similarity, and, at last, of the identity of virtue and its 
 component parts. The dialogue exhibits, at many of its 
 turns, that almost oriental subtilty, which proves how 
 entirely the great opponent of the Sophists was master 
 of their weapons. For a time, in common with Protagoras, 
 we almost lose the direction of the current ; but, again, a 
 little further on, the way we have made shows plainly 
 enough how the stream has been running. " What then, 
 Protagoras, should we reply to our interrogator if he were 
 to ask us, Is piety then not a just thing, nor justice a 
 holy thing ? " Protagoras is painfully alive to the turn 
 of affairs, but he rallies wonderfully. Even opposites, he 
 alleges, have a certain resemblance ; and so the virtues, though 
 neither identical nor like, are not without certain elements of 
 resemblance. " And have justice and piety," I exclaimed, in 
 amazement, " according to your view of the matter, only a 
 slight resemblance to each other ? " Protagoras exhibits an 
 unmistakable desire to change the subject, and Socrates 
 gratifies him, or rather seems to do so. Nearly half of the 
 dialogue passes ; and when the subject is resumed (in the 
 33d chapter) Protagoras takes his stand on courage. All 
 the virtues resemble each other pretty closely, it must be 
 allowed, except courage ; but nothing is more common than 
 for the bravest man to outrage justice in the most flagrant 
 manner. The exceptional instance is chosen with infinite 
 skill, and seems far more likely to carry him through than 
 that which M. Cousin selected. But the relentless and 
 insatiable dialectic of his opponent was not to be robbed of 
 
346 OF JUSTICE AND CHARITY. 
 
 its prey. Courage is distinguished from rashness, the former 
 being resolved into knowledge, the latter into ignorance, of 
 what is truly terrible ; and, in this respect, having the very 
 same origin as cowardice. But evil alone, it had already 
 been admitted by all, is truly terrible ; and, farther, that no 
 man chooses evil except from ignorance. No man therefore 
 knowingly chooses the truly terrible. .In choosing what 
 seems to the ignorant to be terrible, therefore, the brave man 
 simply chooses what he knows to be good. But to choose 
 the good knowing it to be such, is to exercise wisdom. 
 Courage is thus only another name for wisdom ; and the 
 Sophist, who has declared again and again that wisdom is 
 the chief of aU the virtues, handsomely owns himself beaten, 
 and ends by telling Socrates that he always maintained that 
 he was a promising youth, with whom he gladly conversed, 
 and that he would not be greatly surprised if he were one 
 day to acquire some reputation for wisdom. 
 
 The views entertained by Socrates on the relation of virtue 
 to what are commonly regarded as its component parts, 
 as exhibited in this, and other parts of Plato's dialogues, 
 may be thus summed up : Virtue is not an aggregate of 
 separate elements, neither is it a generic term for objects 
 resembling each other only in their common participation 
 in one single element, however important ; and when .we 
 speak of the virtues, distinguishing them into courage, tem- 
 perance, piety, and the like, we do not mention the parts of 
 a divisible whole (e.g., of a lump of gold), but the different 
 phases in which an indivisible whole (the quality of gold) 
 exhibits itself. 
 
OF JUSTICE AND CHARITY. 347 
 
 The Aristotelian doctrine that the soul is all in the whole, 
 and all in every part, 1 finds its precise analogue in the case 
 of virtue : it is all in the sum and all in each of the virtues. 
 There can be no justice .without temperance, nor temperance 
 without justice, nor piety without both justice and temperance, 
 &c. Each virtue involves every other and all the others ; and 
 in exhibiting itself, it exhibits not itself alone, but virtue, the 
 good (to ayaOov), the idea, one and indivisible, and it is thus 
 that we arrive at a philosophical explanation of the dictum 
 that " he who hath sinned against one part hath broken the 
 whole law," 2 which, as Thomas Aquinas has remarked, finds 
 its counterpart in Cicero's saying in the Tusculan questions, 
 " Si unam virtutem confessus es te non habere, nullam necesse 
 est te habiturum." 3 It was on the same principle that the 
 Gnostics maintained that each of the Divine attributes pre- 
 sents the whole essence of Divinity under one particular aspect, 
 and may thus appropriately be called God. 4 Thus, then, we 
 perceive the ground on which, according to Plato, charity 
 and mercy fall within the sphere of justice, and, following 
 out his views, when we speak of justice as embracing the whole 
 field of ethics, we regard it as corresponding to that phase of 
 the good in which it exhibits itself as a harmony in human 
 relations. Even when we quit this phase, the essential whole- 
 ness of the good necessitates the presence of justice in the 
 other phases of its manifestation. Adoration is nothing more 
 than a just recognition of the Divine perfections, for whatever 
 indulgence our helplessness may require of God, He can re- 
 
 1 Hamilton's Lectures, vol. ii. p. 9. 2 Rom. xiii. 8 ; Gal. vi. 2. 
 
 a Prim. Sec, quaes, lxv. art 1. 4 Neander, vol. ii. p. 11. 
 
348 OF JUSTICE AND CHARITY. 
 
 quire none from us. If we could satisfy His justice, He 
 would be satisfied. Even the sphere of the intellect by no 
 means excludes the good or its manifestations in the form of 
 justice. Not only the speech of philosophers, but the lan- 
 guage of Greece itself coupled the beautiful and the good. 
 In our own country, Price and Wollaston and others have 
 identified truth with justice, and we have the highest of all 
 authority for joining truth to righteousness. Truth is to 
 knowing what righteousness is to doing. If righteousness 
 consist in acting or suffering, truth consists in knowing or 
 thinking, in accordance with justice. 1 Even popular speech 
 marks the coincidence. "When a Frenchman wishes to say 
 that a thing is true, he says, C'est juste. And in like manner 
 beauty — art — which is truth presented to the senses, "the 
 divine made visible," as Hegel finely said — resolves itself 
 into justice in proportion and colour. Moreover, truth resem- 
 bles virtue in this, that it is not a mere aggregate of separate 
 and unconnected truths, a vast and ever -swelling mass of 
 inorganic fact, falling now within and now without the pale 
 of what may be called intellectual justice. On the con- 
 trary, it is one and the same quality of rectitude, exhibiting 
 itself in numberless instances, unveiling itself in manifold 
 aspects. Every fresh discovery is simply an additional 
 revelation of the cosmic relations of the special depart- 
 ment of the universe to which it belongs : it is a revela- 
 tion, not of truth which differs from, but of truth which 
 harmonizes with, nay, the moment it is discovered, is felt 
 
 1 The one is the ^fl»c)) dperij, the other the Siovo^tik)) dper^ of Aristotle. 
 
OF JUSTICE AND CHARITY. 349 
 
 to be inseparably and indissolubly allied to all that was 
 known to be truth before. If it were not felt and seen to 
 be so, we should have in that single fact a certain proof either 
 that the new truth was no truth, but rather a contradiction 
 of truth, or that the old truth must be dismissed as an 
 exploded error. 
 
 "Were I to attempt to enumerate all the errors, theoretical 
 and practical, into which mankind have been led by the nar- 
 row and unworthy view of justice in its relation to the other 
 virtues, and the consequent distinction between perfect and 
 imperfect obligations, against which I have here contended, 
 I should have to travel through every department of science 
 which is occupied with the relations either of man to man, 
 or of man to God. To point out the effect of these errors on 
 the development of jurisprudence as a science will form one 
 of my chief objects in the concluding chapters of this treatise ; 
 and in our studies of positive law there is no department in 
 which we shall not come upon numberless illustrations either 
 of the practical repudiation of the negative doctrine, or of the 
 disastrous consequences of its application. As illustrations 
 of the former, I have mentioned the laws which, in all 
 municipal codes, impose duties on the potent towards the 
 impotent members of the community, whether that impotence 
 arises from age, from imbecility, or from poverty ; and as an 
 illustration of the latter, the unworthy conception of interna- 
 tional duty which so often leads neighbouring states in the pres- 
 ence of war, which they might have prevented or which they 
 might terminate, to accept neutrality as their normal attitude. 
 
350 OF JUSTICE AND CHARITY. 
 
 Another illustration, which will readily occur to Scotch law- 
 yers, is to be seen in the false distinction between law and 
 equity, which, for many generations, has given so confused 
 and unscientific a character to the municipal jurisprudence 
 of our English fellow-countrymen. 
 
BOOK II. 
 
 OF THE OBJECTS OF NATUKAL LAW, ASTD 
 JUKISPKUDENCE IN GENEEAL 
 
CHAPTEE I. 
 
 OF THE RELATION BETWEEN JURISPRUDENCE AND ETHICS. 
 
 A SSUMING, for the present, that the inseparable relation 
 between jurisprudence and ethics has been sufficiently 
 demonstrated, let us now inquire somewhat more closely into 
 the character of that relation. 
 
 The relation which subsists between jurisprudence and, as a 
 necessary consequence, between natural law and ethics, is deter- 
 mined by the . definition of the objects of jurisprudence and of 
 natural law, ultimate and proximate. 
 
 (a) The ultimate object of jurisprudence is the realization of 
 the idea in the ideal 1 of humanity, the attainment of human 
 perfection (VollJcommenheit), and this object is identical with the 
 object of ethics when regarded exclusively as a human science. 
 
 (b) The proximate object of jurisprudence, the object which it 
 seeks as a separate science, is liberty. But liberty, being the 
 perfect relation between human beings, becomes a means towards 
 the realization of their perfection as human beings. Hence juris- 
 prudence, in realizing its special or proximate object, becomes a 
 
 1 The idea is the conception {Urbegriff), and the ideal the thing conceived 
 {UrUld); the former is abstract, the latter concrete. 
 
 Z 
 
354 OF THE RELATION BETWEEN 
 
 means towards the realization of the ultimate object which it has 
 in common with ethics. 
 
 In conformity with the limited scheme which the character 
 of this work imposes on me, I terminated, in last chapter, the 
 consideration of the sources of jurisprudence — of the teaching 
 of nature with reference to human relations, — and, in their 
 primary aspect, of the laws or principles of jurisprudence 
 which result from this teaching. My chief object in the 
 discussions into which this portion of our subject has led 
 us, has been to exhibit the inseparable relation, not only be- 
 tween natural law and positive human law in all its branches, 
 but between the science of jurisprudence as a whole, embrac- 
 ing both natural and positive law, and that still wider and 
 more general science which comprehends all the other human 
 sciences, and assigns to them one final end — I mean the 
 science of ethics 1 in its widest human sense — that is to say, 
 in the sense of the science of human life and of human pro- 
 gress, social and individual. 
 
 It now becomes my duty to point out, if possible more ex- 
 plicitly than I have done hitherto, the characteristics which 
 distinguish that particular human science with which we are 
 occupied from this all-embracing science, and from the cognate 
 branches which grow with it on the same parent-tree. In 
 addressing myself to this task, 1 pass from the sources and 
 genesis to the sphere and objects of the science of jurisprudence. 
 From the whole view which we have taken of the nature of 
 
 1 I have here attached to ethics the sense advocated by Krause, p. 40, Ahrens, 
 pp. 123 and 136, and which is generally attached to it by later German writers. 
 — See "Warnkonig, Encyc, p. 7. 
 
JURISPRUDENCE AND ETHICS. 355 
 
 our rights, and of the manner in which our duties arise, the 
 reader is of course prepared for the announcement that, in my 
 view of the matter, the object of jurisprudence, in so far as it 
 is a science separate from the great science of human life, may 
 be embraced in a single word — a word dear and venerable to 
 all men, but of all men most dear and venerable to us — 
 Liberty. Jurisprudence, in its special capacity, does not profess 
 to give us strength, knowledge, happiness, or virtue ; but it 
 professes to supply, or rather to vindicate, a condition 1 which 
 is inseparable from the attainment of them all, and in which 
 all the other conditions of their attainment are summed up — 
 the free exercise of the powers which God has bestowed on us. 
 
 The root of all subsequent individual rights, liberty is the 
 end and object of all citizen-duties. 2 
 
 The relation in which jurisprudence stands to ethics is thus 
 a subordinate one, the relation of species to genus ; 3 whilst 
 under the species again, as we shall see hereafter, are ranged 
 as individuals the various departments of positive law. But 
 though jurisprudence, embracing of course both natural and 
 positive law, be subordinated to ethics on the ground that it 
 professes to contribute to the perfection of humanity only in 
 one direction, the contribution which it offers partakes of the 
 full ethical character, so far as it goes. Liberty, the proxi- 
 mate object of jurisprudence, is perfection, absolute perfection, 
 
 1 Krause, p. 47. — Das Reoht soil die Bedingungen des Vernunftlebens herstellen. 
 
 2 "There is," says Kant, "but one congenital right — Freedom" (Mnleitung, 
 p. xlv.) " La fin de l'^tat," says Spinoza, " est done veritablement, la liberty " 
 (i. p. 218). "Justice," says Hegel, "is the reign of liberty realized."- — Ahrens, 
 pp. 77-79, passim. 
 
 3 Krause, p. 40. 
 
356 OF THE RELATION BETWEEN 
 
 ideal perfection, not in the beings or objects related, it is true, 
 but in their relations to each other. 1 
 
 Whether an absolutely perfect relation be realizable be- 
 tween imperfect beings may indeed be questioned, because 
 one of the consequences of their imperfections will obviously 
 be to hinder the realization of the relation, or to disturb it 
 when realized. But a perfect relation, apart from the char- 
 acter of the objects related, is at any rate conceivable in the 
 abstract, and with its attainment the ideal of jurisprudence, 
 its object as a separate branch of science, is exhausted ; 
 whilst the function of positive law, or of jurisprudence as a 
 practical art, consists in approximating to this perfect or ideal 
 relation. If one man be a saint and another man a sinner, if 
 one man be a sage and another man a simpleton, jurispru- 
 dence accepts them just as mathematics accepts numbers and 
 spaces, and declares the relations in which they stand to each 
 other ; whilst positive law, taking the conditions of time and 
 place into account, assigns to them the specific rights and re- 
 sponsibilities which relatively belong to them, prefers them and 
 subordinates them, rewards them and punishes them, ranks 
 them, in short, just as the engineer determines the greater 
 weight which shall be laid on the stronger beam, or the ac- 
 countant measures pecuniary relations by pounds and pence. 
 
 But though to jurisprudence, as such, the character of the 
 objects with the relations of which it deals, is thus, formally 
 
 1 Krause points out that law in general (das RccM) is not a thing in itself 
 ( Wesen), but a quality (Eigenschaft) ; and not an absolute quality, like virtue 
 (qualitas absoluta), but a relative quality (gualitas relative/,). Viewed as an 
 adminicle of virtue, however, it assumes an absolute character, and becomes, in a 
 subordinate sense, an Eigenschaft, as opposed to a Verhaltniss. — Krause, pp. 29, 30. 
 
JURISPRUDENCE AND ETHICS. 357 
 
 so to speak, a matter of indifference, it is not less clear, on the 
 other hand, that by perfecting their relations, jurisprudence 
 tends, in a most important manner, to perfect the objects or 
 persons related, 1 and that it thus acts as a means towards the 
 attainment of the ultimate object of human existence — the 
 end which it has in common with ethics. It is from failing 
 to distinguish between the relation and the objects related, 
 more, I believe, than from any other cause, that the difficulty 
 of distinguishing between jurisprudence, and as a necessary 
 consequence natural law, and ethics has arisen ; whilst it is 
 from failing to perceive the identity of their ultimate ends, 
 that those who have distinguished them have so often fallen 
 into the opposite and still more fatal error of separating them 
 altogether, and almost of opposing them to each other. 
 
 But is liberty an. object peculiar to the science of juris- 
 prudence, and, above all, does it constitute a distinction be- 
 tween it and the science of ethics ? Ethics too, it may be 
 said, has liberty for its object ; and this not as a means to 
 some final and ultimate end, but as its own special end. Now 
 there is a narrower sense than that in which I have used the 
 term ethics — as identical with the science of human life as a 
 
 1 Take, for example, the case of landlord and tenant. Is it not obvious that 
 whilst the immediate object which law contemplates with reference to them is to 
 perfect the relations in which they stand to each other, by giving free scope to 
 the energies of each, this object, if attained, would have the effect of improv- 
 ing them as men and as citizens, and would thus contribute to the ultimate 
 object in which law and ethics come together ? This consideration furnishes, in 
 my opinion, a sufficient answer to Professor Rbder's allegation (Neure Ecckts- 
 filosofie in England, p. 224) that, in retaining liberty as the object of jurispru- 
 dence, I separated law from ethics, and returned to the negative school of Kant. 
 It was not in its end, but in its means that Kant's was a negative school. — Infra, 
 p. 366, note. 
 
358 OF THE RELATION BETWEEN 
 
 whole — a sense in which the term has no doubt been used, 
 both in the ancient and the modern world, and which unques- 
 tionably justifies this remark. To deliver the true, general, or 
 normal nature of the individual from the restraints which his 
 false, exceptional, or abnormal nature imposes upon it, was 
 the professed object of the ancient moralists. Liberty, in this 
 sense, is expressly stated by Epictetus to have been the end 
 of his ethical system ; and this end, variously understood, has 
 been sought, more or less exclusively, by every subsequent 
 moralist whose system had any practical drift at all. Eecog- 
 nizing this fact, it has been common with many x who have 
 attempted to draw a line of demarcation between jurispru- 
 dence and ethics, to say that the one is concerned with ex- 
 ternal liberty and the other with internal liberty ; or, in 
 other words, that the object of jurisprudence is to deliver us 
 from the restraints imposed on us by others, and the object 
 of ethics to deliver us from the restraints which we impose 
 upon ourselves. 
 
 Further, as the subjective impediments to liberty being 
 self-imposed must be self-removed, ethics as a system, it has 
 been said, consists of the rules by which each individual seeks 
 to effect this object for himself — the " private ethics " of Ben- 
 tham ; whereas jurisprudence consists of the rules by which 
 he protects himself, or is protected by others, from impedi- 
 ments from without. In this view of the matter ethics 
 stands to jurisprudence pretty much in the relation in which 
 municipal law stands to international law. As municipal law 
 governs the internal, and international law the external re- 
 1 Kant, Semplo, p. 175. 
 
JURISPRUDENCE AND ETHICS. 359 
 
 lations of the state, so ethics governs the internal, and juris- 
 prudence the external relations of the individual. But, viewed 
 in this light, it is plain that ethics, in place of heing a wider 
 and more general science with an ulterior end of its own, 
 becomes neither more nor less than a branch of the science of 
 jurisprudence, and a branch which, the moment that it is 
 embraced. as part of the teaching of a particular sect, whether 
 philosophical or religious, assumes the character of positive 
 law. It is a system of law differing from other systems in 
 the domain which it governs and the tribunals by which it is 
 enforced, but having essentially the same objects — the attain- 
 ment not of perfection directly, not of the final end of life in 
 itself, but of freedom as a means to that end, or of order, 
 which, as we shall see presently, is a means to freedom. 
 Systems of rules of this description have often been devised, 
 their object being to give freedom to the normal impulses of 
 humanity within the subjective domain ; and to these systems 
 the character of positive law has been recognized as belonging, 
 not by implication merely, but expressly. It was of such a 
 system that Epictetus said, " Whatever directions are given 
 you, look upon them as so many laws, which have binding 
 power, and such as you cannot without impiety depart from." 1 
 Now, if there be anything to be gained by confining to 
 systems of this particular class the term ethics, and inventing 
 another term for the general science under which all systems 
 for the government of human action -fall, and which assign to 
 them their common end, I have no objection to that proceed- 
 ing. But I object to the ethical character, however we may 
 
 1 Stanhope's trans. 
 
360 OF THE RELATION BETWEEN 
 
 choose to designate it, being arrogated to themselves by these 
 subjective systems, whilst the other co-ordinate systems, which 
 deal more prominently with external liberty, are handed over 
 to the science of jurisprudence, as if these two sciences were re- 
 ciprocally exclusive, and covered territories the confines of one 
 of which commenced only where those of the other terminated. 
 The laws which govern the relation of citizen to citizen, of 
 state to citizen, and of state to state, are ethical laws, because 
 their ultimate end is perfection, just as much as the avi^ov ml 
 airixov, the mstine et dbstine, or any other rule for the guidance 
 of individual conduct. 
 
 And as ethics embraces the whole field of jurisprudence, so 
 there is no portion of the domain of ethics from which the 
 ministration of jurisprudence, by its own special means — the 
 attainment of liberty through the instrumentality of order — 
 is necessarily or scientifically excluded. It may be that the 
 state can give little aid to the individual in applying or en- 
 forcing the rules by which his own liberty demands that his 
 conduct should be regulated. In the higher races of mankind, 
 at all events, personal activity and industry, whether bodily 
 or mental, can be but little stimulated by social appliances ; 
 and these, in the normal conditions of life, are called forth most 
 effectually by the compulsitors of necessity, and the induce- 
 ments of wellbeing. But, even in free states, labour is made 
 a condition wherever public charity is bestowed on the able- 
 bodied; and education, the search after and dissemination of 
 truth, as opposed to the acceptance of dogma, is enforced by 
 the policy of the most advanced states in Europe. Then take 
 the negative virtue of temperance. It may be impossible to 
 
JURISPRUDENCE AND ETHICS. 361 
 
 enforce it by positive law. That is a question of fact relative 
 to which there is much difference of opinion ; and according 
 as we decide it affirmatively or negatively, will be our view 
 as to the expediency or inexpediency of enactments having 
 the enforcement of temperance for their object. To interfere 
 with the use of God's gifts is an interference with liberty, and 
 the question as to the limits of use and abuse is one which 
 the community may possibly be incompetent to solve by any 
 general rule. But suppose those limits passed, interference to 
 prevent a repetition of the offence, assuming prevention to be 
 possible, would be an interference in favour of the liberty of 
 the victim of intemperance, and consequently in accordance 
 with the principles of jurisprudence. Nay, very possibly it 
 might be an interference in accordance with his wishes, for 
 there seem to be cases where men (individually or collectively) 
 say, " I am weak and wish to be protected against my own 
 weakness. I should be glad of a law which made it more 
 difficult for me than is now the case, to gratify my inclina- 
 tions in the direction of wrongful indulgence." Or, again, 
 the reformation of the individual offender may or may not 
 be attainable by means of punishment ; but nobody doubts 
 that it may be legitimately sought by that means, and that 
 here too, even positive law may come, if it can, to the aid of 
 those ethical rules by which the subjective domain is more 
 ordinarily governed. The object of our study of natural law 
 is wholly mistaken when it is said to be to define the sphere 
 of jurisprudence, meaning thereby positive law. That sphere 
 can be defined only by a study of the conditions of time and 
 place in which its definition is sought. It belongs to national 
 
362 OF THE KELATION BETWEEN 
 
 politics. But natural law gives the direction, though it does 
 not assign the limits of positive law. 
 
 There is another ground, analogous to that I have just 
 mentioned, on which an attempt has been made to distin- 
 guish the sphere of jurisprudence from that of ethics. It 
 is said that it takes cognizance of actions alone, not of 
 thoughts, opinions, or intentions : that it will neither vindi- 
 cate for me the power of thinking freely, nor protect you 
 against such evil and malicious thoughts as I may harbour 
 against you. But here, just as in the case of the subjective 
 domain generally, the exclusion of jurisprudence arises from 
 practical rather than theoretical considerations. On the one 
 hand it is scarcely possible to imagine circumstances which 
 would call for its interposition, for, inasmuch as there is, and 
 can be, no restraint on internal liberty, interference with mere 
 thought and opinion can consequently never be requisite on 
 the ground of removing such restraint. On the other hand it 
 is equally difficult to imagine circumstances in which inter- 
 ference would be possible. So long as thought or opinion 
 remains within the breast — so long, that is to say, as it is 
 mere thought or mere opinion — neither its character nor its 
 existence can be ascertained, and consequently it cannot be 
 put into the crucible of human judgment. But the limits 
 of jurisprudence in this direction are fixed, not by principle, 
 but by necessity ; for the moment that its interference be- 
 comes possible, it is conceivable (though still perhaps very 
 unlikely) that it may be justified in the name of liberty. 
 That indirectly such interference not only may, but must 
 take place, unless the State is to abdicate its highest func- 
 
JURISPRUDENCE 'AND ETHICS. 363 
 
 tions, is obvious. 1 The existence of the Church and the 
 School are sufficient examples ; and it is remarkable that Dis- 
 senters who are most zealous for the separation of Church 
 and State are precisely those who are most zealous for the 
 union of Church and School. Nor is the principle that the 
 quality of thoughts, as good or evil, or of opinions, as true or 
 false, is indifferent to jurisprudence, that on which its inter- 
 ference for the most part is withheld till the thought finds 
 expression in an act, or the opinion is propagated in the form 
 of a doctrine which the Church or the State conceives to be 
 dangerous to wellbeing. So far from repudiating all ethical 
 considerations, the ground on which jurisprudence declines to 
 interfere is that, being bound to interfere on ethical considera- 
 tions alone, it possesses, and in the circumstances can possess, 
 no ethical information. Jurisprudence does not say that it 
 will take no cognizance of the quality of intentions, for it is 
 on the judgment which it forms of the motives of the agents 
 that the whole doctrines of responsibility and non-responsi- 
 bility rests. The moment that the intention of the agent is 
 made manifest (as, for example, by an attempt to commit a 
 crime, by the writing of a threatening letter, the equipment 
 of a ship of war by a neutral, a charter-party binding a ship 
 to run a blockade, or the like) jurisprudence will anticipate 
 the encroachment on external liberty which the actual per- 
 petration of crime would occasion, and not only constrain the 
 will of the intending criminal, but punish him for his evil 
 purpose. 2 
 
 1 Krause, p. 6i. 
 
 2 When Kant observes, then, that "the coincidence of an action with the law, 
 
364 OF THE RELATION BETWEEN 
 
 From these observations, I think, you will perceive the re- 
 lations in which the science of jurisprudence, as a whole, 
 stands to the science of ethics, in the wider sense. It is, as 
 I said at the outset, that of a special to a general science, of 
 a means to an end ; for if the end of jurisprudence be liberty, 
 liberty itself is manifestly desirable only with a view to the 
 attainment of other objects, of which the sum is the realization 
 of that perfect human development, and consequent happiness, 
 which is the end of the science of human life as a whole, the 
 human end in itself. The two sciences, as I have all along- 
 said, are co-extensive ; their final ends are the same, for 
 natural l law seeks perfection by the fulfilment of the duties 
 of charity, benevolence, and the other so-called imperfect obli- 
 gations, just as it does by the vindication of the so-called 
 perfect obligation of justice — the question of how far its dicta 
 may be enforced by positive law, — its " sphere," in Austin's 
 sense — being a question of facts and circumstances of tem- 
 porary expediency. 
 
 But jurisprudence is not the only special science which 
 
 abstracted from any regard had to the motive whence it sprang, is its legality ; 
 but sucli coincidence — when the idea of dutjr, founded on the law, is at the same 
 time the inward spring — forms its morality," I deny the validity of the opposi- 
 tion. The motive, so far from being "abstracted from," is often the very essence 
 of the legality or illegality of an act. Shooting, in the abstract, is legal. Shoot- 
 ing with intent to kill a man, unless it be in self-defence, or for the protection of 
 our country, is illegal. Enlisting is legal and commendable ; enlisting ' ' with 
 the intent to serve against the Queen's allies " is a violation of the Foreign En- 
 listment Act. Whether it be wise to frame enactments, the enforcement of which 
 depends on a proof of " intention," is a practical question with which we have 
 here, happily, nothing to do. 
 
 1 As to the limited sense in which the word " natural " is used with reference 
 to jurisprudence, see Introduction, ante, p. 2. 
 
JUEISPRUDEKCE AND ETHICS. 365 
 
 seeks the final end of life ; nor does it stand to the other 
 sciences which seek it by different means, in any other than 
 a co-ordinate relation. Neither from the common science of 
 ethics then, which has for its function to assign their common 
 end to all the human sciences, nor from these sciences speci- 
 ally considered, each of which, though employing partial means, 
 seeks the attainment of perfection not partially but completely, 
 is the science of jurisprudence distinguishable as regards its 
 domain. Each science, by its own special means, seeks the 
 realization of all the virtues. The science of instruction, for 
 example; seeks the attainment of the good by the inculcation 
 of the so-called imperfect obligation of charity, just as of the 
 perfect obligation of honesty, or of the duty of cultivating the 
 reason, which is its more special end. The sciences of war 
 and of diplomacy seek to maintain our honour, 1 and to fulfil 
 our human destiny, as well as to protect our more immediate 
 interests as a nation. And so' 'of each of the others. Each 
 seeks, in so far as its means permit, to cover, so to speak, the 
 whole ethical field, to fulfil the whole law. But each is dis- 
 tinguishable, first, from the general science of ethics, inasmuch 
 as being special and practical sciences they employ special 
 and practical means for the attainment of the common object ; 
 and, second, from each other, inasmuch as the means which 
 they employ are different. Now it is the means employed by 
 the science of jurisprudence for the attainment of the common 
 end which constitutes its object considered as a separate 
 science ; and the means which jurisprudence supplies for this 
 purpose is liberty, just as the means which education supplies is 
 1 " Peace with honour ! " 
 
366 RELATION BETWEEN JURISPRUDENCE AND ETHICS. 
 
 knowledge, or the means which medicine supplies is health, or 
 the means which war supplies, or professes to supply is peace. 1 
 In further illustration of the relation in which the various 
 sciences stand to the central science of ethics, and to each 
 other, let me recall the results of our recent inquiry into the 
 antique conception of virtue. After endeavouring to prove 
 the groundlessness, in point of principle, of the distinction 
 which it had been attempted to draw between justice and 
 charity, I referred to the famous argument in the Protagoras 
 of Plato, by which the unity of the virtues is established. 
 According to Plato's view, we found that virtue, the good, 
 when considered as a whole, is not an aggregate of separate 
 elements, neither is it a generic term for specific objects re- 
 sembling each other only in their common participation in one 
 single element, and that when we speak of the separate virtues 
 of courage, temperance, justice, and the like, we do not mention 
 the parts of a whole — e.g., of a lump of gold — but the different 
 phases in which an indivisible whole — the quality gold in the 
 abstract — exhibits itself. As Aristotle said of the soul, " that 
 it is all in the whole, and all in every part ; " and as Hamil- 
 ton, adopting his view, held that it is the same individual 
 mind that operates in sense, in imagination, in memory, in 
 
 1 The relation in which the position here taken up places us to the Kantian 
 school, may be thus stated : — 
 1st, In accordance with the Kantian School, we adopt — 
 (a) Liberty as the object or end (t4\os) of jurisprudence, and 
 (6) Order (infra, cap. ii. p. 367) as the means, sine gud non, to the attainment 
 of liberty. 
 
 Id, In opposition to the Kantian school we reject (Book I. cap. xi. p. 281, 
 passim; see specially 294 et seq.) the negative character which it imposes on the 
 means by which jurisprudence seeks the attainment of its end, following, in this 
 latter respect, the teaching of the positive school. — Ante, pp. 355, 357. 
 
RELATION BETWEEN ORDER AND LIBERTY. 367 
 
 reasoning, &c. — differently indeed, but differently only because 
 operating in different directions ; so of virtue we conclude it 
 is all in tbe sum, and all in each of its parts. But, like the 
 mental faculties, the impulses which correspond to the various 
 virtues operate in different directions ; they seek a common 
 end by different means. Now it is to the means employed 
 by the virtues, thus separately regarded, that the various 
 branches of human endeavour, with a view to the realization 
 of the good, correspond ; and these branches, when systema- 
 tized and reduced to rule, constitute the various human 
 sciences. But the various human sciences when applied to 
 practice — that is to say, when brought in contact with external 
 existence — become arts and professions, all bound together by 
 one ultimate and general object — the realization of the good, 
 or of the human idea, which is the good in its human aspect, 
 — and all held apart by their various proximate and special 
 objects, the realization of which they seek as separate pro- 
 fessions. 
 
 CHAPTEE II. 
 
 OF THE RELATION BETWEEN ORDER AND LIBERTY. 
 
 Having accepted liberty as the object of jurisprudence as 
 a separate science, we must now endeavour to determine the 
 character of liberty. "With this View, two inquiries seem 
 specially to press themselves cm our attention : 1st, In what 
 
368 OF THE RELATION BETWEEN 
 
 relation does liberty stand to order, to which it is often 
 opposed ? 2d, In what relation does it stand to equality, 
 with which it is often identified ? It is the first of these 
 inquiries which will occupy us in the present chapter. 
 
 Order and liberty, like justice and charity, are in principle 
 identical. They can be realized only in conjunction, and neces- 
 sarily culminate together. 
 
 It was not without reason that our own ancestors, in word 
 and deed, coupled liberty with law ; that the sacred writers 
 spoke of the " perfect law of liberty " as the law prescribed by 
 Him whose " service is perfect freedom ; " or that Cicero said, 
 as Plato had said before him, "legum idcirco omnes servi 
 sumus ut liberi esse possimus." l 
 
 But the conditions under which our rights are realized, 
 rather than the origin of these rights, or the final end of their 
 exercise, being the subjects with which jurisprudence, when 
 seen not as a science but as an art, is mainly conversant, — 
 the realization of order, and not the attainment of liberty, 
 came very generally to be regarded as the final and exclusive 
 object of jurisprudence. The error, like most errors, was a 
 half-truth; for the condition — the means which was thus 
 mistaken for the end — being not one of many conditions or 
 means, but the condition sine qud non, the exclusive and 
 infallible means — the means without which the end was, in 
 all cases, unattainable, and with which its attainment was 
 inevitable — this means, if not identical with the end, was 
 involved in it, and in the last analysis implied in it. If you 
 analyse liberty you will find order, just as if you analyse order 
 
 1 Pro. CI, 5, 3. 
 
ORDER AND LIBERTY. 369 
 
 you will find liberty. Perfect order is liberty ; perfect liberty 
 is order. But the practical results of the error have not been 
 on this account less fatal ; for it has been by considering order 
 as an end in itself, and by forgetting that its value ceases the 
 moment that it fails to fulfil the function of a means towards 
 the attainment of liberty, that authority has been hardened into 
 despotism, that obedience has degenerated into slavery, that 
 nation has been separated from nation, class from class, and 
 man from man, till humanity itself has groaned under the 
 burden which was bound on its back by honest and upright, 
 but ignorant hands. The principle that the perfection of 
 legislative, as of all other machinery, consists in its simplicity, 
 and that so soon as a law becomes needless it becomes in- 
 jurious, — a stumbling-stone in the way to liberty, an impedi- 
 ment in our progress towards the realization of the final end 
 of life, — was the great discovery of the eighteenth century. 
 
 As usual, this principle received a one-sided application. 
 Theoretically, as we have seen, it led even men like Kant so 
 to limit the sphere of legislation as to lose sight of its positive 
 side ; and this error speedily opened, the door to the still more 
 formidable conclusion that the negative side of it must be 
 repudiated also. Order, which feudalism and despotism had 
 adopted and discredited as an end, under the reaction which 
 arose against them, lost its hold as a means, and its opposite 
 — license — no longer stigmatized as the irreconcilable foe of 
 liberty, was tolerated as its excess, and hailed as a rougher 
 and more perilous, but shorter road to the goal of human life. 
 Now, if license and liberty differ only in degree, and if order, 
 as the opposite of license, be thus separated from liberty, it 
 
 2 A 
 
370 OF THE RELATION BETWEEN 
 
 will at once be apparent that there is an end to compulsory 
 legislation altogether. The " police " of the negative shares the 
 fate of the "guardianship" of the positive school; for order 
 having confessedly no separate standing-ground, no indepen- 
 dent warrant of its own, it is in the name of liberty alone, 
 his own included, that the greatest criminal can be punished 
 for the greatest crime. The only answer, then, to a train of 
 reasoning which has led to far graver results than even the 
 substitution of order for liberty, consists in the denial that 
 license ever is liberty in excess, or can, in any circumstances, 
 stand to it in the relation even of a condition. License, on 
 the contrary, is the condition of despotism, and the condition 
 of despotism sine qud non ; for it is over a licentious com- 
 munity alone that a despot can rule : and when a community 
 becomes licentious, the despot will not be far to seek. 
 
 We often hear, in popular speech, of the exaggeration of a 
 truth, or of a virtue ; but as Cousin * and many other reasoners 
 have pointed out, no such exaggeration is possible. Liberty, 
 like truth and virtue, never can be carried too far. What 
 really takes place, in the circumstances which these phrases 
 describe, is not an exaggeration but a transition ; and a tran- 
 sition very often to error or vice of the gravest kind, though 
 on the principle that extremes meet — to error or vice which 
 lies on the very borders of truth and virtue. 2 That license, 
 then, stands to liberty in the relation, if not directly of an 
 
 1 Ecol. Ecoss., p. 297. 
 
 2 The doctrine of the ^atrns is explained by Sir Alex. Grant in such a way as 
 to free Aristotle from the reproach which Kant and Grotius, and so many others, 
 have brought against him, of making the distinction between virtue and vice 
 merely quantitive. — Grant's Aristotle, vol. i. p. 201. 
 
ORDER AND LIBERTY. 371 
 
 opposite, at least of the necessary condition of the presence 
 of its opposite, and is practically equivalent, not to its more 
 perfect, but to its less perfect realization on the whole, or, as 
 Kant would say, " as an universal law," will, I think, he 
 apparent if we consider that, in every imaginable instance, 
 it is resolvable into a pushing of the meum into the domain 
 of the tuum, or the reverse. There can be thus no general or 
 absolute gain ; for, assuming the subject to be a gainer, in 
 direct proportion to what the subject gains the object loses. 
 But why, it may be said, should there be an absolute loss ? 
 Now the answer to this question will be found in recalling 
 the fact that man is a dependent being, the full possession 
 and enjoyment of whose gifts, powers, and faculties is pos- 
 sible only by the aid of the highest possible realization of 
 objective means. Subjective liberty is something more than 
 the mere negation of objective restraint. It is only by the 
 help, the active aid and co-operation, of the object that the 
 subject can be free ; and were I to succeed, not only in rob- 
 bing you of your liberty, but in annihilating the whole objec- 
 tive world, I should be more limited by my .own impotence, 
 more enslaved by myself, than I could possibly be by its 
 encroachments. The fraternal relations of humanity, as real- 
 ized in association, co-operation, combination, and the like, 
 are favourite themes at present, chiefly with those by whom 
 the deeper principle of mutual aid in the paternal direction of 
 guardianship as a means to the attainment of liberty has been 
 forgotten. But the successful, or even the safe application of 
 the fraternal principle, must depend on our recognition of the 
 fact that, so far from being at variance with the principle of 
 
372 OF THE RELATION BETWEEN 
 
 order which has been falsely associated with the paternal 
 principle exclusively, true fraternity is only order in another 
 aspect. Seen in this light, and recognized, like order on the 
 whole, not as an end but as a means, fraternity, like guardian- 
 ship, rests on the great truth that, as God has made nothing 
 in vain, and that there is no creature, however insignificant 
 or comparatively unimportant, the free and perfect exercise 
 of whose faculties is not demanded for the Tealization of the 
 freedom of every other ; whilst the converse of the proposition 
 is likewise true — viz., that there is no created being, or col- 
 lection of beings, so self-supporting as to dispense, without loss 
 of liberty, with the aid of any being that God has made. It 
 is, then, the maximum, and not the minimum, of objective, 
 which is the condition of the attainment of the highest subjec- 
 tive liberty. But a maximum of objective liberty, combined 
 with a maximum of subjective liberty, is possible only' in the 
 case in which neither oversteps its legitimate boundaries. 
 There must be no debateable ground of anarchy between 
 them, else one or both will fall below the maximum. But 
 the arrangement by which their respective borders are defined, 
 as it were, by an ideal line, which robs neither of its territory, 
 is the arrangement to which I give the name of order; and 
 I think, therefore, that the conclusion is warranted that the 
 highest liberty involves the most perfect order, and, recipro- 
 cally, the highest order the most perfect liberty. 
 
 One of the most important consequences of the interdepen- 
 dence of order and liberty, is the impossibility of either pro- 
 gress or retrogression taking place in the one apart from the 
 other. Nothing can be more misleading than to talk of order 
 
ORDER AND LIBERTY. 373 
 
 as the permanent, and liberty as the progressive element in 
 society, as if order resembled the mechanical arrangement of 
 bricks in a wall, and liberty the organic development of a 
 plant or an animal, whereas they are, in truth, the comple- 
 mentary functions of one single organism, the cells and the 
 sap of one living body. So dependent, indeed, are they on 
 each other, that the exclusive triumph or failure of either 
 would be the annihilation of both. Nor is this relation in any 
 degree affected by the fact that, in progressive societies, order, 
 as we have said, becomes more and more spontaneous, and 
 less and less dependent for its maintenance on positive law ; 
 for it is in voluntary obedience, in free acceptance of law, and 
 not in compulsion, however perfect, that order culminates. 
 A self-acting machine is not the negation, but the perfection 
 of mechanism ; and so an autonomous community is not a 
 community set free from order, but a community which freely 
 orders itself. For this reason, paradoxical as it may seem, it 
 nevertheless admits of demonstration, that if a perfect republic 
 were realized, it would be more anti-democratic, in the popular 
 sense of democracy, than the most despotic government that 
 ever existed — nay, than any government that ever existed, or 
 could possibly exist, on the face of the earth. 
 
 The inseparable connection between order and liberty did 
 not escape Socrates, as few things did. Plato represents him 
 as illustrating it, in a passage in the Gorgias, in a very 
 ingenious and characteristic manner. " Order, system, regu- 
 larity," he says, 1 " are the only conditions of wellbeing in a 
 house, and in a ship. To this same order and regularity in 
 
 1 Cap. 59. 
 
374 RELATION BETWEEN ORDER AND LIBERTY. 
 
 the body we give the name of health. , But health is the con- 
 dition of liberty in the body ; for even the physicians allow 
 the healthy body the fullest gratification of its desires, whereas 
 the moment it becomes sick, the only mode in which it can 
 be cured is by restraining it and interfering with its liberty. 
 But to the order and regularity of the soul, that which corre- 
 sponds to bodily health, we give the name of law (vo/aos), which 
 is righteousness and temperance (SiKaioavvr) re kcu a-wt^poa-vvrj, 
 which he elsewhere l combines under Koo-ynos). And in the soul, 
 precisely as in the body, whilst the healthy soul fulfils its 
 longings without injury, the diseased soul — that is to say, the 
 soul that is irrational, and intemperate, and unjust, and unholy 
 — in order to its own restoration to health, must be restrained 
 in its desires." " Nor, even if present gratification be regarded 
 as the end, is it attainable through license ; for what gratifica- 
 tion does an unhealthy body derive from the fulfilment of its 
 desires ? " 2 and the case of the soul is again analogous. It is 
 in this latter point of view that the analogies derived from our 
 bodily functions present to us, in the strongest light, the 
 universal antagonism between license and liberty, and the self- 
 destructive character of the former. Even before the physician 
 can interpose, the limitations which he would have suggested 
 are but too often effected by the unimpeded action of the 
 indulgence itself ; and, without the slightest external inter- 
 ference, the point is reached at which it is appointed by the 
 constitution of our nature that " the grasshopper shall become 
 a burden, and desire shall cease." 3 
 
 1 Cap. 63. 2 Cap. 59. 3 Eccles. xii. 5. 
 
THE IDEA OF ABSOLUTE EQUALITY. 375 
 
 CHAPTEE III. 
 
 OF THE HISTORY OF THE DOCTRINE THAT THE IDEA OF LIBERTY 
 INVOLVES THE IDEA OF ABSOLUTE EQUALITY. 
 
 Before we quit the consideration of liberty as the object of 
 law, there is one question in particular which demands our 
 attention, because the notion which we form both of liberty 
 itself, and of those special and proximate objects which are 
 in reality means towards its attainment, will largely depend 
 on the answer which we give to it. The question to which I 
 refer is whether Equality, which common sentiment and vulgar 
 speech have now, for nearly a century, so frequently connected 
 and even identified with liberty, be really implied in it ; and 
 if so, in what sense ? 
 
 In addition to the scientific importance which must always 
 belong to it, this question is, moreover, that of all others which 
 has perhaps the most important bearing on the practical life 
 of our time, both social and political. However much the 
 better sort of Englishmen may be satisfied of the practical 
 impediments which stand, for the present, in the way of the 
 attainment of social and political equality, in the popular 
 sense, either in England or anywhere else — nay, however fully 
 they may be convinced of the impropriety of its admission 
 amongst the immediate objects of any scheme of legislation, or 
 system of positive law, in any stage of development which 
 aankind has yet reached, there are, in many honest minds, 
 
376 THE IDEA OF ABSOLUTE EQUALITY. 
 
 hazy notions about its absolute justice and ultimate expedi- 
 ency, which cause them to hesitate in dismissing it from the 
 objects of jurisprudence on absolute grounds. They shrink 
 from the consequences which it has involved hitherto, and 
 which apparently it must always involve ; and yet, as they 
 can see no logical or scientific escape from it, they arrive at 
 the untenable, irrational, and absurd conclusion, that though 
 wrong in practice it must be right in theory. And it so 
 chances that, if in some degree protected by their national 
 temperament against the extremest practical consequences of 
 the doctrine of equality, Englishmen stand to it, logically, in 
 a peculiarly helpless position. The historical method is the 
 only one with which the vast majority even of educated men 
 in this country are acquainted, or in which they have any 
 confidence, and here the inadequacy of the historical method, 
 either as a refuge against error or as a basis for truth, has 
 become specially apparent. It is true that history repudiates 
 equality ; that the life of man, hitherto, has failed to realize 
 it ; and that these facts are good arguments, so far, against its 
 claim both to scientific and practical recognition. But they 
 only go a certain length. They are grounds of hesitation, not 
 of decision. The life of man is not ended ; history has not 
 closed ; and the verdict of history is thus neither final nor 
 infallible. It may be that the future will turn its back on 
 the past — nay, it is possible that a contemporaneous history 
 may be growing up, in America or elsewhere, even now, 
 which shall reverse the previous history of mankind. On 
 these and similar grounds, the logical and formal validity of 
 which it is impossible to deny, and the material truth of 
 
THE IDEA OF ABSOLUTE EQUALITY. 377 
 
 which we may question but cannot absolutely refute, the 
 historical method has been repudiated by speculative politi- 
 cians, from the days of Hobbes to our own. The enemies of 
 historical society have appealed from tradition to nature, from 
 empiricism to science. The appeal is legitimate ; and those 
 of us who undertake the defence of society must be contented 
 to follow them into this court of last resort. My own accept- 
 ance of the challenge is the more imperative, because the 
 method on which political scepticism here relies is that which 
 I have all along invoked as the only means of reconciling 
 liberty and order, and placing society on an immovable basis 
 of reason. Nor is it the acceptance of the philosophical 
 method as at least co-ordinate with the historical which alone 
 imposes on me this duty. To many the acceptance of the 
 de facto principle, as the result of this method, and the basis 
 of its practical application, has seemed to create a conflict 
 between my speculative premises and my practical conclusions. 
 I have been told that whilst my principles led me to be a 
 Eadical, my instincts made me a Conservative, and that, in the 
 long-run, I follow my instincts and not my principles. I am 
 myself persuaded that, however often they may have led to 
 other conclusions, the truest and only true conservatism results 
 from the study of nature, and from the positions which that 
 study logically yields. 
 
 Without withdrawing, then, from the position which we 
 have hitherto occupied, I shall endeavour to develop a theory 
 of equality in accordance with nature, which, however much 
 it may differ from the popular ideal, will, I trust, satisfy the 
 utmost longings of scientific liberalism. But before I present 
 
378 THE IDEA OF ABSOLUTE EQUALITY. 
 
 the doctrine which seems to me, logically and necessarily, to 
 result from the principles of nature which we have already 
 recognized, it may be proper that I should endeavour to indi- 
 cate, historically, the origin and development of the opposite 
 view. " To trace an error to its fountain-head," said Lord 
 Coke, " is to refute it ; " and Mr Bentham shrewdly remarked 
 that, " with many understandings it is the only refutation that 
 has any weight." 1 
 
 (a) As a protest against authority. 
 
 As a mere protest against authority, the doctrine of absolute 
 equality is as old as mankind. It is the contre-coup with 
 which vanity and envy respond to insolence and oppression, 
 and by which one class of vices counteracts another. In this 
 sense it has found expression in every servile war, in every 
 agrarian outrage, in every act of insubordination which ex- 
 ceeded the bounds of a legitimate protest against tyranny or 
 exclusiveness. But it is not in the spirit in which it was 
 acted upon on these occasions that the principle is vindicated 
 by its advocates. It is viewed not as a watchword of tem- 
 porary dissatisfaction, whether justifiable or unjustifiable, but 
 as the permanent goal of social and political effort. 
 
 (b) By the Jesuits. 
 
 As advocates of the supremacy of the clerical order, and 
 defenders of tyrannicide, several of the Jesuits of the sixteenth 
 century, 2 following in the footsteps of Hildebrand in the 
 
 1 Stewart's Works, vol. i. p. 192. 
 
 2 Hallam, Literature, vol. ii. p. 33 et seq. Ranke's History of the Popes, 
 vol. ii. p. 7 et seq. See Suarez's theory, as stated by Hallam ut sup., p. 524. 
 He was disputing, however, against the patriarchal theory, and not for de- 
 mocracy. 
 
THE IDEA OF ABSOLUTE EQUALITY. 379 
 
 eleventh, 1 came so close on the development of a theory of 
 political equality as to justify the assertion of Bunsen 2 that 
 " Jesuitism and radicalism are two several masks of the same 
 destroying spirit." Of the alliance between ultramontanism 
 and revolution, the black and the red international, the his- 
 tory of our own day, and even of our own country, furnishes 
 many examples. But the alliance is essentially dishonest, 
 as is apparent from the fact that within the Church itself the 
 strictest system of subordination was maintained, 3 and it has 
 never produced any consistent theory of mutual aspiration. 4 
 The same may be said of the Protestant aspirations after 
 equality which sprang out of Luther's teaching, misunderstood, 
 and found expression in the sayings and doings of Thomas 
 Munzer and John of Leyden, and realization in the Bauern- 
 kreig. Henry Marten, in Cromwell's time, unlike Sidney, 
 Vane, &c, was a communist and a republican. 5 
 
 (c) By Holies. 
 
