(tonsil Haur ^rtincl Htbrary 2|ecbci:t i. Siaube fflollcctinn 1948 Hemorial Oflift of ttje g»tul>ent0 of tlje QJornell ffiatu g»cljaol Cornell University Library K 230.A93L41911 Lectures on urisprudence, or, The philos 3 1924 017 199 484 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017199484 AUSTIN ON JURISPRUDENCE yoL. i. LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW By the late JOHN AUSTIN OF THE INNER TEMPLE. BARRISTER -AT- LAW FIFTH EDITION, REVISED AND EDITED By ROBERT CAMPBELL ADVOCATE (SCOTTISH BAR). AND OF LINCOLN'S INN, BARRISTER -AT -LAW IN TWO VOLS.— VOL. I. LONDON JOHN MURRAY, ALBEMARLE STREET 1911 75^7/5,-/ First Edition, February, 1861. Second Edition, July, 1869. Third Edition, November, 1872. Fourth Edition, November, 1878. Fifth Edition, November, 1885. Reprinted, April, 1895. Reprinted, March, 1911. Printed by Sherratt & Hughes, London and Manchester ADVERTISEMENT TO THIS EDITION. It must be gratifying to all who value and appreciate the work of the late John Austin to know that a new edition of these Lectures has been urgently called for. The cir- cumstance is significant not only as a public recognition of the merit of the lectures themselves, but also as a proof of the growing interest which is becoming awakened in this country towards the philosophical study of juris- prudence. The present edition has been prepared with the assist- ance of notes of the original lectures which have been preserved by Mr. J. S. Mill, and were kindly furnished by him to the late Mrs. Austin for the purpose of a new edition which she meditated, but did not live to com- plete. These notes have now been collated with the lectures as already published, and are found so accurate and full in the parts where the printed lectures are com- plete that they may be confidently relied on for supplying the lacunae which, owing to the state of the author's MS. were in the former publication inevitable. In revising the six lectures which formed the volume published in the author's lifetime, care has been taken to make no material alteration except in accordance with a clearly expressed intention of the author contained in his memoranda preserved by the late editor, and published in the notes to the former edition. Where, however, vi Advertisement to this Edition. such intention was clear upon the face of that text and notes, the present editor has chosen rather to venture on the attempt to embody it explicitly in the text, than to leave the task to each reader of collecting that inten- tion from the scattered passages and fragments. In the instances, confined to the matter of a few pages, where any such alteration has been made, the nature and extent of the alteration is explicitly stated in the foot-notes by the present editor, distinguished by the initials 'R. C With regard to the remaining Lectures, free use has been made of the notes above described (hereafter shortly referred to as 'J. S. M.'s notes'), both for purposes of arrangement and addition. For the purpose of arrange- ment, these notes have often furnished the clue where, for want of such a clue, inevitable misplacement of pas- sages had taken place in the former edition. Of the additions the most important are in the 39th and 40th lectures. The latter part of the 39th lecture, on the important topic of ' Codification,' formed an entire lecture in the course preserved in J. S. M.'s notes. The 40th lecture, which is described in the former edition as miss- ing, is now restored, and forms the leading chapter of one of the author's main divisions of his subject. Neglect could not have effaced the impress which John Austin and his work has stamped upon the thought of posterity. But that so much has been recorded in explicit and substantive form, is due to the ability and diligence of the lady whose preface heads the following pages. Mrs. Austin died at Weybridge on the 8th of August 1867, and it may be interesting to the reader, and can scarcely be inappropriate here, to supplement the ensuing preface with a short account of her own life. In doing so the editor takes the liberty of borrowing from the pen of one entitled to speak from long and intimate Advertisement to this Edition. vii acquaintance. The Times of the 12th August 1867 con- tains the following notice : — ' It has already been announced, in another part of these columns, that Mrs. Austin, widow of the late John Austin, well known as one of the most eminent professors of the science of jurisprudence whom this country has produced, expired on the 8th inst. at her residence at Weybridge, after an acute attack of a malady of the heart, with which she had long been afflicted. Although the life of Mrs. Austin was spent in the active dis- charge of her private duties, and although no one was less dis- posed to court celebrity, which she might have enjoyed in a far larger degree had she cared to seek it, she undoubtedly filled so considerable a place in society and in literature that some record of so remarkable a woman may not unfitly appear in this place. To the attractions of great personal beauty in early life, and of a grace of manner undiminished by years, Mrs. Austin added a masculine intellect and a large heart. It was not by the play of a vivid imagination, or by an habitual display of what is termed wit, that she secured the affections and the friendship of so many of the wisest and noblest of her contemporaries. The power she exercised in society was due to the sterling qualities of her judgment, her knowledge, her literary style — which was one of great purity and excellence — and, above all, to her cordial readiness to promote all good objects, to maintain high principles of action, and to confer benefits on all who claimed her aid. ' Mrs. Austin was descended from the Taylors of Norwich, a family which has in several generations produced men and women distinguished by literary and scientific ability. She was born in 1793, and she received in her father's house an education of more than common range. Jin 1820 she married Mr. John Austin, then a barrister on the Norfolk Circuit, and came to reside next door to Mr. Bentham and Mr. James Mill, in Queen Sqxiare, Westminster .J Although that house could boast of none of the attractions of luxiiry, for the fortune of its owners was extremely small, it soon collected within its walls as remarkable an assemblage of persons as ever met in a London drawing-room. There might be seen — a dim and flitting figure of the past — Mr. Bentham and his two disciples, James and John Stuart Mill, the Grotes, the rising lawyers of that day whose success has justified the promise of their dawn, Bicker- steth, Erie, Romilly, and Senior ; and all this wisdom and learning viii Advertisement to this Edition. was enlivened in later years by the wit of Charles Buller, by the hearty sallies of Sydney Smith, by the polished eloquence of Jeffrey, by the courteous amenity of Lord Lansdowne, and by the varied resources of foreign visitors who found a home by Mrs. Austin's hearth. 'Mrs. Austin never aspired to original literary composition. Except in some of the prefaces to her translations, she dis- claimed all right to address the public in her own person. She therefore, devoted the singular power of her pen to reproduce iu English many of the best contemporary works of (ierman and French literature. Her translations from the German, more especially, were of the highest excellence, and amongst these her version of liauke's Popes of Home has been commended by the best judges as deserving to retain a place in English historical literature. ' Much of Mrs. Austin's life was spent abroad, and not a few of the most eminent persons in continental society enjoyed her friendship. CShe had inhabited two German Universities for the prosecution of her husband's studies, after he had quitted the bar for a chair of jurisprudence in the London University. She had accompanied him to Malta when he was sent as a commissioner to that island. She remained for some years in Paris, where her small salon had an intellectual stamp and charm not inferior to that of her London circle. The revolution of 1848 drove the Austins back to England; they established themselves in the village of Weybridge, and calmly anticipated the day when they should rest side by side in Weybridge churchyard. J Mrs. Austin, however, survived her husband for several years, and that interval was employed by her in accom- plishing a task which to most women would have seemed hope- less. The greater part of the Lectures delivered by Professor Austin on the principles of jurisprudence had remained in manuscript. His ill-health led him constantly to postpone the task of preparing them for the press. After his death his widow, assisted by one or two legal friends on whose judgment she could rely, succeeded in completing the imperfect edifice from the fragments of it that remained; andjwe owe to Mrs. Austin, already advanced in years, and struggling with a painful disease, the production of a, work on jurisprudence, which iH unquestionably the noblest monument that could be raised to the memory of her husband/J In pursuance of a bequest of Mrs. Austin's, the books Advertisement to this Edition. ix on jurisprudence (chiefly of German authors), which had been preserved as those of her husband's which he had chiefly valued and studied, and many of which are filled with observations and analytical notes in his handwriting, are now placed in the library of the Inner Temple in a separate compartment. As these are the volumes which are chiefly denoted by the references in the ensuing Lectures, and as they are there sometimes referred to by their pages, it is important to state the particular editions. A list is accordingly here subjoined of the books forming the collection so placed in the Inner Temple Library. No. of Vols. Friedrich Carl von Savigny, Geschichte des romischen Reohts im Mittelalter, Heidelberg, 1815—29 . . .5 ,, Das Recht des Besitees, Giessen, 1827 . . .1 ,, System des heutigen romischen Rechts (first volume only) Berlin, 1840 . . . . .1 ,, Vbm Beruf unsrer Zeit fiir Gesetzgebung und Rechtswis- senschaft, Heidelberg, 1814 . . . .1 ,, Translation of the last, by Abraham Hayward. Printed by Littlewood & Co., Old Bailey, London (not for sale) . . . . . . .1 Karl Friedrich Eiohhorn, Einleitung in das deutsche Privatrecht, Gottingen, 1825 . . . . . 1 ,, Deutsche Staats- und Rechtsgeschichte, Gottingen, 1821-23 4 Gustavus Hugo, Jus Civile Ante-Justinianeum, with preface, Berlin, 1815 . . . . . .2 „ Lehrbuch der Geschichte des romischen Rechts, Berlin, 1826 ....... 1 „ Lehrbuch eines civilistisches Cursus ; 4 volumes of different editions, viz. 6*er Band, 2*<>r Versuch; Berlin, 1818; 2 ter Band, 4*e Ausgabe; Berlin, 1819; 5 ter (sonst) 7 ter Band, 3tte Ausgabe; Berlin, 1820; erster Band, 7 te Ausgabe; Berlin, 1823 . . . . . . 4 Gaii Institutionum Commentarii IV., ed. J. F. L. Goschen, Berlin, 1823. (Full of analytical notes by Mr. Austin) . 1 A. F. J. Thibaut, Theorie der logischen Auslegung des romischen Rechts, Altona, 1806 . . . . .1 A. F. J. Thibaut, Versuche iiber einzelne Theile der Theorie des Rechts, Jena, lfl7 . . . . .2 ,, Civilistische Abhandlungen, Heidelberg, 1814 . . 1 ,, System des Pandekten-Rechts, Jena, 1828 . . .2 Dr. Ferdinand Mackeldey, Lehrbuch des heutigen romischen Rechts, Giessen, 1827, two vols, (bound in one) . . 2 vol,, i b x Advertisement to this Edition. No. of Vols. Christian Friedrich Miihlenbruch, Doctrina Pandectarum, Halle 1827 ...... August Wilhelm Heffter Institutionem des romischen un deutschen Civil-Processes, Bonn, 1825 . D. Christ. Gottlieb Haubold, Institutionum Juris Romani Privati historico-dogmaticarum Lineamenta, Leipzig, 1826 ,, Institutionum, etc., Epitome, Leipzig, 1821 Ernst Spangenberg, Einleitzung in das Romisch-Justinianische Rechtsbuch, Hanover, 1817 . . ■ • *- And. W. Cramer, De Verborum significatione Tituli Pandectarum et Codicis cum variae lectionibus Apparatu, Kiliae, 1811 1 Heinrich Moritz Chalybaus, Historische Entwickelung der specu- lativen Philosophic, von Kant bis Hegel, Dresden and Leipzig, 1839 . '. . . ■ • 1 Immanuel Kant, Kritik der reinen Vernunft, 7th edition, Leipzig, 1828. „ Prolegomena zu einer jeden kiinftigen Metaphysik, die als Wissenschaft wird auftreten konnen, Riga, 1783 . 1 ,, Zum ewigen Frieden, Konigsberg, 1796 . . .1 ,, Kritik der practischen Vernunft, 6th edition, Leipzig, 1827 . . . . . ■ • 1 ,, Die Metaphysik der Sitten, Konigsberg, 1st part, 1798, 2nd part, 1803 . . . . . .2 F. Schleiermacher, Grundlinien einer Kritik der bisherigen Sittenlehre, Berlin, 1*03 . . . .1 Jeremy Bentham, Introduction to the Principles of Morals and Legislation, London, 1789 . . . .1 ,, Constitutional Code for the use of all Nations and all Governments professing Liberal Opinions, vol. i., Lon- don, 1830 . . . . . .1 ,, Fragment on Government, Dublin, 1776 . . .1 „ Draught of a New Plan for the Organisation of the Judi- cial Establishment in France, March, 1790 . . 1 ,, Traites de Legislation civile et penale, publies en Francais par Et. Dumont, de Geneve, d'apres les manuscrits confies par l'auteur . . . . .3 John James Park, Contre-projet to the Humphreysian Code, London, 1828 . . . . . .1 Sir James Mackintosh, Dissertation on the Progress of Ethical Philosophy chiefly during the 17th and 18th centuries, with Preface by Wm. Whewell, Edinburgh, 1836 . 1 James Mill, Essays on, 1. Government; 2. Jurisprudence; 3. Liberty of the Press ; 4. Prisons and Prison Discipline ; 5. Colonies; 6. Law of Nations; 7. Education; London, printed (not for sale) by J. Innes, 61 Wells Street. Oxford Street . . . . . .1 Friedrich List, Das nationale System der politischen Oekonomie, Stuttgart and Tubingen, 1841 . . .1 Allgemeines Landrecht fvir die Preussischen Staaten, Berlin, 1828 5 Advertisement to this Edition. No. of Vols. Allgemeines Oriminal-Recht fur die Preuesisohen Staaten, Berlin, 1827 ....... Allgemeine Deposital-Ordnung fur die Ober- und Unter-Gerichte der sammtlichen koniglich-Preussischen Lande, 15th September, 1783, Berlin, 1783 .... Allgemeine Gerichts-Ordnung fur die Preussischen Staaten, Berlin, 1822 ...... Allgemeine Hypotheken-Ordnung fur die gesammten koniglichen Staaten, 20th December, 1783, Berlin, 1784 Instruction fur die Ober- und Untergerichte zur Ausfiihrung der koniglichen Verordnung vom 16ten Juni d. J. wegen Einrichtung des Hypotheken-Wesens in dem mit den Preussischen Staaten vereinigten Herzogthum Sachsen, Berlin, 1820 ..... Strafgesetzbuch fur die herzoglich Holstein-Oldenburgischen Lande, Oldenburg, 1814 ..... J. and W. Beck, edition of Corpus Juris. Civilis Leipzig, 1825-6 (2nd vol. in two parts) ..... Joachim Hoppe, Commentarii succinta ad Institutiones Justin- ianeas, Frankfort and Leipzig, 1736 Ant. Matthaeus, De Criminibus ad xlvfi. et xlviii. Dig. comment. Vesaliae, 1672 . . . . J. Gottl. Heineccius, Recitationes in elementa Juris Civilis secundum ordinem Institutionum, Vratislaviae, 1789 . ,, Antiquitatum Romanarum Jurisprudentiam illustrantium syntagma, ed. Haubold, Frankfort, 1822 John Reddie, Historical Notices of the Roman Law, Edinburgh, 1826 . . . . . . . L. A. Warnkonig, Versuch einer Begriindung des Rechts durch eine Vernunftidee, Bonn, 1819 . Johann Wening, Ueber den Geist des Studiums der Jurisprudenz, Landshut, 1814 ...... Eduard Puggaeus, edition of Theodosiani Codicis Fragmenta, Bonn, 1825. Angelus Maius, Juris Romani Ante-Justinianei Fragmenta Vati- cana (e codice palimpsesto eruta), Rome and Berlin, 1824 D. Christoph Martin, Lehrbuch des Teutschen gemeinen Criminal- Processes, Gottingen, 1820 .... Corpus Juris Fridericanum, erstes Buch. Von der Prozessord- nung, Berlin, 1781 B. G. Neibuhr and Eh. A. Brandis, Rheinisches Museum fur Philologie, Geschichte und griechische Philosophie, Bonn, 1827-8 ...... F. C. von Savigny, C. F. Eichhorn, and T. F. L. Goschen, Zeit- schrift fur geschichtlichte Rechtswissenschaft, Berlin, 1815-23 ....... Geo. Lud. Boehmer, Principia Juris Canonici speciatim Juris Ecclesiastici publici et privati quod per Germaniam obtinet, Gottingen, 1802 .... xii Advertisement to this Edition. No. of Vols. Paul J. Anselm, Feuerbach, Betrachtungen iiber das Geschwomen- Gericht, Landshut, 1813 . . . . -1 ,, Lehrbuch des gemeinen in Deutschland giiltigen peinlichen Rechts, Giessen, 1826 . . . . -1 M. C. F. W. Gravell, Priifung der Gutachten der konigl. Preuss. Immediat-Justiz-Commission am Rhein iiber die dortigen Justiz-Einrichtungen, Leipzig, 1819 . . .2 Ludwig Heinrich Jordan, Ueber die Billigkeit bey Entscheidung der Rechtsfalle, Gottingen, 1804 . . .2 D. Vincenz August Wagner, Zeitschrift fur osterreichische Rechts- gelehrsamkeit und politische Gesetzkunde, Wien, 1830 (12th part) . . . . . .1 C. F. Rosshirt, Lehrbuch des Criminalrechts, Heidelberg, 1821 . 1 C. J. A. Mittermaier, Ueber die Grundfehler der Behandlung des Criminalrechts in Lehr- und Strafgesetzbiichern, Bonn, 1819 . . . . . .1 ,, Grundriss zu Vorlesungen iiber das Strafverfahren . . 1 Cesare Beccaria (Marchese), Dei Delitti e delle Pene, London, 1801 1 A. R. Philippo du Trieu, Manuductio ad Logicam, London, 1826 1 Isaac Watts, D.D., Logick, 9th edition, London, 1740 . . 1 Arthur Schopenhauer, Die beiden Grundprobleme der Ethik, Frankfort, 1841 . . . . . .1 Sir William Blackstone, Commentaries on the Laws of England, 15th edition, by Edward Christian, London, 1809 . 4 Anonymous, Remarks on Criminal Law, with a plan for an im- proved system, and Observations on the Prevention of Crime, London, Hamilton, Adams h Co., 1834 . . 1 A volume containing, 1. An article from the 'Edinburgh Review,' 1817, No. 57, entitled "Bentham on Codification;' 2. An article from the same Review, 1843, entitled 'Cen- tralisation,' by Mr. Austin ; 3. The Pamphlet 'A Plea for the Constitution,' mentioned in Mrs. Austin's preface to these Lectures ; 4. An article from the 'Edinburgh Review,' October 1863, 'Austin on Jurisprudence,' under- stood to be by Mr. J. S. Mill . . . .1 A copy of the former edition (by Mrs. Austin) of these Lectures . 3 Ranke's History of the Popes, translated from the German by Sarah Austin, London, 1866 . . . .3 Henry Roscoe, Digest of the Law of Evidence in Criminal Cases, London, 1835 . . . . . .1 T. R. Malthus, Essay on Population, 4th edition, London, 1807 . 2 Additions to the same, London, 1817 . . . .1 The American's Guide, Philadelphia, 1813 . . .1 A volume without a title-page, containing articles from a French law review, the first (which has been carefully noted on the margin by Mr. Austin), being entitled "Remarques sur la definition et sur la classification des choses,' and being a treatise suggested by a work of M. Poncet, dated about 1817 . . . . .] Advertisement to this Edition. xiii No. of Vols. N. Falck, Juristische Encyklopadie, Kiel, 1825 . . .1 Carl von Rotteck and Carl Welcker, Staats-Lexikon, oder Ency- klopadie der Staatswissenschaften, Altona, 1842 . 1 Robert Eden, Jurisprudentia Philologica, Oxford, 1744 . 1 J. B. Sirey, Les cinq Codes, avec notes et traites, Paris, 1819 . 1 M. Biret, Vocabulaire des cinq Codes, Paris, 1826 . . 1 M. Camus and M. Dupin, Lettres sur la profession d'Avocat et bibliotheque choisie, Paris, 1818 . . .2 J. A. Rogron, Code de Procedure civile explique, Paris, 1826 (bound in 4 parts) . . . . .2 M. de Vattel, Droit des Gens, Lyon, 1802 . . . .3 George Frederic von Martens, Precis du Droit des Gens moderne de l'Europe, fonde sur les traites et l'usage, Gottingen, 1821 . . . . . . . 1 Conrad J. Alex. Baumbach, Einleitung in das Naturrecht, Leipzig, 1823 . . • • • .1 In the following pages the notes which belonged to the Author's work published in his lifetime are dis- tinguished by letters thus (a) . The notes of the late editor are generally marked by the initials ' S. A.' Those of the present editor by the initials ' R. C CONTENTS OF THE FIRST VOLUME. Peeface (by Sarah Austin) Page 1 Outline of the Course of Lectuees 31 THE PROVINCE OF JURISPRUDENCE DETERMINED. Analysis or Lectuees I. — VI 79 LECTURE I. The purpose of the following attempt to determine the province of jurispru- dence, stated or suggested. — The manner of the following attempt to determine the province of jurisprudence. — Law : what,in most comprehen- sive literal sense. — Law of God. — Human Laws. — Two classes : 1st. Laws set by political superiors ; 2ndly, Laws set by men not political superiors. — Objects improperly, but by close analogy, termed laws. — The two last placed in one class under the name positive morality. — Objects meta- phorically termed laws. — Laws or rules, properly so called, are a species of commands. — The meaning of the term command. — The meaning of the term duty. — The terms command and duty are correlative. — The meaning of the term sanction. — To the existence of a command, a duty, and a sanction, a violent motive to compliance is not requisite. — Rewards are not sanctions. — The meaning of the term command, briefly re-stated. — ■ The inseparable connection of the three terms, command, duty, and sanction. — The manner of that connection. — Laws or rules distinguished from commands which are occasional or particular. — The definition of a law or rule, properly so called. — The meaning of the correlative terms superior and inferior. — Laws [improperly so called) which are not com- mands. — Laws (properly so called) which may seem not imperative. — Laws which are not commands, enumerated 86 LECTURE II. The connection of the second with the first lecture. — The Divine laws, or the laws of God. — Of the Divine laws, some are revealed, and others are unrevealed. — Such of the Divine laws as are revealed. — Such of the Divine laws as are unrevealed. — What is the index to such of the Divine xvi Contents of the First Volume laws as. are unrevealed? — The hypotheses or theories which regard the nature of that index. — The hypothesis or theory of a moral sense, or innate practical principles; of a practical reason; of a common sense, etc. etc. — The theory or hypothesis of utility. — A brief summary of the theory of utility. — The following explanations of that summary briefly introduced. — The true tendency of a human action, and the true test of that tendency. — According to the theory of utility, God's commands are mostly rules. — It does not follow from the theory of utility, that every useful action is the object of a Divine injunction ; and every pernicious action, the object of a Divine prohibition. — A current and specious objection to the theory of utility, introduced and stated. — The two apt answers to the foregoing objection briefly introduced. — The first answer to the foregoing objection stated. — The second answer to the foregoing objection briefly introduced. — If our conduct were truly adjusted to the principle of general utility, our conduct would conform, for the most part, to rules; rules which emanate from the Deity, and to which the tendencies of human actions are the guide or index. — Theory and practice are inseparable. — If our conduct were truly adjusted to the principle of general utility, our conduct would be guided, for the most part, by sentiments associated with rules; rules which emanate from the Deity, and to which the tendencies of human actions are the guide or index. — If our conduct were truly adjusted to the principle of general utility , our conduct would conform, for the most part, to Divine rules, and would also be guided, for the most part, by sentiments associated with those rules. But, in anomalous and excepted cases (of comparatively rare occurrence), our conduct would be fashioned directly on the prin- ciple of general utility, or guided by a conjecture and comparison of specific or particular consequences. — The second answer to the foregoing objection, briefly resumed . . Page 103 LECTURE III. Apology for introducing the principle of utility. — The connection of the third with the second lecture. — A second objection to the theory of utility, stated. — An answer to that second objection, introduced. — An objection to the foregoing answer, stated. — The foregoing objection to the fore- going answer solved or extenuated. — The second objection to the theory of utility, together with the foregoing answer to that second objection briefly re-stated ... . 122 LECTURE IV. The connection of the fourth with the third lecture. — The second objection to the theory of utility, resumed. — A further answer to that second objection. — The hypothesis of a moral sense, briefly introduced. — 'A moral sense,' 'a common sense,' 'a moral instinct,' "a principle of reflec- tion or conscience,' 'a practical reason,' 'innate practical principles,' 'connate practical principles,' etc. etc., are various expressions for one and the same hypothesis. — The hypothesis in question involves two Contents of the First Volume xvii assumptions. — The first of the two assumptions involved by the hypo- thesis in question stated in general expressions. — The foregoing statement of the first assumption, exemplified and explained by an imaginary case. — The first of the two assumptions involved by the hypothesis in question, briefly re-stated in general expressions. — The second of the two assumptions involved by the hypothesis in question briefly stated. — As an index to God's commands, a moral sense were less fallible than the principle of general utility. — But is there any evidence, to sustain the hypothesis in question? — The hypothesis in question is disproved by the negative state of our consciousness. — The two current arguments in favour of the hypothesis in question, briefly stated. — The first argu- ment in favour of the hypothesis in question, examined. — The second argument in favour of the hypothesis in question, examined. — A brief statement of the fact whereon the second argument in favour of the hypothesis in question is founded. — The fact accords exactly with the hypothesis or theory of utility. — A brief statement of the intermediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense. — The division of positive law into law natural and law positive, and the division of jus civile into jus gentium and jus civile, suppose or involve the intermediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense. — The foregoing disquisitions on the index to God's commands, closed with an endeavour to clear the theory of utility from two current though gross misconceptions. — The two misconceptions stated. — The first misconception examined. — The second misconception examined. Page 140 LECTURE V. Laws proper or properly so called, and laws improper or improperly so called. — Analogy and metaphor as used in common parlance defined. — Laws improper are of two kinds : 1. Laws closely analogous to laws proper; 2. Laws metaphorical or figurative.- — Division of laws proper, and of such improper laws as are closely analogous to the proper. — Distribution of laws proper, and of such improper laws as are closely analogous to the proper, under three capital classes : 1. The law of God, or the laws of God; 2. Positive law, or positive laws; 3. Positive morality, rules of positive morality, or positive moral rules. — Digression to explain the expressions positive law and positive morality. — Explana- tion of the following expressions, viz. science of jurisprudence and science of positive morality; science of ethics or deontology, science of legislation and science of morals. — Meaning of the epithet good or bad as applied to a human law. — Meaning of the epithet good as applied to the law of God. — The expression law of nature, or natural law, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality. — The connection of the present (the fifth) lecture with the first, second, third, fourth, and sixth. — The essentials of a law properly so called, together with certain consequences which those essentials import. The laws of God, and positive laws, are laws properly so called. — The generic character of positive moral rules. — Of xviii Contents of the First Volume positive moral rules, some are laws proper, but others are laws improper. The positive moral rules, which are laws properly so called, are com- mands. — Laws set by men, as private persons, in pursuance of legal rights. — The positive moral rules, which are laws improperly so called, are laws set or imposed by general opinion. — A law set or imposed by general opinion, is merely the opinion or sentiment of an indeterminate body of persons in regard to a kind of conduct. — A brief statement of the analogy between a law proper and a law set or imposed by general opinion. — Distinction between a determinate and an indeterminate body of single or individual persons. — Laws set by general opinion, or opinions or sentiments of indeterminate bodies, are the only opinions or sentiments that have gotten the name of laws. But an opinion or sentiment held or felt by an individual or by all the members of a certain aggregate, may be as closely analogous to a law proper as the opinion or sentiment of an indeterminate body. — The foregoing distribu- tion of laws proper, and of such improper laws as are closely analogous to the proper, briefly recapitulated. — The sanctions, proper and im- proper, by which those laws are respectively enforced ; the duties, proper and improper, which those laws respectively impose ; and the rights, proper and improper, which those laws respectively confer. — The law of God, positive law, and positive morality, sometimes coincide, some- times do not coincide, and sometimes conflict. — The acts and forbear- ances, which, according to the theory of utility, are objects of the law of God ; and other acts and forbearances, which, according to the same theory, ought to be objects respectively of positive morality and law. — The foregoing distribution of laws proper, and of such improper laws as are closely analogous to the proper, tallies, in the main, with a division of laws which is given incidentally by Locke in his 'Essay on Human Understanding.' — Laws metaphorical or figurative. — The common and negative nature of laws of the class. — The common and negative nature of laws metaphorical or figurative, shewn by examples. — Laws metaphorical or figurative are often blended and confounded with laws imperative and proper. — Physical or natural sanctions. — In strict- ness, declaratory law, laws repealing laws, and laws of imperfect obligation (in the sense of the Roman jurists), ought to be classed respectively with laws, metaphorical or figurative, and rules of positive morality. — Note on prevailing tendency : 1st, to confound positive law with the science of legislation, and positive morality with deontology : Examples from Blackstone, Paley, the writers on international law : 2ndly, to confound positive law with positive morality, and both with legislation and deontology ; Examples from the Roman jurists and Lord Mansfield . Page 167 LECTURE VI. The connection of the sixth lecture with the first, second, third, fourth, and fifth. — The distinguishing marks of sovereignty and independent political society. — The relation of sovereignty and subjection. — Strictly speaking, the sovereign portion of the society, and not the society itself, Contents of the First Volume xix is independent, sovereign, or supreme. — In order that a given society may form a society political and independent, the two distinguishing marks which are mentioned above must unite. — A society independent but natural. — Society formed by the intercourse of independent political societies. — A society political but subordinate. — A society not political, but forming a limb or member of a society political and independent. — The definition of the abstract term independent political society (in- cluding the definition of the correlative term sovereignty) cannot be rendered in expressions of perfectly precise import, and is therefore a fallible test of specific or particular cases. In order that an independent society may form a society political, it must not fall short of a number which cannot be fixed with precision, but which may be called con- siderable, or not extremely minute. — Certain of the definitions of the term sovereignty, and of the. implied or correlative term independent political society, which have been given by writers of celebrity. — The ensuing portion of the present lecture is concerned with the following topics : — 1. The forms of supreme government; 2. The limits of sovereign power ; 3. The origin of government, or the origin of political society. — The forms of supreme government. — Every supreme govern- ment is a monarchy (properly so called), or an aristocracy (in the generic meaning of the expression). In other words, it is a government of one, or a, government of a number. — Of such distinctions between aristo- cracies as are founded on differences between the proportions which the number of the sovereign body may bear to the number of the com- munity. Of such distinctions between aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powers. — Of such aristocracies as are styled limited monarchies. — Various meanings of the following terms : — 1. The term 'sovereign,' or 'the sovereign ;' 2. The term 'republic,' or 'commonwealth ;' 3. The term 'state,' or 'the state ;' 4. The term 'nation.' — Of the exercise of sovereign powers by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author. Of the distinction of sovereign, and other political powers into such as are legislative, and such as are executive or administrative. The true natures of the communities or governments which are styled by writers on positive international law half sovereign states. — The nature of a composite state or a supreme federal government: with the nature of a system of confederated states, or a permanent confederacy of supreme governments. — The limits of sovereign power. — The essential difference of a positive law. — It follows from the essential difference of a positive law, and from the nature of sovereignty and independent political society, that the power of a monarch properly so called, or the power of a, sovereign number in its collegiate and sovereign capacity, is incapable of legal limitation. — Attempts of sovereigns to oblige themselves, or to oblige the successors to their sovereign powers. — The meanings of the epithet unconstitutional, as it is contradistinguished to the epithet iHegal, and as it is applied to conduct of a monarch, or to conduct of a sovereign number in its collegiate and sovereign capacity. — The meaning xx Contents of the First Volume of Hobbes's proposition, that 'no law can be unjust.' — Just or unjust, justice or injustice, is a term of relative and varying import. — Consi- dered severally, the members of a sovereign body are in a state of subjection to the body, and may therefore be legally bound, even as members of the body, by laws of which it is the author. — The nature of political or civil liberty, together with the supposed difference between free and despotic governments. — Why it has been doubted, that the power of a sovereign is incapable of legal limitation. — The proposition is asserted expressly by renowned political writers of opposite parties or sects. — A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the proper acceptation of the term) against its own subjects. — 'Right is might.' -'Right' as meaning 'faculty,' and 'right' as meaning 'justice.' — 'Right' as meaning 'faculty,' and 'right' as meaning 'law.' — From an appearance of a sovereign government before a tribunal of its own, we cannot infer that the government lies under legal duties, or has legal rights against its own subjects. — Though a sovereign government of one, or a sovereign government of a number in its collegiate and sover- eign capacity, cannot have legal rights against its own subjects, it may have a legal right against a subject or subjects of another sovereign government. — The origin or causes of political government and society. — The proper purpose or end of political government and society, or the purpose or end for which they ought to exist. The position 'that every government continues through the people's consent? and the position 'that every government arises through the people's consent,' examined and explained. — The hypothesis of the original covenant or the funda- mental civil pact. — The distinction of sovereign governments into governments de jure and governments de facto. — General statement of the province of jurisprudence as denned in the foregoing lectures. Page 219 ANALYSIS OF PERVADING NOTIONS. LECTURE XII. Recapitulation. — Natural and moral rights, or rights which are merely sanctioned religiously or morally. — Ideas, the analysis of which is inevitably involved in that of right. Obligations or duties are positive or negative. — Forbearances cannot be styled with propriety negative services. — Obligations are relative or absolute. — Rights imply persons, things, acts, and forbearances. — Persons, natural or fictitious. — Meaning of 'physical person,' or 'person' simply. — 'Person' frequently synony- mous with 'status' or 'condition.' — Fictitious or legal persons. . Page 343 LECTURE XIII. Recapitulation. — Meaning of 'thing.' — Distinctions between things. — Things signifying acts and forbearances. — Corporeal and incorporeal things. — Distinction between jura rerum and jura personarum briefly introduced 357 Contents of the First Volume xxi LECTURE XIV. Persons and things. — Persons and things distinguished. — Events. — Events are simple or complex. — Import of 'fact' and 'incident.' — Acts and for- bearances. — Act. — Forbearance. — Introduction to the distinction between jus in rem and jus in personam. — Distinction between jus in rem and jus in personam. — Illustrations of the distinction between jus in rem and jus in personam. — Property. — Servitus. — Examples of rights in per- sonam : — 1st. A right arising out of a contract; 2ndly. A right founded on an injury .... 364 LECTURE XV. Further illustrations of the distinction between jus in rem and jus in per- sonam. — Jus in rem restricted by certain writers to jus in rem over or in things. — Rights in rem over persons. — A person who is the subject of jus in rem is placed in a position like the position of a thing which is the subject of a, similar right. And may be styled (by analogy) a thing. — Jus realiter personale. — Rights in rem, without determinate subjects . . 381 LECTURE XVI. Purpose and order of the present lecture. — Common nature of rights. — Certain definitions of a right examined 393 LECTURE XVII. Import of 'right' in abstract. — Duties are relative or absolute. — Absolute duties defined by exhaustive enumeration. Order in which I shall consider absolute duties in the present lecture. — Self-regarding duties and duties not regarding man, regard persons generally in respect of their remote purpose. — Relative duties regard persons generally in respect of their remote purpose. — Duties towards persons generally are, indirectly, duties towards determinate purposes. — Jus publicum et privatum. — Civil injuries and crimes. — Difference between relative and absolute duties, etc. — Distinctions between absolute duties . Page 400 LECTURE XVIII. Brief review of preceding lectures. — Obligation, injury, and sanction imply motive, will, intention, negligence, and rashness. — Apology for inquiry into 'motive,' 'will,' etc. — The will. — Dominion of the will limited to bodily organs. — Dominion of the will limited to some bodily organs. — Dominion of the will extends not to the mind. — Volitions, what ? Acts, what? — Names of acts comprise certain of their consequences. — Confu- sion of will and intention. — Motive and will. — Motives to volitions. — Motives to motives. — Why the will has attracted so much attention ; and been thought mysterious 407 LECTURE XIX. Volitions and motives. — Acts. — Internal acts. — Intentions as regarding present acts, or the consequences of present acts. — Confusion of will and xxii Contents of the First Volume intention. — A consequence of an act may not be intended. — An intended consequence of an act may be wished or not. — And if wished, it may be wished as an end, or as a mean. — Consequence of an act wished as an end — Concurrence of motive and intention. — Exemplifications of the three foregoing suppositions. — Of the first supposition. — Of the second supposition. — Of the third supposition. — Forbearances are intended, but not willed . 