Duke University Law Library GEORGE C. CHRISTIE COLLEaiON IN JURISPRUDENCE DUKE LAW LIBRARY L00075849X Digitized by the Internet Archive in 2015 https://archive.org/details/lecturesonjurisp11aust 1 LECTURES OS JUEISPEUDENCE OR THE PHILOSOPHY OF POSITIVE LAW. BY THE lATE JOHX AUSTIX, OF THE ISyZR TEilPLE, BAREISTER-AT-LAW. THIRD EDITION, REVISED AND EDITED Bt ROBERT CAMPBELL, ADVOCATE (scotch BAK). A^'D OF LIXCOLX'S EN-y, BARPaSTEE-AT-LAW. 12ower she exercised in society was due to the sterling ei^arfjuahties of her judgment, her knowledge, her hterary style jjj— which was one of great purity and excelleuce — and, above , .11, to her cordial readiness to promote all good objects, to ^•^inaintain high principles of action, and to confer benefits on a'iillill who claimed her aid. jj ' Mrs. Austin vras descended from the Taylors of Norvrich, Ji family which has in several generations produced men and ivomen distinguished bv literary and scientific ability. She ™ was born in 1793, and she received in her father's house an education of more than common range. In 1820 she mar- r.ried ^dr. John Austin, then a barrister on the Xorfolk Circuit, ' I and came to reside next door to 2>Ir. Bentham and Mr. James ^Mill, in Queen Square, Westminster. Although thcit house llicould boast of none of the attractions of luxury, for the fortune , ^ of its owners was extremely small, it soon collected vrithin its walls as remarkable an assemblage of persons as ever met in a London drayiii2,'-room. There mii^ht be seen — a dim \ .' . \ ni viii Advertisement w this Edition. j I and flitting figure of the past — Mr. Bentliam and his | ciples, James and John Stuart Mill, the Grotes, th pxib-' lawyers of that day whose success, has justified the l^Q^ij^ of their dawn, Bickersteth, Erie, Romilly, and Senior, . this wisdom and learning was enlivened in later years 1?^^''' wit of Charles BuUer, by the hearty sallies of Sydney Sire: by the polished eloquence of Jeffrey, by the courteous amt^ J/ of Lord Lansdowne, and by the varied resources of fore ] visitors who found a home by Mrs. Austin's hearth. ' Mrs. Austin never aspired to original literary composit Except in some of the prefaces to her translations, she claimed all right to address the public in her own persoi She, therefore, devoted the singular power of her pen to r( produce in English many of the best contemporary works German and French literature. Her translations from tl| German, more especially, were of the highest excellence, an among these her version of Ranke's Popes of Borne has bee commended by the best judges as deserving to retain a pla( in Eno4ish historical literature. ' Much of Mrs. Austin's life was spent abroad, and not a fe of the most eminent persons in continental society enjoye her friendship. She had inhabited two German TJniversiti( for the prosecution of her husband's studies, after he ha quitted the bar for a chair of jurisprudence in the Londc University. She had accompanied him to Malta when he w sent as a commissioner to that island. She remained f(j some years in Paris, where her small salon had an intellectul stamp and charm not inferior to that of her London cu jll The revolution of 1848 drove the Austins back to Englanol they established themselves in the village of Weybridge, aij calmly anticipated the day when they should rest side by sic in Weybridge churchyard. Mrs. Austin, however, survive her husband for several years, and that interval was employe by her in accomplishing a task which to most women wou have seemed hopeless. The greater part of the Lecturi delivered by Professor Austin on the principles of juri prudence had remained in manuscript. His ill-health le him constantly to postpone the task of preparing them for tl press. After his death his widow, assisted by one or t\ " legal friends on whose judgment she could rely, succeeded completing the imperfect edifice from the fragments of it th remained; and we owe to Mrs. Austin, already advanced years, and struggling with a painful disease, the productio (laii 6t Advertisement to this Edition. ix of a work on jurisprudence, which, is unquestionably the noblest monument that could be raised to the memory of her husband.' In pursuance of a bequest of Mrs. Austin's, the books 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 vorimes 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 sub- joined of the books formiog the collection so placed in the Inner Temple Library : — No. of Vols. Friedrich Carl von Savigny, Geschichte des romischen Reclits im Mittelalter, Heidelberg, 1815-29 . . .5 Das Reclit des Besitzes, Giessen, 1827 . . .1 „ System des heutigen romischen Rechts (first volume only) I Berlin, 1840 . . . . . .1 „ Vom Beruf unsrer Zeit fiir Gesetzgebung und Reclitswis- i senscliaft, Heidelberg, 1814 . . . .1 „ Translation of the last, by Abraham Hayward. Printed by Littlewood & Co., Old Bailey, London (not for sale) . . , . . . .1 Karl Friedrich Eichhom, Einleitung in das deutsche Privatrecht, ' Gottingen, 1825 . . . . .1 „ Deutsche Staats- imdRechtsgeschichte, 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*^^ Band, 2te^Versuch; Berlin, 1818; 2^^^' Band, 4teAusgabe ; Berlin, 1819; 5^^^ (sonst 7^^'') Band, Ausgabe ; Berlin, 1820 ; erster Band, 7*^ Ausgabe ; Berlin, 1823 . . . . . . .4 Graii Institutionum Commentarii IV., ed. J. F. L. Goschen, Berlin, 1823. (Full of analytical notes by Mr. Austin) , 1 X Advertisement to this Edition. No. of Vols. A. F. J. Thibaut, Theorie der logischen AuslegUDg des ro- niischen Eechts, Altona, 1806 . . . .1 „ Versuche Uber einzelne Theile der Theorie des Reclits, Jena, 1817 . . . . . .2 „ Civilistisclie Abhandlungen, Heidelberg, 1814 . . 1 „ System des Pandekten-Eechts, Jena, 1828 . . 2 Dr. Ferdinand Mackeldey, Lehrbuch des lieutigen romischen Rechts, Giessen, 1827, two vols, (bound in one) . 2 Christian Friedricli MUhlenbruch, Doctrina Pandectarum, Halle, 1827 . . . . . . .3 August Wilhelm HefFter, Institutionen des romischen und dentschen Civil-Processes, Bonn, 1825 . . . 3 ^ D. Christ. Gottlieb Haubold, Institutionum Juris Romani Priv?!.i historico-dogmaticarum Lineamenta, Leipzig, 1826 . 1 „ Institutionum, &c., Epitome, Leipzig, 1821 . .1 Ernst Spangenberg, Einleitung in das Romisch-Justinianische Rechtsbuch, Hanover, 1817 . . . .1 And. W. Cramer, De Verborum significatione Tituli Pandec- tarum et Codicis cum variae lectionibus Apparatu, Kiliae, 1811 . . . . . .1 Heinrich Moritz Chalybiius, Historische Entwickelung der specu- lativen Philosophie, 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 Sit- tenlehre, Berlin, 1803 . . . . .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., London, 1830 1 ,, Frao;ment on Government, Dublin, 1776 . . .1 ,, Draught of a New Plan for the Organisation of the Judicial Establishment in France, March, 1790 . . .1 „ Traites de Legislation civile et penale, publics en Fran9ais par Et. Duniont, de Geneve, d'apres les manuscrits con- fies par I'auteur . . . . . .3 John James Park, Contre-projet to the Humphreysian Code, London, 1828 ...... 1 Sir James Mackintosh, Dissertation on the Progress of Ethical ( hi r - ! . Advertise^nent to this Edition. xi .'hilosophy, chiefly during the 17th and 18th centuries, 1 fl tvith Preface by Wm. Whewell, Edinburgh, 1836 2 ft ill, Essays on, 1. Government; 2. Jurisprudence; 3. I ^ Liberty of the Press ; 4. Prisons and Prison Discipline ; No. of Vols. J 5. Colonies ; 6. Law of Nations ; 7. Education ; London, printed (not for sale) by J. Innes, 61, Wells Street, Oxford Street ...... /ich List, Das nationale System der politischen Oekonomie, Stuttgart and Tubingen, 1841 . . . . emeines Landrecht fiir die Preussischen Staaten, Berlin, / 1828 ....... Igemeines Criminal-Recht fiir die Preussischen Staaten, Berlin, f 1827 ....... ilgemeine Deposital-Ordnung filr die Ober- und Unter-Gerichte der sammtlichen koniglich-Preussischen Lande, 15th September, 1783, Berlin, 1783 . . . . igemeine Gerichts-Ordnung fiir die Preussischen Staaten, Berlin, 1822 ....... Ilgemeine Hypotheken-Ordnung fiir die gesammten koniglichen Staaten, 20th December, 1783, Berlin, 1784 st2 'uction fiir die Ober- und Untergerichte zur Ausflihrung der koniglichen Verordnung vom 16*^"^ Juni d. J. wegen Einrichtung des Hypotheken-Wesens in dem mit den Preussischen Staaten vereinigten Herzogthum Sachsen, ^ Berlin, 1820 ...... J, C ^esetzbuch fiir die herzoglich Holstein-Oldenburgischen Lande, Oldenburg, 1814 -j^jd W. Beck, edition of Corpus Juris Civilis, Leipzig, 1825-6 ^ (2nd vol. in two parts) .... \\Tsi Hoppe, Commentarii succinta ad Institutiones Jus- tinianeas, Frankfort and Leipzig, 1736 . Matthaeus, De Criminibus ad xlvii. et xlviii. Dig. comment. Vesaliae, 1672 Gottl. Heineccius, Recitationes in elementa Juris Civilis secundum ordinem Institutionum, Yratislaviae, 1789 „ Antiquitatum Eomanarum Jurisprudentiam illustrantium syntagma, ed. Haubold, Frankfort, 1822 ohn Reddie, Historical Notices of the Roman Law, Edinburgh, 1826 ....... )L. A. Warnkonig, Versuch einer Begriindung des Rechts durch I eine Yernunftidee, Bonn, 1819 /Johann Wening, Ueber den Geist des Studiums der Jurisprudenz, I Landshut, 1814 ..... Eduard Puggaeus, edition of Theodosiani Codicis Fragmenta, Bonn, 1825. Angelus Mains, Juris Romani Ante-Justinianei Fragmenta NfO. Ot \ xii Advertisement to this Edition, vois. Vaticana (e codice palimpsesto eruta), Rome and , 1824 ...... D. Christoph Martin, Lehrbuch des Teutschen gemeinen Crimi. e Processes, Gottingen, 1820 Corpus Juris Pridericanum, erstes Bucli. Von der Prozessordnui Berlin, 1781 . B. G. Niebulir and Eh. A. Brandis, Elieinisclies Museum ft_^ Pliilologie, Gescliichte und griechische Philosophie, Bonri,j| 1827-8 ..... .t F. C. von Savigny, C. P. Eichhorn, and T. P. L. Goschen, Zeit- schrift fiir geschichtliche Reclitswissenschaft, Berlin, 1815-23 Geo. Lud. Boehmer, Principia Juris Canonici speciatim Juris Ecclesiastici publici et privati quod per Germaniam obtinet, Gottingen, 1802 .... Paul J. Anselm Feuerbach, Betrachtungen liber das Geschwornen- Gericlit, Landshut, 1813 Lehrbuch des gemeinen in Deutschland giiltigen peinlichen Rechts, Giessen, 1826 .... M. C. F. W. Gravell, PrLifung der Gutachten der konigl. Preuss. \ Immediat-Justiz- Commission am Rhein iiber die dort- igen Justiz-Einrichtungen, Leipzig, 1819 Ludwig Heinrich Jordan, Ueber die Billigkeit bey Entscheidunp^ der RechtsMle, Gottingen, 1804 p. Vincenz August Wagner, Zeitschrift f lir osterreichische Rechts- gelehrsamkeit und politische Gesetzkunde, Wien, 183G (12th part) C. F. Rosshirt, Lehrbuch des Criminalrechts, Heidelberg, 1821 ., C. J. A. Mittermaier, Ueber die Grundfehler der Behandlung; des Criminalrechts in Lehr- und Strafgesetzblichern, Bonn, 1819 „ Grundriss zu Vorlesungen liber das Strafverfahren Cesare Beccaria (Marchese), Dei Delitti e delle Pene, London, 1801 ....... A. R. Philippo du Trieu, Manuductio ad Logicam, London, 1826 Isaac Watts, D.D., Logick, 7th edition, London, 1740 Arthur Schopenhauer, Die beiden Grundproblenie der Ethik, Frankfort, 1841 ..... Sir William Blackstone, Commentaries on the Laws of England, 15th edition, by Edward Christian, London, 1809 Anonymous, Remarks on Criminal Law, with a plan for an im- proved system, and Observations on the Prevention of Crime, London, Hamilton, Adams, & Co., 1834 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 ' Centrali- sation,' by Mr. Austin; 3. The pamphlet 'A Plea for the Advertisement to this Edition. No. of Vols. Constitution,' mentioned in Mrs. Austin's preface to these Lectures ; 4. An article from'the ' Edinburgh Eeview,' October 1863, 'Austin on Jurisprudence,' understood to be by Mr. J. S. Mill . . , . .1 A copy of the former edition (by Mrs. Austin) of these Lectures. 3 Eanke's History of the Popes, translated fi^om the German by Sarah Austin, London, 1866 . . . . .3 Henry Eoscoe, Digest of the Law of Evidence in Criminal Cases, London, 1835 . . . . . .1 T. E. 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 'Eemarques sur la definition et sur la classification des choses,' and being a treatise suggested by a work of M. Poncet, dated about 1817 . . . . . . .1 N. Falck, Juristische Encyklopadie, Kiel, 1825 . . .1 Carl von Eotteck and Carl Welcker, Staats-Lexikon, oder Encyklo- padie der Staatswissenschaften, Altona, 1842 . . 1 Eobert Eden, Jurisprudentia Philologica, Oxford, 1744 . . 1 J. B. Sirey, Les cinq Codes, avec notes et traites, Paris, 1819 . 1 AI. Biret, Vocabulaire des cinq Codes, Paris, 1826 . .1 1. Camus and M. Dupin, Lettres [sur la profession d'Avocat et bibliotheque choisie, Paris, 1818 . . .2 v. A. Eogron, Code de Procedure civile explique, Paris, 1826 j (bound in 4 parts) . . . . .2 fl. de Vattel, Droit des Gens, Lyon, 1802 . . .3 " reorge Frederic von Martens, Precis du Droit des Gens moderne de I'Europe, fonde sur les traites et I'usage, Gottingen, 1821 . . . . . . .1 >onrad J. Alex. Baumbacli, Einleitung- in das Natiurrecht, 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 The notes of the late TiKlitor are generally marked by the initials ' S. A/ 1 1 Those of the present editor by the initials 'E.G.' CONTENTS OF THE FIEST VOLUME. PsEFACE (by Sarah Austin) . . , P^ge 1 )UTLI>-E OF THE CoUESE OF LECTURES . 32 THE PROVDsXE OF JUEISPEUDENCE DETEEMIXED. Lnalysis of Lectuees I. — VI 81 LEOTUEE I. ^h.e 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- I sive literal sense. — Law of G-od. — 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 I 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 connexion of the three terms, command, duty, and \ sanction. — The manner of that connexion. — Lcms or rules distinguished I from commands which are occasional or particular. — The definition of a law or rule, properly so called. — The meaning of the correlative terms j 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 , , , .83 LECTURE n. 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 I laws as are unrevealed. — What is the index to such of the Divine laws as I] are unrevealed ? — The hypotheses or theories which regard the nature of xvi Contents of the First Volnme, j \ that index. — The hypothesis or theory of a moral sense, or innate practicat \ principles ; of a practical reason ; of a common sense, etc. etc. — The theory \ J or hypothesds 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 1 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 1 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 principle of general utility, or guided by a conjecture and comparison of sp)ecific or particular consequences. — The second answer to the foregoing objection, briefly resumed. . . Page 106 LECTURE IIL 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 foregoing J answer solved or extenuated. — The second objection to the theory of ■ utility, together with the foregoing answer to that second objection ill briefly re-stated . LECTUHE 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 reflection or con- science,' ' 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 assumptions. — The first of the two assumptions involved by the hypothesis in question, stated in general expressions. — The foregoing statement of the first as- Buniption, 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 in- volved 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 Co'dtejits of the First Vohiine, xvii question ? — Tte iiypotiiesis in quesrion is disproved br tiie nesrative state of our consciousness. — The two current arguments in farour of the hypotliesis in question briefiv stated. — The first argument in laTOur of the hypothesis in question, examined. — The second argument in lavour of the hypothesis in question, examined. — 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. ■ — 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 fow natural and law jMsitive. and the division of JUS civile into jus gentium and. jus civile, suppose or involve the inter- mediate hypothesis which is compounded of the hypothesis of utility and the hypothesis of a moral sense. — The foregoing disquisitions on the index to G-od"s commands, closed with an endeavour to clear the theory of utility from two current though gross misconceptions. — The two miscon- ceptions stated. — The first misconception examined. — The second mis- conception examined ......... Page 14^ LECTUEE V. .aws proper or properly so called, and laws improper or improperly so called. — ^Analogy and metaphor as used in common parlance defined. — Laws im- proper 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 STich improper laws as are closely analogous to the proper, under three capital classes : — 1. The law of G-od, 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. — Explanation of the following expressions, viz. science of jurisprudence and scieyice of positive moralfti/ ; science of ethics or deontology, science of legislation and science of morals. — -VTeaning of the epithet good or bad as applied to a human law. — ^Sdeaning of the epithet good as applied to the law of God. — The expression lav: of nature, or natural lav:, has two disparate meanings. It signifies the law of God, or a portion of positive law and positive morality. — The connexion 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 positive moral rules, some are laws proper, but others are laws improper. The positive moral rules, •which are laws properly so called, are commands. — Laws set by men, as private persons, in pursuance of legal rights. — The positive moral rules, which are laws improperly so called, are luws set or imposed hy general opinion. — 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 determinme 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 distribution of laws proper, and of such improper laws as are 3L. I. a XViU Co7ite7its of the First Volunce. closely analogous to the proper, briefly recapitulated. — The sanctions proper and improper, 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 Grod, positive law, and positive morality, sometimes coincide, sometimes 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, oiighttobe objects respectively of positive morality a.nd 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 meta- phorical or figurative are often blended and confounded with laws im- perative and proper. — Physical or natural sanctions. — In strictness, 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 deon- tology ; Examples from the Eoman jurists and Lord Mansfield , Page 1 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. — Strickly speaking, the sovereign portion of the society, and not the society itself, is inde- pendent, 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 (including the definition o: 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 considerable, or not ex- tremely minute. — Certain of the definitions of the term sovereignty, and of the implied or correlative term independent political socidy, 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 govprnment. — Every supreme government 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 aristocracies as are founded on differences between the proportions which the number of the sovereign body may bear to the number of the community. — Of such distinctions between Contents of the First Voliune. aristocracies as are founded on differences between the modes wherein the sovereign number may share the sovereign powers. — Of such aristo- cracies as are styled limited mo7iarcJiies. — Various meanings of the following terms: — 1. The term. ' sovereign,' or ' z^Ae 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 represent- ing 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 go vernment : with the nature of a system of confederated states, or a permanent con- federacy of supreme governments. — The limits of sovereign power. — The essential difference of a positive law. — It follows from the essential dif- ference 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 contradistin- guished to the epithet illegcd, 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 of Hobbes's proposition, that 'no law can be unjust.' — Just or unjust, justice or injustice, is a term of relative and varying import.— Considered 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 sup- posed difference between free and despotic governments. — Why it has been doubted, that the power of a sovereign is incapable of legal limita- tion. — 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. — 'Eight is might.' — 'Eight' as meaning 'faculty,' and 'right' as meaning 'justice.' — 'Eight' 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 sovereign 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 origincd covenant or the fundamental civil pact. — The distinction of sovereign governments into governments de jure and governments de facto. — General statement of the province of jurispru- dence as defined in the foregoing lectures . . . . , Page 2 a 2 XX Contents of the First Volume. ANALYSIS OF PERVADING NOTIONS. LECTURE XIL 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 ser- vices. — Obligations are relative or absolute. — Rights im-p\j persons, things, acts, and forbearances. — Persons, natural or fictitious. — Meaning of * physical person,' or ' person ' simply. — ' Person ' frequently synonymous with 'status' or ' condition.' — Fictitious or legal persons . . Page 353 LECTURE Xin. Recapitulation. — Meaning of ' thing.' — Distinctions between things.— Things signifying acts and forbearances. — Corporeal and incorporeal things. — Distinction between y^ra rerum and jura, ])ersonar^lm briefly introduced 36, 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.— J)\si\uci\on. between jus in rem and jus in 'personam. — Illustrations of the distinction between /ms in rem and jus in personam. — Property. — Servitus. — Examples of rights in 'personam : ■ — 1st. A right arising out of a contract; 2ndly. A right founded on an injury 374 LECTURE XV. Further illustrations of the distinction between jus in rem and jus in personam. — Jus in rem restricted by certain writers to j/'ms 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 riglit. And may be styled (by analogy) a thing. — Jus realiter personale. — Rights iti rem, without determinate subjects . , . 392 LECTURE X\T. Purpose and order of the present lecture. — Common nature of rights. — Certain definitions of a right examined ...... . 404 , , LECTURE XVII. Import of 'right' in abstract. — Duties are relative or absolute. — Absolute duties defined by exhaustive enumeration. — Order in which I shall coup sider absolute duties in the present lecture. — Self -regarding duties, and duties not regarding man, regard persons generally in respect of their Contents of the First Volnme. XXI remote piu'pose. — Helative duties regard persons generally, in respect of their remote purpose. — Duties towards persons generally are, indirectly, duties towards determinate persons. — Jus publicum et privatum. — Civil injuries and crimes. — Difference between relative and absolute duties, etc. — Distinctions between absolute duties ..... Page 412 LECTL'EE XYIII. Brief review of preceding lectures. — Obligation, injiuy, and sanction imply motive, will, intention, negligence, and rashness. — Apology for in- quiry 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? — Xames of acts comprise certain of their consequences. — Confusion of will and intention. — ^Motive and will. — Motives to volitions. — Motives to motives. — "Why the will has attracted so much attention : and been thoiight mysterious . . , , , , . . .419 LECTURE XIX. Volitions and motives. — Acts. — Internal acts. — Intention as regarding present acts, or the consequences of present acts. — Confusion of will and intention. — A consequence of an act may not be intended. — An intended conse- quence of an act maybe 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. — Con- currence of motive andintention.^Exemplifications of the three foregoing suppositions. — Of the first supposition. — Of the second supposition. — Of the third supposition. — Forbearances are intended, but not willed . 430 LECTUEE 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. — Xegligence. — Heedlessness. — Negligence and heed- lessness compared. — Rashness. — Xegligence, heedlessness, and rashness, likened and distinguished. — Dolus. — Culpa. — Malice. — Dolus and culpa. — Eoman law ............ 4S8 LECTUEE 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 fixture 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 futiu-e acts are certain or uncertain ; are matured or undigested. — A consilium, or compassing. — Attempts. — Intention of legislator, etc. 449 XXil Contents of the First Volume. 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 will not impos- sible. — 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 457 LECTUEE 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 . . 467 LECTURE XXIV. Immediate and remote objects of duties. — Eorbearances, 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 injury, guilt, etc. — Brief analysis of negligence and its modes ; of intention re- garding 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 ? — Eestriction 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. — Eurther remarks on the import of the word 'dolus.' — Ambiguity of ' Schuldner,' ' Reus,' etc. ....... 472 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. — Grrounds of exemption from liability, mostly reducible to the principle last stated, — 1. Casus or accident. — 2. Ignorance or error. — The objection to ex 290sif/acz!o laws, deducible from the same principle .... 484 LECTURE XXVL Recapitulation. — Consideration of the exemptions from liability resumed. — 3. Infancy and Insanity. — Digression on the different kinds of prcestoyn^otiones 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. — Grrounds of exemption not depending on the foregoing principle. 1. Physical compulsion.— 2. Extreme terror. — The so-called exemptions not properly exemptions, but cases to which the idea of obligation does not apply . 504 Contents of the Fu^st Volume. XXlll LECTUEE XXVII. Correction of statements in last lecture : Anger, p. 513, ante. — Statement as to acquisitive praescription, p. 509, 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 516 PREFACE. (By SARAH AUSTIN.) It seems necessary that I sliould endeavour to justify tlie 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 incomplete 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 presumption 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 imperfect 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 * This preface, ending with the divi- What follows the division on p. 26 be- sion on p. 26, belonged to the edition longed to the edition of the remaining or reprint pubhshed in 1861, of 'The lectures, published in 1863, forming the Province of Jurisprudence determined.' seq^uel to the volume published in. 1861. VOL. I. B 2 Preface, its reacli, till its waters liad been diverted into other cliannels, or had disappeared altogether. In proportion as the demand for the book became urgent, more years and more occupa- tions were interposed between the state of mind in which it was written, and that in which this demand found him. Above all, the 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 submitting 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 vfith 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, conclusive, I have determined to re-publish the following volume, and to publish the rest of the series of Lectures of v^diich those herein contained form a part, it appears neces- sary 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 paralyzed 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 understood 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 appreciated, nor did he seek for the rewards which society Preface. 3 had to give ; "but in all that he said and did there was a dignitj and magnanimity which conveyed one of the most impressive lessons that can be conceived as to the true nature and true sources of greatness.' 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, but 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 it. The high and punctilious sense of honour, the chivalrous tender- ness for the weak, the generous ardour mixed with reverence for authority and discipline, 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 intellecbual gifts for which he was so remarkable. Mr. Austin was called to the Bar in 1818. 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 confi- dently predicted for him the highest honours of his pro- fession. 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 admirahle sincerity, from the very first, he. made her the confidant of his forebodings. Eour 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 inclination to complain of a destiny distinctly put before her and deliberately accepted. Nor has she ever been able to imagine one so consonant to her ambition, or so gratifying to her pride, as that which ren- dered her the sharer in his honourable poverty. B 2 4 Preface. I must be periiiLtted to say this, tliat lie may not be tbougbt to 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 disappointment. Whatever there may be of complaint in this brief narrative, is excited by the recollec- tion of great qualities unappreciated, 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 immea- surable 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 ; 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-distrusting. He could do nothing rapidly or imperfectly ; he could not prevail upon himself tp regard any portion of his work as insignificant ; he employed a de- gree 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. In 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 Preface. 5 vvill in no sliort time give me so exclusive and intolerant a taste (as far, I mean, as relates to my o^vn productions) for j^erspicnity and precision, tliat I sliall hardly ventm^e on sending a letter of mncli purpose, even to yon, unless it be laboured ^vitll tlie accuracy and circumspection wliicli are requisite in a deed of conveyance.' But tlie liabit of drawing ' did not create, tliough it niiglit develope, tbis tendency to exact from bimself a degTee of perfection incompatible witb promptitude and dispatch. He vras, as he says, intolerant of any imperfection ; and so long as he could descry the smallest error or ambiguity in a phi^ase, 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. Li the year 1826, the University of London (now Uni- versity 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 admit- tance and fostering in this. Among the sciences which it was proposed to teach, was Jui-isprudence, 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 jmists of that country, for whom he had abeady conceived a profotmd admiration. He immediately set about learning the lan- guage, and had already made some progress before he left England. In the autumn of 1827, after visiting Heidelberg, he established himself with his wife and child at Bonn, which was then the residence of Xiebuhr, Brandis, Schleo-el, Arndt, Welcher, Mackeldey, Heffter, and other eminent men, from whose society he received equal pleasure and instrtiction. Mr. Austin secui^ed 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 appointment. They are called Frivatdocenteiu 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 canied into everything he studied. He also, as I find from some slight memoranda, took great 6 Preface. pains to inform liimself thorouglily of tlie discipline and mode of teaching in the German Universities. He often expressed his earnest desire to carry home, for the nse of England, whatever were most worthy of imitation in Ger- many. 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 resi- dence there as one of the most agreeable portions of his life. 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 the qualities most consonant to their tastes ; respect for knowledge, 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 quit- ting the Bar, and was only partially restored by the com- parative tranquillity of mind which followed his appoint- ment, and by his salutary and agreeable residence on the Ehine. His Lectures opened with a class which exceeded his ex- pectations. 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 respon- sibility attaching to his office. He had the highest possible conception of the importance of clear notions on the founda- tions 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 Preface. 7 cliaracteristic, and, to tliose wlio knew him, inexpressibly touching. To such, they will vividly recal the man whose passionate love of truth and knowledge is apparent even in these hasty words. ' Before we separate, I wish to say a few words. It is my purpose to hold conversations at the end of every lecture. [Advantages to myself and to the gentlemen of my class — Ad- vantages 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 : Dulness of written lectures :] I therefore wish, of all things, to form a habit of lecturing ex- tem23ore : To 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 you not 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. Request 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 v, v, which he evidently meant to expand or analyze extempora- neously. 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 conversation than in his written lectures. As soon as he reduced anything to writing, the severity of his taste and 8 Preface, 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. 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 harmonious, and his elocution perfect. Nobody ever heard him talk without being powerfully struck with the vigour and originality of his discourse, the variety and extent of his knowledge, 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 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 not 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 im- plicitly 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 stan- dard he bore within him, it was only to a very peculiar sort of encouragement that he was accessible. The highest ap- plause 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 mio^ht continue to labour for the advancement of Preface. 9 the sublime science of which lie knew himself to be so con- summate 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 cir- cumstances, attract numerous audiences. Where, therefore, there is any serious intention that the few who addict them- selves 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 posi- tion is perhaps not brilliant, but it is secure and honourable, and affords them leisure for the prosecution of their science. 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. ' In spite,' says the illustrious writer of a notice of Mr. Austin's death, in the ' Law Magazine,' ^of the brilliant com- mencement of his career as a Professor, it soon became evi- dent 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 pro- fessorship. Mr. Austin, who had no fortune, and who re- garded 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 regard their profession only as a means of making money, found himself under the necessity of re- signing his Chair.' ^ Such was the end of his exertions in a cause to which he had devoted himself with an ardour and singleness of pur- pose of which few men are capable. This was the real and irremediable 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 who cared for him. 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. ^ Law 3Iagazine and Eeview, for May 1S60. lO Preface. At tlie 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 pos- sible. 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. In 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 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 ground- less, 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. 'So few,' says he, 'are the sincere inquirers who turn their atten- tion to these sciences, and so difficult is it for tlie multitude to per- ceive the worth of their labours, that the advancement of the sciences themselves is comparatively slow ; whilst the most perspi- cuous of the truths with which they are occasionally 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.' It must be admitted that the reception given to his book at first was not encouraging. Neither of the Eeviews which profess 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 thej were appreciated. Preface. In tlie year 1833 Islx. Austin was appointed by Lord Brougham, then Lord* Chancellor, member of the Criminal Law Commission. Though this turned him from the pur- suit 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 comprehensive 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, difi'ered 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. Tlim let them appoint a Commission to pull it in pieces.' He used to come home fi^om every meeting of the Commission disheartened 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 com- mencement of a project of a Criminal Code di^awn 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. 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 jm-isprudence. 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 12 Preface, conditions, it was one whicli lie would liave preferred to any other, however distinguished or however lucrative. Unfor- tunately, it was not of a kind to give him the security and confidence he wanted. He was invited to undertake 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 ap- pointment could only be regarded as an experiment. This uncertainty weighed upon him from the first. He was, as I have said, disqualifi.ed 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 disheartened 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 any- thing like scientific legal education had to be created. The eminent lawyers who had adorned the English bar and bench (of whose great faculties no one had a higher admi- ration than Mr. Austin) had been formed by a totally dif- ferent 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 aspira- tions, 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 at- tend. 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. Preface. 13 He quitted England with a strong feeling of the disad- vantage 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 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 illustrious 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. He had been settled at Boulogne about a year and a half, when a proposal was made to him by the Colonial Ofl&ce, through his much esteemed and faithful friend Sir James Stephen, to go to Malta as Eoyal Commissioner, to inquire into the natui^e and extent of the grievances of which the natives of that island complained. He accepted an appoint- ment 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 he was not likely to view with indulgence, violations of the conditions under 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 fan- tastic schemes or groundless complaints. Aided by his able and accomplished colleague Mr. (now Su') 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 connexion 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 lono- after called, 'the most successful leoislative experiment he had seen in his time and of various parts of the administration of the island, Mr. Lewis having been 14 Preface. recalled to England to preside over the Poor Law Board, Mr. Austin was preparing to enter upon his more peculiar pro- vince, — legal and judicial reform. Lord Glenelg, however, was no longer in office, and the Commission 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.^ 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, be 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 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 absorp- tion in his sn.bject, 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 ^ ' Such was the man,' says a Malta puted that the inhabitants of this island journal, in an article announcing his are greatly advanced in the scale of death, ' to whom the Maltese must ever civilization, both politically and socially, feel grateful for their improved condi- and rendered more essentially British in tion as a people, and for the many pri- civil polity and institutions, by the mea- vileges they now enjoy ; and most of all sures adopted on the recommendation of for the liberty of the press under which the Commission presided over by Mr. we are now writing. It cannot be dis- Austin.' Preface. 15 evaded these applications ; but to the person with whom he had no reserves, he used to say, ' I cannot work so ; I can do nothing in a perfunctory manner.' 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 difB-Culty 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 Avhen a second edition of his book was first demanded, he was, as I have said, occu|)ied 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 con- fessed, of seeing him again. From those wonder-working waters however he received so much benefit that he deter- mined 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 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 profitably 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, — especially Herr von Savigny. Political questions were then agitated with great warmth and acrimon}^ 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 afiairs 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 Eeview, his answer to Dr. List's violent attack on the doctrine of Free Trade. i6 Preface. In 1844 lie 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. Guizot is sufficient. C'etait un des hommes les plus distingues, un des esprits les plus rares, et un des coeurs 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 flattering 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 probably have done ; but Mr. Austin had discovered defects in it which had escaped the criticism of others ; and with that fastidious taste and scrupulous conscience which it was impossible to satisfy, he refused to republish what appeared to him imperfections. That he had long meditated a book embracing a far wider field, I well knew ; but I feared that this 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 men- tioned, he said, that the book must be entirely recast and rewritten, and that there must be at least another volume. His oj)inion 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 Preface. 17 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 he 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 hear of the existence of another. I can- not find that it attracted any attention. Tlie Principles and delations of Jurisprudence and Ethics. By JoHis ArsTix, Esq_., of the Inner Temple, Barrister-ai-Laic. An Outline of a Course of Lectures on General Jurisprudence, preceded by an attempt to determine the province of tlie 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 imdertake 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. To explain their several natures, and present them with their common relations, is the pm-pose of the essay ou 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 with- out ambiguity. As related to positive law (the appropriate subject of Juris- prudence), 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 con- form, there is no current expression for the principles in question which will denote them adequately and distinctly. He (author) had thought of en- titling 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. VOL.. I. 0 i8 Preface. He announced tlie same intention in a letter to tlie present Cliief 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 follovv^ing 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 sen- tence, which must relate to one of the many applications made to him for a second edition : probably they were pre- ceded by some such words as^ — \Wliat 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 utihty. ' I intend to show the relations of positive morality and law (mo5 and jus\ and of both, to their common standard or test ; to show that there are principles 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 diffi- cult, 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 sug- gestions will be of considerable use to those who, under happier auspices, will pursue the inquiry. ' There are points upon which I shall ask your advice. ' Yours most truly, ' John Austin.' He had finally established himself in Paris, when the devolution 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 Prance ; 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 pub- lished in 1859. He rema^ined for some months in Paris after the Pevolu- Preface. 19 tion, watching tlie course of things. As he became more and more convinced that permanent tranquillitj was not to be looked for in France, and that life there would be incessantly troubled and embittered by uncertainty and alarm, he re- signed 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. He had neither vanity, nor ambition, nor any desires beyond what his small income sufl&ced to satisfy. He had no regrets or repinings at his own poverty and obscurity, contrasted with the suc- cesses of other men. He was insatiable in the pursuit of knowledo-e ' and truth for their own sake ; and durino- 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 occasional 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, 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 rendered 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 gratefal 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 c 2 20 Pr^eface. distasteful, to his constant and liberal nature. He had a disinterested hatred of expense, and of pretension, 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 3^ears 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 tranquillizing 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 ap- preciated, 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 blessingo. The calm evening that followed on so cloudy and stormy a da.y, 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 no- thing else could, and his last effort was prompted by benevo- lence and patriotism. He was,, in his solitude, a deeply interested observer of political events. He viewed with great anxiety and dis- approbation 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 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 intellect, or the difficult pro- blems they deal with, to the judgment and the handling of Pi^eface. imeclucated masses, seemed to liim a return towards bar- barism. He, least of all men, was likely to be dazzled or attracted by wealth, or rank ; but lie valued tbem on public grounds, as providing for tlieir possessors tlie bigkest sort of education, and tke leisure and opportunity to ajoply tkat education to the general culture of the human mind, — es- pecially 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 consequences 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 coun- tries, and intercourse 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 ap- peared 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 immediate^ 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 separately. 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 T^ith which his noble and disinterested efforts had been received, subsided. His estimate of men was low, and his solicitude for their aj)probation was consequently small. But while he kept aloof from them, his sympathy with their sufferings, and his anxiety for their improvement never abated. For him- self, 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 mitainted by a single unjust or ungenerous action or thought, a single concession 22 Preface. to worldly or selfisli objects, a single attempt to stifle or to disguise trutli, could justify a serene anticipation of the world into which, none of these things can enter, he might be per- mitted 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 dis- inclined him— from entering afresh on the labour of re-con- structing 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 pub- lish. I have questioned myself strictl^r, whether, in devoting the rest of my life to an occupation which seems in some de- gree to continue my intercourse with him, I was not rather indulging myself than fulfilling my duty to him. There 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 unregarded labours for the good of man- kind. But calmer thoughts have led me to the conclusion, that I ought not to sufPer the fruit of so much toil and of so great a mind to perish ; that what his own severe, and fasti- dious 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 conferred on his country and on mankind, may yet flow through devious and. indirect channels. 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 hap- piness. Having thus come to the conclusion that some of the manuscripts 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 Preface. discretion as to tlie matter and form of tlie publication. But it did not appear that any sucli person could be found, or was likely to be found. A great portion of tlie manuscript was in so imperfect and fragmentary a state, tliat it was clear that the whole must be recast and rewritten 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 pro- cess. It was to be feared that any editor who had not the self-forgetting deTotion of a Dumont, would be more sensible of his responsibility towards the public than of that towards his author. There are great peculiarities in ]\Ir. 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 fi'om his hearers or readers the full force of then- attention ; and as he knew how lax and flitting the attention of most men is apt to Jbe, he adopted every expedient for fixing or recalling it. He shi-ank from no repetitions that he thought necessary to keep a subject steadily and distinctly before the mind, and he availed him- self of all typographical helps for the same |)nrpose. 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 avlLI, remove this eve- sore. They will not be bound by the deference which must govern me. It will not be supposed that I think it necessary to call in any testimony to the value of the materials I have to i3roduce. But those whose estimate of them is the highest, may verv 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 lie, would, I knew, have had the greatest reliance, that I deteiTuined on the course I have pursued. The opinion and the advice which I received fi-om all was. essen- tially the same ; — that all the Lectures should be published, ^ with only such revision as may remove needless repetitions ; ' and that, considering the confused and fi-agmentary state of much of the manuscript, the safest editor would be the person most deeply interested in the author's reputation, and most lilviely to bestow patient and reverential care on every relic left by him. 24 Pj'-eface. I need not repeat tlie terms in wliicli Mr. Austin's friends encouraged me to undertake the task of putting these pre- cious materials in order, nor tlie offers of advice and assist- ance which, determined me lo 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 ac- cept such small assistance 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 interest- ing 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 consists, 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 sugrp^estions for his own use, — indications 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^ 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 au- thor's expression) ' in obedience to the affinity of the tojDics,' reduced by him to six. There remain, unprinted, all the rest of the Lectures ^ Viz. 1861. See note, p. 1, and Advertisement to this edition. Preface. 25 given at tlie London University. Tliese I propose to print exactly as he left them. I shall alter nothing, and shall only make the omissions suggested ahove. This course is, I think, fully justified by the opinions already cited. There is also the short Course, delivered at the Inner Temple. But as this necessarily Tvent in great measure over ground v'hich 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 manu- script seems to show that the author meant to incorporate them with the former ; or rather, to employ both in the con- struction of the great work he meditated. When Mr. Austin was preparing his lectm-es 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. ^v"or were they ever completed. Between Tables I., 11. , and YIIL, 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 extaordinary 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 explana- tory 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 wliich exist.^ 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. Xor is it necessary that I should. ' I have been busily employed in preparing a small work wliich will answer the purpose better. It consists of a Set of Tables, in wliich I have exhibited the Arrangement intended by the Koman Lawyers in their Institutes or Elementary Treatises, And this * These tables and notes ^ere printed contained in the second volume of the in the last of the rolumes of these Lec- present edition. — E,.- C. tures, published in 1863, and are no-w 26 p7^eface. Arrangement is compared witli various others, wliicli liave since been adopted in Codes, or proposed by Writers on Jurisprudence. To these Tables I have appended notes, in which. I have endeavoured to show the rationale of that Arrangement, and to explain the im- port 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 num- ber 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 Codifica- tion ; an Essay on Interpretation ; the ' Excursus on Ana- logy,' referred to at the beginning of Lecture Y. in the 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 un- wearied 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. SAEAH AUSTIlSr. Weyhrklge, 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 is unnecessary for me to repeat the reasons which de- termined me to undertake so arduous a work; or to apologize Preface. 27 for tlie imperfect manner in ^vliicli it is accomplislied. I am now more tlian ever convinced tliat (Iioweyer obvions the objections to it) this was tlie only safe and practicable mode of preserving tliese unfinislied but precious materials in j^erfect gennineness and integrity. I liave not attempted to alter tbe form of tlie Lectures, nor to disguise the breaks and chasms in them. In the Preface to the first volume ''p. 25), I spoke of my intention of ^ collating the Course delivered at the Inner Temple with the earlier and more numerous lectui^es given at the London L^niversity, and inserting, as notes or appen- dix, any matter not found in these.' Fommately, the task of selection and adaptation was not left to me. On a nearer examination, I found that the Author had marked with his own hand the parts of the Liner Temple Course which were to be added to, or substituted for, passages in the earlier lectures. Li several places he had even cut out considerable portions fi'om 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 j^recisely marked out. The Lectures, as now printed, are, in fact, the two Coui'ses, consolidated by himself. A few typographical details seem to require notice. There are some passages in the manuscript through which the author had dravm a light pencil line ; not, I am sure, signifying that they were to be entii^ely rejected, (for what he meant to be erasures are too complete to admit of a doubt,) but that they were reserved for fiu-ther considera- tion, 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 everybody's hands, and I thought it might be con- venient to the reader to see the precise passage to which the author referred. Wherever any words m these Cjuotations are printed in italics, those words are underlined in the book. 28 Pj^eface. With regard to tlie use of italics, capital letters, and other typographical distinctions, I am fully aware that there is a Y*^ant of uniformity and consistency ; and if^ with my present 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 deliberation 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 pre- carious ; 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 destruc- tion, with as little dela^^ as possible; a determination 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 reputa- 'tion have been the subject of much discussion, and, to my- self, 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 considerable 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 concernment 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 un- finished, 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 qaalities which no defects of form can destroy or greatly dis- guise. Moreover, these defects do not extend to what, in a Preface. 29 scientific work, is of snpreme importance ; namely, arrange- ment. It will be apparent to the reader tliat, npon 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 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 exe- cuted. Unfortunately, in many instances, the execution was carried no further; he never tilled up the outline he had sketched wifch 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 ventiu-ed 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 bo 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 indications of his intentions to remain. I have also preserved the traces of the questionings which continually suggested themselves 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. To seem to know, or to leap to prompt and facile conclusions, was impossible to him. To arrive at know- ledge by ways the most laborious, the most moii^ifying to vanity, and the most irritating to impatience, was the course which the rectitude of his nature irresistibly impelled him to follow. I had also a double motive in showing how many pas- sages 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 sug^gest 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 reflection, 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. 30 Preface. In tlie Preface to the first volume, I ventured to print a few disjointed sentences wliicli appeared to me to throw light on the character of the man, and on the nature and aims of his teaching. I have since found more notes of the same kind ; and, broken as they are, I give them, as show- ing still more clearly in what spirit and with what views he entered upon the duties 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 aud 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 de- scended 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 a.ny 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 Lec- ture, 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 criticize 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 coUatio: particularly to young men writing. JSTo 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. Preface. 3^ It will easity be understood that I have never entertained the project of rendering such a book acceT3table to any but men seriously interested in the great questions of Law and Morals which lie at the foundation of human society. To the discriminating, and therefore indulgent, judgment of that narrow public which is constantly tending towards the ends my husband pursued, and through whom Lis labours (which to him seemed barren) may hereafter be rendered fruitful, I humbly and earnestly commend it. I must add, with gratitude, lhat my labour has been cheered 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 deterred by want of completeness, or by defects of style, from giving to the world ' any, the slightest, intima- tions of Mr. Austin's opinions on the subjects to which he had devoted himself,' or of his method of inquiry and ar- rangement. Such exhortations coming from men whose voice is authoritative, it seemed my duty to obe3^ 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 m}^ doubts and diflS.- culties. 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 |)assage 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. ISTor 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. Weyhrulgp, April, 1863. 32 Outlme of the OUTLINE OF THE COURSE OF LECTURES. ^Dum potentes aliud agimt; jurisconsulti emditi, prudentes, bene animati, conferant capita privatim, cogitentque de jure constituendo, ut reddant certius quam nunc : posset is labor prseludere principum auctoritati.' — Leibnitz. [In tbe original edition of ' The Province of Jurisprudence determined/ published in 1832^ tbe following passage is inserted in the Preface. In 1831 I published an Outline of mj Course : Wliicli outline, carefully corrected and somewhat enlarged, I ap- pend to the following treatise. For the following treatise is a detached portion of the Course : And unless the dis- quisitions composing the treatise be viewed with their re- lations to the subject and scope of the Course, and the ar- rangement 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 Out- line itself. As tlie Outline relates not only to tbe 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. Plaving determined the province of Jurisprudence, I shall distinguish general jurisprudence, or the philosophy of positive law, from what may be styled particular jurispru- dence, or the science of particular law : that is to say, the science of any such system of positive law as now actually Course of Lectures. 33 obtains, or once actually obtained, in a specifically deter- lect.i-vi mined nation, or specifically determined nations. ' ' ' jSote. — Of all the concise expressions wliicli I have turned in my mind, ^tlie pMlosopliY of positive law ' indicates the most significantly the subject and scope of my Course. I have bon'owed the expression from a treatise by Hugo, a celebrated professor of jurisprudence in the Uniyersity of Got- tingen, 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 ferm. In the language of the author, it is concerned with ' the law of nature as a philosophy of positive lav:' But though this last expression is happily chosen, the subject and scope of the treatise are conceived indistinctly. General jurisprudence, or the philosophy of positive law, is blended and confounded, from the be- ginning to the end of the book, with the portion of deontology or ethics, which is styled the science of legislation. Xow general jurisprudence, or the philosophy of positive law. is not concerned directly vnth the science of legislation. It is concerned directly with principles and distinctions which are common to "v judicial decision on a preexisting 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 classical Roman jurists have the same or a like conceit with regard to the rules of law which are fashioned by judicial decision on the conclusions or prac- tices of private writers or practitioners. They ascribe their existence as law to the authority of the writers or practitioners, and not to the sovereign, or the represen- tatives of the sovereign, who clothed them with the legal sanction. With a view to these conceits, and to others equally ab- surd, I shall examine the natures of the following kinds of law. 1. Law fashioned by judicial decision upon preexisting custom : or (borrowing the language of the classical Roman jurists) jus morihus 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 prudentihus compositum. Examining customary law, or law morihus constitutum, I shall advert to the essential diflPerences between general cus- tomary laws, and such customary laws as are local or parti- cular : 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 exist- ence be proved. IV. Natural law, as the term is commonly understood by modern writers upon jurisprudence, has two disparate mean- ings. It signifies the law of God, or a portion of positive law and positive morality. The law natural, which is parcel of law positive, is ana- logous to law morihus constitutum, and to law prudentihus compositum. For natural law, considered as a portion of positive, is positive law fashioned by the legislator or judge on preexisting law of another description : namely, on the law of God truly or erroneously 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 morihus constitutum, and law pru- Course of Lectures. 39 dentihus com])ositum, I sliall pass, by an obvious and easy ^'Lect. transition, to the law natural AYliicli is parcel of law posi- xxxix tive. Handling tbe topic, I sliall show the analogy borne ^ ' by that natural law to law morihus constitutum and law jprudentibiis comjpositiim. Canvassing the same topic, I shall show that the supposition of a natural laAV (considered as a portion of positive law and morality) involves the inter- mediate hypothesis which is compounded of the theory of utility and the hypothesis of a moral sense : that, assum- ing the pure hypothesis of a moral sense, or assuming the pure theory of general utility, the distinction of human rules into natural and positive, were utterly senseless, or utterly purposeless. With a view to my subsequent outline of the jus prcetoriumy 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 jits gentium of the earlier Roman lawyers is peculiar to the Roman Law ; whilst the latter is equivalent to natural laiv, as the term is commonly understood by modern writers upon jurisprudence. I shall show that the jus gentium of the earlier Roman lawyers was a purely prac- tical notion : that it arose from the peculiar relations borne by the Urhs Roma to her dependent allies and subject pro- vinces. I shall show that the latter is a purely sijeculative 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 mea- sure or test of positive law and morality. Y. From the jus morihus constitutum, the jiis prudentibus compositum, the natural laiu of modern writers upon juris- prudence, and the equivalent jus gentium of the jui'ists stjded classical, I shall pass to the distinction between law of do- mestic 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 ohtaining in the na- tion luherein it is received, the so called jtis receptum is not of foreign original, but is law of domestic manufacture or do- mestic growth. As ohtaining in the nation ivherein it is received, it is law fashioned by the tribunals of that nation on law of a foreign and independent community. For ex- 40 Outline of the Lect. ample : The Roman Law, as it obtains in Germany, is not ^^^j^ -^^^ 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 recejptum, I shall advert to the posi- tive law, closely analogous to the jus receptum, which is fashioned by judicial decision on positive international mo- rality. YI. Equity sometimes signifies a species of law. But, as used in any of the significations which are offcener and more properly annexed to it, it is not the name of a species of law. Of the latter significations, that which is most remarkable, and which I shall therefore explain with some particularity, may be stated briefly thus. — Equity often signifies the analogy, proportion, or equality, which is the basis of the spurious interpretation 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 nar- rower provinces of Roman and English jurisprudence. Having sketched an historical outline of the jus prcetorium (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 Prsetors with the equity administered by the English Chancellors. From which brief comparison it will amply appear, that the dis- tinction of positive law into law and equity (or jus civile and jus prcetorium) arose in the Roman, and also in the English nation, from circumstances purely anomalous, or peculiar to the particular community. And^ from which brief compari- son it will also amply appear, that the distinction is utterly senseless, when tried by general principles ; and is one pro- lific source of the needless and vicious complexness which disgraces the systems of jurisprudence wherein the distinc- tion obtains. Cotcrse of Lectures. 41 VII. From the sources of law, and the modes wherein it Lect. begins, I shall turn to the modes wherein it is abrogated, or "xSix" wherein it otherwise ends. " — ■ — LAW CONSIDERED WITH REFERENCE TO ITS PURPOSES, AND WITH REFERENCE TO THE SUBJECTS KBOWIl WHICH IT IS CONVERSANT. I. There are certain rights and duties, with certain capa- ^^'^^-^^^ cities and incapacities to take rights and incur duties, by which persons, as subjects of law, are variously determined to certain classes. The rights, duties, capacities, or incapacities^ which de- termine 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 conditions or status are respectively constituted or composed, are the appropriate matter of the department of law which commonly is named the Law of Persons : Jus quod ad Per- sonas jpertinet. Less ambiguously and more significantly, that department 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 (ex- pressing the same thing in another form) it is conversant about persons (meaning men) as bearing or invested with persons (meaning status or conditions). 42 Outline of the Lect. XL The department of law which is opposed to the Law of — ^ Persons, is commonly named the hanj of Things : Jus quod ad Res jpertinet. The explanation of which name needs a dis- quisition too long for the present outline.^ 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 ahstraded from the rights and duties, capa- cities and incapacities, whereof conditions or status are re- spectively constituted or composed : or (changing the ex- pression) it is conversant about rights and duties, capacities and incapacities, in so far as they are not constituent or com- ponent elements of 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, forbearances, 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 considered from that aspect in the Law of Per- sons or Status. II. Considered with reference to its different purposes, and with reference to the different subjects about which it is conversant, law ma}^ be divided in various ways. But of all the main divisions which it will admit, the least incon- venient 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 Per- sons. In 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 « 'The explanation to be inserted des Eeclits, vol. ii. p. i. et seq.'" (MS. from Lecture XL. See Thibaut, " Ver- note by the Author.) suche iiber einzelne Theile der Theorie Coitrse of Lectures, 43 Persons, I sliall state and illustrate tlie import and uses of Lect. xl tliis ancient and celebrated di^nsion. And in order to tliat . _ . end, I sliall proceed in the following manner : — 1. I shall tiy to define or determine tlie notion of stcdus or condition : fo]' 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 divi- sions, 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 Eoman jiuists. in their institutional or elementary vrritings. I shall show that their arrangement of the Eoman Law often dej^aiis fi^om the notion which is the basis of the division in Cjuestion, and on which the whole of their an^angement ulti- mately rests. I\Iore especially, I shall show that the matter of jus adionum, which they placed on a line with ju? jjer- sonarum et rerum. should not be put into a department dis- tinct from the two last, but pught to be distributed under both : that the main division of law ought to be twofold only. Law of Things and Law of Persons : and that the classical Poman jui^ists therefore fell into the error of co- ordLiiating 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 Blachstone and others, probably misled by that conciseness and ambiguity, have misa|)prehended grossly the true import of the division, and have turned that elii^jtical and dubious language into arrant jaro^on. Prom 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 com- monly are more general, or more abstract, than the prin- ciples or rules contained in the Law of Persons : that the principles or rules with which the former is concerned, com- monly sin, by reason of that greater generality, through excess or defect : and that the narrower piinciples or rules contained in the latter, commonly modify the larger piin-- ciples or rules about which the former is conversant. Xow since a modification is not to be understood, if that which is modified be not foreknown, the Law of Things should not 44 Outline of the Lect. XL follow, but should precede the Law of Persons. For which V. ^ reason, with various other reasons to be stated in the lec- tures, 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.— hi liis 'Analysis of tlie Law/ wHch abounds -witli acute and judicious remarks, it is stated expressly by Sir Mattliew 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 Viiejus rerum.^ 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 : — ' Reflecting on the departments of law which are styled the Law of Per- sons and the Law of Things, we shall find that the two departments are mutually related : that each contains matters 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 praecog- noscenda 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 con- cerned 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 provision, by which that rule is pruned of its excesses, or by which its defects are supplied.' LAW OF THINGS. Lect.xlv I. There are facts or events from which rights and duties arise, which are legal causes or antecedents of rights and duties, or of which rights and duties are legal effects or consequences. There are also facts or events which extin- guish rights and duties, or on which rights and duties ter- minate or cease. The events which are causes of rights and duties, may be 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. Coin^se of Lecher es. 45 Eights a'nd duties wliieli are consequences of delicts, are lect. sanctioning 'Ot preventive and /•^//z ec//';/ 7 i or reparative . In other words, the ends or purposes for which they are con- ferred and imposed, are two : nrst, to prevent violations of rights and duties which are not consequences of delicts : se- condhj, to cure the evils, or repair the mischiefs, which such violations engender. Eights and duties not arising from delicts, may he dis- tinguished from rights and duties which are consequences of delicts, by the name of primary or principalu Eights and duties arising from delicts, may be distinguished from rights and duties which are not consequences of delicts, by the name of sanctioning ior secondary . My main division of the matter of the Law of Thing's, rests upon the basis or principle at which I have now pointed : namely, the distinction of rights and of duties .re- lative and absolute' , into primary s.iid. sanctioning. Accord- ingly, I distribute the matter of the Law of Things under two capital departments. — L Primary rights, with primary relative duties. 2. Sanctioning rig*hts, with sanctioning duties (relative and absolute'' : Delicts or injuries 'which are causes or antecedents of 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 sug- gested. 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 idth the whole of its extent and importance, we are indebted to the penetrating acuteness of the classical Eoman 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 principles, should seize the distinction in ques- tion adequately as well as clearly : and should not be satisfied with catching it, as it obtains here or there. For the difler- ence whereon it rests, runs through every department of every system of jurisprudence : 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, 46 Outline of the Lfxt. witliout a resort to terms wliich. are unknown to tlie English 1 — , — 1^ Law, and wliich. may appear uncouth and ridiculous to a merely English Lawyer. The distinction in question is a distinction which obtains between rigJits, 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 determinate, 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 per- son or persons in whom it resides. But though every right resides in a person or persons de- terminate, a right may avail against a person or persons de- terminate, or against the world at large. In other words, the duty implied by the right, or to which the right corre- sponds, may lie exclusively on a person or persons deter- minate, or it may lie upon persons generally and indeter- minately. Duties answering to rights which avail against the world at large, are negative : that is to say, duties to forhear. Of duties answering to rights which avail against persons deter- minate, some are negative, but others, and most, are positive : that is to say, duties to do or perform. A right availing against the world at large is defined by Grotius and others, thus ; facultas personae competens sine respedu ad certam personam : a right availing exclusively against a person or persons determinate, thus ; facultas per- sonae 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 i rights availing against persons de- terminate, 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 con- trast 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 an- swering to rights in personam, by the appropriate name of obligations. Coicrse of Lectures. 47 yote-'-Jn tlie writings of tlie PLoman Lavryers. the term ohliyatio is never Lect. applied to a duty wliicli answers to a riglit in rem. But^ since they have no ^LT &-c. name appropriate to a right in personam, they use the term ohligatio to denote a rig?Lf of the class, as well as to denote the didy which the right implies. Jm in rem or Jura in rem. ther style dominium or dominia (with the larger meaning of the term) ; aud to dominia (with that more extensive meaning), they oppose jura in personam, by the name of oUigationes. To exemplify the leadins' distinction wliicli I liave stated in general expressions, I advert 'witli the brevity which the limits of an outline command' to the light of property or ovmership, and to rights arismg fi^om contracts. — Tlie pro- pirietor or owner of a given subject has a rio-ht in vera : since the relative duty answering to his right is a duty incum- bent upon persons generalli/ and indefirniinafeh/. to forbear from all such acts as would hinder his dealing with the subject agreeably to the lawful pui^joses 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 callino' within conventional limits, the right of the obligee or covenantee is a right in jjersonarn : the relative duty an- swering to his right being an obligation to do or to forbear, which lies exclusively on a person or persons determinate. HI. TVith the help of what I have premised, I can now indicate the method or order wherein I treat or consider the matter of the Law of Things. That method may be sug- gested 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 priniary relative duties : which I ar- range or distribute under four sub-departments. — 1. Eio-hts in rem as existing per se. or as not combined with rights in personam. 2. Eights in personam as existing per se. or as not combined with rights in rem. 3. Such of the com- hinations of rights i/i r-m and rights in personam as are j^ar- ticular and comparatively simple. 4. Such universities of rights and duties ' or such complex aggregates of rights and duties) as arise by universal succession. Sanctioning rio-hts 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 aiTange or distribute the matter of the Law of Things. 48 Outline of the Lect. 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 departments, I shall remark generally upon Persons, as sub- jects 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. Lp^.^^ Primary Bights, with primary relative Duties, XLVII &c. 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 sub- ject, it points at the compass of the correlating duty. It denotes that the relative duty lies upon persons generally, and is not exclusively incumbent upon a person or persons determinate. In other words, it denotes that the right in question avails against the world at large. Accordingly, some rights in rem are rights over things i 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 inhere. — For example : Pro- perty 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 inhering 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 monopoly, 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 officium or common duty to which the right corresponds, is a duty lying on the world at large, to forbear from selling commodities of a given description or class : but it is not a duty lying on the world at large, to forbear Course of Lectures. 49 from acts regarding determinatelj a specifically deterrained Lect. subject. A man's right or interest in his reputation or good ^ &c. 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 ^vhich it were possible to style their subjects. I shall therefore distinguish rights in rem (their answering relative duties being implied) with reference to differences between theu- subjects, or between the aspects of the forbear- ances which may be styled their objects. As distinguished with reference to those differences, they will fall (as I have intimated abeady) into three classes. — 1. Rights in rem of which the subjects are things, or of which the objects are such forbearances as determinately regard specifically deter- mmed things. 2. Rights in rem of which the subjects are persons, or of which the objects are such forbearances as de- terminately regard specifically 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 -j^j^yfff different persons in whom they respectively reside, are em- powered to derive from their respective subjects different quantities of uses or services. Or (changing the expression) the different persons in whom they respectively reside, are empowered to use or deal with theu- respective subjects in different degrees or to different extents. Or (changing the expression again) the different persons in whom they respec- tively 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 re- spective 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. Or (changing the expression) the entitled ]Dersons 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 VOL. I. E 50 Outline of the Lkct. property or ownersliip, to uses or purposes which are not ^ll^zb absolutely unlimited, but which are incapable of exact cir- cumscription with regard to class or number. The 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. 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 num- ber, or, at least, in respect of class. For example : He who has a right of w^ay through land owned by another, may merely turn the land to purposes of a certain class, or to pur- poses of determined classes. He may cross it in the fashions settled by the grant or praescription, but those are the only purposes to which he may turn it lawfully. A right belonging to the first-mentioned kind, may be styled dominion, ijroijerty, or ownersJiij), with the sense wherein dominion is opposed to .servitus or easement. As contradis- tinguished to a right belonging to the first-mentioned kind, a right belonging to the last-mentioned kind may be noted by one or another of the last-mentioned names. — Dominion, j^roperty, 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 ex- tent of the purposes 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 ' ease- ment' 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 Course of Lectures 51 kinds. For newly devised names, however significant and Lect. determinate, commonly need as frequent explanation as the ambiguous but established expressions which they were in- tended to supplant. And newly devised names are open to a great inconvenience from which established though am- biguous expressions are completely exempt. They are open to that undiscerning, yet overwhelming ridicule, which is poured upon innovations in speech by the formidable con- federacy of fools : who being incapable of clear and discrimi- nating apprehension, cannot perceive the difficulties which the names were devised to obviate, though they know that their ears are tino-lino' with novel and o-ratino- sounds. With the help of what I have premised, I can now indi- cate 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 en- titled 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 servitiis, or oiunershi]) and easement : understanding the ex- pression dominium, or ownershijp, 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 circumscription, the purposes to which the owner may turn the subject of his ownership, are not exempt from restrictions. The oblique manner wherein the restrictions are set, I shall attempt to explain : an at- tempt 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 '^to- cess admits. III. Whether they be rights to specific subjects, or rights Lect. li 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. — Eio-hts in rem are rig-hts of unlimited, or rio-hts of limited duration. Every right of unlimited duration, is also a right of unmeasured duration : that is to say, a right of 52 Outline of the Lect. LI wliicL. tlie duration is not exactly defined. But of riglits of ' ' " limited duration, some are rights of unmeasured duration, whilst others are rights of a duration exactly defined or mea- sured. For example : An estate in fee simple, or property in a personal chattel, is a right of unlimited, and therefore of unmeasured duration. 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 dura- tion 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 per- sons may use or deal with the subjects, are related to differ- ences between the durations of the rights. The several rela- tions between those respective differences I shall endeavour to explain. Lect. liii IY. 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. Of rights in rem, some are present or vested : others are future, contingent, or merely inchoate. — Vested rights es- sentially differ from one another, as well as from rights which are contingent. For in some cases of vested right, the party entitled, or the party in whom it resides, may exercise the right presently. But in other cases of vested right, the exercise of the right is presently suspended by the presence of an anterior and preferable 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, 1 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 Eoman and English Law. Lkct.liv- Y.'^ I shall consider the various events from which rights ^^^^^ in rem arise, with the various events by which they are It is in the course of the develop- break off. See Lecture LVIII, and the ment of this fifth head of the sub-depart- observations there placed. — E. C. ment here treated of, that the lectures Cottrse of Lectures. extingnisiied : reserving, liOTrever, an exact account of j)vcp- scription, until I shall have dulv analyzed the ricjlit of pos- session. yi. If one person exercise a right residing in another person, but vrithout authority fi-oni the latter, and without authority from those thi'ough vrhom the latter is entitled, the former acquires, by his unauthorized or adverse exer- cise, the anomalous right vrhich is styled the riglit of posses- sion. This general description of the right of possession must, hoTvever, be taken with the following limitation. — The ^Der- son 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 posses- sion began vi, or arose through any of the means which fall within the name of violence. 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 integTant part of the right of possession itself, 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 occu^Dation or occupancy. For the fact of possessing which is styled oc- cupation or occupancy, consists in the possession of a some- thing that is res nulUus. But the fact of possessing which gives the right of possession, consists in the adverse exer- cise, by the person who acquii^es 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 beoinnino' throuo-h violence. o o o As against all but the person whose right is exercised ad- versely, 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 adversel}', he Otitline of the may acquire tlie very riglit wliicli lie affects to exercise througli the title, or mode of acquisition, styled proescrip- tion. Or (adopting a current but inadequate plirase) 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 siibstcmtive right, is a right that arises ex- clusively from the fact of an adverse possession. But the term right of possession is not unfvequently employed v^ith an extremely large signification. Taking the term with this very extensive meaning, the right of possession arises from an actual possession, v^hether the actual possession be adverse or not. For example : 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 independent 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 appropriate 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 in- convenient 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, 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 dotnirms recovered by the interdict, on merely proving his actual possession, he re- covered, in a certain sense, through his right of possession merely. Butj^et 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 j urisprudence 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 tisucapion, and of other acquisition by prcEscnption. Cottrse of Lec hires. At this point of mj Course, I shall therefore proceed in the following manner. I shall analyze the anomalous and perplexed right which is styled the right of possession. Performing the analysis, I shall happily be able to borrow from a celebrated trea- tise by Yon Savigiiy, entitled Das RecJit des Besitzes, or De Jure Possessionis : of all books upon law, the most con- summate and masterly; and of all books which I pretend to know accurately, the least alloyed with error and imper- fection. Havmg analyzed 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 prcescrvption. I shall consider generally the nature of the title : and shall advert to the respective peculiarities of the Eoman and English Law, in regard to the terms or conditions whereon the title is allowed. — If I find it pos- sible or prudent to touch that extensive subject, I shadl 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. Eights in persona m, including the obligations which answer to rights in personam, arise from facts or events of three dis- tinct 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 distri- bute the matter of the Law of Things. Note. — Perceiving that rights ex delicto were generally rights in jJersojiam, but not adverting to tlie importance of marking their sanctioning character, the classical Roman jurists, in their institutional or elementary writings, ar- ranged 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 leading expressions : viz. Promise : Pollicitation : Conven- tion or Agreement : Pact : Contract : Quasi-Contract. Outline of the 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 bila- teral, 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, there- upon, I shall analyze the rationale of the doctrine of consi- derations. Finally, I shall turn to the events whereon, or to the modes wherein, the rights and obligations arising from contracts, cease or are extinguished. III. From contracts, I shall proceed to quasi-contracts i 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- contracts are analogous to the fancied contracts from which sjpeculators 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 jpersono^m as are particular and com- paratively simple. Though jus in rem, ot jus in personam, may exist separately, 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 hypotlieca or mortgage, express or tacit : a sale completed by delivery, with a warranty, express or tacit, for title or soundness. Cottrse of Lechtres, AxLcl, as I shall show in my lectures, in any a fact or event whicli is styled simply a contract, is properly a complex event componncled of a conveyance and a conti^act, and im- parting uno flatu a riglit in rem and in jjersonam. SncL. of tlie combinations of riglits in rem and in loersonam as are particular and comparatively simple, are tlie matter of this sub-department. "What I mean by their j^articular, or rather their singular, combinations, as distinguished fi^om the universal aggregates which are the matter of the next sub- department, would scarcely admit of explanation within the limits of an outline. In order to an explanation of my mean- ing, T must explain the distinction between singular and universal successors, or succession rei singulce and succes- sion j;e/' universita.tern : nearly the most perplexed of the many inti'icate knots with which the science of law tries the patience of its students. Such universities of rights and duties (or such comj^lex aggregates of rights and duties) as arise by universal succession. The matter of this sub-dex)artment will be treated in the following order. I. The complex aggregates of riglits and duties, which commonly are named by modern Civilians, ' universitates juris,' will be distinguished from the aggregates or collections of tilings, which commonly are named by the same Civilians, ' universitates rerurn sive fadi.' — They will also be distin- guished from the complex and fictitious persons (or the col- lective bodies of individual or physical persons), which are named by the Eoman Lawyers, universitates or collegia, and by the English Lawyers, corporoMons aggregate. — The uni- versities of rights and duties, which are the matter of this sub-department, will also be distinguished from status or conditions. For the aggregates of rights and duties, capa- cities and incapacities, which are styled status or conditions, are, for the most part, juris universitates. n. Since all the universities of rights and duties, which are the matter of this sub -department, arise by universal succession, the distinction between singular and universal successors, or succession rei singulce and succession _pe?' univer- sitatem, will be stated and explained. As I have already remarked, that knotty distinction would scarcely admit of explanation within the limits of an outlme. But the follow- ing examples may suggest to the reflecting reader, the Otttline of the cliaracter of successors ^er universitatem, with, tlie nature of the universitates to which such, successors succeed. — The executor or administrator of a testator or intestate, with th.e general assignee of a banlo-upt 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 riglits and ob- ligations 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 beir or devisee, that mass of obligations falls within the notion of a juris universitas. For every juris universitas bears one or both, of the fol- lowing characters. First : Where a universitas juris arises by universal succession, rigbts 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 hinds 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 particulars), 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 lar-ge, even thongh all the rights which are constituent elements of the aggregate, be merely rights in personam, or availing against persons determinate. — I shall show in my lectures, that every statits or condition which is not purely burthensome, bears the last of these marks, and therefore is juris universitas. I shall also explain in my lectures, why the right in rem over a jiiris universitas (considered as abstracted from its component particulars) stands out conspicuously in the Ro- man 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 or other contract, are singular successors, or successors rei singulce. III. From the generic nature of universitates juris, and the peculiar nature of such of them as arise by universal succes- sion, I shall proceed to such of these last as are the matter Course of Lectures. of this sub-department. Xow unir>irsitrdes juris -^Yliicli de- volve to universal successors, and vliicli are tlie matter of tliis sub-department, are of two kinds: 1. Universitates juris devolving from the dead as sucli : 2. Tniversitates juris de- vulvino- from tlie living, or devolving from tlie dead, but not frus juris which those opposed names are commonly employed to signify. Por, as I have intimated above, the Law of Poli- tical Status, like every other portion of the entire cmpus 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 condi- tions with conditions of other natures, I am justified by the great au- thority 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 oeconomical. 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. Black- stone, who calls them pw^/ic wrongs, he styles them cri7ninal wrongs, or matter for Pleas of the Croiun : hitting precisely by the last expression the basis of the division of wrongs into civil injuries and crimes. We scarcely CoM'se of Lectures, can estimate completely the originalitT and depth of his Analysis, unless ■^e compare it closely with the institutes of Gains or Justinian, and unless ■vre look vigilantly for the instructive hut hrief hints •which ahound in everv part of it. The only gross mistakes that I have found in his masterly outline are his glaring and strange mistranslation of ju^ personarum et reruni,' and his placing under the department assigned to the status of per- sons^ certain rights of persons which he styles their absolute rights. Seeing that all rights are 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, hut belong preeminently and conspi- cuously to the contradistmguished department. But, injustice to this great and excellent person, I must add that the former mistake is verbal rather than substantial. Unlike the imitator Blackstone, vrith his ' rights of persons and things," Hale seizes, for the most part, the genuine meaning of the dis- tinction, though he thickens the obscurity of the obscure phrases by which the modem 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 encydopcBdia by Palck, a professor of law at Kiel, it is said that the authors of the Danish Code, with those of the Danish v*iiters who treat law systematically, observe, in this respect, the arrangement observed by Hale. But in all the treatises by Continental Juiists 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 Su' William Blackstone also rejects that division, and also considers the law which is concerned with political condirions a mem- ber 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. ZS'either in the general conception, nor in the detail of his buok, is there a single paiticle of original and discriminating thought. He had read somewhat (though far less than is commonly believed) ; but he had swal- lowed the matter of his reading, without choice and without rumination. He owed the populaiity of his book to a paltry but effectual artifice, and to a poor, superfi.cial merit. He truckled to the sinister interests and to the mischievous prejudices of power : and he flattered the overweening conceit of their national or peculiar institutions, which then was devoutly entertained by the body of the English people, though now it is happily vanishins- before the advancement of reason. And to this paltry but effec- tual artifice he added the allurement of a style which is fi.tted to tickle the ear. though it never or rarely satisfies a severe and 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 juiists 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 doU, fi:om the graceful and imposing nakedness of a Grecian statue. Outline of the Having distributed status or conditions under tlie prin- cipal and subordinate classes mentioned above, I shall con- sider tbem 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 which they are constituted or composed; and also de- scribing 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, poli- tical conditions : that is to say, the status or conditions of subordinate political superiors. Of the classes of persons bearing political conditions, the following are the most re- markable. 1. Judges and other ministers of justice. 2. Per- sons whose principal and appropriate duty is the defence of the community against foreign enemies. 3. Persons invested with rights to collect and distribute the revenue of the state. 4. Persons commissioned 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 interference : 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 col- legiate and sovereign capacity, is not invested with a status (in the proper acceptation of the term). A status is composed or constituted of leffal 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 community, and since that positive law is merely a creature of the sovereign, we cannot as- cribe such rights and duties to the monarch or sovereign body. We may say that the sovereign has poivers. We may say that the sovereign has rights conferred by the Law of God ; that the sovereign has rights con- ferred by positive morality 5 that the sovereign is subject to duties set by Course of Lectures. the Law of God ; that the sovereign is subject to duties which positive morality imposes. Xay, a sovereign government may have a legal right against a subject or subjects of another sovereign government. But it can- not 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 in- vested 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. Fov the sake, however, of shortness, but not without impropriety, we may say that the sovereign bears a status composed or constituted of jmicers. And, by reason of the intimate connexion 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 sliall consider the powers of the sove- reign, 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 sovereig-nty 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 sub- ordinate 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 com- prised by administrative law, and are not comprised by constitutional law, administrative 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: Li 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 diificult to describe the boundary by which the condi- tions 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, the O^Ltline of the soYereign or state. And if we examine the purposes to wliicli tlieir 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 im- poses on private persons, often coincide with the purposes of those which the sovereign confers and imposes on subordinate political superiors. Ac- cordingly, the conditions of parent and guardian (with the answering conditions of child and ward) are not unfrequently treated by writers on jurisprudence, as portions of law. For example: The pat?'ia putestas and the tzdela of the Roman Law are treated thus, in his masterl}^ System des Pandekten-Ilechts, by Thibaut of Heidelberg : who, for penetrating acuteness, rectitude of judgment, depth of learning, and vigour and ele- gance 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 primtmn ] and which will lead me to explain the numerous and disparate senses attached to the two expressions. I would briefiy 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 bear- ing 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 differ- ences 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 sliall 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 natu- rally be arranged (in a corpus juris) agreeably to the order or method observed in the Law of Things. Por 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 i7i rem, rights m personayn, 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 con- dition, 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 posi- Course of Lectures. tive international law : 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 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 apologize. 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 j)ertinent matter. And, as competent and candid judges will readily perceive and admit, a good exposition of the subject which I have undertaken to treat, were scarcely the forced ]3roduct 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. 76 Abstract of Outline. AN ABSTEACT OF THE FOEEGOING OUTLINE. PRELIMINARY EXPLANATION'S. Lect I-Vi The provmce of Jurisprudence determined. General jurisprudence distinguished from particular. Lkct. Analyses of certain notions which pervade the science of law. XII- XXVII Lect. LAW CONSIDERED WITH REFERENCE TO ITS SOURCES, SxiX WITH REFERENCE TO THE MODES IN WHICH IT BEGINS AND ENDS. Written, or promulged law ; and unwritten^ or unpro- mulged law. Law made directly, or in the properly legislative manner ; and law made judicially, or in the way of improper legisla- tion. Codification. Law, the occasions of which, or the motives to the esta- blishment 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 : Jns prudentihus co'mjpositum ; or law fashioned by judi- cial decision upon opinions and practices of private or unauthorized lawyers : The liatural 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 proetorium . Modes in which law is abrogated, or in which it otherwise ends. Abstract of Oittline. LAW COjS^SIDEEED WITH REFEEEXCE TO ITS PJTI?- Lect. XL FOSES, AXD ^VnK REFEREXCE TO THE SUBJECTS ABOUT WHICH IT IS COXYEESAXT. Division of Law into Law of Things and Law of Persons. Principle or basis of that diA'ision, and of the two depart- - ments which result from it. LAW OE THIXOS. Lect.xlt &c. 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 rio-hts and of relative duties, into rio-hts ill rem •\vith their answering offices, and rights m persoriam 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 or events, as causes of rights and duties, or as extinguishing rights and duties. Primary Rights, v:ith irrimanj relative Duties. Lect. XL VII &c. Eights in rem as existing ^er se, or as not combined with Only a part Tights in personam. _ ^ ^ suWepai?- Eio^hts in personam as existing^ per se, or as not combined mentis with rights in rem. The re- Such of the comhinations of rights in rem and rights in ^If^^^^i^Q personam as are particular and comparatively simple. not tilled Such universities of rights and duties (or such complex aggregates of rights and duties) as arise by universal suc- cession. np. Sanctioning Rights, v-itli sanctioning Duties {relative and absolute). Delicts distinguished into civil injuries and crimes : or rights and duties which are effects of civil delicts, dis- Abstract of Outline. tinguislied from duties, and otlier consequences, wliicli are effects of criminal. Riglits and duties arising from civil injuries. Duties, and other consequences, arising from crimes. [Interpolated description of primary absolute duties.'] LAW OF PEHSOlSrS. Distribution of status or conditions under certain principal and subordinate classes. Division of law into puhlic and private. Review of private conditions. E-eview of political conditions. The status or condition (improperly so called) of tlie monarch or sovereign number. Division of the law which regards political conditions, into consti- tutional and administrative. Boundary which severs political from private conditions, Eeview 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 1-:; I— I w p H O W. o o w DOM CO Ph T3 02 ® ■■5 I ^ e , - , h c3 -tJ f-i ^6 Sh o o O III ^ fcJDO' o ^ bo o o o i-T" -9 S q O M J ^ s i Lectures on Jurisprudence. order of the topics pre- sented by the six en- suino; lec- THE PROVINCE OF JURISPRUDENCE DETERMINED.^ Laws proper, or properly so-called, are commands ; laws Analysis wliich are not commands, are laws improper or improperly i^fl^lZJ so called. Laws properly so called, with laws improperly so fcope^and^ 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 simplj^ and tm-es. 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 metaphori- cal or figurative. The divine laws and positive laws are laws properly so called. — Of positive moral rules^ some are laws pro23erly 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 hu- man conduct. A law set by opinion and a law imperative ^' The author's preface to the original afterwards published by him in a treatise edition of the work under this title states under the title of ' The Province of Juris- that out of the lectures originally de- prudence determined ; ' and the treatise livered by Mr. Austin, at the University so published being divided according to of London, the first ten were directed topics, and not by the hours of reading, towards distinguishing positive law (the was comprised in six lectures. These appropriate matter of jurisprudence), published lectures, with alterations con- from various objects with which it is fined to a few pages, chiefly made in connected by resemblance, and from va- accordance with later memoranda of tlie rious other objects to which it is allied author, are the six lectures which im- by analogy. These ten lectures were mediately here follow. — E. C. VOL. I. G 82 The Province of Analysis and proper are allied bj analogy merely; although tlie Lect. i-vi analogy ^iiich they are allied is strong or close. — Laws metaphorical or figurative, or merely metaphorical or figura- tive, are lav^s improperly so called. A lavs^ 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 jurisprudence) 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 meta- ]3horical, or laws merely metaphorical. The principal purpose or scope of the six ensuing lectures, is to distinguish positive laws (the appropriate matter of jurisprudence) 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 com- mon name of ' laws ; ' and with which, therefore, they often are blended and confounded. And, since such is the prin- cipal purpose of the six ensuing lectures, I style them, con- sidered as a whole, Hhe province of j urisprudence determined.' For, since such is their principal purpose, they affect to de- scribe the boundary which severs the province of jurispru- dence 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 w^hich laws of each kind are distinguished from laws of the others. • And here I remark, by the by, that, examining the re- spective characters of those four several kinds, I found the following the order wherein I could explain them best: First, the characters or distinguishing marks of the laws of God ; y tu'ispriLclcnce dctemnmed. 83 secondlv, tlie cliaracters or disting-aisliing marks of positive Analysis moral rules ; thirdly, tlie cliaracters or distinguisliirig marks Lect. i-\ I of laws metaphorical or figurative ; fourthly and lastly, the characters or distinguishing marks of positive law, or laws simply and strictly so called. By determining the essence or natm-e of a law imperative and proper, and by determinino- the respective characters of those foui- several kinds, I determine positively and negatively the appropriate matter of jurisprudence. I determine posi- tively what that matter is ; and I distinguish it from various objects which are variously related to it, and with which it not unfrequently is blended and confounded. I show more- over 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 rationcde 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 com- mon 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 com- mand ; 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 ' obli- gation ; ' ' superior and inferior.' II. (a) In the beginning of the second lecture, I briefly de- termine 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. Havino' brieflv distino-uished his revealed from his unre- vealed commands, I pass to the nature of the signs or index through which the latter are manifested to Man. Kow, con- G 2 84 The Provmce of Analysis ceriiing tlie nature of tlie index to tlie tacit commands of tlie Lect. I-VI Deity, there are three theories or three hypotheses : First, the pure hypothesis or theory of general utility ; secondly, the pure hypothesis or 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 smd fourth lectures, are exclusively or chiefly occupied. That 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 occur- ring 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 posi- tive law and morality fashioned on the law of God, and positive law and morality of purely human original. 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), ^^ts civile is dis- tinguished 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 j)roprium ijpsius civitatis. But, besides such portions of posi- tive 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 mankind, they may be styled the jus omnium gentium, or the commune om- nium hominum jus. 'Now these universal rules, being uni- versal 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 y urisprudence determined. 85 is the soul and the guide of the universe. Thej are not so Analysis properly laws of human device and institution, as divine or natural laws clothed with human sanctions. But the legal and moral rules which are peculiar to particular nations, are purely or simply of human invention and position. Inasmuch as they are partial and transient, and not universal and en- during, they hardly are fashioned by their human authors on divine or natural models. — Now, without a previous know- ledge 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. Bui, 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- im23ortant object of the science of ethics (or, borrowing the language of Bentham, ' the science of deontology ') is to de- termine 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 respectively ought to be : or (changing the phrase), the science of law and morality as they respec- tively must be if they conform to their measure or test. That department of the science of ethics, which is concerned es- pecially 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 appro- priate and distinctive. — Now though the science of legislation (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 commands 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 86 The Province of Analysis resting On those misconceptions, wliicli frequently are urged LEcr. i-vi a ga^inst it : There are also considerable difficulties with which it really is embarrassed. Labouring to rectify those miscon- ceptions, to answer those objections, and to solve or extenuate those difficulties, I probably dwell upon the theory somewhat longer than I ought. Deeply convinced of its truth and im- portance, and therefore earnestly intent on commending it to the minds of others, I probably wander into ethical disquisi- tions 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 fiftli lecture, I distribute laws or rules under two classes : First, laws properly so called, with such improper laws as are closely analogous to the pro- per ; secondly, those improper laws which are remotely ana- logous to the proper, and which I style, therefore, laws me- taphorical 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 rea- sons 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 jurispru- dence. — Having determined 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 imperative 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. Jurisprudence determined. 87 I show, in the same lecture, that my distribntion of laws Analysis 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. II. (c) At the end of the same lecture, I determine the characters or distinguishing marks of laws metaphorical or figurative. And 1 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 tJie sixth and last lecture, I determine the cha- racters 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 imj^licitly the notion of sovereignty, with the implied or cor- relative notion of independent political society. For the es- sential 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 mem- bers 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 indepen- dent 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 su- preme political power ; thirdly, the origin or causes of politi- cal 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 dis- tinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily percep- tible. 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 cer- tain correctives. And with a brief allusion to those cor- rectives, I close the sixth and last lecture. 88 The Province of LECTURE L Lect. I The matter of jurisprudence is positive law : law, simply Thejo^^^ strictly so called : or law set by political superiors to foHowin^^ political inferiors. But positive law (or law, simply and attempt to strictly SO Called) is often confounded with objects to which it is related by resemblance, and with objects to which it is related in the way of analogy, with objects which are also sig- determine the pro- vince of cfence'^ nified, |9roper% and improperly, by the large and vague expres- stated or suggested. sion law. To obviate the difficulties springing from that confusion, I begin my projected Course with determining the province of jurisprudence, 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 en- deavour to analyze its numerous and complicated parts. Law: what, A law, in the most general and comprehensive acceptation compTe- Avhich the term, in its literal meaning, is employed, may hensive be Said to be a rule laid down for the sruidance of an intelli- literal . . . . . sense gent being by an intelligent being having power over him. Under this definition are included, and without impropriety, several species. It is necessary to define accurately the line of demarcation which separates these species from one an- other, as much mistiness and intricacy has been infused into the science of jurisprudence by their being confounded or not clearly distinguished. 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 crea- tures, and laws set by men to men. Law of God. 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 appel- lation Law of Nature as ambiguous and misleading, I name those laws or rules, as considered collectively or in a mass, Human the Divine law. or the law of God. 1 Two'ciasses. Laws Set by men to men are of two leading or principal classes : classes which are often blended, although they difPer extremely ; and which, for that reason, should be severed 1st class. precisely, and opposed distinctly and conspicuously. Of the laws or rules set by men to men, some are esta- blished by political superiors, sovereign and subject : by y ttrispriidence detei^mined. 89 persons exercising supreme and snbordinate government, in Lect. i independent nations, or independent political societies. The Laws set bv ao-areo'ate of tlie rules thns establisiied, or some ao-oTeofate political su- 00 a J 00 S3 periors. forming a portion of that aggregate, is the appropriate mat- ter 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 laiu, as used simply and strictly, is exclusively 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 hy loosition. As contradistinguished to the rules which I style ijositive morality, and on which I shall touch immediately, the aggregate of the rrdes, established by political superiors, may also be marked commodiously with the name of ■^positive laiv. 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 laiv : though rules, which are not esta- blished by political superiors, are also positive, or exist hy 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 2nd class, men, are established by political superiors, others are not menn'ot^^ established by political superiors, or are not established by political^ political superiors, in that capacity or character. siipenor.. Closely analogous to human laws of this second class, are Object a set of objects frequently but improjoerly termed laics, bein rules set and enforced by mere opinion, that is, by the opinions analogy or sentiments held or felt by an indeterminate body of men laics. in reo-ard to human conduct. Instances of such a use of the im- properly but bv close 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 The two to the second of the classes above mentioned, with the aggre- jn^one^ciS gate of objects improperly but by dose analogy termed laws, I lender the X3lace together in a common class, and denote them by the term positive morality. The name morality severs them from positive laiv, 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 distingTiishing epithet. For the name morality (or morals), when standing unqualified or adone, denotes in- nSimQ posi- tive moral- ity. 90 The P7^oviiice of Lect. I Objects me- taphorially termed laws. Laws or rules 'pro- perly so called, are a species of commands. differently either of the following objects : namely, positive morality as it is, or without regard to its merits ; and positive morality as it would he, 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 npon 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, fla- grant 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 remotety, 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 laiv or nde (taken with the largest signification which can be given to the term properly) is a command. Or, rather, laws or rules, properly so called, are 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 analyzed 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 exx^ressions into yurisp7'iidcnce determined. 9 whicli we can resolve tlieni concisely. And wlien we en- Lfxt, i deavour to define them, or to translate tliem into terms ^ ' ' wMcIl we suppose are better understood, we are forced upon awkward and tedious circumlocutions. If jou express or intimate a wish, that I shall do or forbear Themean- from some act, and if jou will visit me with an evil in case term com- I comply not with your wish, the expression or intimation of your wish is a command. A command is distinguished from other significations of desire, not by the style in which the desire is signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded. If you cannot or will not harm me in case I comply not with your wish, the expression of your wish is not a command, 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 quihus contradici no7i 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 command 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 with the desire. Being liable to evil from you if I comply not with a wish which you signify, I am hound or obliged by your command, term duti/. 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. \ Command and duty are, therefore, correlative terms : the The terms meaning denoted by each being implied or supposed by the andX"/ other. Or (changing the expression) wherever a duty lies, a j^^^^^^^"^"®" command has been signified ; and whenever a command is signified, a duty is imposed. Concisely expressed, the meaning of the correlative ex- pressions 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 com- mand. The evil which will probably be incmTed in case a com- The mean- 92 The Proviiice of ing of the term sanc- tion. Lect. I. mand 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 plirase) tbe com- mand or the duty is said to be sanctioned or enforced by the N chance of incurring the evil. Considered as thus abstracted from the command and the duty which it enforces, the evil to be incurred by disobe- dience is frequently styled a punishment. But as punish- ments, strictly so called, are only a class of sanctions, the term is too narrow to express the meaning adequately. I observe that Dr. Paley, in his analysis of the term obligation, lays much stress upon the violence of the motive To the ex- istence of J command, a sanction^ Compliance. In so far as I can gather a meaning from a violent motive to compliance is not re- quisite. his loose and inconsistent statement, his meaning appears to be this : that, unless the motive to compliance be violent or intense, the expression or intimation of a wish is not a com- mand, 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 doubt, is the chance that the wish will not be disregarded. But no conceivable motive will certainly determine to compliance, 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 proposi- tion to absurdity by a consequence as manifestly false, com- mands 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 b}^ 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 question. The greater the eventual evil, and the greater 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 the chance that the command wiU y It risp riLcicn ce de term ined. 93 be obeyed, and tliat tlie duty will not be broken. But Lect. i Trliere there is tlie smallest cliance of incurring tbe smallest ^ evil, the expression of a TrisL. amounts to a command, and, therefore, imposes a duty. The sanction, if you will, is feeble or insufB.cient ; but still there is a sanction, and, therefore, a duty and a command. By some celebrated writers (by Locke, Bentham, and, I Rewards think, Paley), the term sanction, or enforcement of ohecUence, sanctions. is applied to conditional good as well as to conditional evil : to 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 con- fusion and perplexity. Rewards are indisputably motives to comply with the wishes of others. But to talk of commands and duties as sanctioned or enforced by rewards, or to talk of rewards as olliging or constraining to obedience, is surely a wide de- parture 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 J, in ordinary language, be obliged to render it. In ordinary language, you would promise me a reward, on condition of my rendering the service, whilst I might be incited or jjersuo.ded to render it by the hope of obtaining the reward. Again : If a law hold out a revxtrd 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 pui'pose 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 revxtrd into the im2:>ort of the term sanction, we must engage in a toilsome struggle with the current of ordinary speech; and shall often slide unconsciously, not- 94 The Provijice of Lect. I The mean- ing of the term com- mand, briefly re- stated. The insepa- rable con- nexion of the three terms, com- mand, duty, and sanc- tion. The man- ner of that connexion. Laws or rnles dis- tinguished from com- mands witlistanding our efforts to the contrary, into the narrower and cnstornarj meaning. It appears, then, from what has been premised, that the ideas or notions comprehended by the term command are the following. 1. A wish or desire conceived by a rational being, that another rational being shall do or forbear. 2. An evil to proceed from the former, and to be incurred by the latter, in case the latter comply not with the wish. 3. An expression or intimation of the wish by words or other signs. It also appears from what has been premised, that com- mand, duty, and sanction are inseparably connected terms : that each embraces the same ideas as the others, though each denotes those ideas in a peculiar order or series. ' A wish conceived by one, and expressed or intimated to another, with an evil to be inflicted and incurred in case the wish be disregarded,' are signified directly and indirectly by each of the three expressions. Each is the name of the same complex notion. But when I am talking directly of the expression or in- timation of the wish, I employ the term comma.nd : The ex- pression or intimation of the wish being presented promi- nently to my hearer ; whilst the evil to be incurred, with the chance of incurring it, are kept (if I may so express myself) in the background of my picture. When I am talking directly of the chance of incurring the evil, or (changing the expression) of the liability or ob- noxiousness to the evil, I employ the term djuty, or the term ohligation : The liability or obnoxiousness to the evil being put foremost, and the rest of the complex notion being sig- nified* implicitly. When I am talking immediately of the evil itself, I employ the term sanction, or a term of the like import : The evil to be incurred being signified directly ; whilst the obnoxiousness to that evil, with the expression or intimation of the wish, are indicated indirectly or obliquely. To those who are fa miliar with the language of logicians (language unrivalled for brevity, distinctness, and precision), I can express my meaning accurately in a breath. — Each of the three terms signifies the same notion ; but each denotes a different part of that notion, and connotes the residue. Commands are of two species. Some are laws or rules. The others have not acquired an appropriate name, nor does language afford an expression which will mark them briefly yttrispi'ltdence determmed. 95 and precisely. I must, therefore, note them, as well as I lect. i can, by the ambiguous and inexpressive name of ' occasional ^^^^^^^^^ or }:) articular commands.' occasional The term laius or rules being not unfrequently applied to Zarf"^^*'^" occasional or particular commands, it is hardly possible to describe a line of separation which shall consist in every respect with established forms of speech. But the dis'inc- tion between laws and particular commands may, I think, be stated in the following manner. By every command, the party to whom it is directed is obliged to do or to forbear. Now where it obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, or to acts or forbearances which it determines specifically or individually, a command is occasional or particular. In other words, a class or de- scription of acts is determined by a law or rule, and acts of that class or description are enjoined or forbidden generally. But where a command is occasional or particular, the act or acts, which the command enjoins or forbids, are assigned or determined by their specific or individual natures, as well as by the class or description to which they belong. The statement which I have given in abstract expressions, I will now endeavour to illustrate by apt examples. If you command your servant to go on a given errand, or not to leave your house on a given evening, or to rise at such an hour on such a morning, or to rise at that hour during the next week or month, the command is occasional or par- ticular. For the act or acts enjoined or forbidden are specially determined or assigned. But if you command him simply to rise at that hour, or to rise at that hour always, or to rise at that hour till further orders, it may be said, with propriety, that you lay down a rule for the guidance of your servant's conduct. For no specific act is assigned by the command, but the command obliges him generally to acts of a determined class. If a regiment be ordered to attack or defend a post, or to quell a riot, or to march from their present quarters, the command is occasional or particular. But an order to exer- cise daily till further orders shall be given, would be called a general order, and might be called a rule. If Parliament prohibited simply the exportation of corn, either for a given period or indefinitely, it would establish a law or rule : a Mud or sor^ of acts being determined by the 90 The Province of Lect. I command, and acts of that kind or sort being generally for- bidden. But an order issued by Parliament to meet an im- pending scarcity, and stopping the exportation of corn tlnen shijpped and in port, would not be a law or rule, though issued by the sovereign legislature. The order regarding exclusively a specified quantity of corn, the negative acts or forbearances, enjoined by the command, would be deter- mined specifically or individually by the determinate nature of their subject. As issued by a sovereign legislature, and as wearing the form of a law, the order which I have now imagined would probably be called a law. And hence the difficulty of drawing a distinct boundary between laws and occasional commands. Again : An act which is not an offence, according to the existing law, moves the sovereign to displeasure : and, though the authors of the act are legally innocent or unoffending, the sovereign commands that they shall be punished. As enjoining a S|)ecific punishment in that specific case, and as not enjoining generally acts or forbearances of a class, the order uttered by the sovereign is not a law or rule. Whether such an order would be called a law, seems to depend upon circumstances which are purely immaterial : immaterial, that is, with reference to the present purpose, though material with reference to others. If made by a sovereign assembly, deliberately, and with the forms of le- gislation, it would probably be called a law. If uttered by an absolute monarch, without deliberation or ceremony, it would scarcely be confounded with acts of legislation, and would be styled an arbitrary command. Yet, on either of these suppositions, its nature would be the same. It would not be a law or rule, but an occasional or particular com- mand of the sovereign One or Number. / To conclude with an example which best illustrates the • distinction, and which shows the importance of the distinc- ' tion most conspicuously, judicial commands are commonly oc- \ casional or particular, although the commands, which they S are calculated to enforce, are commonly laws or rules. For instance, the lawgiver commands that thieves shall be hanged. A specific theft and a specified thief being given, the judge commands that the thief shall be hanged, agree- ably to the command of the lawgiver. Now the lawgiver determines a class or description of acts ; prohibits acts of the class generally and indefinitely ; and commands, with the like generality, that punishment y tnnsprudence determined. 97 shall follow trausgression. The command of the lawgiver is, therefore, a law or rule. But the command of the judge is oc- casional or particular. For he orders a specific punishment, as the consequence of a specific offence- According to the line of separation which I have now at- \ tempted to describe, a law and a particular command are distinguished thus. — Acts or forbearances of a dass, are en- joined generally bj the former. Acts determined sj)ecijically,, are enjoined or forbidden bj the latter. A different line of separation has been dra^vn by Black- stone and others. According to Blackstone and others, a law and a particular command are distinguished in the fol- lowing manner. — A law obliges generally the members of the given community, or a law obliges generally persons of a given class. A particular command obliges a single person, or persons whom it determines individually. That laws and particular commands are not to be distin- guished thu.s, will appear on a moment's reflection. For, first, commands which oblige generally the mem- bers of the given community, or commands which oblige generally persons of given classes, are not always laws or rules. Thus, in the case already supposed ; that in which the sovereign commands that all corn actually shipped for expor- tation be stopped and detained ; the command is obligatory upon the whole community, but as it obliges them only to a set of acts individually assigned, it is not a law.. Again, suppose the sovereign to issue an order enforced by penalties, for a general mourning, on occasion of a public calamity. Now, though it is addressed to the community at large, the order is scarcely a rule, in the usual acceptation of the term. For, though it obliges generally the members of the entire community, it obliges to acts which it assigns specifi- cally, instead of obliging generally to acts or forbearances of a class. If the sovereio-n commanded that Mack should be the dress of his subjects, his command would amount to a law. But if he commanded them to wear it on a s^oecified occasion, his command would be merely particular. And, secondly, a command which obliges exclusively per- sons individually determined, may amount, notwithstanding, to a law or rule. For example, A father may set a rule to his child or children : a guardian, to his ward : a master, to his slave VOL. I. H Leut. I 98 The Province of Lect. t or servant. And certain of God's laws were as binding on ^ ' ^ tlie first man, as they are binding at tliis bour on tbe mil- lions wbo bave sprung from bis loins. Most, indeed, of tbe laws wbicb are establisbed by politi- cal superiors, or most of tbe laws wbicb are simply and strictly so called, oblige generally tbe members of tbe politi- cal community, or oblige generally persons of a class. To ^ frame a system of duties for every individual of tbe com- munity, were simply impossible : and if it were possible, it were utterly useless. Most of tbe laws establisbed by poli- tical superiors are, therefore, general in a twofold manner : ; as enjoining or forbidding generally acts of kinds or sorts ; and as binding tbe wbole community, or, at least, wbole classes of its members. But if we suppose tbat Parliament creates and grants an office, and tbat Parliament binds tbe grantee to services of a given description, we suppose a law establisbed by poli- tical superiors, and yet exclusively binding a specified or determinate person. Laws establisbed by political superiors, and exclusively binding specified or determinate persons, are styled, in tbe language of tbe Roman jurists, privilegia. Tbougb tbat, indeed, is a name wbicb will bardly denote tbem distinctly : for, like most of tbe leading terms in actual systems of law, it is not -tbe name of a definite class of objects, but of a beap of heterogeneous objects. ^"^^ The defini- It appears from what has been premised, tbat a law, pro- Taw or rule, P^i'ly so called, may be defined in tbe following manner. soTiiied ^ command which obliges a person or persons. ' - ' But, as contradistinguished or opposed to an occasional or particular command, a law is a command which obliges a person or persons, and obliges generally to acts or forbear- ances of a class. In language more popular but less distinct and precise, a law is a command which obliges a person or persons to a course of conduct. (a) Where a, privilegnim merely imposes a duty, it exclusively obliges a deter- minate person or persons. But where a privilegium confers a right, and the right conferred avails against the world at large, the law \sprivilegit(,m as viewed from a certain aspect, but is also a ge- neral law as viewed from another as- pect. In respect of the right conferred, the law exclusively regards a deter- minate person, and, therefore, is privi- Icgium. In respect of the duty imposed, and corresponding to the right conferred, the law regards generally the members of the entire community. This I shall explain particularly at a subsequent point of my Course, when I consider the peculiar nature of so called frivilegia^ or of so called private laws. y ttrisprudence deteimiined. 99 Laws and other commands are said to proceed from sitpe- Lect. I Wors, and to bind or oblige inferiors. I will^ therefore, analyze The niean^ the meaning: of those correlative expressions ; and will try ^^^s correlative to strip them of a certain mystery, by which that simple terms swyoe- ^leaning appears to be obscured. £/e;?or. Superiority is often synonymous with 'preeedenee or excel- lence. We talk of superiors in rank ; of superiors in wealth ; of superiors in virtue : comparing certain persons with cer- tain other persons ; and meaning that the former precede or excel the latter, in rank, in wealth, or in virtue. But, taken with the meaning wherein I here understand it, the term miferioriiij signifies might : the power of affect- ing others with evil or pain, and of forcing them, through fear of that evil, to fashion their conduct to one's wishes. For exam23le, God is emphatically the superior of Man. For his power of affecting us with pain, and of forcing us to comply with his will, is unbounded and resistless. To a limited extent, the sovereign One or Number is the superior of the subject or citizen : the master, of the slave or servant : the father, of the child. In short, whoever can oblige another to comply with his \ wishes, is the superior of that other, so far as the ability \ reaches : The party who is obnoxious to the impending evil, being, to that same extent, the inferior. The might or superiority of God, is simple or absolute. But in all or most cases of human superiority, the relation of superior and inferior, and the relation of inferior and superior, are reciprocal. Or (changing the expression) the party who is the superior as viewed from one aspect, is the inferior as viewed from 'k^nother. For example. To an indefinite, though limited extent, the monarch is the superior of the governed : his power being commonly sufficient to enforce compliance with his will. But the governed, collectively or in mass, are also the su- perior of the monarch : who is checked in the abuse of his might by his fear of exciting their anger ; and of rousing to active resistance the might which slumbers in the multitude. A member of a sovereign assembly is the superior of the judge : the judge being bound by the law which proceeds from that sovereign body. But, in his character of citizen or subject, he is the inferior of the judge : the judge being the minister of the law, and armed with the power of en- forcing it. It appears, then, that the term superiority (like the terms H 2 lOO The Provmce of Lect. I Laws {im- ■properly so called) whicli are not com- iiiauds. duty and sanction) is implied by the term command. For superiority is the power of enforcing compliance with a wish: and the expression or intimation of a wish, with the power and the purpose of enforcing it, are the constituent elements of a command. ' That laivs emanate from superiors ' is, therefore, an iden- tical proposition. For the meaning which it affects to im- part is contained in its subject. If I mark the peculiar source of a given law, or if I mark the peculiar source of laws of a given class, it is possible that I am saying something which may instruct the hearer. But to affirm of laws universally ' that they flow from su- periors,' or to affirm of laws universally ' that inferiors are bound to obey them,' is the merest tautology and trifling. Like most of the leading terms in the sciences of juris- prudence and morals, the term laws is extremely ambiguous. Taken with the largest signification which can be given to the term properly, laws are a species of commands. But the term 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 dis- tinguish the various meanings of the term laws ; and must restrict the proposition to that class of objects which is em- braced 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 en- forced 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 particularize : — 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 go- verned, 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 LaWj they are acts of authentic interpretation. yurisp r7idence determined. lOI But, this notwithstandiiig, they are frequentlj styled la.ws : Lfxt. I declaratory laws, or declaratory statutes. They must, there- ^~ ' ' fore, be noted as formiug 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 expound- ing 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 revo- cations 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 with regard to th is^ their immediate or direct pur- pose, they are often named j^ermissive laws, or, more briefly and more properly, ijermissions. Remotely and indirectly, indeed, permissive laws are often! or always imperative. For the parties released from duties' are restored to liberties or rig-hts : and duties answerins: 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 cer- tain 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 com- pliance with the desire, the expression of a desire is not a command. Consequentl}^, an imperfect law is not so properly a law, as counsel, or exhortation, addi'essed by a superior to inferiors. Examples of imperfect laws are cited by the Roman jurists. But with us in England, laws professedly imperative are I02 The Province of Lect. I 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 sanc- tion 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 noAV speaking, are laws which are imperfect, in the sense of ilie 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 ob- ligations, 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 equivalent to no obligation at all. Eor the term imperfect denotes simply, that the law wants the sanction appropriate to laws of the kind. An imperfect obligation, in the other meaning of the expression, is a re- ligious 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 im- parted by the sovereign or state. Laws (pro- I bclieve that I have now reviewed all the classes of objects, called)^ to which the term laws is improperly applied. The laws which may (improperly so called) which I have here lastly enumerated, imperative. think) the Only laws which are not commands, and which yet 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 impera- tive. 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. But, as I have intimated already, and shall show com- pletely hereafter, there are no laws merely creating rights. There are laws, it is true, which merely create duties : duties y ttrisprudence deter miiied. 103 not correlating with, correlating rights, and which, therefore, Lect. i 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 conferring a right, is, therefore, imperative : as imperative, as if its only purpose were the creation of a duty, or as if the relative duty, which it inevi- tably imposes, were merely absolute. The meanings of the term rigJit, 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. Ifc is not, however, necessary, that the analysis should be performed here. I purpose, in my earlier lectures, to deter- mine the province of jurisprudence ; or to distinguish the laws established by political superiors, from the various laws, proper and improper, with which they are frequently con- founded. 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, customary laius must be excepted 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, they 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 coiu'ts of justice : But, that notwithstanding, they exist as ^positive laiu by the spontaneous adoption of the governed, and not by position or establishment on the part of political superiors. Consequently, customary laws, considered as posi- tive 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, I04 The Province of Lect. I is not uncommonly lield 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. Ac- cording 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 reflexion, that each of these opinions is groundless : that customary law is im- perative, 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 fa^shioned upon it are enforced 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 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 tliem 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 diflPerence between positive law and morality, there is nothing of mystery about it. Considered as rules of yurisprttdence determined. positive moralitj, customary laws arise from the consent of Lect. I the governed, and not from the position or establishment of ' ' ' political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the state : established by the state directly, when the customs are pro- mulged 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 law, 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 lega.1 rules by deci- sions of subject judges, the legal rules which emerge from the customs are tacit commands of the sovereis^n leo^islature. 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.' ^ My present purpose is merely this : to prove that the posi- \ tive law styled customary (and all positive law made judicially) \ is established by the state directly or circuitously, and, V therefore, is imjperative. I am far from disputing, that law made judicially (or in the way of improper legislation) and laAv made by statute (or in the jDi'opei'lj legislative manner) are distinguished 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 impera- Laws which tive, and which belong to the subject-matter of jurisprudence, commands, 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 expres- sion 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 io6 The Province of Lect. I occasions. Or (cliaTigiiig tlie expression) I sliall limit tlie ~ ' ~" term law to laws which are imperative, unless I extend it expressly to laws which are not. LECTUEE 11. Lect. IT. The con- nexion of the second with the first lec- ture. The Divine laws, or the laws of God. Of the Di- vine laws, some are revealed, and others are unrevealed. In mj first lecture, I stated or suggested the purpose and the manner of mj 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. In pursuance of that purpose, and agreeably to that man- ner, I stated the essentials of a law or rule (taken with the largest signification which can be given to the term properly). ]n pursuance of that purpose, and agreeably to that man- ner, 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, pro- perly so called. 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 sms. As distinguished from sanctions annexed to human laws, the sanctions annexed to the Divine laws may be called re- ligious sanctions. They consist of the evils, or pains, which we may suffer here or hereafter, by the immediate appoint- mifent of God, and as consequences of breaking his command- ments. Of the Divine laws, or the laws of God, some are revealed or promulged, and others are unrevealed. Such of the laws of God as are unrevealed are not unfrequently denoted by the following names or phrases : ' the law of nature ' natural law ; ' ' 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 y U7^isp7^iidence detei^niined. 107 Such of the Dhdne laws as are re- vealed. God which, is ti7irevealed, are manifested to men in different Lfxt. ii ways, or by different sets of signs. " ' With regard to the laws which God is pleased to reveal, the way wherein they are manifested is easily conceived. They are express commands : portions of the luord of God : commands siprnified to men throuo-h the medium of human language ; and uttered by God directly, or by servants whom he sends to announce them. Such of the Divine laws as are unrevealecl are laws set by Sitchofthe God to his human creatures, but not through the medium of as are unre- vealed. human language, or not expressly. 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 decla- rations 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 Avhieh 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 ivhole 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. But if God has given us laws which he has not revealed What is the lll(J6X to or promulged, how shall we know them ? What are those such of the sigus of his pleasure, which we style the licjlit of nature-, and ^™^un-^ oppose, by that figurative phrase, to express declarations of revealed ? his will ? The hypotheses or theories which attempt to resolve this The hjpo- question, may be reduced, I think, to two. theses or tlieories ■which re- According to one of them, there are human actions which Satm-e^of all mankind approve, human actions which all men disap- i^jj^^ prove; and these universal sentiments arise at the thought thesis^ of those actions, spontaneously, instantly, and inevitably. Being common to all mankind, and inseparable from the theory of a moral sense : of thoughts of those actions, these sentiments are marks or sig'nS tkal princi- of the Divine pleasure. They are proofs that the actions ^^^^j^l^Jj which excite them are enjoined or forbidden by the Deity. reason; of a common io8 The Province of Lect. II Tlie rectitude or pravit}^ of linman conduct, or its agree- ' ' ~^ ment or disao^reement with the laws of God, is instantly sense &c. . ■ , &c. ' ' 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 con- sists with his manifest wisdom and goodness, that we should know them promptly and certainly. Accordingly, he has not committed us to the guidance 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 re- proaches, when we wander from the path 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 in- ference of the understanding, though the inference is short and inevitable. From 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. 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 ex- pressing the hypothesis in question. In all their decisions on the rectitude or pravity of conduct (its agreement or disagreement with the unrevealed law), mankind are said to . be determined by common sense : this same common sense meaning, in this instance, the simple or inscrutable senti- ments 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. y iLrispriidence dete7'inined. 109 According to the otlier of tlie adverse theories or liypo- Lect. ii tkeses, the laws of God, which are not revealed or promulged, xhTth^^ must be gathered bv man from the goodness of God, and from the tendencies of human actions. In other words, the uttiity. 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. A brief Some human actions forward that benevolent purpose, or of tiie^^""^ their tendencies are beneficent or useful. Other human ac- ''^^^J"^ tions are adverse to that purpose, or their tendencies are mischievous or pernicious, The former, as promoting his pur^^ose, God has enjoined. The latter, as opposed to his purpose, God has forbidden. He has given us the faculty of observing ; of remembering ; 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 com- mands. Such is a brief summarv of this celebrated theorv. I T^^ foUow- •• - mg expla- should wander to a measureless distance from the main pur- nations of jDOse of my lectures, if I stated all the explanations mth which that summary must be received. But, to obviate the jDrincipal misconceptions to which the theoiy 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 impai-tial, he designs the greatest happi- ness of all his sentient creatures : he wills that the ag-oTe- gate of their enjoyments shall find no nearer limit than that which is inevitably set to it by their finite and imper- fect nature. From the probable effects of our actions on the greatest hapj^iness of aU, or from the tendencies of hu- man actions to increase or diminish that aggregate, we may infer the laws which he has given, but has not expressed or revealed. Xow the tendency of a human action (as its tendency is The true thus understood) is the whole of its tendency : the sum of its probable consequences, in so far as they are im2Dortant or material : the sum of its remote and collateral, as well as of ^es-otthat 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 understood), we must not consider the action as if it were that sum- mary briefly in- troduced. tendency of a ] uman acl ion, and the time I lO The Pi'ovince of Lect. II single and insidcded, but must look at the class of actions to ~ ' ' wliicli 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 in- quiry. The question to be solved is this. 