 The earliest systematic statement of the doctrine that can 
 be said to influence existing opinion is that of Hobbes. 
 Hobbes brings equality within the sphere of justice, by bring- 
 
 1 Neander, vii. p. 119. 2 Life, ii. p. 149. 3 Meander, vii. p. 120. 
 
 4 The relations between Calvinism and democracy are excellently brought out 
 in "Les Francais en Amerique pendant la Guerre de l'lndependance (p. 29 et 
 seq.), par Thomas Balch," an American gentleman, who for many years resided 
 in France, and was a careful student of political philosophy. That these re- 
 lations have been, practically, of the most important kind, cannot be doubted. 
 But I am not aware that any doctrine of absolute equality, as the ideal relation 
 of human beings, was ever enunciated by any leading Calvinist. Equality, even 
 amongst the clergy, was no part of the original scheme of Knox ; and Calvin's 
 system was borrowed from, not the cause of, the republican constitution which, 
 in imitation of the rest of Switzerland, Geneva had already adopted. 
 
 6 Life of Algernon Sidney, by Ewald, p. 189. 
 
380 THE IDEA OF ABSOLUTE EQUALITY. 
 
 ing it first within the sphere of fact. He does not argue that 
 all men ought to be equal, or to be made equal, by social or 
 political arrangements, in obedience to any law either human 
 or divine ; but he boldly asserts that all men are equal ab- 
 solutely, in strength, wisdom, and virtue ; and this not at 
 birth alone, but throughout life, not by their own arrange- 
 ment, but by the providence of God. 1 In perfect accordance 
 with the principles which we have recognized throughout, it 
 would follow from this single assertion, if true, that every 
 distinction which has ever been established amongst men was 
 an invasion of liberty, an act of injustice, and that the vindi- 
 cation of absolute equality, and its consequences, belongs to 
 the science of jurisprudence, quite as inalienably as the vindi- 
 cation of liberty, with which it would indeed become identi- 
 cal. Mr Hallam has said that Hobbes adopted the " strange 
 and indefensible paradox of the natural equality of mankind, 
 rather in opposition to Aristotle's notion of a natural right in 
 some men to govern, founded on their superior qualities, than 
 because it was at all requisite for his own theory." 2 I can- 
 not agree with Mr Hallam in that opinion. To me, on the 
 contrary, it appears that the doctrine of equality formed the 
 very corner-stone of Hobbes's whole political, and even of his 
 ethical system ; and that he was correct in supposing that his 
 difference from Aristotle was necessitated by the conclusions 
 which he had determined to reach. Essentially I regard it, 
 of course, as an unstable foundation, because I believe the 
 assertion to be false ; but formally it was sufficient for its 
 
 1 De Corpore Politico, cap. iv. sect. 1; Leviathan, cap. xiii. sect. 1, and cap. xv. 
 
 2 Lit. of Europe, vol. ii. p. 538. 
 
THE IDEA OF ABSOLUTE EQUALITY. 381 
 
 purpose as no other foundation could have been, and if the 
 reader will permit me to assume its truth for a moment, I 
 think I can show how Hobbes's whole political system, which 
 was what he had most at heart, flowed from it. 
 
 The first effect of all men being equal in powers, was that all 
 men were equal in rights ; for Hobbes, be it remembered, was 
 fully alive to the necessity of founding jurisprudence in nature, 
 and correctly held that rights are proportioned to powers. 1 
 
 All men thus possessed an equal right to all things. There 
 was no reason, either in fact or in law, why one man should 
 give way to another. The earth, and the fulness thereof, was 
 equally the inheritance of each, and each was as able as the 
 other to hold his own. God had made no distribution of His 
 gifts ; but had tossed them, so to speak, into the arena, to be 
 scrambled for by combatants whom, in order that the fight 
 might be interminable, He had endowed with equal powers. 
 Here was surely a sufficient foundation for the doctrine of 
 a state of natural war, and this, as is well known, formed the 
 second stage in Hobbes's political structure. That the attain- 
 ment of this second stage was the object with which Hobbes 
 enunciated the doctrine of equality is a fact, of the reality of 
 which a single glance at the beginning of the 1 3th chapter of 
 the Leviathan will convince us, for he there lays it down 
 expressly that " from equality proceeds diffidence — i.e., mutual 
 distrust — and from diffidence, war." But the very equality 
 which rendered war inevitable and interminable, rendered its 
 prosecution detrimental to every single individual. Eeason 
 and experience concurred in teaching that the only condition 
 1 Lev. pass, and De Cm: Pol., part i. cap. iv. sect. 14. 
 
382 THE IDEA OF ABSOLUTE EQUALITY. 
 
 on which each could take exclusive possession of the fraction 
 which fell to him when the sum of possessions was divided 
 by the sum of possessors, was that he should renounce his 
 claim to all the other fractions. In order to carry out this 
 arrangement, to enforce this " covenant," as Hobbes and his 
 followers were in the habit of calling it, government was 
 necessary. But for government, as he terribly put it, the 
 life of man would be "solitary, poor, nasty, brutish, and short." 1 
 It was for the common interest, moreover, that this arrange- 
 ment should be carried out, not approximately, but absolutely, 
 — the government must be absolute — i.e., it must absorb the 
 whole powers of the whole community, leaving no individuals, 
 or society of individuals, in a condition to deal with it on better 
 terms than the rest. In this way Hobbes arrived at the con- 
 , elusion that, whatever the form of government might be, it 
 imust be absolute, — altogether uncontrolled in the exercise of 
 (its powers — despotic. The Leviathan, or mortal G-od, must 
 ' share in the omnipotence of the immortal God whom he re- 
 presented on earth. Non est potestas super terram quce com- 
 paretur ei, 2 is the motto of his book, and he will not hear of a 
 practical objection to this doctrine. His observations on the 
 relative value of experience and reasoning are strangely at 
 variance with the prevailing sentiment of our own day ; but 
 they are so characteristic of his vigorous way of thinking that 
 I cannot resist the temptation of quoting a single sentence. 
 "The greatest objection," he says, "is that of the practice." 
 
 1 Cap. xiii. 
 
 2 Job xli. 33. Let every one who would have a conception of the political as- 
 pirations of the first great and only logical apostle of equality, read and consider 
 this tremendous chapter. 
 
THE IDEA OE ABSOLUTE EQUALITY. 383 
 
 ..." Howsoever, an argument from the practice of men that 
 have not sifted to the bottom, and with exact reason weighed 
 the causes and nature of commonwealths, and suffer daily the 
 miseries which, proceed from the ignorance thereof, is invalid. 
 For though, in all places of the world, men should lay the founda- 
 tion of their houses on the sand, it could not thence be inferred 
 that so it ought to be. The skill of making and maintaining 
 commonwealths consisteth in certain rules, as doth arithmetic 
 and geometry ; not as tennis-play, on practice only." 
 
 But though a despotic government be possible under any 
 one of the three simple forms of government enumerated by 
 the ancients — monarchy, aristocracy, or democracy — the doc- 
 trine of equality pointed clearly to the first. For if all the 
 radii of the circle being equal, each will reach the centre ; 
 why, all the citizens of the state, being equal, should not all 
 reach the throne ; and, conversely, the influences of the throne 
 penetrate to each ? 1 The interposition of an assembly, coun- 
 cil of responsible ministers, or the like, would, of course, have 
 prevented this result. Moreover, as there were no natural 
 differences amongst men, there could be no natural foundations 
 for the various orders of society. Subordination of any kind 
 was an evil, an injustice, to which free and equal citizens 
 submitted only to the extent to which self-interest rendered 
 it indispensable to each. The object of political science must 
 be to reduce this evil to its minimum, by having the smallest 
 possible number of superiors. The ideal government of Hobbes, 
 
 1 Dante has » similar argument in favour of his "Monarch," who in other 
 respects differs from the Leviathan pretty much as Ormuzd differs from Ahriman, 
 and to whom the only objection seems to be the impossibility of finding him. 
 — De Monarchid, lib. i. sect. xiii. 
 
384 THE IDEA OF ABSOLUTE EQUALITY. 
 
 consequently, was pure and absolute monarchy, and absolute cen- 
 tralization. It was unquestionably the logical result of the 
 arbitrary assumption of equality, on which he based his sys- 
 tem ; and as this result is known to have been a foregone 
 conclusion with him, I am surprised that he did not press it 
 home even more unhesitatingly than he has done, and on 
 more absolute grounds, in the last instance. The only in- 
 consistent part of his reasoning is, that he rests his argu- 
 ment in favour of absolute monarchy, as opposed to absolute 
 aristocracy or democracy, on grounds of expediency, which, 
 when speaking of the absolute character of governments 
 generally, he had contemptuously repudiated. But it is 
 very interesting and important, as illustrating the logic of 
 facts, to observe that the experience of mankind has affirmed 
 the conclusion of the shrewd old cynic of Malmesbury 
 more emphatically than even he himself had ventured to 
 do, differing, as that conclusion does, from those of almost 
 all subsequent speculators who started from his premises. 
 If there be one fact that history teaches more consistently 
 and unequivocally than another it is this, that wherever an 
 attempt has been made to realize the doctrine of equality, 
 the result has been not democracy and local government, 
 
 but first anarchy — that is to say, Hobbes's state of war 
 
 and then despotism and centralization. The crop which so 
 often has been rashly sown by the democrat has invariably 
 been reaped by the despot ; and surely the despot has some 
 claim to it, seeing that it was first introduced into the field 
 of modern politics, not by the speculative republicans of the 
 commonwealth, whose theories were opposed to it, nor by the 
 
THE IDEA OF ABSOLUTE EQUALITY. 385 
 
 levellers of the commonwealth, who had no theories at all, 
 and, like the communists of our own day, were merely crimi- 
 nals under another name, hut by the grave and orderly tutor 
 of Charles II., and the theoretical vindicator of the divine 
 right of kings ! 
 
 (d) Spinoza. 
 
 In tracing the history of this doctrine, the next great name 
 we encounter is that of Spinoza. The mind of Spinoza was 
 a very much finer one than that of Hobbes, and his meta- 
 physical system, accordingly, is far subtler and more pro- 
 found. Hobbes could never, by any possibility, have been 
 the father of German pantheism. But in the matter with 
 which we are concerned at present, there is reason to believe 
 that Spinoza deceived both •himself and his followers, which 
 cannot be alleged against Hobbes. 
 
 Spinoza, too, was a believer in the doctrine of natural 
 equality ; but he differed from Hobbes in supposing that, in 
 enunciating that belief, and insisting on its consequences, 
 he was laying the foundation of free government. Though 
 not without reluctance and occasional recalcitration, Spinoza, 
 in so' far as his political system was concerned, made the 
 whole philosophical journey, up to the last stage, in company 
 with Hobbes. Having accepted the doctrine of equality, he 
 recognized in it, coupled with the facts of human depravity, 
 the foundations of a state of natural war; and the ideas of 
 justice, property, and the like, came thus to be dependent 
 on the mutual agreement and consequent government by 
 which alone this war was terminated. But Spinoza shrank 
 from recognizing, with Hobbes, the unlimited and irrespon- 
 
 2 B 
 
386 THE IDEA OF ABSOLUTE EQUALITY. 
 
 sible power of the Leviathan. " If the State he the source 
 of property," says M. Saisset, the latest and best editor of 
 Spinoza ; — " if the State be the source of property, as it is 
 the source of justice ; if it makes the meum and the tuum 
 as it makes the just and the unjust, the good and the evil, 
 where is the limit to its omnipotence, where is the guarantee 
 to the individual? Must we proclaim the State to be in- 
 fallible, impeccable, and put into its hand, as Hobbes has 
 done, not only the fortune and the life of the citizens, 
 but their conscience, their thoughts, their soul in short ? 
 Spinoza made the greatest efforts to shake himself free 
 from these consequences." 1 Nor did Spinoza's ingenuity 
 desert him at this pinch. He carried the discussion a step 
 backwards, and disposed of the justice by denying the 
 possibility of despotism. " Those," he says, " who believe 
 it to be possible for a single man to possess supreme right 
 in the State are in a strange error. For right is propor- 
 tioned to power. But the power of a single man is, and 
 must be, insufficient for such a weight." Here apparently 
 Spinoza forgot the source from which the powers of the 
 Leviathan are derived by Hobbes — viz., the consent of the 
 governed. Neither according to his system nor that of 
 Hobbes had these powers any foundation in nature, for by 
 nature no man was stronger or better than another. The 
 consent was, ex hypothesi, a subversion of nature; and if 
 that consent was absolute, there was no longer any diffi- 
 culty about the absolute character either of the powers or 
 the rights of the Leviathan. Apart from that consent there 
 
 ■ Vol. i. p. 209. 
 
THE IDEA OF ABSOLUTE EQUALITY. 387 
 
 could, as I have said, be no government either de fait or de 
 droit, because both Hobbes and Spinoza had assumed that 
 all men were equally able and equally entitled to govern 
 themselves. All government, so to speak, was thus a wrong 
 which men inflicted on themselves, and Hobbes had con- 
 tended for monarchy only on the ground that it was the 
 form in which government was least wrong — the form, viz., 
 in which it was possible to vindicate order at the smallest 
 sacrifice of equality. Spinoza, as I have said, declined to 
 accept this conclusion — with which, under the titles of 
 Democratic-Imperialism, Csesarism, and the like, we have 
 recently been so familiar — " and his manner of solving the 
 problem," as M. Saisset has remarked, " did more honour 
 to his practical wisdom than to his philosophical sagacity." 
 According to him, there are no durable governments but such 
 as are reasonable, and there are no reasonable governments 
 but such as are temperate. " We are surprised and charmed," 
 adds M. Saisset, "to see this theorizer, who, by the" rigid 
 character of his mind, and the narrow logic of his system, 
 seemed devoted to the idea of a simple democratic-despotism 
 brought back by his natural sagacity, and his honest ob- 
 servation of facts, to comprehend and advocate a system 
 of mixed government. 1 But a moment ago we had difficulty 
 in distinguishing him from Hobbes, and now we seem to 
 have to do with Montesquieu." 2 
 
 1 I rather think, with Mr Hallam, that no personal preference for any form of 
 government can be inferred from the writings of Spinoza ; though, like all theories 
 of equality, the logical issue of his, unquestionably, is despotism. — Hallam, vol. 
 iii. p. 437. 
 
 2 Saisset, vol. i. p. 213. 
 
388 THE IDEA OP ABSOLUTE EQUALITY. 
 
 (e) Rousseau. 
 
 Though sects of "levellers," in the sense of mere rebels 
 against authority, and religious fanatics like the old Ana- 
 baptists of Minister, were rather conspicuous in the days of 
 Hobbes and Spinoza, both in Germany and England, neither 
 Hobbes nor Spinoza lived to see the doctrine of equality 
 brought to the test of experience by being actually adopted 
 as the fundamental principle of government. Nor does any 
 writer of decided mark appear to have undertaken the theo- 
 retical vindication of the principle of equality from the period 
 when these philosophers quitted the stage 1 till the appear- 
 ance of Eousseau's 2 celebrated Discours sur I'origine et les 
 fondements de VinigaliU parmi les hommes (1755), and his 
 still more celebrated Contrat social (1762). , 
 
 Montesquieu, it is true, treats of the subject of equality 
 from various points of view, and often speaks of it in a 
 strain that may well have paved the way for the senti- 
 ments which gained ascendancy in the next generation. 3 But 
 how far he himself was from sharing those sentiments may 
 be gathered from the distinction which he draws between 
 the equality which he commended and the equality which 
 
 1 I regard them as contemporaries. Hobbes was forty-five when Spinoza was 
 born in 1633, but he outlived him by a couple of years, dying only in 1679, at 
 the great age of ninety-one. All his works, moreover, were written in advanced 
 life. 
 
 3 Rousseau may be regarded either from a social or a political point of view, 
 but the weapon which he employed for his double purpose was the same, and we 
 have to do with it here in itself rather than in its applications. 
 
 3 E.g., " Dans l'etat de nature, les hommes naissent bien dans 1'egalM ; mais 
 ils n'y scauroient rester. La society la leur fait perdre, and Us ne redeviennent 
 egaux que par les loix. " — Livre viii. chap. iii. 
 
THE lt)EA OF ABSOLUTE EQUALITY. 389 
 
 he condemned. " Autant que le ciel est eloigne" de la terre, 
 autant le veritable esprit d'egalite" l'est-il de l'esprit d'egalite" 
 extreme ; " and he explains that true equality consists, not 
 in everybody commanding and nobody obeying, but in those 
 who are equally citizens of the State commanding and obey- 
 ing each other. " Telle est la difference entre la democratic 
 regime and celle qui ne Test pas ; que, dans la premiere, on 
 n'est egal que comme citoyen ; et que, dans l'autre, on est 
 encore egal comme magistrat, comme s^nateur, comme juge, 
 comme pere, comme mari, comme maitre." 
 
 " La place naturelle de la vertu est aupres de la liberte" ; 
 mais elle ne se trouve pas plus aupres de la liberte" extreme, 
 qu'aupres de la servitude." 1 
 
 There is here, indeed, no express enunciation of the 
 necessary relation between rights and powers ; but it is 
 plainly on that relation that Montesquieu believed that 
 liberty must be based, and it was the restoration of that 
 relation, when disturbed, which he regarded as the function 
 of positive law. 
 
 Eousseau's system, however, as regards the basis on which 
 it rests, is the very reverse of those of Hobbes and Spinoza. 
 Like them, it is true, he holds absolute equality to be the 
 true foundation of society. But to him it is an object to be 
 attained, not a fact to be recognized, and thus he builds his 
 house, as it were, from the roof downwards. Eousseau never 
 ventures to assert that men are really equal, even at birth. 2 
 He does not allege that they treated each other as equal, 
 otherwise than in so far as their equality was real, even 
 1 Ibid. 2 Discours, pp. 99, 100. 
 
390 THE IDEA OF ABSOLUTE EQUALITY. 
 
 in the so-called "state of nature." His whole allegation, 
 in point of fact, is that "the difference between man and 
 man is less in the state of nature than in that of society, 
 and that natural inequality in the human race is augmented 
 by artificial inequality," 1 — in other words, that it increases 
 as civilization advances. From this statement, which I 
 believe to be quite correct, he deduces conclusions which 
 it does not seem to warrant in the slightest degree. Had 
 Hobbes been right in asserting that God had made men 
 equal, he would have been right in asserting that they were 
 entitled to vindicate their equality. The fact, had it been 
 a fact, would have supported the right ; and Hobbes did not 
 allege that the right ought to go beyond the fact; on the 
 contrary, it was one of his favourite maxims, and one in 
 which Spinoza followed him, that notwithstanding the mys- 
 teries connected with the presence of powers of wrong as 
 well as of powers of right, rights, in the main, are measured 
 by powers. But Eousseau laid no such substratum of fact. 
 God had not made men equal, and the result of the exercise 
 of the powers which He had bestowed on them was, that they 
 had become unequal more and more. But Eousseau, like Mr 
 Mill, gave it as his unhesitating opinion that God was wrong ; 
 that they ought to have been equal to begin with ; or, at any 
 rate, that they ought to be made equal now as fast as possible. 
 Man must be decivilized. Though nature was not quite perfect, 
 Eousseau, unlike Mill, thought her workmanship superior to 
 that of mankind, his own, of course, excepted. Neither 
 had he so bad an opinion of her as Hobbes. He did* not 
 
 1 Discours, p. 100. 
 
THE IDEA OF ABSOLUTE EQUALITY. 391 
 
 believe in a natural state of war; on the contrary, the 
 pictures which he drew of what he supposed to have been 
 man's original condition in the woods, taken together with 
 one of the most charming styles that ever was written, 
 were the main causes of the marvellous popularity of his 
 works. It is civilization and reason — which he strangely 
 considers to have nothing to do with nature — tbat are the 
 bites noires of Eousseau. " Z'homme qui mddite est un animal 
 ddpravd. C'est la philosophic qui l'isole ; c'est par elle qu'il 
 dit en secret, a l'aspect d'un homme souffrant : peris, si tu 
 veux ; je suis en surete" ; " and he proceeds to give a charm- 
 ing picture of a philosopher lying snugly in bed, whilst his 
 neighbour's throat is being cut under his window. " He has 
 only to put his fingers into his ears," he says, " and reason 
 with himself a little, in order to prevent the sentiments of 
 his nature from identifying him with the man who is being 
 assassinated." 
 
 It was his declaration against nature as it is, in favour of 
 nature as he conceived that it ought to be (for he says ex- 
 pressly in his preface that he doubts if it ever were so), which 
 gave its peculiarly dangerous character to the philosophy of 
 Eousseau and his followers. If his premises were not suffi- 
 cient to support rights of equality, they were fully sufficient 
 to support rights of revolution, both social and political. 
 When right Was once divorced from fact, it was at everybody's 
 taking ; there was no longer any external measure to it ; there 
 was no Leviathan to enforce it, if it had been measured ; and 
 so " ought " meant what every man thought it ought to mean. 
 As nothing could be proved, nothing could be denied — one 
 
392 THE IDEA OF ABSOLUTE EQUALITY. 
 
 man's assertion was as good as another's, — more especially as 
 all men were equal, or ought to be so. Accordingly, in 
 Eousseau's own case, one of the very first conclusions he 
 arrived at was, that of all the discoveries of human reason, 
 of all the devices of civilization, the most fatal was the insti- 
 tution of property. 1 
 
 (/) Democrats of the Revolution. 
 
 "When this stage was reached the theoretical deluge was 
 come ; and the French, unlike us, being a logical people, the 
 practical deluge proved to be at no great distance. "We need 
 not pursue the subject further in this direction, nor waste our 
 time over the shallow platitudes of that school of atheists, 
 blasphemers, and libertines, — Diderot and his encylopsedists, 
 Helvetius, the Abbe" Eaynal, Volney, and others, with whom 
 unfortunately the really distinguished name of D'Alembert 
 must be associated, — who inherited the errors and the vices 
 without the genius of Eousseau. Assuming, with scarcely 
 even the affectation of proof, the doctrines which they advo- 
 cate with so much vehemence, the works of these men are 
 totally destitute of scientific value, and must long ago have 
 sunk into the oblivion which they deserve, had it not been 
 for the practical recognition which, contrary to the intention 
 of such men as Washington and Hamilton, this central prin- 
 ciple of disorder obtained in America in 1776, 2 and its still 
 more reckless assertion in France in 1789. 
 
 1 Proudhon, however, is, I believe, entitled to the credit of the famous maxim 
 that " property is robbery " (la propriete c'est le vol). 
 
 2 The unguarded and unqualified assertion " that all men are created equal," 
 with which the celebrated "Declaration of Independence " sets out, was due to 
 Jefferson, to whom, though Adams was associated with him in the work, it is now 
 
THE IDEA OF ABSOLUTE EQUALITY. 393 
 
 No attempt to strengthen its theoretical groundwork has 
 been made by the many democrats and demagogues who 
 have since reiterated it in America and on the continent of 
 Europe ; 1 and, strangely enough, the only fresh argument in 
 its favour with which I am acquainted that merits notice, even 
 for its ingenuity, proceeds from one who is neither an Ameri- 
 can nor a Frenchman, neither a democrat nor a demagogue. 
 
 (g) Ahrens. 
 
 Ahrens, in strange inconsistency with his chapter on re- 
 presentation, 2 and his assertion that " lMgalite - ne doit §tre 
 concue que comme la liberte" egalement garantie a tous," 3 has 
 an elaborate vindication of equality, not merely as a conse- 
 quence, but as the very basis of liberty — as the sine qvd non 
 of personal freedom. It is not a defence of equality before 
 the law in municipal affairs, nor of political or social equality 
 
 believed that the merit or demerit of the preparation of this famous document 
 mainly belongs. Jefferson, as a born democrat (I use the word in its European 
 and not in its American sense), was probably sincere in the statement ; but there 
 is no reason to believe that Washington, or Jay, or Hamilton was led astray by 
 it, and it is grievously to be deplored that they consented to its publication. If 
 Adams at first inadvertently assented to the adoption of such a principle as the 
 basis of the constitution of his country, there can be no doubt that he was 
 thoroughly awakened from his delusion by the scenes which, shortly after, were 
 enacted with a view to its vindication in France. — Works of John Adams, Second 
 President of the United States, by his grandson, Charles Francis Adams, vol. i. 
 p. 462. Some additional information on this subject will be found in a note to 
 Mr Baleh's work, 'Zes Francais en Amirique, pp. 37, 38. 
 
 1 Even M. Emile Acollas, whom I regard as one of the ablest writers of the 
 extreme political school, and who, if it were possible to separate his method from 
 the use which he makes of it, would be entitled to rank high as a scientific jurist, 
 does little more in this matter than accept the teaching of Eousseau. — L'Idie 
 du Droit, 1871, p. 40. 
 
 3 Gowrs de Droit Naturel, 5th ed., p. 511. 
 
 3 5th ed., p. 43. In the 6th ed., p. 43, it runs, " 1'egalite n'est que la liberte 
 garantie d'une maniere identique a tous." I do not see that the sense is altered. 
 
394 THE IDEA OF ABSOLUTE EQUALITY. 
 
 in the sense in which that doctrine repudiates the existence 
 of castes in the East, or of exclusive classes, such as was the 
 noble class in Trance previous to the Eevolution. As a protest 
 against the impassability of any line either of social or politi- 
 cal demarcation, we have always to a certain extent adopted 
 the principle of equality in this country, where from the earliest 
 times any man who began life at the bottom was permitted to 
 end it at the top of the constitutional ladder, with the single 
 exception of its last step into the Eoyal Family (and this even, 
 with her characteristic liberality, her Majesty has recently 
 rendered accessible), provided he had ability and energy, and 
 bodily strength to climb so long and so high. But the sense 
 in which the principle is advocated by M. Ahrens appears to be 
 that of absolute social and political equality de jure, and in as 
 far as is humanly possible de facto, of free citizens of the State. 
 And the peculiarity of his position is, that he attempts to rest 
 this claim on assumptions in point of fact, though of a less 
 substantial kind than those which Hobbes thought necessary. 
 
 " The first quality," he says, 1 " which belongs to personal 
 humanity, whether we consider it in itself or in its relations 
 to other similar personalities, is equality." 
 
 Equality, he goes on to say, has a triple source — physical, 
 psychological, metaphysical. 
 
 1. In its physical relations equality is the result of the 
 unity of the human race. There is but one human nature, 
 and consequently there is the same nature in all men. The 
 different races are not different species of men as there are 
 different species in the animal kingdom. The animal kingdom 
 
 ' Cours dc Droti Naturel, p. 229 ct scq. , 5th ed. 
 
THE IDEA OF ABSOLUTE EQUALITY. 395 
 
 is divided into genera and species, which form so many steps 
 on the ladder of ascending organization. In the animal king- 
 dom nature begins her organization with the most imperfect 
 beings, and runs through many stages before arriving at the 
 superior animals — those, that is to say, which exhibit the 
 functions of vitality in a more perfect form. Here it is not 
 equality, but difference of organization that we remark ; there 
 is a progression from the less perfect to the more perfect, and 
 all the steps of the series are constituted by beings in whom 
 are developed differently, but in a predominant manner, a par- 
 ticular organic system, at the expense of the other portions of 
 the organism. The whole animal kingdom is thus created on 
 the type of a progressive variety, or of an evolution, successive 
 and always preponderating, of one or other systems of organi- 
 zation. The human race, on the contrary, is formed on a type 
 of harmonious unity of all the systems and of all the functions 
 of organic existence. The human organization, the most per- 
 fect of all, is the synthesis, the riswmi of the whole creation ; 
 it possesses in cequilibrio all the parts, all the organs, dissemi- 
 nated through the different classes of the animal kingdom. In 
 consequence of this type of unity and harmony, so visible in 
 the whole human form, man is functionally distinct from the 
 animal. The human race is not a continuation or transforma- 
 tion from the animal kingdom ; it is organized on a superior 
 principle and constitutes a kingdom apart — the human king- 
 dom. This unity of the human race is the physiological 
 reason of equality. 
 
 2. In a psychological point of view the same fundamental 
 equality of all men is observable ; and it is worthy of remark 
 
396 THE IDEA OE ABSOLUTE EQUALITY. 
 
 that the principle of harmony, which is the constituent ele- 
 ment in the physical organization, dominates equally all the 
 faculties and all the manifestations of mind. Man — the 
 superior unity of creation — can raise himself by his intelli- 
 gence to the ideas of the unity, the order, the harmony of 
 the world ; he can love them, take them as the models for 
 his actions, realize them in his life. " Ce caracUre de I'homme 
 se rdsume dans la raison." 
 
 To the same effect under the third head. 
 
 3. From the metaphysical point of view, " equality is 
 founded on the grand principle that man is humanity" — 
 that is to say, that human nature, as a whole, exists in each 
 man. 
 
 Now the first thing that strikes one, on perusing this 
 argument, is that it confounds the characteristics of genus and 
 species. Supposing all that M. Ahrens has said to be true, 
 physiologically, psychologically, and metaphysically, it is as 
 true, mutatis mutandis, of each species of the lower animals 
 as it is of the so-called genus man. The whole nature of the 
 whole animal kingdom, it is true, does not exist in any other 
 species as it exists in the higher species, just as all the steps 
 of the ladder will be under the feet only of him who is at the 
 top of the ladder. But the whole nature of the animal horse 
 exists in each horse, the whole nature of the animal dog in 
 each dog. Whether it be possible so to arrange the animal 
 kingdom as that each species, as we ascend, shall contain the 
 qualities of all the lower ones, and hold to them the relation 
 which man is said by M. Ahrens to hold to the whole, or 
 whether there be co-ordinate species which, in virtue of their 
 
THE IDEA OF ABSOLUTE EQUALITY. 397 
 
 specific qualities, naturally exclude each other, are questions 
 of comparative physiology with which we need not occupy 
 ourselves here. Even granting to Ahrens the two positions 
 for which he contends — first, that man is a distinct genus ; 
 and, second, that the genus man is not, like the genus animal, 
 distinguishable into species — all that he is entitled to conclude 
 is, that the different races of men do not constitute an ascend- 
 ing scale, but that each possesses the qualities common to the 
 whole genus. But the same conclusion would follow from 
 the ordinary hypothesis that man is not a genus by himself, 
 but a species of the genus animal ; for the same thing is true 
 of every species within itself, whether we suppose them to 
 be subordinated or co-ordinated to each other. The with- 
 drawal of man from the genus animal, therefore, whether 
 warranted or not in point of fact, seems to do nothing for the 
 argument. 
 
 But fundamental unity, whether of genus or of species, does 
 not exclude family, still less individual differences. Though 
 all horses are equally horses, all horses are not equal horses. 
 A turnspit is as much a dog as a mastiff, but he is not as much 
 of a dog. The difference between them, moreover, is not the 
 result of education, diet, climate, or any other external or 
 accidental cause. It is a natural difference, as much as the 
 difference between a dog and a cat. It is a difference which 
 nature — i.e., God — has imposed for reasons which, whether 
 we apprehend them or not, are no doubt good and sufficient 
 reasons ; and, what is even more to the purpose, it is a differ- 
 ence which God will maintain, on the whole, and the partial 
 obliteration of which, to the extent to which He permits it, 
 
398 THE IDEA OF ABSOLUTE EQUALITY. 
 
 He appears to punish by the degradation of the more perfect 
 family type. Now it is to the family distinctions within the 
 same species that the distinction of races in the human species, 
 or genus — whichever we choose to call it — is supposed by 
 physiologists to correspond. Whether they exist to the same 
 extent, and are equally the result of nature, or whether they 
 are more attributable to circumstances within human con- 
 trol, are points on which it is not necessary that I should 
 offer an opinion. That they exist at present to as great an 
 extent as in any other species of animal, and that the history 
 of mankind has not hitherto afforded the slightest indication 
 of their ultimate obliteration, are the only points in the con- 
 troversy which, as yet, can be regarded as settled. But even 
 giving up the distinction of races altogether, which is more 
 than M. Ahrens contends for (for even he goes the length of 
 saying expressly that " the white race possesses faculties more 
 highly cultivated than the blade," l whilst he makes no attempt 
 to account for this cultivation on any other ground than that 
 of higher natural gifts), all that is important for the support 
 of the opposite conclusion to that at which he has arrived 
 remains. It is not on distinctions of race, whether delible or 
 indelible, that social and political inequality rests in European 
 society generally, and least of all within the same state. 
 Amongst persons of pure Caucasian blood no such distinctions 
 are admitted, or even contended for. Even family distinctions, 
 in the narrower sense of the family, are not placed on this 
 basis. If you were to take ten men from the benches of the 
 House of Lords, and ten men from the hulks, it would be a 
 
 1 P. 230. 
 
THE IDEA OF ABSOLUTE EQUALITY. 399 - 
 
 mere accident if you found the slightest difference between 
 them in point of race ; and it would be the same if you took 
 men promoted to the highest station on personal grounds — 
 the bench of bishops or of judges we shall say — and con- 
 trasted them with an equal number of crossing- sweepers. 
 The whole fabric of inequality, of social and official pre-emin- 
 ence and subordination, hereditary and acquired — which is in 
 reality the whole fabric of society, in so far as society is an 
 organic body and not a mere inorganic and chaotic mob — 
 rests on individual differences and their consequences. Under 
 their consequences, we include, of course, the transmission to 
 others of the results of individual power or weakness, energy 
 or indolence, virtue or vice, whether in the form of wealth 
 and poverty, knowledge and ignorance, or sound and unsound 
 moral training, and the like. Now Ahrens admits the exist- 
 ence of individual inequalities (Hobbes and Spinoza being, I 
 fancy, the only speculators who were bold enough to deny 
 them) ; but, what I confess seems to me scarcely less strange 
 than if he had denied them, he does not admit that they are 
 natural 1 — the result of God's arrangements — but ascribes 
 them to human arrangements, interfering with God and nature, 
 which it is the mission of Christianity to rectify. His posi- 
 tion is consequently the same as that of Eousseau, with the 
 difference that, for the present at least, he seems to hesitate 
 in pronouncing social inequalities to be evils. 
 
 1 Roder denies this (Neuere Bechtsfilosofie in England, TiMnger Zeitschrift, 
 1873, p. 226), but I can attach no other meaning to Ahrens's words. " Les in- 
 egalites," he says, "naissent, d'un c&te, de la culture que les facultes recoivent ehez 
 les divers individus, et, d'un autre cSt4 de l'application differente qu'on leur donne 
 dans la vie sociale " (torn. ii. p. 37, ed-. 1868) ; and much to the same effect. 
 
400 THE IDEA OF ABSOLUTE EQUALITY. 
 
 "We must remark, he says, that the equality which exists is 
 equality only as regards fundamental dispositions and faculties, 
 and that on that basis spring up inequalities deriving their 
 origin on the one side from the culture which the faculties 
 receive in different individuals, and on the other side from the 
 
 different applications which are made of them in social life 
 
 " Tous les hommes sont egaux en tant qu'hommes, mais ils 
 sont inegaux, en tant qu'individus,"— an indisputable pro- 
 position certainly ! But he proceeds thus : " Inequalities are 
 therefore inevitable ; for, on the one hand, the development 
 of each depends on his proper activity" (which one would 
 imagine depended in some degree on his natural gifts) ; " on 
 the other hand, the objects of human life are so vast that a 
 single man can only embrace one of them as his special 
 vocation if he would attain to anything like perfection. 
 Inequality is thus an effect of individual spontaneity and 
 liberty. Human nature is so rich that all the generations 
 and all the nations are insufficient to exhaust its development. 
 These inequalities are, moreover, useful ; for equality of culture 
 and application would cause the whole human race to die of 
 ennui and idiotisme." Strange that the special function of 
 Christianity should be to bring about so sad a result. One 
 would imagine from these last phrases that a basis broad 
 enough to support organic society was being laid after all, 
 however false might be M. Ahrens's reading of nature. 1 But 
 
 1 Ahrens grasps at everything that has the slightest resemblance to an argu- 
 ment in favour of this doctrine, with the desperation of a man supporting a mono- 
 mania. ' ' In the organization of the human body all the parts stand to each 
 other in a conditional relation, and all are equally important ; in ]ik e manner in 
 a good social organism, " &c. — (6th ed. , vol. ii. p. 40. ) One wou]<J think that it 
 
THE IDEA OF ABSOLUTE EQUALITY. 401 
 
 the very next sentence undeceives us : " All the objects which 
 mankind can pursue are equally important and necessary ; 
 because they are all human objects, and hence the social 
 equality of all men — that is to say, the equal dignity of the 
 different occupations or professions of men living in society." x 
 One can scarcely believe one's eyes when one reads such 
 words as these, knowing by whom they were written and how 
 little they are in accordance with the general strain of his 
 teaching. But after thus letting in the waters of anarchy it 
 was needless to deplore their ravages, as M. Ahrens does in 
 his section on Democracy in the 6th edition. 2 To pursue 
 the discussion through the many pages in which these views 
 are expanded and illustrated, and to trace the manner in 
 which the argument is continually shifted from the assumption 
 of individual equality to the assumption of equality of race 
 — what is denied in one sentence being conceded in the next 
 — would be an unwarrantable encroachment on the reader's 
 time and patience. Enough has been said to indicate the 
 character of a doctrine which, if logically carried out, would, 
 by the tacit acknowledgment even of its author, tend to 
 justify those schemes of socialism and communism which have 
 since borne such fearful fruits, and which he ventures to con- 
 demn only as " exaggerations ; " 3 and to warrant me in taking 
 some pains to prove that the opposite doctrine, on which the 
 whole of our social and political structure practically reposes, 
 rests upon a sound theoretical basis. 
 
 might have occurred to him that a man's head could scarcely be dispensed with, 
 but that he might get on very fairly without a finger or a toe. 
 
 1 P. 231. 2 P. 392. 3 p. 245. 
 
 2 C 
 
402 OF THE RELATION OF 
 
 CHAPTEE IV. 
 
 OF THE RELATION OF EQUALITY TO LIBERTY CONTINUED. 
 
 In what sense is equality involved in the idea of liberty ? 
 
 The idea of liberty involves the idea of equality in one sense 
 only — that which is popularly called " equality before the law.'' 
 
 Before stating what is certainly the far older, and what 
 I believe to he the far sounder opinion on the subject of 
 equality, it may be well to recall the position in which the 
 doctrines which we ourselves have evolved place us with 
 reference to the theories which we have reviewed. 
 
 The view of human nature in point of fact — the diagnosis, 
 so to speak — on which we have founded our belief in the 
 rectitude of the existing organization of society in the main, 
 and of the distribution of the gifts of Providence which 
 actually takes place amongst mankind, is the very reverse of 
 that on which Hobbes rested his political system. We have 
 readily admitted the adequacy of Hobbes's premises to support 
 his conclusions. If it were true, as he alleges, that " all 
 men among themselves are by nature equal ; the inequality 
 we now discern hath its spring from the civil law," 1 and that 
 it is " a law of nature that every man acknowledge the other 
 for his equal," 2 I should be far from disputing Hobbes's second 
 proposition that it is " another law of nature " that men allow 
 cequalia cequalibus, or from denying the legitimacy of his infer- 
 
 1 Lav., vol. ii. p. 7, Molesworth's ed. 
 
 2 De Corpore Pol., vol. iv. p. 103. 
 
EQUALITY TO LIBERTY. 403 
 
 ence that the recognition of social and political equality of 
 the most absolute kind would have been inseparable from the 
 vindication of justice. But Hobbes's system, and Spinoza's, 
 in so far as he followed Hobbes, were the only ones in favour 
 of which I felt compelled to acknowledge the merit even of 
 logical consistency. In shrinking from the bold assumption 
 with which Hobbes started, his followers rendered their own. 
 foundations insecure ; and their arguments became more or 
 less sound just in proportion to the extent to which they 
 reverted to that assumption. Between all these systems then, 
 and that which I have maintained, the question at issue, like 
 so many so-called questions of principle, really resolves itself, 
 in the last instance, into a question of fact ; for, if we admit 
 the adequacy of Hobbes's premises to support his conclusions, 
 I think we may assume that Hobbes himself would not have 
 disputed the sufficiency of premises the very opposite to sup- 
 port conclusions the very reverse. His recognition of the 
 cequalia cegualibus would, in that case, have carried him back 
 to the Atos Kpun<s of Plato and to the Aristotelian doctrine, 
 which, as we shall presently see, was known to the scholastic 
 jurists as the proportio. For the determination of this fact, 
 as of all other facts of our nature, I must refer the reader to 
 the tribunal of subjective and objective experience. If, like 
 Hobbes, he shall receive from consciousness, external observa- 
 tion, and history, as the three great exponents of nature, a 
 verdict to the effect that all men are born and continue to 
 be equal in fact, then, accepting the premises, he will also 
 accept the conclusion of Hobbes's system, and recognize the 
 social and political equality of all men as an object which 
 
404 OF THE RELATION OF 
 
 the science of jurisprudence is bound to seek; and this 
 although it should appear to him, as it appeared to Hobbea, 
 that in order to attain it, even approximately, we must be 
 contented to sacrifice liberty altogether, and resort to the 
 desperate expedients of absolute despotism and complete cen- 
 tralization. But if, on the other hand, the verdict which he 
 receives should coincide with that which has been vouchsafed 
 to me j if he should see it, or feel it, to be beyond all rational 
 question that, for reasons which may possibly be hidden from 
 us for ever, but which we are not the less bound to believe 
 are in accordance with the scheme of absolute justioe, God 
 has distributed His gifts to His creatures very unequally, then 
 this distribution being, as I have said, that which it is the 
 object of the soienoe of jurisprudence to oarry into its minutest 
 oonsequenoes, liberty will be saved — the fullest and freest 
 exercise of his faoulties, suoh as they are, will have been 
 seoured to every man — but the attainment of equality, in the 
 absolute sense, will be finally and for ever exoluded from the 
 objeots of jurisprudence. On the latter hypothesis, a legisla- 
 tive enaotment whioh should have equality in this seme for 
 its object would not possess the oharaoteristios whioh I have 
 pointed out as inseparable even from positive law, — it would 
 be simply a legislative misoarriage. 
 
 But what then do we mean by " equality before the law " ? 
 — for that is an objeot whioh jurisprudence surely does not 
 repudiate, which is inseparable from liberty, and whioh, appar« 
 ently, involves the recognition of the most perfeot equality. 
 
 The distinction between " equality before the law," and 
 equality in the sense of the recognition of a right existing in 
 
EQUALITY TO LIJiEltTy. 405 
 
 individuals to oqual shares of God's gifts, or their conse- 
 quencos, udrniLn of a very simple explanation. The method 
 pursued by thu science of jurisprudence in order to discover 
 the truths which it seeks, like that pursued by every other 
 science, necessarily embraces two functions — the one ana- 
 lytical, the other synthetical. 1 
 
 (it) Analytic justice. 
 
 Equality before the law is neithor more nor less than ana- 
 lytic justice. As such, it demands that legislative or judicial 
 investigations shall be conducted with the same impartiality 
 towards the subjects with which they deal, and towards the 
 results which they may yield, as all other investigations that 
 liave truth for their object. When the legislator who is about 
 to onact, or the judge who is about to apply a positive law, 
 proceeds to inquire into the facts of the case with which he 
 has to deal, the value of the claimants, or the suitors, as 
 individuals, are considerations just as irrelevant to him as 
 would be the market price of lead or silver to the chemist 
 who was about to inquire into the presence or tlio absence of 
 lead or silver, or tho proportions in which they existed, in a 
 piece of ore. The individuals, or classes, or nations, whose 
 rights and relations are under investigation, are entitled at 
 the hands of tlio jurist, of the arbiter, or, if no litigation has 
 arisen, of each other, to the same " equality " which the 
 chemist accords to the substances which ho puts into his 
 retorts and bin crucibles. If this equality be denied in either 
 
 1 " lloth aro absolutely nocossary to philosophy, and both are, in philosophy, 
 as much parts of tho snuiu mothod as, in tho animal body, iiiH^iifation and ox- 
 piration aro of thu hiiiiio vital functions,"— Sir W. lliiniilton's Ledwraion Meta- 
 physics, vol. i. p. 00. 
 
406 
 
 OF THE RELATION OF 
 
 case, the result of the inquiry will be vitiated, — the parties 
 will be wronged. The chemist will produce a false report ; 
 the legislator will enact a law which does not fulfil the condi- 
 tions of true positive law ; the judge or the arbiter will pro- 
 nounce a false judgment or an unfair award. Viewed in its 
 analytical function, then, as an inquiry into what lawyers call 
 the "merits/' justice — and liberty, as the object of justice — do 
 unquestionably demand absolute equality ; and this it is, and 
 this only, that is meant by " equality before the law." That 
 all men are equal, to this extent, is the first maxim of the 
 science of jurisprudence. Jew and Gentile, white skin and 
 black skin, the wise man and the fool, the slave and his 
 master, the prosecutor and the criminal, all stand on the 
 same level. 
 
 Nor does this species of equality stop even with the human 
 race. When the Society for the Suppression of Cruelty to 
 Animals brings a question between a horse and a man before 
 the judge, it is his duty to place the horse and the man on a 
 footing of absolute equality ; 1 and we have seen that some- 
 thing analogous takes place when a question arises between 
 the exercise of mere human caprice and the interests even of 
 a plant or a tree. " The last rose of summer " is entitled to 
 " equality before the law." 
 
 (6) Synthetic justice. 
 
 But the absolute equality which governs the inquiry does 
 
 1 On this ground, as well as on the ground of its greater scientific value, 
 if we must have vivisection, its proper subjects seem to be human criminals. 
 In their case, of course, as in the case of the lower animals, all needless suffering 
 ought to be avoided, and the apportionment of needful suffering amongst indi- 
 vidual criminals ought to be relative to the atrocity of their crimes. 
 
EQUALITY TO LIBERTY. 407 
 
 not necessarily belong to the result, for in that case the result 
 would be already determined. If we recur to the physical 
 illustration of which we have just made use, it will be at 
 once apparent that the claim for equality, in the sense of 
 equal shares of whatever may be the object in controversy — 
 wages or labour, power, or honour, or responsibility, or punish- 
 ment — is a begging of the question which it belongs to ana- 
 lytic justice to determine, or a repudiation of the result at 
 which analytic justice has arrived. For what should we 
 think of telling a chemist, beforehand, what the result of his 
 analysis must be — that it must result in the discovery of 
 equal quantities, or equal values, of silver and of lead — and 
 that we will accept it and make use of it on no other condi- 
 tion ? Would he not tell us, in return, that the result was 
 independent both of him and of us, but that, if we would 
 wait for it patiently, he would declare it loyally ; that if 
 nature herself had established the equality on which our 
 heart was set, he would not fail to proclaim it ; but that, on 
 the contrary, if, for reasons with which he had nothing to 
 do, nature had arranged it otherwise, in that case equally he 
 would tell us the truth. Now, precisely in the same manner, 
 it is neither equality nor inequality, but fact, which the 
 analytic jurist being bound to discover and proclaim, the syn- 
 thetic jurist is bound to accept, and to vindicate deductively. 
 Whether the relation, in point of fact, be that of equality, of 
 superiority, or of inferiority, the just award, the true result 
 of the joint action of the two inseparable elements of all 
 scientific method, will be proportioned to that relation. In,' 
 other words, the duty of the practical jurist, whether legis- 
 
408 OF THE RELATION OF 
 
 lator or judge, will be to see, not that all men are equal, but 
 that those who are equal shall have equal shares, and that 
 those who are unequal shall have unequal shares proportioned 
 to their inequality} His function will be to assign to the 
 incequales the incequalia which the previous investigation, the 
 analysis, has shown to be theirs. 
 
 As regards the relation between equality and liberty, then, 
 the conclusion at which we arrive is this : The principle of 
 analytic justice is equality — the principle of synthetic justice 
 is proportion, the terms of which are determined by the previ- 
 ous analysis. "When these two principles are vindicated, the 
 sphere of jurisprudence is exhausted, and liberty, as its object, 
 is realized. 
 
 There can be no doubt that the political teaching of Socrates 
 embraced the distinction between what I have here called 
 analytic and synthetic justice. Plato states it quite clearly, 
 as will be seen from the subjoined passage from the Laws, 
 which I am now able to give in Dr Jowett's classical trans- 
 lation ; 2 and Aristotle worked it out, in greater detail, first in 
 the Ethics and then in the Politics. 
 
 x t£ fihv yd,p ixei^ovt ■n-A.eiw, *r£ 5' tk&TTovi fffjuKpSrepa rc/iei, k.t.K. — Plato, Laws, 
 lvi. c. v. ph 1<toi ovk Xaa %t,ovtri, et vice versd. — Aristot. Eth. Nic., v. c. iii. et seq. 
 
 2 The old saying that "equality makes friendship," is witty and also true; 
 but there is obscurity and confusion as to what sort of equality is meant. For 
 there are two equalities which are called by the same name, but are in reality in 
 many ways almost the opposite of one another ; one of them may be introduced 
 without difficulty, by any state or any legislator in the distribution of honours : 
 this is the rule of measure, weight, and number, which regulates and apportions 
 them. But there is another equality, of a better and higher kind, which is not 
 at once recognized. This is the judgment of Zeus, which has little place in 
 human things ; that little, however, is the source of the greatest good to indi- 
 viduals and states. For it gives to the greater more, and to the inferior less, 
 
EQUALITY TO LIBERTY. 409 
 
 But the learning and ingenuity of two thousand years, 
 culminating in that of modern Germany, appears to have 
 failed to evolve a consistent and exhaustive theory of justice 
 from Aristotle's discussions, in the form in which they have 
 come, down to us. 1 And yet all men recur to them for in- 
 struction, and recur to them not in vain, because they proclaim 
 the great principle that all applied justice is necessarily pro- 
 portional justice, and that the equality which it measures out 
 is not absolute equality, but equality which shall bear an 
 absolutely accurate relation to the facts of nature, and to their 
 consequences. In Eome, during the earlier and better portion 
 of her history, the distinction secured practical if not theo- 
 retical recognition; and the best minds of the middle ages 
 preserved a perfectly clear conception of the " proportio." 
 
 always and in proportion to the nature of each ; and, above all, greater honour 
 to the greater virtue, and to the less less ; and to either in proportion to their 
 respective measure of virtue and education. And this is justice, and is ever the 
 true principle of politics, at which we ought to aim, and according to this rule 
 order the new city which we are founding, and any other, city which maybe 
 hereafter founded. 
 