418 LECTURE XX. Acts are willed and intended : consequences are intended. — Forbearances are intended. — Motives to forbearances. — Forbearances distinguished from omissions. — Ambiguities of the terms 'forbearance' and 'omission;' commit and omit. — Negligence. — Heedlessness. — Negligence and heed- lessness compared. — Rashness. — Negligence, heedlessness, and rashness, likened and distinguished. — Dolus. — Culpa. — Malice. — Dolus and culpa. — Roman law . . 425 LECTURE XXI. Intentions coupled with volitions and acts. — Present intention to do a future act, distinguished from an act with a present volition and intention. — Present intention to do a future act, what ? — Distinguished from a simple desire of the object. — Present intention to do a future act, re-stated. — Confusion of will and intention. — Intending a future forbearance. — An intended consequence of an intended future act, is not always desired.' — ■ Intentions to do future acts are certain or uncertain; are matured or undigested. — A consilium, or compassing. — Attempts.- — Intention of legislator, etc 435 LECTURE XXII. Duty. — Injury. — Sanction. — Obligation is obnoxiousness to a sanction. — Sanction and obligation distinguished. — Obligation regards the future. — Sanctions operate upon the desires. — An obligation to vnll not im- possible. — An obligation to desire not possible. — Supposed conflict of desire and will. — Effect of obligation in extinguishing desires which urge to a breach of duty Page 443 LECTURE XXIII. Physical compulsion or restraint distinguished from that which is imported by duty or obligation. — Obligations to suffer and not to suffer. — Passion or suffering, what? is the ultimate sanction of every obligation. — Suffer- ing may be inflicted without physical compulsion or restraint . . 452 LECTURE XXIV. Immediate and remote objects of duties. — Forbearances, omissions, or acts which are inconsistent with the remote purposes of duties. — Import of the cognate expressions wrong, guilt, imputability = breach of duty. — Intention, negligence, heedlessness, or rashness, is of the essence of injury, guilt, imputability, or breach of duty. — But is not of itself Contents of the First Volume xxiii injury, guilt, etc. — Brief analysis of negligence and its modes ; of in- tention regarding the present, and intention regarding the future. — Whether an intention, neither consummate nor followed by an attempt, could be made the object of a negative obligation? Restriction of 'guilt' or 'culpa' to intention, negligence, heedlessness, or rashness, as the cause of action, forbearance, or omission. — Injury, etc., is the contradictory of duty. — Corpus delicti. — Further remarks on the import of the word 'dolus.' — Ambiguity of 'Schuldner,' 'Reus,' etc. . . 457 LECTURE XXV. Intention or inadvertence is of the essence of injury. — An absurdity in English law from inattention to this principle. — Mora. — Resume the principle, that intention or inadvertence is of the essence of injury. — Grounds of exemption from liability, mostly reducible to the principle last stated. 1. Casus or accident. — 2. Ignorance or error. — The objec- tion to ex post facto laws deducible from the same principle . . . 468 LECTURE XXVI. Recapitulation. — Consideration of the exemptions from liability resumed. — 3. Infancy and Insanity. — Digression on the different kinds of prassumptiones juris. — 4. Drunkenness (in some systems of law). — 5. Sudden and furious anger (in some systems). — An illogical distinction in Roman law between delicts and quasi-delicts. — Grounds of exemp- tion not depending on the foregoing principle. 1. Physical compulsion. — 2. Extreme terror. — The so-called exemptions not properly exemp- tions, but cases to which the idea of obligation does not apply . . 488 LECTURE XXVII. Correction of statements in last lecture : Anger, p. 496, ante. — Statement as to acquisitive prescription, p. 493, ante. — Sanctions civil and criminal. — Public and Private wrongs. — Laws sometimes sanctioned by nullities. — Vicarious punishment. — Various meanings and etymology of the word 'sanction' Page 499 PREFACE. 1 (By Sarah Austin.) It seems necessary that I should endeavour to justify the step I have taken, in bringing before the public writings of such a nature and value as those of my deceased husband. I have also to explain why I have determined to publish them in the incom- plete and unfinished state in which he left them. The latter decision was, indeed, a necessary consequence of the former; since I could hardly be guilty of the irreverence and presump- tion of attempting to correct or alter what he had written. I respectfully offer these explanations to the few to whom it is fit that any mention of such a man should be made ; and I beg them not to think me so careless of his fame as to have lightly and unadvisedly undertaken to do what might lower the reputation which (almost in spite of himself) he has left among them. To their judgment and candour I commend these im- perfect remains. Whatever defects they may find, let them be assured he would have found more and greater. It is well known to all who are interested in the science of Jurisprudence, that the volume of which the present is a republication has for many years been out of print. From the time this was known, earnest and flattering entreaties that he would publish a second edition reached him from various quarters. They were sufficient to stimulate any vanity but his. Unfortunately they came too late. The public, or that small portion of it which interests itself in such subjects, did not discover the deep and clear stream of legal science within its reach, till its waters had been diverted into other channels, or had disappeared altogether. In proportion as the demand for the book became urgent, more years and more occupations 1 This preface, ending with the divi- What follows the division on p. 25 be- sion on p. 25, belonged to the edition longed to the edition of the remaining or reprint published in 1861, of ' The lectures, published in 1863, forming the Province of Jurisprudence determined.' sequel to the volume published in 1861. VOL. I. B 2 Preface. were interposed between the state of mind in which it was written, and that in which this demand found him. Above all, [jthe hope, the animation, the ardour with which he had entered upon his career as a teacher of Jurisprudence, had been blighted by indifference and neglect; and, in a temper so little sanguine as his, they could have no second spring^ It was not my intention to enter into the particulars of a life of which there is little but disappointment and suffering to relate, and which, from choice as much as from necessity, was passed in the shade. Nothing could be more repugnant to a man of his proud humility and fastidious reserve than the sub- mitting his private life to the inspection of the public ; nor would it consist with my reverence for him to ask for the admiration (even if I were sure of obtaining it) of a world with which he had so little in common. But as, influenced by considerations which have appeared to me, and to those of his friends best qualified to advise, con- clusive, I have determined to republish the following volume, and to publish the rest of the series of Lectures of which those herein contained form a part, it appears necessary to give some explanation of the state in which he left them ; to tell why the work which the Author meditated was never completed ; why the portion already in print was so long and so obstinately withheld from the public ; and, lastly, what has determined me to take upon myself the arduous task of preparing these materials for the press. In order to do this, I must relate those passages of his life which are immediately connected with the course of his studies; and also, though with infinite pain, must touch upon the qualities, or the events, which paralysed his efforts for the advancement of legal science and the diffusion of important truths. If I dwell longer upon his personal character than may be thought absolutely necessary to my purpose, my apology, or my justification, will be found in the words of a writer who under- stood and appreciated him : — 'His personal character was, or ought to have been, more instructive in these days than his intellectual vigour. £He lived and died a poor man. He was little known and little appre- ciated, nor did he seek for the rewards which society had to give i\ but in all that he said and did there was a dignity and magnanimity which conveyed one of the most impressive lessons that can be conceived as to the true nature and true sources of greatness.' Preface. 3 J*At a very early age Mr. Austin entered the army, in which he served for five years ; a fact which would have no place here, hut for the permanent traces it left in his character and sentiments. Though he quitted it for a profession for which his talents appeared more peculiarly to fit him, he retained to the end of his life a strong sympathy with, and respect for, the military character, as he conceived itj The high and punctilious sense of honour, the chivalrous tenderness for the weak, the generous ardour mixed with reverence for authority and dis- cipline, the frankness and loyalty, which were, he thought, the distinguishing characteristics of a true soldier, were also his own; perhaps even more pre-eminently than the intellectual gifts for which he was so remarkable. i Mr. Austin was called to the Bar in 1818J If confidence in his powers and prospects could have been given to so sensitive and fastidious a mind by the testimony and the predictions of others, he would have entered on his career with an undoubting and buoyant spirit; for every one of the eminent lawyers in whose several chambers he studied, spoke of his talents and his application as unequalled, and confidently predicted for him the highest honours of his profession. But he was never sanguine. Even in the days when hope is most flattering, he never took a bright view of the future; nor (let me here add) did he ever attempt to excite brilliant anticipations in the person whom he invited to share that future with him. With admirable sincerity, from the very first, he made her the confidante of his forebodings. Four years before his marriage, he concluded a letter thus : — ' . . . and may God, above all, strengthen us to bear up under those privations and •disappointments with which it is but too probable we are destined to contend !' The person to whom such language as this was addressed has, therefore, as little right as she has in- clination to complain of a destiny distinctly put before her and deliberately accepted. Xor has she ever been able to imagine one so consonant to her ambition, or so gratifying to her pride, as that which rendered her the sharer in his honourable poverty. I must be permitted to say this, that he may not be thought io have disappointed expectations he never raised ; and that the effect of what I have to relate may not be enfeebled by the notion that it is the querulous expression of personal disappoint- ment. ^Whatever there may be of complaint in this brief tnarrative, is excited by the recollection of great qualities un- 4 Preface. appreciated, great powers which found no congenial employment, great ardour for the good of mankind, chilled by indifference and neglect; by the recollection of the struggles and pangs of an over-scrupulous and over-sensitive spirit, vainly trying to establish, alone and unsustained, the claims of a science which he deemed so important to mankind^ Nor is the sorrow of an immeasurable private loss so engrossing as not to be enhanced by regrets at the loss sustained by the world. [.It became in no long time evident to one who watched him with the keenest anxiety, that he would not succeed at the Bar. His health was delicate ; he was subject to feverish attacks which left him in a state of extreme debility and prostration j| and as these attacks were brought on by either physical or moral causes, nothing could be worse for him than the hurry of practice, or the close air and continuous excitement of a court of law. £And if physically unfitted for the profession he had chosen, he was yet more disqualified by the constitution of his mind. Nervous and sensitive in the highest degree, he was totally deficient in readiness, in audacity, in self-complacency, and in reliance on the superiority of which he was conscious, but which oppressed rather than animated him. He felt that the weapons with which he was armed, though of the highest possible temper, were inapplicable to the warfare in which he was engaged ; and he gradually grew more and more self-exacting and self-distrust- ing. He could do nothing rapidly or imperfectly ; he could not prevail upon himself to regard any portion of his work as insig- nificant; he employed a degree of thought and care out of all proportion to the nature and importance of the occasion. These habits of mind were fatal to his success in business^ Indeed, even before his call to the Bar, he had detected in himself the germ of the peculiar disposition of mind which disqualified him for keeping pace with the current of human affairs. Iln a letter addressed to his future wife, dated 1817, when he was still in the chambers of an Equity Draftsman, he wrote, ' I almost apprehend that the habit of drawing will in no short time give me so exclusive and intolerant a taste (as far, I mean, as relates to my own productions) for perspicuity and precision, that I shall hardly venture on sending a letter of much purpose, even to you, unless it be laboured with the accuracy and circumspection which are requisite in a deed of conveyance/] But ' the habit of drawing ' did not create, though it might develope, this tendency to exact from himself a degree of per- fection incompatible with promptitude and dispatch, f He was Preface. 5 as lie says, intolerant of any imperfection; and so long as he could descry the smallest error or ambiguity in a phrase, he recast it again and again till his accurate mind could no longer suggest an objection or a difficulty. This was not the temper which could accommodate itself to the imperious demands of business. After a vain struggle, in which his health and spirits suffered severely, he gave up practice in the year 1825.J Lin the year 1826, the University of London (now University College) was established.^ From the character and objects of this institution it appeared to hold out a hope, that not only classes of persons, but branches of science, excluded from the ancient universities, might find admittance and fostering in this. £ Among the sciences which it was proposed to teach, was Jurisprudence, and Mr. Austin was chosen to fill that Chair. As soon as he was appointed, he resolved to go to Germany, in order to study on the spot what had been done, and was doing, by the great jurists of that country, for whom he had already conceived a profound admiration. He immediately set about learning the language, and had already made some progress before he left England. In the autumn of 1§27, after visiting Heidelberg, he established himself with his wife and child at Bonn? which was then the residence of Niebuhr, Brandis, Schlegel, Arndt, Welcker, Mackeldey, Heffter, and other eminent men, from whose society he received equal pleasure and instruc- tion. Mr. Austin secured the assistance of a young jurist, who had just entered on that stage of the professional career in which men are permitted to teach, without holding any appoint- ment. They are called Privatdocenten, and are a sort of tutors. £By reading German law-books with this gentleman, Mr. Austin, while pursuing his main object, speedily acquired the language with that precision and completeness which he carried into everything he studied.^ He also, as I find from some slight memoranda, took great pains to inform himself thoroughly of the discipline and mode of teaching in the German Universities. He often expressed his earnest desire to carry home, for the use of England, what- ever were most worthy of imitation in Germany. £ He left Bonn in the spring of 1828, master of the German language and of a number of the greatest works which it contains. He always looked back upon his residence there as one of the most agree- able portions of his life/J He and those belonging to him, who were then the only English established at Bonn, were received with cordiality by this distinguished society, and found there 6 Preface. the qualities most consonant to their tastes : respect for know- ledge, love of art, freedom of thought, and simplicity of habits. Spite of the hopes, the projects, and the acquirements with which he entered upon his new functions, it was not without much regret and some forebodings that he quitted a life so full of interest and so free from care, for the restraints and privations which London imposes on poor people, and for the anxieties of a laborious and untried career. Yet everything promised well, excepting always his health, which had suffered extremely from his anxiety before quitting the Bar, and was only partially restored by the comparative tranquillity of mind which followed his appointment, and by his salutary and agreeable residence on the Rhine. His Lectures opened with a class which exceeded his expectations. It included several of the men who are now most eminent in law, politics, or philosophy. He was much impressed and excited by the spectacle of this noble band of young men, and he felt with a sort of awe the responsibility attaching to his office. He had the highest possible conception of the importance of clear notions on the foundations of Law and Morals to the welfare of the human race; the thought of being the medium through which these were to be conveyed into so many of the minds destined to exercise a powerful influence in England, filled him with ardour and enthusiasm. As might be expected from his susceptible nature and delicate conscience, these were not unmixed with anxiety too intense for his bodily health. Some notes which I find in a blank leaf of the First Lecture delivered at the London University, are so strongly imbued with his earnest and ardent devotion to his work, that, not without some hesitation, I resolve to give them exactly as they stand. Even the broken sentences are characteristic, and, to those who knew him, inexpressibly touching. To such, they will vividly recall the man whose passionate love of truth and knowledge is apparent even in these hasty words. ' Before we separate, I wish to gay a few words. It ig my purpoge to hold convergationg at the end of every lecture. [Advantage* to myself and to the gentlemen of my class— Advantages of extempore lectures. Incompleteness of written lectures, in respect of the ideas. Waste of labour in writing ; extempore lectures can be adapted at the moment to the hearer : Dulnegg of written lectures :] I therefore wish, of all things, to form a habit of lecturing extempore : To Preface. I this, I am at present, not competent, but by dint of giving explanations, etc, I hope I may acquire the requisite facility and composure. Another advantage which will arise from these discussions : Errors in plan and in execution will be pointed out and corrected. I beg of yon net to be restrained by false delicacy : Frankness is the highest compliment. I never myself acquiesce, etc ... And this is perfectly consistent with admiration for genius — Monstrous, therefore, for a man, etc . . . I therefore entreat you, as the greatest favour you can do me, to demand explanations and ply me with objections — turn me inside out. I ought not to stand here, unless, etc Can bear castigation without flinching, coming from a friendly hand. From this collision, advantages to both parties more advantageous than any written lecture. Bequest them to ask questions relative to studies. In short, my requests are, that you will ply me with questions, and that you will attend regularly.' I find in the manuscript numerous passages marked r. r. which lie evidently meant to expand or analyze extemporaneously. He now appeared to have attained to a position above all others the best suited to him. £His peculiar tastes and talents fitted him for the business of a teacher. His power of methodising and expounding was matchless: and he had a natural and powerful eloquence (when he allowed himself to give way to it), which was calculated to rivet the attention and fix itself on the memory. This was far more striking in con- versation than in his written lectures. As soon as he reduced anything to writing, the severity of his taste and his habitual resolution to sacrifice everything to clearness and precision, led him to rescind every word or expression that did not, in his opinion, subserve these ends." 1 Perhaps no man was ever more eminently qualified to raise extemporaneous discourse to the highest excellence, had he but combined with his other singular qualifications that of easy confidence and self-satisfaction. His voice -was clear and har- monious, and his elocution perfect. Sobody ever heard him talk without being powerfully struck with the vigour and originality of his discourse, the variety and extent of his know- ledge, and the scholarlike accuracy and singular appositeness of his language. Classical thoughts and turns of expression were so familiar to him that they seemed innate and spontaneous. 'I think,' writes a friend to whom I have shown this poor attempt to describe him. "that you have hardly said enough about his eloquence in conversation. But the truth is, that it is impossible to describe the manner in which one was carried 8 Preface. away and utterly absorbed by his talk. One had travelled in an hour over such vast regions, and at such an elevation ! And then the extraordinary extent and exactness of his memory !' It is true that I shrink from the attempt to convey an idea of his eloquence in common discourse. It lives in the remem- brance of a few. His memory was most extraordinary, and would have been a gift to dwell on with wonder, had it no* been so subordinate to his higher faculties. He never made any display of it; and as it was always under the control of his severe love of truth, his hearers were certain that he hazarded nothing, and that his statements might be implicitly relied on. But those qualities which, above all others, smooth the road to success, were not to be looked for in a character like his. Proud, sensitive, trying everything by the lofty standard he bore within him, it was only to a very peculiar sort of encour- agement that he was accessible. The highest applause or admiration of ignorant millions would have failed to give him the smallest satisfaction. The approbation of the few whose judgment he respected, or the persuasion that his labours tended to general utility, were the only stimulants by which he could be enabled to rise above his constitutional shyness and reserve. It soon became clear that he was as far as ever from having found the modest, but tranquil and secure position, in which he might continue to labour for the advancement of the sublime science of which he knew himself to be so consummate a master. It was not to be expected, — it is never found, even in the country where science is most ardently pursued for its own sake, — that studies which have no direct bearing upon what is called practical life, can, except under very peculiar circum- stances, attract numerous audiences. Where, therefore, there is any serious intention that the few who addict themselves to such studies should find competent instructors, funds are provided for the maintenance of men who have obviously nothing to expect from popular resort. Their position is perhaps not brilliant, but it is secure and honourable, and affords them leisure for the prosecution of their science. i.No such provision was, however, made for the Chair to which Mr. Austin had been elected ; and as' jurisprudence formed no part of the necessary or ordinary studies of a barrister, his professorship became nearly an empty title.] Preface. 9 \. ' In spite,' says the illustrious writer of a notice of Mr. Austin's death, in the 'Law Magazine,' 'of the hrilliant com- mencement of his career as a Professor, it soon became evident that this country would not afford such a succession of students of jurisprudence as would suffice to maintain a Chair; and as there was no other provision for the teachers than the students' fees, it followed of necessity that no man could continue to hold that office unless he had a private fortune, or combined some gainful occupation with his professorship. Mr. Austin, who had no fortune, and who regarded the study and exposition of his science as more than sufficient to occupy his whole life, and who knew that it would never be in demand amongst that immense majority of law students who regarded their profession only as a means of making money, found himself under the necessity of resigning his Chair. 2 J Such was the end of his exertions in a cause to which he had devoted himself with an ardour and singleness of purpose of which few men are capable. [This was the real and irre- mediable calamity of his life — the blow from which he never recovered. His failure at the Bar was nothing, and would never have been regretted by himself or those who cared for himj That was not his vocation, nor had he any peculiar aptitude for it; and there was no want of able and successful barristers. There was no one to do the work he could have done, as an expounder of the philosophy of Law. At the time he wrote his Lectures, constructed the Tables (hereafter mentioned), and prepared this volume for the press, I can affirm that he had no other thought, intention, or desire, than to push his inquiries and discoveries in the science of law as far, and to diffuse them as widely, as possible. It was from no unsteadiness of purpose, no shrinking from labour, no distaste to a life of comparative poverty and obscurity that he abandoned the pursuit to which he had hoped to devote his life. If there had been found for him some quiet and humble nook in the wide and rich domains of learning, it is my firm conviction that he would have gone on, slowly indeed, as the nature of his study and his own nature rendered inevitable, and with occasional interruptions from illness, but with unbroken tenacity and zeal, to the end of his life. £ln June, 1832, he gave his last lecture. In that year he published the volume, of which the present is a reprint. So far was he from anticipating for it any brilliant success, that he a ILaw Magazine and Review for May, 1860. io Preface. was astonished at the readiness and liberality with which the late Mr. Murray undertook the publication of it ; and for years afterwards his anxiety was extreme, lest it should have entailed loss upon that gentleman.^ When at length, in answer to my inquiries, Mr. Murray presented to me the last remaining copy, as a proof that our fears were groundless, Mr. Austin expressed perfect satisfaction, and something like surprise, even at this very moderate success. He was fully aware of the unpopularity of the studies to which he had devoted himself J ' So few,' says he, " are the sincere inquirers who turn their attention to these sciences, and so difficult is it for the multitude to perceive the worth of their labours, that the advancement of the sciences themselves is comparatively slow ; whilst the most perspicuous of the truths with which they are occasion- ally enriched, are either rejected by the many as worthless or pernicious paradoxes, or win their laborious way to general assent through a long and dubious struggle with established and obstinate errors.' Lit must be admitted that the reception given to his book at first was not encouraging. Neither of the Reviews which pro- fess to guide public opinion on serious subjects took the slightest notice of it. Some eulogistic articles appeared in journals of less general currency, but on the whole it may be said to have been left to make its way by its own merits. It was only at a later period, and by slow degrees, that they were appreciated^ In the year 1833 Mr. Austin was appointed by Lord Brougham, then Lord Chancellor, member of the Criminal Law Commission. Though this turned him from the pursuit to which he had hoped to dedicate his life, and confined his inquiries to a narrower and less inviting field than that he had marked out for himself, he entered upon it with the same conscientious devotion, and carried into it the same profound and comprehen- sive views. But he soon perceived that they would be of small avail to himself or to the public. The powers granted to the Commission did not authorise the fundamental reforms from which alone he believed any good could come ; and his opinions as to the ground to be marked out, and the foundations to be laid, before any satisfactory structure of criminal law could be raised, differed widely from those of his colleagues. He had little confidence in the efficacy of Commissions for constructive purposes. He said to me, ' If they would give me two hundred a year for two years, I would shut myself up in a garret, and at the end of that time I would produce a complete map of the whole field of Crime, and a draft of a Criminal Code. Then let them appoint a Commission to pull it in pieces.' He used to come home from every meeting of the Commission disheartened Preface. 1 1 and agitated, and to express his repugnance to receiving the puBlic money for work from which he thought the public would derive little or no advantage. Some blurred and blotted sheets which I have found, bear painful and affecting marks of the struggle that was going on in his mind, between his own lofty- sense of dignity and duty, and those more ordinary notions which subordinate public to private obligations. I have also found the commencement of a project of a Criminal Code drawn up at that time. [About the same time, he had arrived at the conviction that, as a teacher of Jurisprudence, he had nothing to hope.J The insufficiency of the legal education of the country had for some time attracted the attention of the more enlightened part of the profession; and it was at length determined, by the Society of the Inner Temple, that some attempt should be made to teach the principles and history of jurisprudence. Among the most earnest promoters of this scheme was Mr. Austin's friend, Mr. Bickersteth, afterwards Lord Langdale. [In the year 1834, Mr. Austin was accordingly engaged to deliver a course of lectures on jurisprudence at the Inner Temple. Had this appointment been made under different conditions, it was one which he would have preferred to any other, however distinguished or however lucrative. Unfortunately, it was not of a kind to give him the security and confidence he wanted. He was invited to under- take the discouraging task of trying to establish a new order of things, without the certain, though distant, prospect which usually cheers the pioneer in such an enterprise^ His appointment could only be regarded as an experiment. This uncertainty weighed upon him from the first. He was, as I have said, disqualified by nature from all work of a passing and temporary sort; and in order to labour with courage and animation, he needed to see before him a long period of persistent study, and security from harassing anxiety. His precarious health and depressed spirits required every possible support ; and he was but too easily dis- heartened at what he thought the want of confidence in the scheme, or in him, evinced in a merely tentative appointment. It was also clear that the same causes which rendered the appointment to a Chair of Jurisprudence abortive at the London University, were in operation (perhaps to a still greater extent) in the Inns of Court. [The demand for anything like scientific legal education had to be created. J The eminent lawyers who had adorned the English bar and bench (of whose great faculties no one had a higher admiration than Mr. Austin) had been 1 2 Preface. formed by a totally different process; and the young men entering on the profession were, for the most part, profoundly indifferent to any studies but those which had enabled their predecessors to attain to places of honour and profit. Thus depressed by failure ; unsustained by sympathy in his lofty and benevolent aspirations, or by recognition of his value as a teacher ; agitated by conflicting duties, and harassed by anxiety about the means of subsistence, it is no wonder that his health became sensibly worse. The severe feverish attacks to which he had always been subject, became more and more frequent and violent ; and often, after preparing a lecture with great care and intense application, he was compelled, on the day when it should have been delivered, to send messengers round to the gentlemen of his class, to announce his inability to attend. He soon saw the inutility of struggling against such obstacles. He resolved to abandon a conflict in which he had met with nothing but defeat, and to seek an obscure but tranquil retreat on the Continent, where he might live upon the very small means at his disposal. He quitted England with a strong feeling of the disadvan- tage at which a man like himself, devoted exclusively to truth and to the permanent good of mankind, stood, in a country where worldly success is not only the reward, but the test of merit; and where, unless he advances in certain beaten tracks, he arrives at nothing, except neglect and a sort of contemptuous wonder. He felt this keenly, and said to the one person to whom he ever talked freely of himself ,i' I was born out of time and place. I ought to have been a schoolman of the twelfth century — or a German professor. '% The position of such illus- trious and revered teachers as Hugo and Savigny seemed to him the most enviable in the world. The pecuniary inferiority of such a position, compared with the profits attending the practice of law in this country, was not a consideration to which his mind could easily descend. J. He had been settled at Boulogne about a year and a half, when a proposal was made to him by the Colonial Office, through his much esteemed and faithful friend Sir James Stephen, to go to Malta as Eoyal Commissioner, to inquire into the nature and extent of the grievances of which the natives of that island complained. He accepted an appointment for which he was indeed peculiarly fitted^ Justice and humanity were parts of his nature, and were fostered by reason and by study. He had no sympathy with the insolence of a dominant race, and Preface. 13 he was not likely to view with indulgence, violations of the conditions tinder which England had accepted the voluntary- cession of Malta by its inhabitants. On the other hand, his sagacity, knowledge, and strict sense of justice rendered him inaccessible to fantastic schemes or groundless complaints. Aided by his able and accomplished colleague Mr. (now Sir) George Cornewall Lewis, he rendered to the island services which attracted little attention in England, but are remembered with lively and affectionate gratitude in Malta. He had the satisfaction of seeing every measure he recom- mended adopted by the Colonial Office; and he always looked back with great satisfaction to his connection with two men for whom he entertained so sincere a respect as Lord Glenelg and Sir James Stephen. But here another disappointment awaited him. After the reform of the tariff (which Sir James long after called, 'the most successful legislative experiment he had seen in his time'), and of various parts of the administration of the island, Mr. Lewis having been recalled to England to preside over the Poor Law Board, Mr. Austin was preparing to enter upon his more peculiar province, — legal and judicial reform. Lord Glenelg, however, was no longer in office, and the Com- mission- was suddenly brought to a close by his successor. No reason was assigned, nor was Mr. Austin's abrupt dismissal accompanied with a single word of recognition of his services. It remained for the Maltese to acknowledge them. 3 It is indeed but too probable that the state of his health would have incapacitated him for the work he projected. But he frequently said to me, that if, as he presumed, the Colonial Office wished to put an end to the expense of the Commission, he would have continued to live in the island in a private and humble manner, till he had introduced something like order into the heterogeneous mass of laws bequeathed by the successive masters of Malta. It was, however, fortunate that he was not permitted to attempt a task to which his strength was so inadequate. In giving this short account of his troubled life and baffled designs, my object has only been to show what were the 3 ' Such was the man,' says a Malta be disputed that the inhabitants of journal, in an article announcing his this island are greatly advanced in the death, 'to whom the Maltese must scale of civilisation, both politically and ever feel grateful for their improved socially, and rendered more essentially condition as a people, and for the many British in civil polity and institutions, privileges they now enjoy ; and most by the measures adopted on the recom- of all for the liberty of the press under mendation of the Commission presided which we are now writing. It cannot over by Mr. Austin.' 14 Preface. circumstances by which he was forced out of the track on which he had entered, and in which his whole mind and soul were engaged; and why it was that he seemed to abandon the science to which he had devoted his singular powers with so much ardour and intensity. It was this very ardour and intensity, this entire absorption in his subject, which rendered it impossible to him to resume, at any given moment, trains of thought from which his mind had been forcibly diverted. It belonged to the nature of his mind to grapple with a question with difficulty, — almost with reluctance. It seemed as if he had a sort of dread of the labour and tension to which, when it had once taken hold on him, it would inevitably subject him. He was frequently urged to write on matters which he had studied with an earnestness second only to that which he had devoted to his own peculiar science, — such as Philosophy, Political Economy, and Political Science generally. He usually evaded these applications; but to the person with whom he had no reserves, he used to say, ' I cannot work so ;fl can do nothing in a perfunctory mannerTJ He knew perfectly his strength and his weakness. He could work out a subject requiring the utmost stretch of the human faculties, with a clearness and completeness that have- rarely been equalled. But he had no mental agility. £When he gave himself up to an inquiry, it mastered him like an overwhelming passion^ Even as early as the year 1816, he spoke to me, in a letter, of 'the difficulty he found in turning his faculties from any object whereon they have been long and intently employed, to any other object.' And for the same reason, when his mind had once loosened its grasp of a subject, it could with difficulty recover its hold. At the time when a second edition of his book was first demanded, he was, as I have said, occupied in the business of the public, to which it was with him a matter of conscience to consecrate his undivided attention. To this reason for delay was now added another. His health had gradually declined, under the pressure of labour and anxiety. After his return from Malta, in 1838, he was so much worse, that in 1840 his medical friends exhorted him to try the waters of Carlsbad, — with very small hope, as they afterwards confessed, of seeing him again. From those wonder-working waters, however, he received so much benefit that he determined to return to them, and the summers of 1841, 1842, and 1843 were spent there. In the varied and interesting society assembled in that place, he Preface. 