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 bj 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 poverty is as- suaged 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 accumula- tion 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 individual 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 good, the fallacious appearance merely arises from this : that the vast 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 for- bearance are indisputably useful. For the money which I unduly withhold 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. ytt risp7ntdence determined. Ill 111 the cases now supposed, tlie act or omission is good, Lect. ii considered as single or insulated ; but, considered witli 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 mis- chief of the crime. But, considered as part of a sj^stem, a punishment is useful or beneficent. By a dozen or score of punishments, thousands of crimes are prevented. With the sufferings of the guilty few, the security of the many is pur- chased. 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 omis- sion : 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 "According of actions, and if the tendencies of actions be the index to theory of the will of God, it follows that most of his commands are Q^J^^g^^Qj^ general or universal. The useful acts which he enjoins, and mands are the pernicious acts which he prohibits, he enjoins or pro- ^^^^f-^ hibits, for the most 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 forbear- ance by the fear of punishment, they ivould be frequently committed. Now, if we combine these data with the wis- dom, and goodness of God, we must infer that he forbids such acts, and forbids them without exception. In the tenth. I 12 The Province of Lect. II It does not follow from the theory of utility, that every useful ac- tion is the object of a Divine iu- junction ; and every pernicious action, the object of a Divine prohibition. A current and spe- cious objec lion to the theory of utility, in- troduced and stated. or tlie hundredtli 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 judg- ments, and the more dangerous infirmity of our wills, we should frequently stretch the exception to cases etnbraced by the rule. Consequently, where acts, considered as a class, are useful or pernicious, we must conclude that he enjoins or forbids them, a.nd 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 sufiiciently prone to the useful, and sufiiciently averse from the mischievous acts, without the motives which are presented to the will by a lawgiver. Motives natural or spontaneous (or motives otJier than those which are created by injunctions and prohibi- tions) impel us to action in the one case, and hold us to for- bearance 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 law.' Now, if the measure or test which I have endeavoured to explain be the ordinary measure or test for trying the ten- dencies of our actions, the most current and specious of the objections, which are made to the theory of utility, is founded in gross mistake, and is open to triumphant refutation. 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 comparison with the pains by which those duties are sanc- tioned. The greatest possible happiness of all his sentient crea- y tt7nsp7'iiclence determined. tiires, is the x^^^TOse and tlie effect of tliose laws. For tlie Lect. ir benevolence by wliich they were prompted, and tbe vrisdom ' " ' v^ith wliich. they were planned, equal the might which enforces them. But, seeing that such is their purpose, they embrace the wliole of our conduct : so far, that is, as our conduct may promote 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 meaning 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 Lavv^giver in all his laws and command- ments. 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 foun- tain or source. For duties or obligations arise from com- mands 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 ivliole of our conduct should be guided by the principle of utility, in so far as the conduct to be pur- sued has not been determined by Revelation. For, to con- form 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 sj^ecious objection to which I have ad- ^ verted, may be stated thus : ' Pleasure and pain (or good and evil) are inseparably \ ' connected. Every positive act, and every forbearance or \ ' omission, is followed by hoth : immediately or remotely, I ' directly or collaterally, to ourselves or to our fellow crea- ; ' tures. I ' Consequently, if we shape our conduct justly to the prin- I ' ciple of general utility, every election which we make be- | ' tween 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 VOL. I. I 114 The Proviiice of Lect. II '' tliat calcidation, "wliicli, according to our guiding principle, ~" ' ' ' we are bound to make. Secondly : We shall compare the ' consequences of the act with the consequences of the for- * bearance, 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. Conse- ' quently, if we performed this elaborate process completely ' and correctly, we should often defeat its purpose. We ' should abstain from action altogether, though utilit}^ re- ' quired 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 forbearance, and compare their respective effects ' with equal precipitancy. Our premises would be false or ' imperfect ; our conclusions, 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 principle ' 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 own remote interests, it is clear that ' we should warp the principle to selfish and sinister ends. ' 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 pro- ' moto 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 ' tAieir benevolent design, if we made the general happiness * our object or end. In a breath, we should widely deviate ^urisprtcdeiice deter 77iined. ' m p^ed from tlie principle of general utility by taking it as lect. ir ' the guide of onr conduct.' ' ~" SucL., I believe, is tbe meaning of those — if they haye a Thef?i-oapt meaning — ^wbo object to the principle of utility 'that it were ^Jfforeo-o^- a dangerous principle of conduct.' ing objec- As the objectors are generally persons little accustomed to introduced, clear and determinate thinking, I am not quite certain that I haye conceived the objection exactly. But I have endea- voured with perfectly good faith to understand their meaning, and as forcibly as I can to state it, or to state the most rational meaning 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 j:)ro- hahle mischief: And, surely, we best avert the probable mis- chiefs of our conduct, by conjecturing and estimating its probable consequences. 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.' jS'ow, though this is so brief and pithy that I heartily wish it were conclusive, I must needs admit that it 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 con- duct : 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 propo- sition involving when fairly stated nothing like a contra- diction. But, though this is not the refatation, there is a refuta- tion. And, first. If utility be our only index to the tacit commands The first of the Deity, it is idle to object its imperfections. We must f^^^l.^ even make the most of it. ing objec- K-i -1 •±^ 7 'l^ tion stated, we were endowed with a moral sense, or with a common sense, or with a practical reason, we scarcely should construe his commands by the principle of general utility. If our souls were famished 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 1 2 ii6 The Province of Lect. II of observation and induction. An attempt to displace that ' ' ^ invincible consciousness, and to tbrust the principle of utility into the vacant seat, would be simply impossible and mani- festly absurd. An attempt to taste or smell by force of syl- logism, v^ere 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. The second Whether there be any ground for the hypothesis of a moral the foi^jgo- is ^ question which I shall duly examine in a future ingobjec- lecture, but which I shall not pursue in the present place. inSoduS 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 forbearing from . an act would be preceded by a calcula- tion : by an attempt to conjecture and compare the respec- tive probable consequences 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 im- mediate or direct resort to it. And, granting their assumption, I grant their inference. I grant that the principle of utility were a halting and pur- blind 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 r%des inferred from the tendencies of actions, but would not be determined by a direct resort to the principle of general * utility. Utility would be the test of our conduct, ultimately, but not immediately : the immediate test of the rules to which our conduct would conform, but not the immediate test of specific or individual actions. Our rules would be fashioned on utility ; our conduct, on our rules. Eecall the true test for trying the tendency of an action, y urisprudence determined. 117 and, by a short and easy deduction, you will see tliat their Lect. ii assumption is groundless. ^~ ' ' If we would try the tendency of a specific or individual act, If our con- we must not contemplate the act as if it were single a3;id in- tnUvld-^ sulated, but must look at the class of acts to which it belongs, justed to We must suppose that acts of the class were generally done cipie of " or omitted, and consider the probable effect upon the general ^^jJi^^^Q^j^. happiness or good. conduct We must guess the consequences which would follow, if form, for acts of the class were general ; and also the consequences which would follow, if they were generally omitted. We mUs rules must then compare the consequences on the positive and nat^frmrf' negative sides, and determine on which of the two the g^^^^^^^^'' balance of advantage lies. which the If it lie on the positive side, the tendency of the act is orhumaT good : or (adopting a wider, yet exactly equivalent expres- sion) the general happiness requires that acts of the class index, shall be done. If it lie on the negative side, the tendency of the act is bad : or (again adopting a wider, yet exactly equivalent expression) the general happiness requires that acts of the class shall be forborne. In a breath, if we truly try the tendency of a specific or individual act, Ave try the tendency of the class to which that act belongs. The iDarticular conclusion which we draw, with regard to the single act, implies a general conclusion embracing all similar acts. But, concluding that acts of the class are useful or per- nicious, we are forced upon a further inference. Adverting to the known wisdom and the known benevolence of the Deity, we infer that he enjoins or forbids them by a general and inflexible rule. Such is the inference at which we inevitably arrive, sup- posing that the acts be such as to call for the intervention of a lawgiver. To rules thus inferred, and lodged in the memory, our conduct would conform immediately if it were truly adjusted to utility. To consider the specific consequences of single or individual acts, would seldom consist with that ultimate principle. And our conduct would, therefore, be guided by * general conclusions, or (to speak more accurately) by rules inferred from those conclusions. But, this being admitted, the necessity of pausing and calculating, which the objection in question supposes, is an imaginary necessity. To preface each act or forbearance by ii8 The Province of rable. Lect. II a conjecture and comparison of consequences, were clearl)^ ' " superfluous and niiscliievous. It were clearly superfluous, inasmucli as the result of tliat process would be embodied in a known rule. It were clearly miscliievous, inasmucli as the tr%iG result would be expressed by tbat rule, whilst the process would probably be faulty, if it were done on the spur of the occasion. Tiieory and SpeaMng" generally, human conduct, including the human fnsepa-^ conduct which is subject to the Divine commands, is inevi- tably guided by rules ^ or by principles or maxims. If our experience and observation of particulars were not generalized, our experience and observation of particulars would seldom avail us in practice. To review on the spur of the occasion a host of particulars, and to obtain from those particulars a conclusion applicable to the case, were a process too slow and uncertain to meet the exigencies of our lives. The inferences suggested to our minds by repeated expe- rience and observation are, therefore, drawn into principles, or compressed into maxims. These we carry about us ready for use, and apply to individual cases promptly or without hesi- tation : without reverting to the process by which they were obtained ; or without recalling, and arraying before our minds, the numerous and intricate considerations of which they are handy abridgments. This is the main, though not the only use of theory : which ignorant and weak people are in a habit of opposing to prac- tice, but which is essential to practice guided by experience and observation. ' 'Tis true in theory ; but, then, 'tis false in practice.' Such is a common talk. This says Noodle ; propounding it with a look of the most ludicrous profundity. V But, with due and discreet deference to this worshipful and weighty personage, that which is true in theory is also true in practice. Seeing that a true theory is a compendium of particular truths, it is necessarily true as applied to particular cases. The terms of the theory are general and abstract, or the particular truths which the theory implies would not be ab- breviated or condensed. But, unless it be true of particulars, and, therefore, true in practice, it has no truth at all. Truth is alwaj^s particular, though language is commonly general. Unless the terms of a theory can be resolved into particular truths, the theory is mere jargon : a coil of those senseless abstractions which often ensnare the instructed; and in which JtL 7^isp7'2idence determ iiied. 119 the wits of the ignorant are certainly caught and entangled, Lkct. ir when they stir from the track of authority, and venture to ' think for themselves. They who talk of theory as if it were the antagonist of practice, or of a thing being true in theory but not true in practice, mean (if they have a meaning) that the theory in question is false : that the particular truths which it concerns are treated imperfectly or incorrectly ; and that, if it were applied in practice, it might, therefore, mislead. They say that truth in theory is not truth in practice. They mean that a false theory is not a true one, and might lead us to prac- tical errors. Speaking then, generally, human conduct is inevitably If our con- . -1 J ■! 7 1 . . , . duct were guided by rutes, or by pmnciples or maxims. truly ad- The human conduct which is subject to the Divine com- j^jJ^^^'J-^" mands, is not onl}^ guided by rules, but also by m.oral senti- cipie of ments associated with those rules. fitiiit%^our If I believe (no matter why) that acts of a class or descrip- ^^^^Jj'^^f^ tion are enjoined or forbidden by the Deity, a moral senti- guided, for ment or feeling (or a sentiment or feeling of approbation or p^j.™^J.^ disapprobation) is inseparably connected in my mind vvith sentimerAs the thought or conception of such acts. And by this I wmi^ML: am uro^ed to do, or restrained from doino- such acts, althouo-h ^"^^^ v/hich o ' _ ^ ... emanate I advert not to the reason in which my belief originated, nor from the recall the Divine rule which I have inferred from that reason. JJ^^vhich^^ lN"ow, if the reason in which my belief origfinated be the ^1^*^ tenden- cics 01 iiix- useful or pernicious tendency of acts of the class, my con- man actions duct is truly adjusted to the principle of general utility, but guide^or my conduct is not determined by a direct resort to it. It is index, directly determined by a sentiment associated with acts of the class, and with the rule which I have inferred from their tendency. If my conduct be truly adjusted to the principle of general utility, my conduct is guided remotely by calculation. But, immediately, or at the moment of action, my conduct is determined by sentiment. I am swayed by sentiment as imperiously as I should be swayed by it, supposing I were utterly unable to produce a reason for my conduct, and were ruled by the capricious feelings which are styled the moral sense. For example, Reasons which are quite satisfactory, but somewhat numerous and intricate, convince me that the in- stitution of property is necessary to the general good. Con- vinced of this, I am convinced that thefts are pernicious. I20 The Province of Lect. II If our con- duct were truly ad- justed to the prin- ciple of general utility, our conduct would con- form, for the most part, to Divine rules, and would also be guided, for the most part, b}^ sent merits associated with those rules. But, in anoma- lous and excepted cases (of Convinced that thefts are pernicious, I infer that the Deity forbids them by a general and inflexible rule. Now the train of induction and reasoning by which I ar- rive at this rule, is somewhat long and elaborate. But I am not compelled to repeat the process, before I can know with certainty that I should forbear from taking your purse. Through my previous habits of thought and by my education, a sentiment of aversion has become associated in my mind with the thought or conception of a theft : And, without adverting to the reasons which have convinced me that thefts are per- nicious, or without adverting to the rule which I have in- ferred from their pernicious tendency, I am determined by that ready emotion to keep my Angers from your purse. To think that the theory of utility would suhstitide calcu- lation for sentiment, is a gross and flagrant error : the error of a shallow, precipitate understanding. He who opposes cal- culation and sentiment, opposes the rudder to the sail, or to the breeze which swells the sail. Calculation is the guide, and not the antagonist of sentiment. Sentiment without, cal- culation were blind and capricious ; but calculation without sentiment were inert. To crush the moral sentiments, is not the scope or purpose of the true theory of utility. It seeks to impress those sen- timents with a just or beneflcent direction : to free us of groundless likings, and from the tyranny of senseless anti- pathies ; to fix our love upon the useful, our hate upon the pernicious. If, then, the principle of utility were the presiding prin- ciple of our conduct, our conduct would be determined immediately by Divine rules, or rather by moral sentiments associated with those rules. And, consequently, the appli- cation of the principle of utility to particular or individual cases, would neither be attended by the errors, nor followed by the mischiefs, which the current objection in question supposes. But these conclusions (like most conclusions) must be taken with limitations. There certainly are cases (of comparatively rare occurrence) wherein the specific considerations balance or outweigh the general : cases which (in the language of Bacon) are ' im- mersed in matter : ' cases perplexed with peculiarities from which it were dangerous to abstract them ; and to which our attention would be directed, if we were true to our presiding principle. It were mischievous to depart from a rule which yu7^isj)7^2ideiice determined. 121 or guided by a coniec- regarclpcl any of these eases ; since every departure from a Lect. it rule tends to weaken its authority. But so important were compara^ ' the specific consequences which would follow our resolves, that ^i^^^J J*are the evil of observing" the rule might surpass the evil of break- rence),our ing it. Looking at the reasons from which we had inferred ^?(JI^QjI^|^e the rule, it Avere absurd to think it inflexible. We should, fashioned therefore, dismiss the ride ; resort directly to the jprinciple tix^-l'ln-^ upon which om* rules were fashioned ; and calculate specific consequences to the best of our knowledge and ability. -utility For example, If we take the principle of utility as our in- dex to the Divine commands, we must infer that obedience a^-ton to established government is enjoined generally by the Deity, of specif cot For, without obedience to ' the powers which be,' there were conse-"^"^ little security and little enjoyment. The ground, however, q^ences. of the inference, is the iitility of government : And if the protection which it yields be too costly, or if it vex us with needless restraints and load us with needless exactions, the principle which points at submission as our general duty | may counsel and justify resistance. Disobedience to an esta- ) blished government, let it be never so bad, is an evil : For ' the mischiefs inflicted by a bad government are less than the mischiefs of anarchy. So momentous, however, is the differ- ence between a bad and a good government, that, if it tuoidd lead to a good one, resistance to a bad one would be useful. The anarchy attending the transition were an extensive, but a passmg evil : The good which would follow the transition were extensive and lasting. The peculiar good would out- weigh the generic evil : The good which would crown the change in the insulated and eccentric case, would more than compensate the evil which is inseparable from rebellion. Whether resistance to government be useful or pernicious, be consistent or inconsistent with the Divine pleasure, is, therefore, an anomalous question. We must try it by a direct resort to the ultimate or presiding princiiple, and not by the Divine ride which the principle clearly indicates. To consult the rule, were absurd. For, the rule being general and ap- plicable to ordinary cases, it ordains obedience to government, and excludes the question. The members of a political society who revolve this mo- mentous question must, therefore, dismiss the rule, and calcu- late specific consequences." They must measure the mischief wrought by the actual government ; the chance of getting a better, by resorting to resistance ; the evil which niust attend resistance, whether it prosper or fail ; and the good 122 The Provmce of Lect. II which may follow resistance, in case it be crowned with suc- cess. And, then, hj comparing these, the elements of their moral calculation, they must solve the question before them to the best of their knowledge and ability. And in this eccentric or anomalous case, the application of the principle of utility would probably be beset with the difficulties which the current objection in question imputes to it generally. To measure and compare the evils of sub- mission and disobedience, and to determine which of the two would give the balance of advantage, would probably be a difficult and uncertain process. The numerous and competing considerations by which the question must be solved, might well perplex and divide the wise, and the good, and the brave. A Milton or a Hampden might animate their countrymen to resistance, but a Hobbes or a Falkland would counsel obe- dience and peace. But, though the principle of utility would afford no certain solution, the community would be fortunate, if their opinions and sentiments were formed upon it. The pretensions of the opposite parties being tried by an intelligible test, a peace- able compromise of their difference would, at least, be possible. The adherents of the established government, might think it the most expedient : but, as their liking would depend upon reasons, and not upon names and phrases, they might possibly prefer innovations, of which they would other- wise disapprove, to the mischiefs of a violent contest. They might chance to see the absurdity of upholding the existing order, with a stiffness which must end in anarchy. The party affecting reform, being also intent upon utility, would probably accept concessions short of their notions and wishes, rather than persist in the chase of a greater possible good through the evils and the hazards of a war. In short, if the object of each party were measured by the standard of utility, each might compare the worth of its object with the cost of a violent pursuit. But, if the parties were led by their ears, and not by the principle of utility ; if they appealed to unmeaning abstrac- tions, or to senseless fictions ; if they mouthed of the rights of man,' or ' the sacred rights of sovereigns ; ' of unalienable liberties,' or ' eternal and immutable justice ; ' of an ' original contract or covenant,' or ' the principles of an inviolable constitution ;' neither could compare its object with the cost of a violent pursuit, nor would the difference between them admit of a peacea^ble compromise. A sacred or unalienable yurisprttdeiice deter77iined. 123 right is truly and indeed invaluable : For, seeing tliat it Lect. il means nothing, there is nothing with which it can be mea- sured. Parties who rest their pretensions on the jargon to which I have adverted, must inevitably push to their objects through thick and thin, though their objects be straws or feathers as weighed iu the balance of utility. Having ban- died their fustian phrases, and ' bawled till their lungs be spent,' they must even take to their weapons, and fight their difference out. It really is important (though I feel the audacity of the \ paradox), that men should think distinctly, and speak with \ a meaning'. i In most of the domestic broils which have agitated civilized communities, the result has been determined, or seriously affected, by the nature of the prevalent tall^ : by the nature of the topics or phrases which have figured in the war of words. These topics or phrases have been more than pretexts : more than varnish : more than disting-uishino- cockades mounted by the opposite parties. Tor example. If the bulk of the people of England had thought and reasoned with Mr. Barke, had been imbued with the spirit and had seized the scope of his arguments, her needless and disastrous war with her American colonies would ^ have been stifled at the birth. The stupid and infuriate \ majority who rushed into that odious war, could perceive and discourse of nothing but the sovereignty of the mother countiy, and her so called ricjlit to tax her colonial subjects. But, granting that the mother country was properly the sovereign of the colonies, granting that the fact of her sove- reignty was proved by invariable practice, and granting her so called ricjlit to tax her colonial subjects, this was hardly a topic to move an enlightened people. Is it the interest of England to insist upon her sovereignty? Is it her interest to exercise her right without the approba- tion of the colonists '? For the chance of a slight revenue to be wrung from her American subjects, and of a trifling relief from the taxation which now oppresses herself, shall she drive those reluctant subjects to assert their alleged inde- pendence, visit her own children with the evil of wa.r, squan- der her treasures and soldiers in trying to keep them down^ and desolate the very region from which the revenue must be drawn ? These and the like considerations would have determined the people of England, if their dominant 124 The Pj'ovince of Lect. II opinions and sentiments liad been fasliioned on tlie principle ~ ■ ' of utility. And, if these and tlie like considerations liad determined tlie public mind, the public would liave damned the project of taxing and coercing the colonies, and the government y would have abandoned the project. For, it is only in the ignorance of the people, and in their consequent mental im- becility, that governments or demagogues can find the means of mischief. If these and the like considerations had determined the public mind, the expenses and miseries of the war would have been avoided ; the connection of England with America would not have been torn asunder ; and, in case their common interests had led them to dissolve it quietly, the relation of sovereign and subject, or of parent and child, would have been followed by an equal, but intimate and lasting alliance. For the interests of the two nations perfectly coincide ; and the open, and the covert hostilities, with which they plague one another, are the offspring of a bestial antij)athy begot- ten by their original quarrel. But arguments drawn from utility were not to the dull taste of the stupid and infuriate majority. The rabble, great and small, would hear of nothing but their right. ' They'd a right to tax the colonists, and tax 'em they would: Ay, that they would.' Just as if a right were worth a rush of itself, or a something to be cherished and asserted indepen- dently of the good that it may bring. Mr. Burke would have taught them better: would have purged their muddled brains, and ^laid the fever in their souls,' with the healing principle of utility. He asked them what they would get, if the project of coercion should suc- ceed ; and implored them to compare the advantage with the hazard and the cost. But the sound practical men still in- sisted on the right ; and sagaciously shook their heads at him, as a refiner and a theorist. If a serious difference shall arise between ourselves and Canada, or if a serious difference shall arise between ourselves and Ireland, an attempt will probably be made to cram us with the same stuff. But, such are the mighty strides which reason has taken in the interval, that I hope we shall not swallow it with the relish of our good ancestors. It will pro- bably occur to us to ask, whether she be worth keeping, and whether she be worth keeping at the cost of a war ? — I think there is nothing romantic in the hope which I now express ; y ttrispritdence determined. since an admirable speecli of llv. Baring, advising the relin- Lect. ii qnislinient of Canada, Tvas seemingly received, a few years ago, vrith. general assent and approbation.^ Tbere are, then, cases, vrliicli are anomalons or eccentric; Tke second and to Tvbicli tlie man, Trliose conduct was fashioned on theforego- ntilitv. wonld apijlv that ultimate principle inimecliatelv or 1^'^' ^^'•^•'^fl" -L^-L ^ -L i- ^ ^ tion bneny directly. And, in these anomalous or eccentric cases, the resumed, application of the principle would probably be beset with the difficulties which the current objection in question imputes to it generally. But, even in these cases, the principle would afford an intelligible test, and a likelihood of a just solution : a proba- bility of discovering the conduct required by the general good, and, therefore, required by the commands of a wise and bene- volent Deity. And the anomalies, after all, are comparatively few. In the great majority of cases, the general happiness recjuires that rules shall be observed, and that sentiments associated with rules shall be promptly obeyed. If our conduct were truly adjusted to the principle of general utility, our conduct would seldom be determined by an immediate or direct resort to it. LECTUEE III. ALTHOrGH it is not the object of this coui^se of lectu.res to Lect. hi treat of the science of legislation, but to evolve and expound I^d^JT^ the principles and distinctions involved in the idea of law, it 5[JJ'(.iJ^,^"^e was not a deviation from my subject to introduce the prin- princfpieof ciple of utility. For I shall often have occasion to refer to that principle in my course, as that which not only ought to guide, but has commonly in fact guided the legislator. The principle of utility, well or ill understood, has usually been the principle consulted in making laws ; and I therefore should often be unable to explain distinctly and precisely the scope and purport of a lfi.w, without having brought the principle of utility directly before you. I have therefore done so, not pretending- to expound the principle in its various applications, which would be a subject of sufficient extent for many com-ses of lectures ; but attempting to give s ' The rationale of the so-called rights of sovereign governments is treated in more detail in Lecture VI. ^^^osr. 126 • The Province of Lect. Ill jo"Q a general notion of the principle, and to obviate tlie ' ' ' most specious of the objections which are commonly made to it. The con- In my second lecture, I examined a current and specious thfthh-d^ objection to the theory of general utility. with the The drift of the objection, you undoubtedly remember; lectmi and you probably remember the arguments by which I at- tempted to refute it. Accordingly, I merely resume that general conclusion which I endeavoured to establish by the second of my two answers. The conclusion may be stated briefly, in the following manner. — If our conduct were truly adjusted to the principle of general utility, our conduct would conform, for the most ! part, to law% or rules : laws or rules which are set by the i Deity, and to which the tendencies of classes of actions are I the guide or index. A second But here arises a difficulty which certainly is most per- to^the^^^ plexing, and which scarcely admits of a solution that will theory of perfectly satisfy the mind. stated? If the Divine laws must be gathered from the tendencies of actions, how can they, who are bound to keep them, know them fully and correctly ? So numerous are the classes of actions to which those laws relate, that no single mind can mark the whole of those classes, and examine completely their respective tendencies. If every single man must learn their respective tendencies, and thence infer the rules which God has set to mankind, every man's scheme of ethics will embrace but a part of those rules, and, on many or most of the occasions which require him to act or forbear, he will be forced on the dan- gerous process of calculating specific consequences. Besides, ethical, like other wisdom, ^ cometh by opportu- nity of leisure : ' And, since they are busied with earning the means of living, the many are unable to explore the field of ethics, and to learn their numerous duties by learning the tendencies of actions. If the Divine laws must be gathered from the tendencies of actions, the inevitable conclusion is absurd and monstrous. God has given us laws which no man can know com- pletely, and to which the great bulk of mankind has scarcely the slightest access. The considerations suggested by this and the next dis- yu risp rudence detei^m ined. 127 course, may solve or extenuate the perplexing difficulty to Lect. hi which. I have now adverted. ' " ~" In so far as law and morality are what they ouojlii to be (or An answer in so far as law and morality accord with their ultimate test, secon'd ob- or in so far as law and morality accord with the Divine com- jection in- ^ . trociucea. mands), legal and moral rules have been fashioned on the principle of utility, or obtained by observation and induction from the tendencies of human actions. But, though they have been fashioned on the princi^Dle of utility, or obtained by observation and induction from the tendencies of human actions, it is not necessary that all whom they bind should know or advert to the process through which they have been gotten. If all whom they bind keep or observe them, the ends to which they exist are sufficiently accomplished. The ends to which they exist are sufficiently accomplished, though most of those who observe them be unable to perceive their ends, and be ignorant of the reasons on which they were founded, or of the proofs from which they were inferred. According to the theory of utility, the science of Ethics or Deontology (or the science of Law and Morality, as they should be, or ought to be) is one of the sciences which rest upon observation and induction. The science has been formed, through a long succession of ages, by many and separate contributions from many and separate discoverers. No single mind could explore the whole of the field, though each of its numerous departments has been explored by nu- merous inquirers. If positive law and morality were exactly what they ought to be (or if positive law and morality were exactly fashioned to utility), sufficient reasons might be giver, for each of their constituent rules, and each of their constituent rules would in fact have been founded on those reasons. But no single mind could have found the whole of those rules, nor could any single mind comj^ass the whole of their proofs. Though aU the evidence would be known, the several ]3arts of the evidence would be known by different men. Every single man might master a portion of the evidence : a portion com- mensurate with the attention which he gave to the science of ethics, and with the mental perspicacity and vigour which he brought to the study. But no single man could master more than a portion : And many of the rules of conduct, which were actually observed or admitted, would be taken, by the most instructed, on author itij, testimony, or trust. 128 The Provmce of Lect. Ill 111 sliort, if a system of law and morality were exactly fashioned to utility, all its constituent rides miglit be known by all or most. But all the nnmerons reasons, upon which the system would rest, could scarcely be compassed by any : while most must limit their inquiries to a few of those numerous reasons ; or, without an attempt to examine the reasons, must receive the whole of the rules from the teach- ing and example of others. ^ But this inconyenience is not peculiar to law and morality. It extends to all the sciences, and to all the arts. Many mathematical truths are probably taken upon trust by deep and searching mathematicians : ^ And of the thou- sands who apply arithmetic to daily and hourly use, not one in a hundred knows or surmises the reasons upon which its rules are founded. Of the millions who till the earth and ply the various handicrafts, few are acquainted with the grounds of their homely but important arts, though these arts are generally practised with passable expertness and success. The powers of single individuals are feeble and poor, though the powers of conspiring numbers are gigantic and admirable. Little of any man's knowledge is gotten by original research. It mostly consists of results gotten by the researches of others, and taken by himself upon testi- mony. ^ In J. S. M.'s notes I find this passage curate expression of the physical condi- in the following form: — 'There are doubt- tions which regulate the motions of the less many mathematical truths which heavenly bodies) rests upon a combina- are believed on authority or testimony tion of data reduced from an enormous by the greatest mathematicians.' number of observations, and a variety of By ' mathematical truths ' the author mathematical calculations which alter- cannot have intended those hypothetical nately assume approximate results,and by conclusions or deductions which pertain the use of these assumptions, make new to the branch of science sometimes called and closer approximations. All these ^jwre mathematics. As the meaning and calculations implicitly involve or assume purport of such conclusions is seldom the law of grav tation. and the evidence correctly apprehended without pursuing of that law depends on the accuracy of the steps of reasoning upon which they the entire calculations, combined with rest, it would be merely idle for a ma- the final agreement of calculation with thematician to take them upon trust, or observation. Now no single individual to believe them upon testimony. has ever verified more than a fractional The author's remark is however un- part of this evidence Or to take a con- doubtedly just, with regard to all uected and more homely illustration. No scientific conclusions relating to actual single individual has examined more than phenomena, and based upon observations a fraction of the evidence on which de- and experiment. I will take as an in- pendsthe accuracy of a single statement stance one of the best known and most in the Nautical Almanac for the current widely accepted of them. The ultimate year. Yet the data of that publication demonstration of the (so-called) laiv of will be implicitly relied on by astrono- gravitation (or rather the demonstration mers no less than by navigators. — R. C. of its extreme approximaiion to an ac- J iLrispriidence detejnnined. 129 And in many departments of science we may safely rely Lect. in upon testimony : tliougli tlie knowledge wliicti we tlins ob- " ' ^ tain is less satisfactory and useful tlian tliat whicli we win for ourselves by direct examination of the proofs. In the mathematical and physical sciences, and in the arts which are founded upon them^ we may commonly trust the conclusions which we take upon authority. For the adepts in these sciences and arts mostly agree in their re- sul1 s, and lie under no temptation to cheat the ignorant with error. I firmly believe (for example) that the earth moves round the sun ; though I know not a tittle of the evidence from which the conclusion is inferred. And my belief is perfectly rational, though it rests upon mere authority. .For there is nothing in the alleged fact, contrary to my ex- perience of nature : whilst all who have scrutinized the evidence concur in affirming the fact ; and have no conceiv- able motive to assert and diffuse the conclusion, but the liberal and beneficent desire of maintaining and propagating truth. But the case is unhappily different with the important --^^ ^"f^l^^ science of ethics, and also Tvuth the various sciences — such as foregoing legislation, politics, and political economy — which are nearly ^^^^^l' related to ethics. Those who have inquired, or affected to inquire into ethics, have rarely been impartial, and, therefore, have differed in their results. Sinister interests, or preju- dices begotten by such interests, have mostly determined them to embrace the opinions which they have laboui^ed to impress upon others. Most of them have been advocates rather than inquirers. Instead of examining the evidence and honestly pursuing its consequences, most of them have hunted for argnments in favour of (^iven conclusions, and have neglected or purposely suppressed the unbending and incom- modious considerations which pointed at opposite inferences. Kow how can the bulk of mankind, who have little oppor- " tunity for research, compare the respective merits of these varying and hostile opinions, and hit upon those of the throng which accord with utility and truth? Here, testimony is not to be trusted. There is not tliat co7icurrence or agreement of nuTiierous and impartial inquirers, to which the most cautious and erect understanding readily and wisely defers. With regard to the science of ethics, and to all the various sciences which are nearly related to ethics, invincible doubt, or blind and prostrate belief, woidd seem to be the doom of the multi- VOL. I. K \ I30 The Province of Lect. Ill tude. Anxiously busied with, tlie means of earning a pre- ^ " carious livelihood, they are debarred from every opportunity of carefully surveying the evidence : whilst every cmthority, whereon they may hang their faith, wants that mark of trust- worthiness which justifies reliance on authority. Accordingly, the science of ethics, with all the various sciences which are nearly related to ethics, lag behind the others. So few are the sincere inquirers who turn their attention to these sciences, and so difficult is it for the mul- titude to perceive the worth of their labours, that the advance- ment of the sciences themselves is comparatively slow ; whilst the most perspicuous of the truths, with which they are occasionally 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 w^ith established and obstinate errors. Many of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason. They have been taken from preceding generations without examination, and are deeply tinctured with barbarity. They arose in early ages, and in the infancy of the human mind, partly from caprices of the fancy (which are nearly omnipotent with barbarians), and partly from the imperfect apprehension of general utility which is the conse- quence of narrow experience. And so great and numerous are the obstacles to the diffusion of ethical truth, that these monstrous or crude productions of childish and imbecile intellect have been cherished and perpetuated, through ages of advancing knowledge, to the comparatively enlightened p eriod in which it is our happiness to live. The fore- going ob- jection to the fore- going answer, solved or extenuated. It were idle to deny the difficulty. The diffusion and the advancement of ethical truth are certainly prevented or ob- structed by great and peculiar obstacles. But these obstacles, I am firmly convinced, will gradually disappear. In two causes of slow but sure operation, we may clearly perceive a cure, or, at least, a palliative of the evil. In every civilized community of the Old and ISTew World, the leading principles of the science of ethics, and also of the va- rious sciences which are nearly related to ethics, are gradually finding their way, in company with other knowledge, amongst the great mass of the people : whilst those who accurately study, and who labour to advance these sciences, are pro- portionally increasing in number, and waxing in zeal and y u risp 7^udence detenu iiicd. activity. From the combination of these two causes we may lect. hi ho^De for a more rapid progress both, in tlie discoyerj and in ' the diffusion of moral truth. Profound knowledge of these, as of the other sciences, will always be confined to the comparatively few who study them long and assiduously. But the multitude are fully competent to conceive the leading irrinciijles, and to apply those leading principles to pai-ticular cases. And, if they were imbued with those principles, and were practised in the art of applying them, they would be docile to the voice of reason, and armed against sophistry and error. There is a wide and important difference between ignorance of prin- ciples and ignorance of particulars or details. The man who is ignorant of principles, and unpractised in right reasoning, is imbecile as well as ignorant. The man who is simply ignorant of particulars or details, can reason cor- rectly from premises which are suggested to his understand- ing, and can justly estimate the consequences which are drawn from those premises by others. If the minds of the many were informed and invigorated, so far as their position will permit, they could distinguish the statements and reasonings of their instructed and judicious friends, from the lies and fallacies of those who would use them to sinister purposes, and from the equally pernicious nonsense of their weak and io-norant well-wishers. Possessed of directino- principles, able to reason rightly, helped to the requisite premises by accurate and compx-ehensive inquirers, they could examine and fathom the questions which it most behoves them to understand : Though the leisure which they can snatch from their callings is necessarily so limited, that their opinions upon numerous questions of subordinate importance would continue to be taken from the mere au- thority of others. The shoi^est and clearest illustrations of this most cheer- ing truth, are furnished by the inestimable science of poli- tical economy, which is so interwoven with every considera- tion belonging to morals, politics, and legislation, that it is impossible to treat any one of these sciences without a con- tinual reference to it. The broad or leading principles of the science of political economy, may be mastered, with moderate attention, in a short period. With these simple, but commanding prin- 132 The Pi-ovhice of Lect. Ill ciples, a number of important questions are easily resolved. ' ^ And if the multitude (as they can and will) shall ever un- derstand these principles, many pernicious prejudices will be extirped from the popular mind, and truths of ineffable moment planted in their stead. For example, In many or all countries (the least uncivi- lized not excepted), the prevalent opinions and sentiments of the working people are certainly not consistent with the complete security of property. To the ignorant poor, the inequality which inevitably follows the beneficent institution of property is necessarily in\^idious. That they who toil and produce should fare scantily, whilst others, who ' delve not nor spin,' batten on the fruits of labour, seems, to the jaun- diced eyes of the poor and the ignorant, a monstrous state of things : an arrangement upheld by the few at the cost of the many, and flatly inconsistent with the benevolent purposes of Providence. A statement of the numerous evils which flow from this single prejudice, would occupy a volume. But they cast so clear a light on the mischiefs of popular ignorance, and show so distinct^ the " advantages of popular instruction, that I will briefly touch upon a few of them, though at the risk of tiring your patience. In the first place, this prejudice blinds the people to the cause of their sufferings, and to the only remedy or pallia- tive which the case will admit. I Want and labour spring from the niggardliness of nature, I and not from the inequality which is consequent on the in- I stitution of property. These evils are inseparable from the ^ condition of man upon earth ; and are lightened, not aggra- vated, by this useful, though invidious institution. Without capital, and the arts which depend upon capital, the reward of labour would be far scantier than it is ; and capital, with the arts which depend upon it, are creatures of the institu- tion of property. The institution is good for the many, as well as for the few. The poor are not stripped by it of the produce of their labour ; but it gives them a part in the en- joyment of wealth which it calls into being. In effect, though not in law, the labourers are co-proprietors with the capitalists who hire their labour. The reward which they get for their labour is principally drawn from capital ; and they are not less interested than the legal owners in protect- ing the fund from invasion. It is certainly to be wished, that their reward were J urispntdence determined. greater ; and tliat tliey were relieved from the incessant Lf.ct. hi dmdgerj to which they are now condemned. But the con- ' ' dition of the working people (whether their wages shall be high or low ; their labour, moderate or extreme) depends npon their own will, and not upon the will of the rich. In the true irrincvple of j^oioulation, detected by the sagacity of Mr. Malthus, they must look for the cause and the remedy of their penury and excessive toil. There they may find the means which would give them comparative affluence ; which would give them the degree of leisure necessary to knowledge and refinement ; which would raise them to per- sonal dignity and political influence, from grovelling and sordid subjection to the arbitrary rule of a few. And these momentous truths are deducible from plain principles^ by short and obvious inferences. Here, there is no need of large and careful research, or of subtle and sus- tained thinking. If the people understood distinctly a few indisputable propositions, and were capable of going cor- rectly through an easy j)rocess of reasoning, their minds would be purged of the prejudice which blinds them to the cause of their sufferings, and they would see and apply the remedy which is suggested by the principle of population. Their rex3inings at the affluence of the rich, would be ajv peased. Their mm-murs at the injustice of the rich, would be silenced. They would scarcely break machinery, or fire barns and corn ricks, to the end of raising wages, or the rate of parish relief. They would see that violations of pro- perty are mischievous to themselves : that such violations weaken the motives to accumulation, and, therefore, dimi- nish the fund which yields the labourer his subsistence. They would see that they are deeply interested in the secu- rity of property : that, if they adjusted their numbers to the demand for their labour, they would share abundantly, with their employers, in the blessings of that useful in- stitution. Another of the numerous evils which fiow from the pre- judice in question, is the frequency of crimes. ISTineteen offences out of twenty, are offences against pro- perty. And most offences against property may be imputed to the 23rejudice in question. The authors of such offences are commonly of the poorer sort. For the most part, poverty is the incentive. And this prejudice perpetuates poverty amongst the great body of the people, by blinding them to the cause and the remedv. 134 TJie Province of Lect. Ill And whilst it perpetuates the ordinary incentive to crime, it weakens the restraints. As a check or deterring motive, as an inducement to ab- stain from crime, the fear of public disapprobation, with its countless train of evils, is scarcely less effectual than the fear of legal punishment. To the purpose of forming the moral character, of rooting in the soul a prompt aversion from crime, it is infinitely more effectual. The help of the hangman and the gaoler would seldom be called for, if the opinion of the great body of the people were cleared of the prejudice in question, and, therefore, fell heavily upon all offenders against propei^ty. If the general opinion were thoroughly cleared of that prejudice, it would greatly weaken the temptations to crime, by its salutary in- fluence on the moral character of the multitude : The motives which it would oppose to those temptations, would be scarcely less effectual than the motives which are pre- sented by the law : And it would heighten the terrors, and strengthen the restraints of the law, by engaging a countless host of eager and active volunteers in the service of criminal justice. If the people saw distinctly the tendencies of offences against property ; if the people saw distinctly the tendencies and the grounds of the punishments ; and if they were, therefore, bent upon pursuing the criminals to justice ; the laws which prohibit these offences would seldom be broken with impunity, and, by consequence, would seldom y be broken. An enlightened people were a better auxiliary to the judge than an army of policemen. But, in consequence of the prejudice in question, the fear of public disapprobation scarcely operates upon the poor to the end of restraining them from offences against the pro- perty of the wealthier classes. For every man's public is formed of his own class : of those with whom he associates : of those whose favourable or unfavourable opinion sweetens or imbitters his life. The poor man's public is formed of the poor. And the crimes, which affect merely the property of the wealthier classes, are certainly regarded with little, or rather with no abhorrence, by the indigent and ignorant portion of the working people. Not perceiving that such crimes are pernicious to all classes, but considering property to be a benefit in which they have no share and which is enjoyed by others at their expense, the indigent and ignorant portion of the working people are prone to consider such crimes as reprisals made upon usurpers and enemies. They J 21 1 'ispnidcncc dctcrm iii ed. 135 regard tlie criminal witli svmpatliT ratlier tlian with indig- Lect. hi nation. Tliey rather incline to favour, or, at least, to wink ' ' ^ at his escape, than to lend theii' hearty aid towards bringing him to justice. Those who have inquired into the causes of crimes, and into the means of lessening their number, have commonly expected magnificent results from an improved system of pmiishmejits. And I admit that something might be done by a judicious mitigation of punishments, and by removing that frequent inclination to abet the escape of a criminal which springs from their repulsive severity. Something might also be accomplished by improvements in prison-dis- cipline, and by providing a refuge for criminals who have suffered their punishments. For the stigma of legal punish- ment is commonly indelible ; and, by debarring the unhappy criminal from the means of living honestly, forces him on further crimes. But nothing but the diffusion of hioiuledge tJirough the great 7nass of the jyeople will go to the root of the evil. 'No- thing but this will cure or alleviate the poverty which is the ordinary incentive to crime. Nothing but this will extii'- pate their prejudices, and correct their moral sentiments : will lay them under the restraints which are imposed by enlightened opinion, and which operate so potently on the his'her and more cultivated classes. The evils which I have now mentioned, with many which I pass in silence, fiow from one of the prejudices which en- slave the popular mind. The advantages at which I have pointed, with many which I leave unnoticed, would follow the emancipation of the multitude from that single error. And this, with other prejudices, might be expelled from their understandings and affections, if they had mastered the broad principles of the science of political economy, and could make the easiest applications of those simple, though commanding truths. The functions of paper-money, the incidence of taxes, with other of the n icer points which are presented by this science, .the multitude, it is probable, will never understand dis- tinctly : and their opinions on such points (if ever they shall think of them at all! will, it is most likely, be always taken from authority. But the importance of those nicer points dwindles to nothing, when they are compared with the ti^ue reasons which call for the institution of property, and with the effect of the principle of population on the price of laboui\ 136 The Province of .KC T. Ill For if these (whicli are not difficult) were clearly apprehended by the many, they would be raised from penury to comfort : from the necessity of toiling like cattle, to the enjoyment of sufficient leisure : from ignorance and brutishness, to know- ledge and refinement : from abject subjection, to the inde- pendence which commands respect. If my limits would permit me to dwell upon the topic at length, I could show, by many additional and pregnant exam- ples, that the multitude might clearly apprehend the leading jprincifles of ethics^ and also of the various sciences which are nearly related to ethics : and that, if they had seized these principles, and could reason distinctly and justly, all the more momentous of the derivative practical truths would find access to their understandings and expel the antagonist errors. And the multitude (in civilized communities) would soon apprehend these principles, and would soon acquire the talent of reasoning distinctly and justly, if one of the weightiest of the duties, which God has laid upon govern- ments, were performed with fidelity and zeal. For, if we must construe those duties by the principle of general utility, it is not less incumbent on governments to forward the diffusion of knowledge, than to protect their subjects from one another by a due administration of justice, or to defend them by a military force from the attacks of external ene- mies. A small fraction of the sums which are squandered in needless war, would provide complete instruction for the working people : would give this important class that portion in the knowledge of the age, which consists with the nature of their callings, and with the necessity of toiling for a liveli- hood. It appears, then, that the ignorance of the multitude is not altogether invincible, though the principle of general utility be the index to God's commands, and, therefore, the proximate test of positive law and morality. If ethical science must be gotten by consulting the prin- ciple of utility, if it rest upon observation and induction ap- plied to the tendencies of actions, if it be matter of acquired knowledge and not of immediate consciousness, much of it (I admit) will ever be hidden from the multitude, or will ever be taken by the multitude on authority, testimony, or trust. For an inquiry into the tendencies of actions em- braces so spacious a field, that none but the comparatively y ttrispriidence deteiinined. 137 few, wlio study tlie science assidiiouslj, can apply the prin- Ltxt. hi ciple extensively to received or positive rules, and determine ' ' liovr far tliey accord with its genuine suggestions or dictates. But the multitude might clearly understand the elements or groundwork of the science, together with the more mo- mentous of the derivative practical truths. To that extent, they might be freed from the dominion of authority : from the necessity of blindly persisting in hereditary opinions and practices ; or of tmming and veering, for want of directing principles, with every wind of doctrine. Xor is this the only advantage which would follow the spread of those elements amongst the great body of the people. If the elements of ethical science were widely diffused, the science would advance with pro]Dortionate rapidity. If the minds of the many were informed and invig'orated, their coarse and sordid pleasures, and their stupid indif- ference about knowledge, would be supplanted by refined amusements, and by liberal curiosity. A numerous body of recruits from the lower of the middle classes, and even from the higher classes of the working people, would thicken the slender ranks of the reading and reflecting public : the public which occupies its leisure with letters, science, and philosophy ; whose opinion determines the success or failure of books ; and whose notice and favour are naturally courted by the writers. And until that public shall be much extended, shall em- brace a considerable portion of the middle and working people, the science of ethics, with all the various sciences which are nearly related to ethics, will advance slowly. It was the opinion of ]Mr. Locke, and I fully concui- in the opinion, that there is no peculiar uncertainty in the subject or matter of these sciences : that the great and extraordinary difficulties, by which their advancement is impeded, are ex- trinsicJ:; are opposed by sinister interests, or by prejudices which are the offspring of such interests : that, if they who seek, or affect to seek the truth, would pursue it with obstinate application and with due ' indifferency/ they might frequently hit upon the object which they profess to look for. Kow few of them icill pursue it with this requisite ' indiffer- ency' or impartiality, so long as the bulk of the public, which determines the fa.te of their labours, shall continue to 138 The Province of Lect. hi be formed from the classes wliicli are elevated by rank or ^" ■ opulence, and from tbe peculiar professions or callings which, are distinguished by the name of ' liberal.' In the science of ethics, and in all the various sciences which are nearly related to ethics, your only sure guide is general utility. If thinkers and writers would stick to it honestly and closely, they would frequently enrich these sciences with additional truths, or w^ould do them good ser- vice by weeding them of nonsense and error. But, since the peculiar interests of particular and narrow classes are always somewhat adverse to the interests of the great majority, it is hardly to be expected of writers, whose reputation depends upon such classes, that they should fearlessly tread the path which is indicated by the general well-being. The indiffer- ency in the pursuit of truth which is so earnestly inculcated by Mr. Locke, is hardly to be expected of writers who occupy so base a position. Knowing that a fraction of the commu- nity can make or mar their reputation, they unconsciously or purposely accommodate their conclusions to the prejudices of that narrower public. Or, to borrow the expressive lan- guage of this greatest and best of philosophers, ' they begin with espousing the ivell-eyidowed opinions in fashion ; and, then, seek arguments to show their beauty, or to varnish and disguise their deformity.' The treatise by Dr. Paley on Moral and Political Philo- sophy exemplifies the natural tendency of narrow and domi- neering interests to pervert the course of inquiry from its legitimate purpose. As men go, this celebrated and influential writer was a wise and a virtuous man. By the qualities of his head and heart, by the cast of his talents and affections, he was fitted, in a high degree, to seek for ethical truth, and to expound it successfully to others. He had a clear and a just under- standing ; a hearty contempt of paradox, and of ingenious, but useless refinements ; no fastidious disdain of the working people, but a warm sympathy with their homely enjoyments and sufferings. He knew that they are more numerous than all the rest of the community, and he felt that they are more important than all the rest of the community to the eye of unclouded reason and impartial benevolence. But the sinister influence of the position which he un- luckily occupied, cramped his generous affections, and warped the rectitude of his understanding. y 2L risp rude nee de term in ed. 139 A steady pursuit of the consequences indicated by general Lect. in utility, was not the most obvious way to professional ad- "~ ' vancement, nor even the short cut to extensive reputation. . For there was no impartial public, formed from the commu- nity at large, to reward and encourage, with its approbation, an iijflesible adherence to truth. If the bulk of the community had been instructed, so far as their position will permit, he might have looked for a host of readers from the middle classes. He might have looked for a host of readers from those classes of the working people, whose wages are commonly high, whose leisure is not incon- siderable, and whose mental powers are called into frequent exercise by the natures of their occupations or callings. To readers of the middle classes, and of all the higher classes of the working people, a well made and honest treatise on Moral and Political Philosophy, in his clear, vivid, down- right, English style, would have been the most easy and attractive, as well as instructive and useful, of abstract or scientific books. But those numerous classes of the community were com- monly too coarse and ignorant to care for books of the sort. The great majority of the readers who were likely to look into his book, belonged to the classes which are elevated by rank or opulence, and to the peculiar professions or callings which are distinguished by the name of 'liberal.' And the character of the book which he wrote betrays the position of the writer. In almost every chapter, and in almost every page, his fear of offending the prejudices, commonly enter- tained by such readers, palpably suppresses the suggestions of his clear and vigorous reason, and masters the better af- fections which mclined him to the general good. He was one of the greatest and best of the great and ex- cellent writers, who, by the streng-th of their philosophical genius, or by their large and tolerant spirit, have given im- perishable lustre to the Church of England, and extinguished or softened the hostility of many who reject her creed. He may rank with the Berkeleys and Butlers, with the Burnets, Tillotsons and Hoadlys. But, in spite of the esteem with which I regard his me- mory, truth compels me to add that the book is unworthy of the man. For there is much ignoble truckling to the dominant and influential few. There is a deal of shabby sophistry in defence or extenuation of abuses which the few are interested in upholding. 140 The Province of Lect. Ill If there were a reading public iiiimerous, discerning, and ' ' ' impartial, the science of ethics, and all the various sciences which are nearly related to ethics, would advance with un- exampled rapidity. By the hope of obtaining the approbation which it would bestow upon genuine merit, writers would be incited to the patient research and reflection, which are not less requisite • to the improvement of ethical, than to the advancement of mathematical science. Slight and incoherent thinking would be received with general contempt, though it were cased in polished periods studded with brilliant metaphors. Ethics would be consi- dered by readers, and, therefore, treated by writers, as the matter or subject of a science : as a subject for persevering and accurate investigation, and not as a theme for childish and babbling rhetoric. This general demand foi* truth (though it were clothed in homely guise), and this general contempt of falsehood and nonsense (though they were decked with rhetorical graces, would improve the method and the style of inquiries into ethics, and into the various sciences which are nearly related to ethics. The writers would attend to the suggestions of Hobbes and of Locke, and would imitate the method so suc- cessfully pursued by geometers : Though such is the variety of the premises which some of their inquiries involve, and such are the complexity and ambiguity of some of the terms, that they would often fall short of the perfect exactness and coherency, which the fewness of his premises, aiid the sim- plicity and definiteness of his expressions, enable the geo- meter to reach. But, though they would often fall short of geometrical exactness and coherency, they might always ap- proach, and would often attain to them . They would acquire the art and the habit of defining their leading terms ; of steadily adhering to the meanings announced by the defi- nitions ; of carefully examining and distinctly stating their premises ; and of deducing the consequences of their pre- mises with logical rigour. Without rejecting embellishments which might happen to fall in their way, the only excellencies of style for which they would seek, are precision, clearness, and conciseness : the first being absolutely requisite to the successful prosecution of inquiry; whilst the others enable the reader to seize the meaning with certainty, and spare him unnecessary fatigue. And, what is equally important, the protection afforded y 21 risp y 21 den ce d c te ; m in ed. 141 Lt tliis public to dilio^ent and lionest wiiters. would iiispii^e Lect. ill into writers npon ethics, and upon the nearlr related sciences, ' ^ the spirit of dispassionate inquiry : the " indiif'erency ' or im- partiality in the pursuit of truth, which is just as requisite to the detection of tmth as continued and close attention, or sincerity and simplicity of purpose. Eelying on the dis- cernment and the justice of a numerous and powerful public, shielded by its countenance from the shafts of the hypocrite and the bigot, indiff'erent to the idle whistling of that harm- less storm, they would scrutinize established institutions, and current or received opinions, fearlessly, but coolly : with the freedom which is imperiously demanded by general utility, but without the antipathy which is begotten by the dread of persecution, and which is scarcely less adverse than 'the love of things ancient ' to the rapid advancement of science. This patience in investigation, this distmctness and accu- racy of method, this freedom and • indifferency ' in the pur- suit of the useful and the true, would thoroughly dispel the obscurity by which the science is clouded, and would clear it from most of its uncertainties. The wish, the hope, the prediction of Mr. Locke would, in time, be accomjjlished : and ethics would rank with the sciences which are cajjoMe of demovist ration.' The adepts in ethical, as well as in ma- thematical science, would commonly agree in their results : And, as the jar of tlieir conclusions gradually subsided, a body of doctrine and authority to which the multitude might trust would emerge fr'om the existmg chaos. The direct exa- mination of the multitude would only extend to the elements, and to the easier, though more momentous, of the deriva- tive practical tiaiths. But none of their opinions vrould be adopted blindly, nor would any of their opinions be obnoxious to groundless and capricious change. Though most or many of their opinions would still be taken from authority, the authority to which they would trust might satisfy the most scrupulous reason. In the unanimous or general consent of numerous and imjjartial inquirers, they would find that mark of ti^ust-worthiness which justilles reliance on authority, wherever we are deban-ed from the oppoi^tunity of examining the evidence fur ourselves. With regard, then, to the perplexing difficulty which I am The second trying to solve or extenuate, the case stands thus : SKheOTv'' If utility be the proximate test of positive law and moral- of utritr^ ity, it is simply impossible that positive law and morality wfthme 142 The Province of Lect. Ill should be free from defects and errors. Or (adopting a dif- foregoing" ferent, though exactly equivalent expression) if the principle tharsecond general utility be our guide to the Divine commands, it objection, is impossible that the rules of conduct achtally obtaining statecL^^' ct'i'iiongst mankind should accord completely and correctly with the laws established by the Deity. The index to his will is imperfect and uncertain. His laws are signified obscurely to those upon whom they are binding, and are subject to inevitable and involuntary misconstruction. ^OY, first, positive law and morality, fashioned on the prin- ciple of utility, are gotten by observation and induction from the tendencies of human actions : from what can be known or conjectured, by means of observation and induction, of their uniform or customary effects on the general happiness or good. Consequently, till these actions shall be marked and classed with perfect completeness, and their effects ob- served and ascertained with similar completeness, positive law and morality, fashioned on the principle of utility, must be more or less defective, and more or less erroneous. And, these actions being infinitely various, and their effects being infinitely diversified, the work of classing them completely, and of collecting their effects completely, transcends the limited faculties of created and finite beings. As the expe- rience of mankind enlarges, as they observe more extensively and accurately and reason more closel}' and precisely, they may gradually mend the defects of their legal and moral rules, and may gradually clear their rules from the errors and nonsense of their predecessors. But, though they may constantly approach, they certainly will never attain to a faultless system of ethics : to a system perfectly in unison with the dictates of general utility, and, therefore, perfectly in unison with the benevolent wishes of the Deity. And, secondly, if utility be the proximate test of positive law and morality, the defects and errors oH popular or vulgar ethics will scarcely admit of a remedy. For, if ethical truth be matter of science, and not of immediate consciousness, most of the ethical maxims, which govern the sentiments of the multitude, must be taken, without examination, from human authority. And where is the human authority upon which they can safely rely ? Where is the hitman authority bearing such marks of trustworthiness, that the ignorant may hang their faith upon it with reasonable assurance ? Reviewing the various ages and the various nations of the world, reviewing the various sects v»^hich have divided the y urispj^iidence determined. 143 opinions of mankind, we find conflicting maxims tanglit with. lfxt. hi equal confidence, and received with, equal docility. We find ^~ ' ' the guides of the multitude moved by sinister interests, or by prejudices which are the offspring of such interests. We find them stifling inquiry, according to the measure of their means : upholding with fire and sword, or with sophistry, de- clamation and calumny, the theological and ethical dogmas which they impose upon their prostrate disciples. Such is the difiiculty. — The only solution of which this difficulty seems to admit, is suggested by the remarks which I have already submitted to your attention, and which I will now repeat in an inverted and compendious form. In the first place, the diffusion of ethical science amongst the great bulk of mankind will gradually remove the obsta- cles which prevent or retard its advancement. The field of human conduct being infinite or immense, it is impossible that human understanding should embrace and explore it completely. But, by the general diffusion of knowledge amongst the great bulk of mankind, by the impulse and the direction which the difinsion will give to inquiry, many of the defects and errors in existing law and morality will in time be supplied and corrected. Seco7idly : Though the many must trust to authority for a number of subordinate truths, they are competent to exa- mine the elements which are the groundwork of the science of ethics, and to infer the more momentous of the derivative practical consequences. And, thirdly, as the science of ethics advances, and is cleared of obscurity and uncertainties, they who are debarred from opportunities of examining the science extensively, will find an authority, whereon they may rationally rely, in the unanimous or general agreement of searching and impartial inquirers.^ ^ The experience of the thirty years view. And if sound conceptions of ethics which have elapsed since the foregoing and political economy have in our own lecture was written does not seem to country penetrated more widely and justify the author's sanguine anticipa- deeply than a few years ago was appa- tions of the effects of the spread of educa- rent, I believe it possible to discern, in tion among the people. But it must be the writings of those who have been observed that, as little or no attempt has most succesful in diffusing this know- been made to give the sort of instruction lodge among the populace, a trace at which he contemplated (and upon which least of Mr. Austin's influence; an influ- alone his expectations rested), nothing ence far more powerful, as I am assured at variance with these consolatory \dews by those conversant with his living dis- can be inferred. — S. A. {Ed. 1861.) course, than can be estimated by those The history of even the few years conversant only with the remains of his which have elapsed since the date of -svritings. — E.G. the above note, inspires a more hopeful 144 The Pi^ovince of LECTURE IV. Lect. IV In mj last lecture, I endeavoured to answer an objection The con- wliicli may be urged against the theory of utility. And, to thf fourth ^^^^ purpose of linking my present with my last lecture, I will with the now restate, in a somewhat abridged shape, that summary of lecture. fh© objection and the answer with which I concluded my dis- course. The objection may be put briefly, in the following manner. If utility be the proximate test of positive law and morality, it is impossible that the rules of conduct actually obtaining amongst mankind should accord completely and correctly with the laws established by the Deity. The index to his will is imperfect and micertain. His laws are signified obscurely to those upon whom they are binding, and are subject to in- evitable and involuntary misconstruction. For, first, positive law and morality, fashioned on the prin- ciple of utility, are gotten by observation and induction from the tendencies of human actions. Consequently, till these actions shall be marked and classed with perfect complete- ness, and their effects observed and ascertained with similar completeness, positive law and morality, fashioned on the principle of utility, must be more or less defective, and more or less erroneous. And, these actions being infinitely various, and their effects being infinitely diversified, the work of class- ing them completely, and of collecting their effects completely, transcends the limited faculties of created and finite beings. And, secondly, if utility be the proximate test of positive law and moral it}^, the defects and errors of popular or vulgar ethics will scarcely admit of a remedy. For if ethical truth be matter of science, and not of immediate consciousness, most of the ethical maxims, which govern the sentiments of the multitude, must be taken without examination, from human authority. Such is the objection. — The only answer of which the ob- jection will admit, is suggested by the remarks which I offered in my last lecture, and which I repeated at its close, and here repeat in an inverted and compendious form. In the first place, the diffusion of ethical science amongst the great bulk of mankind will gradually remove the obstacles which prevent or retard its advancement. The field of human conduct being infinite or immense, it is impossible that human understanding should embrace and explore it completely. y tirisprudence determined. 145 But, by tlie general diffusion of knowledge amongst tlie great Lect. iy bulk of mankind, by the impulse and tlie direction which, the ' ^ diffusion will give to inquiry, many of the defects and errors in existing law and morality will in time be supplied and corrected. Secondly : Though the many must trust to authority for a number of subordinate truths, the}" are competent to examine the elements which are the ground- work of the science of ethics, and to infer the more momentous of the derivative practical consequences. And; thirdly, as the science of ethics advances, and is cleared of obscurity and uncertainties, they, who are debarred from opportunities of examining the science extensively, will find an authority, whereon they may rationally rely, in the unanimous or general agreement of searching and impar- tial inquirers. But this answer, it must be admitted, merely extenuates The second ^ the objection. It shows that law and morality fashioned on ^tKheS-^^ the principle of utility might approach continually and inde- ^g.^^^Jf ' finitely to absolute perfection. But it grants that law and morality fashioned on the principle of utility is inevitably defective and erroneous : that, if the laws established by the Deity must be construed by the principle of utility, the most perfect system of ethics which the wit of man could conceive, were a partial and inaccurate copy of the Divine original or pattern. And this (it may be urged) disproves the theory which makes the principle of utility the index to the Divine pleasure. For it consists not with the known wisdom and the known benevolence of the Deity, that he should signify his com- mands defectively and obscurely to those upon whom they are binding. But admitting the imperfection of utility as the index to further the Divine pleasure, it is impossible to argue, from this its that second admitted imperfection, ^that utility is not the index.' objection. Owing to causes which are hidden from human under- standing, all the works of the Deity which are open to human observation are alloyed with imperfection or evil. That the Deity should signify his commands defectively and obscurely, is strictly in keeping or unison with the rest of his inscrutable ways. The objection now in question proves too much, and, therefore, is untenable. If you argue ' that the princi|)le of utility is not the index to his laws, because the principle of utility were an imperfect index to his laws,' you argue ^ that VOL. I. L 146 The Province of Lect. iy all his works are in fad exempt from evil, because imperfec- tion or evil is inconsistent with his wisdom and goodness.' The former of these arguments implies the latter, or is merely an application of the sweeping position to one of innumerable cases. Accordingly, if the objection now in question will lie to the theory of utility, a similar objection will lie to every theory of ethics which supposes that any of our duties are set or im- posed by the Deity. The objection is founded on the alleged inconsistency of evil with his perfect wisdom and goodness. But the notion or idea of evil or imperfection is involved in the connected notions of law, duty, and sanction. For, seeing that every law imposes a restraint, every law is an evil of itself : and, unless it be the work of malignity, or proceed from consum- mate folly, it also supposes an evil which it is designed to prevent or remedy. Law, like medicine, is a preventive or remedy of evil : and, if the world were free from evil, the notion and the name would be unknown. 'That his laws are signified obscurely, if utility be the index to his laws,' is rather a presumption in favour of the theory which makes utility our guide. Analogy might lead us to expect that they would be signified obscurely. For laws or commands suppose the existence of evils which they are designed to remedy : let them be signified as they may^ they remedy those evils imperfectly : and the imperfection which they are designed to remedy, and of which the remedy partakes, might naturally be expected to show itself in the mode by which they are manifested. My answer to the objection is the very argument which the excellent Butler, in his admirable ' Analogy,' has wielded in defence of Christianity with the vigour and the skill of a master. Considered as a system of rules for the guidance of human conduct, the Christian religion is defective. There are also circumstances, regarding the manner of its promulgation, which human reason vainly labours to reconcile with the wis- dom and goodness of God. Still it were absurd to argue ' that the religion is not of God, hecause the religion is defec- tive, and is imperfectly revealed to mankind.' For the objection is founded on the alleged inconsistency of evil with his perfect wisdom and goodness. And, since evil pervades the universe, in so far as it is open to our inspection, a similar objection will lie to every system of religion which ascribes y urisp7mdence determined. 147 tlie existence of the rniiyerse to a wise and benevolent Antlior. lect. iy Whoever believes that the universe is the work of benevolence ' " and wisdom, is concluded, or estopped, by his own religious creed, from taking an objection of the kind to the creed or system of another. Analogy (as Butler has shown) would lead us to expect the imperfection upon which the objection is founded. Some- thing of the imperfection which runs through the frame of the universe, would probably be found in a revelation ema- nating- from the Author of the universe. And here my solution of the difficulty necessarily stops. A complete solution is manifestly impossible. To reconcile the existence of evil with the wisdom and goodness of God is a task which surpasses the powers of our narrow- and feeble understandings. This is a deep which our reason is too short to fathom. From the decided predominance of good which is observable in the order of the world, and from the mani- fold marks of wisdom which the order of the world exhibits, we may draw the cheering inference ' that its Author is good and wise.' Why the world which he has made is not alto- gether perfect, or why a benevolent Deity tolerates the ex- istence of evil, or what (if I may so express myself) are the obstacles in the way of his benevolence, are clearl}^ questions which it were impossible to solve, and which it were idle to agitate although they admitted a solution. It is enough for us to know, that the Deity is perfectly good ; and that, since he is perfectly good, he wills the happiness of his creatures. This is a truth of the greatest practical moment. For the cast of the affections, which we attribute to the Deity, deter- mines, for the most part, the cast of our moral sentiments. I admit, then, that God's commands are imperfectly signi- The 1131)0- fied to man, supposing we must gather his commands from Iji^^aisei^se the tendencies of human actions. But I deny that this im- briefly in- perfection is a conclusive objection to the theory which ^ makes the principle of utility our guide or index to his will. Whoever would disprove the theory which makes utility our guide, must produce another principle that were a surer and a better guide. JSTow, if we reject utility as the index to God's commands, we must assent to the theory or hypothesis which supposes a moral sense. One of the adverse theories, which regard the nature of that index, is certainly true. He has left us to presume his commands from the tendencies of human actions, L 2 148 The Provhice of Lect. IV ♦ A moral sense,' ' a common sense,' ' a moral in- stinct,' ' a principle of reflection or con- science,' ' a practical reason,' ' innate ])ractical principles,' ' connate practical principles,' &c. &c. are various ex- pressions for one and the same hypothesis. The hypo- thesis in question involves two as- sumptions. The first of the two as- smnptions involved by the hypothesis in question, stated in general ex- pressions. or lie lias given us a peculiar sense of wliicli liis commands are tlie objects. All the hypotheses, regarding the nature of that index, v^hich discard the principle of utility, are built upon the sup- position of a peculiar or appropriate sense. The language of each of these hypotheses differs from the language of the others, but the import of each resembles the import of the rest. By ' a moral sense' v^ith which my understanding is fur- nished, I discern the human actions which the Deity enjoins and forbids : And, since you and the rest of the species are provided with a like organ, it is clear that this sense of mine is ' the common sense of mankind.' By ' a moral instinct' with which the Deity has endowed me, I am urged to some of these actions, and am warned to forbear from others. ' A principle of reflection or conscience,' which Butler assures me I possess, informs me of their rectitude or pravity. Or ^ the innate practical principles,' which Locke has presumed to question, define the duties, which God has imposed upon me, with infallible clearness and certainty. These and other phrases are various but equivalent ex- pressions for one and the same hypothesis. The only obser- vable difference between these various expressions consists in this : that some denote sentiments which are excited by human actions, whilst others denote the commands to which those sentiments are the index. The hypothesis of a moral sense, or the hypothesis which is variously signified by these various but equivalent expres- sions, involves two assumptions. The first of the two assumptions involved by the hypothesis in question, may be stated, in general expressions, thus : Certain sentiments or feelings of approbation or disappro- bation accompany our conceptions of certain human actions. They are neither effects of reflection upon the tendencies of the actions which excite them, nor are they effects of education. A conception of any of these actions would be accompanied by certain of these sentiments, although we had not adverted to its good or evil tendency, nor knew the opinions of others with regard to actions of the class. In a word, that portion of the hypothesis in question which I am now stating is purely negative. We are gifted with moral sentiments which are ultimate or inscrutable facts : which are not the consequences of reflection upon the tendencies of human actions, which are not the consequences of the educa- y urisprudence determined. 149 tion that we receive from our fellow-men, whicli are not the Lect. iv consequences or effects of any antecedents or causes placed ^~ ' ^ within the reach of our inspection. Our conceptions of cer- tain actions are accompanied by certain sentiments, and tliere is an end of our knowledge. For the sake of brevity, we may say that these sentiments are ' instinctive,' or we may call them ' moral instincts.' For the terms ' instinctive ' and ' instinct ' are merely ne^a- live expressions. They merely denote our own ignorance. They mean that the phenomena of which we hajDpen to be talking are not preceded by causes which man is able to per- ceive. For example, The bird, it is commonly said, builds her nest by ' instinct : ' or the skill which the bird evinces in the building of her nest, is commonly styled ' instinctive.' That is to say. It is not the product of experiments made by the bird herself ; it has not been imparted to the bird by the teaching or example of others ; nor is it the consequence or effect of any antecedent or cause open to our observation. The remark which I have now made upon the terms ' in- stinctive ' and ' instinct,' is not interposed needlessly. For, though their true import is extremely simple and trivial, they are apt to dazzle and confound us (unless we advert to it steadily) with the false and cheating appearance of a myste- rious and magnificent meaning. In order that we may clearly apprehend the nature of these The fore- ^ moral instincts,' I will descend from general expressions to nienf of^he an imaginary case. ^I'st as- I will not imagine the case which is fancied by Dr. Paley : Simplified for I think it ill fitted to bring out the meaning sharply. I pjl^j^^fi^y will merely take the liberty of borrowing his solitary savage : imagin- a child abandoned in the wilderness immediately after its birth, and growing to the age of manhood in estrangement from human society. Having gotten my subject, I proceed to deal with him after my own fashion. I imagine that the savage, as he wanders in search of prey, meets, for the first time in his life, with a man. This man. is a hunter, and is carrying a deer which he has killed. The savage pounces upon it. The hunter holds it fast. And, in. order tha-t he may remove this obstacle to the satisfaction of his gnawing hunger, the savage seizes a stone, and knocks the hunter on the head. — Now, according to the hypothesis in question, the savage is affected with remorse at the thought of the deed which he has done. He is affected with more The Province of Lect. iy than the compassion which is excited by the sufferings of ' " another, and which, considered by itself, amounts not to a moral sentiment. He is affected with the more complex emotion of self-condemnation or remorse : with a consciousness of guilt : with the feeling that haunts and tortures civilized or cultivated men, whenever they violate rules which accord with their notions of utility, or which they have learned from others to regard with habitual veneration. He feels as you would feel, in case you had committed a niurder : in case you had killed another, in an attempt to rob him of his goods : or in case you had killed another under any combination of circumstances, which, agreeably to your notions of utility, would make the act a pernicious one, or, agreeably to the moral impressions which you have passively received from others, would give to the act of killing the quality and the name of an injury. Again : Shortly after the incident which I have now imagined, he meets with a second hmiter whom he also knocks on the head. But, in this instance, he is not the aggressor. He is attacked, beaten, wounded, without the shadow of a provocation: and, to prevent a deadly blow which is aimed at his own head, he kills the wanton as- sailant. — Now here, according to the hypothesis, he is not affected with remorse. The sufferings of the dying man move him, perhaps, to compassion: but his conscience (as the phrase goes) is tranquil. He feels as you would feel, after a justifiable homicide : after you had shot a highwayman in defence of your goods and your life : or after you had killed another under combination of circumstances, which, agree- ably to your notions of utility, would render killing innocuous, or, agreeably to the current morality of your age and country, would render the killing of another a just or lawful action. That you should feel remorse if you kill in an attempt to rob, and should not be affected with remorse if you kill a murderous robber, is a difference which I readily account for without the supposition of an instinct. The law of your country distinguishes the cases : a,nd the current morality of your country accords with the law. Supposing that you have never adverted to the reasons of that distinction, the difference between your feelings is easily explained by imputing it to education : Meaning, by the term education, the influence of authority and example on opinions, sentiments, and habits. Supposing that you have ever adverted to the reasons of y tt7nsp7mde7ice dete7^mi7ied. that distinction, yon, of conrse, liave been struck witli its obvious utility. — Generally speaking, the intentional killing of another is an act of pernicious tendency. If the act were frequent, it would annihilate that general security, and that general feeling of security, which are, or should be, the prin- cipal ends of political society and law. But to this there are exceptions : and the intentional killing of a robber, who aims at your property and life, is amongst those exceptions. In- stead of being adverse to the principal ends of law, it rather promotes those ends. It answers the purpose of the punish- ment which the law inflicts upon murderers : and it also accomplishes a purpose which punishment is too tardy to reach. The death inflicted on the aggressor tends, as his punishment would tend, to deter from the crime of murder : and it also prevents, what his punishment would not prevent, the completion of the murderous design in the specific or particular instance. — Supposing tha,t you have ever adverted to these and similar reasons, the difl'erence between your feelings is easily explained by imputing it to a ^ereejytion of utility. You see that the tendencies of the act vary with the circumstances of the act, and your sentiments in regard to the act vary with those varying tendencies. But the diflPerence, supposed by the hypothesis, between the feelings of the savage, cannot be imputed to education, For the savage has lived in estrangement from human society. Nor can the supposed diflerence be imputed to a jperce^tion of utility, — He knocks a man on the head, that he may satisfy his gnawing hunger. He knocks another on the head, that he may escape from wounds and death. So far, then, as these different actions exclusively regard himself, they are equally good : and so far as these different actions regard the men whom he kills, they are equally bad. As tried by the test of utility, and luith the lights luhich the savage 'possesses, the moral qualities of the two actions are precisely the same. If we sup- pose it possible that he adverts to considerations of utility, and that his sentiments in respect to these actions are determined by considerations of utility, we must infer that he remembers both of them with similar feelings : with similar feelings of complacency, as the actions regard himself ; with similar feelings of regret, as they regard the sufferings of the slain. To the social man the difference between these actions, as tried by the test of utility, were immense. — The general hap- piness or good demands the institution of property : that the exclusive enjoyment conferred by the law upon the owner 152 The Province of Lect. IV shall not be disturbed by private and unantborized persons : tliat no man sliall take from another the product of his labour or saving, without the permission of ihe owner previously signified, or withont the authority of the sovereign acting for the common weal. Were want, however intense, an excuse for violations of property ; could every man who hungers take from another with impunity, and slay the owner with impunity if the owner stood on his possession ; that beneficent institu- tion would become nugatory, and the ends of government and law would be defeated. — And, on the other hand, the very principle of utility which demands the institution of property requires that an attack upon the body shall be repelled at the instant : that, if the impending evil cannot be averted other- wise, the aggressor shall be slain on the spot by the party whose life is in jeopardy. But these are considerations which would not present themselves to the solitary savage. They involve a number of notions with which his mind would be unfurnished. They involve the notions of political society ; of supreme govern- ment ; of positive law ; of legal right ; of legal duty ; of legal injury. The good and the evil of the two actions, in so far as the two actions would affect the immediate parties, is all that the savage could perceive. The difference, supposed by the hypothesis, between the feelings of the savage, n. ust, therefore, be ascribed to a moral sense, or to innate practical principles. Or (speaking in homelier but plainer language) he would regard the two actions with different sentiments, we hiow not ivhy. The first of The first of the two assumptions involved by the hypothesis sumptions' question is, therefore, this. — Certain inscrutable senti- the hypo^"^ ments of approbation or disapprobation accompany our con- thesis in ce]3tions of certain human actions. They are not begotten briefly re- I'eflection upon the tendencies of the actions which excite stated in them, nor are they instilled into our minds by our intercourse pressions.^ with our fellow-men. . They are simple elements of our nature. They are ultimate facts. They are not the effects of causes, or are not the consequents of antecedents, which are open to human observation. And, thus far, the hypothesis in question has been em- braced by sceptics as well as by religionists. For example. It is supposed by David Hume, in his Essay on the Principles of Morals, that some of our moral sentiments spring from a perception of utility : but he also appears to imagine that others are not to be analyzed, or belong exclusively to the ytirispi'ttdence determined. 153 thesis in question, briefly stated. province of iaste. Such., I say, appears to be his meaning, lect. iy For, in this essay, as in all his writings, lie is rather acute ' ~^ and ingenious than coherent and profound : handling de- tached topics with signal dexterity, but evincing an utter inability to grasp his subject as a whole. When he speaks of moral sentiments belonging to the province of taste, he may, perhaps, be adverting to the origin of benevolence, or to the origin of our sympathy with the pleasures and pains of others : a feeling that differs as broadly as the appetite of hunger or thirst trom the sentiments of approbation or dis- approbation which accompany our judgments upon actions. That these inscrutable sentiments are signs of the Divine The second will, or are proofs that the actions which excite them are Lsnmp-^ enioined or forbidden by God, is the second of the two tio^^in- *f ... Tolvecl bj assumjotions involved by the hypothesis in question. the hypo In the language of the admirable Butler (who is the ablest advocate of the hypothesis), the human actions by which these feelings are excited are their direct and appro- priate objects: just as things visible are the direct and appropriate objects of the sense of seeing. In homelier but plainer language, I may put his meaning thus. — As God has given us eyes, in order that we may see therewith ; so has he gifted or endowed us with the feelings or sentiments in question, in order that we may distinguish directly, by means of these feelings or sentiments, the actions which he enjoins or permits, from the actions which he pro- hibits. Or, if you like it better, I may put the meaning thus. — ■ That these inscrutable sentiments are signs of the Divine will, is an inference which we necessarily deduce from our consideration of final causes. Like the rest of our apx^etites or aversions, these sentiments were designed by the Author of our being to answer an appropriate end. And the only pertinent end which we can possibly ascribe to them, is the end or final cause at which I iiave now pointed. ]N"ow, supposing that the Deity has endowed us with a As an index moral sense or instinct, we are free of the difficulty to which we are subject if we must construe his laws by the principle of general utility. According to the hypothesis in question, less faiiibie the inscrutable feelings which are styled the moral sense p^.fncipie arise directly and inevitably with the thoughts of their appro- of general priate objects. We cannot mistake the laws which God has prescribed to mankind, although we may often be seduced by the blandishments of present advantage from the plain to God's commands, a moral sense were 154 The Province of Lect. IV But is there any evi- dence to sustain the hypothesis in ques- tion ? The hypo- thesis in question is disproved by the negative state of our conscious- ness. The two current arguments in favour of the hypo- thesis in question, briefly stated. The first argument in favour of the hypothesis in question, examined. path of our duties. The understanding is never at a fault, although the will may be frail. But here arises a small question. — Is there any evidence that we are gifted with feelings of the sort ? That this question is possible, or is seriously asked and agitated,, would seem of itself a suflScient proof that we are not endowed with such feelings. — According to the hypothesis of a moral sense, we are conscious of the feelings which in- dicate God's commands, as we are conscious of hunger or thirst. In other words, the feelings which indicate God's commands are ultimate facts. But, since they are ultimate facts, these feelings or sentiments must be indisputable, and must also differ obviously from the other elements of our nature. If I were really gifted with feelings or sentiments of the sort, I could no more seriously question whether I had them or not, and could no more blend and confound them with my other feelings or sentiments, than I can seriously question the existence of hunger or thirst, or can mistake the feeling which affects me when I am hungry for the different feeling which affects me when I am thirsty. All the parts of our nature which are ultimate, or incapable of analysis, are certain and distinct as well as inscrutable. We know and discern them with unhesitating and invincible assurance. The two current arguments in favour of the hypothesis in question are raised on the following assertions. 1. The judgments which we pass internally upon the rectitude or pravity of actions are immediate and involuntary. In other words, our moral sentiments or feelings arise directly and inevitably with our conceptions of the actions which excite them. 2» The moral sentiments of all men are precisely alike. 'Now the first of these venturous assertions is not uni- versally true. In numberless cases, the judgments which we pass internally upon the r^^ctitude or pravity of actions are hesitating and slow. And it not unfrequently happens that we cannot arrive at a conclusion, or are utterly at a loss to determine whether we shall praise or blame. And, granting that our moral sentiments are always instantaneous and inevitable, this will not demonstrate that our moral sentiments are instinctive. Sentiments which are factitious, or begotten in the way of association, are not less prompt and involuntary than feelings which are instinc- tive or inscrutable. For example, We begin by loving money y^t risp7'2Ldence determined. 155 for the sake of tlie enjoyment wKicli it pni-cliases : and, tliat lect. iv enjoyment apart, we care not a straw for money. But, in ^" ' ^ time, our love of enjoyment is extended to money itself, or our love of enjoyment becomes inseparably associated with, the thought of the money which procures it. The concep- tion of money suggests a wish for money, although we think not of the uses to which we should apply it. Again : We begin by loving knowledge as a mean to ends. But, in time, the love of the ends becomes inseparably associated with the thought or conception of the instrument. Curiosity is in- stantly roused by every unusual appearance, although there is no purpose which the solution of the appearance would answer, or although we advert not to the purpose which the solution of the appearance might subserve. The promptitude and decision with which we judge of actions are impertinent to the matter in question : for our moral sentiments would be prompt and inevitable, although they arose from a perception of utility, or although they were impressed upon our minds by the authority of our fellow- men. Supposing that a moral sentiment sprung from a per- ception of utility, or supposing that a moral sentiment were impressed upon our minds by authority, it would hardly recur spontaneously until it had recurred frequently. Unless we recalled the reasons which had led us to our opinion, or unless we adverted to the autliority which had determined our opinion, the sentiment, at the outset, would hardly be excited by the thought of the corresponding action. But, in time, the sentiment would adhere inseparably to the thought of the corresponding action. Although we recalled not the ground of our moral approbation or aversion, the sentiment would recur directly and inevitably with the conception of its appropriate object. But, to prove that moral sentiments are instinctive or The second inscrutable, it is boldly asserted, by the advocates of the S^^xvom-oi hypothesis in question, that the moral sentiments of all men ' are precisely alike. question, The argument, in favour of the hypothesis, which is raised on this hardy assertion, may be stated briefly in the foUoAYing manner. — No opinion or sentiment wliich is a result of observation and induction is held or felt by all mankind. Observation and induction, as applied to the same subject, lead different men to different conclusions. But the judg- ments which are passed internally upon the rectitude or pravity of actions, or the moral sentiments or feelings which examined. The Province of Lect. iy actions excite, are precisely alike with all men. Consequently, our moral sentiments or feelings were not gotten by our inductions from the tendencies of the actions which excite them : nor were these sentiments or feelings gotten by induc- tions of others, and then impressed upon our minds by human authority and example. Consequently, our moral sentiments are instinctive, or are ultimate or inscrutable facts. Now, though the assertion were granted, the argument raised on the assertion would hardly endure examination. Though the moral sentiments of all men were precisely alike, it would hardly follow that moral sentiments are instinctive. But an attempt to confute the argument were superfluous labour : for the assertion whereon it is raised is groundless. The respective moral sentiments of different ages and nations, and of different men in the same age and nation, have differed to infinity. This proposition is so notoriously true, and to every instructed mind the facts upon which it rests are so familiar, that I should hardly treat my hearers with due respect if I attempted to establish it by proof. I therefore assume it without an attempt at proof ; and I oppose it to the assertion which I am now considering, and to the argu- ment which is raised on that assertion. But, before I dismiss the assertion which I am now con- sidering, I will briefly advert to a difliculty attending the hypothesis in question which that unfounded assertion natu- rally suggests. — Assuming that moral sentiments are instinc- tive or inscrutable, they are either different with different men, or they are alike with all men. To afiirm ' that they are alike with all men,' is merely to hazard a bold assertion contradicted by notorious facts. If they are different with different men, it follows that God has not set to men a com- mon rule. If they are different with different men, there is no common test of human conduct : there is no test by which one man may try the conduct of another. It were folly and presumption in me to sit in judgment upon you. That which were pravity in me may, for aught I can know, be rectitude in you. The moral sense which you allege, may be just as good and genuine as that of which I am conscious. Though my instinct points one way, yours may point another. There is no broad sun destined to illumine the world, but every single man must walk by his own candle. A brief Now what is the fact whereon the second argument in fuS fact favour of the hypothesis in question is founded ? The plain waereon ^i^^ glaring fact is this. — ^With regard to actions of a few y urispriLdence determined. 157 classes, the moral sentiments of most, tlioiigli not of all men, liave been alike. But, Yrith regard to actions of other classes, their moral sentiments have differed, thi'ongh every shade or degree, from slight diversity to direct opposition. And this is what might be expected, supposing that the princij^le of general utilitv is our only guide or index to the tacit commands of the Deity. The fact accords exactly with that hypothesis or theory. For, first, the positions wherein men are, in different ages and nations, are, in many respects, widely different : whence it inevitably follows, that much which was useful there and then were useless or pernicious here and now. And, secondly, since human tastes are various, and since human reason is fallible, men's moral sentiments must often widely differ even in respect of the circumstances wherein their positions are alike. But, with regard to ac- tions of a few classes, the dictates of utility are the same at all times and places, and are also so obvious that they hardly admit of mistake or doubt. And hence would natu- rally ensue what observation shows us is the fact : namely, a general resemblance, with infinite variety, in the systems of law and morality which have actually obtained in the world. According to the h^-pothesis which I have now stated and examined, the moral sense is our onli) index to the tacit com- mands of the Deity. According to an intermediate hypo- thesis, com.pounded of the hypothesis of utility and the hypothesis of a moral sense, the moral sense is our index to some of his tacit commands, but the principle of general utility is our index to others. In so far as I can gather his opinion from his admii-able sermons, it would seem that the compound h}^3othesis was embraced by Bishop Butler. But of this I am not certain : for, from many passages in those sermons, we may perhaps infer that he thought the moral sense our only index or guide. The compound hypothesis now in question naturally arose from the fact to which I have already adverted. — With re- gard to actions of a few classes, the moral sentiments of most_, though not of all men, have been alike. With regard to actions of other classes, their moral sentiments have differed, through every shade or degTee, from slight diversity to direct opposition. — In respect to the classes of actions, with regard to which their moral sentiments have agreed, there was some show of reason for the supposition of a moral sense. In respect to the classes of actions, with regard to which their Lkct. IV 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 in- termediate hypothesis T\-hich is compoiuid- ed of the hypothesis of utility and the hypothesis of a moral sense. 158 The Province of Lect. IV The divi- sion of posi- tive law into law natural and laiv posi- tive, and the division of jus civile into jus gentium and jus civile, sup- pose or in- volve the interme- diate hypo- thesis which is compound- ed of the hypothesis of utility and the hypothesis of a moral sense. moral sentiments have differed, tlie supposition of a moral sense seemed to be excluded. But the modified or mixed hypothesis now in question is not less halting than the pure hypothesis of a moral sense or instinct. — With regard to actions of a few classes, the moral sentiments of most men have concurred or agreed. Bat it were hardly possible to indicate a single class of ac- tions, with regard to which all men have thought and felt alike. And it is clear that every objection to the simple or pure hypothesis may be urged, with slight adaptations, against the modified or mixed. By modern writers on jurisprudence, positive law (or law, simply and strictly so called) is divided into law natural and law positive. By the classical Roman jurists, borrowing from the Greek philosophers, jus civile (or positive law) is divided into jus genti%im and jus civile. Which two divisions of posi- tive law are exactly equivalent. By modern writers on jurisprudence, and by the classical Roman jurists, positive morality is also divided into natural and positive. For, through the frequent confusion (to which I shall advert hereafter) of positive law and positive moral- ity, a portion of positive morality, as well as of positive law, is embraced by the law natural of modern writers on juris- prudence, and by the equivalent jus gentium of the classical Roman jurists. By reason of the division of positive law into law natural and law positive, crimes are divided, by modern writers on jurisprudence, into crimes which are 'mala in se' and crimes wdiich are ' mala quia prohihita.^ By reason of the division of positive law into jus gentium and jus civile, crimes are divided, by the classicEil Roman jurists, into such as are crimes juris gentium and such as are crimes jure civili. Which divisions of crimes, like the divisions of law where- from they are respectively derived, are exactly equivalent. Now without a clear apprehension of the hypothesis of utility, of the pure hypothesis of a moral sense, and of the modified or mixed hypothesis which is compounded of the others, the distinction of positive law into natural and posi- tive, with the various derivative distinctions which rest upon that main one, are utterly unintelligible. Assuming the hypothesis of utility, or assuming the pure hypothesis of a moral sense, the distinction of positive law into natural and positive is senseless. But, assuming the intermediate h3rpo- thesis which is compounded of the others, positive law, and y urisprudence deterinined. 159 also positive morality, is inevitably distinguislied into naiii- Lect. iy ral and positive. In other words, if tlie modified or mixed ' ' ' lij^otliesis be founded in truth, positive human rules fall iuto two parcels: — 1. Positive human rules which obtain with all mankind ; and the conformity of which to Divine commands is, therefore, indicated by the moral sense : 2. Positive human rules which do not obtain universally ; and the conformity of which to Divine commands is, therefore, not indicated by that infallible guide. When I treat of positive law as considered with reference to its sources^ I shall show completely that the modified or mixed hj^oothesis is involved by the distinction of positive law into law natural and law positive. I touch upon the topic, at the present point of my Course, to the following purpose : namely, to show that my disquisitions on the hy- pothesis of utility, on the hypothesis of a moral sense, and on that intermediate hypothesis which is compounded of the others, are necessary steps in a series of discourses occupied with the rationale of jurisprudence. It will, indeed, appear, as I advance in my projected Course, that many of the dis- tinctions, which the science of jurisprudence presents, cannot be expounded, in a complete aud satisfactory manner, with- out a previous exposition of those seemingly irrelative hypo- theses. But the topic upon which I have touched at the present point of my Course shows most succinctly the perti- nence of the disquisitions in question. Having stated the hypothesis of utility, the hypothesis of a The fore- going dis- quisitions on the index to God's the index to God's commands with an endeavour to clear the commands, hj^othesis of utility from two cuiTent though gross miscon- an en-^^^^^ deavour to clear the theory of utility from two current moral sense, and the modified or mixed hypothesis which is compounded of the others, I will close my disquisitions on ceptions. Of the winters who maintain and impugn the theory of utility, three out of four fall into one or the other of the fol- lowing errors. — 1. Some of them confound the motives which ought to determine our conduct with the proximate measure or test to which our conduct should conform and by which our conduct should be tried. — 2. Others confound the tlieoi gross mis- concep- tions. The two misconcf p- tions of general utility with that theory or hypothesis concerning the origin of henevolence which is branded by its ignorant or dis- ingenuous adversaries with the misleading and invidious name of the selfish system. y stated i6o The Province of aminecl. Lect. iy l^ow these errors are so palpable, tliat, perhaps, I ought "~ ' to conclude with the bare statement, and leave my hearers to supply the corrective. But, let them be never so palpable, they have imposed upon persons of unquestionable penetra- tion, and therefore may impose upon all who will not pause to examine them. Accordingly, I will clear the theory of utility from these gross but current misconceptions as com- pletely as my limits will permit. I will first examine the error of confounding motives to conduct with the proximate measure or test to which our conduct should conform and by which our conduct should be tried. I will then examine the error of confounding the theory of utility with that theory or hypothesis concerning the origin of benevolence which is styled the selfish system. The first i.ccording to the theory of utility", the measure or test of tion ex-^^' human conduct is the law set by God to his human creatures. Now some of his commands are revealed, whilst others are unrevealed. Or (changing the phrase) some of his com- mands are express, whilst others are tacit. The commands which God has revealed, we must gather from the terms wherein they are promulged. The commands which he has not revealed, we must construe by the principle of utility : by the probable effects of our conduct on that general hap- piness or good which is the final cause or purpose of the good and wise lawgiver in all his laws and commandments. Strictly speaking, therefore, utility is not the measure to which our conduct should conform, nor is utility the test by which our conduct should be tried. It is not in itself the source or spring of our highest or paramount obligations, but it guides us to the source whence these obligations flow. It is merely the index to the measure, the index to the test. But, since we conform to the measure by following the sug- gestions of the index, I may say with sufficient, though not with strict propriety, that utility is the measure or test proxi- mately or immediately. Accordingly, I style the Divine com- mands the ultimate measure or test : but I style the principle of utility, or the general happiness or good, the proximate measure to which our conduct should conform, or the proxi^ mate test by which our conduct should be tried. Now, though the general good is that proximate measure, or though the general good is that proximate test, it is net in all, or even in most cases, the motive or inducement which ought to determine our conduct. If our conduct were al- ways determined by it considered as a motive or inducement, y tirisprudence detemnined. i6i our conduct would often disagree with it considered as tlie Lect. iv standard or measure. If our conduct were always determined ' ^ bj it considered as a motive or inducement, our conduct would often be blaniable, rather than deserving of praise, when tried by it as the test. Though these propositions may sound lihe paradoxes, they are perfectly just. I should occupy more time than I can give to the disquisition, if I went through the whole of the proofs which would establish them beyond contradiction. But the few hints which I shall now throw out will suffi- ciently suggest the evidence to those of my hearers who may not have reflected on the subject. When I speak of the public good, or of the general good, . I mean the aggregate enjoyments of the single or individual persons who compose that public or general to which my at- tention is directed. The good of mankind, is the aggregate | of the pleasures which are respectively enjoyed by the indivi- j duals who constitute the human race. The good of England, is the aggregate of the pleasures which fall to the lot of Eng- lishmen considered individually or singly. The good of the public in the town to which I belong, is the aggregate of the pleasures vvhich the inhabitants severally enjoy. ' Mankind,' * country,' ' public,' are concise expressions for a number of individual persons considered collectively or as a whole. In case the good of those persons considered singly or individually were sacrificed to the good of those persons considered collectively or as a whole, the general good would be destroyed by the sacrifice. The sum of the particular en- joyments which constitutes the general g*ood, would be sacri- ficed to the mere name by which that good is denoted. When it is stated strictly and 'nakedly, this truth is so plain and palpable that the statement is almost laughable. But experience sufficiently evinces, that plain and palpable truths are prone to slip from the memory : that the neglect of plain and palpable truths is the source of most of the errors with which the world is infested. For example. That notion of the public good which was current in the ancient republics supposes a neglect of the truism to which I have called 3^our attention. Agreeably to that notion of the public good, the happiness of the individual citizens is sacrificed without scruple in order that the common weal may wax and prosper. The only substantial interests are the victims of a barren abstraction, of a sounding but empty phi^ase. VOL. I. M l62 The Province of Lect. IV Now (speaking generally) every individual person is the ' best possible judge of his own interests : of what will affect himself with the greatest pleasures and pains. Compared with his intimate consciousness of his own peculiar in- terests, his knowledge of the interests of others is vague conjecture. Consequently, the principle of general utility imperiously demands that he commonly shall attend to his own rather than to the interests of others : that he shall not habitually neglect that which he knows accurately in order that he may habitually pursue that which he knows imperfectly. This is the arrangement which the principle of general utility manifestly requires. It is also the arrangement which the Author of man's nature manifestly intended. For our self- regarding affections are steadier and stronger than our social : the motives by which we are urged to pursue our peculiar good operate with more constancy, and commonly •with more energy, than the motives by which w e are solicited to pursue the good of our fellows. If every individual neglected his own to the end of pursu- ing and promoting the interests of others, every individual would neglect the objects with which he is intimately ac- quainted to the end of forwarding objects of which he is comparatively ignorant. Consequently, the interests of CA^ery individual would be managed unskilfully. And, since the general good is an aggregate of individual enjoyments, the good of the general or public w^ould diminish with the good of the individuals of wliom that general or public is consti- tuted or composed. The principle of general utility does not demand of us, that we shall always or habitually intend the general good : though the principle of general* utility does demand of us, that we ^ shall never pursue our own peculiar good by means which are inconsistent with that paramount object. For example : The man who delves or spins, delves or spins to put money in his purse, and not with the purpose or thought of promoting the general well-being. But b}^ delving or spinning, he adds to the sum of commodities : and he therefore promotes that general well-being, which is not, and ought not to be, his practical end. General utility is not his motive to action. But his action conforms to utility con- sidered as the standard of conduct : and, when tried by utility considered as the test of conduct, his action deserves approbation. y 21 rispriidence determ ined. Again : Of all pleasures bodily or mental, the pleasures of lkct. iv mutual love, cemented bj mutual esteem, are tbe most en- ' ^ during and varied. Thej therefore contribute largely to swell the sum of well-being, or they form an important item in the account of human happiness. And, for that reason, the well-wisher of the general good, or the adherent of the prin- ciple of utility, must, in that character, consider them with much complacency. But, though he approves of love because it accords with his princi]3le, he is far from maintaining that the general good ought to be the motive of the lover. It was never contended or conceited by a sound, orthodox utili- tarian, that the lover should kiss his mistress with an eye to the common weal. And by this last example, I am naturally conducted to this further consideration. Even where utility requires that benevolence shall be our motive, it commonly requires that we shall be determined by partial, rather than by general benevolence : by the love of the narrower circle which is formed of family or relations, rather than by sympathy with the wider circle which is formed of friends or acquaintance : by sympathy with friends or acquaintance, rather than by patriotism : by patriotism, or love of country, rather than by the larger humanity which embraces mankind. In short, the principle of utility requires that we shall act with the utmost efPect, or that we shall so act as to produce the utmost good. And (speaking generally) we act with the utmost effect, or we so act as to produce the utmost good, when our motive or inducement to conduct is the most urgent and steady, when the sphere wherein we act is the most re- stricted and the most familiar to us, and when the purpose \ which we directly pursue is the most determinate or precise. The foregoing general statement must, indeed, be re- ceived with numerous limitations. The principle of utility not unfrequently requires that the order at which I have ' pointed shall be inverted or reversed : that the self-regarding affections shall yield to the love of family, or to sympathy with friends or acquaintance : that the love of family, or sympathy with friends or acquaintance, shall yield to the love of country : that the love of country shall yield to the lov^^ of mankind : that the general happiness or good, which is always the test of our conduct, shall also be the motive deter- mining our conduct, or shall also be the practical end to which our conduct is directed. M 2 The Provmce of Lect. IV In order further to dissipate tlie confusion of ideas giving GoodnesT" ^^^^ "^^e misconception last examined, I shall liere pause to ness of^" analyse the expression ' good and bad motives,' and to show motives. in what sense it represents a sound distinction. We often say of a man on any given occasion that his motive was good or bad, and in a certain sense we may truly say that some motives are better than others ; inasmuch as some motives are more likely than others to lead to beneficial conduct. ^ But, in another and more extended sense, no motive is good or bad : since there is no motive which may not by possibility, and which does not occasionally in fact, lead both to benefi- cial and to mischievous conduct. Thus in the case which I have already used as an illustr action, that of the man who digs or weaves for his own subsistence ; the motive is self-regarding, but the action is beneficial. The same motive, the desii-e of subsistence, may lead to pernicious acts, such as stealing. [Love of reputation, though a self- regarding motive, is a motive generally productive of benefi- cial acts ; and there are persons with whom it is on e of the most powerful incentives to acts for the public good. That form of love of reputation called vanity, on the other hand, im- plying, as it does, that the aim of its possessor is set upon worthless objects, commonly leads to evil, since it leads to a waste of energy, which might otherwise have been turned to useful ends. Yet if, as a motive, it be subordinate in the individual to other springs of action, and exist merely as a latent feeling of self-complacency arising out of considera- tions however foolish or unsubstantial, it may be harmless, or even useful as tending to promote energy.] Benevolence, on the other hand, and even religion, though certainly un- selfish, and generally esteemed good motives, may, when narrowed in their aims, or directed by a perverted under- standing, lead to actions most pernicions. For instance, the affection for children, and the consequent desire of pushing or advancing them in the world (a species of narrow benevo- lence), is with many persons more apt to lead to acts contrary to the public good than any purely selfish motive ; and the palliation, which the supposed goodness of the motive con- stitutes in the eyes of the public for the pernicious act, encourages men to do for the sake of their children, actions which they would be ashamed to do for their own direct in- terest. Even that enlarged benevolence which embraces humanity, may lead to actions extremely mischievous, unless y iirispi'iidcnce determhted. guided by a perfectly sound judgment. Few Trill doubt, for lect. iy example, tliat Sand and those other enthusiasts in Germany, ' ^ who haye at different times thought it right to assassinate those persons whom they belieyed to be tp-ants, haye acted in a manner highly pernicious as regards the geueral good. Of the purity (as it is commonly termed) of their motiyes, I haye not the least doubt ; that is to say, I am conyinced that they acted under the impulse of a most enlarged beneyolence ; but I haye as little doubt that, by this beneyolence, they were led to the commission of acts utterly inconsistent with that general good at which they aimed. But, although eyery motiye may lead to good or bad, some are pre-eminently likely to lead to good ; e. g. beneyolence, loye of reputation, religion. Others pre-eminently likely to lead to bad, and little likely to lead to good ; e.cj. the anti-social ; — antipathy — particular or general. Others, again, are as likely to lead to good as to bad ; e. g. the self-regarding. They are the origin of most of the steady industry, but also of most of the offences of men. In this qualified sense, therefore, motiyes may be diyided into such as are good, such as are bad, and such as are neither good nor bad. If an action is good ; that is, conforming to general ntilit}^ ; the motiye makes it more laudable. If not, not. But it is only secondarily that the nature of the motiye affects the quality of the action. [That the nature of the motiye does affect the equality of the action is eyident from this consideration. Acts are never insulated. And as their moral complexion is ultimately tested by their conformity to the law haying utility for its index, so is that moral complexion immediately tested by the nature and tendency of the course of conduct of which the acts are samples. ISTow, the conduct of an indiyidual is (speaking generally) determined partly by the motives which are his springs of action, and partly by the intention, or the state of his understandino- at the instant of action, reo-ardino- the effects or tendency of his acts ; both being antecedent to the volition by which these immediately emerge into act. Human conduct is, in short, determined by the motives which urge, as well as by the intentions which direct. The inten- tion is the aim of the act, of which the motiye is the spring.] It is, therefore, wrong to maintain that the complexion of the action mainly depends on the complexion of the motive. I&5 i66 llie Province of Lkct. IV It is equally wrong to maintain that tlie nature of the motive does not, to a certain degree, determine its complexion. In this limited sense, therefore, the moral complexion of the action is determined by the motive. If the intention be good, the action is the better for being prompted by a social motive. If the action be bad, it is less bad if prompted by a social one. It is important that good dispositions should be recognised / and approved. But the goodness of the action depends apon \ its conformity to utility ; [and even if judged from the nar- ' row point of view commanded by the individual whose acts are in question, depends upon the state of his understanding as to the effects of the action ; that is, upon the intention, no less than upon the motive.] But to adjust the respective claims of the selfish and social motives, of partial sympathy and general benevolence, is a task which belongs to the detail, rather than to the prin- ciples of ethics : a task which I could hardly accomplish in a clear and satisfa.ctory manner, unless I visited my hearers with a complete dissertation upon ethics, and wandered at unconscionable length from the appropriate purpose of my Course. What I have suggested will suffice to conduct the reflecting to the following conclusions. 1. General utility considered as the measure or test, differs from general utility considered as a motive or inducement. 2. If our conduct were truly adjusted to the principle of utility, our conduct would conform to rules fashioned on the principle of utility, or our conduct would be guided by sentiments associated with such rules. But, this notwithstanding, general utility, or the general happiness or good, would not be in all, or even in most cases, our motive to action or forbearance. The second Having touched generally and briefly on the first of the two misconceptions, I will now advert to the second witt the like generality and brevity. They who fall into this misconception are guilty of two errors. 1. They mistake and distort the hypothesis concern- The foregoing passage, commencing substance in the more ample edition of at the head of p. 164, is not contained the work which he meditated; I have in the text of either of the previous edi- ventvired to construct the above passage tions of these lectures. The purport of partly from the fragmentary notes last it is however contained partly in J. S. mentioned, and partly from J. S. M.'s M.'s notes of the lectures as originally notes. Some of the fragmentary notes delivered ; and partly in the fragments I have ventured to expand, endeavour- from the author's MS. printed in the ing to do so consistently with the pur- notes to the last edition. As it may be port of the rest of these lectures. The inferred from these fragments that the passages so expanded I have marked author contemplated incorporating their by the use of brackets. — R. C. misconcep tion ex amined J u ; 'isp ; 'iiden ce deter m imd. 167 mg" the origin of benevolence wliicli is stvled tlie seJfisli system. Lect. rv 2. Tliev imagine that that hv]_:iothesiS; as thus mistaken and "~ ' ' distorted, is an essential or necessary ingredient in the theory ofuAility:' I will examine the two eiTors into which the misconception may be resolved, in the order wherein I have stated them. 1. According to an hA-|jothesis of Hartley and of various other writers, benevolence or symjjathy is not an ultimate fact, or is not unsusceptible of analysis or resolution, or is not a simple or inscmtable element of man's being or nature. Accordino' to their hypothesis, it emanates from self-love, or from the self-regarding affections, thi^ough that familiar pro- cess styled • the association of ideas.* to which I have briefly adverted in a preceding portion of my discourse. Xow it fjUuws palpably from the foregoing concise state- ment, that these widters dispute not the existence of dis- interested benevolence or sympathy : that, assuming the existence of disinterested benevolence or sympathy, they endeavour to trace the feeling, through its supposed genera- ticin. to the simpler and ulterior feelnig of which they be- lieve it the off'sprino'. Btit. palpable as this consecj_uence is. it is fancied by many opponents of the theory of utility; and what is more remark- able ) by some of its adherents also, that these wi^iters disptite the existence of disinterested benevolence or sympathy. According to the h^-piothesis in question, as thus niistaJ:e'/i and distorted, we have no sympathy, properly so called, with the pleasures and pains of others. That which is styled svm- pathy. or that which is styled benevolence, is p)rovident regard to self. Every gCMj«i office done by man to man springs from a calculation of which self is the object. TTe perceive that we depend on others for much of oin- own happiness : and_, per- • The BJST of these mistakes is nia.de ject.. and has fitted it for practice.' by Grodwin.'- The second by Paley. • iMaiiy of the ■?rriters who appear to ' From Epicurus and Lucretius do-soi reject utility do, in fact, embrace it ; to Paley and G^od^rin, ]\Jj-. Bentham is (e. g. Cicero, Seneca, Johnson, etc.) the only -writer -who has explained this (Eudsmonismus). The honeMiun is the subject -with clearness and accuracy. He geturaUy useful. The -utile is the gem- is not, indeed, the inventor of the theory rcZ/j/ pernicious : but which would pais^rer of utility (for that is as old as the human some selfish and sinister purpose."- — J/.S'. race), but he is the first of all philoso- Fragment. phers who has viewed it from every as- Erquiry concerning PoliticalJustice, Ey "William G-odwin. January, 1793, book iv. ch. viii, I presume the author classes Grodwin amongst the adherents of the theorv of utilitv. Tliis writer certainly anticipates, under the name of ike princijjle of justice, some of the ar- guments most effectively urged in favour of the theory of utility by its more mc-dem adherents. — E. C. The Province of Lect. IV ceiving tliat we depend on otliers for mucli of our own happi- ness, we do good unto otliers that others ma,y do it unto us. The seemingly disinterested services that are rendered by men to men, are the offspring of the very motives, and are governed by the very principles, which engender and regu- late trade. ^"^^ 2. Having thus mistaken and distorted the so-called selfish system, many opponents of the theory of utility, together with some adherents of the same theory, imagine that the former, as thus mistaken and distorted, is a necessary portion of the latter. And hence it naturally follows, that the adherents of the theory of utility are styled by many of its opponents ' selfish, sordid, and cold-blooded calculators.' sue the advantage or benefit of others. To obviate this ambiguity, with the wretched quibbling which it begets, Mr. Bentham has judiciously discarded the dubious expression selfish. The motives which solicit us to pursue the advantage or good of others, he styles social. The motives which impel us to pursue our own advantage or good, he styles self- rcgarding^ But, besides the social and self-regard- ing motives, there are disinterested motives, or disinterested wishes, by which we are impelled or solicited to visit others with evil. These disin- terested but malevolent motives, he styles miti-social. — When I style a mo- tive of the sort a disinterested motive, I apply the epithet with the meaning wherein I apply it to a benevolent motive. Speaking with absolute precision, the motive is not disinterested in either case : for, in each of the two cases, the man desires relief from a wish importuning himself. But, excepting the desire of relief which the wish necessarily implies, the wish, in each of the cases, is purely disinterested. The end or object to which it urges the man is the good or evil of another, and not his own advan- tage. — By imputing to human nature disinterested malevolence, Mr. Benthara has drawn upon himself the reproaches of certain critics. But in imputing dis- interested malevolence to human nature, he is far from being singular. The fact is admitted or assumed by Aristotle and Butler, and by all who have closely examined the springs or motives of con- duct. And the fact is easily explained by the all-pervading principle which is styled ' the association of ideas.' Dis- interested malevolence or antipathy, like disinterested benevolence or sympathy, is begotten by that principle on the self- regarding affections. The selfish system, in this its literal import, is flatly inconsistent with obvious facts, and therefore is hardly deserving of serious refutation. We are daily and hourly conscious of disinterested benevo- lence or sympathy, or of wishing the good of others without regard to our own. In the present wretched condition of human society, so unfavourable are the outward circumstances wherein most men are placed, and so bad is the edu- cation or training received by most men in their youth, that the benevolence of most men wants the intensity and en- durance which are requisite to their own happiness and to the happiness of their fellow-creatures. With most men, bene- volence or sympathy is rather a barren emotion than a strong and steady incen- tive to vigorous and efficient action. Although the feeling or sentiment affects them often enough, it is commonly stifled at the birth by antagonist feelings or sentiments. But to deny, with Eoche- foucauld or Mandeville, the existence of benevolence or sympathy, is rather a wild paradox, hazarded in the wanton- ness of satire, than the deliberate posi- tion of a philosopher examining the springs of conduct. And here I may briefly remark, that the expression selfish, as applied to mo- tives, has a large and a narrower mean- ing. — Taking the expression selfish with its larger meaning, all motives are selfish. For every motive is a wish : and every wish is a pain which affects a man's self, and which ui-ges him to seek relief by attaining the object wished. — Taking the expression selfish with its narrower meaning, motives which are selfish must be distinguished from motives which are benevolent : our wishes for our own good, from our wishes for the good of our neighbour : the desires which impel us to pursue our own advantage or benefit, from the desires which solicit us to pur- yurisp riiden ce determ i7ied. 169 I'^ow the tlieory of ethics whicli I style tlie theory of utility lkct. iv has no necessary connection with any theory of motives. It ' ' has no necessary connection with any theory or hypothesis which concerns the nature or origin of benevolence or sym- pathy. The theory of utility will hold good, whether bene- volence or sympathy be truly a portion of our nature, or be nothing but a mere name for provident regard to self. The theory of utility will hold good, whether benevolence or sym- pathy be a simple or ultimate fact, or be engendered by the principle of association on the self-regarding affections. According to the theory of utility, the principle of general utility is the index to God's commands, and is therefore the proximate measure of all human conduct. We are bound by the awful sanctions with which his commands are armed, to adjust our conduct to rules formed on that proximate mea- sure. Though benevolence be nothing but a name for provi- dent regard to self, we are moved by regard to self, when we think of those awful sanctions, to pursue the generally use- ful, and to forbear from the generally pernicious. Accord- ingly, that is the version of the theory of utility which is rendered by Dr. Paley. He supposes that general utility is the proximate test of conduct : but he supposes that all the motives by which our conduct is determined are purely self- regarding. And his version of the theory of utility is, never- theless, coherent : though I think that his theory of motives is miserably partial and shallow, and that mere regard to self, although it were never so provident, would hardly per- form the office of genuine benevolence or sympathy. For if genuine benevolence or sympathy be not a portion of our nature, we have only one inducement to consult the general good : namely, a provident regard- to our own welfare or happiness. But if genuine benevolence or sympathy be a portion of our nature, we have two distinct inducements to consult the general good : namely, the same provident re- gard to our own welfare or happiness, and also a disinter- ested regard to the welfare or happiness of others. If genuine benevolence or s^^mpathy were not a portion of our nature, our motives to consult the general good would be more de- fective than they are.^*^^ Confusion of Sympathy with Moral with moral sentiments (let their origin Sense. be what it may), often runs counter to Sympathy is the pleasure or pain them. As {e.g.) that large sympathy which we feel when another enjoys or with every sentient being, or at least suffers. In common language it is fel- with every human being, which is called low-feeling. This is totally different humanity or benevolence, inclines us to from moral approbation or disapproba- sympathize with the sufferings of the tion, and instead of always coinciding culprit whose punishment we approve. 170 The Province of Lect. IV Again : Assuming tliat benevolence or sympatliy is truly ' ^ ' a portion of our nature, tlie theory of utility has no connec- tion whatever with any hypothesis or theory which concerns the origin of the motive. Whether benevolence or sympathy be a simple or ultimate fact, or be engendered by the prin- ciple of association on the self-regarding affections, it is one of the motives by which our conduct is determined. And, on either of the conflicting suppositions, the principle of utility, and not benevolence or sympathy, is the measure or test of conduct : For as conduct may be generally useful, though the motive is self-regarding ; so may conduct be generally pernicious, though the motive is purely benevolent. Ac- cordingly, in all his expositions of the theory of utility, Mr. Bentham assumes or supposes the existence of disinterested sympathy, and scarcely adverts to the hypotheses which re- gard the origin of the feeling, Like the pains and pleasures which purely regard ourselves, the pains and pleasures of sympathy are not moral sentiments, but feelings or motii^es which, according to the justness of our moral sentiments, may lead us wrong or right. This sympathy may he an original in- stinct, like our appetites, or begotten by association, like diseased curiosity, love of money, etc. (Bishop Butler). But on neither of these hypotheses is the theory which derives our moral sen- timents from utility at all affected. The theory of utility assumes sympa- thy, but maintains that our judgments of actions ought to be, and in a great measure are, derived from our perception of the general consequences of actions ; i. e. not their immediate, but their re- mote consequences, supposing them un- regulated by Morals and Law ; and not only their consequences upon ourselves, but also upon our relations, our friends, our country, our fellow-men; with whom, according to the theory, as I understand it, we are held by bonds of sympathy ; which though not so strong nor so con- stant as our mere regard to ourselves, is just as necessary to our own well-being. Sympathy, as well as pure self-love, is not a moral sentiment, but a principle or motive to action : either being liable to disturb our moral judgment. Indeed a narrow sympathy is, in some minds, as tyrannous as the self-love of the most narrow and contracted being that crawls the earth. Maternal love, the passion between the sexes when exalted into Love, the spirit of sect and party, a nar- row patriotism — all these are as likely to mislead the judgment or the moral sense as the purely self-regarding affec- tions ; which, on the other hand, though often misleading, are, to a great extent, the causes of good, prompting men to all long and obscure effort. — MS. Frag- ment. But here I would briefly remark, that, though the hypothesis of Hartley is no necessary ingredient in the theory of general utility, it is a necessary in- gredient (if it be not unfounded) in every sound system of education or training. For the sake of our own hap- piness, and the happiness of our fellow- creatures, the affection of benevolence or sympathy should be strong and steady as possible : for though, like other mo- tives, it may lead us to pernicious con- duct, it is less likely than most of the others to seduce us from the right road. Now if benevolence or sympathy be engendered by the principle of associa- tion, the affection may be planted and nurtured by education or training. The truth or falsehood of the hypothesis, to- gether with the process by which the affection is generated, are therefore ob- jects of great practical moment, and well deserving of close and minute exa- mination. jf ic risp rudence determined. 171 LECTUEE Y. The term lavj, or the term laws, is applied to tlie following lect. v objects : — to laws proper or j)i'operly so called, and to laws Laws pro^ improper or improperly so called : to objects w^hich have all PpJ^^^.^'gJ^^" the essentials of an imperative law or rule, and to objects called, and which are wanting in some of those essentials, bnt to which p'^^opg^oj. the term is nndnly extended either bv reason of analoqy or in improperly / " so called, the way 01 metaphor. Strictly speaking, all improper laws are analogous to laws proper : and the term law, as applied to av.y of them, is a metajpliorical or figurative expression. For every metaphor springs from an analogy : and every analogical extension given to a term is a metaphor or figure of speech. The term is extended from the objects which it properly signifies to objects of another nature ; to objects not of the class wherein the former are contained, although they are allied to the former by that more distant resem- blance which is usually styled analogy. But, taking the expressions with the meanings which custom or usage has established, there is a difierence between an employment of a term analogically and a metaphor. Analogy is a species of resemblance. The word resem- Analogy blance is here taken in that large sense, in which all subjects which have any property in common, are said to resemble. But besides this more extended acceptation according to pariance, which resemblance is a genus, and analogy one of the species included therein, there is another and a narrower sense, in which resemblance is opposed to analogy. Two resembling subjects are said to resemble in the nan^ower meaning of the term, when they both belong to some determinate genus or species expressly or tacitly referred to ; when they both have every property, which belongs to all the subjects included in the class. Two resembling subjects are said on the contrary to be analogous, when one of them belongs to some class ex- pressly or tacitly referred to, and the other does not : when one possesses all the properties common to the class and the other only some of them. I choose, for instance, on account of a particular convenience, to range together in one class all animals having feet. When I am speaking with reference to this class, the foot of a lion and the foot of a man would be said to resemble in the narrower as well as in the wider sense of the word. But the foot of a table, though it resem- and meta- phor a5 used in common 172 The Provi7ice of Lect. y bles tlie foot of a lion and of a man in tlie more enlarged sense, does not resemble tliese in the narrower sense, but is only analogous to them. For tliese possess the whole of the qualities belonging universally to the class, while it possesses only a part of the same qualities. If I were not tacitly re- ferring to a genus, I might say that all the three objects resemble, but if the genus be referred to, the foot of the lion and the foot of the man resemble, the foot of the table is only analogous to them. Eesemblance is hence an ambiguous term. When two things resemble in the narrow sense, that is, when they both possess all the properties which belong uniTersally to the class, the common name (such as foot in the instance above given), is applied to both of them strictly and properly. When they are analogous, that is when the one possesses all, the other only some of the properties which belong univer- sally to the class, the name denotes the one properly, the other improperly or analogically. It is extremely important to fix our conception with re- spect to this ambiguity, as the words analogy and analogous often recur in the science of jurisprudence, and by the laxity ¥/ith which they are employed involve it in a scarcely pene- trable mist. The nature of unwritten law, and the principles of interpretation or construction, are among the most obscure of all the questions which arise in jurisprudence. This ob- scurity springs, as is usually the case, from nonsense or j ar- gon; which jargon, on these questions, arises from hence, tha.t men talk profusely of analogy and things analogous, without ascertaining the precise meaning of those terms, or taking pains to employ them with any precise meaning. Professor Thibaut of Berlin, in his treatise on the Interpre- tation of the Roman Law, is, as far as I know, the only writer who has seen this perplexity ; and notwithstanding my warm respect for that learned and discerning jurist, it seems to me that even he has scarcely solved the difficulty, though he has pointed out the path by which we may arrive at a solution. A metaphor is the transference of a term from its primitive signification to subjects to which it is applied not in that, but in a secondary sense. An analogy real or supposed, is always the ground of the transference ; hence every metaphor is an analogical application of a term, and every analogical application of a term is a metaphor. But a metaphorical or figurative application is scarcely, in common parlance, sy- nonymous with an analogical application. By a metaphorical y 2irispriidence determined. 