Duke University 
 Law Library 
 
 GEORGE C. CHRISTIE 
 COLLEaiON IN 
 JURISPRUDENCE 
 
Digitized by the Internet Archive 
 in 2015 
 
 https://archive.org/details/institutesoflaw01lori 
 
THE Hs^STITUTES OF LAW. 
 
 i 
 
Has Icrrt vo/jlos Gvprjixa ^ilv kclX 8(jjpov Gewj/. 
 
 — Demosthenes. 
 
 "All human laws are, properly speaking, only declaratory." 
 
 — Burke. 
 
 Movov yap {jlovlixov to Kar' d^lav tcrov, Kai ro exetv to, avTOJV. 
 
 — Aristotle. 
 
 " The unfettered multitude is not dearer to me than the unfettered king." 
 
 — Channing. 
 
THE INSTITUTES OF LAW: 
 
 A TEEATISE OF THE 
 
 PRmCIPLES OF JURISPRUDEI^CE, 
 
 AS DETERMINED BY 
 
 NATURE. 
 
 BY ' 
 
 JAMES LOEIMEK, 
 
 ADVOCATE, EEGirS PllOFESSOK OF PUBLIC LAW AXD OF THE LAW OF NATURE 
 AND NATIONS, IN THE UNIVERSITY OF EDINBURGH. 
 
 X25 
 
 5t>33 
 
 LAW UBRARY 
 
 EDINBUEGH: 
 T. & T. CLAP.K, LAW PUBLISHEES, 38 GZOEGE STEEET. 
 
 1 872. 
 
PRINTED BY MUIR & PATERSON, 
 
 FOR 
 
 T. & T. CLARK, EDINBURGH. 
 
 Glasgow, ..... J. Smith & Son. 
 
 London, ..... Stevens & Sons. 
 
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 Dublin, ..... Hodges, Foster & Co. 
 
 New York, ..... Scribner, Welford & Co. 
 
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0 1^:7/3/ 
 
 To THE Dean axd Faculty of Advocates in Scotland, axd through 
 
 THEM TO the WIDE FrATERXITT OF JURISTS IN OtHER LaNDS, 
 
 this attempt to vindicate the necessary character of juris- 
 prudence by exhibiting it as a branch of the science of 
 Mature, is respectfully dedicated by their Loyal and 
 Affectionate Brother, 
 
 The Author. 
 
PREFATORY NOTE. 
 
 fJIHOUGH it does not seem desirable to encumber with a 
 Preface a work wliicli is already as clear as I can make it, 
 and somewhat f tiller than its XDrimarj object of a text-book for 
 those whom I hope to have many opportunities of addressing 
 seemed to demand, I cannot permit it to go to the public with- 
 out acknowledging the very great obligations under which I lie 
 to the two friends who have so kindly aided me in carrying it 
 through the press. When I mention the names of the Very 
 Eeverend Provost Cazenove, and Mt. JE. J. G. jMackay, Advocate, 
 I know that however presumptuous my task may still appear, 
 there will be but one opinion as to the fact that I have been 
 singularly happy in the learning and ability of my friends. But, 
 in expressing my gratitude to these gentlemen for assistance 
 which in many directions has been more than formal, I must 
 guard against the risk of their being made in any wise responsible 
 for my opinions. From some of the theological views which I 
 judged it necessary to indicate, Provost Cazenove vigorously 
 dissented; but he was not forgetful that truth being one, all who 
 honestly seek after truth are, eo ijpso, of one household, and as 
 such entitled to each other's aid, however diverse may be the 
 media through which they gaze, or various the aspects in v/hich 
 truth presents itself to their imperfect vision. May I hope that 
 
viii 
 
 PREFATORY NOTE. 
 
 those who do me the honour to criticize these pages from any of 
 the recognized points of view, either theological or political, will 
 extend the like indulgence to opinions with which few of them, 
 I fear, will be wholly satisfied ? Socrates tells us that he was 
 divinely warned to keep aloof from party politics ; and he com- 
 mends the warning to all who may be called to follow in his 
 footsteps, at however great a distance, either of time or of degree. 
 Tor my own part I have always felt as if there were " something 
 daemonic " which, even in our day, restrained those who pursue 
 the studies to which he was addicted from uttering the shibbo- 
 leth of any sect or party, either in Church or State. 
 
 In a work like this it is impossible that questions which 
 savour of metaphysics, as well as of theology, should not arise. 
 But I entreat my metaphysical, as I do my theological friends, 
 to remember that they are dealing not with one of themselves, 
 but with a jurist and speculative politician. It is a case of 
 " Propheten rechts Propheten links, das Weltkind in der Mitte," 
 and the " Weltkind " ventures to ask of the " Propheten " a 
 charity which, if he is well informed, they do not always extend 
 to each other. 
 
CONTENTS. 
 
 PAGE 
 
 Introduction, — Preliminary definitions and divisions, ... 1 
 
 BOOK I. 
 
 Of the Sources of TTatural Law. . . . . . . 13 
 
 CHAPTER L 
 
 I. The Primary Source. . . . . . . 15 
 
 II. The Secondary Sources or Channels of the Pievelation of Xatural 
 
 Law 21 
 
 Ist. Direct Eevelation — (a) ]\Iiraculous revelation to man ; (h) 
 Miraculous revelation through man ; (c) Special revelation 
 through man. ....... 24 
 
 2d. Indirect Pievelation — (a) Subjective ; (&) Objective. . 26 
 
 CHAPTEPt II. 
 
 Of the Schools of Jurisprudence. ..... 26 
 
 1st. The Theological School. ..... 27 
 
 2d. The Inductive or Observational School (subjective and ob- 
 jective). ....... 31 
 
 3'/tZ. The Subjective, or so-called Philosophical School. . . 33 
 
 4tJi. The Objective, or Sensational School. ... 34 
 
 CHAPTER III. 
 
 Of the Autonomy of Human Xature. ..... 39 
 
 15^. Oiir Xature asserts its Existence, and vindicates its Assertion. 39 
 2d. Our Xature guarantees the ^'eracity of its Testimony with 
 
 reference to its Qualities. . . . . . 41 
 
 Zrd. Our Xature asserts that it is the result of a Cause external to 
 
 itself, and independent of its Volition. ... 41 
 
 Ath. Our Nature accepts itself as a Gift, voluntarily given, but 
 
 necessarily received. ...... 42 
 
 5th. In accepting itself as Necessary, our Xature accepts itself as 
 
 Fdght, and its Fundamental Qualities and Normal Impulses as 
 
 the Criterion of Right and Wrong. .... 43 
 
X 
 
 CONTENTS. 
 
 CHAPTER IV. 
 
 ' PAGE 
 
 Inquiry into the History of Opinion with reference to Human Auto- 
 nomy. ........ 45 
 
 (^.) The Canon of the Limitation of the Historical Method. . . 46 
 
 {B. ) The Canon of the Application of the Historical Method. . . 48 
 ((7.) The Regulative Canons for the Application of the Historical 
 
 Method. ....... 48 
 
 1st. Preference must be given to the best Witnesses ; (a) to the 
 higher races of mankind ; (&) to the more vigorous periods of 
 their moral, intellectual, and political life ; and (c) to the 
 
 more highly developed portion of each community. . . 49 
 Id. Even among the Witnesses, the Principle that testimonia iJon- 
 
 dcranda sunt, non numeranda must be applied. . . 53 
 M. The Abstract Value of two Witnesses being equal, the Value \ 
 of a Coincidence between their Testimony will increase in Pro- 
 portion to the Dissimilarity, and diminish in Proportion to 
 
 the Similarity of the Circumstances in w-hich it is given. . 54 
 
 {A.) Of Oriental, or ante-classical Anthropology generally. . . 55 
 
 (a) The Shemitic Races. ' . . . . . . 55 
 
 {h) the Aryan or Indo-Germanic Rac.'es. . . . . 56 
 
 l.s/. The Original Aryan Family. . . . . 58 
 
 Id. The Eastern, or Indian branch, .... 69 
 
 Zd. The Western Asiatic branch. .... 74 
 
 Afh. ISTon- Aryan and Mixed races of Asia. ... 76 
 
 mil. Buddhism. ...... 77 
 
 (c) The Turanian Races. ...... 88 
 
 {B) Of Classical Anthropology — ..... 94 
 
 {a) Greece. ........ 94 
 
 {h) Rome. . . . . ... . . Ill 
 
 1. The Roman Law. . . . . . . 119 
 
 2. International Law. . . , ^ . . 122 
 (c) Alexandria. . . . . . , . 124 
 
 {C) Shemitic and Christian Anthropology. .... 125 
 
 (ft) The Bible. ....... 126 
 
 (b) the Fathers. . . . . ... . 126 
 
 (c) The Schoolmen and Ecclesiastical Jurists. . . . 128 
 {d) The Reformation. ...... 133 
 
 CHAPTER V. 
 
 Human Nature Reveals its own Impotence. .... 137 
 
 / CHAPTER VI. 
 
 How Man becomes cognizant of the Rule of Life. . . . 142 
 
 (ft) The Rule of Life is prescribed by our whole Nature, . . 143 
 
 ■ib) Conscience is not a separate Faculty. . . . . 145 
 
CONTENTS. Xi 
 CHAPTEE VII. 
 
 PAGE 
 
 Of the Teaching of ]S!'atnre with reference to Human Eelations, . 160 
 
 1. J^atnre reveals no Eights in relation to the Creator. . . 160 
 
 2. Nature reveals Duties in relation to the Creator. . . 162 
 
 3. iSTature, in our relation to Creation, Animate and Inanimate, 
 
 reveals Eights. . . . . . .- 167 
 
 {a) The fact of Being involves the right to be. . . 167 
 
 (&) The right to be involves the right to continue to be, . 168 
 (c) The right to be, and to continue to be, implies a right 
 
 to the conditions of Existence. . . ; . 170- 
 
 {d) The right to be implies a right to develop our Being, 
 
 and to the conditions of its Development. . . 173 
 
 (e) The right to be involves the right to reproduce and 
 
 multiply our Being. . . . . . 176 
 
 (/) The right to reproduce and multiply our Being, involves 
 
 the right of transmitting to our Offspring the conditions 
 
 of the existence which we confer, . . , 178 
 
 (g) The right to be involves the right to dispose of the 
 
 fruits of Being, i/i^er r/yo5. , . . . 178 
 
 (h) The right to be involves the right to dispose of the 
 
 fruits of our Being, mortis causa. . . . 181 
 
 {i) All our subjective rights resolve themselves into the 
 
 right to Liberty, ...... 182 
 
 (j) In the Limitations which Nature imposes on our subjective 
 
 rights, we have the first revelation of the Principle of 
 
 Order. . . . . . . . 183 
 
 (a:) Nature reveals to us the possibility, and the consec![uences 
 
 of the transgression of her Laws. . . . . 184 
 
 (l) Nature reveals objective rights which exactly correspond 
 
 to our subjective rights. . . . . . 185 
 
 4. Nature reveals objective Duties, or duties by others to us, 
 
 which exactly correspond to our subjective Duties, or duties 
 
 by us to others. ...... 188 
 
 5. The existence of subjective and objective rights and duties, 
 
 and of their mutual dependence, constitute the sole Eevela- 
 tion which Nature makes to us vfith reference to Human 
 Eelations. 189 
 
 CHAPTER VIII. 
 
 How we become cognizant of Law in General. .... 190 
 
 1, Natural Laws are rational inferences from the facts of Nature. 190 
 
 2. Natural Laws are necessar}^ inferences from the facts of Nature. 191 
 
 3. Natural Laws determine the ultimate objects of Positive Laws, 
 
 and fix the Principles of Jurisprudence as k whole. . . 192 
 
 4, The Natural or de facto basis on which Positive Law rests being 
 
 known, the Positive Law which governs any given Human 
 
 relation may be discovered. . . . . . 194 
 
xii 
 
 CONTENTS. 
 
 5. Though necessarily existent and discoverable, Positive liaws 
 never have been, and probably never will be, perfectly dis- 
 covered. ....... 197 
 
 CHAPTER IX. 
 
 Of the Laws of Nature, or Principles of Jurisprudence which result from 
 
 the Human rights and duties which Nature reveals as facts. . 199 
 {a) All Human Laws are declaratory. . . . . Z 199 
 
 (b) Law cannot constitute, extend, or circumscribe a proprietary 
 
 Relation. . . . . . . . 202 
 
 (c) Law cannot fix a Price. . . . . . 214 
 
 CHAPTER X. 
 
 Of the Eelation between Legislation and Jurisdiction. . . . 216 
 
 The Function of the Judge, as such, is limited to the interpretation 
 
 and application of written, or consuetudinary. Law. . . 216 
 
 CHAPTER XI. 
 
 Of the History of the Distinction between Perfect and Imperfect Obli- 
 
 gations ; and its effect in giving rise to the Negative School of 
 
 Jurisprudence. . . ..... 220 
 
 {a) Rights and Duties being throughout reciprocal and co-exten- 
 sive, there is no distinction, in principle, between one class of 
 
 obligations and another. ..... 220 
 
 (b) The attempt made to distinguish between Perfect and Im- 
 
 perfect Obligations was not unknown to Antiquity. . . 224 
 
 (c) It is Generally ascribed to Thomasius, . . . 226 
 {d) Position with reference to it of Leibnitz and others down to 
 
 the time of Kant. ...... 228 
 
 (e) Kant's modification of the Doctrine. .... 230 
 
 (/) Influence of external events on Kant's theory. . . 233 
 
 (g) Hutcheson's position with reference to it. . . . 235 
 
 (h) Dr. Reid hesitated to adopt it. . . . . 236 
 (t) Stewart adopted it. . . . , . . 237 
 {j) Brown first consciously and expressly repudiated it. . . 237 
 {k) German writers of the Positive School. . . . 240 
 (/) School of Krause, as represented by Roder. . . . 241 
 
 CHAPTER XII, 
 
 Of Justice and Charity. ...... 248 
 
 (a) The Principles of Justice and Charity are identical ; their 
 separate realization is impossible ; and their common realiza- 
 tion necessarily culminates in the same action. . . 248 
 (5) The Doctrine of the identity of the Principles of Justice and 
 Charity was taught by Christ's Mediatorial Sacrifice, and is 
 implied in the whole Scheme of Redemption. . . 262 
 
CONTEXTS. 
 
 xiii 
 
 PAGE 
 
 (c) The Doctrine of the identity of Justice and Charity was not 
 first promulgated by Christ, and is not exceptionally Chris- 
 tian. ........ 267 
 
 BOOK II. 
 
 Of the Objects of Natural Law and Jurisprudence in General. . 277 
 
 CHAPTER I. 
 
 Of the Eelation between Jurisprudence and Ethics. . . . 279 
 
 (a) The Ultimate Object of Jurisprudence is the Eealization of the 
 Idea of Humanity ; (6) The Proximate Object of Jurispru- 
 dence, the Object which it seeks as a Separate Science, is 
 
 CHAPTER II. 
 
 Of the Eelation between Order and Liberty. .... 291 
 Order and Liberty, like Justice and Charity, are in Principle 
 Identical. They can be Eealized only in Conjunction, and 
 
 necessaiily culminate together. .... 291 
 
 CHAPTER III 
 
 Of the History of the Doctrine that the Idea of Liberty involves the 
 
 Idea of Absolute Equality. ..... 298 
 
 {a) As a Protest against Authority. . . . . 300 
 
 (&) By the Jesuits. . . . . . . 301 
 
 (c) ByHobbes. . . . . . . ' . 301 
 
 (d) Spinoza. ....... 306 
 
 (e) Eousseau. ....... 309 
 
 (/) Democrats of the Eevolution. .... 312 
 
 {g) Ahrens. ....... 313 
 
 CHAPTER IV. 
 
 Of the Eelation of Equality to Liberty continued. . . . 321 
 
 In what Sense is Equality involved in the Idea of Liberty ? The 
 Idea of Liberty involves the Idea of Equality in one sense only, 
 that which is popularly called "Equality before the Law." . 321 
 {a) Analytic Justice. . . . . . . 325 
 
 (i) Synthetic Justice. ...... 326 
 
 CHAPTER V. 
 
 Of the Natural Eight of Aggression. ..... 332 
 
 (a) Aggression is a Xatural Eight, the Extent of which is ]\Ieasured 
 by the Power which God has bestowed on the Aggressor, or 
 permitted him to Develop. Up to this point, the Eight of 
 Conquest, Individual, Social, Political, and Ethnical, is in- 
 volved in the Idea of Liberty, and included in the Objects of 
 Jurisprudence. ...... 332 
 
xiv 
 
 CONTENTS. 
 
 {b) The Right of Aggression justifies the application of Force, and 
 involves the Eight of War, when, and to the extent to which, 
 Force or War is necessary for its Vindication. . . 335 
 
 BOOK III. 
 
 Of the Sources of Positive Law, or Special Jurisprudence. . . 339 
 
 CHAPTER I. 
 
 Of the Ultimate Sources of Positive Law. .... 341 
 (a) The Law of Nature ; (5) The Conditions of Existence under 
 
 which that Law must be realized. .... 341 
 
 CHAPTER XL 
 
 Of the Proximate Sources of Positive Lav/. .... 342 
 
 (a) The Primary Soui'ce of Positive Law is the Power, as exhibited 
 in and measured by, the Rational Will of the whole Com- 
 munity subject to the Law. ..... 342 
 
 {&) The Secondary Sources of Positive Law are the means by 
 which the Community vindicates its Power in accordance 
 with Reason, or in other words its real as distinguished from 
 its apparent Power. ...... 342 
 
 CHAPTER in. 
 
 Of the Primary Source of Positive Law. .... 342 
 
 (a) Positive Law will exist in a Community, or in other words, a 
 Community will be practically Autonomous, to the Extent to 
 which Power and Reason exist, and coincide in it, or in other 
 
 words, to the extent to which its Power is real . . 342 
 
 (b) Positive Law can originate and subsist in a Community only 
 
 to the extent to which that Community is Free, and all true 
 Legislation is thus, in the last analysis, Self-Legislation. . 344 
 
 (c) Positive Law can spring only from the whole Autonomous Com- 
 
 munity which obeys it. .... . 348 
 
 {d) As the Presence of Positive Law is proportioned to the exist- 
 ence and Coincidence of Power and Reason, or, in other words, 
 to the existence of real as opposed to apparent Power, in 
 the whole Community, the Contributions which the Individual 
 Members of the Community make to it will be proportioned 
 to the existence and coincidence of Power and Reason, or the 
 existence of Real Power, in each of them. . . . 349 
 
 CHAPTER IV. 
 
 The Doctrine of the Kecessary Sovereignty of the Rational Will of the 
 whole Community is in accordance with the Common Sense of 
 Mankind. ....... 350 
 
COXTEyiS, 
 
 XV 
 
 CHAPTER T. 
 
 PAGE 
 
 Of tlie Secondary Sources of Posirlve Lavr. .... 359 
 Tlie Secondary Sources of Positive Law are tlie means by wMch 
 tlie Conunnnity Tindicates its Power in accordance witli 
 Eeason — ^that is to say, its real Power. . . . 359 
 
 I. The means by wMchthe Commnnity forms its Ptational "Will. . 359 
 
 1. Tlie drarck . . ' . . . . 359 
 
 2. The School, including the University, in so far as the 
 
 latter is regarded merely as a means of Instrnction and 
 Discipline, and not as an Organ for the advancement of 
 Science. ...... .369 
 
 3. The Press. . . . , . . . 373 . 
 
 4. The PoUing-Booth. . . . . . 350 
 
 II. The means by which the Commnnity develops its Rational 
 
 Will. \ . . \ . . . 383 
 
 [a) Individual and Class Enort. .... 3S3 
 
 (5) Social Organization. . . . . . 396 
 
 (c) By the Selection, and Setting Apart, of Exceptional "VTork- 
 
 men for Exceptional "Work. . . . . 393 
 
 III. The means by which the Community ascertd.ns its Piational 
 
 Win. \ . . \ . . . 406 
 
 [a) The amount of Organization Ptequisite for the Ascertain- 
 ment of the Rational Will, wiH be in an Inverse Ratio to 
 the Amount of direct personal contact with each other, 
 on the part of individuals whose Rational Will is to be 
 ascertained. . . . . . . 407 
 
 (6) For practical purposes it will, in general, be necessary 
 
 that Citizens included in each Polirical Class or Category, 
 be dealt with as contributing an eq^ual amount of 
 Rational WiR. . - . . . . 412 
 
 (c) The Amount of Classihcation req^uisite for Legislative Pur- 
 
 poses will correspond to that which has been adopted for 
 Economical and Social Purposes, for the time being. . 415 
 
 (d) The Electoral System. . . . . . 416 
 
 IT. The means by which the Community declares its Rational 
 
 WiU. . . ' . . . 416 
 
 {a) Legislation. ...... 416 
 
 (h) Consuetude. . . . . . . 417 
 
 T. The means by which the Rational WiR of the Community is 
 applied to the Special Case, may be either Spontaneous, or 
 by Jurisdiction. . . . . . . 417 
 
 VI, The means by which the Community enforces its Rational 
 
 Will, .* . 418 
 
 BOOK lY. 
 
 Of the Objects of Positive Law. 
 
 421 
 
xvi 
 
 CONTENTS. 
 
 CHAPTEK T. 
 
 PAGE 
 
 Of the Ultimate Object of Positive Law. .... 423 
 
 The ultimate Object of Positive Law is— Liberty; The Proximate 
 
 Object of Positive Law, its Object as such, is Order. . . 423 
 
 CHAPTER n. 
 
 Of the Primary and Secondary Objects of Positive Law. . . 423 
 
 (a) Primary. . . . . . . . 423 
 
 (&) Secondary, ....... 424 
 
 The Objects of Positive Law may be Classified with reference either to 
 the Spheres within which they seek their Realization, or to the 
 Forms in which they are manifested. From the former point of 
 Yiew, two schemes of Division have been proposed. . . 435 
 
 L The Roman Division into Public Law and Private Law. . . 436 
 
 (1.) Public Law within the State. ..... 436 
 
 (a) The First Branch of Public Law within the State, is that 
 which has for its object to measure the Autonomous 
 Power of the Community, by ascertaining its Rational 
 
 Will. 436 
 
 (b) The Second Branch of Public Law within the State is 
 
 that which regulates the individual relations of the 
 
 Citizens to the State. ..... 436 
 
 (c) The Third Branch of Public Law within the State fixes 
 
 and apportions Taxation, and other Pecuniary Burdens. . 437 
 (2.) Public Law without the State, or the jus inter gentes — 
 
 (a) Pacific ; (b) Hostile. ..... 437 
 
 (3.) Private Law within the State, or Municipal Law — {a) The 
 Domestic Relations, or Relations of Life in the Family ; (5) the 
 Social Relations, or Life in Society. .... 437 
 
 (4.) Private Law without che State, or Private International Law. 437 
 
 II. The Second Scheme divides Positive Law into National and Inter- 
 
 national ; and these again into Public and Private, — 
 1st. (a) National Public Law; and (b) National Private Law. . 437 
 2,d. {a) International Public Law; and (&) International Private 
 
 Law. ........ 437 
 
 III. Classification of the Branches of Positive Law from the Domains 
 
 which they embrace. ...... 437 
 
 {a) Common, or Consuetudinary Law (unwritten Law) ; (b) Statute 
 Law (written) ; (c) Codified Law ; {d) Treaty Law ; (e) The 
 received, or Politically Orthodox Interpretation of revealed 
 Law. ........ . 438 
 
 Conclusion, — Of the Conciliatory Relation in which the System of 
 Positive Law which Logically Results from the Principles of 
 Jurisprudence as determined by Nature, stands to the Pro- 
 gressive and Conservative Schools of European Politics. . 439 
 
IXTEODUCTIOX. 
 
 PRELDIIXAEY DEFIXITIOXS AXD DIVISIONS. 
 
 I. "PvEFIXITIOXS and Divisions are possible only after tlie 
 
 tlie goal, rather tlian the starting-point, of scientific inquiry. 
 But on the other hand, inasmuch as the sight of the hutt is neces- 
 sary to the archer, we shall do v^ell to place before ns at the out- 
 set, as clearly as ve can, the object at Avhich we aim. This pro- 
 ceeding is the more necessary in consec|iience of the want, in our 
 own system of legal instruction, of any preliminary course cor- 
 responding to what in Continental Universities is called Ency- 
 clopteilia, in which the skeleton, so to speak, of the science on 
 which he is about to enter is exhibited to the student. 
 
 AA'itli this view, then, the branch of science, with the study of 
 which we shall be here engaged, may be described as having, for 
 its object, the discovery of the necessary relations of man to man: 
 in other words, of the conditions of perfect human co-existence 
 or at least of progress towards the realization of the ideal of 
 Society. In further illustration, we may describe natural law, 
 by anticipation, as the dictates of reason with reference to human 
 relations: as the rule of absolute rectitude in so far as it is dis- 
 coverable by man : or, lastly, as the permanent element in posi- 
 
 subject of them is known. They must conseciuently be 
 
 A 
 
2 
 
 INTEODUCTIOK 
 
 tive law. Otlier definitions of a more abstract character will 
 suggest tliemselves to those who are accustomed to German forms 
 of thought. We might speak of it, for example, as The Infinite, 
 in so far as it is realizable in the finitude of the human relations; 
 or, with Hegel, as " the reign of liberty realized." But, address- 
 ing myself to professional students, and having practical rather 
 than theoretical objects in view, I shall as far as possible avoid 
 all forms, both of thought and expression, which may not fairly 
 be assumed to be familiar to cultivated persons generally, in this 
 country. 
 
 In designating this subject " the law of nature," it is obvious 
 that, whilst the term ''law" is employed in the general sense of 
 cosmical arrangement, we use the term " nature" in a more 
 restricted sense than that in which it is often identified with 
 created existence.^ The law of nature, in the jural sense, is not 
 the whole sclieme of the universe, but the branch of that scheme 
 which has reference to the relations of man to surrounding 
 existences, and more especially to his fellow-men. Even here it 
 does not directly deal with the physical relations in which man 
 stands to the external world, whether animate or inanimate, — 
 for example, the laws of growth and decay, of digestion, assimi- 
 lation, generation, and the like, — though indirectly its effects on 
 these relations are very great. 
 
 As illustrating the difficulty of so defining natural law, in the 
 jural sense, as to keep it apart from theology on the one hand, 
 and physiology on the other, I may mention tlie manner in 
 which law, as a whole, has been divided by two of the greatest 
 
 ^ As, for example, by the Duke of i^rgyll, in his Eclcjn of Law. 
 
INTEODUCTION. 
 
 3 
 
 minds that ever were brouglit to bear on its elucidation, — St. 
 Thomas Aquinas, and our own not less saintly Hooker. The 
 first, which was generally followed by the theologians and school- 
 men, was this: — 
 
 1. Eternal Law = that of the Divine and general government 
 of the universe. 
 
 2. ISTatural Law^=that of finite creatures endowed with reason. 
 
 3. Human Law = that which has reference to human relations. 
 
 4. Divine Law = the order of salvation specially ]jrovided for 
 man.^ 
 
 The second — Hooker's scheme — was this : — 
 
 1. Law which God from the bes^inninsr set for Himself. 
 
 2. Law which natural agents observe. . 
 
 3. LaAv which the angels obey. 
 
 4. TiaAv which directs man to the imitation of God.^ 
 Without entering on the manifest objections which might be 
 
 stated to each of these schemes, many of which were obviated in 
 the rich and varied discussions to which they gave rise, we may 
 repeat, in a word, that our conception of natural law is — the laAV 
 for the general government of the universe only in so far as it 
 has reference to the relations of men, 
 
 11. I^atural law, when treated as a science, is often called the 
 philosophy of law.* But, inasmuch as nature is a more definite 
 conception than philosophy, the former epithet is preferable; 
 
 ^ Lex naturalis nihil aliud est, quara participatio legis seternEB in rationali 
 creatura. 
 
 ^ Summa Theologies, Prima, Secundce, QikesUo xci. 
 ^ Ecclesiastical Polity, vi. p. 72. 
 
 4 See tlie list of works at the end of the first volume of Ahrens's Cours cle Droit 
 Naturel, p. 325. 
 
4 INTRODUCTION. 
 
 and for this reason, probably, recent writers seem mostly to bave 
 reverted to it. I have adojjted tbe terms, " Institutes of Law," 
 and " Principles of Jurisprudence as determined by I^ature," in 
 order to indicate tbe fundamental relation in wbicb tbe subject 
 stands to all tbe departments of positive Law. 
 
 IIT. Tbe science of tbe law of nature, or tbe pbilosopby of 
 law, professes to furnisb us witb tbe doctrines of natural law in 
 tbe abstract. Tbe law of nature is tbus tbe subject witb wbicb 
 tbis science is conversant ; but it is no more identical witb tbe 
 science tban tbe subject of any otber brancb of study is iden- 
 tical witb tbe study itself, e.g., the laws of tbe vegetable or animal 
 creation, witb tbe sciences of botany, zoology, anatomy, or pbysi- 
 ology. Tbere are laws of nature wbicb govern tbe growtb and 
 decay of plants and animals, wbetber we know tbem and obey 
 tbem, or ignore tbem and violate tbem. And just in tbe same 
 way, tbere is a law of nature wbicb governs tbe buman life of 
 man, wbetber we discover it and follow it, or blindly and ignor- 
 antly set it at defiance. " It is," says Abrens, " witb moral 
 order as witb physical order. Tbe law of attraction existed and 
 governed tbe relations of natural existences, before it was dis- 
 covered by Newton and determined by science." In like 
 manner Max Miiller tells us bow long it was before tbe Greeks 
 arrived at a complete nomenclature for tbe parts of speech. But 
 tbere were parts of speech before they were discovered by tbe 
 Greeks, and, strange as it may seem to us, they were known to 
 Sanscrit literature. What is true of tbe laws of life and of lan- 
 guage, is not less obviously true of tbe laws of thought, or of 
 their applications. Logic may have been discovered by Aris- 
 totle, but it was both used and abused in tbe garden of Eden. 
 
IXTRODUCTIOX. 
 
 5 
 
 To snppose, then, tliat because positive laws existed before the 
 natural laws, of which they were imperfect, local, and tempo- 
 rary realizations, had been scientifically evolved, positive law 
 therefore preceded natural law in point of time, is just as great 
 an absurdity as to suppose that because houses were built up 
 and tumbled down before the law of attraction was discovered, 
 they did not stand or fall in accordance with that law ; or that 
 because men spoke before they knew the parts of speech, they 
 did not make use of nouns and verbs every time they gave 
 utterance to articulate sounds. 
 
 TV. The science of jurisprudence differs from the science of 
 natural laAv, and from the philosophy of law, in this respect, that, 
 in addition to the discovery of the doctrines of natural law and 
 their general and permanent action, it includes their local and 
 temporal realization, i.e. positive law, properly so called, in all 
 its branches. Jurisprudence thus embraces legislation, whether 
 the subjects with which it deals be political, economical, or 
 social, national or international, civil or ecclesiastical, public or 
 private, general or particular, as well as jurisdiction and execu- 
 tion : Avhilst the sphere of an academical Faculty of Law 
 extends to the study of the whole human relations, whether 
 these relations be necessary and permanent, or accidental and 
 transitory. 
 
 \. Positive law may be regarded either as a science or as an 
 art. The science is the result of a process of analysis — the art 
 of a process of synthesis resting on the previous analysis ; and 
 inasmuch as the existence of the synthesis without the analysis 
 is impossible, there can be no art of positive law without a 
 science of positive law. 
 
6 
 
 INTRODUCTION. 
 
 (yl) Tlie science of positive, law lias, for its object, tlie dis- 
 covery of tlie law of nature in special circumstances, and with 
 reference to special relations. 
 
 {B) The art of positive law has, for its object, the realization of 
 the law of nature by special enactments, and its vindication in 
 special circumstances and relations. 
 
 Law as an art assumes three functions : — {a) Legislation ; 
 (Ij) Jurisdiction; (c) Execution. 
 
 Apart from their realization in positive laws, the rules of 
 natural law are merely hypothetical and contingent, depending 
 for their concrete forms on the answer which may be given by 
 observation and experience to questions of fact which they do 
 not profess to solve. Natural law thus forms the major premiss 
 of the syllogism of which the legislative enactment, or the 
 judicial sentence, is the conclusion ; or, to use a professional 
 illustration, it draws the issue to which positive law returns the 
 verdict. 
 
 Every legislative enactment thus involves the previous de- 
 cision of a question of natural law ; and every judicial sentence 
 involves the acceptance of that decision. The three moments 
 of jurisprudence are thus — natural law, human enactment, and — 
 in case of controversy — judicial decision. 
 
 VL In consequence of the imperfection which clings to 
 humanity, human enactments never attain to the full character 
 of positive laws. But they possess the character of positive 
 law, more or less, in proportion to the extent to which they 
 are, or are not, interpretations and realizations of the law of 
 nature. Enactments, in so far as they fail to realize the law of 
 nature must be errors, and may be crimes. Even where there 
 
IXTRODUCTIOX. 
 
 7 
 
 is no criminal intention on the part of tlie legislature, laws 
 formally enacted may fall sliort of tlie character of positive laws 
 from three causes : — 
 
 («) From an erroneous conception of the laAv of nature to be 
 realized. 
 
 (&) From an erroneous appreciation of the special circum- 
 stances in which the law of nature is to be realized, and, as a 
 necessary consec[uence, of the provisions by which the law of 
 nature is realizable. 
 
 (c) From changes in the special circumstances of the com- 
 munity, which liaA^e rendered provisions by which the law of 
 nature was formerly realized, inoperative. But inasmuch as 
 men are liable to err, not only in interpreting and realizing the 
 law of nature anew, but in judging of the manner in which it 
 has already been interpreted and realized, great caution ought to 
 be exercised in condemning and altering enacted laws. More- 
 over, as all human enactments must embody some element 
 of error, it does not follow that an existing law shoid.d 
 be altered the moment that the fact of its divergence from 
 natural law, or even the direction in which it diverges, has 
 been discovered. In the latter case, the manner in which it 
 must ultimately be altered, or developed, will, in a general way, 
 be known, but the means of its amendment, i.e. the special 
 form which the new enactment ought to assume, may still be 
 undetermined. 
 
 YII. Fluman judgments may honestly fail to realize the law 
 of nature in the individual case, from three causes : — 
 
 («) From failure on the part of the judge to discover, or 
 to understand, the enactment in which the law of nature has 
 
8 INTRODUCTION. 
 
 been more or less perfectly realized in the wider spliere of 
 legislation. 
 
 (h) From failure on the part of the litigant, or his representa- 
 tive, to present the facts of the individual case, or to present 
 them intelligibly, to the judge. 
 
 (c) From failure on the part of the judge to apprehend the 
 facts of the individual case when intelligibly presented to 
 him. 
 
 VIII. The law of nature may further be negatively defined by 
 distinguishing it from the following subjects with which it has 
 often been confounded : — 
 
 (a) From a primitive code, or body, of consuetudinary law, 
 which is supposed to have prevailed in an imaginary " State of 
 Nature." Such a code, had it ever existed, like all other codes, 
 would have been a body of positive law ; and, as the work of an 
 age destitute of experience, and of minds destitute of culture, 
 must have been a very imperfect one. 
 
 (h) From a " primitive contract " by which men are supposed 
 to have agreed to observe the principles of justice in their deal- 
 ings with each other, — a contract into which they could not 
 have entered until these principles were known to them, and the 
 assumption of which consequently involves a j^ditio principii. 
 
 (c) From a preliminary department special to the law of 
 nations, to which natural law stands, as we shall see, in the 
 same relation scientifically as to all of the other departments of 
 positive law. 
 
 {cl) From those rules of the law of nations which rest on con- 
 suetude, and not on treaty, or which are enforced by opinion or 
 by war, and not by judicial authority, the manner of their 
 
MTRODUCTION, 
 
 9 
 
 generation, or of tlieir enforcement, making no difference to the 
 positive character of these rules. 
 
 {e) Trom the jus ncduraU of the Eomans, which extended to 
 the lower animals, and included the laws of their physical 
 generation and life — thus embracing, or at any rate mixing 
 itself up with, another branch of natural law, in the wide 
 sense in which it is identical with the general scheme of 
 existence. 
 
 (/) From the jus gentium of the Eomans, which was a body 
 of equitable rules, possessing, in a general sense, the character 
 of positive law, and intended to regulate the relations between 
 those who were, and those who were not, Eoman citizens. 
 Gaius's conception of the jus gentium, however, as quocl natu- 
 ralis ratio inter omnes homines constituit} comes very close on the 
 modern conception of natural law ; and a still closer approxima- 
 tion is to be found in the sense in which Cicero, and the Stoics, 
 frequently speak of jus nciturale, and in which it occasionally 
 appears in the Digest, e.g., Icl quod semper wquum et ho7ium est, 
 jus clicitur, ut est jus naturcde'"^ 
 
 (g) From equity, in the English, and to a certain extent in 
 the Eoman sense of a body of positive rules supplementary to 
 the rules of the common law ; and indeed from equity in any 
 other sense, if such there be, in which it is not simply an equi- 
 valent for justice. 
 
 Even when the Praetorian law is spoken of as naturalis ccquitcts 
 (Prcetor naturalem cequitalem seqiii clicitur) and the like, it is 
 
 ^ Dig. dejustitia, etjure. t. 1-9. 
 
 ^ Dig. t. 1-11. Troplong, de Vinfluence dio Christianisme sur le Droit Civil, 
 p. 53. 
 
10 
 
 INTRODUCTION. 
 
 meant that the praetor, in the absence of any positive law, finds 
 out what the positive law of the case really is, i.e. discovers the 
 decision which is in accordance with natural law, in the concrete 
 instance.^ 
 
 IX. The most noteworthy divisions of the science of jurispru- 
 dence are the following : ^ — 
 1. That of Ulpian, into — 
 
 {a) Jus ITaturale = Laws of Animal being; 
 
 (b) Jus Gentium = General Laws of Human well-being; 
 
 (c) Jus Civile = Eoman Municipal Law; 
 the two latter being subordinated to the former. 
 
 The following objections to this scheme present themselves: — 
 
 1st. Jus natuTctle being equivalent to the laws, not of human 
 well-being, but of animal being, includes matter that belongs to 
 physiology and not to jurisprudence. It consequently is not 
 exhausted by its subordinate members, the jits gentium and the 
 jus civile, which refer exclusively to human well-being. 
 
 2cl. The meaning of the jus gentium is indefinite, wavering 
 between that of the jus naturcde in the modern sense, and the 
 jus inter gentes or international laAv. 
 
 od. ISTo other provision is made for the jus inter gentes. 
 Cosmopolitan conceptions were familiar to the Stoics, and 
 are traceable to Socrates,^ but from the relation in which 
 the Eomans stood to the rest of the world, they did not recog- 
 nize international law as a separate branch of jurisprudence. 
 From the conflicts of jurisprudence, however, which ultimately 
 
 ^ Dig. ut Sup. Gul. Grotii Enclicir. p. 14. 
 
 2 Savigny, System des Heutigen Bom. Redds, Beylage T. vol i. p. 413. 
 s Zeller, Socrates, and the Socratic Schools, p. 139, and Stoics, Epicureans, and 
 Sceptics, p. 308. 
 
IXTEODUCTIOX. 
 
 11 
 
 arose in conseci_iience of the various municipal systems of tlie 
 conc|uerecI nations, wliicli the Eomans did not wholly abolish, 
 they ^veve led to work out many important ciuestions of private 
 international lav\^ 
 
 2. That of Gains. 
 
 (a) Jus Gentium = General Laws of Human yell-being. 
 (5) Jus Civile = Eoman ^Municipal Lav. 
 
 Savignv holds this division not only to be the correct one, but 
 the one that was generally adopted by the Eoman jurists. It is 
 open, I think, notwithstanding, to the following objections : — 
 
 1st. Tlie jus gentium, though closely approaching to the 
 modern idea of natural law, is scarcely equivalent to it. It 
 varies between the conception of natural law, as a sort of ec|uity 
 of which the Praetorian rather than the civil law was the vivcc 
 vox, and that of the jus inter gentes. 
 
 '2d. The jus civile, supposing it to include the municipal law 
 of other nations, as well as that of Eome in all its branches, is 
 not ec|uivalent to positive law, because it does not include the 
 jus inter gentes. It consecLuently does not exhaust the science of 
 jurisprudence on its positive side. It would have done so, how- 
 ever, had the fiction of an universal empire, which the Eomans 
 cherished, become a reality; because there could in that case 
 have been no jus inter gentes. This last oljjection consequently 
 has no logical validity against the Eoman jurists. 
 
 3. Modern Division. 
 
 {fi) Xatural Law = Xecessary Laws of tlie human relations. 
 (l) Positive Law = Contingent Laws of the human rela- 
 tions. 
 
 1 Guthrie's Savigny, p. 23. 
 
12 
 
 INTRODUCTION. 
 
 Positive law being further subdivided into, 
 
 (c) Municipal Law ; the jus civile, or jus gentis, public and 
 private.^ 
 
 (d) International Law, the jus inter gentes, public and pri- 
 vate. 
 
 Vindication of the Modern Division. 
 