15 made the acquaintance of many eminent persons, from whom he eagerly sought for information on the condition of their several countries. The intervening winters were pleasantly and profit- ably passed at Dresden and Berlin. In the latter capital he found men eminent in every branch of science, to some of whom he had long looked up as the great masters of his own, — espe- cially Herr von Savigny. Political questions were then agitated with great warmth and acrimony in Prussia. Mr. Austin studied them with his usual industry and impartiality; and several men who were themselves engaged in the discussions of the day, were so struck with the clearness and justness of his views, that they urged him to write on the affairs of their country. I have found memoranda which show that at one time he contemplated some work of the kind. It was at Dresden that he wrote, for the ' Edinburgh Review,' his answer to Dr. List's violent attack on the doctrine of Free Trade. In 1844 he removed to Paris, attracted thither by the society and friendship of some of the distinguished men who were then the able expositors of science, or the eloquent advocates of free institutions. Shortly after, he was elected by the Institute a corresponding member of the Moral and Political Class; an honour for which he was wholly unpre- pared, unaccustomed as he was to any public recognition of his merits. I shall borrow the words of an illustrious friend, to describe the impression he left on some of the highest minds of France : I could add many such testimonies, but that of M. Gruizot is sufficient. ' C'etait un des hommes les plus distingues, un des esprits les plus rares, et un des cceurs les plus nobles que j'ai connus. Quel dommage, qu'il n'ait pas su employer tout ce qu'il avait, et montrer tout ce qu'il valait !' In that year another earnest appeal was made to him to publish a second edition of ' The Province of Jurisprudence.' Letters from friends, and even from strangers, arrived, lament- ing the impossibility of getting a copy, and setting forth the constantly increasing reputation of the book. But these flatter- ing representations, which perhaps at an earlier period would have spurred him on to fresh exertions, seemed to give him little pleasure, and he rarely alluded to them. They had now to encounter the reluctance I have spoken of, to resume long- disused labour, — a labour too with which a crowd of painful recollections were associated. To give a mere reprint of the book would have been easy enough, and it is what any one else so encouraged would 1 6 Preface. probably have done; but Mr. Austin bad discovered defects in it which bad escaped tbe criticism of otbers ; and with tbat fastidious taste and scrupulous conscience wbicb it was impos- sible to satisfy, be refused to republish wbat appeared to him imperfections. Tbat be bad long meditated a book embracing a far wider field, I well knew; but I feared tbat tbis great work would never be accomplished, and would have gladly compounded for something far less perfect than his conceptions. But I saw that nothing could shake his resolution, and I never willingly adverted to the subject. Whenever it was mentioned, he said, that the book must be entirely recast and rewritten, and that there must be at least another volume. His opinion of the necessity of an entire refonte of his book arose, in great measure, from the conviction, which had continually been gaining strength in his mind, that until the ethical notions of men were more clear and consistent, no considerable improvement could be hoped for in legal or political science, nor, consequently, in legal or political institutions. The subjoined prospectus or advertisement sufficiently proves that be had seriously resolved to execute the great work he had planned. I have found but one copy of it, nor have I been able to bear of the existence of another. I cannot find tbat it attracted any attention. The Principles and Relations of Jurisprudence and Ethics. By John Austin, Esq., of the Inner Temple, Barrister-at-Law. An Outline of a Course of Lectures on General Jurisprudence, preceded by an attempt to determine the province of the science, was published by the author in 1832. By the sale of the entire edition, and by the continued demand for the book, he is encouraged to undertake a work concerning the same subject, but going more profoundly into the related subject of Ethics. The matter is so vast, and the task of digesting and condensing it so difficult, that a considerable time must necessarily elapse before the intended treatise will be ready for publication. A concise and unequivocal title for the intended treatise is not afforded by established language. ^Positive law (or jus), positive morality (or mos), together with the principles which form the text of both, are the inseparably- connected parts of a vast organic whole.JJ To explain their several natures, and present them with their common relations, is the purpose of the essay on which the author is employed. But positive morality (as conceived in the whole of its extent) has hardly acquired a distinguishing name ; though one important branch of it has become the subject of a science, and been styled by recent- writers the positive law of nations. For the variously conceived and much disputed principles which form the measure or test of positive law and morality, established language has no name which will mark them without ambiguity. Preface. 17 As related to positive law (the appropriate subject of Jurisprudence), they are styled the principles of legislation. As related to positive morality, they are styled morals or ethics; but as either of these names will signify positive morality, as well as the standard to which it ought to conform, there is no current expression for the principles in question which will denote them adequately and distinctly. He (author) had thought of entitling the intended essay, the principles and relations of law, morals, and ethics : meaning by law, positive law; by morals, positive morals; and by ethics, the principles which are the test of both. But in consequence of the difficulties which he has just stated, he preferred the more concise and not more equivocal title which stands at the head of the present notice. For reasons to appear hereafter, the work will be divided into two parts. The first will be given to General Jurisprudence ; and in his exposition of that science the author will descend into the detail which was indicated by the above-mentioned outline, as deeply as may consist with the limits assigned to an institutional treatise. The second part will be given to Ethics. No separate department will be given to positive morals ; but, so far as they are implicated with jurisprudence and ethics, they will be noticed in the departments allotted to those subjects. He announced the same intention in' a letter to the present Chief Justice of the Common Pleas, the companion of his early studies, the beloved and faithful friend of every period of his life. It was only the other day that Sir William Erie found the following fragment of this letter, which he has had the kindness to permit me to print. Unhappily, the part containing the date is lost. It begins with a broken sentence, which must relate to one of the many applications made to him for a second edition : probably they were preceded by some such words as — [What Mr. Murray suggests is~] 'a mere reprint of it; but, if he would give me sufficient time (two years or so), I would do my best to produce something better. ' I shall now set to work in good earnest ; and if my unlucky stars will allow me a little peace, I hope I shall turn out something of considerable utility. ' I intend to show the relations of positive morality and law (mos and jus), and of both, to their common standard or test; to show that there are prin- ciples and distinctions common to all systems of law (or that law is the subject of an abstract science) ; to show the possibility and conditions of codification; to exhibit a short scheme of a body of law arranged in a natural order ; and to show that the English Law, in spite of its great peculiarities, might be made to conform to that order much more closely than is imagined. ' The questions involved in this scheme are so numerous and difficult, that what I shall produce will be very imperfect. I think, however, that the subject is one which will necessarily attract attention before many years are over; and I believe that my suggestions will be of considerable use to those who, under happier auspices, will pursue thei inquiry. 'There are points upon which I shall ask your advice. 'Yours most truly, 'John Austin.' VOL. I. C 1 8 Preface. He had finally established himself in Paris, when the Revolution of 1848 once more uprooted him. He had watched with intense interest and anxiety' the approach of the storm which was to overthrow all regular government in France ; and it was from earnest observation of what passed in that country, that he became confirmed in his opinion of the difficulty, if not the impossibility, of reconstructing a society which has once been completely shattered. This opinion, together with his ardent and disinterested love of his country, found utterance in the pamphlet which he published in 1859. He remained for some months in Paris after the Revolution, watching the course of things. As he became more and more convinced that permanent tranquillity was not to be looked for in France, and that life there would be incessantly troubled and embittered by uncertainty and alarm, he resigned himself to a serious pecuniary loss, and returned to England, determined to seek tranquillity in a small retreat in the country. He took a cottage at Weybridge, in Surrey, near enough to London for convenience, and for occasional visits from his only child, and far enough to enable him to enjoy the retirement he coveted. Here he entered upon the last and happiest period of his life; the only portion during which he was free from carking cares and ever-recurring disappointments. The battle of life was not only over, but had hardly left a scar. FHe had neither vanity nor ambition, nor any desires beyond what his small income sufficed to satisfy .7 He had no regrets or repinings at his own poverty and obscurity, contrasted with the successes of other men. He was insatiable in the pursuit of knowledge and truth for their own sake; and during the long daily walks, which were almost the sole recreation he coveted or enjoyed, his mind was constantly kept in a state of serene elevation and harmony by the aspects of nature, — which he contemplated with ever-increasing delight, and described in his own felicitous and picturesque language, — and by meditation on the sublimest themes that can occupy the mind of man. He wanted no excitement and no audience. Though he welcomed the occa- sional visits of his friends with affectionate cordiality, and delighted them by the vigour and charm of his conversation, he never expressed the smallest desire for society. He was content to pour out the treasures of his knowledge, wisdom, and genius, to the companion whose life was (to use the expression of one who knew him well) ' enfolded in his.' Thus passed twelve years of retirement, rarely interrupted, Preface. 19 and never uninteresting or wearisome. His health was greatly- improved. The place he had chosen and his mode of life suited him. The simplicity of his tastes and habits would have ren- dered a more showy' and luxurious way of living disagreeable and oppressive to him. Yet none of the small pleasures or humble comforts provided for him ever escaped his grateful notice. He loved to be surrounded by homely and familiar objects, and nothing pleased him so much in his garden as the flowers he had gathered in his childhood. Things new or rare were unattractive, if not distasteful, to his constant and liberal nature. He had a disinterested hatred of expense, and of pre- tension, and, though very generous, and quite indifferent to gain, he was habitually frugal, and respected frugality in others, as the guardian of many virtues. One regret mingled with the deep thankfulness with which this comparative freedom from pain and care was regarded by those who loved him : — he showed no inclination to devote these years of improved health and tranquil leisure to the work he had so long ago projected. But even this regret, poignant as it was, gradually subsided under the tranquillising influence of his serene contentment. It is no wonder that the person most sensible of the immense resources and powers of his mind, and most deeply interested in seeing them appreciated, could not resolve to urge him to return to long-disused labours. Suffering, from ill-health and from other causes, had pursued him, almost without intermission, throughout the early and middle part of his life; and now that he had found comparative ease of body and mind, fame, or even usefulness (so long and ardently coveted for him), faded into nothing, compared to these inestimable blessings. The calm evening that followed on so cloudy and stormy a day, was too precious to be risked for the reputation to which he was so indifferent, or for the advantage of a world to which he owed so little. But his generous solicitude for his country did what nothing else could, and his last effort was prompted by benevolence and patriotism. He was, in his solitude, a deeply-interested observer of poli- tical events. He viewed with great anxiety and disapprobation the various schemes of parliamentary reform brought forward during the later years of his life, and felt deeply the severe blow they gave to the respect he wished to feel for eminent public men. ^Profoundly convinced as he was of the scarcity of great 20 Preface. ability, and of the still greater scarcity of a disinterested love of truth, it may easily be imagined that he regarded with a sort of horror all schemes for placing the business of legislation in the hands of large bodies of men. He had followed step by step the progress of the great minds by which systems of law had been, through ages, slowly and painfully elaborated; and the project of submitting these highest products of the human intel- lect, or the difficult problems they deal with, to the judgment and the handling of uneducated masses, seemed to him a return towards barbarism.*? He, least of all men, was likely to be dazzled or attracted by wealth or rank; but he valued them on public grounds, as providing for their possessors the highest sort of education, and the leisure and opportunity to apply that education to the general culture of the human mind, — especially to the difficult sciences of legislation and government. The idea of popular legislation was to him as alarming as it was absurd ; and it was precisely on account of the disastrous con- sequences which he was certain must result from it to the people themselves, that he felt indignant at the uses made of their ignorance, and the unmanly affectation of deference to their wishes, by those whose duty it is to enlighten and guide them. Long and accurate observation of other countries, and inter- course with their public men, had taught him the full value of the institutions of this country, and the importance of the habit of obedience to law ; and he was too ardent and sincere a patriot to see these imperilled without the deepest emotion. The work of Lord Grey, which appeared in the midst of the discussions on reform, excited his warm and respectful admiration ; and when it was suggested to him that he should review it, he immediately consented. The pamphlet published under the title of 'A Plea for the Constitution,' was originally written for a quarterly journal ; but being thought unsuitable, it was published sepa- rately. Its success far exceeded his very modest expectations, and gave him the satisfaction of thinking that he had contributed something to the defeat of pernicious projects. This was the only reward he desired. From the time that he abandoned the struggle with the world to which he was at once so unequal and so superior, all the bitterness excited in him by the chilling indifference with which his noble and disinterested efforts had been received, subsided. £His estimate of men was low, and his solicitude for their approbation was consequently smallj But while he kept aloof from them, his sympathy with their sufferings, and his Preface. 2 1 anxiety for their improvement, never abated. For himself, he coveted nothing they had to give ; and he awaited the judgment of another tribunal with humility, but with a serenity which became more perfect in proportion as the time for his appearing before it drew nigh. If elevation above all the low desires and poor ambitions which chain the soul to earth, if a life untainted by a single unjust or ungenerous action or thought, a single concession to worldly or selfish objects, a single attempt to stifle or to disguise truth, could justify a serene anticipation of the world into which none of these things can enter, he might be permitted to feel it. Having, as I hope, made intelligible to that portion of the public, capable of sympathy with a character like Mr. Austin's, what were the causes which disabled him — or disinclined him — from entering afresh on the labour of reconstructing and greatly enlarging his book, and of knitting up all the threads which years and events, care and sickness, had tangled or broken, it only remains for me to say what are the materials he has left; what the motives that have induced me to give them to the world; and how it is that I have found myself in a manner compelled to undertake the arrangement of them for the press. I have sometimes doubted whether it was consistent with my obedience to him to publish what he had refused to publish. I have questioned myself strictly, whether, in devoting the rest of my life to an occupation which seems in some degree to con- tinue my intercourse with him, I was not rather indulging myself than fulfilling my duty to him. JThere have been times, too, when, in the bitterness of my heart, I have determined that I would bury with me every vestige of his disinterested and un- regarded labours for the good of mankind. But calmer thoughts have led me to the conclusion, that I ought not to suffer the fruit of so much toil and of so great a mind to perish ; that what his own severe and fastidious judgment rejected as imperfect, has a substantial value which no defect of form or arrangement can destroy; and that the benefits which he would have con- ferred on his country and on mankind, may yet flow through devious and indirect channels J I persuade myself that if his noble and benevolent spirit can receive pleasure from anything done on earth, it is from the knowledge that his labours are 'of use to those who, under happier auspices, pursue the inquiry' into subjects of such paramount importance to human happiness. 22 Preface. Having thus come to the conclusion that some of the manu- scripts he left ought to be given to the public, the next question was — in what form, and by whom? My first thought was to look about for an editor, to whom I might confide the redaction of the whole ; leaving to him entire discretion as to the matter and form of the publication. But it did not appear that any such person could be found, or was likely to be found. A great portion of the manuscript was in so imperfect and fragmentary a state, that it was clear that the whole must be recast and re- written by any editor who aspired to produce a readable book, from which he could derive reputation or profit. I was alarmed at the thought of the changes the work might undergo in this process. It was to be feared that any editor who had not the self-forgetting devotion of a Dumont, would be more sensible of his responsibility towards the public than of that towards his author. TThere are great peculiarities in Mr. Austin's style — not one of which was adopted without mature thought. He never had the slightest idea of rendering his subject popular or easy. He demanded from his hearers or readers the full force of their attention; and as he knew how lax and flitting the attention of most men is apt to be, he adopted every expedient for fixing or recalling it. He shrank from no repetitions that he thought necessary to keep a subject steadily and distinctly before the mind, and he availed himself of all typographical helps for the same purpose. Knowing this, I have disregarded the advice of some of those to whom I am most bound, and most disposed, to defer, in retaining the numerous italics with which his book is, in their opinion, deformed. Future editors may, if they will, remove this eyesore. They will not be bound by the deference which must govern me .J It will not be supposed that I think it necessary to call in any testimony to the value of the materials I have to produce. But those whose estimate of them is the highest, may very justly think they ought to have been put into more competent hands. This was my own opinion; and it was not without much anxious deliberation, or without consulting those of Mr. Austin's friends upon whose judgment and solicitude for his fame he would, I knew, have had the greatest reliance, that I determined on the course I have pursued. The opinion and the advice which I received from all was essentially the same ; —that all the Lectures should be published, 'with only such revision as may remove needless repetitions;' and that, con- sidering the confused and fragmentary state of much of the Preface. 23 manuscript, the safest editor would be the person most deeply interested in the author's reputation, and most likely to bestow patient and reverential care on every relic left by him. I need not repeat the terms in which Mr. Austin's friends encouraged me to undertake the task of putting these precious materials in order, nor the offers of advice and assistance which determined me to venture upon it. One of them, who spoke with the authority of a lifelong friendship, said, after looking over a mass of detached and half -legible papers, 'It will be a great and difficult labour ; but if you do not do it, it will never be done.' This decided me. I have gathered some courage from the thought that forty years of the most intimate communion could not have left me entirely without the means of following trains of thought which constantly occupied the mind whence my own drew light and truth, as from a living fountain; of guessing at half -expressed meanings, or of deciphering words illegible to others. During all these years he had condescended to accept such small assist- ance as I could render ; and even to read and talk to me on the subjects which engrossed his mind, and which were, for that reason, profoundly interesting to me. Having determined on the course to be pursued, the first thing to be done was obviously to republish the volume already in print, which has been long and eagerly demanded. The Author's Preface explains the matter of which this volume con- sists, and his purpose in publishing it. I have altered nothing, except the position of the Outline, which is now placed at the beginning, instead of at the end of the book. I have inserted all the scattered memoranda I have been able to find, relating to alterations and additions which he meditated. Some of them are taken from a small paper marked 'Inserenda.' All these things are manifestly mere suggestions for his own use, — indi- cations of matter which he intended to introduce or to work out. They are inserted, chiefly as proofs of the thought he had given to a more ample exposition of jurisprudence and the allied sciences; but also, not without a hope that some of them may serve as landmarks for the guidance of future explorers of the way he intended to follow. The volume now 4 republished includes the first ten of the Lectures read at the London University ; which, though divided into that number for delivery, were (to use the author's 4 Viz. 1861. See note, p. 1, and Advertisement to this edition. 24 Preface. expression), 'in obedience to the affinity of the topics,' reduced by him to six. There remain, unprinted, all the rest of the Lectures given at the London University. These I propose to print exactly as he left them. I shall alter nothing, and shall only make the omissions suggested above. This course is, I think, fully justified by the opinion already cited. There is also the short Course, delivered at the Inner Temple. But as this necessarily went in great measure over ground which had been traversed in the earlier Courses, it does not appear to the friends I have consulted that it will afford matter for a separate volume. It is thought that it will be expedient to collate these with the earlier and far more numerous Lectures, and to insert, as notes or appendix, any matter which is not found in those. The state of the manuscript seems to show that the author meant to incorporate them with the former ; or rather, to employ both in the construction of the great work he meditated. When Mr. Austin was preparing his lectures at the London University he drew out a set of Tables, which he had printed for distribution to the gentlemen of his class. They were never published nor sold, and were consequently unknown to the public. Nor were they ever completed. Between Tables I., II., and VIII. , IX., there is a chasm, — never now to be filled. But lamentably incomplete as they are, they are pronounced by one eminent lawyer to be 'perhaps the most extraordinary production of his mind ;' and, by all who have studied them, are thought to afford evidence of an astonishing originality of conception, extent of learning and force of reasoning. Each Table is accompanied by explanatory notes of great length. I am not without some faint hope that hints for the construction of some of the missing Tables may be found among the various scattered notes which exist. 5 The nature and object of these Tables are described by the author in his opening Lecture, in the following words. After stating the causes which rendered an opening Lecture a useless ceremony in his case, he concludes thus : — ' I find it utterly impossible to give you the faintest notion of my intended Course. Nor is it necessary that I should. ' I have been busily employed in preparing a small work which will answer the purpose better. It consists of a Set of Tables, in which I have exhibited the Arrangement intended by the Roman Lawyers in their Institutes or. 5 These tables and notes were printed now contained in the second volume of in the last of the volumes of these the present edition. — R. C. Lectures, published in 1863, and are Preface. 2 5 Elementary Treatises. And this Arrangement is compared with various others, which have since been adopted in Codes, or proposed by Writers on Jurispru- dence. To these Tables I have" appended notes, in which I have endeavoured to show the rationale of that Arrangement, and to explain the import of the distinctions upon which it turns. ' From these Tables and from the Notes which have been appended to them, those who may do me the honour of attending my Class, will collect a. better idea of my general subject and design than from anything that I could utter here. 'These Tables are nearly, though not completely, printed off. And I hope they will appear shortly. I have been working day and night in order that I might have them ready by the opening of my Lectures : but I have been obliged to struggle with so many intricate questions, and to make references to so great a number, of books, that I found it impossible to complete them in time. ' The pains which I have taken to get them ready must serve as my excuse for the present lame appearance. 'With an object in view which I thought important I could not afford to expend my labour and time upon a mere formality.' Lastly, I find a considerable mass of papers on Codification ; an Essay on Interpretation ; the 'Excursus on Analogy,' referred to at the beginning of Lecture V. in tbe present volume; and the commencement of a project of a Criminal Code, to which I have already referred. Such are the materials laboriously brought together and marvellously wrought, which lie broken and scattered before me. The noblest designs, the highest faculties, the most unwearied industry, were employed upon them — in vain. What would have been the structure reared out of them, had the Master been enabled to execute the plan he had conceived, is now left to melancholy conjecture. SARAH AUSTIN. Weybridge, 1861. In the Preface to the Second Edition of the 'Province of Jurisprudence determined,' published two years ago, I stated what were the manuscripts remaining in my possession, in what condition they were left by Mr. Austin, and what were my intentions with regard to them. Since that time, I have been constantly occupied in preparing them for the press, and I now give them to the world under those conditions of incompleteness which I announced as inevitable. It ib unnecessary for me to repeat the reasons which deter- mined me to undertake so arduous a work; or to apologise for the imperfect manner in which it is accomplished. I am now more than ever convinced that (however obvious the objections 26 Preface. to it) this was the only safe and practicable mode of preserving these unfinished but precious materials in perfect genuineness and integrity. I have not attempted to alter the form of the Lectures, nor to disguise the breaks and chasms in them. In the Preface to the first volume (p. 24), I spoke of my intention of 'collating the Course delivered at the Inner Temple with the earlier and more numerous lectures given at the London University, and inserting, as notes or appendix, any matter not found in these.' Fortunately, the task of selection and adapta- tion was not left to me. On a nearer examination, I found that the author had marked with his own hand the parts of the Inner Temple Course which were to be added to, or substituted for, passages in the earlier lectures. In several places he had even cut out considerable portions from the latter, leaving a reference to the passages in the former which he intended to put in their place. I had therefore only to conform to a plan which, in this case, and I believe in this alone, was clearly and precisely marked out. The Lectures, as now printed, are, in fact, the two Courses, consolidated by himself. A few typographical details seem to require notice. There are some passages in the manuscript through which the author had drawn a light pencil line; not, I am sure, signifying that they were to be entirely rejected (for what he meant to be erasures are too complete to admit of a doubt), but that they were reserved for further consideration, or were to be transferred to some other place. These passages I have generally inserted, distinguishing them by brackets. The references to books, which are extremely numerous, I have verified in every case, with the rare exception of such as were not within my reach. In some cases, where I have seen that Mr. Austin had emphatically marked the passage referred to, or had commented upon it in the margin of the book, I have quoted it. Perhaps this has been done rather too freely; but the space so occupied is not great, the books are not in every- body's hands, and I thought it might be convenient to the reader to see the precise passage to which the author referred. "Wherever any words in these quotations are printed in italics, those words are underlined in the book. With regard to the use of italics, capital letters, and other typographical distinctions, I am fully aware that there is a want of uniformity and consistency; and if, with my present Preface. 27 experience, I had to begin my work again, there are several things which I should do otherwise. But the mass of papers was so great, the subjects treated of so difficult, and the task of arranging them so formidable, that it seemed as if a thorough and minute examination of their contents, and a mature deli- beration on the details of their arrangement, would defer their publication almost indefinitely. A still more urgent motive arose from the consciousness that my own time for work cannot be long, and is extremely precarious ; and the thought that I should leave these remains to a very uncertain fate, made me determine to secure the most important part of them from the chance of destruction, with as little delay as possible ; a deter- mination in which I was strengthened by those of my husband's friends who take the warmest interest in the advancement of the science, and in the fame of the writer. The duties imposed on the guardians of a great reputation have been the subject of much discussion, and, to myself, of much painful deliberation. The only conclusion I could arrive at is this : — Where a writer has attached great value to form, and has regarded his writings as works of art; where any con- siderable portion of his reputation rests upon his genius and skill as an artist, it seems an act of injustice to his memory to publish anything which had not undergone the last and highest polish of his own hand. But where the great aim of a writer has been to correct pernicious errors, to throw light upon obscure truths, to dis- seminate new ideas which he believed to be of the highest con- cernment to mankind; where the labour he bestowed on style was bestowed solely with a view of expressing his thoughts with the greatest possible clearness and precision; where the depth, gravity, and originality of the matter have a value far beyond that of any conceivable perfection of form, the materials he had accumulated with purposes so far transcending any personal ones, ought not, however unfinished, to be consigned to oblivion. In subjecting what is most dear and venerable to me in the world to so severe an ordeal, I would not be understood to be indifferent to form. But I have trusted confidently to qualities which no defects of form can destroy or greatly disguise. More- over, these defects do not extend to what, in a scientific work, is of supreme importance; namely, arrangement. It will be apparent to the reader that, upon whatever new inquiry he entered, Mr. Austin's invariable method of proceeding was, first to determine precisely its limits, and then to lay down in the 2 8 Preface. most accurate manner the plan of arrangement to be pursued through the whole course of the investigation. And there are the clearest indications in the manuscripts themselves that this preliminary portion of his task was, in every case, most carefully and laboriously executed. Unfortunately, in many instances, the execution was carried no further; he never filled up the outline he had sketched with so masterly a hand. The notes on Criminal Law and those of Codification, for example, are in so rough and imperfect a state, that I should not have ventured to publish them, had I not been assured that they would, as models of arrangement, be of the utmost value to future inquirers. It seems hardly necessary to repeat (yet perhaps I cannot repeat too often), that this book shows not what the author had done, but what he intended to do, and (in some degree) what he was capable of doing.. I have therefore allowed various indica- tions of his intentions to remain. I have also preserved the traces of the questionings which continually suggested them- selves to his penetrating and sincere mind; and with which he was careful to qualify and limit his assertions, so long as the shadow of a doubt remained. All these are characteristic of the spirit in which he pursued science. Jlo seem to know, or to leap to prompt and facile conclusions, was impossible to him. To arrive at knowledge by ways the most laborious, the most mortifying to vanity, and the most irritating to impatience, was the course which the rectitude of his nature irresistibly impelled him to follow.Y I had also a double motive in showing how many passages were reserved for reconsideration. These very marks of doubt, while they prove the caution with which he worked, and the process of investigation which was for ever going on in his mind, may perhaps suggest similar caution, and excite to similar mental contention in those who are to follow him. Every one of these doubts, pointing to further research and further reflec- tion, may lead to the discovery of new truths or to the solution of unsolved problems. Such results would have been far more precious to him than any conceivable addition to his fame as a writer. In the Preface to the first volume, I ventured to print a few disjointed sentences which appeared to me to throw light on the character of the man, and on the nature and aims of his teach- ing. I have since found more notes of the same kind; and, broken, as they are, I give them, as showing still more clearly in what spirit and with what views he entered upon the duties Preface. 29 of an office so new to the country and to himself as that of Professor of Jurisprudence. What Lectures of this kind ought to be. Great defects of those which I shall actually deliver : particularly as to the method and style : — having thought it better to gain (as far as I could) an extensive and accurate knowledge of my subject than — etc. The research, necessary for this, extremely extensive ; — should have gone on for ever. — New language, — (Illness and debility). In the course of a few years, shall be able to produce something more worth hearing. Shall be obliged to omit much of what I had intended to embrace. There is none of the details which will not need as much illustration as the principal heads. (Lord Hale's illustration.) And if I descended far into the detail, the Lectures would be endless. I must therefore content myself with a general outline, descending here and there into the detail, so often as it is peculiarly interesting and important. It is necessary to recollect that the terms, circumlocutions, etc., used in these Lectures (so far as new) are merely explanatory. In applying any actual system, the terms of that system must be observed. So of its arrangements, etc., which are connected with its terms. The principles of General Jurisprudence will not coincide with any actual system, but are intended to facilitate the acquisition of any, and to show their defects. In the ordinary business of life, these systems must, of course, be applied as they are. Reconciliation of divorce between Philosophy and Practice. Will thank my hearers to attend at the conclusion of every Lecture, and to ply me with questions and demands for explanation. This will not only enable me to clear up obscurities, but to produce much of which I have read, and upon which I have thought, but which in solitary composition escapes the recollection. Also to criticise with unsparing severity; for it is only by this that I can ever learn to accommodate my future Lectures to the wants of students. Uses of this friendly intercourse, or ' arnica collatio :' particularly to young men writing. No time, that I shall not be willing to give. My heart in the subject : nor will anything be disagreeable, but the chilling indifference which I cannot help anticipating. It will easily be understood that I have never entertained the project of rendering such a book acceptable to any but men seriously interested in the great questions of Law and Morals which lie at the foundation of human society. To the discrimi- nating, and therefore indulgent, judgment of that narrow public which is constantly tending towards the ends my husband pursued, and through whom his labours (which to him seemed barren) may hereafter be rendered fruitful, I humbly and earnestly commend it. I must add, with gratitude, that my labour has been cheered 30 Preface. by an ever-increasing expression of interest in it, from men eminent in Jurisprudence, and in the moral sciences generally, in this and other countries ; — strangers to all but the mind and character of the author as displayed in his published book. They have exhorted me not to suffer myself to be deterre'd by want of completeness, or by defects of style, from giving to the world 'any, the slightest, intimations of Mr. Austin's opinions on the subjects to which he had devoted himself,' or of his method of inquiry and arrangement. Such exhortations coming from men whose voice is authoritative, it seemed my duty to obey. I am indebted to several gentlemen for encouragement, counsel, and assistance : especially, I have to acknowledge the invaluable and persevering aid I have received from friends of Mr. Austin, who found time, in the midst of their own pressing avocations, to attend to my doubts and difficulties. Their sanction was peculiarly important, since they had been among the most assiduous and attentive hearers of Mr. Austin's Lectures, and were acquainted with his modes of thinking and expression. Without such a sanction, I should hardly have dared to publish matter in which, from the state of the manuscripts, some exercise of discretion was inevitable. It would be impertinent to affect to regard the care they have bestowed on the work in its passage through the press, as an obligation conferred on me. What they have done has been done out of reverence for the memory of the author, and zeal for the advancement of his science. Nor should I venture to make any public acknowledgment of it, did it not appear to me necessary for my own justification, and for the satisfaction of the reader. SAEAH AUSTIN. Weybridge, April, 1863. OUTLINE OF THE COURSE OF LECTURES. 