 1 I used to think that this would be possible by identifying diorthotic justice 
 (Stxatop 8iop8uTiic6v) with what I have here called analytic, and dianemetic justice 
 (Stxaiov Siove / u7)TiK((i') with synthetic justice, and that order might thus be brought 
 out of the confusion into which the 5th Book of the Nicom. Ethics confessedly 
 has fallen. On a re-examination of the text, with the light which Professor 
 Trendelenburg's learned dissertations (Zwr Aristotelisehen Ethilc. Historische 
 Beitrdge zur Philosophic, vol. iii. p. 399, Berlin 1867) throw on it, I am con- 
 vinced that no such identification is warranted. Aristotle unquestionably in- 
 tended both as subdivisions of applied, or synthetic justice ; and in this sense, 
 as I have explained above, I cannot subscribe to the absolute distinction by which 
 the one is confined to public, and the other to private law, which Professor 
 Trendelenburg appears to accept. I think they involve each other, and that 
 both must come into play in every department of jurisprudence. For the 
 scholastic distinction between commutative and distributive justice, see Thomas 
 Aquinas, Sum. Sec. Sec, quaes, lxi. art. 1. 
 
410 OF THE RELATION OP 
 
 " Jus," says Dante, " est realis et personalis hominis ad 
 hominem proportio, quse servata servat societatem, et cor- 
 rupta corrumpit ; " 1 and Thomas Aquinas, " Materia justitiae 
 est exterior operatio, secundum quod ipsa operatio vel res 
 cujus est usus, debitam proportionem habet ad alteram per- 
 sonam ; et ideo medium justitiae consistit in quadam pro- 
 portionis sequalitate rei exterioris ad personam exteriorem." 2 
 And still more definitely, in speaking of distributive justice, 
 he says, " Et ideo in justitia distributive non accipitur medium 
 secundum sequalitatem rei ad rem, sed secundum proportionem 
 rerum ad personas, ut scilicet una persona excedit aliam, ita 
 res quse datur uni personas, excedat rem quse datur alii." 
 And he applies it thus, " Tant6 plus alicui de bonis communi- 
 bus datur, quant6 ilia persona majorem habet principalitatem 
 in communitate." 3 
 
 In like manner the principle of proportion appears to have 
 been recognized by the great lights of our own jurisprudence. 
 "Justice," says Lord Stair, in a little book which is gener- 
 ally ascribed to him, " implies proportion. . . . Though all 
 the damned be eternally punished, yet not equally ; because 
 there is not equal strength to bear, and more atrocious guilt 
 to punish, — it shall be more tolerable for Sodom and Gomor- 
 rah than for Capernaum." — Divine Perfection, pp. 181, 182. 
 If there is to be proportion in intensity, why not in duration ? 
 One would fancy that here Lord Stair's reason could scarcely 
 have failed to conflict rather rudely with his orthodoxy. 
 
 1 Be Monarchid, lib. ii. sect. 5. 
 
 2 Sec. Sec., quaes, lviii. art. 10. Rbder's Naturrecht, vol. i. p. 115. 
 
 3 Sec. Sec., quaes. Ixi. art. 2. 
 
EQUALITY TO LIBERTY. 411 
 
 It would be interesting to inquire, more carefully than we 
 have done, when the vulgar conception of equality, which 
 since the French Eevolution has made such insane havoc in 
 European politics and economics, first assumed the aspect of a 
 speculative doctrine. It is certainly older than Hobbes, and 
 is, as I have said, 1 traceable as far back, at any rate, as the 
 attempts of the Jesuits to found a theocracy by levelling 
 down all secular distinctions before the Church. Whether or 
 not we can recognize it in the demands of the leaders of 
 Wat Tyler's insurrection in 1381, of which I shall speak 
 by-and-by, might be questioned; and I doubt whether the 
 theories even of the extremest republicans of the Common- 
 wealth embraced it. But there is, as I have said, no trace 
 of it in the chief of the schoolmen, though the times in which 
 he lived — those of Simon de Montfort — were such as might 
 naturally have raised such questions ; and whencesoever it 
 may have come, it most assuredly did not come from Aris- 
 totle, for he unmistakably extends the proportio (to kwt &£(mr 
 iow) not only to justice in every form in which it is known 
 to jurisprudence, but to justice in forms in which jurispru- 
 dence can scarcely approach it. 2 "Even friendships," he 
 says, "which appear unequal, are equalized and saved by 
 proportion (to avdXoyov), just as tanners, shoemakers, and 
 weavers exchange their commodities in proportion to their 
 value." 3 
 
 This great principle of proportion, before which the spirits 
 of misrule tremble as if it were holy water, being once 
 secured, it is doubtful whether much is gained for science by 
 
 1 Ante, p. 378. ' Trendelenburg, ut sup., 408. 3 Nic. Eth., ix. 1. 
 
412 OF THE EELATION OF 
 
 dividing applied justice under different heads, as Aristotle 
 did, or as Eudemus did for him. Such absolute distinctions 
 as those which would confine dianemetic or distributive jus- 
 tice to public, and diorthotic or corrective justice to private 
 affairs and the righting of wrongs, whether criminally or 
 civilly, cannot be maintained. 1 If we take the familiar in- 
 stance of the distribution of a bankrupt estate, we shall see 
 distributive justice acting as unmistakably as when the State 
 distributes its honours, rewards, and responsibilities, and with 
 more mathematical precision. Suppose one man has invested 
 £50, and another has invested £500, in the concern, and that 
 the dividend is Is. per £. The one man will get £2, 10s., 
 whilst the other gets £25. The proportion is preserved, and 
 the whole proceeding is dianemetic, though it takes place 
 within the sphere of private law. Then, as regards the other, 
 the diorthotic principle, which is said to be confined to private 
 law, and to act by simple addition and subtraction. Is it not 
 obvious that it may be called into action in public, just as the 
 dianemetic principle may be called into action in private law, 
 and that it may there act in the same manner ? For suppose 
 the State hitherto has wronged a particular class of persons, 
 we shall say, by giving them less political power than corre- 
 sponded to their real weight or value in the State, will not 
 the remedy in this case be effected diorthotically (correctively) 
 by giving to them, and in giving to them by taking away 
 from other classes, such an amount of power as shall restore 
 the true political balance (the proportio) between them ? And 
 is not this remedy just the dianemetic result, the distributive 
 1 Ante, p. 409, note. Lord Stair gives it universal application, ut sup., 184. 
 
EQUALITY TO LIBERTY. 413 
 
 justice, which in this case is worked out in, the form of correc- 
 tive justice ? These two principles, then, resolve themselves 
 into each other, or, at most, they are two different forms of 
 synthetic justice, the application of the one or of the other of 
 which depends on the circumstances of the case, and not on 
 the department of law — public or private, national or inter- 
 national — in which it is called into play. The same remarks 
 apply to retributive justice (ro <WnreTrov0os, retaliatio, jus tali- 
 onis), the action of which Aristotle is also carefnl to limit to 
 the Ka.T avaXoyCav ko.1 /u/>7 «<"■' 'ur6rt)Ta} and I think to every other 
 kind of justice— -if other kinds there be — in whatever rela- 
 tions they may be called into play. 
 
 If the distinction between diorthotic and dianemetic justice, 
 in the form in which it is usually stated, be Aristotle's at all, 
 which may well be doubted, it is perhaps to be accounted for 
 on the ground that, being a politician and not a lawyer, he 
 felt the necessity of the limitation which the proportional 
 element seemed to impose more forcibly in public than in 
 private law. That, unlike the modern world, Aristotle was 
 deeply impressed with the necessity of excluding absolute 
 equality from the sphere of politics cannot be doubted. On 
 this subject his dicta are consistent and unequivocal. But his 
 position, even in this respect, would have been strengthened, 
 and his object more effectually attained, had he, or his inter- 
 preter, perceived that equality is the principle of analytic 
 justice exclusively, that there it is absolute, and does not 
 come into action in synthetic justice at all, in any depart- 
 ment, either public or private, otherwise than accidentally — 
 
 1 Trendelenburg, ut sup. , p. 404. 
 
414 OF THE RELATION OF EQUALITY TO LIBERTY. 
 
 i.e., as a result of the antecedent analysis. From this source 
 — from nature as interpreted by science — it is true that its 
 appearance on the political horizon remains formally possible. 
 If nature should repent her of what so many seem to regard 
 as her previous wrongs, and for the future should send men 
 into the world equally endowed; if further, by their own 
 efforts, by mutual aid, or any other means, they should de- 
 velop themselves equally, and keep abreast of each other — 
 if all workmen, for example, should possess the same skill 
 and industry, and produce the same quantity and quality 
 of work, then the economist and the politician, like the 
 judge, must take them as he finds them, and recognize their 
 equality. Till these occurrences take place, absolute equality 
 and liberty are irreconcilable conceptions, — aspirations which 
 mutually exclude each other, — and the apparent reconciliation 
 of which, even for a time, can be purchased only at the sacri- 
 fice of justice. 
 
 CHAPTE.E V. 
 
 OP THE LIMITS WITHIN WHICH AGGRESSION IS A NATURAL RIGHT. 
 
 (a) Aggression is a natural right, the extent of which is 
 measured by the power which God has bestowed on the aggressor, 
 or permitted him to develop. Up to this point, the right of 
 conquest, individual, social, political, and ethnical, is involved in 
 the idea of liberty, and included in the objects of jurisprudence. 
 
LIMITS OF AGGRESSION AS A NATURAL RIGHT. 415 
 
 To those who have accepted our doctrine with reference to 
 the sources of jurisprudence, and the consequent rectitude of 
 the de facto principle, when seen at once from the subjective 
 and objective side, the soundness of this proposition, startling 
 as in its practical aspect it at first sight appears, in so far as 
 logic is concerned, will be even more obvious than that for 
 which we have just been contending. If God be the source 
 of life, and life be the source of rights, life in every form 
 warrants the amount of aggression that is requisite for its 
 preservation and development, and the higher the life the 
 greater the amount of aggression which it warrants. 1 Man 
 is the aggressive animal, par excellence ; and the most prolific, 
 the most highly endowed and developed men, and races of 
 men, are the most aggressive. The process is one which we 
 contemplate with approval every day, in the individual, the 
 family, the state, the race ; — the able, the active, the industri- 
 ous, the frugal, the instructed, the earnest, supplant the weak, 
 the indolent, the idle, the ignorant, the frivolous. The rule 
 is one to which there are no real and ultimate exceptions at 
 all. But there are many hidden sources both of power and 
 weakness, and there are many successes and failures which 
 are only apparent ; and it is by omitting to notice the former, 
 and by dwelling on the latter — by watching the wave whilst 
 we fail to observe the tide — that, to our eyes, it seems as if 
 " the race were not to the swift, nor the battle to the strong." 
 The region in the history of human affairs which we assign to 
 chance is merely a territory of mystery to which the under- 
 standing does not penetrate. It is neither lawless, nor governed 
 
 1 Ante, p. 170. 
 
416 OF THE LIMITS WITHIN WHICH 
 
 by any other laws than those with which we are familiar. 
 Providentia, fatum, natura, casus, fortuna, sunt ejusdem Dei 
 varia nomina} But there are directions in which the under- 
 standing is led astray by partial or intermittent light. In a 
 calculation of chances otherwise accurate, the moral element 
 in the combatants or their leaders, or the influences of the 
 good and the bad cause, escape our observation, or count for 
 less than their due, and we are startled by what seem to 
 be results without causes. And yet there is nothing more 
 exceptional in the case of a handful of conquerors overrun- 
 ning a corrupted and degraded people than when nerve con- 
 quers muscle, or the invalid survives the illness of which the 
 strong man dies. Again, the exertion of a single faculty, or 
 a spasmodic effort of the system, often produces immediate 
 success, just as the gratification of a single passion produces 
 immediate pleasure. But the partial character of the success, 
 and the ephemeral nature of the pleasure, taken along with 
 the cost at which they are purchased, deprive them of all 
 absolute reality. They are comparable only to the joys of 
 intoxication, or the triumphs of the lunatic or the fever- 
 patient over his keeper or his nurse. 2 
 
 Moreover, the limits of the right of aggression are deter- 
 
 1 Seneca, De Benefitiis, iv. 8 ; Culverwell, p. 38. See also Hume, Essay II. 
 " Liberty and Necessity ;" and Calderwood, p. 176. 
 
 2 To this category the conquests of the first Napoleon, and the consequent 
 intoxication of his countrymen, emphatically belonged. They were no more 
 instances of real success than the hallucinations of insanity are proofs of fact. 
 The same may be said of the conquest of Alsace by Louis XIV. , and would no 
 doubt have come true of that of Rhenish Prussia and Bavaria, had France proved 
 successful in the late war. The inroads of the so-called barbarians on the effete 
 Roman Empire, on the other hand, were true, and have been enduring conquests ; 
 
AGGRESSION IS A NATURAL RIGHT. 417 
 
 mined for us by the same principles by which its reality is 
 guaranteed ; for we have seen that, from the necessary inter- 
 dependence of rights and duties, there can be no aggression 
 which is either rightful or real on the part of the aggressor, 
 by which the object of the aggression is not an equal gainer. 
 All aggression which is really and ultimately destructive 
 either of life or liberty on the whole, is excluded from the 
 objects of jurisprudence by the de facto principle, on the 
 ground that it is self- contradictory and suicidal, — that it 
 counteracts its professed action, — that it ceases, in short, to 
 be what it calls itself. You thus perceive once more that if 
 might be right, it is not less true that right is might : and 
 for this simple reason that, in the last analysis, they are 
 necessarily coincident. It is man's weakness and wickedness 
 alone which puts asunder, for a time, what in God is ulti- 
 mately united; for "there is no power but of God." 1 When 
 applied to international relations, these principles suggest the 
 conditions of the exercise of the right of national and ethnical 
 development and expansion. They reconcile us to the course 
 of the world's history, as they do to that of our country, our 
 county, our parish, our profession, our family, or to our own. 
 That the Anglo-Saxon race should supplant the Eed Indian 
 in America, or the Celtic in Scotland, in Ireland, and in Wales, 
 are occurrences which, if brought about by natural means, 
 are as fully in accordance with natural law, — as much in the 
 
 whereas the conquests of the Turks were the result of temporary dissensions 
 between the Christian races, in whose hands the real power always was, and are 
 now being gradually reversed. 
 1 Rom. xiii. 1. 
 
 2 D 
 
418 OF THE LIMITS WITHIN WHICH 
 
 interests of the supplanted, — as that B, who had made a 
 fortune, should purchase an estate for a price which, otherwise 
 invested, will yield more than its rental, from A, who has lost 
 a fortune and is in want of a living ; or that D should be 
 appointed to an office for which C has become incapable, and 
 his retention of which could only cover him with disgrace. 
 Mr Froude has, with great truth as it seems to me, traced the 
 woes of the Irish mainly to the fact of their refusing to accept 
 a conquest the reality of which they were unable to disprove, 
 and attempting by murder and fire-raising to supply the place 
 of legitimate warfare. 1 
 
 1 The English in Ireland m the Eighteenth Oentury. — " The difficulties of Ireland 
 are sometimes dismissed as an insoluble problem ; but it is at the least worth 
 while to acquaint ourselves thoroughly with the historical circumstances out of 
 which those difficulties have grown. The examination of this history seems to 
 lead irresistibly to the conclusion that the wretchedness of Ireland is the result 
 of a fallacy which has taken fatal hold of a large section of the Irish people. 
 That fallacy lies in the notion of an absolute right, inhering in each people, to 
 local and independent self-government. In the author's belief, no such absolute 
 right exists. The title to this privilege must be contingent on the power of a 
 nation to defend itself, and the power of a nation to defend itself must depend 
 generally on the ability of a nation to govern itself, and to present a steady and 
 compact front to all assailants from without. In short, the right to resist depends 
 on the power of open resistance ; and there are certain courses to which a nation 
 is not justified in resorting when that power fails them." 
 
 " This truth is brought out with singular clearness by a comparison of the his- 
 tory of Ireland with that of Wales and Scotland. The premature violence of 
 Edward I. hardened Scotland irrecoverably into a separate nationality, and thus 
 the union, when it came about at last, was effected on equal terms. The Welsh 
 resisted with desperate bravery until resistance became obviously hopeless ; and 
 then, loyally and wisely accepting their fate, they were received on equal terms 
 as joint inheritors of a magnificent empire. The people of Ireland might have 
 resisted like Scotland, or, failing this, might, like the Welsh, have retained their 
 language, their customs, and religion. They chose to adopt a third course. 
 Leaving always an unguarded side open to attack from without, their contending 
 factions never failed to supply men ready to do the enemy's work for the further- 
 
' AGGRESSION IS A NATURAL RIGHT. 41 d 
 
 But what are natural means ? Does the natural right of 
 conquest justify the use of force ? and if so, when ? and to 
 what extent ? 
 
 (b) An end that is just, justifies the means requisite for its 
 attainment; the right of aggression, consequently, justifies the 
 application of force, and involves the right of war, when, and to 
 the extent to which, force or war is necessary for its vindication. 
 
 An art is more or less perfect in proportion not only to 
 the completeness with which it accomplishes its object, hut 
 to the smallness of the means which it employs, the friction 
 which it causes, or the force which it expends. The law of 
 parsimony has practical as well as theoretical validity. If 
 aggression then he, as we have seen, one of the objects of 
 natural law, and if force be indispensable to the attainment" 
 of that object, the use of force to this extent is justified by 
 natural law, and its application falls within the sphere of 
 jurisprudence as an art ; but the perfection of this art will be 
 greater or less in proportion to the smallness of the amount of 
 force with which it realizes just and necessary aggression. 
 Neither in this nor in any other respect is there the slightest 
 difference in the principles which govern public and private 
 relations. In both, the legitimate amount of aggression is 
 that which corresponds to the real power of the aggressor, and 
 the legitimate amount of energy or force is that absolutely 
 requisite for its realization. Here, as everywhere, the end 
 
 ance of their private advantage ; and when the victory of the enemy was thus 
 insured, the alternative of cheerful submission, rewarded by equal partnership, 
 was rejected for discontent, and for a war of assassination systematized by secret 
 tribunals. " It is precisely on the same principle that, in private life, men are 
 entitled to fight but not to quarrel. 
 
420 OF THE LIMITS WITHIN WHICH 
 
 justifies the means only to the extent to which the value of 
 the end exceeds the value of the means. 
 
 If states were reasonable beings, living under a rational 
 system of international law, the richer and more populous 
 country would flow over gently into the other by voluntary 
 arrangement, and this to their mutual benefit. The fact of 
 conquest, like the fact of purchase, would, if necessary, be 
 ascertained judicially, and its recognition would be enforced 
 executively. Such a process in /minimis, may sometimes be 
 seen where both states are members of the same confederation, 
 and where no international jealousies hinder this natural pro- 
 cess of adjustment, as, for example, in the Swiss cantons, or 
 in our own counties ; and this fact, if it stood alone, would 
 furnish a powerful argument in favour either of very small 
 states or of universal empire, or of the two in conjunction. 
 But whilst men continue to be men, the objections to such 
 schemes are obvious, even if their realization were not im- 
 possible; and as the great independent nations, and separate 
 races of mankind, have not yet become reasonable entities, or 
 developed a rational system of international adjustment, it 
 is plain that natural rights of aggression, when they arise 
 in point of fact, will in general have to seek realization by 
 means of force. Nor is it less obvious that if the question 
 be between the non-realization of this right, and its realiza- 
 tion by the application of force, even in the terrible form of 
 war, the latter may often be the preferable alternative ; for 
 the former, even if it were possible, which it is not, would 
 involve the abandonment of the end, whereas the latter 
 secures its attainment, though at a terrible, and perhaps need- 
 
AGGEESSION IS A NATURAL EIGHT. 421 
 
 less expenditure of means. Let us strive then for the 
 abolition of war by the development of a self- vindicating 
 system of international jurisprudence ; but let us not waste 
 our time and our energies in futile efforts for its direct 
 abolition, before we have succeeded in supplying its place, 
 and providing, by peaceable means, for the vindication of the 
 natural right of aggression. 
 
 The most terrible responsibility that can fall to the lot of 
 man is that of determining the point at which a casus belli 
 has arisen ; and this responsibility is heightened by the fact 
 that there is scarcely any cause that is wholly just' and pure. 
 But as a counterpoise to scruples which may paralyze the 
 arm of duty as well as restrain the hand of violence, it is 
 well on such occasions to remember, that as there are central 
 truths to which we must hold, notwithstanding the admixture 
 of error which we detect in the forms in which they are pre- 
 sented to us, so there is a central right — a " right side " — in 
 every question which, if we can but find it, we are entitled to 
 embrace, and for which, if need be, we are bound to fight if 
 we are able, notwithstanding the wrongful manner in which 
 it may have been hitherto, or may still be, maintained. A 
 cause, a party, 1 or a state which is mainly in the right, 
 though partially wrong, merits not our sympathy alone, but 
 our support, against one which is mainly wrong, though par- 
 tially right. Virtue and knowledge may or may not be 
 
 1 The tendency of all parties, however, to be driven into extremes by the spirit 
 of opposition which animates them, is so great that implicit faith in them has 
 always been regarded as an indication of mental imbecility. "The superior 
 man," said Confucius, "is catholic and no partizan. The mean man is a par- 
 tizan and not catholic."— Legge's Chinese Classics, vol. i. p. 14. 
 
422 LIMITS OP AGGRESSION AS A NATURAL RIGHT. 
 
 identical ; but imperfection is a characteristic which clings, in 
 this world, to the realization of both. There are, it is true, 
 no imperfect obligations, and therefore we must make no 
 compromise even with little sins. But nations, like indi- 
 viduals, obey as they know, only in part ; and from both the 
 most scrupulous of us must be satisfied with that partial 
 obedience which, as sinners ourselves, we hope may be 
 accepted by Him who "hates sin with a perfect hatred." 
 
BOOK III. 
 
 OF THE SOURCES OP POSITIVE LAW, OR 
 SPECIAL JURISPRUDENCE 
 
CHAPTER I. 
 
 OF THE ULTIMATE SOUKCES OF POSITIVE LAW. 
 
 rpHE ultimate sources of positive law are — 
 
 »(a) The Law of Nature. 
 
 (b) The conditions of existence under which that law must be 
 realized. 
 
 But the perfect realization of the law of nature, even in the 
 relative sense of its perfect adaptation to the circumstances 
 of imperfect beings, is impossible to such beings from four 
 causes : — 
 
 1st, The imperfection of their knowledge of the law to be 
 i realized. 
 
 \ 2d, The imperfection of their knowledge of the conditions 
 ' of its realization. 
 
 3d, The imperfection of their power to realize it as known 
 I to them. 
 
 J 4th, The imperfection of their will to realize it as known 
 and possible to them. 
 
 Though human autonomy, in the abstract, be demonstrable 
 beyond dispute, human autonomy, in the concrete, thus suffers 
 serious limitations ; and in our search for the limits within 
 
42 G OF THE PROXIMATE SOURCES OP POSITIVE LAW. 
 
 which and the means by which it is practically attainable, we 
 have to look, not to the ultimate, but to the proximate sources 
 of positive law. 
 
 CHAPTER II. 
 
 OF THE PROXIMATE SOURCES OF POSITIVE LAW. 
 
 The proximate sources of positive law, or the sources of posi- 
 tive law as such, like the sources of natural law, may be divided 
 into (a) Primary, and (b) Secondary. 
 
 (a) The primary source of positive law is the real power of 
 the whole community subject to the law, as exhibited in and 
 measured by its rational will. 
 
 (b) The secondary sources of positive law are the means by 
 which the community vindicates its real as distinguished from 
 its merely apparent power, or, in other words, asserts its rational 
 will. 
 
 CHAPTEE III. 
 
 OF THE PRIMARY SOURCE OF POSITIVE LAW. 
 
 The definition which I have given of the primary source of 
 positive law involves the following propositions : — 
 
 (a) That real positive law, as distinguished from mere enacted 
 
OF THE PRIMARY SOURCE OF POSITIVE LAW. 427 
 
 law, will exist in a community, that the community will be prac- 
 tically autonomous, to the extent to which power and reason exist 
 and coincide m it, or, in other words, to the extent to which its 
 power is real and not merely phenomenal. 
 
 In our previous discussions we have seen that the fact that 
 power is the root of law, is guaranteed to us by the necessary 
 coincidence, to our minds, of the two conceptions. Absolute 
 power and absolute law differ only as different manifestations 
 of the same divine influence. If "might makes right," it is 
 equally true that "right makes might." As a whole, the 
 universe must be a perfect Kosmos ; at all events, we who 
 are part of it, and have no higher or other measure of Kosmos — 
 of Order — than its laws, cannot think of it otherwise. To us 
 the relative and the absolute are necessarily coincident, so that 
 in accepting God's will as our law, we do not sacrifice the 
 absolute character of morality. But this world is a part of this 
 perfect Kosmos, equally subject with every other part of it 
 to the same power and the same law. It would thus appear 
 that the coincidence of power and law, which we must predi- 
 cate of the whole, we must equally predicate of the part — in 
 other words, that " might and right " are ultimately coincident, 
 even in this present world. But though we are impelled by 
 our reason to accept this result as ultimately irrefragable by 
 us, we are shut out from it, proximately, by experience, the 
 reality of which is guaranteed both by internal and external 
 evidence. The presence in the actual life of man — our own 
 and that of others — of those mysterious and contradictory 
 elements which exhibit themselves as imbecility, ignorance, 
 and an evil will, not only limit in man the manifestations 
 
428 OF THE PRIMARY SOURCE 
 
 both of power and of law, but render their coincidence neces- 
 sarily partial. As there is law which does not generate power, 
 so there is power which does not generate law — nay, which, 
 for the time being, destroys it. By what test, then, shall 
 we distinguish power which is, from power which is not, 
 legislative ? Now with this test we are already familiar. It 
 is the test of that ultimate reality which arises from harmony 
 with nature as a whole, as opposed to partial nature. If 
 I nature be true, all power which manifests itself as opposition 
 to nature must be false, contradictory, and ultimately suicidal 
 I — not real and ultimate power, but only phenomenal and 
 /evanescent power. But reason is the recognition by man of 
 truth, or, in this relation,- of the harmonious teaching of nature. 
 Eeason is nature— ultimate nature — revealing herself in the con- 
 jsciousness of the individual and the race. Beal power is thus 
 iihe power which reason tells us is coincident with nature, not 
 in part, but in whole ; and as it is this power which alone can 
 be ultimately legislative, I think the conclusion is warranted 
 that the extent to which a given community is autonomous, or 
 'self-governing, will be measured by its real power. It is the 
 vicious habit of breaking nature into two — a good nature and 
 a bad nature — in place of regarding what is called "bad 
 nature " as unnatural, false, the antagonistic element to nature 
 as ultimately manifested even in time and space, that has led 
 some to imagine that in invoking reason as a source of positive 
 law, I am calling in some Deus ex machind to help out a specu- 
 lative system which had proved inadequate for practical pur- 
 poses. So far from regarding reason, " the spirit of truth," as 
 something antagonistic to, or even different from, nature, I 
 
OF POSITIVE LAW. 429 
 
 regard it, as those who have followed my previous reasoning 
 with any degree of completeness cannot fail to know, as 
 neither more nor less than the divine element of nature as a 
 whole, making its voice heard above the distracting and self- 
 contradicting outbursts of our separate impulses. Eeason, in 
 this sense, is nature not only revealing truth, but revealing 
 power, telling us the condition of its ultimate efficiency, its 
 reality. Eeason is thus the necessary concomitant of power, 
 the condition of effective legislation sine qud non. But we 
 are shut out from making reason or right, as distinguished from 
 power or might, the source of legislation by two considera- 
 tions : 1st, "We should thereby invert the order in which the 
 two phenomena — power and reason — present themselves, 
 ontologically ; for the primary postulate of existence is power, 
 not reason. 2d, We should reduce legislation, and, conse- 
 quently, jurisprudence, to the condition of a formal science, 
 and deprive it of the means of enforcing its decrees. On the 
 other hand, the distinction between real and apparent reason 
 is frequently more obvious than that between real and appa- 
 rent power, and reason thus becomes the safer starting-point. 
 What we must, above all, bear in mind, however, is their in- 
 separability. There never was a reasonable — wise — man or 
 nation that was not ultimately powerful also ; there never 
 was an unreasonable — foolish — man or nation that did not 
 come to material grief. 
 
 (b) Positive law can originate and subsist in a community 
 only to the extent to which that community is free, and all true 
 legislation is thus, in the last analysis, self-legislation. 
 
 Freedom and power, for our present purpose, may be re- 
 
430 OF THE PRIMARY SOURCE 
 
 garded as convertible terms. The Creator, who is omnipotent, 
 alone is absolutely free. The freedom of created beings, like 
 their power, is limited ; but this limitation does not prevent 
 the one from corresponding accurately to the other. Nor is 
 there any exception to this rule in the case of what we call 
 latent power. The strong man in fetters is popularly re- 
 garded as one whose power is unimpaired, though his liberty 
 be gone ; but a moment's reflection suffices to convince us 
 that his liberty is latent like his power, and precisely to the 
 same extent. The correspondence of power to freedom then, 
 and of freedom to power, may be stated as absolute ; and of 
 communities, as of individuals, we may say that they are 
 free to the extent to which they are powerful, and powerful 
 to the extent to which they are free. " A law is founded," 
 says Culverwell, "in intellectuals, in the reason, — not in 
 the sensitive principle. It supposes a noble and free-born 
 creature, for where there is no liberty there is no law." 1 The 
 coincidence between freedom and law results, moreover, not 
 only from our acceptance of power as the source and measure 
 of both, but of freedom as the object of law, 2 and the obvious 
 consequence that they can be realized only in common. 
 
 In opposition to this train of reasoning, however, it may 
 occur to the reader that a definition which, by identifying 
 legislation with self-legislation, denies the character of positive 
 law to all law imposed by external human authority, con- 
 flicts, or may conflict, with the de facto basis which we have 
 assigned to jurisprudence. If power, you. may say, be the 
 source of all law, if the fact of the reality of power be the 
 1 P. 62. 2 Ante, p. 355 et seq. 
 
OF POSITIVE I/AW. 431 
 
 warrant for its exercise, — why should not the power of a 
 conqueror, or of a conquering race, be the source of legitimate 
 positive law ? The power of Eussia over Poland, and of Ger- 
 many over the recently conquered French provinces, as a 
 phenomenon, is for the present unquestionable ; and inasmuch 
 as it is not impossible that it produces a higher degree of 
 individual freedom of action than any which either Poland or 
 Prance ever succeeded, or would have succeeded, in attaining 
 by their unaided efforts, it is not inconceivable that it may 
 be real permanent power — the result, not of any ephemeral 
 spasmodic and self- counteracting effort, but of the normal 
 exercise of the right of aggression by autonomous on anar- 
 chical races, which we have admitted within the sphere of 
 natural law. 1 Is there, then,, any ground on which the char- 
 acter of positive law can be withheld from the law of Eussia as 
 administered in Poland, or that of Germany as administered 
 in Alsace ? My answer is, that the law of the conqueror, as 
 the only means of attaining or approximating to the attain- 
 ment of the object of all law, may be good positive law to the 
 conquered state for the time being, or even permanently; 
 though, in its primary aspect, it is not the positive law of the 
 conquered state. Take, as an example, our government of 
 the anarchical native states of India. The source of the law 
 which we administer to them — its positive source — is else- 
 where — viz., in the overbalancing weight of the conquering 
 power, occasioned by the higher reason which for the time 
 being resides in that power, from its being more real. A 
 conquered province or nation is, in the community of nations, 
 1 Ante, p. 415 et seq. 
 
4 32 OP THE PRIMARY SOURCE 
 
 in the position of the party that is out-voted, or of the in- 
 dividual who is not sui juris in the civil community. Both 
 obey a law to which, directly at least, they have not Con- 
 sented; hut which, inasmuch as by vindicating Kosmos it 
 ministers to the attainment of liberty on the whole, their 
 own included, is not on that account the less entitled to the 
 character of positive law, even to them. 
 
 Such is the direct aspect of the matter, and it is in this 
 consideration that all compulsory legislation and jurisdiction 
 find their immediate justification. If the concurrence of the 
 convicted criminal, or the unsuccessful litigant, in the sen- 
 tence of the judge, were the condition, sine qyA non, of its 
 execution, positive law would be an idle name. 
 
 But this is only the primary aspect of the matter. It by 
 no means follows that, even in what thus appear to be ex- 
 ceptional instances, volition is not present as a source of law. 
 There is such a thing as normal and general, as opposed to 
 special and exceptional, assent, just as there are normal or gen- 
 eral, as opposed to exceptional and special impulses. It can 
 scarcely be said that the patient assents to the actual wrench 
 by which the dentist quenches rebellion, and gives victory to 
 law. And yet the justification of the dentist for the appli- 
 cation of vis major from without rests not only on the fact 
 that he has vindicated order and realized liberty, but that he 
 has done so with full concurrence of their recipient, and even 
 by his positive instructions. And precisely in the same way, 
 though the infant, the imbecile, the criminal, or the politician 
 who is out-voted at the poll, does not consent to the applica- 
 tion of the law which takes place in his own case on the par- 
 
OF POSITIVE LAW. 433 
 
 ticular occasion, it is nevertheless fairly presumable that that 
 law is in accordance with the rational will which governs his 
 whole being, so far as his being is governed by a rational 
 will, and, as such, is autonomous at all. There are few 
 lunatic asylums which do not contain patients who have been 
 placed in them, and are even forcibly retained in them, by 
 their own normal, as opposed to their abnormal will ; and 
 many men have been punished, and some even hanged, in 
 accordance with their own wishes. But we have seen that 
 legitimate conquest can take place only on the ground of the 
 conquered exhibiting characteristics analogous to those of in- 
 fancy, imbecility, and .criminality, or, at all events, being, as 
 it were, fairly and on rational grounds out-voted by the con- 
 quering power ; and as there is a general assent which the 
 citizen of the world, who is mi juris, gives to its laws, just 
 like that by which the citizen of the state binds himself to 
 accept the laws of his national legislature, or the judgments 
 of his national tribunals, even against himself, so there is a 
 constructive assent on the part of the conquered province, 
 which takes from the law imposed on it from without the in- 
 voluntary and exceptional character which at first seems to 
 belong to it. Directly viewed, it is law to the conquered 
 state ; but when we consider it indirectly and fundamentally, 
 we perceive that it is also the law of the conquered state. It 
 is to this consideration, in addition to the inherent absurdity 
 of plebiscites as a means of ascertaining the volition of a 
 people, that the answer of Germany to the claims of the 
 conquered provinces of France to be consulted as to their 
 nationality, if good at all, owes its force. These provinces, 
 
 . 2 E 
 
434 OF THE PRIMARY SOURCE 
 
 in the frame of mind in which, as part of the French nation, 
 they then were, were not autonomous communities ; and their 
 own positive law, their normal, and as such their real will, 
 was more likely to be realized by attending to their race, 
 their past history, and their geographical position, than by 
 listening to anything they might say directly. Their real 
 will was to be governed well — i.e., with a view to the ulti- 
 mate ends of all government ; their apparent will was to be 
 governed by France — whether well or ill. I offer, of course, 
 no opinion on the fact ; but I think it will be apparent that 
 the possibility of their having gained, in place of lost, their 
 autonomy by their conquest, is not formally excluded by the 
 circumstance of their being made subject, in the first instance, 
 to law that flows, apparently at least, from an external source. 
 The allegation that they have been made free against their 
 will, and powerful by being placed under subjection, is not 
 formally absurd, and can be refuted only by an appeal to fact. 
 
 (c) Positive law can spring only from, the whole autonomous 
 community which obeys it. 
 
 Just as we have seen that natural law is the enactment of 
 our whole normal nature, and not of any special or excep- 
 tional faculty called conscience, 1 so positive law must be the 
 enactment of the whole autonomous community which obeys 
 it, and not of any special or exceptional class, high, low, or 
 intermediate. 
 
 Theoretically this proposition scarcely requires illustration, 
 for if all law must be voluntary, it is plain that law which 
 a portion of the community has not willed, either proximately 
 1 Ante, p. 186 et seq. 
 
OF POSITIVE LAW. 435 
 
 or ultimately, either directly or indirectly, is no more binding 
 on it than if it were the law of a community with which it 
 had no local connection. The only legitimate ground, then, 
 of exclusion from the rights, and exemption from the duties 
 and responsibilities, of legislation, is want of power, which in 
 this connection is convertible with want of reason, or, as we 
 more commonly say, incapacity. It is for this reason that 
 tests of incapacity, rather than of capacity, have hitherto been 
 the battle-fields of politicians. Capacity is presumed till 
 incapacity be proved. The questions which arise thus have 
 reference not to principles but to facts, which necessarily 
 vary not only with every community, but within every com- 
 munity at different periods ; and their consideration, conse- 
 quently, does not belong to our present subject. 
 
 But in addition to this theoretical consideration, there is 
 a practical consideration which very strongly illustrates the 
 necessity of positive law springing from the whole autonomous 
 society. Partial legislation affords no measure of the power 
 and reason of the portions of the community which it puts 
 to silence, and consequently it offers no guarantee for its 
 accordance with the stage of development to which the 
 community has attained. It is thus not the disfranchised 
 class alone that is a loser by its disfranchisement. The com- 
 munity is deprived of its means of self-measurement. If 
 legislation proceeds from the more enlightened classes, it 
 will be above the reason of the community, as a whole, and 
 beyond it ; if it proceeds from the less enlightened classes, it 
 will be below the reason of the community as a whole, and 
 behind it. If it proceeds from the so-called middle class, it 
 
436 OF THE PRIMARY SOURCE OF POSITIVE LAW. 
 
 may, no doubt, correspond to the whole community. 1 But 
 then what is the middle class ? where does it begin, and 
 where does it end? To discover tests of incapacity which 
 relegate its subjects to the position of pupils, may be difficult ; 
 but to discover tests which shall guarantee one class to possess 
 the capacity of interpreting and representing all classes is, 
 I believe, impossible. If the community is to be governed 
 by its own will, that will must actually be uttered by it, 
 as an organic whole. Theoretically there is no ultimate 
 answer to the claim for universal suffrage ; and as the 
 separation of sound practice from sound theory is impos- 
 sible, it must be a subject of abiding regret that the prac- 
 tical recognition of this claim has been rendered incompatible 
 with order and freedom by the insane outcry for equality 
 with which, even in this country, it has been, and, I fear, 
 may again be combined. 
 
 (d) As the presence of positive law is proportioned 2 to the 
 existence and coincidence of power and reason — or, in other words, 
 to the existence of real as opposed to apparent power, in the whole 
 community — the contributions which the individual members of 
 the community are in a condition to make to it will be pro- 
 portioned to the existence and coincidence of power and reason, 
 or the existence of real power, in each of them. 
 
 That it does not fall within the province of jurisprudence 
 
 1 And what is true of legislation intellectually is equally true of it morally. 
 Who can be so unjust to the American nation as to suppose that, though resting 
 on a r4gime of democratic suffrage, it is fairly represented either by the fools who 
 impose a protection tariff, or by the scoundrels and paltry jobbers who recently 
 plundered its exchequer, and would fain have repudiated its obligations ? 
 
 3 As to the respective functions of equality and proportion in jurisprudence 
 generally, see ante, p. 402 et seq. 
 
THE JRATIONAL WILL. 437 
 
 to reverse the fact of natural inequality amongst men, has 
 already, I trust, been sufficiently established. 1 So long, then, 
 as men continue to be unequally endowed with power and 
 reason, whether such inequality proceeds from inequality of 
 gifts or inequality of culture, positive law must not demand 
 that they shall contribute equally to its formation, or intrust 
 to them equal rights and impose on them equal responsi- 
 bilities, in interpreting and enforcing it. In this, as in all 
 other directions, it holds true that " unto whomsoever much is 
 given, of him shall be much required," and vice versd. Just as 
 we saw that the proposition that all men are equally men did 
 not involve the proposition that all men are equal men, so now 
 we see that the proposition that all citizens are equally citizens 
 does not involve the proposition that all citizens are equal 
 citizens, or that because all citizens ought to be voters, all 
 voters ought to be equal voters. The "judgment of Zeus '' 
 was not reversed by the French Eevolution. 
 
 CHAPTER IV. 
 
 THE DOCTRINE OF THE NECESSARY SOVEREIGNTY OF THE RATIONAL 
 WILL OF THE WHOLE COMMUNITY IS IN ACCORDANCE WITH 
 THE COMMON-SENSE OF MANKIND. 
 
 That true doctrines with reference to human affairs, at the 
 stage of historical development which we have reached, can 
 never be new doctrines — that in this department of inquiry, 
 
 1 Ante, p. 375 et eeq. 
 
438 THE RATIONAL WILL. 
 
 at all events, no " scienza nuova " is to be looked for, — is a 
 remark which we have often had occasion to make, and 
 which, I trust, we have often verified. In the present 
 instance the reader may consequently feel entitled to call 
 on me to prove the soundness of my assertion that the 
 rational will of the community, as I have explained it, is 
 the necessary source of positive law, by showing that, 
 more or less definitely, that opinion has received the assent 
 of mankind. To say that legislation has ever conformed 
 to it, would be to claim for human enactments a character 
 which their results have too plainly belied. But if we re- 
 call to memory the most progressive periods in the history 
 of those nations which are emphatically called historical, 
 I think we shall have little difficulty in perceiving that it is 
 then and there, pre-eminently, that this principle has been 
 accepted as the basis of legislation; whilst in our own 
 political practice, following more immediately that of Hol- 
 land, it has been consciously and professedly, though not 
 consistently, acted on for nearly two centuries. Even in 
 countries and at periods of history in which the practical 
 supremacy of the rational will has not been recognized, so 
 strong has been the feeling that by means of it alone re- 
 form was to be sought, or progress hoped for, that there 
 is perhaps no condition of external circumstances, no form 
 of government, under which its validity has not been con- 
 sciously or unconsciously maintained. Lieber, in his in- 
 genious and interesting work on Political Ethics} has given 
 a curious enumeration of writers of every shade of creed, posi- 
 1 Manual of Political Ethics, by Francis Lieber, p. 297 ei sea. 
 
THE RATIONAL WILL. 439 
 
 tion, and opinion, from Father Persons the Jesuit to Frederick 
 the Great, who have distinctly recognized the sovereignty of 
 the general will. It is Sir William Hamilton's " Cloud of 
 Witnesses " to the universality of the Philosophy of Common- 
 sense, recalled and examined regarding their political creed. 
 Singularly enough, Lieber has omitted from his list the names 
 of two of the very greatest of his own countrymen, Kant and 
 Savigny ; and I think we cannot do better than select them 
 ourselves, not on account of his omission or of their pre- 
 eminence in their respective departments alone, but from the 
 importance which belongs to the fact of their having arrived 
 at the same result by methods directly the opposite of each 
 other. Guided by a method independent, and with the 
 single exception which I have already indicated, 1 almost 
 defiant of experience, Kant thus fixes the necessary centre 
 of sovereignty. " The legislative power," he says, " can 
 belong only to the united will of the people. Thus it is 
 that, as all justice proceeds from this will, it is impossible 
 that it can do injustice to any one by the laws which it may 
 establish. So long as one enacts for another, it is always 
 possible that he may do him injustice, but never so where he 
 enacts only for himself (for, volenti rum fit injuria)!' 2 And 
 again : 3 " The sovereign (legislator) cannot be, at the same 
 time, the governor (regent), because the latter is subject to 
 the law, and consequently lies under obligations to another 
 — i. e., the sovereign. The sovereign can take from the 
 governor his power, can depose him, and reform his ad- 
 ministration, but cannot punish him." The same doctrine 
 1 Ante, p. 296. 2 Rechtslehre, part ii. sect. 46. s lb. , sect. 49. 
 
440 THE RATIONAL WILL. 
 
 pervades the whole of that portion of Kant's work in which 
 he treats of the sources of positive law. 
 
 Nor is the necessary sovereignty of the rational will less 
 clearly or unreservedly acknowledged by Savigny as the result 
 of the historical method of tracing out political and legal prin- 
 ciples, of which he may be regarded as the most eminent 
 representative. " In the common consciousness of the people," 
 he says, " lives positive law." 1 . . . " It is the spirit of the 
 people, living and working in each individual, which generates 
 positive law ; and which, consequently, for the consciousness of 
 each, is one and the same law, not accidentally but necessarily." 
 
 Savigny by no means confines this doctrine to the genera- 
 tion of those laws by which the private relations of individuals 
 are governed, and which come more directly within the scope 
 of his treatise. He tells us, on the contrary, that the source 
 of private and of public law — of law in the sense in which it 
 deals with the relations which subsist between the individual 
 members of the community, and that which assigns to the 
 citizen his position with reference to the state — is the same. 
 " Do we inquire into the origin of the state ? we must seek 
 it in a higher necessity, in a power which acts from within, 
 just as in the origin of law in general ; and this holds true, 
 not as regards the existence of the state in the abstract, but 
 with reference to the particular form which the state assumes 
 amongst each particular people ; for the generation of the state 
 is, in a sense, the generation of the law — indeed, the highest 
 form of the generation of the law." According to this view, 
 
 1 "In dem gemeinsamen Bewusstseyn dcs Volkes lebt das positive Recht." — 
 System, vol. i. p. 14. 
 
THE RATIONAL WILL. 441 
 
 the rules by which public relations are governed, and the 
 institutions in which they find expression, and by which they 
 are upheld, are as much the result of a pre-existent common 
 feeling of what is right in the abstract, and expedient with a 
 view to the vindication of right in the particular instance, as 
 are the laws by which it is sought to maintain for each 
 individual what common consent or judicial sentence has pro- 
 nounced to be his private rights ; and thus it is that this doc- 
 trine, as I have said, directs us to the source alike of private, 
 of public, and, I will add, of international law. Nay, farther, 
 it indicates very clearly the means by which their development 
 can alone be attained ; for, legislation being the result of the 
 spirit of the community which it governs, to endeavour to 
 regulate this spirit by legislation is to mistake an effect for a 
 cause. 
 
 In saying this, it is far from my intention to question a 
 fact so frequently and unequivocally established by experience 
 as that the character, even of an independent nation, may be 
 modified by influences from without. The political world is as 
 sensitive as the Stock Exchange. When a monarchical revolu- 
 tion takes place republics become " a dull inquiry," and vice 
 versd. So intimate is the relation, and so close the inter- 
 dependence of the civilized nations of the world, that it is 
 scarcely possible for a revolution of opinion, even though it 
 should not be accompanied by a change in the form of govern- 
 ment, to take place in one of them, by which the others shall 
 not be more or less affected. 1 Their thoughts are so linked 
 
 1 Of this we see interesting illustrations in the effects produced on Continental 
 opinion by our own general elections. 
 
442 THE RATIONAL WILL. 
 
 together, that if the change has been in the direction of truth 
 — by bringing positive law more closely to correspond to the 
 dictates of our normal humanity — a step in advance will have 
 been made by the whole civilized world ; whilst, on the other 
 hand, if it has been in the direction of error — by the estab- 
 lishment of a positive law which runs counter to nature — 
 mankind, as a whole, will have gone backwards. If, as is too 
 commonly the case with such movements, the change has 
 exhibited both truth and error, there will have been a gain in 
 one direction and a loss in the other which may possibly for 
 a time leave the question of progress or retrogression a subject 
 of dispute. But as regards external influences, there is a 
 wide difference between the cases in which they appeal to the 
 spirit of a people, even by means of the most violent and 
 noisy propagandism, and those in which they directly attack 
 their institutions. Where the latter occurrence takes place, 
 the links which connect the positive laws of a people with 
 their national spirit are broken ; their legislation is transferred 
 from a native to a foreign source ; and whatever may be the 
 effect of the change on the liberty of the individual citizens 
 for the time being, or even on the ultimate liberty of the 
 nation, its separate political life, so far, is at an end. Nothing 
 of all this occurs in the case of an appeal, however urgent, to 
 the national spirit ; for our convictions are our own, however 
 we may have formed them, and the laws in which we embody 
 them are our own laws. But though it is by appealing to 
 the national convictions, and thus moulding the national will, 
 and not by attacking national institutions directly, that the 
 positive laws of a people can alone be legitimately affected 
 
THE RATIONAL WILL. 443 
 
 either by external or internal influences, it is needless to deny 
 that the process has often been practically reversed, and that 
 a change in the national will — nay, even the renunciation of a 
 separate national will altogether — has resulted from a direct 
 attack on national institutions. The effects of such an attack 
 will be permanent only when, and in so far as, they realize 
 a higher liberty than that which they sacrifice. But even 
 Where there is no reason to credit them with this ground 
 of permanence, that they may be very enduring requires to be 
 established by no more recondite fact than that no small 
 portion of Europe, after having been Protestant, was, during 
 the course of the seventeenth century, dragged back by ex- 
 ternal influences into the Eoman Catholicism in which much 
 of it has since remained. But the general assertion is not 
 affected, that for the spirit of a people to follow their institu- 
 tions is at variance with the natural course of events, and that 
 without a sacrifice of independence such an occurrence is next 
 to impossible. In free states positive law is possible only to 
 the extent to which it is an expression of the social influences 
 which lie within the community, — of the moral forces which 
 are at work in it. 
 