 The modern division proceeds on the hypothesis that the 
 question, to what extent the limits of positive law shall be made, 
 for the time and place under consideration, co-extensive with 
 those of natural law ? — that is to say, to what extent shall 
 natural law be enforced, or left to vindicate itself indirectly ? 
 — is a question of what is vulgarly called expediency ; and this 
 hypothesis, as we shall afterwards see, is warranted by the 
 results of the science of jurisprudence. ISTo portion of the sphere 
 of natural law^ is theoretically, or ex hypothesi, excluded from 
 the sphere of positive law; and municipal and international 
 law, which form the constituent elements of positive law, are 
 thus adequate to exhaust the sphere of natural law in the 
 modern, though not in the ancient sense. 
 
 ^ The division of law into public and private was known botli to tlie Greeks 
 (Demostli. in Timocrat. 760, § 192) ; and to the Romans [Tiistit. 1. i. tit. i. § 3). 
 2 As to the relation between natural law and ethics, v. infra book ii. chap . i. 
 
BOOK I. 
 
 OF THE SOUECES OF XATUEAL LAW. 
 
CHAPTEE I. 
 
 OF THE SOITECES OF XATUEAL LAW. 
 
 rpHE word source, \y\\qii applied to tlie science of jurisprudence, 
 is frec|uently used in a double sense. On tlie one hand it 
 is taken to indicate the fountain from Avhich natural law and 
 all suljsec|uent laws derive their authority: on the other hand, 
 it is used to designate the means hy which we become ac- 
 ci_uainted with the precepts of law. It is from this cause that 
 doctrines which are really complementary are so often regarded 
 as exclusive of each other. Keeping this distinction, then, in 
 view; — 
 
 The sources of natural law — which, taken in conjunction with 
 the local and temporary relations in which man stands to sur- 
 rounding existences, are likewise the sources of positive laAv — 
 may be divided into Primary and Secondary. 
 
 I. Tlic Prirnary Source. — God, the Creator, the One first 
 Cause of all things, is the one Primary Source of natural law — 
 the first great postulate of jurisprudence, as of all other sciences. 
 
 I take it for granted that the necessity of a single cause, 
 as the starting-point of being, is recognized by those whom 
 I address; and I feel that I should be wasting time, and 
 trenching on territory which does not belong to me, were I to 
 
16 
 
 OF THE SOURCES OF NATURAL LAW. 
 
 insist on sucli propositions as tliat, by the constitution of our 
 minds, we can neither think of the series of effects and causes 
 as interminable, or as terminating in plurality.^ N'or need I 
 detain my reader with the testimony from the history of opinion 
 which might readily be produced in support of this proposition; 
 for, as the laws of thought admit of no exceptions, if its accept- 
 ance be a necessity to any mind, it must be a necessity to every 
 mind. As I shall explain to you more fully hereafter, when we 
 consider the canons which limit and regulate the application of 
 historical evidence, it is only when the necessary character of a 
 truth is equivocal that an a posteriori demonstration of its ac- 
 ceptance by mankind becomes important.^ 
 
 The study of the attributes of Deity belongs specially to the 
 science of theology ; and as the jurist is beholden to the meta- 
 physician for the primary source of his science, so there are 
 certain characteristics of that source which he accepts at the 
 hands of the theologian. The reality of the attributes of omni- 
 potence and perfection is guaranteed by evidence as irrefragable, 
 by us, as that which assures us of the existence of the Creator, 
 for— 
 
 {a) Creative power and omnipotence are equivalent terms. 
 
 (h) The creature, as such, can have no ultimate measure of 
 perfection but the Creator. In acknowledging His existence, 
 we consequently accept His character, and own allegiance to 
 His law. 
 
 These Divine attributes — omnipotence and perfection — are in- 
 separable from the conception of a primary source of law; for — 
 
 1 Hamilton, Mctaph. vol. ii, p. 353, et. seq. Krause, Naturrecht, p. 14. 
 
 2 As to the supposed exceptional character of Buddhism, v. infra, Chap. lY. 
 
OF THE SOURCES OF XATUEAL LA"^Y. 
 
 17 
 
 (a) ''Force "being the root idea of law,"i if God were not 
 potent He could not be a source of law at all. 
 
 (h) If He were not omnipotent nature miglit have anotlier, 
 anterior, and superior lawgiver. And fnially, 
 
 (c) If He were not perfect, the laws which nature has receiA'ed 
 from Him would not carry their own warrant with them, and 
 there might be better laws to which it would be our duty to 
 conform. 
 
 For these reasons it is obvious that a science of natural law 
 can no more be founded on an hypothesis of polytheism, dualism, 
 or pessimism, than on the hypothesis of atheism. 
 
 Of the extent to which a law natural may be realizable under 
 a polytheistic scheme, which, whilst ascribing certain divine 
 qualities to many separate beings, confines creatiA^e power to a 
 single divinity, I shall have something to say hereafter. But it 
 may be proper that I should at once explain that under the 
 epithet " dualism " I include any religious system, whether pro- 
 fessing to be Christian or not, which divides power equally 
 between a good and an evil principle ; and that I characterize 
 as "pessimism" any system which makes its suprem.e God 
 guilty of what the nature which He has implanted in us charac- 
 terizes as sin, — as, for example, by imputing to Him the con- 
 demnation of unconscious and irresponsible infants to everlast- 
 ing torments, the creation of a race of beings originally sinful, 
 the x^redestination of beings whom He made in His own image 
 to everlasting and objectless damnation, or any other transgres- 
 sion of His own laws, as these laws are revealed to us through 
 nature. The existence of such a being appears to me to invoh^e 
 
 1 Ecign of Law, by tlie Duke of Arg}-!!, p. 70, 
 B 
 
18 
 
 OF THE SOUECES OF NATUEAL LAW. 
 
 contradictions wliicli render it untliinkable. I extremely regret 
 that, by an expression of opinion involving wliat I believe is 
 called " Universalism," I slionld separate myself from many 
 theologians, both dead and living, whom I love and reverence, 
 — nay, that I should run counter to what, if orthodoxy were to 
 be determined by a show of hands, might still perhaps claim 
 to be the " teaching of the Church." But holding as I do that 
 our last appeal is to reason, as at once the representative and 
 the interpreter of the divine element within each of us, I feel 
 that no amount of authority could commend to me a doctrine 
 which my reason rejects as inconsistent with the goodness, the 
 power, and the wisdom which she teaches me to attribute to the 
 Source of my being.^ 
 
 To pantheism the jurist stands in a somewhat different rela- 
 tion, because it is a creed which assumes various forms, and has 
 received many explanations, some of which probably are not 
 inconsistent with the belief in the existence of a single bene- 
 ficent power, the study of vvdiich, m its manifestations, might 
 reveal an absolute law of human life and progress.^ But 
 whenever pantheism is carried beyond an assertion of the uni- 
 versal presence of the Divine, and consequent prevalence of law, 
 — an assertion which is not inconsistent with the Christian con- 
 ception either of God or man, — the following objections seem 
 fatal to it as an hypothesis on which to base jurisprudence. 
 
 1st. The identification of the universe with God — of Becoming 
 with Being — leads to the same result as the identification of 
 God with the universe, — of Being with Becoming, — viz. an alter- 
 
 ^ Tlie opposite view is stated, with great learning and acuteness,'in Universalism 
 and Eternal Punishment^ by the Eev. John Gibson Cazenove, M.A. 
 ^ This is probably what Grotius meant — Prolcg. § si. 
 
OF THE SOURCES OF XATUEAL LA^V. 
 
 19 
 
 native between atheism, i.e. tlie denial of Creative PoAver alto- 
 gether, and a postulate of separate creative power, the character 
 of which niaj' he good or evil. So far pantheism is on all fours 
 with materialism — it is either incomplete, or illogical It is 
 incomplete if it leaves nature still in want of a postulate, still 
 unaccounted for, and its character undetermined. It is illogical, 
 if it assumes the beneficent Creative Power independent of 
 nature, which it professes to repudiate. ]\Iateriahsm, thus ar- 
 rayed in borrowed feathers, is what is commonly meant by pan- 
 theism, in this country at all events, and in France. 
 
 2d. The h^-pothesis of a self-developing God is an anthropo- 
 morphic conception wliich implies imperfection, and the equal- 
 ities or attributes of such a God could never furnish an absolute 
 standard of right and wrong.^ 
 
 od. Pantheism, by identifying the soul of man with the soul 
 of the universe, not only sets idtimate limits to human freedom 
 — as every scheme which recognizes Divine Omnipotence must 
 do — but even within these limits it renders freedom merely 
 y parent.- By annihilating personal responsibilit}' in man, it 
 tims tahes away from the human lawgiver all right to enforce 
 
 ^ Alirens, i. p. 75. 
 
 ^ To what extent Hegelianism may or may not be open to these, or any other 
 objections against pantheism, is a q^nestion on which I offer no opinion. "ViTiether 
 or not Hegel laid an adequate basis for freedom is a point on which much differ- 
 ence of opinion prevails. That he intended to do so, on the other hand, is a fact 
 which cannot, in common fairness, be disputed. The first three sections of 
 Bunsen's God. in History, contain what I believe to be a correct statement of 
 the relation in which the later Geiman schools stand to pantheism ; and I think 
 that, as regards much of the criticism of them in this country, Bunsen has hit the 
 nail on the head, when, in speaking of the Chinese, he says afterwards (p. 24S\ 
 ** It is by no means needful to extort from the Chinese a confession of faith in 
 * a personal God,' in order to free them fi'om the reproach of holding a completely 
 materialistic view.- For those who talk of a personal God often use expressions 
 
20 
 
 OF THE SOURCES OF NATURAL LAW. 
 
 compliance with the conditions of well-being and progress, even 
 supposing these conditions to be discoverable. 
 
 By thus reverting to fatalism, and rendering results indepen- 
 dent of voluntary action, pantheism lastly takes away all motive 
 either for complying, or enforcing compliance, with these condi- 
 tions. In this respect a curious meeting of practical conse- 
 quences is exhibited between the philosophical system which 
 denies the personality of God, and the religious system which 
 recognizes monotheism in its extremest form. Were any Euro- 
 pean nation really to adopt pantheism as its creed, in the sense 
 in which pantheism identifies itself with materialism, it would 
 probably suffer from the famines and pestilences which so often 
 overtake Mahommedan populations.^ 
 
 From these observations it will be apparent that, on the pen- 
 alty of relinquishing an absolute basis for his science altogether, 
 the jurist must be a believer in the absolute supremacy and 
 goodness of one jjcrsonal, that is to say, conscious, God; and it 
 is a historical fact of great significance, that this creed has actu- 
 
 concerning Him which betray a very low and unworthy religious consciousness. 
 But a conscious God there must be, and this consciousness must correspond to our 
 consciousness of Him." The same thought is more fully elaborated in other pas- 
 sages of this great work, e.g. vol. ii. pp. 317-346. As regards human freedom, 
 again, if all that German speculation has clone is to distinguish it from mere 
 lawless caprice, and to define it as consisting in an identification of the limited 
 personal, with the unlimited universal will, in what does this differ from the 
 common Christian conception of freedom in which we have all been brought up ? 
 Do we not say that the "service" of God is "perfect freedom," and are we not 
 taught to pray that our will may be blended with His ? Had not even the heathen 
 world come to recognize the fact that Deo imrere lihertas est ? Zeller's Stoics, 
 Epicureans, and SeejJtics, pp. 169, 315, notes. 
 
 ^ That Germany is not practically pantheistic, whatever she may be theoretically, 
 is demonstrated by her recent history ; for no country in our time, or probably 
 any other time, ever trusted so little to Fate. 
 
OF THE SOUECES OF XATUEAL LAW. 
 
 21 
 
 ally been held by every jurist wliose system rises above mere 
 empiricism, not only in Christian, bnt in heathen times. To the 
 extent, then, of vindicating this simple creed, the science of 
 jmisprudence, in laying its own foundations, falls together vdth 
 the sciences of theology, ethics, and psychology. 
 
 As regards the further relation of jurisprudence to these 
 sciences, — absolutely there is, of course, no philosophical ques- 
 tion vdiich is indifferent to the jurist : and hence the necessity 
 of that general scientific training which precedes his professional 
 studies. But on the principle of the division of labour, which 
 applies to scientific research as to every other department of 
 activity, he will do well to decline all discussions which bear on 
 his science only in the wide sense in which it was regarded by 
 the Jesuits as a branch of theology,^ and in which some Protes- 
 tant writers have identified it with ethics. 
 
 The C|uestion, for example, whether the law of nature, or the 
 nrjral law, originated in an act of God's free will, or whether it 
 existed from all eternity and continues to exist independently of 
 His will, — vdiether it be a law of God or a law to God, — much as 
 it has been discussed both by jurists and moralists, may be dis- 
 missed, not only as insoluble, otherwise than by the identifica- 
 tion of God and Law, but as irrelevant, because the science of 
 jurisprudence will rest with equal security on either of the two 
 alternatives which it offers. Tor similar reasons we may well 
 content ourselves with humbly recognizing the hitherto impene- 
 trable mystery which covers the origin of evil. 
 
 As regards the nature of evil, however, the case is different ; 
 for if a belief in the absolute character of good be indispensable 
 
 ^ E.g. by Suarez of Grenada, in Ms gi'eat "^ork De LegihiLS. 
 
22 
 
 OF THE SOURCES OF NATURAL LAW. 
 
 to tlie attainment of a basis for our science, this belief will 
 scarcely be gained unless our study of nature sliou.ld enable us 
 to assign a relative character to evil. On this point the lawyer's 
 creed must be that of Plato and St. Augustine,^ — the creed 
 which had been revealed to Job,^ which Heraclitus had divined," 
 and which, with Bunsen,^ I believe to be the instinctive creed 
 of mankind. 
 
 The necessity of this 0|)inion, for the purposes of our science, 
 has been strongly felt by the latest school of scientific jurists in 
 Germany,^ those who agree with Hegel in scarcely anything else 
 accepting his dictum that evil must be regarded as " a negative 
 element." 6 
 
 Without dwelling further, then, on subjects which belong to 
 the sphere of theology, permit me, in conclusion, to indicate one 
 very important practical effect which the recognition of the 
 divine origin of jurisprudence has exercised on the organization 
 of society. 
 
 The place everywhere assigned to the lawyer lies between 
 that of the priest and the secular layman, — in general consider- 
 ably nearer to the former than the latter. 
 
 In the East, in theocratic countries, and amongst the Semitic 
 races more especially, the offices of the lawyer and the priest are 
 combined in the same individual. The laws of Moses and of 
 Mahomet, and in a lesser degree those of Manu, and even of 
 
 ^ Eraile Saisset's introduction to liis translation of the Civitas Dei, p. xxxi. 
 
 2 Job. i. 6-12. 3 Scliwegier's Eist. of Phil. p. 22. 
 
 ^ Ut sup. i. 23. Bimsen has brought out the important fact that the original 
 Hebrew conception of Satan {Azazel) was that not of the opponent and rival, but 
 of the servant of God — God's Eetributive Justice. God in History, vol. i. p. 102. 
 
 5 Ahrens, pp. 128, 147, 170, 172, &c. 
 
 ^ Fhil. of History, Bohn's trans., p. 16. 
 
OF THE SOUECES OF XATUEAL LAAV. 
 
 23 
 
 Confucius, are religions as "well as legal systems. In those of 
 Zoroaster tlie former is tlie, prevailing character, tliough "both are 
 comhined. Scribes, Pundits, Muftis, Ulemas, Mollahs, Kadis, all 
 belong to the sacerdotal class. The classical nations spoke of us 
 as " Priests of Justice;" and in Christian times the separation be- 
 tween the priest and the jurist dates from the period when the 
 uniA^ersal priesthood of Christians w^as acknowledged, and it has 
 been fully accepted only in those countries in wdiich tliat recog- 
 nition has taken place. In the middle ages the canonists, and 
 not unfrequently the civilians, were priests ; and in Pome, so far 
 as the papal authority extends, tlie same arrangement prevails 
 at the present hour. The Lord Chancellor of England, till the eve 
 of the Peformation, was invariably an ecclesiastic, and there are 
 instances of the Seals having been held by bishops down to so 
 late a period as 1625. Even now^ many of the functions of the 
 Chancellor are connected with the Church, and it is only yester- 
 day that its ecclesiastical character was laid aside by an im- 
 portant branch of the legal profession in England. On the 
 Scotch Pencil, as originally constituted, one half of the judges, 
 besides the President, vrere Churchmen, and Churchmen sat 
 npon it CA'en after the Peformation. In the academical hier- 
 archy of all European countries, the Legal ranks next to the 
 Theological Paculty. As civilization advances, and social -ar- 
 rangements become more complicated, a division of labour 
 becomes inevitable, by which the judicial is separated from the 
 sacerdotal office ; but their original connection ought never to 
 be forgotten by the lawyer w^ho would duly appreciate the digni- 
 fied and sacred character of the profession which it is his privi- 
 lege to exercise. 
 
24 
 
 OF THE SOURCES OF NATURAL LAW. 
 
 II. The secondary sources or channels of the Eevelation of 
 I^atural Law are of two kinds, — Direct and Indirect. 
 1st. Direct revelation. 
 
 [ci) Miraculous revelation to man. — All direct revelation par- 
 takes of a supernatural character ; but its miraculous character is 
 most marked when it assumes the shape of an external communi- 
 cation from God to man — in other words, when God, as what we, 
 by analogy, call a Person, appears to man, and tells him His 
 will. Of revelation, in this sense, the only instances admitted in 
 Christian countries are those narrated in the Bible. Whether 
 these interpositions are to be regarded as violations of natural 
 law, or as acts in accordance with higher natural laws than are 
 known to man or traceable by his present faculties, is one 
 of the many speculative questions which the jurist, as such, is 
 not called upon to discuss. 
 
 (5) Miraculous revelation through man. — When God makes 
 choice of an individual man as a passive instrument for the con- 
 veyance of His will to mankind— though that will be not conveyed 
 to him by an external communication, — the revelation still pos- 
 sesses not only a supernatural but a miraculous character. The 
 revelation of which the prophets and the apostles were the 
 organs was of this kind, in all cases in which they do not profess 
 to report the very words that were spoken to them by God. 
 
 (c) Special revelation through man. — This occurs when God, 
 by the ordinary influences of His grace, makes His law known to 
 the individual mind otherwise than through its conscious pro- 
 cesses. 
 
 We have here stiU apparently the immediate operation of the 
 primary without the intervention of a secondary cause, which is 
 
OF THE SOUECES OE XATUEAL LAW. 
 
 25 
 
 said, on the liigii antliority of St. Thomas AqiiinaS; as CLnotecI by 
 Dante, to constitute the character of a miracle.^ But it differs 
 from the miracle, in the ordinary sense, in this : that it is not 
 entirely independent of the will of the recipient, as manifested 
 either in the relation in which he places himself to God, or by 
 direct petition. This rcA'elation, through the reason (ror?), assumes 
 a plainly supernatural, and comes A^ery close on a miraculous 
 character, Avhen it is granted in unusual measure, as, for ex- 
 ample, to Socrates. 
 
 Bunsen, in my o23inion, spoke quite accurately when he charac- 
 terised Socrates as " The Saint of Athens,"- and I assent to the 
 expressions which he uses in a letter to a friend, as reproduced 
 in his life.^ Pieferring to the manner in which his friend had 
 spoken of the religious aspirations of the great heathens, Bunsen 
 says, I should express myself differently as to the religious 
 aspirations of Homer and Socrates, as not derived from exterior 
 sources, no more than the philosophical notions of Deity in Plato, 
 but from that inward revelation of the Spirit of God, to which 
 St. Paid, alludes." Such, I believe, to have been the character of 
 the revelation of ethical trtith to Socrates. '^Yhat he said of the 
 la.LijMv, I take to have been a mere fia'urative wav of indicatino^ 
 the more direct relation in vdiich he felt himself to stand to the 
 Divine, and of Avliich all sages and poets, seers and makers, are 
 more or less distinctly conscious. Apart, however, from the 
 loftier character of the subjects to which these revelations usually 
 refer, there is, I think, a difficulty in establishing a distinction in 
 kind between them and those intuitive acts of the mind by which 
 
 Be Mona/rcTiia, lib. ii. sec. 4. 
 ^ Preface to the Theologia Germanica, Irii. 3 YqI. ii. p. 424. 
 
26 
 
 OF THE SCHOOLS OF JUPJSPRUDENCE. 
 
 logical processes, for more ordinary purposes, are unconsciously 
 performed.^ All " liappy thoughts " come from God, and may, 
 in a Avide and loose sense, be called revelations, seeing that the 
 mind in which they arise stands, for the time being, in a more 
 immediate relation to Him. 
 2d. Indirect Revelation. 
 
 Indirect revelation is the ordinary means by which the law of 
 nature, or, in other words, the will of God, with reference to 
 temporal affairs, is communicated to man. 
 
 It is divided into two branches. 
 
 (rt) Subjective, — The teaching of consciousness, or the re vela- • 
 tion derived from the study of the Ego. 
 
 (l) Objective, — The teaching of external observation, or the 
 revelation derived from the study of the Non-Ego, whether 
 material or immaterial. 
 
 CHAPTER 11. 
 
 OF THE SCHOOLS OF JURISPRUDEIs^CE. 
 
 The questions whether the various sources of knowledge, direct 
 or indirect, which we have enumerated, be really channels of 
 the revelation of the absolute law ? and, if so, to what extent ? 
 can be answered only when the character and scope of their 
 teaching has been investigated. On the assumption, however, 
 that they are entitled to that character, it is obvious that the 
 information which they communicate must be harmonious and 
 coincident, even where it is not identical; and that no one 
 
 ^ Duke of Argyll's Reign of Law, jj. 318. 
 
OF THE SCHOOLS OF JUPJSPEUDEXCE. 
 
 27 
 
 of tliem can be entitled to repudiate another. The methods, 
 however, to which they give rise differ so essentially, and com- 
 mend themselves to temperaments and races and generations 
 of men so different as to have orio-inated various schools of 
 
 o 
 
 jurisprudence, each of Avhich, in its turn, has claimed exclusive 
 possession of the key of knowledge. Of these the most clearly 
 distinguishable are, — 
 
 1st, The Theolooical School 
 
 2d, The Inductive or Observational School (Subjective and 
 Objective). 
 
 Zd, The Subjective, or Philosophical School. 
 
 4,t]i, The Objective, or Sensational School. 
 
 A few observations on the methods on wdiich these schools 
 severally rely niay be serviceable in enabling you to recognize 
 the co-efficient character which, in reality, belongs to them all. 
 
 1st, The Thcologiccd School ^ professes to discover the law of 
 nature, not in the study of nature itself, but in the study of what 
 God has told us of nature. The legitimacy of this method is 
 implied in what has already been said of direct revelation. If 
 the law of nature be identical with the Divine Law, i.e. with the 
 will of God, it certainly is possible, and not inconceivable, that 
 He may have made this law known to man directly. 
 
 The legitimacy of the theological method being admitted, the 
 onl}^ questions with reference to it which here are logically open 
 to us are, first, as to its reality, and, second, as to its adequacy or 
 exclusive sufficiency. 
 
 (ft) Its reality. — Though it be both possible and credible that 
 God should have revealed His wiU to man directly, either by 
 
 1 Alireus, pp. 61, 66. 
 
28 
 
 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 internal or external means, it by no means follows tliat He lias 
 done so at all, or that He lias done so with reference to the matter 
 in hand. The first of these questions it is not necessary, and 
 would not be suitable, that we should discuss. A direct revela- 
 tion, with reference to the relations in which man stands to God, is 
 an occurrence in which all Christians and Mahometans, and most 
 Heathens, profess to believe, and we shall here assume its reality. 
 
 But does this revelation bear on the secular relations of men ? 
 and, if so, does it alone furnish us with means adequate to the 
 determination of these relations ? For this, we must bear in 
 mind is the thesis wdiich the theological school, as such, professes 
 to maintain. 
 
 The leading doctrines of the moral law are, no doubt, laid down 
 in the Holy Scriptures, and inasmuch as the law of nature with 
 reference to the relations of man to man is neither more nor less 
 than these doctrines traced out into their consequences in special 
 directions, the law of nature may, in this sense, be said to have 
 been directly revealed. Whether or not the starting-point of 
 ethics was thus attained,'^ its grand outlines have, at any rate, 
 the double sanction of direct and indirect injunction. 
 
 On the other hand, however, it is important to remark that, in 
 the vast majority of instances, whilst the information which is 
 conveyed to us with reference to the relations of man to God are 
 express, that which has reference to the relations of man to man 
 only admits of being partially gathered from incidental expres- 
 sions, or from the life and conduct of Christ. The previous 
 
 1 Neander, Ch. His. i. p. 9, Donaldson's History of Christian Literature, ii. 
 pp. 167, 183, 198, 225. Ackermann's Christian Element in Plato, pp. 19, 53. 
 Aristot. MetaiJh. x. 8. 
 
OF THE SCHOOLS OF JURISPEUDENCE. 
 
 29 
 
 acquaintance of mankind with the law of nature is, manifestly, 
 assumed; and in this assumption we cannot but perceive a plain 
 recognition of, and reference to, other sources of knowledge. 
 
 Then so far from preaching any separate system of positive 
 law relating to secular affairs, one of the objects of Christ's 
 mission was to abolish the only system of the kind that ever was 
 directly revealed to man, and to place the Jews once more in the 
 same position as the rest of mankind. The Eoman law, under 
 which Christ Himself lived, was expressly founded on indirect 
 revelation interpreted by mere human reason, and, from the be- 
 ginning to the end of His teaching, there is not the slightest indi- 
 cation of an opinion that it either ought to have rested, or could 
 have rested, on any other. 
 
 The exclusive pretensions of the theological school of jurisprud- 
 ence are specially inexcusable in Christian countries, seeing that 
 Christianity, as a learned and ingenious Frenchman has observed, 
 is " the first religion which does not pretend that law is dependent 
 on it."i A natural consequence of thus attempting to derive guid- 
 ance from a source which was not intended to afford it, has been the 
 most wonderful diversity in the results arrived at by theological in- 
 quirers. From absolute monarchy and patriarchal and hierarchical 
 despotism, to democracy communism and anarchy, there is no 
 condition of political or social existence which has not sought 
 to justify itself by an appeal to the theological method.^ 'Nov is 
 it wonderful that such should have been the case, for it is obvious 
 that anything may be proved by a system which relies on docu- 
 ments compiled for other purposes, and which, by repudiating 
 
 1 De Coulanges, Cite Antique, p. 518. 
 
 2 For an enumeration of writers v. Alirens, p. 64. 
 
30 
 
 OF THE SCHOOLS OF JUEISPEUDENCE. 
 
 reason has, moreover, freed itself from tlie fetters of an inde- 
 pendent organ of interpretation. 
 
 But tliougii the teaching of Christ was not intended to super- 
 sede the revelation through nature, and from the identity of their 
 sources cannot possibly have contradicted it, it does not follow 
 that Christianity did not correct and supplement the conceptions 
 which mankind had hitherto entertained, or would otherwise have 
 been in a condition to form of natural law. To the fact of its 
 having done so, the vast difference between our conceptions of 
 the rights and duties of human beings and those entertained by 
 heathen or Mahometan nations, or even by the classical nations 
 of antiquity, bears v\^itness. Wherever any secular doctrine is to 
 be found, then, in the Holy Scriptures, the presumption — inas- 
 much as God does nothing needlessly — is, that it communicates 
 knowledge beyond what was attainable, or at any rate had, up 
 to that period, been attained by the ordinary means of observa- 
 tion and reasoning, and it is therefore to be studied by the jurist 
 with reverent diligence and care. When compared with the 
 information which he obtains through the indirect channels of 
 our knoAvledge, he will often find that the greater completeness 
 of its dicta enables him to decide betAveen conflicting opinions, and 
 even becomes the starting-point of new scientific investigations. 
 
 Let me give a single instance of what I mean. The 
 school of jurisprudence, which sets out with the vindication 
 of the rights of the individual, very frequently falls into the 
 error of teaching us to prefer ourselves to our neighbours, and 
 ends in justifying selfishness, either in the form of unjustifiable 
 aggrandisement, or ec|ually unjustifiable non-intervention. The 
 opposite school, which proposes to itself the inculcation of the 
 
OF THE SCHOOLS OP JTPJSPEUDEXCE. 
 
 31 
 
 duties of the indh'icliial, tells its to prefer our neigliboiu: to our- 
 selves, and often falls into asceticism and fanaticism, and recom- 
 mends institutions and enactments bv ^'Mcli our neighbour 
 suffers even moi^e tlian ourselves. But the Bible enjoins us to 
 Ljve our neighbour as ourselves: and in thus proclaiming the emd 
 reciprocity of rights and duties, dii^ect reA'elation, vrhilst it confirms 
 the ethical teaching of the Socratic school, indicates the direction 
 in vdiich scientific jurisprudence, by supplying a measure at 
 once of rights and duties, yields, as ve shall see hereafter, its last 
 and most precious fruits. 
 
 Yet how universally human such a sentiment is, appears from 
 such a fact as that the Brahmans reproached the Buddliists T^dtli 
 having stolen the precept of universal benevolence from the 
 Yeda.^ It vas conseci_uently a sentiment v^hich both professed 
 to hold : and at vdiich ^ve can scarcely imagine that either of 
 them arriA'ed otherwise than by what are commonly called 
 human means. 
 
 2(7. Tlie inductive or ohscrvationcd sclwol {subjective- and 6b- 
 jecthe). 
 
 Apart from such knowledge as is conveyed to us directly, or 
 which we obtain by efforts of which we are imconscious, all that 
 vre know either of the law of nature, or of anything else, must be 
 learned by the ordinar}- processes of conscious observation and 
 reasoning ; and consecjuently all the actual, or indeed possible, 
 schools of jurisprudence, except the theological, belong, strictly 
 speaking, to a single class, viz. the inductive or observational. 
 
 Bacon did not limit the inductive method to physical in- 
 quiries, but declared it to be the true method of scienthfic inq_uiiy 
 
 ^ ]^Iax ILuller's Historij of Ancient Sanscrit Literature, p. S-5. 
 
32 
 
 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 imiversally. Since the time of Descartes, at all events, its ap- 
 plicability to the study of man and Ms relations lias scarcely 
 been disputed ; and whether we prosecute it subjectively or ob- 
 jectively, or both, the science of jurisprudence is an inductive 
 science, just as much as chemistry or psychology. But the in- 
 ductive or observational school of jurisprudence, though resting 
 on a common foundation, is a house divided against itself, the 
 occupants of which have been in the habit of barring their doors 
 against each other even more determinedly than against the 
 theologians, with whom some of them ^ have even been willing 
 to claim kindred. 
 
 The inductive school as a whole, then, may be divided into two 
 sections, — the subjective and the objective, or that which relies 
 for its starting-point on the observation of internal phenomena, 
 and that which regards external phenomena as all sufficient. 
 
 By including the sources on which they respectively rest 
 amongst the sources of our science, we have already recognized 
 the legitimacy both of the subjective and objective methods, and 
 entered our protest against the claim of either of them to exclude 
 the other. In support of this protest, and in illustration of their 
 necessary dependence on each other, one consideration alone 
 would seem to suffice, viz. that the supreme rule of life which 
 we seek is neither a doctrine of rights nor a doctrine of duties, 
 but a doctrine of the relation between rights and duties. But a 
 relation can become intelligible to us only when we know both 
 of the parties related, and as rights have a subjective, and duties 
 an objective, origin, a knowledge of the relation in which they 
 
 1 Paley, for example, who occupies tlie singularly incongruous position of a 
 tlieological utilitarian. 
 
OF THE SCHOOLS OF JTPJSPPX'DEXCE. 
 
 33 
 
 stand to each other necessarily implies a reference both to sub- 
 jective and objective sources of knowledge. 
 
 These considerations, however, obvious as thej" seem, have not 
 prevented men opposed to each other by personal and national 
 genius, from attempting to create two schools, each resting solely 
 on one avenue of knowledge, and as such mutually exclusive. 
 
 3c?. The subjective, or so-called philosoijliical school. — The exclu- 
 sive claims of the study of our subjective nature (the personal 
 Ego) to enlighten us with reference to the ultimate law, rest on 
 metaphysical speculations which have lost their hold even on the 
 country in which they originated, and are so little in accordance 
 with the habits of thought vdiich prevail amongst ourselves, 
 that, even if I possessed a clear understanding of them myself, 
 which is far from being the case, I should be disposed to leave 
 them to the experimental refutation, which, I trust, the use of the 
 double method of inquiry in the subsecjuent pages will supply. 
 To my mind, the objection just stated — that a relation cannot 
 be known by a knowledge of one of its terms — seems to be 
 fatal to the exclusive claims of the subjective method, to an 
 extent to vdiicli it is not, theoretically at least, to the objective 
 method. An objective induction, sufficiently wide and suffi- 
 ciently accurate, would yield a law of relations which might be 
 assumed to include the subject ; but no observation of subjective 
 phenomena, however exhaustive, could with erj_ual safety be 
 assumed to cover the field of objective existence. Xeither 
 method, as we have said, would be trustworthy, apart from the 
 other; but in this point of view at least, the objective method 
 would ofier many chances to one, whereas the subjective method 
 
 would offer only one chance to many. The subjectiA'e method, 
 
 c 
 
34 
 
 OF THE SCHOOLS OF JURISPRUDENCE. 
 
 on tlie other hand, would have the advantage in its starting- 
 point, for how could I ever come to know anything of my neigh- 
 bour's rights except by contrasting them with my own ? The 
 exclusive claims of the subjective method, however, for the reason 
 I have mentioned, need scarcely be discussed in this country. 
 
 4,t]i. The ohjcctive, or sensational school. — But the case is very 
 different with the claims of objective experience, which for 
 generations has seemed to the common English mind not only 
 to supply the sole legitimate method of inquiry into the rule 
 of life, but, by furnishing a rule of life in itself, to supersede 
 the necessity of the inquiry altogether. 
 
 The utilitarian doctrine thus occupies two positions, from 
 the one to the other of which it is continually shifting, but 
 which require to be carefully distinguished, seeing that in the 
 one it is, and in the other it is not, entitled to take rank as 
 a legitimate method, and to claim a place in the science of 
 jurisprudence. 
 
 1. In the first and most ambitious position which it assumes, 
 the doctrine of utility claims to furnish us Avith a test of the 
 quality of our actions, to constitute in itself a rule of life, and 
 thus to supply the place of the law of nature, the reality of 
 which it denies. Of the confusion of thought involved in this 
 claim we have instantaneous proof if we reply to it by the 
 question, "Useful foi^ luhatV The quality of actions can be 
 tested only by reference to some final object (rlAos) which they 
 seek to attain, and the measure of their value is the approach 
 which they make to its attainment. If tlie rule be, " follow 
 virtue," "follow pleasure," "follow nature," the realization of 
 whatever we may choose to characterize as virtue," or 
 
OF THE SCHOOLS OF JTEISPRUDEXCE. 
 
 35 
 
 "pleasure," or "nature/' is the object of the rule; and the 
 value of each particular action ^vill be greater, or less, in pro- 
 23ortion to the extent to which it accomplishes this realization. 
 But follow utility " is a rule which has no object — a finger- 
 post that points nowhere ! So far, then, from possessing the 
 merit, so often claimed for it, of supplying the simplest of all 
 tests of conduct, the utilitarian system furnishes no test at all, 
 and has consecpiently to accept its test from some one or other 
 of the systems which it repudiates. In ]\Ir. Bentham's hands, 
 and those of the majority of his foUoAvers, its object has been 
 " happiness," so defined as to rise little above animal enjoyment, 
 and utilitarianism has thus been ec^uiyalent, not to eudcemonism 
 in the Aristotelian sense, but to hedonism in the sense of the 
 later Epicureans. Stung by the reproaches to which so ignoble 
 an object and so degrading a system exposed their adherents, 
 I\Ir. I\Iill, in his later writings, has sublimated utilitarianism 
 into something that might be called transcendental-euda^mon- 
 ism. The improvement as regards the object is great. But he 
 has not improved its pretensions to the character of a self-deter- 
 mining system, or its claim to any higher position than that of 
 a method of inc|uiry into the objects of life and the means of attain- 
 ing them, or, in other words, into the law of nature — a position 
 which was never denied to it by any one, except perhaps a sub- 
 jective idealist. 
 
 Let us consider its merits, then, in this latter aspect. 
 
 2. A^iewed as a method of inquiry into the law of nature, 
 utilitarianism is merely a somewhat unphilosophical application 
 of the method of external observation, which in the hands of 
 scientific inc|U*rers has assumed two leading forms. 
 
36 
 
 OF THE SCHOOLS OF JURISPKUDENCE. 
 
 (ft) The statistical, or empirical, which is chiefly known in this 
 country; and, 
 
 (h) The historical, of which, in its primary phase, Hugo, 
 Savigny,^ and the late Sir George Cornewall Lewis may be 
 regarded as the leading representatives, and which the specu- 
 lative mind of Hegel develo23ed in new directions. 
 
 Theoretically, it is difficult to deny the pretensions of external 
 observation, when directed both to contemporaneous and past 
 events, to the character even of an independent method, be- 
 cause it is possible to imagine an intelligent being, convers- 
 ant with human life and action, and yet not human. Such 
 a being could, of course, have no subjective revelation of human 
 nature, or of the laws by which that nature is governed ; and 
 yet he might, to a certain extent, become acquainted with 
 human nature, and its laws, by the objective revelation of events 
 — by external observation of actions and their results. For a 
 human being to exclude his own nature from his consideration 
 whilst investigating human nature in general, I believe to be 
 impossible. But some approximation to such a one-sided posi- 
 tion is perhaps attainable ; and to the utilitarian who lays claim 
 to it, all that I can object is, that his method is needlessly 
 imperfect. If he is a human being, he is wantonly throwing 
 away the opportunities which the subjective study of his own 
 human nature affords him of becoming acquainted with human 
 nature in general, and its laws. He is urging, moreover, on 
 
 1 A statement of the very sound position wliicli Savigny took up, and which 
 differs considerably from that which has been popularly ascribed to him, will be 
 found in the introduction to Mr. Guthrie's excellent translation of the treatise 
 on Private International Law, which forms the 8th vol. of the Sfjstem dcs Heutigcn 
 Bomischen Rechts. 
 
OF THE SCHOOLS OF JrPJSPEUDEXCE. 37 
 
 liis own belialf, an exclusive claim wliicli lie certainly would 
 not concede to liis opponent, wlio, with ec|ual trutli, niiglit 
 allege that, as humanity as a whole is present in the nature 
 of each individual, the study of the Ego is alone sufficient to 
 reveal it. 
 
 But even when the claims of the method of external obser- 
 vation are not pushed to this length, several very serious 
 practical objections apply to it, which have been stated with 
 great force by its recent opponents in Germany. 
 
 A. Supposing our acc|uaintance with recent events to be 
 acctirate, in point of fact we cannot appreciate them, or, in 
 other words, determine their '-'utility" for the attainment of 
 anv opven end whatever, for two reasons : 
 
 (ft) Because theh consec|uences are still in the future : and, 
 (&) Because we see them through the distorting medium of 
 our own feelings and interests. 
 
 B. As regards events long past, our information is seldom 
 complete, and, even then, it is coloured by a triple medium : 
 
 («) That through Avhich the narrator saw it. 
 (/j) That through which he intended that we should see it. 
 (c) That through wliich our own passions, prejudices, igno- 
 rances, and those of our own time, permit us to see it. 
 
 C. Humanity has not yet culminated, and its absolute laws 
 cannot therefore be revealed by the study of its previous histor}'. 
 On the assumption that it is progressive, the experience of the 
 present must be more instructive than that of any former 
 period, and, in this point of view at all events, the facts of 
 statistics are of greater value than the facts of history. 
 
 I). But the leading objection to external observation in all 
 
38 
 
 OF THE SCHOOLS OF JUllISPRUDENCE. 
 
 its forms, as an exclusive source of knowledge, is that we can- 
 not begin with it. In whatever light " facts " may be viewed 
 by the historian or statistician,^ to the jurist they are not ends 
 but means; and external facts are means which he cannot 
 use till he has gained a starting-point, and acquired a standard 
 which they cannot supply. After we know what our nature 
 craves, and what God wills that it should aspire to, there is 
 scarcely a fact, however insignificant, of observation or expe- 
 rience, which may not furnish precious suggestions for the re- 
 alization of these objects, i^ay, farther, even as regards these 
 objects them-selves, it is most true that " there is a light which 
 shines on the ways of God out of a better knowledge, even of 
 man's ways."^ But the light which man's ways afford is lighted 
 within him, and the reflected light which shines from without 
 has reference far more to the concrete and variable, than to the 
 abstract and permanent element of law. The science of juris- 
 prudence, like charity, must " begin at home ; " and the proper 
 answer to the empiric, is that v/hich St. Luke^ tells us our Lord 
 made to the Pharisees wdien they asked Him when the kingdom 
 of God should come. " The kingdom of God cometh not with 
 observation : neither shall they say, Lo here ! or, lo there ! for, 
 behold, the kingdom of God is within you." 
 
 ^ As to the scientific significance of Statistic v. Alirens, a^oI. i., p. 5, note. 
 ^ Beign of Law, p. 5. ^ xvii. 20. 
 
OF THE AUTOXOm^ OF HUMAX XATUEE. 
 
 39 
 
 CHAPTEE III. 
 
 OF THE AUTOXOm^ OF HU.AIAX XATURE. 
 
