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ON JURISPRUDENCE 
 
 AND 
 
 CONFLICT OF LAWS 
 
OXFOED UNIVERSITY PRESS 
 
 LONDON EDINBURGH GLASGOW NEW YOBK 
 
 TORONTO MELBOURNE CAPE TOWN BOMBAY 
 
 HUMPHREY MILFORD 
 
 PUBLISHER TO THE UNIVERSITY 
 
ON 
 
 JURISPRUDENCE 
 
 AND THE 
 
 CONFLICT OF LAWS 
 
 by 
 FREDERIC HARRISON 
 
 of Lincoln's Inn, M.A. Oxon. 
 D.C.L., Litt.D., LL.D. 
 
 WITH ANNOTATIONS 
 
 by 
 
 A. H. F. LEFROY 
 
 M.A. Oxon., of the Inner Temple, Barriater-at-Law 
 Professor of Roman Law and Jurisprudence, University of Toronto 
 
 OXFORD 
 
 AT THE CLARENDON PRESS 
 
 1919 
 
§ 
 
 
 ^\^..., 
 
 NJ;- *■: 
 
 \o , 
 
 N^ 
 
 PREFACE 
 
 
 This volume contains the five Lectures given by me as 
 Professor to the Inns of Court, and published in the 
 Fortnightly Eeview in 1878 and 1879. They have now been 
 revised by me, and they are followed by Annotations by 
 my friend Professor A. H. F. Lefroy, of the University of 
 Toronto. In 1877 I was appointed by the Council of Legal 
 Education as Professor of Jurisprudence, International Law, 
 Public and Private, and of Constitutional Law, in conjunc- 
 tion with the present Viscount Bryce, O.M. ; and I lectured 
 regularly in the Middle Temple Hall during the twelve 
 years from 1877 to 1889. The later years of my term of 
 office were chiefly occupied by Lectures on Public Inter- 
 national Law and on Constitutional Law. Professor James 
 Bryce undertook the entire field of the Civil Law of Home. 
 I may here note that in 1882 I published in the Fortnightly 
 Beview two Lectures on the Law of Treason. 
 
 I have long known that the Five Lectures contained in 
 this book were much used by students in various Colleges 
 and Halls and in the University of Oxford ; and my friends 
 Sir Thomas Erskine Holland, K.C., Albert Dicey, K.C., and 
 others advised me to re-issue them in a substantive volume. 
 But the other large subjects included in my office left me 
 no leisure to revise these five Lectures. And in 1889 
 I became absorbed in public office and literary work, and 
 I allowed the Lectures to remain in the form of Eeview 
 articles. 
 
 Recently Professor Lefroy, of the University of Toronto, 
 informed that he was using the Lectures in his Classes and 
 
6 PEEFACE 
 
 it was desired to have an adequate re-issue of them. I there- 
 upon placed in his hands the publication of them, on con- 
 dition that he would add all needful explanations, references, 
 and notes — in fact, would bring them up to date in accordance 
 with present legal learning. Having long ceased to study 
 the later literature of Jurisprudence or recent text-books, 
 and having now entered on my eighty-eighth year, I entrust 
 the task with entire confidence to Professor Lefroy. 
 
 It will be remembered that the whole of these five Lectures 
 were delivered and published just forty years ago, and they 
 are based on the books then current and reflect the views of 
 that day. But as they are almost entirely historical, it does 
 not seem to me that subsequent authorities have displaced 
 or superseded them. "What is needed in the way of reference 
 to recent books will be found in the Annotations of my 
 colleague. I am aware that my suggestion of a new name 
 for Private International Law has not been accepted by 
 some eminent authorities. But their criticism has not con- 
 vinced me, and, as the discussion it aroused was a fact in 
 legal history, I allow it to remain here without further 
 argument. 
 
 F. H. 
 Bath, October 1918. 
 
CONTENTS 
 
 PEEFACE 
 
 CHAPTER 
 
 I. Austin and Maine on Sovereignty 
 
 II. Austin's Analysis of Law 
 
 III. The Historical Method . 
 
 IV. The Conflict of Laws. I 
 
 V. The Conflict of Laws. II . 
 ANNOTATIONS. By Professor Lefkoy 
 
 page 
 5 
 
 9 
 
 37 
 
 71 
 
 98 
 
 125 
 
 149 
 
ON JURISPRUDENCE 
 AND CONFLICT OF LAWS 
 
 CHAPTER I 
 
 AUSTIN AND MA.INE ON SOVEREIGNTY 
 
 (i.) 
 
 The analysis of our primary ideas in law which was 
 finally reduced to method by John Austin exactly ninety 
 years ago, still remains to Englishmen the foundation of 
 rational jurisprudence. But it is desirable to get rid of 
 a great deal of exaggeration with which his work has been 
 surrounded. The theory of Austin contained little that was 
 in any sense new ; it may be reduced to a small number of 
 very simple propositions ; and the truth of these propositions 
 has been asserted in much too absolute a way. 
 
 The value of his analysis has been obscured, and the mind 
 of the student is perplexed, by everything which prolongs 
 this exaggeration. There is not the least ground for 
 regarding the analysis as a purely original discovery, much 
 less as forming a new epoch in political philosophy. Again, 
 Bentham and Austin were driven by the conditions of their 
 time into endless repetitions and criticisms which have now 
 become simple encumbrances. And they fought tenaciously 
 for a scheme of moral philosophy which is no longer the 
 critical battle-field it was. Putting aside the parts of the 
 ' Province of Jurisprudence ' which are purely combative, 
 and the parts which belong rather to general or to moral 
 philosophy, the residue is capable of being stated in a few 
 plain doctrines. But these doctrines, if few, are of funda- 
 mental importance. And the frame of mind which they 
 encourage is perhaps of more importance than the actual 
 
10 ON JURISPEUDENCE 
 
 dogmas in themselves. For when we come to test them by 
 the light of all that we have learnt in these ninety years 
 we find that they depend for their truth on assumptions 
 which are very far from being universally true in fact ; and 
 they require qualifications which very much reduce their 
 scientific completeness as social laws. 
 
 The history of the famous analysis of sovereignty, political 
 independence, law, sanction, and forms of government, which 
 Austin has made so familiar to us, is a subject of some 
 interest. Austin has reduced all these notions to their 
 complete form ; but it is well known that he did not 
 discover them. His true merit is that he seized firm hold 
 of these notions as the foundation-stones on which a strict 
 jurisprudence must rest ; and then he kept a tenacious grip 
 on the definitions themselves with a marvellous consistency 
 of hold. What lies in Bentham and Hobbes imbedded in 
 a mass of moral and political discussion stands out in 
 Austin clear cut like the proposition at the head of a 
 problem in geometry. But no one can deny that all the 
 essential features of this dissection of sovereignty, law, 
 political independence, and sanction, are to be found in 
 Bentham, and in a far more distinct form in Hobbes. 
 It has always been assumed that Hobbes (who is so often 
 mentioned and quoted by Austin) was the original author 
 of this method of thought. So far as England is concerned, 
 he probably is. But substantially the same ideas are found 
 i n a much earlier foreign writer, whose influence on European, 
 and indeed on English, thought long remained paramount 
 in that sphere : one whom it is clear that Hobbes had not 
 only read, but had assimilated. This man was the great 
 French lawyer and politician of the sixteenth century. 
 
 John Bodin is usually regarded on the Continent as, with 
 Machiavelli, the founder of modern political philosophy. 
 Bodin was a lawyer of the great law school of Toulouse, who 
 
AUSTIN AND MAINE ON SOVEREIGNTY 11 
 
 rose to office and trust in the court of Henri III of France, 
 and came to England as the adviser of the Duke of Alen9on 
 when he was. here to sue for the hand of Queen Elizabeth. 
 Bodin's work On the Commonwealth was published in French 
 in 1577, in Latin in 1586 under the title De Bepuhlica, and 
 in an English translation in 1605. There are not two 
 opinions as to the originality and power of its reasoning, 
 as to the profusion of learning and historical observation 
 with which it is stored, or as to the vast influence which it 
 exercised for at least a hundred years, until the works of 
 Hobbes and of Locke somewhat superseded it. Mr. Hallam,^ 
 who compares Bodin with Aristotle and MachiaveUi as a 
 political philosopher, tells us that he and Montesquieu ' are, 
 in this province of political theory, the most philosophical 
 of all those who have read so deeply, and the most learned 
 of all those who have thought so much '. With the political 
 philosophy of Bodin we have now nothing to do ; but it is 
 impossible to read the De Repuhlica without seeing how 
 thoroughly the ideas of Hobbes as to sovereignty, poli- 
 tical independence, law, and the normal types of govern- 
 ment, had already become the common property of political 
 thinkers. Those who rate at the highest the philosophical 
 genius of Hobbes can still admit that in the juristic ques- 
 tions before us the relation of Hobbes to Bodin is even 
 closer than the relation of Austin to Hobbes. Germs ot 
 these ideas undoubtedly appear in the discourses of Machia- 
 veUi; but it is not easy to trace them in MachiaveUi in 
 a very definite shape, nor do I know of any original of 
 earlier date. 
 
 A few quotations wiU show how closely Bodin came to 
 
 those notions of Hobbes about sovereignty and law which 
 
 Bentham and Austin subsequently popularized. In thu 
 
 eighth chapter of his first book Bodin undertakes to 
 
 ' Literature of Europe, vol. ii, c. iv. 
 
12 ON JURISPEUDENOE 
 
 analyse the idea of sovereignty, or maiestas, as he calls it 
 in his Latin version. The essence of this he makes to be 
 'an absolute power, not subject to any law'. 'The chief 
 power ', he says, ' given unto a prince with charge and con- 
 dition is not properly sovereignty, nor power absolute.' 
 Here appears Hobbes's aversion to limited monarchy. Bodin 
 then describes the sovereign power as subject to no law but 
 the law of God and of nature, and he gives as the tests and 
 attributes of sovereignty the same general marks that Hobbes 
 gives ; all of them, he says, being summed up in the power 
 to give laws to all subjects, and to receive none from them. 
 ' All the force of law and of custom lieth in the power of 
 him that hath the sovereignty in a commonweal,' and ' all 
 the marks of sovereignty are contained in this, to have 
 power to give laws to all and every one of his subjects, and 
 to receive none from them.' He then very sufficiently treats 
 of the question that no subordinate power, however powerful, 
 can be sovereign, nor can any authority less than the supreme 
 authority of an independent political community. The 
 sovereignty again, he shows, may reside either in a single 
 monarch, or in an aristocracy, or in a sovereign people. 
 
 This famous tripartite division of states was originally 
 propounded by Machiavelli ; but Bodin has worked it out 
 more fully, and his language curiously accords with that of 
 Hobbes. Bodin then gives an analysis of law, which, he 
 says, is, ' The command of the sovereign concerning all his 
 subjects in general or concerning general things ' (the ' or ' 
 here shows a breadth of grasp, indeed a divergence from 
 the view of Austin). Law, he says, ' carryeth with it either 
 reward or punishment ' ; and custom he rightly explained to 
 depend on the sovereign and to owe its force to the confirma- 
 tion by the sovereign ; the power of the magistrate being 
 also a delegated authority. In his words, ' The magistrate 
 next unto the sovereign prince is the principal person in 
 
AUSTIN AND MAINE ON SOVEEEIGNTY 13 
 
 the commonweal, and he upon whom they which had the 
 sovereignty discharged themselves ; communicating unto him 
 the authority, force, and power to command.' 
 
 Now here we have, at any rate in outline, the theory of 
 Hobbes as read in his Leviathan, or the De Cive', and at 
 least the germs of the famous analysis of Bentham and 
 Austin. "We have the firm grasp on the idea of sovereignty 
 as an unlimited power, itself free from law and the source 
 of law, variously distributed in the body politic ; the body 
 politic as essentially independent of all external control 
 whatever; law, custom, and judicial authority as having 
 a power by delegation or implied assent of the sovereign 
 power ; law as being a command of the unlimited sovereign 
 power imposing on the subject body some general rule, and 
 as implying in itself a sanction — such sanction being either 
 reward or punishment, which was Bentham's idea. And, 
 curiously enough, the treatise opens with something very 
 like Bentham's principle of Utility, as where he asks, ' What 
 is the object of the political society?': he replies, 'The 
 greatest good of every individual citizen, which is the same 
 as that of the commonwealth.' 
 
 The history of these ideas is not difficult to trace. When 
 Bodin came to England in 1581, he found his work in such 
 repute that it was taught in London and in Cambridge; 
 and at his death, in 1595, his system was the one which 
 dominated the political thought of Europe. Spinoza, Hobbes, 
 and all the exact and profound thinkers followed him ; and 
 the natural tendency of his severe logic was to strengthen 
 the parties who favoured absolutist theories and that 
 imperialist spirit which played for a century so great a part 
 in the history of European politics. The inevitable reaction 
 followed in the metaphysical conception of a law of nature, 
 anterior, and as it were superior, to the positive law of 
 sovereign authority. This idea had been in terms admitted 
 
14 ON JUEISPEUDENOE 
 
 by Bodin and Hobbes, but in such a way as practically to 
 absorb and supersede any law of nature. 
 
 At the head of the other school stood Grotius, whose 
 anti-absolutist theories were expanded by Locke and the 
 republican school. It is obvious that this recourse to a 
 fictitious law of nature was merely a metaphysical expedient 
 to get some sanction to a legitimate resistance to absolute 
 authority. And however usefiil or efficient in practical 
 politics this theory may have been as a weapon, it was fatal 
 to any strict reasoning in the analysis of sovereignty and 
 law. Under the loose methods of argument, and the recourse 
 to 'the reason of the thing' and to 'natural justice', which 
 were inevitable in this philosophy, the stricter logic of 
 Bodin and Hobbes was lost sight of, until the constructive 
 genius of Bentham seized on the mighty resource of a con- 
 ception of sovereign authority unlimited in power of legisla- 
 tion, and itself anterior to and superior to all law: and 
 finally the dry dogmatism of Austin found a congenial 
 material in the passionless analysis of facts which Hobbes 
 had cast into so hard and abstract a form. Such was the 
 origin of the Austinian analysis. But there was no time 
 when the abstract analysis of social force on which it rests 
 in the pages of Bodin was ever without a regular succession 
 of adherents, or during which it failed to exercise an influ- 
 ence over the thoughtful minds of Europe, and that long 
 after Bodin himself had ceased to be read, and the theory 
 had ceased to be ascribed to him. 
 
 Though we may get rid of the exaggeration which 
 supposes Austin to be the original discoverer of his legal 
 analysis, we must beware of undervaluing his remarkable 
 achievement. He is plainly the first Englishman who 
 detached these general ideas from an elastic political 
 philosophy, or from Utopian schemes of reform. In Austin 
 English law found the first clear conception of an abstract 
 
AUSTIN AND MAINE ON SOVEREIGNTY 15 
 
 jurisprudence; that is, a methodical examination of the 
 general language of the law. Though he occasionally 
 wanders in his first six lectures into moral philosophy 
 and the theory of politics, in the main his lectures deal 
 with law alone in the spirit of a lawyer. His next great 
 merit is to have detached for purposes of study rules of 
 positive law from moral philosophy and from all general 
 political theorizing. It seems to us so easy to keep ethical 
 and legal ideas distinct that we are apt to wonder what 
 merit there could be in insisting on the line of demar- 
 cation. Now that the work is done, and the notion is 
 a familiar commonplace, it seems easy enough. But it 
 was not altogether easy at all times. Under the influence 
 of the theory of the law of nature (indispensable as that 
 theory no doubt was to make head against theocratic and 
 absolutist dogmas) there was a constant tendency to base 
 law either on moral justice or upon natural equity as the 
 reputed parent, or source, or corrector of law. No man 
 of that age ever attempted to generalize about law or 
 its sources without at once breaking into pompous and 
 elastic platitudes. The problem was this : how to get high 
 abstract theories of the underlying conceptions in law 
 without wandering into metaphysical commonplace ? And 
 this problem Austin solved. He insists, usque ad nauseam, 
 that positive law as enforced in courts of justice (and 
 positive law alone) is his subject ; that positive law he 
 traces up to its source in the unlimited sovereign authority 
 of an independent body politic. Law, he says, rests for 
 its title on the unlimited authority of the sovereign in 
 every state to legislate for all citizens of its own com- 
 munity. That unlimited sovereign power is with him an 
 ultimate fact. The form, monarchic, aristocratic, or demo- 
 cratic, is not his concern. Beyond that he will not be 
 dragged : how it came into being is the business of the 
 
16 ON JUEISPEUDENOE 
 
 historian, not of tlie jurist. Law is what that sovereign 
 commands by sanctions ; and that which has no legal 
 sanction is not law. 
 
 But then, he says, taking positive law as an ultimata 
 fact, we can analyse its elements and strictly define its 
 leading conceptions, resources, and distinctions. And this 
 he proceeds to do. It is quite true that in so doing he 
 himself digresses into long and tedious discussions about 
 the law of nature and the law of God: the principle 
 of utility, and the test of morality. All this is perfectly 
 beside his own avowed method, and I think in itself almost 
 worthless. But the current of ideas was too strong for him. 
 He found everybody around him bent on discovering 
 a basis for law in the law of nature or the law of God. 
 He himself insists that law rests on the command of the 
 sovereign. But withal he wastes precious energy in 
 trying to show that the legislator should always be 
 animated by the principle of utility ; and then that the 
 principle of utility will always conform to the law of 
 God, and in any rational use of the term to the law of 
 nature. All this disquisition is needless for his theory, 
 besides being, I think, perfectly idle. But perhaps it was 
 too much to expect an Englishman, thinking upon law 
 in the reign of George IV, to say boldly that law meant 
 the rules which the legislature authorized its tribunals 
 to enforce ; and that what the legislature enforced must 
 be obeyed. It was inevitable that a reasoner seeking to 
 impress these two ideas on his time should fall back on 
 the logic of Hobbes, who coldly said, 'No law can be 
 unjust'. But the horror which for two centuries this 
 maxim excited forced Austin to clothe the unpopular 
 truth in a long digression about the principle of utility, 
 in order to show that there was nothing cynical in what 
 he propounded. 
 
AUSTIN AND MAINE ON SOVEEEIGNTY 17 
 
 It would be an interesting line of inquiry to seek how 
 it came about that so much diflSoulty was in fact experi- 
 enced in dissociating ethical from legal ideas, and why 
 for centuries men shrank back from the very simple 
 proposition that law is what the tribunals of the sovereign 
 enforce on all men, simply as having sovereign authority ; 
 and that law must be obeyed simply because it is law — 
 that is, enforced by penalties. Of course, during all these 
 centuries, law was enforced as a fact, and men obeyed it 
 in fact without a murmur ; but they could not be brought 
 to say so, at least not in solemn and thoughtful trains of 
 reasoning. The reason, I think, is to be looked for in the 
 history, and especially in the religious history, of Europe. 
 In the mediaeval time there had been a variety of vague 
 theories underlying the curious problem presented to 
 thoughtful minds by the question, "Why should men obey 
 the law? Partly, it was said, the law was contained in 
 Revelation, and based on the will of God and the voice 
 of the Church. Again, it was said that law rested on 
 a vague authority of infinite custom going back to the 
 Eoman Empire. Or again, the absolute and divine autho- 
 rity of princes was asserted as a sufficient authority. 
 
 But at the Reformation and the religious wars, and the 
 wars against monarchy, all these bases gave way; the 
 Roman law became more and more inadequate for modern 
 civilization ; it entirely failed as a basis of English or even 
 French and German common law; the theological basis 
 became less and less sufficient, and the prevailing tone 
 was one of resistance to any antecedent right in princes. 
 Nor did the idea of any paramount right in the people 
 satisfy men's minds any better. In this unsettled state 
 of things, for at least two centuries, there was a continual 
 effort to clothe law and judicial authority with a moral 
 or metaphysical dignity, to compensate it for the divine 
 
18 ON JUEISPEUDENCE 
 
 or imperial dignity which it seemed to have lost. Men 
 who fiercely repudiated the claim that the law of the 
 land was based either on royal prerogative or divine reve- 
 lation were eager to believe and persuade mankind that 
 it was based on a natural and eternal justice anterior both 
 to prerogative and to revelation. And both sides, whether 
 republican zealots or sacerdotal absolutists, were equally 
 prone to mix up in one spiritual and temporal power; 
 both sought to use the sword of justice to enforce their 
 own moral ideas, and claimed for their own decrees the 
 sanction of paramount moral right. Hence, for nearly two 
 centuries, all general statements about law involved an 
 inextricable confusion with ethics. It was not until the 
 intellectual battles which led up to, and led down from, 
 the great French Revolution, that the simple idea of 
 social utility began to seem adequate as a basis for law 
 and as an object for legislation. 
 
 Bentham's principle of utility was nothing but the re- 
 cognition of the truth that social well-being is a motive 
 sufficient in itself, whether for the legislator in making 
 the law, or for the citizen in obeying the law. This grand, 
 simple, but somewhat late conception of human society 
 had long, in truth, animated in this country, as in other 
 countries, the political reformers of the age, both before 
 and after the explosion of 1789. And under cover of that 
 dominant school of ideas, Austin at last took heart to 
 propound the simple doctrine which had so scandalized 
 our forefathers : that law, if it is to be understood, must 
 be kept free from morals ; that the bases and sanctions of 
 law and morals are, for logical purposes, totally distinct; 
 and that, if we try to carry the authority of law to any 
 higher and ulterior ground than the will of a sovereign 
 legislature, it simply ceaes to be law. In the language 
 of modern philosophy, law belongs to the sphere of the 
 
AUSTIN AND MAINE ON SOVEREIGNTY 19 
 
 temporal power. If we seek to give law a spiritual (or 
 moral) foundation, we constitute a court of appeal over 
 the highest magistrate, and we weaken the temporal efficacy 
 of the law. The citizen becomes a law to himself, or some 
 other authority than the judge becomes a law to him. In 
 either case he tends to weaken his obedience to law. 
 
 Now these propositions, which seem to us ordinary 
 truisms, were anything but truisms when they were first 
 insisted upon ; and truisms or not, I cannot but think the 
 assiduous reiteration of them by Austin is of the highest 
 possible value to the student who is fresh to law. As 
 a rule, he comes to the study of law from some systematic 
 education in moral and philosophical problems. His almost 
 inevitable inclination is to assume some kind of ethical clue 
 to law, and to attempt to generalize in law by the same 
 logic and in the same spirit in which he has generalized 
 in philosophy. In ethics and in metaphysics authority 
 does not go for much, and a training in ethical and in 
 metaphysical learning is too often the art of remembering 
 which philosopher contradicted this or that philosopher, 
 and in what particular part of his theory. Now in law 
 authority is everything, and the reason of the thing, or 
 philosophical probability, is nothing. There is no greater 
 snare to the young lawyer than a proneness to reason by 
 analogy, or to reason by any imagined standard of justice, 
 that is to say by the light of nature. Ita scriptum est is 
 the Decalogue of the jurist. Principle there is, analogy 
 there is, and a very elaborate system of logical method. 
 But it is a legal principle, a legal analogy, and a legal logic. 
 There is nothing about it at all akin to ethical or philo- 
 sophical reasoning. It is to be acquired by long practice 
 and a refined sense of general rules underlying varying 
 accidents. But law is almost as distinct from ethics as 
 political economy is distinct. And there is nothing which 
 
20 ON JURISPRUDENCE 
 
 can so brace up the mental fibres of the student familiar 
 ■with ethical and philosophical methods as to be plunged 
 into the cold bath of Austin's clear but frigid reiteration 
 of the truth that law means nothing but what the tribunals 
 enforce by the delegated authority of sovereign power, and 
 that nothing not so enforced is of account in law. 
 
 It was natural that the clearest and most logical assertion 
 of this doctrine should come from an Englishman. The 
 England of the eve of the first Reform Act, the profession 
 of Mackintosh and Romilly and Brougham, formed exactly 
 that mental atmosphere where ideas of any vague judicial 
 prerogative were lowest, and ideas of the summary omni- 
 potence of Parliament were highest ; where the letter of 
 the King's printer's statutes and of the cases in the autho- 
 rized reports seemed to be of quite boundless authority; 
 and where the idea of treating as law what had not been 
 recorded in express words or formally promulgated as law, 
 had most utterly receded out of sight. Everywhere on 
 the Continent there is at times visible a tendency to refer 
 law to the unexpressed will of a sovereign ruler, or to some 
 sublime dictates of eternal justice, or to the paramount rule 
 of public safety. To an English lawyer a case or a statute 
 grows to be the one, final, and all-sufficient appeal and test 
 of law. To the English publicist, Parliament presents 
 a phenomenon of power without limit in the range of its 
 capacity and the irresistibility of its force. 
 
 It is unfortunate that this valuable delimitation of the 
 province of law has been mixed up by Austin with a mass 
 of the very matter from which it was his special business 
 to extricate law. But considered from the point of view 
 of the mere jurist the propositions in Austin's first six 
 lectures may be reduced to a few very plain definitions 
 and a small body of argument in support. For this purpose 
 we may neglect almost everything contained in the six 
 
AUSTIN AND MAINE ON SOVEEEIGNTY 31 
 
 lectures, excepting tlie first, the fifth, and the sixth. The 
 second, third, and fourth are almost wholly occupied with 
 what is matter of ethics or of political philosophy. And the 
 reasoning of the first, fifth, and sixth lectures might now 
 be put into much fewer pages. There is no longer (thanks 
 to Austin himself) any danger of confusing moral and legal 
 obligation. No one needs any justification for giving an 
 obedience to the decrees of courts of justice, or doubts that 
 the sovereign legislature can make anything law which 
 it chooses to enforce. No one now attaches any distinct 
 meaning to the vague rhetoric of Blackstone about obeying 
 the law of God when it conflicts with the law of man, or 
 to the slipslop of IJlpian about the law of nature common 
 to men and animals. The work is done ; and therefore 
 it is most unfortunate that Austin's clear assertion of the 
 province of law should still be administered to the student 
 encumbered with so much irritable iteration about the 
 muddiness of Blackstone, and so much needless discussion 
 about the principle of Utility, 
 
 It being conceded that Blackstone wrote and thought in 
 the age of vague commonplace about the ultimate sanction 
 of law and of mysterious veneration of the British con- 
 stitution, it is to be regretted that Austin should fill the 
 mind of the beginner with contempt for a work like the 
 Commentaries on the Laws of England, which is not only 
 in itself a masterly work of art, but is still the only avail- 
 able attempt to cast into a literary form a comprehensive 
 panorama of English law as a whole. Austin was absorbed 
 in keeping his grasp with rigid tenacity on certain coherent 
 conceptions. Blackstone was occupied in arranging the 
 complex labyrinth of English law into such an artistic 
 composition as should at once impress the imagination of 
 his lay readers. And this he has undoubtedly succeeded 
 in accomplishing — and he alone has succeeded. Again, as 
 
22 ON JUEISPEUDENOE 
 
 a practical lawyer, he has, I think, adhered to a scheme 
 of arrangement which, for real convenience, will probably 
 outlast the eiforts of analysis to recast. In the same way 
 Austin's book is, to my mind, disfigured by violent attacks 
 on men like Montesquieu and Hooker, whose purpose was 
 a totally different one from his, who were not considering 
 the law of the law courts at all, and whose very object 
 it was to draw attention to the close analogy between 
 the order enforced by positive enactments and physical 
 penalties, and the order which rests only on the force of 
 moral sanctions and public opinion. 
 
 (ii.) 
 
 When we subtract the invective, now needless, and the 
 excursus into ethics and the like, the first six lectures of 
 Austin rest on a simple ground, and will go into a very 
 moderate compass. If we reduce them to a practical form, 
 divesting them of their highly abstract shape, and thinking 
 only of their utility to the beginner in law, they amount, 
 I believe, to something like the following principles and 
 maxims : — 
 
 In every legal inquiry, the primary necessity is to 
 determine the limits of the sovereign authority by which 
 any legal obligation is ci'eated. That is equivalent in 
 practice to the question of jurisdiction as a preliminary. 
 
 The sovereign authority is determined when we ascertain 
 the definite superior in any independent political society 
 which, as a fact, is habitually obeyed by the bulk of the 
 community, and does not itself obey any higher authority. 
 That amounts to saying that the obligation to obey the 
 laws of a community rests on de facto authority of the 
 power for the time being actually supreme, and habitually 
 exercising the physical police. 
 
 We ascertain what is an independent political society 
 
AUSTIN AND MAINE ON SOVEREIGNTY 23 
 
 when we find the limits and extent of that society which 
 is free from any superior without it, and receives orders 
 from no authority outside of it. That is to say, that we 
 must separate all subordinate authorities from the supreme 
 authority, until we reach back to the ultimate superior 
 which gives, but never receives, commands. 
 
 That supreme authority in every independent community 
 is, for the purposes of the lawyer, regarded first as deter- 
 minate ; and then as of absolute, that is, of unlimited 
 power. There is a popular saying which is equivalent, 
 ' An Act of Parliament can do anything except make a man 
 a woman '. That is to say, the only limits to the absolute 
 power of the legislature lie outside of law altogether; in 
 the case supposed, they are physical. Of course, there are 
 also moral, political, and even international limits to the 
 absolute power of the legislature; and there may be, as 
 matter of history, politics, or political philosophy, no deter- 
 minate sovereign. But there are no limits to the absolute 
 power of the sovereign within the range of municipal law ; 
 or in other words, to the lawyer, there are none. And, to 
 the lawyer, there is always a determinate sovereign. 
 
 Law, for the purposes of the lawyer, is a species of 
 command issued by such a political supreme authority 
 to its political inferiors or subjects habitually obeying it. 
 Nothing that is not a command is law; and nothing 
 commanded by anything but the supreme authority, as 
 already defined, is law. 
 
 The command is the expression of a desire by the sove- 
 reign, or supreme authority, that the subject shall do, or 
 abstain from doing, certain specified acts, or shall recognize 
 a specified line of conduct. 
 
 But the simple expression of a wish is not enough to 
 make a law. It needs a sanction. That is, there must be 
 some evil which the supreme authority will inflict on the 
 subject in case of neglect to observe the wish so expressed. 
 
24 ON JUEISPEUDENOE 
 
 Nor is it sufficient that it should be a simple act to which 
 the command relates. The command must be to do, or to 
 abstain from, acts of a class. 
 
 "When this command is duly accompanied with a sanction, 
 or penalty for neglect to observe it, a legal obligation or 
 duty lies on the subject to obey the command and to 
 observe the rule. 
 
 If the legal obligation, or primary obligation, is violated, 
 the liability of the sanction then arises, and is called a 
 secondary obligation, or liability to punishment. 
 
 These few propositions seem nearly all of solid principle 
 established in the first six lectures of Austin as to the 
 analysis of sovereignty and of law. Summing up the steps 
 in the process they may all be comprised in two propo- 
 sitions. 
 
 (i) The source of all positive law is that definite sovereign 
 authority which exists in every independent political com- 
 munity, and therein exercises de facto the supreme power, 
 being itself unlimited, as a matter of fact, by any limits of 
 positive law. 
 
 (ii) Law is a command relating to the general conduct of 
 the subjects, to which command such sovereign authority 
 has given legal obligation by annexing a sanction, or penalty, 
 in case of neglect. 
 
 Now these propositions are in themselves perfectly simple 
 and almost obvious. They follow from the careful state- 
 ment of the terms employed ; and are only not truisms 
 because they have been so very confusedly conceived in 
 other authors. The value of them to the student of law 
 is this. The proposition or propositions as to sovereignty 
 force on his attention that law is self-contained; that it 
 draws a hard and fast line between all that is law of the 
 land, and all that is without that line. In law there is no 
 ambiguous zone, no no-man's law, as there is in morals and 
 
AUSTIN AND MAINE ON SOVEEEiaNTY 25 
 
 tlie like. Law is perfectly unaccommodating and rigid, as 
 passionless and inexorable as a phenomenon in nature. The 
 lawyer has nothing to do with hard cases. Bad law to him 
 is not inequitable law (to him in his own science there is 
 no such thing), but bad law is a rule falsely supposed to be 
 law. His sole and ultimate standard of good law is the 
 formal command of sovereign force supposed to be irre- 
 sistible and unlimited; 
 
 It is somewhat singular that Austin rather inverts the 
 order in which the analysis of law and sovereignty are 
 taken by him ; and we have intentionally transposed them, 
 speaking first of sovereignty and then of law. I know no 
 sufficient reason why Austin should deviate from the natural 
 order, the order followed _by his own immediate authorities, 
 by Bodin as by Hobbes, who start with the analysis of 
 sovereignty. Austin has perhaps somewhat increased his 
 difficulties by taking law first ; for his analysis of law leads 
 him to exaggerate somewhat the nature of the element of 
 command ; then he has to use forced language to present 
 every law whatever as a command of the sovereign, bringing 
 the penalty into prominence, and lastly he has to accumulate 
 the language of forcible compulsion and of unlimited power 
 in his definition of sovereignty. Without saying that his 
 language in analysing sovereignty is not to be justified, 
 we must observe that he has used language about sovereign 
 power in its capacity of unlimited might, which in effect 
 is somewhat strained. Practically, we know, no sovereign 
 authority is really free to make any law at its own will. 
 And practically many sovereign authorities (such as a theo- 
 cratic despot) are found strictly submitting to a conventional 
 or customary law which they do not pretend that they are 
 free to violate. Now, had Austin begun, like other writers 
 on the theory of politics, by defining sovereignty, he might 
 have avoided such violent phrases as this : ' Every supreme 
 
26 ON JUEISPEUDENCE 
 
 government is legally despotic ' ; a phrase which I do not 
 question as untrue, but which I think rather forced in effect. 
 He might simply have defined the sovereign as the power 
 in every independent community which exercises political 
 authority, which makes and enforces all orders of all kinds, 
 and itself is subject to no orders having legal penalties 
 behind them. 
 
 Why Austin should have found it necessary to fill so 
 large a part of his first six lectures by enforcing, usque ad 
 nauseam, the universal, unlimited, and illimitable despotism 
 of what he calls the sovereign authority, is due, I think, 
 to the' following reason. Blackstone, and the school that 
 he represents, were continually suggesting, in vague lan- 
 guage, that there was a kind of universal law in the air 
 anterior to legislation, and that the English common law 
 in particular was an institution independent of legislative 
 authority. Blackstone even went the length of saying that 
 there was no binding obligation to obey any law that was 
 contrary to the divine precepts. And these authorities 
 were constantly assuming the existence of some binding 
 law of a mysterious quality which no positive legislation 
 could quite supersede. It was the force of this vague 
 feeling which had animated the conservative resistance 
 to the reforming projects of Bentham and others. These 
 men vaguely regarded the old unwritten common law and 
 the legislature as in some sense co-ordinate authorities, and 
 they rather resented the encroachments of the more recent 
 institution — as it seemed — the legislature. 
 
 There is much historical justification for this sentiment. 
 Sir H. Maine has shown that custom is recognized as a bind- 
 ing force before law is recognized ; and, therefore, long 
 before distinct or explicit legislation is recognized. Austin 
 found Bentham and his friends resisted by a body of 
 theorists and politicians who regarded this customary law 
 
AUSTIN AND MAINE ON SOVEREIGNTY 37 
 
 as more ancient, more sacred, than any legislation, and in 
 some sense superior to or independent of legislation. If, 
 in Austin's own day, this idea was dying out, it must be 
 remembered that Austin himself was a contemporary of 
 Sir S. Romilly; that he lived in mental commerce with 
 a generation earlier than his own. To him Blackstone 
 and the defenders of the old constitutional and legal 
 conservatism were living and ever-present realities — ^tha 
 obstacles to all progress and reform — Giants Despair and 
 Doubting. Such I believe to be the explanation of the 
 wearisome iteration with which Austin insists on the some- 
 what obvious position that the sovereign authority is the 
 sole source of all that exercises powers of actual command 
 in a state (i.e. material pressure to enforce its orders), and 
 is itself free from any material or forcible impediment in 
 changing these commands at will. For us this is now 
 a familiar proposition; we have not the opponents that 
 Austin and Bentham had, and we can go lightly over 
 ground on which they laboured so stoutly. 
 
 Let us turn now to the proposition as to Law. Law, 
 says Austin, is everything which this unlimited sovereign 
 authority has recognized as having a binding force, and 
 nothing is law unless it has been so recognized. No 
 custom, or rule of convenience, no maxim of fairness, can 
 make anything law in the absence of this sovereign recog- 
 nition. The test of this recognition lies in this question — 
 what sanction or penalty is incurred by those subjects who 
 neglect to observe the rule ? If there be no penalty, there 
 is no legal obligation, no command and so no law. If there 
 be a penalty for breach of observance, then the obligation 
 is a legal, instead of a moral, one. And in the threefold 
 analysis of law into the correlatives, command, legal obli- 
 gation, sanction, we get attention most usefully directed 
 to the elementary aspects of every rule of law : 1. In what 
 
28 ON JUEISPRUDENCE 
 
 precise form has this rule^ been imposed as imperatiye ? 
 2. On whom, and under what conditions, is the rule binding 
 as a legal obligation ? 3. "What are the consequences in law 
 to those who have neglected to observe that duty ? 
 
 Those who know how difficult it is in practice always 
 to detach in a labyrinth of concrete facts these three 
 elements — as to the positive authority for a rule of law, 
 as to the compass of the legal obligation it creates, as to 
 the consequences of any breach of such obligation — they, 
 I say, will be the first to recognize the value of these initial 
 maxims graven upon the portals of scientific jurisprudence. 
 
 (iii.) 
 
 But these most pregnant definitions have been stated in 
 too absolute a way. They belong to law, and cannot be 
 carried beyond the world in which they spring. The 
 analysis of sovereignty, of independent political societies, 
 and of law contained in Austin's Province of Jurispru- 
 dence is of the highest value, provided that we recognize 
 its relative character, and do not attribute to it complete 
 philosophical truth. If we attempt to give this analysis 
 an absolute value apart from law, or if we take these 
 definitions to be strict and ultimate explanations per se, 
 we are stretching the theory until it snaps. This corollary, 
 or qualification of the theory, is due to Sir H. Maine. 
 