 We must not suppose that in all cases those writers who 
 have enunciated, or those legislators who more or less fully 
 have recognized, the supremacy of the general will, have 
 formed to themselves clear conceptions of its constituent 
 elements. There is, on the contrary, no subject of scientific 
 politics with reference to which so much confusion of thought 
 and inconsequence of action has prevailed. Still, when the 
 opinions of such men as Kant and Savigny, and the higher 
 
444 THE RATIONAL WILL. 
 
 class of political thinkers are in question, we must positively 
 understand that by the expressions " rational will," " spirit of 
 the people," "common consciousness," "state -conscience," and 
 the like, they are very far from meaning the will or even 
 the conception of right and wrong of the numerical majority, 
 or even of the whole inhabitants of the state as an inorganic 
 mass of equal individual units. From Savigny's words, which 
 I have quoted, it will be readily gathered, even by those who 
 know less of his position than I may presume most of my 
 readers do, that he was no democrat; and Kant, it is well 
 known, regarded democracy — which he was careful to distin- 
 guish from republicanism — as the only form of political exist- 
 ence by means of which the realization of the aspirations of 
 the general will is impossible. Hegel is equally emphatic to 
 the same effect. 1 It was on this ground that he expressed his 
 distrust of our legislation in 1832; and had he lived to 1867, 
 there can be little doubt that his disapproval of a second 
 recognition of the supremacy of mere numbers would have 
 been still more emphatic. 2 The substitution of household 
 suffrage for a simple lowering of the money franchise was no 
 doubt a very clever cutting of the democratic cards. It even 
 
 1 Fhilos. of History, pp. 265, 266, 274, 463, 468. 
 
 2 Was the provision that the members of the Reichstag should be chosen by 
 universal suffrage and ballot introduced into the constitution, first of the North 
 German Confederation, and then of the Empire, in the interests of liberty or in 
 the interests of the Leviathan ? The subsequent provision that the Chancellor 
 and other officers of the Executive shall not be responsible for their actions, either 
 to the Federal Council or to the Diet of the realm, but only to the Empero^ seems 
 to render the answer very doubtful ; and one cannot but regret that the old Teu- 
 tonic system of the double vote and graduation, by proportioning the number of 
 voters to the amount of taxes paid, which is followed in the constitution of 
 Prussia, was not retained in that of the Empire. 
 
THE RATIONAL WILL. 445 
 
 introduced an element of permanence which, when taken 
 along with the indirect influences of an historical and highly 
 organized society, may perhaps protect us long against anarchy, 
 and render progress possible in everything except politics. But 
 it introduced no principle which can bring us nearer to 
 the solution of the ultimate problem of politics — viz., the 
 supremacy of the reason of the whole community. The error 
 of equality remains untouched ; and it is only to the indirect 
 influences exerted by intelligence and wealth that we can 
 look for ultimate perfection against anarchy or Csesarism. 
 We have thrown oil on the waters in place of mending our 
 ship, and are consequently far too dependent on fair weather. 
 It is no doubt very encouraging to find that, hitherto, the 
 numerical majority in this country has shown no disposition 
 to throw off the leadership of the cultivated classes, and it is 
 possible that a stage of political development may be reached 
 by the whole people at which inequalities will be voluntarily 
 recognized more accurately than they could be measured by 
 positive legislation. 
 
 Even French writers have not been wanting to warn their 
 countrymen against the delusion of absolute equality which 
 has cost them so dear. " The national will," says Sismondi 1 — 
 " that is, the sum of all the wills, of all the intelligence, of all 
 the virtue of the nation, a sum in which each quantity counts 
 for what it is, and negations count for nothing — is almost 
 always absolutely opposed to the doctrine of universal (and 
 equal) suffrage, which makes those who have no will prevail 
 
 1 It is scarcely accurate to call Sismondi a French writer ; but he was, at any 
 rate, a writer in French whose works were widely read. 
 
446 THE RATIONAL WILL. 
 
 over those who have, those who know nothing of what they 
 are deciding upon, over those who know it." 1 It is quite 
 consistent with this definition of sovereignty, and is indeed 
 contemplated hy it, that the sum of rational influence, the 
 aggregate of real will of which sovereignty consists, instead of 
 coinciding with, should stand over against the sum of individual 
 opinions ; that the minority should outweigh the majority, and 
 that the institutions of the state, the positive law of the land 
 for the time being, should be in accordance with the opinions 
 of the former, and at variance with those of the latter. As 
 regards the individual, whatever may be the amount of 
 influence — which, for practical purposes, we must assume to 
 be the measure of reason — which he possesses amongst his 
 fellow-citizens generally, whether it be greater or less than 
 that of the average social unit, it is to the exercise of that in- 
 fluence in determining the public and private laws by which 
 he himself is to be governed, and to nothing more, that he is 
 entitled. If, then, the rational utterance of one man be ten 
 times as definite and powerful as that of another, the fact that 
 he contributes ten times as much to swell that general voice 
 of which positive law is the expression must in some way be 
 recognized. 2 And what is true of the privileges is equally true 
 of the responsibilities of the individual. He is bound to share 
 in the duties to the same extent to which he shares in the 
 
 1 Ussays, English trans., p. 291. 
 
 2 The fault of all the schemes for improving representation from a democratic 
 point of view — a fault from which even Mr Hare's, by far the most ingenious of 
 them, does not seem to be free — is that they aim at giving equal value to reason 
 and unreason, to sense and nonsense. Even so rude a measure of intelligence, 
 and, I will add, of character, as is offered by the payment of direct taxes, would 
 probably be better than no measure at all. 
 
THE SECONDARY SOURCES OF POSITIVE LAW. 447 
 
 rights of sovereignty. He must contribute according to his 
 means, not only to the material but to the spiritual wealth of 
 the state ; and one of the most direct forms in which the latter 
 duty behoves to be performed is by striving, with such might 
 as may be in him, to bring its positive laws into conformity 
 with the dictates of normal humanity, — with natural law. 
 
 CHAPTER V. 
 
 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 The secondary sources of positive law, as already said} are 
 the means by which the community vindicates its real as dis- 
 tinguished from its merely apparent power, or, in other words, 
 asserts its rational will. 
 
 Anything approaching to an exhaustive treatment of the 
 secondary sources of positive law would manifestly lead us 
 into the discussion -of subjects which, though belonging legit- 
 imately to public law, lie beyond the scope of a treatise on 
 the principles of jurisprudence. We shall consequently con- 
 tent ourselves with little more than an enumeration. 
 
 I. The means by which the community forms its rational will. 
 
 By the formation of the rational will, as opposed to its 
 development, I mean the bringing it, on the part of the com- 
 munity generally, sufficiently near to the point which it has 
 reached in the exceptionally cultivated classes, to enable the 
 
 1 Ante, p. 426. 
 
448 OF THE SECONDARY SOURCES 
 
 community, as a whole, to take part in legislation. This 
 function, in the modern world, is chiefly performed by four 
 great institutions — viz., the Church, the school, the press, and 
 the polling-booth. 
 
 1. The Church. 
 
 By the Church is here meant, not the whole body of the 
 faithful, nor yet any particular ecclesiastical institution, but 
 the whole organization by which popular oral instruction on 
 religion and morality is communicated, and by which divine 
 influences are invoked. The great obstacle to the activity of 
 the Church as an instrument for the farther discovery of truth, 
 and that which keeps it down to the level of an organ for the 
 dissemination of truth already known, is the necessity for its 
 dogma being fixed by some definite symbol. This necessity 
 — which, though greatly exaggerated, is to some extent real 
 — exists equally in established and endowed, and in dises- 
 tablished and disendowed Churches ; whereas the latter are 
 depressed, in addition, by the dependence of the clergy on the 
 p 0e pl e — the teachers on the taught. An endowed Church is 
 conceivable in which the clergy, like the professors in the Theo- 
 logical Faculty of an endowed University, should be permitted 
 to seek for divine truth as freely as the lay 1 professors of en- 
 
 1 It may not be generally supposed that the freedom of lay teaching is depen- 
 dent on endowments, but such unquestionably is the case, and this not in uni- 
 versities only, but in schools. All teaching that depends on popular support 
 must court popular sympathy by conforming to the "rage" of the time, as is 
 done in " adventure schools. " "Were it not for the protection afforded to learn- 
 ing and philosophy by permanent endowments and traditional examinations, 
 we should have little teaching of anything at present except physical science. 
 The vast amount of intellectual activity that is expended on history and com- 
 parative philology is not the spontaneous product of this generation ^ and its 
 
OF POSITIVE LAW. 449 
 
 dowed Universities are permitted to seek for secular truth ; 
 and the only objection to such a Church seems to be that its 
 teaching, by becoming individual, would lose the weight which 
 belongs to it as the result of the consent of many minds. But 
 an unendowed Church, or even congregation, in which the 
 clergy enjoyed this amount of freedom could never exist as a 
 permanent institution. A few exceptional individuals might, at 
 times, contrive to impose their own opinions on their hearers ; 
 but if these differed at all widely from prevailing beliefs, their 
 positions would always be insecure, and it would be too hard 
 a trial for the sincerity or the activity of most men to tell 
 them that they might seek truth, but that if they found more 
 of it than other people, other people would deprive them of 
 the means of living. Creeds are positive laws — i.e., they are 
 human interpretations of divine revelations. 1 The remedy, 
 as in the case of other positive laws, seems to consist, not in 
 the total abandonment of ecclesiastical symbols, but in their 
 respectful criticism and frequent though cautious revision, so as 
 always to maintain the dogma of the Church, as nearly as pos- 
 sible, on a level with the scientific theology of the period. But 
 the functions of criticism and revision call into play opposite 
 mental tendencies, and will seldom be satisfactorily discharged 
 by the same individuals, or even by the same generations. 
 
 full value will be appreciated only by the generations of philosophers and poets 
 who, we must hope, will bring thought and imagination to bear on the precious 
 inheritance of knowledge that will descend to them. It is only by means of 
 endowments, the immediate "utility" of which is rarely appreciated, that the 
 continuity of the intellectual or religious life of a people can be preserved, and 
 it is only by being thus historical that it can be progressive. 
 
 1 See some excellent observations on this subject in Mr Herbert Spencer's 
 Study of Sociology, p. 309. 
 
 2 F 
 
450 OF THE SECONDARY SOURCES 
 
 Notwithstanding the difficulties which thus impede its free- 
 dom, it must be remembered that the pre-eminence of the 
 Church, as a means of forming the rational will, rests on 
 various considerations by which it is distinguished from all 
 other teaching institutions. 
 
 (1.) The Church, alone seeks to influence the will, not only 
 indirectly, through the understanding, but directly, and this in 
 two ways — 
 
 (a) By supernatural, though not on that account preter- 
 natural, means, which are commonly spoken of as " means of 
 grace." 
 
 The efficacy of the sacraments in restoring the union 
 between the divine and human elements of our nature, 
 partially destroyed by voluntary transgression, is a subject 
 on which it would not be becoming that we should here 
 enlarge. But as jurists and politicians, it is proper that 
 we should remember that prayers for the coming of God's 
 kingdom are neither more nor less than prayers for the 
 union of power and reason in His creatures ; and that the 
 extent of their influence will be proportioned to the sincerity 
 with which they are offered. When such prayers degenerate 
 into formalities, their influence will sink to almost nothing. 
 On the other hand, it is quite conceivable that they should 
 be animated by a faith so strong and general, as to bring a 
 whole nation into relations to the Divinity of so close a kind 
 as would almost counteract the influences of human wicked- 
 ness and folly. " Knock, and it shall be opened to you," 
 is a promise not limited to individual supplications, nor is 
 it individual faith alone that may "remove mountains." 
 
OF POSITIVE LAW. 451 
 
 " More things are wrought by prayer 
 Than this world dreams of. Wherefore let thy voice 
 Rise like a fountain both by night and day. 
 For what are men better than sheep or goats 
 That nourish a blind life within the brain, 
 If, knowing God, they lift not hands of prayer 
 Both for themselves and those who call them friends ? 
 For so the whole round earth is every way 
 Bound by gold chains about the feet of God." x 
 
 But it is the divine element in humanity alone which 
 can approach the Divinity, and the divine element is the 
 rational element hy which, more or less perfectly, we ap- 
 prehend the conditions of our existence. In our prayers 
 we must consequently be guided by the reason which God 
 has bestowed on us, and the experience which He has 
 permitted us to acquire. To pray for the alteration, modi- 
 fication, or even the temporary suspension of what we know 
 to be His laws, would not be reasonable prayer : first, 
 because reason forbids the supposition that He will change 
 what, being in accordance with His perfect will, is already 
 perfect ; and, second, because experience, though its teaching 
 never rises above probabilities, does, in this case, certainly 
 render it in the highest degree improbable that He will 
 so act. But there are laws which, though immutable, are 
 not inviolable ; and it does not follow from their immuta- 
 bility that the deepest wisdom may not lie in praying 
 that we, and others whose knowledge and wills are con- 
 fessedly imperfect, should be enabled to know these laws 
 more perfectly, and to conform to them more completely. 
 To take an example in point : though every democrat 
 
 1 The Holy Grail, p. 155. 
 
452 OF THE SECONDARY SOURCES 
 
 now in existence — nay, though the whole human family 
 till the end of time — were to pray that all men should 
 he made equal, there would be no more chance of that 
 prayer being heard than if they were to pray that they 
 should be made immortal. But if one righteous man were 
 to pray that he and others might be led to accept the 
 inequalities which God has ordained, and to employ them 
 for social and political purposes, there is no saying to what 
 extent that prayer might avail. Nor, accepting the perfec- 
 tion, notwithstanding the mystery which surrounds the deal- 
 ing of God with His creatures, is it difficult to see that 
 it is this form of prayer alone which, for our own sakes, 
 we can logically present. To pray for the alteration of 
 laws which we assume to be perfect, is to pray for evil; 
 whereas to pray for power and will to conform to such laws, 
 is to pray for that which alone is wanting to our good ; and 
 the act of offering such a prayer is, in itself, no unimportant 
 step towards its fulfilment. To pray that sin, whether past or 
 present, may be no longer sin, and that we may be pardoned, 
 in that sense is to throw breath away ; but to pray that we 
 may be pardoned in the sense of ceasing to be sinners, is 
 already to be sinless so far ; and the frequent repetition of 
 such prayer may end in the formation of habits of compara- 
 tive sinlessness, or, in other words, of voluntary conformity 
 with God's laws. 
 
 (h) By natural means. The method of touching the will 
 by appealing to the heart belongs especially, though by no 
 means exclusively, to the Church. 
 
 The function of the Church is not ' only, or even so much, 
 
OF POSITIVE LAW. 453 
 
 to disseminate truth, as to prepare the soil for its reception, 
 — to teach tractableness. Of the necessity of this pre- 
 paratory process any one may convince himself by observ- 
 ing the very slight effect which a reductio ad absurdum 
 of their opinions produces on the vast majority even of 
 educated men. Political and social hallucinations, having 
 their roots in selfishness and vanity quite as much as in 
 stupidity and ignorance, present, in a conspicuous manner, 
 the pitiful spectacle of the will bidding defiance to the 
 reason. As regards them, above all, it is true that — - 
 
 ' ' A man convinced against his will 
 Is of the same opinion still." 
 
 Here, then, we must approach the reason by the will, and 
 not the will by the reason, and the proceeding is one which 
 belongs to the ecclesiastical rather than to the scholastic or 
 academical instructor. It is in place in the Pulpit; but 
 it would be wholly out of place in the Chair. 
 
 (2.) The Church appeals to the classes that are least 
 within the reach of other influences, and retains its hold on 
 them during life. 
 
 It is with the spiritual interests of the working classes, 
 more especially, that the Church is concerned. To the 
 classes whose position and occupations enable them to 
 command leisure, even Christian influences come from many 
 other quarters, and their spiritual life is fed by a thousand 
 rills. But to the children of toil, the Church and its 
 ministers offer almost the only incentives to reflection. Of 
 the small measure of leisure which is theirs, a very large 
 portion is spent in immediate contact with the influences 
 
454 OF THE SECONDARY SOURCES 
 
 which she wields, and, for good or for evil, these exercise 
 a very important effect on their characters and lives. Any 
 one who considers how different is the rdle which the Sun- 
 day plays in the life of the man of labour and the man of 
 leisure, and who knows how much more exclusively the views 
 and opinions of the former are the result of pulpit teaching 
 than those of the latter, will have a practical illustration 
 of what we mean. Now, that such teaching should deal 
 directly with political interests, even when these are seen 
 from the most all-embracing point of view, is, of course, 
 neither possible nor desirable. Still, so to expound Divine 
 law as to set the current of popular thinking in the direc- 
 tion in which sound human laws are to be found, does 
 seem to be entirely within the Church's province, and we 
 see no reason why this should not, at times, be done a little 
 more explicitly than merely by dwelling on the general fact 
 that moral and religious principles form the basis of citizen 
 life. 
 
 There are phases and habits of rational secular thought 
 and feeling, to the formation of which the clergy, even in 
 their strictly clerical capacity, may very well contribute, 
 which will set limits at once to arrogance and insolence, 
 and out of which just conceptions both of the active and 
 the passive duties of citizenship will spring almost inevit- 
 ably. There are necessary relations — such, for example, as 
 that between rights and duties — which, even as abstract 
 doctrines, may be popularly expounded from the pulpit, 
 and which, if once apprehended, without any special ap- 
 plication to existing circumstances at all, will very soon and 
 
OF POSITIVE LAW. 455 
 
 very surely bear practical fruits. The political effects of 
 the social relations of parent and child, husband and wife, 
 and the like, may be pointed out, and the political necessity 
 of accepting the teaching of nature in its integrity may 
 be insisted on. 
 
 In many passages of our own history we have examples of 
 the happiest and most important secular results which are 
 referable directly to the pulpit exhortations, and to the more 
 private influences, of the ministers of religion. I shall have 
 occasion presently to speak of the suggestive character of 
 "Wickliffe's teaching and that of the later Eeformers, in secular 
 directions. To come nearer to our own times ; it was the 
 teaching of their pastors (narrow and ungenial as it now 
 appears to us) which supported Independents and Presby- 
 terians in their political as well as in their religious struggles, 
 and which, by the hands of the Puritan Fathers of New 
 England, laid the foundation of the most fruitful colonial life 
 that the world has ever seen. Looking in another direction, 
 it is impossible to say to how great an extent that reverence 
 for existing institutions, which, breathing through the whole 
 of the liturgy of the Church of England, reminds one con- 
 tinually of Queen Elizabeth's days, may have tended to fos- ' 
 ter in the English people those conservative instincts which 
 characterize them even as contrasted with the Scotch, and 
 which, in the absence of conscious reason, have so often been 
 the safeguards both of order and liberty. 1 In Eoman Catholic 
 
 1 Of the influence of religious feeling in secular directions we had a memorable 
 instance in the effect of the National Thanksgiving for the recovery of the Prince 
 of Wales in putting to silence the demagogic outcry against monarchy. 
 
456 OF THE SECONDARY SOUBCES 
 
 countries the influences of the Church have unhappily been 
 too often placed in antagonism with those of the State. But 
 however much we may deplore the use -which has been made 
 of them, it is impossible to question their efficiency, and we 
 should be strangely unjust if, in dwelling on the reactionary 
 and retrograde tendencies which they at present exhibit, or 
 the disbelief and disobedience which they indirectly engender, 
 we failed to remember how often they have formed the only 
 check on despotism, or the only mitigation of anarchy. Still 
 in identifying political and ecclesiastical, secular and religious 
 interests, the advantages of Protestantism must always be 
 very great ; l and whereas the political, like the religious 
 atheism which has overtaken so large a portion of the Eoman 
 Catholic world is in no small measure traceable to the abuse 
 of clerical influences, I doubt whether, at this moment, sound 
 doctrine in politics and jurisprudence finds anywhere more 
 efficient supporters than in the Protestant clergy of Europe 
 and America. But their aid might, without difficulty, be 
 rendered still more efficient; and in the present crisis of the 
 history of mankind, I believe the Church could find no nobler 
 function than to trace out and exhibit the secular applications 
 of the Sermon on the Mount, and to insist on its universally 
 human character. 
 
 But, in order thus practically to influence the general will, 
 there is one principle which it is, above all, indispensable to 
 keep in view. Christianity must be regarded as inculcating 
 not what is negative merely, but still more prominently what 
 
 1 Le Protestantisme et U Catholicisme dans lews Rapports avec la liberty et la 
 prosperity des Pet/pies, par M. de Laveleye, 1876. 
 
OF POSITIVE LAW. 457 
 
 is positive in human conduct. The womanish view so often 
 presented of Christianity by those who profess to expound it, 
 and the disposition to regard it as a mere string of prohibitions, 
 not only tends to enfeeble the characters of those who accept 
 this as the true exposition, but has the farther and greater 
 evil of driving the manlier characters who reject it to seek 
 their exemplars and rules of conduct elsewhere. 1 And this 
 effect is more than ever to be apprehended now that Chris- 
 tianity has been brought in contact not only with philosophy, 
 but with the older and less perfect, though in many funda- 
 mental respects identical religions of Asia, and more particu- 
 larly of the Aryan races. We are only at the beginning of a 
 movement, in itself I believe eminently religious, but of which 
 the effect must be to weaken the hold of Christianity on those 
 who regard it as consisting either of exceptional dogmas or 
 ritualistic observances. And this unhappy result, not unknown 
 in Protestant countries, is most of all conspicuous where, as 
 in France, the worship of the Virgin has all but supplanted 
 the worship of God. It is this feeble and limited conception 
 of Christianity which in Eoman Catholic countries has so often 
 ranged the manhood of the nation in opposition to the Church. 
 If the doing of important and noble duties, rather than the 
 abstaining from petty and ignoble vices, were insisted on, even 
 the latter object would be attained far more effectually ; and 
 
 1 T?)s dpeTTJs yap /rnWov rh eS noieiv. % rb ed Trdtrx eiV i K( d ra. KctAa irp&Treiv 
 ftaWov, 1) tci altrxpa /*■!) it pdrrtiv, Aristot. Ethic., lib. iv. c. 1. Xenophon tells 
 us that one of the facta alleged by the accusers of Socrates was that he was in 
 the habit of quoting this line from Hesiod, "Epyov S' oiiSev SveiSos, oXepyetn Si t' 
 ivuSos. Socrates was far from repudiating the imputation ; and no one who feels, 
 like him, the higher dignity which belongs to a teacher of active virtue, will 
 shrink from bearing it along with him. 
 
458 OF THE SECONDARY SOURCES 
 
 if the motive were made not the hope of escaping punishment, 
 but the certainty of attaining the love and favour of the Most 
 High, Christianity would be placed in a truer and far more attrac- 
 tive light. In place of limping after us like a senile monitor, 
 in whose eyes the small and the formal is of greater import- 
 ance than the great and the substantial, Christianity would 
 become, as it was intended to be, a fresh and ever-youthful 
 leader wherever our effort was to do God's will on the greatest 
 scale, and our abiding support and consolation, when, in order 
 to do so, the tangled maze of circumstances imposed on us the 
 necessity of violating the immediate dictates of humanity or 
 the promptings of instinct. Nowhere more than in their 
 citizen capacity, so long as there is sin in the world, must 
 men stand in need of this positive view of Christian duty. 
 Not only to those who guide, but to those who execute the 
 volitions of a whole people, the place of Providence on a 
 limited field is assigned; and he who, with merely passive 
 Christianity to support him, is called upon to draw the sword, 
 to erect the scaffold, or to perform any of the sterner duties 
 of citizenship, must do so either without reference to Chris- 
 tianity at all, or, what is worse, in violation of what alone he 
 has been taught to regard as its dictates. The moment we 
 are called to deal actively with public relations, our Christian- 
 ity must be of such a kind as to raise us above all minor 
 anxieties, and in the most trying circumstances to give victory 
 to law. Where the voice of duty pronounces unmistakably 
 for vigorous and unsparing action, he who represents the Word 
 of God as prescribing childish inactivity or feminine submis- 
 sion, however harmless may be his intentions, will in his 
 
OF POSITIVE LAW. 459 
 
 deeds be at once a traitor and a false prophet. Nor, on the 
 other hand, will he be a truer interpreter who, recognizing 
 the paramount claims of duty, represents these as incapable 
 of any genuine recognition which is not accompanied by a 
 perpetual austerity, and in constant conflict with all that is 
 humane and genial in the ordinary relations of life. Whilst 
 our Divine Master has told us that He brought into the world 
 " not peace, but the sword," we know that the very first object 
 for which He interrupted the ordinary laws of nature was to 
 provide more abundantly, not for the wants, but for the con- 
 vivial enjoyments of those who, for the time, were His com- 
 panions in mirth. Had nothing else to the same effect been 
 recorded of Him (and there is much), in this one saying and 
 this one act we should have had abundant proof that His 
 notions of Christian duty were neither sickly nor sour. It is 
 in the more wholesome and encouraging conception of the 
 human relations which, when truly interpreted, Christianity 
 presents, more than in anything else, that it surpasses the 
 older religions of mankind. 
 
 2. The School, including the University, in so far as the 
 latter is regarded merely as a means of instruction and dis- 
 cipline, and not as an organ for the advancement of science. 
 
 Education being the development of man as a rational 
 being, that the autonomous character of a community will, on 
 the whole, keep pace with its educational advancement, is a 
 proposition the acceptance of which I shall take for granted. 
 It is true that education alone is neither the only source nor 
 the only measure of autonomy. There must be something 
 to educate ; and as communities, like men, do not all start 
 
460 OF THE SECONDARY SOURCES 
 
 with the same aptitudes, the same amount of instruction, or 
 even of experience, ■will not bring them all up to the same 
 point. England, in the days of Simon de Montfort, was a 
 more autonomous country than Prance is perhaps even now, 
 or at all events was till very recently ; and yet it cannot be 
 doubted that France has long had a far wider range of instruc- 
 tion to guide her than England had then, and a far wider 
 range of experience than England has yet, or, it is to be hoped, 
 ever will have. Such differences are usually ascribed to race. 
 That race in general contributes to them very largely is a 
 conclusion which is placed' beyond question by a comparison 
 of the historical with the non- historical races of mankind; 
 and that the difference between Prance and England may 
 arise from the preponderance of Celtic 1 blood in the one, and 
 of Teutonic blood in the other, is a conjecture which is forced 
 upon us by the history of the different portions of our own 
 population ; and the same remark is applicable to the northern 
 as compared with the southern provinces of France. Though 
 there are some intellectual and even moral qualities which 
 appear to be possessed by the Celtic in a higher degree than 
 by the Teutonic race, their religious conceptions are always 
 marked by that tendency to ecstatic delirium which character- 
 izes the religions of the lower races ; 2 whilst, secularly re- 
 garded, there is no historical example of a Celtic population 
 which, by its own efforts, has thrown off the restraints of 
 
 i Bunsen holds the Celtic or Keltic tribes to be "the lower grades of the Aryan 
 stock in Europe and Asia. " — God in History, vol. i. p. 239. 
 
 2 What are called "revivals" are very common in the west and north of 
 Scotland, where the population is Celtic, but cannot be got up in the east and 
 south, where it is Teutonic. 
 
OF POSITIVE LAW. 461 
 
 patriarchal government without falling into anarchy. Even 
 on the limited scale on which republics have been found to 
 work well with other races, they have hitherto been impossible 
 where Celtic .blood preponderated. There never was a Celtic 
 "Free-town" or "Hansa;" and if M. Kenan should be correct 
 in his view that the Celtic element in England is superseding 
 the Teutonic element, there might cease to be a free England, 
 as when he wrote there had ceased to be a free France. The 
 prospect is a very sad one, but its political aspect ceases to 
 alarm us when we remark how freely the Celtic mixes itself 
 with, and loses itself in, other races, and how valuable it is 
 as an ingredient in the composite stock. Of the subordinate 
 position which it takes when brought in contact with other 
 ethnological elements, the invariable disappearance of its lan- 
 guage seems an infallible indication. 
 
 But even in the same country, and where the race has 
 remained substantially unchanged, the relation between the 
 advance of knowledge and autonomous power doe3 not always 
 hold good. It is true that Spain has by no means kept pace 
 with the North of Europe in the race of knowledge. But 
 even Spain can scarcely have failed to learn something — to 
 make some advance on her own position in this respect — 
 during the last 400 years; and yet it is certain that Spain 
 has been a less autonomous nation — less orderly and less free 
 
 , during the last half -century, than during any similar portion 
 
 of the long period which elapsed between the victory over the 
 Moors in 1212, and the union of the crowns of Castile and 
 Arra<?on under Ferdinand and Isabella in 1479. It would be 
 difficult, perhaps impossible, to obtain direct data as to the edu- 
 
462 OF THE SECONDARY SOURCES 
 
 cational condition of Spain at the one period, and at the other ; 
 but I think it may be taken for granted that the elements of 
 ^instruction are now more widely disseminated, and if material 
 prosperity be any guarantee for general intelligence, Spain has 
 made great advances within the last fifty years. 1 The same 
 may be said of Prance during the reign of Napoleon III., when 
 she certainly was more prosperous and popularly instructed, 
 but less autonomous than during that of Louis Philippe. 
 
 Now the explanation of the failure of the general relation 
 between education and autonomy, in these and other in- 
 stances in which it cannot be ascribed • to difference of race, 
 will be found, I believe, in the fact that it is not all educa- 
 tion which tells in the direction of autonomy, but only such 
 education as results in the discipline of the individual char- 
 acter, and, through the individual, of the national character. 
 By discipline I mean, not only formal compliance with the 
 arrangements of nature with reference to human relations, for 
 that may be enforced from without, but voluntary acceptance 
 of these arrangements as the true measures both of rights and 
 duties. A man or a community that is disciplined, in this 
 sense, is autonomous, because his or its will coincides with 
 the necessary conditions of existence. He obeys no master 
 except Him whose "service is perfect freedom," and whose 
 will it is that he should be free, and, consequently, it may 
 be said of him in the deepest sense, Volenti non Jit injuria. 
 And if we take the matter up historically, either as regards 
 the nations I have mentioned, or any other nations, I think 
 
 1 Is Spain now really becoming an autonomous nation ? If so, the pheno- 
 menon will be one of the most interesting in political history. 
 
OF POSITIVE LAW. 463 
 
 we shall find that experience has not belied the conclusion 
 that the men and nations that have most freely and fully 
 accepted the laws of nature, whether revealed through nature 
 or to nature — the most disciplined men and nations, the 
 most moral and religious men and nations, — have been the 
 freest men and nations. 
 
 This voluntary acceptance of the laws of nature may be 
 either spontaneous and unconscious, or it may be the result 
 of reason consciously exercised. In the former case, in so 
 far as it is not dependent on special temperament, its source 
 will be found in the organization of the family and of society, 
 which to a certain extent is inevitable. In its rudimentary 
 stages organization is thus the cause of that discipline of 
 which, in its higher and more perfect manifestations, it is the 
 result. The simplest instance of spontaneous discipline is 
 the necessary relation of parent and child. Every child 
 must stand in a position of dependence and subordination to 
 its mother, or to the nurse who takes its mother's place. 
 That is a lesson of discipline which no one can escape, and 
 which no one resists ; and it is the first step on the ladder 
 of organic social life. Filial dependence, indeed, is the 
 school of discipline which nature has provided, attendance 
 on which she has rendered compulsory, and which she 
 continues longer in man than in the lower animals, in conse- 
 quence of the greater amount of teaching of which he stands 
 in need. The same is true of relative inferiority in all its 
 stages and forms. As has been said of philosophy we may 
 say of discipline : Man is disciplined as he lives ; he may be 
 disciplined much or little, well or ill, but disciplined he must 
 
464 OF THE SECONDARY SOURCES 
 
 be. Life, in short, altogether is an educational institution, 
 and this is true of it, not only in its ideal conception, but in 
 its humblest manifestations. 
 
 But though the rudiments of discipline, as of philosophy, 
 be thus taught by the * inevitable conditions of human life, 
 and will be learned better or worse in proportion as that life 
 is higher or lower either in the individual or in the race, 
 like philosophy, also, it may be taught, and in its higher 
 forms can be taught, only by an appeal to that conscious 
 reason, which is the characteristic peculiarity of man. And 
 if this be so, the question with reference to the educational 
 institutions of a country, viewed as sources of positive law, 
 comes to be this, — is there any special kind of direct in- 
 struction by which this discipline can be attained, and if so, 
 what is that kind ? 
 
 Now here there need, I think, be no difference of opinion. 
 The school, like the Church, must take this matter in hand 
 openly and directly, as it does other matters. If you wish to 
 teach a man to avail himself of the powers, or to conform to 
 the laws of physical nature, you teach him the laws by which 
 these powers act and react. If you wish to enable him to 
 combine an acid with an alkali, we shall say, you teach him 
 chemistry — the laws which govern the relations between 
 material substances — and not jurisprudence — the laws which 
 o-overn the relations between man and man. Just reverse 
 this process, then, and when you wish to develop a social or 
 political aptitude in him, give him social or political in- 
 struction. If you wish self-governing men, teach them how 
 they are to govern themselves ; but do not hope that they will 
 
OF POSITIVE LAW. 465 
 
 know how to govern themselves — and govern you too, for 
 it has come to that — without teaching of any kind, or in 
 consequence of your having only taught them to conihine 
 acids with alkalies, to make railways, or to spin cotton. 
 
 The objections which are made to this pretty obvious view 
 of the question are, I think, mainly two: 1st, The natural 
 laws of the human relations, it is said, do not admit of any 
 precise statement, and consequently cannot be taught. I 
 hope that I have already answered this objection in the pre- 
 ceding pages — if not, I cannot answer it. 2d, It is said that, 
 at all events, they cannot be taught in a popular manner, and 
 that all attempts so to teach them only stir questions of prin- 
 ciple which cannot be adequately solved, and with which it 
 is wiser and safer that men in general should not concern 
 themselves. Now all popular teaching is necessarily imper- 
 fect ; the knowledge which it communicates is incomplete ; 
 and no community which is led by it ever can be as safe, either 
 from internal disorder or external disaster, as a community 
 so organized as to take advantage of the best and highest 
 light which political science has brought within its reach. 
 A community which subordinates its higher to its lower 
 reason imperils its stability as well as its progress, and I am 
 far from contending that a considerable amount of danger 
 will not always attend the practical application of such 
 political knowledge as can alone be communicated to the 
 numerical majority. But this argument loses all meaning 
 in the mouths of those who advocate the dominion of the 
 numerical majority, and all practical application to com- 
 munities in which that dominion is already recognized. 
 
 2 G 
 
466 OF THE SECONDARY SOURCES 
 
 Edged-tools will always be dangerous in unskilled hands ; but 
 if men are resolved that edged-tools shall be put into un- 
 skilled hands, or if edged-tools have been put into unskilled 
 hands already, the more skilful those hands can be made the 
 less will be the danger. Petroleum and gun - cotton will 
 never be safe commodities in all men's keeping. But if all 
 men must keep them, and keep them too in equal quantities, 
 the sooner such information with reference to the mode of 
 handling them as all men are capable of receiving can be 
 disseminated the better. 
 
 Nor do I see any reason to believe that popular teaching 
 should necessarily be more imperfect or incomplete when it 
 has reference to moral and social, than to physical laws, or 
 indeed to any other branch of knowledge by which the higher 
 faculties are called into exercise. The political education of 
 all classes can no more be equalized than their education 
 -in other respects. But in a well-organized community the 
 political education of all classes might be proportioned to 
 their requirements — that is to say, to their rights and re- 
 sponsibilities ; and with this view the obvious rule sug- 
 gests itself, that in proportion as the political influence of 
 the individual rises, ought his citizen training to become 
 wider in its range, and more scientific in its character ; or, 
 reversing the proposition, that his political influence should 
 be made dependent on the measure of his citizen training. 
 The only difficulty which seems to stand in the way of 
 such education being made compulsory on all classes ] arises 
 
 1 The old Scotch statute, 5 James IV. c. 54 (1494), which enacted that barons 
 and freeholders should send their sons and heirs to the grammar-schools till 
 
OF POSITIVE LAW. 467 
 
 from the want of any legal recognition of classification 
 in modern states. The objection to such recognition, which 
 to many minds seems fatal, is the tendency which classes 
 when so recognized would have to degenerate into castes. 
 To me it appears that this objection would be obviated if 
 this classification were recognized only for political purposes, 
 , and if the principle of la carri&re ouverte were expressly 
 maintained in it ; as, for instance, by the adoption of a 
 graduated suffrage, one of the conditions of admission to, 
 and advance in which, should be education. Whether such 
 organization as would lay the basis of a consistent system 
 of compulsory political education has been rendered impos- 
 sible by the democratic legislation which has already taken 
 place in this and other countries, is a question which I can- 
 not here discuss. 
 
 In the absence of an arrangement by which so many of 
 our hardest problems would have been solved, the only means 
 of enforcing political education of the higher kind seems to 
 consist in rendering it imperative for admission to all Gov- 
 ernment appointments, raising its character in proportion to 
 
 "they be competentlie founded and have perfite Latine," and thereafter to re- 
 main three years at ' ' the sehules of art and jure, swa that they may have know- 
 ledge and understanding of the lawes," has always seemed to me a very enlight- 
 ened provision ; and as the opportunity of imposing an educational test on electors 
 has been lost by the apathy and irresolution of the educated classes, it might per- 
 haps still be possible in some measure to supply the place of it by imposing some 
 such test on the elected. At all events the opportunity of prosecuting political 
 education in a more systematic manner than is at present possible in this country, 
 ought to be offered to our young politicians, and this can be best done, as it 
 seems to me, by developing our " sehules of jure"— that is to say, the faculties of 
 law in our Universities — on the political and legislative, as opposed to the pro- 
 fessional and judicial side. 
 
468 OF THE SECONDARY SOURCES 
 
 their importance. For admission to all the professions, and 
 more particularly to the law, it ought unquestionably to be 
 demanded ; and this is a measure in the hands of bodies so 
 obviously interested in it, that its adoption is not improbable. 
 In Germany — a country from which we have still much to 
 learn — the degree of Doctor of Laws, or some equivalent test, 
 is required for admission to all the higher offices of the civil 
 service of the State ; and these tests imply instruction and 
 examinations in scientific jurisprudence or natural law, 1 in 
 politics, and in political economy. 
 
 But, even on the assumption that it was to be entirely 
 voluntary — if direct political instruction of every kind, from 
 the highest and most exhaustive which the Universities could 
 communicate, down to the simplest and most obvious which 
 need be no burden on a parish or even a ragged school, were 
 to be sown broadcast over the land, I cannot doubt that it 
 would speedily yield a rich harvest, not only of progress and 
 safety, but of peace and goodwill. Great advantages have 
 already resulted from the extent to which a knowledge of 
 political economy has been disseminated in this country, 
 partly by popular lectures, but chiefly by the newspapers. 
 It is this knowledge, more than anything else, that has 
 protected our lower classes, beyond those of other countries, 
 
 1 In consequence of the ascendancy of the military and materialistic spirit, 
 Germany, during the last twenty years, and more especially since the French 
 war, has exhibited very little activity in the philosophy of law, or, indeed, in 
 any branch of philosophy. In some of the Universities, I believe, the exami- 
 nations in Rechtsphilosophie have been omitted, probably from the difficulty of 
 finding competent examiners. For the present the philosophical mantle, which 
 Germany wore so proudly in the beginning of the century, appears to have fallen 
 on the shoulders of Italy. 
 
OP POSITIVE LAW. 469 
 
 from the delusions of communism, socialism, and other forms 
 of political and economical error. But such benefits would 
 be infinitely deepened if men in general could be taught in 
 their youth not only that such schemes are unprofitable, or 
 even that they are wicked, but that they are impossible; 
 for the simple reason that they violate natural laws which, 
 are as unchangeable as those which govern the revolutions of 
 the seasons, the flow of the tides, or the alternations of day 
 and night. If the politician could expound the two words 
 " necessary " and " impossible " in their political acceptation, 
 as the economist has expounded the words " profitable " and 
 " unprofitable " in their economical acceptation, our " reigns 
 of terror" would be over. Such teaching would no doubt 
 demand some philosophical, and more especially ethical, 
 training, as well as a considerable acquaintance with his- 
 tory, on the part of the teacher. But, by any one so fur- 
 nished, I am convinced that it could be communicated in a 
 manner that would be perfectly intelligible and convincing, 
 not only to every reasonable man and woman, but to 
 every ordinarily intelligent child of ten or twelve years of 
 age. 
 
 3. The Press. 
 
 When we speak of the press, in this relation, it is necessary 
 to distinguish between the art of printing and publishing, 
 when used for the purpose of developing or disseminating 
 truth or error, and the act of printing and publishing when 
 carried on as a mercantile speculation. In the former capa- 
 city the press is an instrument, the effect of which, for good 
 or evil, will be proportioned to the power of him who wields 
 
470 OF THE SECONDARY SOURCES 
 
 it. Its function is to represent new opinions, and its ten- 
 dency will always be to go beyond the community in some 
 direction; whilst in point of ability it will generally either 
 rise above or sink below the general standard of thought and 
 knowledge. Even the error which it teaches will not be alto- 
 gether common error ; and where it exercises any influence 
 at all, that influence will be in the direction of developing or 
 exaggerating existing opinions rather than of disseminating 
 them. What may be called the mercantile press, on the 
 other hand, which alone properly falls to be spoken of in this 
 section, is the most efficacious means which the modern world 
 possesses of popularizing and diffusing thought and know- 
 ledge; but its function scarcely rises higher. The question 
 with its conductors, necessarily, is not " what is true ? " but 
 " what will pay ? " and nothing will pay immediately which 
 rises very much above, or pay at all which sinks very much 
 below, the point at which the general intelligence stands for 
 the time being. Publishers by profession, and those who seek 
 their favour, are thus of necessity teachers, and not cultivators 
 of science ; and inasmuch as the mercantile value of a book 
 is the best possible test of its value as an organ of instruction, 
 publishers and booksellers, whilst consulting their own in- 
 terests, are at the same time the most efficient managers of 
 the press for mere teaching purposes.' Where public taste 
 is good, the books which they select, in point of form often 
 leave little to be desired ; they frequently contain new facts ; 
 and they exhibit familiar opinions, and even sparkling para- 
 doxes, in brilliant language. But new, and as such, recondite 
 thought, is necessarily excluded from them. Even thought 
 
OF POSITIVE LAW. 471 
 
 which is familiar in one country is scarcely ever introduced 
 into another by the mercantile press, for the simple reason 
 that the works in which it is embodied, even when translated, 
 do not pay till, by academic teaching, or otherwise, they have 
 become familiar. In addition to popular books, the mercan- 
 tile press includes magazines, reviews, and other periodicals 
 which are the property of publishers, even when conducted 
 by " able editors " — with the partial exception of those which 
 publish the names of their contributors — together with the 
 vast majority of newspapers. From the immediate and mar- 
 vellous increase in the quantity, and deterioration in the 
 quality of its newspapers that takes place the moment that a 
 nation sinks into anarchy, 1 it would almost seem as if auton- 
 omous reason were in an inverse proportion to the time and 
 energy consumed in the production and perusal of this species 
 of literature. And yet there is no other secular means of 
 developing the popular reason which possesses half the effi- 
 cacy of the newspaper press ; and there is none which is, on 
 the whole, more worthily used, in this country. 
 
 The other evils which to some extent counterbalance the 
 many benefits which the mercantile press confers 'on the 
 cause of civilization seem to be mainly these — 
 
 (a) From the zeal and energy with which popular works are 
 pressed on the attention of the public, the success and to some 
 extent the production of recondite and original works is in- 
 terfered with. The greater activity of the learned press in 
 Germany than in England, is in some degree to be accounted 
 
 1 This phenomenon, I am told, is invariably exhibited in the South American 
 States the moment that a revolution occurs. 
 
472 OP THE SECONDARY SOURCES 
 
 for by the greater activity of the popular press in England 
 than in Germany. 
 
 (5) The multiplication of secondary sources of thought and 
 knowledge draws attention away from the primary sources, 
 and induces men to follow inferior guides. In place of read- 
 ing a little of standard works, most of us read a great deal 
 about standard works. 
 
 (c) The amount of time and energy devoted to trivial and 
 indolent reading, limits that which most men have at their 
 command for meditation and reflection. The most common- 
 place persons are very often those who read most ; and prob- 
 ably the dead level of character of which we all complain, 
 and which most of us exhibit, is in no small measure due 
 to the efforts requisite to keep up with what is called "the 
 current literature of the day." 
 
 4. The Polling-looth. 
 
 The mere exercise of . the electoral suffrage is by many 
 regarded as sufficient to confer the measure of rational will 
 which its rational exercise demands. The proverb that 
 " office makes the man," here above all, it is said, is true. I 
 am far from denying either the truth of the proverb, or its 
 bearing on the matter in hand. Practice is the best of school- 
 masters, and the polling-booth is a very precious school of 
 political instruction. It is in recognition of this fact that I 
 mention it here amongst the means by which the rational will 
 of the community is formed, though. I regard its direct and 
 primary function as being, not to form that will, but to 
 measure it and declare it. 
 
 But granting its title to take rank as an educational in- 
 
OF POSITIVE LAW. 473 
 
 stitution, it is an error to suppose that, by the suffrage, or any- 
 other office or function, we can supply gifts by merely calling 
 for their exercise. It is precisely the same error that is made 
 in supposing that by multiplying examinations we supply the 
 place of teaching. The Bench of Judges and the Bench of 
 Bishops are both of them very sharp and efficient schools of 
 instruction ; but did any sane man ever propose to appoint a 
 judge or a bishop in the hope that he would thereby be in- 
 structed in the duties of his calling ? Even supposing the 
 ultimate instruction of the individual to be an adequate 
 return for the injury to himself and others which must arise 
 from his inevitable failures in the first instance, this object 
 would not be attained; for experience will no more supply 
 the place of knowledge than sunshine will supply the place of 
 seed. You can no more convert a mob into disciplined citizens 
 by giving them the suffrage, than you can convert them into 
 a disciplined army by giving them muskets ; and we do not 
 require to travel into the history of former times to convince 
 ourselves, either that the dangers attendant on the two ex- 
 periments are on a par, or that the one experiment has a 
 tendency to lead to the other. 
 
 The reason why men fail to see, in the case of the suffrage, 
 what is so obvious with reference to every other function, is 
 that its exercise is regarded only in the character of a right. 
 Men, it is said, have no right to be judges, or bishops, or 
 soldiers, but all men have a right to be citizens, and to all 
 the advantages which may arise from the exercise of citizen- 
 ship. The error, like the opposite one of denying that it is 
 a right altogether, arises from forgetfulness of the relation, 
 
474 OF THE SECONDARY SOURCES 
 
 which we formerly discovered, of the inevitable reciprocity of 
 rights and duties. We then saw 1 that there are no absolute 
 rights at all, in the sense of rights, to which corresponding 
 duties do not attach ; and that if there be a failure of reciproc- 
 ity as regards duties, it can only be in the case of the duties 
 which we owe to the Author of our being. The two prevalent 
 theories of the suffrage are thus equally erroneous, and from 
 the same cause. Like all other functions that are legitimate 
 ,at all, the function of citizenship is loth a right and a duty, 
 inherent in all who are capable of its exercise. It is inherent 
 in them as a right in proportion to the extent to which it is 
 a duty, but it emerges neither in the one character nor in the 
 other till, nor beyond the extent to which, it emerges in both. 
 On precisely the same principle lawyers and clergymen are 
 entitled to preferment — men who are able and willing to 
 defend the community are entitled to powder and shot; but 
 in each case the right brings its corresponding duty, and con- 
 tinues dependent on, and measured by, its performance. 
 
 But these considerations, though they deprive the suffrage 
 of the character of an educational institution, except for those 
 who are already capable of its exercise, do not invalidate it, 
 for those who are, as a potent instrument for the formation 
 and development, as well as for the expression, of rational 
 will. It has taught much in England ; we must hope that it 
 is at last beginning to teach something in France ; and if 
 graduated in proportion to capacity, it would have the farther 
 advantage of acting as a very powerful stimulant to the use 
 of the other means of progress. 
 
 1 Ante, Book I. cap. vii. , xi., xii. 
 
OF POSITIVE LAW. 475 
 
 But there is another ground on which we must limit our 
 .recognition of the suffrage as, in any exceptional manner, 
 entitled to the character of an educational institution. In a 
 manner closely analogous to that in which it belongs to the 
 electoral or representative system, an educational character 
 might be ascribed to every other institution of the social 
 organism. The Legislature which enacts positive law, the 
 court which administers it, the executive which enforces it in 
 civil, and, above all, in criminal cases, like the laws which 
 they enact and administer and enforce, are all of them 
 "schoolmasters to bring us unto Christ." l The State, as a 
 whole, like the life of man in its highest and widest concep- 
 tion, is a teaching institution, 2 and is thus the source of that 
 positive law, of which it is likewise the fullest and most per- 
 fect expression. The apparent petitio prineipii of which we 
 are guilty in thus viewing positive law, or the State which is 
 its embodiment, as its own source, arises only when we lose 
 sight of the distinction which we formerly made between 
 jurisprudence as a special science, and jurisprudence as a 
 branch of the science of life. Viewed as a special science, 
 law does not teach, but only gives freedom to learn. It is 
 thus only mediately, through its participation in the wider 
 objects of life as a whole, that positive law contributes to its 
 own formation, and, as we have likewise seen, to its own 
 
 1 Gal. iii. 24. 
 
 2 That God's dealings with man, not in time only, but in eternity, are wholly 
 educational, was a favourite thought with the late Mr Erskine of Linlathen, and 
 he has worked it out in many directions in the profound and eloquent papers 
 which he has left behind him. — "The Spiritual Order, and other papers, selected 
 from the MS. of the late Thomas Erskine of Linlathen." 
 