173 or figurative application, we usually raean one in wliicli the Lect. Y analogy is faint, the alliance between the primitive and the ' ' derivative signifi.cation remote. "When the analogy is clear, strong, and close ; when the snbjects to which the term is deflected lie on the confines of the class properly denoted by it. and have many of the properties common to the class, we hardly say that the name is employed figuratively or meta- phorically. In the language of logic, objects which have all the quali- ties composing the essence of the class, and all the qnalities which are the necessary consec[nences of those composing the essence, resewMe. Vriien an object does not possess all the essence of the class, but possesses many of the cjualities which compose the essence, or many of those which neces- sarily result from the essence, the application of the name to that object will be said to be analogical and not a metaphor. The difference between metaphor and analogy is hence a difference of degree, and not to be settled precisely by draw- ing a strict line between them.^^ Xow a broad distinction obtains between laws improperly Lawsim- so called. Some are closely, others are remotely analogous to of two ^ laws proper. The term lav: is extended to some by a deci- ^^^-^i^ sion of the reason or understanding. The term lavj is ex- cioseiy tended to others by a turn or caprice of the fancy. to ia°fs°^ In order that I may mark this distinction briefly and proper, commodiously, I avail myself of the difference, established nietaphori- by custom or usage, between the meanings of the expres- ^jJ^^^J*^^^^' sions analogical and figurative. — ■ — I style laws of the first kind laics closely analogous to laics jproyer. I say that they are called laics by an analogical extension of the term. 1 style laws of the second kind laics metcqjJiorical or figurative. I say that they are called lau-s by a metajjlwr or fi^gure of speech. ISTow laws proper, with such improper laws as are closely Dh-ision of analogous to the pro]3er, are divisible thus. pe^fanTof Of laws properly so called, some are set by God to his suchimpr^- human creatures. Others are set by men to men. are closely analogous " The subject of analogy will be found of these lectures was impracticable ; but to the more fully treated in a separate essay in order to carry out to some extent the proper, excursus printed in the second volume, intention indicated by the note now re- being one of the collected by the f erred to, I have ventured to restore the lateSlrs. Austin after the author's death, above passage (upon analogy and meta- It appears from a note to the edition of phor, commencing on p. 1/1) firom Mr. 1861, that the author had some intention J. S. Mill's notes of the oral lectures, of inserting the essay in the body of where it is much less condensed than the the more extended work which he medi- corresponding passage of the lectures as tated. To insert it entire in the body formerly published. — E.C. 174 The Province of Lect. V Distribu- tion of laws proper, and of such im- proper laws as are closely ana- logous 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 nioi-ality, rules of positive morality, or positive moral rules. Of the laws pi'operlj so called which, are set by men to men, some are set by men as political superiors, or by men, as private persons, in pursuance of legal rights. Others may be described in the following negative manner: They are not set by men as political superiors, nor are they set by men, as private persons, in pursuance of legal rights. The laws improperly so called which are closely analogous to the proper, are merely opinions or sentiments held or felt by men in regard to human conduct. As I shall show here- after, these opinions and sentiments are styled law§^ because they are analogous to laws properly so called : because they resemble laws properly so called in some of their properties or some of their effects or consequences. Accordingly, I distribute laws proper, with such improper laws as are closely analogous to the proper, under three capi- tal classes. The first comprises the laws (properly so called) which are set by God to his human creatures. The second comprises the laws (properly so called) which are set by men as political superiors, or by men, as private persons, in pursuance of legal rights. The third comprises laws of the two following species : 1. The laws (properly so called) which are set by men to men, but not by men as political superiors, nor by men, as private persons, in pursuance of legal rights : 2. The laws which are closely analogous to laws proper, but are merely opinions or sentiments held or felt by men in regard to human conduct. 1 put laws of these species into a common class, and I mark them with the common name to which I shall advert immediately, for the following reason. 'No law of either species is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law of either species is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. Consequently, laws of both species may be aptly opposed to laws of the second capital class. For every law of that second capital class is a direct or circuitous command of a monarch or sove- reign number in the character of political superior : that is to say, a direct or circuitous command of a monarch or sove- reign number to a person or persons in a state of subjection to its author. Laws comprised by these three capital classes I mark with the following names. y2n'isp7'2idence deter7itined. 175 I name laws of the first class the laiu or laws of God, or the Lect. y Divine law or laius. " ' ' For various reasons whicL. I shall produce immediatelj, I name laws of the second class positive law, or jjositive laivs. For the same reasons, I name laws of the third class posi- tive morality, rules of positive morality, or positive moral rules. Djo-ression Mj reasons for using the two expressions 'positive law' to explain and 'positive morality,' are the following. slonspoS-' There are two capital classes of human laws. The first t>veiaw and comprises the laws (properly so called) which are set by men momiity. as political superiors, or by men, as private persons, in pursuance of legal rights. The second comprises the laws (proper and improper) which belong to the two species men- tioned on the preceding page. As merely distinguished from the second, the first of those capital classes might be named simply laiv. As merely dis- tinguished from the first, the second of those capital classes might be named simply morality. But both must be dis- tinguished from the law of God : and, for the purpose of dis- tinguishing both from the law of God, we must qualify the names law and morality. Accordingly, I style the first of those capital classes 'positive law:' and I style the second of those capital classes 'positive morality.' By the common epithet positive, I denote that both classes flow from huma^n sources. By the distinctive names laiv and morality, I de- note the difference between the human sources from which the two classes respectively emanate. Strictly speaking, every law properly so called is a positive law. For it is put or set by its individual or collective author, or it exists by the position or institution of its individual or collective author. But, as opposed to the law of nature (meaning the law of God), human law of the first of those capital classes is styled by writers on jurisprudence 'positive law.' This application of the expression 'positive law' was manifestly made for the purpose of obviating confusion : confusion of human law of the first of those capital classes with that Divine law which is the measure or test of human. And, in order to obviate similar confusion, I a^^ply the expression 'positive morality' to human law of the second capital class. For the name morality, when standing un- qualified or alone, may signify the law set by God, or human law of that second capital class. * If you say that an act or omission violates moralHy, you speak ambiguously. You 176 The Province of Lect. V may mean tliat it violates tlie law wMch I style 'positive morality,' or that it violates the Divine law which is the measure or test of the former. Again: The human laws or rules which I style '^positive morality,' I mark with that expression for the following ad- ditional reason. I have said that the name morality, when standing un- qualified or alone, may signify positive morality, or may sig- nify the law of God. But the name morality, when standing unqualified or alone, is perplexed with a further ambiguity. It may import indifferently either of the two following senses. — 1. The name m,orality, when standing unqualified or alone, may signify positive morality which is good or worthy of approbation, or positive morality as it would be if it were good or worthy of approbation. In other words, the name morality, when standing unqualified or alone, may signify positive morality which agrees with its measure or test, or positive morality as it would be if it agreed with its measure or test. 2. The name morality, when standing un- qualified or alone, may signify the human laws, which I style positive morality, as considered without regard to their goodness or badness. For example, Such laws of the class as are peculiar to a given age, or such laws of the class as are peculiar to a given nation, we style the morality of that given age or nation, whether we think them good or deem them bad. Or, in case we mean to intimate that we approve or disapprove of them, we name them the morality of that given age or nation, and we qualify that name with the epi- thet good or had. N'ow, by the name 'positive morality,* I mean the human laws which I mark with that expression, as considered with- out regard to their goodness or badness. Whether human laws be worthy of praise or blame, or whether they accord or not with their m.easure or test, they are ' rules of positive morality,' in the sense which I give to the expression, if they belong to either of the two species lastly mentioned on p. 174. But, in consequence of that ambiguity which I have now attempted to explain, I could hardly express my meaning v/ith passable distinctness by the unqualified name morality. Expiana From the expression positive law and the expression posi- tion of the tive morality, I pass to certain expressions with which they eipr^^- ° are closely connected. sions : viz. fp]^Q gcience of jurisprudence (or, simply and briefly, juris- yiirisprudence determined. 177 'prudence) is concerned witli positive laws, or with laws lect. v strictly so called, as considered without regard to their good- J^^e o/' ness or badness. jurispm- Positive morality, as considered without regard to its scknceof goodness or badness, might be the subject of a science closely ^j^^^iity^ ^d- analogous to jurisprudence. I say ' might be : ' since it is ^nce of only in one of its branches (namely, the law of nations or m- deontology, ternational law), that positive morality, as considered with- ^g^^"/^^^,-^^ out regard to its goodness or badness, has been treated by and science writers in a scientific or systematic manner. — For the science ^Z'"^'"^^- of positive morality, as considered without regard to its good- ness or badness, current or established language will hardly afford us a name. The name morals, or science of morals, would denote it ambiguously : the name morals, or science of morals, being commonly applied (as I shall show immediately) to a department of ethics or deontology. But, since the science of jurisprudence is not unfrequently styled 'the science of positive law/ the science in question might be styled analogically 'the science of positive morality.' The department of the science in question which relates to inter- national law, has actually been styled by Yon Martens, a recent writer of celebrity, 'positives oder practisches Yolker- recht : ' that is to Sd.j, '^positive international law,' or 'prac- tical international law.' Had he named that department of the science 'positive international morality,^ the name would have hit its import with perfect precision. The science of ethics (or, in the language of Mr. Bentham, the science of deontology) may be defined in the following manner. — It affects to determine the test of positive law and morality, or it affects to determine the principles whereon they must be fashioned in order that they may merit appro- bation. In other words, it affects to expound them as they should be ; or it affects to expound them as they ought to be ; or it affects to expound them as they would be if they were good or worthy of praise ; or it affects to expound them as they would be if they conformed to an assumed measm-e. y The science of ethics (or, simply and briefly, ethics) consists ' \ of two departments : one relating specially to positive law, the other relating specially to positive morality. The de- / partment which relates specially to positive law, is com- / monly styled the science of legislation, or, sim^^ly and briefly, / legislation. The department which relates specially to posi- ' tive morality, is commonly styled the science of morals, or, simply and briefly, morals. VOL. I. N 178 The Province of Lect. V The foregoing attempt to define the science of ethics natu- Meaningof I'^llj leads me to offer the following explanatory remark, the epithet When WO sav that a human law is pfood or bad, or is good or had , . .° ^ as applied worthj of praise or blame, or is what it should be or wliac law/^^^^^'^ it should not be, or is what it ought to be or what it ought not to be, we mean (unless we intimate our mere liking or aversion) this : namely, that the law agrees with or differs from a something to which we tacitly refer it as to a measure or test. For example. According to either of the hypotheses which I stated in preceding lectures, a human law is good or bad as it agrees or does not agree with the law of God : that is to say, with the law of God as indicated by the principle of utility, or with the law of God as indicated by the moral sense. To the adherent of the theory of utility, a human law is good if it be generally useful, and a human law is bad if it be generally pernicious. Eor, in liis opinion, it is con- sonant or not with the law of God, inasmuch as it is conso- nant or not with the principle of general utility. To the adherent of the hypothesis of a moral sense, a human law is good if he likes it he knows not why, and a human law is bad if he hates it he knows not wherefore. For, in his opinion, that his inexplicable feeling of liking or aversion shows that the human law pleases or offends the Deity. To the atheist, a human law is good if it be generally use- ful, and a human law is bad if it be generally pernicious. For the principle of general utility would serve as a mea- sure or test, although it were not an index to an ulterior measure or test. But if he call the law a good one without believing it useful, or if he call the law a bad one without believing it pernicious, the atheist simply intimates his mere liking or aversion. For, unless it be thought an index to the law set by the Deity, an inexplicable feeling of approbation or disapprobation can hardly be considered a measure or test. And, in the opinion of the atheist, there is no law of God which his inexplicable feeling can point at. To the believer in a supposed revelation, a human law is good or bad as it agrees with or differs from the terms wherein the revelation is expressed. In short, the goodness or badness of a human law is a phrase of relative and varying import. A law which is good to one man is bad to another, in case they tacitly refer it to different and adverse tests. yurisprtidence determified. 179 The Divine laws may be styled good, in the sense with Lect. v which the atheist may apply the epithet to human. We may M^i^^T^f style them good, or worthy of praise inasmuch as they agree epithet with ntilit}^ considered as an ultimate test. And this is the plied to the only meaning with which we can apply the epithet to the laws of God. Unless we refer them to iitility considered as an ultimate test, we have no test by which we can try them. To say that they are good because they are set by the Deity, is to say that they are good as measured or tried by themselves. But to say this is to talk absurdly : for every object which is measured, or every object which is brought to a test, is compared with a given object other than itself. — If the laws set by the Deity were not generally useful, or if they did not promote the general happiness of his crea- tures, or if their great Author were not wise and benevolent, they would not be good, or worthy of praise, but were devil- ish and worthy of execration. Before I conclude the present digression, I must submit this further remark to the attention of the reader. I have intimated in the course of this digression, that the Theexpres- phrase law of nature, or the phrase natiirai laiv, often sio-nifies ^^^-^ "-^ f , , p ^ , ' ^ ^ nature, or the law 01 God. natural Natural laiv as thus understood, and the natural law which f^™' ^g! I mentioned in my fourth lecture, are disparate expressions. P^'^^ate The natural law which I there mentioned, is a portion of po- it si^^nifies sitive law and positive morality. It consists of the human ooV^or rules, legal and moral, which have obtained at all times and portion of obtained at all places. fa"w and According to the compound hypothesis which I mentioned ^^oJailtV in my fourth lecture, these human rules, legal and moral, have been fashioned on the law of God as indicated by the moral sense. Or, adopting the language of the classical Eoman jurists, these human rules, legal and moral, have been fashioned on the Divine law as known by natural reason. But, besides the human rules which have obtained with all mankind, there are human rules, legal and moral, which have been limited to j^eculiar times, or limited to peculiar places. Now, according to the compound hypothesis which I men- tioned in my fourth lecture, these last have not been fashioned on the law of G od, or have been fashioned on the law of God as conjectured by the light of utility. Being fashioned on the law of God as known by an infal- lible guide, human rules of the first class are styled the law of nature : For they are not of human position purely or simply, N 2 i8o The Provifice of sixth. Lect. V but are laws of God or Nature clothed with human sanc- ' ' ~^ tions. As obtaining at all times and obtaining at all places, they are styled by the classical jurists j'z^s gentium, or jus om- nium gentium. But human rules of the second class are styled jpositive. For, not being fashioned on the law of God, or being fashioned on the law of God as merely conjectured by utility, they, cer- tainly or probably, are of purely human position. They are not laws of God or Nature clothed with human sanctions. As I stated in my fourth lecture, and shall show completely hereafter, the distinction of human rules into natural and positive involves the compound hypothesis which I mentioned in that discourse.^'' The con- Positivo laws, the appropriate matter of jurisprudence, iiexion of related in the way of resemblance, or by a close or re- the present ion. • (the fifth) mote analogy, to the following objects. — 1. In the way of tiie first^^^ resemblance, they are related to the laws of God. 2. In the third^' resemblance, they are related to those rules of posi- fourth, and tive morality which are laws properly so called. 3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentiments held or felt by men in regard to human conduct. 4. By a remote or slender analogy, they are related to laws merely metaphorical, or laws merely figurative. To distinguish positive laws from the objects now enume- rated, is the purpose of the present attempt to determine the province of jurisprudence. In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly). In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distin- guished from other laws. And, stating those marks or cha- racters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index. I made this explanation The above digression was in both it, one of the minor points of classifica- the previous editions comprised in a tion contained in the first Lecture, I disquisition in the form of a note, which have endeavoured to represent the final appears to have been penned by the intention of the author. The place of author after some portion of the original the intrusion is marked by the use of edition was in the press. By inserting the word 'digression' in the marginal in the text the greater part of this note, note at the commencement of the in- after modifying, m accordance with the serted passage (p. 175 ante). — K. C. suggestions contained in another part of y 2irisp7'itdence detei'miiied. i8i at a length v/liicli may seem disproportionate, but wliicli I Lect. v have deemed necessary because these laws, and the index by which they are known, are the standard or measure to which all other laws should conform, and the standard measure or test by which they should be tried. But before I can complete the purpose to which I have adverted above, I must examine or discuss especially the fol- lowing principal topics (and must touch upon other topics of secondary or subordinate importance). — 1. I must examine the marks or characters by which positive laws are distin- guished from other laws. 2. I must examine the distin- guishing marks of those positive moral rules which are laws j)roperly so called. 3. I must examine the distinguishing marks of those positive moral rules which are styled lavj% or ride§, by an analogical extension of the term. 4. I must examine the distinguishing marks of laws merely metapho- rical, or laws merely figurative. In order to an explanation of the marks which distinguish positive laws, I must analyze the expression sovereignty, the correlative expression subjection, and the inseparably con- nected expression independent political society. For the es- sential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated thus. Every positive law, or eveiy law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of tke independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. But my analysis of those expressions occupies so large a space, that, in case I placed it in the lecture which I am now delivering, the lecture which I am now delivering would run to insufferable length. The purpose mentioned above will, therefore, be completed in the following order. Excluding from m.y present discourse my analysis of those expressions, I shall complete, in my present discourse, the purpose mentioned above, so far as I can complete it con- sistently with that exclusion. In my present discourse, I shall examine or discuss especially the following principal topics : namely, the distinguishing marks of those positive moral rules which are laws properly so called : the distin- guishing marks of those positive moral rules which are styled I 82 The Provijtce of Lect. V laivs or rules by an analogical extension of tlie term : tlie ' distinguishing marks of the laws which are styled laws by a metaphor. I shall complete, in my sixth lecture, the purpose men- tioned above, by explaining the marks or characters which distinguish positive laws, or laws strictly so called : an ex- planation involving an analysis of the capital expression so- vereignty, the correlative expression subjection, and the inse- parably connected expression independent jpolitical society. Having shown the connexion of my present discourse with foregoing and following lectures, I proceed to examine or dis- cuss its appropriate topics or subjects. The essen- In my first lecture, 1 endeavoured to resolve a law (taken properly so with the largest signification which can be given to the term ther with^" P'^^P^'^^v) i^'^o the neccssary or essential elements of which it certain con- is COmpOSed. whiciTthose Now those esscntials of a law proper, together with certain essentials consequences which those essentials import, may be stated import. , i. y J briefly in the following manner. — 1. Laws properly so called are a species of commands. But, being a command, every law properly so called flows from a determinate source, or ema- nates from a determinate author. In other words, the author from whom it proceeds is a determinate rational being, or a determinate body or aggregate of rational beings. For when- ever a command is expressed or intimated, one party signifies a wish that another shall do or forbear : and the latter is ob- noxious to an evil which the former intends to inflict in case the wish be disregarded. But every signification of a wish made by a single individual, or made by a body of individuals as a body or collective whole, supposes that the individual or body is certain or determinate. And every intention or purpose held by a single individual, or held by a body of individuals as a body or collective ivhole, involves the same supposition. 2. Every sanction properly so called is an eventual evil an- nexed to a command. Any eventual evil may operate as a motive to conduct : but, unless the conduct be commanded and the evil be annexed to the command purposely to enforce obedience, the evil is not a sanction in the proper acceptation of the term. 3. Every duty properly so called supposes a command by which it is created. For every sanction properly so called is an eventual evil annexed to a command. And duty properly so called is obnoxiousness to evils of the kind. Ju rispfude^tce determined. 183 character of positive moral rules. ^^ow it follows from these premises, that the laws of Lect. v God, and positive laws, are laws proper, or laws properly so xh^lJI^f called. ^o.itive"^ The laws of God are laws proper, inasmuch as they are Lw^are commands express or tacit, and therefore emanate from a |feJiy^4^~ certain source. called. Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds : — by mon- archs, or sovereign bodies, as supreme political superiors : by men in a state of subjection, as subordinate political superiors : by subjects, as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign number in the character of political superior : that is to say, a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. And being a command (and there- fore flowing from a determinate source), every positive law is a law proper, or a law properly so called. Besides the human laws which I style positive law, there The ^renenc are human laws which I style positive morality, rules of positive morality, or positive moral rules. The generic character of laws of the class may be stated briefly in the following negative manner. — 'No law belong- ing to the class is a direct or circuitous command of a monarch or sovereign number in the character of political superior. In other words, no law belonging to the class is a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. But of positive moral rules, some are laws proper, or laws Of pcdtive properly so called : others are laws improper, or laws im- so^f ar?"' properly so called. Some have all the essentials of an im- lawsproper, . . but others operative law or rule : others are deficient in some of those are laws essentials, and are styled laivs or rules by an analogical ex- ^^P^"^'?^^'- tension of the term. The positive moral rules w^hich are laws properly so called, Thepositive are distinguished from other laws by the union of two marks. ?v'iiich are '' — 1. They are imperative laws or rules set by men to men. ^^i^^;spro- ^ ^ , , . perlv 60 2. They are not set by men as political superiors, nor are caUed, are they set by men as private persons, in pursuance of legal rights. Inasmuch as they bear the latter of these two marks, they are not commands of sovereigns in the character of political commands. The Province of Lect. V superiors. Consequently, tiiej are not positive laws : they are not clotlied with legal sanctions, nor do they oblige legally the persons to whom they are set. But being com- mands (and therefore being established by determinate in- dividuals or bodies),, they are laws properly so called: they are armed with sanctions, and impose duties, in the proper acceptation of the terms. It will appear from the following distinctions, that positive moral rules which are laws properly so called may be reduced to three kinds. Of positive moral rules which are laws properly so called, some are established by men who are not subjects, or are not in a state of subjection : Meaning by ' subjects,' or by ' men in a state of subjection,' men in a state of subjection to a monarch or sovereign number. — Of positive moral rules which are laws properly so called, and are not established by men in a state of subjection, some are established by men living in the negative state which is styled a state of nature or a state of anarchy : that is to say, by men who are not in the state which is styled a state of government, or are not members, sovereign or subject, of any political society. — Of positive moral rules which are laws properly so called, and are not established by men in a state of sub- jection, others are established by sovereign individuals or bodies, but are not established by sovereigns in the cha- racter of political superiors. Or a positive moral rule of this kind may be described in the following manner : It is set by a monarch or sovereign number, but not to a per- son or persons in a state of subjection to its author. Of laws properly so called which are set by subjects, some are set by subjects as subordinate political superiors. But of laws properly so called which are set by subjects, others are set by subjects as private persons : Meaning by ' private persons,' subjects not in the class of subordinate political superiors, or subordinate political superiors not considered as such. — Laws set by subjects as subordinate political su- periors, are positive laws : they are clothed with legal sanc- tions, and impose legal duties. They are set by sovereigns or states in the character of political superiors, although they are set by sovereigns circuitously or remotely. Al- though they are made directly by subject or subordinate authors, they are made through legal rights granted by sovereigns or states, and held by those subject authors as mere trustees for the granters. — Of laws set by subjects as y2irisp7'2ide7ice determined. 185 private persons, some are not established bj sovereign or su- preme antboritv. And tbese are rules of positive morality: they are not clothed with legal sanctions, nor do thev oblige legally the parties to whom they are set. — But of laws set by subjects as private persons, others are set or established in pursuance of legal rights residing in the subject authors. And these are positive laws or laws strictly so called. Al- though they are made directly by subject authors, they are made in pursuance of rights granted or conferred by sove- reigns in the character of political superiors : they legally oblige the parties to whom they are set, or are clothed with legal sanctions. They are commands of sovereigns as poli- tical superiors, although they are set by sovereigns circuit- ously or remotely. Lect. y A law set "by a subject as a private person, but in pursuance of a legal right residing in the subject author, is either a positive law purely or simply, or is com- pounded of a positive law and a rule of positive morality. Or (changing the expression) it is either a positive law purely or simply, or it is a positive law as viewed from one aspect, and a rule of positive morality as viewed from another. The person who makes the law in pursuance of the legal right, is either legally bound to make the law, or he is not. In the first case, the law is a posi- tive law purely or simply. In the second case, the law is compounded of a positive law and a positive moral rule. For example, A guardian may have a right, over his pupil or ward, which he is legally bound to exercise, for the benefit of the pupil or ward, in a given or specified manner. In other words, a guardian may be clothed with a right, over his pupil or ward, in trust to exeroise the same, for the benefit of the pupil or ward, in a given or specified manner. Kow if, in pursuance of his right, and agreeably to his duty or trust, he sets a law or rule to the pupil or ward, the law is a positive law purely or simply. It is properly a law which the state sets to the ward through its minister or in- strument the guardian. It is not made by the guardian of his own spontaneous movement, or is made in pursuance of a duty which the state has imposed upon him. The position of the guardian is closely analogous to the position of sub- ordinate political superiors ; -who hold their delegated powers of direct or judi- cial legislation as mere trustees for the sovereign grauters. Again : The master has lesial rishts, sens, m piu-suance of legal rights. over or against his slave, which are con- Laws set bv ferred by the state iipon the master for men, as pri- his own benefit. And, since they are "^'ate per- conferred upon him for his own benefit, he is not legally bound to exercise or use them. ?sow if, in pursuance of these rights, he sets a law to his slave, the law is compounded of a positive law and a positive moral rule. Being made by sovereign authority, and clothed by the sovereign with sanctions, the law made by the master is properly a positive law. But, since it is made by the master of his own spontaneous movement, oris not made by the master in pursuance of a legal duty, it is properly a rule of positive mo- rality, as -well as a positive law. Though the law set by the master is set cir- cuitously by the sovereign, it is set or established by the sovereign at the pleasure of the subject author. The master is not the instroment of the sove- reign or state, but the sovereign or state is rather the instrument of the master. Before I dismiss the subject of the pre- sent note, I must make two remarks. 1. Of laws made by men as private persons, some are frequently styled 'laws ' autonomic! Or it is frequently said of some of those laws, that they are made through an avrovou'ia residing in the sub- ject authors. IS'ow laws avion onnc, or autonomical, are laws made by subjects, as private persons, in pursuance of legal rights : that is to say, in pursuance of legal rights which they are free to exercise or not, or in pursuance of legal rights which are not saddled -with trusts. A law of the kind is styled autonomic, because it is made by its author of his own spontaneous disposition, or not in pursuance of a duty imposed upon him by the stale. ]86 The Provi7ue of Lect. V It appears from tlie foregoing distinctions, that positive moral rules which are laws properly so called are of three kinds. — 1. Those which are set by men living in a state of nature. 2. Those which are set by sovereigns, but not by sovereigns as political superiors. 3. Those which are set by subjects as private persons, and are not set by the subject authors in pursuance of legal rights. To cite an example of rules of the first kind, were super- fluous labour. A man living in a state of nature may impose an imperative law : though, since the man is in a state of nature, he cannot impose the law in the character of sove-. reign, and cannot impose the law in pursuance of a legal right. And the law being imperative (and therefore pro- ceeding from a determinate source) is a law properly so called: though, for want of a sovereign author proximate or remote, it is not a positive law but a rule of positive morality. An imperative law set by a sovereign to a sovereign, or by one supreme government to another supreme government, is an example of rules of the second kind. Since no supreme government is in a state of subjection to another, an impera- ^ tive law set by a sovereign to a sovereign is not set by its author in the character of political superior. Nor is it set by its author in pursuance of a legal right : for every legal right is conferred by a supreme government, and is conferred on a person or persons in a state of subjection to the grantor. Consequently, an imperative law set by a sovereign to a sovereign is not a positive law or a law strictly so called. But being imjjyerative (and therefore proceeding from a determinate source), it amounts to a law in the proper signifi- cation of the term, although it is purely or simply a rule of positive morality. If they be set by subjects as private persons, and be not set by their authors in pursuance of legal rights, the laws following are examples of rules of the third kind : namely, It is clear, Iiowever, that the term viewed from one aspect, but which are autonomic is not exclusively applicable positive morality as viewed from another, to laws of the kind in question. The I place simply or absolutely in the first term will apply to every law which is of those capital classes. If, affecting not made by its author in pursuance of exquisite precision, I placed (hem in a legal duty. It will apply, for instance, each of those classes, I could hardly in- to every law which is made immediately dicate the boundary by which those or directly by a monarch or sovereign classes are severed without resorting to number : independence of legal duty expressions of repulsive complexity and being of 'the essence of sovereignty. length. 2. Laws which are positive law as \ y urisprudence determined. 187 imperative laws set bj parents to cliildren ; imperative laws lect. y set by masters to servants ; imperative laws set by lenders to ' " ' borrowers ; imperative laws set by patrons to parasites. Being imperative (and therefore proceeding from determinate sources), tbe laws foregoing are laws properly so called : tbongb, if they be set by subjects as private persons, and be not set by their authors in pursuance of legal rights, they are not posi- tive laws but rules of positive morality. Again : A club or society of men, signifying its collective pleasure by a vote of its assembled members, passes or makes a law to be kept by its members severally under pain of ex- clusion from its meetings. Xow if it be made by subjects as private persons, and be not made by its authors in pursuance of a legal right, the law voted and passed by the assembled members of the club is a fui^ther example of rules of the third kind. If it be made by subjects as private persons, and be not made by its authors in pursuance of a legal right, it is not a positive law or a law strictly so called. But being an imperative law (and the body by which it is set being therefore determinate), it may be styled a law or rule with absolute precision and propriety, although it is purely or simply a rule of 230sitive morality. The positive moral rnles which are laws improperly so The positive called, are Ioavs set or imposed by general opinion : that is to "!fj[ch ^^e^^ say, by the general opinion of any class or any society lawsimpro- of persons. For example. Some are set or imposed by caHedfare the general opinion of persons who are members of a profession or calling : others, by that of persons who inhabit general a town or province : others, hj that of a nation or inde- "P^^^^'^' pendent political society : others, by that of a larger society formed of various nations. A few species of the laws which are set by general opinion have gotten appropriate names. — For example, There are laws or rules imposed upon gentlemen by opinions current amongst gentlemen. And these are usually styled the rules of honour, or the laws or laiv of honour. — There are laws or rules imposed upon people of fashion by opinions current in the fashionable world. And these are usually styled the law set hy fashion. — There are laws which regard the con- duct of independent political societies in their various re- lations to one another : Or, rather, there are laws which re- gard the conduct of sovereigns or supreme governments in their various relations to one another. And laws or rules of this species, which are imposed upon nations or sovereigns laivs set or imposed by i88 The Provijice of Lect. V by opinions current amongst nations, are usnallj styled iliQ law of nations or international law. A law set or JSTow a law Set Or imposed by s^eneral opinion is a law im- imDOSccl bv t/ o X general properly so called. It is styled a law or rule by an analogical mereTy the e2:tension of the term. When we speak of a law set by ophnon or ^ general opinion, we denote, by that expression, the following an indeter- fact. — Some indeterminate body or uncertain aggregate of of persons'^ pcrsons regards a kind of conduct with a sentiment of aver- in regard to sion or liking : Or (changing the expression) that indetermi- conduct! nate body opines unfavourably or favourably of a given kind of conduct. In consequence of that sentiment, or in consequence of that opinion, it is likely that they or some of them will be displeased with a party who shall pursue or not pursue con- duct of that kind. And, in consequence of that displeasure, it is likely that some party {what party being undetermined) will visit the party provoking it with some evil or another. The body by whose opinion the law is said to be set, does not command, expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot, as a body, express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative deportment. The so called laiv or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct. A determinate member of the body, who opines or feels with the body, may doubtless be moved or impelled, by that very opinion or sentiment, to command that conduct of the kind shall be forborne or pursued. But the command expressed or intimated by that determinate party is not a law or rule imposed by general opinion. It is a law pro- perly so called, set by a determinate author. — For example, The so called law of nations consists of opinions or senti- ments current amongst nations generally. It therefore is not law properly so called. But one supreme government may doubtless command another to forbear from a kind of conduct which the law of nations condemns. And, though it is fashioned on law which is law improperly so called, this com- mand is a law in the proper signification of the term. Speak- ing precisely, the command is a rule of positive morality set by a determinate author. For, as no supreme government is in a state of subjection to another, the government com- manding does not command in its character of political Jurisprudence determined. 189 superior. If the government receiving tlie command were Lect. \ in a state of subjection to the other, the command, though ' ~^ fashioned on the law of nations, would amount to a positive law. The fcfregoing description of a law set bj general opinion imports the following consequences : — that the party who will enforce it against any future transgressor is never deter- minate and assignable. The party who actually, enforces it against an actual transgressor is, of necessity, certain. In other words, if an actual transgressor be harmed in conse- quence of the breach of the law, and in consequence of that displeasure which the breach of the law has provoked, he receives the harm from a party, who, of necessity, is certain. But that cartain party is not the executor of a command pro- ceeding from the uncertain body. He has not been autho- rised by that uncertain body to enforce that so called law which its opinion is said to establish. He is not in the position of a minister of justice appointed by the sovereign or state to execute commands which it issues. He harms the actual offender against the so called law or (to speak in ana- logical language) he applies the sanction annexed to it, of his own spontaneous movement. Consequently, though a party who actually enforces it is, of necessity, certain, the party who will enforce it against any future offender is never determinate and assignable. • It follows from the foregoing reasons, that a so called law A brief set by general opinion is not a law in the proper signification of^the of the term. It also follows from the same reasons, that it analogy be- is not armed with a sanction, and does not impose a duty, m proper and the proper acceptation of the expressions. For a sanction f^^^po^geci b^^ properly so called is an evil annexed to a command. And general duty properly so called is an obnoxiousness to evils of the kind. But a so called law set by general opinion is closely ana- logous to a law in the proper signification of the term. And, by consequence, the so called sanction with which the former is armed, and the so called duty which the former imposes, are closely analogous to a sanction and a duty in the proper acceptation of the expressions. The analogy between a law in the proper signification of the term and a so called law set by general opinion, may be stated briefly in the following manner. — 1. In the case of a law properly so called, the determinate individual or body by whom the law is established wishes that conduct of a 190 The P^^ovmce of Lect, V kind shall be forborne or pursued. In tlie case of a law ~ ' ^ imposed by general opinion, a wish that conduct of a kind shall be forborne or pursued is felt by the uncertain body whose general opinion imposes it. 2. If a party obliged by the law proper shall not comply with the wish o"f the de- terminate individual or body, he probably will suffer, in con- sequence, of his not complying, the evil or inconvenience annexed to the law as a sanction. If a party obnoxious to their displeasure shall not comply with the wish of the un- certain body of persons, he probably will suffer, in consequence of his not complying, some evil or inconvenience from some party or another. 3. By the sanction annexed to the law proper, the parties obliged are inclined to act or forbear agreeably to its injunctions or prohibitions. By the evil which probably will follow the displeasure of the uncertain body, the parties obnoxious are inclined to act or forbear agreeably to the sentiment or opinion which is styled analo- gically a law. 4. In consequence of the law properly so called, the conduct of the parties obliged has a steadiness, constancy, or uniformity, which, without the existence of the law, their conduct would probably want. In consequence of the sentiment or opinion which is styled analogically a law, the conduct of the parties obnoxious has a steadiness, con- stancy, or uniformity, which, without the existence of that sentiment in the uncertain body of persons, their conduct would hardly present. For they who are obnoxious to the sanction which arms the law proper, commonly do or forbear from the acts which the law enjoins or forbids ; whilst they who are obnoxious to the evil which will probably follow the displeasure of the uncertain body of persons, commonly do or forbear from the acts which the body approves or dislikes. — Many of the applications of the term laiv which are merely metaphorical or figurative, were probably suggested (as I shall show hereafter) by that uniformity of conduct which is consequent on a law proper. Distinction In the foregoing analysis of a law set by general opinion, the meaning of the expression 'indeterminate body of per- sons ' is indicated rather than explained. To complete my analysis of a law set by general opinion (and to abridge that analysis of sovereignty which I shall place in my sixth lec- persons. ture), I will here insert a concise exposition of the following pregnant distinction : namely, the distinction between a de~ terminate, and an indeterminate body of single or individual persons. — If my exposition of the distinction shall appear between a determinate^ and an in- deierminate body of sino-le or individual y ztrisprudeiice determined. obscure and crabbed, mj bearers (I bope) will recollect tbat lect. v tbe distinction could bardly be expounded in lucid and flow- ' " ing expressions. I will first describe tbe distinction in general or abstract terms, and will tben exemplify and illustrate tbe general or abstract description. If a body of persons be determinate, all tbe persons wbo compose it are determined and assignable, or every person wbo belongs to it is determined and may be indicated. But determinate bodies are of two kinds. A determinate body of one of tbose kinds is distinguisbed by tbe following marks. — 1. Tbe body is composed of per- sons determined specifically or individually, or determined by cbaracters or descriptions respectively appropriate to tbem- selves. 2. Tbougb every individual member must of neces- sity answer to many generic descriptions, every individual member is a member of tbe determinate body, not by reason . of bis answering to any generic description, but by reason ; of bis bearing bis specific or appropriate cliaracter. A determinate body of tbe otber of tbose kinds is distin- guisbed by tbe following marks. — 1. It comprises all tbe persons wbo belong to a given class, or wbo belong respec- tively to two or more of sucb classes. In otber words, every person wbo answers to a given generic description, or to any of two or more given generic descriptions, is also a member of tbe determinate body. 2. Tbougb ever}^ individual mem- ber is of necessity determined by a specific or appropriate cbaracter, every individual member is a member of tbe de- terminate body, not by reason of bis bearing bis specific or appropriate cbaracter, but by reason of bis answering to tbe given generic description. If a body be indeterminate, all tbe persons wbo compose it are not determined and assignable. Or (cbanging tbe ex- pression) every person wbo belongs to it is not determined, and, tberefore, cannot be indicated. — For an indeterminate body consists of some of tbe persons wbo belong to anotber and larger aggregate. But liow many of tliose persons are members of tbe indeterminate body, or which of those 'persons in particular are members of tbe indeterminate body, is not and cannot be known completely and exactly. Tor example, Tbe trading firm or partnersbip of A B and C is a determinate body of tbe kind first described above. Every member of tbe firm is determined specifically, or by a cbaracter or description peculiar or appropriate to bimself. 192 The Province of ' lect. V -^^cl every member of the firm belongs to tbe determinate ' ' ' body, not by reason of bis answering to any generic descrip- tion, but by reason of bis bearing bis specific or appropriate character. It is as being tbat very individual person tbat A B or C is a limb of the partnership. The British Parliament for the time being, is a determi- nate body of the kind lastly described above. ^ It comprises the only person who answers for the time being to the gene- ric description of king. It comprises every person belong- ing to the class of peers who are entitled for the time being to vote in the upper house. It comprises every person be- longing to the class of commoners who for the time being represent the commons in parliament. And, though every member of the British parliament is of necessity determined by a specific or appropriate character, he is not a member • of the parliament by reason of his bearing that character, but by reason of his answering to the given generic descrip- tion. It is not as being the individual George, but as being the individual who answers to the generic description of king, that George is king of Britain and Ireland, and a limb of the determinate body which is sovereign or supreme there- in. It is not as being the individual Grey, or as being the individual Peel, that Grey is a member of the upper house, or Peel a member of the lower. Grey is a member of the upper house, as belonging to the class of peers entitled to vote therein. Peel is a member of the lower house, as an- swering the generic description ' representative of the com- mons in parliament.' — The generic characters of the persons who compose the British parliament, are here described generally, and, therefore, inaccurately. To describe those generic characters minutely and accurately, were to render a complete description of the intricate and perplexed system which is styled the British Constitution. — A maxim of that Constitution may illustrate the subject of the present para- graph. The meaning of the maxim, ' the king never dies,' may, I believe, be rendered in the following manner. Though an actual occupant of the kingly office is human, mortal, and transient, the duration of the office itself has no possible limit which the British Constitution can contemplate. And on the death of an actual occupant, the office instantly de- volves to that individual person who bears the generic cha- racter which entitles to take the crown : to that individual person who is then heir to the crown, according to the ge- neric description contained in the Act of Settlement. y imsprudence deterrnuied. 193 To exemplify tlie foregoing descrij^tion of an indeterminate Lect. v body, I will revert to the nature of a law set by general opinion. Where a so called law is set by general opinion, most of the persons who belong to a determinate body or class opine or feel alike in regard to a kind of conduct. But the number of that majority, or the several individuals who com- pose it, cannot be fixed or assigned with j)erfect fulness or accuracy. For example, A law set or ini]30sed by the general opinion of a nation, by the general opinion of a legislative assembly, by the general opinion of a profession, or by the general opinion of a club, is an opinion or sentiment, relating to conduct of a kind, which is held or felt by most of those who belong to that certain body. But how many of that body, or which of that body in particular, hold or feel that given opinion or sentiment, is not and cannot be known completely and correctly. Consequently, that majority of * the certain body forms a body uncertain. Or (changing the expression) the body which is formed by that majority is an indeterminate portion of a determinate body or aggregate. — Generally speaking, therefore, an indeterminate body is an indeterminate portion of a body determinate or certain. But a body or class of persons may also be indeterminate, because it consists of persons of a vague generic character. For example. The body or class of gentlemen consists of individual persons whose generic character of gentleman cannot be described precisely. AYhether a given m^an were a genuine gentleman or not, is a question which different men might answer in different ways. — An indeterminate body may therefore be indeterminate after a twofold man- ner. It may consist of an uncertain portion of an uncertain body or class. For example, a law set or im230sed by the general opinion of gentlemen is an opinion or sentiment of most of those who are commonly deemed gentlemanly. But what proportion of the class holds the opinion in question, or what proportion of the class feels the sentiment in ques- tion, is not less indeterminate than the generic character of gentleman. The body by whose opinion the so called law is set, is, therefore, an uncertain portion of an uncertain body or aggregate. — And here I may briefly remark, that a certain portion of a certain body is itself a body determinate. For example. The persons who answer the generic descrij)tion ' representative of the commons in parliament,' are a certain portion of the persons who answer the generic description ' commoner of the united kingdom.' A select committee of VOL. I. 0 .194 The P^^ovhice of Lect. V the representative body, or any portion of the body happen- ' ing to form a house, is a certain or determined portion of the representatives of the commons in parliament. And, in any of these or similar cases, the certain portion of the cer- » tain body is itself a body determinate. / A determinate body of persons is capable of cor^porate con- / duct, or is capable, as a hody, of positive or negative deport- / ment. Whether it consist of persons determined by specific characters, or of persons determined or defined by a charac- ter or characters generic, every person who belongs to it is determined and may be indicated. In the first case, every person who belongs to it may be indicated by his specific character. In the second case, every person who belongs to it is also knowable : For every person who answers to the given generic description, or who answers to any of the given generic descriptions, is therefore a member of the body. Consequently, the entire body, or any proportion of its members, is capable, as a body, of positive or negative deportment : As, for example, of meeting at determinate times and places ; of issuing expressly or tacitly a law or other command; of choosing and deputinsf representatives to perform its intentions or wishes ; of receiving obedience from others, or from any of its own members. But an indeterminate body is incapable of corporate con- duct, or is incapable, as a body, of positive or negative de- portment. An indeterminate body is incapable of corporate conduct, inasmuch as the several persons of whom it consists cannot be known and indicated completely and correctly. In case a portion of its members act or forbear in concert, that given portion of its members is, by that ybtj concert, a determinate or certain body. For example, A law set or imposed by the general opinion of barristers condemns the sordid practice of hugging or caressing attorneys. And as those whose opinion or sentiment sets the so called law are an indeterminate part of the determinate body of barristers, they form a body uncertain and incai3able of corporate con- duct. But in case a number or portion of that uncertain body assembled and passed a resolution to check the prac- tice of hugging, that number or portion of that uncertain body would be, by the very act, a certain body or aggregate. It would form a determinate body consisting of the deter- mined individuals who assembled and passed the resolution. — A law imposed by general opinion may be the cause of a law in the proper acceptation of the term. But the law y2i7'ispriidence detejnnined. ^95 properly so called, wliicli is tlie consequent or effect, utterly lfxt. V differs from the so called law wliicli is the antecedent or ' ^ cause. The one is an opinion or sentiment of an uncertain body of persons ; of a body essentially incapable of joint or corporate conduct. The other is set or established by the positive or negative deportment of a certain individual or aggregate. For the purpose of rendering my exposition as little in- tricate as possible, I have supposed that a body of persons, forming a body determinate, either consists of persons de- termined by specific characters, or of persons determined or defined by a generic description or descriptions. — But a body of persons, forming a body determinate, maj^ consist of persons determined by specific or appropriate characters, and also of persons determined by a character or characters generic. Let us suppose, for example, that the individual Oliver Cromwell was sovereign or supreme in England : or that the individual Cromwell, and the individuals Ireton and Fleetwood, formed a triumvirate which was sovereign in that country. Let us suppose, moreover, that Cromwell, or the triumvirs, convened a house of commons elected in the ancient manner : and that Cromwell, or the triumvirs, yielded a part in the sovereignty to this representative body. ISTow the sovereign or supreme body formed by Cromwell and the house, or the sovereign and supreme body formed by the triumvirs and the house, would have consisted of a person or persons determined or defined specifically, and of persons determined or defined by a generic character or description. The members of the house of commons would have been members of the sovereign body, as answering the generic description 'representative of the commons in parlia- ment.' But it is as being the very individual Cromwell, or as being the very individuals Cromwell, Ireton, and Fleet- wood, that he or they would have formed a limb of the sovereign or supreme body. It is not as answering to a given generic description, or as acquiring a part in the sove- reignty by a given generic mode, that he or they would have shared the sovereignty with the body representing the people. — A body of persons, forming a bod}^ determinate, may also consist of persons determined or defined specifi- calty, and detei-mined or defined moreover by a character or characters generic. A select committee of a body repre- senting a people or nation, consists of individual persons named or appointed specifically to sit on that given com- o 2 [96 The Province of Lect. V mittee. But those specific individuals could not be mem- " ' ^ bers of the committee, unless thej answered the generic de- scription ' representative of the people or nation.' It folio V7S from the exposition immediately preceding that the one or the number which is sovereign in an independent political society is a determinate individual person or a de- terminate body of persons. If the sovereign one or number were not determinate or certain, it could not command ex- pressly or tacitly, and could not be an object of obedience to the subject members of the community. — Inasmuch as this principle is amply explained by the exposition immedi- ately preceding, I shall refer to it, in my sixth lecture, as to a principle sufficiently known. The intricate and difficult analysis which I shall place in that discourse, will thus be somewhat facilitated, and not inconsiderably abridged. As closely connected with the matter of the exposition immediately preceding, the following remark concerning su- preme government may be put commodiously in the present place. — In order that a supreme government may possess much stability, and that the society wherein it is supreme may enjoy much tranquillity, the persons who take the so- vereignty in the way of succession, must take or acquire by a given generic mode, or by given generic modes. Or (changing the expression) they must take by reason of their answering to a given generic description, or by reason of their respectively answering to given generic descriptions. — For example. The Eoman Emperors or Princes (who were virtually monarchs or autocrators) did not succeed to the sovereignty of the Roman Empire or World by a given generic title : by a mode of acquisition given or ^preordained, and suscei)tible of generic description. It was neither as Jineal descendant of Julius Csesar or Augustus, nor by the testament or other disposition of the last possessor of the throne, nor by the appointment or nomination of the Eoman people or senate, nor by the election of a determinate body formed of the military class, nor by any mode of acquisition generic and preordained, that every successive Emperor, or every successive Prince, acquired the virtual sovereingty of the Roman Empire or World. Every successive Emperor acquired by a mode of acquisition which was purely anoma- j lous or accidental : which had not been predetermined by any law or custom, or by any positive law or rule of positive i morality. Every actual occupant of the Imperial office or ] dignity (whatever may have been the manner wherein he I y tuHspriidence de ter mined. 197 had gotten possession) was obeyed, for the time, by tlie bulk Lect. v of the military class 5 was acknowledged, of course, by the ""^ ' impotent and trembling senate ; and received submission, of course, from the inert and helpless mass which inhabited the city and provinces. By reason of this irregularity in the succession to the virtual sovereignty, the demise of an Emperor was not uncommonly followed by a shorter or longer dissolution of the general supreme government. Since no one could claim to succeed by a given generic title, or as answering for the time being to a given generic description, a contest for the prostrate sovereignty almost inevitably arose between the more influential of the actual military chiefs. And till one of the military candidates had van- quished and crushed his rivals, and had forced with an armed hand his way to the vacpait throne, the generality or bulk of the inhabitants in the Eoman Empire or World could hardly render obedience to one and the same superior. By reason, also, of this irregularity in the succession to the Imperial office, the general and habitual obedience to an actual occupant of the office was always extremely pre- carious. For, since he was not occupant by a given generic title, or by reason of his having answered to a given generic description, the title of any rebel, who might any how eject him, would not have been less legitimate or less consti- tutional than his own. Or (speaking with greater precision) there was no mode of acquiring the office, which could be styled legitimate, or which could be styled constitutional : which was susceptible of generic description, and which had been predetermined by positive law or morality. There was not, in the Eoman World, any determinate person, whom positive law or morality had pointed out to its inhabitants as the exclusively appropriate object of general and habitual obedience. — The reasoning which applies in the case of a monarchy, will also apply, with a few variations, in the case of a government by a number. Unless the members of the supreme body hold their respective stations by titles generic and fixed, the given supreme government must be extremely unstable, and the given society wherein it is supreme must often be torn by contests for the possession of shares in the sovereignty. Before I close my analysis of those laws improperl}^ so La^^-ssetby called which are closely analogous to laws in the proper qSnion, or acceptation of the term, I must advert to a seeming caprice ^ntiment^ of current or established language. of indtter- igS The Province of Lect. V mill ate bodies, are the only opinions or sentiments that have gotten the name of laws. But an opinion or senti- ment 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 senti- ment of an indetermi- nate body. A law set or imposed by general opinion, is an opinion or sentiment, regarding conduct of a kind, whicli is held or felt by an indeterminate hody: that is to say, an indeterminate portion of a certain or uncertain aggregate. ISTow a like opinion or sentiment held or felt by an indivi- dual, or held or felt universally by the members of a hody de- terminate, may be as closely analogous to a law proper as a so called law set by general opinion. It may bear an analogy to a law in the proper acceptation of the term, exactly or nearly resembling the analogy to a law proper which is borne by an opinion or sentiment of an indeterminate hody. An opinion, for example, of a patron, in regard to conduct of a kind, may be a law or rule to his own dependant or dependants, just as a like opinion of an indeterminate body is a law or rule to all who might sufPer by provoking its displeasure. And whether a like opinion be held by an uncertain aggregate, or be held by every member of a precisely determined body, its analogy to a law proper is exactly or nearly the same. But when we speak of a law set or imposed by opinion, we always or commonly mean (I rather incline to believe) a law set or imposed by general opinion : that is to say, an opinion or sentiment, regarding conduct of a kind, which is held or felt by an uncertain body or class. The term latv, or law set hy opinion, is never or rarely applied to a like opinion or sen- timent of a precisely determined party : that is to say, a like opinion or sentiment held or felt by an individual, or held or felt universally by the members of a certain aggregate. This seeming caprice of current or established language probably arose from the following causes. An opinion, regarding conduct, which is held by an in- dividual person, or whicli is held universally by a small de- terminate body, is commonly followed by consequences of comparatively trifling importance. The circle of the persons to whom its influence reaches, or whose desires or conduct it affects or determines, is rarely extensive. The analogy which such opinions bear to laws proper, has, therefore, at- tracted little attention, and has, therefore, not gotten them the name of laius. — An opinion held universally by a large determinate body, is not less largely influential, or is more largely influential, than an opinion of an uncertain portion of the same certain aggregate. But since the determinate body is large or numerous, an opinion held by all its mem- bers can hardly be distinguished from an opinion held by most of its members. An opinion held universally by the y urisp } 'lid cn cc dc term i?i cd. 199 members of tlie body determinate, is, therefore, equivalent Lect. y in practice to a generrd opinion of the bodr, and is, therefore, classed with the laws which general opinion imposes. Deferring to this seeming caprice of current or established language, I have forborne from ranking sentiments of pre- cisely determined parties with the laws improperly so called which are closely analogous to the proper. I have restricted that description to sentiments, regarding conduct, of uncer- tain bodies or classes. My foregoing analysis or exposition of laws of that description, is, therefore, an analysis of laws set by general opinion. If the description ought to embrace (as, I thinh, it cer- tainly ought) opinions, regarding conduct, of precisely de- termined parties, my foregoing analysis or exposition will still be correct substantially. With a few slight and obvious changes, my foregoing analysis of a law set by general opinion will serve as an analysis of a law set by any opinion : of a law set by the opinion of an indeterminate body, and of a law set by the opinion of a precisely determined party. For the character or essential difference of a law imposed by opinion, is this : that the law is not a command, issued expressly or tacitly, but is merely an ojrinion or sentiment, relating to conduct of a kind, which is held or felt by an uncertain body, or by a determinate party. A wish that ' conduct of the kind shall be pursued or forborne, is not sig- nified, expressly or tacitly, by that uncertain body, or that determinate party: nor does that body or party intend to inflict an evil upon any whose conduct may deviate from the given opinion or sentiment. The opinion or sentiment is merely an opinion or sentiment, although it subjects a transgressor to the chance of a consecjuent evil, and may even lead to a command regarding conduct of the kind. Between the opinion or sentiment of the indeterminate body, and the opinion or sentiment of the precisely deter- mined party, there is merely the following difference. — The precisely determined party is cajiahle of issuing a command in pursuance of the opinion or sentiment. But the uncertain body is not. For, being essentially incapable of joint or corporate conduct, it cannot, as a body, signify a wish or desire, and cannot, as a body, hold an intention or purpose. It appears from the expositions in the preceding portion Thefore- of my discourse, that laws properly so called, with such im- fribmion'of proper laws as are closely analogous to the proper, are of laws proper, three capital classes. — 1. The law of God, or the laws of God. improp'tr 200 The Province of Lect. V laws as are closely ana- logous to the proper, briefly re- capitulated. The sanc- tions, pro- per and improper, by which those laws are respec- tively en- forced; the duties, pro- per and improper, which those laws respec- tively im- pose ; and the rights', proper and improper, which those laws re- spectively confer. 2. Positive law, or positive lav^s. 3. Positive morality, rules of positive morality, or positive moral rules. It also appears from the same expositions, that positive moral rules are of two species. — 1. Those positive moral rules which are express or tacit commands, and which are therefore laws in the proper acceptation of the term. 2. Those laws improperly so called (but closely analogous to laws in the proper acceptation of the term) which are set by general opinion, or are set by opinion : which are set by opinions of uncertain bodies ; or by opinions of uncertain bodies, and opinions of determinate parties. / The sanctions annexed to the laws of God, may be styled religious. — The sanctions annexed to positive laws, ma}^ be styled, emphatically, legal : for the laws to which they are annexed, are styled, simply and emphatically, laws or law. Or, as every positive law supposes a 116X19 or civitas, or sup- poses a society political and independent, the epithet political may be applied to the sanctions by which such laws are enforced. — Of the sanctions which enforce compliance with positive moral rules, some are sanctions properly so called, and others are st3ded sanctions by an analogical extension of the term : that is to say, some are annexed to rules which are laws imperative and proper, and others enforce the rule which are laws set by opinion. Since rules of either species ; may be styled positive morality, the sanctions which enforce compliance with rules of either species may be styled moral sanctions. Or (changing the expression) we may say of rules of either species, that they are sanctioned or enforced moraVy.^'^ The duties imposed by the laws of God may be styled re- ligiotts. — The duties imposed by positive laws, may be styled, ' emphatically, legal : or, like the laws by which they are im- posed, they may be said to be sanctioned legally. — Of the duties imposed by positive moral rules, some are duties pro- perly so called, and others are styled duties by an analogical The tevmmoralif^/, moral^Qr morally , is often opposed tacitly to immorality, immoral, or immorally, and imports that the object to which it is applied or referred is approved of by the speaker or writer. But by the term morality, I merely denote the human rules which I style 'positive morality,' And by the terms ' moral sanctions,' ' rules sanctioned morally,' moral duties or rights,' and ' duties or rights sanctioned morally,'' I merely mean that the rules to which the sanctions are annexed, or by which the duties or rights are imposed or conferred, are positive moral rules : rules bearing the generic character which I have stated and explained above. If I mean to praise or blame a positive human rule, or a duty or right which the rule imposes or confers, I style it consonant to the law of God, or contrary to the law of God. Or (what, in effect, is the same thing) 1 style it generally useful, or generally pernicious. Jii rispi^udence determined. 201 extension of the term : that is to say, some are creatures of Lect. t rules which are laws imperative and proper, and others are " '' creatures of the rules which are laws set by opinion. Like the sanctions proper and improper by which they are respec- tively enforced, these duties proper and improper may be styled moral. Or we may say of the duties, as of the rules by which they are imposed, that they are sanctioned or en- forced moralh/. Every right supposes a duty incumbent on a party or parties other than the party entitled. Through the imposi- tion of that con'esponding duty, the right was conferred. Through the continuance of that corresponding duty, the right continues to exist. If that corresponding duty be the creature of a law imperative, the right is a right properly so called. If that corresponding duty be the creature of a law improper, the right is styled a right by an analogical exten- sion of the term. — Consequently, a right existing through a duty imposed by the law of G-od, or a right existing through a duty imposed by positive law, is a right properly so called. Where the duty is the creature of a positive moral rule, the natm^e of the corresponding right depends upon the nature of the rule. If the rule imposing the duty be a law imperative and proper, the righfc is a right properly so called. If the rule imposing the duty be a law set by opinion, the right is styled a right through an analogical extension of the term. — Eights conferred by the law of God, or rights existing through duties imposed by the law of God, may be styled Divine. — Rights conferred by positive law, or rights existing through duties imposed by positive law, may be styled, em- phatically, legal. Or it may be said of rights conferred by positive law, that they are sanctioned or protected legally.— The rights proper and improper which are conferred by posi- tive morality, may be styled moral. Or it may be said of rights conferred by positive morality, that they are sanc- tioned or protected morally ."^^^^ ^""'^ Here I may "briefly obserTe, that, in pletely, unless an explanation of the order to a complete determination of the term right constitute a part of the defi- appropriate province of jurisprudence, it nition. But in order to an explanation is necessary to explain the import of the of right in abstract (or in order to an term right. For, as I have stated al- explanation of tbe nature "\vhich is com- ready, numerous positive laws proceed mon to all rights), I must previously directly trom subjects through rights explain the differences of the principal conferred upon the authors by supreme kinds of rights, with the meanings of pohtical superiors. And, for various various terms which the term right im- other reasons which will appear in my plies. And as that previous explanation sixth lecture, the appropriate province cannot be given with effect, 1 11 positive of jurisprudence cannot be defined com- law is distinguished from the objects to 202 The Province of Lect. V The law of God, posi- tive law, and positive morality, sometimes cuincide, sometimes do not coin- cide, and sometimes conjiict. The body or aggregate of laws wLicli may be styled tlie law of God, the body or aggregate of laws wliicli may be styled positive law, and tlie body or aggregate of laws which, may be styled positive morality, sometimes coincide, some- times do 7Lot coincide, and sometimes conflict. One of these bodies of laws coincides with another, when acts, which are enjoined or forbidden by the former, are also enjoined, or are also forbidden by the latter. — For example, The killing which is styled murder is forbidden by the posi- tive law of every political society : it is also forbidden by a so called law which the general opinion of the society has set or imposed : it is also forbidden by the law of God as known through the principle of utility. The murderer com- mits a crime, or he violates a positive law : he commits a con- ventional immorality, or he violates a so called law which general opinion has established : he commits a sin, or he violates the law of God. He is obnoxious to punishment, or other evil, to be inflicted by sovereign authority : he is obnoxious to the hate and the spontaneous ill-ofiices of the generality or bulk of the society : he is obnoxious to evil or pain to be suffered here or hereafter by the immediate ap- pointment of the Deity. One of these bodies of laws does not coincide with another, when acts, which are enjoined or forbidden by the former, are not enjoined, or are not forbidden by the latter. — For example. Though smuggling is forbidden by positive law, and (speak- ing generally) is not less pernicious than theft, it is not for- bidden by the opinions or sentiments of the ignorant or unreflecting. Where the impost or tax is itself of pernicious tendency, smuggling is hardly forbidden by the opinions or sentiments of any : And it is therefore practised by any with- out the slightest shame, or without the slightest fear of incurring general censure. Such, for instance, is the case, where the impost or tax is laid upon the foreign commodity, not for the useful purpose of raising a public revenue, but for the absurd and mischievous purpose of protecting a domestic manufacture. — Offences against the game laws are also in point : for they are not offences against positive which it is related, it follows that an ex- planation of the expression right cannot enter into the attempt to determine the province of jurisprudence. At every step which he takes on his long and scabrons road, a difficulty simi- lar to that which I have now endeavoured to suggest encounters the expositor of the science. As every department of the science is implicated with every other, any detached exposition of a single and separate department is inevitably a frag- ment more or less imperfect. y 2Lrispriidence determined. 203 morality, altlioiigli tliej are forbidden by jDOsitive law. A Lect. v gentleman is not dishononred, or generally slinnned by " ' ~^ gentlemen, tliough. lie sboots witbont a qnalification. A peasant wlio wires bares escapes the censnre of peasants, thongh tlie sqnii^es, as doing justicesbip, send bim to tbe prison and tbe tread-mill. One of tbese bodies of laws conflids witb anotber, wben acts, wliicb are enjoined or forbidden by tbe former, are for- bidden or enjoined by tbe latter. — For example. In most of tbe nations of modern Europe, tbe practice of duelling is forbidden by positive law. It is also at variance witb tbe law wbicb is received in most of tbose nations as bavin g been set by tbe Deity in tbe way of express revelation. But in spite of positive law, and in spite of bis religious con- victions, a man of tbe class of gentlemen may be forced by tbe law of bonour to give or to take a cballenge. If be forbore from giving, or if be declined a cballenge, be migbt incur tbe general contempt of gentlemen or men of bonour, and migbt meet witb sliglits and insults sufficient to embitter bis existence. Tbe negative legal duty wbicb certainly is incumbent upon bim, and tbe negative religious duty to wbicb be believes bimself subject, are tberefore mastered and«. controlled by tliat positive moral duty wbicb arises from tbe so called law set by tbe opinion of bis class. Tbe simple and obvious considerations to wbicb I bave now adverted, are often overlooked by legislators. If tbey fancy a practice pernicious, or bate it tbey know not wby, tbey proceed, witbout furtber tbougbt, to forbid it by posi- tive law. Tbey forget tliat positive la.w may be superfluous or impotent, and tberefore may lead to notbing but purely gratuitous vexation. Tbey forget tbat tbe moral or tbe re- ligious sentiments of tbe community may already suppress tbe practice as completely as it can be suppressed : or tbat, if tbe practice is favoured by tbose moral or religious sen- timents, tbe strongest possible fear wbicb legal pains can inspire may be mastered by a stronger fear of otber and con- flicting sanctions. ' Tliere are classes of useful acts which utility is the index to the Divine com- The acts it -vrere useless to enjoin, and classes of mands, we may fairly infer that acts of and for- mischievous acts which it were useless such classes are not enjoined or forbidden hearances, to forbid: for we are suflBciently prone by the law of God : that he no more en- ac- to the useful, and sufficiently averse joins or forbids acts of the classes in from the mischievous acts, without the question, than he enjoins or forbids such -utlHtv"^ incentives and restraints applied by re- acts as are generally pernicious or useful, are object's ligious sanctions, or by sanctions legal There are also classes of acts, gene- of the law or moral. And, assuming that general rally useful or pernicious, which demand of God: and The Provmce of Lect. V In consequence of the frequent coincidence of positive law ^ and morality, and of positive law and the law of God, the true nature and fountain of positive law is often absurdly mistaken by writers upon jurisprudence. Where positive law has been fashioned on positive morality, or where posi- tive law has been fashioned on the law of God, they forget that the copy is the creature of the sovereign, and impute it to the author of the model. For example : Customary laws are positive laws fashioned by judicial legislation upon preexisting customs. Now, till they become the grounds of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are merely rules set by opinions of the governed, and sanctioned or enforced morally : Though, when they become the reasons of judicial decisions upon cases, and are clothed with legal sanctions by the sovereign one or number, the customs are rules of positive law as well LIS of positive morality. But, because the customs were observed by the governed before they were clothed with ►sanctions by the sovereign one or number, it is fancied that customary laws exist as positive laws by the institution of the private persons with whom the customs originated. — Ad- mitting the conceit, and reasoning by analogy, we ought to consists of opinions or sentiments. Every act or forbearance that ought to be an object of the latter, is an object of the law of Grod as construed by the principle of utility. But the cii'cle embraced by the law of God, and which may be em- braced to advantage by positive morality, is larger than the circle which can be embraced to advantage by positive law. Inasmuch as the two circles have one and the same centre, the whole of the region comprised by the latter is also comprised by the former. But the whole of the region comprised by the former is not comprised by the latter. To distinguish the acts and forbear- ances that ought to be objects of law, from those that ought to be abandoned to the exclusive cognisance of morality, is, perhaps, the hardest of the problems which the science of ethics presents. The only existing approach to a solution of the problem, may be found in the writings of Mr. Bentham : who, in most of the departments of the two great branches of ethics, has accomplished more for the advancement of the science than all his predecessors put together. — See, in particular, his Principles vf Morals and Legislation, ch, xvii. the acts and forbear- ances, which, ac- cording to the same theory, ought to be objects respectively of positive moralit}- and law. the incentives or restraints applied by religious sanctions, or by sanctions legal or moral. Vv^ithout the incentives and restraints applied by religious sanctions, or applied by sanctions legal or moral, we are not sufficiently prone to those which are generally useful, and are not sufficiently averse from those which are generally pernicious. And, assuming that general utility is the index to the Divine commands, all these classes of useful, and all these classes of pernicious acts, are enjoined and forbidden re- spectively by the law of God. Being enjoined or being forbidden by the Deity, all these classes of useful, and all these classes of pernicious acts, ought to be enjoined or forbidden by positive morality : that is to say, by the positive morality which consists of opinions or sentiments. But, this notwithstanding, some of these classes of acts ought not to be enjoined or forbidden by positive law. Some of these classes of acts ought not to be enjoined or forbidden even by the positive morality which consists of imperative rules. Every act or forbearance that ought to be an object of positive law, ought to be an object of the positive morality which y lu'ispnideiicc determined. consider the soyereig-n the author of the positive morality which is often a consequence of positive law. Where a po- sitive law, not fashioned on a custom, is favourably received by the governed, and enforced by their opinions or senti- ]uents, we must deem the so called law, set by those opinions or sentiments, a law imperative and proper of the suj^reme political superior. Again : The portion of positive law which is parcel of the law of nature (or, in the language of the classical jurists, which is parcel of the jus gentium) is often supposed to emanate, even as positive law, from a Divine or Natural source. But (admitting the distinction of jDositive law into law natural and law positive) it is manifest that law natural, considered as a portion of positive, is the creature of human sovereigns, and not of the Divine monarch. To say that it emanates, as positive law, from a Divine or iSTatural source, is to confound positive law with law whereon it is fashioned, or vv-ith law whereunto it conforms. The foregoing distribution of laws j)roper, and of such improper laws as are closely analogous to the pro^^er, tallies, in the main, with a division of laws which is given incident- ally by Locke in his Essay on Human Understanding. And since this division of laws, or of the sources of duties or obligations, is recommended by the great authority which the writer has justly acquired, I gladly append it to my own division or analysis. The passage of his essay in which the division occurs, is part of an inquiry into the nature of relation, and is therefore concerned indirectly with the na- ture and kinds of law. With the exclusion of all that is foreign to the nature and kinds of law, with the exclusion of a few expressions which are obviously redundant, and with the correction of a few expressions which are somewhat obscure, the passage containing the divisions may be rendered in the words folio win o* : Lect. Y The forei^o- inc^ distri- bution of laws proper, and of such improper laws as are closely analogous to the pro- per, tallies, in the main, Avith a divi- sion of laws which is given inci- dentally by Locke in his Essay on Human Under- standing. In J. S. M.'s notes of the lectures as originally delivered I find a considerable passage giving instances of the prevail- ing tendency to the confusion of ideas above referred to. I have not ventured on the attempt to incorporate the pas- sage in the text, presuming that the author refrained advisedly fi'om here pursuing the topic farther, and that he deemed such instances less suitable to a written discourse than to an oral lec- ture. I think it, however, of some value to preserve this passage, both as calculated to aid the student in applying the prin- ciples stated in the text^ and also as illustrative of the author's mode, when orally amplifying in presence of his ^^lass, the lecture which in substance he always had committed to writing. The passage, being inconveniently long to insert as a note here, I have placed in the form of a note at the end of this lecture. — R. C. Locke's division or analysis is far from being complete, and the language in which it is S' ated is often extremely unapt. It must, howevei', be remem- bered, that the nature of relation gene- 206 The Province of Lect. V ^ The conformity or disagreement men's voluntary actions have to a rule to which they are referred, and by which they are judged of, is a sort of relation which may be called moral relation. ' ■ ^ 'Human actions, when with their various ends, objects, manners, and circumstances, they are framed into distinct complex ideas, are, as has been shown, so many r/iixed modes, a great part whereof have names annexed to them. Thus, supposing gratitude to be a readiness to acknowledge and return kindness received, or polygamy to be the having more wives than one at once, when we frame these notions thus in our minds, we have there so many determined ideas of mixed modes. ' But this is not all that concerns our actions. It is not enough to have determined ideas of them, and to know what names belong to such and such combinations of ideas. We have a further and greater concernment. And that is, to know whether such actions are morally good or bad. § " ' Good or evil is nothing but pleasure or pain, or that which occasions or procures pleasure or pain to us. Moral ijood or evil, then, is only the conformity or disagreement of i our voluntary actions to some law, whereby good or evil is ^^*^t? drawn on us by the will and power of the law-maker : which good or evil, pleasure or pain, attending our observance or "^'^ breach of the law, by the decree of the law-maker, is that we call reward or punishment. ^' ' ' Of these moral rules or laws, to which men generally refer, and by which they judge of the rectitude or pravity of their actions, there seem to me to be three sorts, with their three different enforcements, or rewards and punish- ments. For since it would be utterly in vain to suppose a rule set to the free actions of man, without annexing to it some enforcement of good and evil to determine his will, we must, wherever we suppose a law, suppose also some reward or punishment annexed to that law. It would be in vain for one intelligent being to set a rule to the actions of au- rally (and not the nature of law, with from the 3'oke of mystery and jargon, its principal kinds) is the tippropriate And from this his incidental excursion object of his inquiry. Allowing for tlie into the field of law and morality, and defects, which, therefore, were nearly from other passages of his essay wherein inevitable, his analysis is strikingly ac- he touches upon them, we may infer the curate. It evinces that matchle^^s power important ser ices which he would have of precise and just thinking, with that rendered to the science of ethics, if, religious regard for general utility and complying with the instances of Moly- truth, which marked the incomparable neux, he had examined the subject man who emancipated human reason exactly. J lii'ispritdeiice dcteniiincd. ^ ^ 207 ctlier. if lie liaci it not in liis power to reward tlie compliance lect. y with, and punish deviation from his rule, by- some good and ' '■ " evil that is not the natural product and consecjuence of the action itself : for that being a natural convenience or incon- venience, would operate of itself without a law. This, if I mistake not, is the true nature of all lav: properly so called. ' The laws- that men o-enerallv refer their actions to, to judge of their rectitude or oblic|uity, seem to me to be these three: 1. The Divine law. 2. The civil law. 3. The law Cif opiuioR or repidation^ if I may so call it. — By the relation they bear to the first of these, men judge whether their ac- tions are sins or duties : by the second, whether they be cri- minal or innocent : and by the third, Avhether they be virtues or vices. ' By the Divine law, I mean that law which God hath set to the actions of men, whether promulgated to them by the Ko'ht of nature, or the voice of revelation. This is the onlv true touchstone of morcd rectitude. And by comparing them to this law, it is, that men judge of the most considerable moral good or evil of their actions : that is. whether as duties or sins, they are lihe to procure them happiness or misery from the hands of the Almighty. ' The civil law, the imle set by the commonwealth to the actions of those who belong to it, is a rule to which men refer their actions, to judge whether they be criminal or no. This law nobody overlooks, the rewards and punishments that enforce it being ready at hand, and suitable to the power that makes it : which is the force of the common- wealth, engaged to protect the lis'es, liberties and posses- sions of those who live according to its law, and has power to take away life, liberty or goods from him who disobeys. ' The law of opinion or reputation is another law that men generally refer their actions to, to jndge of their rectitude or obliquity. • Virtue and vice are names pretended, and supposed everywhere to stand for actions in their own nature right or wrong : and as far as they really are so applied, tliej' so far are coincident with the Divine law above mentioned. But yet, whatever is pretended, this is visible, that these names virtue and vice, in the particular instances of their a^Dplication through the several na* ions and societies of men in the world, are constantly attributed to such actions only as in each country and society are in reputation or discredit, ^or is it to be thouo'ht strano-e, that men evervwhere 208 The Province of Lect. V slionld give the name of virtue to those actions whicli ' ' amongst them are judged praiseworthy, and call that mce which they account blameable : since they would condemn themselves, if they should think any thing right, to which they allowed not commendation ; any thing wrong, which they let pass without blame. ' Thus the measure of what is everywhere called and es- teemed virtue and vice, is this approbation or dislike, praise or blame, which by a secret and tacit consent establishes it- self in the several societies, tribes, and clubs of men in the world : whereby several actions come to find credit or dis- grace amongst them, according to the judgment, maxims, or fashions of that place. For though men uniting into po- litick societies have resigned up to the publick the disposing of all their force, so that they cannot employ it against any fellow-citizens an}^ further than the law of the country di- , rects, yet they retain still the power of thinking well or ill, ■ ' approving or disapproving of the actions of those whom ' they live amongst and converse with: and by this appro- bation and dislike, they establish amongst themselves what they will call virtue and vice. ' That this is the common measure of virtue and vice, will appear to any one who considers, that, though that passes for vice in one country, which is counted virtue (or, at least, not vice) in another, yet everywhere virtue and praise, vice and blame, go together. Virtue is everywhere that which is thought praiseworthy ; and nothing but that which has the allowance of public esteem is called virtue. Virtue and praise are so united, that they are often called by the same name. Sunt sua proemia laudi," says Virgil. And, says Cicero, " nihil ha^et natura prsestantius, quam honestatem, quam lau- dem, quam dignitatem, quam decus :" all which, he tells you, are names for the same thing. Such is the language of the heathen philosophers, who well understood wherein the no- tions of virtue and vice consisted. ' But though, by the different temper, education, fashion, maxims, or interest of different sorts of men, it fell out, that what was thought praiseworthy in one place, escaped not censure in another, and so in different societies virtues and vices were changed, yet, as to the main, they for the most part kept the same everywhere. For since nothing can be more natural, than to encourage with esteem and reputation that wherein every one finds his advantage, and to blame and discountenance the contrary, it is no wonder that esteem Jit risprudence deterni ified. 209 and discredit, \drtue and vice, slionld in a great measure Lect. v everjwliere correspond witli the unchangeable rule of right ' ' and wrong which the law of God hath established : there being nothing that so directly and visibly secures and ad= vances the general good of mankind in this world, as obe- dience to the law He has set them, and nothing that breeds such mischiefs and confusion as the neglect of it. And there- fore men, without renouncing all sense and reason, and their own interest, could not generally mistake in placing their commendation or blame on that side which really deserved it not. Nay, even those men, whose practice was otherwise, failed not to give their approbation right : few being de- praved to that degree, as not to condemn, at least in others, the faults they themselves were guilty of. Whereby, even in the corruption of manners, the law of God, which ought to be the rule of virtue and vice, was pretty well observed. ' If any one shall imagine, that I have forgotten my own notion of a law, when I make the law, whereby men judge of virtue and mce^ to be nothing but the consent of private men who have not authority to make a law ; especially want- ing that which is so necessary and essential to a law, a power to enforce it : I think, I may say, that he who imagines com- mendation and disgrace not to be strong motives on men to accommodate themselves to the opinions and rules of those with whom they converse, seems little skilled in the nature or history of mankind : The greatest part whereof he shall find to govern themselves chiefly, if not solely, by this law of fashion ; and so they do that which keeps them in re- putation with their company, little regard the law of God or the magistrate. The penalties that attend the breach of God's law, some, nay, perhaps, most men seldom seriously reflect on ; and amongst those that do, many, whilst they break the law, entertain thoughts of future reconciliation, and making their peace for such breaches. And as to the punishments due from the law of the commonwealth, they frequently flatter themselves with the hope of impunity. But no man escapes the punishment of their censure and dislike, who ofPends against the fashion and opinion of the company he keeps, and would recommend himself to. I^or is there one of ten thousand, who is stiff and insensible enough to bear up under the constant dislike and condem- nation of his own club. He must be of a strange and un- usual constitution, who can content himself to live in con- stant disgrace and disrepute with his own particular society. VOL. I. p 2 lO The Province of Lect. V Solitude many men have songlit, and been reconciled to : ' ~" but nobody that has the least thought or sense of a man about him, can live in society under the constant dislike and ill opinion of his familiars, and those he converses with. This is a burthen too heavy for human sufferance : and he must be made up of irreconcileable contradictions, who can take pleasure in company, and yet be insensible of contempt and disgrace from his companions. ' The law of God, the law of politick societies, and the law of fashion or private censure, are, then, the three rules to which men variously compare their actions. And it is from their conformity or disagreement to one of these rules, that they judge of their rectitude or obliquity, and name them good or bad. ' Whether we take the rule, to which, as to a touchstone, we bring our voluntary actions, from the fashion of the country, or from the will of a law-maker, the mind is easily able to observe the relation any action hath to it, and to judge whether the action agrees or disagrees with the rule. And thus the mind, hath a notion of moral goodness or evil : which is either conformity or not conformity of any action to that rule. If I find an action to agree or disagree with the esteem of the country I have been bred in, and to be held by most men there worthy of praise or blame, I call the action virtuous or vicious. If I have the will of a su- preme invisible law-maker for my rule, then, as I suppose the action commanded or forbidden by God, I call it good or evil, duty or sin. And if I compare it to the civil law, the rule made by the legislative power of the country, I call it lawful or unlawful, no crime or a crime. So that whence- soever we take the rule of actions, or by what standard soever we frame in our minds the ideas of virtues or vices, their rectitude or obliquity consists in their agree- ikent or disagreement with the patterns prescribed by some law. ' Before I quit this argument, I would observe, that, in the relations which I call moral relations, I have a true notion of relation, by comparing the action with the rule, whether the rule be true or false. For if I measure any thing by a supposed yard, I know whether the thing I mea- sure be longer or shorter than that supposed yard, though the yard I measure by be not exactly the standard. Mea- suring an action by a wrong rule, I shall judge amiss of its moral rectitude : but I shall not mistake the relation which Jtt risp 7nLden ce deteinn i7ied. 211 the action bears to the rule whereunto I compare it.' — lect. v Essay concerning Human Understanding. Book II. Chap. ~~ ' ^ xxvni. The analogy borne to a law proper by a law which opinion Lawsmeta- imposes, lies mainly in the following point of resemblance. So-uraTive!' In the case of a law set by opinion, as well as in the case ~on^and"^" of a law properly so called, a rational being or beings are negative obnoxious to contingent evil, in the event of their not com- ilws^of'the plying with a known or presumed desire of another being or c^^^^- beings of a like nature. If, in either of the two cases, the contingent evil is suffered, it is suffered by a rational being, through a rational being : And it is suffered by a rational being, through a rational being, in consequence of the suf- fering party having disregarded a desire of a rational being or beings. — The analogy, therefore, by which the laws are related, mainly lies in the resemblance of the improper sanc- tion and duty to the sanction and duty properly so called. The contingent evil in prospect which enforces the law improper, and the present obnoxiousness to that contingent evil, may be likened to the genuine sanction which enforces the law proper, and the genuine duty or obligation which the law proper imposes. — The analogy between a law in the proper acceptation of the term, and a law improperly so called which opinion sets or imposes, is, therefore, strong or close. The defect which excludes the latter from the rank of a law proper, merely consists in this : that the wish or desire of its authors has not been duly signified, and that they have no formed intention of iu3.icting evil or pain upon those who may break or transgress it. But, beside the laws improper which are set or imposed by opinion, there are laws improperly so called which are related to laws proper by slender or remote analogies. And, since they have gotten the name of laios from their slender or remote analogies to laws properly so called, I style them laws metaphorical, or laws merely metaphorical. The metaphorical applications of the term law are nume- rous and different. The analogies by which they are sug- gested, or by which metaphorical laws are related to laws proper, will, therefore, hardly admit of a common and posi- ^ tive description. But laws metaphorical, though numerous and different, have the following common and negative na- ture. — iSTo property or character of any metaphorical law can be likened to a sanction or a duty. Consequently, every metaphorical law wants that point of resemblance which P 2 2 12 The Province of Lect. V The com- mon and negative nature of laws meta- phorical or figurative, shown by examples. mainly constitutes the analogy between a law proper and a law set by opinion. To show that figurative laws want that point of resem- blance, and are therefore remotely analogous to laws properly so called, I will touch slightly and briefly upon a few of the numberless cases in which the term law is extended and applied by a metaphor. The most frequent and remarkable of those metaphorical applications is suggested by that uniformity, or that stability of conduct, which is one of the ordinary consequences of a law proper. — By reason of the sanction working on their wills or desires, the parties obliged by a law proper commonly adjust their conduct to the pattern which the law prescribes. Consequently, wherever we observe a uniform order of events, or a uniform order of co-existing phsenomena, we are prone to impute that order to a law set by its author, though the case presents us with nothing that can be likened to a sanction or a duty. For example : We say that th^ movements of lifeless bodies are determined by certain laws : though, since the bodies are lifeless and have no desires or aversions, they cannot be touched by aught which in the least resembles a sanction, and cannot be subject to aught which in the least resembles an obligation. We mean that they move in cer- tain uniform modes, and that they move in those uniform modes through the pleasure and appointment of God : j ust as parties obliged behave in a uniform manner through the pleasure and appointment of the party who imposes the law and the duty. — Again : We say that certain actions of the lower and irrational animals are determined by certain laws : though, since they cannot understand the purpose and pro- visions of a law, it is impossible that sanctions should effec- tually move them to obedience, or that their conduct should be guided by a regard to duties or obligations. We mean that they act in certain uniform modes, either in consequence of instincts (or causes which we cannot explain), or else in consequence of hints which they catch from experience and observation : and that, since their uniformity of action is an effect of the Divine pleasure, it closely resembles the uni- formity of conduct which is wrought by the authors of laws in those who are obnoxious to the sanctions. — In short, Speaking with absolute precision, Since their conduct is partly determined the lower animals, or the animals inferior by conclusions drawn from pxperieuce, to man, are not destitute of reason, they observe, compare, abstract, and jfu 7'isp7'tidence dete7nn ined. 2T3 whenever we talk of laws governing the irrational world, Lect. y the metaphorical application of the term law is suggested ' ' bj this double analogy. 1. The successive and synchronous phsenomena composing the irrational world, happen and exist, for the most part, in uniforn series : which uniformity of succession and coexistence resembles the uniformity of conduct produced by an imperative law. 2. That uniformity of succession and coexistence, like the uniformity of conduct produced by an imperative law, springs from the will and intention of an intelligent and rational author. — AVlien an atheist speaks of laxus governing the irrational world, the metaphorical application is suggested by an analogy still more slender and remote than that which I have now ana- lyzed. He means that the uniformity of succession and coexistence resembles the uniformity of conduct produced by an imperative rule. If, to draw the analogy closer, he ascribes those laws to an author, he personifies a verbal abstraction, and makes it play the legislator. He attributes the uniformity of succession and coexistence to laws set by nature : meaning, by nature, the world itself ; or, perhaps, that very uniformity which he imputes to nature's commands. Many metaphorical applications of the term laiv or rule are suggested by the analogy following. — An imperative law or rule guides the conduct of the obliged, or is a norma, model, or pattern, to which their conduct conforms. A pro- posed guide of human conduct, or a model or pattern offered to human imitation, is, therefore, frequently styled a law or rule of conduct, although there be not in the case a shadow of a sanction or a duty. For example : To every law properly so called there are two distinct parties : a party by whom it is established, and a party to whom it is set. But, this notwithstanding, we often speak of a law set by a man to himself : meaning that he intends to pursue some given course of conduct as exactly as he would pursue it if he were bound to pursue it by a law. An intention of pursuing exactly some given course of con- duct, is the only law or rule which a man can set to himself. The binding virtue of a law lies in the sanction annexed to infer. But the intelligence of the lower these laws being few and of little im- animals is so extremely limited, that, portance, I throw them, for the sake of adopting'the current expression, I style simplicity, out of my account. I say them irrational. — Some of the more sa- universally of the lower animals, that gacious are so far from being irrational, they cannot understand a law, or guide that they understand and observe laws their conduct by a duty, set to them by human masters. But 214 The Province of j^PCT. V i^' S^"^ in the case of a so called law set by a man to him- ' self, he is not constrained to observe it by aught that resem- bles a sanction. For though he may fairly purpose to inflict a pain on himself, if his conduct shall depart from the guide which he intends it shall follow, the infliction of the con- ditional pain depends upon his own will. — Again : When we talk of rules of art, the metaphorical application of the term rules is suggested by the analogy in question. By a rule of art, we mean a prescription or pattern which is offered to practitioners of an art, and which they are advised to ob- serve when performing some given process. There is not the semblance of a sanction, nor is there the shadow of a duty. But the offered prescription or pattern may guide the conduct of practitioners, as a rule imperative and proper guides the conduct of the obliged. Lav/smeta- The preceding disquisition on figurative laws is not so Su-xTilr ^^PG^'fl^^ous as some of my hearers may deem it. Figurative rtre often laws are not unfrequently mistaken for laws imperative and Sounded P^^oper. Nay, attempts have actually been made, and by SiperatTve "^^^^^^^^ the highest celebrity, to explain and illustrate the and proper, nature of laws imperative and proper, by allusions to so called laws which are merely such through a metaphor. Of these most gross and scarcely credible errors, various cases will be mentioned in future stages of my Course. For the present, the following examples will amply demonstrate that the errors are not impossible. In an excerpt from Ulpian placed at the beginning of the Pandects, and also inserted by Justinian in the second title of his Institutes, a fancied j%is naturale, common to all ani- mals, is thus distinguished from the jus naturale or gentium to which I have adverted above. ' Jus naturale est, quod natura omnia animalia docuit : nam jus istud non humani generis proprium, sed omnium animalium, qnee in terra, quse in mari nascuntur, avium quoque commune est. Hinc de- scendit maris atque feminse conjunctio, quam nos matrimo- nium appellamus ; hinc liberorum procreatio, hinc educatio : videmus etenim cetera quoque animalia, feras etiam, istius juris peritia censeri. Jus gentium est, quo gentes humanse "utuntur. Quod a naturali recedere, inde facile intelligere licet ; quia illud omnibus animalibus, hoc solis hominibus Supposed difference between law and and to ' metaphorical applications of the rule.- — MS. note. term obligation, like those of the term The author refers, in a memorandum, law' Unhappily I have been unable to to notes on 'laws metaphorical, at the find them. — S. A. point which relates to Eules of Art y2irispriide?ice deterinined. inter se commune est.' Tlie jus naturale wliicli Ulpian here lect. y describes, and which he here distinguishes from the jus ^ ' naturale or gentium; is a name for the instincts of animals. More especially, it denotes that instinctive appetite which leads them to propagate their kinds, with that instinctive sympathy which inclines parent animals to nourish and edu- cate their young. ^^"ow the instincts of animals are related to laws by the slender or remote analogy which I have already endeavoured to explain. They incline the animals to act in certain uniform modes, and they are given to the animals for that purpose by an intelligent and rational Author. But these metaphorical laws which govern the lower animals, and which govern (though less despotically) the haman species itself, should not have been blended and confounded, by a grave writer upon jurisprudence, with laws properly so called. It is true that the instincts of the animal man, like many of his affections which are not instinctive, are amongst the causes of laws in the proper acceptation of the term. More especially, the laws regarding the relation of husband and wife, and the laws reo'ardino- the relation of parent and child, are mainly caused by the instincts which Ulpian particularly points at. And that, it is likely, was the reason which determined this legal oracle to class the instincts of animals with laws imperative and proper. But nothing can be more absurd than the ranking with laws themselves the causes which lead to their existence. And if human instincts are laws because they are causes of laws, there is scarcely a faculty or affection belonging to the human mind, and scarcely a class of objects presented by the outward world, that must not be esteemed a law and an appropriate subject of jurisprudence. — I must, however, re- mark, that the jus quod natiira omnia animalia docvAt is a con- ceit peculiar to Ulpian : and that this most foolish conceit, though inserted in Justinian's compilations, has no percep- tible influence on the detail of the Eoman Law. The jus naturale of the classical jurists generally, and tlie jus naturale occurring generally in the Pandects, is equivalent to the natural law of modern witers upon jurisprudence, and is synonymous with the jus gentium, or the jus naturale et gen- tium, which I have tried to explain concisely at the end of a preceding note. It means those positive laws, and those rules of positive morality, which are not peculiar or appro- priate to any nation or age, but obtain, or are thought to obtain, in all nations and ages : and which, by reason of 2l6 The P7^ovince of Lect. V tlieir obtaining in all nations and ages, are supposed to be ~ ' ^ formed or fashioned on the law of God or Nature as known bj the moral sense. ' Omnes populi ' (says Gains), ' qui legi- bus et moribus reguntur, partini suo proprio, partim com- muni omnium hominum jure utuntur. Nam quod quisque populus ipse sibi jus constituit, id ipsius proprium est^ voca- turque jus civile ; quasi jus proprium ipsius civitatis. Quod vero naturalis ratio inter omnes homines constituit, id aput omnes populos perseque custoditur, vocaturque jus gentium ; quasi quo jure omnes gentes utuntur.' The universal le^es et mores here described by Gains, and distinguished from the leges et mores peculiar to a particular nation, are styled in- differently, by most of the classical jurists, jus gentium^ jus naturale, or jus naturale et gentium. And the law of nature, as thus understood, is not intrinsically absurd. For as some of the dictates of utility are always and everywhere the same, and are also so plain and glaring that they hardly admit of mistake, there are legal and moral rules which are nearly or quite universal, and the expediency of which must be seen by merely natural reason, or by reason without the lights of extensive experience and observation. The distinc- tion of law and morality into natural and positive, is a need- less and futile subtilty : but still the distinction is founded on a real and manifest difference. The jus naturale or gen- tium would be liable to little objection, if it were not supposed to be the offspring of a moral instinct or sense, or of innate practical principles. But, since it is closely allied (as I shall show hereafter to that misleading and pernicious jargon, it ought to be expelled, with the natural law of the moderns, from the sciences of jurisprudence and morality. The following passage is the first sentence in Montes- quieu's Spirit of Laws. ' Les lois, dans la signification la plus etendue, sont les rapports necessaires qui derivent de la nature des choses : et dans ce sens tons les etres ont leurs lois : la Divinite a ses lois ; le monde materiel a ses lois ; les intelligences superieures a I'homme ont leurs lois ; les betes ont leurs lois ; I'homme a ses lois.' Now objects widely different, though bearing a common name, are here blended and confounded. Of the laws which govern the conduct of intelligent and rational creatures, some are laws imperative and proper, and others are closely analogous to laws of that description. But the so called laws which govern the material world, with the so called laws which govern the lower animals, 5, Lect. xxxii.^osz!. y tu'isprudence deteinnined. 217 are merely laws bj a nietaplior. And the so called laws Lect. v whicL. govern or determine the Deity are clearly in the same predicament. If his actions were governed or determined by laws imperative and proper, he would be in a state of depen- dence on another and superior being. When we say that the actions of the Deity are governed or determined by laws, we mean that they conform to intentions which the Deity himself has conceived, and which he pursues or observes with inflexible steadiness or constancy. To mix these figm^ative laws with laws imperative and proper, is to obscure, and not to elucidate, the nature or essence of the latter. — The begin- ning of the passage is worthy of the sequel. We are told that laws are the necessary relations which flow from the nature of things. But what, I would crave, are relations ? What, I would also crave, is the nature of things ? And, how do the necessary relations which flow from the nature of thinofs differ from those relations which orioinate in other sources ? The terms of the definition are incomparably more obscure than the term which it affects to expound. If you read the disquisition in Blackstone on the nature of laAvs in general, or the fustian description of law in Hooker's Ecclesiastical Polity, you will find the same confusion of laws imperative and proper with laws which are merely such by a glaring perversion of the term. The cases of this con- fusion are, indeed, so numerous, that they would fill a con- siderable volume. From the confusion of laws mietaphorical with laws im- Physical or perative and proper, I turn to a mistake, somewhat similar, sanctions, which, I presume to think, has been committed by Mr. Bentham. Sanctions proper and improper are of three capital classes : — the sanctions properly so called which are annexed to the laws of God : the sanctions properly so called which are annexed to positive laws : the sanctions pro2oerly so called, and the sanctions closely analogous to sanctions jDroperly so called, which respectively enforce compliance with positive moral rules. But to sanctions religious, legal, and moral, this great j)bilosoplier and jurist adds a class of sanctions which he styles ijliysical or natural. When he styles these sanctions physical, he does not in- tend to intimate that they are distinguished from other sanc- tions by the mode wherein they operate : he does not mtend to intimate that these are the only sanctions which affect the suffering parties through physical or material means. Any 2l8 The P^'ovmce of Lect. y sanction of any class may reach, the suffering party through means of that description. If a man were smitten with blindness by the immediate appointment of the Deity, and in consequence of a sin he had committed against the Divine law, he would suffer a religious sanction through his physical or bodily organs. The thief who is hanged or imprisoned by virtue of a judicial command, suffers a legal sanction through physical or material means. If a man of the class of gen- tlemen violates the law of honour, and happens to be shot in a duel arising from his moral delinquency, he suffers amoral sanction in a physical or material form. The meaning annexed by Mr. Bentham to the expression ' physical sanction,' may, I believe, be rendered in the fol- lowing manner. — A physical sanction is an evil brought upon the suffering party by an act or omission of his own. But, though it is brought upon the sufferer by an act or omission of his own, it is not brought upon the sufferer through any Divine law, or through any positive law, or rule of positive morality. For example : If your house be de- stroyed by fire through yonr neglecting to put out a light, you bring upon yourself, by your negligent omission, a ^physical or natural sanction : supposing, I mean, that your omission is not to be deemed a sin, and that the consequent destruction of your house is not to be deemed a punishment inflicted by the hand of the Deity. In short, though a physical sanction is an evil falling on a rational being, and brought on a rational being by an act or omission of his own, it is neither brought on the sufferer through a law imperative and proper, nor through an analogous law set or imposed by opinion. In case I borrowed the just, though tautological language of Locke, I should describe a physical sanction in some such terms as the following. ' It is an evil naturally produced by the conduct whereon it is consequent : and, being naturally produced by the conduct whereon it is con- sequent, it reaches the suffering party without the intervention of a law.^ Such physical or natural evils are related by the following analogy to sanctions properly so called. 1. When they are actually suffered, they are suffered by rational beings through acts or omissions of their own. 2. Before they are actually suffered, or whilst they exist in prospect, they affect the wills or desires of the parties obnoxious to them as sanctions properly so called affect the wills of the obliged. The parties are urged to the acts which may avert the evils from their Jii 7'isp7^ude7ice deter fit med. 219 heads, or the parties are deterred from the acts which may Lect. v bring the evils upon them. ' ' But in spite of the specious analogy at which I have now pointed, I dislike, for various reasons, the application of the term sanction to these physical or natural evils. Of those reasons I will briefly mention the following. — 1. Although these evils are suflPered by intelligent rational beings, and by intelhgent rational beings through acts or omissions of their own, they are not sufl'ered as consequences of their not com- plying with desires of intelligent rational beings. The acts or omissions whereon these evils are consequent, can hardly be likened to breaches of duties, or to violations of impe- rative laws. The analogy borne by these evils to sanctions properly so called, is nearly as remote as the analogy borne by laws metaphorical to laws imperative and proper. 2. By the term sanction^ as it is now restricted, the evils enforcing compliance with laws imperative and proper, or with the closely analogous laws which opinion sets or imposes, are dis- tinguished from other evils briefly and commodiously. If the term were commonly extended to these physical or natural evils, this advantage would be lost. The term would then comprehend every possible evil which a man may bring upon himself by his own voluntary conduct. The term would then comprehend every contingent evil which can work on the will or desires as a motive to action or forbearance. T close my disquisitions on figurative laws, and on those in strict- metaphorical sanctions which Mr. Bentham denominates Jatorykws, physical, with the following connected remark. in'^kw^^^' Declaratory laws, laws repealing laws, and laws of im- and laws of perfect obligation (in the sense of the Eoman jui^ists), are obligation merely analogous to laws in the proper acceptation of the (in the^ term. Like laws imperative and proper, declaratory laws, the Roman laws repealing laws, and laws of imperfect obligation (in the -jj^^^^'o sense of the Roman jurists^, are signs of pleasure or desire classed re- proceeding from law-makers. A law of imperfect obligation ^vfth\aw^ (in the sense of the Roman iurists) is also allied to an im- petaphor- iCtil or perative law by the following point of resemblance. Like figurative, a law imperative and proper, it is oifered as a norma, or pofitive^^^^ guide of conduct, although it is not armed with a legal or morality, political sanction. Declaratory laws, and laws repealing laws, ought in strict- ness to be classed with laws metaphorical or figurative : for the analogy by which they are related to laws imperative and proper i's extremely slender or remote. Laws of im- 220 The Province of Lkct. y perfect obligation (in tlie sense of the Roman jurists) are ~ ' ~^ laws set or imposed by the opinions of the law-makers, and ought in strictness to be classed with rules of positive mo- rality. But though laws of these three species are merely analogous to laws in the proper acception of the term, they are closely connected with positive laws, and are ap- propriate subjects of jurisprudence. Consequently I treat them as improper laws of anomalous or eccentric sorts, and exclude them from the classes of laws to which in strictness they belong. 1st. Ten- dency to confound positivelaw ■with the science of legislation and positive morality- wit h deon- tology. Example from Blaekstone. Note — on the prevailing tendency to confound what is with what ought to he law or morality, that is, 1st, to confound positive law with the science of legislation, and positive morality with deontology ; and 2ndly, to confound positive law with positive morality, and both with legislation and deon- tology. — (See page 205, and note there.) The existence of law is one thing ; its merit or demerit is another. "Whether it he or be not is one enquiry ; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enumeration of the instances in which it has been forgotten would fill a volume. Sir William Blaekstone, for example, says, in his ' Commentaries/ that the laws of God are superior in obligation to all other laws ; that no human laws should be suffered to contradict them ; that human laws are of no validity if contrary to them ; and that all valid laws derive their force from that divine original. Now, he may mean that all human laws ought to conform to the divine laws. If this be his meaning, I assent to it without hesitation. The evils which we are exposed to suffer from the hands of God as a consequence of disobeying His commands are the greatest evils to which we are obnoxious ; the obligations which they impose are consequently paramount to those im- posed by any other laws, and if human commands conflict with the Divine law, we ought to disobey the command which is enforced by the less power- ful sanction ; this is implied in the term ought : the proposition is identical, and therefore perfectly indisputable — it is our interest to choose the smaller and more uncertain evil, in preference to the greater and surer. If this be Blackstone's meaning, I assent to his proposition, and have only to object to it, that it tells us just nothing. Perhaps, again, he means that human lawgivers are themselves obliged by the divine laws to fashion the laws which they impose by that ultimate standard, because if they do not, God will punish them. To this also I entirely assent : for if the index to the law of God be the principle of utility, that law embraces the whole of our voluntary actions in so far as motives applied from without are required to give them a direction conformable to the general happiness. But the meaning of this passage of Blaekstone, if it has a meaning, seems rather to be this : that no human law which conflicts with the divine law y iuHsprudence detenjiined. 22 1 is obligatory or binding; in other words, that no liinnan law vrhicb conflicts \ Lect. V with, the divine law is a law, for a law without an obligation is a contradic- ""^ ' ' tion in terms. I suppose this to be his meaning^ because when we say of any transaction that it is invalid or void, we mean that it is not binding ; as, for example, if it be a contract, we mean that the political law will not lend its sanction to enforce the contract. Now, to say that human laws which conflict with the divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the so- vereign under the penalty of death ; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who lias commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was nev^r heard in a Court of Justice from the creation of the world down to the present moment. But this abuse of language is not merely puerile, it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at Tariance with them are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation. As an index to the Divine will, utility is obviously in- sufficient. What appears pernicious to one person may appear beneficial to another. And as for the moral sense, innate practical principles, conscience, they are merely convenient cloaks for ignorance or sinister interest : they mean either that I hate the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo it is not binding and ought to be disobeyed, no one will listen to me ; but by calling my hafe my conscience or my moral sense, I urge the same argument in another and a more plausible form : I seem to assign a reason for my dislike, when in truth I have onh^ given it a sounding and specious name. In times of civil discord the mischief of this detestable abuse of language is apparent. In quiet times the dictates of utility are fortunately so obvious that the anarchical doctrine sleeps, and men habitually admit the validity of laws which they dislike. To prove by pertinent reasons that a law is per- nicious is highly useful, because such process may lead to the abrogation of the pernicious law. To incite the public to resistance by determinate views of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny. In another passage of his ^ Commentaries,' Blackstone enters into an ar- Another gument to prove that a master cannot have a right to the labour of his example slave. Had he contented himself with expressing his disapj^robation, a very ^J^^^stQ^g well grounded one certainly, of the institution of slavery, no objection could 222 The Province of Lect. V Paley's de- finition of civil libert3^ Example from the writers on interna- tional law. 2nd. Ten- dency to confound positive Lnv with posi- tive mo- rality, and both with legislation and deon- tology. Examples from the Roman ju- rists. have been made to his so expressing himself. But to dispute the existence or the possibility of the right is to talk absurdly. For in every age, and in almost every nation, the right has been given by positive law, whilst that pernicious disposition of positive law has been backed by the positive morality of the free or master classes. Paley's admired definition of civil liberty appears to me to be obnoxious to the very same objection : it is a definition of civil liberty as it ought to be. ' Civil liberty,' he says, ' is the not being restrained by any law but which conduces in a greater degree to the public welfare ; ' and this is dis- tinguished from natural liberty, which is the not being restrained at all. But when liberty is not exactly synonymous with right, it means, and can mean nothing else, but exemption from restraint or obligation, and is therefore altogether incompatible with law, the very idea of which implies restraint and obligation. But restraint is restraint although it be useful, and liberty is liberty though it may be pernicious. You may, if you please, call a useful restraint liberty, and refuse the name liberty to exemption from restraint when restraint is for the public advantage. But by this abuse of language you throw not a ray of light upon the nature of political liberty ; you only add to the ambiguity and indistinctness in which it is already involved. I shall have to define and analyse the notion of liberty hereafter, on account of its intimate connexion with right, obligation, and sanction. Grotius, Puflfendorf, and the other writers on the so called law of nations, have fallen into a similar confusion of ideas : they have confounded positive international morality, or the rules which actually obtain among civilised nations in their mutual intercourse, with their own vague conceptions of in- ternational morality as it ought to he, with that indeterminate something which they conceive it would be, if it conformed to that indeterminate something which* they call the law of nature. Professor Von Martens, of Gottingen, who died only a few years ago,'^ is actually the first of the writers on the law of nations who has seized this distinction with a firm grasp, the first who has distinguished the rules which ought to be received in the in- tercourse of nations, or which would be received if they conformed to an assumed standard of whatever kind, from those which are so received, endeavoured to collect from the practice of civilised communities what are the rules actually recognised and acted upon by them, and gave to these rules the name of positive international law. I have given several instances in which law and morality as they ought to be are confounded with the law and morality which actually exist. I shall next mention some examples in which positive law is confounded with positive morality, and both with the science of legislation and deontology. Those who know the writings of the Roman lawyers only by hearsay are accustomed to admire their philosophy. Now this, in mj estimation, is the only part of their writings which deserves contempt. Their extraordinary merit is evinced not in general speculation, but as expositors of the Roman law. They have seized its general principles with great clearness and pene- tration, have applied these principles with admirable logic to the explana- tion of details, and have thus reduced this positive system of law to a com- pact and coherent whole. But the philosophy which they borrowed from the Greeks, or which after the examples of the Greeks they themselves fashioned, is naught. Their attempts to define jurisprudence and to deter- mine the province of the jurisconsult are absolutely pitiable, and it is hardly This, it will be remembered, was spoken in the year 183.0 or 1831. yurisp7'udence determiited. 223 conceivable how men of sucli admirable discernment should have displayed Lect V such contemptible imbecility. ^ . At the commencement of the digest is a passage attempting to define jurisprudence. I shall first present you with this passage in a free trans- lation, and afterwards in the original. 'Jurisprudence,' says this definition, ' is the knowledge of things divine and human ; the science which teaches men to discern the just from the unjust.' ' Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.' In the ex- cerpt from Ulpian which is placed at the beginning of the Digest, it is at- tempted to define the office or province of the jurisconsult. ' Law/ says the passage, 'derives its name from j ustice, _/«.s7^^?'?a, and is the science or skill in the good and the equitable. Law being the creature of justice, we the juris- consults may be considered as her priests, for justice is the goddess whom we worship, and to whose service we are devoted. Justice and equity are our vocation; we teach men to know the difference between the just and the unjust, the lawful and the unlawful; we strive to reclaim them from vice, not only by the terrors of punishment, but also by the blandishment of rewards ; herein, unless we flatter ourselves, aspiring to sound and real philosophy, and not like some whom we could mention, contenting ourselves with vain and empty pretension.' ' Juri operam daturum prius nosse oportet, unde nomeu juris descendat. Est autem a justitia appellatum ; nam, ut eleganter Celsus definit, jus est ars boni et aequi. Cujus merito quis nos sacerdotes appellet; justitiam namque colimus, et boni et jequi notitiam profitemur, tequum ab iniquo separantes, licitum ab illicito discer- nentes, bonos non solum metu poenarum verum etiam proemiorum quoque exhortatione efficere cupientes, veram, nisi fallor, philosophiam, non simula- tam affectantes.' Were I to present you with all the criticisms which these two passages suggest, I should detain you a full hour. I shall content myself with one observation on the scope and purpose of them both. This is, that they affect to define jurisprudence, or what comes exactly to the same thing, the office or province of the juriconsult. Now jurisprudence, if it is anything, is the science of law, or at most the science of law combined with the art of applying it ; but what is here given as a definition of it, embraces not only law but positive morality, and even the test to which both these are to be referred. It therefore comprises the science of legislation and deontologv. Further, it affirms that law is the creature of justice, which is as much as to say that it is the child of its own offspring. For when hjjust we mean anything but lo express our own approbation we mean something which accords loith some given Imv. True, we speak of law and justice, or of law and equity, as opposed to each other, but when we do so, we mean to express mere dislike of the law, or to intimate that it conflicts with another law, the law of God, which is its standard. According to this, every pernicious law is unjust. But, in truth, law is itself the standard of justice. What deviates from any law is unjust with reference to that law, though it may be just with reference to another law of superior authorit3^ The terms just and unjust imply a standard, and conformity to that standard and a devia- tion from it ; else they signify mere dislike, which it would be far better to signify by a grunt or a groan than by a mischievous and detestable abuse of articulate language. But justice is commonly erected into an entity, and spoken of as a legislator, in which character it is supposed to prescribe the law, conformity to which it should denote. The veriest dolt who is placed in a jury box^ the merest old woman who happens to be raised to the 224 The Province of Lect. V bench, will talk finely of equity or justice — tlie justice of the case, the ^ « ' equity of the case, the imperious demands of justice, the plain dictates of equity. He forgets that he is there to enforce the law of the land, else he does not administer that justice or that equity with which alone he is im- mediately concerned. Example This is well known to have been a strong tendency of Lord Mansfield — from Lord a strange obliquity in so great a man. I will give an instance. By the ans e . English law, a promise to give something or to do something for the benefit of another is not binding without what is called a consideration, that is, a motive assigned for the promise, which motive must be of a particular kind. Lord Mansfield, however, overruled the distinct provisions of the law by ruling that moral obligation was a sufficient consideration. Now, moral obligation is an obligation imposed by opinion, or an obligation im- posed by God : that is, moral obligation is anything which we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility or by a mora,l sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the judge is to enforce morality, enables the judge to enforce just whatever he pleases. I must here observe that I am not objecting to Lord ]Mansfield for as- suming the office of a legislator. I by no means disapprove of what Mr. Bentham has chosen to call by the disrespectful, and therefore, as I con- ceive, injudicious, name of judge-made law. For I consider it injudicious to call by any name indicative of disrespect what appears to me highly beneficial and even absolutely necessary. I cannot understand how any person who has considered the subject can suppose that society could pos- sibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which thej^ have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature. Notwithstanding my great admiration for Mr. Bentham, I cannot but think that, instead of blaming judges for having legislated, he should blame them for the timid, narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague a.nd indeter- minate phrases such as Lord Mansfield employed in the above example, and which would be censurable in any legislator. LECTUEE YI. Theconnec- POSITIVE laws, tliG appropriate matter of jurisprudence, are sixViec^^ related in tlie way of resemblance, or by a close or remote ture with analogy, to the following objects. — 1. In tlie way of resem- secondf ' blance, they are related to the laws of God. 2. In the way , of resemblance, they are related to those rules of positive fourtli, and i i ni -r~. i fifth. morality which are laws properly so called. 3. By a close or strong analogy, they are related to those rules of positive morality which are merely opinions or sentimenj^s held or felt by men in regard to human conduct. 4. By a remote Jurisprudence determined. 225 or slender analogy, they are related to laws merely metaplio- Lfct. vr rical, or laws merely figurative. To distinguish positive laws from the objects now enume- rated, is the purpose of the present attempt to determine the province of jurisprudence. In pursuance of the purpose to which I have now adverted, I stated, in my first lecture, the essentials of a law or rule (taken with the largest signification which can be given to the term properly). In my second, third, and fourth lectures, I stated the marks or characters by which the laws of God are distinguished from other laws. And, stating those marks or characters, I explained the nature of the index to his unrevealed laws, or I explained and examined the hypotheses which regard the nature of that index. In my fifth lecture, I exam^ined or discussed especially the following principal topics (and I touched upon other topics of secondary or subordinate importance). — I examined the distinguishing marks of those positive moral rules which are laws properly so called : I examined the distinguishing marks of those positive moral rules which are styled laws or rules by an analogical extension of the term : and I examined the distinguishing marks of laws merely metaphorical, or laws merely figurative. I shall finish, in the present lecture, the purpose mentioned above, by explaining the marks or characters which distin- guish positive laws, or laws strictly so called. And, in order to an explanation of the marks which distinguish positive laws, I shall analyze the expression sovereignty, the correla- tive expression suhjectio7i, and the inseparably connected ex- pression independent political so<^iety. With the ends or final \ causes for which governments o^tght to exist, or with their ' different degrees of fitness to attain or approach those ends, I have no concern. I examine the notions of sovereignty and independent political society, in order that I may finish the purpose to which I have adverted above : in order that I may distinguish completely the appropriate province of jurispru- dence from the regions which lie upon its confines, and by which it is encircled. It is necessary that I should examine those notions, in order that I may fimish that purpose. 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 thus. Ev«ry positive law, or every law simply and strictly so v called, is set by a sovereign person, or a sovereign body of VOL. I. Q 2 26. The Proviiice of Lkct. Vi persons, to a member or members of the independent political ^ society wberein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign number, to a person or persons in a state of sub- jection to its author. Even though it sprung directly from another fountain or source, it is a positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) 'the legislator is he, not by whose authority the law was first made, but by whose authority it continues to be a law.' The distin- guishing marks of sovereignty and inde- pendent political society. The rela- tion of sove- reignty and subjection. Having stated the topic or subject appropriate to my pre- sent discourse, I proceed to distinguish sovereignty from other superiority or might, and to distinguish society political and independent from society of other descriptions. The superiority which is styled sovereignty, and the inde- pendent political society which sovereignty implies, is dis- tinguished from other superiority, and from other society, by the following marks or characters. — 1. The hulk of the given society are in a }u\hit of obedience or submission to a deter- minate and common superior : let that common superior be a certain individual person, or a certain body or aggregate of individual persons. 2. That certain individual, or that cer- tain body of individuals, is not in a habit of obedience to a determinate human superior. Lavv^s (improperly so called) which opinion sets or imposes, may permanently affect the conduct of that certain individual or body. To express or tacit commands of other determinate parties, that certain individual or body may yield occasional submission. But there is no determinate person, or determinate aggregate of persons, to whose commands, express or tacit, that certain individual or body renders habitual obedience. Or the notions of sovereignty and independent political society may be expressed concisely thus. — If a determinate human superior, not in a habit of obedience to a like supe- rior, receive habitual obedience from the hulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent. To that determinate superior, the other members of the society are suhject : or on that' determinate superior, the other members of the society are dependent. The position of its y iirispi'itdcnce deic7'niincd. 227 otlier members to'rvards tliat determinate superior, is a str.i.te Lect. vi of suhjedion. or a state of dependence. The mutual relation ' ' wMcli subsists betrreen tliat superior and them, may be stvled tlie relation of sovereign and subject, or the relation of sovereignty and subjection. Hence it folloTrs, that it is only through, an ellipsis, or an strictiy abrideed form of expression, that the society is stvled inde- H^^^'^s^ - -L _ ' . , the sove- jjendent. The party truly independent 1 independent, that is reign por- to say, of a determinate human superior . is not the society, soeietv, and but the soyereiom portion of the society : that certain mem- ^¥ . p . cietv itself, ber of the society, or that certam oody of its members, to is indepen- whose commands, expressed or intimated, the generality or rei2^,^or^~ bulk of its members render habitual obedience. Upon that ^^^preme. certain person, or certain body of persons, the other mem- bers of the society are dependent : or to that certain person, or certain body of persons, the other members of the society are suhject. By ' an independent political society,' or 'an independent and sovereign nation,' we mean a political so- ciety consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate : that is to say, which is merely a limb or member of another political so- ciety, and which therefore consists entirely of persons in a state of subjection. Tn order that a given society may form a society political in order and independent, the two distino^uishinof marks which I have t^^\t ^ g'l^'^^' ir 7 ^ c? s _ ^ society may mentioned above must unite. The generality of the given form a so-' society must be in a hahit of obedience to a determinate and carand'^in-" common superior : whilst that determinate person, or deter- f^P^^^^^JJJ" minate body of persons, must not be habitually obedient to a tinguisMng determinate person or body. It is the union of that jDositive, ^hich a with this negative mark, which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and inde- pendent. To show that the union of those marks renders a given society a society political and independent, I call your atten- tion to the following positions and examples. 1. In order that a given society may form a society politi- cal, the generality or bulk of its members must be in a habit of obedience to a determinate and common superior. In case the generality of its members obey a determinate superior, but the obedience be rare or transient and not habitual or* permanent, the relation of sovereignty and sub- jection is not created thereby between that certain superior q2 are mentioned above must unite. 228 The Province of Lect. VI and tlie members of that given society. In other words, ' ' that determinate superior and the members of that given society do not become thereby an independent political so- ciety. Whether that given society be political and inde- pendent or not, it is not an independent political society whereof that certain superior is the sovereign portion. For example : In 1815 the allied armies occupied France : and so long as the allied armies occupied France, the com- mands of the allied sovereigns were obeyed by the French government, and, through the French government, by the French people generally. But since the commands and the obedience were comparatively rare and transient, they were not sufficient to constitute the relation of sovereignty and subjection between the allied sovereigns and the members of the invaded nation. In spite of those commands, and in spite of that obedience, the French government was sove- reign or independent. Or in spite of those commands, and in spite of that obedience, the French government and its subjects were an independent political society whereof the allied sovereigns were not the sovereign portion. Now if the French nation, before the obedience to those sovereigns, had been an independent society in a state of nature or anarchy, it would not have been changed by the obedience into a society political. And it would not have been changed by the obedience into a society political, be- cause the obedience was not habitual. For, inasmuch as the obedience was not habitual, it was not changed by the obedience from a society political and independent, into a society political but subordinate.