 Shortly stated, the theory of Austin as to sovereignty 
 amounts to this. The force of all law is derived from that 
 ultimate sovereign authority which in every independent 
 political community actually exercises an unlimited power 
 of command and is habitually obeyed by the bulk of the 
 community. Now this proposition seems to me perfectly 
 true, and in fact to be almost a truism, if we understand 
 it in the sense in which it is said : i.e. as true for the lawyer 
 from the point of view of formal and scientific law. And 
 
AUSTIN AND MAINE ON SOVEEEIGNTY 39 
 
 for that very reason it is of such signal use in clearing 
 the brain for the student who comes to law from the study 
 of morals or other branches of social science. But from 
 the point of view of a complete social philosophy, from 
 the point of view of scientific history and scientific politics, 
 the proposition requires so much qualification and correc- 
 tion, that it ceases to be a complete account of the matter 
 at alL In a word, the proposition ought to run somewhat 
 in this way : The business of the lawyer is to consider the 
 force of all law as derived from that ultimate sovereign 
 authority which exercises in all regular and normal com- 
 munities obedient to magistrates (what for purposes of law 
 we assume to he) an unlimited power of command. From 
 the point of view of history, the theory has been subjected 
 to a searching criticism in the close of Sir H. Maine's work 
 on primitive institutions.^ He gives us there a suggestion 
 which seems equally ingenious and fertile : that the theory 
 is true, just as the theories of political economy are true, 
 when understood as resting on a hypothesis: on the 
 assumption that one element of the entire problem is being 
 abstracted for logical purposes from the rest and solved 
 independently. And so, he says, the theory of Austin 
 rests on the assumption that the only side of sovereign 
 power which we are considering is its imperative side, 
 and its means of compelling obedience ; and the only 
 side of legislation we are considering is its unlimited 
 power of laying down the law, and the fact of its being 
 uniformly obeyed. And for the lawyer that is exactly 
 the assumption on which his whole train of reasoning 
 rests. The one thing the lawyer has to do is to arrive 
 at the true legal right and the proper legal remedy, and 
 to attribute to the law as he finds it absolute power, if 
 not absolute wisdom. With any right and wrong — apart 
 ' The Early History of Institutioni, chaps, xii, xiii. 
 
30 ON JUEISPEUDENOE 
 
 from legal right and legal remedy — he has (for the purpose 
 of his own work) nothing whatever to do; nor can he 
 attribute any intention or desire to the sovereign legis- 
 lature except that which it distinctly expresses and also 
 enforces by penalties. For the lawyer, the sovereign 
 author of law is an absolute autocrat, and an autocrat 
 which is omnipotent if not omniscient. It compels every 
 one ; and its power of compulsion is without limit. 
 
 But it is very easy to see that from the point of view 
 of the politician, the moralist, or the historian, or the 
 philosopher, this assumption will not serve, and therefore 
 that the theory itself is not applicable. Socially speaking, 
 we know that if law rested simply on sovereign authority, 
 if it were the whole of the truth, as the Eomans sometimes 
 said, ius est quod iussum est, society would dissolve ; and 
 the law would disappear with it. The lawyer shrinks from 
 that other Eoman definition that ius est id quod iustum, est, 
 precisely as the moralist shrinks from the ius est quod 
 iussum est. But we all know that if law were really or 
 permanently divorced from justice, it would not retain 
 its binding power very long. Socially and politically 
 viewed, the force of law depends on its coinciding with 
 the moral judgement of the society, on its expressing 
 public opinion, as Bentham says on its goodness, on its 
 conforming to the ' general expectation '. Law would not 
 be really imperative, we know, unless, behind the sword 
 of the magistrate, the bulk of mankind felt the weight 
 of social obligation, the irresistible burden of custom, of 
 immemorial tradition and the like, a social and even 
 a religious sanctity. But then the lawyer has to put 
 aside all these forces, for there are occasions on which 
 these forces are doubtful or conflict with the letter of the 
 positive law, and they always tend to warp positive law. 
 On such occasions the lawyer has to follow his text in the 
 
AUSTIN AND MAINE ON SOVEREIGNTY 3i 
 
 statutes or the reports. And thus it comes about that the 
 lawyer has to assume law as resting on the single force 
 of sovereign authority ; whilst in other branches of thought 
 we could only assume this hypothesis with the certainty 
 of ending in confusion and positive error. Politically and 
 socially speaking, law rests on something more than force. 
 Juristically speaking, it rests on force, and force alone. 
 
 Sir H. Maine has shown us, in the chapters quoted, with 
 what strange results we are confronted when we compare 
 this theory of sovereignty with historical facts. The origin 
 of sovereign powers has been almost infinitely varied, and 
 sovereignty is found under the most widely different states 
 of social cohesion. Sovereignty may indeed be brought in 
 all under one general definition in words, but the actual 
 conditions under which that sovereignty is exercised and 
 the actual manifestations of its powers are so strangely 
 disparate in ancient and modern societies, under an Eastern 
 theocracy, or an Athenian Demos, or a British constitution, 
 that the definition itself thus extended becomes purely 
 verbal and hardly explains anything. As Sir H. Maine 
 shows, the theory excludes from view the mass of historical 
 traditions, which in almost every society known to us 
 really gives sovereignty its social efficacy and its dis- 
 tinctive character. 
 
 On the other hand, all this is just what the lawyer has 
 to exclude from his view by a scientific artifice. He is 
 bound to assume that the moral, historical, and social 
 forces which make up so large a part of sovereignty to 
 the philosopher are of no account ; because moral, historical, 
 and social authority cannot make forensic law ; and some- 
 times it conflicts with law as laid down by judges; or 
 darkens law, as law is understood by a modern lawyer. 
 
 And furthermore, the proposition, or assumption, that 
 there is always discoverable in every political society 
 
32 ON JURISPEUDENOE 
 
 a determinate sovereign, can only be fitted on to some 
 extreme forms of societies at the opposite pole to that of 
 our Western civilization, by the use of explanations and 
 ingenuities which reduce the statement to a merely verbal 
 meaning. Here, again, we have a further proof that the 
 theory is relative to the purpose of the modem lawyer, 
 and is only adapted to societies in a condition similar to 
 our own. In other words, it must be read with this 
 postulate, the lawyer of civilized states has to assume, that 
 the force of all law is derived from the determinate and 
 formally constituted sovereign authority of the state. 
 
 Nor is the assumption that this determinate sovereign 
 power is unlimited at all more true outside the strict 
 province of law. It is obvious that society implies a 
 mass of conditions, limits, and obligations lying upon the 
 sovereign authority. The theory may be stretched until 
 it bursts when we suggest, as Sir H. Maine points out 
 the Austinian analysis of sovereignty implies, that the 
 Sovereign in Parliament might pass a statute for the 
 slaughter of weakly children. No sovereign, as a fact, 
 has unlimited power ; no sovereign, not even a despot 
 with a disturbed brain, or the Greek tyrant who is typically 
 spoken of as a sort of wild beast, but is bound by a multitude 
 of limitations, which in fact are stronger than any formal law. 
 The most absolute despot of whom we have any knowledge, 
 such as a Sultan in a purely Mahometan country, blindly 
 obeyed in all things spiritual and temporal, the absolute 
 master in theory of the bodies, and souls, and property, 
 the beliefs, the acts, the ritual, and the labour of his 
 subjects, is usually himself the slave of a code of traditional 
 observance. This unwritten code is the object of more 
 mysterious veneration than any modern body of law ; it 
 is not definitely enforced by any courts of justice ; it is 
 armed with no definable sanction ; it reminds us of that un- 
 
AUSTIN AND MAINE ON SOVEEEIGNTY 33 
 
 nameable sanction of the law parliamentary, as Mr. Speaker 
 said, 'God in heaven only knows what would happen' if 
 the obligations of it were violated : and there is often no 
 man or body of persons who have any power to change it, 
 or in whose will it resides. Indeed, it is easy to imagine 
 cases, and they abound in ancient and in Eastern history, 
 in which the actual de facto sovereign, i. e. the sole and 
 ultimate depository of all physical power, is regarded as 
 the enemy of law ; and his irresistible commands are con- 
 trasted with some unembodied undefined mass of usages or 
 observances which are supposed to be the law, but of which 
 no one pretends to be the authorized exponent, and which 
 no one pretends to be able to change or to enforce. 
 
 These considerations show that Austin's conception of 
 sovereignty deliberately excludes every other aspect of 
 sovereignty except that of its legislative power ; and that 
 the conception has no place, and even no meaning, if taken 
 to be a truth in social philosophy. It is intended to draw 
 attention to this — that the limitations on sovereign power 
 are not legal limitations, that what obligations the sovereign 
 power is under are not legal obligations, are enforced by 
 sanctions of different kinds, but not the sanctions of the 
 law courts. The consideration of the limits on the sove- 
 reign power carries us outside of law courts, and therefore 
 outside of law. If the sovereign be really sovereign, it will 
 be able to compel its own law courts to enforce its own 
 laws. Therefore, to the lawyer, and for purposes of law, 
 the sovereign is unlimited. Any limitations of this sove- 
 reignty lie wholly outside the lawyer's province. 
 
 Austin's definition of sovereignty itself perhaps allows 
 for that element of possible limitation on sovereign power 
 by conditions external to law, in the clause in which he 
 speaks of it as being habitually obeyed by the bulk of the 
 community. "We know as a fact that every conceivable 
 
34 ON JURISPEUDENOE 
 
 type of sovereignty would only be obeyed by the bulk of 
 the community within certain limits. No despot of ancient 
 or modern times would be at all obeyed in some conceivable 
 commands. Not only the bulk of the community, but the 
 entire community would utterly defy him and refuse 
 obedience, if he gave certain orders. Czar, Sultan, an 
 emperor like Caligula, the old king of the Assassins, or 
 the late King of Dahomey, all have limits perfectly known 
 to all men, within which alone they can issue commands 
 that will be obeyed. In theory Parliament, or King, Lords, 
 and Commons, are omnipotent in England ; but we all 
 know that the bulk of the community would only obey 
 an Act of Parliament within certain limits. A law of 
 outrageous injustice and cruelty would be universally defied, 
 even if regularly passed. Consequently there is a certain 
 ambiguity in saying that the sovereign is ' that authority 
 which is habitually obeyed by the bulk of the community ', 
 and then that this sovereign is ' unlimited ', because there 
 are very strict limits to the habitual obedience everywhere. 
 If we took this proposition as holding good in political 
 philosophy, it would be a sophism. But for law it is 
 strictly true. No theory of scientific law can hold good 
 for social convulsions, states of anarchy, rudimentary theo- 
 cracies, or barbarous tribes. And the reason is this. Any 
 scientific law implies the regular action of established law 
 courts ; and in states like those supposed there are not 
 regular law courts. When the theory breaks down, then 
 we have passed into a social sphere where ' law ', as we 
 mean law in law courts, has ended ; or has not begun. 
 
 There is, too, another qualification with which the theory 
 has to be guarded. Cases may be imagined of societies ' 
 very widely different from our own, in which the theory 
 can only be applied, if it is applied at all, by a violent 
 straining of language, or by a series of artificial postulates. 
 
AUSTIN AND MAINE ON SOVEEEiaNTY 35 
 
 There can be supposed societies in which the political forces 
 are too ambiguous to admit of precisely determining the 
 sovereignty, or to which some historical accident has given 
 a form hardly political ; as where the legislative force is 
 practically absorbed in the force of custom or undefined 
 habit, with no recognized sanction and no official inter- 
 preter. And some societies are so very rudimentary, or so 
 very unstable, or so very minute, that the theory becomes 
 ridiculous if strained to apply to them. Now this would be 
 a fatal objection to any law in social philosophy pretending 
 to explain the conditions under which men live in society. 
 But it is no objection at all to a theory which professes 
 only to explain the phenomena of law as law is understood 
 in the law courts of civilized states. Law is, after all, 
 a perfectly artificial set of rules, suited to the practical 
 conveniences of civilized men, and the product of infinite 
 accidents, compromises, and adaptations. It is irrational 
 to look for generalizations in this sphere, such as belong 
 to the eternal relations of human nature under all terrestrial 
 conditions. 
 
 The generalizations of law are, therefore, only meant to 
 apply to such highly civilized communities as have, except 
 in moments of anarchy: (1) a perfectly defined centre of 
 sovereign power ; (2) where the spheres of positive law and 
 of moral obligation are habitually treated as separate ; (3) 
 in which the resources of the tribunals and the range of 
 their power are perfectly marked and generally recognized. 
 It is very easy to imagine political societies in which these 
 elements are held, as it were, in solution, in which the 
 standard of right and wrong and the decrees of the tribunals 
 seem mutually interchangeable, or where they inextricably 
 overlap ; where the moral and political forces are in unstable 
 equilibrium, so that one of the two sometimes seems to 
 disappear or to be transformed into the other ; where the 
 
36 ON JUEISPEUDENCE 
 
 practical sovereignty seems to be personal caprice ; or where 
 the only sovereign seems to be habit without force at all, 
 and even without will at all. We can imagine such political 
 societies ; and to the historian and to the social philosopher 
 they are exceedingly fruitful fields of study. But the lawyer 
 finds that they do not present examples of law as understood 
 in civilized states. They lie as completely outside the 
 sphere of his work as societies of beavers or republics of 
 rooks. 
 
 The result is that the Austin analysis of sovereignty is 
 a perfectly sound conception when read in the light of 
 the assumptions by which it is qualified, and limited to 
 the sphere to which it belongs. It belongs strictly to law ; 
 and the assumptions or hypotheses on which it depends 
 are : (1) that the lawyer is considering sovereignty only 
 on the side of force ; (2) that for his purpose he assumes 
 the force it exerts to be unlimited; (3) and that he is 
 considering force only as it is applied by the tribunals 
 of settled modern societies. With these assumptions the 
 proposition as to sovereignty is strictly unassailable. But 
 as a general proposition of human society, without the 
 prefixed qualifications, in a word, treated as a philosophical 
 principle, it is quite assailable and not very intelligible. 
 A real step has been taken in the history of scientific 
 jurisprudence when Sir H. Maine pointed out the con- 
 ditions under which the definition of Austin must be read — 
 conditions, I think, rather ignored by Austin himself We 
 now know that the historical and political difficulties in 
 the path of Austin's doctrines are difficulties to it only 
 when regarded as an absolute truth, and do not diminish 
 its relative value to the student of modern law, in strictly 
 marking out to him the limits of the field before him. 
 
CHAPTEE II 
 
 AUSTIN'S ANALYSIS OF LAW 
 
 We have spoken of Austin's Definition of Sovereignty. 
 We will pass to tlie second of his leading propositions, the 
 definition and analysis of law. In this he is the editor 
 and expositor of Bentham, who himself follows Hobbes. 
 Gathering up their statements, the combined results amount 
 to this : Law is a general command, which the determinate 
 Sovereign, or supreme political authority of a State, has 
 imposed as an obligation on all, or a part of, its subjects, 
 and which command it enforces by a sanction. 
 
 Austin insists that law involves always these three 
 elements, which in law are correlative and mutually imply 
 each other : (1) command, (2) obligation, (3) sanction. And 
 the whole depends on the sovereign authority of an inde- 
 pendent political community, such sovereign being possessed 
 of unlimited power. 
 
 This analysis of law is open to observations similar to 
 those already made as to the proposition about sovereignty. 
 That is to say, it must be understood from the point of view 
 of the lawyer, and as being only one of the aspects of the 
 question. If we regard it as a truth of social philosophy, 
 or if we look at it as true absolutely without qualification, 
 we shall get into conftision. And if we take it to be a strict 
 or complete definition of law, we shall find it inadequate. 
 The proposition is most useful in drawing attention to 
 this : (1) That law is always a matter of necessity — it is 
 never ought, but always must; in that sense it is always 
 and everywhere imperative. (2) The important side of law 
 
38 ON JUEISPRUDENOE 
 
 is not so much right as duty, i. e. the one invariable element 
 of all law is the compass and incidence of the obligation 
 which it imposes — whom does it bind, and what does it bind 
 him or them to do? (3) The third element, everywhere 
 present in law, is. What is the legal consequence of neglecting 
 or breaking the obligation ? What is the sanction or penalty 
 on disobedience to the command ? 
 
 Now these three elements are always present in every 
 law; and they are of primary importance to the lawyer. 
 But, then, this is only one way of looking at law. It 
 purposely drops out of view other very important sides of 
 law. And, it is obvious, there are some cases in which it is 
 so exceedingly one-sided, and requires so much qualification 
 and explanation, that it would be actively misleading if 
 taken by itself 
 
 In fact, neither Austin's account of law, nor that of 
 sovereignty, is to be taken as a definition strictly; much 
 less as true in any absolute way. And his account of law 
 is perhaps open to larger qualification and needs even more 
 explanation than his account of sovereignty. 
 
 In the first place, the word law, it has been repeatedly 
 pointed out, always involves the two notions of (1) command, 
 (2) order (in the sense of regularity). So, too, the modem 
 word order implies sometimes command; sometimes regu- 
 larity or arrangement. In all languages, and for almost all 
 branches of thought, order suggests the two ideas of force 
 and uniformity. And law does the same. In the lectures 
 already cited Sir H. Maine points out how completely 
 ingrained into our modern fibre of thought is the notion 
 that law implies uniformity. 
 
 Now when Austin insists that law is a command, and that 
 all law is imperative, he is forcing attention on this one side 
 of law, viz. force ; and he rather puts away that side of law 
 by which it implies regularity. Montesquieu and others 
 
AUSTIN'S ANALYSIS OF LAW 39 
 
 whom Austin assails with such fury were engaged, for a very- 
 different purpose, in drawing attention to the uniformity 
 implied in the word law. And so much confusion has been 
 cast upon the law of the jurists by those who talked vaguely 
 of the law of nature and the spirit of equity, that Austin 
 was naturally driven back with energy on the position that 
 nothing is law (i. e. law of the jurist) unless it have force — 
 unless it be a command with a sanction of punishment. 
 
 But then, although nothing is law unless it have the force 
 of a command, it does not at all follow that the other side, 
 regularity, can be left out of view in law. On the one hand, 
 no regularity can be called by the jurist a law, unless it be 
 commanded by a political sovereign ; on the other hand, no 
 command whatever is a law, unless it have the element of 
 regularity or generality. This Austin recognizes when he 
 says that every law must be a general, not a particular 
 command, even if it be addressed to one person and not 
 several. In the same way Bodin, the original author of 
 this analysis of sovereignty and law, says that law is 
 ' a command of the Sovereign to all the subjects in general 
 or concerning general things '. The idea of general rule is 
 an indispensable feature of law. Thus, Austin's account of 
 law, that it is a species of command, tends to put out of sight 
 the co-ordinate idea of general rule-, and may be easily 
 misunderstood as making the idea of general rule subordi- 
 nate rather than co-ordiuate, if we were to take it as 
 amounting to a strict definition. 
 
 Now there are a great many aspects of law in which this 
 element of general rule (always present in law) comes to the 
 front in a preponderating way, and in which the element 
 of command recedes from prominence until it might almost 
 be said to be latent. And in these cases to say baldly that 
 ' Law is a species of command ', as Bentham and Austin say, 
 involves so much qualification and assumption that language 
 
40 ON JUEISPEUDENOE 
 
 is violently strained, and the description retains little more 
 than verbal accuracy. Not only does the element of com- 
 mand, but with it that of obligation and of sanction, become 
 sometimes so little active that a superficial view would 
 imagine them absent altogether. They can only be traced 
 by a good deal of indirect inquiry, and by discovering them 
 at last as the ultimate consequence of one or two antecedent 
 suppositions. There is always an evil in presenting as a 
 definition for any general term some element in it which 
 at times can only be detected by a somewhat subtle series 
 of hypotheses, or which is sometimes present in an indirect 
 way. There are cases in which almost the only element 
 directly apparent in law is that of a general rule which the 
 courts of law recognize. Recognition by courts of law 
 involves ultimately all the elements on which Austin insists ; 
 but it is in some of these cases a very indirect process which 
 exhibits either command, obligation, or sanction, in any but 
 a potential state of existence. 
 
 Take the case of the enormous number of enabling statutes, 
 of laws conferring franchises, of laws affecting status, of laws 
 merely laying down general rules for the interpretation of 
 instruments or for the guidance of courts of justice and the 
 like. In all of these the idea of command and sanction can 
 only be traced by an indirect method. For instance, by 
 26 and 27 Vict. c. 120 it is enacted, that benefices of which 
 the Lord Chancellor has the presentation may be sold in 
 a certain way. Now this is undoubtedly a law. But the 
 prima facie and direct aspect of this law is a general rule 
 which the courts of justice recognize. Directly viewed, it is 
 hard to say what command is given. No one is forced to do 
 anything except in the indirect way ; and, if some official 
 does something in his discretion, he shall do it under specific 
 conditions. No person is put under any legal obligation 
 directly. It is entirely a matter of discretion whether any 
 
AUSTIN'S ANALYSIS OF LAW 41 
 
 benefice be sold or not — there is no legal obligation on any 
 person to sell. There is no sanction imposed on any person 
 directly. No one is under penalty if he neglect to sell any 
 benefice. The entire enactment is permissive and enabling 
 throughout. Nothing new certainly is commanded. Some- 
 thing new is permitted at the discretion of certain officials. 
 And if they think fit to do it, they may do it in a given way. 
 No command is imposed, no sanction specified for doing it 
 in any other way. The law remains just as it was except 
 for the case specified. It may be said, that the act repeals 
 a tacit law not to sell the Crown property, and relieves 
 certain officials from the sanction which they would other- 
 wise incur by an unauthorized sale of Crown property. 
 Austin argues that permissive laws restore some persons to 
 rights, and impose corresponding duties to protect those 
 rights; and thus all permissive laws are really (though 
 indirectly) imperative. But how could it be argued that 
 this statute enabling ofiicials in their discretion to sell 
 Crown property, otherwise unsaleable, restored them to any 
 rights of which the law had previously deprived them ; and 
 commanded all other persons to respect this revised right 
 of theirs by corresponding obligations ? All this is highly 
 circuitous, and a violent straining of language. 
 
 No doubt there is an element of command, of obligation, 
 of sanction, in this statute under certain possible circum- 
 stances. If the permission to sell is acted on, the sale must 
 be in a specified way, all officials concerned and the public 
 generally are under the obligation to conform to the specified 
 mode if there be a sale ; and the Courts of Justice will so far 
 enforce this obligation by a sanction, in that they will order 
 anything done otherwise than in conformity with this obliga- 
 tion to be treated as undone. But all this is very circuitous. 
 Prima facie the statute is a general rule enabling something 
 to be done, if certain persons think fit to do it ; imposing no 
 
42 ON JUEISPEUDENOE 
 
 new obligation at all, and certainly reviving no anterior 
 right. Austin declares tliat there are no laws simply 
 creating rights ; so we cannot say that this statute conferred 
 the new right to sell Crown property. Although we can 
 easily discover in this enactment a potential command, an 
 unexpressed obligation, and a dormant sanction, it is not 
 the direct character of this law. Prima facie it is a general 
 rule to be recognized by Courts of Law. 
 
 Now an immense body of modern laws are permissive and 
 enabling or directing laws of this kind. Take such a statute 
 as that for the formation of new parishes under 6 and 7 Vict, 
 c. 37, and subsequent Acts. This is undoubtedly a law. 
 Certain things may be done, and certain ways are pointed 
 out in which they may be done. But where is the Command ? 
 "Where is the Obligation? Where is the Sanction? No 
 doubt a little ingenuity can detect these elements. Prima 
 facie no one is ordered to do anything. No one is bound to 
 do anything. No penalty is imposed either for doing or for 
 not doing. 'All laws impose acts or forbearances,' says 
 Austin. "What act or forbearance is imposed by the State 
 enabling the formation of new parishes at the discretion of 
 the Ecclesiastical Commissioners and the Bishop ? All that 
 we can say is that if the Commissioners and the Bishop do 
 exercise their discretion, and in so doing follow the terms 
 of the statute, then the parishioners concerned and the 
 public have imposed on them the duty of acting on the 
 footing of such decision and of forbearing from interfering 
 with it. But all this is exceedingly roundabout. 
 
 Take the law relating to qualifications for various public 
 duties— say that of juror. Every man of a certain age, 
 having a property of a certain value and kind, is qualified 
 to serve on a jury. This is a law. Where is the Command ? 
 Where the Obligation? Where the Sanction? No doubt 
 a man so qualified is bound to serve (exemptions apart), but 
 
AUSTIN'S ANALYSIS OF LAW 43 
 
 only if the sheriff shall summon him. The sheriff may be 
 said to be commanded to summon men so qualified, and 
 none but such men. If it were shown that a jury had sat 
 which improperly contained men not so qualified, a remedy 
 would be found, though none is specified; and so far a 
 sanction would be imposed. But all this is highly indirect. 
 Prima facie the law is a general rule to which courts of 
 justice will give effect. 
 
 Let us suppose the Female Suffrage Bill to become law. 
 In that case there would be a new law, the whole of which 
 would be, that in Parliamentary Electoral Acts the word 
 ' person ' shall imply female as well as male person. Now 
 here is a law of a very important kind. Where is the 
 Command ? It may be said, that every official concerned is 
 commanded to include qualified women in every case in 
 which he would include qualified men, and the public are 
 commanded to forbear from any Act which proceeds on the 
 footing that women have not parliamentary franchises. 
 But this is very indirect. When we speak of laws relating 
 to certain persons or classes, and imposing obligations, we 
 usually think of the obligation as imposed on the persons 
 concerned, not as imposed on the officials who administer 
 the law. Thus a law imposing the penalty of death for 
 murder is usually taken to be a command, imposing on all 
 subjects the obligation of abstaining from murder; the 
 sanction for the breach of this obligation being hanging. 
 It would be an odd inversion of terms to regard this law as 
 being a command imposing on sheriff and judge the obliga- 
 tion of arresting and sentencing the murderer, the sanction 
 of this obligation being the penalty for breach of official 
 duty. And yet in the Female Suffrage Bill and the like it 
 is difficult to see what command is imposed or what sanction 
 or evil is threatened to the class, or rather sex, to which the 
 Bill directly relates, or on whom any Command or Sanction 
 
44 ON JUEISPEUDENCE 
 
 is imposed, except on the unnamed officials whose business 
 it is to see the law administered. 
 
 Again, take the case of laws relating to.judicial construc- 
 tion and procedure. Let us examine, say, the Rule in Shelley's 
 case. Here is a law of great importance.^ "Where is the 
 command? What duty does it impose, and on whom? 
 What is the penalty for breach of its order ? No doubt the 
 judges are required by it to construe a deed or will in a 
 particular way. In one sense we may say that the public 
 is bound to construe all documents in obedience to it — 
 though this is somewhat forced. But, if they neglect to do 
 this, what is the evil they have to fear? We may say 
 a lawsuit, and the prospect of having to undo all that they 
 have done, or to refund all they have received, in contraven- 
 tion to the Rule in Shelley's case. But all this is remote 
 and purely inferential. The Rule in Shelley's case does not 
 say anything of the kind, and does not give any one the 
 remotest clue to discover what penalty would be incurred 
 by violating it or acting in ignorance of it. 
 
 Now the Rule in Shelley's case is not a single example. 
 The immense body of the law relating to wills and the 
 construction of written documents stands upon the same 
 basis. The same observation might be extended to a very 
 large proportion of the work of courts of equity, and to the 
 bulk of the rules relating to the conveyance of property, 
 to trusts, infancy, and account. Take such ordinary text- 
 books as Jarman on Wills, Lewin on Trusts, Sugden's 
 Vendors and Purchasers, Morgan's Practice, or the like, we 
 
 ' The rule is as follows : Where an estate is limited in such a way as 
 to confer a particular estate, and this limitation is followed either 
 mediately or immediately by a subsequent limitation to the heirs, or the 
 heirs of the body of the holder of the particular estate ; then the words 
 heirs, or heirs of the tody, shall be words of limitation and not of 
 purchase. 
 
AUSTIN'S ANALYSIS OF LAW 45 
 
 shall find an immense body of laws (at least rules of law) 
 which it would be very difficult to say were primarily 
 commands, imposing a legal duty under threat of a penalty. 
 Take the case of a statute of naturalization or legitimation. 
 A law simply declares that the sons or descendants of AB 
 shall be held to be legitimate, or that A, B, and C shall be 
 held to be natural-born subjects of the Crown. Or a law 
 may confer franchises or capacities ; as that aliens can hold 
 real estate, or that Jews may vote or hold offices. Austin 
 insists that there are no laws simply conferring rights. But 
 the obligations imposed by these laws are rather indirect, 
 and the sanctions or evils threatened on breach of the 
 obligation are still more indirect. All that we can say is 
 that all persons are commanded to act upon the footing 
 that the persons described in the Act are legitimate, or are 
 natural-born British subjects; and if they fail so to act, 
 the courts of justice will by appropriate orders rectify all 
 proceedings taken in contravention of this rule, and oblige 
 all persons to conform to it. But all this is exceedingly 
 forced and circuitous. 
 
 There are very serious objections to any definition or 
 description of general ideas which require long and guarded 
 explanations to make them apply. Definitions ought to 
 have the salient feature always in marked prominence. 
 In all criminal laws it is very easy to see at once the 
 command, the obligation, and the sanction. If burglary, 
 or breaking a dwelling-house by night, is made punishable 
 by penal servitude, it is plain that all subjects are com- 
 manded to abstain from so breaking dwelling-houses, under 
 pain, if they violate this negative duty, of undergoing 
 the penalty of penal servitude. It is significant that 
 Austin's examples almost invariably turn on criminal law. 
 But when we quit the ground of criminal law we find 
 an immense proportion of the rules of law in which the 
 
46 ON JUEISPEUDENOE 
 
 command and the sanction are far from being obvious. 
 And I suppose that these rules of law are to the rest in 
 the proportion of about ten to one. 
 
 I am far from saying that Austin's analysis of law 
 cannot be applied to all these cases, or that it actually 
 breaks down. He himself allows that there are laws which 
 are not on the surface commands, inasmuch as they are 
 permissive, or abrogate other laws, or are purely decla- 
 ratory. But it is difficult to bring the rules of inheritance, 
 and the thousands of rules of similar kinds, or the rules 
 as to the qualifications of jurors or voters, under any of 
 these three classes. There is a sense in which Austin's 
 account of law applies to all the cases named. Every 
 rule of law, of whatever kind, lays down a hard and fast 
 line ; it is not advice ; it is not an ideal or a custom, or 
 an example of any kind. It provides that something is 
 to be observed as a fixed rule, and the courts have power 
 to make it observed by force, and in that sense it is 
 imperative. The Bule in Shelley's case is of binding au- 
 thority immutably against every subject within the juris- 
 diction, and for every settlement interpreted by the English 
 rules of real property. In that sense it is a command. 
 And although no penalty is imposed on those who doubt 
 the Bule in Shelley's case, or on those who choose to 
 disregard it, the courts always have a remedy for non- 
 recognition of it, and can compel all who may disregard 
 it in act to submit to it with all its consequences. 
 
 But as all this is a somewhat oblique way of looking 
 at it, and as an immense body of rules of law stand on 
 the same footing, it would seem better in any definition 
 of law always to keep in sight both aspects of the notion 
 of law, i. e. the command and the uniformity, and not to 
 rely specially on the notion of command, which is fre- 
 quently kept in reserve. So again, there are many masses 
 
AUSTIN'S ANALYSIS OF LAW 47 
 
 of law in which the obligations they create only appear 
 indirectly and by inference ; their direct and obvious 
 operation is to confer capacities. Lastly, there are the 
 vast majority of the rules of law, the important aspect 
 of which is not the implied or remote sanctions by which 
 they are guarded, so much as the various results and 
 ulterior, rights and obligations which flow from them. 
 
 Now it is possible to frame a description of law which 
 shall combine the two aspects of command and rule ; and 
 which, without losing sight of the obligation and the sanc- 
 tion, should admit notice of those capacities and their 
 consequences, the only direct product of so many rules 
 of law. It might run thus : Law is a general rule respect- 
 ing the property, person, reputation, or capacity of the citizens 
 of a state, which the sovereign power therein will cause to he 
 observed by the authority it delegates to its tribunals {or, will 
 enforce in its tribunals). 
 
 It will be seen that this definition adds the subject of 
 law to jnark it off from administrative orders equally 
 issued and enforced by the political sovereign. It adds 
 the term tribunals to distinguish the sanctions imposed 
 by courts of justice from those of discipline. And it 
 resolves a general command into a general rule which is 
 caused to be observed ; so as to keep pari passu the double 
 notion in law of regularity and ot force. 
 
 It seems a serious defect in Austin's account of law, 
 that it fails to distinguish laws from purely executive 
 rules, standing orders and the like ; and that it fails to 
 distinguish the sanction of executive and administrative 
 discipline from the sanctions of the law courts. It is 
 singular to find him speaking, by a rather liberal use of 
 language, of orders issued by public departments as being 
 really laws, although not so called. 
 
 Here especially precision of language and thought are 
 
48 ON JUEISPEUDENCE 
 
 needed. It is peculiarly unfortunate that Austin has treated 
 these questions somewhat meagrely, and that he makes 
 light of the great distinction drawn by almost all publicists 
 between laws of the law courts and administrative regula- 
 tions. No doubt Blackstone had emphasized the distinction 
 between the executive and legislative powers : and this 
 was often enough to make Austin deny a proposition by 
 repulsion. Perhaps Blackstone has used too popular lan- 
 guage in defining the respective seats of these two powers. 
 Yet I cannot but think it a misfortune that Austin stopped 
 where he did in correcting Blackstone ; and, having shown 
 that both are derived from the same sovereign, did not go 
 on to point out the immense importance for the lawyer 
 of the difference between the rules enforced by courts of 
 justice, which are laws, and rules enforced by executive 
 powers, which are regulations. Unluckily by not following 
 up this distinction, Austin's definition of law covers these 
 regulations with which the lawyer has nothing to do. 
 And thus his definition of law does not strictly relate to 
 the law of the lawyer. 
 
 It is easy to see how Austin came to this result. His 
 mind was so much fixed on the political sovereignty, on 
 the sanction by political force, and on the command given 
 by delegated authority that he disregarded the important 
 subdistinction of the nature of the sanction and the kind 
 of command. It is no doubt true that the authority of 
 tho legislative, judicial, and executive forces can be all 
 directly traced up to the same source. The political sove- 
 reign alike imposes all three by more or less direct 
 machinery. And .Austin is quite justified in saying that 
 from the point of view of political sovereignty, the dis- 
 tinction is not to be carried far. But from the point of 
 view of the lawyer, it is a crucial distinction. Austin's 
 analysis of law is sufficient for the purposes of political 
 
AUSTIN'S ANALYSIS OF LAW 49 
 
 pMlosopliy, for the purposes of Bodin, or Hobbes, and 
 even of Bentham, as a law reformer ; but it is not sufficient 
 for the purposes of strict jurisprudence. It might have 
 suggested to Austin that, as a scientific lawyer, he had 
 stopped too soon in his analysis. His definition was left 
 in too high and too general a region, for it includes a mass 
 of matter which courts of law decline to recognize. 
 
 Austin defines law as a command directly or indirectly 
 imposed by the supreme authority on political inferiors, 
 commanding an act or a forbearance. Thus a rule that 
 judges of the superior courts will only hear parties in 
 person or by counsel called to the bar is (Austin would 
 say) a rule of law. Undoubtedly a court of appeal would 
 make it observed, and might conceivably decide a case 
 in conformity to it. They would enforce this rule of law. 
 But take a rule made by the Commander-in-Chief with 
 the delegated authority of the Minister of War, and ulti- 
 mately the delegated authority of the political sovereign, 
 to the effect that only men standing five feet five inches 
 will lie enlisted in infantry regiments. This is not a law 
 — it is a rule of the service. Courts of law will not observe 
 it, or cause it to be observed. If it be violated, courts 
 of law decline to give any remedy. No one could complain 
 to the courts of law that he had been excluded from the 
 army by it, or that he was not subject to the rule. Yet 
 such a standing order of the Horse Guards seems within 
 Austin's definition of the law : it is a command of a general 
 kind indirectly imposed by the delegated authority of the 
 sovereign on political inferiors. Anything done in con- 
 travention to this general order would no doubt be remedied 
 by the proper political superior ; and its observance would 
 be enforced by that superior by means of the proper 
 sanctions. But these would not be the sanctions of the courts 
 of law. They would be administrative, not legal, sanc- 
 
 2)69 G 
 
50 ON JUEISPEUDENGE 
 
 tions : dismissal from the service, loss of pension, and the 
 like — not fine or imprisonment. "We know the efforts 
 which have been made to bring acts of administrative 
 discipline within the view of courts of law. But courts 
 decline to interfere with administrative acts. All that 
 they do is to see that persons are not exposed to injury 
 in person, property, capacity, or reputation by a fraudulent 
 or malicious perversion of administrative discretion. 
 
 The cases are separated by a distinct but often narrow 
 partition. Every one of a certain age, and possessing 
 certain property, is qualified to serve on a jury. This is 
 a law. Law courts see that this is enforced by legal 
 sanction. Every one of a certain age and height and 
 physical development is qualified to serve in a line regi- 
 ment. This is not a law. Law courts do not recognize 
 this rule. The "War Office and the Horse Guards do. Yet 
 both rules are set by the political sovereign to political 
 inferiors, both apply to subjects generally, and both are 
 enforced by the political force of the State and effective 
 sanctions. Austin's definition of law therefore covers both. 
 The rules as to the qualifications of electors for Parliament 
 are undoubtedly laws. They have frequently been revised 
 in the various Reform Acts. The rule that the House of 
 Commons must originate a money bill is not a law in the 
 eyes of law courts; nor are the standing orders of the 
 House of Commons. If a conscription were enacted for 
 England, the liability to serve would be defined by a law ; 
 the exemptions as to age and the like would be laws, or 
 parts of a law ; yet the exemptions as to physical develop- 
 ment, duly made by the "War Ofl6.ce, would not be laws, 
 because law courts would take no notice of them, although 
 in every other particular they would resemble the rest of the 
 rules made by the indirect authority delegated by the 
 legislature to political ministers. 
 