476 OF THE SECONDARY SOURCES 
 
 gradual and approximate, though not in this world, probably, 
 to its ultimate annihilation. 1 
 
 II. The means by which the community develops its rational 
 will. 
 
 (a) Conscious effort on the part of individuals and classes. — 
 Under this head a question deeply affecting the duties both of 
 individuals and of classes forces itself on our consideration. 
 In quiet and uneventful times we are much in the habit of 
 consoling ourselves for the lack of individuals of unusual 
 insight or strength of character, and possibly of justifying our 
 own inactivity, by the notion that though government may still 
 demand some sort of conscious and organized superintendence, 
 progress, for the future, may be intrusted to a certain divine, 
 though blind, instinct which inspires the masses. Our doctrines 
 of social evolution and development fail to take cognizance of 
 the fact that society is only a congeries of individuals, and 
 accepting the theory that " the individual withers, and the 
 world is more and more," not statesmen and politicians only, 
 but the educated classes, as a whole, have recently exhibited 
 a tendency to abdicate their traditional leadership, and to 
 make a merit of " drifting," as it is called, or indolently float- 
 ing on the current which they had formerly striven to direct. 
 Sensible that the impious denial of the universality of reason 
 must be abandoned — recognizing the fact that the rule of an 
 exclusive oligarchy was unjust and is for the future impossible, 
 and dazzled by the attraction of extreme opinions now in the 
 direction of democracy and now of imperialism, — they have 
 seen no resting-place between the untenable position which 
 1 Ante, Book II. cap. i. 
 
OF POSITIVE LAW. 477 
 
 they quitted, and a fatalistic acceptance of the dictation, and, 
 as a practical consequence, of the dictatorship, of the numerical 
 majority, or of its leaders for the time heing. Vox populi vox 
 Dei has been accepted, not as a recognition of the fundamental 
 rectitude of mankind, or of the presence of rational will in a 
 particular community, but of the infallibility of the portion of 
 mankind, or of the community, which has always been, and 
 must always continue to be, the most fallible. It is the same 
 error which I pointed out, 1 in another connection, as having 
 been committed by those anthropologists who seek to derive 
 their knowledge of humanity from a study of the imperfectly 
 organized, the partially developed, or the lapsed races of man- 
 kind, with this difference — that the proposal here is to ascer- 
 tain the opinions of those most likely to be mistaken, not 
 with a view to their possible rectification, or even to the 
 gratification of our curiosity, but in order that we may adopt 
 them for the guidance of our conduct and of theirs. 
 
 But this theory, some may perhaps still be tempted to 
 allege, is involved in the doctrine, that though man be fallible, 
 and race sink before race, mankind, as a whole, is divinely 
 guided to the goal of existence, and the final object of crea- 
 tion is secure. For this reason it seems necessary that I 
 should analyze it with what, to some, may appear superfluous 
 care. 
 
 The theoretical answer to the belief in the loudest cry of 
 
 the hour as the true expression of the rational will of a 
 
 people, or rather the theoretical means of sifting the truth 
 
 from the error which that belief contains, is not far to seek. 
 
 1 Ante, Book I. cap. iv. 
 
478 OF THE SECONDARY SOURCES 
 
 It is furnished by a fact on which I have already dwelt 
 sufficiently — viz., that though God has endowed all men 
 alike with -reason, He has not endowed them all with 
 like reason ; and that, as duties and gifts are reciprocal, 
 He cannot have intended to absolve the recipients of His 
 greater bounty from corresponding responsibilities. The 
 promise of divine guidance, which the instincts of our nature 
 afford us, is not a promise of guidance without human means ; 
 and the human means which God has appointed for this end 
 are — leadership proportioned to power and reason, and obedi- 
 ence proportioned to immaturity, imbecility, mediocrity, and 
 irrationality. 1 Effort and self-restraint must go hand in hand, 
 and it is hard to say whether the failure of the one or the 
 other be most fatal to progress. 
 
 Neglect of the means, it is true, will not arrest the laws of 
 nature, or prevent the attainment of general or final ends. 
 Winds will blow, and tides will run ; ships, as a rule, will 
 reach their ports, and mankind will " rejoice on the shore." 
 But individual ships will perish, and individual men and 
 nations will weep; and this equally whether their officers 
 neglect to issue the requisite orders, or their crews refuse to 
 obey them. No providential guidance of wind or tide, no 
 blind inspiration of the crew, will supply the place of honest 
 conscious effort, or loyal obedience, as his duty may be, on 
 the part of any single member of the crew. But the con- 
 sequences of negligence will not be equal, either in all or to 
 all. On the contrary, it will increase and diminish in exact 
 
 1 "The fountain-head of all life, and the only possible human cause of any 
 development, is conscious personality." — Bunsen's God in History, vol. i. p. 50. 
 
of' positive law. 479 
 
 proportion to the importance or insignificance of the indi- 
 vidual, from the captain to the cabin-boy. Power and reason 
 will be the measure of responsibility — a measure which will 
 certainly be applied to it here or hereafter. 
 
 The de facto principle, properly understood, is thus our 
 answer to the fatalism which has been ignorantly urged 
 against it ; and this just as much whether fatalism springs 
 from democratic or despotic roots. The exclusive rule of the 
 many gains no more by it than the exclusive rule of the few ; 
 but it surrounds the proportional rule of all with the halo of 
 divine authority. 
 
 Such, then, I take to be the theoretical response which it 
 behoves us to return to the claim of the body politic to 
 march, like St Denis, with its head in its teeth. Let us 
 now see to what extent experience warrants the experiment. 
 Thucydides said of the Athenian state, in the days of Pericles, 
 that, though nominally a democracy, it was in reality a 
 government administered by the first man. I believe he 
 would have uttered no paradox, had he said that on this 
 account alone did it enjoy its short and precarious existence 
 as a democracy, even in name. But though the appearance 
 of such a leader as Pericles does not often occur, and even 
 such an approach to democracy as Thucydides commemorates 
 has rarely been recorded by historians, there never has been a 
 generation of civilized men, particularly if it was at all a pro- 
 gressive generation, to which a body of persons, few in com-, 
 parison with the whole community, did not fill the place 
 which Pericles did to the Athenians at the commencement of 
 the Peloponnesian war. If any particular period of history 
 
480 OF THE SECONDARY SOURCES 
 
 be mentioned, we can, for the most part, tell the names and 
 count the numbers of those who, in any individual state, 
 directed the current of thought and action. True it is that 
 to those of whom history takes note there would fall to be 
 added, in order to sum up the leaders of a whole generation, 
 a still greater number of persons — women, for example, and 
 mothers more especially — whose activity was not less pre- 
 cious, but who, partly from accident and partly from choice, 
 have been covered by a privacy which history endeavours to 
 penetrate in vain. As civilization advances and knowledge 
 is disseminated, the influence of this silent class increases. 
 It is its increase amongst ourselves which renders it increas- 
 ingly difficult to calculate the results of a general election. 
 But this silent class, too has its silent leaders, more numerous 
 it may be than those who in the general community come 
 ostensibly to the front. Still, if both classes were reckoned 
 together, the tale would be inconsiderable, 1 not only as com- 
 pared with the whole community, but with those who hold 
 public offices, or who sit in the Legislature. The number of 
 names in Smith's Dictionary of Biography probably does not 
 exceed the number of officials in the Boman Empire at any 
 one time from the age of Augustus to that of Constantine, 
 and certainly does not equal the number of inhabitants of a 
 very moderately-sized city ; and yet it contains the name of 
 every person who is known to have influenced thought and 
 opinion in the ancient world, together with the names of 
 many who certainly did not. If the latter be put against 
 the great names that have perished, perhaps the whole 
 
 1 Coleridge's Statesman's Manual, pp. 214, 215, Pickering's ed. 
 
OF POSITIVE LAW. 481 
 
 number of names which it contains may pretty nearly corre- 
 spond to the whole number of really influential men and 
 women who lived during the whole period of history which 
 the work embraces. 1 These remarks may seem to conflict with 
 Mr Herbert Spencer's strictures on what he calls " the great 
 man theory " of history, and to a limited extent they certainly 
 do so, for these strictures seem to me to involve a palpable 
 fallacy. He enumerates the great men of history, and he 
 asks, " Could they have done the works they performed apart 
 from the social and intellectual conditions in which they 
 lived ? Could Shakespeare have written his dramas, or Watt 
 invented the steam-engine ? " I reply, Most certainly not. 
 But the men might have been equally exceptional, and have 
 
 1 One of my pupils did me the favour to test this assertion by counting and 
 classifying the names in the Dictionary of Biography and Mythology, and also 
 in that of Geography, including the whole period from Homer to Justinian. He 
 tells me that they contain : — 
 
 1st, Persons of little importance, who are mentioned simply from 
 their connection with some event, or from allusions to them 
 
 by classical writers . 2005 
 
 2d, Persons of whom a brief sketch is given — 
 
 Males, . 1322 
 
 Females, 118 
 
 3d, Persons of whom an account is given, varying in length from 
 I page to 3 pages. This class includes all the names .that a 
 person having received an ordinary classical education could 
 be expected to know — 
 
 Males, . . .... . 326 
 
 Females, ... 16 
 
 Total, 3787 
 
 If the 2005, comprising the first of these classes, be taken to represent the 
 forgotten names of those whom I have called "silent leaders," the total, 3787, 
 may perhaps give an approximation to the number of persons who exercised ex- 
 ceptional influence over their fellow-men during this long period of history. 
 
 2 H 
 
482 OP THE SECONDARY SOUECES 
 
 done works, relatively to their surroundings and opportunities 
 and the requirements of their age, equally remarkable. His 
 observations are true and valuable to the extent of showing 
 that we cannot understand the course of history by studying 
 individual characters apart from their surroundings, but not 
 to the extent of showing that these surroundings were not 
 influenced by the conscious efforts of the few far more than 
 by the unconscious tendencies of the many. 
 
 But granted, it will be said, that the few have led the 
 many in times past, does that fact afford any proof either 
 that they will continue to lead them, or that they have led 
 them forward ? I answer that it affords a good deal of proof 
 both ways, because, first, there is always much reason to 
 believe that what has continued long, and been often repeated, 
 depends on laws which are permanent ; and, second, perman- 
 ent laws, being God's laws, the result of their action, by what- 
 ever means, will be progress ultimately and on the whole. 
 
 But there is another consideration than that of the number 
 of actors by which we may perhaps come nearer to a solution 
 of this question. Though the history of the world presents 
 to us the phenomenon of a flowing tide, it is a tide in which 
 the receding alternates with the advancing wave. Let us take 
 such of the advancing waves as are historically known to 
 us, and try whether we can so analyze them as to discover 
 whether the influences which moved them onwards have been 
 supplied by conscious individual effort, or by unconscious 
 general impulses. 
 
 The greatest of all onward movements, and the most pop- 
 ular in the sense of being that by which the people were the 
 
OF POSITIVE LAW. 483 
 
 greatest gainers, surely was Christianity. Did Christianity, 
 then, spring up as a spontaneous popular growth, or was it 
 laboriously sown and watered with the blood and tears of a 
 single Founder ? We are often told that great men are mere 
 exponents of a spirit which is struggling for utterance, that 
 they light a train which is laid. But such expressions are in 
 general only acknowledgments of our ignorance of how the 
 spirit was infused, or the train was laid. In the case of this 
 greatest of all men, and of all popular leaders, we know, at all 
 events, that He struck no chord that was ready strung. On 
 the contrary, the many of all ranks " rejected and despised " 
 Him ; and after His marvellous work was ended and His 
 teaching was complete, His whole adherents assembled " in 
 an upper room." 
 
 But the origin of Christianity, it may be urged, was mirac- 
 ulous, and affords no analogy by which we may judge of the 
 action of human causes. That the character of its Founder 
 can be measured by no human standard I fully admit, though 
 I believe that much of the benefit of Christianity is lost by 
 His activity being treated as an exception to, in place of an 
 ideal instance of, the general action of Divine grace. But I 
 am quite willing to peril this argument on what are usually 
 regarded as natural occurrences. By Protestants, to whom I 
 mainly address myself, the Beformation, notwithstanding the 
 inconveniences attending it, to which I have already referred, 1 
 will be admitted to have been the most unequivocal step in 
 advance that mankind has made since the spread of Chris- 
 tianity. Now, whatever phase or period of the Keformation 
 
 1 Pp. 173, 273. 
 
484 OF THE SECONDARY SOURCES 
 
 we select, in whatever country we study it, I think we shall 
 find that it was traceable to individuals. In England, in the 
 fourteenth century, it received its first impulse from Wickliffe 
 and Chaucer, and it was favoured by the King and John of 
 Gaunt. In their own way, possibly, Occam and Greathead 
 (Gros-t&te) did even more. In many places, no doubt, "the 
 common people heard it gladly ; " but it was preached to them 
 by a few who were not only specially gifted, but had been 
 specially instructed. . It was not for a couple of centuries 
 later that it fully took hold of the masses, and even then 
 by no means spontaneously. In Bohemia, it was Wickliffe's 
 writings and example that inspired, not the masses, but 
 John Huss and Jerome of Prague, both of whom were univer- 
 sity men. "With them the movement was born, and with 
 them, substantially, it died. In the sixteenth and seventeenth 
 centuries the Eeformation became a popular movement, if ever 
 there was one ; but it did not even then begin with the people. 
 Its cradle was the University of Wittenberg ; and, in so far as 
 it was an adyance in thought, it scarcely made the slightest 
 progress after it passed out of the hands of the learned class. 
 In Germany, in Switzerland/in Scotland, it remained stationary 
 at the points at which Luther and Calvin and Knox left it, or 
 it went back. Even Melville's teaching was narrow and retro- 
 grade compared with Knox's; and during the periods when, 
 and in the directions in which, it passed into popular hands, 
 it strikingly degenerated. German Anabaptists, English 
 Puritans, and even Scottish Covenanters, though more than 
 justified in what they did by the illiberality of their opponents, 
 did nothing but exaggerate the errors to which Protestantism 
 
OF POSITIVE LAW. 485 
 
 was prone, and occasion those schisms, dissents, and disruptions 
 by which both religious and civil life have been rent asunder. 
 It is the popular conception of Christianity which grew up 
 amongst the ignorant at this particular period of our history 
 which, more than anything else, feeds the infidelity of the 
 present time. Even Mr Mill's scepticism is distinctly trace- 
 able to it, and was indeed the logical result which his father 
 had already worked out of it. 
 
 Again, take the political reformation, the movement in 
 favour of universal liberty. . Like the religious reformation, 
 it began in this country in the fourteenth century, and sprang 
 from the very same roots — it was the secular side of Wick- 
 liffe's teaching, — and Wickliffe, and Chaucer, and John of 
 Gaunt, and Piers Ploughman or Plowman (who was no plough- 
 man at all) were its first apostles. In the earlier transaction 
 ' at Eunymede, it is true, no single name is very conspicuous. 
 More than almost any other historical event, it possessed the 
 character of common action ; but then it was the action of 
 the few, not of the many, and it stands out as a conspicuous 
 example of a gift of liberty by an oligarchy to a whole people. 
 It was otherwise with the next great step in the development 
 of our political liberties. The more closely the reign of 
 Henry III. has been studied in recent years, the more has it 
 appeared that the representation of the commons is traceable 
 to the personal insight and activity of Simon de Montfort. 1 
 
 But Jack Cade's insurrection, you will say, centres in his 
 name, as unmistakably as the rising in Henry III.'s day 
 does in that of Simon de Montfort; and if the latter be 
 1 Pauli, Gesckichte von England, vol. iii. p. 488 et seq. 
 
486 OF THE SECONDARY SOURCES 
 
 called the father of the commons, the former with equal 
 reason may be called the father of communism, unless, in- 
 deed, his distinguished predecessor, Wat Tyler, have a better 
 claim to it. 1 I am far from desiring to rob either of them 
 of that honour. Mobs have their leaders as well as armies ; 
 error has its apostles as well as truth ; weeds may be sown 
 as well as grain ; the demagogue and the fanatic are indi- 
 viduals, as well as the sage and the saint. What I maintain 
 is that weeds will sow themselves, but grain will not — at least 
 not to any useful purpose ; and that in like manner, though 
 error may be planted and cultivated, and retrogression may 
 thus be precipitated by individual effort, it is not dependent 
 on it, whereas truth and progress without it are impossible. 
 
 Of this we find a conspicuous example in that remarkable 
 movement which has so deeply affected the life of our own 
 time, and which may in some respects be traced to the free 
 institutions of our own country, and the liberal aspirations of 
 our race — I mean " the Eevolution." 
 
 Towards the end of last century this movement was ushered 
 in and welcomed by a galaxy of talent and of virtue as great 
 as is to be found in most periods of history. Washington 
 and Lafayette and Necker do not perhaps rank very high 
 
 1 The best claim of all is probably that of John Ball, the vagabond priest, whom 
 the people took out of the archbishop's prison, and put forward as their spokes- 
 man in Wat Tyler's insurrection, in 1381. From his sermon, as sketched by Dr 
 Pauli, it would seem that he laid claim, on behalf of his constituents, to absolute 
 equality — Freiheit una" Gleicliheit — in the sense of 1789. His cry was JEqua 
 Kbertas, eadem rwbilitas, par dignitas, similisque potestas — 
 Whan Adam delfte and Eve span, 
 Who was then a gentleman ? 
 
 — Pauli, ut sup. , iv. 527. 
 
OF POSITIVE LAW. 487 
 
 amongst the intellectual heroes of humanity, but their char- 
 acters were an entire guarantee for the purity of their inten- 
 tions ; and when we remember the circumstances in which 
 they acted, and recall the doctrines which they desired to 
 teach, we have no difficulty in accounting for the undiscrimi- 
 nating sympathy which they experienced even from men like 
 Edmund Burke and Immanuel Kant. In America, down to 
 the presidency of Jefferson, and in France, till the meeting 
 of the National Assembly, the Revolution is chargeable with 
 no serious error. Its doctrines, as understood and acted on 
 by its promoters, amount to nothing more than a recognition 
 of truths which we ourselves have found to rest firmly on the 
 basis of nature, and which, in this country, had been recog- 
 nized more than a century before by the Ee volution of 1688. 
 But these doctrines, unhappily, even in the state documents 
 which were issued, were not stated with such perspicacity 1 
 as to guard them against the errors which the writings of 
 Eousseau and others had sown in the public mind ; and no 
 sooner did the Bevolution pass out of the hands of its origin- 
 ators, and become a merely popular movement, than this very 
 remarkable phenomenon was exhibited. The truth was 
 received with comparative indifference, and has often since 
 been entirely lost sight of ; the error was hailed with shrieks 
 of enthusiasm, and clung to with fanatical devotion. The 
 reason, of course, was that the error appealed to the super- 
 ficial and immediate, the truth to the deeper and fundamental 
 instincts of humanity. Liberty really meant la carribre ouverte 
 aux talents, " the tools to him that can handle them," and 
 
 1 Ante, p. 392. 
 
488 OF THE SECONDARY SOURCES 
 
 so it was preached at first. But what was that in compari- 
 son with the glad tidings that came afterwards, that men for 
 the future were to handle no tools at all ? Equality again 
 was equality before the law. But that was no very dazzling 
 boon ; for, though the law might give no heed to who a man 
 was, it was much to be apprehended that it might take 
 cognizance of what he did, and failed to do. Equality before 
 the tax-gatherer was another phase of equality before the law ; 
 but that the tax-gatherer should knock at all doors alike, was 
 a mere mockery to him who had got hold of the higher 
 doctrine that he should knock at all doors but his. Even 
 fraternity was a principle that cut both ways, and re- 
 quired to be defined in a liberal sense. But absolute equality 
 — meaning thereby a levelling-down to the leveller's own 
 level, and a fair division for the" future, not of work but of 
 wages — that was what was wanted. And such accordingly 
 was the construction which the inspiration of the many, as 
 expressed in the " Declaration of the Eights of Man," put on 
 the equivocal words with which Washington and Adams, to 
 the great regret of the latter, 1 had permitted Jefferson to 
 head his " Declaration of Independence." It is now ninety- 
 one years since the revolutionary doctrine received this pop- 
 ular exposition from nameless, or at least unmentionable 
 individuals. 2 During that long period the Revolution has 
 
 1 Ante, p. 392. 
 
 3 The miserable fate which overtook most of these wretches is well known. 
 The following, though I have it merely on newspaper authority, is probably a 
 pretty accurate account of what is known of them : "No less than fifty -eight 
 were guillotined, including Carrier (to be remembered for his Loire marriages), 
 Couthon, Danton, Camilla Desmoulins, Robespierre, St Just, Philippe Egalite, 
 
OF POSITIVE LAW, 489 
 
 had no single leader who rose above, and very few who 
 reached, the average intelligence of an educated man. The 
 learned class has kept aloof from it, and the consequence has 
 been that, as a political doctrine, it has remained absolutely 
 stationary. Like the dynasty which it superseded, it can 
 neither learn nor forget. In 1880 it is still muttering the 
 shibboleths of 1789, and Eussia is threatened with the 
 experiences of France. The only approach to a new idea 
 which has come out of it, even indireetly, is the idea of 
 Csesarism, by which it has twice been overthrown ; and in 
 striking confirmation of my thesis, that idea did not originate 
 
 &o. Two were shot. Eight were assassinated — Andrein, Constitutional bishop 
 and representative of Morbihan ; Marat, stabbed in his bath by Charlotte Corday, 
 &c. Fourteen committed suicide, including Euhl, who broke the bottle of sacred 
 oil at Rheims, and Romme, who drew up the republican calendar, with its 
 Thermidor, Fructidor, its sans-culottides, its decades, &c. Five died of grief, 
 and one of liquor. Four ended their days in a madhouse ; and six, including 
 the Marquis de Fonvielle, perished in abject misery. Three more were found 
 dead, the bodies of two half devoured by dogs. Two died more nobly in the 
 ranks of the army — Gilet, who fell whilst serving under Jourdan ; and Albite, 
 frozen to death during the retreat from Moscow. The ex-deputy of the Sarthe 
 was carried off by the Prussians in 1815, and died at Berlin. The cure Bassab, 
 who represented the Seine-et-Oise Department, died in prison when about to be 
 tried before a court-martial at Milan for robbery. One deputy perished from joy ; 
 his name was the same as that of. the deputy who fell on the barricades in Paris 
 on the 2d December — Baudin. What sudden and fatal delight he experienced 
 is not chronicled. The member of the Gironde, Jai-de-Sainte-Croix, was burned 
 in effigy at Philadelphia for having signed a treaty of commerce with Lord 
 Granville, between England and America. It is probable that, only burned in 
 proxy, Citizen Jai-de-Sainte-Croix died a natural death. Three other deputies 
 died suddenly. One hundred and thirty-eight were transported or exiled, and 
 most of these died abroad. Sixty -five disappeared, and left no trace behind them 
 except their crimes. Such was the ultimate fate of the members of the National 
 Convention." I cannot regard it as a good omen for France that the walls of the 
 Salon should still be annually crowded with pictures representing them and their 
 deeds. 
 
490 OF THE SECONDARY SOURCES 
 
 with the people, but was the old idea of the latter Empire, 
 revived by two very remarkable individuals whom the insup- 
 portable anarchy under which the nation groaned, or with 
 which it was continually threatened, called into activity. 
 
 I shall mention but one other instance of a progressive, and 
 with us now happily a popular doctrine, the origin of which 
 was not popular — the doctrine of Eree Trade. The honour 
 of its discovery and scientific enunciation, as a legitimate 
 inference from the facts of nature, belongs prominently to the 
 occupant of a university chair in this country, and exclusively 
 to the learned class. Even its popular triumph in England 
 was effected mainly by the personal efforts of two individuals 
 of unusual energy and oratorical power. In France its 
 partial adoption was due to one whom "the Revolution" 
 cannot mention without execration ; and " the Revolution " 
 has always opposed it. In America it is opposed by the 
 extreme Tepresentatives of popular opinion. The only novel 
 and fruitful application of the principle of fraternity, has thus 
 been everywhere condemned by the most boisterous advocates 
 of that principle. Even in the cases in which proposals to 
 revive protection under the guise of reciprocity, or otherwise, 
 have proceeded from professedly Conservative sources, their 
 object has invariably been to catch the democratic vote for 
 despotic purposes. 
 
 Greater than even the impetus of free trade has been that 
 which material progress has derived from mechanical inven- 
 tion, and no one, I fancy, will question that invention is the 
 work of individual effort. We did not " drift '' into a know- 
 ledge of the uses of steam or electricity. 
 
OF POSITIVE LAW. 491 
 
 But I must not multiply instances, or dwell longer on 
 a theme which manifestly admits of indefinite expansion. 
 Enough, I hope, has been said to convince my readers, that 
 whilst experience and reason concur in assuring us that the 
 voice of man is the voice of his Maker, and thus, in one sense, 
 vox populi vox Dei is the deepest as it is the oldest of all polit- 
 ical truths, there is another sense, and a far commoner one, in 
 which, as rational politicians and scientific jurists, we are bound 
 to dismiss it as the shallowest and most pernicious of errors. 
 
 " Vox populi vox Dei," do they say ? 
 Alas, quite otherwise ! — and he who first 
 Mouthed the crude sophism sowed a seed accurst, 
 To choke the growth of Truth, and bar man's way 
 To Freedom with rank jungle— fruitful but 
 Of rottenness. All history proves this true : 
 God speaks not by the Many, but the Few. 
 And in all ages, — since "The People " shut 
 With the blank seal of death the inspired lips 
 Of Socrates, — since that yet darker hour 
 When blood-stained Calvary owned th(5ir "sovereign power,'' 
 And nature groaned in earthquake and eclipse — 
 Has that fierce Voice, at some loud babbler's nod, 
 Been lifted in blind rage against the voice of God. 1 
 
 (jb) Social Organization. 
 
 In studying the objects of natural law, we have seen 2 that 
 order, though not indeed the object in itself, is the means, 
 sine qud non, to the attainment of that object, which is liberty. 
 We now encounter a special illustration of this general relation 
 in the fact that the development of the rational will, in virtue 
 of which a community is autonomous, is dependent on, and 
 proportioned to, the perfection of its organization. In the 
 last section I endeavoured to show that the formation and 
 
 1 Spindrift, by Sir J. Noel Paton. * Ante, p. 367. 
 
492 OF THE SECONDARY SOURCES 
 
 development of the rational will is the work of conscious 
 effort, and not a spontaneous growth of unconscious and self- 
 directing influences. It is obvious, then, that, like other works, 
 this work will have the best chance of being performed well 
 when it is portioned out to the special labourers, or classes of 
 labourers, who can best perform it, according to their respec- 
 tive capabilities, and not when, capable and incapable alike, 
 they all set about it indiscriminately without order or method. 
 Now, with rare exceptions, of which I shall speak presently, 
 such portioning out is effected spontaneously by the natural 
 division of society into what are called classes or orders, which, 
 for purposes of social and political work, exactly correspond 
 to its division into professions and handicrafts for the per- 
 formance of its other functions. If castes, by which men are 
 deprived of each other's aid, be an impediment to progress, 
 classes, by means of which they are enabled to avail them- 
 selves of each other's qualities, and supply each other's defects, 
 are in both respects precisely the reverse ; and the cry for the 
 abolition of class distinctions must be numbered with the other 
 hallucinations of false liberalism — 
 
 ' ' Take but degree away, untune that string, 
 And, hark, what discord follows ! " l 
 
 The class to which a man belongs is merely the more 
 immediate sphere in which he is called to work, for the time 
 being. So far from its being requisite that he should remain 
 stationary in one class, the very highest test of the usefulness 
 
 1 Trtrilus and Cressida, Act i. scene iii. In Mr Herbert Spencer's Study of 
 Sociology (p. 60) some interesting illustrations will be found of the action of the 
 law of " Differentiation.'' 
 
OF POSITIVE LAW. 493 
 
 of a citizen, just as of a soldier, will often consist in his having 
 passed successively upwards, through every class from the 
 lowest to the highest ; whilst, conversely, his progress down- 
 wards will be the surest sign of uselessness. But at each stage 
 of his progress, in the one direction as in the other, his value 
 will in no small measure be proportioned to the completeness 
 with which he enjoys the privileges and shares the responsi- 
 bilities of the class to which he belongs, for the time being. 
 The best colonel will be he who was the best captain, in his 
 day. The only natural limit to social promotion, either in 
 extent or rapidity, consists in the inability of any but the 
 Mite of mankind adequately to perform the duties of any class 
 except that in which they were born, or for which they have 
 been educated, or to -perform them without long practice. 
 Each step, whether upwards or downwards, demands a new 
 education, a process both of learning and unlearning, of which 
 few men are capable ; and unless this new education be com- 
 plete, or at least as complete as the former one, it is obvious 
 that both the community and the individual will be losers 
 by the change. The point of transition is always a period of 
 peculiar danger. The notion prevalent in free countries that 
 every man who is born below the highest level ought to rise, 
 is thus an error; though it is not nearly so fatal an error as 
 the notion prevalent in democratic countries that every man 
 who is above the average level ought to fall. To the " levelling 
 down " process, in addition to the consideration that it is a 
 retrograde step on the part of the society which performs it, 
 by means of which it loses ground both absolutely and rela- 
 tively to surrounding nations, there is this farther objection as 
 
494 OP THE SECONDARY SOURCES 
 
 regards the individual, that men adapt themselves far better to 
 the duties of the class above them than to those of the class 
 below them. Even where the descent can be ascribed neither 
 to the fault of the individual nor to the injustice of others, it 
 is always a misfortune over which few men can triumph. 
 
 (c) By the selection, and setting apart, of exceptional workmen 
 for exceptional work. 
 
 Though the classification of society which naturally results 
 from the unequal distribution of individual gifts, if not artifi- 
 cially interfered with, will effect such an amount of division 
 of labour as to supply the conditions of orderly, and as such, 
 to a certain extent, progressive existence, it does not exhaust 
 the means of organization which every society has at its dis- 
 posal. More or less every man has his speciality, in the sense 
 of a kind of work for which he is more suited than for any 
 other. But the difference between normal and exceptional 
 men, in addition to a difference of power, lies also in this, that 
 the specialities of the normal man belong to many, whereas 
 the specialities of the exceptional man belong to few. It 
 is obvious, then, that the community, whilst it suffers but 
 slightly from the mal-selection or neglect of labour in the one 
 case, will suffer very seriously from the same causes in the 
 other ; and hence the necessity for its active interference to 
 secure its extraordinary resources. It is true that men who 
 have strongly marked specialities will, in general, not only 
 manifest them, but insist on following them ; and thus their 
 selection may be said to be spontaneous. But men often 
 deceive themselves, and it is therefore not surprising that they 
 should deceive others, particularly with reference to subjects 
 
OF POSITIVE LAW. 495 
 
 which, ex hypothesi, can be familiar to few. Hence the neces- 
 sity for the community adopting every available test of 
 capacity before appointing individuals to the discharge of its 
 less usual duties. The necessity, when such men are selected, 
 of setting them apart and purchasing their services, for the 
 most part for life, arises from two facts : 1st, that the work 
 which we require of them usually demands long-continued 
 training as well as special gifts ; and 2d, that we cannot 
 trust to their being maintained by the direct and immediate 
 sympathy of the community. The mercantile press, we have 
 seen, can render them no aid ; and it is impossible that they 
 can be popular teachers of what must, necessarily, be unpop- 
 ular subjects. 
 
 The Professoriate. — The institution by means of which ex- 
 ceptional work of this kind has usually been secured is the 
 University, viewed not as a means of disseminating, but of 
 advancing knowledge ; and the office by which this is effected 
 is the Professoriate. 
 
 It is impossible to imagine any error more fatal to the life 
 of the State, and, as such, more discreditable to a statesman, 
 than the error of regarding the University as a mere teaching 
 institution — except, indeed, the error of regarding it as a mere 
 examining board, and making no provision for the acquisition 
 of the knowledge which it is to measure. The life of the com- 
 munity, like the life of the individual — nay, like life itself — 
 exhibits but the two phenomena of progress and retrogression. 
 Stationary existence is the antithesis of existence altogether, 
 as we know it. A state, then, which, whilst disseminating and 
 testing, makes no provision for advancing knowledge, accepts 
 
496 OF THE SECONDARY SOURCES 
 
 — not permanence, not even continuous prosperity — but retro- 
 gression ; the loss first of spiritual and then of physical life, 
 for the spirit is the salt that keeps the body from rotting. 
 Now the University is the State in the attitude of a seeker 
 after truth, of an aspirant to new and higher life, of a claimant 
 for more reason and more power ; and the organ in virtue of 
 which the University seeks to gratify these aspirations of the 
 State, as I have said, is the Professoriate. 
 
 The theological faculty of the University, acting by means 
 of the professoriate as an organ of scientific investigation, 
 stands to the Church precisely in the same relation in which 
 the legal faculty, and indeed all the secular departments of 
 the University stand to the State. It is the organ by which 
 the Church seeks the truth. The recognition of dogma, which 
 we have indicated as inseparable from the Church as a teach- 
 ing institution, here becomes altogether out of place. The 
 function of an academical faculty of theology, 1 like that of 
 all the other academical faculties, when seen on their scientific 
 side, is simply to discover the truth ; and thus the faculty of 
 theology differs from the other faculties, not in its object, but 
 in the means which it employs. 
 
 Of the dependence of the life both of Church and State on 
 the vigour and activity of a scientific professoriate, the exist- 
 ing condition of the two leading nations of continental Europe 
 furnishes striking examples. 
 
 During the last half-century, the progress, both absolute 
 and relative, of the States of North Germany has been pro- 
 
 1 As to the function of an academical faculty of theology, see Preface to 
 Kant's Theory of Religion, pp. 7, 8 ; Semple's trans. 
 
OP POSITIVE LAW. 497 
 
 digious. First their intellectual and then their material 
 supremacy has been reluctantly acknowledged; and the 
 centre of power has been shifted from Paris to Berlin. 
 And simultaneously with this accession of life, the activity 
 and vigour of the German professoriate has been beyond all 
 parallel, not only in any other country, but in any other 
 period of history. In Italy, in Switzerland, and even in 
 Spain, it has rendered, and I believe is rendering, important 
 services to progress ; and the same, I hope, may be said of 
 Scotland. But in no country in the world was such an army 
 eVer equipped and sent forth for the simple conquest of truth 
 as in modern Germany, and in no country have such victories 
 ever been gained over error, or has knowledge been so speedily 
 converted into power. In France, on the other hand, after the 
 ancient Universities had been swept into the vortex of cen- 
 tralization, and the State had become a vast examining board, 
 the Faculties, once the nurseries of science, degenerated into 
 mere cramming schools, and the scientific professoriate ceased 
 to exist, — the very name of the office becoming synonymous 
 with schoolmaster. The new system has been in operation for 
 sixty-eight years, — a longer period of probation than has been 
 accorded to any other institution of modern France. And now 
 we find that it is to its degrading and enervating influences 
 that the most clear-sighted of French politicians unite in 
 ascribing the moral, intellectual, and, ultimately, the material 
 decadence of their country. " The success of Germany," cries 
 Claire Deville, "is due to the liberal organization of the 
 German Universities. It is science that has vanquished ' us.'' 
 In farther illustration of this very important subject I shall 
 
 2 I 
 
498 OP THE SECONDARY SOURCES 
 
 quote two or three sentences from a lecture " On Teaching 
 Universities and Examining Boards," delivered in 1872 by 
 Dr Lyon Playfair — himself a high authority— to the Philo- 
 sophical Institution of Edinburgh. 
 
 " Eecent events," he says, 1 " have strengthened the convic- 
 tion which De Tocqueville expressed twenty years ago, that 
 there is a continually increasing poverty of eminent men in 
 France. I will cite the evidence only of men of the highest 
 eminence, members of the Institute, or professors in the Uni- 
 versity itself. Their opinions may be taken as answers to the 
 question which forms the title of Pasteur's pamphlet : ' Pour- 
 quoi la France n'a pas trouve" d'hommes superieurs au moment 
 du peril ? ' That is a grave question for France, and its best 
 sons are trying to answer it ; but it is melancholy to see the 
 assaults that they are obliged to make on a University which, 
 in its days of independence, used to be hailed as the ' fountain 
 of knowledge,' the ' tree of life,' and the ' candlestick of the 
 Lord' — terms which were accorded by the enthusiastic ad- 
 miration of all countries. First, let Pasteur, whose eminence 
 I need not advert to in an academic assembly, answer for 
 himself. ' While Germany was multiplying its Universities, 
 and establishing among them a most salutary emulation ; 
 while it was surrounding their masters and doctors with 
 honour and consideration ; while it was creating vast labora- 
 tories furnished with the best instruments, France, enervated 
 by revolutions, always occupied with sterile aims at a better 
 form of government, gave only a heedless attention to its 
 establishments of higher education. The unanimity is sur- 
 
 1 P. 8 el seq. 
 
OF POSITIVE LAW. 499 
 
 prising with which eminent men ascribe the intellectual 
 paralysis of the nation to the centralization of administration 
 and examination by the University of France." x Dr Playfair 
 then cites the passage from Claire Deville quoted above, and 
 thus proceeds : " Dumas, one of those eminent men in France, 
 formerly a minister, and for years actively engaged as one of 
 the eight inspectors of superior instruction in the University, 
 gives his testimony as follows : ' If the causes of our maras- 
 mus appear complex and manifold, they are still reducible to 
 one principle — administrative centralization — which, applied 
 to the University, has enervated superior instruction.' He 
 proceeds to show that municipalities and provinces lose all 
 interest in their colleges and schools when these are deprived 
 of their powers of self-government ; and when their instruction 
 and their examinations are regulated from the centre ; and he 
 contrasts the French system with that of other countries." 
 " Dumas then indicates what is necessary for the restoration 
 ' of France to her position among nations — ' Eestore to our 
 Universities under the surveillance of the State, when con- 
 nected with State grants, the independence which they enjoyed 
 before the Eevolution. The great men of those times are 
 glorious historical witnesses of the vigour of the studies and 
 of the discipline effected by the liberty of education enjoyed 
 by our fathers. ... I plead for the autonomy and liberty 
 of our Universities.' Quatrefages, General Morin, and others, 
 
 1 Mr Gladstone is said to have originated the proposal for an inquiry as to the 
 expediency of founding a new "National University for Scotland" (21 & 22 
 Vict. c. 83, sec. 15, § 10) ; but the Commissioners reported against such a 
 measure, and Mr Gladstone is believed to have since expressed himself in favour 
 of the maintenance of the existing Universities. 
 
500 OF THE SECONDARY SOURCES 
 
 express themselves in nearly similar terms: Lorain, Professor 
 in the Faculty of Medicine, gives testimony, if possible, still 
 more emphatic. . . . He tells us that a central university 
 professing to direct everything, really directs nothing, but 
 trammels all efforts in the provinces. ' Originality in the 
 provinces is destroyed by this unity.' " 
 
 "After quoting the opinions of the Commissioners of 1870, 
 as to the want of unity of degrees in France notwithstanding 
 the unity of examination, he sums up the demands of reformers 
 in the following words : ' What we demand is not new ; it 
 is simply the return to the ancient system — to the tradition 
 of the ancient Universities. We demand the destruction of 
 the University of France, and the creation of separate Uni- 
 versities. That is our programme.' " 
 
 " I have hitherto quoted the opinions of men of science, but 
 I might add to them those of a long list of politicians and 
 men of literature, from Talleyrand, Turgot, De Tocqueville, 
 Prevost-Paradol, down to the present day; but to economize 
 time I must content myself with two more quotations. In 
 a letter to myself, Michel Chevalier, after stating that the 
 liberalization of the University frequently engaged the atten- 
 tion of the Senate during the last Empire, sums up his opin- 
 ion of the necessary reforms as follows : ' Much more of 
 autonomy in our Faculties than they have at present, even 
 for those which are supported by the State ; a large vote for 
 their maintenance in the budget ; liberty for individuals and 
 associations to found rival faculties ; reservation to the State 
 under equitable guarantees of the right of granting degrees, 
 as long as there are degrees.' And, finally, to quote a dis- 
 
OP POSITIVE LAW. 501 
 
 tinguished clerical opinion (I give the words of Eenan) : ' The 
 system of examinations and competitions, on the great scale, 
 is illustrated in China, where it has produced a general and 
 incurable senility. In France we have already gone far in 
 the same direction, and that is not one of the least causes of 
 our abasement. The paltry Faculties created by the first 
 Empire in no way replace the great and beautiful system of 
 rival Universities, with their separate autonomies — a system 
 which all Europe borrowed from France, and which all 
 countries but France have preserved. We must create in the 
 provinces five or six Universities, each independent of the 
 other.' " Would that, in the moments of tranquillity which they 
 at present enjoy, Frenchmen would remember the cries for 
 intellectual guidance which they thus uttered in their agony, 
 only eight years ago ! 
 
 One of the greatest political evils resulting from the absence 
 of a secular learned class in France, has been that the priest 
 and the demagogue have come face to face, and that popular 
 reason has by no means been advanced by their altercations. 
 " Hitherto," says M. Eenan, " France has known but two poles 
 — Catholicism and democracy. Oscillating unceasingly be- 
 tween the one and the other, she is never at rest. In order 
 to do penance for her demagogic excesses, France abandons 
 herself to the narrowest Catholicism ; and in order to react 
 against her narrow Catholicism, she throws herself into the 
 arms of a false democracy. She ought to do penance for both 
 of them at once." 1 
 
 The dispassionate character engendered by a life of con- 
 
 1 La Miforme, p. 107. 
 
502 OF THE SECONDARY SOURCES 
 
 templation is peculiarly favourable for the observation and 
 appreciation of social phenomena, and the discovery of the 
 natural laws by which the State is ultimately governed. The 
 professor may thus be actively helpful to the practical poli- 
 tician in determining the objects which legislation must have 
 in view. But the experience of Germany reminds us that the 
 political action of the learned class, as such, must be indirect. 
 Direct legislation does not belong to those who, as a rule, 
 dwell much apart ; and hence the failure of the " Frankfort 
 Parliament of Professors," in 1848. Its members were not 
 sufficiently acquainted with the concrete elements in the 
 problems presented to them. 
 
 The external requirements of an efficient professoriate, in 
 so far as the community can secure them, seem to be these — 
 
 (a) Careful selection of its members. This raises, at once, 
 the difficult and as yet unsolved question of the best form of 
 patronage — the only clear point being that the selection can- 
 not be by examination, the requisite qualities being of a kind 
 that cannot be thus tested. Probably the " Testimonial" system, 
 with all its objections, combined with the patronage either 
 of the Crown, or of a jury in which impartiality is more 
 important than knowledge, is all that can be made of it, as 
 the professoriate exists in this country. To a certain extent 
 the examination test might be used as a starting-point, were 
 we to adopt the German system of a graduated professoriate, 
 commencing with the Privatdocent, passing on to the extra- 
 ordinary, and lastly, to the ordinary professor. And it is by 
 the adoption of this system alone, as it seems to me, that we 
 can hope ever to attain to the formation of a learned class. 
 
OF POSITIVE LAW. 503 
 
 What keeps learning down with us is the want of a career, 
 upon which a man may enter in early life, with the reasonable 
 hope of attaining to a comfortable position in middle age. 1 
 The ultimate stages in this career, however, cannot be tested 
 by examination, for the simple reason that the examinee by 
 that time is, ex hypothesi, a representative of scientific views 
 beyond those with which the examiners could be credited. 
 
 (b) Leisure (o-xoA.^) combined with public teaching, to the 
 extent of bringing and keeping its members in contact with 
 the best minds of the rising generation. 
 
 (c) Such dignity and independence of position as to protect 
 its members from impertinent intrusion or popular dictation. 2 
 
 (d) Such publicity as to expose them to criticism. 
 
 (e) Such competence of, external means as to free the 
 electors from the necessity of choosing those who are other- 
 wise provided for, and those who are chosen from the temp- 
 tation of accepting other literary, scientific, or professional 
 occupations merely for the sake of remuneration ; to enable 
 them to associate on easy terms with the representatives of 
 their respective departments in other schools of learning, at 
 home and abroad; and lastly, to diminish the temptation, 
 always great, to seclude themselves from the general society 
 of the places in which they reside. 
 
 (/) Such moderation, of external means, and modesty of 
 
 1 I often wish our munificent benefactors would keep this consideration in 
 view. No facilities they can offer at the starting-post, in the shape of bursaries, 
 scholarships, fellowships, and the like, will tempt "canny" Scotchmen to run 
 a race that promises nothing at the goal but starvation, or celibacy, or both. 
 
 2 As a remarkable example of this evil may be mentioned the dependent 
 relation in which the Professor of Political Economy in the University of Edin- 
 burgh stands to the Merchant Company. 
 
504 OF THE SECONDARY SOURCES 
 
 position, as to take away the inducement, and free them from 
 the duty, of taking a prominent part either in general society 
 or in public life. 
 
 I venture on these remarks in the hope that the knowledge 
 of the subject, which I cannot fail to possess, may counter- 
 balance the prejudices which I very possibly entertain. 
 
 III. The means by which the community ascertains its 
 rational will. 
 
 In this momentous problem of the science of positive law, 
 it can scarcely be said that we have, as yet, got beyond the 
 region of negative results. Our analysis of the rational will 
 of the community, as the primary source of positive law, has 
 shown us : 1st; That, inasmuch as that will resides, to a 
 greater or less extent, in every sane member of a civilized 
 community, it cannot be ascertained except by an appeal to 
 them all. 2d, That, inasmuch as that will does not reside 
 in each member of the community in an equal degree, it can- 
 not be ascertained by an appeal to them all as equals. 
 
 The first of these propositions negatives the principle of 
 exclusiveness, on which despotic and oligarchic theories of 
 legislation are founded ; the second negatives the principle of 
 equality, on which democratic theories of legislation are founded. 
 We have thus two danger-signals — beacons placed by nature 
 herself on the opposing rocks between which our course must 
 lie. But they afford little indication of the manner in which 
 we must steer through the shifting currents of irrationality 
 and passion by which so many individual states have been 
 swept along to destruction, and civilization itself has so often 
 seemed in danger. Mainly, of course, the problem belongs to 
 
OF POSITIVE LAW. 505 
 
 the objects of positive law, depends on circumstances of time 
 and place, and does not admit of any permanent or general 
 solution. But let us try whether, by looking into the phe- 
 nomena which all society presents, we may not, from the 
 side of nature, succeed in fixing, if not another lighthouse, at 
 least another permanent buoy. 
 
 (a) The amount of organization requisite for the ascertain- 
 ment of the rational will is in an inverse ratio to the amount 
 of direct personal contact with each other, on the 'part of the 
 individuals whose rational will is to be ascertained. 
 
 Where individuals are brought into direct personal contact, 
 their qualities necessarily assert themselves. The stronger im- 
 pose their laws on the weaker ; and as strength and reason ulti- 
 mately "coincide, the wise and virtuous prevail over the foolish 
 and the wicked. "A fair field and no favour" is all that Eeason 
 demands to make her voice heard, and continuous personal con- 
 tact will supply that field. Now, in the family, in a profes- 
 sion, or in a community so small as to resemble these, such 
 contact is inevitable ; and the amount of rational will which 
 they contain will, in general, be ascertained and vindicated 
 without any organization beyond that which contact supplies. 
 In the smaller of the Swiss cantons, 1 for example, the per- 
 sonal character and weight of every individual is known and 
 felt by every other, and little artificial classification is re- 
 quisite to give the community the benefit of the wisdom of 
 its wisest. 2 The same, in no small measure, was the case in 
 
 1 Even Algernon Sydney, Republican though he was, preferred Constitutional 
 Monarchy in all except very small states. 
 
 2 See a very interesting and able report on the political and industrial condi- 
 tion of Switzerland by Mr Gould. — Farther Reports from II.M.'s Diplomatic and 
 
506 OF THE SECONDARY SOURCES 
 
 the small states of Greece, and even in Eome in the earlier 
 days of .the Eepublic; though the legislators of antiquity wisely 
 supplemented this advantage by a constitutional graduation 
 of ranks. In colonies, during the earlier and ruder stages 
 of their existence, the necessity for artificial classification is 
 limited by additional considerations : 1st, The circumstances 
 of the case being such as to render equality of condition 
 and intelligence very much more of a reality than in old 
 countries, there is less to classify, and the supremacy of 
 reason will, consequently, be less endangered by the absence 
 of classification ; and, 2d, Families and individuals are there 
 so widely separated as to render them in a great measure 
 independent of each other — they can neither aid nor injure 
 each other to the same extent, — and the miscarriage of com- 
 munal reason, even should it occur, becomes a matter of com- 
 parative indifference. There is a vast difference between 
 being separated from a "free and independent" neighbour 
 by a couple of bricks and a range of mountains. In the 
 latter case, the problem of ascertaining the rational will of 
 the community has scarcely arisen, because the community 
 itself has scarcely been formed. But as its formation pro- 
 gresses, the problem of the ascertainment of its rational will 
 increases at once in importance and in complexity, and the 
 law which I have enunciated comes into operation. The 
 natural agents of direct personal contact and individual 
 rivalry, by which its solution in small and simple commun- 
 ities is spontaneously effected, gradually disappear, and the 
 necessity for artificial organization emerges. 
 
 Consular Agents abroad, on the Condition of the Industrial Classes, &c, in 
 Foreign Countries, 1871, p. 669. 
 
OF POSITIVE LAW. .507 
 
 But is not the effect of progress the very reverse of what 
 we have represented it ? Does it not tend to equalize in- 
 dividuals — thus limiting the sphere of exceptional reason; 
 and does it not promote rivalry — thus supplying the spon- 
 taneous means of its ascertainment ? Both I know to be 
 prevalent ; but both, I think,, are erroneous impressions. 
 
 As to the first, there is a single consideration, which, apart 
 from all others, is, to my mind, decisive. 
 