 The science of the law of nature cliAides itself substantially into 
 three inquiries — 
 
 1st. Is the nature of man autonomous, or in other words, is 
 man ''a laAv unto himself ?" 
 
 2d. If so, in Avhat manner is this laAV rcA^ealed to him ? 
 
 ocl. AVhat is the laAv which man's nature imposes on him, or 
 binds him to impose on himself ? 
 
 Each of these branches admits of being prosecuted, and has 
 always been prosecuted in point of fact by competent investi- 
 gators,^ more or less systematically, both by the philosophical 
 and the historical methods. In so far as it seems possible, Ave 
 shall not fail to aA^ail ourseh^es of this double aA^nue to truth ; 
 but in seeking a response to the first Cjuestion, for the reason 
 which AYC mentioned at the conclusion of last chapter, AA*e shall 
 listen in the first place to AAdiat our nature tells us directly. 
 
 The direct, or subjectiA^e reA'elations Avhich our nature makes 
 to us of its legislatiA^e character, appear to be presented in the 
 foUoATuiQ; order : — 
 
 1st. Our nature asserts its existence, and A^ndicates its asser- 
 tion. 
 
 Life being the root at once of our rights and our obligations, 
 the knoAAdedge of life, as a fact, must, of necessity, be the first step 
 in the science of jurisprudence, as of CA^ery other branch of the 
 science of man. Till Ave knoAv that Ave are, we can neither knoAV 
 
 1 Guilielmi Grotii Enchiridion, Index, p. 3. 
 
40 
 
 OF THE AUTONOMY OF HUMAN NATURE. 
 
 how we are, nor inquire liow we ought to be. But our existence 
 is a fact, which each of us must ascertain for himself; and the 
 knowledge of which, by another, we can only assume. If a man 
 tells me that he is not conscious that he lives, I can no more con- 
 tradict him than if he tells me that he is not conscious that he 
 loves. So far, the primary dictum of consciousness is on a foot- 
 ing of equality with all the subsequent dicta. But it differs from 
 them in this respect, that neither its reality nor its veracity can 
 be denied, or even doubted. If my neighbour tells me that he 
 feels that he does not love, I am bound to believe him ; but if he 
 tells me that he feels that he does not live, or thinks that he does 
 not live, or doubts whether he lives or not, his assertion disproves 
 itself. " The very statement of doubt," as Dr. Adam Fergusson 
 has said, " is a dogmatic assumption of personal existence and 
 thought." 1 
 
 'Not does the accuracy of this assumption admit of question 
 any more than the fact of the assumption ; for, in so far as its 
 first dictum is concerned, the fact that consciousness truly testifies, 
 is proof enough that she testifies truly. " To doubt of the reality 
 of that of which we are conscious," says Sir W. Hamilton, " is 
 impossible, for as we can only doubt through consciousness, to 
 doubt of consciousness is to doubt of consciousness by conscious- 
 ness. If, on the one hand, we affirm the reality of the doubt, we 
 thereby explicitly affirm the reality of consciousness, and contra- 
 dict our doubt ; if, on the other hand, we deny the reality of con- 
 sciousness, we implicitly deny the reality of our denial itself." ^ 
 
 ^ Fergnsson's PrincijJles of Moral and Political Science, vol, i, p. 79. 
 
 2 Sir Wo Hamilton's Zect. on Metaph., vol. i,, p. 274 ; Descartes' Second Medi- 
 tation, and St. Augustine's Civitas Dei, 1. xi., c. 26. See also the introduction 
 to M. Saisset's Translation, p. lix.-lxi. 
 
OF THE AUTONOMY OF HUMAis NATUEE. 41 
 
 2d. Our nature guarantees the veracity of its testimony with 
 reference to its qualities. 
 
 It is true that without incurring the contradiction which the 
 denial of the primary assertion of subjective being implies, we 
 may deny the veracity of every subsequent assertion of conscious- 
 ness. But such denial cannot possibly admit of proof, because 
 the truth of the denial can never rest on higher testimony than 
 the truth of the assertion. If the consciousness which tells me 
 that I love be fallacious, the consciousness which tells me that I 
 doubt or deny that I love, may be fallacious too. It thus 
 appears that if we deny the truth of any single dictum of con- 
 sciousness the reality of which as a phenomenon is admitted, 
 the whole fabric of truth is shaken. " If our immediate internal 
 experience could possibly deceive us," said Leibnitz, " there would 
 no longer be any truth of fact, or any truth of reason." ^ 
 
 Consciousness, or subjective nature, being thus a living, 
 truth-telling witness, let us try what we can learn from it 
 with reference to its legislative character, and the laws which 
 it acknowledges. 
 
 Zcl. Our nature asserts that it is the result of a cause external 
 to itself, and independent of its volition. 
 
 We have seen that our first feeling, that with which conscious- 
 ness begins, is the feeling of existence, and not of activity, of 
 being, and not of doing. ^ This circumstance at once throws the 
 causative act by which we came into existence out of conscious- 
 ness. "We cannot, therefore, know that we created ourselves. 
 
 ^ Hamilton, ut sup. p. 265. 
 
 ^ That actuality must precede potentiality liad already become apparent to Aris- 
 totle. — Grant's Aristotle, vol. i. p. 231. 
 
42 
 
 OF THE AUTONOMY OF HUMAN NATURE. 
 
 Any tlieoiy ^ whicli does not ascribe our being to a cause inde- 
 pendent of our volition, must be a purely gratuitous assumption, 
 at variance with our knowledge so far as it goes. 
 
 But from this assumption we are shut out by two considera- 
 tions — 
 
 (a) It involves the necessity of conceiving human activity 
 prior to human existence, and by thus ascribing original creative 
 power to a second cause, contradicts our primary postulate of a 
 single first cause. 
 
 (b) It implies the conception of volition which is unconscious, 
 i.e. of will, without the self-directing quality which is its essence. 
 
 4ztJi. Our nature accepts itself as a gift, voluntarily given, but 
 necessarily received. 
 
 In pronouncing its source to be independent of its own activity, 
 our nature exhibits itself to itself, in the character of a free gift 
 — the gift, by an external and independent agency, to every man 
 of himself, v/ith all the powers and faculties which constitute 
 personality. But it is implied in the idea of a free gift, that no 
 previous right or title to its possession existed in the person of 
 the recipient 2 — even supposing the recipient's person to have pre- 
 existed, a supposition which in the present case is excluded. 
 Whatever rights may result from our nature, it is obvious that no 
 rights can have preceded it, because in that case nature, with its 
 inherent rights, would become a recognition of something which 
 we had already done in our own behalf; and as doing implies being, 
 we should again be entangled in the assumption of self-creation. 
 
 1 Sucli as that of Miiller on Sin, 
 
 ^ Actus justitiae est reddere debitum, sed Deus nuUi est debitor : Ergo, Deo non 
 competit justitia. Th. Aq_. Summa. Pars prim. Quaes, xxi. 
 
OF THE AUTOXOMY OF HUMAN XATUEE. 43 
 
 The first step in tlie process of self-investigation, in a strictly 
 jural direction, thus reveals to us not a right, but a possession, 
 the result of no antecedent right, and the necessary source of 
 all subsequent rights. This is a fact to vdiich I beg to direct 
 special attention, as it is one the forgetfulness of vdiich has intro- 
 duced much confusion into the study of jurisprudence. 
 
 But further — the primary possession of existence, thus freely 
 bestowed, must not only be freely, bu.t fully accepted. 
 
 (a) AYe cannot refuse it, for from that course we are cut off by 
 the fact that the act of refusal, in this case, already implies the 
 possession of the object refused. 
 
 Ere the birtli of my life, 
 
 If I wished it or no ; 
 Xo question was asked me, 
 
 It could not be so.^ 
 
 (h) But if we had neither right to demand existence, nor 
 power to refuse it, it follows ec[ually that we had neither right 
 nor power to determine, or modify, its character. " Shall the 
 thing formed, say to him that formed it, AVhy hast thou made me 
 tJms ? Hath not the potter power over the clay, of the same 
 lump to make one vessel unto honour, and another unto dis- 
 honour ?"2 Accordingly: — 
 
 otJi. In accepting itself as necessary, our nature accepts itself 
 as oigJit, and its fundamental qualities and normal impulses as 
 the criterion of right and wrong. 
 
 Tills proposition differs in character, very essentially, from the 
 four preceding ones, and as it is on its acceptance or rejection 
 that the question of the possibility or impossibility of the revela- 
 
 ^ Coleridge's Su icicle'' s Argument. 
 
 2 Eom. ix. 20. 
 
44 INQUIRY INTO THE HISTORY OF OPINION 
 
 tion of a law-natural tliroiigli nature essentially turns, it is neces- 
 sary that we should consider it with scrupulous care. 
 
 If we assume the perfect character of the Creator to have been 
 made known to us by a revelation, not through our nature, but 
 to it, a science of jurisprudence may then be arrived at by a 
 synthetic and deductive process, wdiich does not start from a 
 ])elief in the rectitude of human nature, for the known character 
 of the lawgiver would, in this case, be a sufficient guarantee for 
 the character of the law. It is on this, the theological hypo- 
 thesis, that all theocracies rest, and if they can scarcely be said 
 to be scientific, they cannot be reproached with being illogical. 
 But, in so far as a knowledge of the duties wdiich arise from our 
 relation either to God or man is to be arrived at through nature, 
 it is plain that its possibility rests on the dictum of conscious- 
 ness which I have mentioned ; because a nature that was self- 
 condemned could neither reveal a self-justifying law, nor afford 
 ground for the inference of a self-justified lawgiver. 
 
 The ultimate test of the reality of this, as of every other 
 dictum of consciousness is, of course, a subjective one — do we, 
 or do we not feel that our fundamental normal nature is self- 
 approving, and that the acts of which w^e instinctively disapprove 
 are acts by which that nature is violated ? Personally I should 
 not hesitate to exclaim with St. Augustine — " In his tribus nulla 
 nos falsitas verisimilis turbat, — et sumus, et nos esse novimus, et 
 id (nostrum) esse ac nosse diligimus."^ Still we are not compelled 
 on the penalty of contradiction to admit our qualities, as we are 
 our being. We cannot think that we are not ; but without 
 violating the laws of thought, we may, perhaps, imagine that we 
 
 ^ Civitas Dei, lib. xi. cap. xxvi. 
 
^'ITH EEFEEEXCE TO HTMAX AUTOXOMY. 
 
 45 
 
 T\"ere created by tlie devil, and formed originally in the image of 
 the father of lies. As the admission of this dreary creed ^vonld 
 amount to a denial of the possibility of natural jurisprudence 
 altogether, the c^uestion whether or not it be, in point of fact, 
 the response of humanity, is indeed a critical one. That it has 
 prevailed, or recurred, under many modifications of irreligion and 
 sensualism on the one hand, and fanaticism and asceticism on 
 the other, both in heatlien and Cdnistian times,^ is unquestion- 
 able ; but the fob oving trains of thought and tracks of inquiry, 
 which I can only indicate, if duly carried out, I belieA'e will con- 
 vince you tliat the central belief of mankind has always been to 
 the opposite effect. 
 
 CHAPTEE lY. 
 
 IXQEIRY IXTO THE HISTOEY OF OPIXIOX AVITH EEFEEEXCE TO 
 HUMAX AUTOXOMY.- 
 
 For the reasons stated at the end of last chapter, it seems 
 proper that we should, for the present, stop short in our in- 
 quiry into the direct teaching of nature, and that I should invite 
 you to test the accuracy of our last dictum, with the aid 
 which I conceive the historical to be always in a condition to 
 afford to the philosophical method. 
 
 ^ Lecky, History of Europ, Morals, toI. i. p. 99, 
 
 - The discussion in tliis chapter presents many analogies with that which 
 Baron Bunsen has presented, with such wealtli of thought and learning, in his 
 God in Histoid . Our theses, however, are not identical. His is to prove that 
 there is a moral order in the universe — mine to prove that men feel themselves 
 capable of discovering this order in their own relations. 
 
46 INQUIRY INTO THE HISTORY OF OPINION 
 
 As this is the first occasion on which we have resorted to the 
 historical method, it may be well to assign the limits, and indi- 
 cate the modes, of its apx^lication. And first, let me offer for 
 your acceptance what I shall call, 
 
 (A) The canon of the limitation of the historical method. 
 
 We are not called upon, in the interests of science, to establish 
 by an appeal to the consciousness of mankind, any proposition 
 which is guaranteed, to the individual mind, by the laws of 
 thought; or, in other words, Ave are scientifically entitled to assume 
 that mankind always did believe, what we ourselves must believe. 
 
 Xenophon tells us^ that Socrates was wont to say that it was 
 absurd to consult the gods about things that might be discovered 
 by meditation; and in lilvc manner, to the extent which this canon 
 indicates, there can, I think, be no question that, in the pursuit 
 of truth, the philosophical has no claim on the historical method. 
 Eeason is anterior to history ; and where the testimony of reason 
 is conclusive, history has nothing further to teach. 
 
 It is on the ground that they rest ^on a higher platform 
 than the historical, that we have assumed the existence and 
 independence of the Creator, and* the existence and dependence 
 of the creature. At first sight it seems as if we might, with 
 equal confidence, dispense with historical proof of human recti- 
 tude. If the testimony of a single individual be a sufficient 
 guarantee for the fact that a perfect God made man, why should 
 the testimony of mankind, as a whole, be requisite to prove that 
 He made him perfectly ? The d 2^'i''iori method entitles us, for 
 example, to dismiss, without inquiry, such an allegation as that 
 in the Buddhist system, which is, probably, the creed of little 
 1 Mem. i. 1-7 ; iii. 9-14. 
 
WITH EEFEEEXCE TO HU^IAX AUTOXOMY. 
 
 47 
 
 short of a tliircl of tlie liumaii race, " there is not a trace of the 
 idea of God/' ^ as a manifest misinterpretation ; - and we do not 
 hesitate, in virtue of it, to cut short all discussion as to our 
 own existence Avith a summary cogito ergo sum. AYliy, then, 
 should we not, with ec[ual confidence, dismiss the notion that a 
 perfect Creator produced an imperfect creature ? The dis- 
 tinction arises from the contradictory phenomena which con- 
 sciousness presents in the latter case. Here the mind itself 
 forbids us to obey its own laws. It is as impossible for us to 
 believe that we are perfect, as to see how a perfect God could 
 have made us otherwise. Perfection and imperfection, good 
 and eA'il, are irreconcilable phenomena of our nature, of the 
 reality of which it is ec[ually impossible to doubt, and which, 
 if equally real, would neutralize each other. Xeither can thus 
 be shut out by the contradiction Avliich threatens to exclude 
 both, and to leave the mind void of any guiding principle, either 
 rialit or wronsj. In these circumstances, a far more delicate 
 
 1 "II n'y a pas ti\ace de I'idee de Dieu dans le Bouddliisni entiere, ni aii delnit 
 ni au terme." — Le Boucldha et sa Religion, par J. Bartlielemy Saint Hilaire, c. ir., 
 164, &c., Chamhers EnajclopcBclia, voce Buddhist. 
 
 2 The misinterpretation seems to consist in an attempt to determine as a nega- 
 tion, what is merely an indefinite acknoAvledgment of ignorance as to the nature 
 or character of God, or of impotence to think a first, or uncaused, cause. All 
 that the so-called atheism of the Buddhist — beyond a protest against mysticism — 
 thus amounts to is a recognition, not, of course, very clearly or accurately expressed, 
 that the infinite and uncreated is incognizable ; or, in other words, that cognition 
 is limited to the sphere of cause and eff"ect, which is surely no great heresy. 
 " The word Atheist," saj's Mr. Alabaster, speaking of the Siamese, " is among us 
 a word of reproach, and I do not like to apply it to those who, so far as I see, do 
 not deny the existence of a God, but only reverentially abstain from defining 
 that which it is impossible to comprehend," Wheel of the Lav:, lii. Schlagint- 
 weit, Buddhism in Thibet, p. 108 ; Hardy, Manual of Buddhism, pp. 393-398, 
 &c. ; Max MllUer's Chijjs, vol. i., p. 231, and p! 255, where he says, most truly, 
 that such a religion as has been ascribed to Buddha could have existed only in a 
 madhouse. See this subject more fully discussed, infra, p. 77. 
 
48 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 psycliological investigation becomes requisite, and one wliicli we 
 can scarcely venture to confine within the limits of the indivi- 
 dual mind. Admitting the reality of both phenomena, the ques- 
 tion comes to be, whether they do, in our nature, so balance each 
 other as to exclude the assertion of supremacy by either ? or 
 whether the one be not fundamental, involuntary, and determin- 
 ing ; the other superinduced, voluntary, and self-determined ? 
 Should the latter supposition be the correct one, humanity, 
 though imperfect, will neither be necessarily anarchical nor hete- 
 ronomous ; and the possibility of a law-natural will be saved. 
 
 (B) The canon of the application of the historical method 
 then comes to be this — 
 
 An appeal to history, though not scientifically indispensable, 
 becomes practically important in support of any proposition, 
 the opposite of which the individual conscience is compelled to 
 entertain, even partially. . ^ 
 
 {C) The regulative canons for the application of the historical 
 method again are — the laws of evidence applicable to historical 
 inquiry.^ 
 
 The investigation of the laws of evidence constitutes a branch 
 of special jurisprudence, which cannot receive adequate discus- 
 sion in a treatise on general jurisprudence. All that I shall 
 attempt is to indicate one or two of those laws which have 
 been most generally violated in dealing with anthropology from 
 a historical point of view. 
 
 1st. Preference must be given to the best witnesses. 
 
 In virtue of this rule we may, without hesitation, confine our 
 investigations almost exclusively — 
 
 1 On tliis subject the best work, perhaps, in any language, is Sir G. C. Lewis's 
 Methods of Observation and Reasoning in Politics. 
 
AVITH EEFEREXCE TO HUMAX AUTONOMY. 
 
 49 
 
 (a) To tlie higher races of mankind. 
 
 (h) To the more vigorous periods of their moral, intellectual, 
 and political life ; t 
 
 And (c) to the more highly developed portion of each commun- 
 ity, as represented by its more prominent individual members. 
 
 It is from forgetfulness of this rule that so many investigators 
 of this problem have been led into fruitless attempts to determine 
 the primitive beliefs of mankind in points of time, and the exist- 
 ing opinions of the non-historical races. Partly, indeed, the 
 problem itself has been mistaken, and a confusion similar to that 
 between the law of nature in the scientific sense, and the laws of 
 the so called " state of nature," ^ has arisen between the funda- 
 mental, normal, and permanent beliefs which we seek, and beliefs 
 which, as belonging to a particular stage of social life, even if 
 discoverable, would probably be abnormal, exceptional, and 
 evanescent. 
 
 Much difference of opinion still prevails as to the condition in 
 which mankind first appeared on the earth. In favour of the 
 savage state we have the testimony of recent physiological in- 
 vestigation, vdiich, to a certain class of minds, is altogether con- 
 clusive. On the other hand, the science of comparative philology^ 
 has come to the aid of those old traditions of primitive civiliza- 
 tion and subsequent pre-historic degeneracy, the imiversal pre- 
 valence of which was formerly conceived to settle the cj_uestion 
 in the opposite direction. Amongst the philosophers, too, in our 
 own times, Schelling has appeared as the advocate of a sort of 
 golden age, on the ground that it is inconceivable that man, as he 
 now appears, should have been able, of himself, to raise himself 
 
 Introd., p. 8. ^ ]\Iax ]\Iiiller's Oxford Essays, 1856, p. 5 and elsewhere. 
 
 D 
 
50 INQUIRY INTO THE HISTORY OF OPINION 
 
 from instinct to consciousness, from animality to rationality;^ 
 and Sir Alexander Grant, the learned Principal of tlie University 
 of Edinburgh, in criticising the Darwinian hypothesis, has ex- 
 pressed his opinion that the higher races from the first, in addition 
 to the human faculties which savages now exhibit, must have 
 possessed " an inward impulse which led to the evolution of 
 civilization." " The extremely unprogressive character of savage 
 society," he says, " is an obstacle to believing that the first civili- 
 zation of the world, that of the Aryan and Semitic races, can ever 
 have taken its start from such a society, in primeval ages."^ 
 
 Even putting aside all distinction, in kind, between the differ- 
 ent races, there is, as it appears to me, nothing inadmxissible, d 
 iwiori, in the conjecture that barbarism may, for the first time, 
 have resulted from causes similar to those which have so often 
 occasioned retrogression, in other times. Anarchy is a pheno- 
 menon but too familiar to the historian ; and not many genera- 
 tions of anarchy, if continuous, will, at any time, bring about 
 the total loss of civilization. Mexico and modern Greece have 
 already retrograded to a point below that which has been now 
 attained by the Sandwich Islanders ; and it is questionable 
 wdiether the Latin civilization of Europe, with all the aids 
 of material progress, will ultimately survive the disorgan- 
 izing and demoralizing influences to wdiich it is at present 
 subjected, from democracy and consequent despotism on ^ the 
 one hand, and superstition and consequent infidelity on 
 the other. Eeactions, no doubt, continually occur ; but it by 
 no means follows that each reaction should reach the previous 
 point of departure. Algeria has improved amazingly under 
 
 1 Scliwegler, p. 303. ^ Lecture to Ediii. University Phil. Soc. April 6, 1871. 
 
WITH EEFEEEXCE TO HUMAX AUTOXOMY. 
 
 51 
 
 Prencli rule, and India, we trust, lias done tlie same under our 
 own. But no portion of the north coast of Africa has ever re- 
 gained the point Avliich it had reached in the days of TertuUian 
 and Augustin ; and the high tide of Hindu civilization left its 
 mark in an age the remoteness of ^vliich CA^en comparative philo- 
 logy hesitates to compute. In 1794 — towards the end of the 
 "reign of terror" — ve are told, matters in France had come 
 to the pass that " at IMeudon there was a tannery of human 
 skins ; such of the guillotined as seemed worth flaying : of 
 which perfectly good Avash leather was made ; for breeches and 
 other uses;'"'i whilst the scalps of the women of the higher 
 classes who were guillotined, — their hair, from the preponder- 
 ance of Prankish blood, beino- fairer than that of the common 
 people — were in great demand as iJerriiqiics-Uondes.- A few 
 months later we knoAv that these horrors were at an end ; and 
 that they were regarded, at the time, by the A'ast majority of 
 French men and women, in the same light as by the rest of 
 civilized mankind, cannot be doubted. But just as a Avhole 
 private family is apt to suffer a moral degradation when a foul 
 crime is committed by one of its members, so the subsequent 
 history of France, and " the recent horrible episode of the Com- 
 mune,"^ afford too much reason to fear that she lias not yet re- 
 covered from the influences of the " flrst reign of terror." That 
 by the union of liberty and order during a long course of years, 
 she may Avipe out the blood-stained pages of her horrible past, 
 must be the hope of all, but, for the present, can be the con- 
 fident expectation of few. 
 
 1 Cable's French Revolution, vol. iii. p. 209-10. = p_ 209. 
 
 ^ See M. Eenan's Reforme Intellectuelle et Morale, p. 56, one of the most re- 
 markable political treatises in existence. 
 
52 
 
 INQUIRY INTO THE HISTOEY OF OPINION 
 
 But tlie question as to the condition of primitive mankind 
 loses all real importance for our purpose wlien we consider 
 that, just in proportion to the extent to which man at any 
 period of his career, or from whatever cause, either as an indi- 
 vidual or a race, approaches the condition of the lower animals, 
 and recedes from that which is special to humanity, his value for 
 the anthropologist diminishes, both as a specimen and a witness. 
 Whatever be the qualities with which Ave are occupied, it is in 
 the highest and not the lowest specimens of the organism that 
 we seek for their typical manifestation.^ If we wish to ascertain 
 the characteristics of animal life we examine a man or a horse, and 
 not a worm or a snail. And amongst men and horses, we select 
 European men and Arab horses, not Hottentots and Icelandic 
 ponies. Viewed as a specimen, then, if the primitive man resem- 
 bled the Bushman or the Santal, he would throw less light on 
 the characteristics of humanity than our next door neighbour. 
 
 Then, as to his opinion, consciously emitted ; if we do not ap- 
 ply to savages, or monkeys, for our knowledge of physiology, or 
 zoology, — why should we call them in to instruct us in psycho- 
 logy or anthropology ? The whole nature of man probably exists 
 in all men at all times, and the " intuition of Kosmos " ^ will, con- 
 sequently, be wholly absent from none ; but it is in the highest 
 men at the highest times that nature exists in the greatest 
 health and vigour, and it is there and then, only, that this intui- 
 tion commonly manifests itself as a self-revealing power. 
 
 On the other hand, however, it is true, that, as the character- 
 
 1 "Quid illnd ? num dubitas, quin specimen naturte capi deLeat ex optima 
 quaque natura?" Cicero, Tuscul. Quccst. i. c. 14. Aei 5e aKOTveiu kv roh Kara (pvaiu 
 'ixovTL iiaXKov to (pvaeL, /cat fj.7] iv rois diecpdapfxeuoLS. Aristot. Folit. i. c, ii. 10. 
 
 2 Bunsen, ut sup. p. 56. , 
 
"WITH EEFEEEXCE TO HUM AX AUTOXOMY. 
 
 53 
 
 istics of animal life are sometimes best exhibited by tlie plieno- 
 meiia of infancy and disease, so tlie study of the undeveloped and 
 lapsed races of man may sometimes throw light on his nature. 
 Instruction may be derived from comparing them, not only with 
 the higher jihases of civilization, but with each other. The 
 errors of a Eed-Indian differ from those of a Eed-Eepublican 
 very Avidely; but they are about equally great, and the contrast 
 which they offer is not without value for anthropological study. 
 Still as the child, or the fool, does not teach the man, or the sage, 
 to the extent to which the man, or the sage, teaches the child and 
 ought to teach the fool, so neither does pathology throw as much 
 light on physiology or psychology, as these throw on pathology. 
 Our best instructors in anthropology will therefore be the higher 
 races, and these races, not only at the period of their highest en- 
 dowment, culture, and organic life, but as represented by these 
 sanest, most gifted, and most cultivated members. For our 
 purposes, the single life of Socrates is of greater value than the 
 whole existence of the ne^ro race. 
 
 2cl. Even amongst the witnesses whom we admit, the prin- 
 ciple that testimonia loonderancla sunt, non mimeranda must be 
 applied. 
 
 The calling in of historical testimony at all, is an admission 
 that the case is one in which the value of numbers, combes into 
 play, and in which the rule holds good that ceteris 2^ci7nhiis, two 
 witnesses are better than one. At the same time we must re- 
 member that it is the reality of a fact, and not the mere preva- 
 lence of an opinion that is the ultimate object of our inquiry ; and 
 that a fact can be ascertained only from those that know it. 
 The vast majority of human beings, even of the higher races of 
 
54 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 mankind, would no doubt still be ready to swear that tlie sun 
 goes round the earth ; but the fact has been ascertained to be 
 otherwise by the testimony of a m^ere handful of witnesses. 
 The fact in question v/ith us here, though perhaps ascertainable 
 without special culture, is scarcely ascertainable without special 
 gifts, and is very far from being one with reference to Avhich all 
 men are equally in a condition to bear testimony. 
 
 od. The abstract value of two witnesses being equal, the value 
 of a coincidence between their testimony will increase in pro- 
 portion to the dissimilarity, and diminish in proportion to the 
 similarity, of the circumstances in which it is given. It is on 
 this principle that the value of historical, as compared with con- 
 temporaneous testimony, chiefly rests. Very possibly our ances- 
 tors were no wiser than ourselves ; but the circumstances in 
 which they thought and acted differed from ours more extensively 
 than those of contemporaries, and hence the greater care with 
 which we are willing to discuss their opinions. The effect is the 
 same where the difference of circumstances arises from distance 
 in space, in race, in social position, education, occupation, and 
 the like, as in time. A coincidence of opinion between a China- 
 man and an Englishman will do more towards establishing a 
 fact, and a difference of opinion will do less towards invalidating 
 it, than a similar coincidence, or difference, between an English- 
 man and a Scotchman. 
 
 Having indicated these rules for the application of the histo- 
 rical method to anthropological inquiries generally, our next duty 
 is to determine whether the central creed of humanity has hitherto 
 affirmed or denied the fundamental rectitude of man, and the 
 consequent existence, in his nature, of a law for its guidance. 
 
WITH REFEREXCE TO HUMAN AUTONOMY. 55 
 
 To answer tins question must, to each of iis, be the business of 
 his life, rather than of any single siDasmodic effort. AYere I to 
 profess to deal with it exhaustively within the limits of such a 
 work as this, I should simply give proof of insensibility to its 
 magnitude, and its difficulty. All that I can do is to indicate its 
 scope, and to signahze a few of the leading considerations which, 
 to my own mind, notwithstanding all the sin and folly which we 
 behold, and to which we contribute, appear to warrant an affir- 
 mative answer. 
 
 (A) Of oriental, or ante- classical cmtliToj)ology generally. The 
 " old colossal religions of Asia," as l^eander called tliem,^ fall 
 mainly into two classes; those of the Shemitic, and those of the 
 Aryan races. 
 
 {a) The Shemitic races. As the religions of all the Shemitic 
 races rest on direct revelation, real or pretended, and as they are 
 not accompanied by independent rational or speculative sys- 
 tems, their anthropology is necessarily a reflex of their theology. 
 The value of the former conseciuently depends on the authen- 
 ticity of the latter. But as we admit the authenticity of one 
 such direct revelation, and as all the others, if genuine, must 
 have agreed with it, it follows that from this one we shall learn 
 all that the Shemitic religions can teach us. The only Shem- 
 itic anthropological doctrine with which we need concern our- 
 selves thus comes to be that contained in the Old Testament. 
 The question whether this doctrine affirms or denies the radical 
 soundness of humanity is of vital importance, not only in a reli- 
 gious, but in a scientific point of view, because it furnishes when 
 lightly understood, and taken in conjunction with the teaching 
 
 ^ Church Eistorij, vol. ii. p. 6, Bolm's translation. 
 
56 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 of Christ and His apostles, tlie only external touchstone by 
 wliich the accuracy of our natural interpretation of human 
 nature can be tested. But as the religion of the Hebrews forms 
 an iinum quid with Christianity, we shall defer the considera- 
 tion of it till we speak of Christian anthropology.^ 
 
 (b) The Aryan or Indo-Ger manic races. The popular religions 
 of the Aryan races, like those of the Shemites, usually lay claim 
 to direct revelation, and consist mainly in traditions of external 
 manifestations of divinity, and expressions of divine will. But 
 they differ from them in one very important respect, viz. that 
 this mythical and sensuous element does not stand alone, but 
 appears to have been preceded, and is always accompanied by 
 what, if not a speculative is at any rate a rational element, in 
 the shape of a body of theological and ethical doctrine resting on 
 a study, more or less accurate, of natural phenomena. In India 
 this rational faith is known not only to have preceded the exist- 
 ing polytheistic mythology, but to characterize the original Vedic 
 hymns themselves, as compared with subsequent portions of 
 the Vedic literature which are represented as directly inspired.^ 
 " In many a hymn the author says plainly that he, or his friends, 
 made it to please the gods." As regards the sensuous poly- 
 theism of later times, in so far as it proceeded from the Aryan 
 
 ^ Baron Bunsen regards the ancient Egyptians as a brancli of the Shemitic race 
 {God in History, 1. p. 223), and their monuments as exhibiting the earliest form 
 of Shemitic consciousness, ethical and religious. The point is one about which 
 Egyptologists and philologists are not agreed, and on which I can presume to offer 
 no opinion. As to the substance of their anthropological beliefs, enough appears 
 to be known to warrant us in affirming that they embraced a direct relation be- 
 tween the human and the divine, and that the character ascribed to the divinity — 
 Osiris, (p. 226) was beneficent. How they conceived themselves to have arrived 
 at this creed is another question, the answer to which will probably very much 
 depend on the race to which ethnologists may ultimately assign them. 
 
 2 Max Miiller's Ancient Sanscrit Literature, chap. i. 19. 
 
WITH EEFEEEXCE TO HUMAX AUTOXOMY. 
 
 57 
 
 mind at all, and was not the result of contact witli the inferior 
 races, there is reason to believe that it was addressed entirely 
 to the populace, and was intended to enforce and illustrate, 
 rather than to express the fundamental national belief. It is 
 certain, at all events, that the preponderance of the sensuous, 
 or the rational element, depended, not on their relation to each 
 other in point of time, but on the stage of civilization at which the 
 nation stood for the time being^. As the Arvans of India de2;ene- 
 rated, sensuism absorbed spiritualism, and the rational gave way 
 to the mythical element;^ as the Aryans of Greece advanced, the 
 process was reversed — spiritualism absorbed sensuism, and myths 
 and mysticism alike gave way before the influence of reason. 
 
 Great obscurity rests on the relation in which the eastern and 
 western branches of the Aryan race stood to each other during 
 the long period- which elapsed between their separation, and the 
 commencement of the history of the classical nations. There 
 was a tradition that Pythagoras visited the East, and even India. 
 But, the existence of any real connection between eastern and 
 western thought previous to Alexander's expedition, scarcely 
 admits of proof from classical sources ; and it is to that noble 
 phalanx of oriental scholars, whose labours form perhaps the 
 most remarkable phenomenon in the whole annals of learning, 
 that we are indebted for our knowledo'e of the fact that the creed 
 of Socrates and Plato had its historical prototype in that of the 
 Veda and the Zend-Avesta, rather than in that of Homer. It is 
 in these remarkable monuments of the earliest forms of Aryan 
 meditation, and not in the popular beliefs of later ages \Yhether 
 
 See Professor Roth's theory of the supersession of the worship of Yaruua by 
 that of Indra, as 5;tated by Dr. Muir. Sanskrit Texts, vol. y. p. 116, 
 '"^ ih. i. pp. 2-4, 2d ed., and v. p. 2. 
 
58 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 in tlie east or tlie west, that we must look for partial anticipa- 
 tions of the nltimate results of Greek thought and Christian 
 teaching. In this rational element, which as an undercurrent 
 never altogether disappears from the Aryan religion, we have an 
 expression of human consciousness which we miss in the religions 
 of the Shemitic races ; and, for this reason, it is to those who 
 were our own progenitors in the flesh, and with whom as a 
 nation we have been so singularly reunited, and not to the 
 kindred of those who were chosen to be the channel of direct 
 revelation, that we have to look for the roots, not only of the 
 languages which we speak, but of the theological and anthropo- 
 logical beliefs on which our natural religion, our ethics and 
 jurisprudence, and even the external framework of our social 
 and political life depends.^ 
 
 1st The original Aryan family. — The Aryan family, before 
 their separation, believed in a Creator whose character they 
 accepted as the standard of rectitude, and they ascribed to 
 humanity, as represented by themselves, a fundamental nature 
 in accordance with that character. 
 
 I am not myself an oriental scholar, and I must therefore be 
 contented to establish this proposition by referring you to a few 
 expressions of opinion by those who are. I shall be careful, 
 however, that these expressions be, as far as possible, both trust- 
 worthy, and unequivocal. On both grounds, it will, I believe, 
 be admitted that precedence is due to the opinion of Professor 
 
 ^ A very powerful argument in favour of the views of those who are endeavour- 
 ing to remove the obstructions with which the pedantry of last century has barri- 
 caded the approaches to the two classical languages, is furnished by the fact that, 
 in place of abandoning Greek and Latin, our sons will now have to add Sanscrit 
 to the studies of a learned education. 
 
WITH EEFEREXCE TO HUMAN AUTOXOm^ 
 
 59 
 
 Max Miiller, not as an oriental scholar alone, "but as a man of 
 vast general culture, great depth of sympathetic insight into 
 human character, and Avhose open and dispassionate temper 
 enables him to preserve the happy critical medium between 
 credulity on the one hand, and scepticism on the other. In his 
 History of Ancient Sanscrit Literature (p. 528) he thus expresses 
 himself : — 
 
 " We look in vain for the effect produced on the human mind 
 by the first rising of the idea of God. To the poets of the Yeda, 
 that idea is an old and familiar idea : it is understood, never 
 questioned, neA'er denied." In proof of this " Monotheism of the 
 Aryan nations," he adduces many passages, both in the earlier and 
 the later Yedic hymns. From these passages it is apparent that a 
 monotheistic conception not only preceded, but all along accom- 
 panied the polytheistic mythology. " There is," he says, " a 
 monotheism that precedes the polytheism of the Yeda, and even 
 in the invocations of their innumerable gods, the remembrance 
 of a God, one and infinite, breaks throuo-h the mist of idolatrous 
 phraseology, like the blue sky that is hidden by passing clouds " 
 (p. 559). The different divinities were but the various aspects 
 in which the One self-existent presented Himself, and hence the 
 ascription to each of them in succession of the wliole of His 
 attributes. Such indeed is the explanation of them which is 
 given expressly in some of the hymns. "They call (Him) Indra, 
 Jlitra, Yaruna, Agni; then He is the well-winged heavenly 
 Garutmat ; that which is One, the wise call it many ways — they 
 call it Agni, Yama, Matan'svan" (p. 567). In another hymn, 
 also falling within the ancient period, the same belief is even 
 more definitely expressed : " He who gives life, He who gives 
 
60 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 strength, wliose blessing all the bright gods desire ; He who is 
 God above all gods." ^ 
 
 Nor does this primitive belief appear ever to have been aban- 
 doned. The Piiranas are the main source of the existing popular 
 creed of the Hindus. They are little better than a caricature of 
 the ancient theology, and yet a learned Hindu of Benares, in a 
 lecture delivered before an English and native audience, indig- 
 nantly repudiates the charge of polytheism, on the ground that 
 there are " thousands of texts in the Puranas, declaring, in clear 
 and unmistakeable terms, that there is but one God, who mani- 
 fests Himself as Brahma, Vishnu, and Eudra (Siva), in His 
 function of creation, preservation, and destruction. In support of 
 these statements, this eloquent advocate quotes numerous passages 
 from the sacred literature of the Brahmans, and he sums up his 
 view of the three manifestations of the Deity, in the words of 
 their great poet Kalidasa, as translated by Mr. Griffith : — 
 
 " In those Three Persons, the One God was shown, 
 Each First in place, each Last, — not one alone ; 
 Of Siva, Yishnu, Brahma, each may be 
 First, second, third, among the Blessed Three." ^ 
 
 ISTor does this doctrine appear to have disappeared from the 
 popular creed, even at the present day ; for Mr. Hunter 
 tells us, in his Annals of Rural Bengal (p. 116), that "The 
 modern pundit's reply to the missionary who accuses him of 
 polytheism is : Oh, these are only various manifestations of 
 the One God ; the same as, though the sun be one in the 
 heavens, yet he appears in multiform reflections upon the lake. 
 The various sects are only different entrances to the one city."^ 
 
 1 P. 569. Quoted also by Bunsen, God in History, i. p. 303. 
 
 2 Chips, preface, xviii. ^ Chijis, p. 116. 
 
WITH EEFEREXCE TO HUMAN AUTONO]\rY. 
 
 61 
 
 Whatever an Arian or a Socinian might say to such a creed, it 
 ^yill scarcely do for a people Avho repeat the Athanasian Creed 
 in their churches to accuse its holders of polytheism ! 
 
 The charge of dualism, on the ground that it is traceable in 
 the Persian branch of the Aryan family, seems equally to melt 
 away before closer inspection. There can, I imagine, be no 
 doubt that, as Baron Bunsen asserts, the appearance of this 
 doctrine, to the extent to which it did appear, is to be re- 
 garded simply as an evidence, not of the abandonment of 
 monotheism, but of the superseding of the^^orship of external 
 nature by an ethical faith. " The antagonisms of light and 
 darkness, of sunshine and storm, became transformed into anta- 
 gonisms of good and evil, of powers exerting a beneficent or cor- 
 rupting influence on the mind."^ But the question, for us, is as 
 to the relative position ascribed to these powers — were they 
 equals ? or, if not, which of them exercised supremacy OA^er the 
 other ? On these points Bunsen has no hesitation ; but lest in 
 his case you should imagine, from his thesis being substan- 
 tially my OAvn, that the Avish AA^ere father to the fact, I shall call, 
 in preference even to Milller,^ another Avitness from another 
 nation. 
 
 " It is very certain," says the Comte de Gobineau,^ " that 
 from the first period, AAdien the Aryans still inhabited Aryana- 
 Vaeja, they had formed the conception that the cause of all 
 impurity, of all obscurity, of all evil, lurked in the essence of a 
 perverse spirit, Avhich it AA^as their duty to combat and resist at 
 
 <^ 
 
 ^ God in Historij, vol. i. p. 273, 
 
 2 For whose opinion see Chips, i. p. 140, 155, 173. 
 
 3 Histoire des Perses, par le Comte de GoLineau, vol. i, p. 40. 
 
62 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 any price. There is nothing to show that that perverse spirit 
 was then considered as equal in power to the Eternal Light to 
 which they paid their adorations. The Aryans did not profess 
 dualism. JSTo trace of that dogma is to be found in the Gathas, 
 the most ancient parts of the Avesta : the Yedas give no indica- 
 tion of it : the primitive Greeks knew nothing of it ; nothing 
 resembling it has been discovered either among the ancient 
 Scythians, or the later Scandinavians. Evil exists, unquestion- 
 ably, in the form of incessant protest and revolt against the 
 supreme Divinity. But this Divinity rules alone, secure of 
 fmal victory, and master of all things in the immensity of His 
 creations." 
 