'Dum potentes aliud agunt, jurisconsulti eruditi, prudentes, bene animati, conferant capita privatim, cogitentque de jure constituendo, ut reddant certius quam nunc : posset is labor prseludere principum auctoritati. '■ — Leibnitz. [In the original edition of ' The Province of Jurisprudence determined,' published in 1832, the following passage is inserted in the Preface. In 1831 I published an Outline of my Course : Which outline, carefully corrected and somewhat enlarged, I append to the following treatise. For the following treatise is a detached portion of the Course : And unless the disquisitions composing the treatise be viewed with their relations to the subject and scope of the Course, and the arrangement which I give to the subject, their pertinence and importance can hardly be seen completely. £ To lighten to the reader the labour of catching the arrangement, I have placed, at the end of the Outline, an Abstract of the Outline itself. 3 As the Outline relates not only to the matter of the original Volume, but to the entire Course, it has been thought advisable to prefix, instead of appending it.— S. A.] PEELIMINAEY EXPLANATIONS. I. I shall determine the province of Jurisprudence. II. Having determined the province of Jurisprudence, I shall distinguish general jurisprudence, or the philosophy of positive law, from what may be styled particular jurisprudence, or the science of particular law; that is to say, the science of any such system of positive law as now actually obtains, or once actually obtained, in a specifically determined nation, or specifically determined nations. Note. — Of all the concise expressions which I have turned in my mind, ' the philosophy of positive law' indicates the most significantly the subject and 3 2 Outline of the Leci. I-VI scope of ray Course. I have borrowed the expression from a, treatise by Hugo, a celebrated professor of Jurisprudence in the University of Gottingen, and the author of an excellent history of the Roman Law. Although the treatise in question is entitled ' the law of nature,' it is not concerned with the law of nature in the usual meaning of the term. In the language of the author, it is concerned with 'the law of nature as a philosophy of positive law.' But though this last expression is happily chosen, the subject and scope of the treatise are conceived indistinctly. V General jurisprudence, or the philosophy of positive law, is blended and confounded, from the beginning to the end of the book, with the portion of deontology or ethics, which is styled the science of legislation.^ ^Now general jurisprudence, or the philosophy of positive law, is not concerned directly with the science of legislation. It is concerned directly with principles and distinctions which are common to various systems of particular and positive law ; and which each of those various systems inevitably involves, let it be worthy of praise or blame, or let it accord or not with an assumed measure or test. Or (changing the phrase) general jurisprudence, or the philosophy of positive law, is concerned with law as it necessarily is, rather than with law as it ought to be ; with law as it must be, be it good or bad, rather than with law as it must be, if it be good.s The subject and scope of general jurisprudence, as contradistinguished to particular jurisprudence, are well expressed by Hobbes in that department of his Leviathan which is concerned with civil (or positive) laws. ' By civil laws (says he), I understand the laws that men are therefore bound to observe, because they are members, not of this or that commonwealth in particular, but of a commonwealth. For the knowledge of particular laws belongeth to them that profess the study of the laws of their several countries : but the know- ledge of civil laws in general, to any man. The ancient law of Rome was called their "civil law" from the word civitas, which signifies a, commonwealth : And those countries which, having been under the Roman empire, and governed by that law, still retain such part thereof as they think fit, call that part the "civil law," to distinguish it from the rest of their own civil laws. But that is not it I intend to speak of. My design is to show, not what is law here or there, but what is law: As Plato, Aristotle, Cicero, and divers others have done, without taking upon them the profession of the study of the law.' Having distinguished general from particular jurisprudence, I shall show that the study of the former is a necessary or useful preparative to the study of the science of legislation. 6 I shall also endeavour to show, that the study of general jurisprudence might precede or accompany with advantage the study of particular systems of positive law. Note. — Expounding the principles and distinctions which are- the appro- priate matter of general jurisprudence, I shall present them abstracted or ' The matter contained in the above jurisprudence. The subject here re- section of the Outline does not appear ferred to will, however, be found more to be further developed in the ensuing enlarged upon in an essay entitled 'On lectures. The distinction appears to be the Study of Jurisprudence,' printed assumed, and the author, in the lecture towards the end of the second volume, marked XII., immediately proceeds to — R. C. address himself to the subject of general Course of Lectures. 33 detached from every particular, system. But when such a principle or distinc- Lect. I-VI tion, as so abstracted or detached, may seem to need exemplification, I shall v— ^ — " ' also endeavour to present it with one or both of the forms wherein it respectively appears in the two particular systems which I have studied with some accuracy : namely, the Roman Law and the Law of England. III. Having determined the province of jurisprudence, and L ^Jtt I ~ distinguished general from particular jurisprudence, I shall analyse certain notions which meet us at every step, as we travel through the science of law. Of these leading notions, or these leading expressions, the most important and remarkahle are the following : — Person and Thing. Fact or Event, and Incident. Act, Forbearance, and Omission. Legal Duty, relative or absolute. Legal Right. Legal Rights in rem, with their corresponding Offices; and Legal Rights in personam, with their corresponding Obligations. Legal Privilege. Permission (by the Sovereign or State), and Political or Civil Liberty. Delict or Injury, civil or criminal. Culpa (in the largest sense of the term), or The Grounds or Causes of Imputation : a notion involving the notions of Wish or Desire, of Wish as Motive, and of Wish as Will; of Intention, of Negligence, of Heedlessness, and of Temerity or Rashness. The grounds or causes of Non-Imputation : e.g. Infancy, Insanity, Ignorantia Facti, Ignorantia Juris, Casus or Mishap, Vis or Compulsion. Legal Sanction, civil or criminal. Note. -^-Though every right implies a. corresponding duty, every duty does not imply a corresponding right. I therefore distinguish duties into relative and absolute. A relative duty is implied by a right to which that duty answers. An absolute duty does not answer, or is not implied by, an answering right_S" Persons are capable of taking rights, and are lalso capable of incurring duties. But a person, not unfrequently, is merely the subject of a right which resides in another person, and avails against third persons. And considered as the subject of a right, and of the corresponding duty, * person is neither invested with a right, nor subject to a duty. Considered as the subject of a right, and of the corresponding duty, a, person occupies a position analogous to that of a thing. Such, for example, is the position of the servant or apprentice, in respect of the master's right to the servant or apprentice, against third persons or strangers. Things are subjects of rights, and are also subjects of the duties to which those rights correspond. But, setting aside a fiction which I shall state and explain in my lectures, things are incapable of taking rights, and are also incapable of incurring duties. VOL. I. D 34 Outline of the ^XXVII 1- Having determined the province of Jurisprudence, distin- guished general from particular Jurisprudence, and analysed certain notions which pervade the science of law, I shall leave that merely prefatory, though necessary or inevitable matter, and shall proceed, in due order, to the various departments and sub-departments under which I arrange or distribute the body or bulk of my subject. Now the principle of my main division, and the basis of the main departments which result from that main division, may be found in the following considerations. First : Subject to slight correctives, the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be put in the following manner. £ Every positive law, or every law simply and strictly so called, is set by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of subjection to its author.^ But some positive laws are set by the sovereign immediately : whilst others are set immediately by subordinate political superiors, or by private persons in pursuance of legal rights. In consequence of which differences between their immediate authors, laws are said to emanate from different sources or fountains. Secondly : A law may begin or end in different modes, whether it be set immediately by the sovereign one or number, or by a party in a state of subjection to the sovereign. Thirdly : Independently of the differences between their sources, and between the modes in which they begin and end, laws are calculated or intended to accomplish different purposes, and are also conversant about different subjects. Being set or established by different immediate authors, beginning and ending in different modes, being calculated or intended to accomplish different purposes, and being conversant about different subjects, law may be viewed from two distinct aspects, and may also be aptly distributed under the two main departments which are sketched or indicated below. In the first of those main departments, law will be considered with reference to its sources, and with reference to the modes in which it begins and ends. In the second of those main depart- ** * ments, law will be considered with reference to its purposes, and with reference to the subjects about which it is conversant. Course of Lectures. 35 LAW CONSIDERED WITH REFERENCE TO ITS SOURCES, AND WITH REFERENCE TO THE MODES IN WHICH IT BEGINS AND ENDS. I. A law or rule may be set immediately by the sovereign, Lect. • XXVIII— or by a party in a state of subjection to the sovereign. Hence XXXIX the distinction between written and unwritten law, as the terms ' — ■ ' are frequently used in treatises by modern civilians, or by writers on general jurisprudence. And hence the equivalent distinction between promulged and unpromulged law, as the terms are frequently used in the same treatises. As the terms are frequently used in those treatises, written law, or promulged law, is law of which the sovereign is the immediate author; whilst unwritten law, or unpromulged law, is law which flows immediately from some subordinate source. The two distinctions, as taken in that sense, will be ex- pounded in the lectures : wherein I shall explain the widely different senses which often are annexed to the terms. II. Whether it be set immediately by the sovereign one or number, or by some political superior in a state of subjection to the sovereign£a law or rule may be set or established in either of two modes : namely, in the properly legislative mode (or in the way of direct legislation), or in the improperly legislative mode (or in the way of judicial legislation) J! lA law established in the properly legislative mode is set by its author or maker as a law. The direct or proper purpose of its author or maker is the establishment of the law which is made. — A rule established in the improperly legislative mode is assumed by its author or maker as the ground of a judicial decision. The direct or proper purpose is the decision of a case, and not the establishment of the rule which is assumed and applied to the case. The author or maker of the rule legislates as properly judging, and not as properly legislating! As I have intimated above, the sovereign one or number, or any political superior in a state of subjection to the sovereign, may legislate in either of these modes. For example : The Roman Emperors or Princes, during the Lower Empire, were avowedly, as well as substantially, sovereign in the Roman World : and yet they established laws by the decretes which "they gave judicially, as well ashy the edictal constitutions which -they made in their legislative character. And, on the other hand, the Roman Praetors, who were properly subject judges, established laws in the way of direct legislation by the edicts 36 Outline of the Lkct. which thev published on their accession to office. The rules of YYV TTT XXXIX~ practice made by the English Courts, are also examples of laws v — « — ' established in the legislative mode by subordinate political superiors. Inasmuch as its true essentials are frequently misconceived, I shall endeavour to analyze accurately the distinction which I have now suggested : namely, law made directly, or in the properly legislative manner ; and law made judicially, or in the way of improper legislation. Having stated the essential differences of the two kinds of law, I shall briefly compare their respective merits and defects, and then briefly consider the related question of codification. III.jEvery positive law, or rule of positive law, exists as such by the pleasure of the sovereign^ As such, it is made immediately by the sovereign, or by a party in a state of subjection to the sovereign, in one of the two modes which are indicated by the foregoing article. As such, it flows from one or another of those sources. But by the classical Eoman jurists, by Sir William Black- stone, and by numerous other writers on particular or general jurisprudence, the occasions of laws, or the motives to their establishment, are frequently confounded with their sources or fountains. The following examples will show the nature of the error to which I have now adverted. I.The prevalence of a custom amongst the governed, may determine the sovereign, or some political superior in a state of subjection to the sovereign, to transmute the custom into positive law .J Respect for a law-writer whose works have gotten reputa- tion, may determine the legislator or judge to adopt his opinions, or to turn the speculative conclusions of a private man into actually binding rules. The prevalence of a practice amongst private practitioners of the law, may determine the legislator or judge to impart the force of law to the practice which they observe spontaneously .-tNow till the legislator or judge impress them with the character of law, the custom is nothing more than a rule of positive morality^ the conclusions are the specu- lative conclusions of a private or unauthorised writer; and the practice is the spontaneous practice of private practitioners. But the classical Eoman jurists, Sir William Blackstone, and a host of other writers, fancy that a rule of law made by judicial decision on a pre-existing custom, exists as positive law, apart from the legislator or judge, by the institution of the private persons who observed it in its customary state. And the Course of Lectures. 37 classical Roman jurists have the same or a like conceit with Lect. . . ... XXVIII— regard to the rules of law which are fashioned by judicial XXXIX decision on the conclusions or practices of private writers or ■ practitioners. They ascribe their existence as law to the authority of the writers or practitioners, and not to the sover- eign, or the representatives of the sovereign, who clothed them with the legal sanction. With a view to these conceits, and to others equally absurd, I shall examine the natures of the following kinds of law. 1. Law fashioned by judicial decision upon pre-existing custom : or (borrowing the language of the classical Roman jurists) jus 'inoribus constitutum. 2. Law fashioned by judicial decision upon opinions and practices of private or unauthorised lawyers ; or (borrowing the language of the classical Roman jurists) jus prudentibus compositum. Examining customary law, or law moribus constitutum, I shall advert to the essential differences between general custom- ary laws, and such customary laws as are local or particular : or (speaking more properly) between the customary laws which the tribunals know judicially, and the customary laws which the tribunals will not notice, unless their existence be proved. lY.tNatural law, as the term is commonly understood by modern writers upon jurisprudence, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality J! The law natural, which is parcel of law positive, is analogous to law moribus constitutum., and to law prudentibus compositum,. For natural law, considered as a portion of positive, is positive law fashioned by the legislator or judge on pre-existing law of another description : namely, on the law of God truly or errone- ously apprehended; or on rules of positive morality which are not peculiar to any nation or age, but obtain, or are thought to obtain, in all nations and ages. Accordingly, from law inoribus constitutum, and law pru- dentibus compositum, I shall pass, by an obvious and easy transition, to the law natural which is parcel of law positive. Handling the topic, I shall show the analogy borne by that natural law to law moribus constitutum and law prudentibus compositum. Canvassing the same topic, I shall show that[the supposition of a natural law (considered as a portion of positive law and morality) involves the intermediate hypothesis which is compounded of the theory of utility and the hypothesis of a 3$ Outline of the kECT. moral sense X that, assuming the pure hypothesis of a moral XXXIX sense, or assuming the pure theory of general utility, the dis- "" tinction of human rules into natural and positive, were utterly senseless, or utterly purposeless. With a view to my subsequent outline of the jus pr&torium, I shall give an historical sketch of the jus gentium, as it was understood by the earlier Roman lawyers. The jus gentium of the earlier Roman lawyers, I shall distinguish from the jus naturale, or jus gentium, which makes so conspicuous a figure in the van of the Institutes and Pandects. I shall show that the jus gentium of the earlier Roman lawyers is peculiar to the Roman law; whilst the latter is equivalent to natural law, as the term is commonly understood by modern writers upon juris- prudence. I shall show that the jus gentium of the earlier Roman lawyers was a purely practical notion : that it arose from the peculiar relations borne by the Urbs Roma to her dependent allies and subject provinces. £ I shall show that the latter is a purely speculative notion : that it was stolen by the jurists styled classical, and by them imported into the Roman Law, from certain muddy hypotheses of certain Greek philosophers, touching the measure or test of positive law and morality .3 V. From the jus moribus constitutum, the jus prudentibus compositum, the natural law of modern writers upon juris- prudence, and the equivalent jus gentium of the jurists styled classical, I shall pass to the distinction between law of domestic growth and law of foreign original: the so-called 'jus receptum.' For here also, the sources or fountains of laws are commonly confounded with their occasions, or with the motives to their establishment. As obtaining in the nation wherein it is received, the so called jus receptum is not of foreign original, but is law of domestic manufacture or domestic growth. As obtaining in the nation wherein it is received, it is a law fashioned by the tribunals of that nation on law of a foreign and independent community. For example : The Roman Law, as it obtains in Germany, is not law emanating from Roman lawgivers. It is law made by German lawgivers, but moulded by its German authors on a Roman original or model. Passing from the jus receptum, I shall advert to the positive law, closely analogous to the jus receptum, which is fashioned by judicial decision on positive international morality. VI. Equity sometimes signifies a species of law. But, as used in any of the significations which are oftener and more properly annexed to it, it is not the name of a species of law. Course of Lectures. 39 Of the latter significations, that which is most remarkable, l ect. and which I shall therefore explain with some particularity, XXXIX~ may be stated briefly thus. -^-Equity often signifies the analogy, v —"^ — proportion, or equality, which is the basis of the spurious inter- pretation styled extensive*! As signifying a species of law, the term equity is confined exclusively to Roman and English jurisprudence. The law, moreover, of which it is the name in the language of English jurisprudence, widely differs from the law which it signifies in the language of the Roman. Consequently, its import is not involved by the principles of general jurisprudence, but lies in the particular histories of those particular systems. But since this talk of equity has obscured the rationale of law, and since an attempt should be made to dispel that thick obscurity, I shall here digress, for a time, from the region of philosophical or general, to the peculiar and narrower provinces of Roman and English jurisprudence. Having sketched an historical outline of the jus prcetoriwm (which is intimately connected with the jus gentium,, as this last was understood by the earlier Roman lawyers), I shall briefly compare the equity dispensed by the Roman Prastors with the equity administered by the English Chancellors. From which brief comparison it will amply appear, that the distinction of positive law into law and equity (or jus civile and jus prcetoriumri) arose in the Roman, and also in the English nation, from circumstances purely anomalous, or peculiar to the particular community. And from which brief comparison it will also amply appear, that the distinction is utterly sense- less, when tried by general principles ; and is one prolific source of the needless and vicious complexness which disgraces the systems of jurisprudence wherein the distinction obtains. VII. From the sources of law, and the modes wherein it begins, I shall turn to the modes wherein it is abrogated, or wherein it otherwise ends. LAW CONSIDERED WITH REFERENCE TO ITS PUR- POSES, AND WITH REFERENCE TO THE SUBJECTS ABOUT WHICH IT IS CONVERSANT. I. There are certain rights and duties, with certain capacities lect. XL and incapacities to take rights and incur duties, by which persons, &c - as subjects of law, are variously determined to certain classes. The rights, duties, capacities, or incapacities, which deter- 4-0 Outline of the mine a given person to any of these classes, constitute a condition or status which the person occupies, or with which the person is invested. One and the same person may belong to many of these classes, or may occupy, or be invested with, many conditions or status. For example : One and the same person, at one and the same time, may be son, husband, father, guardian, advocate or trader, member of a sovereign number, and minister of that sovereign body. And various status, or various conditions, may thus meet or unite, in one and the same person, in infinitely various ways. The rights, duties, capacities and incapacities, whereof con- ditions or status are respectively constituted or composed, are the appropriate matter of the department of law which com- monly is named the haw of Persons : Jus quod ad Personas pertinet. Less ambiguously and more significantly, that de- partment of law might be styled the 'Law of Status.' For though the term persona is properly synonymous with the term status, such is not its usual and more commodious signification. Taken with its usual and more commodious signification, it denotes homo or man (including woman and child), or it denotes an aggregate or collection of men. Taken with its usual and more commodious signification, it does not denote a status with which a man is invested. The department, then, of law which is styled the Law of Persons, is conversant about status or conditions : or (expressing the same thing in another form) it is conversant about persons (meaning men) as bearing or invested with persons (meaning status or conditions). The department of law which is opposed to the Law of Persons, is commonly named the Law of Things : Jus quod ad Res pertinet. The explanation of which name needs a disquisi- tion too long for the present outline. 7 The Law of Things is conversant about matter which may be described briefly in the following manner : It is conversant about rights and duties, capacities and incapacities, as abstracted from the rights and duties, capacities and incapacities, whereof conditions or status are respectively constituted or composed : or (changing the expression) it is conversant about rights and duties, capacities and incapacities, "The explanation to be inserted des Eechts, vol. ii. p. i. et seq."' (MS. from Lecture XL. See Thibaut, "Ver- note by the Author.) suche fiber einzelne Theile der Theorie Course of Lectures. 41 in so far as they are not constituent or component elements of Lect. XL status or conditions. It is also conversant about persons, in so far as they are invested with, or in so far as they are subject to, the rights and duties, capacities and incapacities, with which it is occupied or concerned. — It is conversant about acts, for- bearances, and things, in so far as they are objects and subjects of rights and duties, and in so far as they are not considered in the Law of Persons : for acts, forbearances, and things, are so far considered in the Law of Persons, as they are objects and subjects of the rights and duties with which the Law of Persons is occupied or concerned. It is also conversant about persons as subjects of rights and duties, in so far as they are not con- sidered from that aspect in the Law of Persons or Status. II. Considered with reference to its different purposes, and with reference to the different subjects about which it is con- versant, law may be divided in various ways. But of all the main divisions which it will admit, the least inconvenient is the ancient division, the import whereof I have now attempted to suggest. Considered with reference to its purposes and subjects, law will therefore be divided, in the course which I intend, into Law of Things and Law of Persons. VIn the institutional or elementary writings of the classical Roman jurists, who were the authors or inventors of this celebrated division, the Law of Persons preceded the Law of Things^ But for various reasons, to which I shall advert immediately, I begin with the Law of Things, and conclude with the Law of Persons. But before I consider the Law of Things, or the Law of Persons, I shall state and illustrate the import and uses of this ancient and celebrated division. And in order to that end, I shall proceed in the following manner : — 1. I shall try to define or determine the notion of status or condition : for that essential or necessary notion is the basis or principle of the division. 2. I shall show that the division is merely arbitrary, although it is more commodious than other divisions, and although the notion which is its basis or principle, is essential or necessary. 3. I shall show the uses of the division; and shall contrast it with other divisions which have been, or might be, adopted. 4. I shall state the import of the division, as it was conceived by its authors, the classical Roman jurists, in their institutional or elementary writings. I shall show that their arrangement of the Roman Law often departs from the notion which is the basis of the division in question, and on which the whole of their arrangement ultimately rests. More especially, I shall &c. 42 Outline of the show that the matter of jus actionum, which they placed on a line with jus personarum et rerum, should not be put into a department distinct from the two last, but ought to be dis- tributed under both : that the main division of law ought to be twofold only, Law of Things and Law of Persons : and that the classical Roman jurists therefore fell into the error of co-ordinat- ing certain species with the genera of which they are members. 5. The division of law into Law of Things and Persons, is obscured by the conciseness and ambiguity of the language wherein it is commonly expressed. Of that obscurity I shall endeavour to clear it. 6. I shall show that Blackstone and others, probably misled by that conciseness and ambiguity, have misapprehended grossly the true import of the division, and have turned that elliptical and dubious language into arrant jargon. From the attempt which I have made above to suggest the import of the division, it may be inferred that the Law of Things is concerned with principles or rules which commonly are more general, or more abstract, than the principles or rules contained in the Law of Persons : that the principles or rules with which the former is concerned, commonly sin, by reason of that greater generality, through excess or defect : and that the narrower principles or rules contained in the latter, commonly modify the larger principles or rules about which the former is conversant. Now since a modification is not to be understood, if that which is modified be not foreknown, the Law of Things should not follow, but should precede the Law of Persons. For which reason, with various other reasons to be stated in the lectures, I consider the two departments in that order. The division in question, like most attempts at scientific arrangement, is far from attaining perfect distinctness. Its two compartments frequently blend, or frequently run into one another. Consequently, as I travel through the Law of Things, I shall often be compelled to touch, by a somewhat inconvenient anticipation, upon a portion of the Law of Persons. Note. — In his 'Analysis of the Law,' which abounds with acute and judi- cious femarks, it is stated expressly by Sir Matthew Hale, that the Law of Things should precede the Law of Persons. He says that the student should begin with the jus rerum: 'for the jus personarum contains matter proper for the study of one that is well acquainted with the jus rerwm.' It is worthy of remark, that the order recommended by Hale is the order of the Prussian Code. The admirable Suarez, under whose superintendence the Code was compiled, assigns the following reason for his preference of that order to the method of the Classical Jurists : — Course of Lectures. 43 ' Keflecting on the departments of law which are styled the Law of Persons Lect. XL and the Law of Things, we shall find that the two departments are mutually *°- related : that each contains matter which it is necessary we should know, before we can know correctly the appropriate subject of the other. But such of these praecognoscenda as are contained by the Law of Things, are far more numerous and far more weighty than such of these praecognoscenda as are contained by the Law of Persons. For where the subject of either is implicated with that of the other, the former is commonly concerned with some more general rule, which by reason of its greater generality, sins through excess or defect : whilst the latter is commonly concerned with some less general division, by which that rule is pruned of its excesses, or by which its defects are supplied.' LAW OF THINGS. I. There are facts, or eje^Jg from which rights and duties Lect. arise, which are legal causes or antecedents of rights and duties, 2^£S' or of which rights and duties are legal effects or consequences. There are also facts or events which extinguish rights and duties, or on which rights and duties terminate or cease. The events which are causes of rights and duties, may he divided in the following manner: namely, into acts, forbear- ances, and omissions, which are violations of rights or duties and events which are not violations of rights or duties. Acts, forbearances, and omissions, which are violations of rights or duties, are styled delicts, injuries, or offences. Rights and duties which are consequences of delicts, are sanctioning (or preventive) and remedial (or reparative). In other words, the ends or purposes for which they are conferred and imposed, are two : first, to prevent violations of rights and duties which are not consequences of delicts : secondly, to cure the evils, or repair the mischiefs, which such violations engender. Rights and duties not arising from delicts, may be distin- guished from rights and duties which are consequences of delicts, by the name of primary (or principal). Rights and duties arising from delicts, may he distinguished from rights and duties which are not consequences of delicts, by the name of sanctioning (or secondary). My main division of the matter of the Law of Things, rests upon the basis or principle at which I have now pointed : namely, the distinction of rights and of duties (relative and absolute), into -primary and sanctioning. Accordingly, I dis- tribute the matter of the Law of Things under two capital departments. — 1. Primary rights, with primary relative duties. 2. Sanctioning rights, with sanctioning duties (relative and 44 Outline of the Lect. absolute 1 ) : Delicts or injuries (which, are causes or antecedents XLV&c. „ ,/ . . , , J , , ,. v N . , , , • — , — • 01 sanctioning rights and duties) included. II. The basis of my main division of the matter of the Law of Things, with the two capital departments under which I distribute that matter, I have now stated or suggested. Many of the sub-departments into which those capital departments immediately sever, rest upon a principle of division which I shall expound in my preliminary lectures^ but which I may indicate commodiously at the present point of my outline. The principle consists of an extensive and important dis- tinction, for which, as conceived with the whole of its extent and importance, we are indebted to the penetrating acuteness of the classical Roman jurists, and to that good sense, or rectitude of mind, which commonly guided their acuteness to true and useful results. Every student of law who aspires to master its prin- ciples, should seize the distinction in question adequately as well as clearly ; and should not be satisfied with catching it, as it obtains here or there. For the difference whereon it rests, runs through every department of every system of jurispru- dence : although, in our own system, the difference is far from being obvious, and although it is impossible to express it, sufficiently and concisely at once, without a resort to terms which are unknown to the English Law, and which may appear uncouth and ridiculous to a merely English lawyer. The distinction in question is a distinction which obtains between rights, and which therefore obtains, by necessary implication, between the relative duties answering to rights. It may be stated thus : Every right, be it primary or sanctioning, resides in a person or persons determinate or certain : meaning by a person deter- minate, a person determined specifically. And it avails against a person or persons (or answers to a relative duty incumbent on a person or persons) other than the person or persons in whom it resides. But though every right resides in a person or persons deter- minate, a right may avail against a person or persons determinate, or against the world at large. In other words, the duty implied by the right, or to which the right corresponds, may lie exclu- sively on a person or persons determinate, or it may lie upon persons generally and indeterminately. Duties answering to rights which avail against the world at large, are negative : that is to say, duties to forbear. Of duties answering to rights which avail against persons determinate, Course of Lectures. 45 some are negative, but others, and most, are 'positive : that is to Lect. say, duties to do or perform. ^~^J' A right availing against the world at large is defined by Grrotius and others, thus ; facultas personae competens sine respectu ad certam personam.: a right availing exclusively against a person or persons determinate, thus ; facultas personae competens in certam personam. By most of the modern Civilians, though not by the Roman Lawyers, rights availing against the world at large are named jura in rem : rights availing against persons determinate, jura in personam,, or jura in personam certam. And by these different names of rights in rem, and rights in personam., I distinguish rights of the former from rights of the latter description. — My reasons for adopting them in preference to others, I shall assign in my lectures : wherein I shall endeavour to clear them of obscurity, and shall contrast them with the equivalent names of the Roman Lawyers. The relative duties answering to rights in rem., might be distinguished conveniently from duties of the opposite class, by the appropriate name of offices : the relative duties answering to rights in personam, by the appropriate name of obligations. Note. — In the writings of the Boman Lawyers, the term obligatio ia never applied to a duty which answers to a right in rem. But, since they have no name appropriate to a. right in personam, they use the term obligatio to denote a right of the class, as well as to denote the duty which the right implies. Jus in rem or jura in rem, they style dominium or dominia (with the larger meaning of the term) ; and to dominia (with that more extensive meaning), they oppose jura in personam, by the name of obligationes. To exemplify the leading distinction which I have stated in general expressions, I advert (with the brevity which the limits of an outline command) to the right of property or ownership, and to rights arising from contracts. — The proprietor or owner of a given subject has a right in rem : since the relative duty answering to his right is a duty incumbent upon persons generally and indeterminately, to forbear from all such acts as would hinder his dealing with the subject agreeably to the lawful purposes for which his right exists. But if I singly, or I and you jointly, be obliged by bond or covenant to pay a sum of money, or not to exercise a calling within conventional limits, the right of the obligee or covenantee is a right in personam, : the relative duty answering to his right being an obligation to do or to forbear, which lies exclusively on a person or persons determinate. 