 Almost every form of natural disparity may be summed 
 up in the disparity of power which men exhibit of availing 
 themselves of experience, — subjective and objective. It is 
 out of this disparity, on a great scale, that the distinction 
 between the historical and non-historical — the civilized and 
 the uncivilized races of mankind — has arisen ; it is to this 
 disparity, on a smaller scale, that the distinction between 
 educated and uneducated classes and individuals is traceable. 
 Again, the difference between a cultivated and an unculti- 
 vated community consists mainly in the fact that the former, 
 beyond the latter, offers to the individual the opportunity 
 of developing this power by exercise, and availing himself of 
 its consequences. Surely it is obvious, then, that the com- 
 munity which offers the greatest opportunities will carry the 
 fortunate possessors of exceptional power farthest ahead of 
 those to whom such exceptional power has been denied — 
 in other words, that education, if carried beyond the merest 
 elements of knowledge, will increase rather than diminish 
 natural disparities and their consequences. Of the reality of 
 this fact civilized states exhibit ample proofs within their 
 own borders. Mental gifts certainly, and probably even 
 physical gifts of nature, tell more amongst the educated than 
 
5°8 OF THE SECONDARY SOURCES 
 
 the uneducated classes. The difference between the fortunes 
 of a clever ploughman and a stupid ploughman is measured 
 by two or three pounds of wages ; but the difference between a 
 clever farmer and a stupid farmer is that between wealth and 
 bankruptcy, and between a clever and a stupid barrister that 
 between penury and a peerage. As occupations rise in diffi- 
 culty, this principle makes itself more and more felt ; and the 
 object of the examination system, the latest device of civiliza- 
 tion, is to give it full play. In doing so, however, examina- 
 tions, if successfully carried out, which they can be only in a 
 very modified sense, would only anticipate the verdict of time, 
 and prevent inevitable failure in after-life ; because success in 
 most of the careers to which they are applied is impossible 
 except to the able both in mind and body. Though the 
 organs called into exercise are not the same, there can, I 
 imagine, be no question that the continued strain through 
 life, even on the physical power of a barrister, 1 is far greater 
 than on those of a blacksmith. Literature is more trying 
 work than even law, as is seen by the higher proportion of 
 men who break down under it; and politics, worthily pur- 
 sued, probably is the hardest of all. Eousseau's assertion that 
 civilization is the cause of inequality was one of the most 
 egregious, and has been one of the most pestilent, of his 
 errors. But that civilization brings out the consequences of 
 inequality, as of every other fact of nature, I conceive to be 
 quite unquestionable. 
 
 But civilization — progress — not only increases differences : 
 
 1 The old age to which men live on the bench, and in other dignified social 
 positions, is often remarked. It would not seem so remarkable if men would 
 take into account the amount of bodily strength and health which is requisite to 
 get there. 
 
OP POSITIVE LAW. 509 
 
 it causes separation, and limits contact. In a rude and 
 primitive condition there is out one occupation — that, viz., 
 of procuring the necessaries of existence. In this occupation, 
 consequently, all men must engage ; all thus come into 
 competition, and their recognition of each other's capabilities 
 is immediate and spontaneous. But civilization confers 
 leisure, and specializes labour; and in so doing it confines 
 competition within narrower limits. Moreover, as occupations 
 rise in difficulty and importance, those who discharge them 
 diminish in number, and mark themselves off more sharply 
 from the community at large. Of the truth of this statement 
 we have a striking proof in the very small number of can- 
 didates for higher as compared with lower appointments. 
 As the community advances, it thus loses, more and more, 
 the spontaneous guidance of its most gifted and cultivated 
 members. The " silent class," of which I have already 
 spoken, 1 increases both in numbers and in importance. Their 
 retirement into special and, to a certain extent, exclusive 
 circles is no fault of theirs, or of the community from which 
 they separate themselves. It is an inevitable, and, as such, 
 a legitimate result ; nay, as we have seen already, it is the 
 condition of progress. 2 But its occurrence proves that, if 
 such persons are to be called into general activity at all, it 
 must be in relation, not to the community as a whole, but to 
 the classes in which they have ranged themselves. It is in 
 and through the class alone that the individual can be 
 measured and utilized. " Individuals," as Savigny has said, 
 " must be understood to constitute the State, not as such, but 
 in their constitutional divisions." Even supposing excep- 
 1 Ante, p. 480. 2 Ante, p. 506. 
 
510 OF THE SECONDARY SOURCES 
 
 tional individuals to quit the position which the natural 
 organization of advanced society has assigned to them, and 
 for political purposes to take their place in the ranks, the 
 community would be thereby not only robbed of the special 
 services which they would otherwise have rendered it, hut 
 misled in its calculation of the amount of reason which it 
 contained. An army would form a very inaccurate concep- 
 tion of its force which counted its officers as common sol- 
 diers, and would give very great proof of its folly if it 
 insisted on their acting as such. And yet that is precisely 
 what advanced communities do, when, in endeavouring to 
 ascertain the general will, they count all wills as equal, or 
 in endeavouring to consult the general interest, they assign 
 equal duties to all men. 
 
 (b) For purposes of practical legislation it will, in general, 
 be necessary that all citizens included in each political class or 
 category, be dealt with as contributing an equal amount of 
 rational will. 
 
 Inasmuch as no two human beings ever were wholly alike, 
 ideal justice knows nothing of classification. " God sees each 
 human being different from every other, and His thought and 
 acting towards them are righteous, because He has respect to 
 this difference." 1 The adoption of the principle of classifica- 
 tion, then, is a confession of the necessary imperfection of all 
 human government ; for the equality which is thus declared 
 for political purposes to exist between the individual mem- 
 bers of each class, is by no means a perfect equality in point 
 of fact. All that can be said for the justice that classification 
 
 1 The Spiritual Order, i-c. , by T. Erskine of Linlathen, p. 235. 
 
OF POSITIVE LAW. 511 
 
 does, is that it is preferable to the injustice ■which it prevents. 
 It is never, therefore, to be resorted to as good in itself, or 
 maintained beyond the point of necessity. A well-governed 
 family may be regarded as the model of a well -governed 
 state ; and the prudens paterfamilias does not classify his 
 children, but, in direct imitation of the Heavenly Father, 
 measures out to each his individual rights and responsibilities. 
 That even he does more perfect justice by the latter method 
 than the best government can ever hope to do by the former, 
 is unquestionable. 
 
 But the method which is founded on the appreciation of 
 individual merits, is applicable, in human hands, only to a 
 very limited community. It could scarcely be applied to two 
 families, and its inapplicability to the government of a school 
 is notorious and confessed. As a rule, then, this method is 
 applicable only where the governing power really knows, and 
 can actually appreciate, every single member of the com- 
 munity which it governs. Now a state of any considerable 
 size is not, and cannot be, thus omniscient within its own 
 borders — a large community cannot measure itself with this 
 degree of accuracy. The defence for the principle of classifi- 
 cation, then, is not that a government founded upon it attains, 
 but that it approximates to a recognition of the individual 
 qualities of the governed more nearly than one that rejects it ; 
 for the latter form of government, however honest may be its 
 intentions, is forced by its ignorance of individual qualities to 
 treat all men as if they were alike, and thus violates their 
 rights to a greater extent than a government which treats 
 some men as if they were alike by classifying them in accord- 
 
512 OF THE SECONDARY SOURCES 
 
 ance with characteristics by which, though they do not exhaust 
 their differences, each class is really distinguished from the rest 
 of the community. 1 Suppose, by way of illustration, that all 
 students of law were classed together, and equal privileges 
 and burdens were assigned to them, some degree of injustice 
 would be done to many — perhaps to most of the individual 
 students — for it would be only in rare and exceptional cases 
 that the real importance of the individual would correspond 
 exactly to that which was assigned to the class. But a 
 smaller amount of injustice would be done to them than if 
 their privileges had been declared to be the same with those 
 of chimney-sweeps, and their fiscal liabilities the same as 
 those of merchant princes, or leading seniors at the bar. If 
 a cry could be raised for a poll-tax in place of an income-tax, 
 the advantages of classification would soon become as apparent 
 to those at the bottom, as they are now to those at the top, of 
 the social ladder. 
 
 It may seem that, as the most perfect form of government, 
 viewed as a mechanism for ascertaining the rational will, 
 would admittedly be one which took cognizance of the quali- 
 ties of individuals directly, we shall approximate more or less 
 closely to such a government as we diminish the classes of 
 which it professes to take cognizance in extent, and multiply 
 them in number; for the nearest approach to dealing with 
 
 1 It is scarcely possible to conceive more contradictory claims than those of the 
 extreme Liberal party for entire individual independence on the one hand, and 
 absolute individual equality on the other. If all men are to be independent 
 individuals, and each to rest on his own merits solely, even' class equality must 
 be abandoned : if all are to be equal, there can be no individual independence 
 at all, because all must be swept into one class. 
 
OF POSITIVE LAW. 513 
 
 the individual himself, is to deal with a very small number of 
 individuals whose personal characteristics and external circum- 
 stances precisely, or very closely, resemble his. It is on this 
 ground that Sir James Mackintosh has remarked, with great 
 truth, that " of the two faults " of excess or defect of simplicity, 
 " the excess of simplicity would certainly be the greatest ; for 
 laws more complex than are necessary would only produce 
 embarrassment, whereas laws more simple than the affairs 
 which they regulate would occasion a defect of justice." 1 
 
 But there is a practical limit to perfectibility in this direc- 
 tion, for it is obvious that classification might very easily be 
 so extended that we should lose the benefit of it altogether. 
 A very extended and complicated classification comes to be 
 no classification at all. The necessity for simplification, then, 
 which led to the admission of the principle of classification at 
 first, limits its application in this direction. How far it ought 
 to be carried is a question which every community must deter- 
 mine for itself, and the true answer to which, even in the 
 same community, will vary with circumstances. All that can 
 be said abstractly will, I think, be embraced in the following 
 proposition. 
 
 (c) The classification which exists for economical and social 
 purposes, for the time oeing, affords the measure of that which is 
 requisite for legislative purposes. 
 
 The truth of this proposition rests on the declaratory char- 
 acter which we have seen to belong to jurisprudence' as a 
 whole. To positive law the facts of society, for the time 
 being, bear the same relation that the permanent facts of 
 
 1 Discourse, p. 51. 
 2 K 
 
514 OF THE SECONDARY SOURCES 
 
 nature bear to natural law. With reference to both, the 
 object of legislation is to recognize and vindicate, not to over- 
 turn and reconstruct. And this is, above all, true of the 
 electoral machinery, by means of which the community 
 measures its rational will. Its function is to reflect the 
 nation in the legislative mirror, not as wiser or fooBsher, 
 better or worse, than it is, but simply as it is ; and this it 
 can do only by recognizing the stage of complexity which it 
 has really attained for the time being. To constitutional 
 law, more especially, is that other saying of Sir James Mack- 
 intosh applicable : " Laws ought to be neither more simple 
 nor more complex than the state of society which they govern, 
 but ought exactly to correspond to it." 1 
 
 (d) The electoral system. 
 
 The very difficult and important questions which, for every 
 advanced community, must arise out of the adjustment of its 
 electoral system, depending for their solution on the circum- 
 stances of each particular ease, do not fall within the range of 
 the present work. All that remains constant is the fact that, 
 if the rational will of any community is to be measured with 
 sufficient accuracy to enable it to be autonomous, and as such 
 autarchous, this must be effected by taking cognizance of the 
 differences of individual reason, natural and acquired — for in 
 politics these correspond to the different measures of weight 
 and capacity in arithmetic — and that this can be done only 
 by means of constitutional arrangements which will grow in 
 complexity as the society advances in civilization. In the 
 absence of such constitutional safeguards, there will always 
 
 1 Ut sup., p. 415. 
 
OP POSITIVE LAW. 515 
 
 be danger of the indirect action of social forces, not necessarily 
 under the guidance of reason — mere wealth on the one hand, 
 or mere numbers on the other. The devotees of pleasure and 
 the slaves of fashion at the top of the social ladder are as 
 shallow and as liable to be imposed on as the victims of 
 ignorance and penury at the bottom of it; and the history 
 of advanced communities could furnish many examples of 
 impostors who have not hesitated to take advantage of the 
 frailties of both classes, separately and in conjunction. It is 
 in these two classes that party-spirit runs riot, that the war- 
 fever is most readily kindled, and that fanaticism and mate- 
 rialism — blind faith and still blinder infidelity — are in per- 
 petual conflict. The classes that come in contact with the 
 realities and responsibilities of existence, and that neither 
 waste nor want, neither scoff nor cant, are those which we 
 must seek to lure from their social hiding-places into the 
 political arena. 
 
 IV. The means by which the community declares its rational 
 will. 
 
 The rational will of the community may be declared either 
 expressly, by legislation, or tacitly, by consuetude. 
 
 (a) Legislation. — Legislation may be effected either directly 
 or indirectly. The former takes place when the autonomous 
 community speaks in its own person ; the latter when it speaks 
 through its representatives. 
 
 The comparative advantages of the one system or the other 
 are dependent entirely on the practical question, — which of 
 the two, in the special circumstances of the case, will give the 
 most perfect expression to the rational will ? That, in great 
 
516 OF THE SECONDARY SOURCES 
 
 communities, direct legislation is shut out by practical con- 
 siderations is obvious. 
 
 (b) Consuetude. — Custom is the earliest form of legislation, 
 and a form in which it may be quite as widely and perma- 
 nently efficacious as in any other — witness the Consolato 
 del Mare, the Eolles of Oleron, and the other maritime 
 codes of the middle ages; and indeed the whole system 
 of international law, both public and private, in so far as 
 it does not rest upon treaty or convention. 1 But it would 
 be an error to suppose that custom ceases to act when, or 
 where, direct legislation comes into play. On the contrary, 
 custom, as the expression of will which has been of some 
 permanence, and on that account may be assumed to be 
 rational, precedes, or ought to precede, every special enact- 
 ment, just as it preceded enactments in general ; and it modi- 
 fies and repeals enactments and treaties to as great an extent 
 as it dictates them. It is in this indirect action, indeed, on 
 positive law, that consuetude assumes a legislative character 
 in advanced communities, and between separate states. 2 
 
 V. The means by which the rational vnll of the community 
 is applied to the special case may be either spontaneous or by 
 jurisdiction. 
 
 When the will of an autonomous community is unambig- 
 uously declared, either by legislation or by consuetude, it is 
 
 1 See Freeman's Growth of the English Constitution, p. 105, &c. , where he 
 shows that our constitutional arrangements for the conduct of business in Parlia- 
 ment, and the like, rest mostly on unwritten law. 
 
 2 In opposition to the English view, it has always been held that the ancient 
 statute law of Scotland may be repealed by desuetude (Stair, B. 1. tit. 1. 25, 
 note a, Brodie's ed. ; Ersk. 1. tit. 1. 45, notes 12, 13, Ivory's ed.) 
 
OF POSITIVE LAW. 517 
 
 scarcely disputed except by lunatics and criminals, and in 
 their cases it is enforced. But numerous cases occur in which 
 it is not unambiguous, and these are met by jurisdiction. 
 The relation between jurisdiction and legislation has been al- 
 ready explained. 1 As the means of ascertaining the general 
 will is the least advanced, that of applying it is, in organized 
 communities, the most advanced department of positive law. 
 
 VI. The means by which the community enforces its rational 
 will. 
 
 The community can govern itself only as an organism; and the 
 more highly it is organized, the better will it enforce its own laws. 
 
 The same principles which apply to the formation, the 
 development, the ascertainment, and the expression of the 
 rational will, apply to its enforcement. The community can 
 be self-governing only on the same condition on which it 
 is self-legislating — viz., its acceptance of the organic struc- 
 ture which springs from the natural disparities of individual 
 power and wisdom. A state which proclaims an artificial 
 equality of citizens loosens the bonds of obedience, enfeebles 
 the voice of command, and turns its arms against its own 
 life. It reduces its character, in short, from that of an army 
 to that of a mob, — and how incapable of self-control the 
 best of mobs are is a matter of common observation. Even 
 as regards external defence, where there can be no separa- 
 tion of interests, the recent example of France and Germany- 
 ought to convince the most incredulous of the impotence of 
 Chaos to struggle with Kosmos. Should Eussia come into 
 conflict either with Germany or England, the same phenome- 
 
 1 Ante, p. 277 et seq. 
 
518 ON THE SECONDARY SOURCES 
 
 non will probably be exhibited, in consequence of the absence 
 or the impotence of the cultivated middle class. So closely, 
 indeed, are the legislative and executive functions bound up 
 together, that I believe there is no historical exception to the 
 rule that the State which makes the best laws administers 
 them best ; and that every State ceases to be autarchous just 
 in proportion as it ceases to be autonomous. 
 
 Of the Army. — The question of the relative advantages 
 of citizen and standing armies is one which depends on 
 special circumstances, and does not, therefore, admit of any 
 general solution. This, however, may be said absolutely, that 
 a citizen army will be trustworthy only where the social 
 organization is very high, and where the national character is 
 constitutionally dispassionate. It is plain, moreover, that if 
 it is to execute the law, it can do so only on condition of its 
 being entirely guided by, and mainly composed of, those who 
 recognize it as their interest to obey the law. Order can be 
 enforced only by those by whom it is accepted ; and it is vain to 
 hope that anarchical armies will protect order against anarchy, 
 either in democratic or despotic states. On the other hand, 
 however, it must not be forgotten that there is no better 
 school of citizen discipline than the ranks of a disciplined 
 army ; and that, in states in which the national temperament 
 warrants the experiment, ochlocratic evils may perhaps be 
 mitigated by a judicious application of a means by which 
 they cannot be suppressed. With this view it is obvi- 
 ous that the first requisite of citizen armies is that the 
 educated classes should accept the burden of serving, not 
 as officers only, but as privates. The spectacle of obedience 
 
OF POSITIVE LAW. 519 
 
 voluntarily rendered 'by their social superiors, combined with 
 the necessity of rendering it themselves, will impress on the 
 lower orders the first lessons of citizenship far more deeply 
 than the discipline of the best mercenary army ; and yet we 
 have few anarchists amongst our own soldiers or sailors. In 
 countries in which there is great disparity of wealth, it is by 
 personal services as soldiers and politicians, on terms that 
 are almost gratuitous, that a hereditary aristocracy can best 
 justify its position ; and the favour with which our great 
 landowners and capitalists continue to be regarded, is no 
 doubt owing to the exceptional zeal and efficiency with which 
 these services are rendered by them in this country. 
 
 The Police. — The police is the branch of the Executive 
 through which an organized State maintains internal order ; 
 and there seems no reason why its officers shoixld not be 
 regarded with the same consideration, and enjoy the same 
 self-respect, as those of the department by means of which 
 the State acts, when disorganized by rebellion, or when brought 
 in contact with external force. I consequently rejoice at the 
 tendency which the aristocratic class has recently exhibited 
 to charge itself with the duties of the police as well as of the 
 army. The police acts on a class that is beyond the reach 
 either of the clergyman or of the schoolmaster ; and the effi- 
 ciency of the magistrate is wholly dependent on the efficiency 
 of the police. The certainty of conviction is of more im- 
 portance with a view to the prevention of crime than the 
 severity of punishment ; and inasmuch as a syllogism which 
 has no major premiss can have no conclusion, there can be 
 no conviction till there has been detection. The detection of 
 
520 OF THE SECONDARY SOURCES OP POSITIVE LAW. 
 
 crime, moreover, calls for an amount of resource and ingenuity 
 that confers on it the character of an intellectual calling 
 and almost raises it to the level of a fine art. It consequently 
 offers a worthier, more useful, and, as it appears to me, a more 
 interesting field for the display of ingenuity and subtlety, than 
 either playing whist at the clubs or making books on the 
 race-course ; and the same gifts which insure success in the 
 one class of pursuits, would be very likely to insure it in the 
 other. An expert thief, too, is cunninger than any fox, and 
 the pursuit of him might thus furnish, in some respects, no 
 inadequate substitute for the chase. I have no belief in the 
 superiority of scoundrels over gentlemen, even in cunning ; 
 and their inferiority in strength and courage to sporting 
 squires need not be doubted. There are few kinds of crime 
 that could not be prevented if honest, intelligent, and brave 
 men would take the trouble to prevent them. 
 
 Public Prosecution of Grime. — The Eomans classed criminal 
 law with the jus publicum ; and a State can scarcely be said 
 to be self-governing which leaves the prosecution of crime in 
 the hands of its private citizens. The very imperfect char- 
 acter of the system of public prosecution recently introduced 
 into England, 1 when contrasted with that which Scotland and 
 the Continental countries which followed the Eoman law 2 have 
 enjoyed for centuries, is a conspicuous example of the many 
 evils which have resulted from the separation of the jurispru- 
 dence of England from that of the rest of the civilized world. 
 
 1 42 & 43 Vict, c. 22. 
 
 2 Such information as we possess on the subject of public prosecution among 
 the Romans will be found in the 4th edition of Lord Mackenzie's Studies in 
 Soman Law, and in Mr Kirkpatrick's notes to pp. 386, 388, 392, &c. 
 
BOOK IV. 
 
 OF THE OBJECTS OP POSITIVE LAW 
 
CHAPTEE I. 
 
 OF THE ULTIMATE AND PEOXIMATE OBJECTS OF POSITIVE LAW. 
 
 rFHE ultimate object of positive law is identical with the 
 proximate object of natural law — viz., liberty. 
 But liberty being realizable only by means of order, order 
 is the proximate object of positive law. 
 
 CHAPTEE II. 
 
 OF THE PEIMAEY AND SECONDARY OBJECTS OF POSITIVE LAW. 
 
 (a) Primary. — Order, as we have just seen, is the proxi- 
 mate, or immediate object of positive law-; — the object in 
 virtue of which it is distinguished from, and subordinated to, 
 natural law, just as natural, law was distinguished from, and 
 subordinated to, ethics, in virtue of its narrower or proximate 
 object — viz., liberty — when contrasted with the wider object of 
 ethics — viz., human perfection. But on turning from natural 
 law in its relation to ethics, and regarding it in itself, we found 
 that it sought the realization of its object, not directly, but by 
 
524 OF THE OBJECTS OF POSITIVE LAW. 
 
 means which became to it, as it were, a secondary object, and 
 that this means was order. 
 
 Now, in like manner, when we contemplate positive law no 
 longer in its .relations to natural law, but as a separate subject, 
 having a special object of its own, we find that it seeks this 
 object not directly, but by means, which means thus become 
 its secondary object, or objects. 
 
 (h) Secondary. N 
 
 The secondary objects of positive law are the specific rules 
 for the realisation of order in the various relations in which 
 human beings stand to each other in a particular community, 
 or in which states stand to each other in the community of 
 nations at a given time. The question which we have now 
 to consider is, whether, or to what extent, these rules, though 
 specific in their object, are general or universal in their action, 
 and admit of exhaustive and permanent definition. 
 
 My readers are no doubt aware that, in working out 
 systems of natural law, it has been usual to attempt to 
 determine the general rules which nature, or expediency, is 
 supposed to point out for the guidance of legislation, with 
 reference to the various relations in which human beings 
 necessarily stand to each other, whether as members of the 
 family, the State, or what has been called the federal union of 
 civilized nations. The cultivation of natural law in this positive 
 direction, proceeds on the assumption that, as there are certain 
 fixed principles of action which nature and reason indicate, so 
 there are certain fixed, or necessarily recurring, circumstances 
 and relations in which mankind will always be called upon to 
 act ; and that, by applying invariable principles to invariable 
 
OF THE OBJECTS OP POSITIVE LAW. 525 
 
 conditions, a body of invariable rules applicable to the life of 
 the family and of society, both within and without the State, 
 may be evolved. Hooker said truly, that " although no laws 
 but positive are mutable, yet all are not mutable which are 
 positive ; " and in all the older writers, and in many of the 
 moderns, we accordingly find what is called " a special part 
 of natural law," in which is included the natural law of 
 marriage, guardianship, succession, contracts, sale, and the 
 like. Wolff's system, which Warnkbnig has characterized 
 as ingens universi juris naturalis corpus} extended to nine 
 vols, quarto ; and we all know what a ponderous mass of 
 ponderous matter Puffendorf accumulated. Now I am far 
 from denying the truth of the assumption that there are in- 
 variable social relations, and to a limited extent other external 
 circumstances, which are very little affected by changes of time 
 and place ; nor do I call in question the soundness of the rules 
 which, on this assumption, have been evolved by many indus- 
 trious, and by some gifted men. The relations of the family, 
 to a very great extent, are fixed points. The idea of property, 
 inseparable from the consciousness of subjective existence, 
 involves proprietary relations ; and from property result rights 
 of gift, sale, and succession testate and intestate. Human 
 intercourse can be carried on, and the necessities of mutual 
 aid can be satisfied, only by means of mutual obligations, 
 which involve multifarious relations dependent on good faith. 
 It is possible, in all these cases, by a study of comparative 
 jurisprudence, and a careful application of the process of 
 abstraction, to separate the necessary and invariable condi- 
 
 1 Delineatio, p. 22. 
 
526 OF THE OBJECTS OF POSITIVE LAW. 
 
 tions of all society, or rather the general conditions of his- 
 torical society, from the accidental and variable conditions of 
 a particular society, and to resolve the questions arising out 
 of the former in accordance with the principles of natural 
 law, apart from the latter. It is possible, by bringing our 
 normal humanity face to face with these invariable conditions, 
 to discover the general line of conduct which nature indicates ; 
 and thus a body of universal and unchangeable positive law, 
 applicable to human society in so far as its conditions are 
 universal and unchangeable, may be built up. But though 
 I do not question the possibility of such a work, or its scien- 
 tific legitimacy, I do exceedingly question its value, whether 
 for practical or speculative purposes, when applied to positive 
 law as a whole. And I do so for this reason : In so far as 
 the relations thus evolved are invariable, they mtost recur in 
 every branch of positive law. If they are the relations of the 
 family, or of the citizens of the State to each other, they will 
 recur in every municipal system. If they are the relations of 
 the citizen to the sovereign power, they will recur in every 
 system of public law, properly so called. If they are the 
 relations of State to State, they will recur in international 
 law. In each of these cases, then, we shall have an oppor- 
 tunity of studying them in their proper places, sometimes as 
 jurists in the narrower sense of that term, sometimes as 
 politicians, and sometimes as political economists. It is 
 impossible that we should fail to encounter them, because 
 ex hypothesi, their recurrence is inevitable. 
 
 Nor can I see any advantage which their study, when 
 isolated, presents over their study in connection with con- 
 
OP THE OBJECTS OP POSITIVE LAW. 527 
 
 ditions ■which may he accidental — that is to say, which may 
 be confined to one or more states, and one or more periods 
 of history or stages of development. The co- existence of 
 accidental and ephemeral with necessary and permanent re- 
 lations in real life is inevitable, because there must always 
 be peculiarities belonging to every country, to every race, 
 and to every stage of development. A system of positive 
 law, then, which applied the principles of natural law only 
 to the relations of human life which are invariable, could 
 scarcely admit of any direct application to human affairs. 
 It would be an ideal, the vagueness of which rendered it 
 necessarily unrealizable. And as a guide to legislation for 
 any actual living people, its utility would be very limited, 
 even supposing it to be the result of a sufficiently wide 
 induction to entitle it to the universal character to which 
 it laid claim. Such a supposition, moreover, can scarcely 
 be entertained. The construction of a system of the kind 
 in question, though not, as I have said, a theoretical absurd- 
 ity, I hold to be pretty nearly a practical impossibility. Is 
 it not one of the first lessons which history teaches, that 
 what is confidently believed to be necessary by one genera- 
 tion, the experience of the next shows to be accidental ? 
 There are certain relations, as I have said, to which this 
 remark does not apply. But even these admittedly per- 
 manent relations are modified, in the forms which they 
 assume, by the accidental conditions which accompany them, 
 and which consequently determine the character of the 
 positive laws by which they are governed. Children must 
 be born helpless; and their support and education lie, in 
 
528 OF THE OBJECTS OF POSITIVE LAW. 
 
 the first instance, at the door of those who bring them into 
 the world. To this general rule of conduct, the general rule 
 that we should follow nature, and the promptings of that 
 natural affection which the Greeks called oropyij, taken along 
 with the invariable circumstances of birth and helplessness, 
 no doubt guide us. But a general rule of this kind does 
 little more, practically, than to refer us back to the neces- 
 sities and instincts of our nature ; and a knowledge of cir- 
 cumstances which are not invariable is requisite to help us 
 to any rule of a more special kind. The kind of nourish- 
 ment or education to be given, the length of time either is 
 to be continued, whether and to what extent the duties of 
 education and protection on the one hand, and obedience and 
 docility on the other, ought to be enforced — all the details, 
 in short, of the relation — can be learned only when the 
 special circumstances of country, climate, stage of civiliza- 
 tion, age, social rank of the parties, and other so - called 
 accidents are considered. If these are not taken into ac- 
 count, natural law will be violated by the very provisions 
 which were devised for carrying it out. Accordingly we 
 find that, whenever it has been attempted to develop a 
 specific system of natural law, it has invariably run into 
 the municipal law of some particular country, or has bor- 
 rowed accidental provisions from the municipal laws of several 
 countries. If the writer was a Dutch civilian, his system 
 was worked out in accordance with the legal definitions of the 
 municipal systems of Holland and of Eome — a separation of 
 the accidental from the necessary being scarcely even at- 
 tempted. If he was an Englishman, the influence of the very 
 
OF THE OBJECTS OF POSITIVE LAW. 529 
 
 special conditions of English life, and the very peculiar insular 
 system of positive law which had grown out of these conditions, 
 was largely perceptible. In place of being a system universally 
 applicable to mankind in all times and places, we had, in 
 either case, a system for which the most that could be said 
 was that, if it had. gone still more into detail, it might have 
 been applicable, for the time being, to Holland or to England. 
 It would have been an English or a Dutch code, but it could 
 never have been an universal code. 
 
 These considerations explain to us, I think, in no small 
 degree, the disrepute into which the study of natural law 
 ultimately fell, and may serve as a warning against the 
 repetition of attempts which, even in able hands, were so 
 barren of results. I entirely agree with Dugald Stewart 
 when he says that "an abstract code of laws is a thing 
 equally unphilosophical in design and useless in execution." 1 
 Whether the principles on which such systems profess to be 
 constructed were adhered to or violated, the failure was 
 almost equally inevitable. If they were adhered to — if no 
 relations were considered except those which really were 
 universal, and these were taken apart from the specialities 
 which always accompany them in real life, nothing was 
 produced except a string of the commonplaces of municipal 
 law, so obvious as to render their repetition tedious and un- 
 profitable in the last degree. If, on the other hand, they 
 were departed from, and the inquiry carried out into speci- 
 alities which might give it some value for a particular society 
 at a particular time, then a positive error was committed, for 
 
 » Collected Works, vol. i. p. 187. 
 2 L 
 
530 OF THE OBJECTS OF POSITIVE LAW. 
 
 relations which were peculiar and accidental were, represented 
 as universal and permanent ; and there was no small danger 
 of the rules really applicable to one set of circumstances being 
 thus imported' into another to which they had no proper 
 application. A limited ideal, in place of being a guide to 
 truth, thus became a lure to error. 
 
 Influenced by these considerations, when I treated of the 
 objects of natural law, I contented myself, for the most part, 
 with presenting them in their widest generality, without 
 reference, otherwise than for purposes of illustration, to the 
 special relations in which they seek their realization. In all 
 the relations in which human beings can be placed, liberty, 
 and order as the condition of liberty, are the objects which 
 nature assigns to the science of jurisprudence, and these ob- 
 jects she seeks as much and as constantly when the. condi- 
 tions which she offers are the most ephemeral and accidental, 
 as when they are the most permanent and inevitable. This 
 latter consideration, more especially, seems to me to furnish a 
 practical reason of a very cogent kind, when we pass to the 
 objects of positive law, for dealing with each department in 
 its integrity, and refraining from any attempt to separate 
 its provisions which are permanent from those which are 
 variable. What is called the special part of natural law, is 
 likewise the general part of positive law. The two subjects 
 are not only intimately related — they are identical ; as may 
 be seen by comparing the first sentences of the chapters of 
 any municipal treatise in which the general maxims relating 
 to such subjects as marriage, guardianship, contracts, and the 
 like, are set forth, with the chapters on the same subjects in 
 
OP THE OBJECTS OF POSITIVE LAW. 531 
 
 such works as those of Puffendorf or Eutherford, or even in 
 the works of such modern writers as Ahrens, Eoder, or Tren- 
 delenburg. Now the practical effect of exhibiting the rules 
 which govern the general and permanent relations of human- 
 ity as a portion of the system of natural law, whilst the rules 
 which govern the special and transitory relations of humanity 
 are not exhibited in any direct connection with natural law at 
 all, is to lead to the inference that these latter relations are 
 governed either by no principles whatever, or by other prin- 
 ciples than, those of natural law. And such is the inference 
 which is actually drawn by the vast majority of practical 
 lawyers. 1 The general and unchangeable relations of human 
 society, they say, are governed by the principles of natural 
 law ; the special aud variable relations of society are governed 
 by the principles of utility. But utility, as I have shown, 2 
 has no principles of its own apart from the principles of na- 
 ture. Either it is an organ for the discovery of nature's laws, 
 in which case it takes its place as one of the secondary 
 sources of natural law ; or else it is merely another name for 
 the indications afforded by reason and experience, as to the 
 special means best calculated, in special circumstances, to 
 attain the objects of jurisprudence, in which case it takes its 
 place amongst the sources of positive law. Now the rdle 
 which reason and experience play is the same in principle, 
 whether the rules which they suggest have reference to rela- 
 tions and conditions which are permanent, or to those which 
 
 1 And not by lawyers only, but by philosophers, as may be seen from Ganz's 
 preface to Hegel's Philosophy of History, Bonn's translation, p. xiv. 
 
 2 Ante, p. 48 et seq. 
 
532 OF THE OBJECTS OF POSITIVE LAW. 
 
 are transitory. The object of the special rules is the very 
 same as the object of the general rules — namely, to give 
 free scope to the normal impulses of our nature, under the 
 conditions in which it is brought in contact with the actual 
 world. 
 
 I think I can illustrate this by a very simple example. 
 The object of the law of marriage is the gratification of those 
 impulses, physical, moral, intellectual, and religious, which 
 lead to the cohabitation of persons of opposite sexes. Now, 
 for the attainment of this object, expediency — that is to say, 
 reason and experience — prescribe certain rules which are 
 general, because they are applicable to circumstances which 
 are permanent and universal ; and other rules, which are 
 special, because they are applicable to circumstances which 
 are transitory, and very frequently local. As examples of 
 the general rules, I may mention those which prescribe that 
 the matrimonial contract shall be entered into only by persons 
 capable of consent — a rule common to all contracts ; only 
 between persons who have attained to the age of puberty ; 
 only between one male and one female at the same time ; 
 which limits it to persons not related to each other within 
 certain degrees, and the like. The special rules are those 
 which define the patrimonial relations of the parties ; their 
 respective obligations to the offspring of the marriage ; which 
 prescribe the modes of celebration — that is to say, the manner 
 in which the existence of the contract may be proved in ac- 
 cordance with the social arrangements of the country where 
 it is alleged to have been entered into ; &c. To the latter 
 class of rules obviously belong those which prevail amongst 
 
OF THE OBJECTS OF POSITIVE LAW. 5 S3 
 
 ourselves, to the effect that " habit and repute," " promise, 
 sub. cop." &c, prove marriage, whereas in England they are 
 held to prove concubinage ; and quite rightly, perhaps, in 
 both countries, because the meaning of a fact not unfre- 
 quently depends on, and consequently varies with, the cus- 
 toms of different countries. Now the first class of rules is 
 often incapable of receiving any definite interpretation with- 
 out the aid of the second. The age of puberty, for example, 
 varies according to climate ; and a very absurd anomaly 
 exists in our own law, from a rule specially adapted to the 
 circumstances of southern climates having been regarded 
 as a rule general to mankind. Intermarriage of cousins, 
 again, might very properly be forbidden, either permanently 
 or for a time, in a community which suffered specially from 
 any form of hereditary disease : goitre and cretinism, scrofula, 
 consumption, &c. ; whereas in communities free from these 
 specialities, it may be better left to the judgment of individ- 
 uals and families. Even where rules are not dependent on 
 physical peculiarities resulting from climate, or the like, it is 
 often difficult to say whether the rules which are in reality 
 of the most general application are altogether independent of 
 the circumstances in which they generally come into opera- 
 tion. The rule which forbids polygamy is a rule of this 
 class. Though not its only, one of its chief reasons unques- 
 tionably is the equality of the sexes in point of numbers. 
 Now, it is possible to imagine circumstances in which, for a 
 time, that reason should fail altogether. Would the other 
 reasons in favour of this prohibition still exclude opposite 
 reasons against it which might possibly arise ? Suppose one 
 
534 OF THE OBJECTS OF POSITIVE LAW. 
 
 man and twenty women of full age, one of whom, who was 
 his wife, was known to he barren, cast on an island, without 
 hope of ever being restored to society — quid juris ? Would 
 the original command, to " be fruitful and multiply and replen- 
 ish the earth," modify the prohibition of polygamy, or justify 
 divorce ? 
 
 Now, if what we have been in the habit of regarding not 
 only as general, but as universal rules, may lose their hold on 
 nature when, by a change of conditions, they cease to minister 
 to her objects ; and if, & converso, rules which are exceptional 
 at the highest, and when adopted generally, would violate her 
 behests, are entitled to claim her temporary sanction the 
 moment it can be shown that they really vindicate her objects, 
 is it not obvious that the establishment of any permanent line 
 of demarcation between these two classes of rules is a futile 
 effort ; and that if, whilst we connect the general rules of 
 positive law with the principles of natural law, we separate 
 the special rules of positive law from these principles, we tend 
 to confirm the popular error by which the latter' are held not 
 only to be variable, but arbitrary ? So greatly do I deprecate 
 a result which, by relinquishing the necessary character, would 
 destroy the sanctity of positive law, that I should regard- the 
 possibility of its occurrence, apart from all risk of speculative 
 errors, as a sufficient ground for adhering to the bipartite 
 division of the science of jurisprudence which we adopted in 
 the outset, and maintaining, in its integrity, the distinction 
 between natural and positive law. 
 
 But it may seem that a third choice remains. Why, it 
 may be said, should we not have a complete positive system 
 
OF THE OBJECTS OP POSITIVE LAW. 535 
 
 of natural law, in the sense of a system which continuously 
 takes cognizance of the special as well as the general rela- 
 tions of humanity, and this, not inadvertently, or from imper- 
 fection of execution, but consciously and expressly? Now, 
 this idea — which seems to have been that which Puffendorf 
 attempted to realize — resolves itself obviously into a proposal 
 for perpetual and universal codification. Such a system, 
 embracing, as it must do, public and private law, both 
 municipal and international, even if satisfactorily executed 
 for humanity for the time being, would be like the catalogue 
 of a library to which not only were new books being added, 
 but from which old books were being dismissed. It would 
 stand to a permanent science of jurisprudence, absolutely con- 
 sidered, in about the same relation in which the catalogue of 
 a bookseller's shop, where a rapid sale was going on, might be 
 supposed to bear to the literature of the past, the present, and 
 the future. Even with reference to a particular time — if we 
 except the law of nations, which has no local limits — it would 
 be requisite, in order to secure the universality of such a sys- 
 tem, that it should be a collection of all the positive laws 
 existing in the world, — a work, the irrationality and inutility 
 of which render the impossibility of its performance a subject 
 of rejoicing. 
 
 In so far as such a work could have any uses at all, they 
 are attained by a branch of study much cultivated abroad 
 under the name of comparative legislation, — a study which 
 has been chiefly carried out in the directions of criminal and 
 mercantile law, but which admits of general application. 
 
 If a general science of applied natural law is to be. at- 
 
536 OF THE OBJECTS OP POSITIVE LAW. 
 
 tempted, then, there is no alternative but to draw the best 
 line we can between relations and conditions of human life 
 which are universal and permanent, and those which are local 
 and transitory. It is not a course, as I have said, which we 
 are bound to reject on absolute grounds, similar to those which 
 forbid us to cut natural law through the middle by dividing 
 rights and obligations into perfect and imperfect ; but the 
 practical reasons which I have stated appear to me sufficient 
 to warrant us in breaking with the tradition by which it has 
 been sanctioned. As I presented the objects of natural law 
 — the ultimate objects of jurisprudence as a special science 
 — without reference to the different character of the relations 
 in which these objects are realized, so, in enumerating the 
 objects of positive law — the proximate objects of juris- 
 prudence — I shall abstain, in this work, from attempting to 
 select any of them as more closely connected with natural 
 law than the others. General and special, permanent and 
 transitory, universal and local, I regard them as all, and all 
 equally, seeking to give free scope to the normal impulses 
 of humanity, within the spheres which they respectively 
 embrace. Within each of these spheres it is for the practical 
 legislator to bring his system, as nearly as possible, up to the 
 character of a concrete realization of natural law ; and it is 
 for the scientific jurist who labours within the same sphere 
 to indicate to him how this may best be effected. But, if 
 anything serious is to be accomplished, there must be division 
 of labour ; the rule must be quisquis in mam artem ; and 
 such slender contributions as I may be in a condition to offer 
 must be reserved for the subject of international law. 
 
OF THE OBJECTS OF POSITIVE LAW. 537 
 
 The objects of positive law may be classified with reference 
 either to the spheres within which they seek their realization, 
 or to the forms in which they are manifested. 
 
 From the former point of view two schemes of division 
 have been proposed, either of which is capable of being- 
 rendered exhaustive. 
 
 I. The first is the Eoman division — which still prevails 
 generally in Europe — into public law and private law. As 
 the Eomans had formed no distinct conception of law without 
 the State as a separate branch of science, these two divisions 
 had reference to national law alone. Public law (jus publi- 
 cum) was, quod ad statum rei Romance spectat. Private law 
 (jus privatum) was, quod ad singulorum titilitatem, pertinet. 
 
 Adhering to the principle of this scheme, and embracing 
 under it the modern subject of international law, we should 
 have — 
 
 (1.) Public law within the State, the Staatsrecht of the 
 Germans, — what we often loosely and inaccurately call con- 
 stitutional law. 
 
 The object of public law, in this sense, is to regulate the 
 relations of the State to the citizen, and of the citizen to the 
 State, political, personal, and economical. 
 
 (a) The first and most important branch of public law 
 within the State, is that which has for its object to measure 
 the autonomous power of the community, by ascertaining its 
 rational will. It is this branch which determines the form of 
 government, — which fixes the political relation in which the 
 Various classes of citizens shall stand to the whole organism 
 —that is, to the State and to each other. Under this branch 
 
538 OF THE OBJECTS OF POSITIVE LAW. 
 
 fall also the relations of the different members of a federal 
 government to the central power, and to each other — except 
 in cases in which these relations are so loose as to entitle the 
 various states to be regarded as independent communities, — 
 and the relations of dependencies and colonies to the dominant 
 State, or to the mother-country. 
 
 (6) The second branch of public law within the State, is 
 that which regulates the individual relations of the citizens to' 
 the State. Under it fall the regulation of the public service, 
 criminal law, poor-law, the government of the imbecile and 
 insane, the rules of litigation, and ecclesiastical law. 
 
 (c) The third branch of public law within the State fixes 
 and apportions taxation and other pecuniary burdens, general 
 and local. 
 
 (2.) Public law without the State, or the jus inter gentes. 
 
 (a) Normal and stationary relations of states to each other. 
 
 (6) Abnormal and transitory relations of states to each 
 other. 
 
 (3.) Private law within the State, or municipal law- 1 — i.e., 
 the relations of the citizen to the citizen. 
 
 (a) The domestic relations, or relations of life in the family, 
 as exhibited by marriage, guardianship, &c, generally included 
 under the law of status. 
 
 (b) The social relations, or relations of life in society, as 
 exhibited in sale, partnership, letting and hiring, &c, generally 
 included under the law of contract. 
 
 (4.) Private law without the State, or private international 
 law — i. e., the relations of the citizens of different states to each 
 other. ,The object of this branch is to determine the occasions 
 
OP THE OBJECTS OF POSITIVE LAW. 539 
 
 on which justice requires that the municipal law of one State 
 should be recognized by the municipal law of another. 
 
 II. The second scheme, which is more consistent with 
 modern forms of thought, divides positive law into national 
 and international ; and these again into public and private, 
 thus : — 
 
 1st, (a) National public law ; and — 
 
 (5) National private law. 
 
 2d, (a) International public law ; and — 
 
 (6) International private law. 
 
 III. In addition to this classification of the various branches 
 of positive law, arising from the domains which they severally 
 embrace, there is another, derived from the various forms in 
 which the rational will — the source of all positive law — ex- 
 presses itself. Seen from this point of view,positive law is — 
 
 (a) Common, or consuetudinary law (Jus non scriptum). 
 (6) Statute law (jus scriptum). 
 
 (c) Codified law. 
 
 (d) Treaty law. 
 
 (e) The received, or politically orthodox, interpretation of 
 revealed law. 
 
540 CONCLUSION. 
 
 CHAPTER III. 
 
 CONCLUSION. 
 
 Of the reconciliation which the system of positive law, logically 
 resulting from the 'principles of jurisprudence as determined hy 
 nature, tends to establish between the progressive and conservative 
 schools of European politics. 
 
 Knowing how widely I differ from revolutionary politicians 
 in the results at which they arrive, both in this country and 
 abroad, it may possibly seem surprising that I should not 
 have differed from them more decidedly in the objects which 
 they profess to seek, and that I should have permitted our 
 discussions to lead us into the train of thought which gave 
 rise to that historical watchword of disorder — ZiberU, igaliU, 
 fraterniU ! The coincidence, however, has neither been in- 
 voluntary nor insensible on my part ; for, far from wishing to 
 stigmatize this much-abused and justly-dreaded formula as 
 necessarily the war-cry of anarchy, and, as such, the justifi- 
 cation of despotism, I am ready to accept it, when urged in 
 accordance with nature's teaching, as the symbol of order and 
 progress. It is for this reason that I have not only assented 
 to the doctrines which it" inculcates severally, to the fullest 
 extent of their possible realization, but that I venture, in con- 
 clusion, to recognize them in their ominous conjunction. 
 
 Liberty, we have seen, is the special object of our science ; 
 and inasmuch as the highest manifestations of liberty, so far 
 
CONCLUSION. 541 
 
 from conflicting with, involve and necessitate the highest 
 manifestations of order, it is in the capacity of an apostle of 
 order, and as coming, so to speak, from the opposite camp, 
 that I have avowed myself a claimant for the maximum of 
 liberty. " La politique radicale," says M. Jules Simon, 
 " aspire a la pleine et entiere possession de la liberte. 1 Had 
 M. Jules Simon been en pleine et entiere possession de la science, 
 he might, with equal confidence, as it seems to me, have 
 ascribed the same aspiration to the opposite school, in so far 
 as that school has any aspiration at all beyond the realization 
 of order for order's sake, and the impossible retention of the 
 status quo. In so far as liberty is concerned, then, I am a 
 radical as uncompromising as M. Jules Simon himself. 
 
 But liberty not only implies and necessitates, but abso- 
 lutely identifies itself with equality in the only sense in 
 which equality is anything else than a longing for the im- 
 possible, begotten of a sinful and ignoble " envying and griev- 
 ing at. the good of our neighbours." Here, then, is the second 
 aspiration of " the Eevolution " which, without being a revolu- 
 tionist, I have adopted, in what I believe I have demonstrated 
 to be the only sense in which it is not at once a folly and a 
 crime. 
 
 Third and lastly, as regards fraternity. In repudiating the 
 distinction between perfect and imperfect obligations, in as- 
 serting the identity in principle between justice and charity, 
 and in proclaiming the entire reciprocity of rights and duties, 
 I have recognized fraternity to the fullest extent to which it 
 does not conflict with the other two principles of liberty and 
 1 La Politique Radicale, p. 6. 
 
542 CONCLUSION. 
 
 equality — i.e., in which its realization is not forbidden by its 
 encroachment either on subjective or objective rights, — in 
 which it would not be unjust even if it were not unreal. In 
 identifying the principle of fraternity with that of guardian- 
 ship, I have vindicated more specifically its relation to order, 
 and restored their just importance to the long-forgotten duties 
 of paternal authority and filial obedience. The principle of 
 fraternity in this its wider and loftier conception — the ergan- 
 zende Gemeinschaft of the Germans, the societatis wppetitus of 
 the older writers — is the instrument of progress in which all 
 our hopes must centre. Its proclamation was the secret of 
 the marvellous success of Stoicism in Greece and Eome, and 
 of Buddhism in the East ; and though I am persuaded that at 
 no period of history or stage of development was it, or any 
 other fundamental law of human co-existence, wholly absent 
 from human consciousness, I entirely concur with an eloquent 
 writer of our own day in regarding its fuller recognition as 
 the characteristic peculiarity of the Christian, as opposed to 
 the heathen conception of the human relations. 1 To recog- 
 nize our dependence pn, and our obligations to, our fellow- 
 beings, is indeed only another form of recognizing our depend- 
 ence on God, and acknowledging the vanity and impiety of 
 that spirit of self-sufficiency which we have indicated as the 
 most prominent blot on heathen ethics. 
 
 Any separate discussion of the principle of fraternity, 
 similar to that which we devoted to equality, would have been 
 wholly superfluous in a work of which, from first to last, it 
 has thus been the key-note; and one of the express objects 
 
 1 Ecce Homo, pp. 175, 179. 
 
CONCLUSION. 543' 
 
 of which has heen to vindicate the pretensions of the positive 
 or active, as opposed to those of the negative or passive school 
 of jurisprudence. If guardianship (Vormundschqft), in its 
 widest sense — embracing, that is to say, every expedient by 
 which human beings, either by acting or abstaining from 
 action, by commanding or obeying, by leading or following, by 
 teaching or learning, can aid each other, whether in their indi- 
 vidual or corporate capacity, in attaining the objects for which 
 life was given them — be, as is maintained by the writers whose 
 views in this respect I have adopted, the whole end and 
 object of positive law, then positive law in all its branches, 
 in all the manifestations of order or of liberty which it calls 
 forth, is neither more nor less than a realization of the prin- 
 ciple of fraternity. 
 
 So entirely, indeed, does each of the three principles in 
 question involve the other two, that a system of jurisprudence 
 which adopted fraternity or equality for its object — if logi- 
 cally deduced from the facts of nature — would arrive at re- 
 sults wholly identical with fhose of a system which set liberty 
 before it as its goal. 
 
 Then as to the practical means, the legislative mechanism, 
 by which these great objects may be attained. It does not 
 belong to abstract science to investigate the positive provi- 
 sions, either for the internal organization of separate states, 
 or for their external organization as a family of nations ; and 
 I have, consequently, declined to enter on partial discussions 
 of these and the other objects of positive law. But as a 
 principle of nature, and, as such, common to legislation as a 
 whole, I have, in what will be regarded as the liberal direc- 
 
544 CONCLUSION. 
 
 tion, 1 recognised — not on grounds of expediency, but on the 
 ground of right — the inalienable sovereignty of the rational 
 will ; whilst, with a view to the ascertainment of that will 
 and its enforcement when ascertained, without expressing a 
 preference for any one of the forms of legislation or govern- 
 ment by which these objects can be shown to be attainable, 
 I have not hesitated to repudiate democracy when based on 
 absolute equality, as . the negation of government altogether, 
 and as a form of existence in which it is impossible that the 
 rational will of any community should be either ascertained 
 or acted on. 
 