 I am aware that there is a class of Sanscrit scholars by whom 
 a belief in the unity of God, in the earliest period, is contested 
 on the ground that it first appears in the Brahmanas and XJpani- 
 shads. To a limited extent this view claims the sanction of the 
 distinguished name of Dr. Muir, who has treated the subject, in 
 the fifth volume of his Sanshrit Texts} with his usual caution and 
 moderation. I cannot of course discuss either the authenticity or 
 the antiquity of Sanscrit texts, with Sanscrit scholars. The fact 
 of the existence of passages in which the unity of God is directly 
 asserted being confined to the more recent portions of the Vedic 
 literature may, or may not, admit of the explanation which Max 
 Miiller has given of it,^ viz., that many of the verses in which 
 such expressions occur, though incorporated in the Upanishads, 
 can be traced to their original places in the PJg-Veda Sanhita. 
 
 But there is another ground, which I have already partially 
 explained,^ on which I believe in the monotheism not of the 
 
 1 Sect. xxi. p. 350. 2 Sanscrit Lit. p. 567. ^ Ante, p. 46. 
 
WITH EEFERENCE TO HUMAN AUTONOMY, 
 
 63 
 
 Aryan race in particular, but of mankind in general ; and 
 wliich seems to me to remove the question from the category of 
 things which are open to historical discussion. The idea of 
 unity I hold to be involved in that of causality, and like it to 
 be a necessary idea, the existence of which, in virtue of the 
 canon of limitation, may be taken for granted, at all times and 
 in all places. Whatever be the subject to which the formal idea 
 of number is applied, it is, as Pythagoras asserted, and as Hegel 
 has shown in his logic,i manifestly impossible to think two, ix. 
 two ones, till we have thought one, i.e. one one. But this One one, 
 which we must begin with, is Causation^ — God — the common 
 starting-point of thought and of existence. To think of two 
 causes is to think of one cause twice over; and as thinking 
 takes place in time, one of the thoughts must have preceded 
 the other, in which case the latter loses its significance. But a 
 dualist, or a polytheist (in the sense of a believer in two or more 
 primary Gods), is supposed to think of two, or of many ones, firsts, 
 or causes, before he thought of one. The idea of unity is thus at 
 once ascribed to Him and denied to Him ; or, in other words, 
 he is credited with thinking twice, or oftener, what he never 
 thought at all. Dr. Muir's error, as it appears to me, consists in 
 assuming that in thinking of God as one, we form an abstract 
 conception of Deity.^ An abstract conception is a result of rea- 
 soning at which it may be that the Aryan nations, at this stage 
 of their history, were incapable of arriving. But the idea of 
 unity is not a result, but a condition of reasoning, an ultimate 
 
 1 Scliwegler's Hist, of Philos. by Stirling, p. 325. 
 
 ^ "That one breathed calmly, self- supported ; there was nothing different from, 
 or above it." Muir, Sanskrit Texts, v. p. 357. 
 3 lb. p. 351. 
 
64 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 datum of consciousness, wliicli is inseparable from intelligent 
 existence, and must have existed in men at the beginning, just 
 as much as at any subsequent stage of their historical life. 
 
 Professor Max Mliller has adopted this view with one breath 
 but he appears to have rejected it with the next, in virtue of a 
 distinction which I cannot see to be more than verbal. " It is 
 too often forgotten," he says, " by those who believe that a 
 polytheistic worship was the most natural unfolding of religious 
 life, that polytheism must everywhere have been preceded by 
 a more or less conscious theism. In no lancruaQ-e does the 
 plural exist before the singular. No human mind could have 
 conceived the idea of Gods without having previously con- 
 ceived the idea of a God. It would be, however, quite as great 
 a mistake to imagine, because the idea of a God must exist 
 previously to that of Gods ; that, therefore, a belief in one God 
 preceded, everywhere, the belief in many Gods. A belief in 
 God as exclusively One, involves a distinct negation of more 
 than one God, and that negation is possible only after the con- 
 ception, whether real or imaginary, of many Gods." 
 
 " The primitive intuition of the Godhead is neither mono- 
 theistic nor polytheistic, and it finds its most natural expression 
 in the simplest and yet most important article of faith that God 
 is God. This must have been the faith of the ancestors of man- 
 kind, previously to any division of race, or confusion of tongues. 
 It might seem, indeed, as if in such a faith the oneness of God, 
 though not expressly asserted, was implied, and that it existed, 
 though latent, in the first revelation of God. History, however, 
 proves that the question of oneness was yet undecided in that 
 primitive faith, and that the intuition of God was not yet secured 
 
WITH EEFEEEXCE TO IIOIAX AETOXOMY. 
 
 65 
 
 against the illusions of a double vision. There are in reality 
 tAvo kinds of oneness which, when we enter into metaphysical 
 discussions, must be carefully distinguished, and which for prac- 
 tical purposes are well kept separate by the definite and indefi- 
 nite articles. There is one kind of oneness which does not exclude 
 the idea of plurality ; there is another which does. AVhen we 
 say that Cromwell was a Protector of England, we do not assert 
 that he was the only protector. But if we say that he was the 
 Protector of England, it is understood that he was the only man 
 who enjoyed that title. If, therefore, an expression had been 
 given to that primitive intuition of the Deity, which is the main- 
 spring of all later religion, it would have been ' There is a God,' 
 but not yet, ' There is but One God.' The latter form of faith, 
 the belief in One God, is properly called monotheism, whereas 
 the term of henotheism would best express the faith in a single 
 God.'"i 
 
 'My reply to this train of reasoning and illustration is, that 
 it is wholly inapplicable to ultimate causality, of which the 
 essence is priority. The intuition of a God, of which Professor 
 ]\Ililler speaks, is an intuition not of co cause which is also 
 a result, but of a first cause ; for it is this conception alone 
 which is intuitive, or, in other v^ords, which is forced on the 
 mind by its own laws. Simidtaneity of creation is quite con- 
 ceivable, the Creator being there. God could have created 
 two Cromwells at the same time. The English Commonwealth 
 might have chosen two Protectors by a single vote, or it 
 might have chosen ten. But simultaneity of v.Itimatc creative 
 power (and no power is creative which is not itself ultimate) 
 
 , 1 Chijjs, i. 353-6. 
 E 
 
66 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 is inconceivable. The idea of it conlcl not liave arisen, and we 
 are entitled to assume never did dwell in any sane mind, either 
 savage or civilized, either consciously or unconsciously. There 
 must then be a first cause. Further, inasmuch two firsts is a- 
 contradiction in terms, the assumption of a God (or one first 
 cause) is, co ijjso, a negation of any other God (or second-first 
 cause). It may be quite true that the idea of one necessitates the 
 idea of two ; but that is of no consequence so long as it is certain 
 that the idea of two presupj^oses the idea of one. That there is 
 " one kind of oneness which does not exclude the idea of plurality" 
 is, therefore, nothing to the purpose ; because I am willing to go 
 the length of admitting that ever]/ kind of oneness includes the 
 idea of plurality, in the sense of necessitating it. But the sichse- 
 quent admission of plurality, whether contingent or necessary, can 
 be of no avail in the question of priority, after unity has already 
 been assumed. As regards the precedence, if not the necessity of 
 its existence, then the Pythagoreans were unquestionably right 
 in placing the One — the Undivided, the Eternal — in antithesis 
 to all other numerals.^ 
 
 It must have been the misleading influence of his philo- 
 logical illustration which induced so clear-headed a man as 
 Professor Miiller, on this occasion, to argue himself out of what, 
 plainly, is his own general view. Probably, too, he may have 
 felt that, if we carry this mode of reasoning beyond the point at 
 which it guarantees the existence of a single cause, it may be- 
 come, as St. Anselm suspected, a temptation from Satan.^ Por 
 our knowledge of the character of the cause of our being, and, 
 
 1 Bunsen, ii. p. 95 ; where will be found an interesting and perfectly intelligible 
 account of the Pythagorean Pentagram. 2 Neander, viii. p. 123. 
 
WITH EEIEEEXCE TO HUMAX AUTOXOMY. 
 
 67 
 
 conseqnently, of our being itself — of the fact that God is a 
 righteous and "beneficent God, and tliat His creation is " very 
 good," — Ave must appeal not to the laws of thought alone or 
 specially, but to Kosmos as a whole. 
 
 The question, then, as we have already seen, which it con- 
 cerns us to establish historically, is the character which man has 
 ascribed to the Single Source of his being, and as a necessary 
 consequence to his being itself. As bearing on this point, the 
 absence of dualism, and the preponderance assigned to the 
 powers of light and life over the powers of darkness and death, 
 in the earliest period, is of exceeding interest and importance. 
 
 So far as we have any means of judging, it would seem that 
 the original Aryan family believed not only in the purity of the 
 Source of being, but in the beneficence of its manifestations in 
 the work of creationd The most satisfactory evidence on this 
 point consists in the earliest conceptions of Deity which they 
 exhibit in their new abodes, of which I shall have occasion to 
 speak presently. With reference to the character which they 
 assigned to humanity in their original dwelling-place, we derive 
 from the science of comparative philology direct evidence of a 
 very curious and satisfactory Idnd. From this source we have 
 unequivocal testimony to the fact, that the duties Avhicli rela- 
 tives were supposed by our earliest progenitors to cbscharge to 
 each other, within the domestic cuxde, very closely resembled 
 those which we ourselves assign to them. 
 
 " The mere fact that the names for jatlicr, mother, Irothcr, 
 sister, daughter, are the same in most of the Aiyan languages, 
 
 1 :Miiller's And. Sans. Lit., pp. 527, 559, 568, 569, &c. 
 
68 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 might, at first siglit, seem of immaterial significance, yet even 
 these words are full of import.^ That the name of father was 
 coined at that early period, shows that the father acknowledged 
 the offspring of his wife as his own, for thus only had he a right 
 to claim the title of father. Father is derived from a root. Pa, 
 which means, not to beget, but to protect, to support, to nourish. 
 The father as genitor, was called in Sanscrit ganitas ; as pro- 
 tector, or supporter of his ofl^pring he was called pitdr. Hence, 
 in the Veda, these two names are used together, in order to 
 express the full idea of father. Thus, the poet says (i., 164, 
 33) :— 
 
 Dyaus me pita gaiiita^ % 
 Jupiter mei pater genitor 
 Tievs ifiov Trarrip yeverrjp. 
 
 In similar manner mdtar, mother, is joined with ganitri, geni- 
 trix (Ev. iii. 48, 2), which shows that the word mdtar must soon 
 have lost its etymological meaning, and have become an expres- 
 sion of respect and endearment. Tor among the early Aryans 
 mdtar had the meaning of maker, from ma, to fashion ; and in 
 this sense, and with the same accent as the Greek Mrrjp^ mdtar, 
 not yet determined by a feminine affix, is used in the Veda as a 
 masculine. . . . The natural relation between brother and sister 
 had been hallowed at that early period, and it had been sanc- 
 tioned by names which had become traditional before the Aryan 
 family broke up into different colonies. The original meaning of 
 hhrdtar seems to have been he who carries or assists ; of svasar, 
 she who X3leases or consoles ; svasti, meaning, in Sanscrit, joy or 
 happiness. In duhitar, again, we find a name which must have 
 
 1 Max Miiller's Essay on Comparative Mythology. Oxford Essays, 1856. 
 
 2 Jove, my paternal genitor. 
 
■SVUR EEFEEEXCE TO HUMAX AUTOXO:^IT. 
 
 69 
 
 l3econie traditional long before tlie separation took place. It is 
 a name identically the same in all tlie dialects, except Latin, 
 and yet Sanscrit alone could have preserved a consciousness of 
 its appellative power. Duliitar, as Professor Lassen has shewn, 
 is derived from dull, a root which, in Sanscrit, means to milk. 
 It is, perhaps, the Latin duco, and the transition of meaning 
 would be the same as between trahcre, to draw, and traire, to 
 milk. Xow, the name of milkmaid, given to the daughter of 
 the house, opens before our eyes a little idyll of the poetical 
 and pastoral life of the early Aryans. One of the few things 
 by which tlie daughter, before she was married, might make 
 herself useful in a nomadic household, was the milking of the 
 cattle, and it discloses a kind of delicacy and humour, even in 
 the rudest state of society, if we imagine a father calling his 
 daughter his little milkmaid, rather than Suta, his begotten, or, 
 filia, the suckling. This meaning, however, must have been 
 forgotten long before the Aryans separated. Buhifar vrSiS then 
 no longer a nickname, but it had become a technical term, or, so 
 to say, the proper name for daughter." ^ 
 
 So much for that " veiled life," before which, as Baron Bunsen 
 says, when Ave read the Yeda, " we stand in a similar position 
 to that which we should occupy with regard to the unfolding of 
 the Hebrew mind from the age of Abraham to that of Jeremiah, 
 if we possessed nothing but the Book of Psalms."^ Let us now 
 look into that period with reference to which its testimony is 
 direct. 
 
 2d. The Eastern, or Indian Branch. — After their separation, 
 the branch of the Aryan family which migrated towards the 
 1 P. 17. 3 P. 29S. 
 
70 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 East, carried with them, into their new abodes, their ancient 
 faith both in God and man. 
 
 Whatever be the date of the earlier hymns of the Veda in 
 point of time, there can be no doubt that they carry ns back to 
 the earliest settlement of the Aryan race in India, which pro- 
 bably took place several centuries before the date of Zoroaster.^ 
 
 Now, the character ascribed in the Eig-Veda to the elementary 
 powers whom the Aryans of India worshipped, or, more cor- 
 rectly speaking, to the various forms of manifestation under 
 which they worshipped the One Power, is a beneficent character. 
 Whether the special object of adoration, for the time being, be 
 Indra, or Varuna, or Agni, or Usliias, the permanent sentiment 
 is, that " God is love." 
 
 " Thou, Indra, art a friend, a brother, 
 A kinsman dear, a father, mother, 
 Though thou hast troops of friends, yet we 
 Can boast no other friend but thee. 
 "With this our h3^mn thy skirt we grasp, 
 As boys their fathers' garments clasp ; 
 Our ardent prayers thy form embrace, 
 As women's arms their lords enlace, 
 They round thee cling with gentle force, 
 Like saddle-girth around a horse." ^ 
 
 Even when Indra appears in the character of the Thunderer, 
 it is in behalf of mankind that his terrors are displayed, and 
 his bolts are hurled, and in his conflict with Vitra, the demon 
 of drought, the victory remains with the life-giving power.^ 
 
 The blue expanse of heaven was apparently the manifestation 
 of the Divine which first became an object of worship, and it is 
 to Yaruna " the Surrounder," whom philologists have identified 
 
 ^ Bunsen, 2it siqo. vol. i. p. 298. 
 
 a Muir's Translations from the Vedas, p. 15, and Sanskrit Texts, v. p. 136, 
 where the subsequent passages will also be found. 3 
 
"^VITH EEFEREXCE TO HOIAX AUTOXOMY. 
 
 71 
 
 with tlie Greek 'Ovpa.v6^} one of the offspring of Acliti, the god of 
 Space, that the character of omniscience is especially ascribed. 
 " Xo one rules for the twinkling of an eye, apart from liim."^ 
 
 " Two think they are not overheard, 
 Who sit and plot as if alone ; 
 Their fancied secrets all are known — 
 Unseen, the god is there, a third. " 
 
 But A"^ariina is not an object of suspicion — he is a terror only 
 to evil-doers. 
 
 " He marks the good and ill within 
 The hearts of men — the false and true 
 Discerns with never- erring view ; 
 He hates deceit, chastises sin. 
 His viewless bonds, than cords and gjxea 
 Move hard to burst, the wicked bend 
 In vain, within their folds confined, 
 To cast them off the sinner strives. 
 And yet the god will not refuse 
 His grace to one who inly moans. 
 And for forgiveness meekly sues." 
 
 In like manner it is in his beneficent aspects that Agni (Ignis), 
 the god of Fire, presents liimself, as one at the sight of whose 
 daily return, both heaven and earth, and gods and men rejoice."^ 
 
 " In every house thou art a welcome guest, 
 The household's tutelary lord, a son, 
 A father, mother, brother, all in one ; 
 A friend by whom thy faithful friends art blest." ^ 
 
 And Ushias — the Dawn — is represented as a beautiful bride 
 decked for her husband — 
 
 " Thou sweetly smilest, goddess fair, 
 
 Disclosing all thy youthful grace. 
 
 Thy bosom bright, thy radiant face, 
 
 And lustre of thy golden hair.'' 
 * * * * « « 
 
 ^ Muir, Texts, v. p. 76. 
 ^ lb. 22. * lb. 25. 
 
 ^ Chamb. Encyc. voce Yaruna. 
 5 lb. 25. 6 jj. 28. 
 
72 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 " Bright goddess, let thy genial rays 
 To us bring stores of envied wealth 
 In kine and steeds, and sons, with health, 
 And joy of heart, and length of days," ^ 
 
 After the character ascribed to Deity, the point next in im- 
 portance in the Hindu creed is the relation "between the Divine 
 Essence and the human souL This relation the Oriental Aryans 
 held to be of the most intimate kind. The life of humanity as 
 a whole, like the life of every individual man, they regarded as 
 a starting from, and progressing towards, the Divine life. " The 
 highest object of their religion," says Miiller, " was to restore 
 tliat bond by which their own self (atman) was linked to the 
 Eternal Self (paramatman) ; to recover that u.nity which had 
 been clouded and obscured by the magical illusions of reality by 
 the so-called Maya of creation." ^ And again, "A Hindu speak- 
 ing of himself, spoke also, though unconsciously, of the soul of 
 the universe, and to know himself was to him to know both his 
 own self and the Universal Self, or to know himself in the 
 Divine Self. The Sanscrit " atmanam atmana pasya " — see 
 (thy) self by (thy) self — had a deeper signification than the 
 Greek yvQ>9L o-eavrov, because it has not only a moral, but also 
 a metaphysical meaning." ^ I should scarcely be disposed to 
 say that the Greek yvc^Oi a-eavrov w^as destitute of metaphy- 
 sical significance even at the first, and ultimately it was dis- 
 covered to have no lack of it. But even seen exclusively in 
 its moral aspect, the recurrence of such a maxim, se'nijm" iihique, 
 et ah omnibus, would alone go far to establish our present thesis. 
 Of the fact that it is neither a Greek nor a Sanscrit, but a 
 human maxim, we have a striking indication in its existence 
 
 ^ Ih. 31. 2 Sanscrit Lit., p. 19. s pp, 21, 22. 
 
WITH EEFEREXCE TO HUMAJT AUTONOMY. 
 
 73 
 
 ill Cliiua.i And here is a dialogue to the same effect between a 
 husband and a wife. 
 
 Wife. — ''AA'hat my Lord knoweth (of immortality) may he 
 tell that to me." 
 
 HusBAXD. — " Thou who art truly dear to me, thou speakest 
 dear words. Sit down, I will explain it to thee, and listen well 
 to what I say." And he said, " A husband is loved, not because 
 you love the husband, but because you love (in him) the Divine 
 Spirit. A wife is loved, not because we love the wife, but 
 because we love (in her) the Divine Spirit. Children are loved 
 not because we love the children, but because we love the 
 Divine Spirit in them," ^ 
 
 " It was surely," says IMuUer, " the logical result of such a 
 creed, that the Hindus should recognise law and virtue, as we 
 see in their sacred poetry, as well as in their codes of law."^ 
 
 A very important indication of the Hindu conception of 
 humanity, which does not seem to have been sufficiently re- 
 marked, is furnished by a single word, — the name given to the 
 author of, or, more correctly speaking, the source assigned to, 
 their most renowned law-book. ]\Ianu, we are now told by all 
 the authorities, does not mean a Man, but man in the abstract.-^ 
 The " laws of Manu," consequently, do not profess to be a code 
 or system of law revealed to a particular man, like the laws of 
 Moses or Mahomet, but bear on the face of them to be the laws 
 of mankind, or, in other words, the laws which man's nature 
 teaches him. 
 
 1 Bimsen, vol. i. p. 208. ~ Sanscrit Lit. p. 23. 3 77,, p, 26.- 
 
 ^ Or, at all events, tlie progenitor of the Aryan Indians (Muir, ut sivp. v. p. 209). 
 Indra is praised in one of the hymns, because, "chastizing the lawless, he sub- 
 jected the black skin to Manu (the Aryan Man)." lb. p. 113. 
 
74 INQUIRY INTO THE HISTORY OF OPINION 
 
 There is scarcely a variety of scepticism, or of speculative 
 infidelity, known to the modern world which has not its proto- 
 type amongst the conflicting systems which the subtle intellect 
 of Hindostan ultimately developed. There, as here, thought has 
 dashed itself in its pride against the insoluble problems of God's 
 government, and sunk in despair. But there too, as here, contro- 
 versy has at any rate taught the lesson that, whilst error is 
 multiform and evanescent, truth, even when incomplete, is one 
 and abiding ; and the only systems which have never quitted the 
 field have been those which sought the image of a perfect God, 
 and the traces of an absolute law, in the primary characteristics 
 and normal impulses of man. Even the popular religion con- 
 tinued to bear traces of what may be called the orthodoxy of 
 the speculative systems. When, during the epic period, Brahma 
 gradually disappears, and Vishnu and Siva come into the fore- 
 ground, the first place is assigned to Vishnu, the good principle; 
 and in the conception of the Trimurti, the Hindu Trinity, both 
 Brahma and Vishnu take precedence of Siva. 
 
 Zcl. The Western Asiatic Branch. — The other typical religion 
 of the Aryan nations in Asia was that of the Iranian or Persian 
 branch, and it too, as we have already seen,i was not only mono- 
 theistic but optimist, — the character of the creature, of course, 
 corresponding to that of the Creator. This statement is one 
 about which oriental scholars are now so entirely agreed, and 
 which is so generally accepted,^ that I need scarcely occupy 
 your time in substantiating it by further references. The most 
 
 ^ Ante, p. 61. 
 
 2 Neander, Ch. His., vol ii. p. 6. Hegel's Philos. of History, p. 186, Bohn's 
 translations. 
 
AVITH EEFEEEXCE TO HOIAN AUTONOMY. 
 
 75 
 
 marked cliaracteristic of the creed of Persia is, tliat here, for 
 the first time, we find these fundamentally human dogmas sepa- 
 rated from mere nature Avorship, and exhibiting themselves as 
 individual ethical beliefs. Baron Bunsen has said of Zoroaster 
 that he is the Aryan Abraham and Moses in one ; and if the 
 Yeda be older tlian the Zendavesta, it is equally certain that 
 Zoroaster preceded any other known prophet of heathendom by 
 a vast space of time. Before the time of Buddha we scarcely 
 hear of any hero teacher in India of outstanding magnitude, with 
 the partial exception, perhaps, of the author of the Laws of Manu; 
 and between Zoroaster and Buddha there are about 2500 years. 
 The faith of Zoroaster is revealed to us in a hymn which Bunsen^ 
 gives in translation, and on which Count Gobineau^ has com- 
 mented. From this document, the authenticity of which does not 
 seem to be contested, we learn that Zoroaster belicA^ed in one 
 primordial divinity, one all- wise and living God," with wliom the 
 spirit, "the firstling of creation dwells," whom he called Ahura- 
 ]\Iazda, and whom Gobineau, and ]\Iuir though less confidently,^ 
 identify with the Yarouna of the Yeda and the Ouranos of the 
 Greeks. But in my view of the matter, as I have already said, 
 absolute dualism, i.e. two self-created and independent existences, 
 is an impossible creed. The only point to which I attach import- 
 ance is the character ascribed to the divinity to whom precedence 
 is granted. On this point the name itself is instructive, for in the 
 old language of Bactra, we are told Ahura means the spirit, and 
 Mazda the wise, the wisdom-giving;^ and the hymn in c^uestion 
 is as explicit as is conceivable in such a document. " The pious 
 
 1 Vol. i. p. 206. 2 Yo\. i. p. 40. 
 
 ^ Texts, y. p. 72. * Bunseu, ut sup. 259, 
 
76 
 
 INQUIRY INTO THE HISTOEY OF OPINION 
 
 hearts dost tliou give to inherit the earth, and dost punish those 
 who are void of truth and false to their promise." ^ It is in the 
 same strain that the disciples of Zoroaster sing in the Gathas — 
 " I would fain inquire of thee, 0 thou living God ; open unto me 
 tlie truth ! How arose the best present life " (their world) ? 
 " By what means are the present things to be supported ? Thou 
 Spirit, All-Holy, 0 Mazda, art the sanctuary of all truth ! " And 
 the hymn concludes thus : "What I would ask thee, tell me right, 
 0 thou living God ! Who made the gentle light and warmth? 
 Who made waking and sleeping ? Who hath made day and 
 night to remind tlie wise man continually of his duties ? " A 
 man who could take such a view as this of God, and His king- 
 dom on earth, was not very far from the kingdom of heaven. 
 
 Atli. Non- Aryan and Mixed Races of Asia. — What has been 
 called the Devil-worship of the hill tribes or Non- Aryan and in- 
 ferior ra(;es of India, the "black skins," ^ like the characteristics 
 of savages generally,^ in no degree invalidates the proof of the 
 fundamental beliefs of humanity derived from the sentiments of 
 the higher races. It does not prove the absence of such a senti- 
 ment even in these races. There is no stronger proof of the con- 
 sciousness that right is right, than the consciousness that wrong 
 is wrong ; and the deprecatory rites of the poor Khond or Santal 
 indicate a mistaken theology, rather than a mistaken anthropo- 
 logy. His recognition of himself, as a sinner, is no error at all ; 
 and his conception of God only as an avenger of sin, though a 
 deplorable error, is not quite so conclusive a proof even against 
 Ms theology as is sometimes imagined. No' opponent of Chris- 
 
 1 Ih. 280. 
 
 2 Ante, p. 73. 
 
 2 Ante, p. 51. 
 
WITH EEFEREXCE TO HUMAN AUTOXO^IY. 
 
 77 
 
 tianity ever maintained that it Avas a worship of the Devil; and 
 yet there have "been Christian doctrines, if not Christian prac- 
 tices, which were simply diabolical.^ On such doctrines it is 
 true that no rational system either of theology or jurisprudence 
 can be directly built: but, indirectly, they indicate the pre- 
 sence of the very sentiments which they professedly exclude, 
 and it is in this respect that their superiority to mere want of 
 thought and feeling becomes apparent. On the ground that it 
 is as a being who prays and worships that man is distinguishable 
 from the brutes, something may perhaps be said even for the 
 religious observances of the ancient JNIexicans, and for the " grand 
 custom " of Dahomey. Whether beings that pray and worship 
 after such fashions be human beings, in the f ull sense of the 
 word, is a question which I shall leave those who contend for the 
 equality of races to answer. All that I shall say is, that though 
 I do not recognize them as breaking that chain of unity, and 
 consequently of uniform belief, which binds humanity together, 
 I do not accept them as other than very imperfect interpreters 
 and illustrators of the fandamental beliefs and normal impulses 
 of humanity. 
 
 ^tli. Buddhism. — A much more serious difficulty than is pre- 
 sented by Fetichism, or the loAver forms of idolatry, wdiether in 
 India or elsewhere, arises out of the characteristics usually 
 ascribed to Buddhism. Buddhism is said to be the prevailing 
 religion of the world. Its adherents are estimated at from 
 300,000,000 to 400,000,000, and it is not likely that they fall 
 much, if at all, below a third of the human race.^ It had its 
 
 1 See Lecky, Hist, of Europ. Morals, passim. 
 
 ^ Sclilagentweit (pp. 12-15) makes their numbers exceed tliose of Christians 
 
78 INQUIRY INTO THE HISTORY OF OPINION 
 
 rise too amongst the Aryans of India ; and tliougli its adherents 
 at the present day for the most part belong to other races, 
 they are races which exhibit moral and intellectual qualities 
 which entitle them to rank immediately after, if not on a par 
 with, men of Indo-Germanic blood. 
 
 Now, — though we may get over the difficulty of their so-called 
 atheism on the ground already stated,^ that such a population as 
 this should believe that existence is an evil, that human life 
 on the whole is miserable, a curse and not a blessing, and that 
 this misery is not a mere taint in it, the removal of which would 
 make it happy, but its very essence, does at first seem very be- 
 wildering. " How," we exclaim, " can the law of such a nature 
 as this guide us either to j)erfection or well-being ?" and we seem 
 driven, with Guatama, to sigh for escape from it, and to accept 
 Mrvana in this, its common acceptation, as the highest object 
 of desire. But " there is," as Bunsen^ has said, " no more utter 
 denial of a divine order of the world, or of the science of its 
 laws, than the assumption that existence is nothing but a curse, 
 and that the aim of human effort is its own annihilation, and 
 that of its motive-spring." If such a creed were really held by 
 a third of the human race, and if from the other two-thirds we 
 deduct those Avho have no appreciable creed at all, it would 
 really become a very doubtful point whether man be an auto- 
 nomous being. 
 
 At first we feel disposed to reject the statement as utterly 
 erroneous, on the ground of its inconsistency, not only Avith our 
 
 by 5,000,000 ; whilst Max Miiller [Chips, i. p. 215) gives the numerical supe- 
 riority to Christians. Bunsen's estimate is 300,000,000. 
 
 1 Ante, pp. 47-65. 2 ^^^^^ ^ 345^ 
 
WITH EEFEEENCE TO HUMAN AUTONOMY. 
 
 79 
 
 owu subjective experience, but also witli the character which is 
 ascribed to the great religious and moral reformer whose name 
 it bears, even by those by whom it is made. That in his life 
 and doctrine, as regarded secular duty at all events, Buddha 
 approached more nearly to the Divine Author of our own re- 
 ligion tlian any other historical character, is a matter of general 
 agreement. There is scarcely a Christian virtue which he did 
 not preach and practise. But if the whole object of his life had 
 been its extinction, it must surely have been difficult, as Bunsen 
 has said,i to escape the conclusion that suicide, or absolute 
 recklessness, would lead more surely to that end than an 
 arduous and painful process of sanctification to be reached 
 by a life of incessant self-denial and privation." The highest 
 authority for this account of Xirvana is Eugene Burnouf, whose 
 early death was an irreparable loss to science ; but it is and 
 has long been the common opinion.^ Max Mliller adopts a 
 middle course. He holds Xirvana to have meant annihilation, 
 " blowing out," and not absorption ; but he declines to express 
 any positive opinion whether such was the view of Buddha 
 himself, or only of his disciples.^ Bunsen adopts the opposite 
 view, and, as concerns Buddha himself, or any expressions of 
 opinion which, with probability, can be traced to him, I think he 
 has shown — chiefly from the Dliammaimdam, or Footijrints of 
 the Lavj, the oldest of the Pali books, published since Burnouf s 
 death — that his conception of !Nirwana or Xirvana was indeed 
 annihilation, and annihilation of self, — but of self not in the 
 
 1 p. 367. 
 
 ' Bartlielemy St. Hilaire ut sup. Cliambers' Eucyclop., kc 
 3 Chirs, i. p. 2Si. 
 
80 INQUIRY INTO THE HISTORY OF OPINION 
 
 sense of heinrj, but of j^ccssion. It was tlie conquest, in sliort, 
 of the lower and exceptional by the liiglier and normal nature, 
 of man, — absorption, not of separate existence but of separate 
 ^vill^ — precisely what all saints and sages liave aimed at, and 
 generally by means very similar to those which Buddha recom- 
 mended. 
 
 " He who should conquer in battle," says the Dlmmmapadam , 
 " ten times a hundred thousand Avere indeed a hero ; but truly a 
 greater hero is he who has but once conquered himself." Who 
 is not reminded of Solomon's proverb : " He that is slow to 
 anger is better than the mighty ; and he that ruleth his spirit 
 than he that taketh a city."i 
 
 " He who lives in lust for a hundred years, ever unquiet in 
 his heart ; much better a single day of a temperate, thoughtful 
 life. 
 
 " The best prayer is patience, ever gentle ; 
 " To Buddhas Mrvana is the name of that which is alone 
 good." 
 
 Immortality is frequently mentioned — a fact which in itself 
 seems a conclusive answer to the charge of absolute nihilism. 
 
 " He who lives a hundred years, and does not behold the path 
 to immortalitii ; 
 
 " Much better a single day of him who desires that path. 
 
 " He who strives not to obtain aught for himself, who never 
 doubts after he has perceived the truth, he who has come to 
 know immortality, him alone do I call a Brahmana. 
 
 " He Avho is free from disquietude, whose heart and longing 
 are on the other shore of the two worlds. 
 
 1 Chap. xvi. 32. 
 
WITH EEFEREXCE TO HUMAX AUTOXOMY. 
 
 81 
 
 " He who lives in meditation, iinassailed by desire or by donbt, 
 " He who calls nothing his own, liini only do I call a Brah- 
 mana." 
 
 Patience and resi<ination are the burthen of the song^, 
 
 " He Avho when assailed does not resist, but sjDeaks mildly to 
 his tormentors (turns to them the other cheek ?) ; 
 
 " He who grudges nothing to those who grudge him all, him 
 alone I call a Brahmana. 
 
 " He who puts from him desire and hatred, pride and h}^oo- 
 crisy, 
 
 " As a grain that flies from the point of an arrow ; him do I 
 call a Brahmana." 
 
 If to passages like these we add the account which Buddha 
 gave of his own state three months before his death,i we 
 shall have little hesitation as to his conception of the object 
 of life. 
 
 " I have attained the highest wisdom ; I am without wishes ; 
 I desire nothing. I am stripped of selfishness, personal feeling, 
 pride, obstinacy, enmity. Till novr I have bcrne hatred, been 
 passionate, erring, in bondage, a slave to the conditions of birth, 
 of age, of sickness, of sorroAv, of pain, of suffering, of care, of mis- 
 fortune. ]\Iay many thousands forsake their homes, live as 
 saints, and after they have devoted their lives to meditation and 
 renounced all pleasure, be born again to a portion in the worlds 
 of Brahma, and fill those worlds in countless hosts 
 
 This, then, was what was meant by becoming a Buddha, — this ■ 
 v\-as Xirvana as Buddha himself conceived it. But the question 
 for us here is not what an exceptional person like Buddha 
 
 1 Biiusen, ut sup. i. p. 360. 2 359. 
 
82 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 thought or taught, but what his 300,000,000 of followers found 
 it possible to believe. Did they accept Mrvana as it was 
 explained by Buddha, or as it has been explained by M. 
 Burnouf, M. Barthelemy St. Hilaire, and others ? 'Now the 
 true answer to this, as to many questions with reference to 
 popular conceptions of doctrine, whether religious or political, 
 seems to be, that the original view was not lost, but that it was 
 confused, exaggerated, and corrupted. The ordinary man does 
 not differ from the extraordinary man in kind, but only in degree. 
 The facts of nature on which the creed of the former rests, and 
 as a necessary consequence the truths which that creed embodies, 
 are imperfectly apprehended by the latter ; and then the errors 
 to which these partial apprehensions give rise are worked out 
 into their logical results by the one-sided tendencies of the in- 
 ferior mind. The truth which Buddha had taught, that bliss 
 and virtue being coincident, the former is attainable only by 
 the self-mortification — the death of the lower and exceptional 
 self — demanded by the latter, was too wide a conception for the 
 general mind ; and yet there were natural instincts which for- 
 bade its absolute rejection. It was accepted accordingly, not in 
 its integrity, as a rational belief, but partially, as an incompre- 
 hensible dogma, which, when applied to practice, generated two 
 kinds of error. 1st. The exceptional and contradictory ele- 
 ments of individual nature, in virtue of which it becomes self- 
 destructive, being mistaken for the fundamental nature of 
 humanity itself, the condemnation which Buddha had pro- 
 nounced on the former, was applied to the latter ; and the fol- 
 lowers of Buddha became ascetics, just as those of Socrates and 
 of Christ did after them. 2d. Self-abnegation, which Buddha in- 
 
■\VITH EEFEREXCE TO HUMAX AUTOXOm^ 
 
 83 
 
 tended as a means, was accepted as an end ; and men mortified 
 themselves not in order that they might live, but lived in order 
 that they might mortify themselves. Death thus became the 
 object of life. Viewed in this light Xirvana — self-annihilation 
 even, in the popular sense — in place of being an exceptional 
 and wholly unintelligible phenomenon, becomes merely an illus- 
 tration of what I shall have frequent occasion to dwell upon 
 hereafter as the commonest of all human errors, viz. a false con- 
 clusion logically deduced from premises which are only a partial 
 misunderstanding of the truth. 
 
 It is quite true, as Max ^Mliller has said,i that such could 
 never have been the creed of millions of men — that however it 
 might have been promulgated by pedantic logicians, the great 
 human heart must always have rejected it. In the deeper 
 sense of faith, or in the conscious sense of reason, I believe 
 it to have been as impossible a creed for one man as for 
 300,000,000. Xobody ever really believed it. On the other 
 hand, we must remember that the tenacity with vdiich the 
 masses can hold on by errors which conflict \;'ith the feelings 
 of nature, but from which they do not see any logical issue, is 
 something prodigious. For many ages, in Christian Europe, 
 whilst men daily thanked God for His gifts, scarcely any 
 one doubted the merit of rejecting them; and there is reason 
 to believe that more than the half of Christendom, at this 
 moment, holds, with equal tenacity, two views of the Di^dne 
 nature vdiich directly contradict each other. God is believed 
 to be perfectly good and absolutely powerful; and yet He is 
 represented not only as incapable of vanquishing sin in others, 
 
 1 CJUps, p. 285. 
 
84 INQUIRY INTO THE HISTOEY OF OPINION 
 
 but as Himself committing what, in human beings at all events, 
 would be sin. The explanation of the phenomenon consists in 
 the rash acceptance of irreconcilable premises, from which there 
 is no longer any means of escape. 
 
 It has been the same with our politics as with our religion. 
 Buddha, as we shall see, taught that all men are equal before 
 the law — relatively equal, that is, not absolutely. Tn this 
 respect his teaching was in accordance with that of nature, as 
 interpreted by the fundamental consciousness of humanity in all 
 ages; and in the East it seems to have been accejjted. But, 
 in Europe and America, popular passions, coupled with popular 
 stupidity, have constantly transformed the dogma into an asser- 
 tion of absolute equality; and in this shape it has yielded 
 logical results the very reverse of those which would have fol- 
 lowed from the original maxim, viz. anarchy and despotism, in 
 place of liberty and order. I^ow no honest man, in his sober 
 senses, knowingly accepts anarchy or despotism as the object 
 of his life as a citizen ; and yet there is too much reason to 
 believe that a creed which offers no other alternative is, in our 
 OAvn day, the professed creed of the numerical majority of civi- 
 lized mankind ! 
 
 Without, then, abandoning our belief in the fundamental 
 agreement of humanity with reference to the object of its exist- 
 ence, we may assume, in accordance with what appears to be the 
 best evidence, that, to the folloAvers of Buddha generally, though 
 not to himself, Mrwana or Nirvana meant, and means, not per- 
 haps absolute annihilation, but at all events escape from, and the 
 impossibility of return to existence in the sense of activity. 
 Thus understood, it differs very widely from the ideal result — 
 
WITH REFERENCE TO HUMAN AUTONOMY. 85 
 
 the summum honum — of European life either here or hereafter. 
 It is the very opposite of the old Greek conception of what man 
 was to strive after in the present life; and putting it at the 
 highest, it embraces only the negative side of the Christian con- 
 ception of the life to come ; though, if we reflect how difficult it 
 is, when oriental imagery is laid aside, to ascribe to a life from 
 which hope is shut out by fruition, any positive element beyond 
 the ecstacy of divine contemplation — which Nirwana probably 
 did not exclude — we may hesitate in pronouncing the antithesis 
 here to be quite so absolute. Nor is the longing for the negation 
 of passion so exceptional a sentiment on the Buddhist's part. 
 Have we not the nepenthes {vqirevOip) of Homeric legend,^ and 
 the apathy (dTra^eia) of the Stoics, to say nothing of the various 
 sects of Christian quietists ? We must bear in mind, moreover, 
 that the conception which man, either as an individual or a race, 
 forms of the objects of life, or the consequences of death, is very 
 much an affair of temperament and of climate,^ which is one 
 great determiner of temperament. So far Montesquieu was right ; 
 and there was truth in Pascal's saying, that good and evil, truth 
 and falsehood, differ with a few degrees of latitude. Just as it 
 is in the highest races, so it is in the most genial climates alone 
 that we must look for normal human thoughts and feelings. 
 The enervating and joyless monotony of a tropical sky takes 
 away the power of endurance and the love of life ; just as the 
 gloomy and blustering north inures to suffering and hardens the 
 character. When men of Teutonic or Celtic blood come to a 
 region where the grape ripens, the Protestant hell of the north, 
 for the fortunate majority of mankind, finds a partial substi- 
 ^ Bunsen, vol. i. p. 340. 
 