46 Outline of the tt v* ^^" With * ne ^ e ^P °^ w hat I have premised, I can now v — ,-— '' indicate the method or order wherein I treat or consider the matter of the Law of Things. That method may be suggested thus : The matter of the Law of Things, I arrange or distribute under two capital departments. The subjects of the first of those capital departments are primary rights, with primary relative duties : which I arrange or distribute under four sub-departments. — ^ Rights in rem as existing per se, or as not combined with rights in personam. 2. Rights in personam as existing per se, or as not combined with rights in rem. 3. Such of the combinations of rights in rem and rights in personam, as are particular and comparatively simple. 4. Such universities of rights and duties (or such complex aggre- gates of rights and duties) as arise by universal succession. Sanctioning rights (all of which are rights in personam), sanctioning duties (some of which are relative, but others of which are absolute), together with delicts or injuries (which are causes or antecedents of sanctioning rights and duties), are the subjects of the second of the capital departments under which I arrange or distribute the matter of the Law of Things. But before I proceed to those capital departments, I shall distribute Things, as subjects of rights and duties, under their various classes. And before I proceed to those capital depart- ments, I shall remark generally upon Persons, as subjects of rights and duties; upon Acts and Forbearances, as objects of rights and duties ; and upon Facts or Events, as causes of rights and duties, or as extinguishing rights and duties. Lect. XL VII &c. Primary Rights, with primary relative Duties. Rights in rem, as existing per se, or as not combined with rights in personam. The following is the matter of this sub-department, and the following is the order in which that matter will be treated. I. As the reader may infer from a foregoing part of my outline, and as I shall show completely in my preliminary lectures, the expression in rem, when annexed to the term right, does not denote that the right in question is a right over a thing. Instead of indicating the nature of the subject, it points at the compass of the cjOTrelatiijg djrty. lit denotes that the relative duty lies upon persons generally, and is not exclusively incumbent upon a person or persons determinate. ] In other Course of Lectures. 47 words, it denotes that the right in question avails against the world at large. Accordingly, some rights in rem are rights over things: others are rights over persons : whilst others have no subjects (persons or things) over or to which we can say they exist, or in which we can say they adhere. — For example : Property in a horse, property in a quantity of corn, or property in, or a right of way through a field, is a right in rem over or to a thing, a right in rem inherjjjg in a thing, or a right in rem whereof the subject is a thing. — The right of the master, against third parties, to his slave, servant, or apprentice, is a right in rem over or to a person. It is a right residing in one person, and inhering in another person as its subject. — The right styled a m^qnppjoly, is a right in rem which has no subject. There is no specific subject (person or thing) over or to which the right exists, or in which the right inheres. The ojjicium or common duty to which the right corresponds, is a duty lying on the world at large, \o forbear from selling commodities of a given description or class : but it is not a duty lying on the world at large, to forbear from acts regarding determinately a specifically determined subject. A man's right or interest in his reputation or good name, with a multitude of rights which I am compelled to pass in silence, would also be found, on analysis, to avail against the world at large, and yet to be wanting in persons and things which it were possible to style their subjects. I shall therefore distinguish rights in rem. (their answering relative duties being implied) with reference to differences be- tween their subjects, or between the aspects of the forbearances which may be styled their objects. As distinguished with reference to those differences, they will fall (as I have intimated already) into three classes. — ^. Rights in rem of which the subjects are things, or of which the objects are such forbear- ances as determinately regard specifically determined things. 2, Eights in rem of which the subjects are persons, or of which the objects are such forbearances as determinately regard speci- fically determined persons. 3. Rights in rem without specific subjects, or of which the objects are such forbearances as have no specific regard to specific things or persons. II. By different rights in rem over things or persons, the different persons in whom they respectively reside are empowered to derive from their respective subjects different quantities of or services. Or (changing the expression) the different Lbct. XLVIII-L uses persons in whom they respectively reside, are empowered to use 4§ Outline of the y^S?- or deal with their respective subjects in different degrees or to different extents. Or (changing the expression again) the differ- ent persons in whom they respectively reside, are empowered to turn or apply their respective subjects to ends or purposes more or less numerous. — And such differences obtain between such rights, independently of differences between their respective durations, or the respective quantities of time during which they are calculated to last. Of such differences between such rights, the principal or leading one is this. — 1. By virtue of some of such rights, the entitled persons, or the persons in whom they reside, may use or deal with the subjects of the rights to an extent which is ^incapable of exact circumscription, although it is not unlimited, j Or (changing the expression) the entitled persons may apply the subjects to purposes, the number and classes of which cannot be defined precisely, although such purposes are not unrestricted. For example : The proprietor or owner is empowered to turn or apply the subject of his property or ownership, to uses or pur- poses which are not absolutely unlimited, but which are incapable of exact circumscription with regard to class or number. rThe right of the owner, in respect of the purposes to which he may turn the subject, is only limited, generally and vaguely, by all the rights of all other persons, and by all the duties (absolute as well as relative) incumbent on himself J? He may not use his own so that he injure another, or so that he violate a duty (relative or absolute) to which he himself is subject. But he may turn or apply his own to every use or purpose which is not inconsistent with that general and vague restriction. — 2. By virtue of other of such rights the entitled persons, or the persons in whom they reside, may merely use or deal with their subjects, to an extent exactly circumscribed (at least in one direction). Or (changing the expression) they may merely turn them to purposes defined in respect of number, or, at least, in respect of class. For example : He who has a right of way through land owned by another, may merely turn the land to purposes of a certain class, or to purposes of determined classes. He may cross it in the fashions settled by the grant or prsescrip- tion, biit those are the only purposes to which he may turn it lawfully. A right belonging to the first-mentioned kind, may be styled dominion, property, or ownership, with the sense wherein do7ninion is opposed to servitus or easement. As contradistin- guished to a right belonging to the first-mentioned kind, a right Course of Lectures. 49 belonging to the last-mentioned kind may be noted by one or Lect. another of the last-mentioned names. — Dominion, property, or -. ' ownership, is a name liable to objection. For, first, it may import that the right in question is a right of unmeasured duration, as well as indicate the indefinite extent of the pur- poses to which the entitled person may turn the subject. Secondly : It often signifies property, with the meaning wherein property is distinguished from the right of possession to which I shall advert below. Thirdly : Dominion, with one of its meanings, is exactly coextensive with jus in rem, and applies to every right which is not jus in personam. — For various reasons which I shall produce in my lectures, a right belonging to the last-mentioned kind is not denoted adequately by the 'servitus' of the Roman, or by the 'easement' of the English law. — But in spite of the numerous ambiguities which encumber these several terms, I think them less incommodious than the newly devised names by which it were possible to distinguish the rights of the two kinds. LFor newly devised names, however significant and *" determinate, commonly need as frequent explanation as the ambiguous but established expressions which they were intended to supplant* And newly devised names are open to a great inconvenience from which established though ambiguous expres- sions are completely exempt. They are open to that undiscerning, yet overwhelming ridicule, which is poured upon innovations in speech by the formidable confederacy of fools : who being incapable of clear and discriminating apprehension, cannot per- ceive the difficulties which the names were devised to obviate, though they know that their ears are jingling with novel and grating sounds. With the help of what I have premised, 1 can now indicate the principal matters which I shall pass in review at this point of my Course. — 1. I shall consider in a general manner such distinctions between rights in rem as are founded on differences between the degrees wherein the entitled persons may use or deal with the subjects. 2. I shall consider particularly that leading distinction of the kind, which may be marked with the opposed expressions dominium, et servitus, or ownership and easement : understanding the expression dominium, or owner- ship, as indicating merely the indefinite extent of the purposes to which the entitled person may turn the subject of the right. 3. I shall consider the various modes of dominion or ownership, and shall advert to the various classes of servitude or easements. 4. Although they are incapable of exact circumspection, the vol. 1. E 5° Outline of the TT ^5?^- purposes to which, the owner may turn the subject of his owner- > , < ship, are not exempt from restrictions. The oblique manner wherein the restrictions are set, I shall attempt to explain : an attempt which will lead me to consider generally, the actual and possible modes of defining rights and duties, with the approach to completeness and correctness whereof the process admits. Lect. LI HI. Whether they be rights to specific subjects, or rights without such subjects; and whatever be the purposes to which the entitled persons may turn their subjects; rights in rem are distinguishable by differences between the quantities of time during which they are calculated to last. As distinguishable by differences between their respective durations, rights in rem will be considered in the following order. — Rights in rem are rights of unlimited, or rights of limited duration. Every right of unlimited duration, is also a right of unmeasured duration : that is to say, a right of which the duration is not exactly defined. But of rights of limited duration, some are rights of unmeasured duration, whilst others are rights of a duration exactly defined or measured. For example : An estate in fee simple, or property in a personal chattel, is a right of unlimited, and therefore of unmeasured duration . t An estate for life, is a right of unmeasured, but limited duration.^ The interest created by a lease for a given number of years, is a right of a duration limited and measured. — Accordingly, I shall distinguish rights of unlimited, from rights of limited duration : and I shall distinguish rights of limited, into rights of unmeasured, and rights of measured duration. Differences between the degrees wherein the entitled persons may use or deal with the subjects, are related to differences between the durations of the rights. The several relations between those respective differences I shall endeavour to explain. Lect. LIII TV. Whether they be rights to specific subjects, or rights without such subjects; whatever be the purposes to which the entitled persons may turn their subjects; and whatever be the quantities of time during which they are calculated to last; rights in rem are distinguishable by the following differences. Qf rights in rem, some are present or vested : others are future, contingent, or merely inchoate. — Vested rights essentially differ from one another, as well as from rights which are con- tingent. For in some cases of vested rights, the party entitled, or the party in whom it resides, may exercise the right presently. Course of Lectures. 51 But in other cases of vested right, the exercise of the right is Lect. LIII presently suspended by the presence of an anterior and prefer- "' able right. — And whether a right be vested or contingent, it may be liable to end, on the happening of a given event, before the lapse of its possible duration. Upon these differences, and the distinctions resulting from these differences, I shall touch briefly in this sub-department : postponing a larger explanation to that subsequent point of my Course, at which I shall consider the trust-substitutions and entails of the Roman and English Law. V. 8 I shall consider the various events from which rights Lect. LIV in rem arise, with the various events by which they are ex- LVIII tinguished : reserving, however, an exact account of prescription, until I shall have duly analysed the right of possession. VI. If one person exercise a right residing in another person, but without authority from the latter, and without authority from those through whom the latter is entitled, the former acquires, by his unauthorised or adverse exercise, the anomalous right which is styled the right of possession. This general description of the right of possession must, however, be taken with the following limitation. — The person who possesses adversely, or who exercises the right of another without the requisite authority, does not acquire thereby the right of possession, in case his adverse possession began vi, or arose through any of the means which fall within the name of violence. t The right of possession must be distinguished from the right of possessing, or (changing the phrase) from the right to possess : for the right of possessing, or the right to possess, is a property or integrant part of the right of possession itself J[ and also of numerous rights which widely differ from the latter. In other words, the right of possessing, considered generally, may arise from any of various titles or causes : but the peculiar right of possessing which is styled the right of possession, is a right of possessing that arises exclusively from the fact of an adverse possession. Although it arises from actual possession, the right in rem which is styled the right of possession, must also be distin- guished from the rights in rem which arise from occupation or occupancy. For the facj of possessing which is styled occupation 8 It is in the course of the develop- lectures break off. See Lecture L VIII, ment of this fifth head of the sub- and the observations there placed.— department here treated of, that the R. C. 52 Outline of the or occupancy, consists in the possession of a something that is res nullius. But the fact of possessing which gives the right of possession, consists in the adverse exercise, by the person who acquires the right, of a right residing in another. Consequently, the following description of the right of possession has all the exactness which accords with extreme brevity. — It is that right to possess (or to use or exercise a right) which springs from the fact of an adverse possession not beginning through violence. As against all but the person whose right is exercised adversely, the person who acquires the right of possession is clothed with the very right which he affects to exercise. And as against the person whose right is exercised adversely, he may acquire the very right which he affects to exercise through the title, or mode of acquisition, styled prescription. Or (adopting a current but inadequate phrase) the right of possession ripens, by prsescription, into the right of dominion or property. Note. — The right of possession strictly and properly so called, or the right of possession considered as a substantive right, , is a right that arises exclusively from the fact of an adverse possession. But the term right of possession is not unfrequently employed with an extremely large signification. Taking the term with this very extensive meaning, the right of possession arises from an actual possession, whether the actual possession be adverse or not. For ex- ample : It is said that the dominus in actual possession, has a, right of possession which arises from that actual possession, and which is completely independent of his right of dominion. But (as I shall show in my lectures) the right of possession considered as a substantive right, is a right that arises exclusively from the fact of an adverse possession : the so called right of possession which arises from an actual possession not adverse, being a property of another right, or being an integrant part of another right. For example : It is absurd to ascribe to the dominus in possession, a right of possession inde- pendent of his right of dominion : for if the dominus actually possess, it is as dominus that he actually possesses. As I shall show in my lectures, the term right of possession acquired the large signification to which I have adverted above, in consequence of an extension of such possessory remedies as in their origin were appropriate to parties invested with the right of possession strictly and properly so called. These possessory remedies, though originally appro- priate to such parties, were afterwards extended to any possessors who had been wrongfully disturbed in their actual possessions. In the Roman Law, for example, a certain interdict (closely analogous to an action of ejectment) was originally appropriate to parties invested with the right of possession strictly and properly so called. But it was extended to the dominus who had been wrongfully evicted from his actual possession. For by resorting to an interdict grounded on his actual possession, instead of resorting to an action grounded on his right of dominion, he avoided the inconvenient necessity of proving his right of dominion, and had merely to demonstrate his actual possession at the time of the wrongful eviction : just as a. party who is seised or entitled in fee, Course of Lectures. 53 recovers through an action of ejectment, from an ejector without title, by merely proving his actual possession at the time of the wrongful ejectment. And since the dominus recovered by the interdict, on merely proving his actual possession, he recovered, in a certain sense, through his right of possession merely. But yet it were absurd to affirm that he had any right of possessing independently of his right of dominion; or to liken the right of possessing which is parcel of the right of dominion, to the substantive right of possessing which arises solely or exclusively from the fact of an adverse possession. The above-mentioned extension of possessory remedies, has rendered the right of possession one of the darkest of the topics which the science of jurisprudence presents. But there is not intrinsically any remarkable difficulty in the right of possession which is strictly and properly so called : that is to say, which arises solely or exclusively from the fact of an adverse possession, and which is the basis of acquisition by usucapion, and of other acquisition by prescription. At this point of my Course, I shall therefore proceed in the following manner. I shall analyse the anomalous and perplexed right which is styled the right of possession. Performing the analysis, I shall happily he ahle to borrow from a celebrated treatise by Von Samigny, entitled Das Recht des Besitzes, or De Jure Posses- sionis : of all books upon law, the most consummate and masterly ; and of all books which I pretend to know accurately, the least alloyed with error and imperfection. Having analysed the right of possession, I shall turn to the title, or the mode of acquisition, wherein the right of possession is a necessary ingredient : namely, usucapion and other prescrip- tion. I shall consider generally the nature of the title; and shall advert to the respective peculiarities of the Roman and English Law, in regard to the terms or conditions whereon the title is allowed. — If I find it possible or prudent to touch that extensive subject, I shall proceed from title by prescription to the connected subject of registration. Rights in personam, as existing per se, or as not combined with rights in rem. Rights in personam, including the obligations which answer to rights in personam, arise from facts or events of three distinct natures : namely, from contracts, from quasi-contracts, and from delicts. The only rights in personam which belong to this sub- department, are such as arise from contracts and quasi-contracts. Such as arise from delicts, belong to the second of the capital departments under which I arrange or distribute the matter of the Law of Things. Note— Perceiving that the rights ex delicto were generally rights in personam, but not adverting to the importance of marking their sanctioning 54 Outline of the character, the classical Boman jurists, in their institutional or elementary writings, arranged them with rights ex contractu and quasi ex contractu: with rights which also are rights in personam, but are not bottomed, like rights ex delicto, in infringements of other rights. And hence much of the obscurity which hangs over the Institutes of their imitator, the Emperor Justinian. The matter of this sub-department will be treated in the following order. I. I shall define or determine the meanings of certain lead- ing expressions : viz. Promise : Pollicitation : Convention or Agreement : Pact : Contract : Quasi-Contract. II. Having defined the meanings of those leading expres- sions, I shall consider particularly the nature of contracts. I shall distinguish contracts properly so called from certain facts or events which, are styled contracts, but which virtually are alienations or conveyances. I shall distribute contracts under their various classes : expounding the distinctions (with many other distinctions) between unilateral and bilateral, principal and accessory, nominate and innominate contracts. Expounding this last distinction, I shall show what is meant by the essence, and what by the accidents of a contract. I shall notice the solemnities or formalities which are essential to the validity of certain contracts : and, thereupon, I shall analyse the rationale of the doctrine of considerations. Finally, I shall turn to the events whereon, or to the modes wherein, the rights and obliga- tions arising from contracts, cease or are extinguished. III. From contracts, I shall proceed to quasi-contracts : that is to say, facts or events which are neither contracts nor delicts ; but which, inasmuch as they engender rights in personam, and obligations, are, in that respect, analogous to contracts. I shall notice the frequent confusion of merely quasi-contracts with contracts which properly are such, although they are tacit or implied. I shall show that quasi- qgntr^ctg are analogous to the fancied contracts from which speculators on government have derived the duties of the governed : and I shall show the causes of the tendency to imagine or feign contracts, for the purpose of explaining the origin of duties which emanate from other sources. I shall advert to the classes of quasi-contracts; and to the events whereon, or the modes wherein, the rights and obligations which they generate, cease or are extinguished. Such of the combinations of rights in rem and rights in personam, as are particular and comparatively simple. Though jus in rem, or jus in personam,, may exist separately, Course of Lectures. 55 or uncombined with the other, both may vest uno ictu in one and the same party : or (changing the expression) an event which invests a party with a right in rem or in personam, may invest the same party with a right in personam or in rem. As examples of such events, I may mention the following : namely, a conveyance with a covenant for title : a hypotheca or mort- gage, express or tacit : a sale completed by delivery, with a warranty, express or tacit, for title or soundness. And, as I shall show in my lectures, many a fact or event which is styled simply a contract, is properly a complex event compounded of a conveyance and a contract, and imparting uno fiatu a right in rem and in personam. Such of the combinations or rights in rem and in personam as are particular and comparatively simple, are the matter of this sub-department. What I mean by their particular, or rather their singular, combinations, as distinguished from the universal aggregates which are the matter of the next sub-department, would scarcely admit of explanation within the limits of an out- line. In order to an explanation of my meaning, I must explain the distinction between singular and universal successors, or succession rei singula} and succession per universitatem : nearly the most perplexed of the many intricate knots with which the science of law tries the patience of its students. Such universities of rights and duties (or such com- plex aggregates of rights and duties) as arise by universal succession. The matter of this sub-department will be treated in the following order. I. The complex aggregates of rights and duties, which com- monly are named by modern Civilians, 'universitates juris,' will be distinguished from the aggregates or collections of things, which commonly are named by the same Civilians, 'universitates rerum sive facti.' — They will also be distinguished from the complex and fictitious persons (or the collective bodies of indi- vidual or physical persons), which are named by the Roman Lawyers, universitates or collegia, and by the English Lawyers, corporations aggregate. — The universities of rights and duties, which are the matter of this sub-department, will also be distin- guished from status or conditions. For the aggregates of rights ancT duties, capacities and incapacities, which are styled status or conditions, are, for the most part, juris universitates. II. Since all the universities of rights and duties, which are 5 6 Outline of the the matter of this sub-department, arise by universal succession, the distinction between singular and universal successors, or succession rei singulae and succession per universitatem, will be stated and explained. As I have already remarked, that knotty distinction would scarcely admit of explanation within the limits of an outline. But the following examples may suggest to the reflecting reader, the character of successors per universi- tatem, with the nature of the universitates to which such successors succeed. — The executor or administrator of a testator or intestate, with the general assignee of a bankrupt or insolvent, are universal successors. And, in respect of specialty debts due from the ancestor or devisor, the heir or devisee, general or particular, succeeds per universitatem. — The aggregate of rights and obligations which devolves from the testator or intestate to the executor or administrator, with that which passes from the bankrupt or insolvent to the general assignee of his estate and effects, are universities of rights and duties. And since all the obligations of a given class, which were due from the ancestor or devisor, attach at once upon the heir or devisee, that mass of obligations falls within the notion of a juris universitas. For every juris universitas bears one or both of the following characters. First : Where a universitas juris arises by universal succession, rights residing in, or obligations incumbent upon, a person or persons, pass uno ictu to another person or persons, and pass in genere and not per speciem. In other words, they pass or devolve at once or together, and they pass or devolve as belonging to their kinds or sorts, and not as determined by their specific or individual natures. Secondly : Whatever be its origin, a universitas juris, so far as it consists of rights, is of itself (or considered as abstracted from its component parti- culars), the subject of a right in rem. The party invested with a universitas juris, has a right in the aggregate availing against the world at large, even though all the rights which are con- stituent elements of the aggregate, be merely rights in personam, or availing against persons determinate. — I shall show in my lectures, that^every status or condition which is not purely burthensome, bears the last of these marks, and therefore is juris universitasZ I shall also explain in my lectures, why the right in rem over a juris universitas (considered as abstracted from its component particulars) stands out conspicuously in the Roman Law, and is far less obvious in the English. The legatee of a specific thing, the alienee of a specific thing by transfer inter vivos, or the assignee of a given bond Course of Lectures. 57 or other contract, are singular successors, or successors rei singula}. III. From the generic nature of universitates juris, and the peculiar nature of such of them as arise hy universal succession, I shall proceed to such of these last as are the matter of this sub-department. Now universitates juris which devolve to universal successors, and which are the matter of this sub- department, are of two kinds : 1. Universitates juris devolving from the dead as such : 2. Universitates juris devolving from the living, or devolving from the dead, hut not from the dead as such. And those two kinds I shall consider in that order. Universal successors succeeding to the dead as such, take ah intestato or ex testamento. Accordingly, I shall explain universal succession ah intestato, and universal succession ex testamento. And to exemplify my explanation of the distinction, I shall compare the characters of the Roman hceres legitimus, of the English administrator and next of kin, and of the English heir : of the Roman h&res testamentarius , of the English executor and residuary legatee, and of the English devisee general or particular. Note. — By the English lawyers, real rights (property in things real, or real property) are distinguished from personal rights (property in things personal, or personal property). These two classes of rights blend at so many points, that the difference between them cannot be described correctly in generic and concise expressions. £A correct description of the difference between the two classes of rights, would involve a complete description of the several or various rights which belong to those classes respectively.} Of the generic and concise descriptions which the difference in question will take, the following, I incline to believe, is the least remote from the truth. I. Real rights (property in things real, or real property) are rights which are inheritable : which (where they are transmissible to representatives) devolve ab intestato to heirs. Personal rights (property in things personal, or per- sonal property) are rights which are not inheritable : which (where they are transmissible to representatives) devolve ab intestato to administrators (or next of kin).f! The difference, therefore, between real and personal rights, mainly consists in this. According to the English law, succession ab intestato is of two descriptions : namely, succession by heirs (strictly and technically so called), and succession by administrators (or next of Tain). Rights devolv- ing ab intestato to successors of the former description, are real: rights devolving ab intestato to successors of the latter description, are personal. — It were easy to demonstrate, that the division of rights into real and personal (or the division of property into real and personal does not quadrate with the division of things into things immoveable and things moveable: It were also easy to demonstrate, that it does not quadrate with the division of things into things which are subjects of tenure and things which are not. As I have remarked alreadyjthe division of property into real and personal, is not susceptible of a precise generic description.^ He who would know precisely the meaning of the division in question, must master all the details 58 Outline of the which each of its compartments embraces. Or (changing the expression) the various details which each of its compartments embraces, are not connected by a common character or property, but form a heap, inevitably incondite of heterogeneous particulars.-E-This needless distinction betwen real and personal property, which is nearly the largest of the distinctions that the Law of England contains, is one prolific source of the unrivalled intricacy of the system, and of its matchless confusion and obscurity.j To the absence of this distinction (a cause of complexness, disorder and darkness, which naught but the extirpation of the distinction can thoroughly cure), the greater compactness of the Roman system, with its greater symmetry and clearness, are mainly imputable. CThere is not, indeed, in the Roman jurisprudence, the brevity and harmony of parts, with the consequent lucidity and certainty, which are essential to a system of law that were worthy of the prostituted name; a system of law that were truly a guide of conduct, and not a snare in the way of the parties bound to observe its provisions.* But, this not- withstanding, the Roman Law (mainly through the absence of the distinction between real and personal property) is greatly and palpably superior, con- sidered as a system or whole, to the Law of England. Turning from the study of the English to the study of the Roman Law, you escape from the empire of chaos and darkness, to a world which seems by comparison, the region of order and light. I. The distinction of the English lawyers, between real and personal rights, is peculiar to the systems of positive law which are mainly bottomed in feudal institutions.! As I have stated already, there is not in the Roman Law the faintest trace of it. According to the Roman Law, rights devolve ab intestato agreeably to a uniform and coherent scheme. It is true that rights are distinguished by most of the modern Civilians, into jura realia and jura personalia: and that this distinction of rights into jura realia and jura personalia, obtains in every system of particular and positive law, which is an offset or derivative of the Roman. But the distinction of the modern Civilians, between jura realia and jura personalia, is equivalent to the distinction, made by the same Civilians, between jura in rem and jura in personam: and it is also equivalent to the distinction, made by the Roman Lawyers, between dominia (with the larger meaning of the term) and obligationes. Real rights (in the sense of the English Lawyers) comprise rights which are personal as well as rights which are real (in the sense of the modern Civilians) : and personal rights (in the sense of the former) comprise rights which are real as well as rights which are personal (in the sense of the latter). The difference between real and personal rights (as the terms are understood by the modern Civilians) is essential or necessary. It runs through the English Law, just as it pervades the Roman : although it is obscured in the English, by the multitude of wanton distinctions which darken and deform the system. 1 But the difference between real and personal rights (as the terms are understood by the English Lawyers) is purely accidental. ^ And since this difference is purely accidental, it is not involved by general jurisprudence : for general jurisprudence, or the philosophy of positive law, is concerned with principles and distinctions which are essential or necessary. J Accordingly, I shall touch upon the difference in a merely incidental manner, and merely to illustrate principles and distinctions which the scope of general jurisprudence properly embraces. Course of Lectures. 59 Succession to the subject of a specific, or other particular legacy, is succession rei singula? : and it therefore belongs logi- cally to one or another of the three foregoing sub-departments. But since such succession, although it be singular, is succession ex testamento, it could not be considered, under any of those sub-departments, without an inconvenient anticipation of the doctrine of testaments. Accordingly, succession to the subject of a specific, or other particular legacy, will be considered at this point of this sub-department. — For a similar reason, the entails and trust-substitutions of the English and Roman law, will be postponed to the same point. According to the Roman law, the person who takes virtually by a trust-substitution, is always, in effect, successor singularis : but the subject of a trust-substitution is either a juris universitas or a res singula. According to the same system, every trust-substitution is created by testamentary disposition. And, according to the Law of England, an entail is created by testament or will, as well as by act inter vivos. I therefore shall find it expedient to postpone substitutions and entails, until I shall have passed in review the nature of a juris universitas , and of succession, universal and singular, ex testamento. — In libera republicd, and under the earlier Emperors, every disposition suspending the vesting of its subject, and almost every disposition restraining the power of alienation, was prohibited by the Roman Law; and such dispositions of the kind as it afterwards allowed, were created exclusively by testament or codicil, and in the circuitous and absurd manner of a fidei-commissum. Consequently, as succes- sion ex testamento will lead me to entails, so will entails conduct me to the nature of trusts : that is to say, to the nature of trusts in general, as well as to the fidei-commissa which are peculiar to the Roman Law, and to the uses and trusts (an offset of those fidei-commissa) which are peculiar to the Law of England. Having treated of universal successors succeeding to the dead as such, I shall treat of universal successors succeeding to the living, or succeeding to the dead, but not to the dead as such. And treating of universal successors of those generic characters, I shall consider particularly the succession per universitatem which obtains in cases of insolvency and of the consequent cessio bonorum. Note.