 Like many other words, democracy is a word to which 
 several meanings have been attached, and I regret to observe 
 the loose and indefinite manner in which it is beginning to be 
 used by our own newspapers. It is a dangerous word, which 
 no prudent or cautious politician ought to employ without 
 qualification ; for in the only sense in which it does not iden- 
 tify itself with, or at any rate constitute an element in, 2 some 
 of the other, or rather, I ought to say, some of the possible, 
 forms of government, it may — to parody Hegel's celebrated 
 definition of law — be defined as " the reign of absolute equal- 
 ity realized." It is in this sense that it hovers before the 
 
 1 If politics should ever become a science, one of the greatest benefits will be 
 that we shall get rid of party politics. Party politics are often defended as a 
 necessity ; but it is instructive to remark that it is only the politics of the party 
 to which the politician belongs that he regards, as necessary. The politics of the 
 opposite party are always made a subject of reproach to it ; its leaders are con- 
 demned as "party men," and their measures as " party measures ; " and very 
 justly, for the most part, from the exaggerations which they exhibit. The only 
 rational and honest " opposition" would be one which conviction might happen 
 to raise against each measure in turn, by whomsoever proposed. 
 
 2 Freeman's Growth of the English Constitution, p. 10 et seq. 
 
« CONCLUSION. 545 
 
 imaginations of its Continental worshippers, and in this sense 
 I have not hesitated to declare its realization to be forbidden 
 by nature, and excluded from the objects of jurisprudence. 
 Implying, in this sense, as we have seen, an entire reversal 
 of natural law, democracy identifies itself with that condition 
 of -lawlessness or disorganization, that non-political condition 
 which is known as anarchy ; and we shall approach to it more 
 and more nearly only as the State approaches its dissolu- 
 tion. Democracy, or absolute equality realized, is the anti- 
 thesis of political life — it is political death — and a death, 
 moreover, from which history, so far as I know, tells of no 
 resurrection. 
 
 It is true that, in the State, as in the individual, death does 
 not mean annihilation. To us annihilation is inconceivable. 
 "Whether or not it be possible for the Author of being to bring 
 being to a close, is a question we shall never answer. But 
 that such an occurrence is unthinkable to us, we know experi- 
 mentally ; l and, unless where thought is hedged in by rival 
 impossibilities, and where a dictum of consciousness, in so far 
 as we are concerned, settles the question for practical purposes 
 in favour of one of them (as in the case of free-will), 2 we must 
 accept the limits of thought as the measure of reality. What 
 we cannot think of as possible we must assume to be impos- 
 sible. There is, then, no annihilation. The State, like other 
 entities, both spiritual and material, in its ultimate elements 
 must continue to be. But that it shall continue to be, by no 
 means implies that it shall continue to be, or return to being, 
 as the same combination of the same individual atoms," if 
 
 i Hamilton, Metapli., ii. 405. 2 lb., Appendix, p. 542. 
 
 2 M 
 
546 CONCLUSION. 
 
 atoms there be. Under other conditions of existence, we must 
 believe that the idea of the community, like the idea of each 
 individual member of it, •will ultimately receive that perfect 
 realization which is and ever will be unattainable here. God 
 will leave no idea finally unfulfilled. When we shall be 
 capable of performing perfectly that " service which is perfect 
 freedom," we shall be free, as He whom we serve is free. The 
 perfect relation of separate existences will then be realized ; 
 but the Christian revelation expressly shuts out the hope that 
 equality, in the sense in which fools contend for it on earth, 
 shall exist even in Heaven. 1 Not in time only, but in eternity 
 we must believe that one star will differ from another in 
 glory. 2 But perfection, even in relation, does not belong to 
 this world any more than perfection in the objects related ; 
 and " here," consequently, " we have no continuing city." 3 
 The contimied existence of a state that has been subjected to 
 the solvent of anarchy will be no longer an organic existence. 
 Its elements, like those of our own mortal bodies, alone will 
 remain. The spirit which animated it — its idea or conception 
 of perfection in relation — will form a contribution to the 
 political traditions of humanity. Its body will subsist in the 
 inheritors of its physical life, in the children's children of 
 those who were its citizens, though their blood should be as 
 unrecognizable as the dust of their fathers. The spirit of 
 Phoenicia, for example, lives in the mercantile law and colo- 
 nial system of the modern world. The body of Phoenicia 
 lives in the maritime populations of both sides of the Medi- 
 
 1 Matt. v. 19, xi. 11 ; Luke vii. 28 ; 1 Cor. xv. 41 ; Ephes. i. 21, iii. 10, &c. 
 
 2 1 Cor. xv. 41. 3 Heb. xiii. 14. 
 
CONCLUSION. 547 
 
 terranean, and probably constitutes the most energetic part 
 of them. The spirit of Greece lives in the spiritual life of 
 mankind. What has become of the material life of Greece 
 we scarcely know. But this we know, that Phoenicia, and 
 her daughter Carthage after her, as politicial organisms, are 
 as dead as Hannibal ; that Greece is as dead as Socrates ; and 
 that it is as unlikely that either of them will come to life 
 again as that Hannibal or Socrates will rise from the dead. 
 
 It is true that the induction which seems to warrant our 
 belief in political mortality, though greatly widened by the 
 archaeological and philological researches of our own day, is 
 so much narrower than that on which we assert the mortality 
 of individuals, as scarcely to justify more than a probable con- 
 clusion. But it is equally consistent, so far as it goes ; for, 
 whether or not there be an autochthonous race, there is no 
 more an autochthonous state than there is an autochthonous 
 man. 
 
 Admitting, then, the mortality of the body politic and the 
 impossibility of its resuscitation, and recognizing democracy 
 as we have here denned it, as a violation of the law of its life, 
 and consequently as a process by which, if permitted to act, its 
 dissolution will be inevitably accomplished, the question still 
 remains, Is this process, the action of this political solvent, 
 inevitable ? If the cycle must be accomplished, is this neces- 
 sarily its final stage and its new point of departure ? If the 
 State must die, must it necessarily die prematurely of this 
 terrible disease ? Must it, in the fulness of material well- 
 being and progress, be torn in pieces by such hideous par- 
 oxysms of sin and' suffering? or may not its physical life be 
 
548 CONCLUSION. 
 
 indefinitely prolonged till, like the healthy individual body, it 
 gently and almost imperceptibly gives place to younger and 
 more vigorous organisms through which its spiritual develop- 
 ment is continued ? 
 
 It is at this point that my political creed separates itself 
 from the democratic-fatalism which cast so deep a shadow over 
 the life, and finally clouded the intellect of my dear and gifted 
 friend M. PreVost-Paradol, and which then 1 depressed so many 
 of the best and bravest of his countrymen. That a physician 
 in the midst of an epidemic which sets at defiance the utmost 
 resources of the healing art, should feel as if all men were not 
 only doomed to die, but to die of that particular plague, till at 
 last he comes almost to persuade himself that it is no plague 
 at all, but the natural termination to human life, is a perfectly 
 
 1 With the substitution of the past for the present tense, I gladly retain these 
 concluding sentences as a memento of the sentiments of 1872. Had M. Prevost- 
 Paradol consented to live, the eight or nine years of tranquillity which his much- 
 loved country has since enjoyed, would have renewed his spirit and refreshed his 
 heart. But they have brought, I fear, no adequate constitutional guarantee that 
 the spectre of igaliU may not again stride over the fair fields of France, when the 
 external conditions of her present existence are changed. The process of de- 
 centralisation, to which the more enlightened statesmen of France havo always 
 looked for the indirect action of those moral and intellectual forces which were 
 to counteract the theoretical errors of their political system, has scarcely com- 
 menced. It is generally supposed that the temper of London is less volatile than 
 that of Paris. Yet in the confidence with which London opinion recently asserted 
 itself, in the extent to which it proved to be at variance with the general opinion 
 of this country, and in the facility with which it turned round, we have had a 
 memorable example of the tendency of great and crowded centres of life to give 
 way to exceptional and ephemeral emotions. Mental are as contagious as 
 physical epidemics, and no form of mental epidemic is more contagious than 
 political passion. So long as the political life of France is concentrated in Paris, 
 it is to be feared that periodical outbreaks of Imperialistic and Socialistic fever 
 are inevitable, and that the Franco-German war of 1870 may not be the last 
 occasion on which France will act in haste and repent at leisure. 
 
CONCLUSION. 549 
 
 intelligible state of feeling. And such was very much M. 
 Prevost-Paradol's case. But does it follow that his belief 
 commends itself to other men, or that it would have com- 
 mended itself to him in happier circumstances ? It may be 
 that disease is as inevitable as death, and most diseases in 
 their ultimate form will produce death, but there are very few 
 diseases which, in their earlier stages, are not more or less 
 under human control, and none certainly which a rational 
 being ought, & priori, to accept as his doom. It is true that 
 in accepting democratic-fatalism as his ultimate political creed, 
 M. PreVost-Paradol's patriotism lost nothing of its fiery zeal. 
 To the last he wore himself out in contending against what 
 he regarded as inevitable, in attempting to reconcile what he 
 knew to be irreconcilable. Anarchy or despotism were the 
 horns of his acknowledged dilemma ; and that foreign conquest 
 must be the result of either alternative was a subject on which 
 he cherished no delusions ; for from delusions of all kinds the 
 intense honesty of his nature recoiled with a furious antipathy 
 which I scarcely ever saw in the nature of any other man. 
 And yet his position was essentially a false one; for the 
 honesty with which he accepted his premises shut him out 
 from the foregone conclusion which his patriotism imposed on 
 him, and he worked on a problem confessedly insoluble. " On 
 ne saurait done trop le redire : la Eevolution francaise a fonde" 
 une soci^td, elle cherche encore son gouvernement." 1 These, 
 and such as these, were his words. Now, to seek a govern- 
 ment for a democratic society, on his own showing, was like 
 seeking a doctor for a dead man. If the doctor is to be of 
 1 La France Nouvelle, p. 296. 
 
550 CONCLUSION. 
 
 any use, we must try to keep a spark of life in the man till 
 the doctor comes to him ; and hefore M. Prevost-Paradol went 
 to seek for a government for Prance, he was bound to show in 
 the society of Prance some slumbering embers of reverence, 
 order, and obedience, which had survived the Eevolution, on 
 which a government could be based — to prove, in fact, that, far 
 as she had gone in that fatal direction, France was not yet 
 finally and hopelessly democratic. It is in this respect that 
 M. B^nan, as it seems to me, has become wiser than his friend, 
 and wiser in his later than in his earlier writings, from the 
 terrible teaching of events. 1 
 
 A state may no doubt play with a false political theory, as 
 a man may play with a guillotine. It is a dangerous sport, 
 and one in which I grieve to think that even my own country, 
 with so few safeguards, should have indulged so long. But 
 sport, however objectionable, is one thing, and reality is an- 
 other. So long as a madman's head is on his shoulders, the 
 doctor, with his strait-jacket, may do something, if not to 
 cure him, at least to keep him in life. But once his head is 
 off, it is the gravedigger that must be - sent for ; and the 
 gravedigger, in the guise of the foreign conqueror, will come 
 
 1 " II y a cercle vicieux, " he says, ' ' a rever qu'on peut reformer les erreurs 
 d'une opinion inconvertissable en prenant son seul point d'appuidans l'opinion" 
 (La IM/arme, p. 26) ; and farther on he asks, " Quel est pour la France ce defaut 
 favori, dont il import avant tout qu'elle se corrige ? C'est le gout de la demo- 
 cratie superficielle. La democratic fait notre faiblesse militaire et politique ; 
 elle fait notre ignorance, notre sotte vanity . . . Corrigeons-nous de la demo- 
 cratic" (pp. 64, 65). To M. Renan it had at last become plain that the option 
 for France lies between democracy and life ; but the earlier essays which he 
 republished show that his recognition of this fact came many months after M. 
 Prevost-Paradol's death. 
 
CONCLUSION. 551 
 
 sooner or later to the dead state, and hide, by the imposition of 
 external will, the ghastly process of political decomposition. 
 
 Now, though it may be impossible to reverse the law of 
 political mortality, or to bring states to life again after they 
 are dead, it appears to me that by accepting as fixed points 
 the facts of nature in so far as they are known, those states 
 which still live and breathe through the various organs of 
 the body politic may do much to promote their indefinite 
 longevity. If reason is to have any influence in human 
 affairs at all, the " search for a government," or, taking the 
 matter from our point of view, the gradual development of 
 the government which is rooted in their past, ought not for 
 such states to be a hopeless task. 
 
 For its accomplishment two requisites — the one social and 
 the other political — seem alone to result from our inquiries. 
 
 1 . The social requisite is : The simultaneous abandonment 
 of the claim for exclusiveness on the one hand, and equality on 
 the other ; and the fullest and freest acceptance of the duties 
 of mutual aid in the three directions pointed out by the 
 natural relations of individuals — those, viz., of parents, chil- 
 dren, and brethren. 
 
 2. The political requisite — which, it following on the social 
 one, it would probably not be difficult to attain — is : The 
 discovery, or development, of a self-adjusting representative 
 system, as universal as is consistent with order at the stage 
 of progress which the community has reached as an auton- 
 omous society, and so graduated as to correspond to the sub- 
 stratum of fact in relation to which alone equality can be 
 justly claimed, or permanently asserted. 
 
552 CONCLUSION. 
 
 There is a last consideration on which my rejection of 
 democratic -fatalism, in favour of a belief in the ultimate 
 prevalence of political reason, is founded, and which our 
 unlimited but not undiscriminating acceptance of the three 
 famous doctrines popularly ascribed to the Revolution has 
 enforced, — I mean the fundamental rectitude of human 
 nature. In the persistent advocacy and partial triumph of 
 these doctrines, we have had a memorable confirmation of 
 the fact that the great human heart, even when it goes 
 fatally astray, is not wholly in error. More than ever, in- 
 deed, it has been proved to us that the vulgar intelligence 
 is incapable of distinction, impatient of analysis, one-sided, 
 and prone to exaggeration. More clearly than ever we 
 have seen that the vulgar conscience, groping in the dark 
 without light, " and staggering like a drunken man," 1 is 
 readily led captive by vain hopes and still vainer fears. 
 "Where the political organization of a community unhappily 
 is such that the purifying and moderating influences of its 
 better spirits are excluded or neutralized, its best impulses 
 frequently serve only to mislead it. But its errors, even 
 then, however fatal they may prove to it as a separate state, 2 
 are only distortions of the truth, and of that side of the truth, 
 moreover, which for the time being had fallen out of sight. 
 The maxim, " follow nature," which our earlier investigations 
 seemed to warrant, and which the history of opinion sanc- 
 
 1 Job. xii. 25. 
 
 8 "La France," says M. Renan, "expie aujourd'hui la Revolution; elle en 
 recueillera peut-etre un jour les fruits dans le souvenir reconnaissant des peuples 
 emancipes." — La Miforme, pref. xiii. Would that the prospect may prove as 
 accurate as the retrospect ! 
 
CONCLUSION. 553 
 
 tioned, derives additional confirmation from the fundamental 
 righteousness which, amidst all their aberrations, has charac- 
 terized popular aspirations during the last eighty or a hundred 
 years. Often as she has been betrayed by her apostles, 
 liberty has generally been victorious over despotism, and 
 promises to maintain with anarchy a more than equal fight. 
 The reflection is a consolatory one at all times, and from all 
 points of view, for in it rests our only rational hope, if not of 
 the permanence of individual states, at least of the political 
 progress of humanity. Ultimately nature, whether right or 
 wrong, will certainly prevail, for of her, with far greater truth 
 than Hobbes said of his Leviathan, we may say, non est 
 potestas super terrain quce comparetur ei. But if nature, not 
 uprooted, but purified, potentiated, and explained to herself, 
 be not a trustworthy guide — if the vox populi, in the sense of 
 the whole voice of a whole people organically uttered, be not 
 at bottom also the Vox Dei, then there are but these alterna- 
 tives : either we must take refuge in dualism and content 
 ourselves with the prospect of perpetual war; or else give 
 way to pessimism, in which case the future of God's world, 
 being abandoned to Satan, even war will become a dream. 
 
INDEX. 
 
 Abblard, 168. 
 
 Aberrations, theory of ethical and 
 political, 184. 
 
 Abraham and Moses, 103. 
 
 Abstract conception of Deity, 85 et 
 seq. 
 
 Academic Questions, 147, 148. 
 
 Academics, their relation to the Stoics, 
 147, 148. 
 
 Ackermann, 40. 
 
 Aeollas, Emile, accepts Rousseau's doc- 
 trine of equality, 393. 
 
 Actions, none of them indifferent, 319, 
 320. 
 
 Adam and Eve, social arrangements in 
 their time, 486. 
 
 Adams, Charles Francis, edits his grand- 
 father's works, 392, 393. 
 
 Adams, John, did not hold doctrine of 
 equality, 392. 
 
 'ABid<popa, admission of, in casuistry, 
 288. „ 
 
 Aditi, 96. 
 
 Aggression, natural right of, 414 ; con- 
 demned by de facto principle when 
 self - contradictory, 416; unjust if 
 really destructive of life or liberty 
 on the whole, ib. ; Irish resistance 
 of, irrational, 418 ; right of, how far 
 it justifies force, 419 ; peaceable, be- 
 tween small states, 420. 
 
 Agni, 81 ; = Ignis, 96. 
 
 Anrens, list of works on natural law, 6 ; 
 on Hegel, 28 ; on character of evil, 
 33 ; on theological school, 39 ; writers 
 of theological school, 41 ; on statis- 
 tics, 53 ; criticism of Kant, 298 ; 
 following Krause, rejects distinction 
 between perfect and imperfect obliga- 
 tions, 304 ; his doctrine of equality, 
 393 ; position with reference to equal- 
 ity identical with that of Rousseau, 
 399 ; alive to the evils of democracy, 
 401. 
 
 Ahura-Mazda, 103. 
 
 Alabaster, 65; Wheel of the Law, 115. 
 
 Alcuin, 153. 
 
 Alexander of Hales, 169. 
 
 Alexander's expedition to India, 79. 
 
 Alexandria, Stoicism in, 159 ; Jews of, 
 
 160. 
 Alfred, king, 152. 
 
 Algeria, 69 ; rule of French in, 310. 
 Alsace, 431. See Aggression. 
 Altruism, 44. 
 
 American " Declaration of Independ- 
 ence, "592, 393 ; politics, their errors 
 
 began with presidency of Jefferson, 
 
 487, 488. 
 American Ranters, 166. 
 Analysis and synthesis, 9. SeeAnalytic 
 
 justice. 
 Analysis and synthesis both necessary 
 
 to philosophy, 405. 
 Analytic justice demands absolute 
 
 equality, 405 ; is equality before the 
 
 law, ib. 
 Anarchy, cause of barbarism," 68. See 
 
 Democracy. 
 Anaxagoras, 133. 
 Anaximenes, 132. 
 Animals, rights of, 218. 
 Annihilation, how far implied in Nir- 
 
 wana, 114 ; absolute, unthinkable, 
 
 545. 
 Anselm, St, 90, 168. 
 Anthony, St, 166. 
 Anthropology, 71; oriental, 74; She- 
 
 mitic, ib. ; classical, 126 ; Shemitic 
 
 and Christian, 161. i 
 
 Anthropomorphism, 28. 
 Apathy, 114. 
 Apollo, worship of, 130. 
 Appropriation, 216. 
 Aptitudo and facultas, what, 292. 
 Aquinas. See Thomas. 
 Arabian scholars, 76, 169. 
 Arabs under the Caliphs, 76. 
 
556 
 
 INDEX. 
 
 Arcesilas, 147. 
 
 Argyll, Duke of, 24, 37, 53. 
 
 Arian creed, 83. 
 
 Aristotle, 42, 71, 131; quotes Pro- 
 verbs, 137; not a "judicious utili- 
 tarian," 140, 142 ; an eudaemonist, 
 141 ; on slavery, 156, 157 ; (Econo- 
 mics, 157 ; airapxeia, doctrine of, 
 less prominent in Plato than in 
 Aristotle, 182; does not differ from 
 Socrates in identifying justice and 
 charity, 340, 380 ; theory of justice 
 has fallen into confusion, 403 ; did 
 not confine proportion to public 
 law, 411 ; prefers positive to nega- 
 tive duties, 457. 
 
 Army, the, 518. 
 
 Art of positive law, 9. 
 
 Aryan, or Indo-CJermame races, 77 ; 
 where first found, 79; rationalistic 
 tendency,79, 80; of Greece, ib.; origin- 
 al family, 80 ; their special interest 
 for Englishmen, ib. ; believed in bene- 
 ficence of God, 92 ; Eastern or Indian 
 branch, 94 ; Western Asiatic, 102. 
 
 Asceticism and fanaticism, 128 ; rested 
 on distinction of obligations, 287 ; 
 not in accordance with Christianity, 
 458, 459. 
 
 Assent, general and special, 432. 
 
 Athanasian Creed, 83. 
 
 Augustin, 61, 167, 320; Christianity 
 existed before Christ, 176. 
 
 Austerity no part of Christianity, 458. 
 
 Austin, 281. 
 
 AvrapKeia, 175, 182. 
 
 AvTovo/ila. See Autonomy. 
 
 Autonomy of human nature, 55 ; spec- 
 ulative ground for believing in, 
 59 ; history of opinion regarding, 
 63 et seq.; realization of, hindered 
 by democracy, 173, see equality and 
 centralisation ; human, limitations 
 of, 175, 425. 
 
 Averrhoes, 76. 
 
 Avicenna, 76. 
 
 Azazel, or Satan, not the rival, but the 
 servant of God, 32. 
 
 Bacon, 45 ; gets credit for originality 
 which did not belong him, 170 ; true 
 spirit of his teaching seized by Gro- 
 tius, 171 ; his treatise Be Justitia 
 universali, ib. ; Brewster on, 256. 
 
 Bactra, 103. 
 
 Balch on Calvinism, 379 ; on American 
 Declaration of Independence, 393. 
 
 Ball, John, first preached "freedom and 
 equality, "486. 
 
 Barbarian influences from within, 69, 
 
 267; 
 
 Barbarians, conquest of, justified by 
 principles of positive school, 310. 
 See Savages. 
 
 Barbarism, 68. 
 
 Barbeyrac, undutiful to Grotius, 322. 
 
 Barrister requires more physical power 
 than blacksmith, 508. 
 
 Barthelemy St Hilaire, 64, 111, 117. 
 
 Being and becoming, 27. 
 
 Bellarmine, 165. 
 
 Bench, Scotch, 34. 
 
 Benfey, Prof., questions the theory of 
 the Eastern Aryan home, 79. 
 
 Bentham, 49 ; a hedonist, 141. 
 
 Bequests, objects of, may be changed, 
 271. 
 
 Bible, 161. 
 
 Black skin, 104. 
 
 Blackie, 136, 141, 144, 188. 
 
 Blockade, law of, rests on de facto prin- 
 ciple, 260. 
 
 Boethius, 152. 
 
 Brahma, 82. 
 
 Brahma, Vishnu, and Siva, 102. 
 
 Brahmana, a, what, 110. 
 
 Brahmanas and Upanishads, 84. 
 
 Brewster, Sir David, holds that Bacon 
 was not the discoverer of the induc- 
 tive method, 170. 
 
 Brocher, his criticism of the first ed., 
 330 et seq. 
 
 Brown, Dr Thomas, first rejects dis- 
 tinction between perfect and imper- 
 fect obligations, 301 et seq. 
 
 Buddha's own creed^l07, 110 ; an as- 
 cetic, 112, but seeT.09 ; no leveller, 
 118; protests against exclusiveness, 
 133 ; had the conception of cosmo- 
 politanism, 158. 
 
 Buddhism, 105. 
 
 Buddhists not atheists, 65, 66 ; their 
 creed, 105, 106 ; numbers of, 105, 
 106 et seq. ; Buddhism and Chris- 
 tianity, 112. 
 
 Bunsen on pantheism, 28 ; on Chinese, 
 28, 120 ; his conception of Socrates, 
 36 ; his God in History, 63 ; regards 
 Egyptians as Shemitic, 75, 103 ; on 
 Greek mysteries, 131 ; on Nemesis, 
 137 ; on Reformation, 174. 
 
 Burdens, public, 270. 
 
 Burke, 150, 249 ; holds all law to be 
 declaratory, 256 ; at first favours the 
 Revolution, 297, 487. 
 
 Burnouf, Eugene, 107. 
 
 Butler, Bishop, 150, 188; theory of 
 conscience, 200 et seq. 
 
INDEX. 
 
 557 
 
 Caldeewood, his theory of conscience, 
 186 ; his criticism of Trendelenburg's 
 theory, 198, 284, 292. 
 
 Calvin, 484. 
 
 Calvinism, its influence in promoting 
 democracy, 379 ; led to Mill's scep- 
 ticism, 485. 
 
 Candidates, few, for high appointments, 
 509. 
 
 Canon of limitation of the historical 
 method, 63 ; of application of his- 
 torical method, 66 ; regulative of ap- 
 plication of historical method, ib. 
 
 Capito, 290. 
 
 Carlyle, Revolution, 70. 
 
 Carthaginians, 76. See Phoenicians. 
 
 Castes more exclusive than classes, 118. 
 
 Casuistry dealt with imperfect obliga- 
 tions, 288 ; founded by the Stoics, 
 ib. 
 
 Casus belli, what, 421. 
 
 Causation, necessity of believing in, 
 implies monotheism, 85 et seq. 
 
 Cazenove, 26. 
 
 Celtic race, what, 460 ; never had a 
 free town, 461 ; when pure, incapable 
 of self-government, ib. 
 
 Centralisation, narrowing influences of, 
 illustrated by life in great cities, 181, 
 548 ; in University of France has 
 caused intellectual paralysis, 499. 
 
 Cerberus, 127. 
 
 Chalybaeus rejects distinction between 
 perfect and imperfect obligations, 
 304. 
 
 Chance is mystery, 415. See Fate. 
 
 Chancellor, Lord, 34. 
 
 Charity of the wise, Leibnitz identifies 
 with justice, 293. See Justice. 
 
 Charles II. pupil of Hobbes, 385. 
 
 Chaucer, 152, 485. 
 
 Chevalier, Michel, 500. 
 
 Child, rights of, 216, 227. 
 
 Chinese, 28, 120 ; held golden rule, 44 ; 
 doctrine of the mean, 44, 125 ; pol- 
 itics, 121 ; wisdom summed up by 
 Bunsen, 123 ; their reverence for the 
 family, ib. ; Classics translated _ by 
 Legge, 124 ; their sciences identical 
 with those of Europeans, 252 ; their 
 systems different from those of Euro- 
 peans, ib. 
 
 Christ accepts Roman law, 41, 154. 
 See Christian and Christianity. 
 
 Christian anthropology, 161. 
 
 Christian Fathers, 62 et seq.; eudse- 
 monists, 141 ; anthropology, 162 ; 
 teaching has separated justice from 
 mercy, not mercy from justice, 338. 
 
 Christianity, 42 ; not exclusively altru- 
 istic, 44 ; contradictory expositions 
 of, 112 ; evokes nature, 167 et seq.; 
 natural, 176 ; necessary, ib.; must 
 be manly, not austere, 458 ; not the 
 work of the many, 483 et seq.; holds 
 out no hope of equality, either on 
 earth or in heaven, 546. 
 
 Christians, numbers of, as compared 
 with Buddhists, 106. 
 
 Church, its relation to science in the mid- 
 dle ages, 166 ; and to Aristotelians, 
 168 ; since Reformation has not main- 
 tained its position, 173, 448 ; alone in- 
 fluences will directly, 450 ; supernatu- 
 ral means by which it influences the 
 will, ib.; natural means by which it 
 influences the will, 452 ; appeals to 
 lower classes, 453 ; extent to which 
 . it may teach politics, 454 ; must in- 
 culcate positive duties, 456, 457. 
 
 Church of Ireland, disestablishment of, 
 272. 
 
 Church, Protestant, advantages of, for 
 political purposes, 456. 
 
 Church, Roman Catholic, its political 
 influence, 456. 
 
 Churches endowed and unendowed, 448, 
 449 ; both must have creeds, ib. 
 
 Cicero, 13, 71 ; on Aristotle, 140 ; in- 
 herited Stoical traditions, 147; as- 
 serts that the doctrine "follow na- 
 ture" was common to the whole 
 Socratic school, ib. ; on method, 148, 
 181 ; reproaches Stoics with depart- 
 ing from nature in practice, 149 ; 
 Cicero's use of the word conscientia, 
 188 ; called Socrates the Homer of 
 philosophers, 244 ; recognizes iden- 
 tity of justice and charity, 328; holds 
 the unity of the virtues, 347, 368. 
 
 Civil law. See Roman law. 
 
 Civilization, effects of, in increasing 
 rights and powers, 262 ; Rousseau's 
 error in supposing it to be cause of 
 inequality, 508 ; causes separation of 
 pIeissbs 509 
 
 Class, middle, 435, 436 ; silent, 480, 509; 
 the sphere of action of the individual 
 for the time being, 493.; each de- 
 mands a separate education, ib. ; 
 learned, political action of, must be 
 indirect, 502; all citizens contained 
 in each, must be politically dealt 
 with as equal, 510. 
 
 Classes as opposed to castes, their ob- 
 ject, 492, see Castes; individuals 
 • pass from one to another, 493. 
 
 Classical anthropology, 126 et seq. 
 
558 
 
 INDEX. 
 
 Classification has limits in both direc- 
 tions, 394 ; Shakespeare recognizes 
 importance of, 492 ; adoption of the 
 principle of, a confession of necessary 
 imperfection of government, 510 ; 
 does less injustice than the want of 
 it, 511; political corresponds to eco- 
 nomical and social, 513. 
 
 Cleanthes and Zeno, 147. 
 
 Clement of Alexandria, a Stoic, 160 ; 
 identity of divine and human Logos, 
 162. 
 
 Clergy, since Reformation, correspond 
 to Predicant Friars, 173 ; hampered 
 by symbols, 449, see Creeds ; ex- 
 amples of teaching politics by, 455. 
 
 Code, primitive, 11 ; universal, no pos- 
 sibility of forming, 535. 
 
 Codification, perpetual and universal, 
 unattainable, 535. 
 
 Codided law, 539. 
 
 Coleridge, 59, 146, 273. 
 
 Commercial codes, 516. 
 
 Common law, 539. 
 
 Commonplace persons produced by 
 popular books, 472. 
 
 Common-sense of mankind, recognized 
 by Thomasius as basis of natural 
 law, 290 ; recognizes necessary sov- 
 ereignty of the rational will, 437 ; 
 philosophy of common -sense in its 
 political aspect, 438, 439. 
 
 Commune, 70. 
 
 Comparative philology, 92. See Max 
 Miiller. 
 
 Conclusion, 540 et seq. 
 
 Confession, 177. 
 
 Confucius, taught golden rule, 44, 120; 
 a compiler of ancient literature, 120; 
 his creed self-revelation, 122 ; and 
 transmitter, 124 ; his doctrine of the 
 mean, 125 ; one of harmony, not of 
 limitation, 145 ; did he decline to be 
 prayed for ? 177. 
 
 Conquering nation, law of, how it may 
 become law of conquered, 433. 
 
 Conquest, right of, see Aggression ; of 
 Roman Empire by barbarians a real 
 success, 416 ; may givo freedom and 
 power, 434. 
 
 Conscience, is moral consciousness, 
 186 ; modern theory of, in Scotland, 
 ib. ; not a separate faculty, ib., 
 199 ; in what sense a direct reve- 
 lation, 191 ; development of, 195 ; 
 Trendelenburg's theory of, ib., 197; 
 Grant's strictures on Butler's theory 
 of, 199 et seq.; judge must not con- 
 sult, in trifles, 279. 
 
 Consent, constructive, by conquered 
 nation, 431 ; by patient, infant, im- 
 becile, and criminal, 432. 
 
 Co-nsolatio PMlos&phice, 153. 
 
 Consolato del Mare, an instance of con- 
 suetudinary legislation, 516. 
 
 Consuetude, 11 ; how it effects direct 
 legislation, 516 ; means of declaring 
 rational will, ib. See Freeman. 
 
 Continental Universities, 1. See Uni- 
 versity. 
 
 Contract, primitive, 11 ; law of, 538. 
 
 Corn-law league, 147. 
 
 Cosmology, 181. 
 
 Cosmopolitanism, 158. See Socrates, 
 Stoics, Buddhists. 
 
 Cosmos. See Kosmos. 
 
 Coulanges, M. de, 41. 
 
 Cousin, 213 ; exaggeration of truth and 
 virtue impossible, 270 ; criticism of 
 Smith's doctrine of property, 315 et 
 seq.; distinguishes between justice 
 and charity, 317 ; sensualist philo- 
 sophy quoted, 321 ; maintains duties 
 without rights, not rights without 
 duties, 325. 
 
 Creator, character of, is creature's mea- 
 sure of perfection, 22 ; no rights in 
 relation to, 205 ; duties in relation 
 to, 207. 
 
 Creed, central, of humanity, 74, see 
 Autonomy ; necessity in Church, 448, 
 449 ; are positive laws, 449 ; their 
 frequent revision necessary, ib. 
 
 Criminal laws, 242 ; law, theory of, 
 according to principles of positive 
 school, 311 ; higher nature consents 
 to punishment, 312 ; constructive 
 assent to punishment, 312, 520 ; 
 criminals may be employed in remu- 
 nerative labour, 312, 313. 
 
 Cromwell, 89. 
 
 Custom, earliest form of legislation. 
 See Consuetude. 
 
 Cynics, 149. 
 
 Cyrenaics, 149, 185. 
 
 Aai/Mov, 37. 
 
 DAlembert, 392. 
 
 Dante, 36; "Monarch," 383; held 
 
 doctrine of proportion, 410. 
 Darwin, 68. 
 Daughter, 93. 
 Death, do Buddhists regard it as the 
 
 object of life? 112; aright, 214, 215; 
 
 the great subjective limitation, 236 ; 
 
 of state, no resurrection from, 545 ; of 
 
 state, does not mean annihilation, ib. 
 Debts, justice consists in paying, 139. 
 
INDEX. 
 
 559 
 
 Decisions, cannot be two in same case, 
 253. 
 
 Declaratory character of all human 
 law, 255. 
 
 Deer forests, 268. 
 
 De facto principle, 231, 250, 259 ; the 
 answer to political fatalism, 479. 
 
 De Finibus. See Cicero. 
 
 Definitions and Divisions, 1. 
 
 Degeneracy, prehistoric, 67. 
 
 Democracy causes retrogression, 69 ; 
 plays into the hands of despotism, 
 384 ; in Athens, meant obedience to 
 Pericles, 479 ; definition of, 544 ; re- 
 pudiated as identical with anarchy, 
 545 ; is it the necessary death of the 
 state ? 547 ; no constitutional guar- 
 antee against it in France, 548 ; dan- 
 gers of, increased by centralisation, 
 ib.; states may play with, 550. 
 
 Democratic-fatalism rejected, as a politi- 
 cal creed, 548. 
 
 Democrats of the Revolution, 392 ; 
 miserable fate which overtook them, 
 488. 
 
 Descartes, 45. 
 
 Despotism, the logical result of Hob- 
 bes's system, 384 ; results from de- 
 mocracy, 549. 
 
 Detection of crime a fine art, 520. 
 
 De Tocqueville, France before the Rev- 
 olution, 297, 498, 500. 
 
 Development, of conscience, 195; right 
 to conditions of, 222. 
 
 Deville, Claire, 499. 
 
 Dhammapada, 108. 
 
 Diderot, 392. 
 
 Difference of ability, effects of, on a 
 farmer and a ploughman, 508. 
 
 Digest, 13. 
 
 Auzaiov, 157. 
 
 Aixaiov SiavepriTticSv, fiucalov Siop9wTM6v, 
 409. 
 
 Diogenes, 166. 
 
 Aibs Kplms, the judgment of Zeus was 
 the proportio, 403. 
 
 Direct revelation, 35. 
 
 Discipline, means voluntary acceptance 
 of law, 463 ; taught by arrange- 
 ments of nature, ib. ; first lesson of 
 politics, 464. 
 
 "Disruption," 279. 
 
 Distinctions, learned make, too many, 
 vulgar make . too few, 292 ; social, 
 rest on individual differences, 399. 
 
 Division, Ulpian's, 13 ; Gaius's, 14 ; 
 modern, 16; of ethical history of 
 Greece, 134; of objects of positive 
 law, 537. 
 
 Dog, rights of, 218, 222. 
 
 Domestic relations, 538. 
 
 Donaldson, 40, 136,- 163. 
 
 Doric legislation, 133. 
 
 " Drifting," tendency of higher classes 
 towards, 476. 
 
 Dualism, 25, 84, 553. 
 
 Duhitar, 93. 
 
 Dumas ascribes intellectual and moral 
 decadence in France to loss of ancient 
 universities, 499. 
 
 Duties, subjective, correspond to rights, 
 211 ; subjective and objective, not 
 opposed, 236 ; objective, revealed by 
 nature, corresponding to subjective 
 duties, 242 ; unilateral, Stoics incon- 
 sistent in their doctrines regarding 
 them, 320 ; Roman Catholic Church 
 held them, 321. 
 
 Duty to ourselves, what it involves, 211. 
 
 Eastern, or Indian Aryans, 94. 
 
 Economy, natural law ideal of, 264 ; 
 political, a science of nature, 274 ; 
 advantages derived from teaching of, 
 468. 
 
 Editors in pay of booksellers, 470. 
 
 Education, right to, 224 ; compulsory, 
 225 ; higher, disregarded in demo- 
 cratic countries, 266 ; political in- 
 fluence of, 460 ; and autonomous 
 power do not always correspond, 46 L; 
 resulting in discipline alone has 
 political value, 462 ; obedience, first 
 lesson of political, 463 ; political, 
 cannot now be made compulsory in 
 this country as condition of suffrage, 
 466 ; political, ought to correspond 
 to responsibilities, ib. ; increases 
 rather than diminishes natural dis- 
 parities, 507. 
 
 Ego, source of rights, 26 ; measured by 
 power of separate existence, 168. 
 
 Egyptians, are they Shemitic ? 75. 
 
 Electoral system must take cognizance 
 of differences, 514. 
 
 Elizabeth, Queen, 152, 455. 
 
 Empirical method=Utilitarianism, 50. 
 
 Enactment, human, 10 ; causes of its 
 imperfection, ib., 425. 
 
 Encyclopaedia in Continental Univer- 
 sities, 1. 
 
 End, when it justifies the means, 419, 
 420. 
 
 Endowed Church, advantage of, in pro- 
 moting independence of teaching, 
 448, 449. 
 
 Endowments, special objects of, may 
 be changed so as to attain general 
 
560 
 
 INDEX. 
 
 objects, 272 ; freedom of lay teaching 
 dependent on, 448 ; scientific teaching 
 in Universities dependent on,303, 496. 
 
 England has had great municipal 
 lawyers, 159 ; has had no scientific 
 jurists, ib. 
 
 English, their shallow conceptions of 
 jurisprudence, 171 ; false distinction 
 between law and equity, 349 ; why 
 more Conservative than Scotch, 455. 
 
 English jurists contrast unfavourably 
 with schoolmen, 171. 
 
 Enthusiasm characteristic of Turanian 
 religions, 119. 
 
 Epictetus, liberty the object of his 
 ethical system, 357. 
 
 Epicureans, 146, 185. 
 
 Equality and inequality, what rights 
 and responsibilities they imply, 263 ; ' 
 absolute, history of the doctrine of, 
 375 ; absolute, as a protest against 
 authority, 378 ; absolute doctrine of, 
 by the Jesuits, ib.; doctrine of, 
 corner-stone of Hobbes's system, 379 ; 
 Spinoza's doctrine of, 385 ; Saisset's 
 criticism of, 386 ; Montesquieu's 
 opinions regarding, 388, 389 ; Rous- 
 seau's doctrine of, ib.; nothing done 
 by Frenchmen to strengthen argu- 
 ment for, since Rousseau's time, 392 ; 
 Ahrens's doctrine of, 393 ; physical, 
 psychological, and metaphysical, 
 394 ; Ahrens's argument for, con- 
 founds genus and species, 396 ; as- 
 sertion of, in American ' ' Declaration 
 of Independence," 398, 399; of 
 functions held by Ahrens, 400 ; be- 
 fore the law, only sense in which 
 equality is involved in liberty, 402 
 et seq.; before the law is analytic 
 justice, 405 ; before the law is syn- 
 thetic justice, 406 ; Plato's doctrine 
 of, 408 ; Aristotle's doctrine of, 409 ; 
 just in law, only when true in fact, 
 illustrated, 412 ; how understood by 
 the leaders and followers of the Re- 
 volution, 487, 488 ; will not exist in 
 heaven, 546. 
 
 Equalization, outcry for, hinders econo- 
 mical reforms, 232. 
 
 Equity, English, 13 ; praetorian, ib.; 
 dispensation of, by judge, 279 ; false 
 distinction between, and law, 350. 
 
 Errors arising from erroneous concep- 
 tions of justice, 349 ; refuted by 
 being traced to their fountain-head, 
 378. See Aberrations. 
 
 Erskine, of Linlathen, 176 ; faith an 
 eternal reality ; identifies mercy and 
 
 justice, 337 ; God's dealings with 
 man are educational, 475. 
 
 Ethical and political preceded physical 
 science, 131 ; systems worked out 
 into rules of conduct, 359 ; ethical 
 knowledge necessary for legal inter- 
 ference, 363. 
 
 Ethics and jurisprudence, relation be- 
 tween, 353 et seq.; in what sense 
 co-extensive, 360, 364 ; opposed to 
 legality by Kant, 363, 364. 
 
 Ethics, Nicomachean, see Aristotle ; 
 sense in which used, 254 ; sense in 
 which its object is liberty, 357 ; 
 teaches proportion, 409. 
 
 Eudaamonism, 49 ; what, 144. 
 
 Events reveal principles, 232. 
 
 Evidence, laws of, 66. See Canon. 
 
 Evil, 33. 
 
 Examinations, 226. 
 
 Exceptional workmen, their function in 
 the community, 494 ; derive no aid 
 from mercantile press, 500 ; must be 
 set apart, ib. 
 
 Exclusiveness amongst classical na- 
 tions, 133, 487; Buddhism protests 
 against, 117 ; and equality must be 
 simultaneously abandoned, 551. 
 
 Existence must precede activity, 57. 
 
 Fact of being involves right to be, 
 212 ; and all subsequent rights, 213 
 et seq. 
 
 Facultas, what, 292. 
 
 Faculty of law, 9. 
 
 Fairbairn, on monotheism, 90. 
 
 Faith, 176. 
 
 Families can dispense with classifica- 
 tion, 511. 
 
 Fatalism, 28, 29 ; distinction between, 
 and necessary obedience, 61 ; demo- 
 cratic, 548, 552. 
 
 Fate, action of, undiscovered law, 416. 
 
 Father, mother, &c, Sanscrit meaning 
 of, 92 et seq. 
 
 Fathers, The, 162. 
 
 Fergusson, Adam, 55. 
 
 Ferrier, Institutes of Metaphysic, 91. 
 
 Few always lead many, proved by 
 small number of names in Smith's 
 Classical Dictionary, 480, 481 ; al- 
 ways guide advancing waves, 482. 
 
 Fichte, the younger rejects distinction 
 between perfect and imperfect obli- 
 gations, 304 ; the elder adheres to 
 Kant, ib. 
 
 Filial obedience, 542. 
 
 Flatt, no perfect obligations, 305. 
 
 "Flesh," 144. 
 
INDEX. 
 
 5.61 
 
 " Follow nature," 49 ; doctrine com- 
 mon to mankind, 59 ; consequences 
 of its repudiation by Mr Mill, 62 ; 
 Stoics had no claim to originating 
 maxim, 147, 184. See TvS>0i aeavrbv. 
 
 Forbes, the Kev. G. H., 163. 
 
 Force, the root of law, 24, = life = ego, 
 213 ; or power, real and apparent, 428. 
 
 France, 70, 431 ; and Germany, their 
 relative positions the result of the 
 presence and absence of a scientific 
 professoriate, 497; vanquished by 
 science, ib.; poverty of eminent men 
 in, 498; oscillates between Catholicism 
 and democracy, 501 ; France nouvelle, 
 549. 
 
 Frankfort parliament of professors, 
 502. 
 
 Fraternity inseparable from principle 
 of paternity as exhibited in guardi- 
 anship, 371, 543 ; a doctrine which 
 cuts both ways, 488 ; separate dis- 
 cussions of, needless, 542. 
 
 Frederick the Great, 233. 
 
 Free trade, doctrine of, not of popular 
 origin, 490. 
 
 Freedom, the object of jurisprudence, 
 see liberty ; the condition of positive 
 law, 429 ; and power may come from 
 subjection, 432. 
 
 Freeman on the action of consuetude 
 on the English Constitution, 516. 
 
 Froude on irrational resistance of the 
 Irish, 418. 
 
 Gaitjs, division of law, 14. 
 
 Garutmat, 82. 
 
 Gathas, 104. 
 
 Gaunt, John of, 485. 
 
 Gerard, follower of Thomasius, 294. 
 
 Germany, schools of philosophy, 28 ; 
 learned press in, 471 ; and France, 
 their relative position, 497. See Ag- 
 gression, and Alsace. 
 
 Gibbon, 152. 
 
 Gladstone, 136, 499. 
 
 Gnome, 137 ; in China, 122. 
 
 Gnostics held identity of the virtues, 
 347. 
 
 Tvutii o-eavrhv, in Sanscrit, 98 ; in China, 
 122; historical origin of, in Greece, 
 137 ; said by Hegel to have been first 
 given to the Greeks, 340. 
 
 rWjuTj. See Gnome. 
 
 Gobineau, Count, 84, 103. 
 
 God, = primary source of natural law, 
 21 ; conscious, 31 ; idea of, 81 ; unity 
 of, ib.; is a necessary conception, 84 
 et seq.; God's will and morality iden- 
 
 tical, 206 ; rights have no validity 
 against, 214 ; leaves no idea unful- 
 filled, 546. 
 
 Golden rule, 222. 
 
 Gould, Mr, report on industrial classes 
 in Switzerland, 505. 
 
 Government, search for, in vain in dem- 
 ocratic society, 448. 
 
 Grace and nature, 174, 175. 
 
 Grant, Sir Alexander's, Aristotle, 57; 
 on savages, 68, 131 ; three eras of 
 ethical history of Greece, 131 ; "doc- 
 trine of the 'mean," 139 ; on "follow 
 nature," 149 ; theory of conscience, 
 199 ; criticism of Butler, 200 et seq. 
 
 Greece, 126 ; as an organism, is dead, 
 547. 
 
 Grenada. See Suarez. 
 
 Gros-tSte, or Greathead, 484. 
 
 Grotii, Gul., brother of Hugo, Encheir., 
 13, 54, 288. 
 
 Grotius, Hugo, 154, 159, 239 ; his merits, 
 .real and pretended, 170; inaccurate 
 writing gives rise to apparent con- 
 tradictions in his system, 257. 
 
 Guardianship, natural foundation and 
 limits of, 230; central idea of Posi- 
 tive School, 306; its application to 
 external politics, 310 ; embraces fra- 
 ternity, 542. 
 
 Guillotine, 70, 550. 
 
 Gundling, follower of Thomasius, 294. 
 
 Guthrie's Savigny, 50. 
 
 Halum on ecclesiastical jurists, 166. 
 
 Hamilton, Sir William, 56, 132, 184 ; 
 laws of parsimony and integrity, 193 ; 
 liberty and necessity, 237; natural 
 realism, 241. 
 
 Happiness, 49. 
 
 Harmonious system of jurisprudence, 
 200. 
 
 Harmony, Pythagorean, 125, 132 ; 
 347. See Justice and MemiTijs. 
 
 Hedonism and Eudaemonism, 49 ; Aris- 
 totle no hedonist, 141. 
 
 Hegel, definition of natural law, 2, 
 28, 33, 51, 102 ; rejects distinction 
 between perfect and imperfect obli- 
 gations, 304; opposed to equality, 
 444. 
 
 Hegelianism, 28. 
 
 Hell, Buddhist belief in, 109; and 
 purgatory, belief in, depends on cli- 
 mate, 114, 115 ; inconsistent with 
 justice, 339. 
 
 Helvetius, 392. 
 
 Henry III., 485. 
 
 Heraclitus, 132. 
 
 2 N 
 
562 
 
 INDEX. 
 
 Heraldry, a system, not a science, 252. 
 
 Heresies, their source, 183. 
 
 Hermits and anchorites, 165. 
 
 Hesiod, 138. 
 
 Hindu trinity, 102. 
 
 Historical method, 50 ; objections to, 
 51 ; canon of limitation of, 63 ; ap- 
 plication of, 66 ; regulative canons 
 for application of, ib.; impotent 
 against doctrine of absolute equality, 
 376. 
 
 Historicus, false doctrine of interven- 
 tion how accounted for, 285. 
 
 History of opinion with reference to 
 autonomy, 63 ; of mankind not di- 
 visible into conscious and unconsci- 
 ous epochs, 340 ; repudiates doctrine 
 of absolute equality, 376. See His- 
 torical method. 
 
 Hobbes, 156, 239 ; takes equality for 
 granted, 379 et seq. ; repudiates his- 
 torical method, 380 ; founds juris- 
 prudence in nature, ib.; political 
 doctrine of, 382 ; why government 
 was introduced, ib. ; system logical, 
 384 ; ideal of government, ib. ; 
 only logical advocate of equality, 
 402 et seq. 
 
 Hole, Mr, his Book about Hoses, 268. 
 
 Homer, 36, 79 ; religion of, 136. 
 