86 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 tute in the milder purgatory of the Eoman Catholic. Even in 
 heathen times, it was only in very exceptional social circum- 
 stances that Europeans ever were disposed, in any numbers, to 
 lay claim, prematurely, to " nature's privilege to die." In a pre- 
 cisely similar manner, it would seem, that when the man of the 
 south comes under the influence of the blessed alternations of 
 summer and winter, seed-time and harvest, presently his longing 
 for the cessation of positive existence disappears. Schlagintweit 
 tells us ^ that, in Tibet, Nirwana has become a mythical doctrine 
 peculiar to the priesthood, and that " in general the Tibetans of 
 the present day do not properly distinguish between Mrwana 
 and Sukhavati," the latter being a heaven of positive happiness.^ 
 But whether or not Buddhist conceptions of the consumma- 
 tion to be attained, either in time or in eternity, differ from 
 our own to the extent that so many seem anxious to believe, 
 what is undeniable, and far more important for our purpose, 
 is, that both the law — "the path" as they happily charac- 
 terize it — by which the object of life may be reached, and 
 the method by which this path is to be discovered, remain 
 the same. It was part and parcel of the creed of this vast 
 section of mankind, that Buddha — who was not a god, but the 
 ideal man — in realizing what was the legitimate object of exist- 
 ence, as he conceived it, had been guided by a law which his 
 own nature revealed to him, and which the nature of his fol- 
 lowers would reveal to them. The Buddhist lays claim to no 
 external revelation whatever. His system is essentially subjec- 
 
 1 P. 99. 
 
 2 Mr, Alabaster's account of the Siamese is to the same effect. The Wheel of 
 the Laiv, xxxviii. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 87 
 
 tive,^ tlie law in which he believes is " within him," and his 
 belief moreover is that he can find it himself — for every Buddhist 
 is his own priest. But what then is the character of this law 
 which the nature of the Buddhist reveals to him for a purpose 
 which is said to be so strange to us ? To our relief and astonish- 
 ment we find that it is the very same law which our nature 
 reveals to us. The Buddhist is to seek annihilation, as we 
 seek life eternal, by abstaining from murder, theft, adultery, 
 lying, and drunkenness, by obeying his parents, confessing 
 his sins, and saying his prayers (to whom ?), and being charit- 
 able to all men. Characteristically enough, the duties of absti- 
 nence, or as they are called "the precepts of aversion," take 
 precedence of the precepts of action which head our decalogue. 
 But the precepts, in so far as nature can reveal them, are 
 identical, and if the Buddhist has no theology, it is plain 
 that ethics and jurisprudence are not shut out from him by 
 his creed. In this world, at all events, he believes in God. 
 The ground, too, on which Buddhism arose, as a protest 
 against Brahmanism, is instructive, as illustrating the soli- 
 darity of heathen and Christian ethics. I refer to the substan- 
 tial identity between a movement which was independent of 
 Christianity, and which we must therefore ascribe to what w^e 
 are in the habit, very erroneously probably, of designating " un- 
 assisted nature," and the tendencies of modern European life 
 which we trace to Christian influences. Buddhism was a protest 
 against the exclusiveness of caste, a proclamation of les carrUres 
 ouvertes, of equality before the law, of universal charity, and in 
 a word, of the positive jurisprudence of the nineteenth century. 
 
 ^ Max Miiller, Sanscrit Lit. , p. 32. Alabaster, ut sup. xviii. 
 
88 INQUIRY INTO THE HISTORY OF OPINION 
 
 In this respect M. Bartlielemy St. Hilaire's recognition of its 
 merits are so ample, as to form a strange contrast with what I 
 cannot but regard as his prejudice against it, as a theological 
 doctrine. How can he imagine that an ethical system which 
 preaches universal charity, which seeks " to cure not the society 
 of India but the human race,"^ can have come out of, or 
 co-existed with, a religious system which inculcates pure selfish- 
 ness.^ 
 
 It may be questioned whether the enthusiasm of Buddha's 
 French expositors for his ethics and politics, as contrasted with 
 his theology, would have been quite so ardent if they had 
 reflected on the fact that his conception of " fraternity " by no 
 means involved the one-sided notion of the human relations to 
 which they cling with so much tenacity. In preaching brother- 
 hood, Buddha did not forget that it is to Fatherhood that preced- 
 ence is due, and consequently " there is no trace of social level- 
 ling, or democratic communism, in any of his sermons." ^ On the 
 contrary we find in the Dhammapadam — 
 
 " He who cherishes reverence in his heart, and ever honours 
 his superiors, 
 
 " To him shall be ever added these four gifts : Long life, 
 beauty joy, power." ^ 
 
 (c) The Turanian Races. — In so far as the anthropological 
 beliefs of the partially civilized Turanian races have been in- 
 vestigated, they do not differ substantially from those of the 
 Aryan race. On the principle of selecting the best witnesses, 
 the whole of the vast Turanian family might perhaps be passed 
 
 1 Ih. p. 145. 2 7j p_ 150. 
 
 3 Chi2)s, i. p. 343. Alabaster, xxxvi. "* Bunsen, ut sup. i. 347. 
 
WITH EEFEREXCE TO HUMAN AL'TOXOMY. 
 
 89 
 
 over in silence, in so slight a sketch as we are liere attempting. 
 The characteristic of the relioions of the Mono-olian tribes of 
 Asia, like that of the lower, less developed, and retrograde races 
 generally, is enthusiasm.^ The link which connects them with 
 the divine is not reason, but sentiment, which rises into ecstacy 
 in proportion to the extent to which reason is silenced by sleep, 
 by disease, by exhaustion, intoxication, and the like. This 
 tendency diminishes, of course, as the race rises in importance, 
 till Ave reach its highest manifestation in the ^Magyars, who ex- 
 hibit a sanity of character to which the Celtic branch of the 
 Aryan race can scarcely lay claim, and whose ancient liberties 
 sufficiently attest their sense of human autonomy. But it is to 
 their connection, though not, as it seems, their identity, with the 
 Chinese, that these races owe their chief interest. 
 
 The Chinese. — The earliest form of anthropological belief ex- 
 hibited by the Chinese, and that to which they have constantly ad- 
 hered durino^ the Avhole course of their lone; national life, embraces 
 a direct recognition of human autonomy. "Whether or not Baron 
 Eimsen be correct in assertiufr that " the actual aborioinal tribe 
 
 o o 
 
 of the primeval liome of man has settled itself in the extreme east 
 of Asia, and maintained itself there up to the present day," and 
 that the language of China " forms an irrefragable testimony to 
 the autochthonic character of the unique position which it 
 occupies," there can, I imagine, be no doubt of the strictly 
 national character of two out of the three religions which 
 exist, side by side, in that strange country, or of the great 
 antiquity of that which forms, at the present day, the basis of 
 the civil life of the State. Confucius was born in 551 B.C., and 
 
 1 Ih. i. p. 237. 
 
90 
 
 mQUIRY INTO THE HISTORY OF OPINION 
 
 died in 479 B.c.^ But " Confucius is not tlie religious prophet 
 of Ancient China. The Sacred Books (King) are his work 
 in so far as he saved them from perishing by making this collec- 
 tion, but they are not his composition. They are now fragments 
 remaining from a very ancient epoch, and they were so no doubt 
 at that time."^ This being so, these documents may probably be 
 held to contain the earliest statement which we possess of an 
 anthropological creed, and in this point of view, considering the 
 very wonderful qualities of the race who held it, we owe a debt 
 of gratitude to those who have brought it under our notice. 
 Following Bunsen, then, as our latest and, probably, most 
 trustworthy guide, "let us listen to one or two of the utter- 
 ances of these Sacred Books, which bear most closely on the 
 point which concerns us. This is from the Shi- King. *The 
 opinion and judgment of Heaven is learned (reveals itself) 
 through the opinion and judgment of our people. Heaven's 
 approval and disapproval (is recognized) through the approval 
 and disapproval of our people. An intimate relation subsists 
 between the upper and lower world. Oh, how careful should 
 those be who govern countries !"'^ 
 
 Apropos of this remarkable specimen of antediluvian politics, 
 Bunsen relates an interesting anecdote of our own day. Gutzlaff 
 told him, he says, that "when after the peace of Nankin, in 
 1845, the Emperor of China felt himself impelled to refuse his 
 assent to the execution of that article of the treaty by which the 
 Tartar city of Canton was to be opened to foreigners, he justified 
 his repudiation by this great maxim of the Sacred Books. And 
 * the voice of the people is the voice of God,' resounded once 
 
 1 lb. p. 259. 2 /J. p. 244. » lb. p. 252. 
 
WITH REFERENCE TO HUMAN AUTOXOm^ 
 
 91 
 
 more tlirougii the ^vhole empire. When the Emperor's edict was 
 published, and everywhere formed the subject of discussion, it 
 was said to Gutzlaff by patriotic Cliinese : — ' That maxim of our 
 Sacred Books is well known to us — it is our watchword but 
 this was a new thing to us, that the Mandshu Emperor should 
 publicly appeal to this sacred text of the Scriptures, which 
 testifies against himself"^ By what qualifications our primeval 
 ancestors — if such they were — guarded this profound but perilous 
 maxim against the false interpretations which it has received, 
 and still receives, amongst ourselves, we are not informed. But 
 it sure''y is a striking instance of the consensus of mankind in 
 their anthropological conceptions, that a maxim which embodies 
 so much both of the truth and all the falsehood of modern politics, 
 should have been familiar to the ears of what there is reason to 
 believe was the oldest civilized community. There is indeed 
 no lore which brings home to us so forcibly the unity of man- 
 kind as that of maxims, proverbs, gnomes, and the like. "We 
 find the yi w^t aeavrov everywhere ; and here is another remark- 
 able instance of the fact that Socrates, like the rest of us, had 
 his precursors. Lao-tse was more than half a century ^ older 
 then Confucius, and 136 years older than Socrates, and we 
 are told that he was in the habit of saying that the man 
 is he who "knows that he knows nothing Yet the Chinese 
 were, and are, far from a speculative people; so far from it, 
 indeed, that those who have made a studv of their lanouag;e 
 tell us that " to express mind, thought itself — that which pre- 
 dicates — it has absolutely no term whatever;"^ and Bunsen tells 
 us, as the result of his studies, that but for this very faith in the 
 1 Ih. pp. 252, 253. ' lb. p. 259. « lb. p. 265. * lb. p. 256. 
 
92 INQUIRY INTO THE HISTORY OF OPINION 
 
 innateness of the personal element in man, its realism " would 
 have sunk down into the slime of materialism."^ 
 
 In a subsequent passage he thus sums up their wisdom. 
 
 " If we sum up the whole, we find one thought continually 
 recurring in the works of all those sages, as the root-idea of the 
 ancient system, and we may express it thus : There is a law 
 which governs the All, in nature and in man, and this One Law 
 is reasonable. Thus, indeed, it had been said by Meng-Zo, the 
 renowned successor of Confucius, in the fourth century before 
 our era, ' He who knows his own nature, and that of all things, 
 knows what Heaven is ; for Heaven is, indeed, the inward essence 
 and the vital energy of all things.' This thought is the dowry 
 of the Cliinese intellect in the general history of man ; the con- 
 ception of a Kosmos m, not above, the various objects, which, 
 however, attains personality only in the human mind. Man's life is 
 to be orderly, like that of nature ; the sphere of this life in which 
 the Chinese recognize something divine, is that of the family ; the 
 bond between parents and children is to him the most sacred of 
 all bonds." ^ In these two conceptions — of the dignity of the 
 person on the one hand, and the sacredness of paternal authority 
 and filial obedience on the other — we have the secret of that 
 marvellous length of days which, notwithstanding all their faults, 
 has been granted to this strange people. Had the political 
 philosophy of our own day kept a place for the second of these 
 conceptions, and remembered "the first commandment with 
 promise," our progressive realization of the other would have 
 been effected without those outbursts of anarchic fury which 
 make the streets of Paris periodically run with blood. 
 
 1 p. 255. ^ Pp. 268, 269. 
 
WITH EEFEEEXCE TO HUMAN AUTOXO^IY. 
 
 93 
 
 Lest it should "be supposed that the view which I have here 
 presented rests on a single authority, it may be proper that I 
 should mention that to whatever extent Baron Bunsen's view 
 of the autochthonous character of the Chinese may be peculiar, 
 his opinion on the point with which we are concerned is the 
 common opinion. All are agreed that the history of Confucius 
 is the most faithful expression of the national mind, and that 
 that teaching was based on the revelations of our common nature. 
 " I teach you nothing," he says, " but Avhat you might learn 
 yourselves, viz., the observance of the three fundamental laws of 
 relation between sovereign and subject, father and child, husband 
 and wife ; and the five capital virtues, — universal charity, im- 
 partial justice, conformity to ceremonies and established usages, 
 rectitude of heart and mind, and pure sincerity."-^ 
 
 To the same effect we have the testimony of Dr. Legge of 
 Hong-Kong.^ " He truly said of himself that he was a trans- 
 mitter and not a maker. He held that the rule of life for men 
 in all their relations was to be found within themselves, and that 
 the right development of the rule was to be found in the words 
 and institutions of the ancient sages." 
 
 That Confucius failed to infer any species of natural theology 
 from so sound an ethical system is the statement usually made, 
 and for a criticism of which I refer you to Bunsen's pages. 
 To the extent to Avhich it is true it shews, of course, the 
 absence of speculative genius. But it does not invalidate 
 the assertion that, in proclaiming humanity to be autonomous, 
 his anthropological creed agreed with that of the rest of man- 
 
 1 Chamders' Encyc. v. Confucius. 
 
 ^ Lecture in PMlosopliical Institution of EdinLurgli, Dec. 14, 1869. 
 
94 
 
 INQUIEY INTO THE HISTORY OF OPINION 
 
 kind in affording a sufficient basis for a system of natural juris- 
 prudence. 
 
 As our best witnesses, however, we must return to the Aryan 
 race, and follow it into those seats in which it has attained the 
 highest stage of development that mankind, so far as we know, 
 has yet reached. 
 
 (B) Of Classical Anthropology. — When we pass from the ori- 
 ental to the occidental branch of the leading family of mankind, 
 we find that faith in God and nature still forms the centre of 
 belief, and the mainspring of action. 
 
 {ct) Greece. — The polytheism of Greece, as of India, was a 
 sensuous or anthropomorphic embodiment of intuitive concep- 
 tions of the divine origin and character of nature, the conscious 
 recognition of which, as a spiritual belief, has always been a diffi- 
 culty to the popular mind. This spiritual creed, though no doubt 
 in a very simple and imperfect form, preceded these mythical 
 symbols in point of time, accompanied them as a deeper under- 
 tone during the whole period of their existence, and gradually 
 becoming clearer and more definite as humanity advanced 
 ultimately superseded them altogether. The eV koX -n-av of Xeno- 
 phanes,^ for example, was an anticipation of the monotheism 
 which Socrates taught more definitely, and of his polemics 
 against the anthropomorphism of the popular religion.^ After 
 the time of Socrates the myths were abandoned by those whom 
 
 ^ Scliwegler, p. 16. 
 
 2 Zeller, Soared, and the Socratic Schools, p. 144, refers to Mem. iv, 3, 13, in proof 
 of liis assertion that Socrates distinguished the Creator and Ruler of the Universe 
 from the rest of the gods, and answers Krische's argument against the genuineness 
 of the passage. The fact that such was Socrates' creed fortunately does not rest 
 on any single passage, but on his habitual use, unless all his disciples have mis- 
 
WITH EEFEEENCE TO HUMAX AUTOXO^nT. 
 
 95 
 
 we must regard as the interpreters of the deeper conscio"asness of 
 the nation, and by degrees even the popular mind drifted away 
 from them, till at last, as Mr. Leckie has said, " The children and 
 old women ridiculed Cerberus and the Furies, or treated 
 them as mere metaphors for conscience." But when the popular 
 creed gave way, it was only to make place for a reasoned belief 
 in the old Aryan doctrines which it originally symbolized. The 
 difficulties which surround the interpretation of Greek my- 
 thology are so great as, in themselves, to form a strong argu- 
 ment in favour of the advice of Socrates to his pupils to look for 
 truth elsewhere; and the subject is so vast as to forbid any 
 attempt at independent treatment of it here, even if I possessed 
 a far more accurate acquaintance with it than I can at all pre- 
 tend to. But on the fundamental point of the original conception 
 of Deity Avhich it exhibits, it is necessary that I should mention 
 the opinion which has been arrived at by the highest authori- 
 ties ; and the highest of all authorities on Greek mythology is 
 AVelcker,^ to whom, as Max IMiiller has said, the present generation 
 of German scholars, " a race not quite contemptible in itself," 
 looks up, as the Greeks looked up to Xestor. In doing so I am 
 fortunately enabled to offer the further guarantee which is im- 
 
 represented liim, of the word Qeos. When, for example, he winds up the mag- 
 nificent passage in the Apologia, c. xvii. p. 48-50, on the folly of not preferring 
 death, which, for all that we know of it, may be good just as well as evil, to ne- 
 glect of duty which we know to be evil, by telling the Athenians, that, much as he 
 loved them, he would obey God rather than them {ireiao/xaL de /xdWov de(p 
 fj ijjuv), and that he would teach wisdom and proclaim the superiority of the soul 
 to the body, if he should die many deaths, because it was God's will {raura yap 
 KeXeveL 6 deos), who can doubt that the God of whom he spoke was his and our 
 Father in Heaven ? 
 
 1 Griechische Gottcslchrc, von F. G. Welcker, 1S57. 
 
96 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 plied in Professor Miiller's worcls.^ " I^owhere," says Miiller, 
 " have we seen tlie original character of the worship of Zeus as the 
 God, or, as he is called in later times, as the Father of the Gods, as 
 the God of Gods, drawn with so sure and powerful a hand as in 
 Welcker's Mythology. When we ascend with him to the most 
 distant heights of Greek history, the idea of God as the Supreme 
 Being, stands before us as a simple fact. Next to this adoration 
 of One God, the Father of Heaven, the Father of men, we find 
 in Greece a worship of nature. The powers of nature originally 
 worshipped as such, were afterwards changed into a family of 
 Gods, of which Zeus became the king and father.^ This third 
 phase is what is generally called Greek mythology ; but it was 
 preceded in time, or at least rendered possible in thought, by the 
 two prior conceptions, a belief in a Supreme God and a worship 
 of the powers of nature. The Greek religions, says Welcker, if 
 they are analyzed and reduced to their original form, are far more 
 simple than Ave think. It is so in all great things. And the 
 better we are acquainted with the variety and complications of 
 all that has grown up around them, the more we feel surprised 
 at the smallness of the first seeds, the simplicity of the funda- 
 mental ideas. The divine character of Zeus, as distinct from his 
 mythological character, is more carefully brought out by Welcker. 
 He avails himself of all the discoveries of comparative philo- 
 logy in order to show more clearly how the same idea which 
 found expression in the ancient religion of the Brahmans, 
 the Sclayes, and the Germans, had been preserved under the 
 
 ^ Chips, vol. ii. pp. 151-2. 
 
 ^ As to the progress from pliysiolatry to tlie embodiment of etliical ideas, v. 
 Bunsen's God in History, vol. ii. c. 2. 
 
AYITH EEFEP.EXCE TO HUMAN AUTONOMY. 
 
 97 
 
 same simple, clear, and sublime name by tlie original settlers 
 of Hellas." 
 
 It is, and probably ^vill continue to be, impossible to connect 
 the creed of the Western Avith that of the Eastern branch of the 
 Aryan race by the links of external history. But such evidence 
 of a common origin as internal coincidences afford is abundant. 
 Stripped of its drapery, the religion of Greece, like that of India, 
 Avas simply a worship of creatiA'e power, and a deification of its 
 manifestations. ISTature — not in the sense of mere existence, 
 but of ordered activity, Kosmos — was God; and the sun, the 
 brightest and most beneficent manifestation of nature, the source 
 of heat and light, the fountain of life in man, and beast, and tree, 
 and plant, was the greatest of the gods. " Orpheus," says 
 Eratosthenes, quoting the Bassarides of ^Eschylus, did not 
 honour Dionysus, but believed the sun to be the greatest of the 
 gods, whom also he called Apollo ; and, rismg up in the night, 
 ascended before dawn to the mountain called Pangfeum, that he 
 niicrht see the sun first, at which Dionvsus, being^ enra2:ed, sent 
 upon him the Bassaridte,"^ &c. In the first part of this beautiful 
 myth, which will remind many of the sublime passage in AVords- 
 worth's " Excursion," beginning, 
 
 " Upon the breast of nevr-created earth. Man vralked 
 
 it is extremely probable that we have the tradition of an actual 
 custom; and, if so, its oriental origin can scarcely be doubted. 
 
 " The religion of the sun," it has been said, with much truth I 
 believe, is inevitable ; " ^ but it is remarkable that the primitive 
 beliefs of the classical nations are constantly referred by them- 
 selves, not to natural inspiration, to which we should have been 
 ^ Smith's Die. v. Orpheus, ^ Book iv. s Qjiij)^^ yol. i. p. 211. 
 
1 
 
 98 INQUIRY INTO THE HISTORY OF OPINION 
 
 led to ascribe them, nor yet to external revelation, like those of 
 Semitic races, but to tradition for which they do not profess to 
 account. " The tradition has come down from very ancient times, 
 being left in a mythical garb to succeeding generations, that the 
 heavens are gods, and that the Divine embraces the whole of 
 nature. And round this idea other mythical statements have 
 been agglomerated, with a view to influencing the vulgar, and for 
 political and moral expediency ; as, for instance, they feign that 
 these gods have human shape, and are like certain of the animals; 
 and other stories of the kind are added on. ISTow, if any one will 
 separate from all this the first point alone, viz. that they thought 
 the first and deepest grounds of existence to be God's {on deovs 
 (SovTo Tcts 7r/3coTas ovcn'a<5 eTvat)^ he may consider it a Divine 
 utterance."^ It is this utterance which Bunsen has traced 
 through the epic and lyric poetry of Greece, and which, with 
 Socrates, he believed to have formed the basis of the Mysteries, 
 and even of the popular cultus. 
 
 The first step in the direction of philosophy, or of the discovery 
 of a rational basis of belief, is generally supposed to have 
 consisted in the so-called Cosmologies, or physical and material 
 theories of the universe ; and physical is thus supposed to have 
 preceded ethical and political science. ISTow, except in so far 
 as cosmology was identical with theology, and confined itself to 
 the recognition of an unknown cause, I cannot subscribe to this 
 statement ; nor can I concur in the view that it was with Socrates 
 and the sophists that thought was first directed to the rationale 
 of human life.^ In so far as they had for their object the 
 
 1 Aristot., Metaphys. xi. vi. z. Grant's Aristotle, i. p. 230. i 
 
 2 lb. i. p. 44. I 
 
■WITH EEFEEEXCE TO HUMAX AUTOXOMY. 
 
 99 
 
 discovery of tlie laws of space and number, I do not of course 
 deny to the physical investigations of the Greeks the character 
 of science. But their theories as to the or^ranization of external 
 nature were as vague as their conjectures as to its origin, and of 
 the laws which govern groAvth and development, decay and 
 decomposition, chemical combination, or the like, they had not 
 the faintest conception. "When Tliales tells us that the principle 
 of all things is water, or Anaximenes that it is air, we neither 
 learn anything, nor get hold of the means by which anything is 
 to be learned. To the merit of aspirants they are no doubt 
 entitled, but to the character of discoverers of method they have 
 no more claim than to that of discoverers of truth. Pythagoras, 
 says Bunsen,! was " the first of all historical men to utter the 
 great word Kosmos, in the sense which we attach to it." The 
 Pythagorean principle of harmony, or proportion, was, no doubt, 
 a very remarkable recognition of the universal prevalence of law ; 
 but, beyond the region of mathematics, Pythagoras appears to 
 have traced the action of law in the spheres of social and 
 political rather than of physical life. It is on this ground that 
 Bunsen contrasts him with the other students of nature, as "the 
 first to reconduct speculation once more back to what was human 
 and ethical." - But it was the same with the other cosmologists, 
 in so far as they are entitled to the character of scientific inquirers 
 at all. They were philosophical statesmen and moralists, in a 
 far higher and truer sense than they were physicists. It was on 
 the ground of his ethico-political wisdom^ that the name of 
 Thales stood at the head of the seven sashes. Heraclitus tanjjht 
 that evil is to be regarded as an element that co-operates to the 
 1 Vol. ii. p. 92. ^ ii. p. 337. ^ Schwegler, p. 9. 
 
100 INQUIRY INTO THE HISTORY OF OPINION 
 
 harmony of the whole, thus attempting, in the only manner that 
 has yet seemed possible, to remove the element of contradiction 
 in nature which opposes itself to the recognition of natural law ; 
 whilst the vovs of Anaxagoras may be regarded as the first indi- 
 cation of the conscious and reasoned character of self-legislation. 
 
 But it is when we abandon those ambitious speculators who 
 professed to explain the laws of the universe, and turn to the 
 statesmen and legislators who made it their business to study 
 mankind with a view to the discovery and practical vindication 
 of the laws which govern their natural relations, that we come in 
 contact with what, though it was not called science at all, really 
 was science. The results of these latter inquirers were exhibited 
 both in deeds and in words : they were exhibited in deeds, first 
 by the foundation of the free cities of Ionia, in which the 
 mental as well as the political life of Greece originated, and then 
 by the Doric legislation, which bore the half-mythical names of 
 Minos and Lycurgus, and which, whatever its real date may have 
 been, was long anterior to the cosmologists, and lastly, in the 
 constitution of Solon at Athens and that of Servius Tullius 
 at Eome ; they were exhibited in words by proverbs and 
 maxims, which, like the institutions with which they were 
 probably contemporaneous, remount to an unknown antiquity. 
 The earliest historical institutions both of the Greeks and 
 Eomans were disfigured by the exclusiveness which marred the 
 whole political life of antiquity, which in the east called for 
 the reform of Buddha; and which, in the modern world, has 
 been the parent of so many revolutions. But, in other respects, 
 as, for example, in the recognition of individual inequality as 
 the source of the organic structure of society, they came closer 
 
WITH REFEEENCE TO HUMAN AUTONOMY. 
 
 101 
 
 to natural law, and, as siicli, were more scientific than the consti- 
 tutions which find favour in our own day. So far from being 
 entitled to dismiss them, as mere curiosities, as we do the cosmo- 
 logies, we find in them those principles of order and liberty \Yliich 
 it will be the duty of the Christian statesmen of the future to 
 realize amongst the many, as their authors did amongst the few. 
 
 As regards the maxims, of which these institutions were the 
 external realization, they were expressed, it is true, in so simple 
 a manner as to have exposed them to the reproach of being 
 "yeoman's morality."^ But, in addition to the reflection that 
 simplicity is of the essence of the maxim — that our own maxims 
 are as simple as those of the Greeks, and that Aristotle, when 
 he uses them, which he does continually, is as great a child of 
 nature as Hesiod, — we must bear in mind, with reference to 
 the maxims in question, more especially, that if they were 
 yeoman's morality, they Avere yeoman's science also. They were 
 results, and not guesses, like the dicta of the cosmologists, or 
 our own " leaps in the dark," and they were results, moreover, 
 of the very same process of investigation, Avhich, in antiquity, 
 culminated in the philosophy of Plato and the jurisprudence of 
 Justinian, and which we ourselves must return to, if we would 
 go beyond Plato and Justinian, the process, viz., of studying 
 human nature on the assumption that in revealing itself it re- 
 veals an absolute and permanent law. 
 
 We shall see the manner in which this process was applied more 
 readily, if we attend to the characteristics of the three eras into 
 vvdiich Sir Alexander Grant and others have divided the ethical 
 history of Greece. We must accept them, how^ever, as indicat- 
 
 1 Grant's Arist. i. p. 56. 
 
102 INQUIRY INTO THE HISTOEY OF OPINION 
 
 ing stages of mental progress ratlier than chronological epochs ; 
 bearing in mind, moreover, that the great prophet minds which 
 have determined the transition from earlier to later belong 
 invariably to both. First, then, there is the era of popular, or 
 unconscious morals : second, the transitional, sceptical, or sophis- 
 tical era ; and, third, the philosophical, or conscious era.^ Now, 
 it is obvious, that if the first and third of these eras agree in 
 their results, the second, which was polemical and destructive, 
 and never aimed at the production of positive results at all, may 
 be discounted, in any other sense than as an effort of develop- 
 ment, a throe of parturition, or, at most, a receding wave in the 
 advancing tide. Let us then compare the primitive ethical and 
 political intuitions with the ultimate beliefs of Greece. The 
 first phase in which both theology and anthropology appear in 
 Greece, is, no doubt, wholly concrete. Principles are not stated, 
 they are represented in action, and are commended, or condemned, 
 in the persons wdio exhibit them by the ISTemesis whose organ 
 the epic or lyric poet has become. ISTow, in this primitive form 
 of its manifestation, the national mind of Greece exhibits, not 
 disbelief or doubt, but perfect confidence, faith in God and man. 
 The religion of the heroic age, as exhibited by Homer, has in 
 recent years been made the subject of elaborate study in Ger- 
 many, and of the care wdtli which it has been investigated 
 amongst ourselves, the works of Mure and Gladstone are suffi- 
 cient monuments. But without enterino^ on what is almost a 
 shoreless sea, the schoolboy reading of most of us, I believe, 
 will offer sufficient guarantees for the accuracy of what appears 
 to have been almost the unanimous verdict, viz., that it consists, 
 
 ^ Grant's Arist. i, p. 46. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 
 
 103 
 
 as Sir Alexander Grant lias said, " in a celebration of the beauty 
 of the world, and in a deification of the strong, bright, and bril- 
 liant qualities of human nature," ^ and embraces, as Professor 
 Blackie has remarked, a recognition of the fundamental rectitude 
 of " the whole nature of man." ^ To such allegations as that, 
 "in those early days there seems no trace of a moral nature in 
 the Greeks," ^ Bunsen's reply is sufficient, that the whole scope 
 and object of the Epos is ethical — the exhibition of the Divine 
 ISTemesis in the destruction of Troy as a punishment for crime.* 
 " The wrong committed by Paris must be atoned for ; therefore, 
 Troy is doomed to its fate, as Hector himseK knows and be- 
 lieves." ^ " The Homeric use of the word Nemesis," as Bunsen 
 elsewhere remarks,*^ " is alone sufficient to prove its purely moral 
 origin. E'either in the Iliad nor in the Odyssey is ISTemesis a 
 deity, or even a personified moral quality. The w^ord is there, 
 in the sense in which it lived in the spontaneous feelings and 
 speech of the Ionic people. It signifies that moral indignation 
 which we feel at the sight of sinful presumption setting itself up 
 against gods and men; the shrinking, or awe, associated with 
 shame ; in other words, the verdict of the inward judge, and the 
 recognition that the universal conscience is man's true conscious- 
 ness of God and the highest earthly tribunal — the veritable 
 oracle of God." 
 
 A very considerable step in advance — though in many respects 
 a step downwards — is made when we pass from Homer to Hesiod. 
 The poet tells us that we are already in the iron age. Contem- 
 
 ^ Grant's Arist. i. 51. ^ Blackie's Homer. 
 
 2 Donaldson's History of Christian Literature, vol. ii., introduction. 
 ^ God in History, i. p. 23, and vol. ii., passim. 
 
 5 lb. ii. p. 101. 6 Ih. ii. p. 63. 
 
104 INQUIRY INTO THE HISTORY OF OPINION 
 
 plation, the child of experience, has been begotten, and whatever 
 may have been the relation of the two eras in point of time, 
 about which there was much difference of opinion even in 
 antiquity, in point of thought it is plain that we are in the 
 gnomic period. ISTow a gnome {yv^inq or vTroOrjKy]) is a statement 
 not only of an intuitive belief — like that in Nemesis — but of an 
 intuitive feeling of the method by which this belief was reached. 
 Of the gnome, as thus defined, there are many examples in 
 Hesiod, which Aristotle was fond of quoting, and with which you 
 are probably familiar. But the most famous instance of the 
 gnome, and that which is most important for our purposes, is 
 the yvco^t creavTov^ which was inscribed on the temple of Apollo 
 at Delphi. We found it in India ^ and in China,^ and as it was 
 of unknown antiquity in Greece, and its authorship was un- 
 known, unless we are to regard it as the utterance of an instinct 
 common to mankind, which I believe to be the true concep- 
 tion of it, it may with considerable probability be viewed, like 
 the language in which it was couched, as an heir-loom which 
 the earliest settlers brought from their former abodes, and which 
 the oracle as a pious custodier of patriarchal wisdom had 
 preserved. This view of the historical origin of this and other 
 gnomic sayings derives some confirmation from the fact that 
 they were transmitted chiefly through the rural classes, always 
 the most faithful guardians of tradition, and whose occupa- 
 tions on the slopes of Mount Parnassus resembled those of 
 their remote forefathers in Upper Asia. Hesiod himself, in 
 contrast to Homer, has been called "the poet of the plough," 
 and the strong resemblance between his verses and those of the 
 
 1 Ante, p. 72-86. 2 ^^te, p. 91, 92. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 
 
 105 
 
 Pythia — in one instance their absolute identity — is well known. 
 But be this as it may, the yvdjOc creavrov was written on the 
 human heart before it was written on the temple of Apollo; 
 and the value of the maxim, as indicating a radical belief in the 
 self-revealing and self-legislating character of humanity, is 
 equally great whether we regard it, in the form in which we have 
 received it, as having thus retained its possession of the Ayran 
 mind, or as having a second time descended from heaven, and 
 forced itself on the acceptance of the national consciousness of 
 Greece. 
 
 But the yvojdc aeavrov is by no means the only instance of a 
 gnome which possessed absolute scientific value. The MyjSh 
 ayav of Solon, and the Mirpov apLcrrov of Cleobulus, in their 
 primary aspects, were neither more nor less than exhortations 
 not to outrage " the modesty of nature," by disturbing the har- 
 mony of her laws. I need not tell you how fruitful they 
 became in the MeTpLOT-qs of Plato and the Mea-orrjs of Aristotle;^ 
 nor insist on the manner in which they link the two periods 
 together. I shall mention only one other instance of the gnome. 
 It is the saying of Simonides that justice consists in " paying 
 one's debts." " It is easy," says Sir Alexander Grant, " to show 
 this definition inadequate, and yet it was a beginning." To 
 me it seems that it was one of those beginnings which include 
 the end ; for, fully comprehended, it embraces the whole theory 
 of justice, and it holds in gremio the ultimate doctrine of the 
 
 StKatov, just as the /x^^Sev ayav does that of the lieaorris, and is 
 
 thus unconsciously scientific in the highest degree. To the 
 
 ^ See Sir A. Grant's interesting and valuable dissertation on "the Doctrine of 
 the Mean." Aristot. i. p. 201, et seq. 
 
106 INQUIRY INTO THE HISTORY OF OPINION 
 
 members of my own profession I need not point out its analogy 
 with the jus cicique tribuencli, and one of the objects of this 
 work will be to shew how entirely our whole duty, not only to 
 our neighbours, but to God and to ourselves, is included in 
 " paying our debts." 
 
 It is in these two doctrines, indeed (the fiea-oT-qs and the 
 StKatov), more than in anything else, that the allegiance of the 
 Socratic ethics to the central doctrine of humanity, and, as we 
 shall see hereafter, its fruitfulness for scientific jurisprudence, 
 mainly consists. But then, these, in their turn, are the central 
 doctrines of the Socratic ethics. Amidst all the divergences 
 which its two greatest expositors, Plato and Aristotle, exhibit 
 in the points of view from which they regard their problem, 
 they are at one in regarding that problem itself as consisting 
 in the realization of the harmony which nature demands as the 
 condition of the free action of her various energies, and the full 
 gratification of her various impulses; and in holding that this 
 is to be accomplished by recognising the measure of power 
 which she herself has meted out to each. 
 
 The attempt to establish a distinction between Plato and 
 Aristotle, and to lay claim to the Stagyrite as " a judicious utili- 
 tarian," ^ on the ground that he attached greater importance 
 than Plato to the teaching of external observation, falls to the 
 ground in consequence of our previous remarks,^ for the allega- 
 tion, when admitted, proves not a different object of search, but 
 a different method of searching. Cicero asserts expressly,^ that, 
 as regards the doctrine here in question, Aristotle's view of 
 nature did not differ from that of the other members of the 
 
 1 Mill's Liberty, p. 46. ^ j^^^^^ 34^ 3 jy^, pi^^ 
 
"WITH EEFEEEXCE TO HUMAX AETOXO^^n^. 
 
 107 
 
 Socratic scliool ;^ and it would be easy to cite passages from 
 Aristotle in confirmation of this view. The leading discussion 
 is contained in the last four chapters of the Seventh Book of the 
 JSTicomachean Ethics. Several passages are not free from difli- 
 culty, but the drift of the whole plainly enough is that nature 
 has in it something divine (~dvra yap (fiva-ei e^et n ddov), and that 
 happiness consists in activity in accordance with nature. For 
 the rest I may refer to Ethic. Xic. i. ix. o, x. ii. 4; and Politic, i. 
 i, 8, where he says expressly, 5e ^iVts reAos karlv^ i. ii. 10, &c. 
 
 Xor does any substantial divergence arise from the fact of 
 Aristotle's " being distinguished among the ancients," as Mr. 
 Leckie has said, " for tlie emphasis with which he dwelt upon the 
 utility of virtue,"- for this merely proves the more hopeful view 
 which he took of the affairs of this world, that he believed not 
 only in the identity of virtue and happiness in the abstract, but 
 in the possibility of realizing this identity, in a great measure, 
 in human life. Tliat Aristotle Avas an eudiemonist is admitted 
 on all hands, but so Avas Socrates before him, and the Clnistian 
 fatliers and schoolmen-^ after him, and it no more follows there- 
 from that he was a hedonist IrlvC Bentliam, than that, like I\Ir. 
 Mill, he believed in a method of investigating mental phenomena 
 which excluded a direct appeal to the plienomena themselves. 
 
 More respect is due to Zeller s objection that, in the incom- 
 
 Leibnitz does not hesitate to couple liim witli tlie Stoics, or ratlier tlie 
 Stoics with. him. " Aristoteles et cum eo Stoici statnere juris nature esse funcla- 
 mentum : Xaturse convenienter vivere," and this doctrine he hokls to embrace 
 that of utility, for he continues, " et q^uicquid nature rerum, id est, statui earum 
 Optimo et perfectissimo conveniat, id justum est." — Xova 2Ietlioclus cliscenda clo- 
 ce-adceque jurisjmidentice, Pars. ii. § 72. 
 
 ^ Thomas AQ[uinas, Summa, Prima Secundce, qutes. xc. art. ii. 
 
 ^ ]\Iany excellent observations on this subject will be found in Professor 
 Blackie's Four Phases of Morals. 
 
108 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 plete condition in wliicli Socrates liiniself left liis ethical theory, 
 it furnished no external test of the character of the good, and had 
 thus "the appearance of being founded on utility."^ "Just as 
 his speculative philosophy stopped with the general requirement 
 that knowledge belonged to conceptions only, so his practical 
 philosophy stopped with the indefinite postulate that actions must 
 correspond to their conceptions. But how, with so vague a prin- 
 ciple, can it be determined what actions are moral ? " ^ The answer, 
 I think, is that human life was viewed by Socrates as an action, 
 which, like otlier actions, must correspond with its conception. The 
 conception of human life, or in other words the idea of humanity, 
 was thus the Socratic as it had always been the natural human, 
 and afterwards became in a conscious manner,^ both the Aristo- 
 telian and the Stoical standard of morality. Between such a 
 theory, and the doctrine of the identity of the good and the useful, 
 which Xenophon ascribes to Socrates, and which I believe him to 
 have held, there is, as it appears to me, no inconsistency whatever. 
 
 In his essay on " the disagreement between the ethical 
 systems of Kant and Aristotle,"'^ Professor Trendelenburg has 
 discussed with great acuteness, the relation in which Aristotle's 
 system stands to all those systems, whetlier ancient or modern, 
 in which hajopiness, in the sense of immediate gratification, is 
 made at once the rule and the object of life. Ivant does not 
 mention Aristotle expressly, and Professor Trendelenburg says 
 that he knew him chiefly at second hand ; but the ground on 
 which he is supposed to have insinuated the charge of hedonism 
 was that Aristotle sought in human nature both the source of 
 
 ^ Socrates and the Socratic Schools, p. 129. ^ lb. -p. 123, 
 
 3 lb. p. 128. Vermischte Abhatidlungen, vol. iii. 
 
AVITH EEFEIlE^'CE TO HUMAN AUTOXO^IY. 
 
 109 
 
 ethical determination and the object of ethical endeaA'oiir. 
 " Know thyself, in order that thou mayest become thyself." In 
 ansT\'er to this allecration, Trendelenburg has shewn, that the 
 absolutely universal moral law, for which Kant contends {das 
 allgcmeinc) suffers no disparagement by bemg sought by man 
 where alone it is discoverable by him, viz. in his own nature, or 
 by being realized, as alone he can realize it, viz. in the develop- 
 ment of that nature itself. It is the old Aryan postulate of the 
 existence of a divine element in man — Avhich claims, and from 
 his normal and ^reneral nature obtains, a willino; obedience, and 
 rcAvards it with happiness — which gives its ethical character 
 to Aristotle's eudaemonism; whilst, at the same time, it pre- 
 serves his conception of virtue from assuming that hard and 
 repidsive character which is common with so many moralists and 
 theulogians, and which even Kant has commimicated to it. Of 
 the consecj^uences of thus thrusting human feeling aside and in- 
 sisting on an absolute separation of the agreeable from the good, 
 Trendelenburfj has oiven a remarkable instance in Kant himself. 
 Driven by the stern necessities of his system, he found himself 
 compelled to limit the idea of duty to acts unwillingly^ per- 
 formed," thus giving up the possibility of eA^en an approxima- 
 tion to the realization of that very ethical " good will," of which 
 on other grounds he is justly regarded as the apostle. There 
 can be no '''good will" if everything that is good must be done 
 unwillingly. 
 