— A given society, there- for e^ is not a society political, unless the generality of its members be in a liahit of obedience to a determinate and J common superior. Again : A feeble state holds its independence precariously, or at the will of the powerful states to whose aggressions it is obnoxious. And since it is obnoxious to their aggressions, it and the bulk of its subjects render obedience to commands which they occasionally express or intimate. Such, for in- stance, is the position of the Saxon government and its sub- jects in respect of the conspiring sovereigns who form the Holy Alliance. But since the commands and the obedience are comparatively few and rare, they are not sufficient to constitute the relation of sovereignty and subjection between the powerful states and the feeble state with its subjects. In spite of those commands, and in spite of that obedience, J U7'ispr'udence detenuined. 229 the feeble state is sovereign or independent. Or in spite of lect. ti those commands, and in spite of that obedience, the feeble ^ ' ' state and its subjects are an independent political society whereof the powerful states are not the sovereign portion. Although the powerful states are permanently superior, and although the feeble state is permanently inferior, there is neither a hahit of command on the part of the former, nor a hahit of obedience on the part of the latter. Although the latter is unable to defend and maintain its indepen- dence, the latter is independent of the former in fact or practice. From the example now adduced, as from the example adduced before, we may draw the follo^ving inference : that a given society is not a society political, unless the gene- rality of its members be in a Jiabit of obedience to a deter- minate and common superior. — By the obedience to the powerful states, the feeble state and its subjects are not changed from an independent, into a subordinate political society. And they are not changed by the obedience into a subordinate political society, because the obedience is not habitual. CoiLsequently, if they were a natural society (set- ting that obedience aside), they would not be changed by that obedience into a society political. 2. In order that a given society may form a society poli- tical, habitual obedience must be rendered, by the generality or hulk of its members, to a determinate and common su- perior. In other words, habitual obedience must be ren- dered, by the generality or hidJi of its members, to one and the same determinate person, or determinate body of persons. Unless habitual obedience be rendered by the hulJi of its members, and be rendered bv the bulk of its members to one and the same superior, the given society is either in a state of nature, or is split into two or more independent political societies. For example : In case a given society be torn by intestine war, and in case the conflicting parties be nearly balanced, the given society is in one of the two positions which I have now supposed. — As there is no common superior to which the bulk of its members render habitual obedience, it is not a political society single or undivided. — If the bulk of each of the parties be in a habit of obedience to its head, the given society is broken into two or more societies, which, perhaps, may be styled independent political societies. — If the bulk of each of the parties be not in that habit of obe- 2:,o The Province of Lkct. yi dience, the given society is simply or absolutely in a state of ' ' nature or anarcliy. It is either resolved or broken into its individual elements, or into numerous societies of an ex- tremely limited size : of a size so extremely limited, that they could hardly be styled societies independent and 'poli- tical. For, as I shall show hereafter, a given independent society v^ould hardly be styled political, in case it fell short of a number which cannot be fixed with precision, but which may be called considerable, or not extremely minute. 3. In order that a given society may form a society poli- tical, the generality or bulk of its members must habitually obey a superior determinate as well as common. On this position I shall not insist here. For I have shown sufficiently in my fifth lecture, that no indeterminate party can command expressly or tacitly, or can receive obedience or submission : that no indeterminate body is capable of cor- porate conduct, or is capable, as a body, of positive or nega- tive deportment. / 4. It appears from what has preceded, that, in order that a given society may form a society political, the bulk of its members must be in a habit of obedience to a certain and r common superior. But, in order that the given society may / form a society political and independent, that certain supe- * rior must not be habitually obedient to a determinate human superior. The given society may form a society political and inde- pendent, although that certain superior be habitually affected by laws which opinion sets or imposes. The given society may form a society political and independent, although that certain superior render occasional submission to commands of determinate parties. But the society is not independent, although it may be political, in case that certain superior habitually obey the commands of a certain person or body. Let us suppose, for example, that a viceroy obeys habitu- ally the author of his delegated powers. And, to render the example complete, let us suppose that the viceroy receives habitual obedience from the generality or bulk of the per- sons who inhabit his province. — Now though he commands habitually within the limits of his province, and receives habitual obedience from the generality or bulk of its inha- bitants, the viceroy is not sovereign within the limits of his province, nor are he and its inhabitants an independent political society. The viceroy, and (through the viceroy) the generality or bulk of its inhabitants, are habitually obedient Jii rispriideitce deterniijied. 231 or submissive to tlie sovereign of a larger society. He and i.kct. yi the inhabitants of his province are therefore in a state of ^" ' subjection to the sovereign of that larger society. He and the inhabitants of his province are a society political but subordinate, or form a political society which is merely a limb of another. A natural society, a society in a state of nature, or a a society society independent but natural, is composed of persons who denUnIt are connected by mutual intercourse, but are not members, ^^aturai. sovereigu or subject, of any society political. None of the persons who compose it lives in the positive state which is styled a state of subjection : or all the persons who compose it live in the negative state which is styled a state of inde- pendence. Considered as entire communities, and considered in re- Society spect of one another, independent political societies live, it the inter^ is commonly said, in a state of nature. And considered as course of in- ^ dependent entire communities, and as connected by mutual intercourse, political independent political societies form, it is commonly said, a natural society. These expressions, however, are not per- fectly apposite. Since all the members of each of the re- lated societies are members of a society political, none of the related societies is strictly in a state of nature : nor can the larger society formed by their mutual intercourse be styled strictly a natural society. Speaking strictly, the several members of the several related societies are placed in the following positions. The sovereign and subject members of each of the related societies form a society political : but the sovereign portion of each of the related societies lives in the negative condition which is styled a state of independence. Society formed by the intercourse of independent political societies, is the province of international law, or of the law obtaining between nations. For (adopting a current expres- sion) international law, or the law obtaining between nations, is conversant about the conduct of independent political societies considered as entire communities : circa, negotia et causas gentium integrarum. Speaking with greater precision, international law, or the law obtaining between nations, regards the conduct of sovereigns considered as related to one another. And hence it inevitably follows, that the law obtaining between nations is not positive law : for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. As I have already intimated, 232 The Province of Lect. yi A society political but suboi - tiiaate. A society not politi- cal, but forming a limb or 11) ember of a society political and inde- pendent. The defini- tion of the abstract term {nde- pendent political so- ciety (in- cluding the the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions : by fear on the part of nations, or by fear on the part of sovereigns, of provok- ing general hostility, and incurring its probable evils, in case they shall violate maxims generally received and re- spected. A society political but subordinate is merely a limb or member of a society political and independent. All the persons who compose it, including the person or body which is its immediate chief, live in a state of subjection to one and the same sovereign. Beside societies political and independent, societies inde- pendent but natural, society formed by the intercourse of independent political societies, and societies political but subordinate, there are societies which will not quadrate with any of those descriptions. Though, like a society political but subordinate, it forms a limb or member of a society political and independent, a society of the class in question is not a political society. Although it consists of members living in a state of subjection, it consists of subjects con- sidered as private persons. — A society consisting of parents and children, living in a state of subjection, and considered in those characters, may serve as an example. To distinguish societies political but subordinate from societies not political but consisting of subject members, is to distinguish the rights and duties of subordinate political superiors from the rights and duties of subjects considered as private persons. And before I can draw that distinction, I must analyze many expressions of large and intricate meaning which belong to the detail of jurisprudence. But an explanation of that distinction is not required by my present purpose. To the accomplishment of my present pur- pose, it is merely incumbent upon me to determine the no- tion of sovereignty, with the inseparably connected notion of independent political society. For every positive law, or every law simply and strictly so called, is set directly or circuitously by a monarch or sovereign number to a person or persons in a state of subjection to its author. The definition of the abstract term independent apolitical society (including the definition of the correlative term sove- reignty) cannot be rendered in expressions of perfectly pre- cise import, and is therefore a fallible test of specific or particular cases. The least imperfect definition which the jfit risprucience dete^^mined. abstract term will take, would hardlj enable us to fix the lect. yi class of every possible society. It would hardly enable us to definition" determine of every independent society, whether it were . corr6lcitiv6 'political or natural. It would hardly enable us to determine term sove- of every political society, whether it were independent or cannot^e subordinate. rendered in In order that a given society may form a society political of perfectly and independent, the positive and negative marks which I portJ^anTis therefore a fallible test or particu- lar cases. have mentioned above must unite. The generality or hidh of its members must be in a hahit of obedience to a certain of specific and common superior : whilst that certain person, or certain body of persons, must not be habitually obedient to a certain person or body. But, in order that the hulk of its members may render obedience to a common superior, hoiu many of its members, or ivliat proportion of its members, must render obedience to one and the same superior ? And, assuming that the bulk of its members render obedience to a common s^j)^^^^^'? ^^^"^'^ often must they render it, and how long must they render it, in order that that obedience may be habitual ? — Now since these questions cannot be answered precisely, the positive mark of sovereignty and independent political society is a fallible test of specific or particular cases. It would not ena- ble us to determine of every independent society, whether it were political or natural. In the cases of independent society which lie, as it were, at the extremes, we should apply that positive test without a moment's difficulty, and should fix the class of the society without a moment's hesitation. — Li some of those cases, so large a proportion of the members obey the same superior, and the obedience of that proportion is so frequent and continued, that, without a moment's difficulty and without a moment's hesitation, we should pronounce the society p)olitical: that, without a moment's difficulty and without a moment's hesitation, we should say the generality of its members were in a habit of obedience or submission to a certain and common superior. Such, for example, is the ordinary state of Eng- land, and of every independent society somewhat advanced in civilization. — In other of those cases, obedience to the same superior is rendered by so few of the members, or general obedience to the same is so unfrequent and broken, that, without a moment's difficulty and without a moment's hesitation, we should pronounce the society natural : that, without a moment's difficulty and without a moment's hesi 234 The Province of Lect. VI tation, we should say tlie generality of its members were not ~ in a habit of obedience to a certain and common superior. Such., for example, is the state of the independent and savage societies which subsist by hunting or fishing in the woods or on the coasts of New Holland. But in the cases of independent society which lie between the extremes, we should hardly find it possible to fix with absolute certainty the class of the given community. We should hardly find it possible to determine with absolute certainty, whether the generality of its members did or did not obey one and the same superior. Or we should hardly find it possible to determine with absolute certainty, whether the general obedience to one and the same superior was or was not habitual. For example : During the height of the conflict between Charles the First and the Parliament, the English nation was broken into two distinct societies : each of which societies may perhaps be styled political, and may certainly be» styled independent. After the conflict had sub- sided, those distinct societies were in their turn dissolved; and the nation was reunited, under the common government of the Parliament, into one independent and political com- munity. But at what juncture precisely, after the conflict had subsided, was a common government completely re-estab- lished ? Or at what juncture precisely, after the conflict had subsided, were those distinct societies completely dissolved, and the nation completely reunited into one political com- munity ? When had so many of the nation rendered obedi- ence to the Parliament, and when had the general obedience become so frequent and lasting, that the hulh of the nation were habitually obedient to the body which afPected sove- reignty ? And after the conflict had subsided, and until that juncture had arrived, what was the class of the society which was formed by the English people ? — These are ques- tions which it were impossible to answer with certainty, although the facts of the case were precisely known. ,/ The positive mark of sovereignty and independent poli- tical society is therefore a fallible test. It would not enable us to determine of every independent society, whether it were political or natural. The negative mark of sovereignty and independent poli- tical society is also an uncertain measure. It would not enable us to determine of every political society, whether it were independent or subordinate. — Given a determinate and common superior, and also that the bulk of the society Jurisprudence determined. 235 habitually obey that superior, is that common superior lect. yi free from a habit of obedience to a determinate person or " ' body? Is that common superior sovereign and independ- ent, or is that common superior a superior in a state of sub- jection? In numerous cases of political society, it were impossible to answer this question with absolute certainty. For example : Although the Holy Alliance dictates to the Saxon govern- ment, the commands which it gives, and the submission which it receives, are comparatively few and rare. Consequently, the Saxon government is sovereign or supreme, and the Saxon government and its subjects are an independent political so- ciety, notwithstanding its submission to the Holy Alliance. But, in case the commands and submission were somewhat more numerous and frequent, we might find it impossible to determine certainly the class of the Saxon community. We might find it impossible to determine certainly where the sovereignty resided : whether the Saxon government were a government supreme and independent ; or were in a liahit of obedience, and therefore in a state of subjection, to the allied or conspiring monarchs.^^ The definition or general notion of independent political society, is therefore vague or uncertain. Applying it to specific or particular cases, we should often encounter the difficulties which I have laboured to explain. The difficulties which I have laboured to explain, often embarrass the application of those positive moral rules which are styled international law. For example : When did the revolted colony, which is now the Mexican nation, ascend from the condition of an insurgent province to that of an independent community? When did the body of colonists, who affected sovereignty in Mexico, change the character of rebel leaders for that of a supreme government ? Or (adopting the current language about governments de jure and de facto) when did the body of colonists, who afiPected sovereignty in Mexico, become sovereign in fact? — And (applying international law to the specific or particular case) when did international law autho- rize neutral nations to admit the independence of Mexico with the sovereignty of the Mexican government ? ISTow the questions suggested above are equivalent to this : A very apt instance of this kind of now comprised in the North German dif&culry is suggested by the present re- Confederation. — H. C. lation of Prussia to the other states 236 The Province of Lect. yi — When liad the inhabitants of Mexico obeyed that body so generally, and when had that general obedience become so frequent and lasting, that the hulk of the inhabitants of Mexico were habitually disobedient to Spain, and probably would not resume their discarded habit of submission ? Or the questions suggested above are equivalent to this : — When had the inhabitants of Mexico obeyed that body so generally, and when had that general obedience become so frequent and lasting, that the inhabitants of Mexico were independent of Spain in practice, and were likely to remain permanently in that state of practical independence ? At that j uncture exactly (let it have arrived when it may) , neutral nations were authorised, by the morality which obtains between nations, to admit the independence of Mexico with the sovereignty of the Mexican government. But, by reason of the perplexing difficulties which I have laboured to explain, it was impossible for neutral nations to hit that juncture with precision, and to hold the balance of justice between Spain and her revolted colony with a perfectly even hand. This difficulty presents itself under numerous forms in international law : indeed almost the only difficult and em- barrassing questions in that science arise out of it. And as I shall often have occasion to show, law strictly so called is not free from like difficulties. What can be more indefinite, for instance, than the expressions reasonable time, reasonable notice, reasonable diligence ? Than the line of demarcation which distinguishes libel and fair criticism ; than that which constitutes a violation of copyright; than that degree of mental aberration which constitutes idiocy or lunacy ? In all these cases, the difficulty is of the same nature with that which adheres to the phrases sovereignt}^ and independent society ; it arises from the vagueness or indefiniteness of the terms in which the definition or rule is inevitably conceived. And this, I suppose, is what people were driving at when they have agitated the very absurd enquiry whether questions of this kind are questions of law or of fact. The truth is that they are questions neither of law nor of fact. The fact may be perfectly ascertained, and so may the law, as far as it is capable of being ascertained. The rule is known, and so is the given species, as the Eoman jurists term it ; the diffi- culty is in bringing the species under the rule ; in determin- ing not what the law is, or what the fact is, but whether the given law is applicable to the given fact. I have tacitly supposed, during the preceding analysis, J ttrisprudence determined. 237 that every independent society forming a society political Lect. vi possesses the essential property which I will now describe. ' ' ' In order that an independent society may form a society in order political, it must not fall short of a number which cannot be ciependent" fixed with precision, but which may be called considerable, or society may not extremely minute. A given independent society, whose ciety poiiti- number may be called inconsiderable, is commonly esteemed f^^™^^^^ a natural, and not a political society, although the generality short of a of its members be habitually obedient or submissive to a "vhTcircan- certain and common superior. Let us suppose, for example, that a single family of savages cision, but lives in absolute estrangement from every other community, be^caiie^d'^^ And let us suppose that the father, the chief of this insu- ^^"^^^1^^^!""^^^^ lated family, receives habitual obedience from the mother extremely and children. — Now, since it is not a limb of another and larger community, the society formed by the parents and children is clearly an independent society. And, since the rest of its members habitually obey its chief, this indepen- dent society would form a society political, in case the num- ber of its members were not extremely minute. But, since the number of its members is extremely minute, it would (I believe) be esteemed a society in a state of nature : that is to say, a society consisting of persons not in a state of sub- jection. Without an application of the terms which would somewhat smack of the ridiculous, we could hardly style the society a society political and independent, the imperative father and chief a monarch or sovereign, or the obedient mother and children subjects. — ' La puissance politique ' (says Montesquieu) ' comprend necessairement I'union de plusieurs families.' Again: let us suppose a society which may be styled independent, or which is not a limb of another and larger community. Let us suppose that the number of its mem- bers is not extremely minute. And let us suppose it in the savage condition, or in the extremely barbarous condition which closely approaches the savage. Inasmuch as the given society lives in the savage condi- tion, or in the extremely barbarous condition which closely approaches the savage, the generality or bulk of its mem- bers is not in a habit of obedience to one and the same superior. For the purpose of attacking an external enemy, or for the purpose of repelling an attack made by an ex- ternal enemy, the generality or bulk of its members, who are capable of bearing arms, submits to one leader, or to 238 The Province of Lkc t. yi^ One bodj of leaders. But so soon as that exigency passes, this transient submission ceases ; and the society reverts to the state which may be deemed its ordinary state. The bulk of each of the families which compose the given so- ciety, renders habitual obedience to its own peculiar chief : but those domestic societies are themselves independent so- cieties, or are not united or compacted into one political society by general and habitual obedience to a certain and common superior. And, as the bulk of the given society is not in a habib of obedience to one and the same superior, there is no law (simply or strictly so styled) which can be called the law of that given society or community. The so called laws which are common to the bulk of the communit}^, are purely and properly customary laws : that is to say, laws which are set or imposed by the general opinion of the com- munity, but which are not enforced by legal or political sanctions. — The state which I have briefly delineated, is the ordinary state of the savage and independent societies which live by hunting or fishing in the woods or on the coasts of New Holland. It is also the ordinary state of the savage and independent societies which range in the forests or plains of the !N"orth American continent. It v/as also the ordinary sta.te of many of the German nations whose manners are described by Tacitus. Now, since the bulk of its members is not in a habit of obedience to one and the same superior, the given indepen- dent society would (I believe) be esteemed a society in a state of nature : that is to say, a society consisting of per- sons not in a state of subjection. But such it could not be esteemed, unless the term political were restricted to in- dependent societies whose numbers are not inconsiderable. Supposing that the term political applied to independent so- cieties whose numbers are extremely minute, each of the in- dependent families which constitute the given society would form of itself a political community : for the bulk of each of those families renders habitual obedience to its own peculiar chief. And, seeing that each of those families would form of itself an independent political community, the given in- dependent society could hardly be styled with strictness a natural society. Speaking strictly, that given society would form a congeries of independent political communities. Or, seeino- that a few of its members mi^ht not be members also of those independent families, it would form a congeries of independent political communities mingled with a few indi- y iirisprudence determined. 239 viduals living in a state of nature. — Unless the term 'political lkct. vr were restricted to independent societies whose numbers are ' ' not inconsiderable, few of the many societies which are com- monly esteemed natural could be styled natural societies with perfect precision and jDropriety. For the reasons which I have now produced, and for reasons which I pass in silence, we must, I believe, arrive at the following conclusion. — A given inde]3endent society, ^ whose number may be called inconsiderable, is commonly esteemed a natural, and not a j)oUtical society, although the generality of its members be habitually obedient or submis- sive to a certain and common superior. And arriving at that conclusion, we must proceed to this j further conclusion. — In order that an independent society i may form a society political, it must not fall short of a num- I her which may be called considerable. The lowest possible number which will satisfy that vague condition cannot be fixed precisely. But, looking at many of the communities which commonly are considered and treated as index3endent political societies, we must infer that an inde]3endent society may form a society political, although the number of its members exceed not a few thousands, or exceed not a few hundreds. The ancient Grison Confederacy (like the ancient Swiss Confederacy with which the Grison was connected) was rather an alliance or union of indepen- dent political societies, than one independent community under a common sovereign. Now the number of the largest of the societies which were indejDendent members of the ancient Grison Confederacy hardlj' exceeded a few thousands. And the number of the smallest of those numerous confede- rated nations hardly exceeded a few hundreds. The definition of the terms sovereignty and {ndependent political society, is, therefore, embarrassed by the difficulty following, as well as by the difficulties which I have stated in a foregoing department of my discourse. — In order that an independent society may form a society political, it must not fall short of a number which may be called considerable. And the lowest possible number which will satisfy that vague condition cannot be fixed precisely. But here I must briefly remark, that, though the essential property which I have now described is an essential or ne- cessary property of independent political society, it is not an essential property of subordinate political society. If the independent society, of which it is a limb or member, be a 240 The Province of Lect. VI political and not a natural society, a subordinate society may ' ^ form a society political, although, the number of its members might be called extremely minute. For example : A society incorporated by the state for political or public purposes is a society or body politic : and it continues to bear the cha- racter of a society or body politic, although its number be reduced, by deaths or other causes, to that of a small family or small domestic community. Having tried to determine the notion of sovereignty, with "of the the implied or correlative notion of independent political so- ciety, I will produce and briefly examine a few of the defini- tions of those notions which have been given by writers of celebrity. Distinguishing political from natural society, Mr. Bentham, Certain of the detini- tions term sovt- re'Hjntij, and of the im- plied or correlative term inde- pendent political so- in his Fragment on Government, thus defines the former have' been ^ 'When a number of persons (whom we may style subjects) wrlters^of supposed to be in the liahit of paying obedience to a per- ceiebrity. SOU, or an assemblage of persons, of a known and certain description (whom we may call governor or governors), such persons altogether (subjects and governors) are said to be in a state of political society.' And in order to exclude from his definition such a society as the single family conceived of above, he adds a second essential of political society, namely that the society should be capable of indefinite duration. — • Considered as a definition of independent political society, this definition is inadequate or defective. In order that a given society may form a society political and independent, the superior habitually obeyed by the bulk or generality of its members must not be habitually obedient to a certain in- dividual or body : which negative character or essential of independent political society Mr. Bentham has forgotten to notice. And, since the definition in question is an inade- quate or defective definition of independent political society, it is also an inadequate or defective definition of political so- ciety in general. Before we can define political society, or can distinguish political society from society not political, we must determine the nature of those societies which are at once political and independent. For a political society which is not independent is a member or constituent parcel of a political society which is. Or (changing the expression) the powers or rights of subordinate political superiors are merely emanations of sovereignty. They are merely particles of sovereignty committed by sovereigns to subjects. According to the definition of independent political so- Jti risp 7' It den ce determ in ed. 24.1 ciety whicli is stated or supposed by Hobbes in his excel- j lent treatises on government, a society is not a society poli- ^ tical and independent, unless it can maintain its indepen- dence, against attacks from witliout, by its own intrinsic or unaided strength. But if power to maintain its indepen- dence by its own intrinsic strength be a character or essen- tial property of an independent political society, the name will scarcely apply to any existing society, or to any of the past societies which occur in the history of mankind. The weaker of such actual societies as are deemed political and independent, owe their precarious independence to j)ositive international morality, and to the mutual fears or jealousies of stronger communities. The most powerful of such actual societies as are deemed political and independent, could hardly maintain its inde23endence, by its own intrinsic strength, against an extensive conspiracy of other indepen- dent nations. — Any political society is (I conceive) indepen- dent, if it be not dependent in fact or practice : if the party habitually obeyed by the bulk or generality of its members be not in a habit of obedience to a determinate individual or body. In his great treatise on international law, Grotius defines sovereignty in the following manner. ' Summa potestas civilis ilia dicitur, cujus actus alter ins juri non subsunt, ita ut alterius voluntatis humanse arbitrio irriti possint reddi. Alterius cum dico, ipsum excludo, qui summa potestate utitur; cui voluntatem mutare licet.' Which definition is thus rendered by his translator and commentator Barbey- rac. 'La puissance souveraine est celle dont les actes sont independans de tout autre pouvoir superieur, en sorte qu'ils ne peuvent etre annullez par aucune autre volonte humaine. Je dis, par aucune autre volonte humaine ; car il faut excep- ter ici le souverain lui-meme, a qui il est libre de changer de volonte.' — Now in order that an individual or body may be sovereign in a given society, two essentials must unite. The generality of the given society must render habitual obedience to that certain individual or body : whilst that individual or body must not be habitually obedient to a determinate human superior. In order to an adequate con- ception of the nature of international morality, as in order to an adequate conception of the nature of positive law, the former as well as the latter of those two essentials of so- vereignty must be noted or taken into account. But, this notwithstanding, the former and positive essential of sove- VOL. I. R 242 The Province of Lect. VI reign or supreme power is not inserted by Grotius in that ~ ^ ~^ liis formal definition. And the latter and nesfative essential is stated inaccurately. Sovereign power (according to Gro- tius) is perfectly or completely independent of other human power; insomuch that its acts cannot be annulled by any human will other than its own. But if perfect or complete independence be of the essence of sovereign power, there is not in fact the human power to which the epithet sovereign will apply with propriety. Every government, let it be never so powerful, renders occasional obedience to commands of other governments. Every government defers frequently to those opinions and sentiments which are styled interna- tional law. And every government defers habitually to the opinions and sentiments of its own subjects. If it be not in a habit of obedience to the commands of a determinate party, a government has all the independence which a go- vernment can possibly enjoy. According to Yon Martens of Gottingen (the writer on positive international law already referred to), ^ a sovereign government is a government which ought not to receive com- mands from any external or foreign government.' — Of the conclusive and obvious objections to this definition of sove- reignty the following are only a few. 1. If the definition in question will apply to sovereign governments, it will also apply to subordinate. If a sovereign ought to be free from the commands of foreign governments, so ought every go- vernment which is merely the creature of a sovereign, and which holds its powers or rights as a mere trustee for its author. 2. Whether a given government be or be not su- preme, is rather a question of fact than a question of inter- national law. A government reduced to subjection is actually a subordinate government, although the state of subjection wherein it is actually held be repugnant to the positive mo- rality which obtains between nations or sovereigns. Though, according to that morality, it ought to be sovereign or inde- pendent, it is subordinate or dependent in practice. 3. It cannot be affirmed absolutely of a sovereign or independent government, that it ought not to receive commands from fo- reign or external governments. The intermeddling of in- dependent governments with other independent governments is often repugnant to the morality which actually obtains between nations. But according to that morality which ac- tually obtains between nations (and to that international morality which general utility commends), no independent y tmsp7nLdence detennined. 243 government ought to be freed com23letelY from the supervision lect. yi and control of its fellows. 4. In this definition by Yon Mar- ' ~" tens (as in that which is given by Grotius) there is not the shadow of an allusion to the positive character of sovereignty. The definition points at the relations which are borne by sovereigns to sovereigns : but it omits the relations, not less essential, which are borne by sovereigns to their own sub- jects. T have now endeavoured to determine the general notion The ensu- of sovereignty, including the general notion of independent Qf'^^^g pi-g. political society. But in order that I may further elucidate ?ent lecture is concerned the nature or essence of sovereignty, and of the independent ^vith the political society which sovereignty implies, I will call the fop^JI^S attention of my hearers to a few concise remarks upon the The forms following subjects or topics. — 1. The various shapes which govern-^^^ sovereignty may assume, or the various possible forms of supreme government. 2. The real and imaginary limits of sovereign which bound the power of sovereigns, and by which the ThT^ origin of supreme govern- ment. power of sovereigns is supposed to be bounded. 3. The J^^g^^^^^'^^'^g origin of government, with the origin of political society : origin of or the causes of the habitual obedience which is rendered gocfet'^y^ by the bulk of subjects, and from which the power of sove- reigns to compel and restrain the refractory is entirely or mainly derived. An independent political society is divisible into two por- The fonns tions : namely, the portion of its members which is sovereign or supreme, and the portion of its members which is merely subject. The sovereignty can hardly reside in all the mem- bers of a society : for it can hardly happen that some of those members shall not be naturally incompetent to exer- cise sovereign powers. In most actual societies, the sove- reign powers are engrossed by a single member of the whole, or are shared exclusively by a very few of its members : and even in the actual societies whose governments are esteemed popular, the sovereign number is a slender portion of the entire political community. An independent political so- ciety governed by itself, or governed by a sovereign body consisting of the whole community, is not impossible : but the existence of such societies is so extremely improbable, that, with this passing notice, I throw them out of my ac- count, (m) jf every member of an independent mind, every member -v^-ould be naturally political society were adult and of sound competent to exercise sovereign powers : 244 The Province of Lect. VI Every su- preme go- vernment is a monarchy ( proper] J-- so called), or an aris- tocracy (in the generic meaning of the expres- sion). In otherwords, it is a go- vernment of one, or a govern- ment of a number. Every society political and independent is therefore di- visible into two portions : namety, the portion of its mem- bers which is sovereign or supreme, and the portion of its members which is merely subject. In case that sovereign portion consist of a single member, the supreme government is properly a monarchy, or the sovereign is properly a monarch. In case that sovereign portion consist of a num- ber of members, the supreme government may be styled an aristocracy (in the generic meaning of the expression). — And here I may briefly remark, that a monarchy or government of one, and an aristocracy or government of a number, are essentially and broadly distinguished by the following im- portant difference. In the case of a monarchy or govern- ment of one, the sovereign portion of the community is simply or purely sovereign. In the case of an aristocracy or government of a number, that sovereign portion is sove- reign as viewed from one aspect, but is also subject as viewed from another. In the case of an aristocracy or government of a number, the sovereign number is an aggregate of indi- viduals, and, commonly, of smaller aggregates composed by those individuals. Now, considered collectively, or con- sidered in its corporate character, that sovereign number is sovereign and independent. But, considered severally, the individuals and smaller aggregates composing that sovereign number are subject to the supreme body of which they are component parts. In every society, therefore, which may be styled political and independent, one of the individual members engrosses the sovereign powers, or the sovereign powers are shared by a number of the individual members less than the number of the individuals composing the entire community. Changing tlie phrase, every supreme government is a monarchy (pro- perly so called), or an aristocracy (in the generic meaning of the expression). and if we suppose a society so constituted, we may also suppose a society which strictly is governed by itself, or in which the supreme government is strictly a government of all. But in every actual society, many of the members are natu- rally incompetent to exercise sovereign powers : and even in an actual society whose government is the most popular, the members naturally incompetent to exercise sovereign powers are not the only members excluded from the sove- reign body. If we add to the members excluded by reason of natural incom- petency, the members (women, for ex- ample,) excluded without that necessity, we shall tind that a great majority even of such a society is merely in a state of subjection. Consequently, though a government of all is not impossible, every actual society is governed by one of its members, or by a number of its members which lies between one and all. (n) In every monarchy, the monarch renders habitual deference to the opi- nions and sentiments held and felt by his subjects. But in almost CA'ery mon- archy, he defers especially to the opinions and sentiments, or he consults especially the interests and prejudices, of some J urisprudcncc dcfcrinincd. ^45 Governments wliieli may be stvled aristocracies in the generic meaning of the expression are not unfreqnently dis- tingnished into the three following forms : namely, oligar- chits. aristocracits in the specific meaning of the name\. and dtmocracits. If the proportion of the sovereign number to the number of the entire community be deemed extremely small. the supreme government is styled an oligarchy. If the proportion be deemed small, but not extremely small, the supreme government is styled an aristocraci/ in the specific meaning of the name . If the proportion be deemed large, the supreme government is styled vopuhir, or is styled a dc/nocraci/. But these three forms of aristocracy in the generic meaning of the expression' can hardly be dis- tinguished with precision, or even with a distant approach to it. A o'ovemment which one man shall deem an oli- especially influential though, narrovr por- tion of the community. If the monarchy be military, or if the main instrument of rule he the sword, this influential portion is the military class generally, or a select body of the soldiery. If the main in- strument of rule be not the sword, this influential portion commonly consists of nobles, orof nobles, priests, and lawyers. For example : In the Eoman world, un- der the soyereignty of the princes' or emperors, this influential portion was formed by the standing armies, and, more particularly, by the Prfetorian guard : as, in the Tu_rkish empire, it consists, or consisted, of the corps of Janizaries. In Prance, after the kings had. become soye- reign. and before the great reyolution, this influential portion was formed by the nobility of the sword, the secular and regular clergy, and the members of the parliaments or higher courts of justice. Hence it has been concluded, that there are no monarchies properly so called : that eyery supreme goyernment is a goyernment of a number : that in eyery community which seems to be go- yerned by one, the soyereignty really resides in the seeming monarch or auto- crator. with that especially ^influential though narrow portion of the community 13 whose opinions and sentiments he especially defers. This, though plausi- ble, is an en-or. If he habitually obeyed the commojids of a determinate portion of the community, the soyereignty would reside in the miscalled monarch, with that determinate body of his miscalled subjects : or the soyereignty would reside exclusiyely in that detenuinate body, whilst he would be merely a minister of the supreme goyernment. For example : In case the corps of Janizaries, acting as an organized body, habitually addressed commands to the Turkish sultan, the Turkish sultan, if he habitually obeyed those commands, would not be soyereign in the Turkish empire. The soyereignty would reside in the corps of Janizaries, with the miscalled sultan or monarch : or the soyereignty would reside exclu- siyely in the corps of Janizaries, whilst he would be merely their yizier or prime minister. But habitual deference to opi- nions of the community, or habitual and especial deference to opinions of a portion of the community, consists with that in- dependence which is one of ihe essentials of soyereignty. If it did not, none of the goyemments deemed supreme would be truly soyereign : for habitual deference to opinions of the community, or habitual and especial deference to opinions of a portion of the community, is rendered by eyery aristocracy, or by eyery goyern- ment of a number, as well as by eyery monarch. ii^ay, supreme goyernment would be impossible : for it' the soye- reignty resided in the portion of the community to whose opinions and senti- ments the soyereign especially deferred, it would reside in a body uncertain (that is to say, nowhere), or in a certain body not in a habit of command. A confusion of laws properly so called with laws im- proper imp^osed by opinion, is the source of the error in question. The habitual independence which is one of the essen- tials of soyereignty, is merely habitual independence of laws imperatiye and proper. By laws which op>inion imposes, eyery member of eyery society is habi- tually determined. Lect. VI C'l such dis- tinctions between aristo- cracies as are founded on differ- ences be- tween the proportions which tlie number ui the soye- reign body maybearto the number of the com- munity. 246 The Province of Lect. VI Of such dis- tinctions between aristocra- cies as are founded on differences between the modes Avherein the sovereign number may share tlie sove- reign powers. Of such aristocra- cies as are styled limited iiionarchies. garchy, will appear to another a liberal aristocracy : whilst a government which, one man shall deem an aristocracy, will appear to another a narrow oligarchy. A government which one man shall deem a democracy, will appear to another a government of a few : whilst a government which one man shall deem an aristocracy, will appear to another a govern- ment of many. The proportion, moreover, of the sovereign number to the number of the entire community, may stand, it is manifest, at any point in a long series of minute degrees. The distinctions between aristocracies to which I have now adverted, are founded on differences between the pro- portions which the number of the sovereign body may bear to the number of the community. Other distinctions between aristocracies are founded on differences between the modes wherein the sovereign number may share the sovereign powers. For though the sovereign number may be a homogeneous body, or a body of individual persons whose political charac- ters are similar, it is commonly a mixed or heterogeneous body, or a body of individual persons whose political charac- ters are different. The sovereign number, for example, may consist of an oligarchical or narrower, and a democratical or larger body : of a single individual person styled an emperor or king, and a body oligarchical, or a body democratical : or of a single individual person bearing one of those names, and a body of the former description, with another of the last-mentioned kind. And in any of these cases, or of num- berless similar cases, tlie various constituent members of the heterogeneous and sovereign body may share the sovereign powers in any of infinite modes. The infinite forms of aristocracy which result from those infinite modes, have not been divided systematically into kinds and sorts, or have not been distinguished syste- matically by generic and specific names. But some of those infinite forms have been distinguished broadly from the rest, and have been marked with the common name of limited monarchies, Now (as T have intimated above, and shall show more fully hereafter), the difference between monarchies or go- vernments of one, and aristocracies or governments of a number, is of all the differences between governments the most precise or definite, and, in regard to the pregnant dis- tinction between positive law and morality, incomparably y iLrisp7'iidencc detejmtined. 247 the most important. And, since tliis capital difference "be- lhct. vi tween governments of one and a number is involved in some ' ~" obscurity through the name of limited mojiarchy, I will offer a few remarks upon the various forms of aristocracy to which that name is applied. In all or most of the governments which are styled limited monarchies, a single individual shares the sovereign powers with an aggregate or aggregates of individuals : the share of that single individual, be it greater or less, surpassing or exceeding the share of any of the other individuals who are also constituent members of the supreme and heterogeneous body. And by that preeminence of share in the sovereign or supreme powers, and (perhaps) by precedence in rank or other honorary marks, that single individual is distinguished, more or less conspicuously, from any of the other individuals with whom he partakes in the sovereignty. But in spite of that preeminence, and in S]3ite of that pre- cedence, that foremost individual member of the mixed or heterogeneous aristocracy, is not a monarch in the proper acceptation of the term : nor is the mixed aristocracy of which he is the foremost member, a monarchy properly so called. Unlike a monarch in the proper acceptation of the term, that single individual is not sovereign, but is one of a sovereign number. Unlike a monarch properly so called, that single individual, considered singly, lives in a sta.te of subjection. Considered singly, he is subject to the sovereign body of which he is merely a limb. Limited monarchy, therefore, is not monarchy. It is one or another of those infinite forms of aristocracy which result from the infinite modes wherein the sovereign number may share the sovereign powers. And, like any other of those infinite forms, it belongs to one or another of those three forms of aristocracy which I have noticed in a preceding pa- ragraph. If the number of the sovereign body (the so called monarch included) bear to the number of the community an extremely small proportion, the so called monarchy is an oli- garchy. If the same proportion be small, but not extremely small, the so called limited monarchy is an aristocratical government (in the specific meaning of the name). If the same proportion be large, the so called limited monarchy is a democratical or popular government, or a government of many.^^^ '"^ ' The government of a kingdom where- called monarchy. Such a king, however, iu the king is limited, is by most writers is not soveraign, but is a minister of him 248 The Province of As meaning monarcliical power limited by positive law, the name limited monarchy involves a contradiction in terms. For a monarch, properly so called is sovereign or supreme : and, as I shall show hereafter, sovereign or supreme power is incapable of legal limitation, whether it reside in an indi- vidual, or in a number of individuals. It is true that the power of an aristocracy, styled a limited monarchy, is limited by positive morality, and also by the law of God. But, the power of every government being limited by those restraints, the name limited monarchy, as pointing to those restraints, is not a whit more applicable to such aristocracies as are marked with it, than to monarchies properly so called. — And as the name is absurd or inappropriate, so is its application capricious. Although it is applied to some of the aristocra- cies wherein a single individual has the preeminence men- tioned above, it is also withheld from others to which it is equally applicable. Its application, indeed, is commonly de- termined by a purely immaterial circumstance : by the nature of the title, or the nature of the name of office, which that foremost member of the mixed aristocracy happens to bear. If he happen to bear a title which commonly is borne by monarchs in the proper acceptation of the term, the supreme government whereof he is a member is usually styled a limited monarchy. Otherwise, the supreme government whereof he is a member is usually marked with a different name. For example : The title of ^aaiXsv9, rex, or hing, is commonly borne by monarchs in the proper acceptation of the term : and since our own king happens to bear that title, our own mixed aristocracy of king, lords, and commons, is usually styled a limited monarchy. If his share in the sovereign powers v/ere exactly what it is now, but he were called protector, president, or stadtholder, the mixed aristocracy of which he is a member would probably be styled a republic. And for such verbal differences between forms of supreme govern- or them who truly have the soveraign power.' ' The king whose power is li- mited, is not the soveraign of the assembly which hath the power to limit it. The soveraignty, therefore, is in that assembly which hath the power to limit him. And, by consequence, the government is not monarchy, but aristocracy or demo- cracy.' — In these extracts from Hobbes' Leviathan, the true nature of the supreme governments which are styled limited monarchies is well stated. It cannot, however, be said, with perfect precision, that the so called limited monarch is merely a minister of the sovereign. He commonly, it is true, has subordinate political powers, or is a minister of the sovereign body : but, unless he also par- took in the supreme powers, or unless he were a member as well as a minister of the body, he would hardly be compli- mented with the magnificent name of monarch, and the sovereign government of which he was merely a servant would hardly be styled a monarchy. I shall revert to the character or position of a so called limited monarch, when I come to consider the limits of sovereign power. y urisp7^udence determined. 249 ment lias the peace of mankind been frequently troubled by Lect. yi ignorant and headlong fanatics. *p' The present is a convenient place for the following remarks upon terms. The term ' sovereign,' or ' the sove- reign,' applies to a sovereign body as ■well as to a sovereign individual. ' II sovrano ' and ' le souverain ' are used by Italian and French writers with this generic and commodious meaning. I say commodious: for supreme government, al)stracted from form, is frequently a subject of discourse. ' Die Ohrigk^il ' (the person or body over the community) is also applied indifferently, by German writers, to a sovereign individual or a sovereign number : though it not unfre- quently signifies the aggregate of the political superiors who in capacities su- preme and subordinate govern the given society. But though ' sovereign ' is a generic name for sovereign individuals and bodies, it is not unfrequently used as if it were appropriate to the former : as if it were synonymous with ' monarch' in the proper acceptation of the term. ' Sovereign,' as well as 'monarch,' is also often misapplied to the foremost indi- vidual member of a so called limited monarchy. Our own king, for example, is neither ' sovereign ' nor ' monarch : ' but, this notwithstanding, he hardly is mentioned oftener by his appropriate title of ' king,' than by those inappro- priate and affected names. 'Eepublic,' or 'commonwealth,' has the following amongst other meanings. — 1. "Without reference to the form of the government, it denotes the main object for which a government should exist. It denotes the weal or good of an independ- ent political society : that is to say, the aggregate good of all the individual mem- bers, or the aggregate good of those of the individual members whose weal is deemed by the speaker worthy of regard. 2. Without reference to the form of the government, it denotes a society political and independent. 3. Any aristocracy, or government of a number, which has not acquired the name of a limited mo- narchy, is commonly styled a republican government, or, more briefly, a republic. But the name ' republican government,' or the name ' republic,' is applied em- phatically to such of the aristocracies in question as are deemed democracies or governments of many. 4. ' Eepublic ' also denotes an independent political society whose supreme government is styled republican. The meanings of ' state,' or ' the state,' are numerous and disparate : of which numerous and disparate meanings the following are the most remarkable. — 1 . ' The state ' is usually synonymous with ' the sovereign.' It denotes the individual person, or the body of individual persons, which bears the supreme powers in an independent political societ3^ This is the meaning which I annex to the term, unless I employ it expressly with a different import. 2. By the Eoman lawyers, the expression ' status reipub- licee' seems to be used in two senses. As used in one of those senses, it is synony- mous with ' repviblic,' or ' commonwealth,' in the first of the four meanings which I have enumerated above : that is to say, it denotes the weal or good of an inde- pendent political society. As used in the other of those senses, it denotes the individual or body which is sovereign in a given society, together with the subject individuals and subject bodies who hold political rights from that sovereign one or number. Or (changing the phrase) it denotes the respective conditions of the several political superiors who with sovereign and delegated powers govern the community in question. And the ' status reipublicge,' as thus understood, is the appropriate subject of puhlw law in the definite meaning of the term : that is to say, the portion of a cor])us juris which is concerned with political con- ditions, or with the powers, rights, and duties of political superiors. It is hardly necessary to remark, that the expression ' status reipublicpe ' is not coextensive or synonymous with the expression ' status.' The former is a collective name for po- litical or public conditions, or for the powers, rights, and duties of political superiors. The latter is synonjmious with the term ' condition,' and denotes a private condition as well as a political or public. 3. Where a sovereign body is compoi;nded of minor bodies, or of one individual person and minor bodies, those minor bodies are not unfrequently styled ' states ' or ' estates.' For ex- ample : Before the kings of France had become substantially sovereign, the sove- reignty resided in the king with the three estates of the realm. 4. An inde- pendent political society is often styled a ' state,' or a 'sovereign and independent state.' An independent political society is often styled a 'nation,' or a 'sovereign and independent nation.' But the term Various meanings of the follow- ing terms : 1. The term 'sove- reign,' or ' the sove- reign.' 2. The term ' republic,' or'common- wealth.' 3. The term 'state,' or 'the state.' 4. The term ' nation.' 250 The Provi7ice of Lect. VI r>f the exer- cise of sove- reign pow- ers, by a monarch or sovereign body, through po- litical sub- ordinates or delegates represent- ing their sovereign author. To the foregoing brief analysis of tlie forms of supreme government, I append a .short examination of the four fol- lowing topics : for they are far more intimately connected with the subject of that analysis, than with any of the other subjects which the scope of my lecture embraces. 1. The exercise of sovereign powers, by a monarch or sovereign body, through political subordinates or delegates representing their sovereign author. 2. The distinction of sovereign, and other political powers, into such as are legislative, and such as are executive or administrative. 3. The true natures of the com- munities or governments which are styled by writers on positive international law half-sovereign states. 4. 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. In an independent political society of the smallest possible magnitude, inhabiting a territory of the smallest possible extent, and living under a monarchy or an extremely narrow oligarchy, all the supreme powers brought into exercise (save those committed to subjects as private persons) might pos- sibly be exercised directly by the monarch or supreme body. But by every actual sovereign (whether the sovereign be one individual, or a number or aggregate of individuals), some of those powers are exercised through political subordinates or delegates representing their sovereign author. This exercise of sovereign powers through political subordinates or dele- gates, is rendered absolutely necessary, in every actual so- ciety, by innumerable causes. For example : If the number of the society be large, or if its territory be large although its number be small, the quantity of work to be done in the way of political government is more than can be done by the sovereign without the assistance of ministers. If the society be governed by a popular body, there is some of the business of government which cannot be done by the sovereign with- out the intervention of representatives ; for there is some of the business of government to which the body is incompetent by reason of its own bulk ; and some of the business of government the body is prevented from performing by the private avocations of its members. If the society be go- verned by a popular body whose members live dispersedly ' nation,' or the term ' ^ms,' is used more perhaps, through a common language, properly with the following meaning. And, thus understood, a ' nation ' or It denotes an aggregate of persons, ex- ' gens ' is not necessarily an independent ceeding a single family, who are con- political society, nected through blood or lineage, and, y 7Hsp7^itdence determined. throughont an extensive territory, the sovereign body is lect. yi constrained by the wide dispersion of its members to exercise ' ' ^ through, representatives some of its sovereign powers. In most or many of the societies whose supreme govern- ments are monarchical, or whose supreme governments are oligarchical, or whose supreme governments are aristocratic al (in the specific meaning of the name), many of the sovereign powers are exercised by the sovereign directly, or the sove- reign performs directly much of the business of government. Many of the sovereign 230wers are exercised by the sove- reign dh'ectly, or the sovereign performs directly much of the business of government, even in some of the societies whose supreme governments are popular. For example : In all or most of the democracies of ancient Greece and Italy, the sovereign people or number, formally assembled, exercised directly many of its sovereign powers. And in some of the Swiss Cantons whose supreme governments are popular, the sovereign portion of the citizens, regularly convened, per- forms directly much of the business of government. But in many of the societies whose supreme governments are popular, the sovereign or supreme body (or any numerous body forming a component part of it) exercises through representatives, whom it elects and appoints, the whole, or nearly the whole, of its sovereign or supreme powers. In our own country, for example, one component part of the sove- reign or supreme body is the numerous body of tlie commons (in the strict signification of the name) : that is to say, such of the commons (in the large acceptation of the term) as share the sovereignty with the king and the peers, and elect the members of the commons' house. Now the commons exercise through representatives the whole of their sovereign powers ; or they exercise through representatives the whole of their sovereign powers, excepting their sovereign power of electing and appointing representatives to represent them in the British parliament. So that if the commons were sovereign without the king and the peers, not a single sove- reign power, save that which I have now specified, would be exercised by the sovereign directly. Where a sovereign body (or any smaller body forming a component part of it) exercises through representatives the whole of its sovereign powers, it may delegate those its powers to those its representatives, in either of two modes. 1. It may delegate those its powers to those its representa- tives, subject to a trust or trusts. 2. It may delegate those 252 The Pi'ovince oj Lkct. VI its powers to those its representatives, absolutely or uncon- ditionally : insomuch, that the representative body, during the period for which it is elected and appointed, occupies completely the place of the electoral ; or insomuch that the former, during the period for which it is elected and ap- pointed, is invested completely with the sovereign character of the latter. For example : The commons delegate their powers to the members of the commons' house, in the second of the above- mentioned modes. During the period for which those mem- bers are elected, or during the parliament of which those members are a limb, the sovereignty is possessed by the king and the peers, with the members of the commons' house, and not by the king and the peers, with the delegating body of the commons : though when that period expires, or when that parliament is any how dissolved, the delegated share in the sovereignty reverts to that delegating body, or the king and the peers, with the delegating body of the commons, are then the body wherein the sovereignty resides. So that if the commons were sovereign without the king and the peers, their present representatives in parliament would be the sovereign in effect, or would possess the entire sovereignty free from trust or obligation. — The powers of the commons are delegated so absolutely to the members of the commons' house, that this representative assembly might concur with the king and the peers in defeating the principal ends for which it is elected and appointed. It might concur, for instance, in making a statute which would lengthen its own duration from seven to twenty years ; or which would anni- hilate completely the actual constitution of the government, by transferring the sovereignty to the king or the peers from the tripartite body wherein it resides at present. But though the commons delegate their powers in the second of the above-mentioned modes, it is clear that they might delegate them subject to a trust or trusts. The re- presentative body, for instance, might be bound to use those powers consistently with specific ends pointed out by the electoral : or it might be bound, more generally and vaguely, not to annihilate, or alter essentially, the actual constitution of the supreme government. And if the commons were sovereigii without the king and the peers, they might impose a similar trust upon any representative body to which they might delegate the entire sovereignty. Where such a trust is imposed by a sovereign or supreme y itrispriidcnce dctcmiiined. 2^3 body (or by a smaller body forming a component part of it . Le. t. at the trust is enforced by legal, or by merely moral sanctions. ' ' ' The representative body is bound by a positive lavr or lavrs : or it is merely bound by a fear that it may offend the bulk of the community, in case it shall break the engagement vrhich it has contracted with the electoral. And here I may briefly remark, that this last is the posi- tion which really is occupied by the members of the com- mons' house. Adopting the language of most of the writers who have treated of the British Constitution, I commonly suppose that the present parliament, or the parliament for the time being, is possessed of the sovereignty : or I com- monly suppose that the king and the lords, vrith the members of the commons' house, form a tripartite body which is sove- reign or supreme. But, speaking accurately, the members of the commons' house are merely trustees for the body by which they are elected and appointed : and, consequently, the sovereignty always resides in the king and the peers, with the electoral body of the commons. That a trust is imposed by the party delegatmg, and that the party representing engages to discharge the trust, seems to be imported by the correlative expressions delegation and reioresentrAtion. It were absurd to suppose that the delegating empowers the represen- tative party to defeat or abandon any of the pui-poses for which the latter is appointed : to suppose, for example, that the com- mons empower their representatives in parliament to re- linquish their share in the sovereignty to the king and the lords. — The supposition that the powers of the commons aro delegated absolutely to the members of the commons' house, probably arose from the following causes. 1. The trust im- posed by the electoral body upon the body representing them in parliament, is tacit rather than express : it arises from the relation between the bodies as delegating and represen- tative parties, rather than from oral or wiitten instructions given by the former to the latter. But since it arises from that relation, the ti^ust is general and vague. The represen- tatives are merely bound, generally and vaguely, to abstain from any such exercise of the delegated sovereign powers as would tend to defeat the purposes for which they are elected and appointed. 2. The trust is simply enforced by moral sanctions. In other words, that portion of constitutional law which regards the duties of the representative towards the electoral body, is positive morality merely. Xor is this extraordinary. For (as I shall show hereafter^ aU constitu- 2*54 The P^^oviiice of Lect. VI tional law, in every country whatever, is, as against the '"^ ' " sovereign, in that predicament : and much of it, in every country, is also in that predicament, even as against parties who are subject or subordinate to the sovereign, and who therefore might be held from infringing it by legal or poli- tical sanctions. If a trust of the kind in question were enforced by legal sanctions, the positive law binding the representative body might be made by the representative body and not by the electoral. For example : If the duties of the commons' house towards the commons who appoint it were enforced by legal sanctions, the positive law binding the commons' house might be made by the parliament : that is to say, by the commons' house itself in conjunction with the king and fche peers. Or, supposing the sovereignty resided in the commons without the king and the peers, the positive law binding the commons' house might be made by the house itself as representing the sovereign or state. — But, in either of these cases, the law might be abrogated by its immedi- ate author without the direct consent of the electoral body. Nor could the electoral body escape from that inconvenience, so long as its direct exercise of its sovereign or supreme powers was limited to the election of representatives. In order that the electoral body might escape from that incon- venience, the positive law binding its representatives must be made directly by itself or with its direct concurrence. Eor example : In order that the members of the commons' house might be bound legally and completely to discharge their duties to the commons, the law must be made directly by the commons themselves in concurrence with the king and the lords : or, supposing the sovereignty resided in the commons without the king and the peers, the law must be made directly by the commons themselves as being exclu- sively the sovereign. In either of these cases, the law could not be abrogated without the direct consent of the electoral body itself. For the king and the lords with the electoral body of the commons, or the electoral body of the commons as being exclusively the sovereign, would form, an extraor- dinary and ulte^'ior legislature : a legislature superior to that ordinary legislature which would be formed by the parlia- ment or by the commons' house. A law of the parliament, or a law of the commons' house, which affected to abrogate a law of the extraordinary and ulterior legislature, would not be obeyed by the courts of justice. The tribunals would yurispritdence dcteiinined. 255 enforce the latter in tlie teeth of tlie former. They ttouIcI lect. vr examine the competence of the ordinary legislature to make ' ' ^ the abrogating law, as they now examine the competence of any subordinate corporation to establish a by-law or other statute or ordinance. In the state of Xew York, the ordi- nary legislature of the state is controlled by an extraordi- nary leo-islature, in the manner which I have now described. The body of citizens appointing the ordinary legislature, forms an extraordinary and ulterior legislature by which the constitution of the state was directly established : and any law of the ordinary legislature, which conflicted with a con- stitutional law directly proceeding fi^om the extraordinary, would be treated by the courts of justice as a legally invalid act. — That such an extraordinary and ulterior legislature is a good or useful institution, I pretend not to affirm. I merely affirm that the institution is possible, and that in one poli- tical society the institution actually obtains. From the exercise of sovereign powers by the sovereign Of the dk- directly, and also by the sovereigm through political subordi- joverdii? nates or delegates, I pass to the distinction of sovereign, and^other and other political powers, into such as are legislative, and powers, into such as are executive or administrative. f^ghatii-r It seems to be supposed by many writers, that legislative and such as political powers, and executive political powers, may be dis- tinguished precisely, or, at least, with an approach to preci- sion : and that in every society whose government is a go- vernment of a number, or, at least, in every society whose government is a limited monarchy, the legislative sovereign powers, and the executive sovereign powers, belong to dis- tinct parties. According, for example, to Sir William Black- stone, the legislative sovereign powers reside in the parlia- ment : that is to say, in the tripartite sovereign body formed by the king, the members of the house of lords, and the members of the house of commons. But, according to the same writer, the executive sovereign powers reside in the king alone. 'Now the distinction of political powers into such as are legislative and such as are executive, scarcely coincides with the distinction of those powers into such as are suioreme and such as are subordinate : for it is stated or assumed by the writers who make the former distinction, that sovereign poli- tical powers (and, indeed, subordinate also) are divisible into such as are legislative and such as are executive. If the dis- 'tinction of political powers into leo'islative and executive have are execu- tive or administra- tive. 256 The Pj^oznnce of Lect. VI any determinate meaning, its meaning must be tliis : Tlie ' former are powers of establishing laws, and of issuing other commands : whilst the latter are powers of administering, or of carrying into operation, laws or other commands already established or issued. But the distinction, as thus under- stood, is far from approaching to precision. For of all the instruments or means by which laws and other commands are administered or executed, laws and other commands are in- comparably the most frequent ; insomuch that most of the powers deemed executive or administrative are themselves legislative powers, or involve powers which are legislative. For example : As administered or executed by courts of jus- tice, laws are mainly administered through judgments or de- crees : that is to say, through commands issued in particular cases by supreme or subordinate tribunals. And, in order that the laws so administered may be administered well, they must be administered agreeably to laws which are merely subservient to that purpose. Thus : All laws or rules deter- mining the practice of courts, or all laws or rules deter- mining judicial procedure, are purely subsidiary to the due execution of others. / That the legislative sovereign powers, and the executive sovereign powers, belong, in any society, to distinct parties, is a supposition too palpably false to endure a moment's ex- amination. Of the numerous proofs of its falsity which it were easy to produce, the following will more than suffice. — 1. Of the laws or rules made by the British parliament, or by any supreme legislature, many are subsidiary, and are in- tended to be subsidiary, to the due execution of others. And as making laws or rules subservient to that purpose, it is not less executive than courts of justice as making regulations of procedure. — 2. In almost every society, judicial powers, commonly esteemed executive or administrative, are exercised directly by the supreme legislature. For example : The Roman emperors or princes, who were virtually sovereign in the Roman empire or world, not only issued the edictal con- stitutions which were general rules or laws, but, as forming the highest or ultimate tribunal of appeal, they also issued the particular constitutions which were styled decretes or judg- ments. In libera repuhlica, or before the virtual dissolution of the free or popular government, the sovereign Roman people, then the supreme legislature, was a high court of lustice for the trial of criminal causes. The powers of supreme judicature inhering in the modern parliament, or y urisprudence determined. 257 the body formed by the king and the upper and lower houses, Lect. yi have ever (I believe) been dormant, or have never been ""^ ' ' brought into exercise : for, as making the particular but ex jpost facto statutes which are styled acts of attainder, it is not properly a court of justice. But the ancient parliament, formed by the king and the barons, of which the modern is the offspring, was the ultimate court of appeal as well as the sovereign legislature. — 3. The present British constitution affords not the slightest countenance to the supposition which I am now examining. It is absurd to say that the parlia- ment has the legislative sovereign powers, but that the executive sovereign powers belong to the king alfene. If the parliament (as Blackstone affirms) be sovereign or absolute, every sovereign power must belong to that sovereign body, or to one or more of its members as forming a part or parts of it. The powers of the king considered as detached from the body, or the powers of any of its members considered in the same light, are not sovereign powers, but are simply or purely subordinate : or (changing the phrase) if the king or any of its members, considered as detached from the body, be invested with political powers, that member as so detached is merely a minister of the body, or those political powers are merely emanations of its sovereignty. Besides, j)olitical powers which surely may be deemed executive are exercised by each of the houses ; whilst political powers which surely may be deemed legislative are exercised by the king. In civil causes, the house of lords is the ultimate court of appeal ; and of all the political powers which are deemed executive or administrative, judicial powers are the most important and remarkable. The executive or administrative powers which reside in the lower house, are not so weighty and ob- vious as those which belong to the upper : but still it were easy to show that it exercises powers of the kind. For ex- ample : Exercising judicature, through select committees of its members, it adjudges that elections of its members are legally valid or void.^^ The political powers exercised by the king which surely may be deemed legislative, are of vast extent and importance. As captain general, for example, he makes articles of war : that is to say, laws which re- gard especially the discipline or government of the soldiery. As administering the law, through subordinate courts of justice, he is the author of the rules of procedure which they This judicial power in regard to elec- subordinate judges, by ' The Parliamen- tions is for the first time committed to tary Elections Act 1868.' — K.C. VOL. I. S 258 The Province of Lect. VI have established avowedly, or in the properly legislative "~ ^ mode : and (what is of greater importance) he is the author of that measureless system of judge-made rules of law, or rules of law made in the judicial manner, which has been established covertly by those subordinate tribunals as directly exercising their judicial function s.^^ \ Of all the larger divisions of political powers, the division \ of those powers into supreme and subordinate is perhaps the jonly precise one. The former are the political powers, in- finite in number and kind, which, partly brought into exer- cise, and partly lying dormant, belong to a sovereign or state : that *ls to say, to the monarch properly so called, if the government be a government of one : and, if the govern- ment be a government of a number, to the sovereign body considered collectively, or to its various members considered as component parts of it. The latter are those portions of the supreme powers which are delegated to political subordi- nates : such political subordinates being subordinate or sub- ject merely, or also immediate partakers in those very supreme powers of portions or shares wherein they are possessed as ministers and trustees. The true There were formerly in Europe many of the communities 111^00111- ^ or governments which are styled by writers on positive inter- nmnities or national law half sovereign states. In consequence of the govern- . t/ u x ^ nients mighty changes wrought by the French revolution, such styled hy Communities or governments have wholly or nearly dis- writers on appeared : and I advert to the true natures of such com- ternadonai muuities or governments, not because they are intrinsically of law half ^j^y importance or interest, but because the incong'ruous sovereign . . , states. epithet half or imperfectly sovereign obscures the essence of sovereignty and independent political society. It seems to import that the governments marked with it are sovereign and subject at once. 2' Division of governments according executive and legislative. See Kant, to forma iwjperw (Monarchy, Aristocracy, Entwurf zum ewigen Frieden, pp. 25-30. and Democracy), or forma regiminis Krug, Allgemeines Handworterhuch der (despotic or republican). The latter is PMlosophie, &c.. Vol. IV. p. 37. Politz, founded on a fancied distinction between Staatswissenschaft, Vol. I. MS. Note. [On referring to Kant's 'Entwurf,' I found it filled with the marginal notes with which almost all the Author's books ti'eating of the subjects of his patient and penetrating study, are enriched. The blank leaves in the covers are also covered with Tables, to which he had reduced Kant's definitions of the several forms of Government, They are inserted at the end of this Lecture, not only on account of their intrinsic value, but as affording an example of the manner in which books were dealt with by one who never quitted a subject till he had thoroughly mastered it, and placed it before his own mind with luminous dis- tinctness. — S.A.] Jtt risp7'iide7ice dete7nn ined. 259 According to writers on positive international law, a go- l3:ct. vi vernment half or imperfectly sovereign occupies tlie follow- ' ^ ing position. — In spite of its half or imperfect dependence, it has most of the political and sovereign powers which be- long to a government wholly or 23erfectly supreme. More especially, in all or most of its foreign relations, or in all or most of its relations to foreign or external governments, it acts and is treated as a perfectly sovereign government, and not as a government in a state of subjection to another : in- somuch that it makes and breaks alliances, and makes war or peace, without authority from another government, or of its own discretion. But, this notwithstanding, the government, or a member of the government, of another political society, has political powers over the society deemed imperfectly in- dependent. For example : In the Germanico-Eoman or Eomano- Germanic empire, the particular German govern- ments depending on the empire immediately, or holding of the emperor by tenure m capite, were deemed im^Derfectly sovereign in regard to that general government which con- sisted of the emperor and themselves as forming the Imperial diet. Tor though in their foreign relations they were wholly or nearly independent, they were bound (in reality or show) by laws of that general government : and its tribunals had appellate judicature (substantially or to appearance) over the political and half independent communities wherein they were half supreme. Most, indeed, of the governments deemed im- perfectly supreme, are governments which in their origin had been substantially vassal : but which had insensibly escaped from most of their feudal bonds, though they still continued apparently in their primitive state of subjection. ISTow I think it will appear on analysis, that every govern- ment deemed imperfectl}- supreme is really in one or another of the three following predicaments. It is perfectly subject to that other government in relation to which it is deemed imperfectly supreme : Or it is perfectly independent of the other, and therefore is of itself a truly sovereign government: Or in its own community it is jointly sovereign with the other, and is therefore a constituent member of a govern- ment supreme and independent. And if every government deemed imperfectly supreme be really in one or another of the three foregoing predicaments, there is no such political mongrel as a government sovereign and su.bject.- — 1. The political powers of the government deemed imperfectly^ supreme, may be exercised entirely and habitually at the s 2 26o The Provmce of Lect. VI pleasure and bidding of tlie other. On whicli supposition, ' ' ' its so called half sovereignty is merely nominal and illusive. It is perfectly subject to the other government, though that its perfect subjection may be imperfect in ostent. For ex- ample : Although, in its own name, and as of its own dis- cretion, it makes war or peace, its power of making either is merely nominal and illusive, if the power be exercised habitually at the bidding of the other government. — 2. The political powers exercised by the other government over the political society deemed imperfectly independent, may be exercised through the permission, or through the authority, of the government deemed imperfectly supreme. On which supposition, the government deemed imperfectly supreme is of itself a truly sovereign government : those powers being legal rights over its own subjects, which it grants expressly or tacitly to another sovereign government. (For, as I shall show hereafter, a sovereign government, with the permission or authority of another, may possess legal rights against the subjects of the latter.) For example : The great Frederic of Prussia, as prince-elector of Brandenburg, was deemed half or imperfectly sovereign in respect of his feudal connection with the German empire. Potentially and in practice, he was thoroughly independent of the Imperial government : and, supposing it exercised political powers over his subjects of the electorate, it virtually exercised them through his au- thority, and not through his obedience to its commands. Being in a habit of thrashing its armies, he was not in a habit of submission to his seeming feudal superior. — 3. The political powers of the government deemed imperfectly su- preme, may not be exercised entirely and habitually at the pleasure and bidding of the other : but yet its independence of the other may not be so complete, that the political powers exercised by the other over the political society deemed im- perfectly independent, are merely exercised through its per- mission or authority. For example : We may suppose that the elector of Bavaria was independent of the Imperial go- vernment, in all or most of his foreign, and in most of his domestic relations : but that, this his independence notwith- standing, he could not have abolished completely, without incurring considerable danger, the appellate judicature of the Imperial tribunals over the Bavarian community. But on the supposition which I have now stated and exemplified, the sovereignty of the society deemed imperfectly indepen- dent resides in the government deemed imperfectly supreme y iirisprudcjice determined, 261 together with the other goYernment : and, consequenth', the Lfxt. yi gOYemment deemed imperfectlj supreme is properly a con- " ^' ' stitiient member of a goYemment supreme and independent. The supreme gOYernment of the society deemed imperfectly independent, is one of the infinite forms of supreme goYern- ment by a number, which result from the infinite modes wherein the soYereign number may share the soYereign powers. There is in the case, nothing extraordinary but this : that all the constituent members of the supreme go- Yernment in question are not exclusiYely members of the political society which it goYerns ; since one of them is also soYereign in another political society, or is also a constituent member of another supreme gOYernment. In consequence of this anomaly, the interests and pretensions of the con- stituent members more or less antagonize. But in almost eYery case of supreme gOYernment by a number, the interests and pretensions of the members more or less antagonize, al- though the supreme gOYernment be purely domestic. Whether a supreme gOYernment be purely domestic, or one of its limbs be also a limb of another, the supreme gOYernment is perpe- tuated through the mutual concessions of its members, not- withstanding the opposition of their interests and pretensions, and the bloody or bloodless conflicts which the opposition may occasionally beget. — For the reasons produced and suggested in the coui'se of the foreo-oing* analYsis, I belieYe that no gOYernment is soYereign and subject at once : that no go- Yemment can be styled with propriety lialf or imperfectly Tke application of the epithet hoJf last of which suppositions, the former is sovereign seems to be capricious. For a constituent member of a government example : Over most of the political supreme and independent, communities wherein the Roman Catholic According, indeed, to some of such is the prevalent and established religion, writers, if those powers be exclusively legislative and judicial powers are ex- exercised in matters strictly ecclesiastical, ercised by the Pope : that is to say, by the sovereignty of the domestic govern- an external government, or a member of ment is not impaired by the exercise, an external government. But those po- though they are not merely exercised litical communities, or their domestic thi'ough its permission or authority, and temporal governments, are not de- And, consequently, it is not necessary to nominated, therefore, by writers on in- suppose that it shares the sovereigntwith ternational law, half independent or half the Pope, or to mark it with the incongni- supreme. It seems to be supposed by ous epithet of half or imperfectly supreme, such writers, that, in every political But though those powers be exclusively community occupying that position, those exercisedinmatters strictly ecclesiastical, powers are merely exercised by the au- still they are legislative and judicial thority of the domestic government, or powers. And how is it possible to dis- the domestic government and the Pope tinguish precisely, matters which are are jointly sovereign. On the first of strictly ecclesiastical, from matters which which suppositions, the former is of are not ? the powers of ecclesiastical itself perfectly sovereign : and on the regiment which none but the church 262 The Pi^ovince of Lect. VI Before I dismiss the riddle which I have now endeavoured to resolve, I must state or suggest the following difference. — In numberless cases, political powers are exercised over a political community, by the government, or a member of the government, of an external political community. But the government of the former community is scarcely denomi- nated half or imperfectly sovereign, unless the government of the latter, or the member of the government of the latter, possess those political powers as being the government of the latter, or as being a member of its government. For example : The particular German governments which de- pended on the Empire immediately, are denominated half sovereign : for the powers exercised by the Imperial govern- ment over their respective communities, were exercised by that government as being that very government, or as being (at least, to appearance) the general government of Germany. But the government of the British Islands is not imperfectly sovereign in regard to the government of Hanover : nor is the government of Hanover an imperfectly sovereign govern- ment in regard to the government of the British Islands. Tor though the king of the British Islands is also king of Hanover, he is not king in either country as being king in the other. The powers which he exercises there, have no dependence whatever on his share in the sovereignty here : nor have the powers which he exercises here, any dependence on his sovereignty (or his share in the sovereignty) there. — The difference which I have now suggested, is analogous to the difference, in the Roman law, between real and personal servitudes : or to the resembling difference, in the law of England, between easements appurtenant and easements in gross. A real right of servitude, or a right of easement ap- purtenant, belongs to the party invested with the right, as being the owner or occupier of specifically determined land. A personal right of servitude, or a right of easement in gross, does not belong to the party as being such owner or occupier, but (according to the current jargon) is annexed to, or inheres in, his person. Before I proceed to composite states, and systems of con- federated states, I will try to explain a difficulty that is closely connected with the subjects which I have examined in the present section. — I have remarked already, and shall endeavour to demonstrate hereafter, that all the individuals should wield, from the powers of eecle- which secular and profane governments siastical regiment (or the Jus circa sacra) may handle without sin ? Ju7aspriidence detei'miiied. 263 or aggi'egates composing a sovereign number are subject to Lect. vi tlie supreme boclv of wbicli tbey are component parts. Xow ' ' where a member of a body wliicli is sovereign in one com- mmiity, is exclusively sovereign in another, how does the sovereignty of that member in the latter of the two com- munities, consist with the subjection of that member to the body which is sovereign in the foiTuer ? Supposing, for ex- ample, that oui' own king were monarch and autocrator in Hanover, how would his subjection to the sovereign body of king, lords, and commons, consist with his sovereignty in his German kingdom ? A limb or member of a sovereign body would seem to be shorn, by its habitual obedience to the body, of the habitual independence which must needs belong to it as sovereign in a foreign community. — To explain the difficulty, we must assume that the characters of sovereign, and member of the sovereign body, are practically distinct : that, as monarch (for instance) of the foreign community, a member of the sovereign body neither habitually obeys it, nor is habitually obeyed by it. For if, as monarch of the foreign community, he habitually obeyed the body, the body would be sovereign in that community, and he would be merel}' its minister : and if, as monarch of the foreign com- munity, he were habitually obeyed by the body, he, and not the body, would be sovereign in the other society. Insomuch that if the characters were practically blended, or, remaining practically distinct, thoroughly conflicted, one of the follow- ing results would probably ensue. The member would be- come subject, or else exclusively sovereign, in both com- munities : or to preseiwe his sovereignty in the one, or his part sovereignty in the other, he would renounce his connec- tion ^vith the latter, or with the former society. Wherever a member of a body sovereign in one commu- nity, is also a member of a body sovereign in another, there is the same or a similar difficulty. A state of subjection to the former, and a state of subjection to the latter, may be- come incompatible : just as a state of subjection may be- come incompatible with the independence which is one of the essentials of sovereignty. It not unfi^equently happens, that two or more indepen- dent political societies become subject to a common sove- reign : but that after their union, thi'ough that common sub- jection, they stiU are governed distinctly, and distinguished by their ancient titles. In this case, there is not the diffi- culty suggested above. The monarch or sovereign body 264 The Province of Lect. VI ruling tlie two societies, is one and the same sovereign : and, ^ ' ^ through, their subjection to that common sovereign, they are one society political and independent. The nature It frequently happens, that one society political and inde- site state, or pendent arises from a federal union of several political socie- fodT/cTgo- • rather, that one government political and sovereign vernment: arises from a federal union of several political governments. nature of a By some of the writers on positive international law, such ^confedl- independent political society, or the sovereign government rated states, of such a society, is styled a composite state. But the sove- nen^^on-"" reign government of such a society, might be styled more federacy of aptly, as woll as morc popularlv, a supreme federal government. supreme go- ■^ '^ tj- i ' ±' vernments. It also frequently happens, that several political societies which are severally independent, or several political govern- ments which are severally sovereign, are compacted by a permanent alliance. By some of the writers on positive international law, the several societies or governments, con- sidered as thus compacted, are styled a system of confede- rated states. But the several governments, considered as thus compacted, might be styled more aptly, as well as more popularly, a permanent confederacy of supreme governments. I advert to the nature of a composite state, and to that of a system of confederated states, for the following pur- poses. — It results from positions which I shall try to esta- blish hereafter, that the power of a sovereign is incapable of legal limitation. It also results from positions which I have tried to establish already, that in every society political and independent, the sovereign is one individual, or one body of individuals : that unless the sovereign be one individual, or one body of individuals, the given independent society is either in a state of nature, or is split into two or more inde- pendent political societies. But in a political society styled a composite state, the sovereignty is so shared by various individuals or bodies, that the one sovereign body whereof they are the constituent members, is not conspicuous and easily perceived. In a political society styled a composite state, there is not obviously any party truly sovereign and independent : there is not obviously any party armed with political powers incapable of legal limitation. Accordingly, I advert to the nature of a supreme federal government, to show that the society which it rules is ruled by one sovereign, or is ruled by a party truly sovereign and independent. And adverting to the nature of a composite state, I also advert to the nature of a system of confederated states. For the y urispriidence determined. 265 fallacious resemblance of those widely different objects, tends Lect. vi to produce a confusion which I think it expedient to obviate : ^"^ ^ ^ and, through a comparison or contrast of those widely dif- ferent objects, I can indicate the nature of the former, more concisely and clearly. 1. In the case of a composite state, or a supreme federal government, the several united governments of the several united societies, together with a government common to those several societies, are jointly sovereign in each of those several societies, and also in the larger society arising from the federal union. Or, since the political powers of the common or general government were relinquished and con- ferred upon it by those several united governments, the nature of a composite state may be described more accurately thus. As compacted by the common government which they have concurred in creating, and to which they have severally delegated portions of their several sovereignties, the several governments of the several united societies are jointly sovereign in each and all. It will appear on a moment's reflection, that the common or general government is not sovereign or supreme. It will also appear on a moment's reflection, that none of the several governments is sovereign or supreme, even in the several society of which it is the immediate chief. If the common or general government were sovereign or supreme, the several united societies, though constituting one society, would not constitute a composite state : or, though they would be governed by a common and supreme government, their common and supreme government would not be federal. For in almost every case of independent political society, several political societies, governed by se- veral governments, are comprised by the one society which is political and independent : insomuch that a government supreme and federal, and a government supreme but not federal, are merely distinguished by the following difference. Where the supreme government is not federal, each of the several governments, considered in that character, is purely subordinate : or none of the several governments, considered in that character, partakes oT the sovereignty . But where the supreme government is properly federal, each of the several governments, which were immediate parties to the federal compact, is, in that character, a limb of the sovereign body. Consequently, although they are subject to the so- vereign body of which they are constituent members, those 266 The Province of Lect. VI several governments, even considered as such, are not purely in a state of subjection. — But since those several govern- ments, even considered as such, are not purely in a state of subjection, the common or general government which they have concurred in creating is not sovereign or supreme. Nor is any of those several governments sovereign or supreme, even in the several society of which it is the im- mediate chief. If those several governments were severally sovereign, they would not be members of a composite state : though, if they were severally sovereign, and yet were per- manently compacted, they would form (as I shall show im- mediately) a system of confederated states. To illustrate the nature of a composite state, I will add the following remark to the foregoing general description. — Neither the immediate tribunals of the common or gene- ral government, nor the immediate tribunals of the several united governments, are bound, or empowered, to administer or execute everij command that it may issue. The political powers of the common or general government, are merely those portions of their several sovereignties, which the se- veral united governments, as parties to the federal compact, have relinquished and conferred upon it. Consequently, its competence to make laws and to issue other commands, may and ought to be examined by its own immediate tribunals, and also by the immediate tribunals of the several united governments. And if, in making a law or issuing a parti- cular command, it exceed the limited powers which it de- rives from the federal compact, all those various tribunals are empowered and bound to disobey. — And since each of the united governments, as a party to the federal compact, has relinquished a portion of its sovereignty, neither the im- mediate tribunals of the common or general government, nor the immediate tribunals of the other united governments, nor even the tribunals which itself immediately appoints, are bound, or empowered, to administer or execute every command that it may issue. Since each of the united governments, as a party to the federal compact, has relin- quished a portion of its sovereignty, its competence to make laws and to issue other commands, may and ought to be examined by all those various tribunals. And if it enact a law or issue a particular command, as exercising the so- vereign powers which it has relinquished by the compact, all those various tribunals are empowered and bound to disobey. Jtmsprudence determined. 267 If, then, the general government were of itself sovereign, Lect, ti or if the united governments were severally sovereign, the " ' ^ united societies would not constitute one composite state. The united societies would constitute one independent so- ciety, with a government supreme but not federal ; or a knot of societies severally independent, with governments severally supreme. Consequently, the several united governments as - j forming one aggregate body, or they and the general govern- j ment as forming a similar body, are jointly sovereign in each j of the united societies, and also in the larger society arising \ from the union of all. IS'ow since the political powers of the common or general government are merely delegated to it by the several united governments, it is not a constituent member of the sovereign body, but is merely its subject minister. Consequently, the sovereignty of each of the united societies, and also of the larger society arising from the union of all, resides in the united governments as forming one aggregate body : that is to say, as signifying their joint pleasure, or the joint plea- sure of a majority of their number, agreeably to the modes or forms determined by their federal compact. By that aggregate body, the powers of the general govern- ment were conferred and determined : and by that aggregate body, its powers may be revoked, abridged, or enlarged. — To that aggregate body, the several united governments, though not merely subordinate, are truly in a state of subjection. Otherwise, those united governments would be severally sovereign or supreme, and the united societies would merely constitute a system of confederated states. Besides, since the powers of the general government were determined by that aggregate body, and since that aggregate body is com- petent to enlarge those powers, it necessarily determined the |)0wers, and is competent to abridge the powers, of its own constituent members. For every political power conferred on the general government, is subtracted from the several sovereignties of the several united governments. — From the sovereignty of that aggregate body, we may deduce, as a necessary consequence, the fact which I have mentioned above : namely, that the competence of the general govern- ment, and of any of the united governments, may and ought to be examined by the immediate tribunals of the former, and also by the immediate tribunals of any of the latter. For since the general government, and also the united go- vernments, are subject to that aggregate body, the respective 268 The Province of Lect. VI courts of justice which, thej respectively appoint, ultimately derive their powers from that sovereign and ultimate legisla- ture. Consequently, those courts are ministers and trustees of that sovereign and ultimate legislature, as well as of the subject legislatures by which they are immediately appointed. And, consequently, those courts are empowered, and are even bound to disobey, wherever those subject legislatures exceed the limited powers which that sovereign and ultimate legisla- ture has granted or left them. The supreme government of the United States of America, agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common government, or the government consisting of the congress and the president of the united states, is merely a subject minister of the united states' governments. I believe that none of the latter is properly sovereign or supreme, even in the state or political society of which it is the immediate chief. And, lastly, I believe that the sovereignty of each of the states, and also of the larger state arising from the federal union, resides in the states' governments as forming one aggregate body : meaning by a state's government, not its ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the union apart, is properly sovereign therein. If the several immediate chiefs of the several united states, were respectively single indi- viduals, or were respectively narrow oligarchies, the sove- reignty of each of the states, and also of the larger state arising from the federal union, would reside in those several individuals^ or would reside in those several oligarchies, as forming a collective whole.^^^ 2. A composite state, and a system of confederated states, are broadly distinguished by the following essential differ- ence. In the case of a composite state, the several united societies are one independent society, or are severally subject ^ The Constitution of the United States, or, on the application of the legislatures j or the constitution of their general go- of two-thirds of the several states, shall ! vernment, was framed by deputies from call a convention for proposing amend- the several states in 1787. It may (I ments: which amendments, in either case, I think) be inferred from the fifth article, shall be valid to all intents and purposes, / that the sovereignty of each of the states, as part of this constitution, when ratified I and also of the larger state arising from hi/ the legislatures of three-fourths of the \ the federal union, resides in the states' several states, or b7/ convention in three- j governments as jforming one aggregate fourths thereof.^ See also the tenth 1 body. It is provided by that article, that section of the first article : in which sec- \ 'the congress, whenever two-thirds of tion.someof the disabilities of the several both houses shall deem it necessary, shall states' goyernments are determined ex- propose amendments to this constitution : pressly. y urisprude7tce detervtined. 269 to one sovereign body : which, through its minister the lp^x. yi general government, and through its members and ministers '""^""'^ ' the several united governments, is habitually and generally obeyed in each of the united societies, and also in the larger society arising from the union of all. In the case of a system of confederated states, the several compacted societies are not one society, and are not subject to a common sovereign : or (changing the phrase) each of the several societies is an independent political society, and each of their several go- vernments is properly sovereign or supreme. Though the aggregate of the several governments was the framer of the federal compact, and may subsequently pass resolutions con- cerning the entire confederacy, neither the terms of that compact, nor such subsequent resolutions, are enforced in any of the societies by the authority of that aggregate body. To each of the confederated governments, those terms and resolutions are merely articles of agreement which it spon- taneously adopts : and they owe their legal effect, in its own political society, to laws and other commands which it makes or fashions upon them, and which, of its own authority, it addresses to its own subjects. In short, a system of confede- rated states is not essentially different from a number of independent governments connected by an ordinary alliance. And where independent governments are connected by an ordinary alliance, none of the allied governments is subject to the allied governments considered as an aggregate body : though each of the allied governments adopts the terms of the alliance, and commonly enforces those terms, by laws and commands of its own, in its own independent commu- nity. Indeed, a system of confederated states, and a number of independent governments connected by an ordinary alli- ance, cannot be distinguished precisely through general or abstract expressions. So long as we abide in general expres- sions, we can only af&rm generally and vaguely, that the compact of the former is intended to be perjnanent, whilst the alliance of the latter is commonly intended to be tempo- rary : and that the ends or purposes which are embraced by the compact, are commonly more numerous, and are com- monly more complicated, than those which the alliance con- templates. I believe that the G-erman Confederation, which has succeeded to the ancient Empire, is merely a system of con- federated states. I believe that the present Diet is merely an assembly of ambassadours from several confederated but 270 The Provmce of Lect. VI severally independent governments : that the resolutions of ^""^ ' the Diet are merely articles of agreement which each of the confederated governments spontaneously adopts : and that they owe their legal effect, in each of the compacted com- munities, to laws and commands which are fashioned upon them by its own immediate chief. I also believe that the Sw4ss Confederation was and is of the same nature. If, in the case of the German, or of the Swiss Confederation, the body of confederated governments enforces its own resolu- tions, those confederated governments are one composite state, rather than a system of confederated states. The body of confederated governments is properly sovereign : and to that aggregate and sovereign body, each of its constituent mem- bers is properly in a state of subjection. The limits of sovereign power. The essen- tial differ- ence of a positive law. It follows from the es- sential dif- ference of a positive law, and from the nature of sovereignty and inde- pendent po- litical so- ciety, that the power of a monarch properl^^ so called, or the power of a sove- reign num- ber in its collegiate From the various shapes which sovereignty may assume, or from the various possible forms of supreme government, I proceed to the limits, real and imaginary, of sovereign or supreme power. Subject to the slight correctives which I shall state at the close of my discourse, 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, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set, directly or circuitously, by a monarch or sovereign number, to a person or persons in a state of subjection to its author. i ISTow 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 lec^al limitation. A monarch or sovereign number bound by a legal duty, were subject to a higher or superior sovereign : that is to say, a monarch or sovereign number bound by a legal duty, were sovereign and not sovereign. Supreme power limited by positive law, is a flat contradiction in terms. Nor would a political society escape from legal despotism, although the power of the sovereign were bounded by legal restraints. The power of the superior sovereign immediately imposing the restraints, or the power of some other sovereign /7i7'zsp7'ndence detcrviuicd. 271 superior to tliat superior, would still be absolutely free fr^om the fetters of positiA^e law. For unless the imaguied re- straints were ultimately imposed by a sovereign not in a state of subjection to a higher or superior sovereign, a series of sovereigns ascending to infinity would govern the imagined community. Which is im^DOSsible and absurd. Monarchs and sovereign bodies have attempted to oblige themselves, or to oblige the successors to their sovereign powers. But in spite of the laws which sovereigns have imposed on themselves, or which they have imposed on the successors to their sovereign powers, the position that ' sove- reign power is incapable of legal limitation ' will hold univer- sally or without exception. The immediate author of a law of the kind, or any of the sovereign successors to that immediate author, may abro- gate the law at pleasure. And though the law be not abro- gated, the sovereign for the time being is not constrained to observe it by a legal or political sanction. For if the sove- reign for the time being were legally bound to observe it, that present sovereign would be in a state of subjection to a higher or superior sovereign. As it regards the successors to the sovereign or supreme powers, a law of the kind amounts, at the most, to a rule of positive morality. As it regards its immediate author, it is merely a law by a metaphor. For if we would speak with propriety, we cannot speak of a law set by a man to himself : though a man may adopt a principle as a guide to his own conduct, and may observe it as he would observe it if he were bound to observe it by a sanction. The laws which sovereigns affect to impose upon them- selves, or the laws which sovereigns affect to impose upon their followers, are merely principles or maxims which thev adopt as guides, or which they commend as guides to their successors in sovereigm power. A departiu^e by a sovereign or state from a law of the kind in question, is not illegal. If a law which it sets to its subjects conflict with a law of the kind, the former is leo'allv valid, or le!2'allv bindino-. For example : The sovereign Roman people solemnly vo-f-ed or resolved, that they would never pass, or even take into consideration, what I will venture to denominate a hill of pains and penalties. For though, at the period in ques- tion, the Eoman people were barbarians, they keenly felt a truth which is often forgotten by legislators in nations boasting of refinement : namely, that punishment ought to Lect. TI and sove- reign ca- pacity, is incapable of /eQanimita- tion. Attempts of sovereigns to oblige themselves, or to oblige the succes- sors to their sovereign powers. 272 The Provi7ice of Lect. VI be inflicted agreeably to prospective rules, and not in pur- suance of particular and ex post facto commands. This solemn resolution or vote was passed with the forms of legislation, and was inserted in the twelve tables in the following imperative terms : privilegia ne irroganto. But although the resolution or vote was passed with the forms of legislation, although it was clothed with the expressions appropriate to a law, and although it was inserted as a law in a code or body of statutes, it scarcely was a law in the proper acceptation of the term, and certainly was not a law simply and strictly so called. By that resolution or vote, the sovereign people adopted, and commended to their suc- cessors in the sovereignty, an ethical principle or maxim. The present and future sovereign which the resolution af- fected to oblige, was not bound or estopped by it. Privi- leges enacted in spite of it by the sovereign Eoman people, were not illegal. The Roman tribunals might not have treated them as legally invalid acts, although they conflicted with the maxim, wearing the guise of a law, jprivilegia ne irroganto. Again: By the authors of the union between England and Scotland, an attempt was made to oblige the legisla- ture, which, in consequence of that union, is sovereign in both countries. It is declared in the Articles and Act, that the preservation of the Church of England, and of the Kirk of Scotland, is a fundamental condition of the union : or, in other words, that the Parliament of Great Britain shall not abolish those churches, or make an essential change in their structures or constitutions. Now, so long as the bulk of either nation shall regard its established church with love and respect, the abolition of the church by the British Parliament would be an immoral act ; for it would violate positive morality which obtains with the bulk of the nation, or would shock opinions and sentiments which the bulk of the nation holds. Assuming that the church establishment is commended by the revealed law, the aboli- tion would be irreligious : or, assuming that the continuance of the establishment were commended by general utility, the abolition, as generally pernicious, would also amount to a sin. But no man, talking with a meaning, would call a parliamentary abolition of either or both of the churches an illegal act. For if the parliament for the time being be sovereign in England and Scotland, it cannot be bound legally by that condition of the union which afl'ects to confer y urisprudence determined. 273 immortality upon those ecclesiastical institutions. That Lect, vi condition of the union is not a positive law, but is counsel ^ ' ~" or advice offered by the authors of the union to future su- preme legislatures. By the two examples which I have now adduced, I am The mean- led to consider the meanings of the epithet unconstitutional^ epithet as it is contradistinguished in the epithet illegal, and as it is nnconstitu- applied to conduct of a monarch, or to conduct of a sovereign iseonti adi number in its collegiate and sovereign capacity. The epithet ^^^^^ unconstitutional, as thus opposed and applied, is sometimes thet Uhgai, used with a meaning which is more general and vague, and appiieVto^ is sometimes used with a meaning which is more special condnct^oia and definite. I will begin with the former, to conduct 1. In every, or almost every, independent political society, rd|nnlm- there are principles or maxims which the sovereign habit- berin its ually observes, and which the bulk of the society, or the and?ove- bulk of its influential members, regard with feelings of ap- Jjapa"city probation. Not unfrequently, such maxims are expressly adopted, as well as habitually observed, by the sovereign or state. More commonly, they are not expressly adopted by the sovereign or state, but are simply imposed upon it by opinions prevalent in the community. "Whether they are expressly adopted by the sovereign or state, or are simply imposed upon it by opinions prevalent in the community, it is bound or constrained to observe them by merely moral sanctions. Or (changing the phrase) in case it ventured to deviate from a maxim of the kind in question, it would not ♦ and could not incur a legal pain or penalty, but it probably would incur censure, and might chance to meet with resis- tance, from the generality or bulk of the governed. Now, if a law or other act of a monarch or sovereip-n number conflict with a maxim of the kind to Avhich I' have adverted above, the law or other act may be called unconsti- tutional (in that more general meaning which is sometimes given to the epithet) . For example : The ex post facto sta- tutes which are styled acts of attainder, may be called uncon- stitutional, though they cannot be called illegal. For they conflict with a principle of legislation which parliament has habitually observed, and which is regarded with approbation by the bulk of the British community. In short, when we style an act of a sovereign an unconsti- tutional act (with that more general import which is some- j times given to the epithet), we mean, I believe, this : That ' VOL. I. T The Province of Lect. VI the act is inconsistent with, some given principle or maxim : ~" ' ^ that the given supreme government has expressly adopted ; the principle, or, at least, has habitually observed it : that the bulk of the given society, or the bulk of its influential members, regard the principle with approbation : and that, since the supreme government has habitually observed the principle, and since the bulk of the society regard it with ap- probation, the act in question must thwart the expectations of the latter, and must shock their opinions and sentiments. Unless we mean this, we merely mean that we deem the act in question generally pernicious : or that, without a definite reason for the disapprobation which we feel, we regard the act with dislike. 2. The epithet unconstitutional as applied to conduct of a sovereign, and as used with the meaning which is more special and definite, imports that the conduct in question conflicts with constitutional law. And here I would briefly remark, that I mean by the ex- pression constitutional law, the positive morality, or the com- ; pound of positive morality and positive law, which fixes the : constitution or structure of the given supreme government. I mean the positive morality, or the compound of positive morality and positive law, which determines the character of the person, or the respective characters of the persons, in whom, for the time being, the sovereignty shall reside : and, supposing the government in question an aristocracy or go- ^ vernment of a number, which determines moreover the mode wherein the sovereign powers shall be shared by the consti- tuent members of the sovereign number or body. Now, against a monarch properly so called, or against a sovereign body in its collegiate and sovereign capacity, con- stitutional law is positive morality merely, or is enforced merely by moral sanctions : though, as I shall show here- after, it may amount to positive law, or may be enforced by legal sanctions, against the members of the body considered severally. The sovereign for the time being, or the pre- decessors of the sovereign, may have expressly adopted, and expressly promised to observe it. But whether constitu- tional law has thus been expressly adopted, or simply consists of principles current in the political community, it is merely guarded, against the sovereign, by sentiments or feelings of the governed. Consequently, although an act of the sove- reign which violates constitutional law, may be styled with propriety unconstitutional, it is not an infringement of law yu7dsp7nLdence determined. 275 simply and strictly so called, and cannot be styled witli pro- lect. ti priety illegal. ' ' For example : From tlie ministry of Cardinal Riclielieu do^vn to the great revolution, the king for the time being was virtually sovereign in France. But, in the same country, and during the same j)eriod, a traditional maxim cherished by the coui-ts of justice, and rooted in the affections of the bulk of the people, determined the succession to the throne : It determined that the throne, on the demise of an actual occupant, should invariably be taken by the person vrho then might happen to be heir to it agreeably to the canon of inheritance which was named the Salic law. 'Now, in case an actual king, by a royal ordinance or law, had at- tempted to divert the throne to his only daughter and child, that royal ordinance or law might have been styled with perfect propriety an uncGnstitutional act. It would have conflicted with the traditional maxim which fixed the con- stitution of the monarchy, and which was guarded from infringement by sentiments prevalent in the nation. But illegal it could not have been called : for, inasmuch as the actual king was virtually sovereign, he was inevitably inde- pendent of legal obligation. ISTay, if the governed had re- sisted the unconstitutional ordinance, their resistance would have been illegal or a breach of positive law, though con- sonant to the positive morality which is styled constitutional law, and perhaps to that principle of utility which is the test of positive rules. Again : An act of the British parliament vesting the so- vereignty in the king, or vesting the sovereignty in the king and the upper or lower house, v^ould essentially alter the structure of oui- present su^^reme government, and might therefore be styled with propriety an unconstitutional law. In case the imagined statute were also generally pernicious, and in case it offended moreover the generality or bulk of the nation, it might be styled irreligious and immoral as well as unconstitutional. But to call it illegal were absurd : for if the parliament for the time being be sovereign in the united kingdom, it is the author, directly or circuitously, of all our positive law, and exclusively sets us the measure of legal justice and injustice. ^^^^ It is affirmed by Hobbes, in bis mas- tbe scope of the treatises in which it oc- The mean- ^ ttrly treatises on gorernment, that 'no curs, or eren at the passages by which in^- of 1 iw can be unjust :' which proposition it is immediately followed, we shall find Hobbes's li IS been deemed by many, an immoral that the proposition is neither pernicious proposition, or pernicious paradox. If we look at nor paradoxical, but is merely a truism that -no ^ law can be - unjust.' 276 The Province of Lect. VI Considered severally, the mem- bers of a sovereign body are in a state of subjection to tiie body, and may therefore be legall}' bound, even as members of the body, Just or un- just, justice or injustice, is a term of relative and varying import. But when I affirm tliat the power of a sovereign is inca- pable of legal limitation, I always mean by ' a sovereign,' a monarch properly so called, or a sovereign number in its collegiate and sovereign capacity. Considered collectively, or considered in its corporate character, a sovereign number is sovereign and independent : but, considered severally, the individuals and smaller aggregates composing that sovereign number are subject to the supreme body of which they are component parts. Consequently, though the body is inevi- tably independent of legal or political duty, any of the indi- viduals or aggregates whereof the body is composed may be put in unguarded terms. His meaning is obviously this : that ' no positive law- is legally unjust.' And the decried pro- position, as thus understood, is indis- putably true. For positive law is the measure or test of legal justice and injus- tice : and, consequently, if positive law- might be legally unjust, positive law might be unjust as measured or tried by itself. In the passages immediately fol- lowing, he tells us that positive law may be generally pernicious ; that is to say, may conflict with the Divine law which general utility indicates, and, as mea- sured or tried by that law, may be unjust. He might have added, that it also may be unjust as measured by posi- tive morality, although it must needs be just as measured by itself, and although 'it happen to be just as measured by the law of God. Yor just or unjust, justice or injustice, is a term of relative and varying import. Whenever it is uttered with a determi- nate meaning, it is uttered with relation to a determinate law which the speaker assumes as a standard of comparison. This is hinted by Locke at the end of the division of laws which I have inserted in my fifth lecture ; and it is, indeed, so manifest, on a little sustained reflection, that it hardly needs the authority of that great and venerable name. By the epithet just, we mean that a given object, to which we apply the epithet, accords with a given law to which we refer it as to a test. And as that which is just conforms to a determinate law, justice, is the conformity of a given object to the same or a similar measure : for justice is the abstract term which corresponds to the e-pitliet jtist. By the epithet unjust, we mean that the given object conforms not to the given law. And since the term injustice is merely the corresponding abstract, it signifies the nonconformity of the given and com- pared object to that determinate law which is assumed as the standard of comparison.^ — And since such is the re- lative natui'e of justice and injustice, one and the same act may be just and un- just as tried by different measures. Or (changing the expression) an act may be just as agreeing with a given law, al- though the act itself, and the law with which it agrees, are both of them unjust as compared with a dilFerent rule. For example: Where positive law conflicts with positive morality, that which is just as tried by the former, is also unjust as tried by the latter : or where law or morality conflicts with the law of Grod, that which is just as tried by the human rule, is also unjust as tried by the Divine. Though it signifies conformity or non- conformity to any determinate law, the tevmjustice ovi^ijustice sometimes denotes emphatically, conformity or nonconformi- ty to the ultimate measure or test : namely, the law of God. This is the meaning annexed to justice, when law and justice are opposed : when a positive human rule is styled unjust. And when itisusedwith this meaning, y^s^^ice is nearly equivalent to general utility. The only diiference between them consists in this : that, as agreeing immediately with the law of God, a given and compared action is ^nist ; whilst, as agreeing immediately with the frinci-ple which is the index to the law of God, that given and compared action is generally useful. And hence it arises, that when we style an action just or unjust, we not uncommonly mean that it is generally useful or peruicious.^- 22 The substance of the remainder of edition at the end of lecture V (p. 220, this note, as it stood in the former editions, and following pages. See also note 15, is contained in the note inserted in this p. 205.) — H. C. y 2irisp7'tide7ice determined. ^77 legally bound hj laws of wliicli the body is tbe author. For Lect. yi example : A member of the house of lords, or a member of " the house of commons, may be legally bound by an act of which it is parliament, which, as one of the sovereign legislature, he has ^utnor. concuiTed with others in making. Xay, he may be legally bound by statutes, or by rules made judicially, which have immediately proceeded from subject or subordinate legis- latures : for a law which proceeds immediately from a subject or subordinate legislature is set by the authority of the supreme. And hence an important difference between monarchies or flfovernments of one, and aristocracies or o-ovemments of a number. Against a monarch properly so called, or against a sove- reign number in its collegiate and sovereign capacity, con- stitutional laiv (as I have remarked already) is enforced, or l^rotected from infringement, by merely moral sanctions. Against a monarch properly so called, or against a sovereign number in its collegiate and sovereign capacity, constitu- tional law and the law of nations are nearly in the same predicament. Each is positive morality rather than positive law. The former is guarded by sentiments cuiTent in the given community, as the latter is guarded by sentiments current amongst nations g-enerallv. But, considered severally, the members of a sovereign body, even as members of the body, may be legally bound by laws of which the body is the author, and which regard the constitution of the given supreme government. — In case it be clothed with a legal sanction, or the means of enforcing it judicially be provided by its author, a law set by the body to any of its own members is properly a positive law : It is properly a positive law, or a law strictly so caUed, although it be imposed upon the obliged party as a member of the body which sets it. If the means of enforcing it judicially be not provided by its author, it is rather a rule of posi- tive morality than a rule of positive law. But it wants the essentials of a positive law, not through the character of the party to whom it is set or directed, but because it is not invested with a legal or political sanction, or is a law of imperfect obligation in the sense of the Eoman jurists. — In case the law be invested with a legal or political sanction, and regard the constitution or structure of the given su- preme government, a breach of the law, by the party to whom it is set, is not only imconstitutional, but is also 278 The Province of Lect. VI illegal. Tlie breacli of tlie law is unconstitutional^ inasmuch. as the violated law regards the constitution of the state. The breach of the law is also illegal, inasmuch as the violated law may be enforced by judicial procedure. For example : The king, as a limb of the parliament, might be punishable by act of parliament, in the event of his transgressing the limits which the constitution has set to his authority : in the event, for instance, of his pretend- ing to give to a proclamation of his own the legal effect of a statute emanating from the sovereign legislature. Or the members of either house might be punishable by act of par- liament, if, as forming a limb of the parliament, they ex- ceeded their constitutional powers : if, for instance, they pretended to give that legal effect to an ordinance or resolu- tion of their own body. Where, then, the supreme government is a monarchy or government of one, constitutional law, as against that go- vernment, is inevitably nothing more than positive morality. Where the supreme government is an aristocracy or govern- ment of a number, constitutional law, as against the members of that government, may either consist of positive morality, or of a compound of positive morality and positive law. Against the sovereign body in its corporate and sovereign character, it is inevitably nothing more than positive morality. But against the members considered severally, be they individuals or be they aggregates of individuals, it may be guarded by legal or political, as well as b}^ moral sanctions. In fact or practice, the members considered severally, but considered as members of the body, are commonly free, wholly or partially, from legal or political restraints. For example : The king, as a limb of the parliament, is not re- sponsible legally, or cannot commit a legal injury : and, as partaking in conduct of the assembly to which he immedi- ately belongs, a member of the house of lords, or a member of the house of commons, is not amenable to positive law. But though this freedom from legal restraints may be highly usefal or expedient, it is not necessary or inevitable. Con- sidered severally, the members of a sovereign body, be they individuals or be they aggregates of individuals, may clearly be legally amenable, even as members of the body, to laws which the body imposes. And here I may remark, that if a member considered se- verally, but considered as a member of the body, be wholly y u 7nsprudence dete^nnined. 279 or partially free from legal or political obligation, tliat lect. yi legally irresponsible aggi-egate, or that legally irresponsible ' ' ' individual, is restrained or debarred in two ways fr'om an nnconstitational exercise of its legally unlimited power. 1. Like tlie sovereign body of which, it is a member, it is obliged or restrained morally : that is to say, it is controlled by opinions and sentiments current in the given commu- nity. 2. If it afPected to issue a command which it is not empowered to issue by its constitutional share in the sove- reigmty, its unconstitutional command would not be legally binding, and disobedience to that command would therefore not be illegal. Nay, although it would not be responsible legally for thus exceeding its powers, those whom it com- missioned to execute its unconstitutional command, would probably be amenable to positive law, if they tried to ac- complish their mandate. For example : If the king or either of the honses, by way of x^roclamation or ordinance, affected to establish a law equivalent to an act of parliament, the pretended statute would not be legally binding, and dis- obedience to the pretended statute woiild therefore not be illegfal. And althouo-h the kino^ or the house would not be responsible legally for this supposed violation of constitu- tional law or morality, those whom the king or the house might order to enforce the statute, wonld be liable civilly or criminally, if they attempted to execute the order. I have afSj^med above, that, taken or considered severally, all the individuals and aggregates composing a sovereign number are subject to the supreme body of which they are component parts. By the matter contained in the last pa- ra gra23h, I am led to clear the proposition to which I have now adverted, fr-om a seeming difficulty. Generally speaking, if a member of a sovereign body, taken or considered severally, be not amenable to positive law, it is merely as a member of the body that he is free from legal obligation. Generally speaking, he is bound, in his other characters, by legal restraints. But in some of the mixed aristocracies which are styled limited monarchies, the so called limited monarch is exempted or absolved completely from legal or political duty. For example : According to a maxim of the English law, the king is incapable of commit- tmg wrong : that is to say, he is not responsible legally for aught that he may please to do, or for any forbearance or omission. But though he is absolved completely from legal or 28o The Province of Lect. VI political duty, it cannot be thence inferred that the king is ' ^ sovereign or supreme, or that he is not in a state of subjec- tion to the sovereign or supreme parliament of which he is a constituent member. Of the numerous proofs of this negative conclusion, which it were easy to produce, the following will amply suffice. — 1. Although he is free in fact from the fetters of positive la w, he is not incapable of legal obligation. A law of the sovereign parliament, made with his own assent, might ren- der himself and his successors legally responsible. But a monarch properly so called, or a sovereign number in its corporate and sovereign character, cannot be rendered, by any contrivance, amenable to positive law. — 2. If he affected to transgress the limits which the constitution has set to his authority, disobedience on the part of the governed to his unconstitutional commands, would not be illegal : whilst the ministers or instruments of his unconstitutional commands, would be legally amenable, for their unconstitutional obe- dience, to laws of that sovereign body whereof he is merely a limb. But commands issued by sovereigns cannot be dis- obeyed by their subjects without an infringement of positive law : whilst the ministers or instruments of such a sovereign command, cannot be legally responsible to any portion of the community, excepting the author of their mandate. — 3. He habitually obeys the laws set by the sovereign body of which he is a constituent member. If he did not, he must speedily yield his office to a less refractory successor, or the British constitution must speedily expire. If he habitually broke the laws set by the sovereign body, the other members of the body would probably devise a remedy : though a pro- spective and definite remedy, fitted to meet the contingency, has not been provided by positive law, or even by constitu- tional morality. Consequently, he is bound by a cogent sanction to respect the laws of the body, although that cogent sanction is not predetermined and certain. A law which is set by the opinion of the upper and lower houses (besides a law which is set by the opinion of the community at large) constrains him to observe habitually the proper and positive laws which are set by the entire parliament. — But habitually obeying the laws of a determinate and sovereign body, he is not properly sovereign : for such* habitual obe- dience consists not with that independence which is one of the essentials of sovereignty. And habitually obeying the laws of a certain and supreme body, he is really in a state y urisprude7ice determined. 281 of subjection to that certain and supreme "body, though the Lect. vt other members of the body, together with the rest of the ' ' ^ community, are commonly styled his subjects. It is mainly through the forms of procedure which obtain in the courts of justice, that he is commonly considered sovereign. He is clothed by the British constitution, or rather by the par- liament of which he is a limb, with subordinate political powers of administering the law, or rather of supervising its administration. Infring^ements of the law are, therefore, in the style of procedure, offences against the king. In truth, they are not offences against the king, but against that sovereign body of king, lords, and commons, by which our positive law is directly or circuitously established. And to that sovereign body, and not to the king, the several members of the body, together with the rest of the com- munity, are truly subject. / But if sovereign or supreme power be incapable of legal The nature limitation, or if every supreme government be legally abso- lute, wherein (it may be asked) doth political liberty consist, liberty, to- and how do the supreme governments which are commonly ^he sup- deemed free, differ from the supreme governments which are posedditfer- ence be- commonly deemed despotic? tween free I answer, that political or civil liberty is the liberty from govern?*"''^ legal obligation, which is left or granted by a sovereign ments. government to any of its own subjects : and that, since the power of the government is incapable of legal limitation, the government is legally free to abridge their political li- berty, at its own pleasure or discretion. I say it is legally free to abridge their political liberty, at its own pleasure or discretion. For a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects : and it is bound by the law of God^ as known through the principle of utility, not to load them with legal duties which general utility condemns. — There are kinds of liberty from legal obligation, which will not quadrate with the foregoing description : for persons in a state of nature are independent of political duty, and in- dependence of political duty is one of the essentials of so- vereignty. But 'political or civil liberty supposes political society, or supposes a ttoXls or civitas : and it is the liberty from legal obligation which is left by a state to its subjects, rather than the liberty from legal obligation which is inhe- rent in sovereign power. Political or civil liberty has been erected into an idol, and 282 The P7'ovince of Lect. VI extolled with, extravagant praises bj doting and fanatical worshippers. But political or civil liberty is not more worthy of eulogy than political or legal restraint. Political or civil ! liberty, like political or legal restraint, may be generally use- / ful, or generally pernicious ; and it is not as being liberty, but as conducing to the general good, that political or civil liberty is an object deserving applause. To the ignorant and bawling fanatics who stun you with their pother about liberty, political or civil liberty seems to be the principal end for which government ought to exist. But the final cause or purpose for which government ought to exist, is the furtherance of the common weal to the great- est possible extent. And it must mainly attain the purpose for which it ought to exist, by two sets of means : jirsi^ by conferring such rights on its subjects as general utility com- mends, and by imposing such relative duties (or duties cor- responding to the rights) as are necessary to the enjoyment of the former : secondly , by imposing such absolute duties {or by imposing such duties without corresponding rights) as tend to promote the good of the political community at large, although they promote not specially the interests of determinate parties. Now he who is clothed with a legal right, is also clothed with a political liberty : that is to say, he has the liberty from legal obligation, which is necessary to the enjoyment of the right. Consequently, in so far as it attains its appropriate purpose by conferring rights upon its subjects, government attains that purpose through the medium of political liberty. But since it must impose a duty wherever it confers a right, and should also impose duties which have no corresponding rights, it is less through, the medium of political liberty, than through that of legal restraint, that government must attain the purpose for which, it ought to exist. To say that political liberty ought to be its principal end, or to say that its principal end ought to be legal restraint, is to talk absurdly : for each is merely a mean to that furtherance of the common weal, which is the only ultimate object of good or beneficent sovereignty. But though both propositions are absurd, the latter of the two absurdities is the least remote from the truth. — ^As I shall show hereafter, political or civil liberties rarely exist apart from corresponding legal restraints. Where persons in a state of subjection are free from legal duties, their liberties (generally speaking) would be nearly useless to themselves, unless tbey were protected in the enjoyment of their liberties. Jti idsprtiden ce determ ined. 283 by legal duties on their fellows : that is to say, unless they lect. vi had legal rights (importing such duties on their fellows) to ^ those political liberties which are left them b}^ the sovereign government. I am legally free, for example, to move from place to place, in so far as I can move from place to place consistently with my legal obligations : but this my politi- cal liberty would be but a sorry liberty, unless my fellow- subjects were restrained by a political duty from assaulting and imprisoning my body. Through the ignorance or negli- gence of a sovereign government, some of the civil liberties which it leaves or grants to its subjects, may not be pro- tected against their fellows by answering legal duties : and some of those civil liberties may perhaps be protected suffi- ciently by religious and moral obligations. But, speaking generally, a political or civil liberty is coupled with a legal right to it : and, consequently, political liberty is fostered by that very political restraint from which the devotees of the idol liberty are so fearfully and blindly averse. From the nature of political or civil liberty, I turn to the supposed difference between free and despotic governments. Every supreme government is/ree from legal restraints : or (what is the same proposition dressed in a different jDhrase) ever supreme government is legally despotic. The distinc- tion, therefore, of governments into free and desjjotic, can hardly mean that some of them are freer from restraints than others : or that the subjects of the governments which are denominated free, are protected against their governments by positive law. 'Nor can it mean that the governments which are denomi- nated free, leave or grant to their subjects 7nore of political liberty than those which are styled despotic. For the epithet free importing praise, and the ej)ithet despotic importing blame, they who distinguish governments into free and despotic, suppose that the first are better than the second. But inasmuch as political liberty may be generally useful or pernicious, we cannot infer that a government is better than Political or civil liberties are left or are burthened with the relative duty* granted by sovereigns, in two ways : But a political or civil liberty left or n'amely, through permissions coupled granted to a subject, may be merely pro- ■with commands, or through simple per- tected against his fellows by religious - missions. If a subject possessed of a and moral obligations. In other words, liberty be clothed with a legal right to the subject possessed of the political li- | it, the liberty was granted by the sove- berty may not be clothed with a legal reign through a permission coupled with right to it. And, on that supposition, a command: a permission to the subject the political or civil liberty was left or who is clothed with the legal right, and a granted to the subject through a simple command to the subject or subjects who permission of the sovereign or state. 284 The Province of Lect. VI another government, because the sum of the liberties which the former leaves to its subjects, exceeds the sum of the liberties which are left to its subjects by the latter. The excess in the sum of the liberties which the former leaves to its subjects, may be purely mischievous. It may consist of freedom from restraints which are required by the common weal ; and which the government would lay upon its subjects, if it fulfilled its duties to the Deity. In consequence, for example, of that mischievous freedom, its subjects may be guarded inadequately against one another, or against attacks from external enemies. They who distinguish governments into free and despotic, probably mean this: The rights which a government confers, and the duties which it lays on its subjects, ought to be conferred and im- posed for the advancement of the common weal, or with a view to the aggregate happiness of all the members of the society. But in every political society, the government deviates, more or less, from that ethical principle or maxim. In conferring rights and imposing duties, it more or less disregards the common or general weal, and looks, with partial affection, to the peculiar and narrower interests of a portion or portions of the community. — Now the governments which deviate less from that ethical principle or maxim, are better than the governments which deviate more. But, ac- cording to the opinion of those who make the distinction in question, the governments which deviate less from that ethical principle or maxim, are f ovular governments (in the largest sense of the expression) : meaning by sl popular govern- ment (in the largest sense of the expression), any aristocracy (limited monarchy or other) which consists of such a number of the given political community as bears a large proportion to the number of the whole society. For it is supposed by those who make the distinction in question, that, where the government is democratical or popular, the interests of the sovereign number, and the interests of the entire community, are nearly identical, or nearly coincide : but that, where the government is properly monarchical, or where the supreme powers reside in a comparatively few, the sovereign one or number has numerous sinister interests, or interests which are not consistent with the good or weal of the general. — According, therefore, to those who make the distinction in question, the duties which a government of many lays upon its subjects, are more consonant to the general good than Jurisprudence determined. 