— In this sub-department of the Law of Things, I shall consider universal succession as it obtains generally. In other words, I shall consider universal succession abstracted from persons, in so far as persons are invested with status or conditions. In some cases of universal succession, the succession is the consequence of certain status or conditions, or supposes the pre-existence of certain status 60 Outline of the or conditions : and in other cases of universal succession, certain parties are invested with conditions, in consequence of the succession itself. As examples of universal succession, the effect or cause of conditions, I adduce the following cases from the Eoman and English Law : namely, universal succession, ab intestato or ex testamento, to the rights and obligations of a freedman: universal succession, by the adopting father, to the rights and obligations of an abrogated son : universal succession, by the general assignees or trustees, to the rights and obligations of an insolvent trader. For through a distinction built on an essential difference, but carried to needless length and breeding needless complexness, the law of England, and of other modern nations, severs the insolvency of traders from other insolvency, and makes it the subject of a, peculiar system of rules. Now where universal succession is the effect or cause of conditions, it ought to be excluded from the Law of Things, and treated with the con- ditions from which it emanates, or of which it is the fountain or spring. But in spite of that exclusion, the consideration of the universal suc- cession which is matter for the Law of Things, involves large anticipations from the Law of Persons. For example : Succession ab intestato cannot be explained completely, without an explanation of consanguinity, or of cog- nation (sensu latiore) : whilst consanguinity cannot be explained completely, without a large anticipation from the law of marriage, or a long reference forward to the status of husband and wife. Wearing the peculiar form which it takes in the Eoman Law, succession ab intestato cannot be explained completely, without an explanation of cognation (sensu latiore), of the relation styled agnation, and also of that cognation which is contradistin- guished to agnation, and which therefore differs from cognation (in the larger meaning of the term). But since the relation styled agnation results from the patria potestas, the consideration of the Roman succession ab intestato, involves a double reference to the Law of Persons : namely, a reference to the status or conditions of pater et filius famitias, as well as to the status or conditions of husband and wife. As I shall show in my lectures, that portion of the Law of Things which is concerned with universal succession, is more implicated than any other with the Law of Persons or Status. If, indeed, it were closely analysed, the whole of that portion of the Law of Things might be found to consist of matter belonging logically to the Law of Persons, but interpolated in the Law of Things, for the sake of commodious exposition. As I treat of universal succession to intestates, testators, and insolvents, another implication of the parts of my subject will compel me to draw upon the second of those two capital departments under which I arrange or distribute the matter of the Law of Things. For right and obligations arising from delicts devolve or pass, in company with others, to the universal successors, or general representatives, of intestates, testators, and insolvents. Sanctioning Rights, with sanctioning Duties {relative and absolute) : Delicts or Injuries (which are causes or antecedents of sanctioning rights and duties) included. This is the second of the capital departments under which I arrange or distribute the matter of the Law of Things. Before I proceed to the sub-departments under which I Course of Lectures. 61 distribute the subjects of this second capital department, I shall distinguish delicts into civil injuries and crimes : or (what is the same process stated in different expressions) I shall distinguish the rights and duties which are effects of civil delicts, from the duties, and other consequences, which are effects of criminal. Having expounded the nature of the distinction between civil and criminal delicts, I shall distribute the subjects of this second capital department under two sub-departments. — 1. Rights and duties arising from civil injuries. 2. Duties, and other consequences, arising from crimes. Eights and duties arising from civil injuries. The matter of this sub-department will be treated in the following order. I. Civil injuries will be classed and described with refer- ence to the rights and duties whereof they are respectively infringements. II. Rights arising from civil delicts are generally rights in personam : that is to say, rights availing against persons certain, or rights answering to duties incumbent on determinate persons. The rights arising from civil delicts, including the relative duties answering to those rights, I distribute under two depart- ments : each of which two departments immediately severs into various sub-departments. The division of those rights into those two departments, rests upon a principle of division which may be stated thus : namely, the difference between the natures of the rights and duties whereof civil delicts are respectively infringements. Accordingly, rights arising from civil delicts which are infringe- ments of rights in rem, are the subjects of the first department. Rights arising from civil delicts which are infringements of rights in personam, are the subjects of the second department. The various sub-departments into which those two depart- ments immediately sever, rest upon a principle of division which may be stated thus : namely, the respective differ- ences between the immediate purposes which the rights and duties arising from civil delicts are respectively calculated to accomplish. Note. — In the language of the Roman Law, the term delict, as applied to civil injuries, is commonly limited to civil injuries which are infringe- ments of rights in rem. Violations of rights in personam, or breaches of contracts or quasi-contracts, are not commonly styled delicts or injuries, and are not commonly considered in a peculiar or appropriate department. In the Institutes of Gaius, as well as in those of Justinian, they are con- 62 Outline of the sidered with contracts and quasi-contracts, or with the primary rights in •personam, of which they are infringements. In the language of the English Law (here manifestly borrowing the language of the Roman), the term delict (in so far as the term is employed by English Lawyers) is also limited to civil injuries which are infringements of rights in rem. Remedies by action are not infrequently distinguished into actions ex delicto and actions ex contractu. The former are remedial of injuries which are infringements of rights in rem: the latter are remedial of breaches of contracts, and of breaches of quasi-contracts. Such, at least, is the nature of the distinction as conceived and stated generally. The various classes of actions having been much confounded, the foregoing general state- ment of the nature or rationale of the distinction, must be taken with numerous qualifications. For example : In case, strictly so called, the general issue is not guilty, and the ground of the action is properly a tort: that is to say, the ground of the action is properly a delict (in the narrower signification of the term to which I have now adverted). But, this not- withstanding, the action is frequently brought on breaches of contracts, and on breaches of quasi-contracts. — The department of the English Law which relates to rights of action, is signally impressed with the disgraceful character of the system : namely, a, want of broad and precise principles ; and of large, clear, and conspicuous distinctions. In the language of the Roman Law, the term delict has another and a larger meaning ; being co-extensive with the term injury, and signifying any violation of any right or duty. This is the meaning with which I employ the term, unless I employ it expressly with its narrower signification. Agreeably to the principles of division which I have stated or suggested above, the rights arising from civil delicts, including the relative duties answering to those rights, will be distributed under the two departments, and the various sub-departments, which are sketched or indicated below. 1. Rights arising from civil delicts which are infringements of rights in rem, are the subjects of the first department : which first department immediately severs into the four following sub-departments . If the user of a right in rem be prevented or hindered 'presently, and the preventive cause or hindrance can be removed or abated, the party injured by the prevention or hindrance, may be restored to the ability of exercising the right freely. Rights to such restoration are of two kinds. Some, and most, are rights of action: but others are exercised extra- judicially, and are matter for justification. A right of action to obtain possession of a house, or to procure the abatement of a nuisance which hinders the user of the house, is a right of the former kind. A right oi recapturing without resorting to action, is a right of the latter kind. Rights to such restoration, which might be styled significantly and shortly, ' rights of vindication,' are the subjects of the first sub-department. Course of Lectures. 63 If a violated right in rem be virtually annihilated by the injury, the only remedy of which the case will admit is satis- faction to the injured party. Where a prevention or hindrance opposed to the user of a right, has been withdrawn, or has otherwise ceased, satisfaction to the injured party for the past prevention or hindrance is the apt or appropriate remedy. And, generally, the apt or appropriate remedy for a past delict is satisfaction or compensation to the injured party for the damage or inconvenience which the party has suffered through or in consequence of the offence. — Rights to satisfaction, pecuniary or other, are the subjects of the second sub-depart- ment. If the user of a right in rein be prevented or hindered presently, the party injured by the prevention, or hindrance, has commonly a right to satisfaction for damage or inconvenience, as well as a right of restoration to the ability of free exercise. — Rights of vindication combined with rights to satisfaction, are ihe subjects of the third sub-department. Where an offence is merely incipient or impending, the offence may be stayed or prevented. For example : Forcible dispossession is prevented, and waste is prevented or stayed, by an interdict or injunction : or if I be threatened with an instant assault, I may prevent the approaching injury by repelling the assailant. — Rights of preventing or staying, judicially or extra- judicially, impending or incipient offences against rights in rem, are the subjects of the fourth sub-department. 2. Rights arising from civil delicts which are infringements of rights in personam, are the subjects of the second department : which second department immediately severs into the three following sub-departments. — First: Rights of compelling judici- ally or extra- judicially, the specific performance of such obliga- tions as arise from contracts and quasi-contracts : e.g. A right of compelling performance by action or suit : A right to an interdict or injunction, for the purpose of preventing the obligor or debtor from evading the fulfilment of ■ the obligation : A right of retainer or detention, by the creditor or obligee, of a thing or person which belongs to the obligor or debtor, but on which the obligee or creditor has expended money or labour. — Secondly : Rights of obtaining satisfaction, in lieu of specific performance, where obligees or creditors are content with compensation, or where specific performance is not possible, or where specific performance would not be advantageous to creditors, or would he followed by preponderant inconvenience to obligors or 64 Outline of the debtors. — Thirdly : Eights of obtaining specific performance in part, with satisfaction or compensation for the residue. Note. — I here shall analyse the principles whereon specific performance is rationally compelled. The caprices of the English Law with regard to specific performance, and with regard to the connected matter of recovery in specie, I shall try to explain historically. Travelling through the rights which arise from civil injuries, I shall note the respective applicability of those various remedies to the various cases of injury previously classed and described. III. Having classed and described civil injuries, and treated of the rights and duties which civil injuries engender, I shall consider the modes wherein those rights are exercised, and wherein those duties are enforced. In other words, I shall consider civil 'procedure. Now the pursuit of rights of action, with the conduct of the incidental defences, are the principal matter of that department of jurisprudence. The consideration of which matter will involve a consideration of the following principal, and of many subordinate, topics : The functions of judges and other ministers of justice. The rationale of the process styled 'pleading, with the con- nected rationale of judicial evidence. Judicial decisions, with their necessary or more usual con- comitants : namely, The interpretation or construction of statute law, or law established in the properly legislative mode : The peculiar process of induction (not unf requently confounded with the interpretation of" statute law) through which a rule made by judicial legislation, is gathered from the decision or decisions whereby it was established : The application of the law, be it statute law or a rule made judicially, to the fact, case, or species obveniens, which awaits the solution of the tribunal. The judgments, decrees, or judicial commands, which are con- sequent on judicial decisions. Appeals. Execution of judgments. Judgments considered as modes of acquisition : that is to say, not merely as instruments by which rights of action are enforced, but as causes of ulterior rights : e.g. as causes of liens, or tacit mortgages, given to plaintiffs on lands or moveables of defendants. Such judgments or decrees as virtually are mere solemnities adjected to conveyances or contracts. The explanation of which solemnities will involve an explanation of the distinction between voluntary and contentious jurisdiction. Note. — A right which arises from a judgment is often distinct from the Course of Lectures. 65 right of action which is pursued to judgment and execution. Arising directly from the ■judgment, it arises not from the injury which is the cause of the right of action, as from a mode of acquisition. Consequently, rights of the kind ought in strictness to be classed with rights which I style primary: that is to say, with rights which do not arise from delicts or offences. But the classing them with primary rights were followed by this inconvenience : that the writer were unable to explain them in a satisfactory manner, unless he anticipated the doctrine of injuries, of rights arising frnm injuries, and of civil procedure. As certain rights arising from judgment should in strictness be placed under a foregoing head, so should 'the functions of judges and other ministers of justice ' be placed under a following : namely, the Law of Persons. But if this matter, which logically belongs to that following head, were not anticipated under the present, the exposition of civil procedure would be incomplete. Whoever reads and reflects on the arrangement of » corpus juris, must perceive that it cannot be constructed with logical rigour. The members or parts of the arrangement being extremely numerous, and their common matter being an organic whole, they can hardly be opposed completely. In other words, the arrangement of a corpus juris can hardly be so constructed, that none of its members shall contain matter which logically belongs to another. If the principles of the various divisions were conceived and expressed clearly, if the departments resulting from the divisions were distinguished broadly, and if the necessary departures from the principles were marked conspicuously, the arrangement would make the approach to logical completeness and correctness, which is all that its stubborn and reluctant matter will permit us to accomplish. Duties and other consequences, arising from crimes. This is the second sub-department of the second of the capital departments under which I arrange or distribute the matter of the Law of Things. The matter of this sub-department will be treated in the following order. I. Duties are relative or absolute. A relative duty is implied by a right to which that duty answers. An absolute duty does not answer, or is not implied by, an answering right. As an example of an absolute duty, I may mention a duty to forbear from cruelty to any of the lower animals. For a necessary element of a right (implying or answering the duty) is wanting. There is no person, individual or complex, towards or in respect of whom the duty is to be observed. I have adduced the foregoing example of an absolute duty, on account of its extreme simplicity, and of the brevity with which it may be suggested. But, as I shall show in my preliminary lectures, absolute duties are very numerous, and many of them are very important. As I shall also show in my VOL. r. F 66 Outline of the preliminary lectures, there are three cases wherein a duty is absolute, or wherein it answereth not to an answering right; wherein it answers to nothing which we would call a right, unless we gave to the term so large and vague a meaning, that the term would denote, in effect, just nothing at all. The three cases may be stated briefly, in the following manner. — The duty is absolute, in case there be no -person, individual or complex, towards or in respect of whom the duty is to be observed. The duty is absolute, in case the persons, towards or in respect of whom the duty is to be observed, be uncertain or indeterminate. The duty is absolute, in case the only person, towards or in respect of whom the duty is to be observed, be the monarch, or. sovereign number, ruling the given community. Now absolute duties, like relative duties, are primary or sanctioning : that is to say, not arising from injuries, or arising from injuries. Again: Primary rights, with the primary relative duties which respectively answer to those rights, are the only subjects of the capital department to which I have given the title of 'primary rights and duties.' But primary absolute duties ought to be placed somewhere. And though the present sub- department be a member of the capital department to which I have given the title of ' sanctioning rights and duties,' primary absolute duties may be placed commodiously here. For in- fringements of duties primary and absolute, belong to the class of delicts which are styled crimes. Accordingly, I shall here interpolate a description of the primary absolute duties which are not appropriate subjects for the Law of Persons. As I have already remarked, such inter- polations of foreign matter cannot be avoided always. II. Having interpolated a brief description of primary absolute duties, I shall class and describe crimes (be they breaches of primary absolute, or of primary relative duties), with reference to the rights and duties whereof they are respectively infringements. III. Having classed and described crimes, I shall briefly touch upon the duties (all such duties being absolute) which arise from crimes. I shall also notice briefly those consequences of crimes which are styled, strictly and properly, punishments. IV. I shall advert to criminal procedure, with, what may be called, by a strict application of the name, police. In other words, I shall advert to the modes wherein crimes are pursued to punishment, with the precautions which may be taken to prevent them. Course of Lectures. 67 LAW OF PEESONS. Having made an attempt, at a previous point of my Course, to determine the notion of status or condition, I shall enter the department of law which is styled the Law of Persons, with an attempt to distribute status or conditions under certain principal and subordinate classes. Accordingly, I shall divide conditions into private and political. — I shall divide private conditions into domestic (or osconomical) and professional. — Certain conditions nearly related to the domestic, I shall place with the latter : styling the former, by reason of the analogy through which they are so related, quasi-domestic conditions. — Certain conditions which will not bend to my arrangement, I shall place on a line with private and political conditions, and shall style anomalous or miscellaneous. My arrangement, therefore, of status or conditions will stand thus : I shall distribute conditions under three principal classes : 1. Private conditions : 2. Political conditions : 3. Anomalous or miscellaneous conditions. And I shall distribute private condi- tions under two subordinate classes : 1. Domestic (or osconomical) and quasi-domestic conditions : 2. Professional conditions. Note. — According to the jurists of ancient Rome, and to the jurists of the modern nations whose law is fashioned on the Roman, the capital or leading division of the entire corpus juris is the division of jus into publicum and privatum. In other words, positive law (considered with reference to its different purposes and subjects) is divided by those jurists, at the outset of the division, into public and private. Now the name public law has two principal significations : one of which significations is large and vague ; the other, strict and definite. Taken with its large and vague signification, the name will apply indifferently (as I shall show in my lectures) to law of every department. The various writers, therefore, who take it with that signification, determine the province of public law in various and inconsistent ways. According to some, the province of public law comprises political conditions, together with civil procedure, and the law which is styled criminal : that is to say, the department of law which is concerned with crimes ; with the duties arising from crimes ; with the punishments annexed to crimes; and with criminal procedure and preventive policy. According to others, the province of public law embraces criminal law, but excludes civil procedure. According to others, its province rejects both. Whilst others (confounding positive law and positive morality) extend its province to the so-called law of nations, as well as to civil procedure and to the law which is styled criminal. But in one thing all of them agree. All of them distribute the entire corpus juris under two principal and contra- distinguished departments : namely, jus publicum and jus privatum. And, 68 Outline of the . consequently, all of them contradistinguish their so-called public law to the two principal and opposed departments of their so-called private law: namely, The Law of Persons and The Law of Things. Now, as I shall show in my lectures, this notable division and arrangement of the corpus juris is erroneous and pregnant with error : springing from a perplexed apprehension of the ends or purposes of law, and tending to generate a like apprehension in the helpless and bewildered student. As I shall show also, every department of law, viewed from a certain aspect, may be styled private ; whilst every department of law, viewed from another aspect, may be styled public. As I shall show further, public law and private law are names which should foe banished the science; for since each will apply indifferently to every department of law, neither can be used conveniently to the purpose of signfying any, As I shall show, moreover, the entire corpus juris ought to be divided, at the outset, into Law of Things and Law of Persons ; whilst the only portion of law that can be styled public law with a certain or determinate meaning, ought not to be contradistinguished to the Law of Things and Persons, but ought to be inserted in the Law of Persons, as one of its limbs or members. Taken with its strict and definite signification, the name public law is confined to that portion of law which is concerned with political conditions. Accordingly, I take the name with that its determinate meaning, and I deem that portion of law, a member of the Law of Persons. But to obviate a cause of misconception, I style that portion of law, The Law of Political Status, or the Law of Political Conditions : suppressing the ambiguous names of public and private law, along with that groundless division of the corpus juris which those opposed names are commonly employed to signify. For, as I have intimated above, the Law of Political Status, like every other portion of the entire corpus juris, might be styled with perfect propriety, public or private : public, when viewed from a certain aspect; private, when viewed from another. In rejecting the division of law into public and private, in rejecting the names by which the division is signified, and in classing political conditions with conditions of other natures, I am justified by the great authority of our own admirable Hale, as well as by the cogent reasons whereon I shall insist in my lectures. In his Analysis of the Law of England (or rather of the Law of England, excepting the criminal part of it), he classes political conditions (or ' political relations ') with the private conditions (or ' relations ') which he styles ceconomical. Nor can I discover in any nook of his treatise the slightest trace of the perplexed apprehension which is the source of the division of law into public and private. Even in adverting to criminal delicts, where it was most likely that he would fall into the error, he avoids it. Unlike his imitator, Blackstone, who calls them public wrongs, he styles them criminal wrongs, or matter for Pleas of the Crown: hitting precisely by the last expression the basis of the division of wrongs into civil injuries and crimes. We scarcely can estimate completely the originality and depth of his Analysis, unless we compare it closely with the institutes of Gaius or Justinian, and unless we look vigilantly for the instructive but brief hints which abound in every part of it. The only gross mistakes that I have found in his masterly outline are his glaring and strange mistranslation of ' jus personarum et rerum,' and his placing under the department assigned to the status of persons, certain rights of persons which he styles their absolute rights. Seeing that all rights are Course of Lectures. rights of persons, and seeing that things are merely subjects of rights, it is clear that the genuine meaning of ' jus personarum et rerum ' is not very happily rendered by •rights of persons and things.' And as to absolute (commonly denominated natural or innate) rights, they are not matter for the Law of Status, but belong pre-eminently and conspicuously to the contra- distinguished department. But, in justice to this great and excellent person, I must add that the former mistake is verbal rather than substantial. Unlike the imitator Blackstone, with his ' rights of persons and things,' Hale seizes, for the most part, the genuine meaning of the distinction, though he thickens the obscurity of the obscure phrases by which the modern Civilians usually express it. — In rejecting the division of law into public and private, and in classing political with other conditions, Hale, I believe, is original, and nearly singular. In an encyclopcedia by Falck, a professor of law at Kiel, it is said that the authors of the Danish Code, with those of the Danish writers who treat law systematically, observe, in this respect, the arrangement observed by Hale. But in all the treatises by Continental Jurists which have fallen under my inspection, law is divided into public and private, though the province of public law is variously determined and described. It is true that Sir William Blackstone also rejects that division, and also considers the law which is concerned with political conditions a member of the Law of Persons. But the method observed by Blackstone in his far too celebrated Commentaries, is a slavish and blundering copy of the very imperfect method which Hale delineates roughly in his short and unfinished Analysis. From the outset to the end of his Commentaries, he blindly adopts the mistakes of his rude and compendious model, missing invariably, with a nice and surprising infelicity, the pregnant but obscure suggestions which it proffered to his attention, and which would have guided a discerning and inventive writer to an arrangement comparatively just. Neither in the general conception, nor in the detail of his book, is there a single particle of original and discriminating thought. He had read somewhat (though far less than is commonly believed) ; but he had swallowed the matter of his reading, without choice and without rumination. He owed the popularity of his book to a paltry but effectual artifice, and to a poor, superficial merit. He truckled to the sinister interests and to the mischievous prejudices of power; and he flattered the overweening conceit of their national or pepuliar institutions, which then was devoutly entertained by the body of the English people, though now it is happily vanishing before the advancement of reason. And to this paltry but effectual artifice he added the allurement of a style whjch is fitted to tickle the ear, though it never or rarely satisfies a severe an3 masculine taste. For that rhetorical and prattling manner of his is not the manner which suited the matter in hand. It is not the manner of those classical Roman jurists who are always models of expression, though their meaning be never so faulty. It differs from their unaffected, yet apt and nervous style, as the tawdry and flimsy dress of a milliner's doll, from the graceful and imposing nakedness of a Grecian statue. Having distributed status or conditions under the principal and subordinate classes mentioned above, I shall consider them particularly in the following order and manner. I. I shall review domestic and quasi-domestic conditions : describing the rights and duties, capacities and incapacities, of 7° Outline of the which they are constituted or composed : and also describing the events by which persons are invested with them, or are divested of them. — Of these conditions the following are the principal : namely, The conditions of Husband and Wife : of Parent and Child : of Master and Slave : of Master and Servant : of Persons who by reason of their age, or by reason of their sex, or by reason of infirmity arising from disease, require, or are thought to require, an extraordinary measure of protection and restraint. Having reviewed domestic and quasi-domestic conditions, in the manner which I have now suggested, I shall review professional conditions (the other leading class of private conditions), in a similar manner. II. Having reviewed private conditions, in the manner suggested above, I shall review, in a similar manner, political conditions : that is to say, the status or conditions of subor- dinate political superiors. Of the classes of persons bearing political conditions, the following are the most remarkable. 1. Judges and other ministers of justice. 2. Persons whose principal and appropriate duty is the defence of the community against foreign enemies. 3. Persons invested with rights to col- lect and distribute the revenue of the state. 4. Persons com- missioned by the state to instruct its subjects in religion, science, or art. 5. Persons commissioned by the state to minister to the relief of calamity : e.g. overseers of the poor. 6. Persons commissioned by the state to construct or uphold works which require, or are thought to require, its special attention and in- terference : e.g. roads, canals, aqueducts, sewers, embankments. Note. — Before I dismiss the matter of the present article, I will request the attention of the reader to the following explanatory suggestions. 1. The monarch properly so called, or the sovereign number in its collegiate and sovereign capacity, is not invested with a status (in the proper acceptation of the term). A status is composed or constituted of legal rights and duties; and of capacities and incapacities to take and incur them. Now, since they are merely creatures of the positive law of the communtiy, and since that positive law is merely a creature of the sovereign, we cannot ascribe such rights and duties to the monarch or sovereign body. We may say that the sovereign has powers. We may say that the sovereign has rights conferred by the Law of God ; that the sovereign has rights conferred by positive morality ; that the sovereign is subject to duties set by the Law of God; that the sovereign is subject to duties which positive morality imposes. Nay, a sovereign govern- ment may have a legal right against a subject or subjects of another sovereign government. But it cannot be bound by legal duties, and cannot have legal rights against its own subjects. Consequently, a sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, is not invested with a status (in the proper acceptation of the term) ; or it is not invested with a status (in the proper acceptation of the term) derived from the positive law of its own political community. Course of Lectures. 71 For the sake, however, of shortness, but not without impropriety, we may say that the sovereign bears a status composed or constituted of powers. And, by reason of the intimate connection of that improper status with the status (properly so called) of subordinate political superiors, I shall consider the powers of the monarch, or the powers of the sovereign number in its collegiate and sovereign capacity, with the rights and duties of the sub- ordinate political superiors to whom portions of those powers are delegated or committed in trust. Or, rather, I shall consider the powers of the sovereign, at the present point of my Course, in so far as the essentials of the matter may not have been treated adequately in my preliminary lecture on sovereignty and independent political society. 2. The law of political conditions, or public law (with the strict and definite meaning), is frequently divided into constitutional and administrative. In a country governed by a monarch, constitutional law is extremely simple : for it merely determines the person who shall bear the sovereignty. In a country governed by a, number, constitutional law is more complex : for it determines the persons, or the classes of the persons who shall bear the sovereign powers ; and it determines, moreover, the mode wherein those persons shall share those powers. — In a country governed by a, monarch, constitutional law is positive morality merely : In a country governed by a number, it may consist of positive morality, or of a compound of positive morality and positive law. Administrative law determines the ends and modes to and in which the sovereign powers shall be exercised : shall be exercised directly by the monarch or sovereign number, or shall be exercised directly by the subordinate political superiors to whom portions of those powers are delegated or committed in trust. The two departments, therefore, of constitutional and administrative law, do not quadrate exactly with the two departments of law which regard respectively the status of the sovereign, and the various status of subordinate political superiors. Though the rights and duties of the latter are comprised by administrative law, and are not comprised by constitutional law, administra- tive law comprises the powers of the sovereign, in so far as they are exercised directly by the monarch or sovereign number. In so far as the powers of the sovereign are delegated to political sub- ordinates, administrative law is positive law, whether the country be governed by a monarch, or by a sovereign number. In so far as the sovereign powers are exercised by the sovereign directly, administrative law, in a country governed by a, monarch, is positive morality merely : In a country governed by a number, it may consist of positive morality, or of a compound of positive morality and positive law. 3. It is somewhat difficult to describe the boundary by which the conditions of political subordinates are severed from the conditions of private persons. The rights and duties of political subordinates, and the rights and duties of private persons, are creatures of a common author, namely, pie sovereign or state. And if we examine the purposes to which their rights and duties are conferred and imposed by the sovereign, we shall find that the purposes of the rights and duties which the sovereign confers and imposes on private persons, often coincide with the purposes of those which the sovereign confers and imposes on subordinate political superiors. Accordingly, the conditions 7 2 Outline of the of parent and guardian (with the answering conditions of child and ward) are not unfrequently treated by writers on jurisprudence, as portions of public law. For example : The patria potestas and the tutela of the Roman Law are treated thus, in his masterly System des Pandekten-Rechts, by Thibaut of Heidelberg : who, for penetrating acuteness, rectitude of judgment, depth of learning, and vigour and elegance of exposition, may be placed, by the side of Von Savigny, at the head of all living Civilians. At the earliest part of my Course that will admit the subject conveniently, I shall try to distinguish political from private conditions, or to determine the province of public law (with the strict and definite meaning) : an attempt which will lead me to examine the current division of law into jus publicum and jus privatum; and which will lead me to explain the numerous and disparate senses attached to the two expressions. I would briefly remark at present, that I merely mean by private persons, persons not political : that is to say, persons not invested with political conditions ; or persons bearing political conditions, but not considered in those characters, or not viewed from that aspect. I intend not to intimate by the term private, that private or not political, and public or political persons, are distinguishable by differences between the ultimate purposes for which their rights and duties are respectively conferred and imposed. III. Having reviewed private and political conditions, in the manner suggested above, I shall review anomalous or miscellaneous conditions in a similar manner. — As examples of such conditions, I adduce the following : namely, the conditions of Aliens : the conditions of Persons incapable of rights by reason of their religious opinions : the conditions of Persons incapable of rights by reason of their crimes. Note. — In any department of the Law of Persons assigned to a given condition, the rights and duties composing the given condition, would naturally be arranged (in a corpus juris) agreeably to the order or method observed in the Law of Things. For example : Agreeably to the order or method which I have delineated above, the rights and duties composing the given condition, would naturally be divided at the outset, into primary and sanctioning : those primary rights and duties being divided again, into rights in rem, rights in personam, combinations of rights in rem and rights in personam, and so on. And in any department of the Law of Persons assigned to a given condition, the constituent elements of the given condition would naturally be treated with perpetual reference to the principles and rules expounded in the Law of Things. To the series of lectures briefly delineated above, I shall add a concise summary of the positive moral rules which are styled by recent writers, the positive law of nations, or positive inter- national la-vr<: concluding therewith my review of positive law, as conceived with its relations to positive morality, and to that divine law which is the ultimate test of both. I have drawn and published the foregoing explanatory Course of Lectures. 73 Outline with two purposes : with the purpose of suggesting to strangers the subject and scope of my Course, and with the purpose of enabling my Class to follow my Course easily. To the members of my Class the outline, I think, will be useful. Many of the numerous topics upon which it touches will be treated in the Course slightly and defectively. But, having those topics before them in a connected and orderly series, they may easily fill the chasms which I shall inevitably leave, with apt conclusions of their own. And every demand for explanation that the outline may suggest to any of them, I shall gladly answer and satisfy to the best of my knowledge and ability. For the numerous faults of my intended Course, I shall not apologise. Such an exposition of my subject as would satisfy my own wishes, would fill, at the least, a hundred and twenty lectures. It would fill, at the least, a hundred and twenty lectures, though every lecture of the series occupied an hour in the delivery, and were packed as closely as possible with strictly pertinent matter. And, as competent and candid judges will readily perceive and admit, a good exposition of the subject which I have under- taken to treat, were scarcely the forced product of a violent and short effort. It were rather the tardy fruit of large and careful research, and of obstinate and sustained meditation. After a few repetitions, my Course may satisfy my hearers, and may almost satisfy myself. But, until I shall have traversed my ground again and again, it will abound with faults which I fairly style inevitable, and for which I confidently claim a large and liberal construction. John Austin. 74 Abstract of Outline. AN ABSTRACT OF THE FOREGOING OUTLINE. PRELIMINARY EXPLANATIONS. Lect. I- VI The province of Jurisprudence determined. General jurisprudence distinguished from particular. Lect. XII- Analyses of certain notions which pervade the science of law. XXVII Lect. LAW CONSIDERED WITH REFERENCE TO ITS xIxek" SOURCES, AND WITH REFERENCE TO THE MODES IN WHICH IT BEGINS AND ENDS. Written, or promulged law ; and unwritten, or unpromulged law. Law made directly, or in the properly legislative manner; and law made judicially, or in the way of improper legislation. ■ Codification. Law, the occasions of which, or the motives to the establish- ment of which, are frequently mistaken or confounded for or with its sources : viz. Jus morihus constitutum; or law fashioned by judicial decision upon pre-existing custom : Jus prudentibus compositum; or law fashioned by judicial decision upon opinions and practices of private or un- authorised lawyers : The natural law of modern writers upon jurisprudence, with the equivalent jus naturale, jus gentium, or jus naturale et gentium,, of the classical Roman jurists : Jus receptum; or law fashioned by judicial decision upon law of a foreign and independent nation : Law fashioned by judicial decision upon positive inter- national morality. Distinction of positive law into law and equity, or jus civile and jus praitorium. Modes in which law is abrogated, or in which it otherwise ends. Abstract of Outline. 75 LAW CONSIDERED WITH REFERENCE TO ITS Lect. XL, PURPOSES, AND WITH REFERENCE TO THE SUB- *°- JECTS ABOUT WHICH IT IS CONVERSANT. Division of Law into Law of Things and Law of Persons. Principle or basis of that Division, and of the two depart- ments which result from it. LAW OF THINGS. Division of rights, and of duties (relative and absolute) into primary and sanctioning. Principle or basis of that division, and of the two depart- ments which result from it. Principle or basis of many of the sub-departments into which those two departments immediately sever : namely, The distinction of rights and of relative duties, into rights in rem with their answering offices, and rights in personam with their answering obligations. Method or order wherein the matter of the Law of Things will be treated in the intended lectures. Preliminary remarks on things and persons, as subjects of rights and duties : on acts and forbearances, as objects of rights and duties : and on facts and events, as causes of rights and duties, or as extinguishing rights and duties. Primary Rights, with primary relative Duties. Rights in rem as existing per se, or as not combined with rights in personam,. Rights in personam as existing per se, or as not combined with rights in rem. Such of the combinations of rights in rem and rights in personam as are particular and comparatively simple. Such universities of rights and duties (or such complex aggregates of rights and duties) as arise by universal succession. Sanctioning Rights, with sanctioning Duties (relative and absolute). Delicts distinguished into civil injuries and crimes : or rights and duties which are effects of civil delicts, distinguished from duties, and other consequences, which are effects of criminal. Rights and duties arising from civil injuries. Duties, and other consequences arising from crimes. [Interpolated description of primary absolute duties^] Lect. XLV, &c. Lect. XL VII, &c. Only a part of this first sub-de- partment is filled up. The re- mainder of this out- line not filled up. 76 Abstract of Outline, tJSS-. LAW OF PERSONS. XL VII, &c. Distribution of status or conditions under certain principal and subordinate classes. Division of law into public and private. Review of private conditions. Review of political conditions. The status or condition (improperly so called) of the monarch or sovereign number. Division of the law which regards political conditions, into con- stitutional and administrative. Boundary which severs political from private conditions. Review of anomalous or miscellaneous conditions. The respective arrangements of those sets of rights and duties which respectively compose or constitute the several status or conditions. o fa « p pq Ph 02 P5 i— i o o fa « o fa fa w H £ b s s « • s » CD ""* ^ -U> £ - ° © 5 « ' """ g « cd ill"! §M- Jx m i_5 fc fa O fa H HH ^ PCl fe l-H PP P X fa H X a >< hH p « m fa o pa 3 ►4 H 13 t4 C5 4j 9^ ° a a S CO* <+j ■fc.T3 PW q o U g H •rt a s -P4Q-3- ■9 g * 9 "3 ?* '£ "C o3