AUSTIN'S ANALYSIS OF LAW 51 
 
 These are not isolated exceptions. There is a vast body 
 of rules of an administrative kind which it is most essential 
 for the lawyer to distinguish from laws. These rules are 
 not simply in the great departments of State ; there are 
 numerous collections of regulations under municipal au- 
 thority, others of certain corporations recognized as having 
 public character. If these rules are by-laws made under 
 a statutory authority, they are laws, and as such are 
 recognized by courts. Otherwise they are merely disci- 
 plinary regulations. None of them are laws in the sense 
 that the sanction of them is applied by law courts. The 
 sanction in all such cases is often very sharp and effective, 
 but it is disciplinary, not judicial. Courts of law decline 
 to review, or give effect to, or modify these sanctions. It 
 is of primary importance for the lawyer to be alive to these 
 distinctions between disciplinary and judicial sanctions, 
 and to remember that many public regulations, enforced 
 by political superiors, are not laws. There may be com- 
 mand, obligation, sanction, and yet no law, as law is under- 
 stood by lawyers. 
 
 There is not a little inconvenience in introducing into 
 the definition the term law courts, or tribunals. There 
 is something of ignotum per ignotius in it. But, I believe, 
 there is no help for it. It will be found impossible to 
 frame any definition of law without using, as a test or 
 limit, the powers exercised by courts of law. There is no 
 general principle which will serve to show uniformly what 
 rules have a judicial sanction and are enforced by courts 
 of law, and what are only enforced by executive sanctions 
 or by public officers who are not judges. The distinction 
 is of the utmost importance to the lawyer, but it can only 
 be tested by the question, Will the courts of justice cause 
 the rule to be observed, and will they find a remedy for 
 breach of it ? The cases often run exceedingly close, and 
 
53 ON JUEISPEUDENOE 
 
 it is difficult sometimes to give an answer to this question. 
 We are familiar with the highly interesting cases in which 
 the municipal and constitutional law touch, or the Parlia- 
 mentary touches, on the judicial sanction: as the cases 
 where it is a matter of nice determination whether the 
 courts of law or one or both Houses of Parliament form 
 the tribunal ; the cases whether the discretion of a public 
 official has been bona fide exercised, or whether the mode 
 of carrying out a rule can be reviewed by courts of law ; 
 such cases as those which occasionally arise as to the 
 sanction to the rules made by inns of court or universities, 
 or ecclesiastical corporations, and the like. The extremely 
 nice distinctions which these cases raise, show us, I think, 
 that we cannot rely on principle to define strictly a law, 
 in the juristic sense or the forensic sense, unless we recur 
 to the test, Will the courts of justice provide for its being 
 observed ? 
 
 There are some other provisoes with which I think it 
 necessary to guard Austin's analyses of primary legal 
 notions, and some precautions taken lest we attribute to 
 them an absolute value. His famous analysis of right and 
 duty, of absolute and relative duties, and his lectures on 
 the division of rights into ius in rem and ius in personam, 
 are exceedingly useful examples of an abstract treatment 
 of concrete notions. But I think these analyses are open 
 to the following observations. In the first place, they are 
 decidedly too abstract, remain too high up in the region 
 of metaphysics, to be practically used as modes of grouping 
 by the lawyer. The lawyer wants divisions of law much 
 more close to his concrete rules. In the second place, 
 these divisions do not enable us strictly to group all law. 
 They are not exhaustive scientific divisions ; or they can 
 only be strained to cover every form of legal rule by an 
 effort of ingenuity and a forcing of language which 
 
AUSTIN'S ANALYSIS OF LAW 53 
 
 seriously destroy their practical usefulness. In the third 
 place, great as is the value of these analyses, they are 
 valuable, I think, for logical, rather than for technical 
 purposes. And it seems to me that great confusion would 
 arise from any attempt to distribute any body of law in 
 accordance with the principle. Austin, at times, uses 
 language as if he would actually draw up a code of English 
 law divided into the sections, and following the order, 
 which this analysis suggests. I cannot but think that this 
 would be perfectly confusing in practice, even if it did not 
 revolutionize the broad modes of arrangement which 
 lawyers have followed since the days of Gains. But in 
 addition to this, the analysis cannot be strictly applied 
 with scientific precision to the whole body of any corpus 
 iuris. 
 
 The following examples will show the diflS.culties which 
 such an attempt presents. Every law, says Austin, is 
 a command of a sovereign body, whereby it imposes an 
 oiligation to do or to forbear, and which it enforces by 
 a sanction. Command, duty, sanction, are correlative and 
 imply each other. Every law imposes a duty ; but every 
 duty does not confer a. right. A duty may correspond 
 with no right ; it is then an absolute duty. An absolute 
 duty is always enforced criminally. If it correspond with 
 a right, it is a relative duty, and belongs to the civil law. 
 In the civil law, therefore, duty and right are correlative 
 terms. That is to say, in the civil law (as opposed to 
 criminal) every law creates a right as well as a duty. 
 A right is vested in a person when another, or others, 
 are bound or obliged by the law to do or to forbear, towards 
 or in regard of Mm. A right is either ius in rem or ius 
 in personam. If the former, every one is bound generally ; 
 if the latter, a determinate person or class are bound, 
 towards or in regard of him. 
 
54 ON JUEISPEUDENOE 
 
 Such, is Austin's classification of laws. Now examination 
 will show a mass of rules in the civil law which can only 
 be strained on this Procrustean bed by a rather severe use 
 of legal torture. 
 
 Every law, says Austin, creates an obligation; every 
 obligation is either absolute or relative. Every absolute 
 obligation is enforced by criminal law. Every rule of civil 
 law creates a relative obligation, i.e. one with, a corre- 
 sponding right. And every right is in rem, or in personam ; 
 i.e. avails generally, or against a determinate person or 
 class. Now let us take one of the most important of laws — 
 every will must he in writing. This is clearly a rule of the 
 ci-cil law. The obligation lies on the intending testator 
 to write, not to enunciate, his will. It is (since it is in 
 civil law) a relative obligation ; it has a right corresponding 
 to it. What is that right ? In whom does it reside ? Is it 
 a right in rem or in personam ? Of course no one entitled 
 under the will can have any legal right, or bring an action 
 to compel a testator to make his will in writing ; nor can 
 any one interfere with any one who may choose to make 
 his will in any form, or not to make it at all. All that 
 we can say is that the person who may ultimately be 
 entitled at law to any property which an intending testator 
 may leave at his death, if he were intestate, will have a 
 right not to be deprived of it by a document short of a legal 
 will duly executed in writing. But nemo est heres viventis ; 
 and if a fanciful testator chose to execute his will in an 
 allegorical picture, it might be fifty years before any de- 
 terminable person or persons could be said to have a right 
 to dispute the picture. It is a very circuitous way of look- 
 ing at things to say that the rule — every will must he in 
 writing — creates a specific ius in rem or ius in personam in 
 any determinate person of a definite description. 
 
 Again, we may take the Rule in Shelley's case already 
 
AQSTIN'S ANALYSIS OF LAW 55 
 
 mentioned (p. 44), or any rule as to the interpretation of 
 documents. The rule is clearly a rule of civil law. What 
 is the right which it confers? In whom does the right 
 reside, and of what class is it? As we have seen above 
 (p. 46), it is rather a straining of language to say, that by 
 this rule of law the sovereign commands any one to do or 
 to forbear, and imposes an obligation by means of a sanction. 
 But assuming that we can say that the rule commands all 
 persons to forbear from disturbing the enjoyment of any 
 person who would be entitled to an estate in fee, or an 
 estate in tail, under a settlement if it be read by the light 
 of the Bule in Shelley's case, it is of course a relative 
 obligation, and has a corresponding right. What is the 
 corresponding right, and in whom does it reside ? It might 
 be said that the rule creates a right in favour of such 
 persons as by means of the rule obtain an estate in fee 
 or in tail. But this is a forced use of language. Primarily, 
 the object of this rule of law is not to create rights; 
 but to establish uniformity in the interpretation of docu- 
 ments. 
 
 It is a rule of law that a legacy given to the witness of 
 a will is void. How are we to throw this into the language 
 of right and obligation ? We may say that every testator 
 lies under the obligation (is commanded by the sovereign) 
 to abstain from making an intended legatee a witness, or 
 a witness a legatee, under the sanction of disappointing 
 the object of his bounty, and having his legacy set aside 
 by courts of law. But where is the corresponding right ? 
 The intended legatee can have no legal right. All we 
 can say is, that those entitled to the testator's estate in 
 default of the legacy taking effect, have a right to retain 
 any legacy given by a document of which the legatee is 
 himself a witness. But all this is a violent and unnatural 
 straining of a plain rule. The rule is not designed primarily 
 
56 ON JUEISPEUDENCE 
 
 to give any one any rights, but simply to protect the public 
 against wills and bequests made under undue influence. 
 
 Similarly, we might go through a mass of rules of law 
 relating to wills, and it would be difficult in many cases 
 to say what right they directly created, and still more 
 difficult to say if this were a right in rem or in personam. 
 Doubtless at the end of a long chain of possible cases some 
 one might ultimately be found to have • a right, which but 
 for this rule he would not have had. But is this saying 
 more than that, under every rule of law which courts of 
 law will enforce, some one may receive a benefit, which 
 benefit or right he may be in a position to enforce ? There 
 is some awkwardness in asserting in an absolute way that 
 every law necessarily creates a specific right, where the 
 right or benefit ultimately arising is often so remote as 
 well as so exceedingly indirect. For example, the body 
 of the rules of evidence has been codified or suggested in 
 Sir J. F. Stephen's well-known book. We may take any 
 simple rule as to the attestation of a document. What 
 right does such a rule confer, and on whom? Doubtless 
 every law requiring proof of a document in a certain way 
 creates a right in every person whose interest it may be 
 that the document should not be proved at all. But this 
 is exceedingly indirect. How determine the person on 
 whom the law confers this right? There are thousands 
 of cases, say in the friendly administration of property, 
 in which the rules as to the attestation of a document 
 simply cause inconvenience to every one concerned. It 
 may be against every one's interest that this obligation 
 should be enforced ; unless we say that the public, or the 
 sovereign, have an interest and the right to enforce the 
 rule. But, in Austin's language, the sovereign has no 
 rights. 
 
 There is a common maxim in equity, Whatever is duly 
 
AUSTIN'S ANALYSIS OF LAW 57 
 
 directed to be done is regarded as having been done. Let 
 us assume that applied to a case of administrative judicial 
 business. It may be difficult to trace any specific right 
 directly created thereby. It will in result ultimately affect 
 rights. But it is not the object of the rule to create any 
 specific right in any determinate person of a specified class, 
 either in rem or in personam. There are similar rules as 
 to the registration of deeds and the like. A deed affecting 
 real estate in Middlesex must be registered. A deed of 
 gift is made without consideration, and it remains un- 
 registered. "What kind of right is created by this rule, 
 and in whom does it reside ? A gift of realty to a charity 
 not duly enrolled is void. What right is created by this 
 law, and in whom is it vested ? The intending donor may 
 be said to lie under the obligation of duly registering or 
 enrolling his deed of gift, under the sanction of having 
 his gift set aside. Here the only person, other than the 
 public or sovereign, who has any interest in enforcing 
 this obligation is the party receiving. Yet he has no right. 
 For if the giver neglected or refused to register or enrol 
 his deed of gift the object of his bounty could not compel 
 him to do so, or to deliver to him the deed for the purpose, 
 nor could any one else. Nor could the sovereign enforce 
 it criminally. There seems therefore to be no specific 
 right directly and necessarily created by this rule, and 
 vested in some ascertainable person or class of a particular 
 description. 
 
 The fact is, that there is an enormous body of rules of 
 law the direct effect of which is not to confer an interest 
 or benefit on any person or body of persons, but to promote 
 the general convenience and to provide against remote 
 public inconvenience. In all such cases we cannot say 
 that the law confers any right unless by a needless straining 
 of language. For it will hardly do to say that it confers 
 
58 ON JUEISPEUDENOE 
 
 the right on the public. The public in this case can only 
 be the sovereign, and according to Austin's theory the 
 sovereign cannot confer a right on himself. Besides, all 
 laws ex hypotJiesi exist for the public convenience. Laws 
 would not be passed unless the public good required the 
 conferring of the right. And more, this public interest 
 cannot amount to a legal right. A legal right is one which 
 some party can enforce by process. But if a deed of gift 
 of lands be not enrolled in due course and within due 
 period, no one could enforce this being done by process. 
 Nor can the public or the State enforce it. There is no 
 criminal breach of obligation. The test of the existence 
 of a legal right is the power of some person to bring an 
 action to have it maintained. In the case of such non- 
 enrolment, of non-attestation of a will, of attestation by 
 legatees, and thousands of such cases, no one can bring an 
 action, nor can the sovereign prosecute criminally. There 
 is consequently a civil law, but no legal right. In other 
 words, in the civil law right and obligation are not strictly 
 correlative, do not directly and necessarily imply each other 
 in every conceivable case. 
 
 On the other hand, there are rules of law where the right 
 is very prominent, but where the legal obligation is in an 
 extremely potential form. There is a rule of law that 
 persons holding certain property are entitled to vote, say, 
 for parish officers or members of Parliament. This rule 
 of law confers a right, a right against the world, in Austin's 
 language. But where is the obligation ? An obligation is 
 liability to a sanction ; a sanction is an evil to be endured. 
 Who is made liable to an evil ? What is the evil ? All we 
 can say is that all subjects are commanded to abstain from 
 preventing persons so qualified from exercising their right 
 to vote. This is singularly indirect and circumlocutory. 
 And does it amount to more than the general postulate 
 
AUSTIN'S ANALYSIS OF LAW 59 
 
 of all law, viz. that every subject is required to abstain 
 from acting in contravention to any rule of law whatever ? 
 But this is not enough. Suppose men to use every effort 
 short of force to prevent persons from duly exercising their 
 right, what is the evil they have to fear ? And if there be 
 no legal evil, there is no legal obligation. An effort in 
 general is not enough to call out any sanction. Of course 
 if men forcibly obstruct persons exercising their right, or 
 officials recording the vote, or being officials refuse to 
 accept it, some evil might be incurred, but it would be 
 under some other rule of law with its own specific sanction. 
 The sanction would hardly be incurred under this law. 
 
 Again, the rules — what is directed to he done has been 
 done ; forty years shall give good title for specified purposes ; 
 no action for debt shall be brought more than six years after 
 acJcnowledgement ; the rules of inheritance or the rules 
 under the Statute of Distributions ; the rule that an agree- 
 ment without consideration is invalid; and thousands of 
 such rules, may be said indeed to create an obligation, 
 but only by a violent straining of language, or else the 
 obligation is simply that general obligation which all law 
 implies to conform one's conduct to the law. There is no 
 specific obligation, to do or to forbear from doing anything, 
 discoverable in the rule of law itself. And the sanction or 
 evil is nothing discoverable in the law or rule itself. It 
 is nothing determined or determinable. The only evil to 
 be feared arises in the possible case of some interest of 
 some person being traced back ultimately to depend on 
 a fact which implied violation of the rule, and which 
 interest is therefore prejudiced by enforcing the rule. 
 
 It is very easy to say that the law punishing theft with 
 imprisonment implies a command not to thieve, an obligation 
 to abstain from thieving, a liability to the evil of imprison- 
 ment (or sanction) if that obligation is violated. Over and 
 
60 ON JUEISPEUDENOE 
 
 above this, there is the general rule of law to abstain from 
 any responsibility for, or complicity in, any act founded 
 on theft, under the general sanction of having that act 
 set aside to your prejudice. It will be seen that there 
 are a multitude of rules of law which admit only this 
 indirect, and not the direct, form of obligation and sanction. 
 
 Laws purely permissive — and these are ever increasing, — 
 laws declaratory — and under this head we may bring a mass 
 of rules of judicial interpretation or for judicial guidance : 
 rules of procedure, rules for public convenience, rules con- 
 ferring faculties, and rules conferring privileges — cannot 
 (without such violence to language as makes it worthless) 
 be brought under any strict partition of all law into rights 
 and obligations. 
 
 We may feel some doubt as to the famous position which 
 Austin emphasizes, that the sovereign never can be subject 
 to law, can have no rights, can lie under no obligatioiis ; 
 that a sovereign government has no legal duties, and cannot 
 have legal rights, as respects its subjects. This will prove 
 to be a matter of language. And it seems to me that it 
 directs attention too exclusively to the element of force 
 in the theory of law. If we conceive law as a regular and 
 constant rule which is enforced in law courts, it is hard 
 to see any objection to the supposing that rule enforced 
 even to the particular loss or detriment of the sovereign 
 or , State. Force has to a great extent disappeared in 
 modern societies from the sphere of law. And if the 
 sovereign consider that his general good is best attained 
 by acquiescing in the observance of any general rule, we 
 need not abandon the ordinary language of law in cases 
 of claims by or against the sovereign. No doubt the 
 sovereign or State, being supreme, might refuse to execute 
 any rule of law or the decision of the judge to its own loss. 
 But the State might equally refuse to execute any other 
 
AUSTIN'S ANALYSIS OF LAW 61 
 
 decision. The State, it is said, is not bound by any law, 
 because sooner than submit to the sanction, it will repeal 
 the law or ignore the right. But the State can repeal any 
 law, and ignore any right. And it is contrary to the facts 
 to say that the State will not submit to the sanction, or 
 will ignore the right. 
 
 The State exacts the sanctions and enforces rights, to its 
 own loss, when the rights are judicially declared and the 
 sanctions are legally incurred, precisely as it does in the 
 case of two litigant subjects. If the Sovereign State borrows 
 money at 3 per cent, it incurs a legal obligation to pay 3 per 
 cent, and confers on the fund-holder a legal right. As a 
 matter of fact, if a creditor of the Sovereign State be not 
 paid what is due to him, he can sue the Sovereign State for 
 his money, and on proof of the debt due the court will 
 decree payment by the State, and the State will enforce 
 payment by the usual process with some slight differences 
 in form, precisely as if A and B owed and lent the money. 
 I see no use in denying that this is a legal right and a legal 
 obligation, because the right is against that corporate body, 
 which ultimately makes the laws and executes, or causes 
 execution of judgements. It is true the State might pass 
 a law that nobody shall pay his debts, or that the State 
 should not pay its debts, or it might simply decline to 
 execute judgement or to suffer the decision to issue in 
 process. But it might do all this just as much HA sued B. 
 Every legal right implies that it exists subject to the con- 
 ceivable possibility of the State abrogating the right, or 
 refusing to give it effect. So long as the courts continue 
 to give legal validity to a right, and so long as the executive 
 continues to give legal effect to an obligation, we ought to 
 call the one a legal right, and the other a legal obligation. 
 And it is of no importance that, in certain cases, the State 
 may have a grotesque kind of temptation to cease to respect 
 
62 ON JUEISPRUDENOE 
 
 the legal right, or to cease to give effect to legal obligations. 
 More especially since in all civilized countries it passes as 
 a matter of course that the State pays no heed to the con- 
 ceivable temptation, but carries out the decisions of the 
 courts, exactly in the same way, whether it have a special 
 interest in the case or not. 
 
 The distinction between rights in rem and rights in per- 
 sonam, an improvement on the classification of the classical 
 jurists into dominia and obligationes, which was invented by 
 the later civilians and has been so properly insisted on 
 by Austin, is undoubtedly a distinction of great importance. 
 It is clearly more logical than the classical distinction, and 
 is in every way more accurate for analytic purposes. A legal 
 right in rem, which a determined party has, and which every 
 one is bound to respect and to abstain from disturbing, and 
 a legal right in personam, which that party can enforce 
 against some particular party, do essentially differ in nature ; 
 and the distinction is one which exhausts the sphere of 
 rights. But then we must remember that it is a purely 
 analytic division. The Roman division into dominia and 
 obligationes, on the contrary, is a concrete or practical 
 division. Now it is important to keep in view that this 
 analytic division, and, in like manner, most of the analytic 
 groupings of Austin, have only an abstract or logical value, 
 and that they are usually inapplicable to the concrete 
 purposes of technical law. This observation applies to a 
 great deal of Austin's discussions. His division and the 
 Roman division are not in the same sphere. And in 
 criticizing the grouping of the Institutes, of Blackstone 
 and of others, he seems to forget the totally different 
 purposes which he and those writers had in view. His 
 business was to give a logical analysis of legal ideas. Their 
 business was to arrange the rules of law into convenient 
 groups of kindred subjects. But logical analysis cannot be 
 
AUSTIN'S ANALYSIS OF LAW 63 
 
 made the basis of a practical arrangement; nor can the 
 corpiis iuris in any system be classified with reference to 
 a purely logical analysis. 
 
 Jurisprudence can be placed no higher than a systematic 
 arrangement of rules established by practical convenience ; 
 and the attempt to base it on psychological principles, or 
 theories of abstract logic, seems arbitrary and quite illusory. 
 Practical convenience is the source of law ; and technical 
 convenience is the aim of all classification of law. The 
 attempt to force metaphysical precision on a body of 
 technical rules would be a mischievous form of pedantry. 
 
 The analysis of rights into those which avail generally 
 and those which avail against specific parties is exceedingly 
 useful to clear the head. But a little reflection will show 
 us that these rights are inextricably mixed up in many 
 legal subjects, and are continually giving rise to each other, 
 or mutually interchange with each other. Take the simple 
 case of sale. It is clear that the rights in personam, invariably 
 arising from the transaction, are bound up with rights arising 
 from the title to goods generally which arises on completion. 
 The same may be said of mortgage, when we look at mortgage 
 rights as a whole, taking in both the mutual rights of the 
 lender and the borrower and the title which the mortgage 
 affects. The rights of a parent over children also combine 
 rights of the general and of the specific class. The rights 
 of the husband over the property of the wife are analogous 
 in the sense that out of the same event arise the rights 
 which the husband has in respect of the wife, and those 
 which he has generally. The entire body of law of succession 
 necessarily introduces a similar commixture of general and 
 specific rights. Of course partnership does, or may do, the 
 same. Indeed, there are very few titles in law in which 
 there would not be found some admixture of rights general 
 and rights specific. 
 
64 ON JUEISPEUDENOE 
 
 There would be an incalculable inconvenience in prac- 
 tically separating the body of rights which are general 
 from those which are specific. Instead of having the body 
 of rules relating to partnership, to sale, to mortgage, brought 
 together in accessible groups, we should have a statement of 
 general rights arising on sale, and at the other end of the 
 corpus iuris, specific rights arising on sale. Thus at one 
 end of the code so framed we should have the rule that the 
 sale of a specific movable is a conveyance, and transfers 
 a general right of ownership, and at the other end of the 
 code would come the rule that the buyer has a specific 
 right in personam against the seller to compel him to 
 complete his title. 
 
 It seems to me no answer to this objection to say 
 (as I understand Austin to do) that there is a sort of 
 ambiguous zone, a class of subjects which cannot be arranged 
 under this division of rights. Examination would show a 
 very large proportion of legal subjects which comprises 
 both classes of rights. The division of the Institutes, pre- 
 tending to no such logical accuracy, can divide its groups 
 of doctrines into those which relate to ownership (with the 
 transfer, subdivision, and acquisition of ownership) and 
 those which relate to transactions between specific parties. 
 And using this practical distinction, G-aius and Justinian 
 are not troubled by the fact that under ownership come 
 many doctrines which relate to contract, and under obliga- 
 tion many doctrines which relate to ownership and general 
 title. The broad divisions of legal subjects are as old at 
 least as Gains, and probably as old as Cicero and his masters 
 in the law. They have in some sort been the basis of every 
 system of jurisprudence which the world has seen. They 
 have passed into the mental habit not only of the jurists of 
 every system, but of the ordinary thought and speech of 
 laymen in every race. It would breed the worst kinds of 
 
AUSTIN'S ANALYSIS OF LAW 65 
 
 confusion if the distinctions proper to abstract analysis 
 ever came to supersede the old distinctions of practical 
 classification. 
 
 If we were to follow out in the arrangement of a body of 
 law the analytic schemes of Bentham or Austin, we should 
 open our code with rules as to general rights of protection 
 of the reputation ; then we should have a portion, but not 
 the whole, of the law relating to family ; next the law of 
 ownership, and with it the law of servitudes ; after that, 
 according to one view, the law of mortgage ; next the law 
 of contracts ; then the rest of the law of persons — ^that is, 
 of parent and child, husband and wife, of trusteeship and 
 guardianship ; and lastly, inheritance, succession, testa- 
 ments, and legacies, and, I presume, bankruptcy. There 
 can be no useful purpose in thus recasting the corpus iuris, 
 when for the sake of some logical consistency we sever the 
 rules of law which have been always associated, divide the 
 law of family into two, end with legacies, and begin with 
 the law of libel. The great masters of analysis are often 
 blind to the havoc which they make in practical con- 
 venience, when they seek to make logical distinctions bear 
 the weight of working classification and practical divisions. 
 
 There is, I think, a perfectly sound reason for the collapse 
 of any attempt to divide law (or indeed anything else) on 
 any strict theory of rights. Of all constructions of the 
 human mind the doctrine of Eight is perhaps that idea 
 which has led to the greatest amount of sophism and 
 equivocation. A philosopher has proposed to expunge the 
 word Eight altogether as a mere source of confusion. It is 
 in moral and political science that the principal confusion of 
 right has arisen. The source of the confusion is sufficiently 
 obvious. Eight is a word describing the claim of a particular 
 person or body of persons to have some advantage or interest 
 appropriated or specifically secured to him or them. But in 
 
66 ON JURISPEUDENCE 
 
 moral and political things, as indeed in almost all human 
 things, the particular person can only be contemplated as 
 a social being, one of a complex society, and everything he 
 does or has involves the element of co-operation with, or 
 association with, other social beings. Every advantage or 
 interest of such a social being is necessarily entangled with 
 the advantages or interests of other social beings ; is limited 
 by their similar rights ; and implies the equivalent tribute 
 from the individual of their rights to others. In a society, 
 like that of man, perpetually changing and advancing, the 
 equation, as it were, between the rights of A and the rights 
 of 5, C, and D is perpetually varying. And, what is more, 
 to secure A in an absolute way his specific advantage may 
 involve the utmost injury to B, C, and D, and, very likely 
 also, to other advantages and interests of A himself. 
 
 The reason why right is a claim so formidable and often 
 so suicidal I suppose is this — that right implies the severing 
 out of the common stock of human advantages some portion, 
 and appropriating it individually to one person. But since 
 human advantages are a sort of common stock, the result of 
 common co-operation, they are very often only to be enjoyed 
 by not effecting this severance into portions. To insist on 
 rights is thus like insisting on the partition of something 
 held in undivided shares, the advantage of which thing is 
 destroyed by the partition. Thus if the three co-owners of 
 a house, or a horse, or a steam-engine, insisted on exacting 
 their individual rights, and on severing and appropriating 
 the advantage of each by taking one-third physical part of 
 the house, or the horse, or the engine, the advantage would 
 disappear, and the right of each would end in the injury of 
 all. No doubt it is for the common and individual advantage 
 that a certain qualified or relative advantage should be 
 appropriated to individuals within certain limits. But there 
 never is any unlimited appropriation without reference to 
 
AUSTIN'S ANALYSIS OF LAW 67 
 
 any other advantage. That is to say, there is no absolute 
 right in fact. All rights are equally qualified and relative. 
 In other words, if right means absolute appropriation, there 
 are no strict rights. All rights exist subject to the qualifica- 
 tion that they do not become incompatible with other rights. 
 A man has a right to his liberty, provided his liberty to use 
 his hands in perfect freedom is not found to infringe on 
 other people's liberty, or the enjoyment of person or 
 property. And so the right of free contract is limited by 
 a number of qualifications. There is really no such thing 
 as a pure or true right. Every claim of an individual in 
 a state of society to any personal advantage is necessarily 
 limited by the qualification, that the appropriation to him 
 of that advantage is not to be incompatible with the 
 advantages and interests of others in the society. 
 
 In morals and in politics the doctrine of right becomes 
 such a network of qualifications, counterpoising duties, and 
 compensations, that nothing solid can be based on it. But 
 in law (and from law the notion of right undoubtedly invaded 
 the other provinces) right has more meaning. In law, right 
 means that a Court of Justice will compel all men to yield 
 you the particular advantage guaranteed to you by public 
 rules, or that it will compel some given party to do so. And 
 in law the right is very nearly absolute. Usually a Court 
 of Justice will compel men to yield you your legal advantage, 
 without on the other hand compelling you to yield any 
 corresponding advantage, and will secure the enjoyment to 
 you however socially mischievous be your use of it, and 
 however much it injure you or injure others. For instance, 
 the owner of a pigsty could not in law be forced to sell it 
 even for £10,000 to allow a railway or an embankment to 
 be made, unless the pigsty were within the lands to be taken 
 by an Act. And law courts would not interfere if the owner 
 in fee simple of a forest set it on fire, or if the owner of an 
 
68 ON JUEISPEUDENCE 
 
 estate sowed his corn-land with salt. Still we can easily 
 see that this is not really carried out in an absolute way. 
 The law of nuisance, of obstruction, public convenience, and 
 the rest ; the rule that one who comes to equity must do 
 equity ; the rule that the court will not order certain things 
 to be done if they will injure to a given extent certain 
 persons or the public; the rule that the court will never 
 altogether lose sight of public policy : all these show that 
 even in law right is never quite absolute. 
 
 Hence, even in law, right never means more than that the 
 courts will enforce a given claim to an individual advantage, 
 provided the doing so does not work some countervailing 
 disadvantage to others of overwhelming and specific kinds. 
 But it is clear from this that law must include a great deal 
 which is not within the sphere of right. Law is not simply 
 concerned with the securing to certain individuals or groups 
 of individuals certain advantages or goods. Law in the 
 widest sense exists for the purpose of securing the general 
 welfare of the community. Let us ask any practical man 
 the question — What is a law? apart, for the moment, from 
 any analysis of law into command, obligation, and sanction. 
 A law, he will say, is obviously a general rule as to some 
 physical act or thing which law courts require to be observed 
 in the common interest of all. Of necessity this must include 
 a great number of rules which are not, or, at least, are not 
 directly, designed for the securing of any particular interest 
 of any individual (that is for any right). The entire group 
 of rules or provisions of an instrumental kind — definitions, 
 general maxims of law, the whole of procedure, the rules as 
 to the machinery and form of the material acts or things 
 which come within the survey of law, rules for the general 
 protection of the public, and thousands of others — will have 
 no direct purpose except that of providing for the general 
 convenience by enforcing a common observance. If we say 
 
AUSTIN'S ANALYSIS OF LAW 69 
 
 ' every will must be in writing ', or ' every cheque must bear 
 a stamp', or 'the agreements of trades unions will not be 
 enforced apart from specific legislation ', &c., &c., it seems 
 an idle waste of ingenuity to force any of these rules into 
 a form in which they might seem to create rights. What 
 they do, and what they profess to do, is to provide a fixed 
 rule of observance with a view to public convenience, and 
 no doubt with a view of ultimately simplifying rights and 
 possibly of protecting rights. But since rights both in rem 
 and in personam may ultimately arise or may be protected 
 by any of these rules, any attempt to use ' right ' as a basis 
 for classifying all law, or all civil law, will certainly fail. 
 
 A considerable part of the notes of Austin's lectures and 
 of Bentham's treatises are taken up with discussions as to the 
 proper position of this or that portion of the law in a general 
 corpus iuris. These discussions are, I think, most useful, 
 if W9 look at them as intended to clear the head, and as 
 keeping the mind of the student continually open to the 
 idea of some kind of a classification, and of a possible corpus 
 iuris of some kind. But the discussions do not seem so 
 useful if we look at them as a practical scheme for arranging 
 all or any law in a code, much less in a code of English law. 
 Of course in English law there is at present no sort of serial 
 classification at all. To the practitioner it is a matter of 
 as little importance whether the law of testamentary 
 succession come before the law of contract or follow it, 
 as in what local order the text-books stand on his shelves. 
 And in the at present inorganic condition of English law, 
 any actual scheme of classification as a working plan is 
 rather premature. Certain changes in the substance of the 
 law, not greater than those which our generation has 
 witnessed, in the reform of real property law, in the 
 Judicature Act, and in Bankruptcy, might seriously modify 
 the scheme in which English law ought to be arranged. 
 
70 ON JUEISPRUDENCE 
 
 If it were enacted that real estate should pass together 
 with personalty to the executor ; if the division of movable 
 and immovable property were substituted for that into real 
 and personal ; if mortgage became a real charge, instead 
 of a conditional assignment of ownership, these or analogous 
 changes in the law might seriously alter the mode in which 
 the law under these heads should be arranged. 
 
 But it seems more than doubtful if any general scheme 
 of classification of law can be devised equally applicable 
 to all systems. That certain principles of classification may 
 be laid down, as extremely useful guides for systematizing 
 any given body of law, is no doubt certain. But systems 
 of municipal law differ so much that we may fairly doubt 
 the possibility of any common classification. A mortgage 
 in English law differs totally from a mortgage in Eoman 
 law; bankruptcy has proceeded in various systems on all 
 sorts of bases ; theft at Rome gave rise to a civil action ; 
 libel may in English law give rise to civil or criminal 
 proceedings ; testamentary succession has been founded, 
 and may be founded, on a variety of theories. "Where large 
 portions of any given system of law may have cardinal 
 principles so remote from those of the corresponding portions 
 of other systems, it seems hard to assume that there can be 
 any single and universal scheme of classification. The 
 arrangement of the corpus iuris of any system ought to 
 depend in many things on practical convenience. It will 
 be illusory to attempt an exact distribution of it by logical 
 analysis of an abstract kind. And for practical reasons it 
 is of immense importance to respect those practical methods 
 of grouping which are familiar to lawyers and laymen, and 
 which have been sanctioned by so many centuries of actual 
 experience. 
 
CHAPTEE III 
 
 THE HISTORICAL METHOD 
 
 When the intellectual characteristics of the last century 
 come hereafter to be contrasted with those of the ages 
 preceding, this period will, perhaps, be chiefly remembered 
 in the record of human thought as an age of historical 
 activity. In every department of thought the historical 
 bent was manifest ; and nowhere is this more true than in 
 law. The historical method in law is the special resource, 
 and almost the discovery, of our immediate time. And it 
 is important for the lawyer to recognize its proper use and 
 its available limits. 
 
 A few words as to its own history. Although there are 
 some indications of the use of historical explanations in 
 law in some earlier jurists, such as Bodin, Bacon, and 
 Grrotius, nothing like a distinct conception of a methodical 
 application of history to law will be found, I think, earlier 
 than the latter part of the seventeenth century. Even 
 then, it is only a single suggestion which was followed 
 by no practical result. But a definite, though brief, state- 
 ment of the conception is to be found in the very extra- 
 ordinary work of a very great philosopher, in the first 
 essay of Leibnitz. The Nova methodus discendae docen- 
 daeqtce iurisprudentiae was published in 1667 by a young 
 man of twenty-two, under the following circumstances: 
 Leibnitz had applied to the University of Leipsic for 
 a dispensation to grant him the degree of doctor before 
 he had reached the legal age. The permission was refused ; 
 but the University of Altorf having admitted him, he 
 
72 ON JURISPEUDENCE 
 
 published a short essay as a proof of his competence, in 
 which he entirely reviewed the whole field of jurisprudence. 
 On the boldness, the depth, the learning of this most 
 astonishing production of a young student, we need not 
 now enlarge. Suffice it to say, that it sketches the entire 
 reconstruction of the form of the corpus iuris, very much 
 in the sense in which it has been reconstructed in the 
 eighteenth century. For the moment, the important point 
 is that he clearly expounds the use of the historical method 
 in law. 
 
 That wiU be evident from his making the historical side 
 one of the parts of law, and devoting to this a distinct 
 section of his short work. He writes : ' "We have hitherto 
 been treating only the didactic side of jurisprudence, we 
 must now pass to the historical side. The history of juris- 
 prudence is either the internal or the external history. 
 The former is that which deals with the substance of 
 jurisprudence ; the latter is only subsidiary. The internal 
 history of law is that which examines into the laws as 
 adopted in various states.' He then goes on to prove the 
 importance of tracing these along with the external history 
 of the states. This division of his into the internal and 
 the external history of law has been ever since adopted 
 on the Continent as a useful mode of distinguishing the 
 history of the changes in rules of law from the history 
 of the political circumstances which brought about those 
 changes of law. It is the former obviously which is the 
 essential part of legal history. The history of the law of 
 real estate in England, from the Statute of Uses to the 
 Abolition of Fines and Recoveries, can be treated in 
 a connected way without any necessary reference to 
 Henry VIII, the great Rebellion, or the Reform Act. 
 
 ' By the help of Grod ', cries the aspiring genius of this 
 wonderful student, 'I will some day compile a complete 
 
THE HISTORICAL METHOD 73 
 
 panorama of law (theatrum legale), wherein shall be arranged 
 in parallel columns the laws of all nations, of all countries, 
 of all ages.' The genius of Leibnitz was not, indeed, 
 destined to realize this vision ; it was ultimately devoted 
 to philosophy, science, politics, religion, rather than to law. 
 But it is plain that he had even as a student of twenty-two 
 distinctly realized the idea of an historical method in law, 
 and in the catalogue which he drew up of the things yet 
 needed in law, we find set down in express words, ' the 
 history of legal changes ' {historia mutationum iuris). 
 
 For more than a hundred years this youthful conception 
 of Leibnitz remained as a simple conception ; for I think 
 nothing like a real attempt to treat the history of law 
 in any systematic way can be discerned till the latter 
 half of the eighteenth century. Montesquieu indeed, who 
 was himself a judge, whose work is called the Spirit of 
 the Laws, and who undoubtedly had the historical genius, 
 touches upon the history of law, but he does not add much 
 to it. His book (1748) is essentially a work on political 
 philosophy, the relation of governments and manners. Yet 
 it is full of scattered remarks on the history of law, though 
 rather on what we have called the external than the internal 
 history of law. His mind is occupied with the changes 
 which certain laws have exercised on certain states of 
 human societies, not on the changes which certain societies 
 have exercised in the growth of law. But he has whole 
 chapters devoted to the history of law, in the true sense 
 of the word ; and the twenty-seventh book, devoted to the 
 development of the law of succession with the Romans, 
 may be taken as an excellent specimen of the historical 
 method of law in our modern sense. I have already spoken 
 with regret of the unlucky attack by Austin on the opening 
 sentence of the Esprit des Lois, respecting the generali- 
 zation of law as the uniformity of constant relations in the 
 
74 ON JUEISPRUDENCE 
 
 physical and in the moral world. Austin overlooked the 
 words of Montesquieu, that this was the meaning of law 
 in ' the most extended use of the term ' — we may say, in 
 the sense of the Duke of Argyll's Reign of Law — and 
 obviously it excluded the law of the lawyers. The passage 
 itself which opens the Spirit of the Laws has been called 
 'one of the finest that was ever produced by the genius 
 of man ', and perhaps there is ground for the eulogy. 
 