285 the duties wtLich. are laid upon its subjects by a government Lect.yi of one or a few. Consequently, tbougb it leaves or grants ' not to its subjects more of political liberty tban is left or granted to its subjects by a government of one or a few, it leaves or grants to its subjects more of the political liberty ii^hicli conduces to the common weal. But, as leaving or grant- ^■ ing to its subjects more of that useful liberty, a government of many may be styled /ree ; whilst, as leaving or granting to its subjects less of that useful liberty, a government of one or a few may be styled not free, or may be styled despotic or absolute. Consequently, a free government, or a good go- vernment, is a democratic al or popular government (in the largest sense of the expression) : whilst a despotic govern- ment, or 2b had government, is either a monarchy properly so called, or any such narrow aristocracy (limited monarchy or other) as is deemed an oligarchy. They who distinguish governments into free and despotic, are therefore lovers of democracy. By the epithet free, as applied to governments of many, they mean that govern- ments of many are comparatively good : and by the epithet despotic, as applied to monarchies or oligarchies, they mean that monarchies or oligarchies are comparatively had. The epithets /ree and despotic are rarely, I think, employed by the lovers of monarchy or oligarchy. If the lovers of monarchy or oligarchy did employ those epithets, they would apply the epithet free to governments of one or a few, and the epithet despotic to governments of many. For they think the former comparatively good, and the latter comparatively had; or that monarchical or oligarchical governments are better adapted than popular, to attain the ultimate purpose for which govern- ments ought to exist. They deny that the latter are less misled than the former, by interests which are not consistent with the common or general weal : or, granting that excel- lence to governments of many, they think it greatly out- weighed by numerous other excellencies which they ascribe to governments of one or to governments of a few. But with the respective merits or demerits of various forms of government, I have no direct concern. I have examined the current distinction between free and despotic govern- ments, because it is expressed in terms which are extremely inappropriate and absurd, and which tend to obscure the independence of political or legal obligation, that is common to sovereign governments of all forms or kinds. That the power of a sovereign is incapable of legal limita- ^hy it 286 The Province of Lect. VI doubted, that the power of a sovereie:n is incapable of lea;al limit- ation. The propo- sition is as- serted ex- pressly b_v ren owned political writers of opposite parties or sects. tion, lias been doubted, and even denied. But the diffieultj, like thousands of others, probably arose from a verbal ambi- guity. — The foremost individual member of a so-called limited monarchy, is styled improperly monarch or sovereign. 'Now the power of a monarch or sovereign, thus improperly so styled, is not only capable of legal limitations, but is some- times actually limited by positive law. But monarchs or sovereigns, thus improperly so styled, were confounded with monarchs, and other sovereigns, in the proper acceptation of the terms. And since the power of the former is capable of legal limitations, it was thought that the power of the latter might be bounded by similar restraints. Whatever may be its origin, the error is remarkable. For the legal independence of monarchs in the proper accepta- tion of the term, and of sovereign bodies in their corporate and sovereign capacities, not only follows inevitably from the nature of sovereign power, but is also asserted expressly by renowned political writers of opposite parties or sects : by celebrated advocates of the governments which are decked with the epithet /ree, as by celebrated advocates of the go- vernments which are branded with the epithet despotic. ' If it be objected (says Sidney) that I am a defender of arbi- trary powers, I confess I cannot comprehend how any society can be established or subsist without them. The difference between good and ill governments is not, tha,t those of one sort have an arbitrary power which the others have not ; for they all have it ; but that in those which are well constituted, this power is so placed as it may be beneficial to the people.' ' It appeareth plainly (says Hobbes) to my understanding, that the soveraign power, whether placed in one man, as in monarchy, or in one assembly of men, as in popular and aristocraticall commonwealths, is as great as men can be imagined to make it. And though of so unlimited a power men may fancy many evill consequences, yet the consequence of the want of it, which is warre of every man against his neighbour, is much worse. The condition of man in this life shall never be without inconveniences : but there hap- peneth in no commonwealth any great inconvenience, but what proceeds from the subjects' disobedience. And whoso- ever, thinking soveraign power too great, will seek to make it lesse, must subject himselfe to a power which can limit it : that is to say, to a greater.' — ' One of the opinions (says the same writer) which are repugnant to the nature of a com- monwealth, is this : that he who hath the soveraign power is y tirisprudence determiiied. 287 subject to the civiJI lawes. It is true that all soveraigns are lect. yi * subject to the lawes of nature ; because such lawes be Divine, ' ' '' and cannot by any man, or by any commonwealth, be abro- gated. But to the civill lawes, or to the lawes which the soveraign maketh, the soveraign is not subject : for if he were subject to the civill lawes, he were subject to himselfe ; which were not subjection, but freedom. The opinion now in question, because it setteth the civill lawes above the soveraign, setteth also a judge above him, and a power to punish him : which is to make a new soveraign ; and, again, for the same reason, a third to punish the second ; and so continually without end, to the confusion and dissolution of the com- monwealth.' — ' The difference (says the same writer) between the kinds or forms of commonwealth, consisteth not in a difference between their powers, but in a difference between their aptitudes to produce the peace and security of the people : which is their end.' (») By his modern censors, French, G-er- man, and even English, Hobbes's main design in his various treatises on politics, is grossly and thoroughly mistaken. With a marvelloiis ignorance of the writings which they imptidently presume to condemn, they style him 'the apolo- gist of tyranny : ' meaning by that rant, that his main design is the defence of monarchical government. Now, though he prefers monarchical, to popular or oli- garchical government, it is certain that his main design is the establishment of these propositions : 1. That sovereign power, whether it reside in one, or in nuiny or a few, cannot be limited by positive law : 2. That a present or es- tablished government, he it a government of one, or a government of numy or a few, cannot be disobeyed by its subjects con- sistently with the common weal, or con- sistentl}^ with the law of G-od as known through utility or the scriptures. — That his principal purpose is not the defence of monarchy, is sufficiently eAanced by the following passages from his Levia- than. ' The prosperity of a people ruled by an aristocraticall or democraticall assembly, cometh not from aristocracy or democracy, but from the obedience and concord of the subjects : nor do the people flourish in a monarchy, because they are ruled by one man, but because they obey him. Take away in a state of any kind, the obedience, and consequently the concord of the people, and they shall not only not floxunsh, hut in short time be dissolved. And. they that go about by disobedience to doe no more than re- forme the commonwealth, shall find that they doe thereby destroy it.' ' In mon- arcliy one man is supreme ; and all other men who have power in the state, have it by his commission, and during his pleasure. In aristocracy or democracy there is one supreme assembly ; which supreme assembly hath the same un- limited power that in monarchy be- longeth to the monarch. And which is v- the best of these three kinds of govern- ment, is not to be disputed there where any of them is already established.' So many similar passages occur in the same treatise, and also in his treatise Che, that they who confidently style him 'the apologist of tyranny or monarchy,' must have taken their notion of his purpose from mere hearsay. A dip here or there into either of the decried books, would have led them to withhold their sentence. To those who have really read, although in a cursory manner, these the most lucid and easy of profound and elaborate compositions, the current conception of their object and tendency is utterly laughable. The capital errors in Hobbes's political treatises, are the following. — 1. He in- culcates too absolutely the religious ob- ligation of obedience to present orestab* lished government. He makes not the requisite allowance for the anomalous and excepted cases wherein disobedience is counselled by that very principle of utility which indicates the duty of sub- mission. Writing in a season of civil 288 The Province 0/ Lect. VI Before I discuss tlie origin of political government and , A sovereio-n ^^^^^^J? I briefly examine a topic allied to tlie liberty of govern- ment of sovereigns from political or legal restraints. discord, or writing in apprehension of its approach, be naturally fixed his at- tention on the glaring mischiefs of resis- tance, and scarcely adverted to the mis- chiefs which obedience occasionally en- genders. And although his integrity was not less remarkable than the gigantic strength of his understanding, we may presume that his extreme timidity some- what corrupted his judgment, and inclined him to insist unduly upon the evils of rebellion and strife. — 2. Instead of di- rectly deriving the existence of political government, from a perception by the bulk of the governed of its great and ^ ■ obvious expediency, he ascribes the origin ^ of sovereignty, and of independent poli- tical society, to a fictitious agreement or covenant. He imagines that the future subjects covenant with one another, or that the future subjects covenant with the future sovereign, to obey without reserve every command of the latter: And of this imaginary covenant, immediately preceding the formation of the political government and community, the religious duty of the subjects to render unlimited submission, and the divine right of the sovereign to exact and receive such sub- mission, are, according to Hobbes, neces- sary and permanent consequences. He supposes, indeed, that the subjects are induced to make that agreement, by their perception of the expediency of govern- ment, and by their desire to escape from anarchy. But, placing his system im- mediately on that interposed figment, instead of resting it directly on the ulti- mate basis of utility, he often arrives at his conclusions in a sophistical and quibbling manner, though his conclu- sions are commonly such as the principle of utility will warrant. The religious duty of the subjects to render unlimited obedience, and the divine right of the sovereign to exact and receive such obedience, cannot, indeed, be reckoned amongst those of Hobbes's conclusions which that principle will justify. In truth, the duty and the right cannot be inferred logically even from his own fiction. For, according to his own fiction, the subjects were induced to promise obedience, by their perception of the utility of government: and, since their inducement to the promise was that per- ception of utility, they hardly promised to obey in those anomalous cases wherein the evils of anarchy are surpassed by the evils of submission. And though they promised to obey even in those cases, they are not religiously obliged to render unlimited obedience : for, as the principle of general utility is the index to religious obligations, no religious obligation can possibly arise from a promise whose tendency is generally pernicious. Besides, though the subject founders of the politi- cal community were religiously obliged by their mischievous promise, a religious olDligation would hardly be imposed upon their followers, by virtue of a mischievous agreement to which their followers were strangers. The last objection, however, is not exclusively applicable to Hobbes's peculiar fiction. That, or a like objection, may be urged against all the romances which derive the existence of government from a fancied original contract. Whether we suppose, with Hobbes, that the sub- jects were the only promisers, or we suppose, with others, that the sovereign also covenanted ; whether we suppose, with Hobbes, that they promised un- limited obedience, or we suppose, with others, that their promise contained re- servations ; we can hardly suppose that the contract of the founders, unless it be presently useful, imposes religious obli- gations on the present members of the community. If these two capital errors be kept in mind by the reader, Hobbes's extremely celebrated but extremely neglected trea- tises may be read to great advantage. I know of no other writer (excepting' our great contemporary Jeremy Bentham) who has uttered so man}- truths, at once new and important, concerning the ne- cessary structure of supreme political government, and the larger of the neces- sary distinctions implied by positive law. And he is signally gifted with the talent, peculiar to writers of genius, of inciting the mind of the student to active and original thought. The authors of the antipathy with which he is commonly regarded, were the papistical clergy of the Eoman Catholic Church, the high church clergy of the Church of England, and the Presbyterian clergy of the true blue complexion. In matters ecclesiastical (a phrase of im- certain meaning, and therefore of mea- sureless compass), independence of secu- lar authority was more or less affected by churchmen of each of those factions. In other words they held that their own y itrisprtidence determined. 289 A sovereign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no Lect. VI Uc^al rights (in tlie proper acceptation of the term) against its soveiSg^n govern- ment of a oivn subjects. church was coordinate with the secular government : or that the secular govern- ment was not of itself supreme, hut rather partook in the supreme powers with one or more of the clerical order. Hobbes's unfailing loyalty to the present temporal sovereign, was alarmed and offended by this anarchical pretension : and he repelled it "«dth a weight of reason, and an aptness and pungency of expression, which the as- piring and vindictive priests did bitterly feel and resent. Accordingly, they as- sailed him with the poisoned weapons which are ministered by malignity and cowardice. All of them twitted him (agreeably to their wont) with flat athe- ism : whilst some of them aifected to style him an apologist of tyranny or misrule, and to rank him with the per- verse writers (Machiavelli. for example) who really have applauded tyranny main- tained by ability and courage. By these calumnies, those conspiring and potent factions blackened the reputation of their common enemy. And so deep and en- during is the impression which they made upon the public mind, that ' Hobbes the atheist,' or ' Hobbes the apologist of tyranny,' is still regarded ^\'ith pious, or with republican horror, by all but the extremely few who have ventured to ex- amine his wi'itings. Of positive atheism ; of mere scepticism concerning the existence of the Deity ; or of, what is more impious and mis- chievous than either, a religion imputing to the Deity human infirmities and vices ; there is not, I believe, in any of his writings, the shadow of a shade. It is true that he prefers monarchical (though he intimates his preference rarely), to popular or oligarchical govern- ment. If, then, tyranny be synonymous with monarchy, he is certainly an apolo- gist and fautor of tyranny, inasmuch as he inclines to the one, rather than the many or the few. But if t^Tanny be synonymous with misrule, or if tyranny be specially synonymous with monar- chical misrule, he is not of the apologists and fautors of tyranny, but may rank with the ablest and most zealous of its foes. Scarcely a single advocate of free or popular institutions, even in these latter and comparatively enlightened ages, perceives and inculcates so clearly and earnestly as he, the principal cause VOL. I. U and preventive of tyrannous or bad go- vernment. The principal cause of tyran- nous or bad government, is ignorance, on the part of the multitude, of sound poli- tical science (in the largest sense of the expression) : that is to say, 'political (£conomy, with the two great branches of ethics, as well as politics (in the strict acceptation of the term). And if such be the principal cause of tyrannous or bad government, the principal preventive of the evil must lie in the diffusion of such knowledge throughout the mass of the community. Compared with this, the best political constitution that the wit of man could devise, were surely a poor security for good or beneficent rule. — Now in those departments of his treatises on politics, which are con- cerned M-ith ' the office (or duty) of the sovereign,' Hobbes insists on the follow- ing propositions : That good and stable government is simply or nearly impossi- ble, imless the fundamentals of political science be koiown by the bulk of the peo- ple : that the bidk of the people are as capable of receiving such science as the loftiest and proudest of their superiors in station, wealth, or learning : that to provide for the diffusion of such science throughout the bulk of the people, may be classed with the weightiest of the duties which the Deity lays upon the so- vereign: that he is bound to hear their complaints, and even to seek their ad^^ce, in order that he may better understand the nature of their wants, and may bet- ter adapt his institutions to the advance- ment of the general good : that he is bound to render his laws as compendious and clear as possible, and also to pro- mulge a knowledge of their more im- portant provisions through every possible channel : that if the bulk of his people know their duties imperfectly, for want of the instruction which he is able and bound to impart, he is responsible reli- giously for all their breaches of the duties whereof he hath left them in ignorance. In regard to the respective aptitudes of the several forms of government to accomplish the ultimate purpose for which government ought to exist, Hobbes's opinion closely resembles the doctrine, which, about the middle of the eighteenth century, was taught by the French philo- 290 The Pi^ ovine e of Lect. VI number in its colle- giate and ' Every legal right is tlie creature of a positive law : and it answers to a relative duty imposed by that positive law, and incumbent on a person or persons other than the person or sophers who are styled emphatically the (Economists. — In order, say the (Eco- nomists, to the being of a good govern- ment, two things must preexist : 1 . Knowledge by the bulk of the people, of the elements of political science (in the largest sense of the expression) : 2. A numerous body of citizens versed in political science, and not misled by interests conflicting with the common weal, . who may shape the political opinions, and steer the political conduct, of the less profoundly informed, though instructed and rational multitude. — Without that knowledge in the bulk of the people, and without that numerous body of ' gens himineux^ the government, say the (Economists, will surely be bad, be it a government of one or a few, or be it a government of many. If it be a government of one or a few, it will con- sult exclusively the peculiar and narrow interests of a portion or portions of the community : for it will not be constrained to the advancement of the general or common good, by the general opinion of a duly instructed society. If it be a go- vernment of many, it may not be diverted from the advancement of the general or common good, by partial and sinister regard for peculiar and narrow interests : but, being controlled by the general opinion of the society, and that society not being duly instructed, it will often be turned from the paths leading to its appropriate end, by the restive and tyran- nous prejudices of an ignorant and asi- nine multitude. — But, given that know- ledge in the bulk of the people, and given that numerous body of ' ligkt-difiusing citizens,' the government, say the (Econo- mists, let the form be what it may, will be strongly and steadily impelled to the furtherance of the general good, by the sound and commanding morality obtain- ing throughout the community. And, for numerous and plausible reasons (which my limits compel me to omit), they affirm, that, in any society thus duly instructed, monarchical government would not only be the best, but would surely be chosen by that enlightened community, in preference to a govern- ment of a few, or even to a government of many. Such is the opinion (stated briefly, and without their peculiar phraseology) which was taught by Quesnai and the other (Economists, about the middle of the last century. And such is also the opinion (although he conceived it less clearly, and less completely, than they) which was published by their great pre- cursor, in the middle of the century pre- ceding. The opinion taught by the (Economists is rather, perhaps, defective, than posi- tively erroneous. Their opinion, perhaps, is sound, so far as it reaches : but they leave an essential consideration uncan- vassed and nearly untouched. — In a political community not duly instructed, a government good and stable is, I be- lieve, impossible : and in a political com- munity duly instructed, monarchy, I in- cline to believe, were better than democ- racy. But in a political community not duly instructed, is not popular govern- ment, with all its awkward complexness, less inconvenient than monarchy ? And, unless the government be popular, can a political community not duly instructed, emerge from darkness to light ? from the ignorance of political science, which is the principal cause of misrule, to the knowledge of political science, which were the best security against it ? — To these questions, the (Economists hardly advert: and, unhappily, the best of pos- sible governments for a society already enlightened, is, when compared with these, a question of little importance. The ^ (Economists, indeed, occasionally admit, ' que dans Petat cCignorance I'au- torite est plus dangereuse dans les mains d'un seul, qu'elle ne Test dans les mains de plusieurs.' But with this considera- tion they rarely meddle. They commonly infer or assume, that, since in the state, of ignorance the government is inevitably the form of the government, during bad. that state, is a matter of consummate indifference. Agreeing with them in niost of their premises, I arrive at an inference extremely remote from theirs ; namely, that in a community already en- lightened, the form of the government were nearly a matter of indifference ; but that where a community is still in the state of ignorance, the form of the go- vernment is a matter of the highest im- portance. The political and ceconomical system of Quesnai and the other (Economists, is stated concisely and clearly by M. Mercier de la Eiviere in his ' L'Ordre Naturel et Essentiel des Soci^tes PoU- tiaues.' y ttrisprudence detennmed. 291 persons in whom, the right resides. To every legal right, Lect.vi there are therefore three parties : The sovereign government of one or a number which sets the positive law, and which through the positive law confers the legal right, and imposes the relative duty : the person or persons on whom the right IS conferred : the person or persons on whom the duty is imposed, or to whom the positive law is set or directed. — As I shall show hereafter, the person or persons invested with ^'^ the right, are not necessarily members of the independent political society wherein the author of the law is sovereign or suj)reme. The person or persons invested with the right, may be a member or members, sovereign or subject, of an- other society political and independent. But (taking the proposition with the slight correctives which I shall state hereafter) the person or persons on whom the duty is im- posed, or to whom the law is set or directed, are necessarily members of the independent political society wherein the author of the law is sovereign or supreme. For unless the party burthened with the duty were subject to the author of the law, the party would not be obnoxious to the legal or political sanction by which the duty and the right are re- spectively enforced and protected. — A government can hardly impose legal duties or obligations upon members of foreign societies : although it can invest them with legal rights, by imposing relative duties upon members of its own community. A party bearing a legal right, is not necessarily burthened mth a legal trust. Consequently, a party may bear and exercise a legal right, though the party cannot be touched by the might or power of its authoi . But unless the opposite party, or the party burthened with the relative duty, could be touched by the might of its author, the right and the relative duty, with the law which confers and imposes them, were merely nominal and illusory. And (taking the propo- sition with the slight correctives which I shall state here- after) a person obnoxious to the sanction enforcing a positive law, is necessarily subject to the author of the law, or is necessarily a member of the society wherein the author is sovereign. It follows from the essentials of a l^gal right, that a sove- reign government of one, or a sovereign government of a number in its collegiate and sovereign capacity, has no legal rights (in the |)roper acceptation of the term) against its own subjects. To every legal right, there are three several parties : 1 292 The Provmce of Lect.vi namely, a party bearing tlie right; a party burthened with ^ ' ' the relative duty ; and a sovereign government setting the law through which the right and the duty are respectively . conferred and imposed. A sovereign government cannot acquire rights through la.ws set by itself to its own subjects. \ A man is no more able to confer a right on himself, than he is able to impose on himself a law or duty. Every party \bearing a right (divine, legal, or moral) has necessarily ac- quired the right through the might or power of another : that is to say, through a law and a duty (proper or improper) laid by that other party on a further and distinct party. Consequently, if a sovereign government had legal rights against its own subjects, those rights were the creatures of positive laws set to its own subjects by a third person or body. And, as every positive law is laid by a sovereign government on a person or persons in a state of subjection to itself, that third person or body were sovereign in that community whose own sovereign government bore the legal rights : that is to say, the community were subject to its own sovereign, and were also subject to a sovereign con- ferring rights upon its own. Which is impossible and absurd.^^^ But so far as they are bound by the law of God to obey their temporal sovereign, a sovereign government has rights divine against its own subjects : rights which are conferred t Rio-ht is often been affirmed that ' right who owe their legal rights to the might might.' is might,' or that ' might is right.' But and pleasure of their sovereign. this paradoxical proposition (a great If it mean that right and might are favourite with shallow scoffers and buf- one and the same thing, or are merely foons) is either a flat truism affectedly different names for one and the same and darkly expressed, or is thoroughly object, the proposition in question is also false and absurd. false and absurd. My physical ability If it mean that a party who possesses to move about, when my body is free a right possesses the right through from bonds, may be called ww^'/i?^ or j9(9wer, might or power of his own, the proposi- but cannot be called a right : though my tion is false and absurd. For a party ability to move about, without hindrance who possesses a right necessarily pes- from 7/ou,m&j doubtless he styled a right, sesses the right through the might or with perfect precision and propriety, if power of another : namely, the author I owe the ability to a law imposed upon of the law by which the right is conferred, you by another. and by which the duty answering to the If it mean that every right is a crea- right is laid on a third and distinct party, ture of might or power, the proposition Speaking generally, a person who is is merely a truism disguised in para- clothed with a right is weak rather than doxical language. For every right (di- mighty ; and unless he were shielded vine, legal, or moral) rests on a relative from harm by the might of the author duty : that is to say, a duty lying on a of the right, he would live, by reason of party or parties other than the party or his weakness, in ceaseless insecurity and parties in whom the right resides. And, alarm. For example : Such is the pre- manifestly, that relative duty would not dicament of persons clothed with legal be a duty substantially, if the law which rights, who are merely subject members affects to impose it were not sustained of an independent political society, and by might. y 2trispriidence determined. 293 Tipon itself, througli duties whicli are laid uiDon its subjects, by laws of a common superior. And so far as the members of its own community are severally constrained to obey it by the opinion of the community at large, it has also moral I will briefly remark before I conclude the note, that ' right' has two meanings which ought to be distinguished carefully. The noun substantive ' a right ' signi- fies that which jurists denominate ' a faculty :' that which resides in a deter- minate party or parties, by virtue of a given law ; and which avails against a party or parties (or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. And the noun substantive 'rights ' is the plural of the noun substantive 'a right.' But the expression ' right,' when it is used as an adjective, is equivalent to the adjective 'just :' as the adverb ' rightly ' is equivalent to the adverb 'justly.' And, when it is used as the abstract name corresponding to the adjective 'right,' the noun substantive ' right ' is synony- mous with the noun substantive ' justice.' — If, for example, I owe you a hundred pounds, you have ' a right ' to the pay- ment of the money : a right importing an obligation to pay the money, which is incumbent upon me. Now in case I make the payment to which you have ' a right,' I do that which is ' right ' or just, or I do that which consists with ' right ' or justice. — Again : I have ' a right' to the quiet enjoyment of my house : a right importing a duty to forbear from dis- turbing my enjoyment, which lies upon other persons generally, or lies upon the world at large. Now they who practise tb'^ .forbearance to which I have * a right,' conduct themselves therein 'rightly' or justly. Or so far as they practise the forbearance to which I have ' a right,' their conduct is 'right ' or just. Or so far as they practise the forbearance to which I have ' a right,' they are observant of ' right ' or justice. It is manifest that ' right ' as signify- ing ' faculty,' and 'right' as signifying ' justice,' are widely different though not unconnected terms. But, nevertheless, the terms are confounded by many of the writers who attempt a definition of ' right :' andtheir attempts to determine the mean- ing of that very perplexing expression, are, therefore, sheer jargon. By many of the German writers on the sciences of J aw and morality (as by Kant, for exam- ple, in his ' Metaphysical Principles of Jurisprudence'), ' right ' in the one sense, is blended with ' risht ' in the other. And through the disquisition on ' right ' or ' rights,' which occurs in his ' Moral Philosophy,' Paley obviously wavers be- tween the dissimilar meanings. An adequate definition of ' a right,' or of ' right ' as signifying ' faculty,' cannot, indeed, be rendered easily. In order to a definition of ' a right,' or of ' right '_ as signif)nng 'faculty,' we must determine the respective differences of the principal kinds of rights, and also the respective meanings of many intricate terms which are implied by the term to be defined. The Italian ' diritto,' the Prench 'droit,' the German ' recht,' and the English 'right,' signify 'right' as meaning 'faculty,' and also signif}^ 'justice:' though each of those several tongues has a name which is appropriate to 'justice,' and by which it is denoted without ambiguity. In the Latin, Italian, Prench, and German, the name which signifies ' right ' as meaning ' faculty,' also signifies 'law :' 'jus,' 'diritto,' ' droit,' or ' recht,' denoting indifferently either of the two objects. Accordingly, the 'recht' which signifies ' law,' and the ' recht ' which signifies ' right ' as meaning ' faculty,' are con- founded by German writers on the philo- sophy or rationale of law, and even by German expositors of particular systems of jurisprudence. Not perceiving that the two names are names respectively for two disparate objects, they make of the two objects, or make of the two names, one ' recht.' Which one ' recht,' as forming a genus or kind, they di- vide into two species or two sorts : namely, the ' recht ' equivalent to ' law,' and the ' recht ' equivalent to ' right ' as meaning - faculty.' And since the strongest and wariest minds are often ensnared by ambiguous words, their confusion of those disparate objects is a venial error. Some, however, of these German writers are gmlty of a grave offence against good sense and taste. They thicken the mess which that confusion produces, with a misapplication of terms borrowed from the Kantian philosophy. They divide ' recht,' as forming the genus or kind, into ' ncht in the objective sense,' and ' recht in the subjective sense : ' de- noting by the former of those unapposite phrases, ' law ;' and denoting by the lat- ter, ' right ' as meaning ' faculty.' Lect. YI ' Right ' as meaning ' faculty,' ' right ' as meaning 'justice,' and ' right as meaning ' law.' 294 The Province of Lect.vi rights (or rigMs arising from positive morality) against its ^ ' own subjects severally considered : rights wMcli are con- ferred upon itself by tbe opinion of tbe community at large, and which answer to relative duties laid upon its several subjects by the general or prevalent opinion of the same indeterminate body. / Consequently, when we say that a sovereign government, I as against its own subjects, has or has not a right to do this ) or that, we necessarily mean by a right (supposing we speak exactly), a right divine or moral: we necessarily mean (sup- posing we speak exactly), that it has or has not a right de- rived from a law of God, or derived from a law improperly so called which the general opinion of the community sets to its members severally. But when we say that a government, as against its own subjects, has or has not a right to do this or that, we not un- commonly mean that we deem the act in question generally useful or ^pernicious. This application of the term right, re- sembles an application of the term justice to which I have adverted above. — An act which conforms to the Divine law, is styled, emphatically, just : an act which does not, is styled, emphatically, unjust. An act which is generally useful, con- forms to the Divine law as known through the principle of utility : an act which is generally pernicious, does not con- form to the Divine law as known through the same expo- nent. Consequently, ' an act which is just or unjust,' and ' an act which is generally useful or generally pernicious,' are nearly equivalent expressions. — An act which a sovereign government has a Divine right to do, it, emphatically, has a right to do : if it has not a Divine right, it, emphatically, has not a right. An act which were generally useful, the Divine law, as known through the principle of utility, has conferred on the sovereign government a right to do : an act which were generally pernicious, the Divine law, as known through the same exponent, has not conferred on the sove- reign government a right to do. Consequently, an act which The confusion of * law ' and ' right,' denoted in own our language by palpablj'' our own writers avoid : for the two dis- distinct marks : for the modern English parate objects vhich the terms respec- ' right' (which probably comes from the tively signify, are commonly denoted in Anglo Saxon, and therefore is allied to our own language by palpably distinct the German 'recht') means, in a few in- marks. I say that they are commonly stances, ' law.' ' Hale and Blackstone (as I have They translate ^ms personarum etrerum, mentioned in the Outline) are misled by " rights of persons and things :" which is this double meaning of the word jus. mere jargon.' — M8. Note. y iL risprudence deteinnmed. 295 the govern me lit lias a right to do. is an act vrhich were LErx.Tr generally useful : as an act which the gorernnient has not a ""^ ^ ~" right to do. is an act which were generally pernicions. To ignorance or neglect of the palpable truths which I have expounded in the present section, we may impute a pernicious jargon that was current in our own country on the ere of her horrible war with her Xorth American chii- di-en. By the great and small rabble in and out of parlia- ment, it was said that the goyermnent sovereign in Britain was also sovereign in the colonies ; and that, since it was sovereign in the colonies, it had 0. riglit to tax their inhabi- tants. It was objected by 3Ir. Burke to the project of taxing their inhabitants, that the project was inexjjedient : pregnant with probable evil to the inhabitants of the colo- nies, and pregnant with probable evil to the inhabitants of the mother country. But to that most rational objection, the sticklers for the scheme of taxation retuimed this asinine answer. They said that the British government had a right to tax the colonists : and that it ought not to be withheld by paltry considerations of exjpediency, from enforcing its sove- reiom rio-ht as^ainst its refractoiw subiects. — Xow. assumino- that the government sovereign in Britain was properly sove- reign in the colonies, it had no legal right to tax its colonial subjects : although it was not restrained by positive law, fi'om dealing with its colonial stibjects at its own pleasure or discretion. If', then, the sticklers for the scheme of tax- ation had any determinate meaning, they meant that the British government was empowered by the law of God to tax its American subjects. But it had not a Divine right to tax its American subjects, unless the project of taxing them accorded with general utility : for every Divine right springs fi'om the Di^-ine law ; and to the Divine law, general utility is the index. Consequently, when the sticklers for the scheme of taxation opposed //^s rigid to e:cpediency, they opposed the right to the only test by which it was possible to detennine the reality of the right itself. A sovereign government of one. or a sovereign govern- From an ment of a number in its colleoiate and sovereio-n capacitv. ''^PP^^ranee s X ., - 01 a sove- may appear in the character of defendant, or may appear in reign go- the character of demandant, before a tribunal of its own befb™!^^ appointment, or derivino- iurisdiction from itself. But from t"i^^naiof 5^ Its o-^vn. we such an appearance 01 a sovereign government, we cannot cannot infer infer that the government lies under legal duties, or has venmen?" legal rights against its own subjects. 296 The Province of Lect.yi Supposing that the claim of the plaintiff against the so- ^. ~ vereign defendant were triilj founded on a positive law, it le^ai duties, were founded on a positive law set to the sovereign defen- rights ^^^^^ dant bj a third person or body : or (changing the phrase) against its the Sovereign defendant would be in a state of subjection to jects.^^^^^ another and superior sovereign. Which is impossible and absurd. — And supposing that the claim of the sovereign demandant were truly founded on a positive law, it were founded on a positive law set by a third party to a member or members of the society wherein the demandant is supreme : or (changing the phrase) the society subject to the sovereign demandant, were subject, at the same time, to another su- preme government. Which is also impossible and absurd. Besides, where the sovereign government appears in the character of defendant, it appears to a claim founded on a so called law which it has set to itself. It therefore may defeat the claim by abolishing the law entirely, or by abo- lishing the law in the particular or specific case. — Where it appears in the character of demandant, it apparently founds its claim on a positive law of its own, and it pursues its claim judicially. But although it reaches its purpose through a gene- ral and prospective rule, and through the medium of judicial procedure, it is legally free to accomplish its end by an arbi- trary or irregular exercise of its legally unlimited power. The rights which are pursued against it before tribunals of its own, and also the rights which it pursues before tri- bunals of its own, are merely analogous to legal rights (in the proper acceptation of the term) : or (borrowing the brief and commodious expressions by which the Eoman jurists commonly denote an analogy) they are legal rights quasi, or legal rights uti. — The rights which are pursued against it before tribunals of its own, it may extinguish by its own authority. But, this notwithstanding, it permits the de- mandants to prosecute their claims : And it yields to those claims, when they are established judicially, as if they were truly founded on positive laws set to itself by a third and distinct party. — The rights which it pursues before tribunals of its own, are powers which it is free to exercise according to its own pleasure. But, this notwithstanding, it prose- cutes its claims through the medium of judicial procedure, as if they were truly founded on positive laws set to the parties defendant by a third person or body.^"^ -*_Agood government will not arbi- ferred. And. where possible, will accom- trarily (or by ex j^ost facto commands) plish its ends by prospective rules. — abrogate q^uasi rights which it has con- MS. Note, y ttrisprttdeiice determined. 297 Tlie foregoing explanation of the seeming legal riglits Lect.vi which, are pursued against sovereign governments before tribunals of their own, tallies with the style of judicial pro- cedure^ which, in all or most nations, is observed in cases of the kind. The object of the plaintiff's claim is not de- manded as of right, but is begged of the sovereign defen- dant as a grace or favour. In our own country, claims pursued judicially against our own king are presented to the courts of justice in the same or a similar style. The plaintiff fetiiions the royal defen- dant to grant him his so called right : or he slion:s to the royal defendant his so called right and injury, and prays the royal defendant to yield him fitting redress. — But where a claim is pursued judicially against our own king, this men- dicant style of presenting the claim is merely accidental. It arises from the mere accident to which I have adverted already : namely, that our own king, though not properly sovereign, is completely free in fact from legal or political duties. Since he is free in fact from every legal obligation, no one has a legal right (in the proper acceptation of the term) against the king : for if any had a legal right against the king, the king were necessarily subject to an answering legal duty. But seeing that our own king is merely a limb of the parliament, and is virtually in a state of subjection to that sovereign body or aggregate, he is capable of legal duties : that is to say, duties imposed upon him by that so- vereign body or aggregate in its collegiate and sovereign character. For the same reason, he is capable of legal rights : that is to say, rights conferred upon him by that so- vereign body or aggregate, and answering to relative duties imposed by the same body on others of its own subjects. Accordingly, the king has legal rights against others of his fellow subjects : though, by reason of his actual exemption from every legal obliga,tion, none of his fellow subjects have legal rights against him. Though a sovereign government of one, or a sovereign Though a government of a number in its collegiate and sovereign ca- govern?^^ pacity, cannot have le^al rio^hts ag-ainst its own subiects, it nientofone, K. ii« ^'ora sove- may have a legal right against a subject or subjects of an- reign go- other sovereign government. For seeing that a legal or of™mber political right is not of necessity saddled with a lec^al or jnitscoi- . . . . *^ leo'iate and political trust, the positive law conferring the right may not sovereign be set to the government on which the right is conferred. caJSotKave The law conferring the rig-ht (as well as the relative duty legal rights ^ ° ^ *^ against its The Pi^ovince of Lect^vi answering to tlie right) may be laid or imposed exclusively own sub- subject or subjects of the government by which the iTve^iTg^ii ^^^^^ imparted. The possession of a legal or political right right against a subject or subjects of another sovereign go- su^o? o^r vernment, consists, therefore, with that independence which subjects of is one of the essentials of sovereignty. And since the legal vereign go- right is acquired from another government, and through a law which it sets to a subject or subjects of its own, the existence of the legal right implies no absurdity. It is nei- ther acquired through a positive law set by the government which acquires it, nor through a positive law set by another government to a member or members of the society wherein the acquirer is supreme. vernment. or causes of political go- vernment and society. The origin^ I now have defined or determined the general notion of sovereignty, including the general notion of independent political society : And, in order that I might further eluci- date the nature or essence of sovereignty, and of the inde- pendent political society which sovereignty implies, I have considered the possible forms of supreme political govern- ment, with the limits, real or imaginary, of supreme political power. To complete my intended disquisition on the nature or essence of sovereignty, and of the independent political society that sovereignty implies, I proceed to the origin or causes of the habitual or permanent obedience, which, in every society political and independent, is rendered by the bulk of the community to the monarch or sovereign number. In other words, I proceed to the origin or causes of political government and society. The proper purpose or end of a sovereign political govern- ment, or the purpose or end for which it ought to exist, is the greatest possible advancement of human happiness : Though, if it would duly accomplish its proper purpose or end, or advance as far as is possible the weal or good of man- kind, it commonly must labour directly and particularly to advance as far as is possible the weal of its own community. In our own courts of law and equity hurst in the House of Lords. 2 Bligh it is held as undoubted, that foreign sove- Eeports. New series, p. 31. Case of the reigns, whether in name monarchs or United States of America v. Wagner, republics, can sue in their sovereign ca- Court of Chancery, May 29, June 11, 17, pacity ; and they are recognised as plain- 1867. Judgment by Lord Chancellor tiffs in our courts of law and equity by Chelmsford and Lords Justices Turner the same name and style under which and Cairns.) they are recognised by our own sovereign As to the possibility of a sovereign (that is, nominally, by Her Majesty) in being subject to another sovereign, to diplomatic intercourse. — (Case of the certain limited effects, see concluding ex- King of Spain, judgment by Lord Lynd- planations in this chapter. — E. C. yu risp rudence deteiniiined. 299 The good of the -aniversal society formed by mankind, is the lect. yi aggregate good of the particular societies into which man- " ' kind is divided : jnst as the happiness of any of those so- cieties is the aggregate happiness of its single or individual members. Though, then, the weal of mankind is the proper object of a government, or though the test of its conduct is the principle of general utility, it commonly ought to con- sult directly and particularly the weal of the ]oarticular com- munity which the Deity has committed to its rule. If it truly adjust its conduct to the principle of general utility, it commonly will aim immediately at the particular and more precise, rather than the general and less determinate end. It were easy to show, that the general and particular ends never or rarely conflict. Universally, or nearly universally, the ends are perfectly consistent, or rather are inseparably connected. An enlightened regard for the common happi- ness of nations, implies an enlightened patriotism; whilst the stupid and atrocious patriotism which looks exclusively to country, and would further the interests of country at the cost of all other communities, grossly misapprehends and frequently crosses the interests that are the object of its narrow concern. — But the topic which I now have suggested, belongs to the province of ethics, rather than the province of jurisprudence. It belongs especially to the peculiar depart- ment of ethics, which is concerned with international mo- rality : which affects to determine the morality that ought to obtain between nations, or to determine the international morality commended by general utility. ^"^^ The proper purpose or end of a sove- reign political government, or the pur- pose or end for which it ought to exist, is conceived inadequately, or is conceived obscurely, by most or many of the specu- lators on political government and so- ciety. To advance as far as is possible the weal or good of mankind, is more gene- rally but more vaguely its proper purpose or end : To advance as far as is possible the weal of its own com- munity, is more particularly and more determinately the purpose or end for which it ought to exist. Now if it would accomplish the general object, it com- monly must labour directly to accomplish the particular : And it hardly will ac- complish the particular object, unless it regard the general. Since, then, each of the objects is inseparably connected with the other, either may be deemed the paramount object for which the sovereign government ought to exist. AA^e there- fore may say, for the sake of conciseness, that its proper paramount purpose, or its proper absolute end, is 'the greatest possible advancement of the common happiness or weal ;' meaning indifferently by ' the common happiness or weal,' the common happiness or weal of its own particular community, or the common happiness or weal of the universal com- munity of mankind. (Here I may remark, that in my fourth lecture, from page 159 to page 163, I shortly examined a current misconception of the theory of general utility ; and that the brief sug- gestions which I then threw out, may easily be fitted to the topic on which I now have touched.) To advance as far as is possible the The proper purpose or end of po- litical go- vernment and society, or the pur- pose or end for which they ought to exist. 300 The Province of Lect.yi From the proper purpose or end of a sovereign political government, or from the purpose or end for which it ought weal or good of mankind, or to advance as far as is possible the weal of its own community, is, then, the paramount or absolute end for which a sovereign go- vernment ought to exist. We may say of the government itself, what Bacon says of the law which it sets to its sub- jects : ' Finis et scopus quem intueri de- bet, non alius est, quam ut cives feliciter degant.' The way, indeed, of the go- vernment to the attainment of its abso- lute end, lies through the attainment of ends which may be styled subordinate or instrumental : Or in order that the government may accomplish its proper absolute end, the government must ac- complish ends subserving that absolute end, or serving as means to its accom- plishment. But the subordinate or in- strumental ends through which the go- vernment must accomplish its paramount or absolute end, will hardly admit of a complete description, or a description approaching to completeness. Certainly they are not to be determined, and are not to be suggested justly, by a short and sweeping definition. For, assum- ing that the government accomplished thoroughly its paramount or absolute purpose, its care would extend (as Bacon adequately affirms) ' ad omnia circa bene esse civitatis ;' its care would extend to all the means through which it probably might minister to the furtherance of the common weal. But, by most or many of the specula- tors on political government and society, one or a few of the instrumental ends through which a government must ac- complish its proper absolute end, are mistaken for that paramount purpose. For example : It is said by many of the speculators on political government and society, that ' -the end of every go- Ternment is to institute and protect pro- perty.' And here I must remark, by the by, that the propounders of this absurdity give to the term ' property ' an extremely large and not very definite signification. They mean generally by the term ' pro- perty,' legal rights, or legal faculties : And they mean not particularly by the term ' property,' the legal rights, or le- gal faculties, which are denominated strictly ' rights of property or dominion.' If they limited the term ' property ' to legal rights of dominion, their proposi- tion would stand thus : ' The creation and protection of legal rights of dominion, is the end of every government ; but the creation of legal rights which are not rights of dominion (as legal rights, for example, which are properly effects of contracts), is not parcel of its end, or falls not within its scope.' Consequently, their proposition amounts to this : ' To confer on its subjects legal rights, and to preserve those rights from infringe- ment, is the end of every government.' Now the proper paramoxint purpose of a sovereign political government, is not the creation and protection of legal rights or faculties, or (in the terms of the pro- position) the institution and protection of property. If the creation and pro- tection of legal rights were its proper paramount purpose, its proper paramount purpose might be the advancement of misery, rather than the advancement of happiness ; since many of the legal rights which governments have created and protected (as the rights of masters, for example, to and against slaves), are generally pernicious, rather than generally useful. To advance as far as is possible the common happiness or weal, a government must confer on its subjects legal rights : that is to say, a government must confer on its sub- jects beneficent legal rights, or such legal rights as general utility commends. And, having conferred on its subjects 2^ The maintenance of the Eights which minister to that tiltimate purpose for are vested in private individuals {i. e. in which Eights themselves should exist : the governed) is not the only end for viz. the general wellbeing.^'' {e. g. Powers which Government ought to exist. It is to construct roads, etc.) See Hugo, often expedient that it should be invested Lehrhuch des Naturrechts, p. 183. — MS. with powers which, neither directly nor Note. indirectly, subserve that end, though they [' Neque tamen jus publicum ad hoc tantum spectat, ut addatur tanquam cus- tos juri privato, ne illud violettir atque cessent injurise ; sed extenditur etiam ad religionem et arma et disciplinam et or- namenta et opes, deniqiie ad omnia circa BENE ESSE civitatis.' — liacon?[ y tirisprtidence determined. 30 to exist, we may readily infer the causes of that habitual obedience which would be paid to the sovereign by the bulk of an enlightened society. Supposing that a given society were adequately instructed or enlightened, the habitual obe- dience to its government which was rendered by the bulk of the community, would exclusively arise from reasons bottomed in the principle of utility. If they thought the government perfect, or that the government accomplished perfectly its proper purpose or end, this their conviction or beneficent legal rights, the government, moreover, must preserve those rights from infringement, by enforcing the cor- responding sanctions. But the institu- tion and protection of beneficent legal rights, or of the kinds of property that are commended by general utility, is merely a subordinate and instrumental end through which the government must accomplish its paramount or absolute purpose. As affecting to determine the absolute end for which a sovereign government ought to exist, the proposi- tion in question is, therefore, false. And, considered as a definition of the means through which the sovereign government must reach that absolute end, the propo- sition in question is defective. If the government would duly accomplish its proper paramount purpose, it must ]iot confine its care to the creation of legal rights, and to the creation and enforce- ment of the answering relative duties. There are absolute legal duties, or legal duties without corresponding rights, that are not a whit less requisite to the advancement of the general good tlian legal rights themselves with the relative duties which they imply. Nor would a government accomplish thoroughly its proper paramount purpose, if it merely conferred and protected the requisite rights, and imposed and enforced the re- quisite absolute duties : that is to say, if it merely established and issued the re- quisite laws and commands, and looked to their due execution. The sum of the subordinate ends. which may subserve its absolute end, is scarcely comprised by a good legislation and a good admin- istration of justice : Though a good le- gislation with a good administration of justice, or good laws well administered, are doubtless the chief of the means through which it must attain to that end, or (in Bacon's figurative language) are the nerves of the common weal. The prevalent mistake which I now have stated and exemplified, is committed by certain of the writers on the science of political ceconomy, whenever they meddle incidentally with the connected science of legislation. Whenever they step from their own into the adjoining province, they make expressly, or they make tacitly and unconsciously, the fol- lowing assumption : that the proper ab- solute end of a sovereign political go- vernment is to further as far as is possi- ble the growth of the national wealth. If they think that a political institution fosters production and accumulation, or that a political institution damps pro- duction and accumulation, they pro- nounce, without more, that the institu- tion is good or bad. They forget that the wealth of the community is not the weal of the community, though wealth is one of the means requisite to the at- ment of happiness. They forget that a political institution may further the weal of the community, though it checks the growth of its wealth ; and that a poli- tical institution which quickens the growth of its wealth, may hinder the advancement of its weal. Lect. VI [Mistakes like those of political eco- nomists are made by utilitarians, only of a more general nature. Instead of confounding (specifically) some subordi- nate end of government with the para- mount end of the same, they take a part of human happiness, or a part of the means towards it, for the whole of human happiness, or the whole of those means. {e. g. The exclusion of poetry or the fine arts, or the degrading them to ' the agreeable.' Their eminent utility. The wisdom to be got from poets. Give examples.) This partial view of human happiness, or of means towards it, Avill always be taken till a system of ethical teleology be constructed : i. e. an analysis of hap- piness, the means towards it, and there- fore the ends to be pursued directly. — MS. Fragment.'] 302 The Province of opinion would be their motive to obey. If tliey deemed tbe government faulty, a fear that the evil of resistance might surpass the evil of obedience, v^ould be their inducement to submit : for they v^ould not persist in their obedience to a government which they deemed imperfect, if they thought that a better government might probably be got by resis- tance, and that the probable good of the change outweighed its probable mischief. Since every actual society is inadequately instructed or enlightened, the habitual obedience to its government which is rendered by the bulk of the community, is partly the consequence of custom : They partly pay that obedience to that present or established government, because they, and perhaps their ancestors, have been in a habit of obeying it. Or the habitual obedience to the government which is rendered by the bulk of the community, is partly the consequence of prejudices: meaning by 'prejudices,' opinions and sentiments which have no foundation whatever in the principle of general utility. If, for example, the government is monarchical, they partly pay that obedience to that present or established go- ^^ernment, because they are fond of monarchy inasmuch as it is monarchy, or because they are fond of the race from which the monai'ch has descended. Or if, for example, the government is popular, they partly pay that obedience to that present or established government, because they are fond of democracy inasmuch as it is democracy, or be- cause the word ' republic ' captivates their fancies and affec- tions. But, though that habitual obedience is partly the conse- quence of custom, or though that habitual obedience is partly the consequence of prejudices, it partly arises from a reason bottomed in the principle of utility.^^ It partly arises As connected with the proper pur- pose or end of political gov^ernment and society, I may mention one cause which always will make political government (or political government quasi') necessary or highly expedient : namely, the uncer- tainty, scantiness and imperfection of positive moral rules. Hence the necessity for a common governing (or common guiding') head to whom the community may in concert defer. It is possible to conceive a society in which legal sanctions would lie dormant, or in which qiiasi government would merely recommend, or utter laws of im- ferfict obligation (in the sense of Koman Jurists). But however perfect and uni- versal the inclination to act up to rulei^- tending to the general good, it is impos- sible to dispense with a governing or guiding head. (Uncertainty of existence of positive moral rules : want of the precision and detail required by dispositions regarding the objects about which positive law is conversant. Hence Grodwin, Fichte and others have made a great mistake.) In many cases, however, notwithstand- ing its defectiveness, it is necessary to abandon acts to positive morality. (See Note, p. 204.)— il/>S. Fragment. y tmspriidence determined. 303 from a perception, bj the generality or bulk of the commu- Lect.yi nity, of tbe expediency of political government : or (cbang- " ' " ing the phrase) it partly arises from a ]3i'eference, by the generality or bulk of the community, of any government to anarchy. If, for specific reasons, they are attached to the established government, their general perception of the utility of government concurs with their special attachment. If they dislike the established government, their general percep- tion of the utility of government controls and masters their dislike. They detest the established government : but if they V70uld change it for another by resorting to resistance, they must travel to their object through an intervening an- archy which they detest more. The habitual obedience to the government which is ren- dered by the bulk of the community, partly arises, therefore, in almost every society, from the cause which I now have described : namely, a perception, by the bulk of the com- munity, of the utility of political government, or a prefer- ence, by the bulk of the commimity, of any government to anarchy. And this is the only cause of the habitual obedi- ence in question, which is common to all societies, or nearly all societies. It therefore is the only cause of the habitual obedience in question, which the present general disquisition can properly embrace. The causes of the obedience in question which are peculiar to particular societies, belong to the province of statistics, or the province of particular history. The only general cause of the permanence of political go- - vernments, and the only general cause of the origin of poli- tical governments, are exactly or nearly alike. Though every government has arisen in part from specific or particular causes, almost every government must have arisen in part from the following general cause : namely, that the bulk of the natural society from which the political was formed, were desirous of escaping to a state of government, fi^om a state of nature or anarchy. If they liked specially the govern- ment to which they submitted, their general perception of the utility of government concurred with their special in- clination. If they disliked the government to which they submitted, their general perception of the utility of govern- ment controlled and mastered their repugnance. The specific or particular causes of specific or particular governments, are rather appropriate matter for particular history, than for the present general disquisition. 304 The Province of Lect. YI The posi- tion ' that every go- vernment continues through the people's consent,^ and the po- sition 'that every go- vernment arises through the people's consent,^ examined and ex- plained. According to a current opinion (or according to a current expression), the permanence and origin of every government are owing to the people's consent : that U to say, every government continues through the consent of the people, or the bulk of the political community : and every government arises through the consent of the people, or the bulk of the natural society from which the political is formed. Accord- ing to the same opinion dressed in a diiferent phrase, the power of the sovereign flows from the people, or the people is the fountain of sovereign power. Now the permanence of every government depends on the habitual obedience which its receives from the bulk of the community. For if the bulk of the community were fully determined to destroy it, and to brave and endure the evils through which they must pass to their object, the might of the government itself, with the might of the minority attached to it, would scarcely sufiice to preserve it, or even to retard its subversion. And though it were aided by foreign governments, and therefore were more than a match for the disaffected and rebellious people, it hardly could reduce them to subjection, or constrain them to permanent obedience, in case they hated it mortally, and were prepared to resist it to the death. — But all obedience is voluntary or free, or every party who obeys consents to obey. In other words, every party who obeys wills the obedience Avhich he renders, or is determined to render it by some motive or another. That acquiescence which is purely involuntary, or which is purely the consequence of physical compulsion or restraint, is not obedience or submission. If a man condemned to imprison- ment were dragged to the prison by the jailers, he would not obey or submit. But if he were liable to imprisonment in the event of his refusing to walk to it, and if he were deter- mined to walk to it by a fear of that further restraint, the man would render obedience to the sentence or command of the judge. Moved by his dislike of the contingent punish- ment, he would consent to the infliction of the present. — Since, then, a government continues through the obedience of the people, and since the obedience of the people is volun- tary or free, every government continues through the con- sent of the people, or the bulk of the political society. If they like the government, they are determined to obey it habitually, or to consent to its continuance, by their special inclination or attachment. If they hate the government, they are determined to obey it habitually, or to consent to its y urisprudence determmed. 305 continuance, bj their dread of a violent^ revolution. They Lect.yi consent to what they abhor, because they avoid thereby what ' they abhor more. — As correctly or truly apprehended, the position ' that every government continues through the people's consent,' merely amounts to this : That, in every society political and independent, the peoj^le are determined by motives of some description or another, to obey their government habitually : and that, if the bulk of the com- munity ceased to obey it habitually, the government would cease to exist. But the position in question, as it is often understood, is taken with one or another of the two following meanings. Taken with the first of those meanings, the position amounts to this: That the bulk of every community, without inconvenience to themselves, cah abolish the established government : and that being able to abolish it without in- convenience to themselves, they yet consent to its continu- a,nce, or pay it habitual obedience. Or, taken with the first of those meanings, the position amounts to this : That the bulk of every community approve of the established govern- ment, or prefer it to every government which could be sub- stituted for it : and that they consent to its continuance, or pay it habitual obedience, by reason of that their approba- tion, or by reason of that their preference. As thus under- stood, the position is ridiculousl}^ false : the habitual obedience of the people, in most or many communities, arising wholly or partly from their fear of the probable evils which they might suflPer by resistance. Taken with the second of those meanings, the position amounts to this : That, if the bulk of a community dislike the established government, the government ought not to continue : or that, if the bulk of a community dislike the established government, the government therefore is bad or pernicious, and the general good of the community requires its abolition. And, if every actual society were adequately instructed or enlightened, the position, as thus understood, would approach nearly to the truth. For the dislike of an enlightened people towards their established government, would beget a violent presumption that the government was faulty or imperfect. But, in every actual society, the govern- ment has neglected to instruct the people in sound political science ; or pains have been taken by the government, or the classes that influence the government, to exclude the bulk of the community from sound political science, and to VOL. I. X 3o6 The Pi^ovince of Lect. VI perpetuate or prolong the prejudices wliicli weaken and distort "~ ' ^ their understandings. Every society, therefore, is inade- quately instructed or enlightened : And, in most or many societies, the love or hate of the people towards their estab- lished government would scarcely beget a presumption that the government was good or bad. An ignorant people may love their established government, though it positively crosses the purpose for which it ought to exist : though, by cherish- ing pernicious institutions and fostering mischievous preju- dices, it positively prevents the progress in useful knowledge and in happiness, which its subjects would make spontaneously if it simply were careless of their good. If the goodness of an established government be proportioned to the love of the people, the priest-bestridden government of besotted Portugal or Spain is probably the best of governments : As weighed against Miguel and Ferdinand, Trajan and Aurelius, or Frederic and Joseph, were fools and malignant tyrants. And as an ignorant peoj)le may love their established government, though it positively crosses the purpose for which it ought to exist, so may an ignorant people hate their established government, though it labours strenuously and wisely to further the general weal. The dislike of the French people to the ministry of the godlike Turgot, amply evinces the melancholy truth. They stupidly thwarted the measures of their warmest and wisest friend, and made common cause with his and their enemies : with the rabble of nobles and priests who strove to uphold misrule, and to crush the re- forming ministry with a load of calumny and ridicule. That the permanence of every government is owing to the people's consent, and that the origin of every government is owing to the people's consent, are two positions so closely allied, that what I have said of the former will nearly apply to the latter. Every government has arisen through the consent of the people, or the bulk of the natural society from which the political was formed. For the bulk of the natural society from which a political is formed, submit freely or voluntarily to the inchoate political government. Or (changing the phrase) their submission is a consequence of motives, or they will the submission which they render. But a special approbation of the government to which they freely submit, or a preference of that government to every other government, may not be their motive to sub- mission. Although they submit to it freely, the government y2irispr2idence dete7i7ii7iecl. 30/ perhaps is forced upon tliem : tliat is to say, tliey could not lect.ti ■\vithliold their submission from that particular government, ' ' ' unless thej struggled through evils which they are loath to endure, or unless they resisted to the death. Determined by a fear of the evils which would follow a refusal to submit, (and, probably, by a general perception of the utility of jDolitical government,) they fi-eely submit to a government from which they are specially averse. The expression 'that every government arises through the people's consent,^ is often uttered with the following meaning : That the bulk of a natui'al society about to be- come a political, or the inchoate subjects of an inchoate political government, ijromise, expressly or tacitly, to obey the future sovereign. The expression, however, as uttered with the meaning in question, confounds consent and i?ro- onise, and therefore is grossly incorrect. That the inchoate subjects of every inchoate government u-ill or consent to obey it, is one proposition : that they promise, expressly or tacitly, to render it obedience, is another proposition. In- asmuch as they actually obey, they will or consent to obey : or their will or consent to obey, is evinced by their actual obedience. But a will to render obedience, as evinced by actual obedience, is not of necessity a tacit promise to render it : although by a promise to render obedience, a will or consent to render it is commonly expressed or intimated. That the inchoate subjects of every inchoate government jjromise to render it obedience, is a position involved by an hypothesis which I shall examine in the next section. In every community ruled by a montlrch, the subject The hypo- members of the community lie under duties to the monarch ; P^] , . , ' the original and in eveiy community ruled by a sovereign body, the covenaiit or subject members of the community (including the several ]ne7i{aUivii members of the body itself) lie under duties to the body P'^'^^- in its collective and sovereign ca^Dacity. In every com- munity ruled by a monarch, the monarch lies under duties towards his subjects : and in every community ruled by a sovereign body, the collective and sovereign body lies under duties to its subjects (including its own members considered severally). The duties of the subjects towards the sovereign govern- ment, are partly religious, partly legal, and partly moral. ' The religious duties of the subjects towards the sovereign government, are creatiu-es of the Divine law as known 3o8 The Provmce of Lect.vi tliroiigli the principle of "atility. If it thorouglily accoiii- ■~ ' plisli the purpose for wliicli it onght to exist, or further the general weal to the greatest possible extent, the subjects are bound religiously to pay it habitual obedience. And, if the general good which probably would follow submission out- weigh the general good which probably would follow re- sistance, the subjects are bound religiously to pay it habitual obedience, although it accomplish imperfectly its proper purpose or end. — The legal duties of the subjects towards the sovereign government, are creatures of positive laws which itself has imposed upon them, or which are incumbent upon them by its own authority and might. — The moral duties of the subjects towards the sovereign government, are creatures of positive morality. They mainly are crea- tures of laws (in the improper acceptation of the term) which the general opinion of the community itself sets to it? several members. ! The duties of the sovereign government towards the sub- jects, are partly religious and partly moral. If it lay under legal duties towards the subjects, it were not a supreme, but were merely a subordinate government. Its religious duties towards the subjects, are creatures of the Divine law as known through the principle of utility. It is bound by the Divine law as known through the prin- ciple of utility, to advance as far as is possible the weal or good of mankind : and, to advance as far as is possible the weal or good of mankind, it commonly must labour directly and particularly to advance as far as is possible the happi- ness of its own community. — Its moral duties towards the subjects, are creatures of positive morality. They mainly are creatures of laws (in the improper acceptation of the term) which the general opinion of its own community lays or imposes upon it. It follows from the foregoing analysis, that the duties of the subjects towards the sovereign government, with the duties of the sovereign government towards the subjects, originate respectively in three several sources : namely, the Divine law (as indicated by the principle of utility), positive law, and positive morality. And, to my under standiug, it seems that we account sufficiently for the origin of those obligations, when we simply refer them to those their ob- vious fountains. It seems to my understanding, that an ampler solution of their origin is not in the least requisite, and, indeed, is impossible. But there are many writers on y tuHsprudence determined. 309 political government and society, who are not content to Lfxt. Yi account for their origin, bj simply referring them to those ' their manifest sources. It seems to the writers in ques- tion, that we want an ampler solution of the origin of those obligations, or, at least, of the origin of such of them as are imposed by the law of God. And, to find that ampler solution which they believe requisite, those writers resort to the hypothesis of the original covenant or contract, or the fundamental civil 2^ctct^^^ By the writers who resort to it, this renowned and not exploded hypothesis is imagined and rendered variously. But the purport or efPect of the hypothesis, as it is imagined and rendered by most of those writers, may be stated gene- rally thus : To the formation of every society political and indepen- dent, or to the institution of every ttoXls or civitas, all its future members then in being are joint or concurring par- ties : for all are parties to an agreement in which it then originates, and which is also the basis whereon it afterwards rests. As being the necessary source of the independent political society, or as being a condition necessarily prece- ding its existence, this agreement of all is styled the original covenant : as being the necessary basis whereon the civitas afterwards rests, it is styled pactum civile funclamentale. In the process of making this covenant or pact, or the pro- cess of forming the society political and independent, there are three several stages : which three several stages may be described in the following manner. 1. The future members of the community just about to be created, jointly resolve to unite themselves into an independent political society : signifying and determining withal the paramount purpose of their union, or even more or fewer of its subordinate or instrumental ends. And here I must briefly remark, that the paramount purpose of their union, or the paramount purpose of the community just about to be created, is the paramount purpose (let it be what it may) for which a so- ciety political and independent ought to be founded and perpetuated. By the writers who resort to the hypothesis, (^) I style the supposed coTenant ' the properly so called, is a convention -which original covenant or convention^ rather binds legally the promising party or than ' the original contract' Every parties. But admitting the hypothesis, convention, agreement, or pact, is not a the supposed ' original covenant ' would contract properly so callpd : though every not and could not engender legal or contract properly so called is a conven- political duties, tion, agreement, or pact. A contract The Province of Lect. VI this paramount purpose or absolute end is conceived differ- ' ' ently : their several conceptions of this purpose or end, dif- fering with the several natures of their respective ethical systems. To writers who admit the system which I style the theory of utility, this purpose or end is the advancement of human happiness. To a multitude of writers who have flourished and flourish in Germany, the following is the truly magnificent though somewhat mysterious object of politi- cal government and society : namely, the extension over the earth, or over its human inhabitants, of the empire of right or justice. It would seem that this right or justice, like the good Ulpian's justice, is absolute, eternal, and immutable. It would seem that this right or justice is not a creature of law : that it was anterior to every law ; exists independently of every law ; and is the measure or test of all law and morality. Consequently, it is not the right or justice which is a creature of the law of God, and to which the name of 'justice ' is often applied emphatically. It rather is a some- thing, perfectly self-existent, to which his law conforms, or to which his law should conform. I, therefore, cannot understand it, and will not afiect to explain it. Merely guessing at what it may be, I take it for the right or justice mentioned in a preceding note : I take it for general utility darkly conceived and expressed. Let it be what it may, it doubtless is excellently good, or is superlatively fair or high, or (in a breath) is preeminently worthy of praise. Tor, compared with the extension of its empire over mankind, the mere advancement of their happiness is a mean and contemptible object. 2. Having resolved to unite themselves into an independent political society, all the members of the inchoate community jointly determine the constitution of its sovereign political government. In other words, they jointly determine the member or members in whom the sovereignty shall reside : and, in case they will that the sovereignty shall reside in more than one, they jointly determine the mode wherein the sovereign number shall share the sovereign powers. 3. The process of forming the independent political society, or the process of forming its supreme political go- vernment, is completed by promises given and accepted : namely, by a promise of the inchoate sovereign to the in- choate subjects, by promises of the latter to the former, and by a promise of each of the latter to all and each of the rest. The promise made by the sovereign, and the promises made by the subjects, are made to a common object : namely, the y urispritdeiice dete7nnined. accomplisliment of the paramount purpose of the indepen- Lect. vi dent political society, and of such of its subordinate pur- ^ ' poses as were signified bj the resolution to form it. The purport of the promise made by the sovereign, and the pur- port of the promises made by the subjects, are, therefore, the following. The sovereign promises generally to govern to the paramount end of the independent political society : and, if any of its subordinate ends were signified by the resolution to form it, the sovereign moreover promises spe- cifically to govern specifically to those subordinate ends. The subjects promise to render to the sovereign a qualified or conditional obedience : that is to say, to render to the sovereign all the obedience which shall consist with that paramount purpose and those subordinate purposes. The resolution of the members to unite themselves into an inde- pendent political society, is styled ^oLctiim unionis. Their determination of the constitution or structure of the sove- reign political government, is styled i^actum constiUUionis or pactum ordinationis. The promise of the sovereign to the subjects, with the promises of the subjects to the sovereign and to one another, are styled pactum subjectionis : for, through the promises of the subjects, or through the promises of the subjects coupled with the promise of the sovereign, the former are placed completely in a state of subjection to the latter, or the relation of subjection and sovereignty arises between the parties. But of the so caUed pact of union, the so called pact constituent, and the so called pact of subjection, the last only is properly a convention. The so called pact of union and the so called pact constituent are property resolves or determinations introductory to the pact of subjection : the pact of subjection being the original covenant or the fundamental civil pact. Through this original covenant, or this fundamental pact, the sovereign is bound (or, at least, is bound religiously) to govern as is mentioned above : and the subjects are bound (or, at least, are bound religiously) to render to the sovereign for the time being, the obedience above described. And the binding vir- tue of this fundamental pact is not confined to the fonnders of the independent political society. The binding virtue of this fundamental pact extends to the following members of the same commimity. For the promises which the founders of the community make for themselves respectively, import similar promises which they make for their respective suc- cessors. Through the promise made by the original sove- 312 The Province of Lect. VI reign, following sovereigns are bound (or, at least, are bound ' ^ religiously) to govern as is mentioned above. Througb the promises made bj tbe original subjects, following subjects are bound (or, at least, are bound religiously) to render to the sovereign for tbe time being, tbe obedience above described. In every society political and independent, the duties of the sovereign towards the subjects (or the religious dutits of the sovereign towards the subjects) spring from an original covenant like that which I now have delineated : And in every society political and independent, the duties of the subjects towards the sovereign (or the religious duties of the subjects towards the sovereign) arise from a similar pact. Unless we suppose that such an agreement is incumbent on the sovereign and subjects, we cannot account adequately for those their respective obligations. Unless the subjects were held to render it by an agreement that they shall render it, the subjects would not be obliged, or would not be obliged sufficiently, to render to the sovereign the requisite obedi- ence : that is to say, the obedience requisite to the accom- plishment of the proper purpose or end of the independent political society. Unless the sovereign were held by an agreement to govern as is mentioned above, the sovereign would not be obliged, or would not be obliged sufficiently, from governing despotically or arbitrarily : that is to say, governing with little or no regard to the proper purpose or end of a supreme political government, t/ Such, I believe, is the general purport of the hypothesis, as it is imagined and rendered by most of the writers who resort to it. But, as I have remarked above, the writers who resort to the hypothesis imagine and render it variously. — According, for example, to some of those writers. The original subjects, covenanting for themselves and their followers, promise obe- dience to the original and following sovereigns. But the original sovereign is not a promising party to the funda- mental civil pact. The original sovereign does not agree with the subjects, that the sovereign powers shall be used to a given end or ends, or that those powers shall be used in a given mode or modes. — And by the different writers who render the hypothesis thus, the purport of the subjects' pro- mises is imagined. For example : Some suppose that the obedience promised by the subjects, is the qualified or con- ditional obedience briefly described above ; whilst others suppose that the obedience promised by the subjects, is an yMrisprudence determined. 313 obedience passive or unlimited. — The writers, in short, who Lect. vi suppose an original covenant, think variously concerning the nature of the end for which a supreme government ought to exist. Thej think moreover variously concerning the extent of the obedience which a supreme government ought to re- ceive from its subjects. And to his own opinion concerning the nature of that end, or to his own opinion concerning the extent of that obedience, each of the writers in question endeavours to shape the hypothesis. — But though the writers who resort to the hypothesis imagine and render it variously, they concur in this : That the duties of the subjects towards the sovereign (or the religious duties of the subjects towards the sovereign) are creatures of the original covenant. And the writers who fancy that the original sovereign was a pro- mising party to the pact, also concur in this : That the duties of the sovereign towards the subjects (or the religious duties of the sovereign towards the subjects) are engendered by the same agreement. A complete though concise exposition of the various forms or shapes in which various writers imagine and ren- der the hypothesis, would fill a considerable volume. Be- sides, the ensuing strictures apply exactly, or may be fitted easily, to any original covenant that has been or can be conceited ; although they are directed more particularly to the fancied original covenant which I have delineated above. My statement of the purport of the hypothesis, I, therefore, conclude here. And I now will suggest shortly a few of the conclusive objections to which the hypothesis is open. 1. To account for the duties of subjects towards their sovereign government, or for those of the sovereign govern- ment towards its subjects, or for those of each of the parties towards the other, is the scope of every writer who sup- poses an original covenant. — But, to account for the duties of subjects towards their sovereign government, or for those of the sovereign government towards its subjects, we need not resort to the hypothesis of a fundamental civil pact. We sufficiently account for the origin of those respective obliga- tions, when we refer them simply (or without the supposition of an original covenant) to their apparent and obvious foun- tains : namely, the law of God, positive law, and positive morality. — Besides, although the formation of an indepen- dent political society were really preceded by a fundamental civil pact, scarce any of the duties lying thereafter on the 314 The Province of Lect. YI subjects, Or of tbe duties lying thereafter on tbe sovereign, would be engendered or influenced by that foregoing con- vention. — The hypothesis, therefore, of an original covenant, is needless, and is worse than needless. It affects to assign the cause of certain phaenomena : namely, the duties of subjects towards their sovereign government, or the duties of the sovereign government towards its subjects, or the duties of each of the parties towards the other. But the cause which it assigns is superfluous ; inasmuch as there are other causes which are at once obvious and adequate : And that superfluous cause is inefiicient as well as superfluous, or could not have produced the phenomena whereof it is the fancied source. / It will appear from the following analysis, that, although / the formation of an independent political society were really / preceded by an original covenant, scarce any of the duties I lying thereafter on the subjects, or of the duties lying there- ■ after on the sovereign, would be engendered or aff'ected by i that foregoing agreement. In other words, the covenant i would hardly oblige (legally, religiously, or morally) the ori- ginal or following subjects, or the original or following sovereigns. Every convention which obliges legally (or every contract properly so called) derives its legal efficacy from a positive law. Speaking exactly, it is not the convention that obliges legally, or that engenders the legal duty : but the law obliges legally, or engenders the legal duty, through the convention. In other words, the positive law annexes the duty to the convention : or it determines that duties of the given class shall follow conventions of the given description. — Conse- quently, if the sovereign government were bound legally by the fundamental civil pact, the legal duty lying on the go- vernment were the creature of a positive law : that is to say, the legal duty lying on the government were the creature of a positive law annexing the duty to the pact. And, seeing that a law set by the government to itself were merely a law through a metaphor, the positive law annexing the duty to the pact would be set to the sovereign government by another and superior sovereign. Consequently, the sovereign go- vernment legally bound by the pact would be in a state of subjection. — Through a positive law set by their own sove- reign, the subjects might be bound legally to keep the origi- nal covenant. But the legal or political duty thus incumbent on the subjects, would properly proceed from the law set y iirisprudence deteinnined. 315 by tlieir own sovereign, and not from the covenant itself. Lect. vi If they were bound legally to keep tbe original covenant, witbont a positive law set by their own sovereign, the sub- jects would be bound legally to keep the original covenant, through a positive law set by another sovereign : that is to say, they would be in a state of subjection to their own sovereign government, and also to a sovereign government conferring rights upon their own. Every convention which obliges (properly or improperly), derives its efficacy from law (proper or improper). As obli- ging legally, a convention derives its efficacy from law positive : As obliging religiously or morally, it derives its efficacy from the law of God or from positive morality. — • Consequently, if the sovereign or subjects were bound reli- giously by the fundamental civil pact, the religious duty lying on the sovereign, or the religious duty lying on the subjects, would properly proceed from the Divine law, and not from the pact itself. The party bound religiously would be bound by the law of God through the original covenant : or the religious duty lying on the party, would be annexed to the original covenant by the law of God. Now the proper absolute end of an independent political society, and the nature of the index to the law of God, are conceived differently by different men. But whatever be the absolute end of an independent political society, and what- ever be the nature of the index to the law of God, the sove- reign would be bound religiously, without an original cove- nant, to govern to that absolute end : whilst the subjects would be bound religiously, without an original covenant, to render to the sovereign the obedience which the accomplish- ment of the end might require. Consequently, whether it consisted or conflicted with that proper absolute end, the original covenant would not oblige religiously either of the two parties. — If the original covenant consisted with that absolute end, the original covenant wou.ld be superfluous, and therefore would be inoperative. The religious duties lying on the sovereign and subjects, would not be effects or conse- quences, mediately or immediately, of the fundamental civil pact. Inasmuch as the Divine law would impose those re- ligious duties, although the pact had not been made, they would not be effects or consequences annexed to the pact by the law, or would not be imposed by the law through the pact. — If the original covenant conflicted with tha,t absolute end, it would also conflict with the law which is 3i6 The Province of LectVI the source of religious obligations, and would not oblige ' ^ religiously tbe sovereign government or its subjects. For example : Let us suppose that the principle of utility is the index to the law of God ; and that, since the prin- ciple of utility is the index to the law of God, the greatest possible advancement of the common happiness or weal is the proper absolute end of an independent political society. Let us suppose, moreover, that the accomplishment of this absolute end was the scope of the original covenant. Now no religious obligation would be laid on the sovereign or subjects through the fundamental pact. For the sovereign would be bound religiously, without the fundamental pact, to govern to the very end at which its authors had aimed : whilst the subjects would be bound religiously, without the fundamental pact, to render to the sovereign the obedience which the accomplishment of the end might require. And if the accomplishment of this same end were not the scope of the pact, the pact would conflict with the law as known through the principle of utility, and would not oblige re- ligiously either of the two parties. To make a promise which general utility condemns, is an offence against the law of God : but to break a promise of a generally pernicious tendency, is the fulfilment of a religious duty. And though the original sovereign or the original subie(^ts might have been bound religiously by the original covenant, why or how should it bind religiously the following sove- reigns or subjects ? Duties to the subjects for the time being, would be laid by the law of God on all the following sovereigns ; and duties to the sovereign for the time being, would be laid by the law of God on all the following subjects : but why should those obligations be laid on those following parties, through the fundamental pact ? through or in con- sequence of a pact made without their authority, and even without their knowledge ? Legal obligations often lie upon parties, (as, for example, upon heirs or administrators,) through or in consequence of promises made by other par- ties whose legal representatives they are : whose faculties or means of fulfilling obligations devolve or descend to them by virtue of positive law. And I perceive readily, why the legal obligations which are consequent on those promises, extend from the makers of the promises to the parties who legally represent them. It is expedient, for various reasons, that positive law should impose obligations on the makers of certain promises : and for the same, or nearly the same, y urisprudence determined. 317 reasons, it is expedient that the legal duties which, are laid lect. yi on the makers themselves, should pass to the parties who ' ' " legally represent them, and who take their faculties or means. But I am unable to perceive, why or how a promise of the original sovereign or subjects should bind religiously the following sovereigns or subjects : Though I see that the cases of legal obligation to which I now have adverted, pro- bably suggested the groundless conceit to those who devised the hypothesis of a fundamental civil pact. If the sovereign were bound morally to keep the original covenant, the sovereign would be bound by opinions current amongst the subjects, to govern to the absolute end at which its authors had aimed : And if the subjects were bound mo- rally to keep the original covenant, the subjects would be bound severally by opinions of the community at large, to render to the sovereign the obedience which the accomplish- ment of the end might require. But the moral obligations thus incumbent on the sovereign, with the*moral obligations thus incumbent on the subjects, would not be engendered or affected by the original covenant. They would not be imposed by the positive morality of the community, through or in consequence of the pact. For the opinions obliging the sovereign to govern to that absolute end, with the opi- nions obliging the subjects to render that requisite obedi- ence, would not be consequents of the pact, but would have been its antecedents : inasmuch as the pact itself would have been made by the founders of the community, because those very opinions were held by all or most of them. We may, if we like, imagine and assume, that the fancied original covenant was conceived and constructed by its authors, with some particularity and precision : that, having determined the absolute end of their union, it specified some of the ends positive or negative, or some of the means or modes positive or negative, through which the sovereign government should rule to that absolute end. The founders, for example, of the independent political society (like the Eoman people who adopted the Twelve Tables), might have adverted specially to the monstrous and palpable mischiefs of ex post facto legislation : and therefore the fancied cove- nant might have determined specially, that the sovereign government about to be formed should forbear from legisla- tion of the kind. And if any of those positive or negative ends were specified by the original covenant, the promise of the subjects to render obedience to the sovereign, was made 3i8 The Provi7ice of Lect. VI with, special reservations : it was not extended to any of "~ ' * tlie cases wherein the sovereign might deviate from any of the subordinate ends which the covenant determined specially. Now the bulk or generality of the subjects, in an inde- pendent political community, might think alike or uniformly concerning the absolute end to which their sovereign govern- ment ought to rule : and yet their uniform opinions concern- ing that absolute end might bind or control their sovereign very imperfectly. Notwithstanding the uniformity of their opinions concerning that absolute end, the bulk of the sub- jects might think variously concerning the conduct of their sovereign : since the proper absolute end of a sovereign po- litical government, or the absolute end for which it ought to exist, is inevitably conceived in a form, or is inevitably stated in expressions, extremely abstract and vague. For example : The bulk or generality of the subjects might pos- sibly concur in thinking, that the proper absolute end of their sovereign political government was the greatest possible advancement of the general or common weal : but whether a positive law made by it ex post facto did or did not comport with its proper absolute end, is clearly a question which they might answer variously, notwithstanding the uniformity of their opinions concerning that paramount purpose. Unless, then, the bulk of the subjects thought alike or uniformly concerning more or fewer of its proper subordinate ends, they hardly would oppose to the government, in any parti- cular case, a uniform, simultaneous, and effectual resistance. Consequently, the sovereign government would not be af- fected constantly by the fear of an effectual resistance from the subject members of the community : and, consequently, their general and uniform opinions concerning its paramount purpose would bind or control it feebly. — But if the mass of the subjects thought alike or uniformly concerning more or fewer of its proper subordinate ends, the uniform opinions of the mass, concerning those subordinate ends, would pro- bably control it potently. Speaking generally, the proper subordinate ends of a sovereign political government (let those ends or means be what they may) may be imagined in forms, or may be stated in expressions, which are neither extremely abstract, nor extremely vague. Consequently, if the government ventured to deviate from any of the subor- dinate ends to which those uniform opinions were decidedly favourable, the bulk or generality of the subjects would pro- y urisprudence determined. 3^9 bablj unite in resenting, and even in resisting its measures : lect. yi for if tliej tried its measures by one and the same standard, ' and if tbat standard or test were determinate and not du- bious, tbeir respective opinions concerning its measures would exactly or nearly tally. Consequently, a fear of en- countering an eflPectual resistance, in case it should venture to deviate from anj^ of those ends, would constantly bold the government to all the subordinate ends which the uniform opinions of the mass decidedly favoured. — The extent to which a government is bound by the opinions of its subjects, and the efficacy of the moral duties which their opmions impose upon it, therefore depend mainly on the two follow- ing causes : Eii'st, the number of its subordinate ends (or the number of the ends subserving its absolute end) concerning which the mass of its subjects think alike or uniformly : secondly, the degree of clearness and precision with which they conceive the ends in respect whereof their opinions thus coincide. The greater is that number, and the greater is that degree, the more extensively, and the more effectually, is the government bound or controlled by the positive mo- rality of the community. Now it follows from what I have premised, that, if an original covenant had determined clearly and precisely some of the subordinate ends whereto the sovereiofn should rule, the sovereign would be bound effectually by the positive mo- rality of the community, to rule to the subordinate ends which the covenant had thus specified : supposing (I, of course, understand) that those same subordinate ends were favoured by opinions and sentiments which the mass of the subjects for the time being held and felt. And here (it might be argued) the sovereign would be bound morally to rule to those same ends, through the fundamental pact, or in consequence of the fundamental pact. For (it might be said) the efficacy of the opinions binding the sovereign go- vernment would mainly arise from the clearness and preci- sion with which those same ends were conceived by the mass of the subjects ; whilst the clearness and precision of their conceptions would mainly arise from the clearness and pre- cision with which those same ends had been specified by the original covenant. It will, however, appear, on a moment's reflection, that the opinions of the generality of the subjects, concerning those same ends, would not be engendered by, but rather would have engendered the covenant: For if most of the subject founders of the independent political society 320 The Province of Lect.vi liad not been affected by opinions exactly similar, wliy were ^" ' those same ends specially determined by the covenant of which those subject founders were the principal authors? And, granting that the clearness with which they were spe- cified by the covenant would impart an answering clearness to the conceptions of the following subjects, that effect on the opinions held by the following subjects would not be wrought by the covenant as being a covenant or 'pact : that is to say, as being a promise, or mutual promises, proffered and accepted. That effect would be wrought by the covenant as being a luminous statement of those same subordinate ends. And any similar statement which might circulate widely (as a similar statement, for example, by a popular and respected writer), would work a similar effect on the opinions of the following subjects. Stating clearly and precisely those same subordinate ends, it would naturally give to their conceptions of those same subordinate ends a corresponding clearness and precision. The following (I think) is the only, or nearly the only case, wherein an original covenant, as being a covenant or pact, might generate or influence any of the duties lying on the sovereign or subjects. It might be believed by the bulk of the subjects, that an agreement or convention (or a promise proffered and ac- cepted) has that mysterious efficacy which is expressly or tacitly ascribed to it by those who resort to the hypothesis of a fundamental civil pact. — It might be believed by the bulk of the subjects, that, unless their sovereign government had promised so to govern, it would not be bound by the law of God, or would not be bound sufficiently by the law of God, to govern to what they esteemed its proper absolute end. It might be believed moreover by the bulk of the subjects, that the promise made by the original sovereign was a promise made in effect by each of the following sove- reigns. And therefore it might be believed by the bulk of the subjects, that their sovereign government was bound religiously to govern to that absolute end, rather because it had promised to govern to that absolute end, than by reason of the intrinsic worth belonging to the end itself. — Now, if the mass of the subjects potently believed these positions, the duties of the government towards its subjects, which the positive morality of the community imposed upon it, would be engendered or affected by the original cove- nant. They would be imposed upon it, wholly or in part, yu7Hsprude7ice determmed. 321 because tlie original covenant had preceded or accompanied lect.yi the institution of the independent political society. For if ^ ^ it departed from any of the ends determined by the origi- nal covenant, the mass of its subjects would be moved to anger, (and perhaps to eventual rebellion,) by its breach of its 'promise, real or supposed, rather than by that misrule of which they esteemed it guilty. Its breach of its promise, as being a breach of a promise, would be the cause of their offence, wholly or in part. For they would impute to the promise, real or supposed, a proper and absolute worth ; or they would care for the promise, real or supposed, without regard to its scope and tendency. It appears from the foregoing analysis, that, although the formation of the independent political society had really been preceded by a fundamental civil pact, none of the legal or religious duties lying on the sovereign or subjects could be engendered or influenced by that preceding con- vention : that there is only a single case, or are only a few cases, wherein it could engender or influence any of the moral duties lying on the same parties. It will appear from the following analysis, that, where it might engender or influence any of those moral duties, that preceding con- vention would probably be pernicious. Of the duties of the sovereign towards the subjects, and of the duties of the subjects towards the sovereign, it is only those which are moral, or are imposed by positive mo- rality, that any original covenant could possibly affect. And, considered with reference to those, an original covenant would be simply useless, or would be positively pernicious. An original covenant would be simply useless, if it merel}^ determined the absolute end of the sgvereign political govern- ment : if it merely determined that the absolute end of the government was the greatest possible advancement of the com- mon happiness or weal. For though the covenant might give uniformity to the opinions of the mass of the subjects, it would only affect their opinions concerning that absolute end : And, as I have shown already, the uniformity of their opinions concerning the paramount purpose, would hardly influence the conduct of their sovereign political government. But the covenant might specify some of the means, or some of the subordinate or instrumental ends, through which the government should rule to that its absolute end, or through which it should so rule as to further the com- mon weal. And as specially determining any of those means, VOL. I. " T 322 The Province of Lect.vi or any of the subordinate ends to which the government ' ' ' should rule, the original covenant would be simply useless, . or would be positively pernicious. For the opinions of the following members of the inde- ,A tS"' ^' >\ pendent political community, concerning the subordinate p'^ ^ ^ ends to which the government should rule, would or would not be affected by the covenant or pact of the founders. If the covenant of the founders of the community did not affect the opinions of its following members, the cove- nant would be simply useless. If the covenant of the founders of the community did affect the opinions of its following members, the covenant probably would be positively pernicious. For the opinions of the following members would probably be affected by the covenant as being a covenant or pact made by the founders. They probably would impute to the subordinate ends specified by the original covenant, a worth extrinsic and arbitrary, or independent of their intrinsic merits. A belief that the specified ends were of a useful or beneficent tendency, or were ends tending to the furtherance of the common happi- ness or weal, would not be their reason, or would not be their only reason, for regarding the ends with respect. They probably would respect the specified ends, or probably would partly respect them, because the venerable founders of the independent political society (by the venerable covenant or pact which was the basis of the social fabric) had determined that those same ends were some of the ends or means through which the weal of the community might be furthered by its sovereign government. Now the venerable age or times wherein the community was founded, would probably be less enlightened (notwithstanding its claims to veneration) than any of the ensuing and degenerate ages through which the community might endure. Consequently, the following per- nicious effect would be wrought by the original covenant. The opinions held in an age comparatively ignorant, concern- ing the subordinate ends to which the government should rule, would influence more or less, through the medium of the covenant, the opinions held, concerning those ends, in ages comparatively knowing. — Let us suppose, for example that the formation of the British community was preceded by a fundamental pact. Let us suppose, (a ' most unforced * supposition,) that the ignorant founders of the community deemed foreign commerce hurtful to domestic industry. Let us, therefore, suppose, moreover, that the government about yurisprudence determined. 323 to be formed promised for itself and its successors, to ^?''o^6c^ Lect. Yi the industry of its own society, by forbidding and preventing ' ' ' the importation of foreign manufactures. ISTow if the funda- mental pact made by our worthy ancestors were devoutly reverenced by many of ourselves, it would hinder the diffusion of sound oeconomical doctrines through the present commu- nity. The present sovereign government would, therefore, be prevented by the pact, from legislating wisely and use- fully in regard to our commercial intercourse with other independent nations. If the government attempted to with- draw the restrictions which the laws of preceding govern- ments have laid on our foreign commerce, the fallacies which now are current, and the nonsense which now is in vogue, would not be the only fallacies, and would not be the only nonsense, wherewith the haters of improvement would be- labour the audacious innovators. All who delighted in 'things ancient,' would certainly accuse it of infringing a principle which was part of the very basis whereon the community rested : which the wise and venerable authors of the funda- mental pact itself had formerly adopted and consecrated. ^Nay, the lovers of darkness assuredly would afl&rm, and probably would potently believe, that the government was incompetent to withdraw the restrictions which the laws of preceding governments have laid on our foreign commerce : that being, as it were, a privy of the first or original 1 government, it was estopped by the solemn promise which I that government had given. Promises or oaths on the part of the original sovereign, or promises or oaths on the part of succeeding sovereigns, are not the efficient securities, moral or religious, for bene- ficent government or rule. — -The best of moral securities, or the best of the securities yielded by positive morality, would arise from a wide diffusion, through the mass of the subjects, of the soundest political science which the lights of the age j could afford. If they conceived correctly the paramount end of their government, with the means or subordinate ends through which it must accomplish that end, none of its measures would be grossly foolish or wicked, and its conduct positive and negative would commonly be wise and bene- ficent. — The best of religious securities, or the best of the securities yielded by religious convictions, would arise from worthy opinions, held by rulers and subjects, concerning the wishes and purposes of the Good and Wise Monarch, and Y 2 324 The Province of Lect.vi concerning the nature of the duties whicli lie lays upon earthly sovereigns. V 2. It appears from the foregoing strictures on the hypo- thesis of the original covenant, that the hypothesis is need- less, and is worse than needless : that we are able to account sufficiently, without resorting to the hypothesis, for the duties of subjects towards their sovereign government, with the duties of the sovereign government towards its subjects ; and that, though the formation of the independent political society had really been preceded by a fundamental civil pact, scarce any of those obligations would be engendered or in- fluenced by that preceding agreement. It will appear from " the following strictures, that the hypothesis of the funda- mental pact is not only a fiction, but is a fiction approaching to an impossibility : that the institution of a iroXi^ or civitas, or the formation of a society political and independent, was never preceded or accompanied, and could hardly be preceded or accompanied, by an original covenant properly so called, or by aught resembling the idea of a i3roper original covenant. Every convention properly so called, or every pact or agreement properly so called, consists of a promise (or mutual promises) proffered and accepted. Wherever mutual promises are proffered and accepted, there are, in strictness, two or more conventions : for the promise proffered by each, and accepted by the other of the agreeing parties, is of itself an agreement. But where the performance of either of the promises is made by either to depend on the performance of the other, the several conventions are cross or implicated conventions, and commonly are deemed, therefore, one con- vention. — Where one only of the agreeing parties gives or passes a promise, the promise which is proffered by the one, and which is accepted by the other, is, in the language of jurists, ' a convention unilateral \ Where each of the agreeing parties gives or passes a promise, and the performance of either of the promises is made to depend on the performance of the other, the several promises respectively proffered and accepted, are, in the language of jurists, a 'convention hilateraV. Where each of the agreeing parties gives or passes a promise, but the performance of either of the pro- mises is not made to depend on the performance of the other, each of the several conventions is a separate unilateral con- vention, although the several conventions be made at one time. For example : If I promise you to render you a service, and if you accept the proffered promise, the promise prof- y ttrisprudence deter7ni7ied. fered and accepted forms a convention unilateral. If I promise yo'Uj to render you a service, and you promise me to render me a service therefor, the promises respectively proffered, if they are respectively accepted, form a convention bilateral. If each of us promise the other to render the other a service, but the render of either of the services is not made to depend on the render of the other, the promises proffered and ac- cepted are separate unilateral conventions, although they be proffered and accepted at one and the same time. — Since, then, a convention bilateral is formed by the implication of several unilateral conventions, every convention is properly a unilateral convention, or a promise proffered and accepted. The essentials of a convention may be stated generally thus. 1. The promisor, or the party who proffers the pro- mise, promises the promisee, or the party to whom it is prof- fered, that he will do or perform some given act or acts, will forbear or abstain from some given act or acts, or will do or perform and also forbear or abstain. And the acts or forbearances which he promises, or the acts and forbearances which he promises, may be styled the object of his promise, and also the object of the convention. 2. The promisor signifies to the promisee, that he intends to do the acts, or to observe the forbearances, which form the object of his promise. If he signifies this his intention by spoken or written words, (or by signs which custom or usage has ren- dered equivalent to words,) his proffered promise is express. If he signifies this his intention by signs of another nature, his proffered promise is still a genuine promise, but is implied or tacit. If, for example, I receive goods from a shopkeeper, telling him that I mean to pay for them, I promise expressly to pay for the goods which I receive : for I signify an inten- tion to pay for them, through spoken or written language. Again ; Having been accustomed to receive goods from the shopkeeper, and also to pay for the goods which I have been accustomed to receive, I receive goods which the shopkeeper delivers at my house, without signifying by words spoken or written, (or by signs which custom or usage has rendered equivalent to words,) any intention or purpose of paying for the goods which he delivers. Consequently, I do not pro- mise expressly to pay for the particular goods. I promise, however, tacitly. For by receiving the particular goods, under the various circumstances which have preceded and accompanied the reception, I signify to the party who delivers them, my intention of paying for the goods, as decidedly as 326 The Province of Lect. VI I should signify it if I told him tliat I meant to pay. Tlie ""^ ' ^ only difference between tlie express, and the tacit or implied promise, lies in the difference between the natures of the signs through which the two intentions are respectively signified or evinced. 3. The promisee accepts the proffered promise. In other words, he signifies to the promisor, ex- pressly or tacitly, his belief or expectation that the latter will do or forbear agreeably to the intention or purpose which the latter has expressed or intimated. Unless the promise be accepted, or such a belief or expectation be sig- nified expressly or tacitly, the promise is not a convention. If the acts or forbearances which form the object of the promise be afterwards done or observed, they are done or observed spontaneously by the promising party, or not by reason of the promise considered as such : for the promise would not be enforced (legally or morally) by a rational su- preme government or a sane public opinion. In the technical language of the Eoman jurists, and by most of the modern jurists who are familiar with that technical language, a pro- mise proffered but not accepted is styled a pollicitation. Consequently, the main essentials of a convention are these : First, a signification by the promising party, of his intention to do the acts, or to observe the forbearances, which he promises to do or observe : secondly, a signification by the promisee, that he expects the promising party will fulfil the proffered promise. And that this signification of intention and this signification of expectation are of the very essence of a proper convention or agreement, will ap- pear on a moment's reflection. The conventions enforced by positive law or morality, are enforced legally or morally for various reasons. But of the various reasons for enforcing any convention, the following is always one. — Sanctions apart, a convention naturally raises in the mind of the promisee, (or a convention tends to raise in the mind of the promisee,) an expectation that its object will be accomplished : and to the expectation naturally raised by the convention, he as naturally shapes his conduct. Now, as much of the business of human life turns or moves upon conventions, frequent disappointments of those expec- tations which conventions naturally excite, would render human society a scene of baffled hopes, and of thwarted projects and labours. To prevent disappointments of such expectations, is therefore a main object of the legal and moral rules whose direct and appropriate purpose is the en- y 7irisprudence determined. forcement of pacts or agi^eements. But tlie promisee would not entertain the expectation, unless tlie con-esponding in- tention were signified by tlie promising party : and, unless tlie existence of tlie expectation were signified by tlie pro- misee, tlie promising party would not be apprised of its existence, altliougk tlie profPered promise liad actually raised it. Without the signification of the intention, there were no promise properly so called : without the signification of the expectation, there were no sufficient reason for enforcing the genuine promise which really may have been profPered. It follows fi'om the foregoing statement of the main es- sentials of a convention, that an original covenant properly so called, or aught resembling the idea of a proper original covenant, could hardly precede the formation of an indepen- dent political society. According to the hypothesis of the original covenant, in so far as it regards the promise of the original sovereign, the sovereign promises to govern to the absolute end of the union, (and, perhaps, to more or fewer of its subordinate or instrumental ends) . And the promise is proff'ered to, and is accepted by, all the original subjects. In case the inchoate government be a government of one, the promise passes from the monarch to all the members of the community (except- ing the monarch himself). In case the inchoate government be a government of a number, it passes from the sovereign body (in its collective and sovereign capacity) to ah the subject members of the inchoate community (including the members of the body considered severally). — According to the h}^othesis of the original covenant, in so far as it re- The incidental statement, in the test, of the essentials of a convention or pact, is sufficient for the limited purpose to ■n-hich I have there placed it. If I vere expounding directly the rationale of the doctrine of contracts, I should annex to the general statement which I have placed in the text, many explanations and restrictions ^vhich now I must pass in silence. A good exposition of that rationale (which jargon and bad logic have marvellously perplexed and ob- scured) would involve a searching analy- sis of the following intricate expressions : promise ; pollicitation : convention, agree- ment, or pact : contract ; quasi-contract. But I will add to the statement in the text, before I conclude the note, the fol- lowing remark on that consent which is of the essence of a convention. That consent which is of the essence of a con- vention, is formed of the intention sig- nified by the promisor, and of the cor- responding expectation signified by the promisee. This intention with this ex- pectation is styled the consensus of the parties, because the intention and expec- tation chime or go together, or because they are directed to a common object; namely, the acts or forbearances which form the object of the convention. But the term consent, as used with a wider meaning, signifies any compliance with any wish of another. And. taking the term with this wider meaning, subjects (as I have shown already) consent to obey their sovereign, whether they pro- mise or not to render obedience, and whatever be the nature of the motives by which they are determined to render it. 328 The Proviiice of Lect.yi gards tlie promise of the original subjects, they promise to render to the sovereign a passive and unlimited obedience, or they promise to render to the sovereign such a qualified obedience as shall consist with a given end or with given ends. And the promise of the subjects passes from all the subjects : from all and each of the subjects to the monarch or sovereign body, or from each of the subjects to all and each of the rest. In case the inchoate government be a government of one, it passes from all the members of the inchoate community (excepting the monarch). In case the inchoate government be a government of a number, it passes from all the members of the inchoate community (including the several members of the sovereign body), f Now it appears from the foregoing statement of the main 'i essentials of a convention, that the promise of the sovereign ' to the subjects would not be a covenant properly, unless the subjects accepted it. But the subjects could hardly accept it, unless they apprehended its object. Uuless they appre- hended its object, it hardly could raise in their minds any determinate expectation : and unless it raised in their minds a determinate expectation, they hardly could signify virtually any determinate expectation, or could hardly accept virtually the proflPered promise. The signs of acceptance which might actually fall from them, would not be signs of virtual accept- ance, but would be in reality unmeaning noise or show. — IN^ow the ignorant and weaker portion of the inchoate com- munity (the portion, for example, which was not adult) could hardly apprehend the object of the sovereign's promise, whether the promise were general or special: whether the sovereign promised generally to govern to the absolute end of the independent political society, or promised moreover specially to govern specially and directly to certain subordi- nate ends. We know that the great majority, in any actual community, have no determinate notions concerning the absolute end to which their sovereign government ought to rule : that they have no determinate notions concerning the ends or means through which it should aim at the accom- plishment of that its paramount purpose. It surely, therefore, were absurd to suppose, that all or many of the members of any inchoate community would have determinate notions (or notions approaching to determinateness) concerning the scope of their union, or concerning the means to its attain- ment. Consequently, most or many of the original subjects would not apprehend the object of the original sovereign's yicrisprttdence determined. 3^9 promise: and, not apprehending its object, they wonld not Lect.ti accept it iu effect, although they might accept it in show. " ' " With regard to most or many of the original subjects, the promise of the original sovereign were hardly a covenant or pact, but were rather a pollicitation. The remarks which I now have made on the promise of the original sovereign, will apply, with a few adaptations, to the promise of the original subjects. If really they proffered to the sovereign (or if really they proffered to one another) that promise to render obedience which the hypothesis sup- poses or feigns, they would signify expressly or tacitly an intention of fulfilling it. But such a signification of 'inten- tion could not be made by all of them, or even by most or many of them : for by most or many of them, the object of the fancied promise would not be apprehended determi- nately, or with a distant approach to determinateness. — If you feign that the promise to obey passes from the subjects to the subjects, you thicken the absurdity of the fiction. You fancy that a promise is proftered by parties to whom the object of the jiromise is nearly or quite unintelligible : and, seeing that the promisors are also the promisees, you fancy that the promise is accepted by parties to whom the object of the promise is ecjually incomprehensible. If you would suppose an original covenant which as a mere hypothesis will hold water, you must suppose that the society about to be formed is composed entirely of adult members : that all these adult members are persons of sane mind, and even of much sagacity and much judgment : and that being very sagacious and very judicious, they also are perfectly familiar, or at least are passably acquainted, with jDolitical and ethical science. On these bare possibilities, you may build an original covenant which shall be a cohe- rent fiction. It hardly is necessary to add, that the hypothesis of the i original covenant, in any of its forms or shapes, has no \ foundation in actual facts. There is no historical evidence, that the hypothesis has ever been realised : that the forma- tion of any society political and independent has actually been preceded by a proper original covenant, or by aught approaching to the idea. In a few societies political and independent, (as, for exam- ple, in the Anglo-American States,) the sovereign political government has been determined at once, and agreeably to a scheme or plan. But, even in these societies, the parties 330 The Province of Lect. vi^ wlio determined tlie constitution (either as sclieming or planning, or as simply voting or adopting it) were merely a slender portion of the whole of the independent community, and were virtually sovereign therein before the constitution was determined : insomuch that the constitution was not constructed by the whole of an inchoate community, but rather was constructed by a fraction of a community already consummate or complete. If you would show me an actual case exactly squaring with the idea of a proper original covenant, you must show me a society political and inde- pendent, with a government political and sovereign, which all the members of the society who were then in existence jointly founded and constituted. You must show me, also, that all the subject or sovereign authors of this society and government were parties expressly or tacitly to a true or genuine convention resembling the original covenants which I have mentioned above. — In most societies political and in- dependent, the constitution of the supreme government has grown. By which fustian but current phrase, I intend not to intimate that it hath come of itself, or is a marvellous something fashioned without hands. For though we say of governments which we mean to praise, ' that they are go- vernments of laws, and not governments of men,' all human governments are governments of men : And, without men to make them, and without men to enforce them, human laws were just nothing at all, or were merely idle words scribbled on paper or parchment. I intend to intimate, by the phrase in question, that the constitution of the supreme government has not been determined at once, or agreeably to a scheme or plan : that positive moral rules of successive generations of the community (and, perhaps, positive laws made by its successive sovereigns) ha,ve determined the constitution, with more or less of exactness, slowly and unsystematically. Con- sequently, the supreme government was not constituted by the original members of the society : Its constitution has been the work of a long series of authors, comprising the original members and many generations of their followers. And the same may be said of most of the ethical maxims which opinions current vdth the subjects constrain the sove- reign to observe. The original sovereign government could not have promised its subjects to govern by those maxims. For the current opinions which actually enforce those max- ims, are not coeval with the independent political society, but rather have arisen insensibly since the society was Jurisprudence determined. 331 formed. — In some societies political and independent, oatlis Lect. VI or promises are made by rnlers on tlieir accession to office. "~ ' ^ But sncli an oatli or promise, and an original covenant to whicli tlie original sovereign is a promising party, liave little or no resemblance. That tlie formation of tbe society political and independent preceded the conception of the oath itself, is commonly implied by the terms of the latter. The swearing party, moreover, is commonly a limited mon- arch, or occupies some position like that of a limited mon- arch : that is to say, the swearing party is not sovereign, but is merely a limb or member of a sovereign body. And if actual original covenants might be detected in history, they would not sustain the hypothesis. Tor, ac- cording to the hypothesis, an original covenant 7iecessar{ly precedes the foimiation of an independent political society. And in numerous cases of independent political society, the formation of the society, as we know fr^om history, was 7iot preceded by an original covenant : Or, at least, the forma- tion of the society, as we know from history, was not pre- ceded by an express original covenant. It is said, however, by the advocates of the hypothesis, . (for the purpose of obviating the difficulty which these nega- tive cases present,) that a tacit original covenant preceded the formation of the society, although its formation was not preceded by an express covenant of the kind. Now (as I have shown above) an actual signification of intention on the part of the promisor, with an actual accept- ance of the promise on the part of the promisee, are of the very essence of a genidne convention or pact, be it express, or be it tacit. The only difference between an express, and a tacit or implied convention, lies in this : That, where the convention is express, the intention and acceptance are sig- nified by language, or by signs which custom or usage has rendered equivalent to language : but that, where the con- vention is tacit or implied, the intention and acceptance are not signified by words, or by signs which custom or usage has made tantamount to words. ^'^ Quasi-contracts, or contracts g^iiasi contract. It is some fact or event, not du or ?^rz, ought to be distiugnished carefully genuine convention, to which positive from tacit or implied contracts. A tacit la^r annexes an obligation, as if {qu^isi or implied contract is a genuine contract: or uti) it were & genuine convention, ihat is to say, a genuine convention And the analogy between a contract and which binds legally, or to which positive a contract qzca^i or 2iti, merely lies in law annexes an obligation. But a quasi- the resemblance between the two obli- contraet is not a genuine convention, gations which are annexed respectively and, by consequence, is not a genuine to the two facts or events. In other re- 332 The Provhice of Lkct.yi Most or many, tlierefore, of the members of the inchoate ' society, conld not have been parties, as promisors or pro- misees, to a tacit original covenant. Most or many of the members could not have signified virtually the requisite in- tention or acceptance : for they could not have conceived the object (as I have shown above) with which, according to the hj^pothesis, an original covenant is concerned. Besides, in many of the negative cases to which I now am adverting, the position and deportment of the original sovereign government, and the position and deportment of Now rights in 'personam, or ohligationes, arise principally from facts of two classes : namely, genuine contracts express or tacit, and delicts or injuries. But, besides contracts and delicts, there are facts or events, not contracts or delicts, to which positive law annexes ohligationes. By the Roman lawyers, these facts or events are styled (/zwcsi-con tracts : or the obli- gations annexed to these facts or events, are styled obligations qiiasi ex contractu. These facts or events are styled g'Z^asi-con- tracts, for two reasons. 1. Inasmuch as the obligations annexed to them resemble the obligations annexed to contracts, they are, in that respect, analogous to contracts. 2. The only resemblance be- tween their species or sorts, lies in the resemblance between the obligations which are respectively annexed to them. ConseqTiently, the common name of quasi- contracts is applied to the genus or kind,. for want of a generic term more apt and significant. — As the expression is em- ployed by the Roman lawyers, ' obliga- tion's quasi ex contractu' is equivalent to ^ anomaloits obligations' or to '■mis- cellaneous obligations :' that is to say, ohligationes, or rigiits in personam, which are annexed to facts that are neither contracts nor delicts ; and which being annexed to facts that are neither con- tracts nor delicts, cannot be brought under either of those two principal classes into which rights in 'personam are aptly divisible. ' Ohligationes (say the Digests) aut ex contractu nascuntur, aut ex male- ficio (sive delicto), aut propria quodam jure ex variis causarum figuris! — The confusion of quasi-contracts with tacit yet genuine contracts, is certainly not imputable to the Roman jurists. But with modern lawyers, (how, I cannot con- jecture,) this gross confusion of ideas is extremely frequent. It is, indeed, the cause of most of the nonsense and jar- gon which have covered the nature of conventions with nearly impenetrable obscurity. spects, the two facts are dissimilar. For example : The payment and receipt of money erroneously supposed to be owed, is a fact or event amounting to a contract quasi. There is nothing in the fact or event that savours of a convention or pact ; for the fulfilment of an existing obligation, and not the creation of a future obligation, is the scope or design of the transaction between the payor and payee. But since the money is not owed, and is not given as a gift, a legal obligation to return it lies upon the payee from the moment of the erroneous payment. Although he is not obliged ex contractu, he is obliged quasi ex con- tractu, as if he truly had contracted to return the money. The payee is obliged to return it, as he might have been obliged, ^/ he had promised to return i:, and the payor had accepted his promise. In the language of English jurispru- dence, facts or events which are contracts qtiasi or uti, are styled implied contracts, or contracts which the law implies : that is to say, contracts quasi or uti, and genuine though tacit contracts, are de- noted by a common name, or by names nearly alike. And, consequently, con- tracts, quasi or uti, and implied or tacit contracts, are commonly or frequently confounded by English lawyers. See, in particular, Sir William Blackstone's Commentaries, B. II. Ch. 30., and B, III. Ch. 9. As the reader may see in the annexed outline (pp. 46, 55), rights of one great class are rights in personam certain: that is to say, rights which avail exclu- sively against persons determined speci- fically, or which answer to duties that lie exclusively on persons determined specifically. To the duties answering to such rights, the Roman lawyers limit the expression ohligationes : and since they have no name appropriate to rights of the class, they apply that expression to the rights themselves as well as to the answering duties which the rights import. y tmsprMdence determined. 333 the bulk of the original subjects, exclude tlie supposition Lect.vi of a tacit original covenant. For example : Where the ' original government begins in a violent conquest, it scarcely promises tacitly, by its violences towards the vanquished, that it will make their weal the paramount end of its rule. And a tacit promise to render obedience to the intrusive and hated government, scarcely passes from the reluctant sub- jects. They presently n'ill to obey it, or presently consent to obey it, because they are determined to obey it, by their fear of its military sword. But the iijill or consent to obey it pre- sently, to which they are thus determined, is scarcely a tacit promise (or a tacit manifestation of intention) to render it future obedience. For they intimate pretty significantly, by the reluctance with which they obey it, that they would kick with all their might against the intrusive government, if the military sword which it brandishes were not so long and fearful. By the recent and present advocates of the hypothesis of the original covenant, (who chiefly are German writers on political government and society,) it commonly is admitted that original covenants are not historical facts : that an actual original covenant never preceded the formation of any actual society political and independent. But they zealously maintain, notwithstanding this sweeping admission, that the only sufficient basis of an independent political society is a fundamental civil pact. Their doctrine, therefore, touching the original covenant amounts to this : namely, that the original covenant hath not preceded the formation of cmivj society political and independent : but that though it hath not preceded the formation of any, it yet precedeth inevitably the formation of every. — Such is a taste or sample of the high ideal philosophy which the Germans oppose exultingly to the philosophy of Bacon and Locke : to the earthy, gro- velling, empirical philosophy, which deigns to scrutinise facts, or stoops to observation and induction. It would seem that the propounders of this lucid and cohe- rent doctrine, mean to insist on one or another of the two following positions. 1. That an express original covenant has not preceded the formation of any society political and independent : but that a tacit orioinal covenant (or an orioi- nal covenant imported by the fact of the formation) neces- sarily precedes the formation of every society of the kind. 2. That the formation of a society political and independent must have been preceded by a fundamental civil pact, if the 334 The Province of Lect.vi sovereign political government be rightful, lawful, or just — ■ ^ ' ' wenn es rechtshestdndig sein soil : ' Meaning by ' rightful,' 'lawful,' or 'just,' consonant to the law of God (as known somehow or other), or consonant to the right or justice (mentioned in foregoing pages) which exists independently of law, and is the test of all law. On which of these positions they mean to insist, I cannot determine : for they waver impartially between the two, or evince a perceptible inclination to neither. And an attempt to determine the position on which they mean to insist, were profitless labour : seeing that both positions are false and absurd. — As I have shown above, a tacit original covenant could scarcely precede the formation of an independent po- litical society. And;, granting the second of the two posi- tions, no sovereign government has been or can be lawful. Tor, according to their own admission, the formation of a society political and independent was never preceded actually by a fundamental civil pact : And, as I have shown above, a proper original covenant, or aught approaching to the idea, could scarcely precede the formation of any society of the kind.(«) 3. I close my strictures on the hypothesis of the original covenant, with the following remark : It would seem that the hypothesis was suggested to its (a) For the notions or language, con- Tenant (meaning this same doctrine cerning the original covenant, of recent touching the original covenant) is the German writers on political government very basis of the science of politics : that, and society, I refer the curious reader to without a correct conception of the ori- the following books.— 1. Kant's Meta- ginal covenant, we cannot judge soundly physical Principles of Jurisprudence, on any of the questions or problems For the original covenant, see the head which the scif-nee of politics presents. Das Staatsreckt. — 2, A well made Philo- ' Der gpsellschaftliche Vertrag (says he) sophical Dictionary (in four octavo ist die Basis der allgemeinen Staatswis- volumes), by Professor Krug of the senschaft. Fine richtige Vorstellung von University of Leipzig. For the original diesem Vertrage ist das erste Erf order- covenant, see the article Staatsurspnmg . niss zu einem reinen Urtheile iiber alle — 3. An Exposition of the Political Fragen und Aufgaben der Politik.' Nay, Sciences {8taatswisse7ischqften), by Pro- he thinks that this same doctrine touch- fessor Politz of the same University : an ing the original covenant, is probably elaborate and useful work in five octavo the happiest result of the newer Grerman volumes. For the original covenant, see philosophy; insomuch that the fairest the head Staats und Staatenrecht. — j^roduct of the newer G-erman philosophy, 4. The HistoricalJournal (for Nov. 1799) is the conceit of an original covenant of Fr. V. Gentz : a celebrated servant of which never was made anywhere, but the Austrian government. which is the necessary basis of political For, in Germany, the lucid and co- government and society. — Warmly ad- herent doctrine to which I have adverted miring German literature, and profound- in the text, is not maintained exclusively ly respecting German scholarship, I by mere metaphysical speculators, and cannot but regret the proneness of Ger- mere university-professors, of politics man philosophy to vague and misty and jurisprudence. We are gravely as- abstraction, sured by Gentz, that the original co- y urisprudence determmed. 335 authors, by one or another of these suppositions. 1. Where Lect. Yi there is no convention, there is no duty. In other words, whoever is obliged, is obliged through a promise given and accepted. 2. Every convention is necessarily followed by a duty. In other words, wherever a promise is given and accepted, the promising party is obliged through the pro- mise, let its object and tendency be what they may. — It is assumed, expressly or tacitly, by Hobbes, Kant, and others, that he who is bound has necessarily given a promise, and that he who has given a promise is necessarily bound. It follows from the first supposition, that unless the sove- reign and subjects were bound through a pact, neither of the parties would lie under duties to the other. It follows from the second supposition, that if the sovereign and subjects were parties to an original covenant, (either immediately, or as representing the founders of the community,) each of the parties would be bound to the other, assuredly and indissolubly. As the duties of each towards the other would be imposed through a pact, they would possess a certain sacredness which perhaps they might want if they were imposed otherwise. But both suppositions are grossly and obviously false. — Of religious, legal, and moral duties, some are imposed by the laws which are their respective sources, through or in consequence of conventions. But others are annexed to facts which have no resemblance to a convention, or to aught that can be deemed a promise. Consequently, a sove- reign government might lie under duties to its subjects, and its subjects might lie under duties towards itself, though neither it nor its subjects were bound through a pact. — And as duties are annexed to facts which are not pacts or conventions, so are there pacts or conventions which are not followed by duties. Conventions are not enforced by divine or human law, without reference to their objects and ' tendencies. There are many conventions which positive morality reprobates : There are many which positive law will not sustain, and many which positive law actively an- nuls : There are many which conflict with the law of God, inasmuch as their tendencies are generally pernicious. Con- sequently, although the sovereign and subjects were jjarties to an original covenant, neither the sovereign nor subjects Avould of necessity be bound by it. From the origin or causes of political government and The dis- society, I pass to the distinction of sovereign governments so^^e^eign^ The Pi'ovince of Lect.vi into governments de jure and governments de facto. For the two topics are so connected, tliat tlie few brief remarks wliicli I sliall make on the latter, may be placed aptlj at the end of my disquisition on the former. In respect of the distinction now in question, governments are commonly divided into three kinnls : First, governments which are governments de jure and also de facto; secondly, governments which are governments de jure but not de facto ; thirdly, governments which are governments de facto but not de jure. A government de jure and also de facto, is a govern- ment deemed lawful, or deemed rightful or just, which is present or established : that is to say, which receives pre- sently habitual obedience from the bulk or generality of the members of the independent political community. A go- vernment de jure but not de facto, is a government deemed lawful, or deemed rightful or just, which, nevertheless, has been supplanted or displaced : fchat is to say, which receives not presently (although it received formerly) habitual obedi- ence from the bulk of the community. A government de facto but not de jure, is a government deemed unlawful, or deemed wrongful or unjust, which, nevertheless, is present or established : that is to say, which receives presently habitual obedience from the bulk of the community. A government supplanted or displaced, and not deemed lawful, is neither a government de facto nor a government de jure. — Any government deemed lawful, be it established or be it not, is a government de jure. By a government, however, de jure, we often mean a government which is deemed lawful, bat which, nevertheless, has been supplanted or displaced. Any established government, be it deemed lawful or be it deemed unlawful, is a government de facto. By a government, how- ever, de facto, we often mean a government which is deemed unlawful, but which, nevertheless, is established or present. — It scarcely is necessary to add, that every government properly so cpJled is a government de facto. In strictness, a so called government de jure but not de facto, is not a government. It merely is that which was a government once, and which (according to the speaker) ought to be a government still. In respect of 'positive laiv, a sovereign political govern- ment which is established or present, is neither lawful nor unlawful : In respect of positive law, it is neither rightful nor wrongful, it is neither just nor unjust. Or (changing the expression) a sovereign political government which is established or present, is neither legal nor illegal. y ttrisprudence determined. 