 It is in the integrity, and consequent sanity, of the Socratic 
 and Aristotelian ethics, and not in their exhaustive treatment 
 
 ^ "Die Pfiiclit ist eine XotMgung zu einem ung&rn genommenen Zweck." 
 Metaphysische Anfangs-griliide der Tugendlehre, ix. p. 230. 
 
110 INQUIRY INTO THE HISTORY OF OPINION 
 
 of special questions, that their enduring value, one might almost 
 say their novelty, even for the modern world, consists. There, 
 and in- the Bible alone, are we taught the "solidarity" between 
 the divine and the human, between our highest and our lowest 
 interests and enjoyments, and tlie consequent possibility of 
 making " the best of both worlds," or rather the impossibility 
 of taking what God intended for us, and what is really our own, 
 out of either " world," apart from the other. When the distinc- 
 tion between eudaemonism as the harmonious gratification of our 
 nature as a whole, including even the much-maligned "flesh," 
 and hedonism as the excessive disproportionate gratification of a 
 portion of it, is as clearly maintained as Aristotle has main- 
 tained it, it appears to us that eudsemonism admits of being 
 defended on somewhat higher grounds than Professor Trendelen- 
 burg, or even Professor Blackie has taken up. The coincidence 
 of happiness and virtue, wherever happiness and virtue are 
 really positive quantities, and not mere self-destructive nega- 
 tions, is not only possible but necessary. Happiness not in 
 accordance with virtue is more than counterbalanced by its 
 opposite, even in this world ; and virtue which is not " its own 
 reward," i.e. which is not a source of subjective happiness, what- 
 ever its objective value may be, has no subjective value at all. 
 " The Lord loveth a cheerful giver ; " and the spirit which He 
 demands in giving a mite must govern the acceptance of the 
 martyr's crown. Trendelenburg, who is a consistent Aristotelian, 
 has elsewhere shewn ^ that vicious gratification consists, not in 
 the gratification even of individual nature as a whole, for every ' 
 sane human being is an epitome of humanity, not in the har- 
 
 ^ Natur-rechL See infra, cap. vi. 
 
-^ITH EEFEEEXCE TO Hr^IAX AL'T0X0:MY. 
 
 Ill 
 
 monioiis gratification of all our propensities including the lowest, 
 but in tlie rebellion and self-assertion of a part of our individual 
 nature against the whole of it. It is a formidable risk to offer 
 any opinion with reference to Aristotle which appears to be at 
 variance Avith that presented in any portion of Professor Tren- 
 delenburg's vTitings, even when one seems to find encourage- 
 ment from them elsewhere. But on this point, if we take the 
 theory of the jj.ecroTrjs alone, viewed as a doctrine of harmony 
 and not of limitation, in the light in which Sir Alexander Grant 
 has presented it,^ it seems sufficient to warrant the conclusion 
 that Aristotle recognised the necessary coincidence of virtue, 
 not with tlie dicta of any exceptional faculty, but with the 
 normal impulses of individual nature as a whole. 
 
 (5) Fiomc. — In so far as Stoicism is entitled to the character of 
 a speculative doctrine, it belongs to Greece. But when we regard 
 it in the aspect in which it was really important, that, namely, of 
 an active faith — almost of a religion — our eyes instinctively turn 
 to Eome. Its value to humanity, in this point of view, has been 
 excellently brought out by ]\Ir. Leckie, and appear to have been 
 strangely overlooked by Bunsen. 
 
 The Stoics were pre-eminently the custodiers and expositors of 
 the ethical teaching of the Socratic school By them the doctrine 
 of human autonomy was formulated into practical rules of life, in 
 the three directions of the Individual, the Xation, and the 
 Community of Xations. 
 
 Tlie more closely the history of ancient society is investigated, 
 the more clearly does it appear that the Stoics were the parsons ^ 
 
 ^ lit supra. 
 
 ^ As to the idea of the Parson, or Persona, see Coleridge's Clmrch and 
 State, c. Ti. p. 56, Pickering's ed. 
 
112 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 of paganism, as tlie Cynics have been said to be the monks of 
 Stoicism. !N"otwithstancling the popularity of Epicureanism, 
 and the many points of resemblance to Stoicism which it 
 exhibited,^ its professors never approached to the influence 
 which the Stoical doctors enjoyed. And the reason was a very 
 obvious one. So long as the path of life lies through the green 
 pastures and by the still waters of self-indulgence, the ordinary 
 instincts even of very ordinary men will enable them to find it 
 and to follow it. But when the rugged steeps of self-sacrifice 
 have to be surmounted, or the rude tempests of passion to be 
 braved, loftier principles of action become requisite, and those 
 who can call them forth are eagerly longed for. This task the 
 Stoics undertook. Unlike the Epicureans, who sln^ank from the 
 sterner' realities of life, they professed to be friends in need, and 
 pilots in the storm, and, as a necessary consequence, an unusual 
 veneration attached to their persons, and an unusual importance 
 to their maxims. It is not wonderful that men so situated 
 should have been credited with the invention of tlie doctrines 
 which they inculcated ; and we find, accordingly, that not only 
 the general doctrine of the rectitude of the fundamental instincts 
 of humanity, but still more its embodiment in the famous 
 precept to " follow nature " (^onoXoyov/xevois rrj cfiva-eL ^rjv,^ con- 
 
 1 Even on the point which concerns us here, " the divine origin of the human 
 race," they were at one with the Stoics. Zeller's Stoics and UpicureanSf 
 431-477. 
 
 2 The rrj (pvaec is said to have been an addition by Cleanthes to the original 
 dogma of Zeno. If so, not Zeno but Cleanthes would be entitled to the character 
 of the father of the Stoical ethics, for conformity must mean conformity with 
 something. The d/xoXoyovfx^vcos alone would have been no more definite a guide f 
 than our own "utility;" it was the rrj <p\ja-eL that gave it point. But the ': 
 thought, if not the word, was, as we have seen, far older than either of them 
 
WITH EEFEEENCE TO HUMAN AUTONOMY. 
 
 113 
 
 venienter congruenterqiie naturae vivere), have been popularly 
 ascribed to the Stoics. To the merit of calling attention to its 
 practical application in many new directions, and, above all, in 
 that of positive law, the Stoics are largely entitled; but to 
 the character of discoverers, either in ethics or in natural law, 
 there is no reason to believe that the Stoics had higher claims 
 than the leaders of the Corn Law League might have set up to 
 that of discoverers in political economy. Cicero, who was a 
 direct inheritor of their traditions,^ and was by no means disposed 
 to be unfair to them, asserts not only that the theoretical doc- 
 trine in question was common to the whole Socratic school,^ but 
 fixed on the individual academic to whom the Stoics were 
 indebted for the practical maxim. In the academic cj^uestions,^ 
 he asserts that both Zeno and Arcesilas had been diligent 
 hearers of Polemo. In the De Finibus * he repeats the same 
 statement, and speaking of the Stoics generally he adds, q^ici cU 
 rebus bonis et Tiudis sentircnt, ea qiuc ah lioc Polemone Zcno 
 cogiioverat, having previously ^ asserted that what they did learn 
 was secundum nctticram vivere. The only two passages ascribed 
 to Polemo himself, which have been preserved to us, fully bear 
 out Cicero's statement as to the nature of his teaching.^ 
 
 There is only one other point of historical importance to 
 which I wish to call attention on a subject which is probably 
 well known to most of my readers, viz., the clear conception 
 which Cicero himseK had of the fact that the end of life, and the 
 
 ^ There is an unbroken list of the Stoical doctors from Chrysippus to Posidonius, 
 and Posidonius was master to Cicero. Grant, p. 273. 
 
 2 Acad. Quces. Passim, Nat. Dcor, i. 7 ; De Fin. iii. and iv. 
 
 3 i. c. 9. ^ iv. c. 22. ^ 2b. c, 6. 
 6 See Smith's Die. voce Polemon, and Madvig's De Finibus, p. 499. 
 
 H 
 
114 
 
 INQUIRY INTO THE HISTOEY OF OPINION 
 
 method of its attainment, are equally revealed to us by nature ; 
 and tliat, consequently, the modified Stoicism which he taught 
 was entitled to the character of science, both on teleological and 
 methodical grounds. In the Academic Questions/ after mention- 
 ing the tripartite division of philosophy into ethics, physiology, 
 and logic, as common to the Peripatetics and Academics, and 
 derived by both from Plato, he thus expresses himself : " Ac 
 primam illam partem, bene vivendi, a natura petebant, eique 
 parendum esse dicebant (the rule of life), neque uUa alia in re, 
 nisi in natura, quferendum esse illud summum bonum, quo omnia 
 referentur " (the end).^ 
 
 The unspeculative, and, as a necessary consequence, the one- 
 sided character of the Stoics, which was so marked as to point 
 them out as exceptional characters amongst their original 
 countrymen, and which no doubt recommended them to the 
 narrower and more practical mind of Eome, has been often 
 remarked ; but I am not aware that it was ever accounted for 
 till Sir Alexander Grant pointed out the singular fact that, from 
 the places of their birth, we may infer, with high probability, 
 
 1 i. c. 5. 
 
 ^ There lias been a tendency in Germany to disparage Cicero ; but Hegelianism, 
 at least in the person of its founder, cannot be charged with it. Hegel was fully 
 alive to the scientific character of Cicero's method, and the advantage which it 
 had over that of Grotius, PJdlosophy of History, Bohn's trans., p. 459. That 
 Cicero took much of his information at second hand, and that from the haste with 
 which his treatises were compiled, he allowed himself to be betrayed into incon- 
 sistent expressions, is, I fear, unquestionable. The expression Prima natura; 
 {To, irpCoTa Kara (pvcnv), whencesoever it may have come (Madvig, ut suj^ra. Ex- 
 cursus, iv. p. 815), is certainly unfortunate ; and specially so if we forget, as we 
 are apt to do, that bothTrpcDros and jjWmi^s often mean " first in ranis and import- 
 ance," rather than first in actual time. Probably ultim.a natural would have 
 better conveyed, to most of us, what was no doubt Cicero's conception of the 
 fundamental, radical impulses, Avhich he acf;epted as the rule of life. 
 
WITH REFEEEXCE TO HUMAX AUTONOMY. 
 
 115 
 
 that they were mostly of Shemitic blood.^ They were wanting 
 in the subtlety which many Jews have exhibited. We shall 
 seek in vain for a Spinoza or a Xeander amongst tliem. Like 
 the Shemites in general, they were intense and unsparing in 
 the application of a narrow logic ; but their premises did not rest 
 on a sufficient analysis of internal phenomena, and from this 
 cause they ultimately fell away from the spirit of their own rule 
 more egregiously than even their opponents. A departure from 
 nature is the reproach which Cicero continually brings against 
 them ; and there can be little doubt that the Cynic who lived 
 in a tub, or the Stoic who committed suicide, outraged nature 
 even more flagrantly than the Cyrenaic or the Epicurean who 
 sipped nectar on a bed of roses, and was true at least to his 
 lower instincts. 
 
 It is their betrayal of this, their own principle, too, as we 
 shall see hereafter (cap vi.), which gives point to the polemic 
 Avhich Sir Alexander Grant has directed against Bishop Butler's 
 famous " apologia " for Stoicism. In so far as Sir Alexander's 
 attack is directed a^-ainst the maxim " follow nature," in itself 
 — i.e. in its wider and Socratic as opposed to its narrower and 
 Stoical sense — it is an attack on science itself; and I wish that 
 the learned Principal had marked the two points of view more 
 clearly than he has done. Johnson's whimsical chapter in 
 " Easselas," on " the happiness of a life led according to nature," 
 has often been ignorantly regarded as a rcductio ad ahsurdicm 
 of the Stoical maxim. But when the Prince of Abyssinia de- 
 manded of the philosopher that he should tell him what nature 
 was, he only reminded him of the task which his profession 
 
 1 Aristot. i. p. 246. 
 
 2 De Fill. iv. c. 11 and 19 ; Fro Murena, c. 29, 30, 31. 
 
116 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 imposed on him. The vagueness of his response proves, it is 
 true, how small was the advance which moral and political 
 science had made in England in Dr Johnson's time, or how 
 imperfect his knowledge of it was. But what should we think 
 of a chemist or a physiologist who should decline the challenge 
 to fight on the field of nature, in our day ? ISTature may be a 
 mistress who is not wooed with equal facility by all her suitors ; 
 but her wooing, in all departments alike, is the condition of 
 science, sine qua non. 
 
 I shall have occasion to point out hereafter^ the imperfec- 
 tions of the Socratic doctrine in the aspect in which the Stoics 
 presented it. But inasmuch as the practical recognition of 
 a doctrine by mankind, their acting consistently as if they 
 believed it, is a more unequivocal proof of their belief than any 
 expression of opinion, either direct or indirect, it may not be 
 unimportant to this branch of the discussion that we should 
 dwell for a little on the vast acceptance which Stoicism ex- 
 perienced, and the influence which it exercised. With the 
 single exception of Christianity — from which, in the point we 
 are considering, it does not differ - — no form of belief ever took 
 possession of so great a number of Europeans, or held it so 
 long ; and though it was not particularly fortunate in its 
 expositors, or distinguished by the subtilty, or even the sound- 
 ness of its analysis of human nature in detail, it moulded human 
 institutions and affected human destiny to a greater extent than 
 all the other philosophical systems either of the ancient or 
 modern world. In Greece the objections which presented them- 
 selves to the physical and metaphysical speculations on which 
 
 1 Cap. vi. 2 Infra, p. 125. 
 
WITH EEFEREXCE TO HUMAX AUTOXOMY. 
 
 117 
 
 the Stoics pretended to found tlieir etliical system, serionsly 
 affected its influence ; but in Eome tliese were not understood, 
 and if they had been understood w^ould not haA'e been heeded. 
 Accordingly, during the youth and Augour of the Eepublic, 
 it ruled Eoman life unconsciously before it had any theoretical 
 footing at all ; during the period of bloom it held its own against 
 Epicureanism amongst the better spirits ; and Avhen finally, as a 
 rule of citizen life, it experienced the relaxing and deadening 
 influences of the empire, it kept alive, as the prevalent theoreti- 
 cal opinion, the idea of virtue as the chief good, and the 
 aspiration after liberty within the spliere of individuality, and of 
 universal charity and cosmopolitan benevolence, as the means 
 to its attainment, Xor ought it to be forgotten that when social 
 corruption and degeneracy had reached their culminating point, 
 and the world of antiquity was about to expire, the last Avords 
 which she addressed to her successor, the advice which guided 
 the spirit of the middle age and moulded its institutions — its 
 asceticism, its chi^'alry, and even its romance — consisted in the 
 inculcation of Stoicism. The famous work of Boethins, like the 
 system which it taught, owed very little either to the abilities of 
 its author, or to the speculative A^alue of its subject-matter; and 
 yet, for nearly a thousand years, it enjoyed a reputation such as 
 perhaps never fell to the lot of any other confessedly human 
 production. Composed in his prison at Eavia, Avhen accused of 
 the crime of haAung "hoped for the restoration of Eoman 
 liberty," by him AAdiom Gibbon has characterized as " the last of 
 the Eomans AAdiom Cato or TuUy Avould have acknoAvledged for 
 their countryman,"^ it formed one of the most important connect- 
 
 1 vii. c. xxix. p. 45. 
 
118 INQUIRY INTO THE HISTORY OF OPINION 
 
 ing links between tlie classical and tlie Christian world ; and as 
 regards the history of onr own English civilization, it is a fact of 
 no insignificant importance that the task of j)resenting it to our 
 'countrymen in the vernacular speech was undertaken, succes- 
 sively, by Alfred, by Chaucer, and by Queen Elizabeth ! Whether 
 Boethius was a Christian or a Pagan is still a subject of dispute. 
 His name was enrolled amongst Catholic saints and martyrs ; but 
 the theological w^orks ascribed to him are probably the work of 
 another, and there is, at any rate, no evidence of their authenti- 
 city at all sufficient to counterbalance the fact that Christianity 
 is never once mentioned in the Consolatio Philosophice, the topics 
 discussed being such as to render its accidental omission almost 
 impossible. Like many of the more serious men of his time, 
 and even like Epictetus and the Antonines of a former time, 
 Boethias probably hovered on the confines of both faiths. But, 
 in his relation to the one and to the other, there would seem to 
 have been this difference, that, whilst he may have been un- 
 consciously affected by the Christian elements that pervaded 
 the moral atmosphere which he breathed, he vv^as a direct and 
 conscious inheritor of the Ethics of the Porch. But the work of 
 Boethius, and the innumerable commentaries, translations, and 
 imitations which it produced — e.g. Chaucer's " Testament of Love," 
 and the " King's Complaint," — were by no means the only repro- 
 ductions of degenerate Stoicism that fed the spirit of the middle 
 ages. The meditations of Marcus Aurelius were never forgotten ; 
 and the Disticha de Moribus or Catechism of Morals, ascribed to 
 a certain Dionysius Cato, of whom nobody has ever been able to 
 discover anything, was extensively used as a school-book from 
 the age of Alcuin downwards. It is frequently quoted by 
 
WITH REFERENCE TO HUMAN AUTONOMY. 
 
 119 
 
 Cliaucer, and no wonder, for so popular was it about his time 
 that more than thirty editions were published in the fifteenth 
 century.i jf^ ^yr^g [^i imitation of these expiring efforts of 
 Stoicism that the Suvuna of the schoolmen and casuists began 
 to be composed — of which, the Summa of Thomas Aquinas 
 is tlie noblest specimen ; and they in their turn gave rise 
 to the Spanish Theological Jurists, Dominicans and Jesuits, who 
 were the predecessors of Grotius — Soto, and Suarez of Grenada.^ 
 
 The substantial accordance of the Socratic ethics, even in the 
 peculiarly exaggerated and one-sided form of Koman Stoicism, 
 with the old revelation of nature on the one hand, and the new 
 revelation of the gospel on the other, accounts for the fact of its 
 having survived the marvellous and miraculous revolution of 
 opinion in which polytheism perished. Chronologically, as well 
 as philosophically, Socraticism, or rather that universally human 
 doctrine of which Socrates was the prophet to the western 
 branch of the Aryan race, forms, as I have said, the connecting 
 link between the ancient and the modern world. To trace the 
 various forms in which this connection manifested itself belongs 
 to, or rather constitutes, the history of ethics and jurisprudence, 
 and all that we can here attempt is to indicate a few additional 
 points of view which specially claim attention. 
 
 1. The Roman law. — The ciy'A law of Eome, which, during 
 the abode of our Lord on earth, received His constant tacit and, 
 occasionally. His express approval, and which the Christian 
 accepted from the heathen world, makes no claim to direct 
 
 ^ See Mevivale's Rome, last vol. ; Stanley's Eastern Church, p. 228, and his 
 article on Boetliius in Smith's Dictionary. 
 ' Infra, p. 133. 
 
120 INQUIRY INTO THE HISTORY OF OPINION 
 
 inspiration, but is professedly founded on the revelation tlirough 
 nature, and the consequent assurnj^tion of human autonomy. 
 
 Its general character is post-classical : in many respects it is 
 national : and, in the form in Avhich we know it best, it comes 
 to us from Christian times ; and yet, in the respect I have 
 mentioned, it entirely falls in with the central tendency of 
 Hellenic and Indo-Germanic thought. The great practical 
 people of antiquity had the wisdom and happiness to repudiate 
 the sensationalism and empiricism which constitute the re- 
 proach of our country and our time, and which hitherto have 
 prevented the jurisprudence of England from attaining the 
 character of a science. The foundations of the Eoman law 
 were laid deep in the study of nature, both in its subjective 
 and objective manifestations. Like the Christian Apologists 
 and Fathers, the Eoman jurists accepted the Socratic ethics, 
 chiefly in the form in which the Stoical doctors presented 
 them. The two centres around which their whole system of 
 rights and obligations grouped themselves were the persona, i.e. 
 the rational and responsible ego and non ego on the one hand, and 
 the res, the irrational and irresponsible non ego, animate and 
 inanimate, on the other. Of this we have a remarkable illustra- 
 tion in the fact that the Eoman theory of slavery rested not on a 
 denial of liberty to the person, but of personality to the slave. 
 The slave was not a persona, but a res. JsTow had the fact of 
 nature accorded with this assumption, had the slave been a res in 
 the legal sense of the word, — in the sense in which an ox or an 
 ass was so, — then he too might have been the property of a 
 persona, in as full accordance with the principles of jurisprudence 
 as his ox, or his ass, or anything that was his. The logic of 
 
AYITH EEFEEEXCE TO HUMAN AUTOXOMY. 
 
 121 
 
 the civil law was saved, in this instance, and its general principle 
 maintained, by a false premise, by the denial of a fact of nature, 
 just as Hobbes saved the logic of his political system.^ The 
 Jurists set nature at defiance by denying that all men are equally 
 men, the politician by maintaining that all men are equal men. 
 But, unlike the politician, the jurist, in virtue of his Stoical 
 traininfj, had the CTace to acknowledo-e his en^or, and to recos^nize 
 in fact, even whilst he denied in law, that his doctrine was contra 
 naturam? It is wonderful that Aristotle having got hold, as we 
 shall see hereafter,^ of the principle of relative equality, did not 
 apply it to the subject of slavery, for, as Professor Trendelenburg 
 has truly remarked, his conclusion in favour of slavery ^ is not 
 warranted by his assumption that some men are by nature more 
 suited for servants than for masters.^ That is an assumption 
 which there is every reason to believe is warranted by nature, 
 and in dealing with inferior races, it might very well have been 
 held to justify servitude, in the sense of perpetual pupilarity. 
 Whether Aristotle intended to push it greatly beyond that 
 point is rendered somewhat doubtful by a passage in the First 
 Book of the CEconomics, which I believe is acknowledged to 
 be his, in Avhich he argues that liberty should be held out to 
 the slave as an ultimate object, on grounds not only of expediency 
 but of justice.*^ 
 
 The recognition of the legitimacy of infanticide by Aristotle,' 
 and in the Twelve Tables, is a stronger instance than that of 
 
 1 Infra, Book 11. Chap. III. ^ uirpia^-^^ j)ig^ I. i. 4 ; L. 17, 31 ; Inst. i. 3, 2. 
 
 2 Infra, Book II. Chap. lY. ^ Xatur-rccM, i. c. 2. ° Politic, i. c. 2. 
 ^ XpT] 5e Koi rekos CopLadai irdcrtv. AiKaiov yap Kal avp^cpepov rrjv iXevdepiav Keiadat 
 
 SlOXov. Boi'XoiTat yap irovelv otolv rj adXov Kai b XjOoVos u^pLUjievos. i. C v. 
 7 Politic, vii. 16. 
 
122 INQUIRY INTO THE HISTOllY OF OPINION 
 
 slavery, of want of appreciation by antiquity of tlie value of the 
 ]persona, the sacredness of humanity as such. It must ever 
 redound to the glory of the Stoics that they were the first 
 explicitly to proclaim the unity of the human race, whilst they 
 avoided the sin and folly of laying claim to an equality which God 
 has denied. It was this latter error which in the East degraded 
 the natural distinction of classes into the unnatural distinction 
 of castes ; which, in classical times, and in the dealings of modern 
 nations with the inferior races, has aggravated servitude into 
 slavery : and which, in our own day, by denying the rights of 
 private property, has invaded the sanctity of the j9er50?i(X in the 
 name of liberty, and threatens to arrest the progress of God's 
 kingdom by repudiating the means which He has appointed. 
 
 2. International Laio. — International jurisprudence owed its 
 origin to tliose who were the special expositors of the doctrine 
 of human autonomy in antiquity, and has always rested on the 
 assumption of its truth. 
 
 The advantages of the rational and philosophical conception 
 which the Eomans formed of the sources of jurisprudence were 
 not confined to the development of a municipal system which, 
 after the lapse of ages, still illuminates the path of modern 
 legislation. The idea of the persona was felt to contain the 
 germs of that cosmopolitan system, the realization of which the 
 ancient world was not privileged to behold, and which we our- 
 selves, even now, have seen but in part. The sentiment of a 
 brotherhood of mankind is one of those innate conceptions 
 which belong to humanity as such. Were its absence con- 
 ceivable from any sane mind, we should be compelled to relin- 
 quish our doctrine of the necessary recognition of the rights of 
 
W^ITH EEFEEEXCE TO HU^^IAX AUTOXOm'. 
 
 123 
 
 tiie non ego, and to accept HobLes's dreary conclusion of a 
 natural state of war.^ It is not surprising, then, tliat oriental 
 scholars should have found it in Buddha, that Bunsen should 
 have traced it in Homer,- or that he should maintain that it 
 "underlies all the Mosaic superstructure."^ Like all that was 
 true in Stoicism, moreover, it had its roots in the more Catholic 
 creed of Socrates. Still in this direction, especially, the Stoics 
 surpassed their master. It is impossible not to see in Zeno's 
 universal state, and in the cosmopolitan notions of the Stoics as 
 a school, a clearer presentiment than any their greater prede- 
 cessors possessed of the possibility of a system of international 
 law ; and as regards the Eoman jurists, it is instructive to 
 remember that it was through them, as apostles of the doctrine 
 of personality, that the seed vdiicli the Stoics had sown ulti- 
 mately germinated. Grotius was not himself specially a civilian, 
 but he was bred in a school, and born in a family, saturated to 
 the core with the doctrines of the civil law; and in a school and 
 a family, moreover, in Avhich these doctrines Avere sedulously 
 studied in connection with Greek philosophy. Of his more 
 eminent successors, including Lord StoweU, similar assertions 
 might be made. In this country we have scarcely any names 
 except Lord Stowell's that deserve mention, either in scientific 
 jurisprudence or in international law. But many of our muni- 
 cipal laAvyers have been great ; and the greatest of them. Lord 
 
 ^ Infra, Book 11. Chap. III. ^ God in Hist. ii. p. 104. 
 
 ^ Ih. i. p. 95. There can be no doubt that the idea of the unity of mankind is 
 involved in the doctrine of man's participation in the di^dnity of one God. But 
 Bunsen acknowledges that any special hold on it which the Jews may have had 
 in this direction was lost when the Jewish nation "set itself up, in contradis- 
 tinction to mankind at large, as the elect people of God," and that it did not 
 again obtain prominence till the coming of Christ . 
 
124 INQUIRY INTO THE HISTORY OF OPINION 
 
 Mansfield and our own Lord Stair, liave freely acknowledged 
 their obligations to these heathen prox3hets. The utterance of 
 Lord Mansfield, with reference to Socrates, is very memorable. 
 " I will take the liberty to call him the great lawyer of anti- 
 quity, since the first principles of all law are derived from his 
 philosophy."^ 
 
 (c) Alexandria. — The central doctrine of the Socratic ethics 
 met with acceptance at Alexandria, even from persons who were 
 not of pure Aryan blood. 
 
 There was another direction in which speculative thought 
 assumed a subtler and deeper aspect than in the Eoman world. 
 At Alexandria the traditional doctrines of the Socratic school as 
 to the sources of ethical science, in place of being limited and 
 rendered more definite by being viewed exclusively as a revela- 
 tion in and through humanity, held by the characteristics to 
 which Plato had given partial recognition, of a revelation to 
 humanity. But though in laying claim to illumination, 'Neo- 
 Platonism offered meeting-points not only with the old She- 
 mitic traditions, but ultimately with Christianity, this side of its 
 teaching manifested itself in features so exaggerated, and often 
 so entirely sensuous, as to alienate the professors of a pure and 
 spiritual faith. It was the common ground on which their 
 ethical systems rested which enabled the Christian Fathers to 
 join hands with the saner teachers of the old philosophy, and 
 to perceive the identity of object, and even in many respects 
 the analogy of method, which bound together all genuine and 
 honest seekers after truth. Even the learned Jews, who con- 
 tributed so characteristic an element to the intellectual life of 
 
 ^ Lord Campbell's Lives of the Justices, ii. p. 391. 
 
WITH EEFEEEXCE TO HUMAX AUTOXOMT. 
 
 125 
 
 Alexandria, and formed, as it were, a connecting link bet^Yeen 
 Christians and heathens, accepted the common anthropology of 
 nature, and in them it yielded the same practical results. Pro- 
 fessor Trendelenbm^g, in his Katiir-rcclit} remarks that Philo had 
 imbibed Stoical notions, and mentions, as a consequence, that he 
 condemned slavery as contrary to nature. The same belief in 
 the rectitude of human nature which led the jurists at Eome to 
 the idea of the indefeasible and inalienable dignity of the person, 
 thus led the typical representative of old Jewish culture at 
 Alexandria beyond them, to one of the most important practical 
 consequences of that idea, and one which, as Ave have just seen, 
 they failed to derive from it. In like manner Clement, though 
 professedly an eclectic, was more of a Stoic than anything else, 
 as indeed were all, those who opposed the dualism of the orien- 
 talized Gnostics on the one hand, and the blind faith in con- 
 tinued and miraculous interposition, held by the Montanists 
 and the narrower Christian sects on the other. 
 
 ((7) Slieriiitic and Christian antliroj)ology. — The belief in human 
 autonomy constitutes the meeting-point of Aryan and Shemitic, 
 and of heathen and Christian faith ; or, in other words, of the 
 revelation with reference to humanity which God has given 
 through human nature, and to human nature. 
 
 We have now reached the point at which Aryan came into im- 
 mediate contact with Shemitic thought, and at which the creed 
 of God-developed is tested by that of God-instructed humanity. 
 And the question which we have here to ask of history is, not 
 whether the anthropological doctrines of reason and revelation 
 were agreed in all respects, nor wherein they differed, but simply 
 
 1 p. 157. 
 
126 INQUIRY INTO THE HISTORY OF OPINION 
 
 whether they coincided in asserting the autonomous character 
 of humanity. If the answer be in the affirmative, it is manifest 
 that the adequacy of the natural sources of jurisprudence is 
 affirmed, and, as a necessary consequence, the exclusive preten- 
 sions of the theological school are shut out. 
 
 (a) The Bible. — IN'ow, as regards the doctrine in question, 
 there is no essential discrepancy between heathen opinion and 
 the teaching of the Holy Scriptures. " God created man in His 
 own image, in the image of God created He him."^ That is 
 the original statement. In the passage in St. Luke's gospel ^ 
 which sets forth the human pedigree of Christ, we are again 
 told that " Adam was the son of God ; " and St. Paul, preach- 
 ing at Athens, brought the identity of Christian and heathen 
 belief on this point expressly before his hearers, by quoting 
 the assertion, that " we also are His offspring."^ Nor is this 
 primary conception of the essential relation between the Divine 
 and the human, and the consequent autonomous character of the 
 loersona, invalidated by the intervention of voluntary transgres- 
 sion. The assertion that this parental image, marred and defaced 
 but not obliterated, is traceable in himself by every subsequent 
 member of the family, is consistently maintained. It was as 
 the Son of Man that the Son of God appeared on earth, and 
 encouraged the greatest sinner to address His and Our Father 
 in heaven. 
 
 (h) The Fathers. — It is not wonderful, then, that the Christian 
 apologists accepted " the morality of Socrates as healthy and 
 sound," 4 or that the apostles themselves should have made use 
 
 1 Gen. i. 27. ' ^ 33. 3 ^^ts xvii. 28. 
 
 ■* Donaldson, Hist, of Chris. Lit. and Doctrine, ii. 26. 
 
WITH EEFEEENCE TO HUMAN AUTONOMY. 
 
 127 
 
 of the very expressions in wliicli the followers of Socrates had 
 clothed his ethical consciousness. We find, accordingly, that it 
 was the belief of Justin Martyr, and Clement of Alexandria, and 
 Origen, and in general of the orthodox fathers of the Church, just 
 as it had been of Plato the Greek and Philo the Jew, that the 
 Divine Logos, which was present at the creation of man, was not 
 alien from the human Logos.^ Xor did they hesitate to apply 
 to the latter the very same epithet (Xoyos cr-epixaTLKos) by which 
 heathen philosophers had characterized it.^ 
 
 " The Logos," says Justin jNIartyr, " was present at the crea- 
 tion of man," and " the whole race of men partook of Him." . . . 
 ''He is in every one." "The seed of the Logos is implanted in 
 the whole race of men, and those who lived with the Logos were 
 Christians, even though they were reckoned atheists — such as 
 among the Greeks, Socrates, Heraclitus, and men like them, 
 and among barbarians Abraham, and Ananias, and Azarias, and 
 Misael, and Elias, and many others."^ In proof of how entirely 
 this view is in accordance with best modern theological opinion, 
 I might quote to any extent not only from the writings of the 
 
 Broad Church party," but even from such works as Mr. Is'ew- 
 man's Arians, wdiich was published before that party existed.* 
 I shall content myself, however, Avith referring to the second 
 Book of Bunsen's God in Historij; and quoting a couple of 
 passages from ISTeander, in which he has expressed, very defi- 
 nitely, the opinion which pervades all his writings. 
 
 1 Neand. Ch. His, ii. p. 423. 
 
 2 Zeller's Stoics, p. 162. Bunsen, God inHistonj, vol. ii. p. 316. 
 ^ Donaldson, ut. sup. ii. p. 225. 
 
 * It was published originally in 1842, and reprinted, with the author's permis- 
 sion, by the Rev. G. H. Forbes of Burntisland, whose much learning has not led 
 him in the direction of the Broad Church. 
 
128 INQUIRY INTO THE HISTORY OF OPINION 
 
 "Christianity proceeds on the assumption that all the ten- 
 dencies which belonged to the original idea of humanity, and 
 which had been distorted and circumscribed by sin, are to be 
 realized. This is what is meant by the saying of Christ, that 
 He was come not to destroy the law but to fulfil it, which must 
 not be understood as having reference only to the law of the 
 Old Testament." In commenting on the miracle at Cana of 
 Galilee, he thus sums up his conception of its import, "It is 
 the peculiarity of Christ's spirit and labours, the peculiarity of 
 the work of Christianity, not to destroy wdiat is natural, but to 
 ennoble and transfigure it ; to enable it, as the organ of Divine 
 powder, to produce effects beyond its original capacities. To 
 energize the power of water into that of wine, is, indeed, in 
 every sense, the peculiar office of Christianity."^ 
 
 (c) The Schoolmen and Ecclesiastical Jurists. 
 
 No mistake could well be greater than to set down the ecclesi- 
 astical writers on jurisprudence, previous to the Eeformation, 
 indiscriminately, as representatives of the theological school, 
 in the sense of a school which ignores any source of know- 
 ledge except direct revelation. We think of these men mostly 
 as monkish ascetics, who had renounced this world for the next, 
 and whose prayer was not for "the garish day"^ of knowledge, 
 but for guidance in a night of voluntary ignorance. It is true 
 that the idea which lies at the root of all asceticism and fanatic- 
 ism, whether Catholic or Protestant, whether heathen or Christian, ' 
 is always the repudiation of the teaching of nature in its in- 
 tegrity. The hermit in his cave, or the anchorite on his pillar, 
 
 ^ Geschichte der christlichen EthiTc, p. 17. 
 2 Xewman's %mD, "Lead kindly light." 
 
WITH EEFERENCE TO HUMAN AUTONOMY. 129 
 
 was a natural infidel, just as mncli as the cynic in his tub ; and 
 it is to be feared that the Protestant in his pulpit is not always 
 free from the same reproach. But it is to normal and sane, and 
 not to one-sided and crack-brained representatives of doctrines 
 that we must look for their exposition. Samt Anthony and 
 Saint Simeon were no more entitled to be regarded as exponents 
 of the theology or anthropology of the Church, than Diogenes 
 was to be regarded as a representative of the Socratic school, or 
 a Eanter or a Shaker at an American revival to be taken for a 
 normal Protestant. But even to the sanest of the ecclesiastical 
 jurists, it will be said, the Church took the place of nature, just 
 as to ecclesiastical theologians she took the place of the Bible : 
 and as the Church, moreover, was her own interpreter, their 
 jurisprudence must thus have formed part of a theological system 
 which excluded any ultimate appeal to reason or to nature, even 
 in secular questions. It is this view, we are persuaded, that 
 has handed over to " the moth, the worm and the spider,"^ more 
 than one work of genius and learning on the subject of our pre- 
 sent studies, to which the modern literature, even of Germany, 
 scarcely furnishes parallels. The allegation that the finality 
 which the Church asserted for her dogma, even as regarded 
 secular opinion, had the effect of excluding the laity from free 
 anthropological as well as theological inquiry, is no doubt true ; 
 and it is this fact which, down even to our own day, seems to 
 render the existence of Eoman Catholicism and political auto- 
 nomy irreconcilable.^ But it did not affect either the methods 
 
 ^ Hallam, vol. i. ix 373. 
 
 ^ Kenan, vie-wiug it cHefly from its political side, speaks of tlie Eeformation 
 as "la plus belle chose des temps modernes. " La Eeforme IntellectuelU et Morale, 
 p. 129. 
 
 I 
 
130 
 
 INQUIRY INTO THE HISTOEY OF OPINION 
 
 of inquiry followed by the clergy themselves, or the results of 
 these inquiries, to anything like the extent that is generally sup- 
 posed; and this for the simple reason that the clergy were the 
 Church. Beyond a certain point tradition was binding on the 
 clergy themselves, just as the admitted words of Scripture are 
 binding on modern theologians. Even Saint Thomas Aquinas 
 could not contradict Saint Augustin. Before he ventured to 
 differ from him he must explain him away. But, if the point 
 chanced to be one on which Saint Augustin neither required to 
 be contradicted nor explained — if Saint Augustin said that there 
 was a revelation of law through nature as well as to nature,-^ — then 
 to nature Saint Thomas could go. The door of science was open 
 to him. He could seek for a natural law for the government 
 of the human relations; he could work out its realization in time 
 and place; and this he could do by the observation either of sub- 
 jective or objective phenomena. JsTow this was precisely what 
 took place. Not Saint Augustin alone, but the whole of the 
 Fathers of the Church maintained, as we have seen, the continued 
 presence of the Divine element in humanity. This element it 
 was the function of Christianity to evoke and potentiate ; and 
 its utterances, consequently, however they might be discovered, 
 formed a portion of the dogma on the strictest principles of 
 orthodoxy.^ Armed with this authority, and true to the instincts 
 of the Aryan race, the general problem which the Schoolmen set 
 before them was the reconciliation of theology and philosophy, of 
 faith and reason; a problem, the mere statement of which 
 
 ^ See the De Uhero cirhiL i. 6, quoted Su7n. Prim. Sec. Qures. xci. art, iii. 
 
 2 " Catliolica fides non solum docet, quatenus parendum est Deo, supernatural- 
 iter prfecipienti, sed etiam quid natura vetet, jubat, vel permittat." Suarez, 
 de Lcgihus, ii c. v. and vi. 
 
WITH EEFEKENCE TO HUMAN AUTOXO^IY. 
 
 131 
 
 amoiintecl to an assertion of the fundamental rectitnde of 
 hnmanity, and tlie validity of indirect, equally Avitli direct, revela- 
 tion. ISTor, on tlie assumption that truth is one, that as ISTeander^ 
 has finely said, " there is no schism in the spirit," was their posi- 
 tion as honest seekers for truth affected by the allegiance which 
 they owed to the Augustinian maxim that " fides pr^ecedit intel- 
 lectum," or by the fact that they began their investigations from 
 the theological and not from the philosophical point of view. 
 
 It was in the fullest confidence that reason had nothino' to 
 reveal which faith need fear, that Anselm wrote his Fides gitcercns 
 intellectum; and that Abelard, bolder still, pronounced Christianity 
 to be a Reformatio juris naturalis, composed a work on ethics to 
 which he gave the significant title Scito te ijjsum, and maintained 
 that " the old philosophers came very near to Apostolical perfec- 
 tion, and were not very far, if at all removed from Christianity." ^ 
 Abelard, it is true, was condemned as a heretic ; but the vast 
 popularity of his teaching, and the influence which it exercised 
 even on his opponents, showed to how great an extent his senti- 
 ments Avere in accordance with the spiritual consciousness of his 
 time. We find, accordingly, that the characteristic of the third 
 period of scholasticism, from Alexander of Hales to Occam, vdiich 
 included the brilliant era of Thomas Aquinas, was a complete 
 alhance between the Church and the Aristotelians — a proclama- 
 tion of the doctrine that the truth of reason is essentially one 
 with Divine truth, and that, as K"eander, following Thomas 
 Aquinas, has somewhere said, "the Christian graces of Faith 
 Hope, and Charity, are but the complement of the old cardinal 
 virtues of Prudence, Justice, Temperance, and Fortitude."^ 
 
 ^ Yol. viii. page 19. ^ Neander, viii. p, 41-2. 
 
 ^ As to the relation between tliem, v. Sum, Prim, Sec. Qu«s. Ixi. 
 
132 
 
 INQUIRY INTO THE HISTORY OF OPINION 
 
 It is a striking proof at once of tlie universality of tliis belief, 
 and of the influence of pliilosoxjliical on theological studies, that, 
 in defiance of the exclusive tendencies of Shemitic thought in the 
 direction of the supernatural, the Arabian scholars of this period 
 became anxious to discover a scientific basis for their creed also, 
 and sought to perform for the Koran the same office that Chris- 
 tians were performing for the Bible. 
 