 A far more direct effort in the way of the history of 
 law is to be found in the famous forty-fourth chapter 
 of Gibbon's Decline and Fall. This, so far as it went, 
 was a I'eally complete and successful example of the his- 
 torical method; and somewhat strangely it has had more 
 influence on the Continent than it has had in England. 
 Gibbon (1776-1788) took the important step of breaking 
 up the thousand years of Roman legislation into the 
 characteristic four epochs which, with some modification, 
 have ever since remained the essential periods of division. 
 The limits of his work did not enable him to carry his 
 treatment very far ; but the firm and masterly hand which 
 drew this flying sketch of the entire history of Roman 
 law in its internal as well as its external aspects, traced 
 in it one of the landmarks in the progress of jurisprudence. 
 As an apercu of this vast subject reduced to the compass 
 of a few pages, this marvellous sketch will long remain 
 unrivalled. And, although Gibbon's purpose was to give 
 a vivid conception of the scope and potency of the Roman 
 law as a whole, rather than to treat in detail of any single 
 title, he has done something, especially with respect to 
 the laws of persons and status, to supply us with examples 
 of the historical method of explanation. 
 
 The increasing importance of the historical point of 
 view during the latter half of the eighteenth century, 
 and perhaps the effect of Gibbon's work in Germany, led 
 
THE HISTORICAL METHOD 75 
 
 to the foundation of a distinct school of historical jurists, 
 one which is always associated with the name of Hugo 
 (1790). Hugo wrote an elaborate work on the history 
 of Roman law ; and distinctly conceived the historical 
 method, and systematically applied it. With him were 
 associated Haubold and Cramer, and the result of their 
 joint labours was the formation of a large, enthusiastic, 
 and learned school of historical lawyers, and, what is 
 perhaps still more important, the preparation of the field 
 for the historical genius of Savigny, the most eminent 
 master of that school. 
 
 The scientific treatment of legal history is indeed so 
 completely associated with von Savigny, that, however 
 much we may trace some earlier examples of the method, 
 the appearance of Savigny's work on Possession (in 1803) 
 marks a distinct revolution in the study of jurisprudence 
 and the complete proof of the value of the historical 
 instrument. This admirable work was a crucial evidence 
 that whole chapters of Roman law could be unlocked only 
 by the resources of historical analysis. By it a large 
 section of the corpus iuris, the right understanding of 
 which was admitted to be an almost hopeless problem, 
 was solved and solved completely, by means of a patient 
 comparison of the historical conditions of the problem. 
 And the indirect results of Savigny's analysis of possession 
 were perhaps more important than the direct results by 
 which he cleared up the meaning of a mass of texts. 
 
 But the next great work of Savigny, his history of 
 Modern Roman Law, bore fruits even yet more important. 
 In proving the continuity of Roman law, from the Twelve 
 Tables down to the close of the Middle Ages, he gave his- 
 torical evidence of the unity of the civil law in ancient 
 and in modem times, which had been often suspected and 
 partly traced, but was never thoroughly ascertained. Few 
 
76 ON JUEISPEUDENOE 
 
 readers now go over the imraense array of learning in 
 which he proved that Roman law had a living history- 
 after Justinian, as long, in lapse of time, as its history 
 down to Justinian. But the effect of his work, once done, 
 was felt in a vast extension of the field in which the history 
 of law -was to be sought. 
 
 The discoveries of Eoman history made by Niebuhr, 
 together with his discovery of the MS. of Gains in the 
 chapter-house of Verona, in 1816, completed the effect of 
 the historical researches which gather round the name of 
 Savigny. Through them our knowledge of the Eoman law 
 has been almost entirely recast, and the critical examina- 
 tion and rearrangement of the whole corpus iuris has been 
 successfully achieved. It has been worked out almost 
 exclusively in those countries where the Eoman law is 
 the substantial basis of the municipal law. Perhaps until 
 of late years it was too much absorbed with Eoman law 
 proper. But at length, after two hundred years, the dream 
 of the youthful Leibnitz has been realized ; and, so far 
 as Eoman law is concerned, the new method of learning 
 and of teaching jurisprudence has been successfully estab- 
 lished and organized. 
 
 The next step in the progress of jurisprudence undoubtedly 
 came from England. We have already spoken of the work 
 of Bentham, which was in a very small degree historical, 
 animated as it was by furious antipathy to the prevalent 
 and established legal theories. The work of Austin was, 
 in an incidental way, often historical, but he cannot be said 
 to have developed much the resources of the historical 
 method. For that we must look to the most modern 
 historical school in England, which is associated with the 
 name of Sir Henry Maine. The famous lectures on Ancient 
 Law undoubtedly mark an epoch in the course of the his- 
 torical method. We must connect them in the first place 
 
THE HISTOEIOAL METHOD 77 
 
 with Austin, for we must remember that the lectures were 
 a direct continuation of the same educational scheme in 
 which Austin had taken part twenty years before; and 
 we may connect them with Austin by repulsion, as it were, 
 for they were inspired with the aim of finding a wider 
 basis for jurisprudence than the purely analytic method 
 allowed. 
 
 The new feature which was introduced into the historical 
 method by the lectures on Ancient Law was the widening 
 of the area in which the historical elements of law were 
 found, in the special use of Indian examples, and the 
 fruitftil comparison of Indian with primitive and classical 
 analogues. In Ancient Law we have for the first time 
 the effect of familiar legal institutions or doctrines traced 
 in all the ramifications of the widest field of history, and 
 the juxtaposition of the most unlike types of society, 
 with a freedom of comparison that not seldom recalls 
 Montesquieu. The great German historical school had 
 illustrated the history of the Homan civil law, and of the 
 whole civil law in its modern form, with truly exhaustive 
 learning. It was reserved for the English historical school 
 to trace the elementary institutions of law into the most 
 varied types of early and Oriental society, and to exhibit 
 them as the base of the most dissimilar facts. By a great 
 fertility of illustration we have a common ground established 
 in sources as disparate as the following: The poems of 
 Homer, the Commentaries of Gains, the theories of Kousseau, 
 the habits of Indian villages, the casuistry of the theo- 
 logians, the scruples of Lord Eldon, and the practices of 
 Irish cattle-stealers. The historical method, it was clear, 
 ought not to limit itself to the simple history of the 
 corpus iuris; and it might usefully search for materials 
 amongst countries as remote as possible, in time or in 
 space, from the corpus iuris as from ourselves. 
 
78 ON JURISPRUDENCE 
 
 But there is one special advantage possessed by England, 
 which was a practical rather than a literary advantage. 
 By the possession of India Englishmen were brought into 
 a special familiarity with the facts of Indian and Oriental 
 civilization, which was in itself a mine of suggestion for 
 the illustration of ancient history and early law. But if 
 this were all, it would have been of minor importance, as 
 the written accounts of Indian history or custom were 
 available for the learned in all countries alike. The value 
 of the Indian position of England was this : there was 
 a practical task before us, the task not so much of under- 
 standing and explaining Indian law, as that of constructing 
 an Anglo-Indian law — of putting our own law into a shape 
 in which it would be suitable for an Indian population, 
 and could be easily administered by a class of officials 
 who were often political officers rather than professional 
 lawyers. 
 
 We have to do in India a work which has a curious 
 analogy with the growth of the Praetorian law of Rome. 
 On a far larger scale, and in a far shorter time, we have 
 had to create a system of jurisprudence which would retain 
 all the essential features of our own law, apply it to the 
 case of a vast population having habits and institutions 
 differing from our own, and which would be free from all 
 that is local and historical in English forms. We have 
 thus created, as it were, a real lus Qentium out of our own 
 civil law. But we have had one additional task from 
 which the Romans were free. We have had to codify 
 and recast our own law into a systematic form before we 
 could present it to people who had not our English 
 citizenship. The Romans found their law in a more or 
 less organic form before they began to adapt it to the 
 peregrini. This is the feature which has had such immense 
 results on English jurisprudence. As at Rome, the revised 
 
THE HISTORICAL METHOD 79 
 
 civil law, when adapted to the general wants of all other 
 people, was found to be a law which, in symmetry and 
 arrangement, was far in advance of the old type ; so in 
 the process of casting English law into methodical and 
 scientific shapes for the practical use of the Indian races, 
 it was found that a powerful light was thrown on the 
 best mode of transmuting our home system into scientific 
 and more modern form. The names of Lord Macaulay, 
 Sir William Jones, Sir Henry Maine, Sir J. F. Stephen, 
 Whitley Stokes, Sir Oourtenay Ilbert, and of aU those, both 
 at home and in India, who have worked in the construction 
 and explanation of the Indian codes, remind us how much 
 the law reformers and the law teachers of India are the 
 law reformers and law teachers of England. It is only 
 now that we are beginning to see how completely the 
 reconstruction of the English law into a working type in 
 India suggests to us the necessity and the mode of doing 
 similar work at home. And just as a time came when the 
 Roman lawyers thought that they saw in the lus Gentium, 
 or law common to all nations, the real law of nature, so 
 we may perceive signs of a time when the Indian codes 
 may become, like the Praetorian Edict at Home, the basis 
 of an English corpus iuris. 
 
 We are now so familiar with the uses and scope of the 
 historical method that it will be needless to enlarge further 
 on the place it occupies in jurisprudence. We have seen 
 that whole chapters in the corpus iuris were unintelligible 
 until they were tested by the historical instrument. The 
 discovery of the work of Gains has given an altogether 
 new start to the understanding of Roman law. It is when 
 we come to lay side by side the mode in which various 
 systems of law have effected the same purpose, that we 
 understand the analogies between legal artifices apparently 
 far removed. An excellent example of this may be read 
 
80 ON JUEISPEUDENCE 
 
 in the eleventh chapter of Maine's Early History of Insti- 
 tutions, on ' the settled property of married women '. We 
 here obtain, by a comparison of a great variety of legal 
 artifices extending over the habitable world, and the 
 ancient, mediaeval, and modern ages, an insight into the 
 real aim of a great body of rules relating to women's 
 property, such as no amount of direct analysis could 
 possibly have given. It would be hopeless to expect any 
 clear sense of the peculiar rules of English real property 
 without a knowledge of the curious feudal struggles out 
 of which they arose, and the curious game of artifice 
 between the landowners and their lawyers, on the one 
 hand, and the Crown and its officers on the other. So, 
 too, the long contest between the legal and the equitable 
 view of ownership, of mortgage, and the like, and still 
 more the peculiarly English battle between the courts of 
 law and of equity, have half their meaning lost to us 
 until we view them by the light of history, and in particular 
 by the light of the Praetorian law of Rome. 
 
 The historical method, it is true, can give us nothing 
 of the existing state of the law as we want it for daily 
 practice. And it is too often forgotten that the careless 
 use of it may even tend to confuse the attention in study-, 
 ing the practice of the day. But then the object of juris- 
 prudence is not to teach the actual rules of practice. Its 
 object is to supply sound ways of grouping these rules, 
 and a scientific conception of their relations and proper 
 end. Now the use of the historical method is just that 
 of pointing to the relations and true ends of legal rules. 
 Any analysis of a body of legal rules of an abstract kind, 
 taken by itself, would be up in the air. It would be 
 thoroughly unsafe until we had tried it by historical 
 canons, and had endeavoured to learn if our analysis could 
 be seen to hold good during all the changes to which the 
 
THE HISTOEICAL METHOD 81 
 
 body of law had been subject, and if it held good in other 
 systems besides the one we were considering. It is the 
 absence of all idea of this truth which was the fatal defect 
 of so much in Bentham's heroic campaigns in law reform. 
 
 At the same time it is most needful to insist on the limits 
 and imperfections of the historical method. It would lead 
 to the utmost confusion of thought if we come to regard 
 historical explanations as the substantial or independent 
 part of jurisprudence. In many ways the historical spirit 
 is in strong contrast to the true spirit of jurisprudence. 
 From history we always get ideas of progress, of constant 
 development, of instability. But at law, at any rate for 
 the purposes of the practical lawyer, what we need are 
 ideas of fixity, of uniformity, and simultaneous rule. To 
 the lawyer, the decision of a competent court which formally 
 settles the law is quite as binding as Magna Carta ; and 
 it is rather an inconvenience than a help to find any 
 particular rule of law invested with any sentimental or 
 historical interest. A repealed rule of law, even with 
 five centuries of traditional story, is to the lawyer far less 
 important than the simplest and most routine Act of the 
 last session. Fines and recoveries, with centuries of curious 
 legal history, are handed over to the antiquarian. To the 
 lawyer they are a piece of rather troublesome and useless 
 learning. The latest rule of pleading is of far more real 
 value. To use technical language, more in use on the 
 Continent than in this country, the field of law presents 
 itself to the practical jurist entirely as matter of solidarity ; 
 to the historian the field of history presents itself entirely 
 as matter of continuity. History has no present; law, in 
 the practitioner's sense, has no past. 
 
 Now this presents us with a very real and serious danger, 
 if scientific education in law is at all to tend towards 
 turning our young lawyers into students of history. There 
 
82 ON JURISPEUDENCE 
 
 is not much danger, no doubt, lest our practical lawyers 
 should quote Hallam, Stubbs, and Freeman as authorities, 
 instead of Sugden, Jarman, or Smith. But it would be 
 a real evil if our scientific education gave a bent to the 
 student's mind out of harmony with the practical wants 
 of the profession. And there can be no doubt that it would 
 be a thoroughly wrong course to give his mind an historical 
 bent. In history, that which justly becomes the centre 
 of attention is that which has the longest and most un- 
 broken series of influences. And the historical student has 
 steadily to fix his eyes on those influences which seem to 
 be the most enduring. In law, it is just the other way; 
 the lawyer, as such, has nothing whatever to do with what 
 was law a hundred or fifty years ago, or even last session. 
 His one thought must be, the law as it is in the actual 
 year. 
 
 An English student of law is peculiarly exposed to dangers 
 of this kind. We have no formal code or institutional work 
 whatever. There is nothing to give a student a general 
 conspectus of the law as it is. The student of Roman law 
 always had, as he has now, the Institutes of Gains or of 
 Justinian; the French lawyer has the five codes, and so 
 forth. But the only institutional work of thoroughly 
 classical position is the famous book of Blackstone ; and the 
 first thing the student learns of Blackstone is, that one-half 
 of it is now superseded, and must be interpolated and sup- 
 plemented with more modern passages. He then reads 
 Austin and Bentham, and Maine, and learns from them 
 that almost the whole of Blackstone's theories are wrong. 
 The result of all this is that Blackstone's book comes to 
 wear a purely historical character ; and, of course, the 
 larger part of Bentham's attacks on the law have now that 
 character also. In this way, the first view of English law 
 obtained by the student is that of a mass of famous histo- 
 
THE HISTOEICAL METHOD 83 
 
 rical doctrines which are now more or less obsolete, and a 
 moving panorama of reforms, amendments, and repealing 
 statutes very bewildering to the mind anxious to form an 
 idea of the law as it is. 
 
 There is, too, another inconvenience in the historical way 
 of regarding law. What Leibnitz calls the internal history 
 of legal change is not always, and indeed not very often^ 
 determined by purely internal causes. That is to say, that 
 purely juristic considerations, or motives based on scientific 
 views of law, only partly decide the form which any chapter 
 of law shall take. In the earlier development of law this 
 may be said never to take place. At any rate, until the 
 latest stages of the law of any society, the internal history 
 of their law is more or less determined by the external 
 history of it ; that is, the political conditions of the legis- 
 lating authority. All this is very often most alien to the 
 scientific aspect of law. And thus purely political and 
 social reasons produce great landmarks in the history of 
 law which, from the point of view of the scientific jurist, are 
 curiously unimportant. The rules of law, for instance, 
 relating to maneipatio and all its consequences, from the 
 historical point of view, are of the most cardinal importance 
 in Roman law ; but they are simply a source of disturbance 
 in the symmetrical and scientific view of Roman law ; and 
 to the student of the complete form of that law they entirely 
 disappear. So, in our own law, from the historical point of 
 view, the conflict of law and equity, and the feudal doctrines 
 of seisin, of uses, of pleading, are the really central points of 
 survey. But they have now lost all importance for the 
 scientific lawyer. Thus the historical method, if left un- 
 qualified, is perpetually tending to carry us off the field of 
 law into the field of social history or political antiquities. 
 
 I am disposed to think that our study of Eoman law is 
 very often diverted by this very tendency. I should myself 
 
84 ON JUEISPEUDENOE 
 
 be the last person to undervalue the work of clearing up our 
 study of Roman institutes by the light of history. But, if 
 our study of law is to become simply a study of history, I am 
 inclined to think that it ceases to be true law. The student 
 loses the sense of symmetry and unity in the Roman system, 
 and has an impression of it such as it never really was at 
 at any time in its history, and least of all in the time of its 
 zenith. His mind is too often occupied with questions which 
 to a lawyer, even of the age of Gains, would have had a 
 merely antiquarian interest; and which were no doubt 
 utterly unknown to Tribonian himself. The mass of learn- 
 ing about the real meaning of nexum, the fragments of the 
 Twelve Tables, or the procedure per jpignoris capionem is 
 interesting and suggestive ; but it is hardly Roman law as 
 the great age of jurists understood law, or as it has influenced 
 the entire history of subsequent civilization. 
 
 We ought never to forget that the Roman system, as 
 practically closed soon after or about the time of Diocletian, 
 or the abolition of the formulary system, and eventually 
 digested by Justinian, has remained for more than thirteen 
 centuries essentially the basis of the law of the larger part 
 of civilized Europe. During the whole of this period, as for 
 centuries before even the earliest of the great Roman jurists, 
 Roman law was entirely free from these antiquarian curiosi- 
 ties current in the law of the kings and the early republic. 
 And, much as I welcome this knowledge as a part of the 
 history of Rome, and even as an illustration of the history 
 of Roman law, we ought to remember that it is the study of 
 antiquities, not of law. And I believe that such study had 
 better succeed, rather than precede, a thorough grasp of the 
 Roman system in its advanced shape. And in this point of 
 view it is almost a misfortune that the work of Gains is so 
 far superior to the Institutes of Justinian, as a law-book, as 
 well as a work of art, and should justly excite much more 
 
THE HISTOEICAL METHOD 85 
 
 attention ; for the Roman law as it existed at the date of 
 Justinian is a far more scientific system of rules than that 
 semi-archaic system which was condensed in so masterly a 
 way by Gains. 
 
 I think that the great value of the Roman system would 
 be lost to us if we did not lay to heart its first and its last 
 lesson. This I take to be the symmetrical and rational 
 form into which it ultimately expanded, in spite of the 
 confusion which its historical accidents so strongly impressed 
 upon its earlier forms. The position of the full Roman 
 citizens, as a peculiar and dominant race down to the time 
 of Caracalla, was as destructive of scientific law as it was 
 anti-social in a moral sense. The many legal anomalies, 
 chiefly arising out of that anomaly, were a serious blot on 
 the Roman system of jurisprudence. But eventually the 
 genius of Rome triumphed over all, or almost all, of these 
 ancient obstacles. And though nothing in the entire 
 history of law is more valuable and fertile in suggestion 
 than this long struggle out of confusion into symmetry, it 
 would be a deplorable mistake if we allow our eyes to be 
 fixed on the confusion whilst the symmetry of the final 
 result vanishes into the background. The early story of the 
 old anomalies has a very curious interest, especially for 
 Englishmen ; and the literary interest of their origin and 
 transformation is exceedingly fascinating. But I see a real 
 danger to jurisprudence if we allow literary interest to 
 overpower the strictly juristic interest which must always 
 centre round the final and complete system as left by 
 Justinian. 
 
 In the same way the questions of modern history, of 
 politics, of the history of thought and manners, into which 
 law enters, and which may be usefully illustrated by the 
 history of law, are strictly infinite. Many of them possess 
 the deepest interest and have a high philosophical value. 
 
86 ON JUEISPRUDENOE 
 
 But this very literary and philosophical interest, for the 
 most part, takes them out of the sphere of jurisprudence. 
 In proportion as the history oflaw becomes a part of general 
 history, it becomes more and more history and less and less 
 law. We ought always to remember that when we are 
 illustrating philosophy by the aid of law, we are only inci- 
 dentally or accidentally advancing the philosophy of law. 
 There is a real danger of our jurisprudence becoming too 
 dispersive when we come to make questions of jurispru- 
 dence the text instead of the discourse. When, for instance, 
 we trace some rule of diplomacy or some political theory to 
 a well-known principle of law, we have really done nothing 
 to add to the knowledge of the jurist, though we may have 
 added to that of the historian and the publicist. 
 
 What is the practical conclusion to which I would point ? 
 It is that the historical method is one of the resources of 
 jurisprudence, not the substantive part of it, and in no sense 
 an independent part of it. It would be possible to have a 
 very great and varied knowledge of the history of any legal 
 system, and yet never to grasp it at all as a coherent and 
 symmetrical scheme. For the lawyer the great interest 
 always must be what is the law as it is. How it has become 
 what it is, is a very useful inquiry. But this will become 
 positively confusing if the subordinate inquiry is ever 
 allowed to stand on equal terms with the main inquiry — the 
 law as it is, as it is at any given time. The historical part 
 of the study is necessarily followed out in sections. Par- 
 ticular titles, succession, contract, and the like are detached 
 and their special history ascertained. But the result, to 
 the overburdened memory of the student, is too often to lead 
 to a spirit of legal anachronism thoroughly hostile to the 
 really legal mind. 
 
 Many a student who can give a very sufficient account of 
 the successive changes introduced under any given title. 
 
THE HISTORICAL METHOD 87 
 
 would be very much puzzled to give a general sketch of the 
 state of law under all of these titles at any one time. Yet 
 the business of the lawyer is with the synchronous, not the 
 successive states of the law — ^the solidarity of it, not the con- 
 tinuity. It is common to find students who have mastered 
 the intricate, and I think almost worthless, rules about the 
 various classes of Boman citizens and the succession of their 
 property, or the purely accidental rules as to intestate suc- 
 cession generally, and who feel almost as a loss of interest 
 the simplification of these rules in the ultimate legislation^of 
 Justinian. In the same way, the curious history of manci- 
 patio, of res mancipi, of the legis actiones, commands a degree 
 of attention, and occupies time and thought wholly dis- 
 proportioned to their real importance. It is desirable to 
 know how irregular, how arbitrary, and how archaic the 
 Boman system once was ; but the essential thing is to know 
 how symmetrical, how wise, how scientifically right it 
 ultimately became. 
 
 All this points to making the historical inquiry merely 
 an instrument of jurisprudence and never to take it for 
 jurisprudence itself. Scientific jurisprudence should tend 
 always to look at a system of law complete as a working 
 whole at any given time. The sympathies will be always 
 towards the rational and scientific modes of classification ; 
 to the final type of any system, not to its rudimentary 
 forms. The historical inquiry unrestrained constantly tends 
 on the other hand towards the anomalous, the accidental, 
 the initial type of the institution. The only way to guard 
 against this is to use the historical method in jurisprudence 
 strictly and simply as an instrument. In history we usually 
 proceed chronologically from the beginning. But in law 
 we ought to take our final and complete system as a basis, 
 and merely use our history to clear up doubtful points. 
 The only historical problems really useful in law are those 
 
88 ON JUEISPRUDENCE 
 
 whioli the jurist finds in his way, and which he needs to 
 have cleared up. 
 
 To give practical shape to these remarks, I wish to insist 
 that the Roman law in its final form seems to me the first 
 and the last, the main and real object of study in civil law. 
 Until at any rate the Institutes of Justinian are thoroughly 
 grasped as a whole, I think historical inquiries are premature. 
 The Commentaries of Gains have been called, and I think 
 justly, the greatest work on law that was ever written ; and 
 the discovery of it has undoubtedly done very much for the 
 study of Roman law. But if the reading of Gains is allowed 
 to supersede the reading of the Institutes of Justinian, we 
 shall really know less of Roman law than our fathers did. 
 In the old days the Institutes as revised by Tribonian stood 
 out as a unique and handy summary of the entire field of 
 civil law. Now the civil law too often is presented as a 
 thing in a state of continual flux. That is not the way in 
 which it is regarded on the Continent. There, the preva- 
 lence of the civil law as a working institution leads to its 
 being grasped as a whole in its final form. And my own 
 impression is, that before the attention is strained with the 
 shifting panorama of historical explanations of the corpus 
 iuris, the student ought to have thoroughly assimilated the 
 final form of Roman law, as it is summarized in such com- 
 pendia as those of Mackeldey, Thibaut, Warnkonig, or 
 Demangeat. There we get the civil law of Rome in the 
 same crystallized form as we get that of France in the Code 
 Napolfen. 
 
 Foreign students with their codes to start with, and with 
 the civil law more or less in modern use, are not exposed to 
 the same dangers that we are here in the use of the historical 
 method. To them it is impossible that it can ever become 
 an end in itself. We have exceptional advantages for the 
 use of the historical instrum ent in that we always look at 
 
THE HISTOEICAL METHOD 89 
 
 the Roman and romanized system ah extra. We have in 
 our own law a magnificent parallel or contrast to the Roman 
 law ; and we have unusual familiarity with the historical 
 method in law, owing to the multiplicity of systems with 
 which our vast empire brings us into contact. But then we 
 have special disadvantages in using the historical method, 
 inasmuch as we have not got a symmetrical jurisprudence 
 of any kind to control and direct it. Jurisprudence is in 
 this country completely an exotic and thoroughly artificial, 
 and it is sometimes little able to manage its own weapons. 
 It is so great a strain upon the mind to build up and retrace 
 the conception of a great body of titles reducible to abstract 
 and symmetrical classification, and capable of statement as a 
 set of consistent principles — and this is what I take jurispru- 
 dence to be — that we are perpetually in danger of giving to 
 law a literary instead of a scientific character, and of slipping 
 in our thoughts from what the law is into speculating upon 
 the coincidences which made it what it once was. 
 
 The historical method is thus a potent and fruitful instru- 
 ment of jurisprudence, but it is very far from being the last 
 word of jurisprudence, or the substantial partof jurisprudence. 
 That must always be looked for in the analysis and consoli- 
 dation of the actual doctrines of law under systematic titles. 
 There is abundant evidence that our English school of jurists 
 are passing far beyond the critical and logical method of 
 Bentham and Austin, and beyond the ingenious suggestions 
 of historical explanation, into the practical work of consoli- 
 dation and scientific distribution of codified rules. "We are 
 evidently in an era similar to that which in Roman law 
 preceded the epoch of Justinian — the era of partial codes 
 and of scientific revision of anomalies. Our law-writers of 
 the higher order are all, more or less consciously, preparing 
 the way for an ultimate consolidation of our system into a 
 form that shall be worthy of its past history. The admirable 
 
 2169 M 
 
90 ON JUEISPEUDENCE 
 
 work done by Sir James F. Stephen, by Sir H. Thring, by Sir 
 "William Markby, by Sir Frederick Pollock, by Mr. Justice 
 "Wright, and by many others, proves that our English law 
 has at last come down to ' the root of the matter '. 
 
 The root of the matter, I suppose, is the scientific analysis 
 and distribution of our legal doctrines and statutes, and their 
 consolidation into a symmetrical and practical whole. This 
 is, doubtless, a great, and possibly a far distant, work ; but 
 it is one that is impossible without a real and sound juris- 
 prudence. And the methods of such a jurisprudence will 
 probably be found to be three, of which no one should 
 exclude or can supersede the others — the analytic, the his- 
 torical, and the comparative. The first of these will give us 
 the analysis of the general notions of law, its language, 
 logic, parts, and arrangement. This has, on the whole, been 
 sufficiently accomplished by Hobbes, Bentham, Austin, and 
 the modern Germans ; though it is unfortunately somewhat 
 obscured in Bentham, and even in Austin, by a perfect 
 mitraille of disputations and opinionated dogmatism of the 
 a priori sort, such as makes it often tedious and sometimes 
 misleading. The second method is the historical, by which 
 we learn first how rules, surviving in advanced civilizations, 
 are the fragments of ancient habits now almost unmeaning 
 or forgotten ; next, how some of the most modern of our 
 legal devices are simple enlargements of primitive contriv- 
 ance. Thus the intricate rules in modern use form, as it 
 were, a mosaic of survivals — fragments of larger masses of 
 old law ground and cemented together by the trampling 
 of successive generations. And the true history of their 
 gradual formation guides us to the right principle of their 
 ultimate analysis and simplification. The third of the 
 instruments of jurisprudence will be the comparative method 
 by which the grouping, the doctrines, and the expedients of 
 various systems are brought into common relations, and the 
 
THE HISTORICAL METHOD 91 
 
 underlying principles are extracted. It is, in fact, a sys- 
 tematic and structural analysis of legal doctrines and their 
 due distribution in relation to each other. 
 
 With these instruments when thoroughly familiar to us 
 we may form for ourselves a complete jurisprudenceequipped 
 for the task before it — the consolidation and systematiza- 
 tion of English law. The value of jurisprudence altogether 
 is not seldom contested by the more cautious elders and 
 doctors of the law ; and some of us can remember a most 
 eminent conveyancer (we are not responsible for his lan- 
 guage, nor quite clear as to the work he meant) who used to 
 warn his pupils against what he called 'that beastly book, Jus- 
 tinian'. But if it be possible to reduce the wilderness of rules 
 which the vast library of text-books presents into a coherent 
 body of general conceptions, the usefulness of it as an intro- 
 duction to the study seems too obvious for argument. That 
 the rules of law can be exhibited in this abstract, or rather 
 this general form, is capable of direct demonstration. Every 
 practical study is, by the common consent of civilized men, 
 begun by a theoretic study of the general principles on which 
 the rules depend. A practical engineer has to begin his pro- 
 fessional education by the theory of mathematics ; a practical 
 physician by the theory of physiology and comparative ana- 
 tomy. No man could be trusted as an economist who had not 
 mastered the universal conceptions of political economy ; 
 and a man would be a sorry diplomatist who knew no more 
 of international practice than what is found in Marten's 
 Treaties or Eobinson's Reports. The idea that English law 
 stands alone in all the products of human thought and the 
 objects of rational study, in being nobly (or ignobly) inde- 
 pendent of any systematic knowledge of general principles, 
 seems a truly melancholy instance of the dogmatism of a 
 low education. 
 
 On the contrary, English law is, of all the systems of law, 
 
93 ON JUEISPEUDENCE 
 
 that one whicli most requires a scientific introduction by 
 a training in principles. It is of all modern systems the 
 one which has the least scientific form, whilst it is of all 
 systems which the world has ever seen that which has 
 received the greatest amount of practical elaboration. The 
 substantial good sense, the inexhaustible painstaking, and 
 the sober wariness of its provisions can be matched only in 
 the Roman system itself, if they are matched even there. 
 And if it wants the symmetry and logical beauty of Boman 
 law, it has a practical energy and an elaboration of detail 
 peculiar to itself The very incoherence of form which was 
 produced by its native independence and singular growth 
 has led to an energy of the law-reforming and law- 
 consolidating spirit almost unique in history — one tending 
 in Bentham and in Austin to a destructive and abstract 
 method far too absolute and trenchant. And thus juris- 
 prudence, or the comparison and analysis of legal principles, 
 whilst it is far more necessary for the English lawyer than 
 for any other jurist, is also far more interesting and fruitful 
 to him than to any other ; because the English jurist has, 
 in the contrast of the Roman and the English system, the 
 two systems of law which have had the greatest history, 
 the greatest effect upon mankind, and which, using the 
 most strongly opposed methods, and working in the most 
 different types of civilization, have exhibited the greatest 
 subtlety in adapting general ordinances to the infinite 
 varieties of social convenience. 
 
 Our English law, it is obvious on the least reflection, is 
 passing through one of the most critical stages of its long 
 and splendid history. During the nineteenth century it 
 witnessed a series of changes greater than any of those it 
 has known, with the single exception, perhaps, of the rise 
 and formation of a substantive system of equity. Since the 
 nineteenth century we have closed the course of growth in 
 
THE HISTORICAL METHOD 93 
 
 that system of equitable development of the law which for 
 two centuries had built up so fruitful and vigorous a body 
 of principle. The long career of Lord Eldon finally closed 
 the standing edict of our ius honorarium; and hence- 
 forward, with but slight exceptions, the progress of law has 
 been the work of express and deliberate legislation. About 
 the same time the farious criticism of Bentham, combining, 
 I suppose, with all those influences which we must ultimately 
 trace to the French Revolution and all its social and intel- 
 lectual consequences, had effected the great series of practical 
 changes in the civil and criminal law which are such striking 
 landmarks in the history of Victoria's and the two preceding 
 reigns. 
 
 There are great changes in the law of real property; 
 in the law of wills ; in the law of succession ; the simplifica- 
 tion of settlement and transfer of real estate ; the revolution 
 in the law of procedure and of the rules of evidence. One 
 curious illustration of the completeness of the change may 
 be seen by going through the various practical reforms 
 which were demanded in the voluminous writings of 
 Bentham. Hardly one of those things which he attacked 
 can now be found in the actual state of the law. In 1879 
 we were still watching the process of a change hardly less 
 than any of these — the fusion of law and equity ; the final 
 consolidation of the two great systems which have a con- 
 current yet separate history for so long a period. And 
 along with these great practical changes in the law, a still 
 greater revolution has been working in its theoretical con- 
 ception. Bentham was a practical law reformer, and probably 
 extremely ignorant of any really scientific jurisprudence. 
 But Austin was well grounded in Roman law ; he was well 
 read in the great German critical and philosophical lawyers ; 
 and he knew something of foreign codes and foreign con- 
 ceptions. He introduced into England for the first time the 
 
94 ON JUEISPEUDENCE 
 
 bases of reformed legislation. And the effect of all these 
 forces working together was such that English law was 
 already brought (quite two generations ago) to the eve of 
 a new epoch in its history. 
 
 But we must also remember how very much has been 
 done even within that time ; how much is doing under our 
 eyes, quite distinct from, and far in advance of, Austin's 
 work [1879]. Within that time, we may say, an effective 
 knowledge of Eoman law has been introduced into the 
 ordinary education of every lawyer by the persistent and 
 enlightened efforts of a series of earnest law reformers. The 
 zeal with which, under circumstances the most unpromising, 
 these men have striven to engraft on the English mind a 
 rational basis of principle, is already beginning to bear fruit. 
 We have now upon the bench great English lawyers who 
 are perfectly familiar with the doctrines of Eoman law, 
 in their ancient as in their modern shape ; and all the 
 higher class of legal manuals are now distinctly saturated 
 from the same well-spring of principle.^ And not merely 
 is it Eoman law which is thus for the first time visible to 
 English lawyers as a working reality ; but a knowledge of 
 modern systems, of continental and American codes, is also 
 common, both with our judges and our higher text-writers. 
 One of the most eminent of our modern judges, whom it is 
 needless to name, because the instance is not at all peculiar, 
 amidst the mass of his technical resources, contrived to keep 
 the rules of the recent Italian codes at his fingers' ends. 
 The present generation, therefore, has witnessed a really 
 striking phenomenon [1879]. This no less than the re- 
 annexation of the English law on to the great body of 
 principle, of which the Eoman law is the basis and the 
 framework. 
 
 ' See especially such -writers as Lord Lindley, Sir J. F. Stephen, and 
 Sir F. Pollock. 
 
THE HISTORICAL METHOD 95 
 
 Henceforward the insularity of English law is a thing of 
 the past. Our law takes its place as one of the great schemes 
 of legal principle known to civilization ; strongly marked and 
 peculiar in some respects, but in no sense either abnormal or 
 unique. English law has worked itself free from whole 
 masses of those feudal anomalies and accidents which in the 
 eighteenth century made it seem something so monstrous 
 and hopeless to men trained in the civil law. It never was 
 at any time in so unmethodical a state as was the law of 
 France before the Code of Napoleon, or the Roman law in 
 the time of Cicero. But now that much of the old confusion 
 has been cut away, it is seen that the bulk of the English 
 law is entirely comparable to, and in many respects in 
 complete harmony with, the bulk of the civil law. The 
 law relating to land, to buildings, and to the settlement of 
 estates, and necessarily the law of succession and wills, is 
 from political causes deeply stamped with the history of its 
 feudal origin. It is this startling and picturesque side of 
 English law which has filled the lawyers of England and 
 of the Continent alike with the conviction that English law 
 is a unique production of the human mind. But this is 
 merely the historical casing of our law. Behind this feudal 
 accident, when we study it by a sound analysis, it is seen 
 that the bulk of the English law, the whole law of contract, 
 the whole commercial law (and this is ever becoming more 
 and more the bulk of the civil law), really, as the old book 
 said, ' runs on all fours ' with that modified and modernized 
 form of the law of Justinian which is the groundwork of 
 the law of all civilized Europe. 
 
 But there is another influence at work now exerting an 
 enormous influence on English law. Our empire, with its 
 other advantages and burdens, is throwing upon us almost 
 exactly the task which the Roman lawyers had to meet in 
 framing laws for the vast non-Roman population that Rome 
 
96 ON JUEISPEUDENCE 
 
 governed. "We, too, have an immense body of citizens, all 
 of whom we have to govern by some adaptation of English 
 law. In every case the purely feudal portion of our land 
 law has had to be left behind in these islands. The English 
 law, as we know it, depends for its practical existence on the 
 English bench of judges and the English bar of advocates. 
 We are justly proud that neither the one nor the other have 
 ever been surpassed. They have made and make our law, 
 as did the jurisconsults during the splendid period of Eoman 
 law. But to the colonies, and especially to our enormous 
 Indian Empire, such a bench and such a bar could not 
 possibly be supplied. The result has been that in order to 
 apply the English law to these outlying people, we have 
 had to simplify it, to consolidate it, and very largely to 
 recast it. Within a very few years we have had from 
 official authority three distinct projects of a complete code 
 of criminal law, all of them, with slight modifications, 
 highly scientific digests of our English system [1879].^ We 
 live in the era of codifications. It is in the air throughout 
 the whole range of English law. Digests, more or less 
 complete, skeleton codes of portions of law, are multiplied 
 every day. We have just codified, in a sense, or at least 
 consolidated, our statute books. Every session sees us at 
 work upon consolidation statutes. Parliament has now before 
 it a complete criminal code. And I need not say how much 
 codification depends upon, and compels us to, a scientific 
 jurisprudence, whilst, reacting in turn, it stimulates a 
 scientific jurisprudence. 
 