337 / In every society political and independent, tlie actual po- Lect.vi '^sitive law is a creature of the actual sovereign. Although ' it was positive law under foregoing sovereigns, it is positive law presently, or is positive law, through the power and authority of the present supreme government. For though the present government may have supplanted another, and though the supplanted government be deemed the lawful government, the supplanted government is stripped of the might which is requisite to the enforcement of the law con- sidered as positive law. Consequently, if the law were not enforced by the present supreme government, it would want the appropriate sanctions which are essential to positive law, and, as positive law, would not be law imperative : that is to say, as positive law, it would not be law. — To borrow the language of Hobbes, ' The legislator is he (not by whose authority the law was first made, but) by whose authority it continues +o be law.' Consequently, an established sovereign government, in • respect of the positive law of its own independent commu- nity, is neither lawful nor unlawful. If it were lawful or unlawful, in respect of the positive law of its own indepen- dent comrr unity, it were lawful or unlawful by law of its own making, or were lawful or unlawful by its own appoint- ment. Which is absurd. — And if it were lawful or unlaw- ful, in respect of the positive law of another independent community, it were lawful or unlawful by the appointment of another sovereign : that is to say, it were not an actual supreme, but an actual subordinate government. Which also is absurd. In respect of the positive law of that independent commu- nity wherein it once was sovereign, a so called government de jure but not de facto, is not, and cannot be, a lawful government : for the positive law of that independent com- munity is now positive law by the authority of the govern- ment de facto. And though it now were positive law by the authority of the displaced government, the displaced govern- ment, in respect of this law, were neither lawful nor unlaw- ful : for if, in respect of this law, the displaced government were lawful or unlawful, it were lawful or unlawful by law of its own making, or were lawful or unlawful by its own appointment. The truth is, that, in respect of the positive law of that independent commimity, the supplanted govern- ment, though deemed de jure, is unlawful : for, being posi- tive law by the authority of the government de facto, this VOL. I. z 338 The Province of Lect.vi positive law proscribes the supplanted government, and de- ' ^ termines that attempts to restore it are legal wrongs. — In respect of the positive law of another independent commu- nity, a so called government de jure but not de facto, is neither lawful nor unlawful. For if, in respect of this law, it were lawful or unlawful, it were lawful or unlawful by the appointment of the law-maker : that is to say, it were not an ousted supreme, but an ousted subordinate government. In respect, then, of positive law, the distinction of sove- reign governments into lawful and unlawful is a distinction without a meaning. For, as tried by this test, or as mea- sured by this standard, a so called government de jure but not de facto cannot be lawful : And, as tried by the same test, or measured by the same standard, a government de facto is neither lawful nor unlawful. In respect, however, of j>ositive morality, the distinction of sovereign governments into lawful and unlawful, is not a distinction without a meaning. For, in respect of posi- tive morality, a government not de facto is not of necessity unlawful. And, in respect of positive morality, the term ' lawful ' or ' unlawful,' as applied to a government de facto, is not of necessity jargon. A government de facto may be lawful, or a government de facto may be unlawful, in respect of the positive morality of that independent community wherein it is established. If the opinions of the bulk of the community favour the government de facto, the government de facto is morally lawful in respect of the positive morality of that particular society. If the opinions of the bulk of the community be adverse to the government de facto, it is morally unlawful in respect of the same standard. The bulk, however, of the community, may regard it with indifference : or a large por- tion of the community may regard it with favour, whilst another considerable portion regards it with aversion. And, in either of these cases, it is neither morally lawful, nor | morally unlawful, in respect of the positive morality of that independent community wherein it is established. — And || what I have said of a government de facto, in regard to the morality of the community wherein it is established, may also be said of a government not a government de facto, in j| regard to the morality of the community wherein it formerly ruled. I And a government de facto, or a government not de facto, may be morally lawful, or morally unlawful, in respect of the y urisprtidence dete7mtined. 339 positive morality wMcli obtains between nations or states. Lect.yi Tbougli positive international morality looks mainly at the ' ' ^ possession, every government in possession, or every govern- ment de focto, is not acknowledged of course by other establislied governments. In respect, therefore, of positive international morality, a government de facto may be unlaw- ful, whilst a government not de facto may be a government de jure. A government, moreover, de facto ^ or a government not de facto, may be lawful or unlawful in respect of the law of God. Tried by the Divine law, as known through the prin- ciple of utility, a sovereign government de facto is lawfully a sovereign government, if the general happiness or weal requires its continuance : Tried by the same law, as known through the same index, a sovereign government de facto is not lawfully sovereign, if the general happiness or weal requires its abolition. Tried by the Divine law, as known through the principle of utility, a government not de facto is yet a government de jure, if the general happiness or weal requires its restoration : Tried by the same law, as known through the same exponent, a government not de facto is also not de jure, if the general happiness or weal requii^es its exclusion. A positive law may be deJBjied generally in the following manner : or the essential difference of a positive law (or the difference which severs it from a law 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, directly or circuitously, by a sovereign individual or body, to a mem- ber or members of the independent political society wherein its author is supreme. In other words. It is set, directly or circuitously, by a monarch or sovereign number, to a person or persons in a state of subjection to its author. This definition of a positive law is assumed expressly or tacitly throughout the foregoing lectures. But it only ap- proaches to a perfectly complete and perfectly exact defijii- ^^'> It appears from the Author's Me- moranda that he intended to insert here ' Notes on Grovernments de facto and de jure ; ' and on * Rights of sovereign Go- vernments and Governments lawful or imlawful by Divine law.' Also on ' Sove- reignty of the People.' It appears that he intended to connect this subject with that treated of at the conclusion of Lec- ture II.— S. A. A general defiuition of a positive law: Or a general statement of the essen- tial differ- ence by which it is severed from a law not a posi- tive law. This defini- tion of a positive law is assumed expressly 340 The Provmce of Lkct.vi tion. It is open to certain correctives wliich. I now will briefly suggest. or tacitly throughout The party or parties to wliom a law is set, or the party or inji: lectures, parties on whom a duty is laid, are necessarily obnoxious to approached Sanction which enforces the law and the duty. In other to a per- words, evcry law properly so called is set by a superior to an pkte aiiT inferior or inferiors : It is set by a party armed with might, exact defi ^ party or parties whom that might can reach. If the iiition. party to whom it is set could not be touched by the might of its author, its author would signify to the party a wish or desire, but would not impose on the party a proper and And, con sequentl}' the deter niination of the provinct- imperative law. Now (speaking generally) a party who is obnoxious to a legal sanction, or to the might of the author or jurispru- dence, which is of the law which the legal sanction enforces, is a member of hfthe^fore- the independent community wherein the author is sovereign. going- lec tured, onl} In other words, a party who is obnoxious to a legal sanction proaches is a subjcct of the author of the law to which the sanction fectiy com- is annexed. But as none but members of the community ])iete and wherein the law obtains are obnoxious to the le2:al sanction pertectly . . . , , . . , . . exact deter- which enforccs a positive law, the positive law is imposed nimation. exclusively on a member or members of that independent community. Although the positive law may affect to oblige strangers (or parties who are not members of that indepen- dent community), none but members of that independent community are virtually or truly bound by it. — Besides, if the positive law of one independent community bound legally the members of another, the other independent community were not an independent community, but were merely a sub- ordinate community forming a limb of the first. If it bound the sovereign government of the other independent commu- nity, that sovereign government would be in a state of sub- iection to the sovereign author of the law. If it bound the subject members of the other independent community, the sovereign author of the law would usurp the functions and authority of their own sovereign government : or their own sovereign government would be displaced or supplanted by the foreign and intrusive lawgiver. So that if the positive law of every independent community bound legally the mem- bers of others, the subjects in every community would be subject to all sovereigns, and every sovereign government would be sovereign in all societies. In other words, the subject members of every independent community would be in a state of subjection to every supreme government; whilst every supreme government would be the subject of the rest, and, at the same time, would be their sovereign. y tirisprudejice determined. 341 Speaking, then, generally, we may say tliat a positive law Lect. \\ is set or directed exclusively to a subject or subjects of its ^ ' ' author : or that a positive law is set or directed exclusively to a member or members of the community wherein its author is sovereign. But, in many cases, the positive law of a given independent community imposes a duty on a stranger : on a party who is not a member of the given inde- pendent community, or is onl}^ a member to certain limited purposes. For such, in these cases, is the position of the stranger, that, though he is properly a member of a foreign independent community, and therefore is properly a subject of a foreign supreme government, he yet is obnoxious to the sanction by which the duty is enforced, or to the might of the author of the law through which the duty is imposed. And such, in these cases, is also the position of the stranger, that the imposition of the legal duty consists with the sove- reignty of the government of which he is properly a subject. Although the legal duty is laid on one of its subjects, it is not laid on the foreign government itself : nor does the author of the law, by imposing the legal duty, exercise sovereign power in the community of the foreign government, or over one of its subjects as being one of its subjects. — For ex- ample : A party not a member of a given independent com- munity, but living within its territory and within the juris- diction of its sovereign, is bound or obliged, to a certain limited extent, by its positive law. Living within the ter- ritory, he is obnoxious to the legal sanctions by which the law is enforced. And the legal duties imposed upon him by the law are consistent with the sovereignty of the foreign government of which he is properly a subject. For the duties are not imposed upon the foreign government itself, or upon a party within its independent community : nor are they laid upon the obliged party as being one of its sub- jects, but as being a member, to certain limited purposes, of the community wherein he resides. Again : If a stranger not residing within the given community be the owner of land or moveables lying within its territory, a convention of the stranger, with any of its members or a stranger, may be enforced against him by its positive law. For if he be sued on the agreement, and judgment be given for the plain- tiff, the tribunal may execute its judgment by resorting to the land or moveables, although the defendant's body is beyond the reach of its process. And this execution of the judgment consists with the sovereignty of the government 342 The Province of Lect.vt of which the stranger is properly a subject. For the judg- ment is not executed against that foreign government, or within the independent community of which it is the chief: nor is it executed against the defendant as being one of its subjects, but as owning land or moveables within the juris- diction of the tribunal. If the judgment were executed within the jurisdiction of the foreign supreme government, the execution would wound the sovereignty of the foreign supreme government, unless the judgment were executed through its permission and authority. And if the judgment were executed through its permission and authority, the duty enforced against the defendant would be imposed in effect by the law of his own community : the law of his own community adopting the law of the other, by reason of a special convention between the respective governments, or of a rule of international morality which the governments acknowledge and observe. — In all the cases, therefore, which I now have noted and exemplified, the positive law of a given independent society may impose a duty on a stranger. By reason of the obstacles mentioned in the last paragraph, the binding virtue of the positive law cannot extend gene- rally to members of foreign communities. But in the cases which I now have noted and exemplified those obstacles do not intervene. For the stranger is obnoxious to the sanctions by which the law is enforced : and the enforce- ment of the law ag-ainst the strano^er is not inconsistent with the sovereignty of a foreign supreme government. The definition, therefore, of a positive law, which is as- sumed expressly or tacitly throughout the foregoing lectures, is not a perfectly complete and perfectly exact definition. In the cases noted and exemplified in the last paragraph, a positive law obliges legally, or a positive law is set or directed to, a stranger or strangers : that is to say, a person or persons not of the community wherein the author of the law is sovereign or supreme. Now, since the cases in ques- tion are omitted by that definition, the definition is too narrow, or is defective or inadequate. To render that defi- nition complete or adequate, a comprehensive summary of these anomalous cases (or, perhaps, a full enumeration of these anomalous cases) must be tacked to the definition in the way of supplement. — But positive law, the subject of the definition, is the subject of the foregoing attempt to determine the province of jurisprudence. And since the definition is defective or inadequate, and is assumed ex- y ttrisprudence determined. 343 presslj or tacitly tlxrougliout tlie foregoing lectures, the lect.yi determination of the province of jurisprudence, which, is ^ ' ^ attempted in those discourses, is not a perfectly complete and perfectly exact determination. But I think that the foregoing attempt to determine the province of jurisprudence, and the definition of a positive law which the attempt assumes throughout, have as much of completeness and exactness as the scope of the attempt • requires. — To determine the province of jurisprudence is to distinguish positive law (the appropriate matter of juris- prudence) from the various objects (noted in the foregoing lectures) to which it is allied or related in the way of re- semblance or analogy. But so numerous are the ties by which it is connected with those objects, or so numerous are the points at which it touches those objects, that a perfect determination of the province of jurisprudence were a per- fect exposition of the science in all its manifold parts. An adequate exposition of the science (the only adequate de- termination of the province of jurisprudence) is really the ambitious aim of the entire Course of Lectures of which the foregoing attempt is merely the opening portion. But a perfect determination of the province of jurisprudence is not . the purpose of the attempt itself. Its purpose is merely to suggest (with as much of completeness and exactness as con- sist svith generality and brevity) the subject of that adequate exposition of the science of jurisprudence, or the subject of that adequate determination of the province of juris^^rudence, which is the pur230se of the entn-e Course. — Since such is the scope of the foregoing attempt, the definition of a posi- tive law which it assumes throughout has as much of com- pleteness and exactness as its scope requires. To render that definition complete or adequate, a comprehensive sum- mary of the anomalous cases in question (or, perhaps, a full enumeration of the anomalous cases in question) must be tacked to the definition in the way of supplement. But these anomalous cases belong to the departments of my Course which are concerned with the detail of the science. They hardly were appropriate matter for the foregoing gene- ral attempt to determine the province of jurisprudence : for the foregoing attempt to suggest the subject of the science, with as much of completeness and exactness as consist with generality and brevity. Accordmgly, the definition or no- tion of a positive law which is assumed expressly or tacitly throughout the preceding lectures, omits entirely the ano- 344 The Province of Lect. VI An expla- nation of a seeming de- fect in the foregoing general de- finition of indepen- dent politi- cal society. malous cases in question. And tlie trntL. of tlie positions and inferences contained by the preceding lectures is not, I believe, impaired, or is not impaired materially, by tliis omission and defect. And thougli the definition is not complete, it approaches nearly to completeness. Allowing for the omission of the anomalous cases in question, it is, I believe, an adequate definition of its subject. I hardly could have rendered a juster definition of the subject, in brief and abstract expres- sions : that is to say, unless I had descended from the gene- rals to the detail of the science of jurisprudence. Defining sovereignty and independent political society (or stating their characters or distinguishing marks), I have said that a given society is a society political and indepen- dent, if the bulk or generality of its members habitually obey the commands of a determinate and independent party : meaning by ' a determinate and independent party ' a deter- minate individual, or a determinate body of individuals, not obeying habitually the express or tacit commands of a de- terminate human superior. — But who are the members of a given society ? By what characters, or by what distinguish- ing marks, are its members severed from persons who are not of its members ? Or how is a given person determined to a given community ? — By the foregoing general definition of independent political society (or the foregoing general statement of its characters or distinguishing marks) the questions which I now have suggested are not resolved or touched : And it may seem, therefore, that the foregoing general definition is not complete or adequate. But, for the following reasons, I believe that the foregoing definition, considered as a general definition, is, notwithstanding, com- plete or adequate : that a general definition of independent political society (or such a definition as is applicable to every society of the kind) could hardly resolve the questions which I have suggested above. 1. It is not through one mode, or it is not through one cause, that the members of a given society are members of that community. In other words, it is not through one mode, or it is not through one cause, that they are subjects of the person or body sovereign therein. A person may be a member of a given society, or a person may be determined to a given society, by any of numerous modes, or by any of numerous causes : as, for example, by birth wdthin the ter- ritory which it occupies ; by birth without its territory, but y tirisp7'iidc7ice det€7'inined. 345 of parents "being of its members; by simple residence Tritliin Lect.vi its territory ; or by naturalization. — Again: A subject mem- ' ber of one society may be, at the same time, a subject mem- ber of another. A person, for example, who is naturalized in one independent society, may yet be a member completely, or to certain limited purposes, of that independent society which he affects to renounce: or a member of one society Tvho simply resides in another, may be a member completely of the former society, and, to limited purposes, a member of the latter, -v'ay, a person who is sovereign in one society, may be, at the same time, a subject member of another. Such, for example, would be the plight of a so called limited monarch, if he were monarch and autocrator in a foreign independent community. — Xow if the foregoing definition of independent political society had affected to resolve the questions which I have suggested above, I must ha.ve dis- cussed the topics which I have touched in the present para- graph. I must have gone from the generals into the detail of jurisprudence; and therefore I must have wandered from the proper purpose or scope of the foregoing general attempt to determine the province of the science. 2. By a general definition of independent political society (or such a definition as is applicable to every society of the kind), I could not have resolved completely the questions suggested above, although I had discussed the topics touched in the last paragraph. For the modes through which persons are members of ^^articular societies (or the causes by which persons are determined to particular societies) differ in dif- ferent communities. These modes are fixed differently in different particular societies, by their different particular systems of jDOsitive laiv or morality. In some societies, for example, a person born of aliens within the territoiy of the community, is, ij)8o jure, or without an act of his own, a perfect member of the community Avithin whose ten-itory he is born : but, in other societies, he is not a perfect mem- ber (or is merely a resident alien) unless he acquire the The following brief explanation may society) of a determined territory, or be placed pertinently here. seat, is of the very essence of a society of Generally speaking, a society political the kind. But this is an error. History and independent occupies a determined presents us vrith societies of the kind, territory. Consequently, when we ima- which have been, as it were, -m transitu. gine an independent political society, we Many, for example, of the barbarous commonly imagine it in that plight: nations which invaded and settled And, according to the definition of inde- in the Roman Empire, were not, for pendent political society which is as- many years before their final establish- sumed expressly or tacitly by many ment, occupants of determined seats, writers, the occupation (by the given 34^ The Province of Lect. VI Restric- tions or ex- planations of the two following positions : namely, that a sove- reign go- vernment cannot be bound le- gally, and that it can- not have legal rights against its own sub- jects. character by fulfilling certain conditions. (See the French Code, Article 9.) It therefore is only in relation to a given particular society that the questions suggested above can be completely resolved. I have assumed expressly or tacitly throughout the fore- going lectures that a sovereign government of one, or a sovereign government of a nnmber in its collective and sove- reign capacity, cannot be hound legally. In the sense with which I have assumed it, the position will hold universally. But it needs a slight restriction, or rather a slight explana- tion, which may be placed conveniently at the close of my present discourse. It is true universally, that as being the sovereign of the community wherein it is sovereign, a sovereign government cannot be bound legally : And this is the sense with which I have assumed the position throughout the foregoing lectures. But, as being a subject of a foreign supreme government (either generally or to certain limited purposes), it may be bound by laws (simply and strictly so called) of that foreign supreme government. In the case which I now am suppos- ing, the sovereign political government bound by positive laws bears two characters, or bears two persons : namely, the character or person of sovereign in its own independent society, and the character or person of subject in the foreign independent community. And in order to the existence of the case which I now am supposing, its two characters or two persons must be distinct in practice, as well as in name and show. The laws which are laid upon it by the foreign su- preme government may really be laid upon it as chief in its own society : and, on this supposition, it is subject (in that character) to the sovereign author of the laws, in case the obedience which it yields to them amounts to a hahit of obedience. But if the laws be exclusively laid upon it as subject in the foreign community, its sovereignty is not im- paired by the obedience which it yields to them, although the obedience amounts to a hahit. — The following cases will amply illustrate the meaning which I have stated in general expressions. — Let us suppose that our own king is properly monarch in Hanover: and that our own Mug, as limited monarch in Britain, is not absolved completely from legal obligation. 'Now if, as chief in Hanover, he be not in a habit of obedience to the sovereign British parliament, the legal duties incumbent upon him consist with his sovereignty in his German kingdom. For the duties are incumbent upon yurisprudence determhied. 347 liim (not as antocrator tliere, but) as limited monarcL liere : Lect.vi as member of the soyereigTL body by wbicL. lie is legally ^ ' ' bound. — Before the French revolution, the sovereio-n ^oyern- ment of the Canton of Bern had money in the English funds : And if the English law em^DOwered it to hold lands, it might be the owner of lands within the English territoiy, as well as the owner of money in the Engdish funds. Xow, assumino- that the goyernnient of Bern is an owner of lands in England, it also is subject to the legal duties with which property in land is saddled by the English law. But by its subjection to those duties, and its habitual observance of the law thi'ough which those duties are imposed, its sovereignty in its ovm Canton is not annuUed or impaired. Eor the duties are incumbent upon it (not as governing there, but) as owning lands here : as being, to limited pui'poses, a member of the British com- munity, and obnoxious, thi^ough the lands, to the process of the English tribunals. I have said in a preceding section, that a sovereign go- vernment of one, or a sovereign government of a number in its collective and sovereign capacity, cannot have lecjal rights (in the proper acceptation of the term) against its own subjects. In the sense with which I have advanced it, the position will hold universally. But it needs a slight restric- tion, or rather a slight explanation, which I now will state or suggest. It is true universally, that against a subject of its OAvn, as being a subject of its o^wn, a sovereign political government cannot have legal rights : And this is the sense with which I have advanced the position. But against a subject of its own, as being generally or partially a subject of a foreign government a sovereign political government may have legal rights. Eor example : Let us suppose that a Russian mer- chant is resident and domiciled in England : that he agrees with the Eussian emperor, to supply the latter with naval stores : and that the laws of England, or the English tri- bunals, lend their sanctions to the agreement. Xow, accord- ing to these suppositions, the emperor bears a right, given by the law of England, against a Eussian subject. But the emperor has not the right through a law of his own, or against a Eussian subject in that capacity or character. He bears the legal right against a subject of his own, through the positive law of a foreign independent society ; and he bears* it against his subject (not as being his subject, but) as being, to limited purposes, a subject of a foreign sovereign. And the 34^ The Province deter7nined. Lect.vi relative legal duty lying on tlie Russian mercliant consists ~^ with the emperor's autocracy in all the Russias. For since it lies upon the merchant as resident and domiciled in Eng- land, the sovereign British parliament, by imposing the duty upon him, does not interfere with the autocrat in his own independent community. Note to Page 258. In a note at p. 258, I have referred to Tables drawn out in the blank leaves of Kant's ' Entwurf zum ewigen Frieden.' They are in pencil, and were obviously constructed by Mr. Austin solely for his own satisfaction. The reader is desired to observe that the opinions embodied in these Tables are not given as Mr. Austin's. In the note to Table 11., as we see, he questions one important assump- tion. The Tables are not numbered, so that I have been guided in their arrangement mainly by the order in which they follow. — S. A. Note to page 258. TABLE I. lorma Imperii, or Staatsform: i.e. the form of the Sovereignty. Monarchy, or government of one. Aristocracy, or go- vernment of Despotic or Eepublican. Democracy, or government of all. I Despotic. TABLE II. Forma Regiminis — Regierungsform, or Staatsverfasstmg, Despotical ; wherein the legislative and execu- tive powers are united in the sc number. Republican ; wherein the legislative powers re- side in the sovereign one or number, icith representatives of the subjects; and the execu- tive powers,in the sove- reign one or number. f * On this division, as expounded in Kant's text, Mr. Austin remarks : — ' The making'of a law, and the execution of a law, are necessarily dilferent processes. But how is it necessary that the two processes should be performed by different persons ?' t The power of appointing representatives, is often called political liberty ; i.e. a portion in the Sovereignty. — Kant. The passage in Kant's book to which Table II. refers, ends as follows : 'The sort or mode oi goyeviiment{Begicrungsart) is beyond all comparison more important to a people than the form of the Sovereignty {Staatsform) ; although a great deal also depends on the greater or less adaptability of the latter to attain by gradual reforms to the character of a perfect Eepublic. To that end, however, the Eepresentative System is absolutely indispensable ; without it (be the form of the Sovereignty what it may) the government is despotic and arbitrary. None of the ancient so-called republics knew of this, and they therefore inevitably subsided into despotisms ; the most endurable form of which is, the sovereign rule of one.' — Kant, ' Entwurf,' p. 29. In a note, Kant refers here to the often quoted line of Pope, which he translates, 'die bestgelilhrte ist die hesteJ ' If that,' says he, 'is equivalent to saying that the best administered is the best administered. Pope (to quote Swift's expression) only cracked a nut which rewarded him with a maggot. But if it means that the best administered, is also the best constituted government, it is utterly false, {grundfal sch) ; for examples of good government prove nothing in favour of the form. Who ever governed better than Titus or Marcus Aurelius ? and yet the one left a Domitian, the other a Commodus, as his successor.'— S. A. 350 Note to page 258. TABLE III. Despotical Governments are Monarchies (called in this case Autocracies) : Aristocracies Democracies* (necessarily). Sovereign. Republican Governments are Monarchies (called in this case Aristocracies, limited or constitutional mon- I archies). | Not sovereign, but sharing sovereign pov^ers with representatives of subjects. t TABLE IV. Monarchy. (Government of one, or of { physical or individual per- son.) Oligarchy. (Two, or other small number.) Polyarchy. (Government of a number, of a body, or of a collegiate and fictitious person.) Aristocracy. (A number neither small nor large.) Democracy. (Any large num- ber, short of all. J * Democracy, or the government of all, is necessarily autocratical or despotic. —Kant. t Legislative powers = Sever ei gn ty : Consequently, in no republican (or syncra- tical) government is the so-called sovereign, sovereign. It is merely co-sovereign with the active portion of the citizens. As Regent (when considered by itself) it is subject-minister of the joint sovereign. — Note by Mr. Austin. \ In the text, Kant says, ' AUe, die doch nicht alle sind :' referring obviously to the exceptions made in all schemes of universal suffrage. — S.A. Note to page 258. TABLE V Autocracy. Syncracy. 1. Monarcliy, 2. Polyarcliy. 3. Monarcliy. I 4. Polyarchy. Properly soyereign. Nommally soyereign, but sharing soyereignty with actiye citizens. TABLE Ti.. Forma Regimink. Autocracy : wherein the legisla- tive and executive powers are united in the sovereign one or number. Syucracy: wherein the execidive powers reside in the sovereign one or number ; but the legis- lative powers, in the soyereign one or number, ivith the active (as distinguished from the passive) portion of the subject citizens.* Pepresentative {i.e. of active citizens.) Non-represen- tative. TABLE Xll. Autocracies. Syncracies. Monarchies. Aristocracies and Democracies. Sovereign. Sovereig-n govern- ment of one. Monarchies. Aristocracies. Not sovereign, but sharing sovereignty with active citizens. Soyereign governments of a number. * The share of the active citizens in the sovereignty is called jJo/eY/ca? liberty. Kant. t See Kmg, vol. iv. p. 36.. and Politz, voL i. p. 173 et seq. Lectures on tTuRisPRUDENCE. AMLTSIS OF PEEYADING l^OTIOXS. LECTUEE XII.29 ANALYSIS OF THE TERM EIGHT. I HAVE endeavoured in tlie preceding Lectures to accomplish Lect. xii tlie following objects : 1st, To determine tlie essentials of a ^ " " Law (in the largest signification which can be given to the term j)ro2^erly) : 2ndlj, To distinguish the laws proper which are set by God to Man, and the laws proper and improper which are sanctioned or oblige morally, from the laws proper which are sanctioned or oblige legally, or are established directly or indirectly by sovereign authority. Having attempted to determine generally the nature of Law, and to mark the boundaries of the field which is occu- pied by the science of Jurisprudence, I shall now endeavour to unfold (as briefly as I can) the essential properties of Eights : meaning by Eights, lega,l rights, or rights which are creatures of Law, strictly or simply so called. There are, indeed, Eights which arise from other sources : Natural namely, from the laws of God or Nature, and from laws RilJb'^^s^or which are sanctioned morally. But the peculiarities of these EigJ^ts may be easily collected, by considering the peculiarities of mei-eiv^^^ the sources from which thev flow. Accordino-ly I shall not sanctioned pause to examine them in a direct or formal manner, or morally, although I shall advert to them occasionally in the course of the ensuing Lectures. At present, I dismiss them with the following rem?4.rks. 1st, Like the Obligations to which they correspond, natural and moral Eights (or rights which are 2^ This lecture was marked xii. in the the same numbering. There is, however, '\ former edition, being the twelfth lecture no hiatus between this and the last lee- in one of the courses as delivered by the ture, which in fact contained the matter author. I have thought it advisable for of several of the lectures orally delivered, the purposes of reference to adhere to — E. C. VOL. I. A A 354 Pervading Notions OMalysed. Lbct. XII merely sanctioned religiously or morally) are imjperfed. In ' other words, they are not armed with the legal sanction, or cannot be enforced judicially. 2ndly, The Rights (if such they can be called) which are conferred by positive morality, partake of the nature of the source from which they emanate. — So far as positive morality consists of laws improper, the rights which are said to arise from it are rights hy way of analogy. For example, rights which are derived from the Law of Nations are related to rights which are derived from positive Law, by a remote or faint resemblance. They are neither armed with the legal sanction, nor are they creatures of Law established by determinate superiors. Strictly speaking, there are no rights but those which are the creatures of law ; and I speak of any other kind of rights only in order that I may conform to the received language, which certainly does allow us to speak of moral rights not sanctioned by law ; thus, for example, we speak of rights created by treaty. Ideas, the In attempting to explain the nature of a legal Eight, I whicii is shall inevitably advert to the import of the following terms : inevitably ][gf Law, Dutv and Sanction. For, though every law involved m , ' . . . that of : does not create a right, every right is the creature of Law. light. And, though every obligation and sanction does not imply a right, every right implies an obligation and a sanction. 2ndly, Person, Thing, Act and Forbearance. For rights are exercised by persons ; or if not exercised by persons, reside in persons. And persons, things, acts and forbearances, are the subjects or objects of rights and obligations, or (changing the shape of the expression) are the matter about which they are conversant. Srdly, Injury ; — Wrong ; — or Breach of Obligation or Duty by commission or omission. For as rights suppose or imply obligations and sanctions, so do obligations or sanctions suppose injuries or wrongs. In other words, their ends or purposes are the prevention of injuries or wrongs, and the redress of the damage or mischief which is commonly the consequence or effect. 4thly, Intention and Negligence (including under the latter of these terms what may be called rashness or temerity). For every wrong (whether it be positive or negative, or consist of a commission or omission) supposes intention or negligence on the part of the wrongdoer. 5thly, Will and Motive. For the import of the expres- Right 355 sions wilV and 'motive^ is implied in tlie import of tlie Lect. xir expressions ' intention ' and ' negligence.' And, further, ob- ' ' ligation and sanction operate upon tlie will of tlie obliged, and are thereby distinguislied from tlie compulsion or re- straint, wbich (for want of a better name) may be styled merely physical. Nothing is more frequent in jurisprudence than the confusion of motive with intention ; and of this confusion the law of England affords a flagrant instance, when it lays down that murder must be committed of malice aforethought. By this is merely meant that it must be com- mitted intentionally. Malice is properly the name of a motive : namely, that of malevolence or ill-will ; but it is not by any means necessary in the law of England that the act should have been committed from ill-will : on the contrary, the great majority of murders are committed from motives altogether different — such as that of obtaining the property of the murdered person — : it is only necessary that the murder should be intentional. There is one case of peculiar absur- dity, that of murders said to be committed out of malice or ill-will to all mankind. For example, if a workman throws rubbish from the top of a building without giving warning to the passers-by, and if he consequently kills one of them, it would be too obvious an absurdity to pretend that he acted from ill-will towards the particular person, whom in all pro- bability he has never before seen or heard of, but he is said to have acted from malice or ill-will towards all mankind ; the real ground for his punishment being that he has acted with gross and mischievous negligence ; that he has shown a want of regard for the lives and safety of others, which ought to subject him to legal punishment. He has committed the offence not from a peculiar motive, but from the want of a certain motive, and his state of mind requires to be distin- guished from intention, as intention and negligence both require to be distinguished from motives. / Finally, Political or Civil Liberty : — a term which, not pnfrequently, is synonymous with right ; but which often denotes simply exemption from obligation, conferred in a peculiar manner : namely by the indirect or circuitous pro- cess which is styled 'permission.' For it will be shown in the sequel that when the law only permits, it as clearly confers a right as when it commands. Having attempted to explain the import of the term ' Right,' and having touched upon the import of the terms A A 2 356 Pervading Notions analysed, Ltx t. XII wliich. I liave now enumerated, I shall advert to tlie ain- " ^ biguities bj wbich some of tbese expressions are obscured. I shall point particularly at the varying significations of ' Law,' ' Right,' and ' Obligation.' In attempting to un- fold the notions which are signified by the term ' Right,' and to indicate the import of the terms with which it is in- separably connected, I shall scarcely find it possible to avoid repetition. For each of these expressions is so implicated with the rest, that the explication of any of them involves allusions to the others. For the same reason, the parts of the analysis will probably be obscure : though I hope that the whole may express the intended meaning, or, at least, may suggest it to the hearer. Having briefly pointed at the purpose of the following analysis, and apologized for its repetitions and obscurities, I now proceed to the subject of it. Obliijations Every Law (properly so called) is an express or tacit, a are^ioSive ^^^^^"^ circuitous Command. or negative. By evcry Command, an OhligaMon is imposed upon the party to whom it is addressed or intimated. Or (changing the expression) it obliges the party by virtue of the corre- sponding sanction. Every Obligation or Duty (terms, which, for the present, I consider as synonymous) is positive or negative. In other words, the party upon whom it is incumbent is commanded to do or perform, or is commanded to forbear or abstain. Li order to the fulfilment of a positive obligation, the act or acts which are enjoined by the Command must be done or performed by, or on the part of, the obliged. In order to the fulfilment of a negative obligation, he must forbear from the act or acts which the Command prohibits or forbids. In the one case, the active intervention of the obliged is neces- sary. In the other case, the active intervention of the obliged is not only needless but is inconsistent with the purpose of the obligation. An obligation to deliver goods agreeably to a contract, to pay damages in satisfaction of a wrong, or to yield the pos- session of land in pursuance of a judicial order, is a positive obligation. An obligation to abstain from killing, from ^ taking the goods of another without his consent, or from entering his land without his licence, is a negative obliga- tion. Rio-Ji t — Person. 357 I observe tliat forhearances have been styled by Mr. Ben- tham^° negative services. And, if we like, we may call tbem by that, or by any other name. Bnt whetlier establisiied langnage authorise the expressions seems to be doubtful. If you abstain from knocking me on the head, or from taking my purse, or from blackening my reputation, it can scarcely be said with propriety that ' you render me a service.' In ordinary language, ' you forbear from doing me a mischief.' It would seem that Mr. Bentham has transferred to the object of an obligation, an expression which applies correctly to the obligation itself. A forbearance, in pursuance of an obligation, is hardly a ' negative service,^ though the obli- gation of which it is the object is properly a ' negative ohligation.^ Obligations may also be distinguished into relative and ahsolute. A relative obligation is incumbent upon one party, and correlates with a right residing in another party. Changing the expression, A relative obligation corresponds or answers to a right ; or implies, and is implied by, a Right, '^^^lere an obligation is absolute, there is no right vdth which it correlates. There is no right to which it corresponds or answers. It neither implies, nor is implied by a right. Here, as elsewhere, the term ^ absolute ' is a negative or privative expression. Here, as elsewhere, it denotes the ahsence of an object to which the speaker or writer expressly or tacitly refers. But, in order to the complete explanation of a negative or privative expression, we must first explain the object of which it denotes the absence. Consequently, I shall begm with rights, and with the obligations which are implied by rights ; and I shah then proceed to the obligations which have no corresponding rights, or which (in a word) are ab- solute. Since rights reside in _perso9zs, and since persons, things, acts, smd forbearances are the subjects or objects of rights, I must advert to the respective significations of these various related expressions, before I address myself to rights, and to the obligations with which they correlate. Persons are divisible into two classes : — physical or natural persons, and legal or fictitious persons. In this instance, 'i3liysical^ or 'natural^ bears the sig- nification which is usually attached to it ui the language of Traites de Legislation, I. p, ]o4. Lect. XII Forbear- ances can- not be styled -with propriety negative services. Obligations are relative or absolute. Rights im- -ply persons, things, acts, and/or- hearances. Persons, natural or lictitious. 358 Pe7^vading Notions analysed. Lkct. XII Jurisprudence, and (I believe) in tlie language of other ' ^ sciences. Its import is negative. It denotes a person not fictitious or legal, and is used to distinguish, persons, pro- perly so called, from persons whicli are such, by a figment, and for the sake of brevity in discourse. Consequently, when we speak of 'persons ' simply, and without opposing them to legal or fictitious persons, we mean persons properly so called, or persons physical or natural. Meaning of By a physical or natural person, or, by a person simply, I person; or mean homo, or a man, in the largest signification of the simpij^' "t^rm : that is to say, as including every being which can be deemed human. This is the meaning which is given to the term person, in familiar discourse. And this, I believe, is the meaning which is given to it by the Roman Lawyers (from whose writings it has been borrowed by modern jurists) when they denote by it a physical or natural person, and not a legal or fictitious one. Many of the modern Civilians have narrowed the import of the term person as meaning a physical or natural person. They define a person thus : ' homo, cum statu suo considera- tus :' a ' human being, invested with a condition or status.' And, in this definition, they use the term status in a re- stricted sense : As including only those conditions which comprise rights ; and as excluding conditions which are purely onerou.s or burthensome, or which consist of duties merely. According to this definition, human beings who have no rights, are not persons, but things ; being classed with other things which have no rights residing in themselves, but are merely the subjects of rights residing in others. Such, in the Roman Law, down to the age of the Antonines, was the position of the slave. In respect of his master, and also in respect of strangers, he was subject to Obligations or Duties. But he had no Rights as against his master, or even as against strangers. His master might deal with him, as if he had been a thing of which his master was the owner : — might use, abuse, and even destroy him, without stint or measure, and with absolute impunity. In case he were killed or maltreated by a third party, the act was not a wrong against the slave himself, but was merely an offence against the dominion or property which resided in the master. In a word, the slave (like a thing) was susceptible of damage, but was not susceptible of injury. ' Servo ipsi nulla injuria intelligitur fieri : sed domino per eum fieri videfcur.' Gaii Institiitionum Comment. III. § 222. Righ t — P 67' son. 359 Agreeably to this definition, as nnder stood "by tlie modern Lect. xir civilians above mentioned, a ])erson is a buman being in- vested witb riglits. Or a j^erson is a human being cajDable of rights. But this, I am convinced, v^as not the notion attached to the term ' i^erson^ by the Eoman Lawyers themselves, when they denoted by it a physical or natural person. For, first, in all their divisions of persons, or in all their distributions of persons into various classes, slaves, who had no rights, are considered as 2^ersons, and 'ijersona^ and ' homo ^ are synonymous or equivalent expressions. ' Sum- ma divisio de jure ]jersonariim, hsec est : quod omnes homines aut liberi sunt aut servi.' Again : ' Sequitur de jure l^ersonarum alia divisio. Nam qugedam ijersonoe sui juris sunt; qusedam alieno juri subjectse. Sed rursus earum Ijersonarum quse alieno juri subjectse sunt, alise in potestate, alise in manu, alise in mancipio sunt. Yideamus nunc de iis quse alieno juri subjectse sunt : Ac prius dispiciamus de iis qui in aliena potestate sunt. In potestate itaque sunt servi dominorum.'^^ In these passages fi'om the Institutes of Gains (and in various corresponding passages in the Institutes and Digest of Justinian), slaves (who had no rights) are treated as a class of persons, and ' homo ' and ' ijersona ' are applied in- differently, or as if they were equivalent expressions. And, in penning these passages, the attention of the authors must ^- Gaii Institiitiomiin Comment. Lib. I. § 9, 48-52. At the passage indicated, the follo^riug note is written by the author's hand in the margin of his own copy : — fSlaves are ranked by G-aius amongst persons. If the enjoyment of rights be necessar}^ to satisfy the term, a slave (in the earlier ages of Eome) was not a per- son, but a thing. If subjection to obli- gation suffices to constitute a person, a slave without rights belongs to the class of persons. In the age of Gains, slaves were persons in every sense of the term ; since, by certain Constitutions, they were protected for their own advantage, even against their masters. ' A per- son ' (to which ' condition ' or ' status ' is the corresponding abstract term) seems to be susceptible of only two de- finitions : the narrower, ' a human being considered as enjoying or invested with Eights : ' the more extensive, ' a human being considered as subjected to Obliga- tions.' ]\Ien living without a govern- ment {i.e. without any common superior to which that term would apply) might be morally or religiously ' persons,' but being subject to no obligations, and en- joying no rights 'politically sanctioned, would legally speaking be ^ homines^ merely. — Marginal Note. And again, at p. 295, Lib. III. § 220, et seq., is the following: — A slave (as the subject of property) may be damaged ; but (as having no rights) is not himself susceptible of in- jury {ante, I. § 53, Constitution of Anto- nine). The rights, however, which are there spoken of were given to the slave as against his master ; and damage or even death inflicted upon the former by a third person may still have been consi- dered as an injurv done to the property of the latter {vide III. § 213). The Consti- tution, however, of Antonine seems to im- ply that the causeless killing of another's slave was already a crime ; and, by con- sequence, that the slave was not without rights, even as against a stranger. — Marginal Notes. 360 Pervadmg Notions analysed. * Lect. XII have been particularly directed to tlie just legal import of , the term ' person.' For the purpose with which they were occupied was the division of persons, or the distribution of persons into genera and species. Secondly, Although the slave had no rights, there are nu- - merous places in the Institutes of CTaius, in the Institutes of Justinian, and also in his Digest or Pandects, in which a status or condition is ascribed to the slave, or in which the slave is spoken of as bearing a status or condition. Even, therefore, if we admit that the definition in ques- tion will apply to the term ' person,' and that a person is a human being bearing a condition or status, it will not follow that the term 'person' is exclusively applicable to such human beings as are invested with rights. If we admit the definition, while we look at the true import of the term status, the meaning of 'person ' is this : namely, a human being considered as invested with rights, or con- sidered as subject to duties.^^ Taking the term in that meaning, it would apply to every human creature, if a member of a political society, and not sovereign therein. It could not apply to a human being not a member of any political society, for a human being in that situation has no legal rights, a.nd is free from legal obliga- tions. Nor, taken in that meaning, can it apply to a monarch, for as I have before observed,^^ we cannot say with correct- ness, that sovereigns have legal rights, nor that they are subject to legal obligations. Obligations are imposed, and rights conferred by laws. He, therefore, who has rights, or who lies under obligations, occupies a position wherein sovereigns are not. He is in a state of subjection, or in a habit of obedience, to some determinate superior from whom he receives the law. But, according to the meaning which was attached to it by the E-oman Lawyers, neither of the significations in ques- tion belongs to the term 'person.' They neither confined it to human beings, considered as invested with rights ; nor Hugo, Lehrbuch dp.r juristisclien wife in the husband, etc., there is a eom- Encyclopadie, vol. i. p. 300. Mr. Austin's bination of Jus in Be with Jus ad Rem; copy of this book is filled with marginal jus in re, as against other persons, jus notes. The following is from the page ad rem, as against the person who is veierveA \o {Servitut.) : — obliged to perform the services. All Wherever a man has a right to the such rights belong to J'2im Persowanfwi ; services of another, whether it be un- i.e. they suppose a Status. — Marginal limited, as in the case of unqualified Note. slavery ; or limited, as the right of the See p. 289 et seq., ante. husband in the wife, the right of the Right — Person. 361 did they even restrict it to human beings, considered as snb- Lect. xti ject to obligations. The meaning which they attached to ^ ' the term, is , the famihar or vulgar meaning. With them 'persona' denoted ' Jiomo/ or any being which can be styled Imman. The modern limitation of the term 'person ' to ' human beings considered as invested with rights,' appears to have arisen thus : 1st, A person was defined by many of the modern Civilians, ' a human being bearing a status or con- dition.' 2ndly, The authors of the definition used the term ' status ' in a peculiar and narrow sense. They assumed that every status comprises rights, or, at least, comprises capacities to acquire or take rights. They assumed that a status or condition could not be ascribed to any one who was excluded from all rights, and was simply subject to duties. Now there is no classical authority for defining* a person, ' a human being bearing a status or condition.' And further, I could cite numerous passages from the Classical Jurists, in which a status or condition is ascribed to the slave : That is to say, to a human being who is excluded from rights ; and whose condition or status is therefore purely onerous, or con- sists of duties merely. The truth appears to be, that the authors of the definition considered the term 'status' as equivalent to the term ' caput : ' a word denoting conditions of a particular class : conditions which do comprise rights, and comprise rights so numerous and important, that the conditions or status of which those rights are constituent parts, are marked and distinguished by a name importing pre-eminence. For the purpose of ascertaining the meaning which should be assigned to the term status, I have searched the meanings which were annexed to it by the Roman Lawyers, through the Institutes of Gains and Justinian, and through the more voluminous Digest of the latter. And the result at which I have arrived is this : that status and caput are not synony- mous expressions, but that the term caput signifies certain conditions which are capital or principal : which cannot be acquired and cannot be lost, without a mighty and conspicu- ous change in the legal position of the party. Such, for in- stance, are the status lihertatis and the status civitatis : that is to say, the condition of the freeman, as opposed to the condi- tion of the slave ; and the condition of the citizen or member of the political society, as opposed to the condition of the foreigner. 362 Pervading Notions analysed. Lect. XII Whatever may be the meanings of these terms as they are ~ ' used by the Eoman Lawyers, it is certain that they are not synonymous. For a condition or status is repeatedly ascribed to the slave, and yet it is affirmed of the slave ' that he has nullum cajput.^ It is much to be wished, that the difference between them could be ascertained. For of all the perplexing questions which the science of Jurisprudence presents, the notion of status or condition is incomparably the most difficult. And much of the obscurity in which it is involved, arises from the manner in which it has been treated by the modern Com- mentators upon the Roman Law: Particularly from their habit of restricting the import of ' status,^ and of using it as if it were equivalent to the narrower expression ' caput.' I think, then, that I am justified by authority, as well as by the convenience which results from it, in imputing to the term person (as denoting a physical or natural person) the familiar or vulgar meaning ; or in considering a physical or nojiursil person as exactly equivalent to ' man' (in the largest signification of the term) . If persona (as meaning man) be equivalent to homo, and be not exclusively applicable to ' men invested with rights,' it follows that the slave is a person, though he be excluded from rights. If, indeed, we consider him from a certain aspect, we may, m a certain sense, style him a thing. But almost every person may be considered from a similar aspect, and may also be styled a thing, with equal propriety. As I shall show more fully when I get further on, persons must be con- sidered from three points of view : As invested with rights ; as lying under obligations or duties ; and as being the sub- jects or objects of rights and obligations. •Person' I have hitherto considered the extension of the term ^per- ^ynony-^^ SOT?, ' as denoting a human being. And in regard to the pons with extension of the term, as denoting a human heing, I believe ' condition.' that Classical Jurists, when they used it with that meaning, used it with the large signification which it bears in familiar discourse : — as being synonymous with ' homo,' or as apply- ing to every being which can be styled human. But, instead of denoting men (or human beings), it some- times denotes the conditions or status with which men are invested. And, taking the term in this signification, every human being who has rights and duties bears a number of persons. ' Unus homo sustinet plures personas.' For ex- ample, every human being who has rights and duties, is RioJit — Person. 363 cithen ot foreigner : tliat is to sav, lie is eitlier a member of Lect. xii a [liven independent society, or lie is not a member of that ' ' ' given independent society. He is also a son. Probably, lie is husbo.nd smd father. It may happen, moreover, that he is guardian or tutor. His profession or caJling may give him distinctive rights, or may subject him to distinctive duties. And with the various conditions or status of citizen, son, husband, father, guardian, advocate, attorney or ti^ader, he may combine the condition of judge, or of member of the supreme legislature, and so on to infinity. The term ^ ■person,'^ as denoting a condition or status, is therefore equivalent to character. It signified originally, a mask vrom bv a plaver. and. distrng-uishing the character which he represented from the other characters in the piece. From the mask which expressed the character, it was ex- tended to the character itself. From characters represented bv players, or from dramatic characters, it was further extended bv a metaphor to conditions or status. For men, as subjects of law. are distinguished by their respective condi- tions ; just as players, performing a play, are distinguished by the several persons which they respectively enact or sustain. By the Greek commentators on the Roman Law, or by those who have translated the expositions of the Eoman Law into Greek (as Theophilus), persona is translated by the word TpoawTTov, which sigmifies a visage or face, and is obviously meant to denote character or status, and not in the other import. The term 'person ' has, therefore, two meanino-s, which must be carefully distinguished. It denotes a man or human oting : or it sigmifies some condition borne by a man. A person (as meaning a man) is one or individual : But a single OT individual person (meaning a man) may sustain a number of persons (meaning conditions or status^ The erroneous defi- nition of a person to which I have already adverted, probably arose in part from a confusion of these sigmifications. Every status or condition consists of rights or duties ; or it consists of both. And if we impute to a person (as meaning a 7nan) this essential of a person (as meaning a condition), it will . follow that a person (as meaning a man) must be defined ; thus : A man invested with rights, or subject to obligations. I The further limitation of the term 'person' to 'a man invested with rights,' probably arose (as I intimated before) from an erroneous limitation of the term 'status:' from the restriction of the term to certain capital conditions, which 3^4 Pervading Notions mialysed. Lect. XII consist of rights as well as of duties ; and wlierein tlie rights ' ' are tlie more conspicuous and distinctive constituents or components. A Roman Citizen, for instance, was of course distinguished from a foreigner, cliieflj by the numerous rights which he enjoyed : so was a freeman from a slave : insomuch that he who was reduced from the more advan- tageous of these situations to the other was said to underg-o capitis deminutio : so predominating was the idea of the rights which he lost over that of the duties from which he became freed, although by the same event by which he lost the rights he became freed from the duties also. This last mentioned error, in short, arose from the confusion of status (the larger or generic expression) with caput (the narrower or specific). Fictitious Fictitious or legal persons are of three kinds : 1st, Some or legal . persons. are collections or aggregates of physical persons : 2ndly, others are tilings in the proper signification of the term : Srdly, others are collections or aggregates of rights and duties. The collegia of the Roman Law, and the corporations aggregate of the English, are instances of the first : the prcedium dominans and serviens of the Roman Law, is an in- stance of the second : the hoereditas jacens of the Roman Law, is an instance of the third. It is impossible that I should enter here upon the con- sideration of legal persons. For their natures are various ; the ideas which they stand for are extremely complex ; and they, therefore, belong to the detail, rather than to the gene- ralia of the science. At present I will merely remark that they are persons by a figment, and for the sake of brevity in discourse. All rights reside in, and all duties are incumbent upon, physical or natural persons. But by ascribing them to feigned persons, and not to the physical persons whom they in truth concern, we are frequently able to abridge our descriptions of them. To take the easiest instance; this is the case with the prcedium dominans and serviens of the Roman Law. A servi- tus or easement over one jprmdium resides in every person who occupies another prcedium : meaning by a prcedium a given piece of land, or a given building with the land on which it is erected. The servitude or easement in question (as, for instance, a right of way) is ascribed, by a fiction, to one of these prcedia ; and, by a similar fiction, an obligation or duty to bear the exercise of the servitude is imputed to the other. The first is styled dominans ; the latter serviens. F^ragments. 365 Or (as we slioiild say iii Englisli Law-language) tlie J?./.s servi- Lt£ct. xii tutis or easement is appurtenant to lands or messuages. In " ' trutli. the riglit resides in eyery physical person who succes- siyely owns or occupies the ijrcpdurin styled dominans. And the right ayails against eyery physical person who succes- siyely owns or occupies the jprcedium styled serviens. But hy imputing these rights and obligations to the jrrcedia them- selyes, and by talhing of them as if they were persons, we express the rights and duties of the persons who are really concerned, with gTeater conciseness. To take another instance. Hceredifas jacens was a term employed in the Eoman Law to denote the whole of the rio-hts and oblio-ations which, at any instant of time durino- the period which interyenes between the death of the testator or intestate, and the heir's acceptance of the inheritance, would haye deyolyed upon an heu^ at that instant enterin.g upon the inheritance. This mass of ric^hts and obligations was by a fiction styled a person, although clearly not a person in the popular sense of the word, nor eyen consist- ing of any determinate thing, but being a mere collection of rights and obligations. It was so termed by way of express- ing that any benefit accruing to the inheritance during the aboye period, would enure to the benefit of the heir. Feagmexts. Lavj is imperative or permissive}^ Law, considered as a rule of conduct, prescribed by the Legis- lator or Judge, is necessarily imperatiye, since it imposes an obli- gation to act or to refi-ain from acthig in a given manner. As confeiTing a right, it is permissive. Considered as an ex- pression of the will of the Legislator or Judge, it is imperative or permissive. Lor it may consist in the removal of restraint. Penal Lavrs are seldom directly imperative. Sanction is not of the essence of permissible lav-. For. by such ^ Bentliain, 'Principles/ etc. pp. 221, Inlialte der G-ebote oder Yerbote unmit- 328-9. Blackstone, 86. Thibaut, Sjs- telbar gefolgertwerdenkann, Tvas erlaubt tem- ^ ist,' etc. etc. — Falck, Jurist. Encyc. p. ^° 'Insofern wir unter G-esetzen, die 31. von der StoMtsgm-alt den Untertlianen If by La^s be meant oUigatory or vorgeschriehenen Eegeln verstehen, ist sanctioned Eules, Lavrs are either im- es einleuchtend, dass es in diesem Sinne perative (commanding something wbicli nur gehietrnde nnd verhietende G-esetze, shall be done): or prohibitive (command- aberkeineswegs erIauhc7Lde(TesQtze geben ing something ^hich shall not be done), kann. Denn in Beziehxmg auf die but cannot ^be permissive. — Marginal erlaubten Handlnngen bedarf es keiner Note. besondern Bestimmuns, da aus dem 366 Pervading Notions analysed. Lect. XII a law, an obligation, instead of being imposed, may be simply re- - ' " moved. {^Sed qumre.) It has hitherto been assumed that every law imposes an Obli- gation. Apparent exception in the case of Permissive Laws. The exception only apparent. Taking off an Obligation, it confers a Right, and so imposes an Obligation corresponding to that right. With reference to such parts of conduct as the positive law of the community does not touch, the members of a political society are in a state of nature. {Sed qucere : For they are protected in that liberty by the State. Such liberty would seem to consist of rights conferred in the way of permission.) Law is absolute or conditional ; — is to take effect at all events, or only in default of dispositions by the interested parties. Lihertij. Freedom, Liberty, are negative names, denoting the absence of Restraint. Civil, Political, or Legal Liberty, is the absence of Legal Re- straint, whether such restraint has never been imposed, or, having been imposed, has been withdrawn. It is general or particular : i.e. it extends to all ; or it is granted to one or some, by an exemption or privilegium (see jjost, ' Privi- _lege'). / Liberty and Right are synonymous ; since the liberty of acting / according to one's will would be altogether illusory if it were not protected from obstruction. There is however this difference be- ! tween the terms. In Liberty, the prominent or leading idea is, the absence of legal restraint : whilst the security or protection for the enjoyment of that liberty is the secondary idea. Right, on the other hand, cZenotes the protection and connotes the absence of Restraint.^^ If the protection afforded by the Law be considered as afforded against private persons, the word Right is commonly employed. If against the Government, or rather against some member of the Government, Liberty is more frequently used: e.g. the Liberties of Englishmen.^^ Liberty and Right are not however always coexten- 37 'Par rapport aux actions sur les- fondes sur des obligations. Comment quelles le legislateur ne prononce ni me confere-t-on un c^roi/^ de propriete siu* defense ni injonction, il ne cree aucun un terrain ? C'est en imposant a tons delit, aucune obligation, aucim service ; les autres 1' obligation de ne pas touclier cependantilvoiis confer e uncertain droit, a ses produits. Comment ai-je le droit celui de faire ou de ne pas faire, selon d'aller et venir dans toutes les rues d'une votre propre volonte^ — Traites de Leg. ville ? C'est qu'il n'existe point d'obli- vol. i. p. 156. gation qui m'en empeche.' — Traites, etc. The right of doing that which [is not And there dues exist an obligation on prohibited, supposes an obligation on others to refrain from obstructing me. — others not to obstruct. See 'Principles,' Marginal Note. etc. p. 222. — Marginal Note. For Liberty, as meaning share in ' On pent imposer des obligations sans Sovereignty, see Kant, ' Zum ewigen qu'il en resulte des droits ; mais on ne Frieden.' See also ante, p. 281 et seq. peut pas creer des droits qu'ils ne soient Person — Thing. 367 sive, since tlie secm^ity for tlie enjoTment of tlie former may in part Lect. XII be left to the moral and religions sanctions. ' ' ' {Sed ciurnre^ Whether Liberty can ever mean anything bnt the right to dispose of one's person at pleasure ? Liberty or Freedom to deal with an external subject seems, however, to be equivalent to ' Right to deal with it.' On the whole, Right and Liberty seem to be synonymous ; — either of them meaning, 1st, permission on the part of the Sovereign to dispose of one's person or of any external subject (subject to re- strictions, of coui^se): 2ndly, security against others for the exercise of such right and liberty. THierever there is protection afforded, Higlii is the proper word. As against the sovereign, there can be no right. Physical freedom is the absence of external obstacles ; i. e. the absence of causes which operate independently of the will. Moral ft-eedom is the absence of motives of the painful sort. LECTURE XIII. PERSON AND THIXG. Ix my last Lecture, I distinguislied Obligations or Duties lect. xiii into ^positive and negative ; and indicated generally and ~ ''^ ' briefly tbe nature of tbat important distinction. tion!^^^^^^^^ I also distinD'uisbed Oblisrations into relative and absolute : tliat is to say, obligations which- coiTelate with, or correspond or answer to rights-, and obligations which, neither imply, noT are implied by, rights. And, for the reason which. I then assigned, I began with, the analysis of riglits (and of tbe obligations implied by rigbts); and deferred all further remark upon tbe nature of absolute obligations, till tbat analysis should be completed. But, since rights reside in persons, and since ^persons, things, acts, and forbearances are tbe subjects or objects of rights, it was necessary that I sliould advert to the signifi- cations of tbose several related expressions, before I could address myself to rights and to th.e obligations with. Avhich. tbey correlate. Accordingly, I distinguished persons into physical or natm^al, and legal or fictitious : that is to say, into i^ersons, properly and simply so called ; and persons wliicli are such, by a fiction, aud for the sake of brevity in discourse. 368 Pervading Notions analysed. LiicT. XIII I then stated tlie meaning whicli I attach to the term ^ ' ' person,' as signifying a jpliysical or individual jper son. I en- deavoured to demonstrate, that the extensive meaning which I attach to the term, coincides with the meaning which was annexed to it by the Roman Lawyers. And I distinguished that meaning from another and a very different meaning in which they frequently employ it : namely, not as signif3dng physical or individual persons, but as signifying the condi- tions or status which are borne or sustained by the former. In conclusion, I enumerated the kinds of persons which are persons by virtue of fictions ; and I also pointed at the desisrn which those fictions are intended to answer. But inasmuch as fictitious persons are of widely differing natures, and inasmuch as the ideas which they denote are for the most part extremely complex, I deferred all further consideration of them till I should descend to the detail of the science. Having considered the import of person, I proceed to the significations of Tiling., Act and Forbearance. Things are such permanent objects, not being persons, as are sensible or perceptible through the senses. Or (changing the expression) things are such permanent external objects as are not persons. Such (for example) is a field, a house, a horse, a garment, a -piece of coined gold. Such is a quantity of coined or uncoined gold, determined or ascertained by number or weight. Such is a quantity of cloth, corn, or wine, determined or ascertained by measure. Things are opposed, on the one hand, to persons them- selves ; and are contradistinguished, on the other, from the acts of the persons, and from the rest of the transient objects which are denominated /acj^s or events. Things resemble persons in this : That they are perma- nent external objects ; or objects which are permanent, and sensible or perceptible through the senses. They differ from persons in this : That Persons are invested with rights and subject to obligations, or, at least, are capable of both : Things are essentially incapable of rights or obligations ; although (by a fiction) they are sometimes considered as persons, and rights or obligations are ascribed or imputed to them accordingly. They resemble facts or events in this : That they are inca- pable of rights or obligations. They differ from facts or events in this : That things are permanent external objects ; whilst facts or events are transient objects, and consist of P 67^5071 — Thing. 369 determinations of the will, with, other affections of the mind ; lect. xiii as well as of objects perceptible through the senses. ' ' ' In drawing the line, by which Persons and Things are separated from Events, I content myself with vague expres- sions, and am far from aspiring to metaphysical precision. If I attempted to describe the boundary with metaphysical precision, I should run into enquiries which my limits im- periously forbid, and which were scarcely consistent with the purpose of these discourses. If I endeavoured to define exactly the meaning of 'permanent object,' I should enter upon the perplexing question of sameness or identity. If I endeavoured to define exactly the meaning of 'sensible object,' I should enter upon the interminable question about the difference between mind and matter, or percipient and perceived. And, in either case, I should thrust a treatise upon Intellectual Philosophy into a series of discourses upon Jurisprudence. Accordingly, now that I have indicated rather than deter- mined the boundary, I must leave my hearers to settle it for themselves, according to their own fashion. I must leave them to distinguish, after their own fashion, between objects which are perceptible through the senses, and objects which are not ; between sensible objects which are permanent, and are things (strictly so called), and sensible objects which are transient, and are ranked with facts or events. The discre- tion which prompts my reserve will be understood by those who have turned a portion of their attention to the Philo- sophy of the Human Mind, and will meet with approbation rather than censure. Those who are ignorant of what is styled Metaphysic frequently run, without knowing it, into ill-timed metaphysical speculation. Those who are versed in Metaphysic, know the occasions for abstaining from it, as well as the occasions on which it can be applied to advantao-e. But, in order that we may keep clear of a very perplexing ambiguity, I will remark for a moment upon two distinct significations of 'permanent' and 'transient.' And this re- mark I am compelled to interpose, inasmuch as it regards a distinction which strictly belongs to Jurisprudence, whether it be metaphysical or not. Sensible objects, or objects perceptible through the senses, are permanent or transient. The former are persons or things : the latter rank with the objects which are denomi- nated facts or events. I^'ow when it denotes a tiling^ as contradistinguished from VOL. I. B B 370 Pervading Notions analysed. Lect. XIII an everd^ tlie import of the expression 'permanent sensible ' object,' is (I tMnk) this : It denotes an object wbicb is per- ceptible repeatedly, and which is considered bj those who repeatedly perceive it, as being (on those several occasions) one and the same object. Thus, the horse or the house of to-day is the horse or house of yesterday ; in spite of the in- tervening changes which its appearance may have undergone. The transient sensible objects which rank with facts or events, are not perceptible repea,tedly. They exist for a moment: disappear: and never recur to the sense, although they may be recalled by the memory. Such (I think) is the distinction t^indicated in very general expressions) between the term 'permanent,' as applied to things, and the term ' transient ' as applied to sensible events. And, taking the terms in these significations, all tilings are permanent, and no things are transient. But, taking the terms in other significations, things may be distinguished into permanent and transient, or into such as are more permanent and such as are less permanent. For some are more enduring ; others are less enduring. In other words, some retain the forms which give them their actual names for a longer period : some retain those forms for a shorter period, or corrupt, decay, and perish speedily. The purpose of this distinction will appear clearly, when I consider the kinds and sorts into which things are divi- sible : especially the Mnd, of things which have been styled fungible, and the sort of fungible things quoe usn consumuntur. Resuming the definition of a thing, I mean by a thing (as contradistinguished from an event) any permanent ex- ternal object not sl person. Or (changing the expression) I mean by a thing (as contradistinguished from an event) any sensible object, not being a person, which is capable of being perceived repeatedly, or is capable of recurring to the sense. Distinc- The distinctions between Things, or the various genera and between species Under which they are distributed, will be considered Things hereafter. For, though these distinctions are derived (in part) from the physical differences between things, they are also derived (in part) from the differences between rights and obligations ; and are just as factitious, or as completely the work of Law, as the rights and obligations of which things are the subjects. Consequently, a statement of the distinctions between Things (as subjects of the science of Jurisprudence) must be preceded by a general statement of the distinctions between rights and duties. Things. 37r From tlie import of tlie term fhincj (as opposed to person Lect.xiii and event) I proceed to certain ambiguities by which, it is ' ' ' perplexed and obscured. And, first, 'res' or thing (as used by the Eoman Lawyers) Things as is frequently extended from things (strictly so called) to acts tSs^£d^ and forhearances considered from a particular aspect : namely, forbear- ances. considered as the objects of obligations, and of the rights corresponding to obligations. For example, K you are bound by virtue of a contract to do certain acts (as to perform work and labour in repairing a house) ; or if you are bound by virtue of a contract to forh ear from certain acts (as to forbear from exercising a trade within certain limits), the acts or forbearances to which you are ohliged, and to which the opposite party has a correlating or corresponding right, are res or things (in the sense Avhich I am now considering). Strictly speaking, the act or forbearance is not a thing. It is not a permanent external object. Strictly speaking, it is the object or end of the right, and of the obligation which corresponds to the right ; or it is the purpose for the accom- plishment of which the right and the obligation exist. A more remarkable and a more per^Dlexing ambiguity is Coi-poreai J T « n • and Incor- the followmg. po.eal Things are divided by the Roman Lawyers into corporeal Things, and incorporeal. Under corporeal things are included, 1st, Things (strictly so called) : that is to say, permanent external objects not persons. 2ndly, Persovs, as considered from an aspect to which I shall advert immediately : that is to say, not as having rights, or as being bound by obli- gations, but as the subjects or objects of rights and obliga- tions residing in, or incumbent upon others. Sdly, Acts and Forbearances, considered from the aspect to which I have alluded already : that is to say, as the objects of rights and obligations. By ''incorporeal things,'' they nnderstood not the subjects of rights and obligations, but rights and obligations them- selves : 'Ea quse in jure consistunt :' velut 'jus hereditatis,' ^ jus utendi fruendi,' 'jus servitutis,' ' ohligationes, quoqno modo contractse.' By ' corporeal ' they meant sensible, or perceptible through the senses : Or (in that philosophical jargon which they bor- rowed from the Greeks) they meant by ' corporeal,' tangible. For, in the language of the Stoics, and also of the Epicu- reans, all the various senses were considered as organs of 372 Pervading Notions analysed. I.ECT. XIII touch ; or all sensations, as modifications of the sensation of ' ^ touch. And taking ' corporeal ' and ' tangible ' in that sense, res corporales or res quce tangi possunt, will not only comprise things (in the strict signification of the term), but also acts (as the objects of rights and obligations). For every act which can be the object of a right or obligation, is an act external or perceptible hy sense. To forbearances, indeed, the term res corporales will not apply strictly. For all forbear- ances are mere determinations of the will. But it was pro- bably extended to forbearances which are the objects of rights and obligations, partly for the sake of convenience, and partly because the acts to be forborne are iangible or sensible. In the language, then, of the Roman Lawyers, the term res has two significations which are widely different. 1st, It denotes Things, Acts, and Forbearances, as the subjects or objects of rights and obligations, and it sometimes denotes persons considered from that same aspect. 2ndly, It denotes Eights and Obligations themselves. In the English Law, we have this same jargon about ^in- corporeal things '^^ (derived from the Stoical Philosophy through the Roman Law), applied less extensively. With us, all rights and obligations are not incorporeal things ; but certain rights are styled incorporeal hereditaments, and are opposed by that name to hereditaments corporeal. That is to say, rights of a certain species, or rather of numerous and very different species, are absurdly opposed to the things (strictly so called) which are the subjects or matter of rights of another species. The word hereditam.ents is evidently taken in two senses, in the two phrases which stand to denote the species of hereditaments. A corporeal hereditament is the thing itself 'Pondus uti saxis, calor ignibus, Eoman. The difference is occasioned liquor aquai by the difference in the English law be- Tactus corporibus cunctis, intactus tween the descent or devolution of Inani.' moveables and immoveables ; including ,rr^^ • m X i i^- in the first, jtira ad rem, or most of * 1 actus enim, i actus, proh Divum _ tj i-j. „ ^ ^hu^^-f^^ ' J. , ^ them. Hcereaitas or oohQamo=aTi in- corporeal, not hereditament, — for they devolve not upon heirs, — but thing, going to executors or administrators, or to , those who are entitled to that office. — corpora nata est Marginal note in the page referred to. Lucretius, Lib. L & IL ^^^^ ^^^.^^ ^^^^ ^^/^^ p^g^^ . j^-^^ ■"^ Blackstone, Vol. ii. c. 3. 'property' (the more extensive right) The ' Incorporeal Hereditaments ' of it is a collective name ; and, by conse- the English Law are not exactly equiva- quence, has no one thing or incident lent to the ' Kes incorporales ' of the corresponding to it. — Marginal note. mimina sancta! Corporis est sensus, vel cum res extera sese Insinuat, vel cum Isedit, quae in Things. which is the subject of the right; an incorporeal heredita- Lect.xiii ment is not the subject of the right, but the right itself. ^~ ' ^ I observed, in my last Lecture, that the slave is styled by the Eoman Lav^yers a ' person.' And considered as bearing a condition, and as bound by obligations, he is a person. But considered as the subject of the dominion v^hich resides in the master (a right which the master can assert against the rest of the world), he is sometimes styled a tMng. For example, In case he be unjustly detained by a third party, the master may recover him by that peculiar action which is styled rei vindicatio : an action which was confined to the recovery of things ; and which could not be brought by the father for the purpose of recovering his son, although the f atria jpotestas (or right of the father in the son) was closely analogous to the dominion of the master. This is utterly capricious. For, if the slave is a thing (as the subject of the master's right), so should every person be considered as a thing, where he is the subject of a right re- siding in another. In this sense, almost every person is a thing. For there is scarcely a person who is not the subject of a right, which resides in another person, and avails against the world at large. For instance : A servant, in our own country, is the subject of rights residing in his master; not only of the rights which the master enjoys by contract over the servant himself, but of rights in him availing against the world. If a third party were to seduce the ser- vant from his master's service, or to maltreat him, so as to disable him from performing his service, this w^ould be an offence against the right of the master in the servant. Such, again, is the case of a husband and a wife. There are in all such cases two distinct rights, that of the one person against the other, and that of the one person in the other as against third parties. Such cases are very numerous, as will be shown here- after. Eights may be had in persons, just as they may be had in things ; and there is no difference between the cases, except that in one case the subject is a person, in the other the subject is a thing. In the same sense, therefore, in which the slave is sometimes called a thing, all persons whatever might be so styled. There are, however, very few cases in which the slave is styled a thing (even when he is considered as the subject of the master's dominion). Generally speaking, he is styled homo, or servilis persona (even when considered under that aspect) : For instance, when he is considered as the subject of the an- cient and formal conveyance called manc{;patio (Gaius^I. § 120). 374 Pervadi7ig Notions analysed. Lect. XIII Distinction between jura I'erum and jm-a persnnarum briefly introduced. I shall take this occasion of recalling your attention to the double meaning of persona in the Eoman law as signify- ing, sometimes a physical or real person, and sometimes a status or condition : for the purpose of observing that the last acceptation of persona, combined with that of res as denoting in certain cases rights and obligations, throws considerable light on the celebrated distinction between jus rerum and jus personarum ; phrases which have been trans- lated so absurdly by Blackstone and others — rights of per- sons and rights of things. Jus personarum did not mean law of persons or rights of persons, but law of status or condi- tion. A person is here not a physical or individual person, but the status or condition with which he is invested. It is a remarkable confirmation of this that Gains, in the margin, purporting to give the title or heading of this part of the law, has entitled it thus, De conditione hominum : and Theophilus, in translating the Institutes of Justinian from Latin into Greek, has translated jus personarum — 17 tmv Trpoacoircov Stacpsats — Divisio personarum : understanding evi- dently by persona or Trpoawrrov not an individual or physical person, but the status, condition, or character borne by phy- sical persons. This distinctly shows the meaning of the '^h.T^^Q jus personarum, which has been involved in impene- trable obscurity by Blackstone and Hale. The law of persons is the law of status or condition : the law of things is the law of rights and obligations, considered in a general manner or as distinguished from those peculiar collections of rights and obligations which are styled conditions, and considered apart. From the same ambiguity arose the mistake of supposing that jura in rem must have something to do with things ; whereas the phrase really denotes rights which avail gene- rally as distinguished from those which avail only against some determinate individual. LECTURE XIV. ACT AND FOEBEARANCE : JUS TE REM IN PERSONAM. Lect. XIV In the last Lecture, I entered upon the analysis of the term ' Eight.' But, since rights reside in persons, and since persons, things, acts and forbearances are the subjects or objects of rights, it was necessary that I should advert to the meaning Fact — Incident — Event. 375 of those several related expressions, before I could address lect. xiv myself immediately to rights and their corresponding duties. """^ ' ^ Accordingly, in the last Lecture, I considered the term ' Person,' and the term ' Thing.' In the present Lecture I shall point at the respective sig- nifications of ' Act ' and ' Forbearance,' and shall consider briefly an important distinction which obtains between rights themselves : — A distinction of which we must seize the general scope or import, before we can understand, and can express adequately and correctly, that nature or essence which is common to all rights. Persons and Things are objects external and permanent. Persons and Or, persons and things may be distinguished from other '^^^^^^ objects, in the following manner : — 1st. A |)erson or thing is a sensible object, or an object perceptible by sense. 2ndly. A person or thing is perceptible rej)eatedl\j^ or is capable of reciirrincj to the sense. 3rdly. A person or thing recurring to the sense is consi- dered by him who repeatedly perceives it as being, on those several occasions, one and the same object. Things are such permanent external objects as are not Persons and Persons ; that is to say, as are not physical or individual tj^dj^jfed persons ; as are not men (in the largest signification of the term) ; or (using the term ' men ' in its narrower import) as are not men, women, or children. Facts, Events, or Incidents may be distinguished from Per- Events, sons and Things in the following manner. 1st. Every person or thing is a sensible object. Of events, some are perceptible by sense ; but some are determinations of the will, or other afPections of the mind. 2ndly. Every person or thing is a permanent sensible object. But an event perceptible by sense (like ever}^ other event) is transient. That is to say, an event perceptible by sense, is not perceptible repeatedly . It exists for a moment : Then, . ceases to exist : And never recurs to the sense, although the memory may recal it. Events are simple, single, or individual; or they are Events are complex. A simple event is incapable of analysis ; or is complex, considered incapable of analysis. A complex event is a number of simple events, marked (for the sake of brevity) by a collective name. The importance of this distinction wiU appear clearly, when I consider events more in detail; 37^ Pervading Notions analysed. Import of ' fact ' and ' incident.' Acts and Forbear- ances. Act. •^iucident' are sometimes syno- ' event.' But, not unfrequentlj, Lect. XIV especially, wlien I consider them as causes of rights and " ' duties, and of the termination of rights and duties. Before I proceed to the terms ' Act ' and ' Forbearance,' I will offer a brief remark upon the terms which are now in question. The terms ' fact ' and nymous with the term ' fact ' is restricted to human acts and forbearances, and ' incident ' employed in a sense to which I shall advert here- after. Consequently, the objects which I am endeavouring to distinguish from persons and things, are best denoted by the term ' events.' 'Event' is adequate and unambiguous : It will always apply to ayiy of the objects in question. ' Fact ' and ' incident ' are ambiguous. Taken in one signification, each of them will apply to any of the objects in question. Taken in another signification, it applies exclusively to events of a class. The only class of events to which I advert at present, are human acts and forbearances. Now human acts or actions are internal or external.'^ ^ In other words, they are not perceptible by sense, or they are perceptible by sense. Internal acts are determinations of the will. External acts are such motions of the body as are consequent upon determinations of the will. Determinations of the will, and such motions of the body as are consequent upon determinations of the will, are (I conceive) the only objects to which the term ' act ' can be applied with pro- priety. It is scarcely applicable to those motions of the body which are involuntary : that is to say, which are involuntary (in the large acceptation of the term), or are not consequent npon determinations of the will. If (for example) you plunged into the water purposely, the motions of your body consequent upon the act of your will would be considered an act, or a series of acts. But if you fell into the water without design, the descent of your body into the water would hardly be styled an act, although it would be called an event. Nor is the term ' act ' applicable to those affections of the mind which are frequently styled passive : that is to say, Avhich are not determinations of the will. Whether it will Eut observe the correction (p. 433. to denote what are here termed 'internal post) of the terminology used here. It acts,' and restricts the meaning of the will there be seen that the author on term ' acts ' to denote what are here further reflection adopts the phrase termed ' external acts.' — E,. C. * determinations of the will ' as sufficient A ct — Forbearance. apply to these, Tvithont a solecism, seems to be doubtful. Lect. xiy But Tve certainly read and bear of ^ acts of the will ;' and I ' ^ tbink tbat tlie term maj be extended to determinations of the Trill, consistently witb general usage. At all eyents, I shall take leaye to consider them as belong'ing' to the class of acts: styling tbem, bj way of distinction, ^ acts of the icilL/ or ' acts internal.^ A Forbearance is a determination of tbe will, not to do Forbear- some giyen external act. Or (taking tbe notions wliicb tbe term includes in a different order) a forbearance is tlie not doing some giyen external act, and tbe not doing it in conse- quence of a determination of the vjill. Tbe import of the term is, therefore, double. As denoting the determination of the will, its import is 'positive. As denoting the inaction which is consequent upon that determination, its import is negative. This double import should be marked and remembered. For mere inaction imports much less than forbearance or abstinence from action. In 25opular and loose language, a culpahle forbearance (or a forbearance which is a yiolation of some law or rule) is not styled a ' forbearance,' but is ranked with omissions. But an omission (properly so called) is widely different from a culpable forbearance. A culpable forbearance is an act of the will, or supposes an act of the will. An omission is not the consequence of an act of the will, but of that state of the mind which is styled ^ negligence,' and implies the absence of will and intention. Accordingly, I apply the term ' forbear- ance ' to all voluntary inaction, or to all inaction which is consequent upon yolition. Those forbearances which are yiolations of laws or mles, may be styled, bj way of distinc- tion, unlawful, unjust, or culpable. And here I dismiss for the present the terms ^ Act ' and ^ Forbearance.' Before we can settle the import of these expressions, we must settle the import of the term ' AVill, and of the inseparably connected term ^ Intention.' But these I shall consider (in conjunction with ' ^^egiigence ' and ^ Rashness ') when I endeayour to determine the nature of ' Injuries ' and ' Sanctions ; ' and to distinguish the com- pulsion and reslraint which are styled ' Obligation,' from the compulsion and restraint which operate not upon the will, and may be styled ^merely physical.' From Persons, Things, Acts and Forbearances, I proceed introduc- to analyse, in a general and concise manner, an important r)iftin°ct£n distinction which obtains between Eights, and between the ^&tweenjz^ 378 Pervading Notions analysed. Lect. XIV duties or obligations which, are implied by rights. But in ^ZtZisIa ^^^^^ "tbat you may follow this analysis with greater ease, I jus in per- introduce it with the following^ assumptions, and with the following explanatory remarks. The truth of the assump- tions will be proved hereafter. I introduce them here for the purpose of facilitating apprehension. 1 st. External Acts and forbearances (or, briefly. Acts and Forbearances) are the objects of duties. Changing the expres- sion, the ends or purposes for which duties are imposed are these : that the parties obliged may do or perform acts, or may forbear or abstain from acts. The acts or forbearances then to which the obliged are bound, I style the objects of duties. 2ndly. The objects of relative duties, or of duties which answer to rights, may also be styled the objects of the rights in which those duties are implied. In other words, all rights reside in persons, and are rights to acts or forbear- ances on the part of other persons. Considered as corre- sponding to duties, or as being rights to acts or forbearances, rights may be said to avail against persons. Or, changing the expression, they are capable of being enforced judicially against the persons who are bound to those acts or forbear- ances. The acts or forbearances, then, to which these per- sons are bound, may be called the objects, not only of the duties themselves, but of the rights corresponding to these duties. 3rdly. Of rights, some are rights over things or persons, or in or to things or persons. Others are not rights over things or persons, or in or to things or persons. All rights over things or persons are of that class of rights which avail against persons generallyj or (in other words) which avail against the world at large. Of rights which are not rights over things or persons, some are of the class of rights which avail against persons generally. Others avail exclusively against persons certain or determinate, or against persons who are determined in- dividually. Where a right is a right over a thing, or (changing the shape of the expression) in or to a thing, I style the thing over which it exists the subject or matter of the right. I thus distinguish it from acts and forbearances, considered as the objects of rights. Where a right is a right over a person, I also style the person over whom it exists the subject of the right. For a Acts and Forbearances the Objects of Rights. 379 person, considered from this aspect, is placed in a position Lect. xiv resembling tlie position of a tliincj Tvliicli is tlie snbject or ' ' ' matter of a right. Considered from this aspect, he is not considered as invested with rights, nor is he considerd as lying under duties or obligations. He is considered as the subject of a right which resides in o/notlier person, and Trhich answers to duties or obligations incumbent upon tliircl persons. For example, the relation of master and servant im^^lies tii'o rights which are utterly distinct and disparate. The master has a right, which avails against the servant specially, to acts and forbearances on the paii: of the servant himself. The master has also a right over or in the servant, which avails against other persons generally, or against the world at large. With respect to the first of these rights, the ser- vant lies under obligations answering to the right of the master. But with respect to the second of these rights, he is placed in a position resembling the position of a thing which is the subject or matter of a right. With respect to tliat right, he lies under no obligations. He is merely the subject of a right which resides in his master, and which avails [not against himself) but against third persons. To resume : All rights reside in persons, and are rights to acts or for- ^ bearances on the part of other persons. And acts and j forbearances, considered fi^om this aspect, I would style the | objects of rights, and of the corresponding duties or obliga- tions. But some rights are rights over persons or things : | Or (changing the shape of the expression) they are rights in | or to persons or things. And persons and things, considered from this aspect, I would style the subjects of those rights, and of the duties which answer to those rights. And here I will briefly remark, that the term ' subject,' as applied to a loerson, is somewhat ambiguous. A person is subject to a duty, when he is bound by the duty, or the duty is incumbent upon him. He is the subject of a duty, when the duty is not incumbent upon himself, but he is merely. that about which the duty is conversant. To recur to the example which I have just cited : As between himself and his master, the servant is subject to a duty : that is to say, a duty is incumbent upon him. But he is the subject of the duty which is incumbent upon third ])ersons towards his master. The distinction between Eights which I shall presently 38o Pervading Notions analysed. Lect. XIV endeavour to explain, is that all-pervading and important distinction which has been assumed by the Roman Institu- tional Writers as the main groundwork of their arrange- ment : namely, the distinction between rights in rem and rights in personam ; or rights which avail against persons generally or universally, and rights which avail exclusively against certain or determinate persons. The terms ^jus in rem' and 'jus in personam ' were devised by the Civilians of the Middle Ages, or arose in times still more recent. I adopt them without hesitation, though at the risk of offending your ears. For of all the numerous terms by which the distinction is expressed, they denote it the most adequately and the least ambiguously. The terms which were employed by the Eoman Lawyers themselves, with various other names for the classes of rights in question, I shall explain briefly hereafter. At present, I will merely point at an ambiguity which perplexes and obscures the import oijus in rem. The phrase in rem denotes the compass, and not the subject of the right. It denotes that the right in question avails against persons generally ; and not that the right in question is a right over a thing. For, as I shall show hereafter, many of the rights, which are jura or rights in rem, are either rights over, or to, persons, or have no subject (person or thing). The phrase in personam is an elliptical or abridged ex- ' pression for '^in personam certam sive determinatam.' Like the phrase in rem, it denotes the compass of the right. It denotes that the right avails exclusively against a determinate person, or against determinate persons. Before I proceed to the distinction between the two classes of rights, I must yet interpose a remark relating to terms. In the language of the Roman Law, and of all the modern systems which are offsets from the Roman Law, the term ' Obligation ' is restricted to the duties which answer to rights in personam. For the duties which answer to rights availing against persons generally, the Roman Lawyers had no distinctive name. They opposed them to Obligations (in the strict or proper sense) by the name of Offices or Duties : Though office or duty is a generic expression ; and comprises Obligations (in the strict or proper sense) as well as the duties which answer to rights in rem. This limitation of the term 'Obligatio' by the Roman Jus in Rem — m Perso7iam. 381 Lawyers must be carefallj noted. Unless it be clearly nnder- lect. xiy stood, tlieir writings, as well as tliose of most Continental ' ' Jurists, will appear an inexplicable riddle. Three-fourths of those who in our own country profess to read and talk about the French Code, cannot j)OssiblT understand a word of it, by reason of the sense in which this word is employed therein. Haying premised these remarks, I proceed to state and to r>i?tinction illustrate the important distinction in question, with all the fn7-emand* brevity which is consistent with clearness.''^ jusmper- _ . sonam. I Rights m rem may be defined in the following manner : — ' ' Rights residing in jDersons, and availing against other per- sons generally.' Or they may be defined thus: — ^Rights residing in persons, and answering to duties incumbent upon other persons generally.' By a crowd of modern Civilians, jus in rem has been defined as follows : — ' facultas homini competens sine respedu ad certam loersonam,' a definition I believe invented by Grotius. \ The following definitions will apply to personal rights : — ^ Rights residing in persons, and availing exclusively against persons specifically determinate : — Or, ' Rights residing in persons, and answering to duties which are incumbent ex- clusively on persons specificall}" determinate.^^ By modern Civilians, a personal right is commonly defined in the fol- lowing manner: — 'facultas homini competens in certam per- sonam.' This definition also, like the former, was, I believe, devised by Grotius : in neither of them is there any great merit. According to these definitions, a right of the first class and a right of the second class are distinguishable thus : The duty which correlates with the latter is restricted to a \ cP^" ' person or persons specifically determinate. The duty which correlates with the former attaches upon persons generally. But though this be the essence of the distinctio6, these two classes of rights are further distinguishable thus. The For the distinction generally, see indeter'minate persons (as e.g. the repre- Hugo, Jurist. Encyc. pp. 75, 298, 325, sentative of the obligor in cases of con- 335. — Haubold, Jus. Eom. Priv. pp. tracts, some obligations ex delicto, etc.), 7-8. — Savigny, Yom Beruf, etc. pp. 66, it is only capable of attaching upon 99. — ^Bentham, Principles of Morals and them as npresenting the original obligors. Legislation, p. 246. — Thibaut, Tersuehe It never extends beyond the successor, iiber einzelne Theile der Theorie des singular or xiniversal, of the original Eechts, ii. p. 23 ; and note at the end of obligor. this lecture. A right in personam avails exclusively ■•^ An obligation attaches exclusively against the obligor, though the obligor upon a d^eterminate person or persons, may be prevented from performance by Where it is capable of attaching upon a third party. 382 Pervading Notions analysed. Illustra- tions of the distinction between jus n rem and J MS in personam. Property. Lect. XIV duties wMch correlate with rights in rem, are always nega- " ' \ tive: that is to say, they are duties to forbear or abstain. Of the obligations which correlate with rights in ^personam, some are negative, but some (and most) are positive : that is to say, obligations to do or perform. As every imaginable right belongs to one of these classes, or else is compounded of rights belonging to each of these classes, it is manifest that a full exposition of this all-per- vading distinction were nearly equivalent to a full exposition of the entire science of Law. Leaving the fuller exposition of it for future Lectures, I shall merely endeavour, at pre- sent, to give the clue to its import, by adducing as briefly as possible a few apt examples. 1st. Ownership or Property (equivalent to Dominion, in its strict or proper signification) is a term of such complex and various meaning that I must defer the full and accurate explanation of it to a future opportunity. But, in order to the illustration of the distinction which I am endeavouring to exemplify and explain, Ownership or Property may be de- scribed, accurately enough, in the following manner : ' the right to. use or deal with some given subject, in a manner, or to an extent, which, though it is not unlimited, is indefinite.' JSTow in this description it is necessarily implied, that the law will protect or relieve the owner against every disturb- ance of his right on the part of any other person. Changing the expression, all other persons are bound to forbear from acts which would prevent or hinder the enjoyment or exercise of the right. But, here, the duties which correspond to the right of pro- perty terminate. Every positive duty which may happen to concern or regard it, is nevertheless foreign or extraneous to it, and flows from some incident specially binding the party upon whom the duty is incumbent : for instance, from a contract or covenant into which he enters with the owner, or from a delict which he commits against his right of owner- ship. In other words, every such positive duty is restricted to a determinate person, and is, therefore, an Obligation (in the sense of the Roman Lawyers). And even a duty which is negative and regards the right of ownership, is not an obli- gation corresponding to that very right, in case the vincu- lum be special : that is to say, not attaching indefinitely upon mankind at large, but binding some certain person, or some certain persons, and arising from some incident which ex- clusively regards the obliged. An obligation, however, in the Jtis in Rern- \ — in Pe7'S07iani. 383 sense of tlie Eoman lawyers, or a cIiitT binding a determinate Lect. xiy person, may, whether positive or negative, co-exist with the ' ~^ duties which correspond to the right of property, by reason of some incident which superadds to the ownership a right iii personam. Thns if in selling you an estate I enter into a covenant not to molest you in the possession of it, or into a covenant for further assurance, you enjoy, besides your right of ownership, which avails and can be enforced against the world at large, another right arising out of the covenant, and which avails solely against me. Or if I trespass on land of which you are the owner, I become amenable to an obli- gation ed: delicto, which is superadded to the duties incumbent upon me and all other persons in respect of your ownership. Ownership or Property is, therefore, a species of Jus in rem. For ovmership is a right residing in a person, over or to a person or thing, and availing against other persons univer- sally or genercdly. It is a right implying and exclusively resting upon obligations which are at once universal and negative. T\1iere the subject of a right in rem happens to be a per- son, the position of the party who is invested with the right wears a double aspect. He has a right (or rights) over or to the subject as against other persons generally. He has also rights (in personam) against the subject, or lies under ohliga- tions (in the sense of the Eoman Lawyers) towards the sub- ject. But this is a matter to which I shall revert presently. 2ndly. The Servitutes of the Eoman Law, and of the Ssiritus. various modern systeins which are modifications of the Eo- man Law, may also be adduced as examples of rights in rem. Servitus (for which the English ^ Easement ' is hardly an adequate expression) is a right to use or deal ujitJi, in a given and definite manner, a subject oivned by another. Take, for instance, a Eight of ATay over another's land. Xow, accord- ing to this definition, the capital difference between Ourner- sliip and Servitus is the following: — The right of dealing with the subject which resides in the owner or proprietor, is larger, and, indeed, indefinite : That which resides in the party who is invested with a right of servitude, is narrower and determinate. But. in respect of that great distinction which I am now endeavouring to illustrate, the Eight of Ownership or Pro- perty, and a Eight of Seiwitude, are perfectly equivalent rights. Servitus (like Ownership) is a right in rem. For it avails against all manJcind (including the owner of the sub- 384 Pervading Notions analysed. Lect. XIV ject). Or (clianging tlie expression) it implies an obligation ' upon all (the owner again included) to /or^ear from every act inconsistent with the exercise of the right. But this negative and universal duty, is the only obligation which correlates with the jus servitutis, or which corresponds to that very right. Every special obligation which happens to regard or concern it, is nevertheless foreign or extraneous to it, and answers to some right of the opposite or antagonist class. Suppose, for example, that the servitude has been consti- tuted (or granted) by the actual owner of the subject. And suppose that the owner has also contracted with the grantee not to molest him in the enjoyment or exercise of the right. Now, here, the granter of the servitude lies under two duties which are completely distinct and disparate : — One of them arising from the grant, and answering to the right which it creates ; — the other arising from the contract by which he is specially bound, and answering to the right in personam which the contract vests in the grantee. In case he molest the grantee in the exercise of the servitude, the injury is double, though the act is single. By one and the same act, he violates an Officium which he shares with the rest of man- kind, and he also breaks an Obligation (in the sense of the Eoman Lawyers) which arises from his peculiar position. Examples Having given an example or two of real rights (or of rights 'personavi.^ which Correspond to duties general and negative), I will now adduce examples of personal rights : that is to say, rights which avail exclusively against persons certain or determinate, or which correlate with obligations, incumbent upon deter- minate persons, to do or perform, or to forbear or abstain, ist. Ariffht All Rights arising from Contracts belong to this last-men- o?a"?«-^V tioned class : although there are certain cases (to which I tract. , giiail presently advert) wherein the right of ownership, and / others of the same kind, are said (by a solecism) to arise from Contracts, or are even talked of (with flagrant absur- dity) as if they arose from Obligations (in the sense of the Roman Lawyers). Rights, which, properly speaking, arise from Contracts, avail against the parties who bind themselves by contract, and also against the parties who are said to represent their persons : that is to say, who succeed on certain events to the aggregate or bulk of their rights ; and, therefore, to their faculties or means of fulfilling or liquidating their obliga- tions. But as against parties who neither oblige themselves Jtis in Rem — iit Personam. bj contract, nor represent the persons of parties who oblige Lect themselves by contract, the rights, which, properly speaking, arise from contracts, have no force or effect. Suppose (for example) that you contract with me to de- liver me some moveable ; '^'^ but, instead of delivering it to me in pursuance of the contract, that you sell and deliver it to another. Now, here, the rights which I acquire by virtue of the contract, are the following. I have a right to the moveable in question as against you specially. So long as the ownership and the possession con- tinue to reside in you, I can force you to deliver me the thing in specific performance of contract; or, at least, to make me satisfaction, in case you detain it. After the de- livery to the buyer, I can compel you to make me satisfaction for your breach of the contract with me. But here my rights terminate. As against strangers to that contract, I have no right whatever to the moveable in question. And, by consequence, I can neither compel the buyer to yield it to me, nor force him to make me satisfac- tion as detaining a thing of mine. For ' obligationum suh- stantia non in eo consistit ut aliquod nostrum faciat, sed ut alium. nobis obstringat ad dandum aliquid, vel faciendum, vel prsestandum.' [Or rather, ' ad faciendum ' (including ' dandum ') vel ' non faciendum.' ' Proestandum ' seems to include both.] But if you deliver the moveable, in pursuance of your contract with me, my position towards other persons generally assumes a different aspect. In consequence of the delivery by you and the concurring apprehension by me, the thing becomes mine. I have jus in rem : I have a right over the thing, or a right in the thing, as against all mankind : A right which answers to obligations universal and negative. And, by consequence, I can compel the restitution of the thing from any who may take it or detain it, or can force him to make me satisfaction as for an injury to my right of " If the contract to deliver, however, avoiding most of its practical conse- be causa venditionis, the transaction is quences, {e. g. the Bills of Sales A.ci ; the one which in English law depends for equitable doctrines of vendor's lien, the its effect as to third parties, on a variety equitable rules as to notice, «fec.) are ex- of circumstances. This arises from the amples of the inconvenience which arises peculiar theory of English law that the from the pretension of our Courts to •property in moveables is transferred by ignore the principles of the Koman law, a sale in specie without reference to the while compelled by the exigencies of fact of delivery. The confusion intro- commerce to adopt the results of those duced by this doctrine, and the various principles. — R. C. expedients resorted to for the purpose of VOL. I. C C 386 Pervading Notions analysed. Lect. XIV ownership. In tlie language of Heineccius (a celebrated ' ' ' Civilian of the last century), ' Ubi rem meam invenio, ibi earn vindico : sive cum ed persona negotium mihi fuerit, sive non fuerit. Contra, si a bibliopola librum emi, isque eum nondum mihi traditum vendiderit iterum Sempronio, ego sane contra Sempronium agere nequeo : quia cum Sempronio nul- lum mihi unquam intercessit negotium. Sed agere debeo adversus bibliopolam a quo emi : quia ago ex contractu, i.e. ex jure ad rem.' All rights which arise from contracts and (speaking gene- ' rally) all rights in personam, are rights to acts or forbearances on the part of determinate persons, and to nothing more. At first sight, that species of jus in personam which is styled jus AD rem may appear to form an exception. It may seem that the party who is invested with the right, has a right to a thing, or a right in a thing, as against the party who lies under the corresponding obligation. But, in every case of the kind, the right of the party entitled amounts, in strictness, to this : He has a right to acquire the thing from the opposite party, or to compel the party to make the thing his by an act of conveyance or transfer. It is only by an ellipsis, or for the sake of brevity in the expression, that the party invested with the right is said to have a right to a thing."^^ Take the following examples. 1st, If you contract with me to deliver me a specific thing, I am said to have jus ad rem : that is to say, a right to the thing which is the subject of the contract, as against you specially. But, in strictness, I have merely a right to the acquisition of the thing : a right of compelling you to give me jus in rem, in or over the thing : to do some act, in the way of grant or conveyance, which shall make the thing mine. 2dly, If you owe me money determined in point of quan- tity, or if you have done me an injury and are bound to pay me damages, I have also a right to the acquisition of a thing ; but, strictly and properly speaking, I have not a right to a thing. I have a right of compelling you to deliver or pay me moneys, which are not determined in specie, and as yet are not mine : though they will be determined in specie, and will become mine by the act of delivery or payment. In this case, the nature of the right is obvious. For as In the language devised by the Civilians, he has /z^s ad rem: that is to Canonists, and adopted by the modern sQ.y, jus ad rem acquirendain. Conh^act and Conveyance. 387 there is no determinate tiling upon which it can possibly lect. xiv attach, it cannot be a right to a iMng. 3dlj, Suppose that yon enjoy a monopoly by virtue of a patent ; and that you enter into a contract with me, to trans- fer your exclusive right in my favour. Now here, also, I have jus ad rem, but it is utterly impossible to affirm that I have a right to a thing. The subject of the contract is not a determined thing, nor a thing that can be determined. My right is this : a right of compelling you to transfer a right in rem, as I shall direct or appoint. If I may refine upon the expression which custom has established, I have not so properly jus ad rem, as jus ad jus in rem. And this, indeed, is the accurate expression for every case of that species of jus in ^personam which is styled jus ad rem. In every case of the kind, the party entitled has jus in _per- sonam AD jus in rem acquirendam. That is to say, he has a right, availing against a determinate person, to the acquisi- tion of a right availing against the world at large. And, by consequence, his right is a right to an act of conveyance or transfer on the part of the person obliged. With regard to the other species of jus in personam, there can be no doubt. If you contract with me to do work and labour, or if you contract with me to forbear from some given act, it is manifest that my right is a right to acts or forbearances, and to nothing more. I will now advert to the class of cases above alluded to (p. 384) which obscure the otherwise broad and distinct line of demarcation whereby these two great classes of rights are • separated. Rights in rem sometimes arise from an instru- ment which is called a contract, and are therefore said to arise from a contract : the instrument in these cases wears a double aspect, or has a twofold effect ; to one purpose it gives jus in personam and is a contract, to another purpose it gives jus in rem and is a conveyance. When a so-called contract passes an estate, or, in the language of the modern Civilians, a right in rem, to the obligor, it is to that extent not a contract but a conveyance ; although it may be a con- tract to some other extent, and considered from some other aspect. A contract is not distinguished from a conveyance by the mere consent of parties, for that consent is evidently necessary in a conveyance as well as in a contract. For example, a contract for the sale of an immoveable in the Trench law, is of itself a conveyance ; there is no other ; c c 2 388 Pervading Notions analysed. Lkct. XIV tlie contract, or agreement to sell, is registered, and tlie ' " ^ ownership of the immoveable at once passes to the buyer. By the provisions of that part of the English law which is called equity, a contract to sell at once vests ^us in rem or ownership in the buyer, and the seller has only ^us in re aliend. But according to the conflicting provisions of that part of the English system called peculiarly law, a sale and purchase without certain formalities merely gives jus ad rem, or a right to receive the ownership, not ownership itself : and for this reason a contract to sell, though in equity it confers ownership, is yet an imperfect conveyance, in conse- quence of the conflicting pretensions of law.''^ To complete the transaction the legal interest of the seller must be passed to the buyer, in legal form. To this purpose, the buyer has only jus in personam : a right to compel the seller to pass his legal interest ; but speaking generally, he has dominium or jus in rem, and the instrument is a conveyance. To this one intent only he has jus in personam ; the seller remains ob- ' liged, and equity will enforce this obligation in specie against the seller, or will compel him to fulfil it by transferring his legal interest in legal form. Considered with relation to this obligation, which corre- lates to a right in personam, the so-called contract is a con- tract ; but if there were only one system of law in England, and that law were the law administered by the Court of Chancery, it would not be a contract, but a mere con- veyance. Briefly, no right to a thing, properly speaking, is ever given by a contract. Where a thing is the subject of the contract, the right is not a right over, in, or to the thing, but a right to an act of transfer, or assignment of the thing on the part of the obligor. 2diy, A rights founded upon injuries, or rights of action in fomuied on ^^^^ largest scuse of tlic word, are rights in personam, equally an injury, with thosc which arise from contracts : and like all rights in personam, are rights to acts or forbearances on the part of determinate persons, and to nothing more. Some confusion has arisen upon this point from the actio in rem of the Eoman lawyers. Actio in rem was a name given by the j Roman lawyers to the form of action appointed for the vindi- cation of rights founded on injuries. The name does not imply that the right vindicated is a right in rem, but is an This of course cannot happen in which requires no particular formaHty in the case of a sale of moyeable chattels, law any more than in equity. — R. C. Extracts and Notes. 389 abridged expression to denote an action founded on an lfxt. xtv injury against jus in rem. Ail rights of . action must, it is evident, be founded on rights in 'personam, that is, on rights which avail exclu- sively against the determinate person or persons against v^hom the action will lie ; although those persons may have been brought under that designation b}^ committing an offence against a right in rem. Actions in rem are rights of action founded on an offence ao'ainst a riofht m rem, and seeking the restitution of the party to the enjoj^ment of that very right, and not merely satisfaction for being de- prived of it. Thus, an action of ejectment in English law would be said by the Roman lawyers to be an action in rem : because it is founded upon an act of dispossession infringing upon my right of ownership in the land, and because it seeks the restoration to me of that specific right. So likewise an action of detinue would be called an action in rem : but an action of trover would not ; because, though founded upon the supposition of a wrongful conversion of the subject claimed to the defendant's use, it does not seek specific restitution, but merely satisfaction or damages. The following are some of the p. 381, ante, together with the ma: Those from Hugo's ' Juristische ' Die Foderungen sind iiber- hauptRechtsverhaltnisse, hei icel- chennothicendig aufeinen hestimm- ten Verioflicliteten BilcJcsicM ge- nommen werden muss. In der romischen Sprache sind sie theils obligationes, theils actiones, je nachdem sie fiir sich liesteliende Verlidltnisse zwischen den cre- ditor nnd debitor {Sanctioned), oder Verhaltnisse znr V erfolgung irqend eines o/adem Rechtsver- Tidltnisses sind {Sanctioning'). Bei den Alten unterscheiden sie sich anch dadurch, dass die obli- o^atio an sich nie der Rechts- o fiihigkeit des Yerpflichteten ein Ende machen kann, wie dies bei der actio oft der Fallist.' — Sugo, Jurist. Enc. vol. i. p. 75. passages referred to in note ^^^\ L-ginal notes attached to them. Encyclopadie ' are as follows : — Rights of Action are classed with Obhgations ; whilst obliga- tions to suffer punislmient (which are not more sanctionative than the former), are referred (to- gether with Crimes and Criminal Procedure) to Public Law, Civil Procedure is completely sepa- rated from the Rights of Action, and the ^Matters for Exception, upon which it is built. Civil Injuries are not considered di- rectly. Sanctionative Civil Rights which are exercised extrajudi- cially are forgotten. — Marginal Note. 390 Pervading Notions analysed. Lect. XIV Page 298.—' Arten von Rechten ' an einer Sache.' Hugo enumerates three, viz. Eigenthum, Servitut, and Pfand- recht.* 'Doch,' lie continues, ' muss bemerkt werden, warum das Erbrecht und der Besitz nicht hierher gehoren. Ersteres, weil es eine Art des Eigentliums, oder eine Art es zu erwerben ; ^ und Letzterer, weil es etwas melir auf dem gegenwartigen natiir- lichen Zustande (Factum) als auf einem Reclite beruhendes ist ; wodurcli freilich auch ein strenges Recht gegen den unschuldigen dritten Besitzer entsteben kann, wenn der Anfang des Besitzes {causa oder initium possessionis, spaterliin titulus) es erlaubt ; oft entsteht aber daraus nur eine Ob- ligatio.' * Page 325. — ' Von Foderungen' ' Der Gegenstand einer Fode- rung ist entweder ein Geben, oder ein Tliun, oder ein Gestat- ten.' ... * Mortgage, etc., is Jns in Be, given by way of security for the performance of some obligation, though it may lead in the event to the enjoyment of the subject. The Bight of the Obligor may be Property or Servitus. — Mar- ginal Note. ^ And setting aside this ambi- guity — assuming that it denotes Jus, and not also a mode of ac- quisition — it cannot be classed with Jura in Re, because it also includes Jus ad Rem. Possession must be considered under three aspects. 1° As titulus, as the fact (the fact of enjoyment or occupancy) which gives a right as against oil except the pro- prietor. 2° As the name of this right. 3° As a titulus, which combined with other tituli gives a right even as against the pro- prietor. — Marginal Note. * i. e. Jus ad Rem against the alienor by virtue of the warranty for Title. — Marginal Note. Every obligation is positive or negative : is an obligation to give or to perform (in one word, to perform) ; or to permit, i. e. not to hinder, — Marginal Note. Subjects of Private Laiu. ' Juris in artem redacti, seu systematis juris, quantum ad jus privatum, tres constitiiuntur partes primarige maxime ah institu- tnrum ejusdem juris varietate ductge : a. a. Jus Personarum, quod de jDersonarum conditione, et in primis de statu famili^ praecipit : b.b. Jus Rerum, quo de rerum divisionibus et jure circa res, tam proprias quam alienas, etiam defunctorum, disseritur : denique : c.c. Jus Obligationum et Actionum, quod doctrinam, turn de jure adversus certos debitores per obligationem competente, tum de variis modis jus, quod supra traditum est, in judicio ]jerseq2iendi tractat. Quibus partibus tamquam corollarium, sed sine quo ipsa juris privati ratio Notes. 391 vix intelligi possit, recte adnectitm' universas formi'.Ice et ordinis Lect. XIV judiciorum descriptio. — Haulold, Listitutorum Juris Frivati FioriLani ^ " " Lineamenta, p. 7. On tlie blank part of tlie page, referred to in ' Thibaut's Yersuclie,' is the following' table : I I Ees. Actiones. Corporales [Ees et Facta]. I Incorporales. Dominia Obligationes (s. 1.). Oblis'ationes (s. s.). Actiones. Note on the Use of the Terms Ileal and Personal in the Law of ScotloMd. It may not be out of place bere to observe tbat tbe terms real and personal, wken applied by writers on the law of Scotland to distinguish rights, are invariably applied in a sense conformable to that of the Civilians. The word real has in the law of Scotland several shades of meaning, but all of them importing a distinction of a similar nature to that insisted on by Mr. Austin. Thus, a real burden affecting lands means an obligation, similar in character to that imposed by what is called in English law a covenant running with the land, and is, therefore, a right availing not in certani personam, but against persons of a generic description, namely, owners or possessors of the land. Thus, also, a right to teinds is classed amongst real rights, being available not against certam personam, but against all persons intromitting with (i. e. reducing into possession) the produce or rents. But the application of the terms real and personal which has most precision and distinctness is the following : — A real right in land, or other subjects capable of feudal investiture, is a xi^ht comjileted hy infeftment (that is, according to modern forms, duly registered in the Register of Sasines). X personal right to land, &c., is a right not completed hy infeftment. To understand the distinction, the English reader must be informed that the complete title to land in Scotland is of a double nature. There is the title proper {or personal title), consisting of a series oy progress of docu- ments connecting (or presumed to connect) the proprietor with the Crown, 392 Pervading Notions analysed. Lect. XIY as tlie ultimate author of all feudal rights. There is also the sadne, formerly a public act of taking possession, now eifected by registering the appropriate instrument or deed in the Register of Sasines : which being done, m pursuance of lawful warrants, the proprietor is said to be infeft, or feudally invested with the property. The word infeftment, or investiture, properly applies to the personal title completed by the sasine : but is some- times applied to the sasine as distinct from the personal title, where, as it sometimes happens, they conflict. Now the essential and, I believe, only practical difference in present effect made by the sasine (omitting the notice effected by registration and the operation of prescription to cure defects in the personal title) is the follow- ing : — If A. (the owner^ or dominus) be unlawfully kept out of possession by a tenant or other person, possessing on a colourable title not derived by way of contract from A., or from one whose person A, represents, A. cannot remove or eject the possessor until he is himself infeft in the lands. That is to say, A. infeft can enforce his right against persons in general ; A. uninfeft, only against certas jiersonas, namely, 1st, against those who possess under contract with him ; and, 2ndly, fi.gainst those whose acts may be necessary to procure his personal right to be clothed with the feudal investiture. No doubt the heir who has entered on the inheritance, although not infeft, has many of the real rights of the dominvs {e.g. against trespassers) ; but I believe that in the above distinctioh lies the reason why the terms real and personal applied by our lawyers of the last century (the best of whom were well versed in the learning of the Civilians), to distinguish rights completed by infeftment, and rights not so completed. The rights descendible to Ae/rs, as distinguished from those descendible to executors or administrators, are in the law of Scotland denoted by the appro- priate term heritable, and never by the term real. — R. C. LECTUEE XV. JUS IN REM — iisr PEESOifAM {continued). Lect. xy Ijj my last Lecture, I attempted to explain tliat leading and important distinction, wliicli lias been assumed by the Roman Institutional Writers, as tbe principal basis (or one of tbe principal bases) of tbeir System or Arrangement : E'amely, the distinction between rights in rem and rights in personam ; or between rights which avail against persons universally or generally, and rights which avail exclusively against certain or determinate persons. Having first endeavoured to state it in general or abstract expressions, I tried to illustrate the distinction between the two classes of rights by adducing examples of each. As examples of jura in rem, I referred to the right of ownership, property or dominion ; and also to those rights over subjects owned by others, which are styled by the Recapitu lation. 393 Roman Lawyers servitutes or jura servitidis, and Tvliicli may Lect. xy be styled in our own language (though, not with perfect ~ ' ' propriety) easements or rights to easements. As examples of rights in personam, I referred to rights ex contractu, or to rights which arise directly from contracts properly so called. And I also adverted to the rights which arise from injuries or wrongs, and which (taking the term action in its largest import) may be styled rights of action. I say in its largest import, because the term action is ambiguous; it has a wider and a narrower signification. Taken in its widest sense, it denotes any judicial remedy whatever ; taken in its narrower sense, it expresses only a particular species of judicial remedy. There are many cases in which judicial remedies are not technically styled rights of action. Such, for instance, is, in the Eoman law, the edict imde vi, which answers almost exactly to our action of ejectment, being founded on a wrongful dispossession by the party against whom it is brought, and seeking specific resti- tution of the particular right of which the other party has been deprived. Again, a right to an injunction, and a right to a writ of habeas corpus, being founded on an injury, and seeking in the one case the stoppage of the injury, before it is completed, in the other case, the specific restoration of the party to the right of which he has been deprived by the injury, are to all intents and purposes rights of action, as much as those which are in technical jargon called by the name. The whole theory of actions is in truth perfectly easy and simple, were it not for the absurd technical distinctions by which it is perplexed and incumbered. In order that I may further illustrate the import of the further ii- ....... . . Justrations leading distinction m question, I shall direct your attention to of the dis- those rights in rem which are rights over persons, and to tweenjVs^' certain rip^hts in rem, or availing^ ae-ainst the world at large, ^I'^d o a ^ JUS in per- which have no determinate subjects (persons or things) . S07ia7Jl, Lookino' at the obvious signification of the epithet real, rem . . ... restricted (and of the phrase in rem, from which the epithet is derived,) by certain we should naturally conclude that a real riodit must be a ^ JUS in rem right in a thing. And, accordingly, by many of the modern over or in expositors of the Eoman Law, the term real right or jus in rem, (which terms I shall hereafter use as equivalent expres- sions unless the contrary is indicated,) is restricted to such of the rights availing against the world at large, as are rights over things properly so called, that is to say, over permanent external objects which are not persons, as distin- 394 Pervading Notions analysed. Lect. XV guished both from persons, and from tliose transient objects """^ " wliich are called acts and forbearances. When I say that thej restrict the term in the manner which I have now mentioned, I mean that they so restrict it when they state its meaning in generals, or when they attempt to define it. For, when they are occupied with the detail of the Roman Law, they unconsciously deviate from their own insufficient notion, and extend the term to nume- rous rights which are not rights over things. For example, it is admitted or assumed by every Civilian, that the right of the Roman heir over or in the heritage is a real right. I say the right of the heir over or in the heritage. For, independently of the several rights which devolve to him from the testator or intestate, he has a right in the aggre- gate which is formed by those several rights ; and which aggregate, coupled with the obligations of the deceased, con- stitute the complex whole which is styled the hereditas or heritage. In this heritage, so far as it consisted of rights, the heir had, by the Roman law, a right which availed against the world at large, and which he could maintain against any one who might gainsay or dispute it, by a pecu- liar judicial proceeding, called _pe^^^'io hereditatis, which pro- ceeding was an action in rem, that is, an action grounded on an injury to a real right, and seeking the restoration of the injured party to the unmolested exercise of the right in which he has been disturbed. But though this right of the heir is indisputably jus in rem, it is not a right over or in a thing, or over or in things. It is properly a right in an aggregate of rights ; partly, per- haps, consisting of rights over things, but partly consisting of rights which are of a widely different character : namely, j of debts due to the testator or intestate ; or of such rights of action, vested in the testator or intestate, as devolved to his , heir or general representative. Here then was a case, and a most important one, in which the writers to whom I have referred departed from their own definition, and approached to that adequate notion of jus in rem, which I have en- deavoured to impress upon my hearers ; that which considers it to denote only the compass or range of the right : namely, that it avails against the world at large, in contradistinction to jus in personam, which avails only against certain or determinate individuals. By jus in rem and jus in personam, the authors of those terms intended to indicate this broad and simple distinction ; i t Rights in Rem over Persons. 395 which the Eoman lawyers also marked by the words dominium Lect. xv and obligation terms, the distinction between which was the ^ ' groundwork of all their attempts to arrange rights and duties in an accurate or scientific manner. This is not a hasty surmise, but the result of a careful and ample induc- tion, founded on a most diligent study of the Institutes of Gains and of Justinian, and an attentive perusal of the Pandects or Digest of the latter. Nor is this opinion con- fined to myself ; otherwise I should, of course, feel much less confidence in its correctness. But I share it with such men as Thibaut and Peuerbach, men of indefatigable perseverance and of a sagacity never surpassed. The importance of the distinction will appear in glaring colours, when I pass from the generalia into the detail of the science. I must, for the present, content myself with illustrating it in a general and passing manner; and shall shew its applications hereafter. Besides the right of the heir over or in the heritage (which is deemed by every Civilian a real right), there are numerous real rights which are not rights over things : being rights over persons ; or being rights to forbearances merely, and having no subjects (persons or things). Of rights existing over persons, and availing against other Rights in persons generally, I may cite the following as examples : — pe'rsonr The right of the father to the custody and education of the child : — the right of the guardian to the custody and educa- tion of the ward : — the right of the master to the services of the slave or servant. Against the child or ward, and against the slave or ser- vant, these rights are rights in personam : that is to say, they are rights answering to obligations (in the sense of the Roman Lawyers) which are incumbent exclusively upon those det eli- minate individuals. In case the child or ward desert the father or guardian, or refuse the lessons of the teachers whom the father or guardian has appointed, the father or guardian may compel him to return, and may punish him with due moderation for his laziness or perverseness. If the slave run from his work, the master may force him back, ii and drive him to his work by chastisement. If the servant ' abandon his service before its due expiration, the master may sue him as for a breach of the contract of hiring, or as for breach of an obligation (quasi ex contractu) implied in the status of servant. But considered from another aspect, these rights are of another character, and belong to another class. Considered 39^ Pe7^vading Notio7is analysed. Lkct. XV from that aspect, thej avail against persons generally^ or ' against the world at large ; and the duties to which they correspond, are invariably negative. As against other per- sons generally, they are not so ninch rights to the custody and education of the child, to the custody and education of the ward, and to the services of the slave or servant, as rights to the exercise of such rights without molestation hy strangers. As against strangers, their substance consists of duties, incumbent upon strangers, to forhea^r or abstain from acts inconsistent with their scope or purpose. In case the child (or ward) be detained from the father (or guardian), the latter can recover him from the stranger. In case the child be beaten, or otherwise harmed injuriously, the father has an action against the wrong-doer for the wrong against his interest in the child. In case the slave be detained from his master's service, the master can recover him in specie (or his value in the shape of damages) from the stranger who wrongfully detains him. In case the slave be harmed and rendered unfit for his work, the master is en- titled to satisfaction for the injury to his right of ownership. If the servant be seduced from his service, the master can sue the servant, for the breach of the contract of hiring ; and also the instigator of the desertion, for the wrong to his in- terest in the servant. In case the servant be harmed, and disabled from rendering his service, the harm is an injury to the master's interest in the servant, as well as to the person of the latter. The correlating conditions or status of husband and wife, will also illustrate the nature of the capital distinction, which I am endeavouring to explain and exemplify. Between themselves, each has personal rights availing against the other, and each is subject to corresponding ob- ligations (in the sense of the Roman Lawyers). Moreover, each has a right in the other, availing against the rest of the world, or answering to duties attaching upon persons gene- rally. Adultery by the wife violates a right of the former class, and entitles the husband (against the wife) to an abso- lute or qualified divorce. Adultery ivith the wife violates a right of the latter class, and gives him an action for da- mages against the adulterer. A person And here I may remark conveniently, that where a real '^lubjeltof I'ight is over a person, or where a personal right is a right to ^ piacecUn ^ pei'son, the person is neither invested with the right, nor a position is he bound by the duty to which the right corresponds : the Rights in Rem over Persons, 397 like the po- ng. right residing in a person or persons distinct from himself, Lect. xv and availing against a person or persons also distinct from himself. He therefore is merely the subject of the real or sltionV personal right, and occupies a position analogous to that of -sthe^iib-^ a tiling which is the subject of a similar right. Consequently, ject ofa whatever be the kind or sort of the real or personal right, he ri!JhL^ And might be styled analogically, (when considered as its subject,) ^jlig^i^^^,^^, a thing. analogy)'a For example. Independently of his rights against the child, and independently of his obligations towards the child, the parent has a right in the child availing against the world at large. And, considered as the subject of this last-mentioned right, the child is placed in a position ana- logous to that of a thing, and might be styled (in respect of that analogy) a thing. Independently of his rights against the parent, and in- dependently of his obligations towards the parent, the child has a right in the parent availing against the world at large. The murder of the ^duYQi^it by a third person might not only be treated as a crime, or ^public lurong, but might also be treated as a civil injury against that right in the parent which belongs to the child. By the laws of modern Europe, the civil injury merges in the crime ; but in other ages the case was different ; the offender lay under a twofold obliga- tion : to suffer punishment on the part of the society or com- munity, and to satisfy the parties whose interest in the deceased he had destroyed. Before the abolition of Appeals in criminal cases,'*^ this was nearly the case in the Law of England. The murderer was obnoxious to jpunishment to be inflicted on the part of the State ; and the wife and the heir of the slain were entitled to vindictive satisfaction, which they exacted or remitted at their pleasure. And this is the distinction, and the only one, which exists between a civil in- jury and a crime.''^ By the 59 Geo. III. c. 46. distinction between crimes and offences '^^ By the law of Scotland the wife and on the one hand, and civil injuries on family of the slain have still the right to the other, is much more intelligible than bring a civil action for assytheraent (the in the English system. For the distinc- ground of action being not only indemni- tion, such as it is, in English law, does fication for damage, but also 5o/a/w{Wi for not arise until commitment for trial the bereavement), notwithstanding a {vide Stephen's Criminal Law, p. 155). criminal prosecixtion instituted by the In Scothmd the duty of investigation Public Prosecutor, unless capital pun- and prosecution, as well as the power of ishment be suffered. It may be here abandoning proceedings, from the time observed, that in Scotland and in other of the oommission of the crime until sen- countries where there is a Public Prose- ttnce, lies with her Majesty's Advocate, cutor charged with the investigation and and his subordinates for whom he is prosecution of crimes and offences, the responsible ; and there is further this 398 Pervadmg Notions analysed. Lfxt. XV Now, considered as the subject of the real right which ' ' ^ resides in the child, the parent is placed in a position ana- logous to that of a thing, and might be styled (in respect of that analogy) a thing. In short, whoever is the subject of a right which resides in another person, and which avails or obtains against a third person or persons, is placed in a posi- tion analogous to that of a thing, and might be styled (in respect of that analogy) a thing. But though any person, as the subject of any right, might be styled (by analogy) a thing, this analogical application of the term thing has (in fact) been partial and capricious. So far as I can remember, there are two instances, and only two, in which the term thing has been applied to ^persons, considered as the subjects of rights. Considered as the subject of the real right which resides in the master, the slave is occasionally ranked by the Eoman Lawyers with things. And considered as the subject of the real right which resides in the paterfamilias, the filiusfamilias has been classed with things by certain modern Civilians. Respectu patris filiusfamilias est res, respectu aliorum persona. These are the words of Heineccius and others. According to a current opinion, which I mentioned in a preceding Lecture, the slave was not considered by the Eoman Lawyers as belonging to the class of persons. But this is one of those opinions, utterly destitute of foundation, which have been successively received by successive genera- tions, though the means of detection are open and obvious to all. Considered as bound by duties towards his master and others, the slave is ranked by the Roman Lawyers with physical persons ; and is spoken of as bearing, or sustaining, a person, status, or condition. Considered as the subject of the Right residing in his master, and availing {not against himself, but against third persons), he is occasionally styled res. But, even as considered from this aspect, he is usually deemed a person rather than a thing, and is styled usually servilis persona. The right of the master to the services of the slave is distinguished by a diflPerent name from that which expresses the analogous right in a thing. It is called potestas, or potestas domini in servum, not dominium. This last is the name most commonly applied to the analogous right to a thing; it is, however, though less frequently, csilled, proprietas ; distinction, that all criminal proceedings court with a jurisdiction quite distinct are either taken in, or are subject to from that of the Court of Session, which review by, the Court of Justiciary ; a is ihe proper tribunal in civil actions. Rights in Re77i over Persons. or, still more rarely, m repotestas. Gaius, in describing manci- pation, whicli is a particular form of conveyance, and enume- rating the subjects wliich may be conveyed by it, says, Eo modo et serviles et liherce personce mancipantur. Here the slave is spoken of as the subject of a right in the master, and is yet styled servilis persona. In all the passages in which he is spoken of as res ; e. g. in the passage at the beginning of the 2nd Book of Gains, where he distributes things con- sidered as subjects of rights; in treating of usufruct, where he speaks of usiisfructus hominum et ceterarum animalium; and in the most decisive passage of all, that in the Digest, where the action called rei vinclicatio, corresponding to our real action for the recovery of land, and our action of detinue for a chattel, is said to be applicable to the recovery of a slave ; in all these passages, the slave is spoken of as the subject of rights in the master, availing against third per- sons, and not as being himself subject to obligations. As for the filiusfamilias, I am not aware of any passage in the classical jurists where he is styled a thing. In the passage of the Digest, to which I have ju.st referred, it is denied by implication that he can be ranked with things. Per hanc autem actionem, liherce personce quce sunt juris nostri, ut putco liheri qui sunt in potestate, non petuntur. The right of the father over his son is never styled dominium or proprietas, h\xi patria potestas, ov potestas patris in liheros. Many have been shocked and scandalized by the Eoman Jurists, because these hard-hearted and cold-blooded law- yers degraded the slave to a level with things. Upon which gross misconception, I remark as follows : It is not true that the Roman Lawyers ranked slaves with things. Or if it be true, it is only true in that limited sense which I have just explained. And, admitting that the Eo- man Lawyers ranked slaves with things, it follows not that they were cold-blooded men, and intended to degrade and vilify the miserable slave. In styling the slave a thing, they considered him from a certain aspect : namely, as being the subject of a right residing in another person, and availing against third persons. And (as I have proved to satiety) the analogy which led these lawyers to rank the slave with things, would justify the extension of the term thing to any person who is the subject of any right. I am far enough from wishing to palliate slavery, which I regard with the utmost abhorrence, but I wish that its opponents would place their reprobation of it on the right foundation.. 