^5 X I— I XI XI •S §3. IIS M a a t-< -g|- 3 p a"3 PS O =3 ^a P^ Ph "3 T3 g 03 oj'&O bq m - J3 i-H .fH > s a, 2 s o '■if" s' 1 s .IP § Sis r( » » 2 8 § Lectures on Jurisprudence the PROVINCE OF JURISPRUDENCE DETEBMINED* Laws proper, or properly so called, are commands ; laws which aje^not commands, are laws improper or improperly so called. Laws properly so called, with laws improperly so called, may be aptly divided into the four following kinds. 1. The divine laws, or the laws of God : that is to say, the laws which are set by God to his human creatures. 2. Positive laws : that is to say, laws which are simply andT strictly so called, and which form the appropriate matter of^ general and particular jurisprudence. 3. Positive morality, rules of positive morality, or positive moral rules. 4. Laws metaphorical or figurative, or merely metaphorical or figurative. The divine laws and positive laws are laws properly so called. — Of positive moral rules, some are laws properly so called, but others are laws improper. The positive moral rules which are laws improperly so called, may be styled laws or rules set or imposed by opinion : for they are merely opinions or sentiments held or felt by men in regard to human conduct. A law set by opinion and a law imperative and proper are allied by analogy merely; although the analogy by which they are * The author's preface to the original edition of the work under this title states that out of the lectures originally delivered by Mr. Austin, at the Uni- versity of London, the first ten were directed towards distinguishing positive law (the appropriate matter of juris- prudence), from various objects with which it is connected by resemblance, and from various other objects to which is is allied by analogy. These ten lec- tures were afterwards published by him Analysis Lect. I- VI Purpose or scope and order of the topics presented by the six . ensuing lectures. in a treatise under the title of 'The Province of Jurisprudence determined ;' and the treatise so published being divided according to topics, and not by the hours of reading, was comprised in six lectures. These published lec- tures, with alterations confined to a few pages, chiefly made in accordance with later memoranda of the author, are the six lectures which immediately here follow. — R. C. 8o The Province of L^^T-vt a ^ e< ^ ^ s strong or close. — Laws metaphorical or figurative, or merely metaphorical or figurative, are laws improperly so called. A law metaphorical or figurative and a law imperative and proper are allied by analogy merely; and the analogy by which they are allied is slender or remote. Consequently, positive laws (the appropriate matter of juris- prudence) are related in the way of resemblance, or by close or remote analogies, to the following objects. 1. In the way of resemblance, they are related to the laws of God. 2. In the way of resemblance, they are related to those rules of positive morality which are laws properly so called : And by a close or strong analogy, they are related to those rules of positive morality which are laws set by opinion. 3. By a remote or slender analogy, they are related to laws metaphorical, or laws merely metaphorical. The principal purpose or scope of the six ensuing lectures, is to distinguish positive laws (the appropriate matter of juris- prudence) from the objects now enumerated : objects with which they are connected by ties of resemblance and analogy; with which they are further connected by the common name of 'laws;' and with which, therefore, they often are blended and confounded. And, since such is the principal purpose of the six ensuing lectures, I style them, considered as a whole, 'the province of jurisprudence determined.' For, since such is their principal purpose, they affect to describe the boundary which severs the province of jurisprudence from the regions lying on its confines. The way which I take in order to the accomplishment of that purpose, may be stated shortly thus. I. I determine the essence or nature which is common to all laws that are laws properly so called : In other words, I determine the essence or nature of a law imperative and proper. II. I determine the respective characters of the four several kinds into which laws may be aptly divided : Or (changing the phrase) I determine the appropriate marks by which laws of each kind are distinguished from laws of the others. And here I remark, by the by, that, examining the respect- ive characters of those four several kinds, I found the following the order wherein I could explain them best : First, the char- acters or dintinguishing marks of the laws of God ; secondly, the characters or distinguishing marks of positive moral rules; thirdly, the characters or distinguishing marks of laws meta- phorical or figurative; fourthly and lastly, the characters or jurisprudence determined. 81 distinguishing marks of positive law, or laws simply and strictly Analysis so called. " Lect. I-VI By determining the essence or nature of a law imperative and proper, and by determining the respective characters of those four several kinds, I determine positively and negatively the appropriate matter of jurisprudence. I determine positively what that matter is; and I distinguish it from various objects which are variously related to it, and with which it not un- frequently is blended and confounded. I show moreover its affinities with those various related objects : affinities that ought to be conceived as precisely and clearly as may be, inasmuch as there are numerous portions of the rationale of positive law to which they are the only or principal key. Having suggested the principal purpose of the following treatise, I now will indicate the topics with which it is chiefly concerned, and also the order wherein it presents them to the reader. I. In the first of the six lectures which immediately follow, I state the essentials of a law or rule (taken with the largest signification that can be given to the term properly). In other words, I determine the essence or nature which is common to all laws that are laws properly so called. Determining the essence or nature of a law imperative and proper, I determine implicitly the essence or nature of a command ; and I distinguish such commands as are laws or rules from such commands as are merely occasional or particular. Determining the nature of a command, I fix the meanings of the terms which the term 'command' implies : namely, 'sanction' or ' enforcement of obedience ;' ' duty ' or ' obligation ;' ' superior and inferior.' II. (a) In the beginning of the second lecture, I briefly determine the characters or marks by which the laws of God are distinguished from other laws. In the beginning of the same lecture, I briefly divide the laws, and the other commands of the Deity, into two kinds : the revealed or express, and the unrevealed or tacit. Having briefly distinguished his revealed from his unrevealed commands, I pass to the nature of the signs or index through which the latter are manifested to Man. Now, concerning the nature of the index to the tacit commands of the Deity, there are three theories or three hypotheses : First, the pure hypothesis VOL. I. G 82 The Province of L^^I-VI 0r ^eory °^ general utility; secondly, the pure hypothesis or v , theory of a moral sense ; thirdly, a hypothesis or theory mixed or compounded of the others. And with a statement and explanation of the three hypotheses or theories, the greater portion of the second lecture, and the whole of the third and fourth lectures, are exclusively or chiefly occupied. The exposition of the three hypotheses or theories, may seem somewhat impertinent to the subject and scope of my Course. But in a chain of systematical lectures concerned with the rationale of jurisprudence, such an exposition is a necessary link. Of the principles and distinctions involved by the rationale of jurisprudence, or of the principles and distinctions occurring in the writings of jurists, there are many which could not be expounded correctly and clearly, if the three hypotheses or theories had not been expounded previously. For example : Positive law and morality are distinguished by modern jurists into law natural and law positive : that is to say, into positive law and morality fashioned on the law of God, and positive law and morality of purely human origin. And this distinction of law and morality into law natural and law positive, nearly tallies with a distinction which runs through the Pandects and Institutes, and which was taken by the compilers from the jurists who are styled ' classical.' By the jurists who are styled 'classical' (and of excerpts from whose writings the Pandects are mainly composed), jus civile is distinguished from jus gentium, or jus omnium gentium. For (say they) a portion of the positive law which obtains in a particular nation, is peculiar to that community : And, being peculiar to that community, it may be styled jus civile, or jus proprium ipsius civitatis. But, besides such portions of positive law as are respectively peculiar to particular nations or states, there are rules of positive law which obtain in all nations, and rules of positive morality which all mankind observe : And since these legal rules obtain in all nations, and since these moral rules are observed by all man- kind, they may be styled the jus omnium gentium, or the com- mune omnium hominum jus. Now these universal rules, being universal rules, cannot be purely or simply of human invention and position. They rather are made by men on laws coming from God, or from the intelligent and rational Nature which is the soul and the guide of the universe. They are not so properly laws of human device and institution, as divine or natural laws clothed with human sanctions. But the legal and jurisprudence determined. 83 moral rules which are peculiar to particular nations, are purely Analysis or simply of human invention and position. Inasmuch as they ECT ", ~ ■ are partial and transient, and not universal and enduring, they hardly are fashioned by their human authors on divine or natural models. — Now, without a previous knowledge of the -three hypotheses in question, the worth of the two distinctions to which I have briefly alluded, cannot be known correctly, and cannot be estimated truly. Assuming the pure hypothesis of a moral sense, or assuming the pure hypothesis of general utility, those distinctions are absurd, or are purposeless and idle subtilties. But, assuming the hypothesis compounded of the others, those distinctions are significant, and are also of considerable moment. Besides, the divine law is the measure or test of positive law and morality : or (changing the phrase) law and morality, in so far as they are what they ought to be, conform, or are not repugnant, to the law of God. Consequently, an all-important object of the science of ethics (or, borrowing the language of Bentham, 'the science of deontology') is to determine the nature of the index to the tacit commands of the Deity, or the nature of the signs or proofs through which those commands may be known. — I mean by 'the science of ethics' (or by 'the science of deontology'), the science of law and morality as they respect- ively ought to be : or (changing the phrase), the science of law and morality as they respectively must be if they conform to their measure or test. That department of the science of ethics, which is concerned especially with positive law as it ought to be, is styled the science of legislation : that department of the science of ethics, which is concerned especially with positive morality as it ought to be, has hardly gotten a name perfectly appropriate and distinctive— -Now, though the science of legis- ^ lation (or of positive law as it ought to be) is not the science of jurisprudence (or of positive law as it is), still the sciences are connected by numerous and indissoluble ties. Since, then, the nature of the index to the tacit command of the Deity is an all-important object of the science of legislation, it is a fit and important object of the kindred science of jurisprudence. There are certain current and important misconceptions of the theory of general utility : There are certain objections resting on those miscoliceptiorisTwhich frequently are urged against it : There are also considerable difficulties with which_jt_je.all y i s , embarrassed. Labouring to rectify those misconceptions, to answer those objections, and to solve or extenuate those diffi- culties, I probably dwell upon the theory somewhat longer than o4 The Province of sW^r Ay L^ NAL tIvt ^ ou £kt. Deeply convinc gd--Qf-its-+T , "+h )fo d importan ce, and therefore earnestly intent on commending it to the minds of others, I probably wander into ethical disquisitions which are not precisely in keeping with the subject and scope of my Course. If I am guilty of this departure from the subject and scope of my Course, the absorbing interest of the purpose which leads me from my proper path, will excuse, to indulgent readers, my offence against rigorous logic. II. (b) At the beginning of the fifth lecture, I distribute laws or rules under two classes : First, laws properly so called, with such improper laws as are closely analogous to the proper; secondly, those improper laws which are remotely analogous to the proper, and which I style, therefore, laws metaphorical or figurative. — I also distribute laws proper, with such improper laws as are closely analogous to the proper, under three classes : namely, the laws properly so called which I style the laws of God ; the laws properly so called which I style positive laws ; and the laws properly so called, with the laws improperly so called, which I style positive morality or positive moral rules. — I assign moreover my reasons for marking those several classes with those respective names. Having determined, in preceding lectures, the characters or distinguishing marks of the divine laws, I determine, in the fifth lecture, the characters or distinguishing marks of positive moral rules : that is to say, such of the laws or rules set by men to men' as are not armed with legal sanctions ; or such of those laws or rules as are not positive laws, or are not appropriate matter for general or particular jurisprudence. — Having deter- mined the distinguishing marks of positive moral rules, I determine the respective characters of their two dissimilar kinds : namely, the positive moral rules which are laws impera- tive and proper, and the positive moral rules which are laws set by opinion. The divine law, positive law, and positive morality, are mutually related in various ways. To illustrate their mutual relations, I advert, in the fifth lecture, to the cases wherein they agree, wherein they disagree without conflicting, and wherein they disagree and conflict. I show, in the same lecture, that my distribution of laws proper, end of such improper laws as are closely analogous to the proper, tallies, in the main, with a division of laws which is given incidentally by Locke in his Essay on Human Understanding. yurisfrudence determined. 85 II. (c) At the end of the same lecture, I determine the Analysis characters or distinguishing marks of laws metaphorical or , Lect - i ~ v1 , figurative. And I show that laws which are merely laws through metaphors, are blended and confounded, by writers of celebrity, with laws imperative and proper. II. (d) In the sixth and last lecture, I determine the characters of laws positive; that is to say, laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. Determining the characters of positive laws, I determine implicitly the notion of sovereignty, with the implied or cor- relative notion of independent political society. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally in the following manner. Every positive law or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or' body is sovereign or supreme. Or (changing the phrase) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. To elucidate the nature of sovereignty, and of the independ- ent political society that sovereignty implies, I examine various topics which I arrange under the following heads. First, the possible forms or shapes of supreme political government; secondly, the limits, real or imaginary, of supreme political power; thirdly, the origin or causes of political government and society. Examining those various topics, I complete my •description of the limit or boundary by which positive law is severed from positive morality. For I distinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily perceptible. The essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally as I have stated it above. But the foregoing general statement of that essential difference is open to certain correctives. And with a brief allusion to those correctives, I close the sixth and last lecture. 86 The Province of LECTURE I. Lect. I The pur- pose of the following attempt to determine the pro- vince of jurispru- dence, stated or suggested. Law : what, in most com- prehensive literal Law of God. Human laws. Two classes. 1st class. The matter of jurisprudence is positive law : law, simply and strictly so called : or law set by political superiors to political inferiors. But positive law (or law, simply and strictly so called) is often confounded with objects to whicb it is related by resemblance, and witb objects to whicb it is related in the way of analogy : with objects which are also signified, properly and improperly, by the large and vague expression law. To obviate the difficulties springing from that confusion, I begin my projected Course with determining the province of juris- prudence, or with distinguishing the matter of jurisprudence from those various related objects : trying to define the subject of which I intend to treat, before I endeavour to analyse its numerous and complicated parts. A law, in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. Under this definition are concluded, and without impropriety, several species. It is necessary to define accurately the line of demarc- ation which separates these species from one another, as much mistiness and intricacy has been infused into the science of jurisprudence by their being confounded or not clearly distin- guished. In the comprehensive sense above indicated, or in the largest meaning which it has, without extension by metaphor or analogy, the term law embraces the following objects : — Laws set by God to his human creatures, and laws set by men to men. The whole or a portion of the laws set by God to men is frequently styled the law of nature, or natural law : being, in truth, the only natural law of which it is possible to speak without a metaphor, or without a blending of objects which ought to be distinguished broadly. But, rejecting the appellation Law of Nature as ambiguous and misleading, I name those laws or rules, as considered collectively or in a mass, the Divine law, or the law of God. Laws set by men to men are of two leading or principal classes : classes which are often blended, although they differ extremely; and which, for that reason, should be severed precisely, and opposed distinctly and conspicuously. Of the laws or rules set by men to men, some are established Jurisprudence determined. 87 by political superiors, sovereign and subject: by persons exer- Lect. I cising supreme and subordinate government, in independent '.La^T^T nations, or independent political societies. The aggregate of by P° l } tical the rules thus established, or some aggregate forming a portionj of that aggregate, is the appropriate matter of jurisprudence, general or particular. To the aggregate of the rules thus established, or to some aggregate forming a portion of that aggregate, the term law, as used simply and strictly, is exclu- sively applied. But, as contradistinguished to natural law, or to the law of nature (meaning, by those expressions, the law of Grod), the aggregate of the rules, established by political superiors, is frequently styled positive law, or law existing by position. As contradistinguished to the rules which I style positive morality, and on which I shall touch immediately, the aggregate of the rules, established by political superiors, may also be marked commodiously with the name of positive law. For the sake, then, of getting a name brief and distinctive at once, and agreeably to frequent usage, I style that aggregate of rules, or any portion of that aggregate, positive law : though rules, which are not established by political superiors, are also positive, or exist by position, if they be rules or laws, in the proper signification of the term. Though some of the laws or rules, which are set by men to men, are established by political superiors, others are not estab- lished by political superiors, or are not established by political superiors, in that capacity or character. Closely analogous to human laws of this second class, are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct. Instances of such a use of the term law are the expressions — 'The law of honour;' 'The law set by fashion ;' and rules of this species constitute much of what is usually termed ' International law.' The aggregate of human laws properly so called belonging to the second of l;he classes above mentioned, with the aggregate of objects improperly but by close analogy termed laws, I place together in a common class, and denote them by the term positive morality. The name morality severs them from positive law, while the epithet positive disjoins them from the law of God. And to the end of obviating confusion, it is necessary or expedient that they should be disjoined from the latter by that distinguishing epithet. For the name morality (or morals) , 2nd class. Laws set by men not political superiors. Objects improperly but by close analogy termed laws. °«\ The two last placed in one class under the name posi- tive moral- ity. 88 The Province of Lect. i Objects metaphor- ically termed laws. Laws or rules pro~ perly so called, are a species of commands. when standing unqualified or alone, denotes indifferently either of the following objects : namely, positive morality as it is, or without regard to its merits ; and positive morality as it would be, if it conformed to the law of God, and were, therefore, deserving of approbation. Besides the various sorts of rules which are included in the literal acceptation of the term law, and those which are by a close and striking analogy, though improperly, termed laws, there are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figura- tive. Such is the case when we talk of laws observed by the lower animals; of laws regulating the growth or decay of vegetables; of laws determining the movements of inanimate bodies or masses. For where intelligence is not, or where it is too bounded to take the name of reason, and, therefore, is too bounded to conceive the purpose of a law, there is not the will which law can work on, or which duty can incite or restrain. Yet through these misapplications of a name, flagrant as the metaphor is, has the field of jurisprudence and morals been deluged with muddy speculation. Having suggested the purpose of my attempt to determine the province of jurisprudence : to distinguish positive law, the appropriate matter of jurisprudence, from the various objects to which it is related by resemblance, and to which it is related, nearly or remotely, by a strong or slender analogy : I shall now "sTate the essentials of a law or rule (taken with the largest signification which can be given to the term properly). Every law or rule (taken with the largest signification which can be given to the term properly) is a command. Or, rather, laws or rules, properly so called, a"fe a species of "commands. Now, since the term command comprises the term law, the first is the simpler as well as the larger of the two. But, simple as it is, it admits of explanation. And, since it is the key to the sciences of jurisprudence and morals, its meaning should be analysed with precision. Accordingly, I shall endeavour, in the first instance, to analyze the meaning of ' command : ' an analysis which, I fear, will task the patience of my hearers, but which they will bear with cheerfulness, or, at least, with resignation, if they consider the difficulty of performing it. The elements of a science are precisely the parts of it which are explained least easily. Terms that are the largest, and, therefore, the simplest of a series, are without equivalent expressions into which we can resolve them yurisfrudence determined. 89 concisely. And when we endeavour to define them, or to trans- late them into terms which we suppose are Better understood, we are forced upon awkward and tedious circumlocutions. If you express or i ntimate a wi sh that I shall do or forbear from some actT^nd^irymiwill visit me with an ev il in case I„ ^comply_not with your wisbTjtEe expTeTs^blToiintimMion of your wish is a comniancT. A~ command is distinguished from other •significations~oT~Qesire, not by the style in which the desire is signified, but by__the_power and the purpose of the party com- manding to inflict an evil or pain in case the desire be disre- garded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a com- mand, although you utter your wish in imperative phrase. If you are able and willing to harm me in case I comply not with your wish, the expression of your wish amounts to a command, although you are prompted by a spirit of courtesy to utter it in the shape of a request. ' Preces erant, sed quibus contradici non posset.' Such is the language of Tacitus, when speaking of a petition by the soldiery to a son and lieutenant of Vespasian. A command, then, is a signification of desire. But a com- mand, is distinguished from other significations of desire by this peculiarity : that the party to whom it is directed is liable to evil from the other, in case he comply not witb the desire. Being liable to evil from you if I comply not with a wish which you signify, I am bound or obligedhj your command, or I lie under a duty to obey it. If, in spite of that evil in prospect^ I comply not with the wish which you signify, I am said to disobey your command, or to violate the duty which it imposes, ^flagma nd and du ty_are J _theref ore,__CMTgl - atisaJberms : the meaning denoted by each being implied or supposed by the other. Or (changing the expression) wherever a duty lies, a command has been signified ; and whenever a command is signified, a duty is imposed. ___.. Concisely expressed, the meaning of the correlative expres- sions is this. He who will inflict an evil in case his desire be disregarded, utters a command by expressing or intimating his desire : He who is liable to the evil in case he disregard the desire, is bound or obliged by the command. The evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience. Or (varying the phrase) the command or the duty is said to be sanctioned or enforced by the chance of incurring the evil. Lect. I The mean- ing of the term com- mand. The mean- ing of the term duty. The terms command and duty are corre- lative. The mean- ing of the term sanc- tion. go The Province of compli ance is not requisite. Lect. I Considered as thus abstracted from the command and the duty which it enforces, the evil to be incurred by disobedience is frequently styled a punishment. But, as punishments, strictly so called, are only a class of sanctions, the term is too narrow to express the meaning adequately. To the ex- I observe that Dr. Paley, in his analysis of the term istence of a \ J lig a ii on ^ l a y S mU eh stress upon the violence of the motive to a. duty, and compliance. In so far as I can gather a meaning from his loose l^le™' and inconsistent statement, his meaning appears to be this: motive to that unless the motive to compliance be violent or intense, the expression or intimation of a wish is not a command, nor does the party to whom it is directed lie under a duty to regard it. If he means, by a violent motive, a motive operating with certainty, his proposition is manifestly false. The greater the evil to be incurred in case the wish be disregarded, and the greater the chance of incurring it on that same event, the greater, no douH, is the chance that the wish will not be disregarded. But no conceivable motive will certainly determine to compli- ance, or no conceivable motive will render obedience inevitable- If Paley's proposition be true, in the sense which I have now ascribed to it, commands and duties are simply impossible. Or, reducing his proposition to absurdity by a consequence as mani- festly false, commands and duties are possible, but are never disobeyed or broken. If he means by a violent motive, an evil which inspires fear, his meaning is simply this : that the party bound by a command is bound by the prospect of an evil. For that which is not feared is not apprehended as an evil : or (changing the shape of the expression) is not an evil in prospect. The truth is, that the magnitude of the eventual evil, and the magnitude of the chance of incurring it, are foreign to the matter in questionJjThe greater the eventual evil, and the greafeT"the~chance of incurring it, the greater is the efficacy of the command, and the greater is the strength of the obligation : Or (substituting expressions exactly equivalent), the greater is f the chance that the command will be obeyed, and that the duty will not be broken. But where there is the smallest chance of incurring the smallest evil, the expression of a wish amounts to a command, and, therefore, imposes a duty. The sanction, if you will, is feeble or insufficient; but still there is a sanction, and, therefore, a duty and a command. Eewards By some celebrated writers (by Locke, Bentham, and, I Sanctions, think Paley), the term sanction, or enforcement of obedience, is Juris fmdence determined. 91 applied to conditional good as well as to conditional evil : to Lect. I reward as well as to punishment. But, with all my habitual ~" veneration for the names of Locke and Bentham, I think that this extension of the term is pregnant with confusion and perplexity. Rewards are, indisputably, motives to comply with the wishes of others. But to talk of commands and duties as sanc- tioned or enforced by rewards, or to talk of rewards as obliging or constraining to obedience, is surely a wide departure from the established meaning of the terms. If you expressed a desire that I should render a service, and if you proffered a reward as the motive or inducement to render it, you would scarcely be said to command the service, nor should I, in ordinary language, be obliged to render it. In ordinary language, you would promise me a reward, on condi- tion of my rendering the service, whilst I might be incited or persuaded to render it by the hope of obtaining the reward. Again : If a law hold out a reward as an inducement to do some act, an eventual right is conferred, and not an obligation imposed, upon those who shall act accordingly : The imperative part of the law being addressed or directed to the party whom it requires to render the reward. In short, I am determined or inclined to comply with the wish of another, by the fear of disadvantage or evil. I am also determined or inclined to comply with the wish of another, by the hope of advantage or good. But it is only by the chance of incurring evil, that I am bound or obliged to compliance. It is only by conditional evil, that duties are sanctioned or enforced. It is the power and the purpose of inflicting eventual evil, and not the power and the purpose of imparting eventual good, which gives to the expression of a wish the name of a command. If we put reward into the import of the term sanction, we must engage in a toilsome struggle with the current of ordinary speech ; and shall often slide unconsciously, notwithstanding our efforts to the contrary, into the narrower and customary meaning. It appears, then, from what has been premised, that the The mean- ideas or notions comprehended by the term command are the--^^ com , following. 1. A wish or desire conceived by a rational being, /?"?*£> that another rational being shall do or forbear. 2. An evil to Zaws are a species of commands. But the term not com- is improperly applied to various objects which have nothing of the imperative character: to objects which are not commands; and which, therefore, are not laws, properly so called. Accordingly, the proposition ' that laws are commands ' must be taken with limitations. Or, rather, we must distinguish the various meanings of the term laws; and must restrict the proposition to that class of objects which is embraced by the largest signification that can be given to the term properly. I have already indicated, and shall hereafter more fully describe, the objects improperly termed laws, which are not within the province of jurisprudence (being either rules enforced by opinion and closely analogous to laws properly so called, or being laws so called by a metaphorical application of the term merely). There are other objects improperly termed laws (not being commands) which yet may properly be included within the province of jurisprudence. These I shall endeavour to particularise : — 1. Acts on the part of legislatures to explain positive law, can scarcely be called laws, in the proper signification of the term. "Working no change in the actual duties of the governed, but simply declaring what those duties are, they properly are acts of interpretation by legislative authority. Or, to borrow an expression from the writers on the Roman Law, they are acts of authentic interpretation. But, this notwithstanding, they are frequently styled laws ; declaratory laws, or declaratory statutes. They must, therefore, be noted as forming an exception to the proposition 'that laws are a species of commands.' It often, indeed, happens (as I shall show in the proper place), that laws declaratory in name are imperative in effect : Legislative, like judicial interpretation, being frequently de- ceptive; and establishing new law, under guise of expounding the old. 2. Laws to repeal laws, and to release from existing duties, must also be excepted from the proposition ' that laws are a species of commands? In so far as they release from duties imposed by existing laws, they are not commands, but revoca- tions of commands. They authorize or permit the parties, to whom the repeal extends, to do or to forbear from acts which they were commanded to forbear from or to do. And, considered Jurisprudence determined. 99 with regard to this, their immediate or direct purpose, they are Lect. I often named 'permissive laws, or, more briefly and more properly, permissions. Remotely and indirectly, indeed, permissive laws are often or always imperative. For the parties released from duties are restored to liberties or rights : and duties answering those rights are, therefore, created or revived. But this is a matter which I shall examine with exactness, when I analyze the expressions ' legal right,' 'permission by the sovereign or state,' and ' civil or political liberty.' 