 All this tends to show us that a scientific jurisprudence 
 is not now an intellectual luxury, but a practical necessity, 
 for an English lawyer. But it shows at the same time that 
 
 ^ The Indian Penal Code, The Criminal Code for England, drawn by 
 Sir J. P. Stephen, and The Code of Criminal Law for Jamaica, drawn by 
 Mr. Justice Wright. 
 
THE HISTORICAL METHOD 97 
 
 this jurisprudence must go far beyond mere logical distinc- 
 tions or literary researches; far beyond the precision of 
 language and the analysis of elementary ideas which Austin 
 enforced ; far beyond the comfortable rhetoric of Blackstone, 
 and the learned inquiries of the German historical school. 
 The substance of our jurisprudence now must be the 
 systematic analysis of all the leading titles and doctrines 
 which are found in a working code ; the reduction of these 
 to a series of digests arranged on a general principle ; and 
 the collation of these rules with the bodies of law now 
 governing the lives of people in a state of advanced 
 civilization for their ultimate and final codification. 
 
 N 
 
CHAPTEE IV 
 
 THE CONFLICT OF LAWS. I. 
 
 [Written in 1879] 
 
 Theee is a department of Law, the first principles of 
 which have been furiously disputed by lawyers ; the canons 
 of which are hesitating and contradictory ; the sources of 
 which are themselves a matter of argument; having an 
 authority which is most differently interpreted by doctors 
 and by judges ; and a sphere which is understood in various 
 ways ; — and yet this branch of Law is attaining in our day 
 continual development and fresh importance from a variety 
 of causes, and in a manner often unobserved. 
 
 It is far from settled whether it properly falls within the 
 province of public international law, of general jurisprudence, 
 or of forensic practice ; it has been treated alternately from 
 each point of view by publicists, jurists, and practitioners ; 
 at one time it is regarded as a part of the common law of 
 each nation, at another time it is treated as common to the 
 whole civilized world ; there is little agreement whether its 
 older forms have any value for us now, whether its future 
 form can be at all determined by deduction. In any case, 
 its true place in the field of law has an equal interest for 
 the historian of institutions and for the scientific lawyer. 
 
 The very name of this branch of Law is far from being 
 determined. Its relation to the rest of Law is even more 
 unsettled [1879]. Its official name is Private International 
 Law ; but it is often spoken of as the Conflict of Laws, or 
 the Collision of Laws. The old French lawyers spoke of 
 
CONFLICT OF LAWS 99 
 
 these discussions as Mixed Questions ; and the great German 
 lawyer Von Savigny calls them limitations upon law arising 
 from place. Other names have been given to this branch of 
 Law : — the personality and reality of statutes, the diversity 
 of laws, the contrariety of laws, and many similar terms 
 have been used. So great a variety of names shows the 
 uncertainty of the field which this branch of Law is 
 supposed to cover. I venture to think (and it is a common 
 opinion) that no one of these names is quite satisfactory, 
 and before concluding I shall try to determine the most 
 accurate term to describe it. 
 
 This Conflict of Laws, or Private International Law, arises 
 in this way. In modern civilized communities, the rules of 
 law, or statutes sanctioned by each sovereign power, extend 
 prima facie to all those within each sovereign's jurisdiction, 
 and are to be enforced in all its tribunals — but no further. 
 To give the laws of one sovereign any validity outside the 
 territorial limits of his sovereignty, or to seek to have them 
 enforced by tribunals that do not derive their authority from 
 him, is pro tanto to encroach on the sovereignty of the 
 neighbour. But in the complex relations of modern societies, 
 transactions are continually being brought for decision 
 before all courts of justice, which in whole or in part 
 depend for their legal quality on the laws of a state 
 different from that which has to try them. A. B. makes 
 a claim to succeed to an inheritance in England. His 
 parents are alleged to have been married in France. It 
 would be idle to test this alleged marriage by the laws of 
 England ; because they have no authority in France, where 
 the alleged marriage took place ; nor would it be possible 
 to observe them in France, even if their authority there 
 were assumed or pretended. On the other hand, it would 
 be monstrous injustice to deny that the parents of A. B. had 
 ever been lawfully married, because they had not been 
 
100 CONFLICT OF LAWS 
 
 married according to the Marriage Acts of England. But 
 this is to say, that English tribunals are often called upon 
 to try incidental questions in causes before them by the 
 rules of a foreign law. Englishmen are constantly settling 
 in foreign countries ; they make contracts, assignments, or 
 wills abroad, sometimes whUst settled, sometimes as simple 
 travellers. An English firm frequently engages with a 
 French or German firm to execute some work jointly in 
 Russia, or Turkey, Greece, or Japan. A dispute arises: 
 what law is the court to apply to the contract? Or, in 
 order that no dispute may arise, by what law is the contract 
 to be drawn? 
 
 It is obvious that, in the multiplicity of our modem 
 complex societyj not a day can pass without questions 
 coming before some court for decision, wherein some 
 element or other has its legal origin in a system of law 
 foreign to that of the tribunal trying the case. Two or 
 more systems of law are thus brought face to face, either, 
 as some think, by way of conflict, or collision, or competi- 
 tion ; or, as others think, by way of intermingling, inter- 
 change, or courtesy. Which of many codes, or schemes of 
 law, is to prevail ; which is to give way ? What elements 
 in the case are to be referred to foreign law, and to which 
 foreign law, and under what conditions? And on what 
 general principle is the code of ^^one nation to be treated as 
 valid by the tribunals of another nation; and for what 
 purposes, how far, and under what limitations ? 
 
 We have here a fruitful field for some of the most intricate 
 problems in law, and some especially which throw us back 
 upon general jurisprudence. And it is plain, that owing to 
 the vast extension of our international intercourse, and to 
 the cosmopolitan character of modem commerce and even 
 of modern life, the occasion for this interchange of laws is 
 perpetually increasing. The Conflict of Laws of course 
 
CONFLICT OF LAWS 101 , 
 
 grows, and will grow, with the growth of international^ 
 relations, which are far in advance of the uniformity in 
 laws. Whilst the codes remain divergent, the Conflict of 
 Laws must become greater. But this Conflict of Laws has 
 itself become a branch of science, and has been called 
 Private International Law, because it rests upon the doc- 
 trine of the equal sovereignty of friendly nations, and the 
 desire of civilized states to treat their neighbours, civilly as 
 well as politically, with equal justice. 
 
 The definition and limits of this branch of law, and the 
 authorities on which it is based, rest, I have said, on very 
 different theories. It is called Private International Law, 
 and in the most approved and systematic treatises on Inter- 
 national Law it forms a substantive part. In the works 
 upon International Law of Wheaton and of Halleck it 
 occupies an important section. It occupies the fourth 
 volume of Sir E.. Phillimore's Commentaries on International 
 Law. In the Revue de Droit International, the organ of the 
 principal modern international jurists, it is mixed up with 
 Public International Law, as it is in the reports of the 
 Annual Congress of International Jurists. On the other 
 ■ hand, it forms the eighth volume of Savigny's great work 
 on the general principles of jurisprudence. And yet, it is 
 plainly, for Englishmen at least, a substantive part of our 
 ordinary Municipal Law. Its rules are not left to the elastic . 
 sanction of public opinion or armed interference ; they are 
 determined in the ordinary sittings of courts of justice, 
 whose judgements in this matter are enforced by the usual 
 process. 
 
 It will be observed also that it forms in no sense a separate 
 branch of decisions. There are no special courts of Private 
 International Law, as there are for matrimonial cases, or 
 admiralty cases. It starts up unexpectedly in any court, 
 and in the midst of any process. It may be sprung like 
 
102 CONFLICT OF LAWS 
 
 a mine in a plain common law action, in an administrative 
 proceeding in equity, or in a divorce case, or a bankruptcy 
 case, in a shipping case, or a matter of criminal procedure. 
 It makes itself heard in every existing court of justice, 
 whether superior or inferior, civil or criminal, and it may 
 intrude, quite unlocked for, into the midst of any part of 
 the jurisdiction, whether substantive, or simple procedure. 
 The most trivial action of debt, the most complex case of 
 equitable claims, may be suddenly interrupted by the appear- 
 ance of a knot to be untied only by Private International 
 Law. 
 
 And yet when a question of this class arises, it is seldom 
 decided offhand with reference merely to English decisions. 
 Books are cited as authorities which are usually foreign ; 
 the decisions of foreign tribunals have frequently to be 
 reviewed. An author such as Huber, a Dutch professor of 
 the seventeenth century, is constantly quoted. American 
 decisions, the codes of foreign countries, public treaties, old 
 civilians, old and modern treatises on International Law, 
 are continually appealed to. Story, Fcelix, and BeuUenois 
 are in constant requisition, and the court will seriously 
 attend to dicta of foreign lawyers writing under systems 
 widely different from our own and from each other, whose 
 notions of jurisprudence rest upon theories entirely con- 
 trary to our own. When the student or the practitioner 
 consults for the first time, or for some immediate practical 
 object, such a collection of judgements and opinions as are 
 thrown together in Story's Conflict of Laws or by a scien- 
 tific theorist like Savigny, his first impression will too 
 often be that every possible view has been taken, and may 
 be taken again, on every conceivable branch of the subject ; 
 that every dictum is presently contradicted by another 
 dictum; that each country seems to follow its own view, 
 and often does not follow out any view with consistency ; 
 
CONFLICT OF LAWS 103 
 
 that Private International Law, looked at from the Inter- 
 national point of view, is not so much a branch of law, 
 common to civilized tribunals, as a chance medley of 
 contradictory propositions. 
 
 The confusion is not indeed anything like so great as it 
 appears at first sight. The amount of agreement, when 
 properly qualified and understood, is far larger than would 
 appear without explanation. But there are difficulties and 
 uncertainties, it must be admitted, even as tO' the first 
 principles of this branch of legal questions, and as to the 
 methods which are appropriate to solve them. 'Anceps, 
 difficilis, et late diffusa est disputatio,' says one old jurist — 
 Hertius — of the Conflict of Law — ' it is a perplexed, difficult, 
 and widely roaming branch of jurisprudence ; so that I doubt 
 if any single lawyer has dealt with it in the whole of its 
 extent.' ' In their definitions of its terms, it is marvellous ', 
 says he, ' how the doctors labour ' — ' mirum est quam sudant 
 Doctores' ' The opinions of writers, as well as the judge- 
 ments of tribunals, have hitherto been wildly confused and 
 conflicting,' says the great jurist Savigny. 
 
 Viewed as a collection of purely English decisions, the 
 judgements of our own courts per se, in cases of Private 
 International Law, are in a very considerable degree con- 
 sistent, positive, and plain. But when we go into these 
 decisions for the purpose of extracting their governing 
 principles, and to apply them, as general rules, to new 
 cases, we find that we cannot understand them, or even 
 get at the ratio decidendi, without a good deal of study of 
 jurisprudence wholly outside English reports, and without 
 some knowledge of the great doctrines of foreign jurists. 
 And we shall find also that Private International Law, 
 treated as a body of English decisions, cannot be advanced, 
 or even practically administered, without constant reference 
 to this mass of learning which lies outside strict English 
 case-law. 
 
104 CONFLICT OF LAWS 
 
 Looked at from the point of view of any particular system, 
 Private International Law is that part of the Municipal Law 
 of each civilized community which is determined by its rela- 
 tion to systems or rules of law other than its own. It will 
 hardly avail to say, that these extraneous rules are borrowed 
 from other systems of law ; much less that other systems of 
 law or foreign rules overcome the domestic in the conflict 
 of laws. For it is plain that the whole Private International 
 Law of any municipal system is really a substantive part 
 of that system, and is in no way foreign law or doctrine of 
 general jurisprudence. No part of Private International 
 Law has any binding force on an English tribunal, except 
 so far as it is incorporated in English decisions. So far it 
 is strict law in Austin's sense of that term. In spite of its 
 name, in spite of the fact that the two systems are mixed 
 up in so many text- books. Private International Law is here 
 a totally different thing from International Law. It is 
 imposed or adopted by the sovereign national authority; 
 it is enforced by the same process as the rest of the 
 Municipal Law ; and its authoritative sources are English 
 decisions. Moreover, International Law is, broadly speaking, 
 one body of rules for the whole civilized world [1879]. Now 
 each Municipal Law has its own Private International Law, 
 sometimes differing in striking features, and often embodied 
 in its code and statutes. 
 
 Yet withal, as a fact, there is very great convergence and 
 unity about these different versions of Private International 
 Law. There are undoubted general principles recognized 
 in all. The convergence grows constantly greater, and the 
 rules of each system cannot be intelligently applied, and 
 even cannot be intelligibly followed, without a clear grasp 
 of these general principles. Thus Private International Law 
 is truly a part of each municipal system of law ; but a part 
 which in great measure is identical in all municipal systems ; 
 
CONFLICT OF LAWS 105 
 
 a part which rests on principles more or less accepted by all 
 systems, and which is constantly growing more consciously 
 in harmony with these principles. 
 
 Lastly, this is a branch of law which has gained immensely 
 in importance of recent years [1879]. A hundred years ago, 
 the very rudiments of these questions were in England of 
 first impression, cases new and unconsidered. The vast 
 increase of communication and of locomotion which charac- 
 terizes this and the preceding generation — say roughly since 
 the Peace of 1815 — has given an enormous extension to 
 these matters. The peculiarities of English law, its special 
 methods of procedure, and of its sources of law, and the 
 entire neglect till recently of the civil law by English 
 judges and writers, have created unusual difficulties in the 
 way of assimilating this portion of the legal work of the 
 civilized world. But the last fifty years, even the last 
 twenty years, have done a great deal to bring England 
 into the family of nations on this point, and have shown 
 English judges and English lawyers as labouring hard to 
 naturalize amongst us the only principles on which this 
 branch of law can ever obtain a rational foundation [1879]. 
 The extremely divergent principles on which this branch 
 of law has been based can only be cleared up by tracing 
 historically its order of growth. 
 
 It was very early noticed that in Roman law strictly 
 there was no such thing as Private International Law. 
 Huber says, the reason is that the Eoman law was extended 
 over so large a portion of the habitable world that conflicts 
 of law could hardly occur. There were, however, under 
 Roman law both local customs and Municipal Laws, and 
 also the practice of recognizing the law properly belonging 
 to aliens. And yet there was no true Private International 
 Law in the classical civil law. The real reason of this 
 perhaps is that the Roman tribunals never realized the 
 
106 CONFLICT OF LAWS 
 
 conception of distinct but co-ordinate legal systems apply- 
 ing to different races and groups of citizens side by side, 
 each entitled to equal authority, and each lending itself 
 to the other. Private International Law implies a group 
 of states each having legislating powers, with a very 
 similar level of civilization, but having equal and in- 
 dependent sovereignty. This is obviously an idea long 
 subsequent to Roman law. 
 
 The old praetorian law did, in its origin, furnish some 
 analogies to Private International Law, at least in the 
 mode in which it was popularly thought to have arisen. 
 It was said that the Praetor, finding the Roman law fail 
 to apply to certain classes of persons and certain legal 
 cases, chose out of the various laws of all nations the rules 
 appropriate to the occasion. This was so far Private 
 International Law that a Roman tribunal administered 
 what were loosely said to be the rules of systems other 
 than its own, and these rules became incorporated as part 
 of the Roman municipal system. It was indeed a little like 
 Private International Law as conceived by Savigny, as 
 a symmetrical body of rules flowing from fixed principles 
 of general jurisprudence, and something like that which 
 is dreamt of by the modem foreign jurists who think 
 Private International Law stands on principles antecedent 
 to tribunals and even national convenience, and may be 
 cast into a uniform code for all modern states. 
 
 On the other hand, the 7ms Gentium was totally distinct 
 from Private International Law, inasmuch as it did not 
 profess to give strict application to other municipal rules ; 
 it did not apply these rules to particular features in each 
 case; nor did it rest on the assumption of a number of 
 equal and co-existing sets of municipal rules. Such rules 
 as the Lex loci rei sitae, or Lex loci contractus, or the rules 
 of Domicile, the Lex fori, the validity of a will according 
 
CONFLICT OF LAWS 107 
 
 to the forms of the place of its making — in fact all the 
 characteristic rules of Private International Law — had no 
 place at all in the law administered by the Praetor. If 
 the Praetor gave effect to a will made without mancipation, 
 he did so as part of the Eoman system of equity applicable 
 to Eoman citizens, just as he had begun by doing the same 
 thing for foreigners residing in Eome who could not use 
 Roman forms. But by Private International Law a modern 
 judge gives effect to a will, not on the ground that it ought 
 to be valid in spite of defect of form, but on the ground 
 that it was made in the form required by the lex loci of 
 the testator's domicile, whether citizen or foreigner. And 
 the modern judge recognizes twenty different forms, if 
 properly proved to him, and applicable to the case, how- 
 ever special to any peculiar place or system, and however 
 alien to his own ideas of law and equity. 
 
 Nothing of this kind was ever found in the Praetorian 
 law, or the lus Gentium, the very essence of which was 
 (1) uniformity of law, and (2) philosophical ideas of justice 
 underlying, or over-riding, the technical rules of positive 
 Municipal Law. Our Private International Law consists 
 of maxims to determine when, and under what conditions, 
 the technical rules of one system of positive Municipal Law 
 will be used to supplement, or correct, the technical rules 
 of some other system ot positive Municipal Law. In a 
 word, the Roman law has nothing really analogous to this, 
 because the Romans never accepted the modern notion 
 of civilized nations forming a friendly society of equal 
 independent sovereignties. Private International Law is 
 essentially a product of our moderi; sense of the brother- 
 hood of nations, a peaceful and mutually dependent family 
 of peoples. 
 
 As such we shall see that it only began to show some 
 traces of existence in the consolidation of the Feudal and 
 
108 CONFLICT OF LAWS 
 
 Catholic organization of Europe into separate states ; and 
 its first appearance as a system follows close on the rise 
 of the doctrine of the balance of Power after the period 
 of the Thirty Years' War, and close upon the great 
 European treaties and settlements which succeed the Peace 
 of Westphalia. 
 
 There can be no doubt that the first trace of a distinct 
 conception of the rules we now call Private International 
 Law is to be found in the famous chapter of Bartolus, 
 a great Italian civilian of the middle of the fourteenth 
 century. This Bartolo was a celebrated lawyer, bom at 
 Sasso Ferrato, in the territory of Ancona, in 1313, and he 
 died in 1358, in his forty-sixth year. In this short life 
 he succeeded in producing ten vast folio volumes on the 
 Civil Law and allied topics. In the first title of the first 
 book of the Code, on the Supreme Trinity and the Catholic 
 faith, Bartolus found the words cunctos populos. His 
 commentary and explanation of this phrase forms the 
 chapter which is the origin of our Private International 
 Law. It struck the keen eye of this ' lamp of law ', ' this 
 master of truth ', as he was called, that cunctos populos 
 meant something very different to his contemporaries and 
 to Justinian : ■ seeing that, in his own day, Europe was 
 made up of many sovereign states, having local laws origi- 
 nating in Feudalism, to which they clung tenaciously, and 
 so small and so much intermingled, that men were per- 
 petually passing from one to the other. 
 
 In fact, modern Europe being based on the settlement 
 of a crowd of conquering races — Goths, Burgundians, 
 Franks, and Lombards, on the old Eoman Empire — each 
 of these retained in a measure their national law ; and 
 thence arose, according, to strict feudal principles, the 
 notion of personal law or personal statutes, in opposition to 
 the territorial law. The general territorial law remained 
 
CONFLICT OF LAWS 109 
 
 the more or less modified civil law. The personal law was 
 that which applied to the various mingled races amongst 
 the subjects of each particular sovereign. 
 
 Now in this short chapter of Bartolus we have a sketch 
 of the true questions of Private International Law, treated 
 according to our modern canons. Thus, the first section 
 distinguishes the formalities of a contract from its sub- 
 stantial effect, and places the former, as we do, under the 
 law of the place where it is made. This is one of the 
 great canons grounding all modern rules on the subject. 
 The next section lays down another of our great canons — 
 that the lex fori determines the course of procedure in 
 every trial. Next, he treats of the rule of the lex loci rei 
 sitae : then he treats of the law as to personal status, and 
 therein of the general principle of domicile. Then comes 
 the rule that in Private International Law, as distinguished 
 from the Roman law, a testator may die partly testate, 
 partly intestate. He then treats of laws extending per- 
 sonal capacity as having effect outside the territory, whilst 
 those which limit personal capacity are confined to the 
 territory where they are in force ; next, the case whether 
 the English rule of inheritance by primogeniture would 
 be extended to real estate situate out of England. He 
 next treats of the extra-territorial effect of penal statutes. 
 
 Now here we have, though meagrely enough, a real 
 attempt to grapple with these questions in a scientific 
 spirit. Bartolus seems to have been the first who hit on 
 the true method of approaching them by analysing every 
 complex case into its component parts. He did not say 
 crudely, 'This case must be governed by this law, and 
 this by the other ' ; but he accurately traced up the gene- 
 rating fact of the legal relations in its varying course, 
 and placed each branch of the relation under its proper 
 rule. Thus he was led to the foundation of all Private 
 
110 CONFLICT OF LAWS 
 
 International Law when he said, ' In a case of complicated 
 legal relations the procedure to be followed in every court 
 is that of the court which is trying it; then, in a case 
 of contract we must distinguish the formalities on which 
 it professes to be based, the place where the contract is 
 to be executed, lex loci solutionis, the effects which may 
 follow from it, matters which arise elsewhere subsequent 
 to the contract, and the personal status of each contracting 
 party. To each of these elements in the transaction its 
 own appropriate local law must be applied.' Undoubtedly 
 we have here the germs of our existing Private Inter- 
 national Law. 
 
 Bartolus invented or systematized the famous grouping 
 of laws into laws personal and laws real, by which it was 
 attempted to classify laws that affected status and laws 
 that affected things or immovables. Too much has been 
 made by those who apparently never read him, of the 
 famous verbal test of Bartolus to distinguish these laws. 
 ' Bona veniant in primogenitum ', he said, was a real 
 statute; ' primogenitus succedat' was a personal statute. 
 Thus, it was said, ' the law will depend on the princes' 
 ideas of grammar.' This was no doubt ridiculous enough. 
 But notwithstanding this quibble (so entirely in the spirit 
 of the Mediaeval Logic), Bartolus's great distinction of Eeal 
 and Personal Statutes remained the basis of the whole 
 jurisprudence on this subject for three or four centuries. 
 
 It appears from this sketch of the meagre but distinct 
 work of Bartolus, that what is so loosely called Private 
 International Law is a great deal older than Public Inter- 
 national Law, of which it is sometimes taken to be a 
 branch. There was nothing that could be called Inter- 
 national Law as a substantive scheme of rules until the 
 consolidation of the European State-system in the sixteenth 
 or even seventeenth century. But as early as the four- 
 
CONFLICT OF LAWS 111 
 
 teenth century, the conflict or intermingling of separate 
 municipal laws had already been arranged as a definite 
 body of precise, and even teclinical, rules familiar to the 
 tribunals of Europe. 
 
 No step of any importance was taken down to the time 
 of D'Argentrd, a French judge of Brittany, who flourished 
 in the second half of the sixteenth century, and whose 
 works were published in 1608. Argentraeus (or D'Argentrd) 
 wrote in Latin. He did not treat Private International 
 Law systematically, but, as he wrote on the local law of 
 the duchy of Bretagne, he was incidentally led to consider 
 the problem arising when the local customs of Brittany 
 and the common law of France pointed to a different 
 solution of the same case. The way in which he is brought 
 to these questions was as follows. The custom of Bretagne 
 requires that no one should leave away by testament more 
 than one-third of his immovables. Ought immovables 
 situated out of Bretagne to be included in this third? 
 And if so, on what principle? This opens the entire 
 question of Private International Law. The great con- 
 tribution of D'Argentrd to the terminology of the science 
 was his adding to the personal and real statutes the class 
 of mixed. These are statutes which cencern at once per- 
 sons and property. For a century and a half at least from 
 the publication of D'Argentr^'s work the threefold division, 
 not the twofold division, was adopted. 
 
 "We may pause here to consider this famous tripartite 
 division of statutes. Statutes were originally any rule of 
 law, arising from custom, legislation, royal ordinance, or 
 judicial decision, but not being a rule of the old Eoman 
 law or common law of Europe. Thence the term statute 
 became applied to the whole municipal law of each state. 
 Personal statutes, to take the definition of Merlin, were 
 ' those which have principally for their object the person. 
 
112 CONFLICT OF LAWS 
 
 and treat only of property incidentally, such as those -which 
 regard birth, legitimacy, freedom, the right of instituting 
 suits, majority as to age, incapacity to contract, to make 
 a will, to plead in proper person, &c. Real statutes are 
 those which have principally for their object property, 
 and which do not speak of persons, except in relation to 
 property ; such as those which concern the disposition that 
 one may make of his property, either while he is living or 
 by testament. Mixed statutes are those which concern at 
 once persons and property.' But he adds, 'In this sense 
 'almost all statutes are mixed, there being scarcely any law 
 relative to persons which does not at the same time relate 
 to things.' 
 
 This classification held its ground down to the end of 
 the eighteenth century, and perhaps cannot yet be spoken 
 of as perfectly exploded. But it is obvious to us, at least, 
 who have been trained in the school of Bentham and Austin, 
 that it meant nothing. 
 
 All laws, according to the analytical jurists, are commands 
 addressed to persons to do or to abstain from doing certain 
 things; and the notion that some classes of laws affect 
 persons and other classes affect things is entirely unscien- 
 tific. Take such a simple question as this — the age at which 
 a person shall be treated as competent to make a valid 
 disposition of his or her estate, according as the property 
 is movable or immovable. Is this a law relating to persons 
 or relating to things ? It is obvious that subtlety is wasted 
 in endeavouring to solve so idle a question. There is, more- 
 over, another difiiculty. How define what are personal 
 statutes that do relate to persons, and what are real and 
 relate to things? This difficulty has led to endless refine- 
 ments and distinctions, one writer differing from his pre- 
 decessor and laying down new tests of the distinction. 
 As Savigny explains, the distinction of real, personal, and 
 
CONFLICT OF LAWS 113 
 
 mixed statutes contains some rough, approximation to truth, 
 and has an element of reality in it. For instance, the age 
 at which a man or woman can contract a valid marriage 
 may be fairly called a personal law, the mode in which 
 land can be validly conveyed may be called a real law. 
 There is in extreme cases this residuum of truth about 
 the distinction. But for a general theory it is too vague 
 and uncertain to be relied on, and the consequence is, 
 that the different ways in which a succession of writers 
 have explained the distinction have destroyed any utility 
 in the theory. 
 
 The total want of scientific basis in the distinction itself, 
 the idle and cumbrous subtleties to which it gave rise, 
 and the impossibility of applying the distinction exactly 
 to a variety of systems of law, seem to leave no alternative 
 but that of finally discarding all remnants of the division 
 of personal and real laws. It would be better to treat the 
 terms solely as matter of history. It is a signal instance 
 of the value of the English analysis of law, matured by 
 Austin, that it at once clears up the inveterate confusion 
 which for centuries embarrassed the most famous civilians. 
 When we analyse a law into the command of a sovereign 
 addressed to a person, commanding him to do, or to forbear 
 from, some thing, we learn to treat status, acts, and things 
 as elements which we can in the abstract detach from the 
 complex parts of every concrete law, and so view them 
 as separable elements of it for logical purposes. And thus 
 we cease to refer one legal doctrine to status and another 
 to things. A very simple rule of law, contained in one 
 line — ^viz. that the contract of an infant is binding if 
 ratified on his majority — mixes up matters of status, acts, 
 and things in a way that can be analytically considered 
 apart, but so that the rule of law in the concrete cannot 
 be classified under one element more than another. The 
 
114 CONFLICT OF LAWS 
 
 attempt to refer all laws or rules of law absolutely to any 
 one of these elements belongs to tbe very infancy of juris- 
 prudence. 
 
 It follows from this that an immense portion of the 
 literature on the Conflict of Laws has been based on a 
 thoroughly unscientific theory; indeed, upon a theory 
 which was a simple confusion of thought. The labyrinth 
 of distinctions into which their notion of personal and 
 real statutes involved them, seems to have led the older 
 writers on the Conflict of Laws to distrust the very basis 
 of their work, and to be perpetually seeking a new foun- 
 dation. The civilians of the sixteenth, seventeenth, and 
 eighteenth centuries were constantly exercised to discover 
 some new reading of the old division. Hence, from the 
 point of view of scientific theory, their labours are almost 
 valueless to us. At the same tim-e, their native acuteness 
 and their practical sense enable them to lay down most 
 useful dicta in a mass of special cases. It is well, however, 
 to remember that from the point of view of rational theory 
 their method was utterly vicious and idle. Private Inter- 
 national Law requires cases to be broken up and analysed ; 
 and every attempt to group rules of law under one or two 
 great classes was utterly useless for the purpose of this 
 analysis. "When we see the older writers, down to the 
 beginning of this century, solemnly cited as authorities 
 in such books as Story's, we must steadily bear in mind 
 that, with all their good sense and practical judgement, 
 they none of them had a really scientific conception of the 
 subject. 
 
 The earliest attempts to found a theory of Private Inter- 
 national Law had been made in Italy in the fourteenth 
 century. The next great epoch was in Holland and 
 Northern France in the seventeenth and eighteenth cen- 
 turies. The Dutch civilians, who held fast, on the one 
 
OONFLICT OF LAWS 115 
 
 hand, to the old theory that personal statutes everywhere 
 followed the person whom they affected, on the other hand 
 were confronted with the fact that Dutch independence 
 required the most rigorous assertion of the principle that 
 the Sovereign is supreme within his own territory, and 
 also with the fact that they found themselves surrounded 
 with a mass of small communities having different local 
 laws, and closely united in commercial intercourse. The 
 Dutch jurists set themselves valiantly to adapt the problem 
 of a supreme territorial law to the personal capacities and 
 liabilities of a very migratory people. It was, in truth, 
 a dilemma which far exceeded their utmost ingenuity. 
 
 Eodenburg, judge of the Court of Utrecht, was the 
 earliest of these : he wrote, in 1653, De Statutorum diversitate. 
 Paul Voet, also a Professor of Utrecht, wrote, in 1663, De 
 Statutis et eorum concursu. John Voet, his son, in 1698, 
 wrote De Statutis. Ulrich Huber wrote, in 1686, a short 
 treatise, De Confiictu Legum ; and Hertius, or Hert, a judge 
 and professor at Giessen, wrote a short treatise in 1688, 
 De ColUsione Legum. "We thus get a body of writers in 
 Holland and North Germany during the second half of 
 the seventeenth century, the age of Louis XIV, all treating 
 of the classification of laws under the titles of diversity, 
 or conflict, or concur sus, or collision of law. The term 
 comity (which occurs in the form comiter in the Digest) 
 seems to have been first introduced by Paul Voet in 1663. 
 The term in familiar use in modern law — conflict of law — 
 seems to have been introduced (it certainly was popularized) 
 by Huber, and dates from 1686. 
 
 But there is another ground on which Ulrich Huber 
 stands out apart from all other civilians. All of these 
 writers, full as they are of good sense, learning, and 
 practical acumen, were entirely occupied with the old 
 problem how to distinguish personal from real statutes; 
 
116 CONFLICT OF LAWS 
 
 how to find tests for such statutes as had validity outside 
 the territory, and for those whose force was limited to it- 
 This, as I have already argued, is a perfectly futile and 
 unreal inquiry ; but in Ulrich Huber, if he uses this basis, 
 we have something more. The treatise of Huber, De Con- 
 flictu Legum, is simply a small essay in his Introduction 
 to the Civil Law. It is all printed in five quarto pages. 
 In the whole history of law there are probably no five 
 pages which have been so often quoted, and possibly so 
 much read. They are distinguished by clearness, practical 
 judgement, and a total absence of pedantry. So far as 
 they go,, the maxims of these five pages are satisfactory 
 and accurate. It is true they go a very little way, and 
 are exceedingly general. But, at the same time, they 
 cover the ground of Private International Law, and treat 
 it according to our modem ideas. 
 
 During the seventeenth century Private International 
 Law was in the hands of the Dutch ; during the eighteenth 
 it was in the hands of the French. But the latter added 
 nothing to the general principles of the science. It is 
 needless to do more than note the works of D'Aguesseau, 
 Bouhier, Froland, and Boullenois, all of whom flourished 
 in the first half of the eighteenth century, the great pre- 
 Eevolution era in France. They are all full of acute 
 remarks on special cases, but they none of them succeeded 
 in adding many scientific rules to the three famous canons 
 of Huber, and they adhered to the old hopeless plan of 
 trying to classify statutes, instead of analysing legal re- 
 lations. By far the most important of all these was 
 Boullenois. He translated and amplified the old treatise 
 of Rodenburg, the earliest of the Dutch school, who wrote 
 in 1653. Boullenois adhered closely to the strictest scheme 
 of classifying statutes as real and personal, rejecting with 
 Eodenburg the distinction of D'Argentr^ into the third 
 
CONFLICT OF LAWS 117 
 
 kind, or mixed. He lays down forty-nine maxims of 
 practical value, but without any scientific character; and 
 he tries to build up minute sub-distinctions of laws as laws 
 personal and universal ; laws personal and particular ; and 
 laws personal and particular purely, and laws personal and 
 real. All this is obviously useless pedantry. But, at the 
 same time, BouUenois is still much cited. His vast learning, 
 his careful style and profound patience, make his decisions 
 in aU concrete cases interesting and valuable. He is the 
 Eldon of Private International Law. He died in 1763. 
 
 From this date to the close of the century — indeed, we 
 may say down to the first quarter of the nineteenth 
 century — we find hardly any writing at all on this subject. 
 And this may serve to show us how intimately it was 
 connected with political and social conditions. The latter 
 half of the eighteenth century was occupied with the shock 
 of the great French Eevolution, and the military and 
 political consequences of it; whilst the early years of 
 the nineteenth century were engrossed in the great wars 
 and the vast social and political changes which followed 
 them. War had broken down the peaceful interchange 
 of municipal laws — inter arma silent leges. The whole 
 system of law in Prussia, in France, and in so many states 
 of Europe, was transformed, and the new Codes, based on 
 the Civil Code of France, made a new departure for the 
 municipal law of Europe. Many of the sources of Private 
 International Law, arising from local law, were swept 
 away; many of its knotty points were solved by legis- 
 lation or by treaty. And thus for the time it ceased to 
 furnish the civilians of Europe with interesting problems. 
 
 What during all this time had been the position of 
 England with regard to this science? It had been abso- 
 lutely null. So far as I know, there does not exist, in 
 the whole range of the English law library, a single 
 
118 CONFLICT OF LAWS 
 
 treati-se, not an essay or a commentary, on this branch 
 of law earlier than the nineteenth century. The Dutch 
 civilians were scarcely known at all; the French were 
 occasionally cited. Down to the middle of the eighteenth 
 century in England I cannot find a single opinion or 
 decision which seemed to show the consciousness on the 
 part of English lawyers that there was any branch of law 
 such as that we are now considering. In 1753, in Scrinishire 
 v. ScrimsMre, a very simple case of foreign marriage was 
 treated as a case of first impression, not previously con- 
 sidered or decided. Our insular position, our complete 
 detachment from the civil law, and our complete indifiference 
 to any systematic treatment of legal theory apart from cases 
 of practice, explain the fact that down to the beginning 
 of the nineteenth century Private International Law was 
 absolutely unknown in this country. 
 
 From the close of the eighteenth century, and in the 
 early part of the nineteenth century, a series of new causes 
 began to operate. The great school of philosophical jurists 
 which culminated in Savigny transformed the field of 
 jurisprudence. After the appearance of his System of 
 Modern Soman Law the whole scheme of legal ideas 
 received a new foundation. But before this, other causes 
 had been at work. The new codes and systems of law 
 in Europe began to be compared with each other. New 
 relations of intercourse between states were multiplied. 
 And a far more fertile source of growth was at work. The 
 States of America had each their own system of law, and 
 they threw up a mass of problems, turning on the inter- 
 change of Municipal Law, precisely similar to those which 
 the local law of the small communities of Holland and the 
 provinces of old France had furnished to the Dutch and 
 the French civilians of the seventeenth and eighteenth 
 centuries. Each State in America had its law of marriage 
 
CONFLICT OF LAWS 119 
 
 and divorce, its bankruptcy law, its system of land law 
 and security law. Louisiana had the civil law of France 
 for its common law, and the Code of Napoleon for the 
 type of its code. The Northern States had the English 
 common law and English decisions. Here was an un- 
 limited source for problems in the Conflict of Laws. To 
 solve these problems, the great American lawyers and 
 judges were thrown back upon the old Dutch and French 
 civilians. The American decisions and dicta of the civilians 
 were all collected rather than arranged in the vast and 
 trackless wilderness, that encyclopaedia of learning, known 
 to us as Story's Conflict of Laws. 
 
 This famous work was first published in 1834 (it has 
 now reached the 8th edition, 1883) ; and from the date of its 
 appearance hardly a single case on this subject in America 
 or in England, and perhaps few on the Continent, have 
 ever been decided without some reference to this learned 
 book. A new era in the History of Private International 
 Law may be traced from it. It was an immense storehouse 
 of legal decisions on every topic. For the first time, the 
 English and American judgements were placed side by side 
 with extracts from the whole range of the civilians, from 
 some fifty of whom the author gives us copious selections. 
 It was at once manifest that this class of question could not 
 be decided by exclusive reference to our own particular 
 municipal system. 
 
 Story's Conflict of Laws, though in many ways the most 
 important and possibly the most comprehensive that exists 
 on this] department of law, is in other respects one of the 
 least scientific, and one of the least conclusive books in the 
 entire library of the jurist. It is a vast repertory of opinions 
 on every known topic from every accessible writer; and 
 these heterogeneous opinions, based on a multitude of con- 
 flicting theories, drawn from writers extending over a period 
 
120 CONFLICT OF LAWS 
 
 of five centuries, and of value utterly different, are tossed 
 together almost like the words in a dictionary, without any 
 attempt to draw a conclusion from the balance of authority. 
 To Story it seems sufficient that a jurist has made a remark ; 
 and whether the remark was made under the Feudal system 
 of Europe in the fourteenth century, or by an American 
 judge trained in the Anglo-American common law, it makes 
 no difference. ' Ita scriptum est ', says Story, and he declines 
 to make any attempt to weigh these various dicta. 'My 
 object', says he, 'has not been to engage in any critical 
 examination of the comparative merits or mistakes of the 
 different commentators, but rather to gather from each what 
 seemed most entitled to respect and confidence.' And 
 undoubtedly he has succeeded in this rather uncritical 
 object. 
 