 Honesty the best policy, 327. 
 
 Hooker, division of law, 5. 
 
 Horace, 178. 
 
 Hospitals, 272. 
 
 Hottentots, not valuable as specimens 
 of humanity or teachers of anthro- 
 pology, 71. 
 
 Hugo, representative of historical school, 
 50. 
 
 Human nature, autonomy of, 54 ; re- 
 veals its own impotence, 175 et seq. 
 
 Humboldt, Wilhelm von, 298. 
 
 Hunter, Annals of Mural Bengal, 82. 
 
 Husband and wife, 98. 
 
 Huss, 484. 
 
 Hutcheson, develops theory of moral 
 sense, 187; identifies virtue and bene- 
 volence, 208 ; his opinion as to dis- 
 tinction between obligations, 291 ; 
 his doctrine of obligations, 299 ; hesi- 
 tates as to distinction between perfect 
 and imperfect obligations, 300. 
 
 Idea — and ideal, distinction between, 
 353 ; of humanity, object of ethics, 
 and ultimate object of jurisprudence, 
 353, of state as of individual will be 
 ultimately released, 546. 
 
 Ignorance the source of vice, 327. 
 
 Immortality, Buddhist belief in, 109 ; 
 grounds for believing in, 164, 215 ; 
 unattainable in states, 547. 
 
 Imperfection, 177. 
 
 Incapacity, only legitimate ground of 
 exclusion from rights, 435 ; tests of, 
 ib. 
 
 India, 51, 94 ; rule of British in, 310. 
 
 Indirect revelation, 37. 
 
 Individual and class effort, 476. 
 
 Individuals contribute to positive law 
 in proportion to their real power, 
 436. 
 
 Indra, worship of, supersedes that of 
 Varuna, 78, 81, 95. 
 
 Inductive school, 45. 
 
 Inequality. See Equality. 
 
 Inheritance, laws of, rest on subjective 
 rights, 229, 230. 
 
 International law, idea of, originated 
 with the Stoics, though Buddha had 
 preached brotherhood, 117, 118, 
 157 ; treatise on, in preparation by 
 author, 176 ; its function as a sub- 
 stitute for war, 419 ; public and 
 private, 539 ; rests on recognition of 
 existence de facto, 260. 
 
 Introduction, 1. 
 
 Ionia, free cities of, 133. 
 
 Ireland, Church of, 272. 
 
 Irish. See Froude. 
 
 Jack Cade's insurrection, 485. 
 
 Jefferson, a born democrat, 392 ; author 
 of American ' ' Declaration of Inde- 
 pendence," 393. 
 
 Jerome of Prague, 484. 
 
 Jesuits, their doctrine of absolute 
 equality, 378. 
 
 Jews, 41 ; ablest of Shemitic races, 77 ; 
 at Alexandria, 160. 
 
 Job, 26, 382. 
 
 Johnson's Basselas, 150, 202. 
 
 Judaism, state could not be founded 
 on principles of, 77. 
 
 Judge, function of the, 277 ; bound by 
 positive law, 278 ; analyzes case as 
 chemist analyzes substance, 405. 
 
 Judgment, private, limits to, in com- 
 munities, 279 ; private, in Churches 
 both endowed and unendowed, 449 ; 
 See Creed.' 
 
 Judgments, causes of failure of, 11 ; 
 necessary inferences from national or 
 international law, and from local and 
 temporal circumstances, 250, see De- 
 cisions ; human, necessarily diverse, 
 278. 
 
 Jurisdiction, 248 ; function of, 277. 
 
INDEX. 
 
 563 
 
 Jurisprudence, its relation to theology, 
 30 ; analogy of, with sciences of ex- 
 ternal nature, 251 ; difference be- 
 tween, and heraldry, ib. ; relations 
 between, and ethics, 353; ultimate 
 object of, perfection, ib. ; proxi- 
 mate object of, liberty, ib. ; stands 
 to ethics in relation of species to 
 genus, 355 ; and ethics, why con- 
 fused with each other, 356 ; defines 
 relations, not objects related, 356, 
 357 ; ministers to perfection by per- 
 fecting relations, ib.; does not take 
 cognizance of actions alone, 362 ; 
 cannot ignore motives, 363 ; science 
 of, embraces legislation, ib.; special, 
 423. 
 
 Jus civile, 13, 14. 
 
 Jus gentium, Roman, 12, 13. 
 
 Jus inter gentes, 14 ; divisions of, 538. 
 
 Jus naturale, Eoman, 13. 
 
 Jus strictum, 292. 
 
 Jus Voluntarium, 258. See Grotius. 
 
 Justice, Leibnitz's theory of, 291 ; dis- 
 tinctions of, cannot be maintained, 
 292 ; the charity of the wise, 293 ; 
 and charity, identical in principle, 
 314 ; and injustice, contradictories, 
 not contraries, 320 ; and charity mu- 
 tually include and exhaust each other, 
 325 ; and charity culminate in the 
 same point, 327 et seq.; M. Brocher's 
 objections considered, 330 ; doctrine 
 tested by its extreme results, 333 ; 
 and charity, identity of, taught by 
 scheme of redemption, 334 ; and 
 charity, identity of, taught equally 
 by deeper view of redemption, 336 ; 
 and charity, identification of, not 
 first promulgated by Christ, 337; 
 and is not exceptionally Christian, 
 339 ; Socratic view of the relation 
 illustrated from Protagoras of Plato, 
 342 ; harmony in human relations, 
 347, see Harmony ; in what sense 
 identical with beauty and truth, 348 ; 
 analytic, 405 ; and synthetic, 406 ; 
 commutative and distributive, 409. 
 
 Justinian, 134. 
 
 Justin Martyr, 162, 163. 
 
 Kadis, 33. 
 
 Ealidasa, 82. 
 
 Kant, disagreement between his system 
 
 and that of Aristotle, 109, 142; 
 
 theory of conscience, 192 et seq.; 
 
 "Categorical imperative," 193 ; there 
 
 cannot be two right decisions, 253; 
 
 followed Thomasius in distinguishing 
 
 between perfect and imperfect obli- 
 gations, 294 ; distinguishes between 
 negative and positive rights and 
 duties, 295 ; approves of the revolu- 
 tion at first, 296, 487 ; over-legisla- 
 tion in his time, 297 ; wishes to re- 
 duce state interference, 298; holds 
 freedom the one congenital right, 
 355 ; opposes legality to moraEty, 
 363, 364 ; relation in which the sys- 
 tem here taught stands to his school, 
 366 ; recognizes necessary sovereignty 
 of rational will, 439 ; doesnot advo- 
 cate equality, 444. 
 
 KaBriKov and KaTcSpfliofia, distinction be- 
 tween, 287. 
 
 Kepler, 253. 
 
 Khonds and Santals, 104. See Hot- 
 tentots. 
 
 King never dies, 234. 
 
 King, or sacred books of Chinese, 120. 
 
 King's Complaint, 153. 
 
 Kirkpatrick on public prosecution 
 amongst the Romans, 520. 
 
 Knowledge of opposites simultaneous, 
 140. 
 
 Knox, 484 ; no advocate for equality, 
 379. 
 
 Koran, 36, 169 ; no state can be founded 
 on principles of, 76, 77. 
 
 Kosmos, Strauss retained conception 
 of, 50 ; intuition of, 71 ; word first 
 used by Pythagoras, 132 ; universe 
 must be perfect, 427 ; chaos cannot 
 struggle with, 517. 
 
 Krause, rejects distinction between per- 
 fect and imperfect obligations, 304 ; 
 and his followers, 306 ; founder of 
 positive school, ib. , 354. 
 
 Labeo, Antistius, 290. 
 
 Lafayette, 486. 
 
 Laity called into spiritual life by Re- 
 formation, 173. 
 
 Land, how much, may be held, 268 ; in- 
 dividual property in, has necessary 
 limits, ib. 
 
 Landowners and capitalists ought to 
 officer both army and police, 518, 
 519. 
 
 Lao-tse, 122; anticipates Socrates, ib. 
 
 Lassen, Professor, 93. 
 
 Latin civilization, will it survive ? 69. 
 
 Latin language, loss of, 173. 
 
 Law, natural, definitions and divisions, 
 1 et seq.; in what sense term used, 
 3 ; obeyed before discovered, 7 ; 
 faculty of, 9 ; of nature, erroneous 
 conceptions with reference to, 10 et 
 
564 
 
 INDEX. 
 
 seq.; of nature defined negatively, 
 11 ; of integrity, 184 ; never volun- 
 tary, 257 ; confusion between volun- 
 tary character of, and the conditions 
 in which it is realised, by eminent 
 jurists, ib.; cannot constitute a 
 proprietary relation, 259 ; cannot 
 change a price, 274 ; and ethics, 
 separation between, produces a cut- 
 throat code, illustrated from recent 
 politics, 284, 285 ; and ' equity, 
 severance of, arising from imperfect 
 conception of justice, 349 ; positive, 
 sources of, 425 ; of nature, perfect 
 realization of, "why impossible, 425 ; 
 German, in Alsace, 431, 433, 434 ; 
 to the state and of the state, 433 ; of 
 marriage, illustration from, to show 
 that general rules are not unchange- 
 able, 532 ; public, 537, 538 ; public, 
 within the state, 537 ; positive, 
 division of, into national and inter- 
 national, public and private, 538, 
 539 ; private international, ib.; pri- 
 vate, within the state, 538 ; private, 
 without the state, ib.; public inter- 
 national, ib.; public, without the 
 state, ib.; codified, 539 ; positive, 
 unwritten, common, or consuetudi- 
 nary, ib., see Positive law ; revealed, 
 politically orthodox, ib.; treaty, ib.; 
 written statute, ib. See Positive law. 
 
 Law. See Natural, Positive, Eoman, &c. 
 
 Laws, "ought "and "must, "4; ofManu, 
 99, see Manu ; of war, 242 ; are 
 rational inferences from facts of na- 
 ture, 244 ; of nature necessary infer- 
 ences from facts, 245, 250; of nature 
 are realized in wider and narrower 
 spheres, 248 ; of nature determine 
 the objects of positive laws, 247; 
 always declaratory, 255; too many in 
 corrupt states, 297; natural, cannot 
 be altered by prayer, 452 ; natural, 
 may be taught to children, 465, 466. 
 
 Lawyer and priest, 33. 
 
 Leading and following the conditions 
 of progress, 478. 
 
 "Leaps in the dark," English confi- 
 dence in, 134. 
 
 Leclrie, 62, 207, 209. 
 
 Legal faculty, 34. 
 
 Legge, Dr, on Chinese religion, 120, 
 124 ; says that Confucius declined to 
 be prayed for, 177. 
 
 Legislation, 8, 9 ; principles of, 248 ; 
 impossible without knowledge of na- 
 tural law, 248; and jurisdiction, 
 relation between, 277; partial, affords 
 
 no measure of power or reason of com- 
 munity, 435 ; means of declaring 
 rational will, 515. 
 
 Leibnitz, his connection with elder 
 Thomasius, 289 ; misunderstood by 
 Christian Thomasius, 291 ; nova me- 
 thodus, ib.; divisions of justice, i b.; 
 did not separate perfect and imper- 
 fect obligations, 292 ; doctrine of 
 obligations, ib.; identifies justice 
 and charity, 293 ; indisposition to 
 separate law from ethics further 
 manifested in his epistles, 294. 
 
 Levelling down, effects of, 492. See 
 Equality. 
 
 Leviathan, Hobbes's, 382, 553. 
 
 Lewis, Sir G. C, 50, 48, note. 
 
 Liberie", igaXiti, fraterniti, ' not neces- 
 sarily symbol of disorder, 540. 
 
 Liberty, positive side of, 235, 371 ; 
 right to, embraces all our subjective 
 rights, 235 ; proximate object of 
 jurisprudence, 353 et seq. ; the per. 
 feet relation between human beings, 
 355, 356 ; not license, cannot run 
 into excess, 370 ; maximum of ob- 
 jective, condition of attainment of 
 highest subjective liberty, 371 ; pro- 
 gresses and "retrogrades with order, 
 373 ; Socrates illustrates, in Gorgias, 
 ib. ; relation between, and equality, 
 378, see Equality ; ultimate object 
 of positive law, 523 ; equality and 
 fraternity, each involves the other 
 two, 540 ; promises to vanquish an- 
 archy, 553. 
 
 License not liberty in excess, 370. 
 
 Lieber's political ethics, 438. 
 
 Life, the root of rights and obligations, 
 55, 212 et seq.; rights proportioned 
 to, 216 ; spiritual, provision for, ne- 
 glected in democratic countries, 266 ; 
 an educational institution, 464 ; of 
 nations, 545 et seq. 
 
 Light, eternal, object of Aryan worship, 
 84. 
 
 Limitation of historical method, canon 
 of, 63. 
 
 Limitations of human autonomy, 175, 
 425 et seq.; imposed by nature on 
 subjective rights, the source of order, 
 236; objective, are apparent, ib. ; 
 subjective, are real, ib.; natural, of 
 right of war, 419. 
 
 Literature harder work than law, 508. 
 
 Livy, 172. 
 
 Locke, 190. 
 
 Logic used and abused before dis- 
 covered, 7. 
 
INDEX. 
 
 565 
 
 Logos, 163. 
 
 Loudon, effects of residence in, 181 ; 
 
 less volatile than Palis, 548. 
 Luther, 172 et seq. 
 Lycurgus, 133. 
 
 Mackenzie, Lord, Studies in Roman 
 Law, 520. 
 
 Magna Charta, gift of liberty by oli- 
 garchy, 485. 
 
 Magyars, 119. 
 
 Mahomet, 33. See Koran. 
 
 Mahometan fatalism, 29. 
 
 Mahometan free state impossible, 77. 
 
 Majority, what they believe, 84 ; nu- 
 merical, blind trust in, 476 ; intelli- 
 gence of, must always be below aver- 
 age intelligence, 477 ; never can be 
 source of progress, 482 ; Christianity 
 did not spring from, 483 ; does not 
 lead even mobs, 485. See Democ- 
 racy. 
 
 Man, an unconscious, a contradiction 
 in terms, 340. 
 
 Manichaeism, 191. 
 
 Mansfield, Lord, 159. 
 
 Manu, 33 ; = man, 99 ; identified 
 with Adam, ib. ; identified with the 
 Mannus of Tacitus and German Mann 
 and English man, 100. 
 
 Many always led by the few, 481. See 
 Majority. 
 
 Marcus Aurelius, 153. 
 
 Materialism, 28. 
 
 Maurice, 254. 
 
 Max Miiller, 7, 44, 65, 68, 78; im- 
 portance of his opinions, 81 ; on 
 the origin of monotheism, 87 et 
 seq. 
 
 Maxims, 134. See Gnome. 
 
 Mechanical inventions not of popular 
 origin, 490. 
 
 MrjSec &yav, 139. 
 
 WleyaXotyvxiu, 179. 
 
 Melanchthon, 174. 
 
 Melville, 484. 
 
 Merivale, 153. 
 
 Mecnfnjs, as held by Confucius, Aris- 
 totle, and Grant, doctrine of harmony, 
 not of limitation, 145. 
 
 Method, historical, 63. 
 
 MeTpiciTTjs, 139. 
 
 MeVpor Hpurrov, 105, 139. 
 
 Mexico inferior in civilization to Sand- 
 wich Islands, 69. 
 
 Middle class, 436. 
 
 Will, his high ideal; 49; claims Aris- 
 totle as a "judicious utilitarian," 140; 
 his scepticism ultimately exceeded 
 
 that of Strauss, 49, 50, 62 ; logical 
 result of Calvinism, 485 ; father's 
 influence in working it out, ib. 
 
 Milton's Satan, 185. 
 
 Minos, 133. 
 
 Mirabeau, 81; 
 
 Miraculous revelation to man, 35 ; 
 through man, ib. 
 
 Mischief, wanton, right of property 
 does not warrant, 218. 
 
 Mitra, 81. 
 
 Mob, the, its undue influence since the 
 Reformation, 172. See Majority. 
 
 Mobs have their leaders, 486.. 
 
 Molina, 165. 
 
 Mollahs, 33. 
 
 Mongolian tribes, 119. 
 
 Montesquieu, 114 ; on equality, 388. 
 
 Montfort, Simon de, 485. 
 
 Moral actions, must they be "unwill- 
 ingly" performed? 143; sense, 187. 
 See Ethics. 
 
 Morals, three eras of, 135. 
 
 Mosaic law, 178. 
 
 Moses, 33. 
 
 Muftis, 33. 
 
 Mnir, Dr, 78 ; his opinion with refer- 
 ence to monotheism, 86 ; translations 
 of Vedic hymns, 95 et seq. 
 
 Miiller. See Max. 
 
 Miiller on Sin, 57, 321. 
 
 Mure on Homer, 136. 
 
 Mysteries, 131. 
 
 Mysticism, 79. 
 
 Napoleon's conquests were not real 
 successes, 416. 
 
 National thanksgiving, its political 
 influence, 455. 
 
 Natural law described, 1 ; science of, 
 6 ; when known, the positive law of 
 o, given relation may always be dis- 
 covered, 250 ; right of aggression, 
 414 ; special part of, in all the older 
 systems, 524 et seq. ; special part of, 
 identical with positive law, 530 ; 
 stands in same relation to_ general 
 and special rules of positive law, 
 530, 531 ; objections to universal 
 code of, applied, 535. 
 
 Natural realism, 241. 
 
 Nature, limited sense in which term 
 used, 3 ; asserts its existence, 55 ; 
 human, autonomy of, ib.; guarantees 
 its veracity, 56 ; the result of an ex- 
 ternal cause, 57 ; a gift, 58 ; as neces- 
 sary, is right, 59 ; Chinese conception 
 of, 125 ; reveals its impotence, 175 ; 
 reveals no rights in relation to Crea- 
 
566 
 
 INDEX. 
 
 tor, 205; reveals duties to Creator, 
 207 ; subsequent revelations of, 212, 
 see Right ; reveals possibility and 
 consequences of transgression, 237 ; 
 reveals objective corresponding to 
 subjective rights, 238 ; reveals only 
 subjective and. objective rights, 242 ; 
 reveals objective duties which ex- 
 actly correspond to subjective duties, 
 ib. 
 
 Neander, 40; Christlichen Ethik, 164; 
 on fieyahotyvxia, 179. 
 
 Neeker, 486. 
 
 Negative and positive schools of juris- 
 prudence, 281 et seq. 
 
 Neighbour, have I one ? 240. 
 
 Nemesis, 135 ; signifies moral indigna- 
 tion, 136. 
 
 Nepenthes, 114. 
 
 Newman's Arians, 163, 165. 
 
 Newspapers, their value, 471. 
 
 Newton, 7. 
 
 Nic. Mthic. See Aristotle. 
 
 Nirvana or Nirwana, what, 106 et seq.; 
 popular conception of, 111. 
 
 N<V'.at Ka\bv ydfitp ko.kuv impossible, 
 258. 
 
 Non-Aryan races of Asia, 104. 
 
 Nous of Anaxagoras, 133. 
 
 Obedience, a forgotten duty, 542. See 
 Guardianship. 
 
 Objective, or sensational school, 48. 
 
 Objects of positive law, primary, 523 ; 
 secondary, 524 ; classified with refer- 
 ence to spheres and forms, 536 ; di- 
 visions of, 537 et seq. 
 
 Objects of natural law, 353; of juris- 
 prudence, ultimate and proximate, 
 ib. 
 
 Obligations, history of distinction be- 
 tween perfect and imperfect, 282; 
 no distinction in principle between 
 them, ib.; history of attempted dis- 
 tinction between, ib. ; change their 
 importance according to circum- 
 stances, 284; attempts to distinguish, 
 not unknown to antiquity, 286 ; dis- 
 tinguished by Suarez, Grotius, and 
 Puffendorf, 288 ; distinction generally 
 ascribed to Thomasius, 288 ; repudi- 
 ated by Thomas Aquinas, ib.; Kant, 
 doctrine of, 296; Hutcheson, views 
 regarding, 299; Reid's, 300; Stew- 
 art's, 301 ; Brown's, ib. et seq. ; list 
 of modern writers who reject distinc- 
 tion, 304. 
 
 Observational school, 45. 
 - Occam, 169, 484. 
 
 Oliceiacris of the Stoics, 189. 
 
 Old Testament, 75. 
 
 Oleron, Rolles of, 516. 
 
 Omnipotence, 24. 
 
 One precedes two, 86. 
 
 Oneness, kinds of, 88. 
 
 Opera supererogationis, belief in, rests 
 on distinction between perfect and 
 imperfect obligations, 287, 321. 
 
 Order, its source in limitations of sub- 
 jective rights, 236; means to attain- 
 ment of liberty, 237 ; exaggerated 
 notions of, protested against by Kant, 
 296; led to the Revolution, 297; and 
 liberty culminate together, 368 ; and 
 liberty identical in principle, ib.; re- 
 garded as the object of jurisprudence, 
 369; what, 372; can be enforced only 
 by those by whom it is accepted, 
 518 ; proximate object of positive 
 law, 523. 
 
 Oriental, or ante - classical anthropol- 
 ogy, 7i. 
 
 Orpheus, 130. 
 
 'Ovpavos =Varuna, 96. 
 
 Palet, 46. 
 
 Pantheism, 27 et seq. 
 
 IIapeKj3<£o-eis. See Aberrations. 
 
 Parson means Persona, 146. See Per- 
 sona. 
 
 Party spirit, contempt of Chinese for, 
 421. 
 
 Pascal, 115. 
 
 Pasteur, pamphlet by, 498. 
 
 Paternal authority, 542. 
 
 Paternity embraced in guardianship, 
 371. 
 
 Path, of virtue, see Dhammapada, 
 108, 116; Chinese conception of, 
 125. 
 
 Paton, Sir Noel, verses by, 491. 
 
 Paul, St, 188. 
 
 Pauli, Dr, 486. 
 
 Pelagius, 189. 
 
 Pentagram, Bunsen's explanation of, 
 90. 
 
 Perfect and imperfect obligations, dis- 
 tinction between, 281 et seq. See 
 Obligations. 
 
 Perfection, 23 ; ultimate object of juris- 
 prudence, 353. 
 
 Pericles, 479. 
 
 Periodicals published for profit dis- 
 seminate, but do not advance know- 
 ledge, 471. 
 
 Perrugues-blondes, 70. 
 
 Persian dualism, 83. 
 
 Persona, Roman doctrine of, 155 et seq.; 
 
INDEX. 
 
 567 
 
 primary possession, 324; source of 
 rights, ib. 
 
 Personal contact renders ascertainment 
 of rational will more easy, 505. 
 
 Pessimism, 25, 553. 
 
 Pharisees, 182. 
 
 Philips on jurisprudence, 288. 
 
 Phillimore, 201. 
 
 Philo, 160, 162. 
 
 Philology, comparative. See Max Miil- 
 ler, 92. 
 
 Philosophical school, 46. 
 
 Philosophy of law, 6. 
 
 Phoenicia, as an organism, is dead, 546. 
 
 Phoenicians, no speculative genius, 76 ; 
 no success in political organisation, 
 ib. ; law of status barbarous, 77; law 
 of contract refined, ib. 
 
 QiXaKEs, 306. 
 
 Physics in Greece, 132. 
 
 Piers Ploughman, compared with Manu, 
 100, 101. 
 
 Piety, 292. 
 
 Pindar, 176. 
 
 Plato, 366 ; Protagoras, 342 et seq. ; 
 and Aristotle, attempt to distinguish 
 between their views, 140 ; Gorgias, 
 373 
 
 Playfair, Dr Lyon, 498, 499. 
 
 Poland, 431. 
 
 Polemo, the teacher of Zeno, 147. 
 
 Police, Humboldt resolves state action 
 into, 298 ; begins to be officered by 
 gentlemen, 519. 
 
 Political economy, why a science, 274; 
 political graduation, results from, 
 principles of positive school, 309 ; 
 political science may be taught in 
 schools, 468 ; mortality, narrowness 
 of, induction on which it rests, 546 ; 
 organisms die, 547. 
 
 Politics. See Aristotle. 
 
 Politics, European, impeded by the 
 mob, 172 ; must be taught directly, 
 464 ; hardest of all work, 508 ; pro- 
 gressive and conservative schools of, 
 logically reconcilable, 540 et seq. ; 
 science of, would put an end to party 
 politics, 544. 
 
 Polling-booth, how far a school of poli- 
 tics, 472. 
 
 Polytheism, 23, 25. 
 
 Poor, have they rights ? 323, 324. 
 
 Popular reading, evils of, 472. 
 
 Positive law, 9 ; school, doctrines of, 
 306 ; school rejects numerical major- 
 ity, 309 ; ultimate sources of, 425 ; 
 proximate sources of, primary and 
 secondary, 426 ; power, source of, 
 
 only when coincident with reason, 
 427 ; implies freedom, 429 ; may 
 arise from external source, 431 ; 
 
 . springs from whole autonomous com- 
 munity, 434 et seq. ; individuals 
 contribute, in proportion to power 
 and reason, 436 ; effect of external 
 influences in formation of, 441 ; 
 secondary sources of, 447 et seq. ; 
 objects of, ultimate and proximate, 
 523 ; ultimate object of, liberty, 524 ; 
 primary and secondary objects of, 
 ib. ; primary object of, order, ib. ; 
 proximate object of, order, ib. ; secon- 
 dary objects of, the specific rules by 
 which order is realized, ib. ; objec- 
 tions to attempts to develop a univer- 
 sal system of, by Puffendorf, Wolff, 
 and others, 525 et seq. ; their ill suc- 
 cess brought study of natural law 
 into contempt, 529 ; changes like 
 catalogue of bookseller's shop, 535 ; 
 objects of, how classified, 537. 
 
 Possession, limits of, 231 ; its signifi- 
 cance, 259. 
 
 Power, real and apparent, distinction 
 between, see Aggression, 415; in what 
 sense the primary source of positive 
 law, 426 ; when real, ib., see Right ; 
 apparent does not generate law, 427; 
 coincident with reason, alone not 
 self - destructive, ib. ; of conqueror 
 may be source of positive law, 431 ; 
 cannot be measured by partial legis- 
 lation, 434. 
 
 Prayer, 177; did Confucius believe in? 
 ib.; its political influence, 450, 451 ; 
 must be reasonable, 451. 
 
 Predicant Friars, 173. 
 
 Prescription, an illustration of de facto 
 principle, 260. 
 
 Press, mercantile and scientific, 469 ; 
 learned, why more active in Ger- 
 many, 471 ; mercantile, evils which 
 counterbalance its good effects, ib.; 
 learned and popular, activity of, in 
 inverse ratio, 472 ; mercantile, gives 
 no aid to exceptional work, 495. 
 
 Prevost-Paradol, 500; why a democra- 
 tic-fatalist, 548 ; his patriotism in 
 
 - antagonism with his creed, 549. 
 
 Price and Wollaston identify truth 
 with justice, 348. 
 
 Price cannot be changed by law, 274. 
 
 Primary source of law, 21. 
 
 Primitive code, 11 ; contract, ib.; con- 
 dition of man, 67 ; beliefs, ib. 
 
 Primogeniture, 265. 
 
 Private, international law, 538, 539 ; 
 
568 
 
 INDEX. 
 
 law within the State, ib. ; without 
 the State, ib. 
 
 Professoriate, office by which excep- 
 tional work is effected, 495 ; its 
 relative position in France and Ger- 
 many, 497; conditions of an efficient, 
 502. See University. 
 
 Progress, rarely direct, 186 ; the work 
 of individuals, 476 et seq.; does not 
 tend to equalize individuals, 507. 
 
 Proletarianism, 232. 
 
 Property, how acquired, 215, 231 ; the 
 idea of, 216 ; rights of, do not imply 
 indulgence of caprice, 231 ; trans- 
 mission of, in all cases instantaneous, 
 
 234 ; transmission of, inter vivos and 
 ■mortis causa, identical in principle, 
 
 235 ; limits of, determined by de facto 
 principle, 260 ; indefinite accumula- 
 tion of, how to prevent, 264 ; limi- 
 tation of, less dangerous from sub- 
 jective side, 266 ; temporal limits 
 to rights of, 269 et seq.; condemned 
 by Rousseau, 392 ; Proudhon's view 
 of, ib. 
 
 Proportion, doctrine of, held by Pyth- 
 agoras, 132 ; history of its aban- 
 donment in favour of doctrine of 
 absolute equality, 378, 411 ; doc- 
 trine of, held by Plato, 403, 408 ; 
 doctrine of, held by Aristotle, 403, 
 408, 410, 411 ; doctrine of, held by 
 Thomas Aquinas, 410 ; by Dante, 
 ib.; by Lord Stair, ib.; doctrine of, 
 its political importance, 411 ; doc- 
 trine of, finds application in every 
 branch of jurisprudence, ib. et seq. 
 
 Protagoras of Plato quoted in proof of 
 Socratic doctrine of the identity of 
 the virtues, 342. 
 
 Proudhon holds that " property is rob- 
 bery," 392. 
 
 Province of legislation cannot be de- 
 fined by drawing a line between per- 
 fect and imperfect obligations, 282 
 et seq. 
 
 Psalm 119th, a prayer for indirect rev- 
 elation, 41. 
 
 Public and private law, 116. 
 
 Public law, 537 ; within the State, 
 three divisions of, ib.; without the 
 State, two divisions of, 538. 
 
 Publishers, object of their existence is 
 to disseminate knowledge, 469 ; best 
 judges of books by which knowledge 
 will be disseminated, 470 ; do little 
 to encourage science, 471. 
 
 Puffendorf's system, an attempt at a. 
 universal code, 525, 535. 
 
 Punch, a moral teacher, 285, 286. 
 
 Pundits, 33. 
 
 Punishment, capital, 312 ; Rbder and 
 Krause opposed to, 219 ; reasons for 
 regarding it as a relative right, 220 
 et seq. ; Kant's famous saying regard- 
 ing, 221 ; criminal's medicine, ib. ; 
 corporal, ib. 
 
 Puranas, 82. 
 
 Puritans, their political influence, 455. 
 
 Pythagoras, 79, 132. 
 
 Pythagorean Pentagram, 90. 
 
 Races, 67 ; different political aptitudes 
 of, 76, 460. 
 
 Rational will, necessary sovereignty of, 
 recognized by common-sense of man- 
 kind, 437 ; how formed by com- 
 munity, 447 ; means by which de- 
 veloped, 476 ; means by which the 
 community ascertains it, 504 ; means 
 by which community declares it, 
 515, 516 ; means by which it is ap- 
 plied, 516 ; means by which it is 
 enforced, 517. 
 
 Raynal, 392. 
 
 Reaction "against error more rapid as 
 civilization advances, 255. 
 
 Reaction does not always reach previous 
 point, 69. 
 
 Reading, indolent, hinders reflection, 
 472. See Press. 
 
 Reason, 26 ; and power, coincidence of, 
 as primary source of positive law,' 
 426. See Rational will. 
 
 Recognition, doctrine of, rests on de 
 facto principle, 260. 
 
 Red Indian, 72. 
 
 Red Republican, 72. 
 
 Reform Bill of 1832 condemned by 
 Hegel, 444; of 1867 repeats the error 
 of that of 1832, ib. 
 
 Reformation, what it taught, 171 ; not 
 the work of the many, 483 ; declined 
 when it became a popular movement. 
 484. 
 
 Reichstag, members of, why chosen by 
 universal suffrage, 444. 
 
 Reid, Dr, inconsistency of .his doctrine 
 as to obligations, 300. 
 
 Relation, the perfect, is liberty, 355 ; 
 jurisprudence, a doctrine of, 46, 357 ; 
 between order and liberty, 367. 
 
 Relations imply knowledge of both 
 parties related, and jurisprudence 
 has consequently both subjective and 
 objective sources, 46 ; domestic, 538; 
 social, ib. 
 
 Renan, 70 ; on Reformation, 116 ; on 
 
INDEX. 
 
 569 
 
 the University of France, .501 ; re- 
 jects democratic-fatalism, 550 et seg. 
 
 Representatives, political education of, 
 may be exacted, 466. 
 
 Republic, the only realizable, is anti- 
 democratic, 373. 
 
 Republican, Red, 72. 
 
 Responsibility depends on intention, 
 363. 
 
 Retrogression, 68, 257. 
 
 Revelation, direct, 35 ; miraculous to 
 man, ib.; miraculous through man, 
 ib. ; special through man, 36 ; in- 
 direct, 37. 
 
 Revival, religious, 166, 460. 
 - Revolution, 134 ; truths of, perished, 
 errors of, flourished under popular 
 influences, 486 ; democratic, Csesar- 
 ism, its only new idea, 489 ; popular, 
 has produced no leader of ability, ib.; 
 averse to free trade, 490 ; in what 
 sense alone its doctrines are realiz- 
 able, 540 et seq. 
 
 Right and wrong, nature criterion of, 
 59 ; and power co - extensive, 261 ; 
 of aggression, 414. 
 
 Right to be, involved in fact of being, 
 212; to continue to be, involved in 
 right to be, 213 ; to be, and to con- 
 tinue to be, have no validity against 
 God, 214 ; to be, and to continue to 
 be, imply a right to the conditions of 
 existence, 215 ; to be implies aright 
 to develop our being, and to the con- 
 ditions of its development, 222 ; to 
 be involves the right tp reproduce 
 and multiply our being, 226 ; to be, 
 and to continue to be, involves the 
 right of transmitting to our offspring 
 the conditions of existence, 229 ; to 
 be involves right to dispose of the 
 fruits of being inter vivos, 230 ; to 
 be involves right to dispose of the 
 fruits of being mortis causd, 233 ; 
 exclusive, depends on occupation, 260. 
 
 Rights, none in relation to the Creator, 
 205 ; exist in relation to creation, 
 animate and inanimate, 212 ; sub- 
 jective, resolve themselves into the 
 right to liberty, 235 ; natural limita- 
 tions of, reveal principle of order, 
 236 ; objective, exactly correspond to 
 subjective, 242 ; and duties subjective 
 and objective, and their mutual de- 
 pendence the sole revelation with 
 reference to human relations made 
 to us by nature, 243 ; of man, de- 
 claration of, 488. 
 Rig-Veda Sanhita, 85. 
 
 Roder opposed to capital punishment, 
 219 ; rejects distinction between per- 
 fect and imperfect obligations, 304 ; 
 representative of positive school, 306 
 et seq. j his criticism of this work, 
 306. 
 
 Roman law, 154 ; rests on nature, 155 ; 
 theory of slavery rested on denial of 
 personality to slave, ib. 
 
 Rome, Stoicism in, 145. , 
 
 Hoses, Book about, 268 ; have rights, 
 ib. 
 
 Roth, Professor, 78. 
 
 Rousseau denies separate social prin- 
 ciple, 243 ; the Burns of publicists, 
 244 ; characteristics of his system, 
 388 et seq.; next writer of distinction 
 after Spinoza, who advocates abso- 
 lute equality, 388 ; does not assume 
 natural equality, 389 ; man must be 
 decivilized, 390 ; thought men ought 
 to be equalized, ib.; state of nature, 
 ib.; condemns institution of pro- 
 perty, 392. 
 
 Rousseau's system logical as an argu- 
 ment for revolution, 390 ; system 
 illogical as an argument for equality, 
 ib.; system afforded no measure of 
 right, 391. 
 
 Royal Society of Edinburgh, Transac- 
 tions of, 261. 
 
 Rule of life, a doctrine of relations, 47, 
 184 ; what, 194. 
 
 Rules, special and general, of positive 
 law cannot be distinguished, 532. 
 
 Runymede, 485. 
 
 Russia, 431. 
 
 Rutherford, 299. 
 
 Sacerdotal class, 33. 
 
 Saisset, Emile, 32 ; criticism of Spin- 
 oza's political system, 386. 
 
 Sanscrit, ought to form part of a learned 
 education, 80 ; texts, see Muir and 
 Max Miiller. 
 
 Satan, 32. 
 
 Savigny, 13, 50 ; recognizes necessary 
 sovereignty of rational will, 440 ; 
 does not advocate equality, 444. 
 
 Scepticism, Hindu, 101. 
 
 Schelling, 68. 
 
 Schlagintweit, 65, 106. 
 
 Schleiermacher rejects distinction be- 
 tween perfect and imperfect obliga- 
 tions, 304. 
 
 School and University as teaching in- 
 stitutions, 459 ; might teach natural 
 law, 464 ; even ragged, might teach 
 rudiments of politics, ib. 
 
570 
 
 INDEX. 
 
 Schoolmen and Ecclesiastical Jurists, 
 165 ; their method scientific, 167 ; 
 their problem to reconcile faith and 
 reason, 168. 
 
 Schools of jurisprudence, 38 et seq.; 
 negative and positive, 281 et seq. 
 
 Schwegler, 68, 86. 
 
 Science and System, difference between, 
 251. 
 
 Science, physical instruction in, does 
 not give political aptitude, 464. 
 
 Science of law, 6 ; of positive law, 9. 
 
 Sciences applied to practice are arts 
 and professions, 367. 
 
 Sclaves and Germans, 129. 
 
 Scotch Bench, 34. 
 
 Scotch doctrine of conscience, 186. 
 
 Scotch philosophers prefer logic and 
 metaphysics toethics andpolitics,132. 
 
 Scotch political education of free- 
 holders in 1494, 466. 
 
 Scribes, 33. 
 
 Seeley, 176, 542. 
 
 Selection of exceptional workmen for 
 exceptional work, one of the means 
 of developing the rational will, 493. 
 
 Self-assertion, 179. 
 
 Self-defence, 210. 
 
 Self-denial and self-interest synony- 
 mous, 327. 
 
 Self-devotion falls within sphere of 
 justice, 328. 
 
 Self-sacrifice, by which true charity is 
 effected, always apparent, 327. 
 
 Selfish system, how far true, 238, 239. 
 
 Selfishness not self-interest, 328. 
 
 Semitic. See Shemitic. 
 
 Seneca, Spaniard by birth, 288 ; his 
 conception of fate, 416. 
 
 Servius Tullius, 133. 
 
 Seven sages famed for political wisdom, 
 132. 
 
 Shaftesbury, 187 ; on the moral sense, 
 188, 207. 
 
 Shakespeare recognizes importance of 
 classification, 492. 
 
 Shemitic and Christian anthropology, 
 161. 
 
 Shemitic races, 74 ; trust to direct rev- 
 elation, 74, 75 ; want of rationalistic 
 element, 75, 77. 
 
 Shi-King, 121. See Confucius. 
 
 Simeon, St, 166. 
 
 Simon de Montfort, representation of 
 commons traceable to personal influ- 
 ence of, 485. 
 
 Simon, M. Jules, 541. 
 
 Simonides, 139. 
 
 Sismondi opposed to equal suffrage, 445. 
 
 Siva, 82. 
 
 Skin, black, 104. 
 
 Skins, human, tanned in France, 69. 
 
 Slavery, Roman theory of, 155 ; Aris- 
 totle on, 156, 157; pupilarity, pro- 
 per substitute for, in lower races, 
 156. 
 
 Smith's Dictionary, names in, 480, 481. 
 
 Social organization a means of develop- 
 ing the rational will, 491. 
 
 Society, enemies of historical, appeal 
 from nature to science, 377. 
 
 Society, no separate principle of, 243. 
 
 Society of France, democratic, 549. 
 
 Socinian, 83. 
 
 Socrates, 36, 37, 64, 72 ; his central 
 ethical doctrine anticipated in China, 
 122 ; ethics of, 139 ; an eudsemonist, 
 141; called by Lord Mansfield "the 
 great lawyer of antiquity," 159; 
 held the unity of the virtues, 342 ; 
 pointed out connection between order 
 and liberty, 373 ; prefers positive to 
 negative duties, 457. 
 
 Solidariti of interests recognized in an- 
 tiquity, 327. See Buddha. 
 
 Soil und Muss Gesetze, 4. 
 
 Solon, 133. 
 
 Soto, 154, 170. 
 
 Sources of natural law, 21 ; secondary, 
 of natural law, 35 ; of positive law, 
 423 ; of positive law ultimate, 425; 
 of positive law proximate, 426. 
 
 Special jurisprudence, 423. 
 
 Special revelation through man, 36. 
 
 Spencer, Herbert, on altruism, 44 ; 
 method, statistical, 50 ; on creeds, 
 449; on "the great man theory," 
 481. 
 
 Spinoza, liberty, the object of the state, 
 355 ; follows Hobbes in assuming 
 equality, 385 ; differs from Hobbes 
 in advocating freedom, 3S7; political 
 system illogical, ib.; according to 
 Hallam, indicates no preference for 
 any form of government, ib. 
 
 Stahl rejects distinction between per- 
 fect and imperfect obligations, 304. 
 
 Stair, Lord, 159. 
 
 Standing armies and citizen armies, 
 517, 518. 
 
 Stanley, Dean, 153. 
 
 State, of nature, 11, 67; a teaching in- 
 stitution, 475 ; death of, does not 
 mean annihilation, 545 ; survives in 
 its elements, ib. ; its life may be in- 
 definitely prolonged, 547, 548 ; dead 
 must be buried, 550. 
 
 States, small, admit of peaceable aggres- 
 sion, 420 ; conditions of their indefi- 
 nite longevity, 551 ; ultimate ground 
 
INDEX. 
 
 571 
 
 for believing in their indefinite lon- 
 gevity, 552. 
 
 Stationary existence impossible to the 
 state, 495. 
 
 Statistical method, 50. 
 
 Status, law of, 538. 
 
 Statute law, 539. 
 
 Stewart, Dugald, retained distinction 
 between perfect and imperfect obliga- 
 tions, 301. 
 
 Stoical doctors, their influence, 146; 
 lists of, 147; doctors of Shemitic 
 blood, 149 ; distinction between 
 KaSriKov and Ka.T6pBu>fi.a, 287. 
 
 Stoicism, practical recognition of, 150 ; 
 speculative objections to, not under- 
 stood in Rome, 151. 
 
 Stoics, 13 ; and Epicureans, 146; apathy 
 of, 114 ; three directions in which 
 they formulated the rule of life, 146 ; 
 did not invent the maxim "follow 
 nature," 147 ; why popular in Rome, 
 149 ; departed from nature, ib, ; 
 proclaim unity of human race, 157; 
 their religious literature, 177, 185 ; 
 founders of causistry, 288 ; contra- 
 dictions of, 320. 
 
 Stowell, Lord, 159. 
 
 Strauss, his scepticism fell short of 
 Mill's, 50. 
 
 Strength, bodily, more required in 
 higher than lower occupations, 508. 
 
 Suarez of Grenada, 31, 154, 169, 288. 
 
 Subjective and objective teaching, 26. 
 
 Subjective school, 46, 185. 
 
 Success immediate and permanent, 415. 
 
 Suffrage, theoretically no ultimate an- 
 swer to claim for, 435, 436, see Pro- 
 portion ; universal, practical adop- 
 tion of, rendered impossible by demo- 
 cratic legislation, 436 ; evils of re- 
 garding it only as a right, 473 ; 
 what it has taught in England and 
 France, 474. 
 
 Swmma of Thomas Aquinas, 154. 
 
 Summa of schoolmen, 153. 
 
 Summum bonum, European and Ori- 
 ental, 114.' 
 
 Sun, worship of, 130. 
 
 2wei8?7<ny, 188. 
 
 Supererogation, works of, 287, 321. 
 
 Supernatural means by which the 
 Church influences the will, 450. 
 
 Suwm cuique, not revealed as a law, 
 224; and alium non loedere, honeste 
 
 - vivere, identical propositions, 291. 
 
 Symbol, effect of, in limiting scientific 
 activity of the Church, 449. 
 
 Synthetic justice = proportional equal- 
 ity, 407. 
 
 Tacitus, 100, 297. 
 
 Talleyrand, 500. 
 
 Taireii/ds, 179. 
 
 Taxation, graduation of robbery, unless 
 coupled with graduation of political 
 power, 232. 
 
 Ti\os of nature, the final object of all 
 law, 247. 
 
 T?j ifxfo-fi, not added to Stoical formula 
 by Cleanthes, 147. 
 
 Temperament, 185. 
 
 Ten Commandments, 40. 
 
 Tennyson, Holy Grail, 451. 
 
 Terror, Reign of, 69, 70. 
 
 Tertullian, 69. 
 
 Testamentary power, natural origin of, 
 233. 
 
 Testimonia ponderanda, 72. 
 
 Thales, 132. 
 
 Theologia Qermanica, 36. 
 
 Theological school, 39, 165. 
 
 Theology and jurisprudence since Re- 
 formation, 172. 
 
 Thomas Aquinas, definition of natural 
 law, 5 ; defines a miracle, 36 ; no 
 rights against God, 58 ; an eudse- 
 monist, 141 ; Summa imitated by 
 the casuists, 154 ; and Augustin, 
 167, 169, 180; favours positive school, 
 299 ; distinguishes between earitus 
 and liberalitas, 314 ; identifies justice 
 and charity, ib.; on Aristotle's doc- 
 trine of the virtues, 341 ; distin- 
 guishes commutative and distributive' 
 justice, 409 ; held doctrine of propor- 
 tion, ib. 
 
 Thomasius did not first distinguish 
 obligations, 286 ; Christian biograph- 
 ical notice of, 288, 289 ; influence on 
 Scotch philosophy, 290 ; in this coun- 
 try, ib., 291; misunderstood Lieb- 
 nitz, ib. ; claim to have anticipated 
 Kant in the distinction between nega- 
 tive and positive rights and duties, 
 295, 296. 
 
 Time limits rights, 269. 
 
 Treaty law, 539. 
 
 Trendelenburg on the disagreement 
 between the ethical systems of Kant 
 and Aristotle, 142 et seq. ; on Aristo- 
 tle's theory of slavery, 156 ; theory 
 of conscience, 195, 197 ; rejects dis- 
 tinction between perfect and imper- 
 fect obligations, 304 ; on 5th Book 
 of Meom. Ethics, 409. 
 
 Trinity, Hindu, 102. 
 
 Troplong, 13. 
 
 Tuisco, father of Mannus, 100. 
 
 Tulloch, Principal, Rational Theology, 
 
572 
 
 INDEX. 
 
 Turauian races, 119. 
 Turgot, 500. 
 Turks, 119. 
 Twelve Tables, 157. 
 
 Ulemas, 33. 
 
 Ulpian, 121. 
 
 Unity of God, 84 et seq. 
 
 Universalism, 26. 
 
 Universe must be Kosmic, 427. 
 
 Universities, the only safe haven for 
 theology, 173; as teaching institu- 
 tions, 459 ; as institutions for pro- 
 motion of science, 495. 
 
 University as a teaching institution, 
 459 ; error of regarding it as a mere 
 teaching institution, 495 ; greater 
 error of regarding it as a mere ex- 
 amining board, ib.; institution by 
 means of which exceptional work is 
 secured to community, ib.; theolo- 
 gical department of, emancipated 
 from dogma, 496 ; theological de- 
 partment of, its relation to the 
 Church, 496 ; centralized, of France 
 has caused intellectual paralysis, 499. 
 See Professoriate. 
 
 Upanishads, 84. 
 
 'TiroB^Kri, 137. 
 
 Ushias — the Dawn, 97. 
 
 Utilitarianism as a system, 48 ; as a 
 method, 50. 
 
 Varuna, 78, 81, 103 ; = 'Ovpav6s, 96. 
 Veda older than Zendavesta, 103. 
 Vedic hymns made to please the gods, 
 
 78. 
 Virtues, the inseparable character of, 
 
 held by Aristotle, 341 ; cannot be 
 
 exaggerated, 370. 
 Vivisection, 222. 
 Volney, 392. 
 Voluntary law, in what sense term may 
 
 be used, 258. 
 Vormundschaft. See Guardianship. 
 Vox populi, vox Dei, verses on, by Sir 
 
 Noel Paton, 491 ; ultimately the true 
 
 doctrine, 553. 
 
 War, natural results from Hobbes's 
 system, 381 ; right of, limited by 
 necessity, 419 ; preferable to non- 
 realization of right, 420 ; cannot be 
 abolished till its place as means of 
 progress is supplied, 421. 
 
 Warnkonig, 286 ; rejects distinction 
 between perfect and imperfect obliga- 
 tions, 305. 
 
 Washington did not hold doctrine of 
 equality, 392, 486. 
 
 Wat Tyler's claim to be father of com- 
 munism,. 486. 
 
 Wealth, evils resulting from accumula- 
 tion of, 207. 
 
 Weeds sow themselves, 486. 
 
 Welcker's Mythology, 128. 
 
 Well-being, not being, the object of 
 nature, 266. 
 
 Western Asiatic Aryans, 102. 
 
 Wheaton, 257. 
 
 Wheel of the Law, 65. 
 
 Wickliffe, 174 ; political influence, 455, 
 485. 
 
 Will, 182 ; rational, of community, how 
 formed, 447 ; rational, means by 
 which the community develops it, 
 476 ; rational, means by which the 
 community ascertains it, 504 ; ra- 
 tional, means by which community 
 declares it, 515; rational, means by 
 which it is applied may be spon- 
 taneous or by jurisdiction, 516 ; ra- 
 tional, means by which it is enforced, 
 517. 
 
 Williams, the, v. Bishop of Salisbury, 
 280. 
 
 Wills limited by change of circum- 
 stances, 272. 
 
 Wirth rejects distinction between per- 
 fect and imperfect obligations, 304. 
 
 Witness, best, must be chosen, 67; 
 higher races, best, 72. 
 
 Wolff, school of, 296. 
 
 Wolff's system, 525. 
 
 Wollaston identifies truth with justice, 
 348. 
 
 Wordsworth, 103. 
 
 World, a portion of Kosmos, 427. 
 
 Worm has rights, 218. 
 
 Xenophon, 64, 142. 
 
 Yama, 82. 
 
 Zeller, 29, 146; note, 127; on So- 
 crates, 142, 320. 
 Zendavesta, 79, 103. 
 Zeno, 147 ; and Clean thes, ib. 
 Zeus, 128 ; judgment of, 103, 408. 
 Zoroaster, 33, 103. 
 
 PRINTED BY WILLIAM BLACKWOOD AJTD SONS.