3. Imperfect laws, or laws of imperfect obligation, must also be excepted from the proposition ' that laws are a species of commands.' An imperfect law (with the sense wherein the term is used by the Roman jurists) is a law which wants a sanction, and which, therefore, is not binding. A law declaring that certain acts are crimes, but annexing no punishment to the commission of acts of the class, is the simplest and most obvious example. Though the author of an imperfect law signifies a desire, he manifests no purpose of enforcing compliance with the desire. But where there is not a purpose of enforcing compliance with the desire, the expression of a desire is not a command. Conse- quently, an imperfect law is not so properly a law, as counsel, or exhortation, addressed by a superior to inferiors. Examples of imperfect laws are cited by the Roman jurists. But with us in England, laws professedly imperative are always (I believe) perfect or obligatory. Where the English legislature affects to command, the English tribunals not unreasonably presume that the legislature exacts obedience. And, if no specific sanction be annexed to a given law, a sanction is supplied by the courts of justice, agreeably to a general maxim which obtains in cases of the kind. The imperfect laws, of which I am now speaking, are laws which are imperfect, in the sense of the Roman jurists : that is to say, laws which speak the desires of political superiors, but which their authors (by oversight or design) have not provided with sanctions. Many of the writers on morals, and on the so called law of nature, have annexed a different meaning to the term imperfect. Speaking of imperfect obligations, they commonly mean duties which are not legal : duties imposed by commands of God, or duties imposed by positive morality, as contradistinguished to duties imposed by positive law. An imperfect obligation, in the sense of the Roman jurists, is exactly ioo The Province of Lect. I equivalent to no obligation at all. For the term imperfect denotes simply, that the law wants the sanction appropriate to laws of the kind. An imperfect obligation, in the other mean- ing of the expression, is a religious or a moral obligation. The term imperfect does not denote that the law imposing the duty wants the appropriate sanction. It denotes that the law imposing the duty is not a law established by a political superior : that it wants that perfect, or that surer or more cogent sanction, which is imparted by the sovereign or state. Laws (pro- I believe that I have now reviewed all the classes of objects, caned? ^° wn i cn the term laws is improperly applied. The laws which may (improperly so called) which I have here lastly enumerated, are impera- * (-"- think) the only laws which are not commands, and which yet tive. may be properly included within the province of jurisprudence. But though these, with the so called laws set by opinion and the objects metaphorically termed laws, are the only laws which really are not commands, there are certain laws (properly so called) which may seem not imperative. Accordingly, I will subjoin a few remarks upon laws of this dubious character. 1. There are laws, it may be said, which merely create rights : And, seeing that every command imposes a duty, laws of this nature are not imperative. I~ But, as I have intimated already, and shall show completely hereafter, there are no laws merely creating rights. There are laws, it is true, which merely create duties : duties not correlat- ing with correlating rights, and which, therefore may be styled absolute. But every law, really conferring a right, imposes expressly or tacitly a relative duty, or a duty correlating with the right. If it specify the remedy to be given, in case the right shall be infringed, it imposes the relative duty expressly. If the remedy to be given be not specified, it refers tacitly to pre- existing law, and clothes the right which it purports to create with a remedy provided by that law. Every law, really con- ferring a right is, therefore, imperative : as imperative, as if its . only purpose were the creation of a duty, or as if the relative L'dtity, which it inevitably imposes, were merely absolute. The meanings of the term right, are various and perplexed ; taken with its proper meaning, it comprises ideas which are numerous and complicated; and the searching and extensive analysis, which the term, therefore, requires, would occupy more room than could be given to it in the present lecture. It is not, however, necessary, that the analysis should be performed here. I purpose, in my earlier lectures, to determine the pro- Jurisprudence determined. 101 vince of jurisprudence; or to distinguish the laws established Lect. I by political superiors, from the various laws, proper and im- proper, with which they are frequently confounded. And this I may accomplish exactly enough, without a nice inquiry into the import of the term right. 2. According to an opinion which I must notice incidentally here, though the subject to which it relates will be treated directly hereafter, custovxary laws must be expected from the proposition ' that laws are a species of commands.' By many of the admirers of customary laws (and, especially, of their German admirers), they are thought to oblige legally (independently of the sovereign or state), because the citizens or subjects have observed or kept them. Agreeably to this opinion, ihey are not the creatures of the sovereign or state, although the sovereign or state may abolish them at pleasure. Agreeably to this opinion, they are positive law (or law, strictly so called), inasmuch as they are enforced by the courts of justice : But, that notwithstanding, they exist as positive law by the spon- taneous adoption of the governed, and not by position or establishment on the part of political superiors. Consequently, customary laws, considered as positive law, are not commands. And, consequently, customary laws, considered as positive law, are not laws or rules properly so called. An opinion less mysterious, but somewhat allied to this, is not uncommonly held by the adverse party : by the party which is strongly opposed to customary law; and to all law made judicially, or in the way of judicial legislation. According to the latter opinion, all judge-made law, or all judge-made law established by subject judges, is purely the creature of the judges by whom it is established immediately. To impute it to the sovereign legislature, or to suppose that it speaks the will of the sovereign legislature, is one of the foolish or knavish fictions with which lawyers, in every age and nation, have perplexed and darkened the simplest and clearest truths. I think it will appear, on a moment's reflection, that each of these opinions is groundless : that customary law is imperative, in the proper signification of the term ; and that all judge-made law is the creature of the sovereign or state. At its origin, a custom is a rule of conduct which the governed observe spontaneously, or not in pursuance of a law set by a political superior. The custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced 102 The Province of , Lscr-^ by the power of the state. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality : a rule generally observed by the citizens or subjects; but deriving the only force, which it can be said to possess, from the general disapprobation falling on those who transgress, it.. Now when judges transmute a custom into a legal rule (or make a legal rule not suggested by a custom), the legal rule which they establish is established by the sovereign legislature. A subordinate or subject judge is merely a minister. The portion of the sovereign power which lies at his disposition is 1 merely delegated. The rules which he makes derive their legal force from authority given by the state : an authority which the state may confer expressly, but which it commonly imparts in the way of acquiescence. For, since the state may reverse the rules which he makes, and yet permits him to enforce them by the power of the political community, its sovereign will 'that his rules shall obtain as law ' is clearly evinced by its conduct, though not by its express declaration. The admirers of customary law love to trick out their idol with mysterious and imposing attributes. But to those who can see the difference between positive law and morality, there is nothing of mystery about it. Considered as rules of positive morality, customary laws arise from the consent of the governed, and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, cus- tomary laws are established by the state : established by the state directly, when the customs are promulged in its statutes; established by the state circuitously, when the customs are adopted by its tribunals. The opinion of the party which abhors judge-made laws, springs from their inadequate conception of the nature of commands. Like other significations of desire, a command is express or tacit. If the desire be signified by words (written or spoken), the command is express. If the desire be signified by conduct (or by any signs of desire which are not words), the command is tacit. Now when customs are turned into legal rules by decisions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereign legislature. The state, which is able to abolish, permits its ministers to enforce them : and it, therefore, signifies its pleasure, by that its voluntary acquiescence, 'that they shall serve as a law to the governed.' Jurisprudence determined. 103 My present purpose is merely this : to prove that the positive law styled customary (and all positive law made judicially) is established by the state directly or circuitously, and, therefore, is imperative. I am far from disputing, that law made judicially (or in the way of improper legislation) and law made by statute (or in the properly legislative manner) are distin- guished by weighty differences. I shall inquire, in future lectures, what those differences are; and why subject judges, who are properly ministers of the law, have commonly shared with the sovereign in the business of making it. I assume, then, that the only laws which are not imperative, and which belong to the subject-matter of jurisprudence, are the following : — 1. Declaratory laws, or laws explaining the import of existing positive law. 2. Laws abrogating or repealing existing positive law. 3. Imperfect laws, or laws of imperfect obligation (with the sense wherein the expression is used by the Roman jurists). But the space occupied in the science by these improper laws is comparatively narrow and insignificant. Accordingly, although I shall take them into account so often as I refer to them directly, I shall throw them out of account on other occa- sions. Or (changing the expression) I shall limit the term law to laws which are imperative, unless I extend it expressly to laws which are not. Lbct. I Laws which are not com- mands, enume- rated. LECTURE II. In my first lecture, I stated or suggested the purpose and the manner of my attempt to determine the province of juris- prudence : to distinguish positive law, the appropriate matter of jurisprudence, from the various objects to which it is related by resemblance, and to which it is related, nearly or remotely, by a strong or slender analogy. In pursuance of that purpose, and agreeably to that manner, I stated the essentials of a law or rule (taken with the largest signification which can be given to the term properly). In pursuance of that purpose, and agreeably to that manner, I proceed to distinguish laws set by men to men from those Divine laws which are the ultimate test of human. The Divine laws, or the laws of God, are laws set by God to his human creatures. As I have intimated already, and shall show more fully hereafter, they are laws or rules, properly so called. Lbct. II The con- nection of the second with the first lec- ture. The Divine laws or the laws of God. 104 The Province of Lect. II As distinguished from duties imposed by human laws, duties imposed by the Divine laws may be called religious duties. As distinguished from violations of duties imposed by human laws, violations of religious duties are styled sins. As distinguished from sanctions annexed to human laws, the sanctions annexed to the Divine laws may be called religious sanctions. They consist of the evils, or pains, which we may suffer here or hereafter, by the immediate appointment of God, and as consequences of breaking his commandments. Of the Di- Of the Divine laws, or the laws of God, some are revealed, vine laws, or promulered, and others are unrevealed. Such of the laws of some are r o » revealed, God as are unrevealed are not unfrequently denoted b- and others f H ow i n o- names or phrases : ' the law of nature ;' ' natural law;' are un- or • i » revealed. ' the law manifested to man by the light of nature or reason ; 'the laws, precepts, or dictates of natural religion.' The revealed law of God, and the portion of the law of God which is unrevealed, are manifested to men in different ways, or by different sets of signs. Such of the With regard to the laws which God is pleased to reveal, the Divine wa y wherein they are manifested is easily conceived. They are revealed, express commands : portions of the word of God : commands signified to men through the medium of human language ; and uttered by God directly, or by servants whom he sends to announce them. Such of the Such of the Divine laws as are unrevealed are laws set by Divine Q d to his human creatures, but not through the medium of laws as , , , , are un- human language, or not expressly. revealed. These are the only laws which he has set to that portion of mankind who are excluded from the light of Revelation. These laws are binding upon us (who have access to the truths of Revelation), in so far as the revealed law has left our duties undetermined. For, though his express declarations are the clearest evidence of his will, we must look for many of the duties, which God has imposed upon us, to the marks or signs of his pleasure which are styled the light of nature. Paley and other divines have proved beyond a doubt, that it was not the purpose of Revelation to disclose the whole of those duties. Some we could not know, without the help of Revelation ; and these the revealed law has stated distinctly and precisely. The rest we may know, if we will, by the light of nature or reason; and these the revealed law supposes or assumes. It passes them over in silence, or with a brief and incidental notice. yurisfrudence determined. But if God has given us laws which he has not revealed or promulged, how shall we know them? What are those signs of his pleasure, which we style the light of nature; and oppose, by that figurative phrase, to express declarations of his will? The hypotheses or theories which attempt to resolve this question, may be reduced, I think, to two. According to one of them, there are human actions which all mankind approve, human actions which all men disapprove ; and these universal sentiments arise at the thought of those actions, spontaneously, instantly, and inevitably. Being common to all mankind, and inseparable from the thoughts of those actions, these sentiments are marks or signs of the Divine pleasure. They are proofs that the actions which excite them are enjoined or forbidden by the Deity. The rectitude or pravity of human conduct, or its agreement or disagreement with the laws of God, is instantly inferred from these sentiments, without the possibility of mistake. He has resolved that our happiness shall depend on our keeping his commandments : and it manifestly consists with his manifest wisdom and goodness, that we should know them promptly and certainly. Accordingly, he has not committed us to the guid- ance of our slow and fallible reason. He has wisely endowed us with feelings, which warn us at every step; and pursue us, with their importunate reproaches, when we wander from the paths of our duties. These simple or inscrutable feelings have been compared to those which we derive from the outward senses, and have been referred to a peculiar faculty called the moral sense : though, admitting that the feelings exist, and are proofs of the Divine pleasure, I am unable to discover the analogy which suggested the comparison and the name. The objects or appearances which properly are perceived through the senses, are perceived immediately, or without an inference of the understanding. According to the hypothesis which I have briefly stated or suggested, there is always an inference of the understanding, though the inference is short and inevitable. Prom feelings which arise within us when we think of certain actions, we infer that those actions are enjoined or forbidden by the Deity. The hypothesis, however, of a moral sense, is expressed in other ways. I05 Leot. II What is the index to such of the Divine laws as are unre- vealed ? The hypo- theses or theories which re- gard the nature of that index. The hypo- thesis or theory of a moral sense : of innate practical principles; of a prac- tical reason; of a common sense, &c. &c. io6 The Province of Lect. II The theory of hypo- thesis of utility. A brief summary of the theory of utility. The fol- lowing ex- planations of that summary briefly in- troduced. The laws of God, to which these feelings are the index, are not unfrequently named innate practical principles, or postulates of practical reason : or they are said to be written on our hearts, by the finger of their great Author, in broad and indelible characters. Common sense (the most yielding and accommodating of phrases) has been moulded and fitted to the purpose of express- ing the hypothesis in question. In all their decisions on the rectitude or pravity of conduct (its agreement or disagreement with the unrepealed law), mankind are said to be determined by common sense : this same commnonsense meaning, in this instance, the simple or inscrutable sentiments which I have endeavoured to describe. Considered as affecting the soul, when the man thinks especially of his own conduct, these sentiments, feelings, or emotions, are frequently styled his conscience. According to the other of the adverse theories or hypotheses, the laws of God, which are not revealed or promulged, must be gathered by man from the goodness of God, and from the tendencies of human actions. In other words, the benevolence of God, with the principle of general utility, is our only index or guide to his unrevealed law. God designs the happiness of all his sentient creatures. Some human actions forward that benevolent purpose, or their tendencies are beneficent or useful. Other human actions are adverse to that purpose, or their tendencies are mischievous or pernicious. The former, as promoting his purpose, God has enjoined. The latter, as opposed to his purpose, God has forbidden. He has given us the faculty of observing; of re- membering ; of reasoning : and, by duly applying those faculties, we may collect the tendencies of our actions. Knowing the tendencies of our actions, and knowing his benevolent purpose, we know his tacit commands. Such is a brief summary of this celebrated theory. I should wander to a measureless distance from the main purpose of my lectures, if I stated all the explanations with which that summary must be received. But, to obviate the principal misconceptions to which the theory is obnoxious, I will subjoin as many of those explanations as my purpose and limits will admit. The theory is this. — Inasmuch as the goodness of God is boundless and impartial, he designs the greatest happiness of all his sentient creatures : he wills that the aggregate of their jurisprudence determined. 107 enjoyments shall find no nearer limit than that which is inevit- ably set to it by their finite and imperfect nature. From the probable effects of our actions on the greatest happiness of all, or from the tendencies of human actions to increase or diminish that aggregate, we may infer the laws which he has given, but has not expressed or revealed. Now the tendency of a human action (as its tendency is thus understood) is the whole of its tendency : the sum of its probable consequences, in so far as they are important or material : the sum of its remote and collateral, as well as of its direct consequences, in so far as any of its consequences may influence the general happiness. Trying to collect its tendency (as its tendency is thus under- stood), we must not consider the action as if it were single and insulated, but must look at the class of actions to which it belongs. The probable specific consequences of doing that single act, of forbearing from that single act, or of omitting that single act, are not the objects of the inquiry. The question to be solved is tbis : — If acts of the class were generally done, or generally forborne or omitted, what would be the probable effect on the general happiness or good ? Considered by itself, a mischievous act may seem to be useful or harmless. Considered by itself, a useful act may seem to be pernicious. For example, If a poor man steal a handful from the heap of his rich neighbour, the act, considered by itself, is harmless or positively good. One man's property is assuaged with the superfluous wealth of another. But suppose that thefts were general (or that the useful right of property were open to frequent invasions), and mark the result. Without security for property, there were no inducement to save. Without habitual saving on the part of proprietors, there were no accumulation of capital. Without accumulation of capital, there were no fund for the payment of wages, no division of labour, no elaborate and costly machines : there were none of those helps to labour which augment its productive power, and, therefore, multiply the enjoyments of every indi- vidual in the community. Frequent invasions of property would bring the rich to poverty ; and, what were a greater evil, would aggravate the poverty of the poor. If a single and insulated theft seem to be harmless or gooi, the fallacious appearance merely arises from this : that the vast Lect. II The true tendency of a human action, and the true test of that tendency. io8 The Province of Lbct. II According to the theory of utility, God's com- mands are mostly rales. majority of those who are tempted to steal abstain from invasions of property; and the detriment to security, which is the end produced by a single theft, is overbalanced and concealed by the mass of wealth, the accumulation of which is produced by general security. Again : If I evade the payment of a tax imposed by a good government, the specific effects of the mischievous forbearance are indisputably useful. For the money which I unduly with- hold is convenient to myself; and, compared with the bulk of the public revenue, is a quantity too small to be missed. But the regular payment of taxes is necessary to the existence of the government. And I, and the rest of the community, enjoy the security which it gives, because the payment of taxes is rarely evaded. In the cases now supposed, the act or omission is good, considered as single or insulated; but, considered with the rest of its class, is evil. In other cases, an act or omission is evil, considered as single or insulated; but, considered with the rest of its class, is good. For example, A punishment, as a solitary fact, is an evil : the pain inflicted on the criminal being added to the mischief of the crime. But, considered as part of a system, a punish- ment is useful or beneficent. By a dozen or score of punish- ments, thousands of crimes are prevented. With the sufferings of the guilty few, the security of the many is purchased. By the lopping of a peccant member, the body is saved from decay. It, therefore, is true generally (for the proposition admits of exceptions), that, to determine the true tendency of an act, forbearance, or omission , we must resolve the following question. — What would be the probable effect on the general happiness or good, if similar acts, forbearances, or omissions were general or frequent? Such is the test to which we must usually resort, if we would try the true tendency of an act, forbearance, or omission : Meaning, by the true tendency of an act, forbearance or omission, the sum of its probable effects on the general happiness or good, or its agreement or disagreement with the principle of general utility. But, if this be the ordinary test for trying the tendencies of actions, and if the tendencies of actions be the index to the will of God, it follows that most of his commands are general or universal. The useful acts which he enjoins, and the pernicious acts which he prohibits, he enjoins or prohibits, for the most yurisprudence determined. part, not singly, but by classes : not by commands which are particular, or directed to insulated cases ; but by laws or rules which are general, and commonly inflexible. For example, Certain acts are pernicious, considered as a class: or (in other words) the frequent repetition of the act were adverse to the general happiness, though, in this or that instance, the act might be useful or harmless. Further : Such are the motives or inducements to the commission of acts of the class, that, unless we were determined to forbearance by the fear of punishment, they xoould, be frequently committed. Now, if we combine these data with the wisdom and goodness of God, we must infer that he forbids such acts, and forbids them without exception. In the tenth, or the hundredth case, the act might be useful : in the nine, or the ninety and nine, the act would be pernicious. If the act were permitted or tolerated in the rare and anomalous case, the motives to forbear in the others would be weakened or destroyed. In the hurry and tumult of action, it is hard to distinguish justly. To grasp at present enjoyment, and to turn from present uneasiness, is the habitual inclination of us all. And thus, through the weakness of our judgments, and the more dangerous infirmity of our wills, we should freqixently stretch the exception to cases embraced by the rule. Consequently, where acts, considered as a class, are useful or pernicious, we must conclude that he enjoins or forbids them, and by a rule which probably is inflexible. Such, I say, is the conclusion at which we must arrive, supposing that the fear of punishment be necessary to incite or restrain. For the tendency of an act is one thing : the utility of enjoining or forbidding it is another thing. There are classes of useful acts, which it were useless to enjoin; classes of mischievous acts, which it were useless to prohibit. Sanctions were superfluous. We are sufficiently prone to the useful, and sufficiently averse from the mischievous acts, without the motives which are presented to the will by a lawgiver. Motives natural or spontaneous (or motives other than those which are created by injunctions and prohibitions) impel us to action in the one case, and hold us to forbearance in the other. In the language of Mr. Locke, ' The mischievous omission or action would bring down evils upon us, which are its natural products or consequences ; and which, as natural inconveniences, operate without a laio.' 109 Lect. II It does not follow from the theory of utility, that every useful ac- tion is the object of a Divine in- junction ; and every pernicious action, the object of a Divine pro- hibition. no The Province of Lect. II Now, if the measure or test which I have endeavoured to A current explain he the ordinary measure or test for trying the tendencies ciousTbiec- °^ our ac ti° ns > the most current and specious of the objections, tion to the which are made to the theory of utility, is founded in gross utility, hi- m i s take, and is open to triumphant refutation, troduced The theory, be it always remembered, is this : '" ' ! ' Our motives to obey the laws which God has given us, are paramount to all others. For the transient pleasures which we may snatch, or the transient pains which we may shun, by violating the duties which they impose, are nothing in com- parison with the pains by which those duties are sanctioned. The greatest possible happiness of all his sentient creatures, is the purpose and effect of those laws. For the benevolence by which they were prompted, and the wisdom witb which they were planned, equal the might which enforces them. But, seeing that such is their purpose, they embrace the whole of our conduct : so far, that is, as our conduct may pro- mote or obstruct that purpose; and so far as injunctions and prohibitions are necessary to correct our desires. In so far as the laws of God are clearly and indisputably revealed, we are bound to guide our conduct by the plain mean- ing of their terms. In so far as they are not revealed, we must resort to another guide : namely, the probable effect of our conduct on that general happiness or good, which is the object of the Divine Lawgiver in all his laws and commandments. In each of these cases the source of our duties is the same; though the proofs by which we know them are different. The principle of general utility is the index to many of these duties ; but the principle of general utility is not their fountain or source. For duties or obligations arise from commands and sanctions. And commands, it is manifest, proceed not from abstractions, but from living and rational beings. Admit these premises, and the following conclusion is in- evitable. — The whole of our conduct should be guided by the principle of utility, in so far as the conduct to be pursued has not been determined by Revelation. For, to conform to the principle or maxim with which a law coincides, is equivalent to obeying that law. Such is the theory : which I have repeated in various forms, and, I fear, at tedious length, in order that my younger hearers might conceive it with due distinctness. The current and specious objection to which I have adverted, may be stated thus : yuris prudence determined. in ' Pleasure and pain (or good and evil) are inseparably con- Leot. II ' nected. Every positive act, and every forbearance or omission, ' is followed by both : immediately or remotely, directly or ' collaterally, to ourselves or to our fellow-creatures. ' Consequently, if we shape our conduct justly to tbe prin- ' ciple of general utility, every election which we make between ' doing or forbearing from an act will be preceded by the ' following process. First: We shall conjecture the consequences ' of the act, and also the consequences of the forbearance. For ' these are the competing elements of that calculation, which, ' according to our guiding principle, we are bound to make. ' Secondly : We shall compare the consequences of the act with ' the consequences of the forbearance, and determine the set of ' consequences which gives the balance of advantage : which ' yields the larger residue of probable good, or (adopting a ' different, though exactly equivalent expression) which leaves ' the smaller residue of probable evil. ' Now let us suppose that we actually tried this process, ' before we arrived at our resolves. And then let us mark the ' absurd and mischievous effects which would inevitably follow ' our attempts. • ' Generally speaking, the period allowed for deliberation is ' brief : and to lengthen deliberation beyond that limited period, ' is equivalent to forbearance or omission. Consequently, if we ' performed this elaborate process completely and correctly, we ' should often defeat its purpose. We should abstain from action ' altogether, though utility required us to act ; or the occasion ' for acting usefully would slip through our fingers, whilst we ' weighed, with anxious scrupulosity, the merits of the act and ' the forbearance. ' But feeling the necessity of resolving promptly, we should ' not perform the process completely and correctly. We should ' guess or conjecture hastily the effects of the act and the for- ' bearance, and compare their respective effects with equal pre- ' cipitancy. Our premises would be false or imperfect ; our con- ' elusions, badly deduced. Labouring to adjust our conduct to the ' principle of general utility, we should work inevitable mischief. 'And such were the consequences of following the prinicple ' of utility, though we sought the true and the useful with ' simplicity and in earnest. But, as we commonly prefer our ' own to the interests of our fellow-creatures, and our own ' immediate to our our own remote interests, it is clear that we ' should warp the principle to selfish and sinister ends. 112 The Province of Lect. II The two apt an- swers to the forego- ing objec- tion briefly intro- duced. The first answer to the forego- ing objec- tion stated. ' The final cause or purpose of the Divine laws is the general ' happiness or good. But to trace the effect of our conduct on ' the general happiness or good is not the way to know them. ' By consulting and obeying the laws of God we promote our ' own happiness and the happiness of our fellow-creatures. But ' we should not consult his laws, we should not obey his laws, ' and, so far as in us lay, we should thwart their benevolent ' design, if we made the general happiness our object or end. ' In a breath, we should widely deviate in effect from the prin- ' ciple of general utility by taking it as the guide of our conduct.' Such, I believe, is the meaning of those — if they have a meaning — who object to the meaning of utility ' that it were a dangerous principle of conduct.' As the objectors are generally persons little accustomed to clear and determinate thinking, I am not quite certain that I have conceived the objection exactly. But I have endeavoured with perfectly good faith to understand their meaning, and as forcibly as I can to state it, or to state the most rational mean- ing which their words can be supposed to import. It has been said, in answer to this objection, that it involves a contradiction in terms. Danger is another name for probable mischief : And, surely, we best avert the probable mischiefs of our conduct, by conjecturing and estimating its probable conse- quences. To say ' that the principle of utility were a dangerous principle of conduct,' is to say ' that it were contrary to utility to consult utility.' Now, though this is so brief and pithy that I heartily wish it were conclusive, I must needs admitthatit scarcely touches the objection, and falls far short of a crushing reduction to absurdity. For the objection obviously assumes that we cannot foresee and estimate the probable effects of our conduct : that if we attempted to calculate its good and its evil consequences, our presumptuous attempt at calculation would lead us to error and sin. What is contended is, that by the attempt to act according to utility, an attempt which would not be successful, we should deviate from utility. A proposition involving when fairly stated nothing like a contradiction. But, though this is not the refutation, there is a refutation. And first, If utility be our only index to the tacit commands of the Deity, it is idle to object its imperfections. We must even make the most of it. If we were endowed with a moral sense, or with a common sense, or with a practical reason, we scarcely should construe his Jurisprudence determined. "3 commands by the principle of general utility. If our souls were furnished out with innate practical principles, we scarcely should read his commands in the tendencies of human actions. For, by the supposition, man would be gifted with a peculiar organ for acquiring a knowledge of his duties. The duties imposed by the Deity would be subjects of immediate consciousness, and completely exempted from the jurisdiction of observation and induction. An attempt to displace that invincible consciousness, and to thrust the principle of utility into the vacant seat, would be simply impossible and manifestly absurd. An attempt to taste or smell by force of syllogism, were not less hopeful or judicious. But, if we are not gifted with that peculiar organ, we must take to the principle of utility, let it be never so defective. We must gather our duties, as we can, from the tendencies of human actions; or remain, at our own peril, in ignorance of our duties. We must pick our scabrous way with the help of a glimmering light, or wander in profound darkness. Whether there be any ground for the hypothesis of a moral sense, is a question which I shall duly examine in a future lecture, but which I shall not pursue in the present place. For the present is a convenient place for'the introduction of another topic: namely, that they who advance the objection in question misunderstand the theory which they presume to impugn. Their objection is founded on the following assumption. That, if we adjusted our conduct to the principle of general utility, every election which we made between doing and for- bearing from an act would be preceded by a calculation : by an attempt to conjecture and compare the respective probable con- sequences of action and forbearance. Or (changing the expression) their assumption is this. That, if we adjusted our conduct to the principle of general utility, our conduct would always be determined by an immedi- ate or direct resort to it. And, granting their assumption, I grant their inference. I grant that the principle of utility were a halting and purblind guide. But their assumption is groundless. They are battering (and most effectually) a misconception of their own, whilst they fancy they are hard at work demolishing the theory which they hate. For, according to that theory, our conduct would conform to rules inferred from the tendencies of actions, but would not VOL. I. I Lect. II The second answer to the forego- ing objec- tion briefly intro- duced. 114 The Province of I*ncII be determined by a direct resort to the principle of general utility. Utility would be the test of our conduct, ultimately, bit not immediately : the immediate test of the rules to which our conduct would conform, tut not the immediate test of specific or individual actions. Our rules would be fashioned on utility: our conduct, on our rules. Recall the true test for trying the tendency of an action, and, by a snort and easy deduction, you will see that their assumption is groundless. If car ccc- If ire would try the tendency of a specific or individual dnet »ere ac j we mus t no f contemplate the act as if it were single and justed to insulated, but must look at the c:a ,ss of acts to which it belongs. ^P™" We must suppose that acts of the class were generally done or general omitted, and consider the probable effect upon the general ^^ happiness or good. would con- "We must guess the consequences which would follow, if fa"^& acts of the class were general: and also the consequences which part, to would follow, if thev were generally omitted. "We must then rules: rales .-, , T ' ... j -j —jjjel, compare the consequences ou the positive and negative sides, eni&ziate and determine on which of the two the balance of advantage lies. fr^rn the . - - • Deitv, and 1^ i* l* e on the positive side, the tendency of the act is good : to -rfiich or (adopting a wider, vet exactly equivalent expression^ the deaee? of general happiness requires that act* of the class shall be done. I pf^" If it lie on the negative side, the tendency of the act is bad: the side or (again adopting a wider, vet exactly equivalent expression cr judex. f ne general happiness requires that act* of the class shall be forborne. In a hreath. if we truly try the tendency of a specific or individual act, we try the tendency of the class to which that act belongs. The particular conclusion which we draw, with regard to the single act. implies a general conclusion embracing all similar acts. But, concluding that acts