 From the sketch of the various theories given above, it 
 is clear that the vast learning and the ingenuity of these 
 civilians have been expended on purposes which were really 
 quite valueless, in order to answer such idle questions as 
 the reality and personality of statutes and the like, and to 
 explain the reason why the laws of one country should have 
 validity in another. At any rate, the older jurists have to 
 be read with the utmost caution, and weighed in the most 
 critical balance, unless they are to mislead the modem 
 lawyer. And the critical balance is what Story deliberately 
 disclaims any right to apply. 
 
 At the same time, his great practical good sense, his 
 vast experience as a judge, his industry and indefatigable 
 patience, make his great work a really indispensable text- 
 book. It is a kind of dictionary of all opinions and all 
 topics, and there are few writers in any language or age to 
 whom the student will not find ample reference, and from 
 whom he will not find extracts and opinions. I do not 
 wish to disparage on the whole a very useful and standard 
 
CONFLICT OF LAWS 121 
 
 work of reference. But a word of caution is needed that 
 this famous work on the Conflict of Laws is indeed a conflict 
 of opinions ; it is, as it professes to be, a book of reference, 
 and not a critical work of judgement and authority. 
 
 But whilst the States of America had been furnishing 
 to Story and his fellow-countrymen a vast assemblage of 
 difficulties to solve in the Conflict of Municipal Laws, an 
 analogous movement has been at work in England from the 
 beginning of the nineteenth century. The international rela- 
 tions of England with other states were enormously expanded 
 by the entanglement of wars, alliances, conquests, resettle- 
 ments, and colonization, that marked the earlier years of 
 the nineteenth century. The maritime law took new and 
 great proportions, and it threw up in Lord Stowell one of 
 the most impressive judges that has ever co-operated in the 
 development of English law. His stately and graceful 
 judgements make Robinson's and Haggard's Reports almost 
 a section out of English literature ; and as he presided in 
 the courts that dealt with maritime questions generally, 
 and also with questions of marriage, divorce, legitimacy, 
 and testamentary capacity (courts which alone of all the 
 English tribimals based their decisions avowedly on the 
 civil and canon law), an immense impulse was given to the 
 study of these knots of international or intermunicipal 
 jurisprudence, and the authority of the civilians who had 
 treated them began to be habitually cited by one of our 
 foremost judges, perhaps the one most generally known and 
 read by the public. 
 
 What was done by Story in America had been in some 
 measure previously done for England by Lord Stowell. 
 That distinguished and accomplished lawyer was followed 
 by a succession of. eminent civilians, such as the late 
 Dr. Lushington, Sir C. Cresswell, not to mention the other 
 judges who have occupied his bench. The judgements of 
 
122 CONFLICT OF LAWS 
 
 these learned men nearly coincided witli a remarkable 
 series of decisions by the House of Lords on the conflicts 
 that arose between Scotch and English law, chiefly on the 
 subject of Marriage, Divorce, Legitimacy, and Succession. 
 
 Since the beginning of the nineteenth century another 
 influence has increased the importance of this subject. 
 The immense colonial empire which had been acquired or 
 consolidated during the long wars at the close of the 
 eighteenth and the opening of the nineteenth centuries, 
 threw upon our tribunals the ultimate decision of a vast 
 body of cases arising under multifarious systems of law. 
 English judges were called on to determine cases under 
 French law, Dutch law, Danish law, Spanish law, and all 
 kinds of modifications of the civil law, in accordance with 
 local practice or special legislation. Along with these cases 
 came those under the Indian law, partly Hindoo, partly 
 Mahommedan, partly of British enactment. And cases 
 under any of the local systems, or under any colonial code, 
 were correlated with, or conflicted with, English law. The 
 migratory and adventurous habits of Englishmen and 
 English traders, and the enormous development of British 
 commerce and British settlements within the century, 
 opened an almost inexhaustible field for these questions of 
 intermixed jurisdiction. English tribunals, and especially 
 the Privy Council, the ultimate tribunal of appeal for the 
 whole colonial empire, have consequently had cast upon 
 them a task such as perhaps never fell to the lot of any ' 
 tribunal in ancient or modern times. It was nothing less 
 than that of trying cases complicated by the rules of almost 
 every system of law that obtains in any part of the habitable 
 globe. 
 
 The result of this has been the formation of a vast body 
 of jurisprudence, hardly any portion of which existed in 
 the days of Lord Eldon. Forty years ago there was not 
 
CONFLICT OF LAWS 123 
 
 a single English work on this great department of law. 
 "We have now [1879] an entire literature on the subject in 
 the works of Burge, Westlake, Wharton, Phillimore, Foote, 
 and Dicey, not to speak of the remarkable series of judge- 
 ments in the Privy Council, in the Court of Appeal, and in 
 the Court of Probate and Divorce. A number of political 
 causes — our vast commerce, heterogeneous empire, and our 
 subdivision, even at home, into three kingdoms, each with 
 a separate jurisdiction — have placed this country in the 
 front rank of those which are concerned in these problems 
 of the Conflict of Laws. The work has been done essentially 
 in the English fashion, that is, by judges determining 
 practical cases, not by jurists propounding doctrines. The 
 English theoretical lawyers have been late in entering on 
 the field already occupied abroad by some of the most 
 illustrious names in the literature of law. But these are 
 now filling up the void ; and in this branch of learning at 
 least our countrymen need feel no shame when they speak 
 with their neighbours at the gate. 
 
 Our English conception of law, indeed, preserves us from 
 the fantastic sophism which is current in parts of the 
 Continent, that Private International Law can be created 
 into a uniform system by the nreditations of jurists, and 
 imposed by virtue of its logical consistency on the various 
 tribunals of Europe. Some of the more recent publicists 
 of Germany and Switzerland, and even the great name ot 
 Savigny, have been invoked in support of this singular 
 Utopia. At the annual congresses of International Law we 
 hear much to the same effect. Indeed, there seems to be 
 growing up a continental school (led chiefly by Italians) 
 who dream of a universal Code of Private International 
 Law ; who would appear to look on these rules as having 
 a claim antecedent to, and higher than, any municipal or 
 national law whatever, and who think that they can be 
 
124 CONFLICT OF LAWS 
 
 placed on the same basis as International Law, as a kind of 
 universal common law of the civilized world. 
 
 Englishmen, whose ideas of law are based on the theory 
 of sovereignty which we derive from Hobbes, Bentham, and 
 Austin, whose notions of jurisprudence are drawn from 
 practical decisions, not from dogmatic theories, are not 
 likely to be very sanguine about the prospects of a juris- 
 prudence that professes to be independent of all positive 
 legislation, paramount to the decisions of all tribunals, 
 indifferent to local practice and habit, and almost superior 
 to public convenience. 
 
 The English habit of extracting a general rule from a 
 comparison of decided cases, and the enormous variety of 
 the English relations with foreign codes, are no doubt 
 influencing the foreign lawyers by leading them to extract 
 rules of mutual convenience a posteriori from an examina- 
 tion of actual decisions, rather than to frame general dogmas 
 a priori from logical deductions. Another important element 
 in the future is the growing practice of international 
 arrangement, by which some of the most knotty problems 
 are being directly solved by public treaty between sovereign 
 states. Everything points to this process as the most 
 reasonable, as well as the most practicable, method by 
 which the inevitable Conflict of Laws between civilized 
 and equal communities may be brought within manageable 
 shape. Nations, which are every year settling some case 
 of international administration by official or diplomatic 
 conferences, must ultimately learn to settle the more 
 troublesome problems arising out of the diversity of their 
 laws by the same process. But, in order that we may bear 
 our part in this most desirable end, we need the formation 
 of a school of lawyers specially conversant with this subject. 
 Nor can it be any longer remarked by American and conti- 
 nental lawyers that England is the one country without 
 such a school. 
 
CHAPTER V 
 
 THE CONFLICT OF LAWS. II 
 [1879] 
 
 Having traced the development of Private International 
 Law, we will proceed to consider the limits, sources, and 
 definition of this branch of jurisprudence. The extreme 
 diversity of names that have been applied to it points to 
 a very remarkable elasticity in the way in which its func- 
 tion and field have been conceived. The Conflict, Concourse, 
 Collision, Diversity, Contrariety of Laws have been adopted 
 as terms as well as Private International Law, the Personality 
 of Statutes, Mixed Questions, Limitations upon law arising 
 from questions of Place, and many others. 
 
 Private International Law is in many ways a very unsatis- 
 factory name. It suggests the wholly erroneous idea that 
 it is a sub-department of International Law. International 
 Law treats of the public relations of states ; Private Inter- 
 national Law of the decisions of local tribunals. Inter- 
 national Law is one for the whole civilized world; it is 
 a system of rules common, or supposed to be common, to 
 the society of nations. Private International Law, on the 
 other hand, takes into account a great diversity of practices 
 on the same matters adopted by different friendly nations. 
 There is very far from being any common code or common 
 law. Private International Law is the Conflict of Laws. 
 Public International Law is the Concordance of Customs. 
 International Law has no reference to tribunals at all. 
 Private International Law is solely concerned with the 
 
136 CONFLICT OF LAWS 
 
 practice of tribunals. International Law has no sanction 
 in Austin's sense of the word ; or its sanction is war, public 
 opinion, or loss of national character. It is (in Austin's 
 sense) not law. Private International Law has the same 
 sanction that any other part of the Municipal Law has; 
 and is, stricto sensu, law. Austin has pointed out the vague- 
 ness of the terms private and public law, the diversity of 
 senses in which they have been used, and the fallacy of 
 opposing private to public law. In the civil law sense, 
 private law is civil law as opposed to constitutional law and 
 to criminal law. Yet questions of criminal law — such as 
 extradition, the applicability of the penal law, the arrest, 
 trial, and punishment of persons not citizens of the state, 
 or in respect of offences committed outside the country 
 trying the prisoner — these are questions of public law, and 
 yet they are usually included, and ought properly to be 
 included, in Private International Law. The same may be 
 said of questions of allegiance, naturalization, and expatria- 
 tion. These are certainly questions of public law in what- 
 ever sense we use the word Public law ; and yet they are 
 usually included, and properly included, in Private Inter- 
 national Law. Such questions are also very rightly and 
 properly included in treatises on Public International Law. 
 Hence result these anomalies: — (1) Private International 
 Law is not International Law at all ; (2) the term Private 
 Law is always loose and unscientiiic ; (3) Private Inter- 
 national Law embraces large portions of what is certainly 
 Public Law, and some things which are actually determined 
 by Public International Treaty. The nomenclature in fact 
 rests on a series of false analogies and cross divisions. 
 Lastly, Private International Law is an exceedingly 
 cumbrous and troublesome phrase. 
 
 There is a sense in which Private International Law has 
 close relations with International Law. All questions of 
 
CONFLICT OF LAWS 137 
 
 citizensliip, reciprocity of civil rights for tlie citizens of 
 different states, extradition, criminal justice where offender 
 or offence have been, or are, outside the territory of the 
 forum — the entire question of comity or reciprocity — are all 
 closely related to International Law. But the relation is 
 not that of opposition or contrast. There is no possible 
 bisection of the field between Public and Private Inter- 
 national Law. We cannot contrast them as we do — Civil 
 and Criminal Law. There is not one class of rights or legal 
 relations within the field of Public, another class within 
 the field of Private, International Law. They sometimes 
 deal with the same class of legal relations, as in the case 
 of extradition or expatriation, but they treat them from 
 different points of view for different purposes. A Scotch 
 divorce of Un English marriage forms a typical example of 
 Private International Law. What has that to do with 
 International Law? The only quality of Public Inter- 
 national Law it has, is in the relations of two communities 
 under different Municipal Law and under one sovereign. 
 That is to say, Public and Private International Law some- 
 times treat the same class of legal relations from totally 
 different points of view ; the one as it strikes governments 
 and diplomatists, the other as it strikes judges and the 
 officials of tribunals. Sometimes the two have no common 
 field at all, and no point of contact, except in that both are 
 concerned with relations, not between two states, but 
 between two municipal systems. There might be, and in 
 fact we may say there is, a complete system of Private 
 International Law in the federal States of America inter se ; 
 just as there was in the seventeenth century, in Huber's 
 time, in the Dutch communities, or as there was in the 
 French provinces in the time of Bouhier, BouUenois, and 
 Pothier. But there was but one national sovereignty for 
 all of these communities taken as a group ; and therefore 
 
128 CONFLICT OF LAWS 
 
 there can be, properly speaking, no international questions 
 between them. Strictly speaking, if a man dies intestate 
 holding real estate in several counties, part of which is 
 gavelkind or borough English in tenure, the succession to 
 his lands is determined by a set of considerations which are 
 really Private International Law, though obviously there is 
 nothing international about them. 
 
 On the other hand, the terms Conflict of Laws, Collision, 
 Contrariety and the like, are equally unsatisfactory. It has 
 often been pointed out that there is no conflict. The law of 
 England adopts the law as to the forms of a marriage con- 
 tracted in France, or as to the forms of a will made by an 
 Englishman domiciled in France, not because English law 
 is worsted in a conflict or collision with the French law, but 
 because it is the law of England that the forms of the wiU 
 shall be valid, when it is made in accordance with the law 
 of the testator's domicile, or those of a marriage in accor- 
 dance with the law where it is celebrated. There is no con- 
 flict and never was. This is simply the law of England. 
 Where is there in English law any provision as to the way 
 in which marriages shall be celebrated in France by French 
 officials ? There is no provision at all, and by the funda- 
 mental principles of International Law there can be none ; 
 and clearly there is nothing with which the rules as to 
 French marriages established by French law can be brought 
 into collision. The only question is — whether an English 
 tribunal will try a cause having regard to these French 
 rules. But what rule English judges will follow in trying 
 a case before them is a pure question of English law. The 
 real question here is, not whether French or English laws 
 are to prevail, but whether this case is one to which the 
 English law was ever intended to apply. If the judge finds 
 that the English law has been extended to the case before 
 him, he decides it so, and ends the matter, as in the case of 
 
CONFLICT OP LAWS 129 
 
 the Royal Marriage Act, or the case of marriage within the 
 prohibited degrees. If he finds that the prima facie or 
 apparent rule of English law does not cover it, .then he 
 ascertains what the English law directs to be done, and he 
 may find that it directs him to go to some other set of rules. 
 
 This case is precisely the same as the case of local custom, 
 or special practice. Suppose that a contract is being tried 
 in an English court. In the course of trial it appears that 
 the matter is properly referable to the custom of merchants 
 or some local practice. The judge, who may now for the 
 first time hear of the existence of the custom or practice, 
 adopts the rule, and decides the case by it. There is here no 
 conflict or collision of any kind. The common law of Eng- 
 land is not overcome in the contest with the custom of the 
 Exchange, or the practice of auctioneers. It simply defines 
 certain cases in which it is open to proof that the legal 
 relation of the parties is subject to, and the appropriate 
 rule to which it must be referred is, the custom or practice. 
 There is no more any conflict or collision here than there is 
 in a case where it is held that the law relating to murder 
 does not apply to a state of facts amounting to accidental 
 homicide. Evidence shows that the rule of common law or 
 the statute as to murder does not apply to a legal liability 
 originating in the circumstances of the case under trial. 
 Just so, the court finds that the forms imposed by the 
 English Marriage Act do not apply to a legal status origi- 
 nating in a celebration by a French mayor. In neither 
 case is there any conflict. 
 
 At the utmost there is not a Conflict of Laws, but ambiguity 
 arising from the fact that more than one set of co-ordinate 
 laws apparently apply to the case. The phrase of Savigny 
 is strictly exact; Private International Law marks the 
 limitation of legal rules in respect of place. Rules of law 
 are intended to apply to states of fact in certain periods and 
 
130 CONFLICT OF LAWS 
 
 in certain localities. Private International Law determines 
 the limits of place. But then this description of the subject 
 does not point to the rule which does decide the case ; it 
 does not embrace the mutuality, or the interchangeability, of 
 the law. In many ways the old French term, mixed ques- 
 tions, is a very good description. It points emphatically to 
 a class that can only be determined by resorting to more 
 than one system of law. The Lex fori always must estab- 
 lish a jurisdiction in some way, and in Private International 
 Law it determines cases by reference to some other rules 
 than its own. This combination of jurisdiction; this inter- 
 change of one law system with another, this reference to 
 more than one law as applying to a case, is the essence of 
 the idea. 
 
 There is a strong temptation to venture on the hazardous 
 experiment of submitting a new term to describe this branch 
 of law. Obviously objections maybe made against attempts 
 to give new names to old subjects. But in this case the 
 terms in the field are confessed to be inadequate. There 
 are a great many terms in constant use, very different in 
 themselves, and all very defective. Private International 
 Law is a cumbrous term ; it is quite misleading, because it 
 uses words in a non-natural sense, and words which bear 
 a constantly shifting sense. The ' Conflict of Law ' is a 
 metaphor, and a very misleading metaphor. Now I take 
 the leading fact that Private International Law is a sub- 
 stantive part of Municipal Law. I take the other leading 
 feature, that it is really the interchange of Municipal Law ; 
 and I propose to name this branch of law Intermunicipal 
 Law. 
 
 The advantages of this term I take to be these. Inter- 
 municipal Law will be rightly contrasted with International 
 Law. International Law will be the so-called law which 
 has grown up to regulate the intercourse of states with each 
 
CONFLICT OF LAWS 131 
 
 other. Litennunicipal Law will be that part of Municipal 
 Law which is determined by reference to more than one 
 municipal system, that part of every municipal code which 
 defines its relations to other municipal codes. Municipal 
 Law is always contrasted with International Law as mean- 
 ing the internal law administered by tribunals, not the 
 customs observed by sovereigns or ministers inter se. And 
 this is exactly the true character of Private International 
 Law ; it has nothing national or of public law about it. 
 Private International Law is a confusion of terms, because 
 national is equivalent to public, which is like saying private 
 public law. Now municipal law is a correct term, whilst 
 private is not; and, of course, it embraces criminal law, 
 which, in the language of the civil law, private law does not. 
 When one says intermunicipal law, one points to the fact 
 that we are looking to the interchangeable part of Municipal 
 Law, which is exactly the distinctive point of view. Lastly, 
 Intermunicipal Law is a much less cumbrous phrase than 
 Private International Law. It is certainly not more cum- 
 brous than International Law, and quite as correctly formed. 
 The one relates to the rules followed in the intercourse of 
 nations, the other to the rules followed in the intercourse, as 
 itwevQ,o£ tribunals. I confidently recommend this new word, 
 Intermunicipal Law, as at once accurate and convenient 
 where inaccurate and inconvenient terms are in use, unless, 
 indeed, any man prefers the precise terms, Interforensic or 
 Interjural Law. 
 
 Let us now attempt to define Private International 
 Law, that is, Intermunicipal Law, and to determine its 
 exact field. 
 
 The exact description of it is as follows : The law of com- 
 pound jurisdiction. It is at once a rule of all Public Law, of 
 International Law, and of every municipal system, that 
 each sovereign state has exclusive jurisdiction over all 
 
132 CONFLICT OF LAWS 
 
 persons, acts, and things within its local limits, and conse- 
 quently over all causes arising within those limits. So far 
 the basis of Private International Law rests on a general 
 principle of Public International Law — viz. the exclusive 
 territorial sovereignty of states. But as sovereign states 
 have common dealings which lead to international relations, 
 rights, and duties towards each other, so the individual 
 citizens of sovereign states have common dealings which 
 lead to intermunicipal relations, rights, and duties towards 
 each other. To a certain degree the persons, acts, and 
 things within one territorial jurisdiction are related to, or 
 connected with, a like series of persons, acts, or things in 
 another territorial jurisdiction. A complicated series of 
 facts, or acts, leads to what, in Savigny's language, may be 
 called a legal relation between two persons, or between a 
 person and a thing. But it may happen that in this series 
 of facts, or acts, there are found some which arise, or are 
 found, within some other territorial jurisdiction. What in 
 this case is the local law or local court to do ? Is it to treat 
 these external acts and facts strictly by its own rules ? In 
 that case it will be violating its own first principles in 
 extending its rules beyond its own territorial jurisdiction. 
 Is it to treat these acts and facts as null and void ? This 
 will work practical injustice, not only to foreign citizens 
 but also to its own. Now so far Public Law, i.e. Inter- 
 national Law, goes. It is an axiom of International Law 
 that no state can refuse all rights to foreigners within its 
 jurisdiction, nor can it treat with injustice or simply ignore 
 their rights and legal position. No state can treat foreigners 
 as outlaws, or decline to recognize all rights of theirs founded 
 on facts or acts passing out of territorial limits. To do so 
 would be a ground for reprisals, international redress, and 
 ultimately war. Thus International Law forces states to 
 take some recognition of legal relations arising out of facts 
 
CONFLICT OF LAWS 133 
 
 and acts beyond the territory. And it is thus, as it were, 
 the parent of Private International Law. 
 
 There, however, it stops. It does not in any way deter- 
 mine how or by what system Municipal Law shall recognize 
 these extra-territorial facts. It is accustomed to say that it 
 leaves that to comity. So long as the Municipal Law of a 
 country is not palpably unfair, or wantonly blind in dealing 
 with persons or rights which are only temporarily or par- 
 tially within its local jurisdiction. Public Law has nothing 
 to say. Accordingly, Intermunicipal Law is in no sense a 
 part of or a deduction from International Law. The utmost 
 we can say is that International Law requires that there 
 shall be some Intermunicipal Law. There are large sections of 
 Intermunicipal Law, such as those relating to Criminal Law, 
 Allegiance, Expatriation, all sections (and they are increas- 
 ing) relating to treaties, which are closely associated with 
 International Law : and accordingly justify the practice of 
 writers such as Wheaton, Phillimore, Halleck, and others, 
 who devote a substantive part of their works on Inter- 
 national Law to the consideration of Intermunicipal Law. 
 
 But, strictly speaking, Intermunicipal Law is a sub- 
 stantive part of Municipal Law. Take a simple test. An 
 estate is being distributed by the court under the terms of 
 a will of A. B. in ordinary course. By the will a bequest is 
 made to a child of C. D. It is found that the alleged 
 child of C. D. was born and is living in France, where it is 
 legally the child of 0. D., testing the facts of its birth and 
 parentage by the rules of French Law. Testing the same 
 facts by the rules of English Law it is not a lawful child 
 of C. D. The question arises as to which class of rules are 
 properly applicable to this state of facts. The determina- 
 tion of this question is, of course, tried by the same judge in 
 exactly the same way, and in the course of the administra- 
 tion as an ordinary part of the case, the rules of French Law 
 
134 CONFLICT OF LAWS 
 
 being proved in evidence just like the facts of birth, &c 
 The trial, judgement, and execution of the whole case forms 
 one single, homogeneous act of jurisdiction, and the point 
 of Intermunicipal Law arising in the midst of it is a mere 
 incidental matter of inquiry, like the admissibility of a 
 document, or whether the terms of the bequest apply to real 
 or personal estate. Here is a characteristic question of 
 Intermunicipal Law ; and it is found to be triable exclu- 
 sively by the Municipal Law of this country, which treats 
 the foreign law as a fact determining certain other facts. 
 
 Hence we may get as our definition this : Intermunicipal 
 Law is that portion of every system of Municipal Law 
 which determines the conditions on which it will found 
 legal relations on the rules of some other system of 
 Municipal Law. "We cannot say that Intermunicipal Law 
 is a system of rules common to all systems of Municipal 
 Law, because it does not form a single set of rules ac- 
 knowledged by all civilized nations at all. The rules, for 
 instance, as to divorce of a marriage contracted within 
 their own territory differ extremely in European and 
 American states, and there is no prospect whatever of 
 their being assimilated in any reasonable future. Nor 
 would it serve to say that Intermunicipal Law is that portion 
 of every system of Municipal Law which is borrowed from 
 the law of any other system of Municipal Law. For in- 
 stance, when the law of England recognizes the marriage 
 of English persons in Scotland without ceremony by any 
 priest or registrar, provided such marriage be valid by the 
 law of Scotland, the law of England does not adopt or 
 borrow the marriage law of Scotland and incorporate it 
 as part of its system, either permanently or temporarily. 
 What takes place is this. The law of England, subject 
 to definite exceptions, recognizes as valid any marriage 
 celebrated according to the form lawful in the place 
 
CONFLICT OF LAWS 135 
 
 of celebration. But this is a rule not of Scotch law, but 
 of English law. It is not even a rule of Private^Inter- 
 national Law, for the French Code has an analogous rule 
 somewhat different in form. Nor could any general rule 
 be stated on the subject, such as would apply to all civi- 
 lized states. 
 
 There is no real conflict between the English and the 
 Foreign law. The English corpus iuris (so to speak) con- 
 tains rules as to the conditions on which rules of Foreign 
 Law may be read with, and correlated with its own. But 
 the rules of other systems do not become part of our own 
 corpus iuris. Neither do the rules of any general system 
 of Private International Law outside our own law. 
 
 The jurists of earlier ages abroad have been greatly 
 exercised as to the authority for these rules of Intermunicipal 
 Law, i.e. as to what it was that made them binding on 
 the municipal tribunals and the citizens of a state at home. 
 It has for ages been a hopeless dilemma to them, one on 
 which they have exhausted vast learning and ingenious 
 labours. Indeed, the continental jurists have ever struggled, 
 and struggled in vain, to find some authority for the law 
 which they administered or obeyed. Englishmen have had 
 no such difficulty. As a nation we have for centuries been 
 perfectly content to rest on the fact that the Common Law 
 or Equity as interpreted by the judges, or the Statute Law 
 as passed by Parliament, was in itself binding. If the 
 Lord Chancellor or the Lord Chief Justice had ever been 
 asked in the seventeenth or eighteenth centuries why the 
 law was binding, he would have treated it, perhaps, as 
 contempt of court, or would have answered, like a famous 
 Speaker, who was pressed on a point of order, 'God in 
 heaven only knows ! ' In any case Englishmen, whether 
 lawyers or laymen, officials or simple citizens, never asked 
 farther than what was the law. If any man had asked 
 
136 CONFLICT OF LAWS 
 
 why was the law law, they would only answer because it 
 was — the judge said so, or Parliament so enacted it. Theo- 
 retically, the readers of Hobbes, Bentham, and Austin 
 simply started with the Sovereign as the source of law, 
 above all law, and outside all law. But this practical or 
 theoretical acceptance of law as law, apart from any sanc- 
 tion for itself, has always been regarded on the Continent 
 as something terribly low and degrading. They said that 
 this is reducing law from what ought to he to what is, and 
 is making it a matter not of right but of practical con- 
 venience. At this reproach we can only wonder and smile. 
 I suppose Gains, if asked why the ius honorarium was law, 
 would only have answered that the Praetor for some ages 
 had always so enforced it ; or that the Imperator had given 
 it judicial sanction by implied adoption emanating from 
 his supreme authority. That is very much the position 
 of our own law, so far as it is not embodied in statutes. 
 
 I imagine that in the whole history of Jurisprudence 
 there is no more interesting problem than this — What has 
 led to the great difference between the way in which 
 Englishmen and English lawyers look at the authority of 
 law, and that in which all continental jurists look at it? 
 Abroad, the first question is, not what is the rule of law, 
 but whence does the rule of law derive its binding 
 authority ? A foreign jurist is never satisfied to deduce a 
 clear and cogent principle from a series of dicta, or deci- 
 sions, or doctrines. He is never easy till he can get back 
 to some ultimate reason which seems to him to make it 
 a primitive act of duty in all men to submit to the rule. 
 Just as Grotius labours to show that the practice of civi- 
 lized warfare is consistent with Scripture, the classical 
 historians, or the most distinguished moralists and phi- 
 losophers, and is not content to rest the practice on the 
 manifest convenience of nations and the progress of 
 
CONFLICT OF LAWS 137 
 
 civilization, just so in Private International Law the 
 continental jurists are never satisfied until they can dis- 
 cover some paramount right which seems to impose on 
 all tribunals and judges the duty to decide by this or that 
 principle. 
 
 I believe the ultimate ground of this difference is this, 
 that whilst in foreign countries governed by the civil law 
 and the ideas deduced from it, the elaboration of legal 
 doctrines is detached from the executive force which compels 
 them to be obeyed, in England the elaboration of legal 
 doctrines is almost exclusively and uniformly annexed to 
 the executive force. That is to say, in England the judges 
 develop the law in the very act of giving it effect under 
 the process of the court. Elsewhere unofficial jurists de- 
 velop the law, and they call upon judges to recognize and 
 follow their dicta. Naturally the judges, feeling themselves 
 the representatives of the sovereign, ask for some authority, 
 such as can claim their acceptance of the doctrine of jurists. 
 The jurists, on their part, have no authority from the 
 sovereign at all, and for want of it they are driven to all 
 sorts of expedients to devise some moral authority to com- 
 pensate them for their total absence of official authority. 
 Hence a continental jurist is perpetually troubled with the 
 question, "What gives this doctrine any binding authority ? 
 In Austin's language, What is its sanction ? 
 
 Now in England, the real jurists are, and for five 
 centuries have been, the superior judges, having a direct 
 and visible authority from the sovereign, being in fact the 
 mouthpiece, organs, and representatives of the monarchy. 
 The judge's order is the King's writ; the Court is the 
 Court of King's Bench ; the trial is (in theory) heard by 
 the Sovereign sitting in Westminster. 'Our Sovereign 
 Lord the King ' is everywhere present in every part of the 
 trial, and the keeper of the King's conscience, or his 
 
138 CONFLICT OF LAWS 
 
 deputies, decide a matter in equity. If the greatest literary 
 jurist be cited to one of the judges in support of an 
 argument, the judge will probably ask if there be any 
 authority for that proposition : meaning — is there any 
 official sanction for the doctrine ? 
 
 This is tantamount to saying, that in England juristic 
 authority and official authority are in one and the same 
 hands, and are exercised in one and the same act, viz. 
 the judgement pronounced by a competent tribunal. The 
 iuris periti here, to use Roman language, are clothed with 
 full imperium. Elsewhere those who have the imperium 
 are not in the highest sense those quibus permissum est ius 
 condere : they are not at all the most authoritative of the 
 iuris periti. 
 
 It is notorious and undeniable that the judges, under the 
 continental system, do not hold anything like the high 
 position that has been held for centuries by the historic 
 magistracy of our country. The continental theory of 
 arbitrary government has required a greater docility, and 
 withheld that independence which is so characteristic of 
 our own system. Here the highest aim of a jurist is the 
 magistracy ; elsewhere the magistracy is recognized as an 
 inferior position. I remember a young and promising 
 lawyer of Prussia telling me that he was doing so well in 
 his profession, that, ' being now a judge, he was in hopes, 
 in a few years, of being promoted to the bar '. The salaries 
 of the continental judges rarely approach the fees of any 
 advocate with a good practice. The great jurists are very 
 rarely judges; but are almost invariably professors, ad- 
 vocates, or writers. In short, the position of inferiority to 
 which a dependent condition, a close corporation, and small 
 salaries have reduced foreign judges have reacted in such a 
 way as to prevent their becoming the true intellectual 
 sources of the law, so as to be its exponents and developers. 
 
CONFLICT OF LAWS 139 
 
 The result has been that everywhere, under this system, 
 the scientific authority of the law is divorced from its 
 official authority. The official judges, who can compel 
 obedience to their decrees, have not the scientific authority 
 which compels an intellectual assent to their arguments. 
 On the other hand, those who have the scientific weight 
 on their side to support their doctrines, have no executive 
 force which can compel submission to them. In the 
 absence of this executive force they are compelled to 
 invent reasons for their rulings which may seem to com-; 
 mand paramount obedience. 
 
 From this state of things — a state of things in which 
 endless ingenuity is exhausted in the search for authority 
 — we are saved by our political and social system, which 
 makes the authoritative declarations of the law by an 
 English judge at once an expression of the best juristic 
 intelligence and learning, and also the decree of a Govern- 
 ment official armed with the Sword of the State. An 
 Englishman takes without question the judgement of the 
 court as being not only the true view of the law, but also the 
 order of a magistrate who will lock him up if he disobeys.. 
 
 In searching for the authority for Intermunicipal Law the 
 dilemma was this. As the notion of exclusive territorial 
 sovereignty and national independence grew more distinct 
 (and this was the foundation of International Law and of 
 the European State system, and the gospel of the jurists), 
 the idea grew more fixed that no court of law could admit 
 any derogation of their territorial jurisdiction by accepting 
 foreign law. But then came the dilemma. Courts of law 
 of aU states were continually finding within their local 
 jurisdictions, appealing to their jurisdiction, or brought 
 before it, persons whose general legal relations must be 
 referred to other local jurisdictions inasmuch as they owed 
 allegiance to some other sovereign, or usually resided 
 
 s3 
 
140 CONFLICT OF LAWS 
 
 within those limits. A plaintiff or a defendant in court 
 was alleged to have a wife. Was the woman his wife? 
 The marriage had taken place years ago in another country, 
 whilst the pair were settled within another local jurisdic- 
 tion, and were living under forms not known to the court 
 trying the case. To refuse to look into any rules but its 
 own was to work manifest and flagrant injustice — an 
 injustice that would end in reprisals and international 
 difficulties. The courts accordingly tried the fact of mar- 
 riage by the rules of the foreign state. By what authority 
 did these rules of a foreign state operate out of its 
 jurisdiction ? 
 
 This exercised the great jurists continually, especially 
 the Dutch jurists of the seventeenth century. It led to 
 the invention of the theory of Comity, or consideration and 
 courtesy as between nations. Vehement battles have been 
 fought as to whether Intermunicipal Law really rested 
 on comity or not. Some contended that since each sovereign 
 state had exclusive jurisdiction within its own territories, 
 foreign law could only be admitted by courtesy. Others 
 replied by the equally cogent rejoinder that municipal 
 courts decided cases by positive law, not by any sense of 
 international courtesy, and that the recognition of these 
 rules was not a matter of favour or option, but of right 
 and of settled Municipal Law, and hence that comity was 
 not an adequate foundation for Intermunicipal Law. It is 
 clear that we have nothing to do with this banren and 
 interminable controversy. 
 
 It rested, we can now see, on a confusion of two distinct 
 ideas. From the point of view of sovereign state inde- 
 pendence, i.e. of International Law, states might very 
 fairly proclaim that if they admitted foreign laws at all, 
 it was not because the foreign state had any jurisdiction 
 within their borders, or right to claim it, but simply out 
 
CONFLICT OF LAWS 141 
 
 of grace and consideration. But from the point of view 
 of the municipal lawyer, for the ordinary jurist, the condi- 
 tions under which foreign rules of law are admissible to 
 establish legal relations in the courts of his own country, 
 were entirely matters within the four corners of his own 
 corpus iuris. These rested, not on comity at all; they 
 rested on the same authority, and were established by the 
 same sovereign authority, and with the same view to public 
 convenience as any other part of the law. Therefore, to 
 the ordinary jurist, this talk about comity is idle and beside 
 his purpose. In International Law it is a rational explana- 
 tion of an apparent anomaly. But in Intermunicipal Law 
 it tells us nothing, and only suggests an erroneous notion. 
 It is preposterous to offer it as a basis for Intermunicipal 
 Law, which rests on the same basis as the rest of the law 
 — the will of the sovereign with a view to public con- 
 venience. 
 
 The continental jurists of this century do not talk so 
 much about comity, but they have a still more interminable 
 puzzle which exercises their ingenuity. It is this. What 
 are the juristic theories from which this Intermunicipal 
 Law can be deduced ? And they have sought to establish 
 a few plain canons as a basis for the whole range of 
 Intermunicipal Law, A succession of great jurists have 
 sought to lay down general tests to mark the conditions 
 where one municipal system will be right in resorting to 
 another system, and for what purposes. It is a long and 
 most difficult discussion. Ingenious as these theories are, 
 they are all confessedly defective. They have done much 
 to clear up the ground in this very diflScult problem of 
 public law; they have done little to make the rules of 
 Intermunicipal Law more available in practice. Where 
 Savigny has confessedly failed we may acquiesce in the 
 belief that the attempt, if decidedly heroic, has not got 
 
i*2 CONFLICT OF LAWS 
 
 the conditions of success. The discussion has been almost 
 exclusively Grerman and Italian. The English and American 
 lawyers, as was natural, have hardly noticed it. The 
 French, and now the recent G-ermans, incline towards our 
 more practical view. We do not seek for higher gene- 
 ralizations froln which the rules of law can be deduced. 
 We content ourselves with classifying and stating the rules 
 of law as they are developed in practice. 
 
 What is the source of this error? It flows, I think we 
 must admit, from the continental habit of assuming that 
 there is some substantive body of truth known as right or 
 justice, antecedent to the positive law, and to which posi- 
 tive law has to conform. Accordingly there is a continual 
 tendency to treat positive law as capable of being deduc- 
 tively found from principles of this right. In England and 
 in America people are entirely free from the temptation to 
 get any deductive knowledge of law. We think it idle and 
 practically impossible for a theorist to declare a priori any 
 general principle which will be found in practice to secure 
 the greatest amount of public convenience under infinitely 
 varying circumstances and combinations of legal relation 
 and fact. Our historical plan has been to leave it to the 
 instinctive sagacity of a trained judge to strike out the 
 most consistent doctrine he could, pro re nata, by the 
 analogy of the doctrines in other cases with which he has 
 been long saturated. And then, having a multitude of these 
 doctrines before us, all pronounced in actual cases of great 
 variety, our scientific lawyer tries to generalize them and 
 cast them in a more abstract form, so that for the future 
 the doctrine may have greater distinctness and accuracy of 
 limit, and the judge hereafter may gradually get rid of 
 inconsistent decisions. 
 