 Grotius is often credited by his modern admirers with the 
 merit of having separated jurisprudence from theology, and vin- 
 dicated for the former the character of a secular science. The 
 statement is true in the sense of his having been the earliest 
 Protestant writer of importance on the subject; and having, as 
 such, contended against the political subordination of the laity to 
 the clergy, and of the State to the Church, for which the Spanish 
 Jesuits, who were his immediate predecessors, had argued so 
 keenly.i But it is anything but true in the sense of his having 
 separated the human element in jurisprudence from the divine, 
 or having discovered, or sought to discover for it, any other basis 
 than that which these writers had ascribed to it. The di\dne 
 character of that law of nature to which he appealed as his ulti- 
 mate authority, is the key-note of Grotius throughout ; whilst, on 
 the other hand, the coincidence of the lex clivina with the lex 
 natumlis, and of both v/ith the lex liumana, finds no fuller 
 recognition in any part of the writings of Grotius than in 
 those remarkable chapters of the Summa in which Thomas 
 Aquinas treats of laws,^ in Dominic Soto's treatise De Justitia 
 
 1 When Suarez, in arguing for the Divine origin of the civil law, lib. iii., sums* 
 up with the exclamation, " Non immerito, igitur, sub hac saltern ratione, omnium 
 legum discussio est Theologicse Facultatis," it is impossible, knowing who he 
 was, not to suspect that he was influenced by considerations which were not ex- 
 clusively scientific. ^ Prim. Sec. Quces. xc-c. 
 
WITH EEFEEEXCE TO HTMAX AI'TOXO^IY. 
 
 133 
 
 et Jure, or in Siiarez of Grenada's De Legibus ct Deo Legislatore. 
 That Grotius did much to develop those cosmopolitan con- 
 ceptions of justice which we have traced to Socrates and the 
 Stoics, and with which the ecclesiastical writers — Snarez iu 
 particular^ — were well accjuainted, is beyond all dispute. But it 
 may be doubted whether the study of jurisprudence, as a science 
 of nature, gained anything very important, in point of method, 
 from his labours,^ and the neglect of the true metliod is a reproach 
 wliich may be urged with far greater justice against those who 
 came after him, than those who went before him. The device of 
 founding jurisprudence on contracts " and " conventions " dic- 
 tated by personal, or national, conceptions of "utility," was re- 
 served for the eighteenth century; and it was the prophets of the 
 nineteenth century, and of o\m own country, vdio first addressed 
 themselves to the lofty and enlightened task of "modifying," 
 " adapting," and " limiting " the law of nature 
 
 {d) Tiie Reformation. — If the merit of Grotius, Kke that of 
 Bacon, consisted, not in the invention of any new or separate 
 method of inquiry, but in gi^ung a wider range of applica- 
 tion to the method from which no man of real insight had 
 ever departed — the method, namely, of investigating nature as 
 the only ultimate standard, or possible organ of truth — his 
 position, in this respect, did not differ from that of European 
 thinkers generally since the time of the Eeformation. The 
 single doctrine of " Les carrieres ouvertes," sums up not only 
 
 ^ ii. c. xvii. and xviii. 
 
 " Grotius' claim to be the discoYerer of tlie inductive method in jmisprudence 
 is on a par with that of Bacon to be the discoverer of the inductive method itself. 
 As to the latter, see Sir David Brewster's opinion, stated in a letter so early as 
 1824 — Life, p. 128, ct scq. — and afterwards repeated in his Life of Xewton. ■ 
 
 ^ Infra, cap. ix. 
 
134 INQUIHY INTO THE HISTORY OF OPINION 
 
 all the truth of the Eevolution, but all the novelty of the Eefor- 
 mation. 
 
 Nature, since the Eeformation, in Protestant countries at all 
 events, has hidden her face from no one. In all directions the 
 artificial barriers to inquiry were then broken down. All reapers 
 were welcomed to the harvest of science. Each man was 
 not only permitted to think and labour for himself, but was 
 called upon to think and labour for all, each according to the 
 measure of his powers. But the field on which they were to 
 labour was the old field of nature, and the tools they were to 
 use were the old tools of natural reason. The field was wide 
 enough for all, and no one was so weak that he might not pick 
 up a straw, or break a clod. But the mischief was, that, as all 
 rushed in indiscriminately, the new-comers impeded the w^ork 
 nearly as much as they forwarded it ; and modern cultivation, in 
 politics and jurisprudence more especially, has consequently re- 
 sembled the heaving to and fro of a mob, rather than the onward 
 march of a disciplined army. In politics the autonomy of all 
 has been proclaimed ; but its realization has been hindered by 
 the claim for the equal autonomy of each, and a fact which the 
 history of antiquity might well have taught, and which ancient 
 precept had abundantly inculcated,^ is even now being learned 
 over again by bitter experience, the fact, I mean that the unfet- 
 tered activity of all is rendered possible only by the recognition 
 of the natural distribution of gifts and powers. ISTor did theo- 
 logy differ in this respect from secular science. Luther dis- 
 covered no new highway to truth. His appeal was not from 
 dogmatism to reason, for all revealed religion must be dogmatic, 
 
 ^ Livy, i. cap. xlii. § 4. 
 
WITH REFERENCE TO HUMAN AUTONOMY. 135 
 
 and reason is its only possible interpreter. But lie appealed 
 from the dogma of the Church to the dogma of Scripture, and 
 from the reason of churchmen to the reason of all men. The 
 barrier between the Church and the laity was removed. The* 
 Bible was thrown open to aU. All were called to read ; and if 
 the layman read deeper than the churchman, his reading was 
 not, professedly at least, rejected by the Church. God was thus 
 called upon, as it were, to select His own interpreters. But 
 even those who were thus consecrated were rarely set aside to 
 the work, ^^'llen the monasteries were destroyed, and the vast 
 provision which our ancestors had made for the support of the 
 spiritual life of the community w^as in a great measure diverted 
 to other purposes, the only order in the Church which may be 
 said to have been retained, and even reinforced, was that of 
 Predicant Briars. But the activity of the preaching clergy in 
 the disseminating of knowledge almost excluded them from 
 its cultivation. Out of the Universities, the pursuit of theo- 
 logical truth was everybody's business alike, and what is every- 
 body's business is nobody's business. The loss of the common 
 language of the learned, moreover, was very inadequately com- 
 pensated by translations, so that even in the countries which 
 adopted the doctrines of the Pieformation in common, the 
 theological teaching of the Churches had to rely mainly on 
 national resources. From these and other causes, there is reason 
 to doubt whether the Church of the Eeformation, as a whole, 
 has maintained the position which naturally belongs to what is 
 the spiritualizing institution, excellence, in all well ordered 
 communities. At the very outset, in asserting the position of 
 faith, as opposed to works, it exhibited a tendency to forget the 
 
136 
 
 INQUIKY INTO THE HISTOEY OF OPINION, ETC. 
 
 fundamental identity of grace and nature. But, begotten of 
 opposition, tliis tendency disappeared with the occasion which 
 had called it forth, and the minds of men, such as Luther 
 •and Melanchthon, were ultimately reconciled to the philo- 
 sophy which for a time they had repudiated.^ With such 
 partial and temporary exceptions, ultimate accordance between 
 the dicta of nature and those of revelation have either been 
 taken for granted, or stoutly asserted when called in ques- 
 tion, from the days of Wickliff^ downwards, by all but the 
 narrowest sects. A theological basis for ethics and juris- 
 prudence has thus been maintained. Practically, of course, 
 it is impossible to deny that clerical teaching has too often 
 been confined within the limits which each particular sect 
 assigned to the word, and Protestant has merely changed places 
 with Catholic dogma. That it has failed to occupy, with 
 greater security, a position which is essentially untenable, is 
 proved by the prevalence of exaggerated naturalism in most 
 of the modern schools of secular thought. The " casting vote"^ 
 has been given to reason, where no casting vote ought to have 
 been called for ; and a heathen character has thus been imparted 
 to secular science, from which it must be our effort to deliver it, 
 without permitting its free development to be fettered by any 
 final dogma whatever, either theological or philosophical. 
 
 1 Melanclitlion was tlie author of several treatises on ethics, and not only- 
 asserted the indispensability of philosophy as an auxiliary to theology, but recom- 
 mended especially that of Aristotle, without confining his praise to his logic, 
 whilst, in the sphere of practical activity, Bunsen has stated, as the fourth of the 
 five propositions in which he sums up the distinctive characteristics of Protestant- 
 ism, that ' ' there is no difference between spiritual or religious acts (so called 
 'good works') and secular acts." — Vol. iii. p. 200. 
 
 2 Neander, ix, p. 238. _ 3 Tenneman, 282. 
 
HUMAX XATUEE EEYEALS ITS DIPOTEXCE. 137 
 
 CHAPTEE Y. 
 
 HOIAX XATUEE EETEALS ITS OAA'X I^IPOTEXCE. 
 
 Feom the earnestness ^\itli wliicli, in last chapter, I insisted on 
 the fundamental identity of heathen and Christian anthropo- 
 logical beliefs, the reader may possibly be disposed to ask me 
 why it was, if the theory of antique life was not at fault, that 
 the practical life of antiquity, wliich was, or ought to have been, 
 a realization of that theory, broke down. I\Iy reply shall be 
 comprised in a single sentence — The want was not the want of 
 knowledge, but the want of faith, and of the strength " to remove 
 mountains " which faith communicpdes. The law was not un- 
 known, but it was "weak through the flesh; and thus the 
 presence of the Di^une was recognized rather than realized. 
 
 " One is the race of gods and men, 
 And from one motlier are we both descended: 
 But for the power — there the main difference lies."^ 
 
 Apart from the doctrine of faith as the source of power, we 
 have difficulty in pointing to a doctrine that is exclusively 
 Christian.^ And yet that doctrine, or rather the fact of which 
 the doctrine is the recoomition, did not orio-inate with Chris- 
 tianity, but, on the contrary, as has been grandly said, it is 
 
 Matt. xvii. 20 ; 1 Cor. xiii. 2 ; Eom. viii. 3. Angnstin, Retradationes, i. i. 
 Tliis point has been excellently brought out by Professor Seeley, Ecce Homo, 
 pp. 90, 175, 179, &c. 
 2 Gary's Pindar Nem. xi. 
 
 ^ ""What is now called the Christian religion," says St. Augustin, "has 
 existed among the ancients, and was not absent from the beginning of the human 
 race, until Christ came in the flesh, from which time true religion, which existed 
 abeady, began to be called Christian. " Ut mp. i. 13. Max Muller's Chijjs, pref. xi. 
 
138 HUMAN NATURE EEVEALS ITS OWN IMPOTENCE. 
 
 an eternal reality, an actual existence in tlie spiritual world, 
 as real as the physical forces revealed by Galileo or Newton; 
 and which we have natural faculties capable of discerning, 
 when revealed to us, in the same way as we have faculties 
 capable of apprehending physical realities." ^ We can recog- 
 nize its necessity when found, but we could not find it ; and 
 it is in revealing it that Christianity, of which it is the centre, 
 differs from heathenism. The imperfection of man's actual 
 life was as well known, and almost as deeply deplored in the 
 heathen as in the Christian world. The freedom of the will, 
 and consequent voluntary character of transgression, the justice 
 of God, and the inseparable relation between guilt and misery, 
 were all clearly recognized and freely acknowledged. Confession 
 is an exercise which has been familiar to the pious of all ages ; 
 and supplication, as has often been pointed out, has always been 
 the special characteristic of humanity. " Seul entre tons les 
 etres ici-bas I'homme prie." ^ Both confession and prayer con- 
 stitute important elements in the religious literature which the 
 later Stoics, more especially, have transmitted to us. Even the 
 error of believing in the perfectibility of humanity, in the possi- 
 bility of the realization of the human ideal by human effort, 
 with which the Stoics were so deeply chargeable, was an aber- 
 ration from the central creed of our race; for to the extent 
 not only of recognizing the need, but of cherishing the hope 
 of aid from above, there can be no question of the accuracy 
 of Tertullian's assertion that the soul is naturally Christian.^ 
 
 1 Ersl^ine's The Sinritual Order, p. 92. 
 
 2 Guizot, VEglise et la Socute Chretiennes, p. 22. 
 
 3 A]}ologet. c. 17. Neander, i. p. 246. 
 
HOLIX XATUEE EEYEALS ITS OWX DIPOTEXCE. 
 
 139 
 
 All of us, I am sure, will remember Horace's charming ocle^ 
 to a country maiden, beginning — 
 
 " Ccelo supiuas si tuleris maniis, 
 iSTascente Luna, riistica Phidyle ; " 
 
 and to some of us M. Guizot's remark will occur — " C'est sur 
 une foi naturelle au suruaturel, sur un instinct inne du sur- 
 natm^el, que toute religion se fonde."- 
 
 " As under the (Mosaic) Law," says Xeander, man's sense 
 of its insufficiency to work out bis justification was accom- 
 panied by the promise of One who should accomplish what 
 the law could never do, so, in the progress of the pagan mind 
 uuder the law of nature, there arose a sense of the necessity of 
 a new revelation from heaven, and a longing desire for a higher 
 order of things. The notion of a Messiah, carried about by the 
 Jews in their intercourse with different nations, everpvhere 
 found a point of contact with the religious sense of men, and 
 thus natural and revealed reliuion worked into each other, as 
 well as separately, in preparing the way for the appearance of 
 Christ." 3 
 
 Scarcely in accordance with this, which is Meander's pre- 
 vailing view, is the passage ^ in which he seeks to confine 
 the idea of Christian humility to the Platonic system, on the 
 ground that the Avord ra-ea-o's, generaHy used in a bad sense, is 
 to be met Avith in Plato and the Platonists as the designation of 
 a pious, virtuous temper ; or that ^ in which he attacks Thomas 
 Aquinas for adopting Aristotle's doctrine of the /^eyaAoc^vXta, 
 vdiich Xeander declares to " belong wholly to heathen morality, 
 
 ^ Lib. iii. car. 23. 2 G^^^ot, ut sup. p. 20. 
 
 3 Meander's Life of CJirist, p. 28. 
 
 ^ i. 26. 5 viii. p. 242. 
 
140 HUMAN NATUEE EEVEALS ITS OWN IMPOTENCE. 
 
 and to be necessarily connected with tlie etliical self-sufficiency, 
 the self-feeling of antiquity."^ Now, so far from being peculiar 
 to Platonism, I believe there is no system whatever, either of 
 ethics or religion, which ever obtained general acceptance with 
 mankind, in which the so-called Christian principle of humility 
 does not appear ; and we know at any rate that in Buddhism, 
 the most prevalent of them all, it holds a prominent place. I 
 confess to you, then, that I agree with Thomas Aquinas in 
 thinking that the genuine and normal opinion of antiquity, 
 whether as exhibited in the doctrine referred to, or in the cen- 
 tral doctrine of the Socratic ethics, did not exclude the idea of 
 Christian humility or any other Christian doctrine whatever. 
 
 Abstractly, doctrinally considered, then, there is no reason to 
 impugn the completeness of nature's teaching. There is no 
 gap in the premises which consciousness and observation place 
 within the reach of reason. A man like Cicero might, logic- 
 ally, have developed a rule of human relations identical with 
 that of Christianity, and he did, in fact, come very close on such 
 a rule. 
 
 But the light which nature sheds on the phenomena of the 
 will, though not deceptive, is flickering and intermittent ; and 
 
 ^ A clerical friend has kindly furnished me with the following valuable remarks. 
 " There is a right self-assertion which is nowise contrary to sound morality or to 
 Christianity. St. Paul is humble in his religious attitude towards God and man ; 
 but his humility does not stand in the way of a most decided self-assertion in the 
 presence of Agrippa, of Felix, and above all towards the magistrates of Philippi, 
 who had dared to wrong a Koman citizen, and then wanted to hush up the matter 
 without apology (Acts xvi. 37 ; cf, 2 Cor. x, 8). And perhaps those are right who 
 see a kind of self-assertion in the dignified refusal of Christ to plead before a court 
 unable to appreciate His position and claims (Matt, xxvii, 14)." See also Matt. 
 V. 16, and Sir A. Grant's excellent note on Aristot. Mhic, iv. iii. 35-37, vol. ii. 
 p. 78. 
 
HUMAN NATUEE IIE\^ALS ITS OWN II\IPOTENCE. 
 
 141 
 
 either tlie fact of its freedom, or the fact of its feebleness, 
 almost always vanishes from the sphere of mere human vision. 
 The former has been the error of most Asiatics, whose tendency 
 is to lapse into fatalism. The latter was that of the energetic 
 and self-confident nations of classical antiquity. The Stoics, it 
 is true, were the Pharisees of natural religion, as Josephus, who 
 was himself a Pharisee, said of them. But as the Pharisees 
 were exaggerated rather than exceptional Jews, so the Stoics 
 were exaggerated rather than exceptional Gentiles. The pride 
 which peeped through the holes in their mantles was the besetting 
 sin of antiquity as a whole. The belief that, being avT6voiJ.os, 
 man must also be avrapKi^s, rested on a partial reception of the 
 teaching of consciousness, and a consequent failure to recognize 
 the contradictory principles which, however mysterious their 
 union may be, consciousness does unquestionably reveal Such 
 a violation of the law of integrity Avill be more or less exhibited 
 in proportion to the extent to which men have departed from 
 or adhered to the central creed of the race. The notion of 
 avrapKeta (self-sulficiency), so prominent in Aristotle, is less 
 conspicuous in Plato ; and in the teaching of their great master 
 it probably appeared in a still more qualified shape. But it 
 corresponds to the fallen side of humanity. ISTo system of mere 
 human ethics has ever proved an adequate safeguard against it, 
 which has not speedily degenerated into the opposite error. 
 Though Stoics and Epicureans had never rent humanity in 
 twain, there is no reason to believe that Socratism would have 
 succeeded in preserving the balance between the deification of 
 the will which dishonours God, and the fatalistic distrust of it 
 which dishonours His creature. Even within the pale of the 
 
142 HOW MAN BECOMES COGNIZANT OF THE RULE OF LIFE. 
 
 Christian Cliurcli, one or other of these tendencies has been at 
 the root of almost every heresy that has arisen ; and it may now, 
 I think, be laid down as a dictum of experience, that they 
 represent the two directions in which the anthropology of un- 
 aided reason tends to conflict with that of revelation, and in so 
 doing, to diverge from the actual teaching of nature. In assert- 
 ing: that " man is a law unto himself," the revelation through 
 nature and the revelation to nature are at one; but it is the 
 latter alone which consistently couples this fact with the asse- 
 veration, that " strength belongeth unto God." ^ It was only by 
 the reunion of the human to the divine, by means of the incar- 
 nation of Christ, and the continued communication of His 
 grace, that humanity could be potentiated to receive the law 
 which it had never ceased to proclaim. 
 
 But here it is, too, that anthropology passes into theology: 
 that ethics and jurisprudence, sensible of their own insufh- 
 ciency, take refuge in religion: and that academic students 
 and teachers touch the boundary line which divides the Faculty 
 of Law from the Faculty of Divinity. 
 
 CHAPTEK VI. 
 
 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 Having seen reason to conclude that, in the absence of super- 
 natural revelation, mankind acknowledges, and always has ac- 
 knowledged, the presence of an internal rule of life, our next 
 
 1 Ps. Lxii. 11. 
 
HOW ^lAX BECOMES COGXIZAXT OF THE EULE OF LIFE. 143 
 
 investigation must have reference to tlie manner in which he 
 becomes cognizant of this rule. 
 
 {a) The rule of life is prescribed by our whole nature, and, 
 consequently, in accepting the maxim, " follow nature," vre 
 employ the word nature, not in a higher and different, but in 
 a wholer and more perfect sense than is popularly attached 
 to it. 
 
 The second of the three rules which Sir William Hamilton 
 has given us^ for verifying the apparent dicta of our nature, 
 yiz., that " the whole facts of consciousness must be taken 
 without reserve or hesitation," is that the forgetfulness of which 
 lias, perhaps, most gravely invalidated both the theories and 
 the practice of men.^ As regards the matter in hand, at all 
 events, you will find that the distinction between what is true 
 or false in anthropology turns, almost invariably, on whether 
 or not this " law of integrity " has been obeyed. On such 
 a subject total error is scarcely possible for- any one Avho 
 retains the instincts of a man, and, accordingly, there is no 
 anthropological system, of any importance, vdiich does not 
 rest on a modicum of truth. But, on the other hand, from 
 the extent to Avhich opinion is influenced by temperament and 
 genius, both national and individual, there is no subject on 
 which exaggeration and consec|uent one-sidedness have been 
 so conspicuously exhibited. It was by failing to accept the 
 teaching of nature in her integrity that the Cynics and the 
 
 Metaphysics, vol, i. p. 268. 
 
 ^ It lias always appeared to me tliat one of the most useful directions in which 
 concrete logic could be prosecuted would be in the construction of a science of 
 aberrations. Aristotle has laid the foundation of this, as of so many other in- 
 quiries, m his doctrines of the irapeK^daeLs. Politic, lib. iv, c. ii. 
 
144 HOW MAN BECOMES COGNIZANT OF THE EULE OE LIFE. 
 
 Stoics ^ fell away from the Socratic ethics in the one direction, 
 and the Cyrenaics and Epicureans in the other, till the one 
 sect almost forgot that they had bodies, and the other that 
 they had souls. Their respective merits, it is true, were very 
 different, for the one obeyed an elevating and saving, and 
 tlie other a degrading and destroying tendency. But their 
 errors, if not equally perilous in their practical, were equally 
 extravagant in their theoretical results; for whilst Epicurean- 
 ism, like modern Sensationalism, ended in denying the existence 
 of any absolute criterion of conduct, and thus proclaiming the 
 impossibility of ethics altogether. Stoicism ended in a rule of 
 life, the realization of which was impossible, and which, if real- 
 ized, would have been fitter for Prometheus on the rock, or 
 Milton's Satan, than for beings whom God had created to obey 
 in order that they might enjoy. The phenomenon which these 
 divergent sects exhibited, in a manner so prominent as to render 
 them the typical instances of it to after ages, is one which his- 
 tory has repeated in endless phases, and which our own life is 
 continually reproducing. In heathen times it was only when 
 so wonderfully complete a manifestation of humanity as Socrates 
 appeared, that men were recalled for a time to a sense of the 
 harmonious character of nature as a whole, and that a stride 
 was made directly upwards, which crowded more history into a 
 single lifetime than many ordinary generations exhibit. Under 
 Christian influences, progress, on the whole, has been less inter- 
 mittent, because, apart altogether from its supernatural action 
 on the will, one of the effects of Christianity has been to keep 
 the harmonious character of nature, and, as a consequence, the 
 
 ^ Ante^ cap. iv. 
 
HOW MAX BECOMES COCtXIZAXT OF THE EULE OE LIEE. 145 
 
 organic character of society, more steadily iDefore tlie eyes of men. 
 It is iu its sanity ratlier than its novelty tliat the ethical teaching 
 of Christianity surpasses that of the Socratic school. But Christi- 
 anity itseKis one thing, and Christianity as interpreted by httman 
 teachers is C[itite another thing: and we have had many anthropo- 
 logical doctrines in Christian times which were not Christian. 
 
 (h) Conscience is not a separate factilty: but the phase in 
 which our whole normal nature appears, when manifesting itseli 
 ethically. It ma}' be briefly defined as moral-consciousness. 
 
 The most recent example of the class of errors which springs 
 oitt of a violation of the law of integrity^ consists in representing 
 ottr knowledge of right and wrong as imparted to us by an ex- 
 ceptional organ, which is so far from being in harmony with our 
 other faculties and senses, that its very object is to condemn the 
 impitlses of our general nature. As Scotland is still," probably, the 
 headL[uarters of this ethical heresy, which she had much influence 
 in originating, it seems desirable that we shoudd consider it in 
 somewhat greater detail than is consistent with the general scheme 
 of this Avork. It is generally supposed that the device of thus 
 accotinting for our moral emotions belongs altogether to modern 
 times, and the discovery of the moral sense is ascribed to Lord 
 Shaftesbury, whilst our own Hutcheson'^ gets credit for having 
 developed the theory of its action. Bttt this statement, though 
 
 1 Hamilton, Meta/ph. i. 268. 
 
 - I am glad to know that the doctiine of conscience is not taught, in tliis sense, 
 V the present learned occupant of the Chair of floral Philosophy in Edinburgh. 
 1 lielieye it now chiefly finds utterance in the Pulpit, 
 
 ^ Hutcheson, Eeid, and Stewart held the same opinion with reference to 
 intellectual as to moral consciousness : and consequently the whole of the dis- 
 cussion in Lectiu-es XI. and XII. of Hamilton's JfitajyJiyaics (vol. i. p. 1S2, ef seq.), 
 is applicable to the subject of this Chapter. 
 
146 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 true in the main, is not altogether true. I do not attach much 
 importance to the fact pointed out by Professor Trendelenburg,^ that 
 the word conscience (conscientia, a-vvecS-qa-Ls), even when taken to 
 indicate the ethical information which our nature conveys to us 
 with reference to itself — what we may call its ethical self-revela- 
 tion — is not to be found in Greek philosophy before the time of the 
 Stoics, and scarcely anywhere in Scripture except in the Epistles 
 of St. Paul That fact, as it seems to me, amounts merely to this, 
 that the language of philosophy, and language itself through 
 philosophy were enriched as time went on, and as thinking be- 
 came more definite and precise. It does not indicate any change 
 of opinion with reference either to human nature or the methods 
 of its revelation, and this indeed is very much Professor Tren- 
 delenburg's own view.2 But it is important to remark that the 
 sense attached to the word, when it did come into technical 
 use, whether by the later representatives of the Socratic school 
 of ethics, or by the orthodox Christian Church, was not that of 
 a separate faculty, still less of a sense, resembling, in any degree 
 however remote, our physical senses. Conscience, as they under- 
 stood it, was not a part of our nature sitting in judgment on the 
 rest of our nature, and condemning it ; but the phase in which our 
 whole normal nature appears when manifesting itself ethically. 
 
 The common statement then is correct, in so far as it affirms, 
 merely, that Lord Shaftesbury's theory had not been anticipated 
 by St. Paul and the Stoics, nor yet by such writers as Cicero,^ 
 
 ^ NaturrecJit, p. 53. ^ AhJiandlungcn, vol. iii. p. 199. 
 
 ^ E.g., " Conscientia convictus, repente constituit {In Cat. 3-5), magna vis est 
 conscientiffi" {ijro Mil. 23), &c. As a popular word avveLd-qcns, as Professor 
 Blackie has pointed out, is "as old as Periander and Bias." {Four Phases of 
 Morals, p. 366.) As to tlie period of its introduction into philosophy, see 
 Hamilton's Metaph. vol. i. p. 197. 
 
HOW MAX BECOMES COGXIZAXT OF THE EULE OF LIFE. 147 
 
 who uses tlie word "conscience" in the sense which has always 
 been attached to it in popular speech — the sense, viz., of ethical 
 reflection — a sense to which Bishop Butler adhered, and which 
 is far more in accordance with the ancient theory than with the 
 modern one. But the moralists of the eighteenth century had a 
 predecessor of another class whom they would have been less 
 willing to acknowledge. The existence of an exceptional moral 
 faculty, or moral sense, was a doctrine of our countryman, if such 
 he was, the heretic Pelagius, in the fifth century; a doctrine Avhicli 
 he opposed to the orthodox teaching of the Church as represented 
 by Augustin. In obedience to this hypothesis Pelagius denied 
 not only the Socratic doctrine of the fundamental rectitude of 
 humanity, which the Church held, iDut the especially, though 
 not exceptionally, Christian doctrine of the Fall; for it was 
 unnecessary to assume that a nature had fallen which was 
 originally imperfect. It is an instructive instance of the manner 
 in which every error involves all error, as every truth involves 
 all truth, that a denial of the original rectitude of humanity 
 should, by leading to the denial of sin, have developed itself 
 into a theory of the perfectibility of human nature by its own 
 efforts, and thence to the denial of the necessity of divine 
 grace ! Yet such appears to have been the outcome of Pelagius' 
 speculations, and still more explicitly of those of his friend and 
 disciple Coslestius.-^ AYith this curious glimpse into the experi- 
 ence of the fifth century to guide us, let us see how the doctrine 
 of the moral sense orimnated, and what have been the conse- 
 quences that have resulted to our own and other branches of 
 science from its adoption, in our own age. 
 
 1 Neauder, iv. 229, 309. 
 
148 HOW MAN BECOMES COGNIZANT OF THE KULE OF LIFE. 
 
 In SliaftesbiTiy's mind it arose as a protest against tlie moral 
 scepticism which had resulted from Locke's rejection of the theory 
 of innate ideas. If sensation and reflection on sensible phenomena 
 were the only sources of our knowledge, the existence of a 
 moral sense, or organ of direct moral cognition, seemed necessary 
 to enable our nature to prescribe rules for its guidance. 
 The merit of the hypothesis consisted in placing in an intel- 
 ligible light, not necessarily inconsistent either with the meta- 
 physics or theology of the time, the assertion that man could 
 distinguish right from wrong, without denying the sinfulness of 
 his human nature, which its authors conceived themselves 
 bound to admit. They revolted from the moral scepticism of 
 the age, but they were not bold enough to break loose from 
 the narrow and erroneous interpretation of Christianity out of 
 which, in conjunction Avith the metaphysics of Locke, this 
 scepticism had sprung. Their theological guides dwelt on the 
 too obvious fact that the heart of man is " deceitful above all 
 things, and desperately wicked,"^ and applied the dictum to 
 the original and fundamental conception of humanity : their 
 philosophical guides assured them, not without reason, that if 
 this was so, man as man could not distinguish right from 
 wrong, and that natural ethics and jurisprudence, in any other 
 sense than mere empiricism, w^ere impossible. They w^ere 
 resolved to escape the conclusion, but they feared to touch 
 either of the propositions on which it rested ; and they 
 attempted to evade the dilemma in which they found them- 
 selves by the assumption of a natural faculty opposed to nature. 
 But the remedy was still an ineffectual one ; for, as their oppon- 
 
 ^ Jer. xvii. 9. 
 
HOW MAX BECOMES COGXIZAXT OF THE EULE OF LIFE. 149 
 
 ents were not slow to urge, the moral sense was still but a part 
 of a nature fundamentally corrupt ; and if tlie fact of its approA^al 
 or disapproval was the criterion of right and wrong, moral distinc- 
 tions, if not arbitrary, were relatiA'e to the individual, and there was 
 still no absolute rule of life. In order to escape from this con- 
 sequence, it was necessary that conscience should be made, not 
 a legislator, but a judge — not a lawgiver, but an interpreter of 
 an absolute objective law; and accordingly it was declared to 
 be the A^oice, not of humanity either normal or abnormal — not 
 God's A^oice in nature — but God's commands to nature, — each 
 separate dictum thus becoming a direct revelation. By this 
 means the absolute character of moral distinctions was saved ; 
 but it was saved at the expense of presenting a wholly erro- 
 neous conception not only of human nature, but of the DiAdne 
 nature itself. For whose Avork, in this case, was our general 
 nature, and whose voice spoke in its normal impulse ? AYas 
 God's A^oice raised only to condemn His OAAm AA^ork, or Avas the 
 whole nature of man, with the single exception of one alien 
 faculty by AAdiich it Avas judged and condemned, the Avork of 
 the devd ? Here surely was Manicha^ism, or dualism, at the 
 very least of it. AAQien stated thus broadly, it is plain enough 
 that such a conception of humanity is at A^ariance with 
 aU reliction, both natural and revealed, and conflicts most fla- 
 grantly with our daily experience of God's nature and govern- 
 ment ; and yet it is gri caucus to think that Ave should, all of us, 
 have heard it preached so often. 
 
 Then how was the moral progTCSS, or retrogression, Avhich Avas 
 visible both in indiAuduals and in communities, to be accounted 
 for, and AAdiat has ahvays been one of the strongest arguments 
 
150 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 of utilitarianism to be met, if tlie presence of such an infallible 
 oracle was inseparable from the possession of a human soul ? 
 No advance in intelligence could render more audible a voice 
 which all must hear, or make clearer commands which none 
 could misunderstand. Knowledge and virtue were thus dis- 
 severed, and the study of nature, in any other direction than 
 physics, even if possible, was needless. In order to know his duty, 
 man had only to listen, and the " reverential study of social and 
 political science," which, we are told, the Buddhists regard as 
 " the highest religious duty," ^ was henceforth to be abandoned 
 by Christian nations. The Empirics were thus left in undis- 
 puted possession of the field of science by those who professed 
 to be their stoutest opponents. It is true that those who reject 
 the theory of a special moral faculty do not always refrain from 
 laying upon consciousness, as a whole, the unnecessary burden 
 of revealing a ready-made moral law. Kant was no believer in 
 " an innate sense or guardian nature which whispers into our 
 ear," 2 and yet he held the moral law, as such, in its completed 
 form, to be revealed to us as a jjractical law d priori. " If the 
 question be put, .... how do we arrive at the consciousness of 
 the moral law ? The ansAver is the same as in the case of any 
 other proposition d priori, that we are conscious of a practical 
 law d piriori, as we are conscious of theoretical ones, by attending 
 to the necessity with which reason obtrudes them on the mind."^ 
 Again, " our consciousness of this fundamental law is an ulti- 
 mate fact of reason, for it issues from no preceding data, e.g., the 
 consciousness of freedom, hut is thrust iqjon the mind directly, as 
 
 1 Alabaster, The TV/ieel of the Law, p. 22. 
 
 2 Semple's transl. of tlie Meta])h. of Ethics, p. 41. See also pp. 39, 92, 112, &c. 
 
 3 Ih. p. 101. 
 
HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 151 
 
 a synthetic a priori loroioosition, and is bottomed on no intui- 
 tion whatever, whether a jpriori, or a ]jostcriori. . . . Vfiien it 
 is said that this law is given, I beg it may be understood that it 
 is not known by observation and experience, but that it is the 
 single isolated fact of practical reason, announcing itself as 
 originally legislative — sic volo, sic juheo."^ Kant's objection to 
 utility, as the test of morality, is the weU founded one that it 
 requires extended experience and acquaintance with the world, 
 and thus assumes the knowledge which it professes to com- 
 municate. I^Tow, the very same objection, as it seems to me, 
 applies to the assumption of a ready-made moral law. The law 
 which Kant asserts to be thus revealed, as you are no doubt 
 aware, is his famous categorical imperative," or fundamental 
 moral law of reason : " So act that thy maxims of will might 
 become law in a system of universal moral legislation."^ I can- 
 not but think that this law contains a great deal not only of 
 reason, but of reasoning and observation, that it is far too com- 
 plicated a matter for consciousness to reveal by any single act, 
 and, with all due deference for so great an authority, that, in enun- 
 ciatino^ it, Kant sinned aQ;ainst Sir William Hamilton's " law 
 of parsimony" as egregiously as the Scottish moralists in general 
 have sinned against his " law of integrity." How, for example, 
 is any one to know, with reference to a particular act, that it 
 is " fit for law universal," any more than that it is useful or ex- 
 pedient ? Is not the question at issue this very " law universal," 
 the knowledge of which Kant does not explain, but gratuitously, 
 needlessly, assumes, just as the utilitarian assumes our know- 
 ledge of what is expedient or useful ? 
 
 1 lb. p. 103. 2 102. 
 
152 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 The only hypothesis, then, which appears to explain our know- 
 ledge of the absolute law without running us into anthropo- 
 logical-dualism appears to be that which identifies conscience 
 with the dicta of our general and normal nature as a whole, as 
 opposed to our special and exceptional impulses, and which 
 looks for the moral law, the rule of life, as a gradual manifesta- 
 tion and recognition of this nature, to and by itself. The mani- 
 festation, I say, will be gradual as well as the recognition, by 
 which I mean that that which is manifested will become more 
 definite in its outline at every step, as our moral stature ad- 
 vances, for the more perfect the man is the more perfect will 
 be the type of humanity which he manifests to himself, and the 
 consequent test of the quality of actions with which his nature 
 supplies him} Such I believe to be the ethical creed at which 
 most men who are capable of forming one at all are arriving, 
 and it is highly noteworthy that the moral consciousness of the 
 modern world, in this as in so many other instances, seems fast 
 tending to identify itself with what was, at bottom, the prevail- 
 ing consciousness of humanity, even in heathen times. In order 
 that you may see how complete this identification in some cases 
 has become, let me first refer you to a passage in Trendelen- 
 burg's N'atural Law,^ in which he has stated the characteristics 
 and functions of conscience as he understands them. " The 
 appetites and desires, confined and limited, are separate and 
 particu.lar sides of human nature, of the human being regarded 
 as a whole ; and an evil conscience consists in the reflex action 
 of the whole man against a part which has attempted to assert 
 
 ^ As to the study of savages, vide ante, p. 49. 
 ^ Naturrecht, p. 56, et seq. 
 
HOW MAN" BECOMES COGXIZAXT OF THE EULE OF LIFE. 153 
 
 an iniclivided supremacy — an action wliicli exhibits itself in the 
 form of remonstrances, accompanied with certain painful and 
 pleasurable emotions. The phenomenon of a good conscience 
 is still more readily intelligible. It is the assent of the whole 
 man to the action of a part which has remained in harmony 
 with his o'eneral nature. AYhat is called a warnino^ conscience 
 
 O O 
 
 still rests on the same ground. It consists in remonstrances 
 which, arising out of the whole man, forbid the promptings of 
 the self-asserting part before they have vindicated their supre- 
 macy by action. In this view conscience consists in the action 
 and retro-action of the whole man against the parts, by means 
 of remonstrances with their attendant feelings, and as such the 
 conscience is the power which ratifies the decrees of the will. 
 Moreover, as the whole man is founded in the idea of humanity, 
 and this idea orio-inates with God, the feelinos of conscience 
 necessarily remount in their own proper train, to the relation 
 with the divine. In this sense conscience is the voice of God 
 within us, which, deeply seated in the recesses of our nature, 
 and uncorrupted, seeks honour from God and not from man. 
 In conscience man rests upon himself and his God. It is he 
 who thinks, it is he who feels ; but what he thinks, and what he 
 feels, he thinks not as the dictate of his discretion, he feels not 
 as his liking, but as what, for the will, is a matter of necessity. 
 It is for this reason that man perceives in conscience the deepest 
 unity of his nature, and that where conscience is not recognized 
 he becomes a mere machine." " Language," he continues, " has 
 striking pictures by which to characterize those acts of self- 
 judgment which terminate in profound emotions. She speaks 
 of the conscience being stunned and benumbed ; thereby indi- 
 
154 HOW MAN BECOMES COGNIZANT OF THE RULE OF LIFE. 
 
 eating tliat condition in v/liicli either tlie old desires and pas- 
 sions, or some new-born desire or passion, lias so absorbed the 
 whole man as to prevent any association of ideas from an 
 opposite point, any thought which represents the whole man 
 from coming to light, or from gaining the ascendency. A sleep- 
 ing conscience, again, is opposed to a waking conscience, the 
 former exhibiting very nearly the phenomena just described, 
 wdiereas the latter indicates the condition in which, after peace 
 has been established, either the whole man, or another side of 
 the man from that which dominated him before, comes into 
 action, and vindicates the ascendency of his better impulses." 
 
 In the sentences which conclude this remarkable passage,^ 
 Professor Trendelenburg refers to a subject which I have just 
 indicated, and which, more or less explicitly, will occupy us 
 again and again. I mean the development of conscience, public 
 and private. For the present I shall translate his words without 
 comment, merely by way of breaking ground. 
 
 "When the rise of conscience is correctly stated," he says, 
 " in its natural connection and mental origin, it becomes evident 
 that it is no ready-made organ, with a definite and positive pur- 
 port, but that it developes itself in the midst of the relations of 
 life, and the experiences of the individual. Though the idea of 
 the whole man — the idea of humanity in the individual — wdiich 
 constitutes the last determining ground of conscience, is the same 
 always and in all, it depends upon a number of subjective cir- 
 cumstances which are ever changing in the inner life of the in- 
 dividual, to w^hat extent the whole man is active through means 
 
 ^ Very sad that we shall have no more passages from that pen. Ave, pia 
 aniina! January 1872. 
 
HOW MAN BECOMES COGXIZAXT OF THE EULE OF LIFE. 155 
 
 of conscience. By directing our attention to the manner in 
 wliicli conscience is developed, we become acquainted with the 
 means by which it may be awakened and sharpened, rectified, 
 deepened, called into action, and guarded, in order that it may 
 become a clear and pure divine voice. Of itself it is exposed to 
 individual distortion and dece]Dtion. Pride and vanity, inseparable 
 from the natural man, contribute largely to what is called a good 
 conscience ; and the fear of man is not unfrequently that which 
 presents itself in the form of an evil conscience. The constraint 
 and solicitation of the passions assume the character of ethical 
 necessity and freedom. For these reasons the judgments which 
 * we form of our individual actions deserve the name of dicta of 
 conscience only in so far as they arise from a frame of mind 
 which is elevated above selfish considerations into the region of 
 the good." 
 