400 Pervading Notions analysed. Lect XV Mucli eloquent indignation lias also been vented snper- " ' ■ " ' fluouslj on the application of the term chattel to the slaves in the English colonies : seeing that the term chattel, as ap- plied to the slave, does not import that the slave is deemed a moveable thing, but that the rights of the master over his slaves, like his analogous rights over his moveable things, devolve, on the master's intestacy, to a certain class of his representatives. Jus reaiiter Having cited examples of real rights which are rights over ETighS/t 'persons, I will cite an example or two of real rights, which ouT'dlter-" rights over things or persons, but are rights to for - minatesub- hearances merely. 1. A man's right or interest in his good-name is a right which avails against persons, as considered generally and indeter- minately : They are bound to forbear from such imputations against him as would amount to injuries towards his right in his reputation. But, though the right is a real right, there is no subject, thing or person, over which it can be said to exist. If the right has any subject, its subject consists of the contingent advantages which he may possibly derive from the approbation of others. 2. A monopoly, or the right of selling exclusively com- modities of a given class, (a patent right for instance,) is also a real right : All persons, other than the party in whom the right resides, are bound to forbear from selling commo- dities of the given class or description. But, though the right is a real right, there is no subject, person or thing, over which it can be said to exist. If the right has any sub- ject, its subject consists of the future profits, above the average rate, which he may possibly derive from his exclu- sive right to sell. 3. Many more examples of this class of rights might be selected from among franchises ; a law term embracing an immense variety of rights, having no common property whatever except their supposed origin, being all of them considered to have been originally granted by the Crown. Such, for example, is a right of exclusive jurisdiction in a given territory, or a right of levying a toll at a certain bridge or ferry. The law in these cases empowers a party to do certain acts, and enjoins all other persons to forbear from every act which would defeat the purpose of the right. But these rights are not exercised over any determinate subject, and are yet available against the world at large. The rights in personam which concur with the rights in question are Rights in Rem having no determinate Stibjects. 401 perfectly distinct from those rights themselves. Those who Lect. xv reside within the territory, or who traverse the bridge, are ^ bound by obligations arising out of the franchise ; but these obligations, which result from their peculiar position, and which answer to rights m jpersonam, are distinct from the obligation incumbent upon third parties, and answering to the right in rem: namely, the obligation not to impede the exercise of the jurisdiction, the levying of the toll, or the passage over the bridge ; nor to carry passengers across within the limits of the ferry, to the detriment of the exclu- sive right of the person entitled. 4. Lastly, a right in a Status or Condition (considered as ^ an aggregate of rights and capacities) is also a real right. | I am not able at present to explain the nature of Conditions. \ To determine precisely what a Status is, is in my opinion the • \ most dif&cult problem in the whole science of jurisprudence. For the purpose immediately before me, the following re- marks will suffice. A Status or Condition may be purely onerous, or may con- I sist of duties only. Such was the condition of the slave, according to the older Eoman Law. He was the subject of rights residing in his master, and availing against third persons. He also was bound by duties towards his master and others. But he had not a particle of right as against his master or even against strangers. Considered as the subject of rights residing in his master, he was susceptible of damage : But he was not susceptible of injury. Now a right in a condition which is purely burthensome, is hardly conceivable. But, so far as a condition consists of rights, and of capacities to take rights, we may imagine a right in the condition considered as a complex whole. According to the Roman Law, as the heir has a right in the heritage (abstracted from its several parts), so has the party invested with a condition, a right or interest in the con- dition itself (abstracted from the rights and capacities of which it is compounded). His right in the condition, con- sidered as an aggregate or whole, is analogous to the right of ownership in a single or individual thing. Consequently, wrongs against this right are analogous to wrongs against ownership ; and, according to the practice of the Eoman Law, wrongs of both classes are redressed by analogous remedies. Where the individual thing is unlaw- fully detained from the owner, he may vindicate or recover the thing. And where the right in the condition is wrong- VOL. I. D D Pervading Notions analysed. Lect. XV fully disputed, the party may assert his right by an appro- priate action, which is deemed and styled a vindication.'^^ The reason why status or condition makes so little figure in the English law as compared with the Roman, though the idea must of course exist in all systems of law, seems to be this : that the right in a status may by the Roman law be asserted directly and explicitly by an action expressly for its recovery ; while in English law no such action can be brought, and the right to a status, though of course it often becomes the subject of a judicial decision, almost always comes in as an episode, incidental to an action of which the direct purpose is something else.^° Thus a question of legiti- macy, which is precisely a question of status, is usually brought in and decided upon incidentally, in an action of , ejectment. The question whether or not a particular per- son is a slave, would generally come before the judge upon a prosecution by the slave of the person claiming to be his master for doing some act which would be illegal unless the claim could be established. The only case in which a ques- tion of status is decided directly in English law^ is when a jury is summoned to try that precise question as an issue incidental to a suit in another court. Notes found at the End of Lectuee XV. The definition of jus in rem, that ' it begets a vindicatory action against every unlawful disturber,' is not universally true. It may beget a mere right to satisfaction (e.g. Trover). K true, it is a mere consequence or property of the right, and is not of its essence. Besides it merely amounts to this : that the disturbance begets a right of action against the disturber or violator ; which is true of every disturbance of a right in personam. N.B. Any prevention of the completion of an Obligation (stricto sensu) caused by a third party, would be no violation of a Right in See Bentham's ' Principles,' etc., man, the service in the Scotch law. The ' payment,' p. 246. Hugo, Jur. Enc. p. aditio in Eoman law was clearly a for- ,3 35, mal proceeding, possibly a matter of ^0 In the English Probate Court — judicial cognizance, and appears to have formerly the Ecclesiastical Court — -the been requisite in the case of a stranger right to the executorship or administra- heir {i. e. one who was not suus hcBres tion, a species of universitas juris, is or necessarius hceres) in order to oh- obtained by what is substantially ajudi- tain an active title to the res singulse cial proceeding. It is somewhat remark- comprised in the inheritance. A passive able that in the English system the rights title (t. e. liability to the obligations of of the heir vest in him without any public an heir) "might be inferred by gestio formality, such as the aditio in the Ko- pro hcsrede without aditio. — H, C. Fragments. 403 the Ohligee ; or, if it would, would be a violation of a distinct Right. Lect. XY A stranger who engages a builder to undertake an extensive work, ' ■ or wounds or maims him (thereby, in either case, preventing him from completing a previous contract with myself) violates no Right in me ; and my remedy is against the hidlder for the breach of con- tract with myself. A stranger who inveigles my servant, violates, not mj jus ad rem under th.e contract, but mjjus in re. The servant himself, indeed, does ; and for this breach of his Obligation (stncto sensu), I may sue him on the contract. Ohligation to ijay taxes ; Obligation to railitary service, etc. The obligations to military service, etc., seem to be merely absolute obligations. (See Lecture XLIX.) The State, to which it is due, and which alone can have the Right, has not properly Eights. Be- sides, there is no Person or Thing to which the State has a right, as against all. It has merely a right to the services of the deter- minate individual. It has not a right to the money in specie, to the services, etc., as against others ; but a right to the payr/ient of the tax and the performance of the service, against the determinate person upon whom the obligation rests. So soon as the tax is paid, the Government indeed h&s jus in re in the money which is ren- dered ; and as against other persons, it has a right (analogous to the in re of an ordinary master) to the services of the deter- minate person, e.g. A conscript is punishable for desertion by A-ii^tue of the Obligation [stricto sensu) — a person seducing him to desert, by virtue of the obligation, which answers to the jus in re. f The right which the Grovernment has to the services of its sub- jects generally, is in truth not a Right to a person or thing against 'all ; but Rights against a number ; rights that they shall perform a particular obligation on the happening of such an incident. (The passage in Hugo referred to in the note at the bottom of the last page, is as follows, together with Mr. Austin's marginal notes.) ' TJnter den vermischt en Fallen * Quasi- Contract : An incident gibt es einige, die rait evaerii Ver- trage Aehnlichlieit Jiahen* (die Fodemng entsteht quasi ex con- tractu ; z. B. negotia gesta, in diesem Sinne, Yerwaltung einer Yormundschaft, Yerwaltung von etwas Gremeinschaftlichem, An- tretung einer Erbschaft in Be- ziehung auf die Yermachtnisse, Entrichtung von etwas, was man nicht schuldig ist) : andere gren- (quasi ex zen an Yergebungen"^ from which the Obligor derives a benefit : a benefit which he ought to requite, or which he ought to surrender to the party at whose cost he has obtained it. In the last case, there seems to be no obligation without demand and refusal ; for till then, the intention to retain cannot be known. ^ Quasi-Delict : Damage done to the Obligee, but without in- 404 Pervading Notio7is analysed. Lect. XV ^n,aleJicio, z, B. das Binstehen- ^ — ' — milssen fur Andere bei gewissen Gelegenlieiten) : aber auch nocb auf andere Art entsteht eine Fo- dernng ; z. B. aus dem Auswer- fen* (lex Rhodia de jactu) ; auf Unterlialt, Bos und Beerdigung/ anf die Abgaben,* und auf das Uinstehen^ fur die physischen und juristiscben Pehler einer Sacbe (cBdilitmm^ ediotum und eviclio^^ • — ^Hugo, Jurist. Encyc. p. 335. tention or negligence on tbe part of tbe obligor. * Quasi-Delict. ^ Quasi- Contract ; tbere being benefit to the Obligor. * Neither ; unless by a fiction we suppose the governed, in consideration of protection, quasi- Gontraxisse with the Government. The distinction is useless. In the case of the quasi-contract^ there has been no contract. In the case of the quasi-delict there has been damage, but no in- jury ; at least, no injury on the part of the obligor, though there may have been on the part of his representatives. The injury on his part does not arise till he re- fuses satisfaction. The obligation however is like an obligation ex contractu. § Implied warranty : i.e. An obligation to satisfy, annexed to the original contract : and there- fore a Contract, though by virtue of a dispositive Law. LECTUEE XYW RIGHTS CONSIDERED GENERALLY. Lect. xyi In the preceding Lectures, I have entered upon the analysis or explanation of the term ' Right.' 'Now (as I shall endeavour to demonstrate in this even- ing's discourse) all that can be affirmed of Kights considered universally y amounts to a brief and barren generality, and may be compressed into a single proposition, or into a few short propositions. But, before I could shew the little which can be affirmed of rights in general — or (rather) before I could shew how little can be affirmed of rights in general, it was necessary The notes of the oral lectures cor- missing. These lectures are therefore responding to the printed Lectures XVI reprinted without alteration from the to XXIII inclusive, are unfortunately former edition. — E. C. Rights considered generally, 405 that I sliould advert to j)ersons, considered as invested with Lect. xyi rights ; to things and persons, considered as the subjects of rights ; to acts and forbearances, considered as the objects of rights ; and to a leading or capital distinction which ob- tains between rights themselves. Accordingly, I called yonr attention to the following ob- jects : — 1st, To persons as invested with rights, and as lying under duties or obligations. 2ndly, To things as subjects of rights, and of the duties corresponding to rights. 3rdly, To persons as placed in a position analogous to the position of things : that is to say, not as invested with rights, or as lying under . duties or obligations, but as subjects of rights residing in other persons, and availing against strangers or third persons. 4thly, To acts and forbearances as objects of rights, and of duties or obligations correlating with rights. 5thly, and lastly. To the distinction between jus in rem and jus in per- sonam ; or between rights which avail against persons univer- sally or generally, and rights which avail against persons certain or determinate. In the present Lecture, I shall endeavour to explain the Purpose nature or essence which is common to all rights. Or ofthe^^^ (changing the expression) I shall endeavour to indicate the "^^^^^^^ point at which they meet or coincide ; or to shew the pro- perties wherein they resemble or agree ; or to state that which may be affirmed of rights universally, or without respect to the generic and specific diflPerences by which their kinds and sorts are separated and distinguished. In trying to accomplish this purpose I shall proceed in the following order : 1st, I shall endeavour to state, in general expressions, the nature, essence, or properties, common to all rights. 2ndly, I shall advert briefly to certain classes of rights ; and I shall endeavour to shew, that they agree in nothing, excepting those common properties. 3rdly, I shall examine certain definitions of the term ' right and I shall endeavour to elucidate the common nature of rights, by shewing the vices or defects of those definitions. Every right is a right in rem, or a right in personam. Common The essentials of a right in rem are these : "f^Ss^ It resides in a determinate person, or in determinate per- sons, and avails against other persons universally or generally. Further, the duty with which it correlates, or to which it 4o6 Pervading Notions analysed. Lect. XVI corresponds, is negative : that is to say, a duty to forbear or abstain. Consequently, all rights in rem reside in determi- nate persons, and are rights to forhearances on the part of persons generally. The essentials of a right in personam are these : It resides in a determinate person, or in determinate per- sons, and avails against a person or persons certain or determinate. Further, the obligation with which it corre- lates, or to which it corresponds, is negative or positive : that is to say, an obligation to forbear or abstain, or an obligation to do or perform. Consequently, all rights in personam, reside in determinate persons, and are rights to forhearances or acts on the part of determinate persons. It follows from this analysis, first, That all rights reside in determinate persons. Secondly, That all rights corre- spond to duties or obligations incumbent upon other persons : that is to say, upon persons distinct from those in whom the rights reside. Thirdly, That all rights are rights to forhear- ances or acts on the part of the persons who are bound. These (I believe) are the only properties wherein all rights resemble or agree. Consequently, right considered in ahstract (or apart from the hinds and sorts into which rights are divisible) may be conceived and described generally in the following manner. Every legal duty arises from a Comm-and, signified, ex- pressly or tacitly, by the Sovereign of a given Society. Every legal duty binds the party obliged, by virtue of a legal sanction. In other words, in case the party obliged violate the duty imposed upon him, he will be obnoxious or liable to evil or inconvenience, to be inflicted by sovereign authority. [Now the person who is subject to a duty, or upon whom a duty is incumbent, is bound to do, or to forbear from, some given act or acts. And further, he is bound to do, or to forbear from, the given act or acts absolutely or relatively ; That is to say, without respect to a determinate person or persons, or towards a determinate person or determinate persons.] The ohjects of duties are Acts and Forbearances. Or (changing the expression) every party upon whom a duty is incumbent, is bound to do or to forbear. Or (changing the expression again) the party violates the duty which is incumbent upon him, by not doing some act which he is D^ity the basis of Right. 407 commanded to do, or bj doing some act from which, he is Lect. xvi commanded to abstain. ^ ' ' Dutj is the basis of Eight. That is to say, parties who liave rights, or parties who are invested with rights, have rights to acts or forbearances enjoined by the sovereign npon oilier parties. Or (in other words) parties invested with rights are in- vested with rights, because other parties are bound bj the command of the sovereign, to do or perform acts, or to forbear or abstain from acts. In short, the term ' right ' and the term ' relative duty ' signify the same notion considered from different aspects. Every right supposes distinct parties : A party commanded by the sovereign to do or to forbear, and a party towards whom he is commanded to do or to forbear. The party to whom the sovereign expresses or intimates the command, is said to lie under a duty : that is to say a relative duty. The party toiuards whom he is commanded to do or to forbear, is said to have a ric/ht to the acts or forbearances in question. Or the meaning which I am labouring to convey may be put thus. Wherever a right is conferred, a relative duty is also imposed : the right being conferred npon a certain or deter- minate party, other than the party obliged. Or (changing the expression) a party is commanded by the sovereign to do or to forbear from acts, and is commanded to do or forbear from those given acts toiuards, or with regard to, a party determinate and distinct from himself. For (as I shall shew hereafter) duties towards oneself and duties towards persons indefinitely, can scarcely be said with propriety to correlate with rights. As against others, I have a right to my life. For others are bound or obliged to for- bear from acts which would destroy or endanger niy life. But it can scarcely be said, with propriety, ' that I have a right to my own life as against myself : ' Although I am legally bound to abstain from sidcide, by virtue of certain sanctions whose nature I shall explain hereafter. And the same may be af&rmed of duties towards persons indefinitely : that is to say, towards the community at large, or towards mankind generally. A law which prohibits the importation of certain foreign commodities, to the end of encouraging the production of the corresponding domestic commodities, imposes a duty to 4o8 Pervading Notions analysed. \ ! Lect. XVI forbear from importing the commodities which it is said to i prohibit. But it can hardly be said, with propriety, that the f law confers a right. For there is no determinate party who ! would be injured by a breach of the duty, or towards or with '] regard to whom the prohibited act is to be forborne. In the technical language of certain systems, breaches of such | duties are offences against the sovereign, and the sovereign is invested with rights answering to those duties. But to impute rights to the sovereign, is to talk absurdly. For rights are conferred by commands issuing from the sovereign. As violating commands issuing from the sovereign, breaches of the duties in question are offences against the sovereign. But so is a breach of every imaginable duty. For all duties are the creatures of sovereign will, or are imposed by Laws or Commands emanating from the Sovereign or State^ The truth is, that duties towards oneself, and towards per- sons indefinitely, are absolute duties. That is to say, there is no determinate party whom a breach of the duty would injure, or towards or in respect of whom the duty is to be observed. It is difficult to indicate the import of the term ' Eight ' (considered as an abstract expression embracing all rights). For right (as thus considered) is so extremely abstract — is so extremely remote from the particulars which are com- prised in its extension — that its meaning or import is, as it were, a shadow, and closely verges upon the confines of no- meaning. All the ideas or notions which are comprehended by that slender meaning may, I think, be compressed into the fol- lowing propositions. Right, like Duty, is the creature of Law, or arises from the command of the Sovereign in a given independent society. Every right is created or conferred in the following manner. ? A person or persons are commanded to do or to forbear toivards, or with regard to, another and a determinate party. The person or persons to whom the command is directed, are said to be obliged, or to lie under a duty. The party towards whom the duty is to be observed, is said to have a right, or to be invested with a right. Jn order that we may conceive distinctly the nature of rights, we must descend from Right in abstract to the species Definition of Right criticised. 409 or sorts of rights. We must take a right of a given species Lect, xyi or sort, and must look at its scope or purpose. That is to ' " say, we must look at the end of the lawgiver in conferring the right in question, and in imposing the duty or obligation which the right in question implies. ISTow the ends or purposes of different rights are extremely various. The end of the rights in rem which are conferred over things, is this : that the entitled party may deal with, or dispose of, the thing in question in such or such a manner and to such or such an extent. In order to that end, other persons generally are laid under duties to forbear or abstain from acts which would defeat or thwart it. But from this general notion of rights over things, we must descend to the species into which they are divisible. For the ends of the various rights which are conferred over things, differ from one another. And what I have said of rights in rem over things, will apply to such rights over per- sons as avail against other persons generally ; and also to such rights availing against other persons generally as have no determinate subjects. The ends or purposes of rights in 'personam are widely different from those of rights in rem. The ends or purposes of the various rights in personam are again extremely different from each other. A rip'ht has been defined by certain writers, as that Certain de- security for the enjoyment of a good or advantage which one a rio-htf man derives from a duty imposed upon another or others. examined. It has also been said that rights are powers : powers over, or powers to deal with, things or persons. Objections : 1st, all rights are not powers over things or persons. All (or most of) the rights which I style rights in personam are merely rights to acts or forbearances. And many of the rights which I style jWa in rem have no subjects (persons or things). 2ndly. What is meant by saying that a right is a power ? The party invested with a right, is invested with that right by virtue of the corresponding duty imposed upon another or others. And this duty is enforced, not by the power of the party invested with the right, but by the power of the state. The power resides in the state ; and, by virtue of the ^2 In a note, Mr. Austin proposes to Right in the abstract, and to the little 'read from Bentham's "Principles of which such a definition can comprise.' Morals and Legislation," such passages These passages are to be found at p. 221- as relate to the difficulty of defining 223. — >9'. A, Pervading Notions analysed. Lect. XVI power residing in the state, tlie party invested with, the right is enabled to exercise or enjoy it.^^ It may, indeed, be said, that a man has a power over a thing or person, when he can deal with it according to his pleasure, free from obstacles opposed by others. Now in consequence of the duties imposed upon others, he is thus able. And, in that sense, a right may be styled a power. But, even in this sense, the definition will only apply to certain rights forbearances. In the case of a right to an ad^ the party entitled has not always (or often) a power. 3rdly. FacuUas faciendi [ant non faciendi). This defini- tion is open to the same objections as the last definition. ^ Facultas,' what? 4thly. person has a right, when the law authorizes him to exact from another an act or forbearance.' The test of a right : — that (independently of positive provision) the acts or forbearances enjoined are not incapable of being enforced civilly or in the way of civil action : i.e. at the dis- cretion or pleasure of the party towards whom they are to be done or observed. This would distinguish them from abso- lute duties. For to talk of a man enforcing a duty against himself is absurd. And where there is no determinate person towards whom it is observed, it is incapable of being enforced civilly. I Right ; — the capacity or power of exacting from another j or others acts or forbearances ; — is nearest to a true defini- I tion. For all these reasons, I say that a party has a right, when another or others are bound or obliged by the law, to do or to forbear, towards or in regard of him. But, as I stated at the outset of the analysis, the full im- port of the term ' right ' cannot be made to appear till all the related expressions are examined. Notes at the End of Lecture XYI. Blackstone's absolute right, vol. i. 123. His confusion of Right, as meaning conformity with a rule, and of Right, as correlating with duty. (Ibid.) ' La loi me defend-elle de vous tuer ? — Bentham, Traites, etc. vol. i. p. 154. Elle m'impose Vobligatio7i de ne pas A service cannot be negative ; though vous tuer. Elle vous accorde le droit an obligation {not to obstruct the enjoy- de ne pas etre tue par moi ; elle exige ment of a subject from which uses or de moi de vous rendre le service negatif services are derivable) may. — Marginal qui consiste a m'abstenir de vous tuer.' Note. Fragments. 411 There is no general definition of a Eiglit bj the Classical Jurists, Lect. xYI The following passage from Ulpian is in the Digests : ' ' ' ' Totum autem jus consistit aut in acqnirendo, aut in conservando, ant in minnendo. Aut enim hoe agitur, quemadmodum quid cu- jusque fiat ; aut quemadmodum quis jus suum conservet, aut quo- modo amittat.' But this passage relates, not to the definition of a right, but to the modes wherein rights are acquired, preserved, or lost. The definition of a Right is not given in any one part of the Corpus Juris, but extends through three : Primary Rights ; Vio- lations ; and Sanctions. The first adumbrates in generals ; the second limits and enlarges, so as to correct the generality of the first; the third describes the Sanction. — Mo.rginal Note in Falch's Jurist. Encyc. p. 31. EecJit v/iid GereclitigJceit. 'Das deutsche Hauptwort Recht hat, wie das lateinische, jus, eine zweifache Bedeutung. 1° Im objectiven Sinne versteht man darunter diejenigen Begeln und Vorschriften, welche die Menschen als verniinftig sinnliehe Wesen in ihren gegenseitigen Yerhaltnissen zu einander, als die Norm ihrer freien Handlungen zu beobachten haben, Dasjenige, was mit diesen Yorscliriften uber&instimmt, be- zeichnen vrir mit dem Beiworte recltt (justum sive rectum) und die auf dem innern eignen Antriebe des Menschen und auf seiner ]S"ei- gung zum Guten beruhende Uebereinstimmung der Handlungen desselben, mit den Vorschriften des Rechts, heisst Gerechtigkeit (justitia). 2' Im subjectiven Sinne hingegen, bedeutet Recht so viel als BefiigTiiss zu handeln, oder die moralische Moglichkeit ent- weder etwas selbst thun zu diirfen, oder zu verlangen, dass ein Anderer zu unserm Yortheil etwas thue oder unterlasse.^"^ Hier zeigt es also das gtinstige Verhaltniss eines Menscnen zu einem An- dern an, und ist gieichbedeutend mit demjenigen, was wii^ aucli wohl Gerechtsame oder Gerechtigkeit in diesem Sinne zu nennen pflegen.' — Macheldey, Lelirhuch des heutigen rdmischen RechtSj p. 1. 'Jus vocamus conditioiiejn. facidtatemque facie7idi OAit non faciendi. Ex quo nascitur ut juri semper respondeat aliorum officium; idque aut commune est omnium, quod eo solo cernitur, ut ne quis alterum Ifedat aut certoi-um hominum proprium, scilicet ex eo jure oriundum, quo singuli singulis obstringuntur, ^ Atc[ue juris quidem vis omnis in cogendi potestate posita est, eaque aut j^ez/ecz'a, quse actionibus maxime continetur, aut imperfecta quee 5^ Eight as opposed to Wrong. — Mar- Xeeessitas, officium. — Marginal Isote. ginal Xote. =^ Potestas et officimn: jus in personam ^ Right as opposed to obligation, et ohligatio. — Marginal^ Isote. 412 Pervading Notions analysed. Lect. XYI defensionibus tantum. Omnino autem Iicbo sunt sine quihus esse nequit ' ' jus, et persona in quam cadere potest jus et materia juris legitima, et causa juri coustituendo idonea." — Miihlenbruch, Doctrina Pan- dedarum, vol. i. p. 144. ' Jedes Reclit fiihrt als solches die Mogliclikeit des Zwanges mit sicli ; entweder um den Yerpflicliteten zu positiven Handlungen zu notliigen, oder ihn davon abzubalten.' — Thihaut, System des Pan- decten-Uechts, vol. i. p. 44. LECTUEE XVII. ABSOLUTE AND RELATIVE DUTIES. ^^^T. 52iy last Lecture, I attempted to settle the import of the , ' term ' right,' considered as an expression embracing all rights, or considered as an expression for rights in ab- stract, or without regard to their generic and specific dif- ferences. ^^fXt'^in ^^^^ import of the term ' Right,' as thus considered, may (I abstract. think) be expressed briefly, in the following manner. A monarch or sovereign body expressly or tacitly commands, ^ that one or more of its subjects shall do or forbear from acts, towards, or in respect of, a distinct and determinate party. '^'' The person or persons who are to do or forbear from these acts, are said to be subject to a duty, or to lie under a duty. The party toivards whom those acts are to be done or for- borne' is said to have a right, or to be invested with a right. Consequently, the term ^ right ' and the term ^ relative duty ' are correlating expressions. They signify the same notions, considered from difterent aspects, or taken in dif- ferent series. The acts or forbearances which are expressly or tacitly enjoined, are the objects of the right as well as of the corresponding duty. But with reference to the person | or persons commanded to do or forbear, a duty is imposed. | With reference to the opposite party, a right is conferred. j In the case of the negative duties quently, to persons determined generi- 1| corresponding to Jus in rem, it is not cally. In every case of a right, and of necessary to take into consideration any an ohligation {sensu Bomano) the party determinate or assigned party. The having the right, or the party bound by parties on whom the duty is incumbent, the obligation, is assignable individually are restricted to ' persons vrithin the or generically, or both : And miist be jurisdiction of the sovereign ; ' conse- considered as assigned individually. Absolute and relative D titles . 413 As I intimated at tlie outset of tlie analysis throngli wliicb. Lect. I am now journeying, duties may be distinguished into r dative . ^nd absolute. Duties are A relative duty is incumbent upon one party, and correlates absoiute°^ with a right residing in another party. In other words, a relative duty answers to a right ; or implies, and is implied by, a right. Where a duty is absolute, there is no right with which it correlates. There is no right to which it answers. It neither implies, nor is it implied by, a right. Now the term ' absolute ' is a negative expression. It signifies the absence of some object to which the sjDeaker or writer ex|)ressly or tacitly refers. As applied to a duty, it denotes that the duty in question has no corresjDonding right. But, in order to the complete explanation of a negative expression, we must first explain the object of which it sig- nifies the absence. Accordingly, I have attempted to explain ' Eight ' (and ' duty ' as correlating with 'right and now proceed to the duties which have no corresponding rights, or which (in a word) are ah solute. Every legal duty (like every legal right) emanates from Absolute sovereign will. It flows from the command (express or tacit) lined bv^" of a monarch or sovereign body. And the party upon whom exhaustive it is imposed is said to be legally obliged, because he is tion. obnoxious or liable to those means of compulsion or restraint which are wielded by that superior. Every duty is a duty to do or forbear. A duty is rela- tive, or answers to a right, where the sovereign commands that the acts shaU be done or forborne towards a deter- minate party, other than the obliged. All other duties are absolute. Consequently, a duty is absolute in any of the following cases : 1st, where it is commanded that the acts shall be done or forborne towards, or in respect of, the party to whom the command is directed. 2dly, ^^Tiere it is commanded that the acts shall be done or forborne towards or in respect of parties other than the obliged, but who are not determinate For 'absolute duties,' see 5e7i^Aa??i, Blackstone's 'absolute duties' are 'Traites de Legislation,' i. 154,305, 247. moral or religious duties. Vol. iv. ch. 'Principles of Morals and Legislation,' 41. pp. 222, 289, 308; 414 Pervading Notions analysed. Lect. persons, physical or fictitious. For example, towards the xyii members generally of the given independent society; or towards mankind at large. 3dly, Where the duty imposed is not a duty towards man ; or where the acts and forbearances commanded by the sovereign, are not to be done or observed towards a person or persons. 4thly, Where the duty is merely to be observed towards the sovereign imposing it : i.e. the monarch, or the sovereign number in its collegiate and sovereign capacity. Order in I think that this enumeration completely exhausts the '^.^]f^ ^ cases wherein duties or oblio^ations can be considered absolute. shall con- ^ ^ ^ ^ sider abso- Accordingly, for the purpose of explaining and exemplifying in the^ '^^^ general nature of those duties, I shall consider them in present -j^j^e order which I have now announced. Thousrh I should probably arrange them in another order, if I attempted to expound them in detail. Self-re- But bofore I endeavour to explain and exemplify the classes dutfe'r^and absolutc duties, I will briefly advert to a topic upon which duties not J may insist hereafter. Srefre^ard I have Said that some of these duties are self-regarding : persons fhsii is to sav, that the acts or forbearances which the Law in respect eiijoins are to be done or observed by the party obliged to- rlmotl wards or in respect of himself. purpose. I have said that others of these duties are not duties towards man : that is to say, that the acts or forbearances, enjoined by the Law, are not to be done or observed towards persons, or towards human creatures. But in styling some of these duties self-regarding, and in afSrming of others of these duties ' that they are not duties towards man,' I look exclusively at their immediate or proxi- mate scope. Considered with reference to their more remote purposes, they are absolute duties regarding persons generally. For, assuming that they are imposed at the suggestions of general Utility, they regard the members generally of the given poli- tical society, or they regard mankind at large : so far, that is, as Laws, established in a given community, can promote or contemplate an end so vague and uncertain as the weal of human kind. For example, the duty incumbent upon you to forbear from suicide, is a self-regarding duty, in respect of its proximate purpose. It is imposed directly, to the end of deterring you from destroying your own life. But remotely or indirectly, it is an absolute duty regarding persons generally. For it is Absolute Duties. 415 partly imposed for the purposes of preserving a member to Lect, the community, and of deterring its members generally from . ^^}^ . the act of suicide by the consequences annexed to the act in the single or particular instance. Again : A duty to forbear from cruelty towards the lower animals, is not a duty towards man in respect of its proximate scope. Its proximate or direct scope, is to save the lower animals from needless suffering : from suffering which has no tendency to promote the good of man, or decidedly outweighs the good which man can derive from it. But in respect of its remote pu.rposes, the duty is an absolute duty regarding persons indefinitely. For tending to preserve and cherish the sentiment of benevolence or sympathy, it tends to the good of the community, and to the good of mankind at large. Nor does this apply exclusively to those absolute duties. Relative which I have styled (for the sake of distinction) self- regarding, ^^^Jf pg^I or of which I have affirmed (for the same purpose) ' that they sons gene- j. ;i J.' 4. A y I i:' J J rally, in are not duties towards man. respect of It also applies to relative duties, or to duties which cor- fl^^^^^ relate with rights. purpose. In numerous instances, rights are conferred (and their cor- relating duties imposed) with the direct or immediate pur- pose of promoting the general good : (as, for example, the rights of judges and other political subordinates) : And rights are conferred indirectly to the same extensive purpose, al- though their proximate end be the advantage of the parties entitled, or of other determinate parties for whom they are conferred in trust. For example. The immediate purpose of a right of property, is either the advantage of the proprietor himself, or of some determinate party for whom he is a Trustee. But the ulterior or remote end for which such rights are conferred, is the ad- vantage of the community at large. Consequently, absolute duties, and duties correlating with rights, are not distinguish- able when viewed from a certain aspect. Considered in respect of their ultimate or remote scope, all duties regard persons generally. And as duties which regard directly determinate or assio^ned Duties towards persons, regard indirectly persons generally and indefinitely, persons SO is the converse of the proposition equally true. That is frrind^ to say, duties which regard directly persons considered gene- J'tctiy, rally, regard indirectly determinate persons. For as the towards de- sreneral or public interest is an asro^reo'ate of individual t^^^^i^ate ^ . . 00 o persons. interests, duties which tend to promote the good of the gene- Pervading Notions analysed. ral or whole, tend to promote the good of its several or single members. In order that we may conceive correctly many important distinctions, it is necessary that we shonld conceive precisely the truths which I have now stated. For example, the Roman Lawyers, and most writers upon Jurisprudence, divide Law into Public and Private. Accord- ing to the Roman Lawyers, Public Law is that, 'quod ad imhlice utilia spectat.' Private Law is that department of the whole, ' quod ad singulorum utilitatem — ad privatim utilia — spectat.' But this, it is manifest, is not the ground of the intended distinction. For since the general interest is an aggregate of individual interests. Law regarding the former, and Law regarding the latter, regard the same subject. In other words, the terms ' public ' and private ' may be applied indifferently to all Law. Which is as much as to say, that the distinction in question is a distinction without a difference. It is manifestly impossible to distinguish the two depart- ments by a property common to both. I shall endeavour, hereafter, to analyse the distinction. Briefly stated, the distinction between Public and Private Law is this. The former regards persons as bearing poli- tical characters. The latter regards persons who have no political characters, and persons also who have them as bearing different characters. In a word. Public Law is the law of political Status ; and, instead of standing opposed to the body of the law, is a branch of one of its depart- ments : namely, of the Law of Persons. In which light it was justly considered by Hale ; and, after Hale, by Blackstone. Again : Civil Injuries and Crimes are distinguished by Blackstone and others in the following manner. Civil Injuries are private wrongs and concern individuals only. Crimes are public wrongs and affect the whole community. If Blackstone had but reflected on his own catalogue of crimes, he must (I think) have seen, that this is not the basis of the capital distinction in question. For the greater half of them are offences against rights. In other words, they are violations of duties regarding determinate persons, and therefore affect individuals in a direct or proximate manner. Such, for instance, are offences against life and body : murder, mayhem, battery, and the like. Such, too, are theft and other offences against property. Civil Injuries and Crimes. 417 But independently of this, Blackstone's statement of the Lect. distinction is utterly nntenable. v-3.^1i All offences affect the community, and all offences affect individuals. But though all affect individuals, some are not offences against rights, and are therefore pursued, of neces- sity, criminally. That is to say, they are pursued directly by the Sovereign, or by some subordinate representing the Sovereign. Where tbe offence is an offence against a right, it might be pursued (in all cases) either by the injured party, or by those who represent him. But, for reasons wMch. I shall explain at large when I arrive at the distinction in question, it is often thought expedient to convert the offence into a crime. That is to say, the pursuit of it is not left to the discretion of the injured party or his representatives, but is assumed by the Sovereign or by the subordinates of the Sovereign. The differences between Crimes and Civil In- jm-ies, is not to be sought for in a supposed difference be- tween their tendencies, but in the difference between the modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offence which is pursued at the discretion of the injured party or his re- presentative, is a Civil Injury. An offence which is pursued by the Sovereign or by the subordinates of the Sovereign, is a Crime. "^^ In many cases (as in cases of Libels and Assaults), the same offence belongs to both classes. That is to say, the injured has a remedy which he applies or not as he likes, and the Sovereign reserves the power of visiting the offender with punishment. That the distinction should have been referred to sup- posed differences of tendencies, is wonderful. For, in differ- ent countries, the line between civil and criminal is utterly different. In almost all rude societies, the domain of Crimi- nal Law is extremely narrow and, for reasons which. I shall show hereafter, it generally enlarges as society advances. The distinction does not consist in this : that the mischief of crimes (as a class) is more extensive than that of civil 5^ post, Lecture XXVII. p. 517. *° Insrances : Eome {^furtum^ etc.) ; England (Anglo-Saxon) (' Wcregild ) ; Old Germany. In the latter country, there was hardly any criminal law. Merely so much as to give effect to civil VOL. I. E proceedings : e. g. In cases of offences against the Grovernment and the Minis- ter of Justice. This was necessarily the case : because the Sanction of Sanctions is always Punishment. E 4i8 Pervading Notions analysed. Lect. XVII Difference between relative and absolute duties, etc. Distinc- tions be- tween abso- lute duties. injuries (as a class). But in this ; tlie different tendencies of Civil or Criminal Procedure as applied in certain cases. It follows from wliat has been premised, that in distin- guishing relative from absolute duties, and in distinguishing the kinds of the latter, v^e must not look to the ultimate scope or purpose v^ith which duties are imposed. For, as that is the same in all cases, it can never enable us to draw the distinctions in question. A relative duty corresponds, as I have said, to a right : i,e. it is a duty to be fulfilled towards a determinate person or determinate persons, other than the obliged, and other than the Sovereign imposing the duty. All other duties are absolute. [All duties are duties towards the Sovereign, and, as towards the Sovereign, are relative. By ' relative,' therefore, as ap- plied to duty, I mean a duty correlating with a right. By ' absolute,' as applied to a duty, I mean not a duty without relations, but without relation to a right.] All absolute obligations are sanctioned criminally: they do not correspond with rights in the Sovereign, the Public, etc.^^ They do not correspond with rights at all. But rights to enforce, exist in persons delegated by the Sovereign. e.g. In England, offences against absolute duties, like all other crimes, are said to be offences against the King, be- cause it is part of his office to pursue those offences as well as other crimes. Absolute duties are distinguishable by their proximate or immediate purposes. The proximate purpose of some is the advantage of the party obliged. And these I style self-regarding. The proximate purpose of others is the advantage of per- sons indefinitely : for instance, of the community at large, or of mankind in general. The proximate purpose of others is not the advantage of any person or persons. For examples of breaches of abso- lute obligations, see Blackstone, vol. iv. c.8-13,Libel,p.l50; Smuggling, p. 154; Usury, p. 156 ; Forestalling, p. 158 ; Breach of prison, escape, etc. p. 129; Champerty, etc. p. 134; Quarantine, p. 161 ; Polygamy, p. 163. Other examples, pp. 115-127. ' Most of the offences styled prcemunire are breaches of obligations towards so- ciety at large. «2 Blackstone, i. 268 ; iii. 40 ; iv. 88. ®^ ' II y a bien des cas ou la partie favorisee (the party on whom a right is conferred) n'est que le public entier, efc non pas un individu.' — Traites de LegisL vol. i. p. 305. ' In this case, the only persons in- vested with corresponding rights are, persons clothed with powers In Trust for the Government.' — Marginal Note. Absolute Duties, 419 I sliall adduce examples of them in that order. Lect. Duties tovxirds self. Yiolations of these duties : Drunkenness.^^ Suicide. ^-^ Pornication, or simple breach of chastity, not accompanied by violation of a right residing in another, as by adultery, rape, seduction. (Eape includes injury to the party ravished, and to others who have an interest, etc.) There can be no Hglit as against self. The end of a right is, that a party may be obliged by a sanction to do or to for- bear, towards a determinate person or persons. But the act or forbearance, in this instance, depends upon the pleasure of the party. To give him a right to an act or forbearance to which he himself is bound, were absurd. Duties toiuards ^persons mdefinitely, or toicards the sovereigru imposing the duty. Treason is properly an offence against the Sovereign. But an offence ao-ainst a member of a sovereign bodv is often so considered.^" Duties not regarding persons. Towards God : (Ascetic observances.) (Blackstone, vol. iv. p. 43.) Towards the lower animals. The Deity, an infant, or one of the lower animals, as heing the party toiuards v:hom a duty is to he performed, might be said to have a right. But so, in the same case, might an inanimate thing. To call the Deity a person, is absurd. LECTUEE xym, WILL AXD :viOTIVE.- Ix a former lecture I entered upon the analysis and explana- Lect. tion of the term ' Eights : ' Meaning by ^ rights,' Ze^a?rio-hts ; ^ihlHL or rio'hts which owe then- beino^ to the express or tacit com- Brief re- o ^ o ^ X view of mands of Monarchs or Sovereign bodies. preceding ^ow all that can be af&rmed of rights coyisidered in ah- strad — or all that can be afSi-med of rights apart from their hinds and sorts — amounts to a brief and barren o^ene- Elackstone, it. 64. ^" Offences against rights residing in " Ibid. iv. 189. members of sovereign powers, mav be ^ Ibid. iv. 81. considered breaches of relative duties. 420 Pervading Notions analysed. Lkct. rality, and may be thrust into a single proposition, or into a _ . few short propositions. But before I could shew the little which can be affirmed of rights in abstract — or before I could shew lnow little can be affirmed of rights in abstract — it was necessary that I should advert to persons, as hearing rights and duties ; to things and persons, as subjects of rights and duties ; to acts and forbearances, as objects of rights and duties ; and to a certain capital distinction which obtains between rights themselves. Accordingly, In the last four Lectures I called your at- tention to the following leading topics ; and to numerous subordinate topics, with which they are inseparably con- nected, or which they naturally suggest : 1st, Persons, as invested with rights, and as lying under duties. 2ndly, Things, as subjects of rights, and of duties an- swering to rights. 3rdly, Persons, as placed in a position analogous to the position of things : That is to say, not as invested with rights, or as lying under duties, but as the subjects or matter of rights residing in other persons, and availing against strangers or third persons. 4thly, Acts and forbearances, as objects of rights, and of duties corresponding to rights. 5thly, and lastly, The distinction between the rights which avail against persons generally, and the rights which avail against persons certain or determinate : — A distinction which the Classical Jurists denoted by the opposed expressions, ^ Dominium et Obligatio ; ' but which numerous modern Civilians (and writers upon general jurisprudence) have marked with the more adequate and less ambiguous ex- pressions, ' Jus in rem et Jus in personam.' In reviewing these various topics (and, especially, the principal Mnds into which rights are divisible), I endea- voured to prepare the way for such a definition of ' Right ' as might rest upon a sufficient induction : as might apply indifferently to every right ; or might apply to any right, v/ithout regard to its class. Accordingly, I proceeded to examine the import of the term ' Right,' considered as an expression for all rights, or for rights abstracted from the generic and specific differences by which their kinds and sorts are separated or distinguished. And, in attempting to settle the import of the term ^ Right,' I considered im- Recapitulation. plicillj the general nature of the duties whicli I style * fela- lect. live that is to say, which correlate with rights, or answer . ^^^^^ to corresponding rights. But, besides the Duties which I style ' relative,' there are numerous duties which have no corresponding rights, or no rights wherewith they correlate : And as the Analysis through which I am journeying embraces Duties as well as Eights, it was necessary that I should advert to duties ivith- out corresponding rig'hts, as well as to duties which are re- lative. Accordingly, the class of duties in question (which I dis- tinguish from relative duties by the negative epithet 'abso- lute ') were also considered in the last lecture. Every legal duty — whether it be relative or absolute, or whether it be ohligatio or officimn — is a duty to do (or forbear fr-om) an outward act or acts, and flows from the Command, (signified expressly or tacitly) of the person or body which is sovereign in some given society. To fulfil the duty which the command imposes, is just or right. That is to say, the party does the act, or the party observes the forbearance, which is jiissurii or directum by the author of the command. To omit (or forbear from) the act which the command en- joins, or to do the act which the command prohibits, is a wrong or injury : — A term denoting (when taken in its largest signification) every act, forbearance, or omission, which Just is that which is Jicssum ; the past participle oijuheo. Bight is deriyed from directum; the past participle of dirigo ; or, rather, right is probably derived from some Anglo-Saxon Verb, -which comes with dirigo from a common root. The Ger- man recht, gerecht, richtig, rcchtens (just) is from the obsolete richten or rschten (dirigo). Hence Eichter, a judge. Latin; Rego, Rex, Regula, Rectum. (Wrong = Wrung ; the opposite of rec- tum.) And as jv.st and right signify that which is commanded, so do the Latin Mquurn and the Greek BiJcaion denote that which conforms to a law or rule. Manifestly, a metaphor borrowed from measures of length. Something equal to, or even with, a something to which it is compared, ^quum ^ jus gentium. The abstracts, justice, — justura, di- Tcaion, equity, etc., denote conformity to Command ; as their corresponding con- cretes denote a something which is com- manded, or equal. Distinction between right as denoting- something commanded, and as denoting the position of the party towards whom it is commanded. To do right, is to obey a command. ' To have a right,' is to be placed in such a position that another is commanded to do or forbear towards or in respect of oneself. In consequence of the intimate con- nection between the terms, right and obligation are often used indifferently. E.g. In old German Law language, 7'ccht denotes either. So in vulgar English. So the" Latin jus and ohligatio. The French droit, and the Italian diritto, are not free from this ambiguity. The Greek exov^ia is equivalent to facultas, ^otestus. 422 Pervading Notions analysed. Lkct. amounts to disobedience of a Law (or to disobedience of any . other command) emanating directly or circuitously from a Monarch or Sovereign Number — ' Generaliter injuria dicitur, omne quod non jure fit.' A party lying under a duty, or upon whom a duty is in- cumbent, is liable to evil or inconvenience (to be inflicted by ■ sovereign authority), in case he disobey the Command by which the duty is imposed. This conditional evil is the Sanction which enforces the duty, or the duty is sanctioned by this conditional evil : And the party bound or obliged, is bound or obliged, because he is obnoxious to this evil, in case he disobey the command. — That bond, vinculum, or ligamen, which is of the essence of duty, is, simply or merely, liability or ohnoxiousness to a Sanction. Now it follows from these considerations, that, before I can complete the analysis of legal right and duty, I must ad- vert to the nature or essentials of legal Injuries or Wrongs, and of legal or political Sanctions. — As Person, Thing, Act and Forbearance, are inseparably connected with the terms ' Right ' and ' Duty,' so are Injury and Sanction imported by the same expressions. Obiification, Biit before we can determine the import of ' Injury ' and Sanctior'^ 'Sanction' (or can distinguish the compulsion or restraint, imply Mo- which is implied in Duty or Obligation, from that compul- inteiitlon,' sion or restraint which is merely physical), we must try to mi?&Tii- ' settle the meaning of the following perplexing terms : namely, ness. " Will, Motive, Intention, and Negligence : —Including, in the term ' Negligence,' those modes of the corresponding complex notion, which are styled ' Temerity ' or ' Rashness, Impru- dence or Heedlessness.' Accordingly, I shall now endeavour, to state or suggest the significations of ' Motive ' and ' Will.' In other words, I shall attempt to distinguish desires, as determining to acts or forbearances, from those remarkable desires which are named volitions, and by which we are not determined to acts or for- bearances, although they are the immediate antecedents of such bodily movements, as are styled (strictly and properly) human acts or actions. Apoiogvfor Nor is this incidental excursion into the Philosophy of 'MotiveT^ Mind a wanton digression from the path which is marked 'Will; etc. subject. For (first) the party who lies under a duty is bound or Will, Motive, Inte^ition, Negligence. 423 obligfed by a sanction. This conditional evil determines or Lect. inclines his icill to the act or forbearance enjoined. In other — language, he wishes to avoid the evil impending from the Law, although, lie may be averse from the fulfilment of the duty which the Law imposes upon him. Consequently, if we would know precisely the import of ^Duty,^ we must endeavour to clear the expressions ' Motive ' and ^ Will ' from the obscurity with wliich. they have been covered* by philosophical and popular jargon. 2ndly, The objects of duties are acts and forbearances. But every act, and every forbearance from an act, is tlie consequence of a volition, or of a determination of the will. Consequently, if we would know precisely the meaning of act and forbearance, and, therefore, the meaning of duty or obligation, we must try to know the meaning of tke term ^Will.' •Srdly, Some injuries are intentional. Oth.ers are conse- quences of negligence (in th.e large signification of tlie term). Consequently, if we would know the nature of injuries or wrongs, and of various important differences by wliich. they are distinguished, we must try to determine the meanings of ' Intention ' and ' Negligence.^ It is absolutely necessary that the import of the last- mentioned expressions should be settled with an approach, to precision. For hoth of them run, in a continued vein, through the doctrine of injuries or wrongs ; and of the rights and obligations which are begotten by injuries or wrongs. And one of them (namely, Intention '), meets us at every step, in every department of Jurisprudence. But, in order that we may settle the import of the term ' Intention,' we must settle the import of the term ' Will.' For, although an intention is not a volition, the facts are inseparably connected. And, since ^Negligence' implies the absence of a due volition and intention, it is manifest that the explanation of that expression supposes the explanation of these. Accordingly, I will now attempt to analyse the expressions ' Will ' and ' Motive.' Certain parts of the human body obey the vjill. Changing The wm. the expression, certain parts of our bodies move in certain ways, so soon as we vjill that they should. Or, changing the expression again, we have the power of moving in certain ways, certain parts of our bodies. 4^4 Pervading Notions analysed. Lkct. I^Tow these expressions, and others of the same import, merely signify this : Certain movements of our bodies follow invariably and immediately our wishes or desires for those mme movements : Provided, that is, that the bodily organ be sane, and the desired movement be not prevented by an outward obstacle or hindrance. If my arm be free from disease, and from chains or other hindrances, my arm rises, so soon as I wish that it should. But if my arm be palsied, or fastenecl down to my side, my arm will not move, although I desire to move it. These antecedent wishes and these consequent movements, are human volitions and acts (strictly and properly so called). They are the only objects to which those terms will strictly and properly apply. But, besides the antecedent desire (which I style a voli- tion), and the consequent movement (which I style an act), it is commonly supposed that there is a certain ' Will ^ which is the cause or author of both. The desire is com- monly called an act of the will-, or is supposed to be an effect of a power or faculty of willing, supposed to reside in the man. That this same ' will ' is just nothing at all, has been proved (in my opinion) beyond controversy by the late Dr. Brown : Who has also expelled from the region of entities, those fancied beings called ^powers,' of which this imaginary ' will ' is one. Many preceding writers had stated or sug- gested generally, the true nature of the relation between cause and effect. They had shewn that a cause is nothing but a given event invariably or usually preceding another given event ; that an effect is nothing but a given event in- variably or usually following another given event ; and that the power of producing the effect which is ascribed to the cause, is merely an abridged (and, therefore, an obscure) ex- pression for the customary antecedence and sequence of the two events. But the author in question, in his analysis of that relation, considered the subject from numerous aspects equally new and important. And he was (I believe) the first who understood what we would be at, when we talk about the Will, and the power or faculty of willing. All that I am able to discover when I will a movement of my body, amounts to this : I wish the movement. The movement immediately follows my wish of the movement. And v/hen I conceive the wish, I expect that the movement Will a7id Motive. 425 wished xuill immediately follow it. Any one may convince Lect. himself that this is the whole of the case, by carefally ob- serving what passes in himself, when he v:ills to move any of the bodily organs, which are said to obey the will, or the jjoiver or faculty of willing. Tor further proof, I mnst refer yon to Brown's ' Analysis of Cause andEfiPect.' A detailed exposition of the subject, were utterly inconsistent with the limits by which I am con- fined, and with the direct or appropriate purpose of these Lectures. The wishes which are immediately followed by the bodily Dominion movements wished, are the only wishes immediately folloiued limited to hy their objects. Or (changing the expression), they are the only wishes which consummate themselves : — The only wishes which attain their ends without the intervention of means. In every other instance of ^vish or desire, the object of the wish is attained (in case it be attained) through a meaii; and (generally spealring) through a series of means : — Each of the means being (in its turn) the object of a distinct wish ; and each of them being wished (in its turn) as a step to that object which is the end at which we aim. For example. If I wish that my arm should rise, the desh*ed movement of my arm immediately follows my wish. There is nothing to which I resort, nothing which I wish, as a mean or instrument wherewith to attain my purpose. But if I wish to lift the book which is now lying before me, I wish certain movements of my bodily organs, and I employ these as a mean or instrument for the accomplishment of my ultimate end. Again : If I wish to look at a book lying beyond my reach, I resort to certain movements of my bodily organs, coupled with an additional something which I employ as a further instrument. For instance, I grasp and raise the book now lying before me ; and ivith the book which I grasp and raise, I get the book which I wish to look at, but ■ which lies on a part of the table beyond the reach of my arm. It will be admitted by all (on the bare statement) that the dominion of the will is limited or restricted to some of our limited to bodily organs: that is to say, that there are only certain o^^g^^"^"^^ " Brown's Enquir}- into the Eelation Analysis of the Phenomena of the of Cause and Effect. (For the Will in Human Mind, cap. 24, 25, particular, Part 1, Section 3.) Mill's 426 Pervading Notions analysed. Lect. fdrU of our bodily frames, wMch. cliange their actual states V ' for different states, as (and so soon as) we wish or desire that they should. Numberless movements of my arms and legs immediately follow my desires of those same movements. But the motion of my heart would not be immediately affected, by a wish I might happen to conceive that it should stop or quicken. Dominion That the dominion of the will extends not to the mind, extendsnot ^^y appear (at first sight) somewhat disputable. It has, to the mind, howovor, been 'proved by the writers to whom I have referred. I^or, indeed, was the proof dif&cult, so soon as a definite meaning had been attached to the term will. Here (as in most cases) the confusion arose from the indefiniteness of the language by which the subjects of the inquiry were denoted. If volitions be nothing but wishes immediately followed by their objects, it is manifest that the mind is not obedient to the will. In other words, it will not change its actual, for different states or conditions, as (and so soon as) it is wished or desired that it should. Try to recall an absent thought, or to banish a present thought, and you will find that your desire is not immediately followed by the attainment of its object. It is, indeed, manifest, that the attempt would imply an absurdity. Unless the thought desired be present to the mind already, there is no determinate object at which the. desire aims, and which it can attain immediately, or without the intervention of a mean. And to desire the ab- sence of a thought actually present to the mind, is to con- ceive the thought of which the absence is desired, and (by consequence) to perpetuate its presence. Changes in the state of the mind, or in the state of the ideas and desires, are not to be attained immediately by desiring those changes, but through long and complex series of intervening means, beginning with desires which really are volitions.'^^ Yoiitions, Our dcsircs of those bodily movements which immediately Yfhat. follow our desires of them, are therefore the only objects which can be styled volitions ; or (if you like the expression better) which can be styled acts of the will. For that is merely to afiirm, ' that they are the only desires which are followed by their objects immediately, or without the inter- Examples : Taking up a book to banish an importunate thought. Look- ing into a book to recover an absent thought. WilL 427 vention of means.' They are distinguislied from other desires by the name of volitions, on account of this, theii' essential or characteristic property. And as these are the only volitions ; so are the bodily moye- ments, by which they are immediately followed, the only a cfs or actions (properly so called).'^ It will be admitted on the mere statement, that the only objects which can be called acts, are consequences of Volitions. A yoluntary moyement of my body, or a moyement which follows a yolition, is an act. The ?/zyolnntary moyements which are the consequences of certain diseases, are not acts. But as the bodily moyements which immediately follow yolitions, are the only ends of yoli- tion, it follows that those bodily moyements are the only objects to which the term ' acts ' can be applied with j)erfect precision and propriety. The only difficulty with which the subject is beset, arises from the concise or abridged manner in which (generally speaking) we express the objects of our discourse. Most of the names which seem to be names of acts, are names of acts, covrpled with certain of their consequences. For example. If I kill you. with a gun or pistol, I shoot you : And the long train of incidents which are denoted by that brief expression, are considered (or spoken of) as if they constituted an act, perpetrated by me. In truth, the only parts of the train which are my act or acts, are the muscular motions by which I raise the weapon ; point it at your head or body, and pull the trigo-er. These I iviU. The contact of the flint and steel ; the ignition of the powder, the flight of the ball towards your body, the wound and subsequent death, with It is not clear whether the author here intends to exclude from the cate- gory of acts all processes that do not immediately result in a poJ.pahle bodily movement. If so, he is inconsistent. The author elsewhere (p. 469) implicitly recognizes meditation as an act : Further (]'. 470), while he rerrards the conric- T i 11 produced by evidence as a case of physical compulsion, he recognizes that non-belief may be blamable, if the re- sult of insufficient examination, refusal to examine, &c. The process of exami- nation IS therefore the object of a dutv, and hence, according to his own analysis, it is an act (p. 350,"378, 406). And it is difficiilt to see why cogito should not be classed with acts, just as much as curro or hav.rio. There seems no generic diiFerence between the act of taking up a book to banish an importunate thought, and the pro- cess of entering (without external aid) upon some mental exercise {e.g. a pro- blem in geometry) for the same pirrpose. It is no doubt true that a given sipecific change in the state of the mind cannot generally be the object of a Tolition. But the same is true of any given bodily movement, unless it happen to be one of those movements, very limited in direc- tion and extent, which are immediately in our power to effect. ZS'o doubt the mental processes in ques- tion are too impalpable and obscure to enter the domain of positive law, unless evidenced by acts of a more observable kind, which last are sometimes distin- » guished by the name of overt acts, a term devised not without insight. (See p. 455, post.) — E. C. i^ECT. xyiii Acts, what. Xames of acts com- prise cer- tain of their conse- quences. 428 Pervading Notions analysed. Lect. XVIII Confusion 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. tlie numberless incidents included in these, are consequences of the act which I will. I will not those consequences, although I may intend them. Nor is this ambiguity confined to the names by which our actions are denoted. It extends to the term 'will;' to the term 'volitions ;' and to the term ' acts of the will.' In the case which I have just stated, I should be said to will the whole train of incidents ; although I should onlj will certain muscular motions, and should intend those consequences which constitute the rest of the train. But the further explanation of these and other ambiguities, must be reserved for the explanation of the term. ' intention.' The desires of those bodily movements which immediately follow our desires of them, are imputed (as I have said) to an imaginary being, which is styled the Will. They are called acts of the will. And this imaginary being is said to be determined- to action, by Motives. All which (translated into intelligible language) merely means this : I wish a certain object. That object is not attainable immediately, by the wish or desire itself. But it is attainable by means of bodily movements which will immediately follow my desire of them. For the purpose of attaining that which I cannot attain by a wish, I wish the movements which will immediately follow my wish, and through which I expect to attain the object which is the end of my desires, (as in the foregoing instance of the book). A motive, then, is a wish causing or preceding a voli- tion : — A wish for a something not to be attained by wishing it, but which the party believes he shall probably or certainly attain, by means of those wishes which are styled acts of the will. In a certain sense, motives may precede motives as well as acts of the will. For the desired object which is said to determine the will may itself be desired as a mean to an ulterior purpose. In which case, the desire of the object, which is the ultimate end, prompts the desire which imme- diately precedes the volition. [Give instance.] That the will should have attracted great attention, is not wonderful. For by means of the bodily movements which are the objects of volitions, the business of our lives is carried on. That the will should have been thought to con- tain something extremely mysterious, is equally natural. For volitions (as we have seen) are the only desires which Will a 7 id Hfo live . — Fragmen ts. 429 consummate tliemselves : the only desires Tvliicli attain tlieir lect. objects -witliout tlie intervention of means. . xviii ^ Notes axd Feagmexts. See Mr. Locke ; Chapter on Power and TTill. His mistake was tliis. He perceived (tlioiigli obscnrely) that we mean by the 'will' or by 'volitions,' desires which consummate themselves, or which are followed immediately by their objects. And if he had asked himself; vjliat desires are attained by merely desiring them ? ' he would have- arrived at the solation reserved for Dr. Brown. [The following passage in Hobbes is referred to by Mr. Austin] : — ' In Deliberation the last Appetite or Aversion immediately ad- hering to the action, or to the omission thereof, is that we call the TTill ; the Act (not the facnlty) of TTilling. And Beasts that have Deliberation mnst necessarily also have ^Vill. The Definition of the Will commonly given by the Schools, that it is a rational Ap- petite, is not good. For, if it were, then there coiikl be no volun- tary Act against Reason. For a voluntary Act is that which pro- ceedeth from the Will and no other. But if instead of a rational Appetite, we shall say an Appetite resulting from a precedent De- liberation, then the Definition is the same that I have given here. TF;7Z tlierefore is the last Ajijjetite in Beliherating. And though we say in common Discourse, a man had a Will once to do a thine that nevertheless he forbore to do : yet that is properly but an Inclina- tion, which makes no Action voluntary; because the action depends not of it, but of the last Inclination or Appetite.' — Leviathan, p. 28, edit. 1651. The objects of wishes or desires are desired simply or absolutely, or they are desired for their effects or consequences. Changing the expression, the objects of wishes or desires are desired as ends, or they are desired as means to ends. For example, I may desire money for the sake of the advantages which it would proctire ; or (by virtue of that process of association which I think it needless to explain) I may wish for monev withont adverting to those advantages, or to any of the consequences which would follow the attainment of my desire. And the remark which I have applied to jjositive desires, will also apply to those negative desires which are styled oA-ersions. I may wish to avoid a given pain in prospect, without carrying' my atten- tion beyond that given object. Or I may wish that an event in prospect may not happen, on acccjtint of some consequence which would certainly or probably follow it, and from which I am averse. If we steadily keep in view this simple and obvious truth, I think that we may approach to the true distinctions between Motive. Will, and Intention. 430 Pervading Notions analysed. Lkct. Voluntary. — Double meaning of the word voluntary. ^^^^^ First, a voluntary act is any act done in pursuance of a volition ; i. e. an act (s. s.) with such of its intentional consequences as are in- cluded in its import ; e. g. submission to punishment, in consequence of a knowledge that resistance would be fruitless. Secondly, a voluntary act is an act done in consequence of an act of the will, as deterr}iined hy certain motives. This last sense includes several related yet different senses ; e. ^. a voluntary act, as opposed to an act done for a valuable consideration : a voluntary act, as opposed to an act done in apprehension of pain. S'pontaneous. Mr. Bentham says,^^ ^ I purposely abstain from the use of the words voluntary and in- voluntary^ on account of the extreme ambiguity of their signification. By a voluntary act is meant sometimes^ any act in the performance of which the will has had any concern at all ; in this sense it is synonymous to " intentional ; " sometimes such acts only, in the pro- duction of which the will has been determined by motives not of a painful nature : in this sense it is synonymous with unconstrained or uncoerced', sometimes such acts only, in tJie production of which the ivill has been determined hy motives which, ivhether of the pleasurable or painful kind, occurred to a man himself, without being suggested by anybody else ; ''^ in this sense it is synonymous with spontaneous. ' The sense of the word " involuntary " does not correspond com- pletely to that of the word " voluntary." Involuntary is used in oppo- sition to intentional and to unconstrained ; but not to spontaneous. ' LECTUEE XIX. INTENTION. Lect. XIX In the preceding Lectures, I have endeavoured to analyse " ' ~" the expressions ' legal Right and Duty,' or to determine generally the nature and essence of legal Rights and Duties. Before I can complete the analysis of ' Right ' and ' Duty/ or before I can determine completely the import of those complex terms, I must advert in a general manner to legal Injuries or Wrongs, and to legal or political Sanctions. But before I could proceed to the consideration of Injuries and Sanctions, or could distinguish Duty or Obligation from physical compulsion or restraint, it was necessary that I should examine the meaning of ' Will ' and ' Motive,' ' In- 72 < Principles of Morals and Legisla- proceeding from the Moral Sanction, tion,' pp. 22, 79, 81. are, with reference to legal obligation, Or rather, by motives other than sipontaneous. — See Principles, etc. p. those which are in question. Good offices 320. — Marginal Note. Volitions. 431 tention ' and ' Negligence Including, in the term ' Negli- Lect. xix ence/ negligence strictly so called ; witli tlie closely allied, ' ^ thongh somewliat different notions, which, are styled ' Eash- ness ' or ' Temerity,' and ' Heedlessness.' Accordingly, I examined, in the last Lecture, the meaning of ' Will ' and ' Motive ;' and I now proceed to the import of ^ Intention ' and ' Negligence.' As I stated in my last Lecture, some of our wishes or Volitions desires are followed immediately by their objects. In other ^iyes." words, some of our wishes or desires consummate themselves, or attain their appropriate ends without the intervention of means. The only wishes or desires which consummate themselves, are wishes or desires for certain movements of our own bodily organs. All our other desires attain their appropriate ends, by means, or series of means : by means of the bodily movements which immediately follow our desires for them, or by means of those bodily movements coupled with addi- tional means. [The bodily movements which we will, or which imme- diately follow our desires of them, are not desired for them- selves, but for their consequences. They are not desired as ends^ but as means to ends. This (I believe) will hold universally. The movements in themselves are perfectly indifferent objects, and derive all their interest from the purposes which they subserve.] The desires for those bodily movements which imme- diately follow our desires for them, are sometimes styled ' volitions :' — more frequently, ' determinations of the will,' or of ^ the power or faculty of willing.' For here (as in other cases of cause and effect) the customary sequence of the bodily movement upon the desire immediately preceding, has been ascribed to a fancied something styled a ^ power :' A ' poiver of willing ' which resides in the man, and by virtue whereof he produces the movement which is the instant consequence of his wish for it. The fancied something which comes between the wish and the movement, is commonly styled (with more brevity) ' the Will.' And whenever I find occasion to mention this mysterious being, I will (if you please) call it so. For the structure of established speech forces me to talk of ' willinq ;' and to impute the bodily movements, which immediately foUow our desires for them, to ' the WilV 432 Pervading Notions analysed. Lkct. XIX To discard estabJislied terms, is seldom possible ; and where 1 it is possible, is seldom expedient. A familiar expression, however obscure, is commonly less obscure, as well as more welcome to the taste, than a new and strange one. Instead of rejecting" conventional terms because they are ambiguous and obscure, we shall commonly find it better to explain their meanings, or (in the language of Old Hobbes) ' to snuff them with distinctions and definitions.' Accordingly, I shall talk of ' willing of ' determinations of the will and of ' motives determining the will.' But all that I mean by those expressions, is this. ' To will^^ is to wish or desire certain of those bodily movements which immediately follow our desires of them. A ' determination of the will,' or a * volition/ is a wish or desire of the sort. A ' motive determining the will,' is a wish not a volition, but suggesting a wish which is. The wish styled a ' motive,' is \ not immediately followed by its appropriate object : But the bodily movement which is the appropriate object of the volition, seems to the party a certain or probable mean for attaining the something which is the appropriate object of the motive. In case that something be wished as a mean to an ulterior object, the wish of the ulterior object is a motive to a motive ; as the wish of the intervening mean is a motive to the volition. Acts, The bodily movements which immediately follow our de- sires of them, are the only human acts, strictly and properly so called. For events which are not willed, are not acts ; and the bodily movements in question are the only events which we will. They are the only objects which follow our desires, without the intervention of means. But, as I observed in my last Lecture, most of the names which seem to be names of acts, are names of acts strictly and properly so called, coupled with more or fewer of their con- sequences. And as the names of acts comprise certain of their conse- quences, so it is said that those consequences are willed, al- though they are only intended. In the case which I have just supposed, it would be said that I willed the consequences of my voluntary muscular movements, as well as the move- ments themselves. Nor is it in our power to discard these forms of speech, although they involve the nature of will and intention in thick obscurity. They are inseparably interwoven with the | rest of established language ; and if we attempted to change I Volitio7is. 433 them for new and precise expressions, we should either resort lect. xix to terms which others would not understand, or to tedious ^ ^ cii'cumlocutions which others would not endure. To analyse, mark, and remember, their complex import, is all that we can accomj)lish. Accordingly, I must often speak of ' ac^s,' when I mean ^ acU and tlieir consequences and must often speak of those consequences as if they were vjilled, though, in truth, they are intended. And here I must pause a moment for the purpose of cor- internal recting a mistake which I made in a former Lectui^e. In that Lecture, I distinguished acts into acts internal, and acts external : Meaning by acts internal, yolitions or determinations of the will ; and meaning by acts external, the bodily moyements which are the appropriate objects of Yolitions. I am conyinced, on reflection, that the terms are needless, and tend to darken their subjects. The term 'yolitions,' or the term • determinations of the will,' sufficiently denotes the objects to which I applied the term 'internal acts:' And it is utterly absurd (unless we are talking in metaphor) to apply such terms as 'act' and ' moyement ' to mental phenomena. I, therefore, repudiate the term ' internal acts ;' and, with that term, the superfluous distinction in question. I hastily borrowed the distinction from the works of ]\Ir. Bentham : A writer, whom I much reyere, and whom I am prone to foUow, though I will not receiye his dogmas with blind and seryile submission. Impostors exact from their disciples ' prostration of the understanding,' because their doctrines will not endure examination. A man of Mr. Bentham's genius may proyoke inquiry ; and may rest satisfied with the ample and genuine admu-ation which his wi'itings will infallibly extort from scrutinising and impartial judges. The bodily moyements which immediately follow our de- intention sires of them, are acts (properly so called). fno^p^ve^ent I But eyery act is followed by consequences ; and is also ^^^ts, or attended by concoTnitanis, which are styled its circumstances, quences of To desh'e the act is to ivill it. To eiqoect any of its conse- JJ^f^^ quences, is to intend those consequences. Lect. XIV. p. 376, supra. acts; acts of the mind : Thus, to strike ' In the second place, acts may be is an external or exterior act : to intend distinguished into external and internal, to strike, an internal or interior one.' — By external are meant corporal acts ; Bentham, Frineijoles, etc. p. 70. acts of the body: by internal, mental VOL. I. r F 434 Pervading Notions analysed. Lect. XIX The act itself is intended as well as willed. For every "~ " volition is accompanied by an expectation or belief, that the bodily movement wished will immediately follow the wish. A consequence of the act is never willed. For none but acts themselves are the appropriate objects of volitions. Nor is it always intended. For the party who wills the act, may not expect the consequence. If a consequence of the act be desired^ it is probably intended. But (as I shall show immediately) an intended consequence is not always desired. Intentions, therefore, regard ads : or they regard the conse- quences of acts. When I will an act, I expect or intend the act which is the appropriate object of the volition. And when I will an act, I may expect, contemplate, or intend, some given event, as a certain or contingent consequence of the act which I will. Confusion Hcnce (no doubt) the frequent confusion of Will and int^^tionl^^ Intention. Feeling that will implies intention (or that the appropriate objects of volitions are intended as well as willed), numerous writers upon Jurisprudence (and Mr. Bentham amongst the number) employ ' will ' and ' inten- tion ' as synonymous or equivalent terms. They forget that intention does not imply will ; or that the appropriate objects of certain intentions are not the appropriate objects A conse- of volitions. The agent may not intend a consequence of anTcTmay his act. In other words, when the agent wills the act, he tendeV"' Contemplate that given event as a certain or contin- gent consequence of the act which he wills. For example : My yard or garden is divided from a road by a high paling. I am shooting with a pistol at a mark chalked upon this paling. A passenger then on the road, but whom the fence intercepts from my sight, is wounded by one of the shots. For the shot pierces the paling ; passes to the road ; and hits the passenger. Now, when I aim at the mark, and pull the trigger, I may not intend to hurt the passenger. I may not contem- plate the hurt of a passenger as a contingent consequence of the act. For, though the hurt of a passenger he a probable consequence, I may not think of it, or advert to it, as a consequence. Or, though I may advert to it as a possible consequence, I may think that the fence will intercept the shot, and prevent it from passing to the road. Or the road i Will and Intention. 435 may be one which, is seldom travelled, and I may think the lect. xix presence of a stranger at that place and time extremely im- ~ ' ' probable. On any of these suppositions, I am clear of intending the harm : Though (as I shall show hereafter) I may be guilty of heedlessness or rashness. Before intention can be defined exactly, the import of those terms must be taken into con- sideration. Where the agent intends a consequence of the act, he may An in- wish the consequence, or he may not wish it. sequence*^of And, if he wish the consequence, he may wish it as an end, an act ma^^ 1 . T . ■ J. J be wished or he may wish it as a mean to an end. or not I will illustrate these three suppositions by adducing ex- And if amples. But before I exemplify these three suppositions, I ^ay^be will endeavour to explain what I mean, when I say ' that a wished as p , an end, or consequence oi an act may be wished as an end. as a mea7i. Strictly speaking, no external consequence of any act is Conse- desired as an ' Z'act"^ The end or ultimate purpose of every volition and act is ^^ished as a feeling or sentiment : — is pleasure, direct or positive ; or is the pleasure which arises mdirectly from the removal or prevention of pain. But where the pleasure, which (in strictness) is the end of the act, can only be attained through a given external consequence, that external consequence is inseparable from the end ; and is styled (with suificient precision) the end of the act and the volition. For example. If you shoot me to death because you hate me mortally, my death is a necessary condition to the attainment of your end. The end of the act, is to allay the deadly anti- pathy. But the end can only be attained through my death. And my death (which is an intended consequence of the act) may, therefore, be styled the end of the act and the volition. I stated in my last Lecture, that the bodily movements, which are the appropriate objects of volitions, are not de- sired as ends. But that is true of every outward object which is the object of a desire. This, therefore, will not distinguish volitions from other desires. Nor can it be said, that the appropriate objects of volitions are desired as means to ends external, or to remote ends. In most cases they are. But in some they are not. Namely, dancing, etc., for nothing but the present pleasure. F F 2 . 43^ Pervading Notions analysed. Lect. XIX Concur- rence of Motive and Intention. Exemplifi- cations of the three foregoing supposi- tions. Of the first supposi- tion. Of the second, sup- position. Of the third sup- position. Tlie true test is, that thej are tlie only desires immediately followed by their appropriate or direct objects. Where an intended consequence is wished as an end or a mean, motive and intention concur. In other words, The consequence intended is also wished ; and the wish of that consequence suggests the volition. I will now exemplify those three varieties of intention at which I have pointed already. The varieties are the following : 1st. The agent may intend a consequence ; and that con- sequence may be the end of his act. 2ndly. He may intend 2b consequence ; but he may desire that consequence as a mean to an end. 3rdly. He may intend the consequence, without desiring it. As examples of these three varieties, I will adduce three cases of intentional killing. You hate me mortally : And, in order that you may ap- pease that painful and importunate feeling, you shoot me dead. Now here you intend my death : And (taking the word ' end ' in the meaning which I have just explained) my death is the end of the act, and of the volition which precedes the act. Nothing but that consequence would accomplish the purpose, which (speaking with metaphysical precision) is the end of the act and the volition. Nothing but that conse- quence would allay the painful sentiment, of which you purpose ridding yourself when you shoot me. Nothing but that consequence would appease your hate, or satisfy your malice. Again : You shoot me, that you may take my purse. I refuse to deliver my purse, when you demand it. I defend my purse to the best of my ability. And, in order that you may re- move the obstacle which my resistance opposes to your purpose, you pull out a pistol, and shoot me dead. Now here you intend my death, and you also desire my death. But you desire it as a mean, and not as an end. Your desire of my death is not the ultimate motive suggest- ing the volition and the act. Your ultimate motive is your desire of my purse. And if I would deliver my purse, you would not shoot me. Lastly : You shoot at Sempronius or Styles, at Titius or Nokes, d^^iring and intending to kill him. The death of Styles is Intention, 437 tlie end of your volition and act. Your desire of liis death., lect. xix is the ultimate motive to the volition. You contemplate his ' ^ death, as the probable consequence of the act. But when you shoot at Styles, I am talking with him, and am standing" close by him. And, from the position in which I stand with regard to the person you aim at, you think it not unlikely that you may kill me in your attempt to kill liim. You fire, and kill me accordingly. Now here you intend my death, without desiring it. The end of the volition and act, is the death of Styles. M\j death is neither desired as an end, nor is it desired as a mean : M.y death stibserves not your end : you are not a bit the nearer to the death of Styles, by killing me. But, since you contemplate my death as a probable consequence of your act, you intend my death, although you desire it not. It follows from the nature of Yolitions, tha^i forh ear ances Forbear- from acts are not tvilled, but intended. StemiecT To ivill, is to wish or desire one of those bodily move- ^^J^^J*^ ments which immediately follow our desires of them. These movements are the only acts, properly so called. Conse- quently, ' To will a forbearance ' (or ' to will the absence or negation of an act'), is a flat contradiction in terms. When I forbear from an act, I will. But I will an act other than that from which I forbear or abstain : And, know- ing that the act which I will, excludes the act forborne, I intend the forbearance. In other words, I contemplate the forbearance as a consequence of the act which I will; or, rather, as a necessary condition to the act which I will. For if I willed the act from which I forbear, I should not will (at this time) the act which I presently will. For example. It is my duty to come hither at seven o'clock. But, instead of coming hither at seven o'clock, I go to the Playhouse at that hour, conscious that I ought to come hither. Now, in this case, my absence from this room is inten- tional. I know that my coming hither is inconsistent with my going thither : that, if my legs brought me to the Uni- versity, they would not carry me to the Playhouse. If I forgot that I ought to come hither, my absence w^ould not be intentional, but the effect of negligence. 438 Pervading Notions a7ialysed. LECTUEE XX. NEGLIGENCE, HEEDLESSNESS AND RASHNESS. LiXT. XX Acts are "willed and intended : Conse- quences are intended. Forbear- ances are intended. Motives to forbear- ances. Forbear- ances dis- tinguished from Omis- sions. Ambigu- ities of the terms ' For- bearance and Omis- sion ;' ' Commit and Omit.' In mj last Lecture, I endeavoured to distinguish, acts (pro- perly so called) from the events which are consequences of acts ; to shew that acts are intended as well as ivilled ; but that their consequences are never willed, although they are often intended. In short, every forbearance is intended, but no forbearance is ivilled : the party wiUs a something incon- sistent with the act forborne, conscious that the something which he presently Avills, excludes (for the time being) that from which he forbears. The motives to forbearances (or, rather, to the acts which exclude the acts forborne,) are different in diflPerent cases. Disliking the consequences of the act from which I for- bear, I forbear from the act because I dislike those conse- quences. Or without disliking (or positively liking) those consequences, I prefer the consequences of the act which I presently will, and which I could not perform unless I for- bore from the other. In the first of these cases, my motive to the act which I presently will, is styled aversion : aversion from the act for- borne, or (rather) from its probable consequences. But whether the act which I will be promoted by preference or aversion, the act which I will, and not the forbearance, is the object of the volition itself. ' To will nothing,' is a flat contradiction in terms. '^^ Forbearances must be distinguished from Omissions. A forbearance (taking the word in its large signification) is the not doing a given act with an intention of not doing it. The party wills something else, knowing that that which he wills excludes the given act. An omission (taking the word in its large signification) is the not doing a given act, without adverting (at the time) to the act which is not done. The term ' forbearance ' (as it is often used) is restricted to lawful forbearances : — to such as are exacted by duties, or are not inconsistent with duties. The term ' omission ' (as it is often used) is restricted to imlawful or culpable omissions : — to such as are breaches of duties. It is not perhaps rigidly true that every forbearance is preceded or accom- panied oy an act. Pordearance, Omission, Negligence. 439 Aud, taking the terms in those restricted senses, we have lect. xx no names for unlawful or culpable forbearances, or for law- ful omissions. IS'ot unfrequentlj, the term ' omission ' is extended to all omissions, and also to all forbearances. Or the term ' omission ' denotes such omissions and forbear- ances as are unlawful or culpable. And, in either of those cases, the not doing, which is unintentional, is confounded with the not doing, which is intentional. * Omit ' (as opposed to ^ commit ') is also defective or am- biguous. To ^ CO ??zmit,' is to do an act inconsistent Avith a duty. ' To omit,' is to omit unlawfully ; or to omit (or for- hear) unlawfully. In the first case, culpable forhearance is dropiyed. In the last case, culpable forbearance is confounded with mdpahle omission. I think that the usage of numerous and good writers au- thorises the large significations which I attach to the terms in question. At all events, those significations are so clear, precise, and commodious, that I should venture to annex them to the terms, in the teeth of established usage. Those significations I will repeat. ' To forbear ' is not to do, with an intention of not doing. ' A forbearance,' is a not doing, with a like intention. ' To omit,' is not to do, but without thought of the act which is not done. ' An omission,' is a not doing, with a similar absence of consciousness. If we would denote, ' that a forbearance or omission is a breach of duty,' we can easily accomplish the purpose by express restriction. We can style it ' injurious ' or un- lawful,' or we can call it ' culpable.' Injmious or culpable Xegiigence. omissions are frequently styled ' negligent.' The party who omits, is said to ' neglect ' his duty. The omission is ascribed to his ' negligence,'' The state of his mind at the time of the omission, is styled ' negligence.' These (I think) are the meanings usually attached to these terms ; although the Eoman Lawyers {as I shaU shew imme- diately) have given them a larger signification. Taking them in the meanings which (I believe) are usual, the term ' negligent ' applies exclusively to injurious omis- sions : — to breaches by omission of positive duties. The party omits an act to which he is obliged (in the sense of the Eoman Lawyers). He performs not an act to which he is obliged, because the act and the obligation are absent from his mind. VOL. I. * F F 4: 440 Pervadmg Notions analysed. Lect. XX Heedless- ness. Negligence and Heed- lessness compared. Kashness. ' Seedlessness ' differs from negligence, alttougli tliej are closely allied.^7 The party wlio is negligent omits an act, and breaks a jpositive duty : The party who is heedless does an act, and breaks a ne- gative duty. Acts (properly so called) are not injuries or wrongs, inde- pendently of their consequences. Where an act is forbidden, the duty and the sanction are pointed at consequences which constantly or usually follow it. And (as I shall shew here- after) the guilt or innocence of a given actor, depends upon the state of his consciousness, with regard to those conse- quences, in the given instance or case. If he intend or expect them, he is gnilty of the wrong at which the sanction is aimed. And, though he expect them not, they are rationally imputed to him, provided he would have expected them, if he had thought of them and of his duty. Where he does the act without adverting to those consequences, he is clear of intending those consequences, but he produces them by his heedlessness. I endeavoured in my last Lecture to illustrate my mean- ing, by an example to which I now refer you.'^^ In the case supposed, I did not advert to the probable consequence of my act. And, since it was my duty to advert to it, I am guilty of heedlessness^ although I am clear of intentional injury. The states of mind which are styled ' Negligence ' and ' Heedlessness,' are precisely alike. In either case, the party is inadvertent. In the first case, he does not an act which he was bound to do, because he adverts not to it. In the second case, he does an act from which he was bound to for- bear, because he adverts not to certain of its piobable conse- quences. Absence of a thought which one's duty would naturally suggest, is the main ingredient in each of the complex notions which are styled ' negligence ' and ' heed- lessness.' The party who is guilty of Temerity or Eashness, like the party who is guilty of heedlessness, does an act, and breaks a positive duty. But the party who is guilty of heedlessness, thinks not of the probable mischief. The party who is guilty of rashness thinhs of the probable mischief ; but, in conse- quence of a missupposition begotten by insufficient advertence. " Bentham, 'Principles,' etc. pp. 86, 161. '8 See p. 434, ante. Negligence, &c., distinguished fi'om Intention, 441 he assumes that the mischief will not ensue in the given in- Lect. xx stance or case. Such (I think) is the meaning invariably attached to the expressions, ' Rashness/ ' Temerity,' ' Fool- hardiness,' and the like. The radical idea denoted is always this. The party runs a risk of which he is conscious ; but he thinks (for a reason which he examines insufficiently) that the mischief will probably be averted in the given instance. I will again illustrate my meaning, by recurring to the example to which I have just alluded. When I fire at the mark chalked upon the fence, it occurs to my mind that a shot may pierce the fence, and may chance to hit a passenger. But, without examining carefully the ground of my conclusion, I conclude that the fence is suffi- ciently thick to prevent a shot from passing to the road. Or, without giving myself the trouble to look into the road, I assume that a passenger is not there, because the road is seldom passed. In either case, my confidence is rasli ; and, through my rashness or temerity, I am the author of the mis- chief. My assumption is founded upon evidence which the event shews to be worthless, and of which I should discover the worthlessness if I scrutinised it as I ought. By the Roman Lawyers, Rashness, Heedlessness, or Neg- ligence, is, in certain cases, considered equivalent to ' Dolus : ' that is to say, to intention. ' Dolo comparatur.' ' Yix est ut a certo nocendi ijvoposito discerni possit.' Changing the expression, they suppose that rashness, heedlessness or neg- ligence, can hardly be distinguished, in certain cases, from intention. ISJ'ow this (it appears to me) is a mistake. Intention (it seems to me) is a precise state of the mind, and cannot coalesce or commingle with a different state of the mind. ' To intend,' is to believe that a given act will follow a given volition, or that a given consequence will follow a given act. The chance of the sequence may be rated higher or lower ; but the party conceives the future event, and believes that there is a chance of its following his volition or a<3t. Inten- tion, therefore, is a state of consciousness. But negligence and heedlessness suppose rmconsciousness. In the first case, the party does not think of a given act. In the second case, the party does not thiuk of a given con- sequence. Now a state of mind between consciousness and uncon- sciousness — between intention on the one side and negligence or heedlessness on the other— seems to be impossible. The 442 Pervading Notions analysed. L^ECT. XX party thinks, or tlie party does not think, of the act or con- sequence. If he think of it, he intends. If he do not think of it, he is negligent or heedless. To say that negligence or heedlessness may rnn into intention, is to say that a thought may be absent from the mind, and yet (after a fashion) present to the mind. Nor is it possible to conceive that supposed mongrel or monster, which is neither temerity nor intention, but partakes of both : — A state of mind lying on the confines of each, without belonging precisely to the territory of either. The party who is guilty of Rashness thinhs of a given con- sequence ; but, by reason of a missupposition arising from insufficient advertence, he concludes that the given conse- quence will not follow the act in the given instance. Now if he surmise (though never so hastily and faintly), that his missupposition is unfounded, he intends the consequence. For he thinks of that consequence ; he believes that his mis- supposition may be a missupposition ; and he, therefore, believes that the consequence may follow his act. I will again revert to the example which I have already cited repeatedly. When I fire at the mark chalked upon the fence, it occurs to my mind that the shot may pierce the fence, and may chance to hit a passenger. But I assume that the fence is sufficiently thick to intercept a pistol-shot. Or, without going to the road in order that I may be sure of the fact, I assume that a passenger cannot be there because the road is seldom passed. Now if my missupposition be absolutely confident and sincere, I am guilty of rashness only. But, instead of assuming confidently that the fence will intercept the ball, or that no passenger is then on the road. I may surmise that the assumption upon which I act is not altogether just. I think that a passenger may chance to be there, though I think the presence of a passenger somewhat improbable. Or, though I judge the fence a stout and thick paling y I tacitly admit that a brick wall would intercept a pistol-shot more certainly. Consequently, I intend the hurt of the passenger who is actually hit and wounded. I think of the mischief, when I will the act ; I believe that my mis- supposition may be a missupposition ; and I, therefore, believe there is a chance that the mischief to which I advert may follow my volition. The proposition of the Roman Lawyers is, therefore, false. Negligence, cfc. distinguished front Intention. 443 The mistake I liave no doubt i arose from a eonfrisioii of Lect. xx ideas wliicli is not inifr^equent : — fr^om tlie confusion of yro- hondym and ]:)rohans : — of the suhject of an inqniiy into a matter of fact, with the evidence. The state of a man's mind can only be knoAvn bv others through his acts : through his ovrn declarations, or through other conduct of his own. Consecjuently, it must often be difficult to determine whether a party intended, or whether he Avas merely negligent, heedless, or rash. The acts to which we must resort as evidence of the state of his mind, may be a/niliguous : Insomuch that they lead us to one con- clusion, as naturally as to the other. Judo-ino' fr^om his conduct, the man may have infendtd. or he may have been negligent, heedless, or rash. Either hy^jothesis would fit the ap^nearances which are open to our observation. But the difficulty which belongs to the evidence is trans- ferred to the subject of the inquiry. Because we are unable to determine udiat was the state of his mind, we fancy that the state of his mind was itself indeterminate : that it lay between the confines of consciousness and unconsciousness, without belonging exactly to either. We forget that these are antagonist notions, incapable of blending. TThen it was said by the Eoman Lawyers, ^ that Negli- gence, Heedlessness, or Eashness, is equivalent, in certain cases, to Dolus or Tatention,' their meaning (I believe) was this : — Judging from the conduct of the party, it is im^Dossible to determine whether he intended, or whether he was negligent, heedless, or rash. And. such being the case, it shall be jjresurned that he intended, and his liability shall be adjusted accordingly, provided that the question arise in a civil action. If the question had arisen in the course of a criminal pro- ceeding, then the presumption would have gone in favour of the party, and not against him. Such (I think; is the meaning which floated before their minds : Although we must infer af we take their expressions literally' that they believed in the possibility of a state of mind lying between consciousness and unconsciousness. If I attempted to explain the matter fully. I should enter upon certain distinctions between civil and criminal liability, and upon the nature of prcesumiAiones juris or legal presumptions. It is, therefore, clear to me, that Intention is always separated fr^om Negligence, Heedlessness, or Eashness, by a 444 Pervading JVotions analysed. Lect. XX precise line of demarcation. The state of the party's mind " ' is always determined, although it may be difficult (judging from his conduct) to ascertain the state of his mind. Before I quit this subject, I may observe that hasty inten- tion is frequently styled rashness. For instance, an inten- tional manslaughter is often styled rash, because the act is not premeditated, or has not been preceded by deliberate intention. Before we can distinguish hasty from deliberate intention, we must determine the nature of intention as it regards future acts. But it is easy to see that sudden or hasty • intention is utterly different from rashness. When the act is done, the party contemplates the consequence, although he has not premeditated the consequence or the act. To resume : Negligence, It is manifest that Negligence, Heedlessness, and Rash- nessfand i^^ss, are closcly allied. Want of the advertence which one's Hkenetfa d ^^^^ would naturally suggest, is the fundamental or radical distin- ' idea in each of the complex notions. But though they are gmshed. closcly allied, or are modes of the same notion, they are broadly distinguished by differences. In cases of ISTegligence, the party performs. not an act to which he is obliged. He breaks a positive duty. In cases of Heedlessness or Rashness, the party does an act from which he is bound to forbear. He breaks a nega- tive duty. In cases of Negligence, he adverts not to the act, which it is his duty to do. In cases of Heedlessness, he adverts not to consequences of the act which he does. In cases of Rashness, he adverts to those consequences of the act ; but, by reason of some assumption which he examines insufficiently, he concludes that those consequences will not follow the act in the instance before him. And, since the notions are so closely allied, they are (as might be expected) often confounded. Heedlessness is fre- quently denoted by the term ' negligence ' ; and the same term has even been extended to rashness or temerity. But the three states of mind are nevertheless distinct ; and, in respect of differences between their consequences, should be distinguished. Having tried to analyse intention (where it is coupled with will), and to settle the notions of negligence, heedlessness, and rashness, I will now trouble you with a few remarks upon certain established terms. Dolus and Culpa. 445 Bolus denotes, strictly, /ra^^cZ : — ^ Calliditas, fallacia, ma- Lect. xx chinatio, ad circumveniendnin, decipiendum, fallendum ^^^^ alteruui, adhibita.' Bj a transference of its meaning whicli is not very expli- cable, it also signifies mtention,^^ or intentional wrong : — ' In- juria qnaliscnnqne scienter admissa — 'Injuria qnam quis sciens volensque commisit.' The use of tlie term dolus for the purpose of signifying intention, may, perhaps, be explained thus : Fraud imports intention : For he who contrives or ma- chinates ad decipiendum alterum, pursues a given purpose. For want, therefore, of a name which would denote Intention generally, the Roman Lawyers expressed it (as well as they could) by the name of a something which necessarily im- plied it. It is an instance of those generalizations which are so com- mon in language : of the extension of a term denoting a species, to the genus which includes that sj^ecies. [e.g. Virtue.] Culpa (when opposed to Dolus) imports negligence, heed- Culpa, lessness, or temerity ; or any injury consequent upon any of these : ' Omnis protervitas, temeritas, inconsiderantia, de- sidia, negligentia, imperitia, quibus citi^a dolum, cui nocitum est.' But (used in a larger sense), Culpa is equivalent to the English ' Guilt.' It denotes that the party has broken a duty, intentionally, negligently, heedlessly, or rashly. ' Gene- ratim, culpa dicitur qusevis injuria ita admissa, ut jure im- putari possit ejus auctori.' In order that a given mischief may be imputed to another, ' necesse est, ut culpa ejus id acciderit.' That is to say, through his intention ; or through his negligence, heedlessness or temerity (as I h.ave explained them above). Cttlpa, therefore, is sometimes opposed to Dolus ; and it sometimes comprises Dolus. Again : the term Culpa is sometimes opposed to Negligentia, In which case, these words have a very peculiar meaning. » Culpa is restricted to deiicts (stricto sensu). Negligence denotes breaches of obligations (s. s.). The injuries done through Cidpa (in this sense) 'faciendo semper admittantur.' The injuries done ' Negligentia ' (in this sense) are com- mitted 'faciendo aut non faciendo.' Obligations (stricto sensu) are positive or negative. Bentham, Pr. 91. But for a modification of tliis statement see p. i80,^ost. 446 Pervading Notions analysed.. Lect. XX Here then Negligentia includes, Intention, Negligence " ■ ' (properly so called), Heedlessness, and Temerity. Origin of this application. JSfegligentia opposed to Dili- gentia : i. e. that care which (ex obligatione) the obliged party is often obliged to employ about the interests of another. Malice. I have already remarked upon the extension of Dolus to Intention generally. In the English law (in certain cases) we have employed the word ' Malice ' for a similar purpose. As malice {stricto sensu) implies intention, it has been extended to cases in which there is no malice. As I have already shewn, it does not in this extended sense denote the motive. And it is manifest that the motive to a criminal action may be laudable. The intention of an action suggested by a blamable motive, lawful. Dolus and A few words for the purpose of applying what has been said to Roman law Roman Law. Unintentionality, and innocence of intention, seem both to be included in the case of ioifortumum, where there is neither dolus nor culjoa. Unadvisedness coupled with heedlessness, and misadvisedness coupled with rashness, correspond to the culpa sine dolo. Direct intentionality corresponds to dolus. Oblique in- tentionality seems hardly to have been distinguished from direct ; were it to occur, it would probably be deemed also to correspond to dolus.^"^ Meanings of Dolus, etc. Dolus bonus et malus. — Miihlenbruch, vol. i. pp. 191, 332. Dolus = Voluntas nocendi. Consequently it neither includes indirect, nor sudden intention. — Miihl. 190, 330 et seq. Feuerbach,^'* 51-2, 58. Rosshirt, 37-9, 43. Bentham's Princ. Dolus indeterminatus. — Feuerb. 56. Rossh. 39. % Culpa = Crimen, Delictum, Injuria. — Rosshirt, 42. Culpa = Guilt : Dolus et Negligentia (in any of its modifications). — Feuerb. 78-9. Rossh. 35, 42. Miihl. 326, 330 et seq. Culpa as opposed to Dolus. Includes indirect and hasty intention, Trustees, Bailees, etc. Conditions of imputation : ^2 Bentham, 'Principles,' etc. pp. 89, 1. Knowledge, actual or possible, on 115, 132, 142. the part of the accused, of the criminality It is included in culjoa. [Scientia, of his act or omission : but without the voluntas nocendi. Prope 2. Dependence on his own wishes, of clolum, but not dolus.'] Nothing can be the forbearance or performance due. — more accurate. Marginal Note. Im])utation, Imjputahility , and Guilt. Fragments. 447 ^vitli negligence in all its modifications. — Feuerb. 51-3, 54-5, 80. Lect. XX Rossli. 42-3-4. Miihl. 330 et seci. ^ Culpa dole determinata. — Feuerb. 47. Rossli. 39. !N'egligentia ob obligationis Yincnliim prasstanda. — !Miihl. 333. Mackeldey, ii. 160. Injuria, Delictum, Crimen. — Miilil, 325-6, 185. Feuerb. 24. Rossli. 2. Injuria (generaliter) = ' Omne quod 7?0/i jure fit.' — Justinian. The obvious division is into 1°, "Wrongful Intention with its various modifications, 2°^ Wrongful inadvertence vrith, etc. Inconsistencies consequent upon putting indirect and sudden in- tention into culjjii, and excluding them from dolus. — Feuerb. 80. Rossh. 86. 448 Table applicable to Lecture XX, Lect. XX .5^ P5 ^ / 02 (X) " r=l O bD o bD o s a .2 o ? ^ ^ -5 ^ •'S Intention to do a ftUure Act. 449 LECTUEE XXI. INTENTIOJ^ FURTHER CONSIDERED. Intentions coupled with voli- The intentions wliich. I considered in my last lecture, are Lect. xxi coupled with, present volitions, and witli present acts. The party wishes or wills certain of the bodily movements which immediately follow our desires of them : He expects tions and or believes, at the moment of th.e volition, that th.e bodily movements which lie wills will certainly and immediately follow it : And he also expects or believes, at the moment of the volition, that some given event or events will certainly or probably follow those bodily movements. In other words, he presently %mlls some given act ; in- tending the act (as the consequence of the volition), and intending some further event (as the consequence of the volition and the act). But a present intention to do a future act, is neither Present in- coupled with the performance of the act, nor with a present do a future will to do it. The present intention is not coupled with the present performance of the act. For the intention, though present, regards the future. Nor is it coupled with a present will to do the act intended. For to will an act is to do the . . intention. act, provided that the bodily organ, which is the instrument of the volition and the act, be in a sound or healthy state. Consequently, to do an act with a present intention, is widely different from a present intention to do a future act. In the first case, the act is willed and done. In the second case, it is neither willed nor done, although it is intended. act, dis- tinguished from an act with a pre- sent voli- A present intention to do a future act, may (I think) be Present in- tention to resolved into the following elements, do a future First, The party desires a given object, either as an end, or as a mean to an end. Secondl}^, He believes that the object is attainable through acts of his own : Or (speaking more properly) he believes that acts of his own would give him a chance of attaining it. Thirdly, ILe presently believes that he shall do acts in future, for the purpose of attaining the object. A helief ' that the desired object is attainable through acts Distin- of our own,' and ' that we shall do acts thereafter for the from^a sim- purpose of attaining: it,' are necessary constituents of the pie desire of ^ ^ o 7 J ^j^g object. VOL. I. G G 450 Pervading Notions analysed. Lect. XXI complex notion wliicli is styled ' a present intention to do a ^~ ■ ^ future act.' If these be absent, we simply desire tbe object. Unless I believe tliat the object be attainable tbrough. acts of my own, I cannot presently believe that I shall do acts hereafter for the purpose of attaining the object. I cannot believe that I shall try to attain an object, knowing that my efforts to attain it are utterly ineffectual.®^ Intention supposes that the object is attainable through conduct of our own. Or (as it is commonly said) that the attainment of the object depends upon our will. And though I believe that the object be attainable through acts of my own, I simply desire or barely wish the object, unless, I pre- sently believe that I shall do acts hereafter for the purpose of attaining it. For example, if I wish for a watch hanging in a watch- maker's window, but without believing that I shall try to take it from the owner, I am perfectly clear of intending to steal the watch, although I am guilty of coveting my neighbour's goods (provided that the wish recur frequently). The belief ' that the desired object is attainable through acts of our own,' is necessarily implied in the belief ' that we shall do acts hereafter for the purpose of attaining it.' Consequently, a present intention to do a future act may be defined to be : 'A present desire of an object (either as an end or a mean), coupled with a present belief that we shall do acts hereafter for the purpose of attaining the object.' It may also be distinguished briefly from a present volition and intention, in the following manner : In the latter case, we presently will, and presently act, expecting a given consequence. In the former case, we neither presently will nor presently act, but we presently expect or believe that we shall will hereafter. When we will a present act, intending a given consequence, it is frequently said ' that we will the consequence as well as the act.' And when we intend a future act, it is frequently | said ' that we will the act now, although we postpone the execution to a future time.' In either case, will is confounded with intention. When we intend a future act, it is also commonly said Present in- tention to do a future act, re- stated. Confusion of Will and Intention. Kg. Desire to be King. But no Kingly Office : i.e. to pursue a course ot man in a private station (unless he be conduct leading him to the throne, a madman) can intend to aim at the Intention to do a futitre Act. 451 ^ that we resolve or determine to do it or ' that we make Lect. xxi up our minds to do it.' Frequently, too, a verbal distinc- ' ^ tion is taken between a strong and a weak intention ; that is to say, between a strong- or a weak belief that we shall do the act in future. Where the belief is strong, we are more apt to say *^that we intend the act.' Where the belief is weak, we are more apt to say ^ that we believe we shall do it.' Such being the forms of language, it is somewhat difficult to admit, at first hearing, ' that a present intention to do a future act is nothing but a present belief that we shall do an act in future.' But that nothing but this really passes in the mind, any man may convince himself by examining the state of his mind when he intends a future act. When we speak of ivilling a future act, we are not speak- ing of our intention to do the future act, but of our wish for the object which we believe may be attained through the act. Or, rather, our wish for the object, and our intention of resorting to the mean, are blended and confounded. And as every volition is a desire, and is also coupled with an in- tention, the compound of desire and intention is naturally styled a volition, although it is impossible (from the nature of the case) that we can will an act of which we defer the execution. When we say ' that we have resolved or determined on an act,' or ' that we have made up our minds to do an act,' we merely mean this : ' that we have examined the object of the desire, and have considered the means of attaining it, and that, since we think the object worthy of pursuit, we believe we shall resort to the means which will give us a chance of getting it.' Here, also, the desire of the object is confounded with the belief which properl}^ constitutes the intention. Every genuine volition being a desire, and every genuine volition being coupled with an intention, we naturally extend the terms which are proper to volitions to every desire which is com- bined with an intention. It is clear that such expressions as ' determining,' ' re- solving,' ' making up one's mind,' can only apply in strictness to ' volitions :' that is to say, to those desires which are instantly followed by their objects, and by which it may be said that we are concluded, from the moment at which we conceive them. He who wills necessarily acts as he wills, and cannot will (with effect) that he will retract or recall gq2 452 Pervading Notions analysed. Lect. XXI the volition. He has ' determined :' He has ' resolved He has ' made up his mind.' He is concluded by his own volition. He cannot un-wi\l that which he has willed. But when such expressions as ' resolving ' and *^ determin- ing ' are applied to a present intention to do a future act, they simply denote that we desire the object intensely, and that we believe (with corresponding confidence) we shall resort to means of attaining it. And this perfectly accords with common apprehension, although it may sound (at first hearing) as if it were a paradox. For, every intention (or every so- styled will) which regards the future, is ambulatory or revocable. That is to say, the present desire of the object may cease hereafter ; and the present belief that we shall resort to the means of attaining it, will, of course, cease with the wish for it. We cannot believe that we shall try to get that, for which we hnow that we care not. Intending a jj^ {q clear that WO mav presently intend a future for- luture tor- n bearance. bcarance as well as a future act. We may either desire an object inconsistent with the act to be forborne, or we may positively dislike the probable consequences of the act. In the first case, we may presently believe that we shall forbear from the act hereafter, in order that we may attain the object which we wish or desire. In the latter case, we may presently believe that we shall for- bear from the act hereafter, in order that we may avoid the consequences from which we are averse. [Every present forbeara.nce from a given acifc, is not pre- ceded or accompanied by a present volition to do another act. It may be preceded or accompanied by mere inaction, e.g. I may lie perfectly still, intending not to rise. But, still, it is generally true, that every present forbear- ance is preceded or accompanied by a volition. In our waking hours, our lives are a series (nearly unbroken) of volitions and acts. And, when we forbear, we commonly do a something inconsistent with the act forborne, and which we are conscious is inconsistent with it.] Where a forbearance is preceded or accompanied by in- action, the desire leading to the forbearance is not to be compared to a volition. The forbearance is not, like the act, the direct and appropriate object of the wish. All that can be said (in generals) of intentions to act in future, may be applied (with slight modifications) to inten- Intention to do a futmx Act. 453 tions to forhear in future. I confine myself to intentions to Lect. xxr act in future, in order that my expressions may be less com- ^~ ' ' plex, and, by consequence, more intelligible. "Wlien we intend a future act, we also intend certain of An in- its consequences. In other words, we believe that certain sequence°of consequences will follow that future act, which we presently an intended believe we shall hereafter will. This is necessarily implied is not in every intention of the sort. For our present wish or desire gJjTg^; of some probable consequence of the act, is our reason for believing presently that we shall do the act in future. But Ave may also intend or expect that the act may be followed by consecpences, which we do not desire, or from which we are averse. For example ; I may intend to shoot at and kill you, so soon as I can find an opportunity. But knowing that you are always accompanied by friends or other companions, I believe that I may kill or wound one of these in my intended attempt to kill you. Here, the object which I wish or desire is your death. I intend the act, or I believe that I sJiall will it, because I desire your death. But I also believe that the act will be followed by a consequence from which I am averse : — by a consequence which is not the ground of my present intention, although I intend in spite of it, I intend a future act. I intend a consequence which I desire. And I also intend a consequence from which I am averse. The execution of every intention to do a future act, is necessarily postponed to a future time. Every intention to do a future act, is also revocable or ambulatory. That is to say, Before the intention be carried into execution, the desire which is the ground of the inten- tion may cease or be extinguished, or, although it continue, may be outweighed by inconsistent desires. But though the execution of the intention be always con- tingent, the intention itself may be certain or uncertain. I may regard the intended act as one which I shall certainly will ; or I may regard it as one which I shall will, on the happening of a given contingency. In either case, I may Are ma either intend a precise and definite act, or I may merely intend some act for the purpose of attaining my object. For example ; I may intend to kill you by shooting, at a given place and time. Or (though I intend to kill you) I may neither have determined the mode by which I shaU at- tain my object, nor the time or place for executing the murderous design. In cases of the first class, the intention. Intentions to do future acts are certain or uncertain : turedor un- dio-ested 454 Pervading Notions mialysed. Lect. XXI design, or purpose, is settled, determinate or matured. In " ' ' cases of the latter class, it is unsettled, indeterminate, or undigested. Aconsiiium, It not unfrequentlj happens, that a long and complex or^ompass ggj.-gg ^^^^ means is a necessary condition to the attainment of the desired object (supposing it can be at- tained). To determine these means, or to deliberate on the choice of them, is commonly styled ' a compassing of the desired object.' Or, when the intended means are thus complicated, the intention is frequently styled consilium. Either of the terms denotes the deliberation or pondering, which necessarily attends the intention before it becomes precise. Such (I think) are the proper meanings of compassing and consilium. Where the intended means are few and simple, there is no necessity for that long and laborious delibera- tion, which seems to give to the intention (in the cases in question) the names of ' compassing ' or consilium. It must, however, be confessed, that the terms are fre- quently applied loosely. In the language of the English Law, you would compass and imagine the death of the King, although you intended to slay him by the shortest and sim- plest means. For instance, by shooting him with a rifle in a theatre. And, in various books, I have seen the word ' consilium ' used for ' propositum ' or intention. It is only by the complexity of the means, that a compass- ing or consilium is distinguished from another intention. In all other respects, the two states of mind are exactly alike. There is a present desire of a given object, with a belief that we shall resort to means (precise or indeterminate) for the accomplishment of the desire. Attempts.86 It frequently happens that the desired object is not accom- plished by the intended act. For example, I point a gun, and pull the trigger, intending to shoot you. But the gun misses fire, or the shot misses its mark. In this case, the . act is styled an attempt : an attempt to accomplish the desired object. It also frequently happens, that several acts must be done in succession before the desired object can be accom- plished. And the doing any of the acts which precede the last, is also an attempt to accomplish the desired object, or ' Delictum consummatum. Conatus bringung eines Verbrechens ^wm Zwecl:e delinquendi.' Consummate Crimes and hat, ohne den bezweckten verbrecher- Criminal Attempts. — Feuerhach, p. 41. ischen Thatbestand wirklich zu machen, ' Eiue Handlung, welche die Hervor- ist ein Versuch.' — Bosshirt, p. 85. Intention, different Applications of the Terjii. 455 is rather an endeavour towards the accomplishment of the Lkct. xxr object. For example ; to buy poison for the purpose of killing ' ' another, or to provide arms for the purpose of attacking the king, are attempts or endeavours towards murder or treason. Attempts are evidence of the party's intention; and, con- sidered in that light, are styled in the English Law, ' overt acts.' Where a criminal intention is evidenced by an attempt, the party is punished in respect of the criminal intention.^'' Sometimes he is punished as severely as if he had accom- plished the object. But more commonly, with less severity. Why the party should be punished in respect of a mere intention, I will try to explain hereafter. The reason for requiring an attempt, is probably the danger of admitting' a mere confession. When coupled with an overt act, the confession is illustrated and supported by the latter. When not, it may proceed fi'om insanity, or may be invented by the witness to it. I have considered the import of the term ' Intention,' in order that I might elucidate the general nature of Injuries and Political Sanctions. But the word intention is often employed, without refer- ence to wrongs. We speak of the intention of the legislator, intention in passing a law ; of the intention of testators ; of the in- huor,^tc. tention of parties to contracts ; and so on. In each of these cases, the notion sigTiified by the term ' Intention ' may be reduced to one of the notions which I have already endea- voured to explain : namely, a present volition and act, with the expectation of a consequence ; or a present belief, on the part of the person in question, that he will do an act in future. When we speak of the intention of the legislator, we either advert to the purpose with which he made the law : or we advert to the sense which he annexed to his own expressions, and in which he wished and expected that others would un- derstand them. If we advert to the purpose wdth which he made the law, we mean that he willed and performed a given act, expecting 2L given consequence. In order that he might attain the purpose, he made and published the law. And when he made and promulged it, he intended the purpose : that is to I Tenture to think, in accordance is punished is an act, evidenced by the ■with my remarks in the note on p. 427 overt act. — E. C. ante, that the ratio of this punishment Example of man punished for con- is more simple, and that the co7i- fessed intention (without overt act) to silium or cogitatio for which the party kill Henry III. of France. Pervading Notions analysed. Lect. XXI say, lie ex]yeded or helieved tliat tlie purpose wliicli moved "~ ■ ' liim to make and promulge it, would follow the making and promulgation as a consequence. If we advert to tlie sense wliich lie attaclied to liis own expressions, we also mean tliat lie willed and performed an act, expecting a consequence. We mean that he used expressions with a certain sense, expecting that those to whom he addressed them would receive them in the same sense. The intention of the testator regards the purpose of the provision, or the sense which he attached to his words. In either case, we mean hj ' his intention,' that he did a certain act expecting a certain consequence : That he made the pro- vision, expecting the purpose would follow it ; or that he used his words with a certain sense, expecting that others would understand them in the same sense. When we say, that ' the will or intention of the testator is ambulatory,' we mean that ' he may will and intend anew.' When we speak of the intention of contracting parties, we mean the intention of the promisor, or the intention of the promisee. If we mean the intention of the promisor. Or rather, the sense in which it is he disappoints an expectation, to be inferred from the words used, or The true rule is the understanding of from the transaction, or from both, that both parties. The yery use of Paley's the one party gave and the other re- rule shews that it embraces both. In ceived it. Paley's rule wotild lead to the example, Paley seems to confound this; that a mistaken apprehension of the sense which the promisor, in common the apprehension in which the promisee with all, must have put on his promise, received, would exonerate the promisor, with his secret intention of breaking it. This would be to disappoint the promisee. (See ' Intention,' regarding future.) If the apprehension of the promisee did The sense of the promise, i.e. the mean- not extend to so much as the promisor ing which each party apprehends that the apprehends that it did, it is true that words or transaction must denote, is a the promisor is not surprised by a more totally different thing from the intention onerous obligation than he expected ; with which it is made. The one uses, but then there is no reason for giving the and he knows he uses, words of such an promisee an advantage which he did not import ; the other hears words which expect: pain of loss being greater than he knows to be of the same import; the mere pleasure of gain ; which this from these words ensue an obhga- advantage would be : there being, by the tion, the extent of which each knows, supposition, no expectation and therefore and the compulsory performance of which no engagement in consequence. in terminis would not disappoint the ex- If on the other hand the promisor un- pectations of the parties, whatever might derrates the expectation of the promisee be their intentions. ' Where the terms of a promise admit of more senses than one, the promise is to be performed " in that sense which the promisor apprehended, at the time that the promisee received it." ' It is not the sense in which the pro- miser actually intended it, that always governs the interpretation of an equivo- cal promise ; because, at that rate, you might excite expectations which you never meant, nor would be obliged, to satisfy. Much less is it the sense in which the promisee actually received the. promise ; for, according to that rule, you might be drawn into engagements you never designed to undertake. It must Intention of contracting Parties, 457 we mean Ms intention as it regards the jperformance of his Lect. xxi promise, or we mean his intention as it regards the nature ' ' or extent of it. In the first case, we mean that he intends (when he makes the promise) to do or forbear in future. In the second case, we. mean that he makes a certain pro- mise, expecting that the promisee wiU understand it in a certain sense. In the first case, we mean that he believes he shaU do or forbear in future. In the second case, we mean that he does a present act, expecting a given conse- quence. If we mean the intention of the promisee, we mean that he accepts the promise, understanding it in a certain sense, and expecting a future consequence : namely, that the pro- misor will perform it. He does a present act, expecting a given consequence. LECTURE XXII. DUTY, UfJURY, AND SAI^CTION. I HAVE endeavoured to analyse and to fix the meanings Lect. of the following related expressions : — ' Motive,' ' Will,' ^^J^L ' Intention ;' ' Negligence,' ' Heedlessness,' ' Rashness.' I now proceed to the essentials of Injury and Sanction, and of that Compulsion or Restraint which is imported by Duty or Obligation. Every legal duty (whether it be relative or absolute, or Duty, whether it be officium or ohligatio) is a duty to do, or forbear from, an act or acts, and is imposed by a Command (express or tacit) of the person or body which is sovereign in a given society. As every injury or wrong is a breach or violation of duty. Injury, it supposes that an act enjoined is not done, or that an act forbidden is done. A party Ijing under a duty, or upon whom a duty is in- Sanction, cumbent, is liable to evil or inconvenience (to be inflicted by sovereign authority), in case he violate the duty, or disobey the command which imposes it. The evil to be incurred by therefore be the sense (for there is no promise.' — Pal ey, Moral and Polit. Philo- other remaining) in which the promiser soi)hy, rol. i. chap. v. believed that the promisee accepted his 458 Pervading Notions analysed. noxious- ness to a Sanction Lect. tlie party in case lie disobey the command, o^^forces compli- XXII ance with the command, or secures the fulfilment of the duty. In other words, it inclines the party to obey the com- mand, or to fulfil the duty or obligation which the command imposes upon him. By reason of his liability or obnoxious- ness to the eventual or conditional evil, there is a chance that he will not disobey : A chance which is greater or less (foreign considerations apart), as the evil itself, and the chance of incurring it by disobedience, are greater or less. The eventual or conditional evil to which the party is ob- noxious, is styled a 'Sanction-,^ or the Law or other Command is said to be sanctioned by the evil. Obiiga-^ ' To be obliged to do or forbear,' or ' to lie under a duty or obligation to do or forbear,' is to be liable or obnoxious to a sanction, in the event of disobeying a command. In other words, ' to lie under an obligation to do or forbear,' is to be liable to an evil from the author of the command, in the event of disobedience. The party is hound or obliged to do or forbear, because he is obnoxious to the evil, and because he fears the evil. To borrow the current, though not very accurate expressions, he is compelled by his fear of the evil to do the act which is enjoined, or is restrained by his fear of the evil from doing the act which is forbidden. Sanction The difference between Sanction and Oblisration is simply and Obliga- , , . b r j tion distin- tniS : guished. Sanction is evil, incurred or to be incurred, by disobedience to command. Obligation is liability to that evil, in the event of disobe- dience. Obligation Obligation regards the future. An obligation to a past futurel^ act, or an obligation to a past forbearance, is a contradic- tion in terms. If the party has acted or forborne agreeably to the com- mand, he has fulfilled the obligation wholly or in part, and the obligation has wholly or in part ended or ceased in re- spect of that act or forbearance. And here there is a certain difference between positive and negative duties. The end or scope of positive duties, and of the jura in personam which correspond to them, is the per- formance of that to which the party obliged by the duty is bound. But the scope or purpose of negative duties, and of the rights with which they correlate, is not the observance of the office or obligation; although that observance is a Dtity and Sanction. 459 necessary condition to the enjoyment or exercise of tlie lect. right. A positive obligation, therefore, is determined by fulfilment, but an office or negative obligation is not deter- mined by fulfilment, but by an event extraneous to the duty, namely, the extinguishment of the right with, wbich it cor- relates, or of a'rio^lit which it reo-ards or concerns. The performance of a positive duty extinguishes both the duty and the corresponding right : a negative duty is never extin- guished by fulfilment, though if the right be extinguished by another cause, the duty ceases. This difference between positive and negative duties, has been erroneously supposed to be a difference between offices • and obligations ; a confu- sion of ideas pregnant with, important misconceptions, and which obscures th.e difference between offices and obligations, between j?tra m rem and jura in ]jersonam. If, on the other hand, the party has disobeyed the com- mand by action, forbearance or omission, he has actually incmTed tlie sanction, or is actually liable to the application of the sanction. And, in respect of the forbearance which lie has not observed, or in respect of the act which lie has forborne or omitted, the duty or obligation to which the sanction was annexed, has (as before), wholly or in part, ended or ceased. The sanction which, has attached upon him may consist of a new obligation, but that obligation to which the sanction was appended, has (wholly or in part) determined. It is not uiifrequently said ^that Sanctions operate upon Sanctions the Will/ and ' that men are obliged to do or forbear through. J^po^^^L their wills.' desires. It were more correct to say ' that Sanctions operate upon the desires/ and ' that men are obliged to do or forbear through their desires/ Stated plainly and precisely, the fact is this : The party obliged is averse from the conditional evil, which, he may chance to incur in case he break tlie obligation : In other words, lie wishes or desires to avoid it. But, in order that he may avoid the evil, or may avoid the chance of incurring it, lie must fulfil the obligation : He must do that which, the Law enjoins, or must forbear from that which, the Law prohibits. That every sanction operates upon th.e desires of the ob- liged, is true. For he is necessarily averse from the evil with, wbich. he is threatened by the Law, as he is necessarily averse from every evil whatsoever. That every saiiction operates upon the luill of the obliged. Pervading Notions analysed. is not true. If tlie duty be positive, and if lie falfil the duty out of regard to the sanction, it may be said with propriety that the sanction operates upon his will. For his desire of avoiding the evil which impends from the Law, makes him do, and, therefore, will, the act which is the object of the command and the duty. But if the duty be negative, and if he fulfil the duty out of regard to the sanction, it can scarcely be said with propriety that the sanction operates upon his will. His desire of avoiding the evil which im- pends from the Law, makes him forbear from the act which the Law prohibits. But, though he intends the forbearance, he does not will the forbearance. He either wills an act which is inconsistent with the act forborne, or he remains in a state of inaction which equally excludes it. In the former case, he does not will the forbearance. In the latter case, he wills nothing. If, then, the party fulfil his duty, and if he fulfil his duty out of regard to the sanction, the fact, precisely stated, is this : He is obnoxious to evil from the Law, in case he vio- late his duty. This conditional evil, like every possible evil, he necessarily wishes to avoid. And, in order that he may avoid the evil with which he is threatened by the Law, he wills the act, or intends the forbearance, which the Author of the Law commands. Again : Every sanction operates upon the desires of the obliged, although he violate the duty. If he do an act which the Law forbids, or if he forbear from an act which the Law enjoins, he desires to avoid the evil with which he is threatened by the Law, although that desire be mastered and suppressed by a conflicting and stronger desire. And, if he omit an act which the Law enjoins, he habitually desires to avoid the conditional evil, although, at the moment of the omission, he forgets the sanction and the duty. But, when the obliged party violates his duty, it is manifest that the sanction does not oj)erate upon his will, although it affects his desires. If he do an act which the Law forbids, he wills an act in spite of the sanction. If he violate his duty by forbearance or omission, he does not will an act which the Law enjoins, and which it is the scope and pur- pose of the sanction to mahe him ivill. It is, therefore, not true, or is not true universally, that ' Sanction operates upon the ivill of the obliged ; or ' that the party is obliged through his ivill.^ But it is true, and is Sanction. 461 true universallj, ' tliat Sanction operates upon the desires of Lect. the obliged,' or ' that the party is obliged through his desires.' ^^i^^L^ For to affirm that is merely to affirm this: — 'That the party is necessarily averse from every evil ; and necessarily wishes to avoid the evil by which the command is sanctioned.' I said, in a former Lectin^e, that an obligation to will is -"^n obiiira- impossible.^^ Why I said so, I am somewhat at a loss to see. not impos- For it is quite certain, that the proposition is grossly false, and is not consistent with my own deliberate opinion. We are obliged to will, whenever our duties are positive: that is to say, whenever we are obliged to act. The Law threatens us with the sanction, in order that we may act; and in order that we may act, we must will. This, it is manifest, is the meaning of the proposition 'that we are bound to act through our luills.' The force of the obligation lies in our desire of avoiding the threatened evil. But, in order that we may avoid that evil by performing the obliga- tion, we will the act which is commanded. And this is true. For acts and their consequences are the objects of positive duties; and every volition is followed by the act which is willed, if the appropriate bodily organ be sound or healthy. Perhaps, I confounded desires (as contra- distinguished from volitions) with those peculiar desires which are styled 'volitions.' Or, perhaps, I intended to affirm that we cannot be obliged to desire, in the sense wherein desire is opposed to ivill. And this is also true. And here I may remark that we cannot be obliged to An obii- desire or not to desire; i.e. to desire that which the Law desire not enjoins, or not to desire that which the Law forbids : For possible, although we desire to avoid the sanction, we are not therefore averse from that which the law forbids, nor do we therefore incline to that which the law enjoins. In spite of our aversion from the evil with which we are menaced by the law, we may still desire that which the law forbids, or may desire to evade that which the law exacts : Although our necessary desire of avoiding the sanction, may be stronger than the opposite desire which urges us to a breach of our duty. The desire of avoiding the sanction may control the opposite desire, but cannot supplant or destro}^ it. The passage referred to, not being ' We cannot, speaking correctly, be ob- contained in the lectures as formerly pub- liged to will, though we are obliged lislied, I have not restored in its place, through our will. Neither can we, Eut I find that in J. S. M. s notes it fol- strictly speaking, be obliged to suffer.' lows the sentence ending on the 1 1th — E.G. line of p. 378 ajite, and runs thus : — 462 Pervading Notions analysed. Lect. XXII Supposed conflict of desire and EfFect of oblifration in extin- guishing desires Or if it can destroy it, it can only destroy it in the oblique or indirect manner to which I shall advert immediately. It is equally manifest, that we are not obliged to our desire of avoiding the sanction. We are not hound or obliged to entertain the desire ; but we are bound or obliged, because we are threatened with the evil, and because we inevitably desire to avoid the evil. We are not obliged to entertain the desire, but we are obliged because we entertain it. When we desire that which the Law forbids, or when we are averse from that which the law enjoins, we observe our duty (supposing we do observe it) because our aversion from the sanction tops the conflicting wish. In these, and in similar cases, it is not unusual to suppose a conflict between desire and will. Because we will a some- thing from which we are averse, it is imagined that we will against our desires. The truth, however, is, that there is no conflict between desire and will, although there is a conflict between inconsistent desires. I wish to forbear from that which the law enjoins, or I wish to do that which the law prohibits. But I also wish to avoid the evil with which I am threatened by the Law. And as my wish of avoiding this evil is stronger than the opposite wish, I will that which the law enjoins, or I forbear from that which the law forbids. I do not will or forbear against my desires, but I will or forbear in compliance with a stronger desire, instead of forbearing or willing in compliance with a weaker desire. It is truly astonishing that this obvious solution of the difficulty escaped the penetration of Mr. Locke. It is of no small importance that the difficulty should be clearly con- ceived, and the solution distinctly apprehended. For I be- lieve that the mysterious jargon about the nature of the will has arisen entirely from this purely verbal puzzle. If we suppose that the Will can control the Desires, or that man can will against his desires, we must suppose that will and desire are utterly distinct and disparate ; we cannot, consistently with such a supposition, admit that volitions are a class of desires, and are merely distinguished from other desires by a certain specific difference : namely, that they are followed immediately or without the intervention of means, by their direct or appropriate objects. I have said that we cannot be obliged not to desire ; that the desire of avoiding the sanction may master or control, but cannot extinguish a desire which urges to a breach of duty. Sanction. 