 Why, in the department of Intermunicipal Law, are we 
 to seek for a deductive method which we never think of 
 
CONFLICT OF LAWS 143 
 
 applying in our ordinary municipal system ? Intermunioipal 
 questions are simply part of every municipal system, tried 
 in the same courts, by the same judges, under the same 
 practice; and there is no reason why we should put on 
 a totally different basis the law, we may say, which is to 
 decide the validity of a marriage celebrated in France and 
 that of a marriage celebrated in England. The doctrines 
 applicable to the latter have been established partly by 
 a long course of practical experience as conducing to the 
 public welfare, partly by positive decision of sovereign 
 authority. Why should the doctrines applicable to the 
 former (or the French marriage) be established by deduction 
 from a general abstract rule ? 
 
 It would follow, if these trains of argument are sound, 
 (1) that there is really no ground at all for the attempt to 
 form one common body of rules for the civilized world in 
 Intermunioipal Law, such as there has been formed for the 
 public intercourse of states in International Law ; (2) that 
 it is chimerical to found any science of Intermunioipal Law 
 by deductive reasoning from a few canons of an abstract 
 kind. 
 
 To speak of each of these in turn : — 
 
 (1) The law of a nation is the result of a vast congeries 
 of political, social, and intellectual forces ; it is the product 
 of its history, and is closely inwoven in its national character. 
 Accordingly the law of civilized nations does differ, and will 
 continue to differ, in many important features. But, if 
 these questions of mixed law, or Intermunioipal Law, are 
 stiU part of the Municipal Law, it is idle to expect that 
 they can have the same solution for all nations. It might 
 be a good thing (if it were not a Utopian fancy) that 
 succession to property on death should be governed by the 
 same rules in every state of the civilized world. But since 
 succession is actually governed by very widely different 
 
144 CONFLICT OF LAWS 
 
 rules, it is superfluous to ask that it should be governed by 
 the same rules in cases where the title to succeed may 
 depend on some legal relation arising outside the juris- 
 diction of the state that tries the question. It may suit 
 the history, genius, and legal theories of one state to 
 admit succession under conditions which another state 
 would judge quite inadmissible. And it would be as 
 irrational to expect states to conform themselves to a 
 common standard in these incidental cases of compound 
 jurisdiction, as it would be to call on them to accept 
 a common law of succession. 
 
 Accordingly, we cannot advance far on the path advo- 
 cated by many continental schools, which treat Inter- 
 municipal Law as a distinct international science, almost 
 as if it were antecedent to, or independent of, Municipal 
 Law. There are German and Italian writers who seem to 
 think that this science can be evolved a priori by reasoning 
 from principles of jurisprudence or from a lofty moral sense 
 of right and equity. This is part of the price which a 
 system of jurisprudence pays for the privilege of giving 
 jurists the precedence over judges. It is now, I think, 
 little less than a misfortune that Intermunicipal Law is 
 still popularly supposed to be a branch of International 
 Law. It is, in fact, much older in date, for Bartolus and 
 Argentraeus laid down the lines of it long before Inter- 
 national Law sprang full-blown, like a new Athene, from 
 the brain of Hugo Grotius in 1625. The connexion, which 
 is not historically great (for Intermunicipal Law has been 
 almost exclusively created by judges), has stimulated 
 erroneous ways of treating Intermunicipal Law as if it 
 were in some sort a lus Gentium, or common law of the 
 civilized world, and as such stood on a footing of authority 
 and rationality apart from the practice and decisions of 
 courts, apart from the positive law embodied in codes and 
 
CONFLICT OF LAWS 145 
 
 statutes, and apart from the idiosyncrasies and varying 
 practical needs of different nations. 
 
 (2) With regard to the second point, it is clear, I think, 
 that the only solid mode of promoting this branch of law is 
 to found it upon the actual practice and decisions of different 
 states, and to look to the comparison and gradual systematiza- 
 tion of current rules, to positive laws and practical con- 
 venience, rather than to deduction from speculations, how- 
 ever profound. To pursue laws by the methods appropriate 
 to morals and general philosophy is indeed a singular 
 fallacy. The moralist or the philosopher has only to arrive 
 ^t the truest analysis of man's moral nature or the most 
 abstract canons of human thought. But in law, as in politics 
 generally, it would be perfectly idle to lay down the best 
 and loftiest principles of justice or social convenience, if 
 societies of men are not found in practice conforming to 
 these rules. A jurist might reduce to system the judicial 
 practice of the King of Dahomey or of Zululand ; and there 
 was no doubt a kind of Intermunicipal Law recognized 
 amongst tribes of Eed Indians. For these reasons, I think 
 that Intermunicipal Law must always keep close to Positive 
 Law, of which it is in fact part ; and in many ways it is 
 best studied and promoted from the point of view not of 
 general and abstract jurisprudence, but of some particular 
 municipal system. Intermunicipal Law has owed much 
 more to judges than to professors. D'Argentr^, D'Aguesseau, 
 Bouhier, BouUenois, Huber, Rodenburg, Savigny, Story^ 
 Phniimore, were all practitioners and judges. In many 
 modern nations formal rules for Intermunicipal cases are 
 now being inserted in their codes or their statute books. 
 These are of course quite different, and yet they have the 
 highest and most permanent character of Positive Law. 
 There is not the slightest reason to suppose that these 
 will be revised. But whilst they stand, Intermuni- 
 
146 CONFLICT OF LAWS 
 
 cipal Law can only accept their divergencies and register 
 them. 
 
 But, on the other hand, is it right to infer from all this 
 that Intermunicipal questions cannot be studied at all in 
 a general way, and that all we can do is to learn the practice 
 of each particular system ? Far from it. On the contrary, 
 although there was neither international nor moral obliga- 
 tion to compel them so to do, civilized nations have as a 
 fact very largely followed common principles and an iden- 
 tical practice. In a department of law which so largely 
 depended on mutuality, or reciprocal recognition of each 
 other's rights, they have naturally adopted to a great extent 
 common rules. The authors who have written systemati- 
 cally on this very difficult branch of law have been few, and 
 they naturally wrote to a great extent from a general point 
 of view. Apart from this, ordinary motives of convenience 
 and experience, practical judgements have, as a fact, led to 
 a very large amount of actual agreement. The same set of 
 authorities and the same authors have been appealed to for 
 one or two centuries in the civil courts of the whole civilized 
 world, and the consequence has been that whilst judges 
 stubbornly refused to have any common or binding law 
 thrust on them, they have in fact worked out a striking 
 degree of practical unanimity. Although it has been proved 
 perfectly idle to deduce a binding Intermunicipal Law from 
 abstract principles of jurisprudence, these rules have proved 
 of the highest value in giving meaning to and in reconciling 
 the recorded decisions of local courts. Now no inter- 
 municipal rules whatever, much less any set of such rules, 
 stand merely as a part of the ordinary Municipal Law. No 
 case is ever decided, even in English courts, much less in 
 any other municipal courts, entirely without reference to 
 the classics of Intermunicipal Law. The weight of this 
 body of doctrine is so permanent that even if a case be 
 
CONFLICT OF LAWS 147 
 
 accidentally decided by a local judge ignoring entirely the 
 general Intermunicipal Law, the case speedily loses any 
 authority and drops out of sight. On this account not even 
 the ruling of purely English tribunals can be understood or 
 turned to account without a thorough study of the general 
 theory of Intermnnicipal Law. 
 
 I am very far from wishing to disparage the careful 
 reading of the great theoretical jurists in this complicated 
 subject. They are indispensable to the student, the prac- 
 titioner, and the judge. If it be true that the principles of 
 this branch of law cannot possibly be reduced to a few 
 general doctrines, still no order will ever be achieved in 
 the mass of conflicting decisions and practices except by 
 the light of these general doctrines and consistent theory. 
 With Intermunicipal Law as with the whole body of 
 Municipal Law it is impossible to begin by forming deduc- 
 tively a symmetrical code ; but without a symmetrical con- 
 ception of doctrines, it will be impossible to arrange the 
 decisions in a final code. Theory cannot precede Law; 
 but without theory law would ever remain a chaos, having 
 neither fixity nor authority. If it be, as I think, idle to 
 dream of an Intermunicipal Code common to all civilized 
 nations, even such an one as we might fairly anticipate for 
 International Law, still the tendency of municipal systems 
 to converge on this ground common to them all is very 
 largely seen as a fact, and may be indefinitely increased. 
 No one can study the anomalies produced even by the 
 different rules of marriage in England and Scotland, the 
 different rules as to legitimacy in England and in France, 
 without desiring some mode of terminating so disastrous an 
 incongruity. Complete unanimity is perhaps not desirable, 
 and is certainly impracticable. Sufficient unanimity to 
 avoid wanton inconvenience is most essential. And it is 
 only by a careful study of theory that any unanimity at 
 
148 CONFLICT OF LAWS 
 
 all can be hoped for. Theory will never itself establish 
 a uniform practice; but without theory a uniform practice 
 is entirely impossible. Every one knows the extreme 
 inconveniences that are caused by the decision of an 
 English or an American court in complete ignorance of, 
 or in defiance of, the common practice of civilized nations 
 and the general doctrines of the theoretic jurists. One 
 such decision destroys the labour of generations, and 
 adjourns indefinitely the day when any rule can be 
 evolved out of discordant practices. 
 
 But as in England and in America it is certain that 
 courts will often decide on technical grounds of pijrely 
 Municipal law, in defiance both of theoretic jurisprudence 
 and the practice of their neighbours, and since on the 
 Continent the theories are still divergent on many first 
 principles, it is clear we must look for some solution of 
 the ambiguities and difficulties to some stronger power. 
 Such a power, I believe, can only be found in direct 
 Legislative authority, direct International agreement, and 
 ultimately in Treaties between States. Great progress 
 towards a direct agreement has already been made, and 
 to that only can we look in the future. But that agree- 
 ment will be fruitful and beneficial only as it is based on 
 sound theory and scientific analysis of the common axioms 
 of law. 
 
 [First publication in 1879. Second publication in 1919. — 
 F.H.] 
 
ANNOTATION I 
 
 AUSTIN AND MAINE ON SOVEREIGNTY' 
 
 Law and SovEEEiaNTY 
 
 The text, supplementing the famous lectures of Sir Henry 
 Maine in his Early History of Institutions, on ' Sovereignty ' and 
 'Sovereignty and Empire', explains with a lucidity with which, 
 so far as I am aware, it has not been explained elsewhere, the 
 true value, aspect, and intent, of Austin's analysis of sovereignty 
 and law. That analysis Mr, Harrison shows may be summed up 
 in the following two short propositions : 
 
 I. The source of aU positive law is the definite sovereign 
 authority which exists in every independent political com- 
 munity and therein exercises de facto the supreme power, 
 being itself unlimited, as a matter of fact, by any limits of 
 positive law. 
 
 II. Law is a command relating to the general conduct of the 
 subjects, to which command such sovereign authority has 
 given legal obligation by annexing a sanction or penalty, in 
 case of neglect. 
 
 'Now,' says Mr. Harrison {supra, p. 24), 'these propositions 
 are in themselves perfectly simple and almost obvious. They 
 follow from the careful statement of the terms employed : and 
 are only not truisms because they have been so very confusedly 
 conceived in other authors.' 
 
 'What, then,' the student may very reasonably ask, ' is there 
 
 ' In the annotations to this book my object has not been so much to add 
 myself to the numerous commentators on the subjects with which they 
 deal, as to set out in logical sequence what have appeared to me the more 
 striking thoughts contributed upon them by subsequent writers, and, In 
 that way, add, in some measure, to the value of this volume as a text-book 
 in Law Schools and Universities. The Lectures on Jurisprudence were 
 delivered and printed anterior to the works cited in these Annotations. 
 
 8169 T 
 
150 1. AUSTIN AND MAINE 
 
 to trouble about ? ' On two of the points, on which the ' trouble ' 
 arises, I purpose to add something to what is stated in the 
 text: 
 
 (1) Austin speaks as though in every political society there 
 necessarily exists a determinate sovereign body or person. 
 Is this, in fact, the case ? 
 
 (2) Austin speaks as though the only rules which can pro- 
 perly be called ' law ' are commands of this sovereign body or 
 person in the State, Is this, in fact, the case? 
 
 Now on the first of the above questions I shall say very little. 
 It is well, however, to point out the distinction that is drawn 
 between a ' People ' and a ' State ' or ' Nation ', in the English use 
 of the word ' Nation ' as equivalent to ' State '. 
 
 For that I borrow from what Sir T. Erskine Holland says in 
 his Jurisprudence (12th ed., p. 46): 
 
 ' A " People " is a large number of human beings, united 
 together by a common language, and by similar customs 
 and opinions, resulting usually from common ancestry, religion, 
 and historical circumstances. A " State " is a numerous assemblage 
 of human beings, generally occupying a certain territory, amongst 
 ■whom the will of the majority, or of an ascertainable class of 
 persons, is by the strength of such majority, or class, made 
 to prevail against any of their number who oppose it. A State 
 may be coextensive with one People, as is now the case in 
 France, or may embrace several, as was the ease with Austria. 
 One People may enter into the composition of several States, 
 as do the Poles and the Jews. A People, it is truly said, is 
 a natural unit, as contrasted with a State which is an artificial 
 unit.' 
 
 Then in Bluntschli's Theory of the State (pp. 86-7) we read : 
 
 'The conception of a "people" may be thus defined. It is 
 a union of masses of men of different occupations and social 
 strata in a hereditary society of common spirit, feeling, and 
 race, bound together, especially by language and customs, in 
 a common civilization, which gives them a sense of unity and 
 distinction from all foreigners, quite apart from the bond of the 
 State. ... By a "Nation" we generally understand a society of 
 all the members of a "State" as united and organized in the 
 State. The Nation comes into being with the creation of the 
 State. It is the consciousness more or less developed of political 
 
ON SOVEREIGNTY 151 
 
 connection and unity which lifts the Nation above the People. 
 ... A Nation is a collective personality, legal and political.' 
 
 Now is there, as a matter of fact, in every such State or 
 Nation, a determinate body or person which possesses sovereignty, 
 or, in other words, absolute ruling power over the inhabitants 
 and affairs of that State ? 
 
 I will cite the words of Sir Frederick Pollock, in his First 
 Booh of Jurisprudence (pp. 258-61) : 
 
 'Although the whole theory of Sovereignty is modern, and, 
 in fact, could not have been definitely held or expressed before 
 the principal States of modern Europe had acquired a strong 
 and consolidated government, writers on the philosophy of law 
 and politics have readily fallen into the way of assuming that 
 civilized government cannot exist, or can exist only in an 
 imperfect manner unless there is some definite body in the 
 State to which sovereignty can be attributed. ... In our own 
 time, if we extend our view eastward to Bern, or as far west 
 as Washington or Ottawa, we may find reason to think that 
 Blackstone laid down the supposed necessity of an absolute 
 uncontrolled authority in terms altogether too peremptory and 
 universal. . . . Where there is a rigid Constitution, to use the 
 convenient term introduced by Mr. Bryce and Mr. Dicey, there 
 cannot be any one body in permanent existence or habitual 
 activity which possesses unlimited sovereignty. The nearest 
 approach to Parliamentary sovereignty as we have it in England 
 must be sought, in every such case, wherever the ultimate power 
 of altering the written Constitution is placed by the Constitution 
 itself. In the United States, for example, this amending power 
 is exercisable only with the consent of three-fourth of the States 
 expressed either by their legislatures or in special conventions, 
 and moreover, no State can be deprived of its equal suffrage in 
 the Senate without its own consent. The English doctrine of 
 absolute sovereignty is not capable of being usefully applied to 
 Constitutions of this type. In fact it is a generalisation from 
 the " Omnipotence " of the British Parliament, an attribute 
 which has been the offspring of our peculiar history and may 
 quite possibly suffer some considerable change within times not 
 far distant.' 
 
 And so Lord Bryce says : 
 
 ' In a country governed by a Bigid Constitution which limits 
 the power of the legislature to certain subjects, or forbids it to 
 transgress certain fundamental doctrines, the Sovereignty of the 
 
152 1. AUSTIN AND MAINE 
 
 legislature is to that extent restricted. ... In such a country 
 legal Sovereignty is divided between two authorities, one (the 
 Legislature) in constant, the other only in occasional action.' 
 {Studks in History and Jurisprudence, vol. ii, p. 53.) 
 
 And again : 
 
 'It is further to be noted that the totality of possible legal 
 sovereignty may, in a given State, not be vested either in one 
 sovereign or in all the sovereign bodies and persons taken 
 together. In other words, there may be some things which by 
 the constitution of the State no authority is competent to do, 
 because those things have been placed altogether out of the 
 reach of legislation. . . . There is thus in the United States no 
 authority invested with legal power, in time of peace, to prohibit 
 public meetings not threatening public order, or to suppress a 
 newspaper. It is true that the people of each State (or of the 
 Union) retain the power to alter their Constitution, but until 
 or unless they do alter it the acting legal Sovereign remains 
 debarred from an important part of the power of Sovereignty.' 
 (Ibid., p. 58.) 
 
 But as the text points out (supra, p. 29), 'though there may 
 be as matter of history, politics, or political philosophy, no 
 determinate sovereign, there are no limits to the absolute power 
 of the sovereign within the range of municipal law : or, in other 
 words, to the lawyers there are none. And to the lawyer there 
 is always a determinate sovereign ', namely, the immediate maker 
 of the rule of law, or, if not the immediate maker, yet the power 
 which, through the Courts, will enforce the rule of law. 
 
 Professor W. Jethro Brown in his Austinian Theory of Laio 
 says: 
 
 'It seems probable that the Jurisprudence of a near future 
 will recognize that the State itself is the true Sovereign, and 
 that such a body as the Parliament of Great Britain should 
 be described, not as the sovereign, but as the sovereign organ' 
 (p. 286). 
 
 We can now proceed to our second question propounded above 
 (supra, p. 149). Can we in accordance with history and with 
 fact properly say that the only laws strictly and properly so 
 called are commands of the sovereign body or person in the 
 State ? Or, omitting the word ' command ', can we accept without 
 
ON SOVEREIGNTY 153 
 
 demur the modification of language suggested by Sir T. Erskine 
 Holland, that ; 
 
 'A law, in the proper sense of the term, is a general rule 
 of human action, taking cognizance only of external acts, en- 
 forced by a determinate authority, which authority is human, 
 and, among human authorities is that which is paramount in 
 a political society.' {Elements of Jurisprudence, 12th ed., p. 41.) 
 
 Can we rest quite content with the assertion that all law, 
 properly so called, is enforced by a sovereign political authority? 
 
 To begin with, as Professor E. C. Clark in his Practical 
 Jurisprudence, at p. 165, says : 
 
 ' There are some rules, of extreme importance, obtaining in 
 every State, bearing upon the personality and powers of the 
 sovereign's self, which are neither set nor administered by that 
 sovereign, to which Austin, therefore, denies the name of Imv, 
 but which are generally and reasonably known by that name.' 
 
 Then again, as the text shows (su/pra, pp. 41-6), there are many 
 rules of law which can only in a very circuitous and indirect way 
 be said to be ' commands ' at all. But Professor Holland points 
 out that : 
 
 ' Such cases will cease to be anomalous if we recognize that 
 every law is a proposition announcing the will of the State, and 
 implying, if not expressing, that the State will give effect only 
 to acts which are in accordance with its will, so announced, 
 while it will punish, or at least visit with nullity, any acts of 
 a contrary character. The State thus makes known what ad- 
 vantages it will protect as being legal rights, what disadvantages 
 it will enforce as being legal duties, and what methods it will 
 pursue in so doing.' (Elements of Jurisprudence, 12th ed., p. 87.) 
 
 Something further, however, may I think well be said, and is 
 said by Professor Jethro Brown in his Austinicm Theory of Law 
 (pp. 338-44) : 
 
 ' To the objection that a great part of law is not expressible 
 in the form of command one answer dwells upon what is alleged 
 to be an undue abstraction in determining what are legal rules. 
 " A law, like any other command, must be expressed in words, 
 and will require the use of the usual aids to expression. The 
 gist of it may be expressed in a sentence which, standing by 
 itself, is not intelligible ; other sentences locally separate from 
 
154 1. AUSTIN AND MAINE 
 
 the principal one may contain the exceptions and the modifica- 
 tions and the interpretations to which that is subject. In no 
 one of these taken by itself, but in the substance of them all 
 taken together, is the true law, in Austin's sense, to be foimd. 
 Thus the rule that every will must be in writing is a mere 
 fragment— only the limb of a law. It belongs to the rule which 
 fixes the rights of devisees or legatees under a Will. That rule, 
 in whatever form it may be expressed, is, without any straining 
 of language, a command of the legislator. That 'every person 
 named by a testator in his last will and testament shall be 
 entitled to the property thereby given to him' is surely a 
 command creating rights and duties. After 'testament' add 
 ' expressed in writing ' ; it is still a command. Add further 
 'provided he be not one of the witnesses to the will', and the 
 command, with its product of rights and duties, is still there. 
 Each of the additions limits the operation of the command stated 
 imperatively in the first instance" (Ency. Brit., vol. XIV, p. 358).... 
 Now the position that law in its totality is essentially a system 
 of social regulation which the State will uphold by force, is not 
 affected by the fact that some parts of the law are not imperative, 
 if it be true that such parts derive a practical meaning and value 
 from parts which are imperative (p. 340). ... In regarding laws 
 as the command of the rulers to the subjects, he (Austin) gave 
 countenance to the inference that law is the arbitrary creation of 
 the rulers. The position at present under consideration, how- 
 ever, is that of law as command of the State, a totality embracing 
 rulers and ruled. When once the conception of law as command 
 is clearly distinguished from the representation of legal rules as 
 the arbitrary creation of a visible ruler obeyed by subjects from 
 fear of legal penalties, it is difficult to see on what ground the 
 conception can be criticized. Whatever else law is, it is at least 
 command. What makes a particular rule of conduct law, is not 
 the fact that it may be useful, but that behind it is the majesty, 
 the authority, and the force of the State. There are other rules 
 of conduct which men observe under the influence of all kinds 
 of impulse, but of the rules of conduct which are law, the dis- 
 tinguishing characteristic is the existence of the organized force 
 of the community behind them. But what the community as 
 an organized unit will enforce it may be said with justice to 
 command.' (p. 344.) 
 
 But waiving this point as to the suitability of the word ' com- 
 mand ' as descriptive of rules of law in general, how far can we 
 acquiesce altogether in the statement that in order to be a law 
 properly so called, a rule of human action must have been set or 
 
ON SOVEREIGNTY 155 
 
 imposed — or even that it must be enforced by the sovereign 
 political authority in a State? 
 
 Can we acquiesce in these statements not only, in Mr. Harrison's 
 words, ' as true for the lawyer from the point of view of formal 
 and scientific law ' as explained in the text {st(^ra, p. 33) ; but as 
 true as a matter of historical and actual fact? 
 
 Now that the Austinian conception of law as a command of the 
 sovereign political authority in the State is not the old English 
 conception of law is shown by Mr. Holdsworth [History of English 
 Law, vol. ii, p. 154) : 
 
 ' No doubt where the King's interests were concerned the royal 
 control was strict. But, when there was no occasion to exercise 
 this control, the fact that the royal judges began to sit as regular 
 tribunals at a itime when the idea that the suitors of the Court 
 were the true exponents of the law was the most usual and natural 
 idea, cannot have been without its influence. It would naturally 
 lead them, in ordinary cases, to regard the exposition of the law as 
 emanating from the Court rather than as emanating from the 
 king. They were royal judges, it is true ; they were bound to 
 obey royal commands ; but they were judges making law at a time 
 when it seemed natural that the Court should expound the law, — 
 when quod paribus placuit rather than guod principi placuit seemed 
 to have the force of law. It is easy to see that this idea tends to 
 give the law a position of great independence which is quite 
 foreign to a body of law based upon Roman ideas or Austinian 
 analysis.' 
 
 ' Historically, it would seem . . . that judges came before Idngs 
 almost everywhere, as we are told they did with the Hebrew polity 
 established in Palestine.' (Clark's Practical Jurisprudence, p. 154.) 
 
 And so says Professor Goadby in his Introduction to the Study of 
 Law (p. 43) : 
 
 ' Law was the outcome of popular practice and not of the will 
 of the sovereign. This fact is obscured to-day by the striking but 
 modern activity of the State as a law-maker which leads men to 
 emphasize unduly the importance of the legislator. They are apt 
 to speak as though the law springs ready made from the law- 
 giver's mind, and that this is its natural origin. But the history 
 of Boman and English law and also that of Mohammedan law 
 shows how false is this view. In none of these cases did the 
 legislator play a prominent part. In the period during which the 
 principles of the law were being established and worked out the 
 legislator was strangely silent. The decisions of the Courts, 
 
156 1. AUSTIN AND MAINE 
 
 the opinions of professional writers, and the force of popular 
 usage, each with varying importance in different countries, estab- 
 lished rules of law and brought into being a system adapted to the 
 heeds of the community. . . . Indeed to regard law as essentially a 
 creation of the sovereign is not only to falsify history but to make 
 the law incomprehensible. Law can never be understood unless 
 it is studied as a growth and its history made to explain its 
 present condition.' 
 
 And even as to enforcement by the State being an essential 
 element in the conception of law properly so called, the text has 
 referred to the comments of Sir H. Maine in his Early History of 
 Institutions, and to his explanation of the Austinian analysis. 
 
 Now, bearing in mind that the term ' positive ' law is used to 
 indicate not only rules of law originally formulated by the 
 sovereign power in a State, but, also, to use Professor Holland's 
 words, laws ' enforced ', or ' authoritatively enforced ', by such 
 sovereign power even though not originally formulated by it — 
 if Austin and Professor Holland had advanced their definitions 
 simply as definitions of such positive law — then we might be 
 content to say in regard to the observations of Sir H. Maine above 
 referred to, with Mr. Justice Markby : 
 
 ' What difficulty is there to solve ? What Maine shows is, that 
 in the Punjaub in the time of Eunjeet Singh, the people were 
 governed, not by positive laws, but by rules chiefly of a religious 
 or semi-religious character, to the enforcement of which no regard 
 was paid by the reigning monarch. But the existence of such 
 rules neither affects Austin's conception of law in general, in 
 which many of them are included, nor does it affect his conception 
 of positive law or of sovereignty with which they are not concerned.' 
 {Elements of Law, 5th ed., p. 8.) 
 
 But the point is that Austin and Holland go further, and say 
 that the positive laws thus defined by them are the only laws 
 properly so called. It seems only a matter of the use of language 
 whether we are to content ourselves with Sir T. Erskine Holland's 
 answer to Sir H. Maine. It in no wise affects the phenomena of 
 law. This is what he says : 
 
 ' With reference to the Western nations, we would submit that 
 the dependence of law upon sovereignty was as obvious in Attica 
 and Lacedaemon as it ever was under the Eoman Empire. A law 
 
ON SOVEEEIGNTY 157 
 
 as carried by Pericles, or as imagined by Plato, would conform to 
 Austin's definition as completely as would a constitution of Marcus 
 Aurelius. With reference to the relation of a great Oriental tax- 
 gathering empire to the village customs of its subjects, or to the 
 more distinctly formulated laws of a conquered province, it is 
 necessary to draw a distinction. Disobedience to the village 
 custom or the provincial law may either be forcibly repressed, or 
 it may be acquiesced in, by the local authority. If it be habitually 
 repressed by such local force as may be necessary, it follows that 
 the local force must, if only for the preservation of the peace, be 
 supported, in the last resort, by the whole strength of the empire. 
 In this case the humblest village custom is a law which complies 
 with the requirement of being enforced by the sovereign. If, on 
 the other hand, disobedience be habitually acquiesced in, the rules 
 which may thus be broken with impunity are no laws ; and so far 
 as such rules are concerned, the tax-gathering empire is lawless, 
 its organization consisting merely of an arbitrary force, acting 
 upon a subject mass which is but imperfectly bound together by 
 a network of religious and moral scruples. It is convenient to 
 recognize as laws only such rules as can reckon on the support of 
 a sovereign political authority, although there are states of society 
 in which it is difficult to ascertain as a fact what rules answer to 
 this description.' (Elements of Jurisprudence, 12th ed., p. 53.) 
 
 Of this last sentence Sir Frederick Pollock observes : 
 
 ' The qualification seems not quite adequate. In the states of 
 society specified by Sir H. Maine and to this day prevailing over 
 a large part of the earth, the difficulty is not merely to ascertain 
 what niles of conduct be true laws, but to find any person or body 
 answering the description of a sovereign political authority in 
 the sense required by the analytical schools.' {Essays in Juris- 
 prudence and Ethics, p. 10.) 
 
 As Professor Goadby says in his Introduction to tlie Study of the 
 Law (pp. 30-1) : 
 
 'AH are agreed that law is in fact enforced by the State in 
 modern times. But there is .disagreement as to whether this 
 enforcement is an essential characteristic of law or not. The 
 problem may be presented in this form. Does a rule become a 
 rule of law because it is enforced by the State, or is it enforced by 
 the State because it is law ? ' 
 
 And he adds (p. 34, n.) : 
 
 'With Austin's conception of law as resting upon the force of 
 the State may be compared that of the German Jurist von Jhering : 
 
158 1. AUSTIN AND MAINE 
 
 "Law is currently defined as 'the sum total of the compulsory 
 rules prevailing in a State ', and in my opinion this is entirely 
 correct. The two factors which it includes are the Kule and the 
 realization of the Kule through force., Now only those social 
 rules deserve the name of law which have behind them Force, or, 
 since the State alone is the representative of the compulsory power 
 of the Society, the Force of the State. And this fact involves the 
 conclusion that only those rules which are thus made effectual by 
 the State are rules of law, or, changing the phrase, that the State 
 is the only source of law " {DerZweck im Becht — Purpose in Legal 
 Development — 4th ed., ch. viii, p. 249).' 
 
 The phenomena of law which have been referred to as antago- 
 nistic to the conception of Austin and Holland as to what alone 
 are laws properly so called, are perhaps nowhere more strikingly 
 illustrated than by what Lord Bryce tells us about Iceland, in one 
 of his Essays in Studies in History and Jurisprudence (vol. i, 
 pp. 332-7). I will quote only a few sentences, referring the 
 reader to the Essay as a whole. He says : 
 
 ' The few laws or resolutions of general concern which the 
 Althing passed ' (the first Althing or general Assembly of all 
 Iceland met in a.d. 930 — one of the oldest national Assemblies 
 in the civilized world). — 'they were few, because its legislative 
 activity was chiefly occupied in regulating its own judicial pro- 
 ceedings, — were probably meant to be accepted and observed over 
 the whole island, but the Althing did not attempt to enforce 
 them, and indeed had no machinery by which it could do so. . . . 
 The Eepublic, if we may so call it, had no Executive whatever. . . . 
 The Icelandic Eepublic was in fact a government developed only 
 upon its judicial and (to a much smaller extent) upon its legislative 
 side, omitting altogether the executive and international sides, 
 which were in the Greek and Koman world, and have again in the 
 modern world, become so important. . . . Some modern theorists 
 derive law from the State, and cannot think of law as existing 
 without a State. A few among them have in England gone so far 
 as to deny that Customary Law is law at all, and to define all Law 
 as a Command issued by the State power. But here in Iceland we 
 find Law, and, indeed (as will appear presently), a complex and 
 highly developed legal system, existing without the institutions 
 which make a State ; for a community such as has been described, 
 though for convenience it may perhaps be called a Eepublic, is 
 clearly not a Stat« in the usual sense of the word. Of Iceland, 
 indeed, one may say that so far from the State creating the Law, 
 the Law created the State — that is to say, such State organization 
 
ON SOVEREIGNTY 159 
 
 as existed came into being for the sake of deciding lawsuits, 
 There it ended. When the decision had been given the action of 
 the" Kepublic stopped. To carry it out was left to a successful 
 plaintiff; and the only effect a decision had, so far as the Courts 
 were concerned, was to expose the person resisting it to the 
 penalties of outlawry — that is to say, any one might slay him, like 
 Cain, without incurring in respect of his death any liability on the 
 footing of which his relatives could sue the slayer. Law in fact 
 existed without any public responsibility for enforcing it, the sanc- 
 tion, on which modern jurists so often dwell as being vital to the 
 conception of law, being found partly in public opinion, partly in 
 the greater insecurity which attached to the life of the person who 
 disregarded a judgement. Yet law was by no means ineffective.' 
 
 And Sir Frederick Pollock adds light to the subject in his First 
 Book of Jurisprudence, pp. 23-4, 27 : 
 
 ' We find preserved among the antiquities of legal systems, and 
 notably in archaic forms and solemnities, considerable traces of a 
 time when the jurisdiction of Courts arose only from the volun- 
 tary submission of the parties : and this not only as between 
 subject and subject, but as between a subject and the State. We 
 need not doubt that effectual motives for submission could be 
 brought, sooner or later, to bear on unwilling subjects. The man 
 who did not submit himself to law could not claim the benefit of 
 the law ; there was no reason why every man's hand should not 
 be against him. Outlawry, now all but obsolete even in name, 
 was the formal expression of the archaic social rules by which 
 law was gradually made supreme. . . . 
 
 'Various causes have made it possible and even plausible to 
 regard law not only as being embodied in the commands of a 
 political sovereign, but as consisting of such commands and being 
 nothing else. They have not altered the fundamental facts of 
 human society ; and the merely imperative theory of legal institu- 
 tions remains as one-sided and unphilosophical as it was before. 
 Law is enforced by the State because it is law ; it is not law 
 merely because the State enforces it.' 
 
 Another objection, however, to Austin's and in a lesser degree 
 to Holland's definition of law is that they suggest that force and 
 fear are the source of obedience to law. But as Lord Bryce says : 
 
 It is not primarily or chiefly Fear which is the source of Obedi- 
 ence. It is not Physical Force that has created the State whence 
 (according to this doctrine) laws issue and by which they are applied. 
 It is not through Force that kings reign and princes decree 
 justice. According to the Hebrew Scriptures it is by God that 
 
160 1. AUSTIN AND MAINE 
 
 they reign. According to Homer it is Zeus who has given to the 
 king the sceptre and the dooms, that therewith he may rule. 
 Both expressions convey the same truth, that it is by the natural 
 or providential order of things, and in virtue of the constitution 
 of man as a social being, that men are grouped into communities 
 under leaders who judge among them. The tendency to aggrega- 
 tion, to imitation, to compliance and submission, is the basis on 
 which the State is built. . . . Where a ruler rules by pure force 
 (apart from the consent of the community) he is what the Greeks 
 call a Tyrant, or the Italians in the fourteenth century a Signore, 
 a Usurper reigning in defiance of law by means of armed men, an 
 Adventurer who has risen by a revolution, is supported by the 
 soldiery, and will fall when they turn against him. . . . The 
 Benthamite definition is perceived to be unsound. These curt and 
 often sweeping definitions usually are unsound. They are not 
 simple, although they are summary. They are arbitrai-y and 
 artificial, concealing under few words many fallacies. Human 
 nature and human society are too complex to be thus dealt with.' 
 {Studies in History and Jurisprudence, vol. ii, pp. 47-8.) 
 
 Mr. J. Neville Figgis in the Cambridge Modern History (vol. iii, 
 pp. 745-9) has a long and illuminative passage in connexion with 
 this subject, of which I may quote the opening sentences : 
 
 ' Another aspect of the modern State is the irresistible force at 
 its disposal. To us it appears a necessary attribute of any govern- 
 ment that it shall be able to compel practically universal obedience. 
 Force is at the back of all law and every private right ; so much 
 is this the case that it seems to us inseparable from the idea of 
 law. The modern mind is not disposed to admit the existence of 
 any legal right or duty, either public or private, which cannot be 
 enforced by compulsion. But this is quite a new conception. It 
 is the result of the struggles of the Middle Ages and of the move- 
 ments, political and religious, of the sixteenth and seventeenth 
 centuries. Indeed, the recognized need of such a power became 
 the great support of tyranny. Long periods of impotence generated 
 a belief in the Divine origin and necessity of political power. In 
 the modern world government is occupied in administering 
 the law and adapting it to fresh needs. In the Middle Ages 
 it was occupied with a struggle for its own existence. " In 
 the older feudal monarchy, not only was the monarch at no 
 time sovereign, but neither was the State." Slowly, indeed, but 
 surely, local franchises disappeared, private war diminished, and 
 there came to be recognized a central authority giving force to a 
 general system of law.J^The very fact^of the "reception" of 
 Boman law in continental countries in the fifteenth century shows 
 how foreign to the actual life of the day was a uniform system of 
 
ON SOVEREIGNTY 161 
 
 common law. Such law as existed was the outcome of local, 
 feudal, or national custom rather than of the will of any law-giver.' 
 
 And again, speaking of the Middle Ages, he says : 
 ' To those who saw in law, not the success of effectual rulers, 
 but the transient effort at social improvement or the recognition 
 of principles of action, — even to those who looked upon it merely 
 as the decision of a Court, interpreting immemorial custom, another 
 view than the modern notion of positive law was a necessity. 
 They discerned in legal rules, not the authority of the governor, 
 but his purpose : namely justice, which is a shadow of the Divine 
 nature. In its promulgation they perceived not a sovereign act, 
 but a personal revelation. To those holding such views law, in so 
 far as it is something beyond the mass of customs which bind 
 society together, is not a command ; it is a discovery. In other 
 words, there are certain truths about human nature in society 
 which are eternal and independent of immediate circumstances. 
 Law is the expression of the fact that human history is not merely 
 the record of a hand-to-mouth existence but embodies principles.' 
 
 ANNOTATION II 
 
 DEFINITIONS OF LAW 
 
 The question of the proper or best definition of law is one 
 which has exercised many minds. Austin's and Holland's defini- 
 tion have already been discussed {siJij^ra, p. 150). We have in the 
 text Mr. Harrison's, which, it is submitted, cannot be ^improved 
 upon as a definition of private law as distinguished from consti- 
 tutional law. 
 
 ' Law is a general rule respecting the property, person, reputa- 
 tion, or capacity of the citizens of a State, which the sovereign 
 power therein will cause to be observed by the authority it 
 delegates to its tribunals ' (or, * will enforce in its tribunals '). 
 
 It may, however, be of use to the student to say something of 
 other definitions which have been advanced. 
 
 Professor E. C. Clark, in his Practical Jtirisprudence : A Com- 
 ment on Austin, after discussing the ' unconscious definitions ' of 
 law involved in the use of the oldest and simplest names by 
 which that conception has been expressed in Latin, Greek, Anglo- 
 Saxon, and Sanskrit, as well as conscious definitions framed at 
 
162 3. DEFINITIONS OF LAW 
 
 a far later period by philosophers or lawyers, and what people in 
 general have underatood and do now understand by law, arrives 
 at the following as his own definition : 
 
 'The law of a State is the aggregate of rules administered 
 mediately or immediately by the State's supreme authority, or 
 regulating the Constitution and functions of that supreme 
 authority itself: the ultimate sanction being, in both cases, dis- 
 approval by the bulk of the members of that State.' (p. 172). 
 