463 But this, tlioiigli true in the main, must be taken with an lfxt. important qualification. xxii The desire of avoiding the sanction cannot destroy directly ^vhich urge the conflicting and sinister desire. But the desire of avoiding ^utv.^*^^ the sanction may destroy the antagonist desire, gradually or in the icay of association. The thought of the act or for- bearance which would amount to a breach of duty , is habitually coupled with the thought of the evil which the Law annexes to the vTL'ong. If our desire of avoiding the evil, which the Law annexes to the vn-ong, be stronger than our desii'e of the consequences which might follow the act or forbearance, we regard the latter as a cause of probable evil, and we gradually transfer to the cause our aversion from the effect. Oui' stronger desu-e of avoiding the Sanction, gradually ex- tinguishes the weaker desire. Our wish for the agreeable consequences which might follow the wi^ong, is absorbed by our wish of avoiding the evil which the wrong would probably induce. TTe regard the vri^ong as a cause of evil, and we dislike it accordingly. This is merely a case of a familiar and indisputable fact. Objects originally agreeable become disagreeable on account of their disagreeable consequences. And objects originally pleasing become displeasing by reason of painful consequences with which they are pregnant. This gradual effect of sanctions in extinguishing sinister desires, is matter of familiar remark, and is expressed in various ways. Owing to the prevalent misconceptions re- garding the nature of the will, the effect which is really v\T.-ought upon the state of the desires is frequently ascribed to the will. It is forgotten that the will is merely an instru- ment of the desh^es ; and that every change in disposition and conduct is a change in the dominant desires, and not in the subject wiU. We are told, for instance, by Hobbes, in his ' Essay on Libei-ty and Necessity,' ' that the habitual fear of punishment maketh men just 'that it fi^ames and moulds theii' I'riUs to justice.' The plain and simple truth is this : that it tends to quench wishes which urge to breach of duty, or are adverse to that SYhicli is jussum or ordained. Where the fear of the evils which impend from the Law has extinguished the desires which ui-ge to breach of duty, the man is just. He is not compelled or restrained by fear of the sanction, but he fulfils his duty spontaneously. He is moved to right, and is held from wrong, by that habitual 464 Pervadmg Notions analysed. Lect. aversion from wrong or injury, wMcli tlie habitual fear of the 3^11^ sanction has gradually begotten. The man who fulfils his duty because he fears the sanction, is an 'M^ijust man, although his conduct be just. If he could violate his duty without incurring the evil, his conduct would accord with the desires which urge him to break it. In short, the fear of the evils by which our duties are sanctioned, cannot extinguish instantly or directly the desires and aversions which urge us to violate our duties. But the fear of those evils may extinguish these desires and aversions gradually or in the way of association. Our necessary aversion from the evils with which we are threatened by the Law is often transferred by insensible degrees to the injuries or wrongs which might bring those evils upon us. Our fear of the sanction is changed into hate of the offence. Instead of fulfilling our duty through fear of the sanction, we fulfil our duty through that aversion from wrong which the habitual fear of the sanction has slowly engendered. We come to love justice with disinterested love, and to hate injustice with disinterested hate. So far as we fulfil our duties through these disinterested afiections, we are just. ' Justitia est perpetua voluntas suum cuique tribuendi.' So far as we are moved to fulfil them by the evils with which they are sanctioned, we are unjust men, although our conduct be just. For if we were freed from the fear which compels or restrains us, our conduct would accord with the sinister desires and aversions, which solicit or urge us to violate our duties. When I affirm that our fear of the evils by which our duties are sanctioned is frequently transmuted into a disin- terested hate of injustice, I am far from intimating that that fear is the only source of this beneficent disposition. The love of justice, or the hate of injustice, is partly generated (no doubt) by a percej)tion of the utility of justice ; and by that love of general utility which is felt by all or most men more or less strongly. But it is also generated, in part, by the habitual fear of sanctions. And to this consideration my attention is particularly directed. For my purpose is not to analyse the sources of the beneficent disposition, but to dis- tinguish the remote effect of obligations and sanctions from the immediate or direct : — to shew that sanctions may inspire us with a disinterested love of justice, although they compel us to right, or restrain us from wrong, in case that useful sentiment be absent or defective. Sanction. 465 When the desires of the man habitually accord with his Lk. duty, we say that the man is disposed to justice, or we style . the state of his mind a disposition to justice. And this dis- position to justice is a ground for mitigation in measuring out punishment or in measuring out censure. Every legal crime should be visited with legal punishment, and every offence against morals should be visited with repro- bation. But when the circumstances of the offence indicate a disposition to justice, or indicate any disposition which is generally useful or beneficent, utility requires that the punish- ment should dwiinish, or that the censure should soften ac- cordingly. The general consequences which would ensue if the offender passed with impunity, render it expedient that it should be visited with punishment or censure. But since there would be few offences if good dispositions were gene- ral, it is also expedient to mitigate the j)''^iiishment or cen- sure, with a view to the good disposition manifested by the criminal. And this, accordingly, is the usual habit of the world. The occasional aberrations of a man who is habitually just or humane, are treated with less severity than the offences of the dishonest and the cruel. The amount of punishment is frequently determined by this consideration ; or (although the nature of the offence exclude mitigation of punishment) public reprobation falls with comparative lenity. The ne- cessity of inflicting the punishment is generally perceived and admitted, but the offender is regarded with a feeling which approaches to compassion and regret, rather than to antipathy and exultation. Where the desires of the man are habitually adverse to his duty, we say that the man is disposed to injustice, or style the state of his mind a disposition to injustice. Owing to the prevalent misconceptions about the nature of will, we frequently style the predominance of pernicious desires, a depraved or wicked will. Sometimes, indeed, we mean by a depraved or wicked will, a deliberate intention to do a criminal act. Although it is perfectly manifest, that badness or goodness cannot be affirmed of the will, and that a criminal intention may accord with a good dis- position. VOL. I. H E 466 Pervading Notions analysed. Lect. XXII (See Leibnitz. Schelling and Kant in Ritter and Krug. Coleridge. What they meant by freedom of the "Will was not that we desire without a determining cause, or that we will against our desires, but that, in the cases in question, our desires or wills go with our duties, i. e. we desire to perform our duty more than anything else. The term * Sanction ' denotes the conditional evil, which is an- nexed by the Sovereign to the Command. The term ' Obligation ' imports the same object considered from a certain aspect. It denotes present liability to that contingent evil, in case the duty be broken, or the command be disobeyed. The Latin Ohligatio denotes the operation of the sanction upon the will of the obliged. It is manifest that the Latin ohligatio is equivalent to ligamen or vinculmn. The position of a party obnoxious to a contingent evil, is likened to that of a party who is tied to a given place. These names, especially the first and last of them, suggest an obsen^ation upon the ethical views maintained by the author in these lectures. The author recognises an absolute standard of what is good and true, not (with Kant) as a necessary form of thought, but as consisting in the Divine law which is set to man by a superior, namely the Divine intelligence. The indices to that law he states to be Ee- velation and Utility, and the position on which he insists at length in the intro- ductory lectures is this ; that, apart from Eevelation, Utility is the only index, measure, or test of the Divine law — con- formity to the law ascertained by Utility, the only aim which ought to control the desires. But the sphere of Eevelation he passes in silence ; a reserve which obhges him to leave untouched the ques- tion, how far it is possible for human intelligence and desire to reach forward beyond experience, in the direction of conforming themselves to the Divine in- telligence and the Divine will. The position thus taken up by the author, is a very strong one ; and ad- mirably adapted to the purpose of an entry into the field of jurisprudence. But I cannot help noting that, in regard to the entire field of ethical science, this position is comparatively narrow, and that its bounds have been left by the author undefined. And they are neces- sarily indefinite. For I conceive that, as a measure or test, utility may well be extended far within the sphere of Eeve- lation ; and is the only test of Eevela- tion which the intelligence common to all mankind seems capable of applying. But that the theory of utility has availed, ex- cept to a very limited extent, in advan- cing the practical science of ethics, I take to be contrary to the teaching of history. For I confess myself a learner with those who have read history as shewing, that Eevelation has been the guide and pio- neer, in places which utility has now fenced and secured as a possession to mankind for all time coming. Provided only there be conceded to human nature divinics aliquis afflatus, which can rise above experience to the recognition and partial realisation of the good existing in God and the Divine Law, and provided all the results of such a faculty be embraced in the term Ee- velation, I readily accede to the author's rejection of a tertium quid under the name of moral sense, &c., standing be- tween Eevelation and Utility as an irdex to moral truth. An enquiry into the nature and province of Eevelation and the corresponding receptive faculty would clearly have been beyond the scope of these lectures. And as it has not been entered on, neither is it pre- jiidged.— E.G. Physical Co'.npiilsio'.t net a Sanction. 467 The Englisli duty (looking at its deriTation) ratlier denotes tlud i.ect. to which a man is obliged, than the obligation itself. It is derived. XXIII through the French devoir (past part.) and the Italian doxere^ from the Latin debere. It is, therefore, equivalent to id quod dehitiim est, rather than to ohiigatio. Same remark as to the German ' Forderung ' (equivalent to the ohiigatio of the Roman Jarists), ' Pflicht,' ' Verbindlichkeit.' By * duty ' may be meant any duty : but it commonly meant rehgious duty, or test of dtities. LECTURE XXIII. PHYSICAL COMPULSION DISTIXGUISHED FEOil SAXCTIOX. I i^ow proceed to distinguish physical compulsion or re- Lect. straint from the restraint which is imposed by duty or ,3^^ obligation. A sanction is a conditional evil : — an evil which the party obliged may chance to incur, in case he violate the obli- gation, or disobey the command which imposes it. The party obliged is obliged, because he is obnoxious to this evil in the event of disobedience, and because he is neces- sarily averse from it, or desires to avoid it. The object of every duty is an act or forbearance : Or (changing the expression) every duty is a duty to act or for- bear. But every act is the consequence of a volition, and every volition is the consequence of a desh'e : meaning by a desire, sl desire which is not a volition, or a desire strict!}- so called. Consequently, every act is the consequence of a desire. And, further, eyeiy forhearance is intended ; and is either the effect of an aversion from the consequences of the act forborne, or is the effect of a preference for some object which is inconsistent with the performance of that act. Consequently, every forbearance, like every act, is the con- sequence of a desire. Unless we are determined to obedience by disinterested hate of wrono'. we fulfil an oblig-ation because we are averse from the sanction. Our desire of avoidino- the evil which we might chance to incur by disobedience, makes us will the act which the command enjoins, makes us forbear fi'om the n H 2 468 Pervading Notions analysed. Lect. act which the commaii^ forbids. In other words, our desire of avoiding the evil, which we might chance to incnr bj dis- obedience, makes ns desire the act, or makes ns desire the forbearance. Consequently, we cannot be obliged to tliai which depends not upon our desires, or which we cannot fulfil by desiring or wishing to fulfil it. A stupid and cruel Legislator may afPeet to command tliai^ which the party cannot perform, although he desire to perform it. But though he inspire the party with a wish of fulfilling the command, he cannot attain his end by inspiring those wishes. Nor will the infliction of the pain operate in the way of example, or tend to confirm others in their desires of fulfilling their duties. Consequently, the compulsion or restraint which is implied in Duty or Obligation, is hate and fear of an evil which we may avoid by desiring : by desiring to fulfil a something, which we can fulfil if we wish. Other compulsion or restraint maybe styled merely j^/z.^- sical. For the term 'physical' or * natural' (as it is com- monly used) is simply a negative expression : denoting that from that the object to which it is applied, is not some other object which is expressly or tacitly referred to. As- applied to compulsion or restraint, it denotes that the compulsion or restraint to which it is applied, is not the compulsion or restraint which is imported by Obligation or Duty. Physical compulsion or restraint, as thus understood, may affect the body, or may aflPect the mind. For example : If I am imprisoned in a cell of which the door is locked, physical restraint is applied to my body. I cannot move from my cell, although I desire to move from it. Whether I shall quit, or whether I shall stay in my cell, depends not upon my desires. Again : I am imprisoned in a cell from which I am able to escape, but, knowing that I may be punished, in case I attempt to escape, the fear of the probable punishment de- termines or inclines me to stay there. 'Now, in this instance, the restraint which is applied to me is not physical restraint, but I am obliged to stay in my cell. My desire to escape, is not controlled or prevented by out- ward obstacles. It is controlled or prevented by my opposite or conflicting desire of avoiding the probable punishment. hether I shall quit, or whether I shall stay in my prison, depends upon my desires. Eartlier : If the judge sentence me to imprisonment, he Physical compulsion or restraint distin- guished which is imported bv duty or oblio-ation. Physical Conipulsioii 7iot a Sanction. 469 may command that I shall be dragged to prison in case I Lect. refuse to go, or he may command me to go to prison under .^1^™ peril of an additional punishment. If I refuse to go to prison, and am dragged thither by the officers without a movement of my own, physical coinpulsion is applied to my body. My body moves to the prison in obedience to an outward im- pulse, and not in compliance with volitions of my own, prompted by a desire of my own. Whether I shall move to prison, or shall not move to prison, depends not upon my desires. But if I go to prison, knowing that I shall be whipped in case I refuse to go, physical compulsion is not applied to my body, but I move to prison willingly in consequence of my ohligation to go. Much as T hate imprisonment, I hate imprisonment coupled with whipping more. My aversion from the heavier punishment, being stronger than my aver- sion from the lighter punishment ; it may be said, that I desire to go to my prison, i. e. I desire it as a mean : a mean of avoiding the greater evil, and that that desire makes me will the movements which carry my body to my prison. As I observed in a former Lecture, the dominion of the will extends not to the mind.^^ That is to say, no change in the state of the mind is accomplished by a mere desire. But, though no change in the mind immediately follows a desire for it, changes in the mind may be wrought through means to which we resort in consequence of such desires. For example, I cannot know a science by simply wishing to know it. But by resorting to means suggested by the wish, I may come to know it. By reading, writing, and meditation, I shall acquire the knowledge which I desire. And so, virtues may be acquired by indirect consequence. Numerous changes in the mind are, therefore, wrought by desires : though none of the desires which work changes in the mind, can be likened to the peculiar desires which are styled volitions. But a change in the mind may be wrought or prevented, whether we desire the changfe or whether we do not desire it. And, in all such cases, it may be said that the mind is affected by physical compulsion or restraint. The conviction produced by evidence, is a case of physical P. 426 ante. 470 Pervading Notions analysed. Lect. XXIII Obligations to sulfer and not to compulsion. If I perceive that premisses are true, and that the inference is justly drawn, I admit the conclusion, though T do not wisli to admit it, or though the truth be unwelcome, and I would reject the truth if I could. Accordingly, if I love darkness, and hate the light, I naturally eschew the evidence which might expel the grateful error. I refuse to examine the proofs which might render the truth resistless, and I dwell with complacency upon every shadow of proof which tends to confirm my prepossession.^^ I observe, that certain writers talk of obligations to suffer, and of obligations not to suffer. And, as an instance of an obligation to suffer, they cite the supposed obliga- tion to suffer punishment, which is incumbent upon a criminal. But it is clear that we cannot be obliged to suffer, or not to suffer. For whether we shall suffer, or shall not suffer, does not depend upon our desires. By acts or forbearances which do depend upon our desires, we may induce suffering upon ourselves, or we may avert suffering from ourselves ; but the sufferance or passion itself is not immediately dependent upon our wishes to suffer or not. The Criminal who is condemned to punishment is never obliged to suffer, although he may be obliged to acts which facilitate the infliction of the suffering, or may be obliged to forbear from acts which would prevent or hinder the in- fliction. For example : If I am condemned to imprisonment, I am not obliged to suffer the imprisonment, although I may be obliged to walk to prison, or to forbear from breaking prison. Whether I shall walk to prison, or shall not walk to prison, or whether I shall forbear or not from attempting to break my prison, depends upon my desires. And I can, therefore, be bound or obliged, by fear of additional punishment, to do the act, or to observe the forbearance. But whether I shall suffer the imprisonment, or shall not suffer the imprisonment, does not depend upon my desires in the last result. If, in spite of the additional punishment with which I am threat- ened, I refuse to go to prison, or attempt to break prison, I may not only be visited with the additional punishment, but physical compulsion or restraint may be applied to my body. I may be dragged to prison by the ofiicers of justice; or, when For this reason, non-belief may be examine, partiality or antipathy indi- blamable. Where (e. g.) it is the result rectly removable, etc. of insufficient examination, refusal to Traites, etc. vol. i. pp. 239, 245. Physical Compulsion not a Sanction. 471 I am there, I may be secured by Avails and chains which defy Lect. my attempts to escape. - xxiii ^ To talk of obligation to suffer, is to confound obligation with ^^^^^?^ the ultimate basis of obligation : In the last result, every what "is obligation is sanctioned by suffering : that is to say, by some sanction o? pain which may be inflicted upon the wrong-doer whether he every obii- consent or not : i. e. by some pain which may be inflicted upon the wrong-doer independently of an act or forbearance of his own. If this were not the case, and if every obligation Avere sanctioned by a further obligation, no obligation could be effectual. One obligation might be broken after another ; and as no obligation could be enforced without the consent of the wrong-doer, he would not be obliged at all. For example : I am condemned to restore a house which I detain from the owner ; to make satisfaction for a breach of contract ; to pay damages for an assault, to the injured party ; or to pay a fine for the same offence. The sanction which attaches upon me, in this the first stage, is an obligation : An obligation to deliver the house, or to pay the damages or fine. If I refuse to j^erform this obligation, I may incur a further obligation : for instance, an obligation to pay a fine or to suffer imprisonment. But if this were again sanctioned by a further obligation, and that by another, and so on, it is manifest that I should be exempt (in effect) from all obligation. Either in the first instance, or at some subsequent point, I must be visited with a sanction wdiich can be inflicted with- out my consent. Suffering, therefore, is the ultimate sanction. Or (changing the expression) every obligation is ultimately sanctioned by suffering, although (in innumerable cases to which I shall advert hereafter) the immediate sanction of the obligation is another obligation. But though suffering is the ultimate sanction, we cannot j be obliged to suffer. For that supposes that we can be ob- \ liged to a something which depends not upon our desires. The only possible objects of duties or obligations are acts and forbearances. Before I conclude I beg leave to observe, that suffering Suffering must not be confounded with physical compulsion and re- iJJlcted straint. To suffer, is to incur an evil independently of our without • • • T)llVSiC£ll own consent : a pain which is inflicted upon us, independently compulsion of an act or forbearance of our ovm. restraint. Now, though physical compulsion or restraint, is commonly « 472 Pervading Notio7is analysed. Lect. the mean or instrument by wliicli suffering is inflicted, suffer- ^J^^^^ ing may be inflicted without it. For instance, certain obli- gations are sanctioned by nullities; others again are sanctioned by penalties which are purely infamising : by a declaration, pronounced by competent authority, that the party shall be held infamous or merits infamy. In these and in other cases, the sanction is applied without the consent of the party, and without physical compulsion or restraint (or, at least, without such compulsion or restraint applied to the body). In other cases, the suffering is inflicted by physical coni- * pulsion or restraint : Or at least physical compulsion or restraint may be necessary (e. ^. Punishments which affect the body). In most of the cases, in which it may be necessary to inflict suffering by physical compulsion or restraint, the physical compulsion or restraint is, in fact, needless : because the party, knowing it may be applied, submits voluntarily. LECTURE XXIV. INJUET OR WRONG, GUILT, IMPUTABILITY. I NOW proceed to consider the import of ' guilt ' or ' imjputa- hility : ' which it is necessary to determine in order that we may fully apprehend the nature of injury or wrong. Every act and every forbearance derives its importance or interest from its positive or negative consequences : that is to say, from certain events by which it is followed ; or from its preventing events which would or might have happened, if the act done had not been done, or if the act forborne had been done. Consequently, Although acts and forbearances are the im- mediate objects of duties, the positive and negative conse- quences of the acts and forbearances enjoined, are the objects which they regard remotely. That an act or acts may be done, is the immediate purpose of a positive duty. But the production of events by which the act may be followed, or the prevention of events which may happen if the act be not done, is the more remote pur- pose for which the duty is imposed. Lrct. XXIV Immediate and remote objects of duties. Injury, Guilt, ImptUability, That an act or acts may be foreborne, is the immediate lect. purpose of a negative duty. But the prevention of events ^^ }^ _ v^hich may happen in case the act be done, or the produc- tion of events which the act might prevent, is the more remote purpose for which the duty is imposed. If the act enjoined be forborne or omitted, or if the act Forbear- forbidden be done, the positive or negative consequences, q ances, missions, which it is the purpose of the duty to produce, are certainly ^j^j^J^^^^^.^ or probably not produced : Whilst the opposite or contrary inconsis- consequences, which it is the purpose of the duty to avert, the^emote certainly or probably follow the forbearance, omission or JJJJPg^^^ act. Certain of such forbearances, omissions, and acts, are import of . . . the cognate injuries or wrongs. expressions, The persons who have forborne, omitted, or acted, are ^^^j^^f^^, guilty. Or the persons who have forborne, omitted, or putabiiity acted, are in that plight or predicament which is styled ^iJittv!^ ' guilt.' The forbearances, omissions, or acts, together with such of their consequences as it was the purpose of the duties to avert, are imjputahle to the persons who have forborne, omitted, or acted. Or the plight or predicament of the persons who have forborne, omitted or acted, is styled ' im- put ability All these expressions, it appears to me, are equivalent. They all of them denote this, and nothing but this : ' that the persons, who have forborne, omitted, or acted, have thereby violated or broken duties or obligations.' A lurong, or injury, is an act, forbearance, or omission, of such a character, that the party is guilty : And, To be guilty, is to have acted, forborne, or omitted, in such wise, that the act, forbearance, or omission, is an injury or wrong. If the act, forbearance, or omission, be an injury or wrong, and if the party be therefore guilty, the act, forbearance, or omission, together with such of its consequences as it was the purpose of the duty to avert, are imputable to the party. And if the act, forbearance, or omission, together with such of its consequences as it was the purpose of the duty to avert, be imputable to the party, the party has broken or violated a duty or obligation. (' Imputability ' is properly appli- plight or predicament of the party to cable to the culpable act, forbearance, or whom such act, forbearance, or omission, omission. It is, however, applied to the is imputable.) 474 Pervading Notions analysed. Lect. XXIV ■ ^ Intention, negligence, heedless- ness, or rashness, is of the es- sence of injury, guilt, im- putability, or breach of duty. But is not of itself injuiy, guilt, etc. Brief an- alysis of negligence and its modes ; of As I shall sliew hereafter, intention, negligence, heedless- ness or rashness, is an essentially eom^onent part of injury or wrong ; of gnilt or imputabilitj ; of breach or violation of duty or obligation. Whether the act, forbearance, or omission, constitute an injury or wrong ; or whether the party be placed by it in the predicament of guilt or imputability ; or whether it consti- tute a breach of duty or obligation ; partly depends upon his consciousness, with regard to it, or its consequences, at and before the time of the act, forbearance, or omission. Unless the party intended, or was negligent, heedless, or rash, the act, forbearance, or omission, is not an injury or wrong ; the party is not placed by it in the predicament of guilt or imputability ; nor is it a breach or violation of duty or obli- gation. But a necessary ingredient is not the compound into which that ingredient must enter before the compound can exist. An essential part is not the complex whole of which it is an essential part. Intention, negligence, heedlessness, or rashness, is of the essence of injury or wrong ; is of the essence of breach of duty ; is a necessary condition precedent to the existence of that plight or predicament which is styled guilt or imputa- bility. But intention, negligence, heedlessness, or rashness, is not of itself injury or wrong ; is not of itself breach of duty ; wdll not of itself place the party in the plight or predicament of guilt or imputability. Intention, negligence, heedless- ness, or rashness, will not place the party in the plight of guilt or imputability, unless it be followed or accompanied by an act, forbearance, or omission : by an act, forbearance, or omission which amounts to an injury or wrong, provided it be preceded and accompanied by that state of the mind. Action, forbearance, or omission, is as necessary an ingre- dient in the notion of injury, guilt, or imputability, as the intention, negligence, heedlessness, or rashness, by which the action, forbearance, or omission, is preceded or accom- panied. The notion of injury, guilt, or imputability, does not consist of either considered alone, but is compounded of both taken in conjunction. This may be made manifest by a short analysis. If I am negligent, I advert not to a given act : And, b} reason of that inadvertence, I omit the act. If I am heedless, I will and do an act, not adverting to its Component Elements of Injztry, &c. 475 probable consequences : And, by reason of that inadvertence, Lect. I will and do tlie act. v^^^I^ If I am rash, I mil and do an act, adverting to its probable intention consequences ; but, bj reason of a missupposition wMcIl I the present, examine inadvertently, I tbink that those probable conse- ^-^^^.g^^^" quences will not ensue. And, bj reason of mj insufficient gardingthe advertence to the ground of the missupposition, I will and do the act. Consequently, negligence, heedlessness, or rashness, sup- poses an omission or act, which is the result of inadvertence. To that inadvertence, as taJcen or considered in conjunction vjitli the omission or act, we give the name of negligence, heedlessness or rashness. But none of those names has the shadow of a meaning, unless the inadvertence, to which it is applied, be considered in conjunction with the omission or act of which the inadvertence is the cause. If I intend, my intention regards the present, or my inten- tion regards the future. If my intention regards the present, I presently do an act, expecting consequences : Or I presently do an act, or am presently inactive, knowing that the act which I do, or the inaction wherein I am, excludes for the present the performance of another act. In the former case, I presently do an act, intending consequences. In the latter case, I presently forbear from an act. In either case, my intention is necessarily coupled with a present act or forbearance : And the word ^ intention ' has no meaning, unless the consciousness or belief to which it is applied be considered in conjunction with that act or for- bearance. If my intention regard the fature, I ])resently expect or believe that I shall act or forbear hereafter. And, in this single case, it is (I think) possible to imagine. Whether an that mere consciousness might be treated as a lurong : might n^ither^c^n- be imputed to the party : or might place the party in the plight or predicament which is styled imvutahility or guilt. lowed by We might (I incline to think) be obliged to forbear from could be intentions, which regard future acts, or future forbearances ^lade the from action : Or, at least, to forbear from such of those in- negative tentions, as are settled, deliberate, or frequently recurring ^^l^^^^^'^^ to the mind. The fear of punishment might prevent the ante.) frequent recurrence ; and might, therefore, prevent the per- nicious acts or forbearances, to which intentions (when they recur frequently) certainly or probably lead. Be this as it may, I am not aware of a positive system of 476 Pervadmg Notions analysed. Lect. XXIV Kestriction of ['Guilt' or] 'Culpa' to Inten- tion, Negli- i^^ence, Heedless- ness, or Rashness, as the cause of Action, Forbear- ance, or Omission. Law, wherein an intention, without an act or forbearance, places the party in the predicament which is styled imputa- bility. In every positive system of which I have any know- ledge, a mere intention to forbear in future is innocent. And an intention to act in future is not imputed to the party, unless it be followed by an act unless it be followed by an act which accomplishes his ultimate purpose, or by an act which is an attempt or endeavour to accomplish that ultimate purpose. In either case, the party is guilty, because the intention is coupled with an act : and with an act from which he is obliged to forbear or abstain. For, though he is not obliged to forbear from the intention, he is obliged to forbear from endeavours to accomplish that intention, as well as from such acts as might accomplish his intention directly. Without, then, staying to inquire, whether we might be obliged to forbear from naked intentions, I assume, for the present, the following conclusion : a conclusion which ac- cords with general or universal practice. Intention, negligence, heedlessness, or rashness, is not of itself wrong, or breach of duty or obligation ; nor does it of itsel f place the party in the predicament of guilt or imputa- bility. In order that the party may be placed in that pre- dicament, his intention, negligence, heedlessness, or rashness, must be referred to an act, forbearance, or omission, of which it was the cause. Accordingly, the term ' Injury ' (or ' Wrong ') and the term ^ Breach of Duty,' is invariably applied to a compound of action, forbearance, or omission, and of intention, negligence, heedlessness, or rashness. The term ' imputability ' is also applied invariably in a similar sense. It denotes that the party has broken a duty, by some act, forbearance, or omis- sion, which was the effect of an intention he had conceived, or of his negligence, heedlessness, or rashness. But, in the language of lawyers, and especially of criminal lawyers, ' guilt ' or ' culpa ' is frequently restricted to the state of the party's mind. It c^enotes the intention of the party, or his negligence, heedlessness, or rashness ; although it necessarily connotes (or signifies indirectly) the act or for- bearance which was the effect of his intention, or the omission ®^ See Feuerbach, ' Lehrbuch des Eosshirt, ' Lehrbuch des Criminal- gemeinen in Deutschland giiltigen pein- Eechts,' p. 73. lichen Rechts,' pp. 33, 41, 42, 43. Component Elements of Injtiiy^ &c. 477 or act which was the effect of his negligence, or of his heed- Lect. lessness or temerity. .3"^JZ! In order that I may shew the meaning which is commonly annexed to ' guilt,' I will read a few passages from two trea- tises on German Criminal Law. One of them is the work of Fenerbach ; the most celebrated Criminal Lawyer now living formerly professor of Eoman and German Jurisprudence, and now president of a Court of Appeal in the Kingdom of Bavaria. The other is by Dr. Eosshirt, professor of Law at Hei- delberg. Feuerbach's book is entitled, ' Listitutes of the Penal Law which obtains generally in Germany.' The title of Dr. Rosshirt's book may be translated as follows : ' Listitutes of the Criminal Law which obtains generally in Germany : Including a particular Exposition of Eoman Criminal Law, in so far as the German is derived from it.' ' The application (says Feuerbach) of a penal Law, sup- poses that the will of the party was determined positively or negatively : that this determination of the will was con- trary or adverse to the duty imposed by the Law : and that this determination of the will was the cause of the criminal fact.' ' The reference of the fact as effect to the determina- tion of the will as ca%ise, constitutes that which is styled im- jmtation. And a party who is placed in such a predicament, that a criminal fact may be imputed to a determination of his will, is said to be in a state or condition of imptitahility ' The reference of the fact as effect to the determination of the will as cause, settles or fixes the legal character of the latter. * In consequence of that reference (or by reason of the imputation of the fact) the determination of the will is held or adjudged to be guilt : Which guilt is the ground of the punishment applied to the party.' He adds, in a note, * that the " culpa " of the Eoman Law- yers (as taken in its largest signification) , and also the '^reatus " of more recent writers upon jurisprudence, answers to the Schuld " or das Verschulden^' of the German Law.' ' Gulpa^ (as taken in its largest signification), reatus, and ^ Schuld ' (or ' das VerscJndden ') may (I apprehend) be trans- lated by the English ' Guilt.' °' He clieJ in 1833. The passage quoted is at pages 78, 79 of his work. 478 Pervadiiig Notions analysed. Lect. The languap^e of Dr. Eossliirt accords witli that of Feuer- .. . bach.^^ ' In order (sajs he) to the existence of a Crime, the xijill of line party must have been in snch a predicament, that the criminal fact may be imputed : that is to say, that the criminal fact may be imputed as effect to the state of his will as cause.' ' The term " Culpa " as used by the Eoman Lawyers, is frequently synonymous with Crime or Delict, or with Injury generally. But, when they employ it in a stricter sense, it is equivalent to the reatus of modern philosophical juris- j prudence, to the Verschulden of the German Law. It de- notes the state of the party^s will, considered as the cause of the criminal fact. It denotes the dolus, or the negligentia, of which the criminal fact is the ascertained consequence or effect.' In translating these passages I have thrown overboard certain terms borrowed from the Kantian Philosophy. For the modern German Jurists (like the Classical Jurists of old) are prone to shew off their knowledge of Philosophy, though actually occupied with the exposition of municipal and posi- tive Law. These impertinent terms being duly ejected, the meaning of the passages is clear and simple. It merely amounts to this. ^ Culpa ' (denotes the state of the party's mind : although it connotes (or embraces by implication) the positive or negative consequence of the state of his mind. But I think that the term ' Guilt,' as used by English law- yers, not only denotes the state of the party's mind, but also the act, forbearance, or omission, which was the consequence. It imports generally ^ that the party has broken a duty.' It embraces all the ingredients which enter into the composition of the wrong ; and is not restricted to one of those necessary ingredients. We say that a man is guilty of an injury, or is guilty of a breach of duty : expressions which would not be applicable, unless the term 'guilt' imported the whole offence, instead of being limited (like the term ^ culpa') to an essen- tially component part. And this extended meaning of the word guilt is likewise (I think) the meaning which convenience prescribes. A general expression for culpable intention, and for the various modifications of negligence, tends to confusion and obscurity »8 Pages 35-42. Injury. Guilt. ImpiLtaoility. 479 rather tliaii to order and clearness. I am not a^are of a lect. single instance, in wkich. it can be necessary to talk oftliem colledivdy. But it is necessary to distingidsh them in number- less instances. Before I conclude tliis subject, I Avill remark tliat the tenn fj^J^^^*^* '^Injury.' and also the term ^ Guilt," is merely the contradic- tradictorv tory of the term ' Duty ' or ' Obligation.' " ' If I am bound or obliged to do, I am bound or obliged not to pretermit the act intentionaUy or negligently. If I am bound or obliged to forbear, I am bound or obliged not to do the act intending certain consequences, or not to do the act heedlessly or rashly. I am not absolutely obliged to do or forbear, but to do or forbear ivith those various modifications. If I prEetermit an act intentionally or negligently, I break a positive duty. If I do an act intending certain consequences, or if I do an act heedlessly or rashly, I break a negative duty. An injury, or breach of duty, is therefore the contradidory of that which the Law imposing the duty enjoins or forbids : — ' Omne id C[Uod non jure fit.' Accordingly, that may be an injmy to one purpose which is not an injury to another purpose. Or (chan2"ing the ex- pression! that may be a breach of one duty, which is not a breach of another duty. I am bound not to kill with a deliherate intention of killing. I am bound not to kill with a sudden intention of killing. Each of these is a distind duty ; and the compound whole, which constitutes the corresponding injury, consists, in each case, of a distinct set of ingredients. If I kill with a deliberate intention of killing, I am guilty of Murder. But if I kill on a sudden provocation. I am guilty of Volun- tary Manslaughter. "With reference to the Law which for- bids muixler, I am not guilty, or have not committed awi^ong. To adopt the current phi^ase, there is not the corpus delicti which will sustain a charge of Mui'der. There is not de- liberate intention nor eross heedlessness. Lor corpus delicti a phrase introduced by certain modern Coi-pus civilians' is a collective name for the sum or a2"gregate of ^^^^c"- the various ingredients which make a given fact a breach of a given Law.°^ Corpus is used by the Eoman lawyers ^like For Corpm Delicti, see Fetierbacli. 75, 76. Eosshirt. 79. 48o Pervading Notions analysed. Lect. universitas) to express every whole composed of parts, as in the phrase corpus juris, which with the Eoman lawyers stood for the aggregate of the laws, though by the moderns it is applied to the particular volumes which contain Justinian's collections. Further re- Before I conclude I must correct certain mistakes which I the^iinport committed in stating the import of dolus and culpa. I said, of the word that dolus is exactly equivalent to intention, except when Dolus. (iolus is used in its original and narrow sense, to signify fraud. ^ But this is not precisely the case. Dolus comprises in its meaning, intention, but it must be direct intention : the mischief done must not only be intended but desired ; it must be the very end for which the party does the act. Dolus does not include what has been called by some modem civilians dolus indirectus, and by Mr. Bentham indirect intentionality ; i. e. intention to do an act which is not desired ; as, for ex- ample, when I shoot at one person while another is standing so near that I think it probable I shall kill him in endeavour- ing to kill the other. Nor does dolus include hasty or sudden intention, as contradistinguished from deliberate intention. This is included in culpa as opposed to dolus : it would pro- bably be included in temerity, in consequence of a confusion of ideas to which I formerly adverted. Dolus, therefore, denotes all intention, except indirect and sudden intention. These are comprised in culpa as opposed to dolus. Culpa, therefore, includes negligence, heedlessness, rashness, and in- direct and sudden intention. This, at least, is the meaning of culpa as opposed to dolus. As used in another sense, to v^hich I adverted in a former part of this lecture, it denotes intention of any kind, or negligence, heedlessness, or rash- ness ; in short, the mental state which is the cause of any effect that can be imputed to the party. Negligentia, in the case of obligatio in the strict sense, includes intention of all species, together with negligence, heedlessness, and temerity, particularly in the position of parties who are bound to dili- gentia, by reason of fiduciary situations ; of some trust or other with which they are invested. These are generally the cases in which intention or negligence are brought in ques- tion. In most other cases they are necessarily implied in the breach of the ohligatio. The word malus is often coupled with dolus by the Roman lawyers. The reason is that there is a dolus bonus, a machi- ^ See p. 445, ante. Ambiguity of ScJmldncr. Retis. etc. uo.tio wliicli is innoceiiT or laudable : artifice, for example. Lect. wliicli is made use of to prevent an impending crime. All _^i^IL other dolus is dolus mo.lus : and tliis is tlie only meaning of the TTord malus when attached to dolus. An example occurs to me Tvhich shews the importance of this classification of the various states of consciousness. It is laid dovrn that there cannot be a culpose attempt. Xovr this would be true if cuIjjo. only included negligence, heed- lessness, or rashness ; because an attempt is of course inten- tional : but if dolus indiredus. or sudden intention, be in- cluded in culpa, it is tdear that there may be a culpose attempt. Further instances : Damage corpore to things belonging to another : amounts to a breach of Lex Acjuilia.- Damage non corpore amounts to a breach not of Lex Aquilia. but of a duty imposed by the Praetorian Edict, and for which an adio utilis lay. Trespass vi et armis and Case is a somewhat similar dis- tinction. Attempts as clistingfuished from consummation.^ Lor want of the consequence there is not the Corpus of the principal delict. But the intention coupled with an act tend- ing to tJie consequence constitutes the corpus of the secondary delict Styled an * attempt.' Arnhiguity ofScluddner, Beus. etc. I remarked in a fonner Lectiu'e that \ji'.s.'' ' reclit' or ' right.' fre- qnently denotes the dnty incumbent upon the party obhged, as well as the right residing in the opposite paity : and that the ' Ohligatio ' of the Roman lawyers denotes the j(/-s- in personarn residing in the paity entitled, as well as the olliga.tion incumbent npon the party obhged. - ' Et placiiit ita demuin ex ista lege ^ ' DelicMim consmnmattim. Conatas actionem esse., si quis corpore suo dam- delinquendi/ Consummate Crimes and nnm dederit atqxii alio modo damno Criminal Attempts. Feuerbacli, pp. -tl, dato, utiles actiones danrur," etc. — Gains, 42, 43. iii. § 219. • Eine Handlnng, -welclie die Hervor- Damage done by the bodily might of bringung eines Yerbrechens zzim ZwecJce tiie offender was the proper subject of hat, ohne den bezweckten xerbrecher- tiie Aquilian Law ; whicli was however ischen Thatbestand wirklich. zn machen, extended per utiles actiones to other isi ein Yersnch.' Rosshirt. p. oS. damage within its Equity. — ^arg. yote. YOL. I. II 482 Pervading Notions analysed. Lbct. The German ' Sclmlcl ' (or ' das Verscliulden ') reminds me of a ^^ ^^ similar ambiguity. ' /Sc/i'^Zr? ' signifies properly, ' ?m5iZ%.' To im- ~^ pute to a person ' ScJndd,^ is to say that he has broken a duty, and is now liable to the sanction. Accordingly, ' Scliuldner ' is synonymous with the Roman ^Debitor ;' which applies to any person lying nnder any ohligaUon: that is to say, an obligation (^stricto sensu), or in the sense of the Roman Lawyers. ' Creditor ' is the correlative of ' Debitor,' and applies to any person who hdi^ jus in 'personam. The French ' De&/^mr ' and ''Greancier' have precisely the same meanings. The English ' Obligor ' and ' Obligee ' ought to bear the same significations. But, in the tech- nical language of our Law, the term ' obligation ' or ' bond ' has been miserably mutilated. Instead of denoting obUgatio (as correlating with /its in personam,) it is applied exclusively to certain unilateral contracts evidei^ced by writing under seal. Or, rather, it is applied to the writing under seal by which the unilateral contract is evi- denced. That is to say, it is not the name of an obligation, but of an instrument evidencing a contract from which an obligation arises. And, in consequence of this absurd application of the term Obli- gation or bond, the well- constructed expressions Obligor and Obligee are also completely spoiled. If it were used properly, the term ' Obligee ' would apply to any person invested with^ns in personam: And the term ' Obligor ' (as the correlative of ' Obligee ') would apply to the party lying under the corresponding duty. But, in consequence of the narrow application of ' bo7id ' or ' obligation,' the term. ^ obligee,' with its correlative ^obligor,' exclusively applies to persons who are parties to certain contracts : namely, such uni- lateral contracts as are evidenced by writing under seal, and are couched in a peculiar form : That peculiar form being not less absurd than the absurd application of ' bond ' or ' obligation ' to which I have pointed your attention. In the strict technical import which it bears in the English Law, the meaning of ' debt ' is not less narrow and inconvenient than the meaning of ' bond ' or ' obligation.' In the Roman Law, the term * debitum ' is exactly co-extensive with the related or paronymous expression ' debitor.' As ^debitor ' signifies generally a person lying under an obligation, ^debitum' denotes (with the same generality) every act or forbearance to which a person is obliged. It denotes universally the positive or negative something which is due by virtue of an obligation : ' id quod ex obligatione jproestandum est.' But in the strict technical import which it bears in the Enghsh Law, ' debt ' is restricted to a definite sum of money, due or owing from one party to another party. And, accordingly, the action of debt does not in strictness he, unless the object of the action be the recovery of a sum certain. In later times, indeed, this strictness has been relaxed : Insomuch Ambiguity of Schuldner, Reus, etc. 483 ■'iliat debt upon simple contract is not substantially different from an Lfxt. iction of assumpsit : wMlst deht upon bond differs from an action of XXIY covenant in form rather tlian in effect. As is nsnal in English, legislation (whether it be direct or judicial) a mischievous absurdity of the old Law has been cui^ed by a mis- chievous remedy. Instead of extirping pernicious rules and dis- tinctions, English Legislators are content to palliate the mischief by the introduction of exceptions : exceptions, which aggravate the bulk of the Corpus Juris, and (what is an evil of still greater magnitude) •vhich reduce the body of the Law to a chaos of incoherent details.'* I will venture to affii^m, that no other body of Law, obtaining in a civilized community, has so little of consistency and symmetry as our own. Hence its enormous bulk ; and (what is infinitely worse that its mere bulk) the utter impossibiHty of conceiving it with dis- tinctness and precision. If you would know the English Law, you must know all the details which make up the mess. For it has none of those large coherent principles which are a sure index to details. And, since details are infinite, it is manifest that no man (let his industry be what it may) can compass the whole system. Consequently, the knowledge of an English Lawyer, is nothing but a beggarly account of scraps and fragments. His memory may be stored with numerous particulars, but of the Law as a whole, and of the mutual relations of its parts, he has not a con- ception. Compare the best of our English treatises with the writings of the Classical Jurists and of the Modern Civilians, and you will instantly admit that there is no exaggeration in what I have ven- tured to state. Returning to the subject from which I have digressed, it is re- markable that ' Schuldner ' (in the older German Law) applied to the Creditor, as well as to the Debitor : Just as jus sometimes sig- nifies duty, as well as right ; and just as obligatio denotes jus in personam, as well as the duty to which the right corresponds. The Reus of the Roman Lawyers is in the same predicament. As opposed to ' Actor ' it signifies the defendant in a civil pro- ceeding, or the party who is the object of accusation in a criminal proceeding. And, taken in this sense, it is not ambiguous. But re2is also signifies a party to a stipulation : that is to say, a unilateral ■ contract accompanied by peculiar solemnities. And, taken in this sense, it applies to the promisee or obligee, as well as to the promisor or obligor. Both are rei. The party who makes the promise, is styled reus prornittendi : The party to whom it is made, and by whom it is accepted, is styled reus stipidandi. Correi promittendi are joint promissors : Correi stipulandi, joint promisees. * It may be scarcely necessary to ob- before the C. L. P. Acts, 1852 and 1854. serve that the terms in M-hich the author The anomalies here deprecated were speaks of English actions at law, are somewhat mitigated, though by no directly applicable to the forms in use means removed, by those Acts. — E.G. I I 2 484 Pervading Notions analysed. Leot. XXV Intention or inadver- tence is of the essence of injury. LECTURE XXV. ANALYSIS OF INJURY OR WRONG CONTINUED. I ASSUMED, in my last Lecture, tliat Intention or Inadver- tence is a necessary ingredient in injury or wrong. A short analysis will shew the truth of the assumption. In case the duty be positive, the preetermission of the act which the duty requires, is the result of forbearance, or the result of omission. If the prsetermission of the act be the result of forbear- ance, the party, at the time of the forbearance, is conscious of his duty, and knows that the duty of which he is pre- sently conscious, requires the performance of the act from which he forbears. If the prsetermission of the act be the result of omission, the party is conscious generally of the duty incumbent upon him, but adverts not to his duty, or to the act which his duty requires, at the moment of the omission. In either case, he is guilty of injury or wrong, unless some special reason exempt him from liability. In case the duty be negative, the party does an act from which he is bound to forbear, expecting consequences which it is the object of the duty to prevent. Or the party does the act without adverting to those consequences, or assu- ming inadvertently that those consequences will not ensue. And, on any of these suppositions, he is guilty of Injury or Wrong, unless some special reason exempt him from liability. Now in all these various cases of forbearance, omission, and action, the party expects consequences inconsistent with the objects of his duty, or, in case he adverted or attended in the manner which his duty requires, he might perceive that such consequences would certainly or probably ensue. In other words, he forbears or acts with an intention adverse to his duty, or else he omits or acts negligently, heedlessly, or rashly. Unless he expected consequences inconsistent with the objects of his duty, or migJit expect such consequences if he adverted or attended as he ought, he would not and could not hnow, that the forbearance, omission or act would conflict with his duty. And, by consequence, the sanction would not and could not operate as a motive to the fulfilment of the duty. In short, men are held to their duties by the sane- Injury 07^ JVrong. 4S5 tions annexed to those duties. But sanctions operate upon Lect. the obliged in a twofold manner : that is to say. They coun- teract the motives or desii^es Tvhicli prompt to a breach of duty, and they tend to excite the attention which the fulfil- ment of duties requires. Consequently, injury or wi'ong supposes unlawful intention, or one of those modes of unlaw- ful inadvertence which are styled negligence, heedlessness, and rashness. For unless the party knew that he was vio- lating his duty, or unless he might have known that he was violating his duty, the sanction could not operate, at the moment of the wrong, to the end of impelling him to the act which the Law enjoins, or of deterring him from the act which the Law forbids. The only instance wherein intention or inadvertence is absurd- not an ingredient in breach of duty, is furnished by the Law En^^.h of Eno'land. Bv that law, in cases of Oblio^ation arising ^^°^}^ ^ _ ^' . • = mattentiuii directly from contract, it fi-equently happens that the per- to this formance of the obligation is due from the very instant at ^^""^^P^^- which the obligation arises. Or (speaking more accurately) the time for performance is not determined by the contract, and performance is due so soon as the obligee shall desii^e it. Lor example : Lf a moveable be deposited with me in order that I may keep it in safety, I am bound, yVoz/z the moment of the dejjosit, to restore it to the bailor. If I buy goods, and no time be fixed for the payment of the price, I am bound, /Vor/i the moment of the delivery, to pay the price to the seller. Now, in these, and in similar cases, it is impossible that the obligation should be broken, through intention or inad- vertence, until the obligee desire performance, and until the obligor be informed of the desire. Lor, strictly speaking, he is bound to perform the given act, so soon as the obligee shall wish the performance, and so soon as he himself shall be duly apprised of the wisk But, according to the rule which obtains in the Courts of Common Law, the creditor may sue the debtor, ^s for a breach of the obligation, with- out a pre™us demand : The debtor being liable in the action for damages and costs, just as he would be liable if perform- ance had been required, and the obligation had then been broken througk his own intention or negligence. Xow as every right of action is founded on an injury, here is a case of injury without intention or inadvertence. Lor. without a previous demand, or without some notice or inti- 486 Pervading Notions analysed. Lect. mation that the creditor desires performance, the debtor . cannot know that he is breaking his obligation, by not per- forming the act to which he is obliged. This monstrous rule of the Common Law Courts, is jus- tified by a reason which is not less monstrous. For it is said that a previous demand were superfluous and needless, inasmuch as the action is itself a demand. The reason forgets, that a right of action is founded on an injury ; that unlawful intention or inadvertence is of the essence of injury ; and that, in all the cases which I am now considering, there is no room for unlawful intention or inad- vertence, until the creditor desire performance, and until the debtor be apprised of the desire. Where an injury lias been actually committed, it is not necessary (although it may be expedient) that the action founded on the injury should be preceded by a demand. For, here, the right of action has already accrued, and the use of the previous demand would merely amount to this : that it would give the debtor an opportunity of redressing the wrong, and might therefore save the parties from the evils which accompany a suit. But in cases of the class which I am now considering, there is no injury (intentional or by negligence), until the creditor demand performance, and until the debtor (inten- tionally or by negligence) comply not with the demand. Strictly speaking, the case stands thus. Looking at the essentials of injury, the party obliged is not guilty of injury. But he is considered by the Courts as if he had broken his obligation, and is accordingly liable in an action for damages and costs. In certain cases of the class which I am now considering, it is, indeed, expedient that the creditor should be permitted to sue, although no demand has been made upon the debtor. But why ? Because the debtor has actually broken the obli- gation ; or because the debtor intends to break the obligation, and the delay occasioned by a formal demand might facili- tate the execution of his unlawful design. For example : * If the debtor withdraw himself from his home, or from his usual places of resort, iti order that he may evade a de- mand, he is placed in the position in which he would have been placed if the demand had actually been made. Or, speaking more strictly, a demand is made on the part of the creditor ; and it may fairly be presumed from the conduct of I7ijury or JJ^ro?i£'. 487 tlie debtor, tliat lie lias notice of tlie demand. He is fairly lect. liable to an action, and to tlie costs occasioned br the action. For lie is conscious tbat the obligee requii^es performance : he withholds performance notwithstanding ; and he is there- fore guilty of an actual injm-y. Again : If there be reason to siipjDOse that he means to withdraw himself from the jtiristliction, or to place his goods beyond the reach of process, it is reasonable that the creditor •should be permitted to sue_. without a previotis demand. For. here, the debtor presently int-nds to commit an injmw : and the delay occasioned by a previous demand, might enable him to defeat the action by withdrawing his person or property. In this case,, the action is instituted for the purpose of pre- vention : and it operates like an injunction, or a ne exeat regno. But where there is nothing in the conduct of the debtor, indicating an intention to fi^ustrate the creditor of his right, it is clear that a demand of performance, with subsequent non-performance, ought to precede the action : And that if an action be brought without this impoi1:ant preliminaiw, the creditor should be liable for the costs of the needless proceeding, and bound to make satisfaction for the gratui- tous vexation which he occasions. On looking over Evans's Digest of the Statutes for another purpose. I have had great pleasure in obseiwing that so judi- cious a writer takes the same view of this question which I have just stated. He says vol. iii. p. 2S9): - There is anc'ther Eule in Cotul:s of Equity which may deserve a dif- ferent consideration, as applied to legal demands, viz. that length of time is no bar in case of a trust. TVliere a man deposits money in the hands of another, to be kept for his use. the possession of the custodee ought to be deemed the possession of the owner, until an application and refusal, or other denial of the right : for. until then, there is nothing adverse; and I conceive that upon principle, no action should be allowed in these cases, without a previcais demand ; con- sequently, that no limitation should be c>jmputed fuither back than such demand. And I think it probable, that under these circumstances, the limitation would not be allowed to attach, though the other part of the observation would be as probably disallowed.- For a sweeping rule has ^ So far as regards the operation of -with judicial decision (Pkilpott v. Kel- the statutes of limitations, the principle ley. 3 Ad. k Ell. 106 ; Edwards v. Clay, here contended for seems now to consist 28 Bear. 145). — E.C. 488 Pe7^vading Notions analysed. Leot. been by some means introduced into practice, tliat an action is a demand; whereas every action in its nature supposes a preceding default ; where money is improperly received, or goods are bought without any specific credit, or even where money is borrowed generally, there is held to be an imme- diate duty, and it is a perfectly legitimate conclusion that no demand can be necessary, in addition to the duty itself. But wherever there is a loan in the nature of a deposit, or any other confidential duty is contracted, the mere creation- of that duty, unaccompanied with the absolute breach of it, by denial, or inconsistent conduct, ought not to be considered as a ground of action.' I perfect^ agree with this reasoning as applied to the case of the deposit. It is onty on breach of the obligation, that a right of action should accrue to the bailor. And it is only by refusal or neglect to return the subject on demand, that the obligation is broken. But similar reasoning is also applicable to the case of goods sold without specific credit ; of money lent generally ; and of money paid and received by mistake. In the case of money paid and received by mistake, it is necessary to distinguish. If the money was received hond fide, it surely is expedient that a demand should precede the action. For until the debtor is apprised of the mistake, it is impossible to say that he has broken intentionally or by negligence his obligation to return the money. If the money was received maid fide, the act of receiving the money was in itself an injury : an injury analogous to unlawful taking. The only difference between the cases lies in the means. In the one case, I take the goods of another without the consent of the owner. In the other case, I take the goods with his consent, but by reason of an error in which he is, and of which I avail myself by suppressing the truth. Here, therefore, the debtor is guilty of an injury from the very outset ; and no demand is necessary as a basis for the action. I shall here remark generally, a distinction which exists between obligations arising from the possession of res alienee, or things which are the property of another person. The part}^ entitled has always a right to the restitution of the goods or to satisfaction for their loss, and the party in pos- session is always bound to restore or satisfy. But the nature of the obligation depends upon the con- Injury or Wrong. 489 sciousness of tlie party in possession : If he possess tlie lect. subject mold fide^ his possession is itself a wrong. His obli- . /^^^ gation to restore or satisfy, arises from an injury ; and, in- asmuch as the right which is violated is jus in rem, the obligation is ex delicto (in the strict signification of the term). If he possess the subject bond fide, his possession is not a wrong. His obligation to restore or satisfy is quasi ex con- tractu : That is to say, It arises from a fact whicli is neither an injury nor a convention. But so .soon as he is apprised of the right which resides in the party entitled, the obliga- tion alters its nature. It may either be considered as arising from a breach of the quasi-contract ; or from a violation of the jus in rem which resides in the party entitled. And, on either supposition, it arises from an injury. The only dif- ference is, that it arises, on the former, from a breach of quasi-contract ; whilst it arises, on the latter, from a delict (strictly so called). [Remark on the indistinctness of the boundary, by which obli- gations ex delicto are distinguished from obHgations quasi ex con- tractu. The receipt of money paid by mistake ought not to be considered as begetting an obligation quasi ex contractu^ if the party receiving be in maid jide. The action should be Case, and not Assumpsit (assuming, that is, that the forms of action should be kept up). The Roman Law not free from this uncertainty. The confusion of quasi-contracts with contracts, peculiar to English Lawyers.] The allegation in bills, 'that the plaintiff has requested the defendant to perform the object of the suit, but that the defendant has refused or neglected to comply vdth that request,' is (I should suppose) merely formal : i. e. it is not incumbent on the plaintiff to prove it. At least, a demand is not necessary, where the defendant has actually com- mitted an injury. But where notice must be given, before the defendant cctn commit an injury, there (I apprehend) a demand on the part of the plaintiff, with subsequent re- fusal or neglect on the part of the defendant, is a necessary preliminary to the institution of the suit. E. g.: If you are seised in fee in trust for me, you are bound to convey the legral estate as I shall direct. But if I filed a bill for the jDurpose of compelling a conveyance without previous de- mand and consequent refusal or neglect, I think that Equity (who, let men traduce her as they may, is far more rational 490 Pervading Notions analysed. Lect. than lier sister and rival luaw) would compel me to pay the costs of the wanton and vexatious suit. The Eoman Law, in regard to the matter in question, is perfectly rational and consistent. In all cases, the institu- tion of an action must be preceded by notice to the debtor, provided the debtor can be found. In case the debtor has not broken the obligation, the notice is necessary as a 'basis to the action. In case the debtor has actually broken the obligation, the notice gives him an opportunity of redress- ing the injury, and of saving himself and the creditor from the evils of a suit. Whether or not a demand must precede an action, is, therefore, a question which can never arise. As a demand must precede an action in every case whatever, the only ques- tion which can arise is this : namely, whether a demand of performance must be made by the creditor, in order that the debtor may be in mora, and may incur the liabilities which are incident to that predicament. This I will endeavour to explain with all possible brevity. )ra. The non-performance of an obligation is in the Roman Law styled mora : ^ for, the debtor delays performance ; or in consequence of the non-performance, the creditor is de- layed. Not unfrequently, it is styled /r^^s^ra^^o,■ or dilatio. But the predicament in which the debtor is placed in con- sequence of his non-performance, is also styled mora. Debitor qui moram fecit in mora dicitur. Being in mora, he incurs liabilities from which he were exempt if he were not in mora. For example : If a moveable has been deposited with the debtor in order that he might keep it safely, he is not liable for accidental damage, unless he be in mora. But if he re- fuse to return it on demand made by the creditor, he is in moral and he is thenceforth liable for accidental damage, as well as for damage occasioned by his intention or negli- gence. If he owe money payable on demand, and after demand decline or neglect payment, he is in mora. And being in mora, he is bound to pay interest on the money which he detains, though no interest was previously payable. Now if no time be fixed for the performance of the obli- gation, the debtor is not in mora, and does not incur the liabilities incident to that predicament, unless a demand of performance be made by the creditor, and unless the debtor « Miihlenbruch, i. 325, 339. Mackeldey, ii. 156, 165. Injury or Wrong, 491 comply not Tritli the demand. The Eule is, ^ Inteiyellandus Leot. est dehitor loco et temjjore ojiijortuno.^ The anthors of the rule jnstlj considered, that intention or inadvertence is of the essence of wi'ong ; and that the obligation conld not be broken, either through intention or inadvertence, until the creditor required performance. If a specific terminus or time be fixed for the performance, the debtor is in mora, unless he perform at that time, although no demand be made by the creditor. ' Bies interijellat irro homine.' (X.B. TnterjjeUatio signifies making a demand.) For, here, the debtor breaks the obligation, intentionally or by negligence, whether a demand be made or not by the opposite party. He knows generally that he ought to per- form at the time ; and a demand of joerformance on the part of the creditor were, therefore, supei-fiuous. TVhether a demand of performance ought to precede an action, and whether a demand should be made in order that the debtor may be in mora, are distinct questions. But it is manifest that the solution of either question must be sought for in the same source : namely, in the state of the debtors consciousness. If he know that the performance is due, and yet do not perform, it is reasonable to presume that the non- performance is the consequence of intention or negligence. He is actually guilty of injury. Consequently, a demand of performance is not an essential preliminary to the institution of an action. And, further, it is not unreasonable that he should be subjected to certain liabilities, which he would not have incurred, if he had been clear of unlawful intention or unlawful inadvertence. On this, as on almost all other sub- jects relating to contracts, the depth and consistency of the Eoman lawyers is truly admii^able, and is only equalled by theu' plain and manly manner of expressing their meaning. Before I dismiss this subject, I may make this general remark. In most cases of breach of contract, the intention or negligence of the debtor is so manifest, that the question is not agitated or even adverted to. And from hence we might incline to infer, that intention or negligence is not of the essence of the wrong. If we look into the detail, we immediately perceive that breach of contract as necessarily supposes intention or negligence as any other injury what- ever. Tor instance ; whether a demand be an essential prelimi- nary to an action, or whether the debtor be in mora without 492 Pervading Notions aiialysed. Lect. a demand, entirely depends upon the presence or absence of intention or neo^lio'ence. If without demand lie could not 1 • — o o hnow that he was breaking his obligation, it is manifestly necessary that a demand should be made, before the action is instituted by the creditor, or before the debtor is placed in the predicament which is styled mora. In all cases in which the contract binds him to diligentia (as in cases of bailment), the question of ' negligence or not,' also frequently arises. In ordinary cases the question does not arise, because the intention or negligence is manifest and indisputable. I make this remark because, owing to the arrangement adopted by the Roman institutional writers, one is liable to suppose that breaches of contract are not similar to other breaches of obli- gation, and are not even injuries at all ; not being ranked with delicts or injuries, nor bearing the same name. In the arrangement of the Roman law, not only the primary obli- gations arising from contracts and quasi-contracts, are called ohligations, but likewise the obligations arising from breaches of these primary obligations are called ohligationes simply, and are said to arise not from delicts, but from the contracts or quasi-contracts. And in our own law we talk of actions ex contractu, and distinguish them from actions ex delicto. It is, however, undeniable that actions ex contractu are just as much founded on injury, as the actions which are said to be ex delicto. I Unlawful intention or unlawful inadvertence, is, therefore, I of the essence of injury, and for this reason, that the sanc- tion could not have operated upon the party as a motive to the fulfilment of the duty, unless at the moment immediately preceding the wrong he had been conscious that he was violating his duty, or unless he would have been conscious that he was violating his duty, if he had adverted or at- tended as he ought. If we examine the grounds of the various exemptions from^Ha-^^^ from liability, we shall find that most (though not all) of them are reducible to the principles which I have now mostly re- ^ ^ ducibieto stated. We shall find (generally speaking) that the party pieiast^^^' is clear of liability, because he is clear of intention or stated. inadvertence ; or (what, in effect, comes to the same thing), because it is presumed that he is clear of intention or in- advertence. 1. Casus or Thus ; ISTo One is liable for a mischief resulting from acci- AccidentJ 7 Miihlenbriicli, i. 179, 326, 331. iii. 165. Heineccius, Eecitationes 538, Mackeldey, ii. 157. Blackstone, iv. 26; 539. principle, that inten- tion or in- I advertence is of the essence of injury. Grounds of Grounds of N'on -impittability. 493 dmi or cliance [casus). That is to say, from, some event Lect. {other than act of his own), which, he was unable to fore- . ^-^^ see, or, foreseeing, was unable to prevent. Whether the event haj)pen through, the intervention of man, or whether it happen without the intervention of man, is not important. The essence of casus, chance, or accident, lies in this : that the event was not an act done hj the given party, and could not have been foreseen or prevented by that given party. This (I think) is the meaning of casus or accident in the Roman, of chance or accident in our own Law. ' By the Common Law ' (says Lord Mansfield) ' a carrier is an insui-er. It is laid down, that he is liable for every accident, except by the act of God or the Idncfs enemies.^ Here, the term accident includes the acts of men : namely, of the king's enemies. And, in the Digest, it is expressly said, ' fortuitis casihus solet etiam adnumerari aggressura, latromim.^ It would seem, then, that casus ov accident includes the act of man. But (I think) it is never extended to the act of the party himself. An act of his own is hardly called an acci- dent, although the act be not imputahle, inasmuch as it is not accompanied by unlawful intention or inadvertence, or is excusable for other reasons. In the language of the English Law, an event which hap- pens without the intervention of man, is styled ' the Act of God.' The language of the Roman Law is nearly the same. Mischiefs arising from such events are stvled damna fatalia, or detrimenta fatalia. They are ascribed to vis divina, or to a certain personage styled fatum. Or the casus or accident takes a specific name, and is called fatalitas. The language of either system is absurd. For the act of man is as much the act of God as any event which arises without the intervention of man. And if we choose to sup- pose a certain /a^e or destiny, we must suppose that she or it determines the acts of men, as well as the events which are not acts of men. In the language of the Roman Law, events which happen wdthout the intervention of man, are sometimes distinguished from the others by the term naturcd. ' Or (what comes to the same thing) they are ascribed to vis naturcdis. Returning to the legal effect of casus, chance, or accident, no man is liable, civilly or criminally, for a purely accidental mischief. For, as he could not foresee the event from which the mischief arose, or was utterly unable to obviate the event 494 Pervading Notions analysed. Lect. or its consequences, tlie miscliief is not imputable to his . intention or negligence. For example, If I am in possession of a house, or of a moveable belonging to another, and the subject whilst in my possession is destroyed by an accidental fire, I am not liable to the owner in respect of the damage. ' Damnum ex casu sentit dominus.' But when I say, ^ that no man is liable in respect of an accidental mischief,' I mean, ' that he is not liable as for an injury or wrong.' For, by virtue of an obligation arising aliunde, he may be liable. To revert to the instance which I have just cited : — I am liable to the owner for the damage done by the fire, in case I contracted with him to that effect. I am also liable in case I am a carrier, and the subject has come into my pos- session in the course of my calling. If the subject was deposited with me in order that I might keep it safely, I am also liable (according to the Roman Law) if I am in mora : that is to say, if the owner has requested me to return the subject, and I have nevertheless kept possession of it. But, in these and similar cases, I am not liable as for an injury, but by virtue of an obligation ex contractu or quasi ex contractu. The mischief done by the fire, is not the conse- quence of an injury done by me ; although I shall be answer- able, as for an injury, in case I perform not my special obligation to make good the loss arising from the acci- dent. The carrier is a person on whom the law imposes a par- ticular obligation, and all persons are supposed to deal with the carrier on the terms which the law predetermines, unless they specially provide otherwise. This is the case of what are termed dispositive laws. A particular arrangement is determined by a provision of the law, subject to be altered by a special convention between the parties. Thus, although as a carrier I am liable for all damage suffered by goods under my charge, except from the act of God, or the king's enemies, I am at liberty to relieve myself from this liability by sticking up in my shop a notice to that effect. In either case, the obligation arises from a contract ; in the one case, the parties enter into a contract, tacitly adopting the provi- sions of the dispositive law; in the other case, they enter into a more special contract, modifying those provisions. In the case of mora, also, the obligation to answer for damage by fire or other accident, does not arise from the Grounds of Non-imptttability. 495 fire, but is consequent on a previous injury. If tliis obliga- Lect. tion be violated, a new injury is committed and a consequent ^ — ^ — _^ obligation incurred.^ Another ground of exemption is^ ignora7ice or error with 2.ignorance regard to matter of fact. Now, here, although the proximate ground is ignorance or error, the ultimate ground is the absence of unlawful inten- tion or unlawful inadvertence. For unless the ignorance or error was inevitable or invincible (or, in other words, unless it could not have been removed by due attention or advertence), the act, forbearance, or omission, which was the consequence of the ignorance or error, is imputable to negligence, heed- lessness or temerity. I will touch briefly upon a few cases, wherein the party is exempt from civil and criminal liability, by reason of igno- rance or error. ' Si quis ' (says Ulpian) ' hominem liberum ceciderit, dum putat servum suum, in ea causa est, ne injuriarum teneatur.' Here the party whose conduct is in question beats a freeman. But he is not liable as for an assault and battery, because he believes at the time of the beating, that the man is his slave. In consequence of ignorance or error, he thinks that he is exercising his indisputable right of using and abusing his own. Another case, closely resembling the last, is the following. If the party possess bond fide a thing belonging to another, and if the thing be damaged by his abuse or carelessness, he is not liable to the owner in respect of the damage ; although he would have been liable, if he had possessed the thing ma id fide. ' Rem enim quasi suam neglexit.' The foregoing examples are taken from the Eoman : the following, from the English Law. If I hire your servant, knowing that he is your servant, I am guilty of an offence against your right in the servant, and am liable to an action on the Case. But if I hire your servant, not knowing that he is your servant, I am not guilty ^ As is frequently the case with cus- fore recepermt, nisi restituent, in eos ju- toms which prevail not in this country dicium dabo^ (D. iv. 9). The ratio of only but throughout Europe, the custom the liability in the Roman law was how- and understanding relating to carriers ever not implied contract of indemnity, now recognised as the common law of but presumed ciolpa. — R.C. England, has its origin in the positive ^ Feuerbach, p. 80-4. Miihlenbruch, law obtaining amongst the Romans : in 193, 331. Rosshirt, 53. Blackstone, this instance following the law founded iii. 142, 154 ; iv. 26. Bentham, Pr, on the Praetorian Edict, ' Nauta, Can- 168. pones, Stabularii, quod cujusque salvum 496 Pervading Notions analysed. igcT. of a wrong, and am not liable to an action, nntil I receive — , — ' notice of his previous contract with. yon. If I keep a dog given to worry cattle, and if I am ap- prised of tliat his mischievous inclination, I am liable for damage done by the dog to my neighbour's cow or sheep. But unless I am apprised of his vicious disposition, I am not guilty of an injury, and am not liable to make good the damage.'^ For the damage is not imputable to my intention or inadvertence. If, intending to kill a burglar who has broken into my house, I strike in the dark and kill my own servant, I am not guilty of murder, nor even of manslaughter. For the mischief is not imputable to intention or inadvertence, but to inevitable error. That is to say, to error which coiild not have been prevented by any attention or advertence, prac- ticable under the circumstances. And so much for ignorance or error, with regard to matter of fact. Before I dismiss the subject, I will briefly advert to igno- rance or error, with regard to the state of the law. In order that an obligation may be effectual (or, in other words, in order that the sanction may operate as a motive to fulfilment), two conditions must concur. 1st. It is neces- sary that the party should know the law, by which the Obligation is imposed, and to which the Sanction is annexed. 2ndly. It is necessary that he should actually know (or, by due attention or advertence, might actually know), that the given act, or the given forbearance or omission, would violate the law, or amount to a breach of the obligation. Unless these conditions concur, it is impossible that the sanction should operate upon his desires. Or (changing the expres- sion) the given act, or the given forbearance or omission, cannot be imputed to an unlawful intention, or to any of those modes of unlawful inadvertence which are styled neg- ligence, heedlessness, or rashness. ^° The presumption which apparently worry sheep, the owner is to blame, exists in England in favour of the mem- The House of Lords (Lords Cranworth sueta natura of our dogs has elsewhere and Brougham) overruled this decision not passed without controversy. In a (2 Macqueen, 14). An Act was subse- case in Scotland where sheep had been quently passed (for Scotland), declaring worried by a foxhound, the late Lord it unnecessary, in an action against the Cockburn repudiated the principle that owner of the dog, to prove a previoiis 'every dog is entitled to have at least propensity to injure cattle (26 & 27 Vict. one worry :' and the Scotch Court agreed c. 100). — E.G. with him in presuming, that if a dog yuris et Facti Ignoraiitia. 497 Accordingly, inevitable ignorance or error in respect to Lkot. matter of fact, is considered, in every system, as a ground of exemption. With regard to ignorance or error in respect to the state of the law, the provisions of different sj^stems appear to differ considerably; although they all concur in assuming generally, that it shall not be a ground of exemption. ' Be- gula est, juris ignorantiam caique nocere,' is the language of the Pandects. And per Manwood, as reported by Plow- den, 'It is to be presumed that no subject of this realm is misconusant of the Law whereby he is governed. Ignorance of the Law excuseth none.' I have no doubt that this rule is expedient, or, rather, is absolutely necessary. But the reasons assigned for the rule, which I have happened to meet with, are not satisfactory. The reason given in the Pandects is this : ' In omni parte, error in jure non eodem loco quo fadi ignorantia haberi debebit, quum jus Jinitum et possit esse et debeat : facti interpretatio plerumque etiam prudentissimos fallat.'^^ Which reasoning may be expressed thus : ' Ignorance or error with regard to matter of fact, is often inevitable : that is to say, no attention or advertence could prevent it. But ignorance or error with regard to the state of the law, is never inevitable. For the law is definite and knowable, or might or ought to be so. Consequently, io-norance or error with reo'ard to the law is no ground for o o o exemption. If the conduct of the party be imputable to ignorance of law, it is not imputable directly to unlawful intention or inadvertence. But as the ignorance to which it is imputable is the consequence of unlawfal inadvertence, his conduct, in the last result, is caused by his negligence.' The reasonino' involves the small mistake of confounding: 'is' with 'might be' and 'ought to be.' That Law miaht be knowable by all who are bound to obey it, or that Law ought to be knowable by all who are bound to obey it — ' jinitum et possit esse et debeat,' is, I incline to think, true. That any actual system is so knowable, or that any actual system has ever been so knowable, is so notoriously and ridiculously false that I shall not occupy yoar time with proof of the contrary. Blackstone produces the same pretiosa ratio, flavoured with a spice of that circular argumentation wherein he delights. VOL. I. " Digest, xxii. 6, 2. 498 Pervading Notions analysed. Lect. ' A mistake (says lie) in point of Law, wliicli every person of discretion, not only mai/, but is bound and presumed to know, is in criminal cases no sort of defence.' Now to affirm ' that every person may know tlie law,' is to affirm tbe thing which is not. And to say ' that his igno- rance should not excuse him because he is hound to know,' is simply to assign the rule as a reason for itself. Being bound to know the law, he cannot effectually allege his ignorance of the law as a ground of exemption from the law. But why is he bound to know the law ? or why is it presumed, juris et de jure, that he knew the law? The only sufficient reason for the rule in question, seems to be this : that if ignorance of law were admitted as a ground of exemption, the Courts would be involved in ques- tions which it were scarcely possible to solve, and which would render the administration of justice next to impracticable. If ignorance of law were admitted as a ground of exemption, ignorance of law would always be alleged by the party^ and the Court, in every case, would be bound to decide the point. But, in order that the Court might decide the point, it were incumbent upon the Court to examine the following questions of fact : 1st, Was the party ignorant of the law at the time of the alleged wrong ? 2ndly, Assuming that he was ignorant of the law at the time of the wrong alleged, was his ignorance of the law inevitable ignorance, or had he been previously placed in such a position that he might have known the law, if he had duly tried ? It is manifest that the latter question is not less material than the former. If he might have known the law in case he had duly tried, the reasoning which I have produced from the Pandects would apply to his case. That is to say ; Inasmuch as the conduct in question were directly imputable to his ignorance, it were not imputable directly to unlawful intention or inadvertence. But, inasmuch as his ignorance of the law were imputable to unlawful inadvertence, the conduct in question were imputable, in the last result, to his negligence. ISTow either of these questions were next to insoluble. Whether the party was really ignorant of the law, and was so ignorant of the law that he had no surmise of its provi- sions, could scarcely be determined by any evidence acces- sible to others. And for the purpose of determining the cause of his ignorance (its reality being ascertained), it were Juris et Fadi Ignorantia. V 499 incnmbent -apon tlie tribunal to -anravel his previous history, Lect. and to search his whole life for the elements of a just solution. . The reason for the rule in question would, therefore, seem to be this : — It not unfrequentlj happens that the party is ignorant of the law, and that his ignorance of the law is inevitable. But if ignorance of law were a ground of ex- emption, the administration of justice would be arrested. For, in almost every case, ig-norance of law would be alleged. And, for the purpose of determining the reality and ascer- taining the muse of the ignorance, the Court were compelled to enter upon questions of fact, insoluble and interminable. That the party shall be presumed peremptorily conusant of the law, or (changing the shape of the expression) that his ignora.nce shall not exempt him, seems to be a rule so neces- sary, that law would become ineffectual if it were not applied by the Courts generally. And if due pains were taken to promulge the law, and to clear it of needless complexity, the presumption would accord with the truth in the vast majority of instances. The party (generally speaking) ivould actually hnow the law. Or the party, at least, might so surmise its provisions, that he could shape his conduct safely. The reasoning in the Pandects would then, be just. The law would be in fact as ^ jinitum^ and knowable, as ^ possit esse, et debeatJ The admission of ignorance of fact as- a ground of exemp- tion, is not attended with those inconveniences which would seem to be the reason for rejecting ignorance of law as a valid excuse. Whether the ignorance really existed, and whether it was imputable or not to the inadvertence of the party, is a question which may be solved by looking at the circumstances of the case. The inquiry is limited to a given incident, and to the circumstances attending that incident, and is, therefore, not interminable. I have said that the provisions of different systems seem to differ considerably with regard to the principle which I am now considering. In our own law, ' ignorantia juris non excusat ' seems to obtain without exception. I am not aware of a single in- stance, in which ignorance of law (considered per se) exempts or discharges the party, civilly or criminally. In the case of infancy, and in certain other cases to which I shall advert directly, the presumed incapacity of the party to know the law would seem to be one of the grounds upon which the exemption rests. But his presumed incapacity to know the K K 2 500 Pervading Notions analysed. Lhct. law is only one of tliose grounds. His exemption rests gener- . ally, upon his general incapacity (real or presumed) to judge ganely of law or fact. From an opinion tlirown out by Lord Eldon, in tlie case of Stockley v, Stocldey, I inclined to tliink (at the first blush) that a party would be relieved, in certain instances, from a contract into which he had entered in ignorance of law.^^ But admitting the justness of Lord Eldon's conclusion, the agreement (I conceive) would be void, not because the part}^ was ignorant of the law, but because there is no consideration to support the promise. According to the Roman Law, there are certain classes of persons, ' quibus permissum est jus ignorare.' They are exempt from liability (at least for certain purposes), not by reason of their general imbecility, but because it is presumed that their capacity is not adequate to a knowledge of the law. Such are women, soldiers, and persons who have not reached the age of twenty-five. Here, ignorance of law (considered per se) is a ground of exemption. For women, soldiers, and multitudes of persons under twenty- five are not in that state of general imbecility, which is the ground of exemption in case of insanity, or in case of extreme youth. But ignorance of law (as a specific ground of exemption) is only admissible in favour of persons who belong to certain classes. And this (I apprehend) shews distinctly, that the exclusion of ignorantia juris, as a ground of exemption, is deducible from the reason which I have already assigned. In ordinary cases, the admission of ignorantia juris as a ground of exemption would lead to interminable inquiry. But, in these excepted cases, it is presumed from the sex, or from the age, or from the profession of the party, that the party was ignorant of the law, and that the ignorance was inevitable. The inquiry into the matter of fact is limited to a given point : namely, the sex, age, or profession of the party who insists upon the exemption. That obvious fact being ascer- tained, the legal presumption or inference is drawn by the tribunal without further investigation. Whether the legal presumption ought to obtain, or whether in most cases it do not conflict with the truth, is a distinct question. What I advance is this : that, in ordinary cases, the inquiry were impracticable, because the facts upon which the solution depends are not to be ascertained. 1 Vesey & B. 31. " Digest, xxii. 6, 9. yuris et Facti Ignorantia, c;oi In these excepted cases the inquny is practicable, because Lkct. it is predetermined by a general rule, that certain facts (which, may be ascertained) shall be received by the Courts as evidence of the facts in question. There is a presumptio juris et de jure, and evidence is not admissible to rebut it. Nor would the case be materially altered, assuming that the presumption may be rebutted. For the counter-evidence must necessarily consist of a specific fact or facts. The large and vague inquiry is shut out by the legal presumption. [Analogous case of doli cajpacitas in infancy. See p. 507 post.'] Before I quit this subject, I will advert to a curious dis- tinction made by the Roman Law. The persons, quibus permissum est jus ignorare, cannot allege with effect their ignorance of the law, in case they have violated those parts of it which are founded upon the ' jus gentium.'' For the persons in question are not generally imbecile, and the jus gentium is knowable naturali ratione. With regard to the jus civile, or to those parts of the Roman Law which are peculiar to the system, they may allege with effect their ignorance of the law. This coincides with our distinction between malum pro- hibitum and malum in se ; and the distinction is reasonable. For some laws are so obviously suggested by utility, that anjr person not insane would naturally surmise or guess their existence ; which they could not be expected to do, where the utility of the law is not so obvious. And most men's knowledge of the law is mostly of this kind. They see that a particular act would be mischievous, and they conclude that it must be prohibited. The conduct of nineteen men out of twenty, in nineteen cases out of twenty, is rather guided by a sm^mise as to the law, than by a knowledge of it. Even lawyers have no other knowledge than this, of any branch of law but that which they have peculiarly studied. A Common Law lawyer, if he were making a will or a settle- ment of real property, would, if he acted rationally, surmise that there must be provisions of the law of real property which were not known to him, and would accordingly have recourse to a conveyancer, rather than foolishly attempt to draw the instrument for himself. Nor (per Labeo) can they allege it, or if they had access to good legal ad- if the law might have been conjectured, vice. Digest, uhi supra. 502 Pervading Notions analysed. Lect. Before I conclude, I must observe, tliat the objection to XXY la-^g rpQ^i facto, is deducible from the general principle The objec- already explained, namely, that intention or inadvertence is jooS/acto necessary to constitute an injury. The law was not in '?bie fr^^^" existence at the time of the given act, forbearance or omis- the same sion : Consequently the party did not, and could not know, pnucipie. he was violating a law. The sanction could not operate as a motive to obedience, inasmuch as there was nothing to obey. I am provoked to make this remark by a silly and flippant attempt in the ' Edinburgh Review ' to justify or palliate ex post facto legislation. Speaking of Lord Strafford's attainder, the writer talks to the following effect. ' It is commonly objected to punishment inflicted ex post facto, that it operates not as a warning. But this is a fallacy. Punishment inflicted ex post facto does operate as a warning. The punishment inflicted upon Lord Strafford operated as a warning to succeeding statesmen.' The writer mistakes the objection (simple and obvious as it is) which is commonly urged against punishment inflicted ex post facto. It is not objected to such punishment, that it may not operate as a warning. But it is objected, and is truly objected, to such punishment, that the party upon whom it is inflicted was not warned. He confounds the application of a law to cases which precede it, with the application of the same law to cases which follow it. With regard to cases which prece de it, the law (if it extend to those cases) is an ex post facto law. With regard to cases which follow it, it is not. That is to say, the writer answers the objection to ex post facto legislation, by shewing that the objection does not apply to other legislation. I have treated this nonsense with great indulgence ; for I have assumed that the punishment inflicted npon Lord Strafford might at least operate as a warning to succeeding statesmen . But even this is false. For the law by which he suffered was not only ex post facto, but was what is styled in the Roman Law a privilegium. It was a law inflicting punish- ment npon Strafford specifically, and not declaring in general expressions, ' that those who might do thereafter as Strafford had done should be visited with Strafford's fate.' If the punishment had been inflicted by virtue of a judicial decision, then also ifc might have operated as a warning. For one judicial decision being commonly the basis of Juris et Facti Ignorantia, 503 others, a judicial decision is tantamount to a law conceived in Lect. general expressions. . _ But from an arbitrary Command nothing can be con- cluded. Although the supreme Legislature punished Straf- ford, it could not be inferred (looking at the nature of its proceeding) that it would punish future Statesmen walking in Strafford's steps. It must be observed that a judicial d<^cision f rimm im- ipressionis, or a j udgment by which a new point of law is for the first time decided, is always an ex post facto law with respect to the particular case, on which the point fi.rst arose, and on which the decision was given. The subjoined Tables are copied from the margins of Miihlen- bruch and Mackeldey at the pages referred to in the footnotes, pp. 492, 495 ante.— 8. A. Notes. Damnum fortuitum. Damn, ex homine facto. Proprio. Alieno. Licito (sed Illicito obligatorio.) q. ex, c. s. injuria in sensu gen. Aquilia culpa (s. Culpa simpliciter) ob damnum injurid datum, idque facieudo, prjestanda. Dolus. Culpa. Lata. Levis. Negligentia ob Obligationis vinculum, idque faciendo vel non faciendo, praestanda. Culpa lata : C. dolo prox. Dolus. Culpa levis, culpa simpliciter. 504 Pervading Notions analysed. XXV Casus. Factum voluntarium. I I Proprium. Alienum. I Licitum. niicitum. • \ I I I Dole. Culpa. Mora. LECTUEE XXYI. THE SAME SUBJECT CONTINUED. Lect. Having in the lecture whicL. immediately preceded tlie last, assumed that intention or unlawful inadvertence is a necessary ^e^P^twia- ingredient in injury or wrong, I endeavoured in my last lecture to prove this assumption, by a brief analysis of the various classes of injuries. Having demonstrated, by general rea- soning, that unlawful intention or inadvertence is of the essence of injury, I then adverted to certain cases in which an act, forbearance, or omission, seems to be an injury, although its author neither was couscious, nor could he be conscious, that he was violating an obligation. A creditor, for example, by English law, may sue without previous demand, although the obligation on the part of the debtor is merely to pay the debt on demand. These cases, I observed, are anomalies, and the rule of the Common Law Courts which admits such suits, conflicts, not only with general principles, but with the practice which prevails in analogous cases in the Courts of Equity, as well as with the rules of the Roman law. I next observed that if we examined the ground of most of the exemptions from liability, we should find that they ulti- mately rest on the principle that intention or inadvertence is necessary to constitute wrong. A party is exempt, either because he is clear in fact from unlawful intention or inad- vertence, or because (which generally amounts to the same thing), he is presumed to be clear of both. In order to con- firm this remark, I examined at some length two of the prin- cipal grounds of exemption from liability, namely, 1st, casus, chance or accident, and 2ndly, ignorance or error; this last being either with relation to a matter of fact, or with relation to tne state of the law. Recapitulation. 505 Having explained tlie import of co.sus or accident, I endea- Lect. Tonred to sliow tliat tlie exenijnion on acconnt of casus rests ^ on the broad principle alivadvlaid down. As tlie party could not foresee tlie niiscliievons event, or foreseeing, conld not prevent it. tlie mischief was not the consecj_nence of his nnlaw- fal intention or inadvertence, and therefore is not imputed to him. Obligations to answer for mischance arise, when they do arise, not from injuries, but ii'om contracts and cj_uasi- contracts. In the case of igTiorance or error also, the ground of the exemption is the absence of unlawful intention and of unlaw- ful inadvertence. For if the ignorance or eiTor be not invin- cible and inevitable, but might have been cui-ed or prevented by due attention, the mischievous consecpaence is imputed to the party. TVith respect to iomorance or error regarding the state of the law. I put a difficulty which natiu'ally suggests itself ; it is this. In order that the oblio-ation may be effectual, or in order that the sanction may determine the party from the wrong, it is necessary. 1st. that the party should know or surmise the law which imposes the obligation, and to which the sanction is annexed; and 2ndly, that he should know or might know, by due attention or advertence, that the specific act. forbearance, or omission, would conflict with the ends of the law and of the duty. Unless both these condi- tions concur, the sanction cannot operate as a motive, and the act, forbearance, or omission, is not imputable to unlawful intention, or to negligence, heedlessness, or rashness. But although to render the sanction efficacious, it is necessary that the party should know the law. it is assumed generally or universally, in every system of law. that ignorance or error as to the state of the law shall not exempt the party from Kability. This inflexible or nearly inflexible maxim would seem to conflict with the necessary principle, which I have so often stated, respecting the constituents of injury or wrong. For ignorance of the law is often inevitable, and where the injury or wrong is the consecjuence of that inevitable igno- rance, it is not even remotely the eflect of unlawful intention or of unlawful inadvertence. The solution of this difficulty is to be found in the prin- ciples of judicial evidence. The admission of ignorance of law as a specific ground of exemption, would lead to inter- minable investigation of insoluble Cjuestions of fact, and would, in effect, nullify the law by hindering the administi'ation of Pervading Notions analysed. Lect. justice. This rule, therefore, is one which it is necessary to v^^^IL-- maintain, although it occasionally wounds the important principle, that unlawful intention or inadvertence is a neces- sary ingredient of injury. I then adverted to certain exceptions to this rule permitted by the Eoman law, and shewed that those exceptions consist with the reason of the general maxim, and also serve to indi- cate what that reason is. Lastly, I observed that these ex- ceptions ultimately rest on the principle which it was the main purpose of my lecture to explain and illustrate : — and shewed that wherever ignorance of law exempts from liability, the Ignorance is presumed to be inevitable^ and the party, therefore, to be clear from unlawful intention and inadver- tence. Considera- If I were to examine all the exemptions which ultimately exemptions ^^^^ upon this principle, the present inquiry would run to un- MiiTv^i^ conscionable length. But I shall briefly touch upon a few, to sumed. which I did not advert in my last Lecture. 3. Infancy And, first, an infant or a person insane is exempted from sanit}^~ liability, not because he is an infant or because he is insane, but because it is inferred from his infancy or insanity, that at the time of the alleged wrong he was not capable of unlaw- ful intention or inadvertence. It is inferred from his infancy or insanity, that, at the time of the alleged wrong, he was ignorant of the law ; or (what in effect is the same thing) was unable to remember the law. Or (assuming that he had known, and was unable to remember the law) it is inferred that he was unable to apply the law, and to govern his con- duct accordingly : that he did not and could not foresee the consequences of his conduct ; and, therefore, did not and could not foresee, that his conduct tended to the consequences which it was the end of the law to avert. For, in order that I may adjust my conduct to the com- mand or prohibition of the law, I must know and remember what the law is ; I must distinctly apprehend the nature of the conduct which I contemplate ; and (in the language of lawyers and logicians) I must correctly subsume the specific case as falling within the law. In other words, I must compare the conduct which I contemplate with the purpose or end of the law, and must be able to perceive that it agrees or conflicts with that purpose or end. Every application of the law to a fact or case, is a syllogism of which the minor premiss and the conclusion are singular propositions. Unless I am competent to this intellectual process, the sanction cannot Grounds of Non-Imputability resinned. 507 operate as a niotive to the fulfilment of the obligation, or (changing the expression) the obligation is necessarily inef- fectual. That the ultimate basis of the exemption of infants and lunatics is the presumed absence of unlawful intention or inadvertence, will appear from the following consideration. For if the infant was doli capax (or was conscious that his conduct conflicted with the law), his infancy does not excuse him. Cert'ain evidence of his capacity of unlawful intention, or even the specific and precise evidence afforded by the fact or its circumstances, rebuts the general and uncertain pre- sumption which arises fi-om his age. And if the alleged wi'ong vas done in a lucid interval, the fact is imputed to the mad- man. There are, indeed, cases, wherein the prcesumptio juris founded on infancy is 'juris et de jure.' That is to say, the inference which the law preappoints, is conclusive as well as preapjDointed. The tribunal is not only bound to draw the inference, but to t eject count er-eYidence. While I am on the subject of legal presumptions, I shall Digrression perhaps be excused for digressing from the main subject of fe^ent\1iids the lecture, for the purpose of pivinc^ some explanations for ofprcBsu-mp- , . , . . tiunes juris. wiiicli no other occasion may arise. It is absurd to style conclusive inferences, presumptions. For a presum23tion, ex vi termini, is an inference or conclusion which onay be disproved. Till proof to the contrary be got, the inference may hold. On proof to the contraiy, it can hold no longer. But according to the language of the Civilians (language which has been adopted by some of our writers on evidence), presumptions are divisible in the following manner. Presumptions are proesumptiones juris, or proesumptiones hominis. Proesumptiones juris are inferences dra^vn in pur- suance of the preappointment of the law. The law predeter- mines the probative effect of the fact, or instructs the judge to draw a certain inference from a fact of a certain sort. For example, the presumption already stated in fayor of infants is prcesumptio juris. The law predetermines that from the fact of infancy, the incapacity of unlawful intention and of unlav^ul inadvertence shall be inferred. Prcesumptiones hominis, or presumptions simply so called, are drawn fi'om facts, of which the law has left the probative force to the discretion of the judge. In other words, he is not instructed to draw a given inference from a fact of the sort. Froesump- Lkot. XXYI Pervading Notions analysed. tiones juris, are again divisible into prcesumptiones juris (simply so called) smd prcesumptiones juris et de jure. There are therefore three classes of presumptions : prcB- sumptiones hominis, prcesumptiones juris, and prcesumptiones juris et de jure. Where the presumption is a prcesumptio hominis, not only is proof to the contrary admissible, but the presumption is not necessarily conclusive, though no proof to the contrary be adduced. For instance ; I sue you for goods sold and delivered, and I produce a fact leading to a presumption that the goods were delivered. Not only is it competent to the judge to admit counter-evidence, but to reject the pre- sumption as insufficient, though no counter-evidence be ad- duced. For, here, the judge is at liberty to determine with- out restriction the exact worth of the fact as an article of evidence. Actions frequently fail ; not because the evidence, produced by the Actor, is met by counter-evidence, nor because the evidence which he produces is altogether worthless; but because the inference or presumption founded upon the facts produced, is too feeble to sustain the case. The inference drav/n from testimony to the truth of the fact attested is also in truth of this kind. Where the presumption is prcesumptio juris simply, proof to the contrary is admissible, but, till it be produced, the pre- sumption necessarily holds. For, here, the law has prede- termined the probative force of the fact, although it permits the judge to receive counter-evidence. The law, or the maker of the law, says to the Courts, ' Eeceive counter-evidence if it be produced, and weigh the effect of that evidence against the worth of the presumption. But till such counter-evidence be produced, draw from the given fact the inference which I predetermine.' For example : Where an infant has attained a certain age, proof of his doli capacitas is admissible. But until such proof be produced, it is inferred from the fact of his infancy, that he is not doli capax. Where the prcesumptio juris is juris et de jure, the law pre- determines the probative force of the fact, and also forbids the admission of counter-evidence. The inference (for it is absurd to call it a presumption) is conclusive. That is to say, proof to the contrary is not admissible. For, all that is meant by a conclusive proof, is a proof Avhich the law has made so. Independently of predetermination that it shall be conclusive, no inference from one fact to another can be Digression on Presumptions. 509 more tlian probable : Although, in loose langiaage, we style Lect. the proof conclusive, wherever the probability appears to be , "^^^ great. As an instance of a presumption juris et de jure, I may mention the case of an infant under a certain age ; for ex- ample, seven years. Here, according to the Roman law, and (semble) according to onr own, the infant is presumed jWis et de jure incapable of unlawful intention or culpable inadver- tence. His incapacity is inferred or presumed from the age wherein he is ; and proof to the contrary of that preappointed inference, is not admissible by the tribunals. In numerous cases, presumptions juris et de jure are purely fictitious. They are resorted to by the Courts as a means of legislating indirectly. For example, a grant of an easement is inferred from the fact of its having been enjoyed, or a surrender of a trust term is presumed by the Courts of Law because the trust has been performed. In the first case (which is the simpler and more intelligible of the two) a certain legal consequence is annexed to length of enjoyment by means of a fictitious presumption. It is not believed that there ever was a grant; but the jury are instructed by the judge to infer that there was from the fact of the enjoy- ment. In other words, acquisitive prescription is unknown to the English Law in its direct form.'^ Directly and avowedly, length of enjoyment is not a mode of acquisition, or (in the J^o aeqiiisil^ive pi'escription in Eng- obvious now, on account of the frequent lish Law."* Difference between acquisi- use of possessory actions, tive and restrictive prescription not so Notwithstanding the change in the law of prescription made by the statute 3 & 4 W. IV. c. 27, the statement in the text that 'acquisitive prescription is un- known to the English law in its direct form,' is (subject to the correction on p. b\%, ])ost) still perfectly accurate. The whole frame of this statute is negative, that is, denying action to persons who have neglected a claim for a certain period of time : although, in the cuse of many titles, the protection afforded by this act is nearly equivalent to that afforded by an acquisitive or positive prescription. In Scotland there is an acquisitive or ^ sitive prescription where heritalde subjects have been possessed conformably to sasines (that is, to the instrument evidencing the act ot feudally receiving possession) for forty years con- tinuously and peaceably. Wliere the sasine, founded on the root of title, bears to have been taken by a singular suc- cessor (or 'furchasrr), the production of the deed of alienation (or purchase) on which the sasine is grounded, is fiirther necessary to make an unexceptionable title, but it is not necessary to show any further documents so as to connect the owner with the crown as the author of all heritable rights. This prest-ripticn is said to be jpositivf or acquisitive, be- cause the owner, although he may have originnlly purchased a non domino, ac- quiri s by it what is expressli/ and coowcdlji enacted to be a title against all the world. This prescription is founded on an Act of the Scotch Parliament made in the year 1617.— B.C. Pervading Notions analysed. Lect. language of our own law) a title. But a c\rani is a title ^•^^^ ^ directly and avowedly : And, by feigning a grant from length, of enjoyment, length of enjoyment becomes a title in effect, or that mode of acquisition which is styled acquisitive pre- scription is introduced indirectly. The number of rights and obligations, which (in our own law and in the Roman also) are created and imposed obliquely by means of these fictitious presumptions, is truly astonishing. Probably one-third of the rights conferred by the Eoman Law, and a very great proportion in our own, are conferred in this absurd manner. The various statutes of limitations do not give a titulus on which the party can positively insist, but are merely opposed as a bar to a right of action residing in a determinate party. All prescription known to the English Law is, I believe, in theory, merely negative or extinctive. It is evident, that unless these fictitious presumptions were juris et de jure, they could not answer their purpose. But presumptions juris et de jure are not always fictitious. Some of them are really founded on probability, and counter- evidence is excluded for a special reason. Such, for instance, is the presumption that the party knows the law. This pre- sumption is really true in the majority of instances ; and is made conclusive for the reason which I have before stated, namely, that a judicial inquiry into its truth must otherwise be resorted to in every instance, and the administration of justice would be rendered impossible. Reverting to the subject from which I have digressed,— the presumption juris et de jure ' that the infant under seven is not doli cajpax,'^ is probably well founded in almost every instance. It is probably made conclusive in all instances, on account of the little advantage which could arise from the punishment of a child in any instance whatever. His punishment would rather revolt, than serve as a useful example, and it is therefore expedient to extinguish inquiry at once by a conclusive presumption of innocence. It cannot, then, be inferred from this case, that the exemption from liability by reason of infancy does not rest upon the broad principle which I am endeavouring to explain. I observe that Mr. Bentham ascribes this exemption, and also the exemption in case of insanity and drunkenness, to a See modification of this statement on p. b\Q, post. Grounds of Non-Imptitability. different principle : namely, ' tliat tlie prospect of evils so distant as those Trhicli are lield forth, bj the Law, cannot have the effect of influencing the conduct of the party.' But this (I think) will not hold. In case the party, at the moment of the alleged wrong, were conscious of the law, and could foresee the consequences of his conduct, it is manifest that the sanction would inspire him with some desire of avoiding it. And an inquiry into the strength or steadiness of that desire, would seem to he idle ; because it must neces- sarily be different in every different person, whether he be infant or adult, mad or sane, drunk or sober. There are indeed cases, to which I shall advert directly, wherein the party is held exempt, because he is moved to the alleged wrong by a desire so strong and imperious that no sanction could get the better of it. Such are the cases in which a party is exempted because he was compelled metu : that is, by some apprehension which it is supposed that no will, however strong, can resist. The reason assigned by Blackstone, and by various other TNT^iters, is hardly worth powder and shot. He tells us that a wrong is the effect of a wicked will. And (says he) infants and madmen are exempted, because the act goes not with their will, or is not imputable to a wicked will. Kow in case the alleged wrong be wimight by action, it is clear that there must be a will going with the act, although the party may not be conscious of wi'ong. In case it be wrought negatively, it is true that the forbearance or omis- sion does not cjo with a volition, or is not directly the conse- quence of a volition. But what would that matter, if the forbearance were accompanied by an unlawful intention, or the omission could be ascribed to culpable negligence ? By dint of much explanation, it is true that this jargon may be made intelligible. By the will of the party. Black- stone means (so far as he means anything) the state of the party's consciousness. By a wicked will, he means unlawful intention or unlawful inadvertence. And he means that the alleged wrong is not imputable to either, when he says that it cannot be ascribed to a wicked will. And when he affirms, that the ground of every exemption is a want or defect of will, he means that the ground of every exemption is inevi- table ignorance : inevitable ignorance of the law ; or of the certain or probable consequences of the alleged wrong ; or of 512 Pervading Notions analysed. tlie relation or connection between that alleged wrong and tlie law. He cannot mean to affirm, tliat an infant or mad- man has not as much will as the adult or the sane. Nor is his position, thus translated, true7 For, in certain cases (as I shall shew immediately), the partj is exempt, although he is conscious of the law ; of the nature and consequences of his own conduct ; and of the relation or con- nection between his conduct and the law. I have stated that infancy or insanity is a ground of exemption, partly because the party was ignorant of the law, or is presumed to have been ignorant of the law. This does not contradict what I before said, that ignorance of the law is never in our own system a ground of exemption. For in the case of insanity or infancy, it is not a specific or distinct ground of exemption : infants and lunatics are not exempted distinctly and solely on that account. It may, however, be considered as one ground of the exemption in company with other grounds from which it is impossible to sever it in the particular cases. 4. Drunken- In the English Law, drunkenness is not an exemption. In soniVsvs- criminal cases, never : nor in civil cases when the ground of t€ms of the liability is of the nature of a delict ; but a party is at iaw). times released from a contract which he entered into when drunk. In the Roman Law, drunkenness was an exemption even in the case of a delict ; provided the drunkenness itself was not the consequence of unlawful intention : if, for in- stance, I resolve to kill you, and drink in order-^tb get pluck, according to the vulgar expression, the mischief, although committed in drunkenness, is ultimately imputable to my intention. In all other cases, drunkenness was a ground of exemption in the Roman Law. The ultimate ground of this exemption is the same as in the case of insanity or infancy. The party is unable to remember the law if he knew it, or to appreciate distinctly the fact he is about, or to subsume it as falling under the law. Where unintentional drunkenness, that is, drunkenness which is not itself the consequence of unlawful intention, is not a ground of exemption ; the party, it is evident, is liable in respect of heedlessness. There is no unlawful conscious- ness at the time of the ofPence, but he might have known before he got drunk, that he was likely when drunk to commit acts inconsistent with the ends of his duties. He has heedlessly Lect.. XXVI Grotmds o f Non-Imputability. 513 placed himself in a position, of wliicli the probable conse- lkct. quence will be tlie commission of a wrong. This remote inadvertence is very often a ground of liability. Remote inadyerfcence is what I have just explained. The party is guilty of remote ina.dvertence, where the alleged wrong is not imputable directly to unlawful intention or in- advertence, but is a natural consequence of a position in which he has placed himself from inadvertence, and is there- fore a remote effect of inadvertence. When the party com- mits the wrong in consequence of his ignorance of the law, the ground of liability might be referred to remote inad- vertence. Were it not for the legal presumption, that he knows the law, the fact would be imputable to him, if at all, from his having previously neglected to make himself ac- quainted with the law. Another ground of exemption is sudden and furious anger. 5. Sudden In English Law, this is never a ground of exemption : in ano-er^lT^ Roman Law it is, for the same reason as drunkenness and some sys- .. terns). insanity. Where the party is answerable for an alleged wrong done in furious ano-er, the reasonino; is the same as in the case of drunkenness. He is guilty, not in respect of what he has done in furious anger, but in respect of his having neglected that self-discipline, which would have prevented such furious fits of anger. There are many cases of liability on similar grounds. Jm- periiia, for instance, or want of skill, is the source of a common case of liability both in our own and in the Roman Law. In this case the ground of the obligation is the same as in the case last specified. Pretending to practise as a physician or as a surgeon, I do harm to some person : in the particular case I attend with all my skill, and the mischief is not imputable to unlawful intention or inadvertence at that time, but to neglect of the previous duty of qualifying myself by study for the profession I affect to exercise. Liability for injuries done by third parties, is ascribed justly by Mr. Bentham to the same cause. I am liable for in- juries done by persons whom I employ, because it is generally in my power not to employ persons of such a character, or to form them by discipline and education so as to be incapable of the commission of wrong. The first reason applies to a man's servants, the last to his children. The obligation is peculiarly strong in the Roman Law, because of the great extent of the ^atria potestas : by reason of which it probably VOL. I. L L 514 Pervading Notions a^ialysed. Lkct. XXVI An illog-ical distinction in Roman Law be- tween de- licts and quasi-de- licts. Grounds of exemption not depend- ing on the foregoing principle. 1. Physical compulsion. was in tlie power of tlie fa ther not only to form tlie character of his child by previous discipline, but in most cases to pre- vent the specific mischief by specific care.*^ Before I quit the subject, I shall remark on a distinction which is made by the Roman lawyers, and which appears to me illogical and absurd : (a rare and surprising thing in the Roman Law) . I mean the distinction between delicts and quasi- delicts. I cannot discover any ground for this distinction from the capricious way in which they arrange offences under these two heads. The imperitia for instance of a physician is a delict; but the imprudentia of a judge, who is liable in cer- tain cases for erroneous decisions, is a quasi-delict. The ground of the liability in these two cases is precisely the same. The guilt of the party in both cases consists in taking upon himself the exercise of a function, without duly qualifying himself by previous preparation. And as the right violated is in both cases a right in rem, the offence is properly a delict. This distinction, therefore, appears to me to be groundless ; though I draw such a conclusion with diffi- dence, when it refers to any distinction drawn by the Roman lawyers, whose distinctions I have found in almost every other case to rest on a solid foundation. All the exemptions, which have now been examined, may be referred to the same principle. The party neither was conscious nor could he be conscious that he was violating his duty, and consequently the sanction could not operate on his desires. And this principle will account for the greater number of exemptions, but not for all. The party is exempted in some cases in which the sanction might act on his desires, but in which the fact does not depend on his desires. Such is the case of physical compulsion. A person is not liable for what he is forced to do by physical constraint ; in which he is not an agent, but an instrument or means. In this case, he may be conscious of the obligation, and fear the sanction : but the sanction would not be effectual if applied, because it is impossible for him to perform the obligation. '8 See Pothier, 'Traite des Obligations,' Part n. ch. vi. sec. viii. Art. II. § 5. (454). The distinction that obtains in the case where the injured party is also a servant rests upon the contract express or implied between the master and the latter, who is held to undertake the risks incident to the service. On the rationale of this exemption, which appears to have been first distinctly laid down by Shaw, C. J. in an American case, the English, Scotch, and American courts are at one. See 4 Metcalf, 49. 3 Macqueen, 300, 316. Law Reports, 1 Q. B. 149, 2 Q. B. 38, and 1 H of L. Sc. 326.— R.C. It will be observed that in this case terror. Grounds of Non-Imputability. 2 1 5 There is still anotlier ease whicli is distinguishable from \^y,gt. this ; in which the sanction might operate on the desires of . ^^ ^^ _ . the party, might be present to his mind, and the performance 2. Extreme of the duty might not be altogether independent of his desires ; but the party is affected with an opposite desire, of a strength which no sanction can control, and the sanction therefore would be ineffectual. Such for instance is the case in which a party is compelled by menaces of instant death to commit what would otherwise be a crime. For example, if I am compelled by the king's enemies to join their ranks and fight against the king-, I am not liable for treason, pro- vided that I take the earliest opportunity of making my escape. The reason is that I am urged to a breach of the duty by a motive more proximate and more imperious than any sanction which the law could hold out : and as the sanction therefore would not be operative, its infliction would be gratuitous cruelt3% I believe that all these exemptions, except the two last mentioned, may be explaiued on the principle so often re- ferred to. In conformity with usage, I have talked of these various The circumstances as cases of exemption from liability : but it would be more correct to say, that they are cases in which not^pi-o- the parties are not obliged ; cases to which the notion of eruptions, obligation cannot appl}", because the sanction could not be ^^^ichThe operative. Injury is co-extensive with obligation. Now we idea of are not bound absolutely to do or forbear ; we are bound doe?uo?^ (strictly speaking) not to omit negligently, or to forbear with unlawful intention or unlawful inadvertence. Therefore, where no unlawful intention or inadvertence exists, the party has not broken any obligation, nor consequently incurred any liability from which he can be exempted. The sanction would be ineffectual, either as not operating on the desires, as in the five first mentioned cases, or as operating upon them in vain, as in the two cases last mentioned. It may be remarked that the first of these cases, namely that of physical compulsion, falls within casus or accident, since, as I have already observed, the act of man as aggressura latronum falls within the notion of casus. the act is not the act of the party at all. properly mentioned in an exhaustive It bears however so strongly the sem- category of exemptions. — E.G. lla?ice of an act of the party, as to be so- called ex- emptions L L 2 Pe7^vading Notio7is analysed. LECTURE XXYII. DIFFEEENT KINDS OF SANCTIONS. Lect. XXVII Correction of state- ments in last Lec- ture, An,ii;er, p. 513, ante. Statement as to ac- quisitive praiscrip- tion, p. 509, ante. I WISH, befoi^e I commence, to correct one or two mistakes into which I fell in mj last Lecture. I said that farions anger is a gronnd of exemption in the Roman Law. Now anger may be snch as to exclude all consciousness of the unlawfulness of the act ; or it may not exclude all consciousness of the unlawfulness : although it prompts the party to an act (accompanied by an unlawful intention) from which he would otherwise abstain. It is ouly in the first case that it is a ground of exemption in the Roman Law. It exempts, precisely as insanity ex- empts, and is in truth considered as temporary madness. When the anger does not exclude all consciousness of the unlawfulness of the fact, and is yet a cause of mitigation, the ground is not the absence of unlawful intention and of unlawful inadvertence, but the absence of deliherate inten- tion. In this, as in various other cases, the disposition of the party is taken into the account, and as less malignity of disposition is evinced by a criminal intention when sudden than when deliberate, the punishment is commonly less. In English Law for example, if the fact were homicide, the offence would in the one case be murder, in the other only voluntary manslaughter. On the other hand, where an act which does suspend the use of reason is not a ground of exemption, it is because the act arises remotely from negligence. Thus, where drunken- ness is not a ground of exemption, as in our own law, the party is not answerable because at the time of the wrong he was guilty of unlawful intention or unlawful inadvertence ; but because he has negligently placed himself in a position from which he might have known that criminal acts were not unlikely to ensue. I also stated too roundly that acquisitive prsescription in its direct form is unknown in the English Law. A prsescrip- tion in a que estate, as it is called, or a praescription of an easement appurtenant, is recognised directly by the English Law. But I think this is the only instance. Easements in gross are not acquired by prsescription in that direct way, but in the oblique mode before explained. Rights amounting to proprietas or dominium are never acquired by direct prsescrip- tion. The operation of the different statutes of limitation Sanctions Civil and Criminal. 0 W is piu^ely negative or extinctive ; it merely bars tlie riglit of Lect. a definite person, and does not give to tlie party in posses- .^^^^Zi sion a riglit wMcli lie can enforce against tlie world. I may X^lead the statutes of limitation in bar to an action brought by a party who would otherwise be entitled. But in order to enforce my right of property against thii^d parties, I can only proceed by proving anterior possession. This, against a per- son who can produce no title at all, establishes m}^ right. The distinction between acquisitive and negative prsescrip- tion turns solety, as it appears to me, upon the nature of the evidence which it is requisite to give in order to enable the owner to recover the thing when detained by a stranger. It may be only necessary to shew anterior possession, in order to enable him to maintain an action ; or to maintain an action it may be necessary for him to shew his title. If it be necessary to shew his title, then unless a title may be acquhed by acquisitive preescription, he cannot sustain the action. But the right which he possesses under the statute of limitation certainly would not enable him to maintain an action against a third party. Having endeavoured to explain the essentials of Injuries and Sanctions, and, therein, to illustrate the nature of obli- gations or duties, I will now advert to the differences by which sanctions are distinguished. If I attempted a com- plete examination of all these differences, the present inquiry would run to inordinate length: And those more imjDortaiit differences upon which I shall touch, will sufficiently sug- Sfest the others to the niemorv or reason of my hearers. And, first; Sanctions may be divided into civil and crimi- Sanctions nal, or (changing the expressions) into irriv ate and puhlic. As I remarked in a former Lecture, - ' the distinction be- tween private and public wrongs, or civil injuiies and crimes, does not rest upon any difference between the respective tendencies of the two classes of offences : All wronofs beinof in their remote consequences generally mischievous : and most of the wrongs styled public, being immediately detrimental to determinate persons. Viewed from a certain aspect, all wrongs and all sanctions are public. For all wrongs are violations of laws established dii'ectly or indii-ectly by the Sovereign or State. And all sanctions are enforced by the sovereign, or by sovereign authority. But in certain cases of wi^ongs which are offences against =^ Lecture XVII. p. 416, ante. civil and criminal. Pervading Notions analysed. Lkct. rights, or (cliarLgiiig the expression) whicli are breaches of ^^^\ ^ relative duties, the sanction is enforced at the instance or discretion of the injured party. It is competent to the deter- minate person immediately affected by the wrong, to enforce or remit the liability incurred by the wrong-doer. And, in every case of the kind, the injury and the sanction may be styled civil J or (if we like the term better) private. In other cases of wrongs which are breaches of relative duties, and in all cases of wrongs which are breaches of ab- solute duties, the sanction is enforced at the discretion of the Sovereign or State. It is only by the sovereign or state that the liability incurred by the wrong-doer can be remitted. And in every case of the kind, the injury and the sanction may be styled criminal or puhlic. In s(mie countries, the pursuit or prosecution of Crimes does not strictly reside in the sovereign or state, but in some member of the sovereign body. For instance, the pursuit of criminals resides in this country in the King; or, in a few instances, in the House of Commons, as when it im.peaches an alleged offender before the House of Lords. The defini- tion of a criminal sanction and of a crime must therefore be taken with this qualification. In short, the distinction between private and public- wrongs, or civil injuries and crimes, would seem to consist in this : Where the wrong is a civil injury, the sanction is enforced at the discretion of the party whose right has been violated. Where the wrong is a crime, the sanction is enforced at the discretion of the sovereign. And, accordingly, the same wrong may be private or public, as we take it with reference to one, or to another sanction. Considered as a ground of action on the part of the injured individual, a battery is a civil injury. The same battery, considered as a ground for an indictment, is a crime, or public wrong. The distinction, as I have now stated it, between civil injuries and crimes, must, however, be taken with the fol- lowing explanations. 1st. In certain cases of civil injury, it is not competent to the injiured party, either to pursue the offender before the tribunals, or to remit the liability which the offender has incurred. For example. An Infant who has suffered a wrong 2* See distinction between Civil Injuries and Crimes, in Lecture XVII., ' On Absolute Duties,' p. 417, ante. Sanctions Cizdl and Crbninal. 519 is not capable of instituting a suit, nor of renouncing the Lfxt. right which he has acquired by the injur}'. The suit is insti- . -^^ ^ . tuted on his behalf by a general or special Guardian : who (as a trustee for the infant) may also be incapable of remit- ting the oflPender's liability. It were, therefore, more accurate to say, that where the wrong is a civil injury, the sanction is enforced at the in- stance of the injured, or of his representative ; and that the liability of the offender (if remissible at all) is remissible by the injured party, and not by the sovereign or state. 2ndly. When I speak of the discretion of the sovereigTi or state, I mean the discretion of the sovereign or state as exercised according to law. For, hj a special and arbitrary command, the sovereign may deprive the injured of the right arising from the injury, or may exempt the v^rong-doer from his civil liability. [Herein lies the difference between go- vernments of law and governments of r\ien.'\ In one or two of the bad governments still existing in Europe, this foolish and mischievous proceeding is not uncommon. For example, Letters of Protection are granted bv the o-overmnent to debtors, and by these the debtors are secured from the pur- suit of their creditors. But in cases of this kind, the sove- reign partially abrogates his own law to answer some special purpose. This is never practised by wise governments, whether monarchical or other. The Great Frederick, in spite of his imperious temper and love of power, always conformed his o^vn conduct to his own laws. Letters of protection were granted in this country by the King, so late as the reign of William III.^^ These must have been illegal. For though the King is empowered by the Constitution to pursue and pardon criminals at his own dis- cretion, he is not Sovereign. It is not competent to him to disregard the law by depriving the injured party of a right of civil action. In an analogous case, this has, however, been done by the Parliament. A person named Wright sued a number of clergymen for non-residence and though he had been encouraged to bring these actions by the invitation of the existing law, Parliameut passed an Act indemnifying the clergymen, and put off poor Wright with the expense of the actions which he had brought. 22 See the case of Lord Cutts, 3 Lev. Tatinton, vols. v. and vi. I presume 332. the Act referred to is 57 Geo. ILL. c. 99. 23 Some of these cases are reported in — E.G. 520 Pervading Notions analysed. Lkct. The distinction between private and public wrongs, is ^^^^^ ^ placed bj some on another ground : Public and Where, say they, the injury is a crime, the end or scope of wiws. sanction is the frevention of future injuries. The evil inflicted on the individual offender, is inflicted as a punish- ment, or for the sake of warning or example. In other words, the evil is inflicted on the individual offender, in order that others may be deterred from similar offences. Where the injury is civil, the end of the sanction is redress to the injured party. Now, it is certainly true, that where the injury is treated as a crime, the end of the sanction is the prevention of future wrongs. The sanction is jpoena or punishment (strictly so called) : that is to say, an evil inflicted on a given offender in order that others may observe the law. Or (what is the same thing) the evil is inflicted on the given offender, by way of example, warning, or documentum : In order that others may be reminded of the evils threatened by the law, and may be convinced that its menaces are not idle and vain. This is manifestly the meaning of the word example, when we speak of punishment being inflicted for the sake of example. We mean that the punishment is inflicted by way of caution or warning : for the sake of recalling to others the threats of the law. The word commonly used by Latin writers, and more especially by Tacitus, is documentum. If the evil did not answer this purpose, it would be inflicted to no end. ^ It is also equally true, that where the injury is considered civil, the proximate end of the sanction is^ (generally speak- ing,) redress to the injured party. But, still, the difference between civil injuries and crimes, can hardly be found in any difference between the ends or purposes of the corre- sponding sanctions. For, first ; Although the proximate end of a civil sanction, is, generally speaking, redress to the injured party, its re- mote and paramount end, like that of a criminal sanction, is the prevention of offences generally. And, secondly; An action is sometimes given to the in- jured party, in order that the wrong-doer may be visited with punishment, and not in order that the injured party may be redressed. Actions of this sort (to which I shall advert immediately) are styled penal : In the language of the Roman Law, poence persequutorice. Sanctions Civil and Criminal. These propositions I will endeavonr to explain. It is quite clear that the necessity of making redress, and of paying the costs of the proceeding by which redress is compelled, tends to prevent the recurrence of similar in- jm-ies ; The immediate effect of the proceeding is the resti- tution of the injured party to the enjoyment of the violated right, or the compulsory performance of an obligation in- cumbent upon the defendant, or satisfaction to the injured party in the way of equivalent or compensation. But the proceeding also operates m terrorem. For it is seen that the wrong-doer is stripped of every advantage which he may have happened to derive from the wrong, and is subjected to the expenses and other inconveniences of a suit. Accordingly, a promise not to sue, in case the promisee shall wrong the promisor, is void (generally speaking) by the Eoman Law : Although it is competent to a party who has acttiaUy suffered a wrong, to remit the civil liability in- curred by the wrong-doer. And the reason alleged for the prohibition is this : That such a promise removes the salutary fear which is inspired by prospective liability. A right of action is not merely considered as an instrument or means of redress, but as a restraint or determinative from wrong. In short, the end or purpose for which the action is given is double : redress to the party directly affected by the in- jury, and the prevention of similar injuries : The accom- plishment of the former, which is the proximate purpose, tending to accomplish the latter, which is the remote and paramoimt. Assuming, then, that the redress of the injured party is always one object of a civil proceeding, it cannot be said that civil and criminal sanctions are distinguished by their ends or purposes. / It may, however, be urged, that the prevention of future I injuries is the sole end of a criminal proceeding ; whilst the end of a proceeding styled civil, is the prevention of future injuries and the redress of the injured. But even this wiU ' scarcely hold. For in those civil actions which are styled ■pe7ial, the action is given to the party, not for his own advan- tage, but for the mere purpose of punishing the wi'ongdoer. In the Eoman Law, actions of this kind are numerous. For example ; Theft is not a crime, but a private delict : But besides the action for the recovery of the thing stolen. 52 2 Pervading Notions analysed. T>K<^T, the thief was liable to a penalty, to be recovered in a distinct ^ \ action by the injured party. So, again, if the heirs of a testator refused to pay a legacy left to a temple or church, they were not only compelled to yield ' ipsam rem vel pecuniam quse relicta est, sed aliud, pro jpoend.^ There are (I think) cases of the kind in our own law, though I cannot at this instant recal them. In such cases, the end of the action is not redress, but prevention. Although by these civil actions a right is conferred upon the party injured, the end for which the actions are given is not to redress the damage which has been suffered by him, but to punish the wrong-doer, and by that means to prevent future wrongs. In the case of theft, for example, the damage sustained by the injured party is redressed by the first action for restitution, and the end of the other action for the penalty is solely the punishment of the offender. Also popular actions, or actions given cuivis ex populo, which exist both in the Roman and English Law, evidently have the punishment of the offender for their object. Laws some- Besidcs tliis principal distinction, there are other species times SHnc— x i j. tioned by of sanctions requiring notice. Laws are sometimes sanc- nuihties. tioned by nullities. The legislature annexes rights to cer- tain transactions ; for example, to contracts, on condition that these transactions are accompanied by certain circum- stances. If the condition be not observed the transaction is void, that is, no right arises ; or the transaction is voidable, that is, a right arises, but the transaction is liable to be re- scinded and the right annulled. Whether the transaction is void or voidable, the sanction may be applied either directly or indirectly. The transaction may either be rescinded on an application made to that effect, or the nullity may be opposed to a demand founded on the transaction. An in- stance of the first kind is an application to the Court of Chancery to set aside the transaction ; an instance of the second is afforded by a defendant who oiDposes a ground of nullity to an action at common law. The distinction in English Law between void and voidable is the same as that in the Roman Law between null ipso jure and ope exceptionis. The first conferred no right; the second conferred a right which might be rescinded or destroyed by some party in- terested in setting it aside. Ope exceptionis is an inadequate name, for the transaction might be rescinded, not only by exceptio, that is, a plea, but by applications analogous to an Various Meanings of the Word Sanction. 523 application to Chancery to set aside a voidable instrument, Lect XXYII Yicarious punish- ment. or an instrument obtained by fraud. In certain cases, sanctions consist in pains to be endured by others, and are intended to act on us through sympathy. These Mr. Bentham has styled vicarious punishments. They fall on other persons in whom we take an interest, and if they affect us at all, affect us by our sympathy with those persons. Forfeiture, in treason, is an instance. As it falls upon a person who by the supposition is to be hanged, it is evident that it cannot affect Idm^ but it affects those in whom he is interested, his children or relations, and may possibly, for that reason, influence his conduct. Annulling a marriage has in part the same effect, since it not only affects the parties themselves whose marriage is annulled, but also bastardises the issue. Sanctions, in some other cases, consist of the application of something not itself affecting us as an evil, but affecting us by association as if it were an evil. Posthumous dis- honour is of this nature. It is applied as a punishment in the case of suicides who are buried with certain ignominious circumstances. This, of course, can only operate upon the mind of the party by association, since at the time when he is buried he is not conscious of the manner of his burial. In adverting to the difference between civil and criminal sanctions, I forgot to say that where the sanction is criminal, or where the proceeding is criminal, or rather where the injury is considered as a crime, nothing but the intention of the party, the state of his consciousness, is looked to ; where, on the other hand, it is a civil injury, an injury must have been committed ; for the immediate end, by the supposition, is the redress of the injury to the given party : which supposes that an injury has been committed. The state of the party's consciousness is the only circumstance which is considered in crimes ; and on this principle a party is punished for attempts. Generally, attempts are perfectly innocuous, and the party is punished, not in respect of the attempt, but in respect of what he intended to do. I now advert to the various meanings of the word sanction. Tai-ious As it is at present used, it has the extensive meaning which I have attached to it, and denotes any conditional evil an- logy of the nexed to a law, to produce obedience and conformity to it. According to this acceptation, which I believe is now general among writers on the subject, the liabilities under civil actions may be called sanctions with the same propriety as meanings and etvmo- word Sanc- tion. 524 Pervading Notions analysed. Lect. punishmeiits under a criminal proceeding. But tlie term 55,1^ sanction is frequently limited to punishments strictly so called. This is the sense in which the word is used by Blackstone, though not consistently. With the Roman lawyers, who were the authors of the term, or rather who adopted it from the popular language of their own country, sanction denoted, not the pain annexed to a law to produce obedience, but the clause of a penal law which determines and declares the punishment. In the Digest the etymology of the word is said to be this : Sanctum is defined quod ah injuria hominum defensnm est, and is said to be derived from sagmina, the name of certain herbs which the Roman ambassadors bore as marks of inviola- bility. The term was transferred, in a manner not un- common, from the mark of inviolability, to what is frequently a cause of inviolability, namely punishment. In other cases sanction neither denotes the evil nor the clause determining the evil ; it signifies confirmation by some legal authority. Thus, we say that a Bill becomes law when sanctioned by Parliament, and that it does not becouie law till it is sanctioned by the Royal assent, or till it has re- ceived the Royal sanction. And it is often used in this sense by the Roman lawyers. Banctio is also used to denote generally a law or legislative provision, or to denote the law or body of law collectively. Thus, in the beginning of the Digest, totam Romanam Sanc- tionem is used for the whole of the Roman law. Sancire means to enact or establish laws. The manner in which it acquired this sense is easily conceivable. END OF THE EIEST VOLUME. tOWnON: PRIJTTED BY SPOTTISWOODE AND CO., NEW-STEEET gQUAllE AND PARLIAMENT STREET Date Due r Ati Rt in^ Jo h n> Le ctu r efi on jurisprudence • 3d ed» L45515 DATE iJ - volol ISSUED TO IJOSEPH RUZICXA aoOKBIHDERS BALTIMORE. MO. GRe?:NS80R0.N.C. WASMtNGTON,0.C.