 This he considers gives the essentials in the law of a State or 
 political society as ordinarily apprehended. And he adds by way 
 of explanation : 
 
 ' In the case of national, or, in the wider Boman sense, civil law 
 — i. e. the rules of conduct obtaining between members of one 
 nation. State, or political society, — I have endeavoured to show 
 the necessity of recognizing as tdtimate sanction, the general 
 disapproval of the society and its consequences. . . . The regula- 
 tions of sovereign power depend for their sanction upon a general 
 disapprobation and its results: there is no diiference in kind 
 between them and the laws of fashion, honour, or received 
 morality, but it were obviously, at least in modern times, an 
 absurdity to class all together. In the first place. Constitu- 
 tional law deals with a different and very special subject-matter. 
 In the second, the number likely to disapprove of its infractions, 
 and the extent to which their disapproval is likely to go, are 
 infinitely greater. . . . The regular administration of law by 
 sovereign power casts into the shade all " rules of opinion " but 
 such as relate to that of power itself. This is the reason, apart 
 from difference of subject-matter, why, in speaking of law in the 
 language of ordinary people, we should not naturally include those 
 rules of morality, etiquette, or honour, which are of comparatively 
 limited efficiency ; but we should include those rules of Constitu- 
 tional and International law, the sanctions of which are graver in 
 their character, more certain to be incurred, and, when incurred, 
 more difficult of evasion. The difference is one of practice, not of 
 strict definition : both classes of rules are properly called law, but 
 the former class does not now come within the general acceptation 
 of the term by people who have to deal with facts rather than with 
 logic' 
 
 The Oxford Dictionary defines ' Law ' as follows : 
 
 ' The body of rules, whether proceeding from formal enactment 
 or from custom, which a particular state or community recognizes 
 as binding on its members or subjects.' 
 
DEFINITIONS, OF LAW 163 
 
 Professor Salmond deals with the subject very suggestively in 
 his Jurisprudence. He there tells us that we must distinguish 
 between a law and the law, — ^between law in the concrete sense 
 and law in the abstract sense. 
 
 ' A law means a statute, enactment, ordinance, decree or any 
 other exercise of legislative authority. It is one of the sources of 
 law in the abstract sense. A law produces statute law, just as 
 custom produces customary law, or as precedent produces case 
 law.' ' The law is the body of principles recognized and applied 
 by the State in the administration of justice ; or, more shortly : 
 The law consists of the rules recognized and acted on in Courts 
 of Justice.' ' The distinction demands attention for this reason, 
 that the concrete term is not eo-extensive with the abstract in its 
 application. Law or the law does not consist of the total number 
 of laws in force. The constituent elements of which the law is 
 made up are not laws but rules of law or legal principles. . . . 
 Most English writers have, in defining law, defined it in the 
 concrete, instead of in the abstract sense. They have attempted 
 to answer the question : "What is a law ? " while the true inquiry 
 is : " What is law ? " The central idea of juridical theory is not 
 lex but ius, not gesetz but recht. . . . This consideration of laws 
 instead of law tends almost necessarily to the conclusion that 
 statute law is the type of all law and the form to which all of it is 
 reducible in the last analysis. It misleads inquirers by sending 
 them to the legislature to discover the true nature and origin 
 of law, instead of to the Courts of Justice. It is consequently 
 responsible for much that is inadequate and untrue in the juridical 
 theory of English writers.' (5th ed., pp. 9-10.) 
 
 A little farther on Professor Salmond says : 
 
 ' If there are any rules prior to, and independent of the State, 
 they may greatly resemble law; they may be the primeval substi- 
 tutes for law ; they may be the historical source from which law 
 is developed and proceeds ; but they are not themselves law. . .. , 
 The historical point of view is valuable as a supplement to the 
 logical and analytical, but not as a substitute for it. . . . The 
 plausibility of the historical argument proceeds from the failure 
 adequately to comprehend the distinction between the formal and 
 material sources of law. Its formal source is that from which it 
 obtains the nature and force of law. This is essentially and 
 exclusively the power and will of the State. Its material sources, 
 on the other hand, are those from which it derives its material 
 contents. ... If any rule of conduct has already put on the true 
 nature, form, and essence of the civil law, it is because it has 
 
164 3. DEFINITIONS OF LAW 
 
 already at its back the power of the organized commonwealth for 
 the maintenance and enforcement of it.' (Ibid., pp. 50-1.) 
 
 Prpfessor Jethro Brown, in his Austinian Theory of Law 
 (pp. 344-8), contributes the following to the discussion of the 
 proper definition of ' law ' : 
 
 ' Law, in its totality, is the voice of the organized community 
 speaking to all persons subject to its control, and afiSrming a rule 
 of life which men may accept with the consciousness of the might 
 of the community to support them. It is the expression of the 
 organized will of the community, backed by the organized force 
 of the community. Particular rules of law may not be expressible 
 in the imperative form ; but such rules derive their meaning and 
 value from their association with a system which, regarded as 
 a whole, must be held to be commanded — if once the term command 
 be defined in the manner which popular usage and common sense 
 require. In such familiar descriptions of law as the empire of 
 the dead over the living, as the product of national life, as a spirit 
 which lives and moves with the letter, we may recognize dunly 
 the presentation of great truths which should be reflected in the 
 definition of law. I will venture, accordingly, to urge for the 
 inclusion of three further elements in the conception of law 
 in addition to those to which reference has been made. The 
 sum of the rules which go to make law is a uniti/ ; it is unity 
 which is also a growth ; it is a growth which is also something 
 distinguishable from a mere natural product, being in fact an 
 expression of human intelligence and design — "a growth directed 
 by conscious foresight".' 
 
 And he adds by way of explanation : 
 
 ' Particular rules of law cannot be interpreted as if they were 
 detachable fragments of an atomic or mechanical whole. To 
 explain their meaning we must regard them alongside of other 
 rules of law which qualify or extend their scope and regulate their 
 enforcement. . . . Existing rules of law change in their meaning 
 from age to age by slow, insensible processes, and additions or 
 alterations of the law are no mere patchwork. The most despotic 
 of legislators cannot think or act without availing himself of the 
 spirit of his race and times. His most despotic laws reveal the 
 influence and potency of that spirit. When they are once 
 promulgated they have to be interpreted and administered ; in 
 the process of interpretation and administration, the spirit of the 
 legal S3rstem as a whole will reassert itself at every stage ; between 
 the rule and the legal system vital relations become established ; 
 
3. ANALYSIS OF LAW 165 
 
 and if we are to describe the change in the legal system we must 
 call it a growth, not in the mechanical sense conceived by Austin, 
 but in the living sense in which we employ the term when 
 describing the developmental processes which are characteristic 
 of organic nature.' 
 
 ANNOTATION III 
 
 BENTHAM AND AUSTIN'S ANALYSIS OF LAW 
 
 Jurisprudence 
 
 In this chapter Mr. Harrison indicates his view of the true 
 meaning of ' Jurisprudence or the science of law ' by his state- 
 ment {supra, p. 63) that, ' The object of Jurisprudence is not to 
 teach the actual rules of practice. Its object is to supply sound 
 ways of grouping these rules, and a scientific conception of their 
 relations and proper ends.' I think, however, it may be of service 
 to the student to add here some remarks upon the general subject 
 of ' Jurisprudence '. 
 
 (1) First, then, what is the meaning and content of ' Jurispru- 
 dence ' in that sense in which it is used to signify ' the science 
 of law ' ? 
 
 This use of the term indicates in the first place a certain 
 science. What then constitutes a ' science ' ? As a recent writer 
 says : 
 
 ' Merely to collect a number of facts is not to evolve a science. 
 A man does not know anything about the science of political- 
 economy, for example, if he merely knows that the price of 
 a certain commodity has risen. He must not merely know that 
 there has been a rise of prices, he must find out the principles 
 which underlie and explain that rise of prices — the law of supply 
 and demand, and the like. Before a science can be produced 
 facts must be co-ordinated, the logical relations existing between 
 them must be found out, the principles underlying them 
 must be discovered. Science is not merely knowledge ; it is the 
 systematization of knowledge. Unless the student grasps this 
 point, he will never rightly understand the meaning of the word 
 "Jurisprudence".' (Eastwood's Introduction to Austin's Jurispru- 
 dence, p. 3.) 
 
166 3. BENTHAM AND AUSTIN'S 
 
 But when we say that ' Jurisprudence ' — in the only sense in 
 which the analytical jurists, such as Austin and Holland, consider 
 that the word should be used — is a science, we mean something 
 more than that it is knowledge co-ordinated, arranged, and 
 systematized, to quote a dictionary definition of a ' science '. 
 "We mean, further, that the legal phenomena which are its 
 subject-matter may be traced, and are by it traced, to ultimate 
 laws of Inhuman nature ; and that, to adapt the language of 
 Professor Holland {Jurisprudence, 12th ed., p. 10), its generaliza- 
 tions will hold good everywhere by virtue of the fact that these 
 legal phenomena possess ever5rwhere the same characteristics. 
 
 The only sense in which the term ' Jurisprudence ' can properly 
 be used, according to the analytical jurists, is to indicate the 
 analytical science of law — 'analytical jurisprudence' as it is 
 usually called — and it may be defined, as by Professor Holland, 
 as ' the formal science of positive law '. The meaning of the term 
 ' positive ' as applied to law has already been explained {supra, 
 p. 156) ; and this definition is equivalent to saying that this 
 analytical jurisprudence is the formal science of 'law' as the 
 term is understood in such nations as those of modern Western 
 Europe. 
 
 What, then, does this science of positive law consist of, what 
 does it aim at teaching us, and what does it accomplish ? 
 
 Austin replies that Jurisprudence, or, as he prefers to call it, 
 ' General Jurisprudence ', is ' the science concerned with the 
 exposition of the principles, notions, and distinctions which are 
 common to systems of law ; understanding by systems of law, 
 the ampler and maturer systems which, by reason of their ampli- 
 tude and maturity, are pre-eminently pregnant with instruction ' ; 
 and again : 
 
 ' The proper subject of General or Universal Jurisprudence (as 
 distinguished from Universal Legislation) is a description of such 
 subjects and ends of law as are common to all systems ; and of 
 those resemblances between different systems which are bottomed 
 in the common nature of man, or correspond to the resembling 
 points in their several positions.' {Lectures, 4th ed. , vol. ii, 
 pp. 1108, 1112.) 
 
 But Austin gives us no clear understanding of the contents of 
 
ANALYSIS OF LAW 167 
 
 Jurisprudence, nor shall we get one until we realize that all 
 ' notions and distinctions ' of law are notions or distinctions about 
 different relations with each other into which men are born, 
 or grow, or enter by some form of voluntary transaction, or are 
 placed in by the law itself ; and the distinctions between these 
 relations and between rights and obligations implied in, arising 
 from, or otherwise attached to them. Law is concerned only 
 with relations between persons, and such relations may be between 
 one or more individuals and people in general, as, for example, 
 the relation between a man who owns a certain piece of property 
 and people in general who do not own it ; or they may be 
 between one or more individuals and one or more other indivi- 
 duals, as, for example, relations arising out of contract, or the 
 relation which arises between one who has done another an injury 
 and the man he has injured. The subject of Jurisprudence is such 
 of these relations as the law recognizes by attaching rights or 
 obligations to one or other or both the parties, to them ; and the 
 general character of such rights and obligations. These relations, 
 and the ideas involved in the very conception of them, and the 
 purpose of regulating them, are the common element in all mature 
 systems of law. Professor Holland brings this out very clearly. 
 Jurisprudence, he tells us, is 'the formal science of those relations 
 of mankind which are generally recognized as having legal conse- 
 quence' {Juri^rudence, 12th ed., p. 9); or, again. Jurisprudence, he 
 says, ' is a formal, or analytical, as opposed to a material science ; 
 that is to say, it deals rather with the various relations which are 
 regulated by legal rules than with the rules themselves which 
 regulate those relations ' (ibid., p. 6). 
 
 Thus the right of an owner of a piece of land to take possession 
 of it, and the right of a leasehold tenant of a piece of land to take 
 possession of it, are, regarded in detachment, the same kind of 
 rights. Each is a right to take possession of. land. But we do 
 not find them classified together by Professor Holland. Why ? 
 Because they are the legal consequence of, and arise out of, two 
 quite different relations. The one arises out of the relation 
 between a man who owns a piece of property and people in 
 general. The other arises out of the relation between lessor and 
 lessee under a contract of lease. 
 
168 3. BENTHAM AND AUSTIN'S 
 
 So quite consistently with his definition of Jurisprudence, 
 what Professor Holland really distinguishes between are the 
 various relations between men generally recognized in mature 
 systems of law ; and legal rights are only distinguished by him 
 as arising out of, or being 'the legal consequence' of, distinct 
 relations. 
 
 Thus the subject-matter of Jurisprudence being the various 
 relations between human beings and the conceptions involved 
 in the comprehension of these relations, how does it treat this 
 subject-matter and what does it do with it ? It enumerates ajid 
 defines these relations, and classifies them according to a rational 
 and logical method ; it defines the conceptions involved in them 
 and in the legal consequence, i. e. the rights and obligations 
 following upon them, such as ' right ', ' duty ', ' remedy ', ' owner- 
 ship ', ' contract ', ' possession ' ; and it indicates, in connexion 
 with each, the general character of those legal consequences. 
 
 Professor Dicey apparently agrees with those who would confine 
 the word 'Jurisprudence', or at all events confine its study, to 
 this analytical science of positive law. He says : 
 
 'Jurisprudence, in the only sense in which it is worth the 
 attention of any sensible man, has nothing idle, unmeaning, or 
 pedantic about it, but is an analysis of the different conceptions 
 or ideas, such as the idea of a "right", of "possession", of 
 " property" and the like, to be found in all actual legal systems ; 
 and is also an account of the relation of such conceptions to each 
 other, and hence of the heads or divisions under which a system 
 of law mai/ be properly distributed,' (Latv Magasine, vol. v, 
 p. 382.) 
 
 And Professor E. C. Clark says : 
 
 ' The main object, in fact, of calling Jurisprudence a science, is 
 to distinguish it from the Art which relates to the same subject- 
 matter. As a science, then, Jurisprudence deals rather with the 
 general principles, notions, and distinctions of law than with their 
 application to individual cases, or their embodiment in detailed 
 rules.' (1 L. Q. B. 203.) 
 
 And Professor Holland illuminates the matter when he adds : 
 'The assertion that Jurisprudence is a formal science may 
 perhaps be made clearer by an example. If any individual should 
 accumulate a knowledge of every European system of law, holding 
 each apart from the rest in the chambers of his mind, his 
 achievement would be best described as an acquaintance with 
 
ANALYSIS OF LAW 169 
 
 the legal systems of Europe. If each of these systems were 
 entirely unlike the rest, except when laws had been transferred 
 in the course of history from one to the other, such a distinguished 
 jurist could do no more than endeavour to hold fast, and to avoid 
 confusing, the heterogeneous information of which he had become 
 possessed. Suppose, however, as is the case, that the laws of 
 every country contain a common element ; that they have been 
 constructed in order to effect similar objects, and involve the 
 assumption of similar moral phenomena as everywhere existing ; 
 then such a person might proceed to frame out of his accumulated 
 materials a scheme of the purposes, methods, and ideas common 
 to every system of law. Such a scheme would be a formal 
 science of law; presenting many analogies to Grammar, the 
 science of those ideas of relation, which, in greater or less perfec- 
 tion, and often in the most dissimilar ways, are expressed in all 
 the languages of mankind.' (Jurisprudence, 12th ed., p. 7.) 
 
 (2) Such, then, being the subject-matter of analytical Jurispru- 
 dence, and the way it aims at dealing with this subject-matter, 
 what is the value of it all ? What would we gain from such a 
 science, if perfected, apart from the practical object of the con- 
 solidation and systematization of English or any other particular 
 system of law, or the ultimate and final codification of such 
 a system, to which Mr. Harrison refers in the text. In the first 
 place we should haVe arrived at an accurate analysis, explanation, 
 and, consequently, apprehension of the terms which lawyers 
 have to use, and the conceptions with which they deal ; and as 
 Austin himself somewhere says : ' It really is important that 
 men should think distinctly and speak with a meaning.' And 
 in the second place we should have a logically consistent and 
 complete ground-plan of the whole field of law, enabling us, as it 
 were, so to arrange our stores of knowledge of the actual i-ules of 
 law, as we accumulate them, as to make our minds, aided by 
 association of ideas, more retentive of them ; and to render them 
 more accessible to our memories when occasion arises to recall 
 them, and the value of this is not detracted from by the fact that 
 in dealing with the legal aspects of some particular department 
 of human affairs or business, we may, have to do with relations 
 occupying different portions of the field. 
 
 As Mr. Harrison himself says [swpra, p. 91) : ' If it be possible 
 to reduce the wilderness of rules which the vast library of text- 
 
170 3. BENTHAM AND AUSTIN'S 
 
 books presents to a coherent body of general conceptions the 
 usefulness of it as an introduction to the study seems too obvious 
 for agreement.' 
 
 (3) Such is the science of law in the only sense which Professor 
 Holland would dignify by the name of Jurisprudence. It is 
 more usual, however, to distinguish it as ' analytical Juris- 
 prudence ', or ' general Jurisprudence '. For in truth, the phe- 
 nomena of law may be regarded from more than one aspect ; 
 and there are other such aspects, which, although they may be 
 looked upon as ancillary to analytical Jurisprudence, and although 
 in his chapter on ' Historical Jurisprudence ' (which I shall refer 
 to again presently) . Mr. Harrison says {supra, p. 86), ' The 
 historical method is one of the resources of Jurisprudence, not 
 the substantive part of it, and in no sense an independent part 
 of it', yet are in themselves so fundamentally different from 
 that in which analytical Jurisprudence regards them, that they 
 may well be said to be other kinds of legal science — or, more 
 properly, to constitute other fields, or departments, of the whole 
 science of law — and, therefore, usage at all events claims them 
 to be equally entitled to the name of ' Jurisprudence '. Thus 
 instead of considering the phenomena of law as they now exist 
 in the maturer systems, we may apply ourselves to consider law 
 in its development, and to arrive at such generalizations as may 
 be discoverable concerning the growth of law. Hence arises 
 what is generally termed ' Historical Jurisprudence '. With that, 
 however, I propose to deal more particularly in the annotation to 
 Chapter III of Mr. Harrison's text, wherein he treats of the 
 Historical Method. It may, however, be remarked here that 
 historical Jurisprudence, as treated in Sir Henry Maine's famous 
 works on Ancient Late, The Early History of Institutions, Village 
 Communities in the East and West, and Early Law and Custom, may 
 be equally well termed ' Comparative Jurisprudence ' in one of the 
 uses of that elastic term. Professor Jethro Brown, indeed, calls 
 Analytical Jurisprudence itself one kind of Comparative Juris- 
 prudence. He says : 
 
 ' The term Comparative Jurisprudence may be used in at least 
 three distinct senses. In the first sense the term may indicate 
 a study of which the avowed object is to discover a law common 
 
ANALYSIS OF LAW 171 
 
 to various nations, — a body of legal rules which are alleged to 
 exist in a number of different civilized communities and which, 
 by virtue of this existence, are assumed to possess a permanent 
 value. The idea is that of a ius gentium, as that term has been 
 frequently interpreted. Such a system of rules suggests an 
 obvious parallelism to the Law of Nature of a priori phSosophy. 
 There are, however, two important differences. A ius gentium 
 postulates neither immutability nor universality. It may grow 
 with the growth of the different national systems from which it 
 is drawn ; and for the test of universality, it substitutes that of 
 generality. In a second sense, Comparative Jurisprudence may 
 be identified with the General Jurisprudence of Austin, i. e. as 
 the science of the notions, principles, and distinctions, common 
 to the various systems. . . . This is also the sense of the term 
 Jurisprudence as defined by Professor Holland: "Jurisprudence 
 is not the material science of those portions of the law which 
 various nations have in common, but the formal science of those 
 relations of mankind which are generally recognized as having 
 legal consequences." In a third sense, Comparative Juris- 
 prudence may indicate, not a science of the law in general, but 
 any investigation of a particular legal topic which attempts to 
 show how that topic is dealt with in two or more legal systems. 
 The object of such an investigation may be to discover hints for 
 the reform of law, or for the interpretation of law.' [Austinian 
 Theory of Law, 1^^. 359-60.) 
 
 Lord Bryce's conception of what he speaks of as the compara- 
 tive method of the science of law in an Essay on Tlie Methods of 
 Legal Science seems to combine the first and third of the senses 
 in which Professor Jethro Brown speaks of ' Comparative 
 Jurisprudence '. He then says : 
 
 'The comparative method is concerned with space as the 
 Historical method is with time. ... It seeks to construct a system 
 which shall be Natural because it embodies what men otherwise 
 unlike have agreed in feeling to be essential ; Philosophical 
 because it gets below words and names and discovers identity of 
 substance under diversity of description, and Serviceable because 
 it shows by what particular means the ends which all (or most) 
 systems pursue have been best attained. The process is some- 
 thing like that which a Eoman praetor might have followed in 
 constructing the general or theoretical part of his ius gentium.' 
 {Essays, vol. ii, pp. 186-7.) 
 
 Lastly, Professor Jethro Brown describes yet another kind of 
 science of law — or, as I would prefer to call it, another depart- 
 
173 3. BENTHAM AND AUSTIN'S 
 
 ment, or field, of the science of law — which is worthy of all 
 attention ; and, incidentally, discovers a legitimate use of the 
 expression ' Particular Jurisprudence ', a phrase to which 
 Professor Holland does not object if applied to an analytical 
 science of law derived from one particular system ; but says one 
 might as well speak of a ' particular science of Greology ' in 
 reference to a science of Geology derived from an observation of 
 the strata in England only [Jurisprudence, 12th ed., p. 10). 
 Professor Jethro Brown says : 
 
 ' The science of which the student is most in need appears to 
 me to be Particular or National Jurisprudence. ..." I must 
 confess to a certain feeling", writes Lightfoot, " that law is meant 
 to serve the interests of the people, and that no treatment of it 
 can be called scientific which does not show how it contributes 
 to this end. As long as we take our distinctions solely from 
 English law and explain them merely by history, we do not 
 enter upon science, for the distinctions and principles may be 
 merely accidental, and the historical reasons may have no 
 reference to utility. If, however, we were to show that these 
 distinctions and principles have a real basis in the wants of the 
 people, we should then treat the law scientifically, and we should 
 work out the Particular Jurisprudence of the country" (The 
 Nature of Positive Laiv, p. 11). Two ways of regarding the ends 
 which law serves have alike a sound justification in fact. The 
 one we may call the economic, the other ethical. According to 
 the economic view, the purpose of law may be expressed as the 
 discovery of the conditions under which man adapts himself to 
 his environment in so far as those conditions are maintainable 
 by the organized force of a political society ; the predominant and 
 determining factor in the development of law must be sought in 
 man's constant endeavour to respond to the pressure of economic 
 facts, to discover some way of realizing his will to live ; laws, in 
 a word, are what economic necessities have made them. Accord- 
 ing to the ethical view, the purpose of law is to realize man's 
 idea of the just. Although what is just may be difficult for him 
 to determine, yet to know the just, and to do it, is his mission. 
 Whether justice be regarded as something divinely revealed to 
 man ; or as something absolute, immutable, superior to con- 
 tingencies of fact, and determinable by some a priori process of 
 reasoning ; or again, as something whose meaning and nature are 
 being revealed in the long course of social evolution and so to be 
 determined by the analysis of human experience, — ifi either of 
 these cases we are confronted by the fact of an ideal of justice to 
 
ANALYSIS OF LAW 173 
 
 which it is held to be the mission of law to confirm. " Justice 
 is," said Carlyle, "whether I can define it or not. . . ." It may 
 be inferred from what has been said, that to see law steadily and 
 see it whole is a somewhat toilsome business. Sociology, ethics, 
 politics, legislation, and political economy suggest a range oif 
 studies which is too wide to be within the possibilities of a course 
 of legal study. The law student will say, "All this is too 
 wonderful for me ; I cannot attain unto it." Probably he will 
 be right. Here, as elsewhere, he may find it necessary to 
 content himself with a compromise. National jurisprudence 
 should endeavour to aid him in achieving this compromise. Each 
 of the sciences to which I have referred has its own special view 
 of law. A National Jurisprudence cannot hope to rival those 
 sciences within their own special sphere. Yet by their aid it may 
 succeed in presenting such a view of law and of the fundamental 
 principles and conceptions of law as will enable the student to 
 realize in his subject a new life and meaning, to get nearer that 
 spirit which saves from the despotism of the letter.'^ 
 
 ANNOTATION IV 
 
 THE HISTOEICAL METHOD (Chapter III) 
 
 Instead of considering the phenomena of law as they now 
 appear in the maturer systems, we may apply ourselves to 
 consider law in its development^ and to arrive at such generaliza- 
 tions as may be discoverable concerning the growth of law in 
 general and of separate legal institutions. Hence arises a science 
 of legal development, and it constitutes what is called historical 
 jurisprudence, although, as already stated, it also may be, and often 
 is, included in the term Comparative Jurisprudence. Now the 
 first thing to do is to distinguish the legal history from this 
 Historical Jurisprudence, and, perhaps, this cannot be better 
 done than in the words of Professor Jethro Brown in his 
 Austinian Theory of Lata : 
 
 1 As to what may be termed the ' Metaphysical Method ' of Jurisprudence 
 the student may be referred to Lord Bryce's essay in Studies in History and 
 Jurisprudence, vol. ii, pp. 176-7, 
 
 2168 Y 
 
174 4. THE HISTORICAL METHOD 
 
 ' Legal history affects to describe the actual development of 
 law as it has been at the different periods of the national history. 
 Historical Jurisprudence should state, as far as may be, the 
 moral, social, and economic causes which account for that 
 development. The one answers the question "How?"; the 
 other seeks to find some answer to the question " Why ? ". The 
 one describes legal development ; the other explains it. The one 
 regards the development of the law more or less in isolation ; the 
 other is compelled to bring that development into relation vdth 
 the general progress of the national life.' (Austinian Theory of 
 Law, p. 358.) 
 
 Professor Vinogradoff has dealt with the whole matter most 
 lucidly and suggestively in his article on Comparative Juris- 
 prudence in the Encyclopaedia Britannica (sub voc. Jurisprudence, 
 Comparative). I can do little more than refer the student to the 
 article. In the course of it, however, he says : 
 
 ' The comparative study of law may be treated in two different 
 ways : it may be directed to a comparison of existing systems of 
 legislation and law, with a view to tracing analogies and contrasts 
 in the treatment of practical problems and taking note of 
 expedients and of possible solutions. Or else it may aim at dis- 
 covering the principles regulating the development of legal 
 systems, with a view to explain the origin of institutions and 
 study the conditions of their life. ... In the second sense, com- 
 parative jurisprudence is one of the aspects of so-called sociology, 
 being the study of social evolution in the special domain of law. 
 . . . Comparative Jurisprudence, as understood in these intro- 
 ductory remarks, dates from the nineteenth century, and 
 especially from its second half. . . . The historic bent of mind of 
 nineteenth-century thinkers was to a great extent the result of 
 heightened political and cultural self-consciousness. It was the 
 reflection in the world of letters of the tremendous upheaval in 
 the States of Europe and America which took place from the 
 close of the eighteenth century onwards. ... It is not a matter 
 of chance that the historical school of jurisprudence, Savigny's 
 doctrine of the organic growth of law, was formed and matured 
 while Europe collected its forces after the most violent revolu- 
 tionary crisis it had ever experienced, and in most intimate 
 connection with the romantic movement, a movement animated 
 by enthusiastic belief in the historical, traditional life of social 
 groups as opposed to the intellectual conceptions of individualistic 
 radicalism. On the other hand, the nineteenth century was 
 a scientific age and especially an age of biological science. ... Of 
 course it ought not to be disregarded that the application of 
 
THE HISTORICAL METHOD 175 
 
 scientific principles and methods to human and social facts was 
 made possible by the growth of knowledge in regard to savage 
 and half-civilized nations called forth by the increased activity 
 of European and American business men, administrators and 
 explorers. . . . The immediate incitement for the formation of 
 comparative jurisprudence was given by the great discoveries of 
 comparative philology. . . . Itwasnaturalthat students of religion, 
 of folk-lore, and of legal institutions took up the same method and 
 tried to win similar results. . . . The comparative study of the 
 Aryan group assumed another aspect in the works of Sir Henry 
 Maine. He did not rely on linguistic affinities, but made great 
 use of another element of investigation. . . . His best personal 
 preparation for the task was that he had not only taught law in 
 England, but had come into contact with living legal customs in 
 India. For him the comparison between the legal lore of Eome 
 and that of India did not depend on linguistic roots or on the 
 philological study of the laws of Manu, but was the result of 
 recognizing again and again, in actual modern custom, the views, 
 rules and institutions of which he had read in Gains or in the 
 fragments of the XII Tables. ... In regard to jurisprudence 
 Steinmetz distinguishes carefully between art and science : 
 " Jurisprudence in the wider sense is an art, the art of framing 
 rules for social intercourse in so far as these rules can be put into 
 execution by the State and its organs, as well as the art of 
 interpreting and applying these rules. In another sense it is 
 pure science, the investigation of all consciously formulated and 
 actually practised rules, and of their conditions and foundations, 
 in fact, of the entire social life of existing and bygone nations, 
 without a knowledge and understanding of which a knowledge 
 and understanding of law as its outcome is, of course, impossible." 
 In this sense, Jurisprudence is a part of ethnology and of the 
 comparative history of culture. But in order to grapple with 
 such a tremendous task comparative jurisprudence has not only 
 to call to help the study of scattered ethnological facts . . . 
 ethnological studies themselves have to look for guidance to 
 psychology, especially to the psychology of emotional life and 
 character. Although these branches of psychological science have 
 been much less investigated than the study of intellectual pro- 
 cesses, they still afford material help to the ethnologist and the 
 comparative jurist ; and Steinmetz himself made a remarkable 
 attempt to utilize a psychological analysis of the feelings of 
 revenge in his Origins of Punishments. . . . Organizing thought 
 always seeks to substitute order for chaotic variety. Observations 
 as to disconnected analogies lead to attempts to systematize them 
 from some comprehensive point of view. These attempts may 
 take the shape of a theory of consecutive stages of development. 
 
176 4. THE HISTORICAL METHOD 
 
 Similar facts appear over and over again in ethnological and 
 antiquarian evidence, because all peoples and tribes, no matter 
 vsrhat their race and geographical position, go through the same 
 series of social arrangements. This is the fundamental idea 
 which directed the researches of Maine, McLennan, Morgan, Post, 
 Kohler, although each of these scholars formulated his sequence 
 of stages in a particular way.' 
 
 ' To see law steadily and see it whole is a somewhat toilsome 
 business. Sociology, ethics, politics, legislation, and political 
 economy suggest a range of studies which is too wide to be within 
 the possibilities of a course of legal study.' (Jethro Brown's 
 Austinian Theory of Law, p. 374.) 
 
 As to Savigny, in his Essay on German Schools of History 
 Lord Acton says (^Historical Essays and Studies, pp. 346-7) : 
 
 ' Savigny developed the historic method of jurisprudence. The 
 sovereign legislator is not the government, but the nation. Law, 
 like language, proceeds from its primitive nature and its 
 experience and is part of its identity. The deliberations of law- 
 giving consist in ascertaining not what is best, but what is con- 
 sistent with usage. Laws are found, not made, for the treatment 
 adapted to successive emergencies is already latent in the public 
 conscience, and must be evolved from precedent. Laws and 
 constitutions expand by sustenance drawn from the constant and 
 original spring ; the force preparing the future is the same that 
 made the past, and the function of the jurist is to trace and obey 
 it faithfully, without attempting to explain it away. It is in 
 Savigny's (1779-1861) works that the comparison between law 
 and language is completely set forth. . . . Law cannot be fashioned 
 to suit the legislator's fancy. . . . According to Savigny, it cannot 
 be admitted that law in its origin depends either upon chance or 
 human choice. Pact contradicts this. Every time a legal 
 problem is solved we find ourselves in the presence of completely 
 formed legal rules. So it is impossible to Say that law was 
 created by the will of the separate individuals who compose 
 a people. On the contrary, it must be considered as a product of 
 the people's genius manifesting itself in all the members of the 
 people and leading them thus to the notion of law. . . . The fact 
 that in our consciousness the notion of positive law is always 
 connected with that of necessity, which would be impossible if 
 law were a creation of our free-will, testifies in favour of a 
 formation of law in which the will has no part. . . . "Wherever we 
 see men living together we see them forming a spnitual unity. 
 This unity manifests and declares itself in the use of a common 
 language. Law forms a part of this spiritual unity, since in the 
 
THE HISTOEIOAL METHOD 177 
 
 popular spirit with which everybody is permeated there is 
 manifest a force capable of satisfying the need for regulation of 
 this common life of men. In conceiving the people as a unity, 
 \ve must not only think of living members of the existing genera- 
 tion ; the spiritual unity embraces also successive generations, the 
 future and the past. Law is preserved in the people by force of 
 tradition which establishes and maintains itself because the 
 succession of generations does not take place rapidly and at 
 a stroke, but regularly and insensibly.' 
 
 Professor Jethro Brown, however, in his Underlying Principles 
 of Legislation (pp. 138-9) sounds a note of warning in respect to 
 Savigny, saying: 
 
 ' Savigny, upholding the organic theory of legal development, 
 represented law as a product of the national Ufe. So far from 
 being the mere fiat of an arbitrary legislator, law was the 
 spontaneous and unconscious expression of the juridic sentiment 
 of a people. In other words, while he proved once and for all 
 that law was growth in a very real sense, he committed the fatal 
 error of underestimating the importance of the element of 
 conscious direction on legal evolution. Juridic sentiment, wrote 
 Ihering, in criticism of Savignian theory, has not created the 
 law : it is law that has created the juridic sentiment. Nature 
 has not made herself the directress of man. She has given him 
 wants and the intelligence to meet them. The history of law is 
 that of human thought, conscious of the end it seeks and directed 
 towards the practical realization of the conditions of human life. 
 In this sense, all law on earth has been made. If it appears as 
 spontaneous it is only because we cannot discover the successive 
 phases of its origin. This may seem at first to be a reversion to 
 the theory of manufacture. But Ihering fully adopted this view 
 of Savigny that law was a product of national life. In so doing 
 he was, of course, impelled to recognize that legal development is 
 only a phase of social development in general, and is, therefore, 
 like it, a growth. But he corrects and completes the theory of 
 Savigny by showing that law is a growth of a very special kind 
 which can only be interpreted in terms of mind.' 
 
 And now as to Sir Henry Maine, it will be well, I think, to 
 give first, in his own language, the object and theory of his 
 researches : 
 
 ' If by any means we can determine the early forms of jural 
 conceptions, they will be invaluable to us. These rudimentary 
 ideas are to the jurist what the primary crusts of the earth are to 
 the geologist. They contain, potentially, all the forms in which 
 
178 4. THE HISTOEICAL METHOD 
 
 law has subsequently exhibited itself. The haste or the prejudice 
 which has generally refused them all but the most superficial 
 examination, must bear the blame of the unsatisfactory condition 
 in which we find the science of jiu-isprudence. The inquiries of 
 the jurist are in truth prosecuted much as inquiry in physics and 
 physiology was prosecuted before observation had taken the place 
 of assumption. Theories, plausible and comprehensive, but 
 absolutely unverified, such as the Law of Nature or the Social 
 Compact, enjoy a universal preference over sober research into 
 the primitive history of society and law ; and they obscure the 
 truth not only by diverting attention from the only quarter in 
 which it can be found, but by that most real and most important 
 influence which, when once entertained and believed in, they are 
 enabled to exercise on the latter stages of jurisprudence.' {Ancient 
 Law, pp. 2-3.) 
 
 In his Notes to Maine's Ancient Laiv (Introd., pp. vii-ix) Sir 
 Frederick Pollock says : 
 
 ' We are astonished by the studiously modest terms in which 
 Maine defined his own undertaking : " The chief object of the 
 following pages is to indicate some of the earliest ideas of man- 
 kind as they are reflected in ancient law, and to point out the 
 relation of those ideas to modern thought." ... In the height of 
 his mature fame he described Early Law and Custom only as an 
 endeavour " to connect a portion of existing institutions with 
 a part of the primitive or very ancient usages of mankind, and of 
 the ideas associated with those usages ". . . . He did nothing less 
 than create the natural history of law. He showed, on the one 
 hand, that legal ideas and institutions have a real course of 
 development as much as the genera and species of living 
 creatures, and in every stage of that development have their 
 normal characters ; on the other hand, he made it clear that these 
 processes deserve and require distinct study, and cannot be treated 
 as mere incidents in the general history of the societies where 
 they occur.' 
 
 In another place Sir Frederick Pollock says : 
 
 ' If there is anything we have learnt from Sir Henry Maine, it 
 is that intimate alliance between comparative and historical 
 research is not only natural and desirable, but necessary for 
 either branch of work being efficiently done. If there is any 
 book to which a modern teacher would point as a typical example 
 of what is meant by comparative jurisprudence, it is Maine's 
 lecture on Village Communities in the East and West. . . . Com- 
 parison of institutions is profitable only when we take account of 
 the stage of civilization and of special development to which the 
 
THE HISTORICAL METHOD 179 
 
 terms to be compared belong. The mere order of time has next 
 to nothing to do with it. . . . The transformation of political 
 science about forty years ago cannot be disconnected from the all 
 but simultaneous putting forth of new a&d far-reaching ideas in 
 the study of organic nature. Ancient Law and The Origin of 
 Species were really the outcome, in different branches, of one and 
 the same intellectual movement — that which we now asgpciate 
 with the word Evolution. . . . There is a normal course of develop- 
 ment for communities as well as for individuals, and institutions 
 which belong to different stages are not commensurable terms in 
 any scientific comparison.' (Article on Comparative Jurisprudence 
 in Journal of Comparative Legislation, vol. v, pp. 75-83.) 
 
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