 The other expression of opinion to which I wish to call 
 attention, though less developed, points clearly in the same 
 direction. Sir Alexander Grant, in the second Essay pre- 
 fixed to his Aristotle, says : — " The very word ' conscience/ on 
 which right so much depends, is only another term to express 
 ' consciousness,' and a man differs from a machine in this, that the 
 one has a law in itself, — is moved, as Aristotle would say, Kara 
 Aoyov, the other is moved /xera Xoyov, has the law both in, and for, 
 himself." 1 
 
 My special reason for insisting that conscience is the reve- 
 lation of our whole nature, and not of a special faculty, 
 will be apparent to you when you come to see that it 
 is this view of the indivisibility of our moral nature which 
 
 1 Vol. i. p. 49. 
 
156 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 warrants our repudiation of the distinction between perfect and 
 imperfect obligations, and furnishes the foundation for the posi- 
 tive, or what has been called by its German expositors, the 
 " harmonious " system of jurisprudence.^ But in connection 
 with the historical considerations recently submitted to you, it 
 is important to remark that, in the fact that it is to our whole 
 nature that we appeal for the rule of life, we have the answer to 
 the polemic, — not against the peculiarities of Stoicism indeed, 
 which, when Stoicism is taken in its separate and special aspect, 
 I regard as unanswerable, — but against the maxim "follow 
 nature," a polemic which Sir A. Grant has extended to it, even 
 as revived by Bishop Butler in his sermons on Human ITature. 
 
 Sir Alexander Grant speaks disparagingly of Butler. " Into 
 the difficulties of the question," he says, " Butler has not entered. 
 For instance, while he is perfectly successful in establishing against 
 the Hobbists the reality of the moral elements in man's nature, 
 he does not tell us whether or not he would agree with the Stoics 
 in ultimately giving the entire supremacy to a man's reason and 
 conscience, so as to supplant the other instincts, or at what point 
 he would stop." Had Sir Alexander Grant said that Bishop 
 Butler does not explain all the phenomena presented by the 
 action of the will — that he does not tell us why we do not 
 always will to act in accordance with the fundamental principles 
 of our nature, or why, when we do so will, or seem to ourselves 
 to will, our willing meets with insuperable internal impediments, 
 — he would have pointed out the direction in which Butler's, 
 like all other explanations, is inadequate. But as he puts the 
 objection, Butler's answer, I imagine, would have been plain 
 
 ^ Alirens, passiin. 
 
HOW MAX BECOMES COGXIZAXT OF THE EULE OF LIFE. 157 
 
 enougli. He would have told liiin tliat lie does not admit the 
 antithesis between " the other instincts," and " reason and con- 
 science that the supposition of the other instincts being ranged 
 on one side, and reason and conscience on the other side, is a 
 supposition not warranted by the phenomena which human 
 nature presents, or which, on the principles of optimism — on the 
 assumption of the rectitude of God Himself, — any nature created 
 by Him can present. Butler's view of the matter is substan- 
 tially in accordance with that Avhich I have above submitted. 
 Though he often speaks of " conscience or reflection " as a special 
 faculty, and assigns to it a pre-eminence over the others, his 
 whole argument is directed against the supposition that it is in 
 conflict with all, or indeed with any of tliem, when normally 
 manifested. He regards it rather as a certain harmony, balance, 
 or proportion, which, in their normal condition, they tend to pre- 
 serve amongst themselves, and the action of which we must 
 conceive rather as the result of their joint activity than as a force 
 opposed to them.^ That this harmony may be destroyed, Butler 
 is, of course, A^ery far from denying ; but Avlien this takes place 
 he ascribes it not to the action of our general nature against 
 conscience as an opposing force, but — in exact accordance with 
 the passages from Trendelenburg, and from Grant himself, to 
 Avhich I referred above — of one or more of the principles of 
 winch this nature is made up against the general principle which 
 animates it all. The whole objection of Sir Alexander Grant, 
 and of the very numerous class of reasoners who join with him, 
 good old Samuel Johnson included, consists, I think, in their 
 failure to recognise in nature the poAver of dictating to man any- 
 
 1 Ser. ii. p. 19 ; ser. iii. p. 24, ed. 1839. 
 
158 HOW MAN BECOMES COGNIZANT OF THE EULE OF LIFE. 
 
 tiling else than tlie pursuit of immediate pleasure, or the escape 
 from actual or visibly impending suffering. " Is the life of the 
 saints and martyrs," Sir Alexander asks, " to be called a life 
 according to nature ? If not, is it better or worse ? and if better 
 is not man to aim at the better ? . . . There is one mode of repre- 
 sentation which describes life as a progress, a conflict, a good 
 fight ; another which makes it the following of nature. On the 
 one hand, there is the spirit of aspiration and effort, the tendency 
 to asceticism, the victory of the will ; on the other hand, there are 
 the genial, kindly, human feelings, there is the wise passivity of 
 mind, there is the breadth of sympathy which counterbalances 
 an over-concentrated intensity of aim. To make the formula 
 * Live according to nature ' of any value we require to have these 
 conflicting tendencies harmonized with each other." I entirely 
 concur with Sir Alexander Grant when he says that the whole 
 question is one not of mere words, but implying the discussion 
 of a very important subject, — namely, the way in which life is to 
 be conceived, and, I would add, in which jurisprudence is to be 
 treated, not only as a science, but, in no small measure, as a 
 practical art. Here, then, let me sum up what I conceive to 
 be not only the Socratic, but the human, and as such the 
 Christian answer to the train of reasoning which Sir Alexander 
 Grant has pursued, — and an answer which, if I am not greatly 
 mistaken, would have had the concurrence of Bishop Butler. 
 " The spirit of aspiration and effort " is not opposed to the " genial, 
 kindly, human feelings," nor to the " breadth of sympathy " of 
 which he speaks. " The progress, the conflict, the good fight," is 
 an effort not by an external power to drive nature from her 
 course, or even to control her activity, but by nature herself. 
 
HOW MAX BECOMES COGXIZAXT OF THE EULE OF LIFE. 159 
 
 as reYealecl to us internally and externally, to yinclicate lier 
 supremacy oyer the denaturalizing influences, oyer the rebel- 
 lious subjects yuthin her own realm, which oppose her free 
 deyelopment and harmonious action. When the conflict is 
 peculiarly hard, when the external j)rinciple of disorder has 
 succeeded in ranging the animal and sensual against the rational 
 and spiritual propensities, and when nature herself, as a whole, 
 is in danger of being degraded from a human nature into some- 
 thing; y'orse than a brute nature, she calls — and in the case of 
 saints and martyrs calls not in yain — for aid from aboye. But it is 
 for aid, not for her destruction, but for her preseryation and sup- 
 port ; it is that she may become not less herself, but more herself, 
 in this her hour of trial ; and that, in her triumph, she may saye, 
 not the higher principles alone from degradation, but yery often 
 also the lower propensities, " the law in the members,"^ from self- 
 destruction by excess of present gratification. The yrhole effort 
 of the will, Avhen directed to the realization of the hioher life, is 
 an effort not against nature, but in faxour of nature,- in eyery 
 sense that can be attached to that word except the single, and, 
 exen if true, surely yery narrow sense of it in which it is taken 
 to mean the tendency to the unbridled indulgence of one or more 
 of our irrational appetites. " Man," says Kant, " is unholy 
 enough, but the humanity inhabiting his person (his proper 
 person) must be holy."^ 
 
 1 " Omnia ilia ad quje homo liabet naturalem inclinationem," says Thomas 
 Aquinas, " ratio naturaliter apprehendit ut bona, et per consequens ut opere per- 
 sequenda, et contraria eorum ut mala et vitanda." And again, " Omnes liujus- 
 modi inclinationes, quarumcumque partium naturae humanas (puta concupiscibilis 
 et irascibilis), secundum^quod regantur ratione, pertinent ad legem naturalem." 
 Prim. Sec. Quces. xciv. art 2. 
 
 ^ Butler, lit sujj. ser. ii. p. 19. ^ JldapJi. of Ethics, p. 137, Semple's trans. 
 
160 
 
 OF THE TEACHING OF NATURE 
 
 CHAPTEE VII. 
 
 OF THE TEACHING OF NATURE WITH REFERENCE TO HUMAN 
 RELATIONS. 
 
 We now enter on the tliird of tlie three branches into which, as 
 I mentioned at the commencement of Chapter III./ an inquiry 
 into the law of nature, or a treatise on the principles of law, 
 divides itself. 
 
 Having seen that the legislative character of our nature is 
 guaranteed to us, both by the dicta of subjective consciousness 
 and by the manifestations of objective consciousness in the 
 history of opinion, and having further, to a certain extent, exa- 
 mined the manner in which this revelation takes place, we must 
 now place ourselves in contact with objective existence, and 
 inquire whether the nature which we are thus to obey reveals 
 to us rights and duties as existing in ourselves and others, and 
 if so, what is their character, and what are their relations and 
 their limits ? 
 
 1. Nature reveals no rights in relation to the Creator. 
 
 The necessary truth of this proposition has already, I trust, 
 been sufficiently established.^ In asserting that it is the result 
 of a cause external to itself and independent of its volition, and • 
 in joyfully accepting itself as it is, our nature negatives the con- 
 ception of rights on the part of the creature, or duties on the 
 part of the Creator.^ The importance of this assertion in 
 founding jurisprudence, not on primary rights, but on primary 
 
 1 Ante, p. 39. ^ ci-jap. m. sec. 3, L ^ Ante, p. 42. 
 
"WITH EEFEEEXCE TO HOIAX EELATIOXS. 
 
 161 
 
 facts by wliicli all subsequent riglits are measured, and tlieir 
 respective spheres, v^liether subjective or objective, are deter- 
 mined oJj eo'dra, will become more and more apparent as ve 
 proceed. We sbaU find that it is this cU facto origin which, by 
 removing them beyond the reach of human volition, communi- 
 cates their Divine character to our human rights : and, moreover, 
 viiich gives to positive lav, as the rule by which these rights 
 are determined in the special instance, the declaratory character 
 which clothes even it with a similar sanctity. 
 
 There is one sense, indeed, in which some have thought that 
 rights exist in the creature in relation to the Creator, viz. that 
 it is impossible, or at least unthinkable, that He should do them 
 wrong.i But such an assertion plainly involves a vicious circle ; 
 for it assumes a criterion of right and wrong which is dependent 
 on the character of the actions to which we seek to apply it. 
 Unless we had a measure of virtue independent both of nature, 
 which is God's work, and revelation, which is God's word, the 
 two assertions, first, that God must do what is right, and second, 
 that what God does is right, in so far as His creatures are con- 
 cerned at all events, must be absolutely identical For this rea- 
 sim I never could see the object of the controA'ersy as to whether 
 morality be dependent on God's wiU, or God's will dependent 
 on morality.- Our conception of goodness, like all om^ concep- 
 tions, must rest on a postulate in the last instance — fatalism, 
 in this sense, is inevitable — and if we assume a standard of 
 morality anterior to God's will, we simply assume another 
 
 " Das Fromme ist nicht das Fromme vreil die Getter lieben es ; sondem die 
 Gotter lieben es, weil es das Fromme ist." 
 ^ Cud-worth, preface, p. xxviii. et passim. 
 
 L 
 
162 
 
 OF THE TEACHING OF NATUEE 
 
 god whose will it is. Nor is any real progress made by the 
 modification of the theological doctrine which seeks the origin 
 of morals not in the will, but in the nature of God ; for here 
 the distinction is either merely verbal, or else it carries us 
 into a region where consciousness is silent, and knowledge 
 impossible. If God's nature and His will be harmonious, we 
 have merely substituted one word for another : if they are dis- 
 cordant, the nature of a being so constituted is no better a mea- 
 sure of virtue than his will, and neither of them will furnish 
 us with a ^basis of morality or a criterion of right and wrong.^ 
 
 2. Nature reveals to its duties in relation to the Creator. 
 
 That notwithstanding the absence of all corresponding rights, 
 we owe to God the religious duties of gratitude, adoration, obedi- 
 ence, and faith — or trust in His beneficence, even where it is not 
 apparent to our understandings, — has never been substantially 
 questioned by sane men, however rude or corrupt. 
 
 But the feeling that God is absolutely independent of us, and 
 that it is only in a figurative sense that we can talk of serving 
 Him, has led many, even amongst ourselves, to infer that our 
 secular duties have reference exclusively to our fellow creatures 
 — that it is to man and not to God that we owe them — and this 
 erroneous conception of secular duty has led to two very unfor- 
 tunate results. 
 
 ■ ^ See tlie opposite view stated by Shaftesbury {Inquiry concerning Virtue, vol. 
 i. pt. iii.) and Leckie (i. p. 55). "The theory," says the latter, " which teaches 
 that the arbitrary will of the Deity is the one rule of morals, and the anticipation 
 of future rewards and punishments the one reason for conforming to it, consists 
 of two parts — the first annihilates the goodness of God, the second the virtue of j 
 man." The "two parts" appear to me to be entirely independent ; and whilst j 
 the first proposition rests, I believe, on a logomachy, Mr. Leckie's dissent from 
 the second has my warmest sympathy. 
 
^VITH EEFZREXCE TO HOIAX EELATIOXS. 
 
 163 
 
 1st. A cleft lias been made between religion and morality, 
 Tvliicli has led to tlie notion tliat onr devotion to one class of onr 
 duties must necessarily be in an inverse ratio, whereas in reality 
 it is in a direct ratio, to onr zeal and industry in the other. Xot 
 only in medieval but in modern times, men have become "sloth- 
 ful in business," in the belief that they " were thereby serving the 
 Lord," and in extreme cases have eA'en arrived at the still more 
 objectionable conclusion that it was possible to be pious without 
 being honest. 
 
 2(1 A line has been drawn between the subjective and objec- 
 tive sides of morality, Ijy which the former has been robbed of 
 the character of virtue, • 
 
 Trom failing to regard our subjective duties, or duties to our- 
 selves, as duties imposed on us by the constitution of our nature 
 and the scheme of the imiverse, our subjective rights have come 
 to be regarded as destitute of any other sanction than the reflected 
 one which they derive from such duties to our neighbours as 
 then performance may involve. If the rights which I assert, or 
 the acts which I perform in my own behalf, can be shovni to 
 minister to the interests of another, to this extent they become 
 not my rights but his. On my part they are duties which I owe 
 to him, and their performance by me is admitted to possess the 
 character of virtue which belongs to all acts of duty. But if, on 
 the other hand, I alone am interested in them (and this isolation 
 of self-interest though impossible as a fact, is the only hypothesis 
 to which we are entitled, so long as we are dealing with the sub- 
 jective side of morality exclusively}, these rights, when viewed 
 apart from the relation in which I stand to God, assume the 
 
164 
 
 OF THE TEACHING OF NATUEE 
 
 cliaracter of assertions of my solitary being as opposed to being 
 in general. 
 
 It is this train of tlionght, if I am not mistaken, whicb lias 
 led to the identification of virtue with benevolence by Hutche- 
 son, and which still gives vitality to a scheme of ethics which 
 amounts to nothing short of a surrender to the opponents of 
 absolute morality of the common ground on which not only sub- 
 jective but objective duty ultimately rests.i 
 
 It is quite true that, from the necessary interdependence of 
 subjective and objective interests, the whole of our subjective 
 rights are in reality objective duties. In the sequel I hope to 
 show that there is no right subsisting in any creature the 
 assertion of which is not a duty which that creature owes to his 
 fellow-creatures. But though the reality of our subjective rights 
 thus admits of confirmation from an objective point of view, it 
 is not thus that they arise ; and it is not from the objective, but 
 the subjective side that we must enter the field of ethics in 
 search of a natural basis for the science of jurisprudence. 
 
 My neighbour is but a reflected image of me. I cannot inter- 
 rogate his consciousness, or ascertain the revelations that nature 
 makes to him. My knowledge of his rights and duties is thus 
 
 i"Men come into tlie world," says Mr. Leckie, "with their benevolent 
 affections very inferior in power to their selfish, and the function of morals is to 
 invert this order. The extinction of all selfish feeling is impossible for an indivi- 
 dual, and if it were general, it would result in the dissolution of society. The 
 question of morals must always be a question of proportion or degree." (Leckie's 
 Euroi), Morals, vol. i. p. 103 ; see also p. 4.) Now if the extinction of this feel- 
 ing would result in the dissolution of society, how can the question of morals be 
 an approximation to this extinction ? The false antithesis between the subjective 
 and objective sides of duty, and the representation of the former as vice and the 
 latter as virtue, is an error which pervades the whole of this learned and most 
 interesting work. 
 
WITH EEFEEEXCE TO HEMAX EELATIOXS. 
 
 165 
 
 only inferential. It is an inference, as we shall see presently, 
 wliicli my nature compels me to draw. Still it is an inference 
 derived from self-knowledge ; and if I do not know that my own 
 rights and duties are absolute, I have no gTound for inferring 
 that his are so. An abandonment of the absolute character of 
 subjective rights is thus an abandonment of the absolute char- 
 acter of objective rights, i.e. of morality altogether. 
 
 The true view of the matter, and that in which the opposing 
 systems, of which Hobbes and Hutclieson are regarded in this 
 country as the representatives, though they are far from haAung 
 originated with them, find their meeting-point and their com- 
 plement, I believe to be this. 
 
 Our subjective rights, though not rights exigible by us against 
 God, are not the less on that account rigrhts exioible bv God 
 against us, and by us against others in God's name, for the 
 simple reason that they are rights inherent in the nature vdiich 
 God has formed. To these rights duties to God correspond, the 
 fulfilment of which, in His eyes, and with reference to the whole 
 scheme of His government, are just as imperatiA^e as those 
 which correspond to the objective rights of others. Moreover, 
 that the performance of these duties on man's part possesses 
 the character of A'irtue, not less than the performance of his 
 duties to his neighbour, will, I think, be apparent from two 
 considerations. 
 
 1st. The acts which these duties imply, viz. self-defence, self- 
 support, self-respect, self-development, and in the end, it may 
 be, the still harder task of bearing life under intense bodily and 
 mental suffering till God in His mercy shall take it away, — all 
 these are voluntary acts, often neglected, and when performed 
 
166 
 
 OF THE TEACHING OF NATURE 
 
 at all, performed often at a fearful sacrifice of present ease, or 
 immediate relief. 
 
 2cl. Being acts wliicli tend to tlie realization of the idea of 
 nature, tliey are in accordance with that nature as a whole, and 
 consequently with the will of its Author and the scheme of His 
 government. But acts voluntarily performed, in opposition to 
 the ahnormal and exceptional impulses of our nature, with a 
 view to the realization of its central idea, fulfil, as it seems to 
 me, all the conditions which attach to the idea of virtue. 
 
 Another consideration which points at the same conclusion is 
 this. In popular speech we continually talk of " duties to our- 
 selves and the existence of such duties is not denied even by 
 those who refuse to assign to their discharge the character of 
 virtue. Self-respect, they say, imposes on every man the duty 
 of supporting himself to the extent of not becoming a burden 
 on his relatives or the parish. But why should the duty stop 
 there ? The very same principle which carries him the length 
 of not being an object of self-reproach, does not cease to appeal 
 to him till he has availed himself, to the fullest extent, of the 
 powers which God has bestowed on him ; and the extent to 
 which, and the circumstances in Avhich, this duty is performed, 
 are the measure of the virtue which attaches to the performance. 
 I do not qualify the character which I assign to this duty even 
 by saying that its fulfilment is a virtue " to the fullest extent 
 compatible with the interests of others," because the interests of 
 all are not only reconcilable, but inseparable, and the highest 
 forms of self-interest and benevolence are ultimately identical.-^ 
 
 ^ "The happiness and welfare of mankind are evolved much more from our 
 selfish than from what are termed our virtuous acts," &;c. (Leckie, i. p. 38.) 
 
WITH EEFEEEXCE TO HUMAN EELATIOXS. 
 
 167 
 
 It is from tlie latent consciousness of the eqnal sanctity wliicli 
 attaches to all natural rights, and the fact of the identity of 
 iuterests, that the very same acts which the one class of philo- 
 sophers laud as benevolent and virtuous, the other, on selfish 
 grounds, describe as useful, and that the practical outcome of 
 the two systems is far less divergent than their authors believe 
 and intend. On the other hand, ho^Yever, the effect of the one- 
 sidedness which belongs to them both is but too often exhibited 
 in the tendency of the one to a forgetfulness of our duties to 
 ourselves, which ends either in morbid self-condemnation or 
 insincere sentimentalism ; and of the other to a forgetfulness of 
 om^ duties to others, which leads to acts of flagrant injustice. 
 The remedy is the very simple and obvious one of conforming 
 to the law of integrity^ by remembering that we are God's crea- 
 tures ourselves as well as our neighbours, and that His com- 
 mand to us with reference to others will be fulfilled if we love 
 them, as He desu'es and intends that we should love ourselves. 
 
 3. In our relation to creation, animate and inanimate, nature 
 reveals rights. 
 
 (a) The fact of heing involves the right to he. Though the 
 relation of Creator and creature excludes the idea of a right to 
 existence on the part of the latter, the moment that existence is 
 conferred, that relation bestows on it the character of a right 
 which neither its possessor nor any other creature is entitled to 
 dispute.- In life, as a phenomenon presented to us by conscious- 
 Does not such, a train of reflection show that what are termed our selfish may be 
 also our virtuous acts ? Selfishness, as we shall see below, consists of self-asser- 
 tion pushed beyond the point at which it begins to be self-contradictory and 
 suicidal. 
 
 ^ Ante, p. 145. ■ ^ Cousin, PMlosopliie Sensualiste, p. 322. 
 
168 
 
 OF THE TEACHING OF NATUEE 
 
 ness, we have thus a revelation not only of the fact of possession, 
 but of the idea of property, i.e. of possession held on a title, or 
 possession and right. But further, the consciousness of life is a 
 feeling of separation from, and independence of, other created 
 organisms. It is a feeling, not of abstract and general, but of 
 concrete and special existence — not of something is, but of / am; 
 — nor is this feeling of individuality a consciousness of separation 
 merely, but of power and energy to resist surrounding influences 
 which tend to produce dissolution or absorption.^ The Ugo 
 consists in, and is measured by, the power which it possesses to 
 dispense with the aid, and resist the influences of the non-Ego ; 
 and as the right corresponds to the fact of existence, we thus 
 perceive that the measure of the right to he is the poiver of heing. 
 In subjective morality we thus find the origin, as in objective 
 morality, rightly understood, I trust we shall find the justification 
 of the recognition of cle facto power and possession in every 
 department of jurisprudence. 
 
 (h) The right to he involves the right to continue to he. The 
 existence of which we are thus the rightful possessors is an 
 existence in time. The right to be consequently brings along 
 with it a right to continue to be, which, in its duration as in its 
 extent, is limited only by the power of its assertion. In this 
 natural right to continue our existence we behold the origin of 
 the right of self-defence, and of the laws which we enact for the 
 security of the person ; whereas in its objective or reflected aspect, 
 as we shall see hereafter, it imposes the duty not only of pro- 
 tecting the lives of other human beings, but of prohibiting, 
 
 ^ It is in the consciousness of free energy that the Ego perceives and affirms its 
 own existence. Cousin, iit sup. 
 
WITH EEFEREXCE TO HUMAN EELATIONS. 169 
 
 and, as far as we are able, preventing the wanton destruction 
 of human, animal, or eA' en vegetable life. 
 
 Like the right to be, the right to continue to be has no validity 
 against God. The withdrawal of the power to live by Him is a 
 withdrawal of the right to live ; and there is, consequently, no 
 injustice, in any sense, which created beings can attach to that 
 word in natural death, or in natural decay. The shrinking which 
 we feel from natural dissolution, in so far as it is a natural senti- 
 ment, is probably an instinct which is reflected on our finite from 
 infinite nature. We are reluctant to leave what consciousness 
 tells us is an unfinished task, and if Ave take the ars longa in its 
 highest concejDtion as the realization of the idea of humanity in 
 the individual and in society, it affords the strongest argument 
 in faA^our of the belief that the vita hrevis applies to this life 
 only. It is at variance AAuth our necessary conception of the 
 DiA^nity that He should not enable us to complete a Avork 
 which He has assigned to us ; and the limitation of conscious 
 existence to this life thus seems to involve a contradiction. 
 But, on the other hand, immortality in this Avorld is manifestly 
 at variance AA^th the scheme of the universe, as AA^e see it Avith 
 our own eyes. ^Vlien the period of his natural death has ar- 
 rived, a man has no more right to live than he had to be born 
 before his time, or to be raised from the dead. His right, 
 then, is to die, for it is that alone which rights him, i.e. AA'hich 
 keeps him in harmony Avith organic existence as a AAdiole, and 
 enables him to live — in Kosmos. What is true of individual 
 is probably not less true of national life ; and as regards both 
 we can thus see, even by the light of reason, that "to die 
 is gain." 
 
170 
 
 OF THE TEACHING OF NATURE 
 
 (c) The right to he, and to continue to he, implies a right to 
 the conditions of existence. 
 
 Hitherto we have considered life as consisting only of the 
 power of repelling aggression, with its corresponding right. But 
 active qualities of another class belong not less certainly to its 
 essence, and its continuance is not less obviously dependent 
 on their exercise. These are the powers which every living 
 organism possesses of attracting to itself, and assimilating such 
 external agencies as are necessary to its being. As our natural 
 powers of repulsion furnish the warrant for our laws of self- 
 protection, so it is in the powers of attraction of which we now 
 speak that our rights of property and laws of exclusive posses- 
 sion originate. 
 
 It is when the idea of property is seen in its inseparable con- 
 nection, not only with the life of man, but with organic existence 
 altogether, that we get hold of the final answer to that whole 
 phalanx of social, political, and economical errors, whic^h, under 
 the names of communism, socialism, levelling, equality, and the 
 like, have so tortured mankind, which still make up the 
 popular conception of what, abroad, is called " the revolution," 
 and what we and the Americans are apt to include in our con- 
 ceptions of " progress." 
 
 The powers of respiration and digestion, by which animal 
 life is sustained, exhibit themselves in acts of appropriation 
 which are involuntary even in man; and it is obvious, con- 
 sequently, that the amount of appropriation which these powers 
 warrant, in other words, which nature dictates to them, is the 
 amount of which they are capable. The lungs of a man, or of a 
 horse, are capable of decomposing, and their stomachs of digest- 
 
WITH KEFEEEXCE TO HUMAX EELATIOXS. 
 
 171 
 
 ing a vastly greater amount of mitrimeut tlian tlie lungs or tlie 
 stomachs of a moukey'or a mouse ; and to precisely tlie C[uantity 
 ■^vliicli tlie animal can appro23riate, tlie animal, in eacli case, is 
 entitled, so long as lie is entitled to be an animal at all. Xay, 
 in proportion to tlie extent to vrliicli tlie powers of life increase 
 or diminisli in the same animal, does his right to the conditions 
 of life go along with them. A child is not entitled to a grown 
 man's food, either in quantity or in C[uality ; nor a sick man to 
 the food of a man in health. 
 
 Xor is the laAv, that life confers rights to its exercise corre- 
 sponding in extent to the powers of wliich it consists, confined 
 to animal life. By analogy it embraces the whole range of 
 organized being. The life of a tree, we have every reason to 
 believe, is an unconscious life; and the tree has therefore no 
 rights or duties in the human sense, or even in the more limited 
 form in which they may be ascribed to the higher animals. 
 But the life of the tree involves, or implies, this very same 
 power of preserving its separate existence by what, analogically, 
 may be called acts^ not of repulsion merely, but of aggression 
 and appropriation. So long as it lives, and in proportion to the 
 life which is in it, it resists the influences which produce decom- 
 position, and assimilates the substances which conduce to its 
 support. Farther, the particles of carbon, oxygen, hydrogen, 
 &c., which the tree takes up from the circumjacent earth and 
 chcuniambieiit air, become, in a sense, its property — property 
 which it holds by the very same tenure by which it holds its 
 hfe, whereas, up to the moment of appropriation, no such relation 
 subsisted between them. But the analogy between vegetable 
 life and those acts of appropriation by which man vindicates the 
 
172 
 
 OF THE TEACHING OF NATUEE 
 
 rights of liis being, is a very limited one. It is not till we reach 
 the higher animals that we come in contact with voluntary 
 activity, and begin to trace, in the germ, that consciousness of 
 the relation between power and right which lies at the root of 
 the human idea of justice. When a stag stands at bay, when a 
 dog barks on his chain, or growls over a bone, indications 
 of a sense that life, liberty, and external objects are theirs, 
 their property, become unequivocal; and we find, moreover, 
 that our instinctive tendency to recognize the justice or right- 
 eousness of this sentiment is precisely in proportion to the 
 power which it exhibits. The needless destruction of a worm, 
 like that of a flower or a shrub, scarcely rises above the cha- 
 racter of malicious mischief. But the needless destruction of a 
 horse or a dog, the wanton infliction on them of suffering, or 
 even the unnecessary limitation of their liberty or their enjoy- 
 ments, we have no hesitation in regarding as cruelty, or injustice 
 to them, and, on man's part, as unrighteous violation of their 
 rights. In their case we feel immediately that life can be justi- 
 fiably taken away, or liberty restrained, only on behalf of life or 
 liberty, with a view, i.e. to the securing more or higher life or 
 liberty on the whole. We may kill an ox to eat him, and there 
 are objects for the attainment of which perhaps even human 
 life may justifiably be taken away ;^ but if we kill an ox, even 
 
 ^ Professor Roder, and many other excellent thinkers and writers of the school 
 of Kraiise, are of opinion that there are no circumstances in which the voluntary 
 destruction of human life is not a violation of natural law. The higher animals, 
 they say, may destroy the lower, but man being the highest created existence on 
 earth, his life can be lawfully taken away by God only. Its destruction by man 
 never can promote life on the whole, though it may seem to do so in an individual 
 instance, or at a particular stage of social progress. This argument, though it does 
 not involve vegetarianism, carries us the length of an absolute prohibition not 
 
WITH EEFEREXCE TO HUMAX EELATIOXS. 
 
 173 
 
 if it be our own ox, from mere wanton love of destruction, we 
 do a wicked act, and if we kill a man in similar circumstances, 
 we commit murder. 
 
 It is to these natural feelings, rather than to any real belief in 
 a metempsychosis, that the doctrine of the absolute sacredness 
 of life has been indebted for its advocates in historical circum- 
 stances so various. In like manner it is from the protection 
 ^vhicli nature herself casts around them that tlie degree of safety 
 to life and property attained, is the surest test of the grade of 
 civilization which a community has reached. 
 
 {d) The right to he implies a right to develo'p our heing, and to 
 the conditions of its developriient. It is in the consciousness of the 
 right and duty of self-development that the peculiar character- 
 istics of humanity ultimately exhibit themselves. The acts by 
 v'hich the higher members of the brute creation assert their 
 rights are neither involuntary, nor, in a certain sense unconscious ; 
 but they have reference either to the continuance of existence as 
 it is, or at most to the growth of the physical frame. There is 
 aDalogy enough, however, between physical growth or animal 
 training, and spiritual development, to exhibit the universality 
 of the law that powers assign the only limits to rights, and that 
 rights involve the conditions of their own assertion. The right 
 of development in man exceeds the right of development in 
 the other creatures, precisely in proportion to the extent to 
 which his capacities of development surpass theirs. And the 
 
 only of capital punislimeut, but of war. "Whether the consciousness of humanity, 
 under the guidance of Christian influences, be not developing itself in directions 
 which may render the acceptance even of these conseq^uences imperative, is a q[ues- 
 tion on which it is not desu'able that we should enter in this place. 
 
174 
 
 OF THE TEACHING OF NATURE 
 
 same law holds true in reference to individual members and races 
 of the human species. It is no more possible to bring natural 
 inequalities to a level by means of education than to teach music 
 to the deaf, or painting to the blind ; and what we are forbidden 
 to accomplish we are not called upon to attempt. Moreover, as 
 man, even physically considered, is the most dependent of animals, 
 so it is in this peculiarly human direction that his dependence 
 becomes most conspicuous. Our physical growth will attain its 
 possible limits by the aid of our parents, and a very few of those 
 w^ith whom we are brought into personal contact. But the 
 spiritual maturity of a single individual, in so far as it is attain- 
 able at all, is the result of the past and present efforts of the 
 whole human family. So far, then, from searching for the ulti- 
 mate characteristics of humanity in primitive man, the chances 
 of finding them, or rather of approximating them, in individuals 
 or in generations, will always be in favour of those on whom the 
 widest range of historical influences has been brought to bear. 
 Unlike the lower creatures, the alternative of a stationary exist- 
 ence is not offered to man. His choice lies between progress— 
 which, in so far as his individual powers permit, knows no limits 
 short of a reunion with the Divine nature, which is the true 
 human ideal — and moral and intellectual retrogression, which 
 ultimately becomes irreconcilable with his physical existence, and 
 is mercifully cut short by his disappearance from the earth. It 
 is in tills peculiarity of our nature that we see the foundation of 
 the right of the individual to demand such education as he has 
 capacity to receive on the one hand, and of the duty of the 
 parent, and of the State, to communicate it on the other. Nor is 
 there any other point of view in which the righteousness of the 
 
•\^*ITH EEFEEEXCE TO HOIAX EEL^^TIOXS. 
 
 175 
 
 principle of lis carriercs ouvertrs becomes more apparent, both in 
 a subjective and an objective direction, than tliis. To rob a rnan 
 of the fruits of such powers of spiritual development as God may 
 have seen fit to implant in him, is the last and highest form of 
 injustice : Avhereas, as regards others, the loss of a single man of 
 genius (supposing such an event to be possible), would, in most 
 cases, be a far greater disaster than the loss of a battle even to the 
 community in which it occurred, whilst it would be one in which 
 mankind and futurity would participate far more extensively. 
 
 The c_Luestion of compulsory education by the State, lihe that 
 of compulsory charity, and indeed like positive law altogether, is 
 thus reduced from a cj_ue5tioii of principle to a c^uestion of fact. 
 In so far as individuals or communities will or can educate 
 themselves, that is the arTangement which natui^e approves in 
 the first instance. If they will not, or cannot, then State inter- 
 ference assumes the aspect of a subjective right, the reality of 
 which is guaranteed by the existence of an indisputable objective 
 duty. All such C[uestions as female rights, negro rights, and the 
 like, thus resolve themselves into a C|uestion of capacities or 
 powers. Till the presence of these has been established the 
 rights do not emerge. But their absence must not be hastily 
 assumed ; and on Avhatever career any individual wishes to enter, 
 that career he is clearly entitled to have thrown open to him. 
 That the distinction which nature has established between the 
 functions of the sexes, and the endowments of individuals and 
 'races of mankind, vdll speedily make themseh'es ap)parent, is a 
 subject with reference to which we may spare ourselves all 
 anxiety. Of the clearness with which these considerations are 
 everywhere forciug themselves on the public mind, in our own 
 
176 
 
 OF THE TEACHING OF NATURE 
 
 day, the adoption and probably the exaggeration i of the system of 
 competitive examinations is, perhaps, the most conspicuous proof. 
 
 (c) The right to he involves the right to reproduce and midtiply 
 our being. 
 
 No Divine command, directly given, is more obviously in 
 unison with the promptings of nature as revealed by conscious- 
 ness, than the command, to " be fruitful and multiply." After 
 the instinct of self-preservation, by far the iliost powerful, in all 
 healthy natures, is that of propagation. The source of man's 
 purest and loftiest affections, and of his vilest and most degrad- 
 ing passions, inextricably intertwined with his moral as with 
 his physical life, the root of the family, the mainspring of ambi- 
 tion, the incentive to vanity, it is not wonderful that its due 
 regulation should occupy so large a space in every code of laws, 
 civil and criminal. The power of reproducing our species being 
 nature's compensation for the waste of individual life, and the 
 limits which she has imposed on its duration, is usually 
 manifested in greatest vigour in the circumstances which appear 
 most to call for its exercise. 'New communities grow vastly 
 more rapidly than old ones : colonizing than stay-at-home 
 nations : the ravages of war and pestilence are supplied with 
 wonderful rapidity : and • even the high death-rate occasioned 
 by our manufacturing system and our city life is compensated 
 by a birth-rate unknown amongst the long-lived inhabitants of 
 our rural districts. In all this the closest analogy is apparent 
 between man and " the grass of the field." The command which 
 nature lays upon the one she fulfils spontaneously in the other. 
 Again, the contradiction which seems to arise between the com- 
 
 TJwughts u])on Government, by Arthur Helps, p. 62. 
 
AVITH EEFEEE^XE TO HUMAX EELATIOXS. 
 
 177 
 
 mand on the one liand, and the narrow limits within which 
 obedience to it appears to be confined, finds its counterpart both 
 in the lower animals and in the vegetable creation, and thus the 
 action of those legal and cA^en social impediments to marriage, 
 which sometimes present themselves to the mind as the worst 
 of evils, take their place in the general arrangements of nature. 
 Of the pollen which is scattered by every summer wind, and 
 even of the seed which every autumn ripens, the proportions 
 which come to maturity as plants and trees are certainly not 
 greater than those of the human beings that spring from the 
 endless potentialities that seem to lie in every community. 
 Amongst all animals again, vuth the exception of man, the 
 limitations to multiplication vdiich man feels called upon 
 voluntarily to impose on himself, are involuntarily enforced, 
 not only by the necessities of the carnivorous species, but 
 by the poAver of propagation being dependent on physical con- 
 ditions which recur only at certain seasons. The object of 
 nature, throughout, seems to be the reproduction of the same 
 type, not deteriorated, but, if possible, improved by individual 
 selection : and the object of all marriage laws which obey her 
 behests, will be the production of the greatest possible amount, 
 not of animal being, but of human well-being. A man who 
 cannot bestow a human education on his children has no more 
 natural ridit to marrv than a man who cannot beo-et them. 
 But how the physical disability under which the impotent man 
 labours is to be converted into a positive prohibition in the case 
 of the poor or improvident man, is a problem which no legislator 
 has yet succeeded in solving. 
 
 (/) The right to rcjrrodicce and multi]ply our Icing, involves the 
 
 M 
 
178 
 
 OF THE TEACHING OF NATUEE 
 
 right of transmitting to our offspring the conditions of the existence 
 ivhich ive confer. 
 
 As regards our cliilclren and our direct descendants, the right 
 of transmitting property springs as obviously from the right of 
 transmitting life, as the right to possess property springs from 
 the right to possess life. And inasmuch as the character of the 
 life which we possess determines the character of its conditions, 
 so it is of the life which we transmit. We are entitled not only 
 to live, but to live humanly ; and the life which we are entitled 
 to transmit is not bare existence in the abstract, but human 
 existence. Human life, however, involves the conditions, not 
 only of its continuance, but of its development, and in this 
 respect, also, the same privileges cling to the life which we are 
 entitled to transmit. What is commonly and quite correctly 
 regarded as a duty to our children, is thus, at the same time, 
 a right inherent in ourselves, which we are entitled to assert as 
 against other created existences ; and our laws of inheritance, as 
 well as our laws of property, have thus their root in the sub- 
 jective persona, and their validity when seen simply from the 
 subjective side. 
 
 {g) The right to he involves the right to dispose of the fruits of 
 heing, inter vivos. 
 
 The children we beget are fruits which grow on the tree 
 of life. Up to the period of maturity, the rights of the tree 
 to its fruits are the same as to its leaves. They are part of 
 it, and cannot be separated from it without injustice — injury 
 to it, destruction to them, loss, in short, to organized exist- 
 ence. But this right terminates when the period arrives at 
 which the tree no longer draws nourishment from, or com- 
 
WITH REFERENCE TO HUMAN RELATIONS. 
 
 179 
 
 mnnicates nonrisliment to, the fruit. Tlie ripe fruit falls to the 
 ground, and becomes directly or indirectly a source of separate 
 organic life. 'Now, a relation very closely analogous to this 
 subsists between human beins^s and the fruits of their bodies. 
 In the earlier and ruder stages of society, children are regarded 
 as the property of their parents, and, till they have attained to 
 maturity, they continue in civilized states to be more or less 
 closely dependent on the parent stem. In this principle we see 
 the natural foundation of the laws of guardianship, and their 
 natural limits, and the answer to aU those theories of separate 
 and independent individual rights so prevalent in France at the 
 present time. 
 
 Nor do the ridits of man to the fruits of his labour differ from 
 those to the fruit of his loins, either in their origin, or in the 
 principle which limits them. Property, as we have seen, is a 
 consequence of life;i like life, it is God's gift, and, absolutely 
 considered, it is God alone who can take it away. TiU this 
 occurs, the rights of the proprietor are limited only by his 
 capacities of use and enjoyment.- He may seU it, i.e. exchange 
 it for property in another form, or give it away, even to a 
 stranger, for any object which is not insane or criminal; for 
 any object, that is, which is not really at variance with his own 
 use of it. But the right to property which nature reveals 
 affords no warrant for the exercise of mere caprice. A blind 
 man, for example, would have no right to burn a library, or a 
 picture gallery, which belonged to him, or even to shut it uij, 
 though he might sell it, or exchange it, or give it away. On the 
 same ground, that there is no right of mere exclusion, it has 
 
 1 Ante, p. 170. 2 ^^^^^^ p_ 271. 
 
180 
 
 OF THE TEACHING OF NATURE 
 
 become an established rule of international law, that an unoccu- 
 pied country cannot be acquired, even by the first discoverer, 
 by a proclamation, the setting up of a flag, or tlie like, but 
 must be actually taken possession of, and occupied. Indeed, it 
 is in the inseparable relation between rights and powers of use 
 and enjoyment, as we shall see more fully hereafter,^ that the 
 cle facto principle, in all its applications, finds its justification. 
 Whether this principle may not be found to limit the rights of 
 private property in directions which have scarcely been thought 
 of as yet, is a question which the future alone can answer. 
 History is full of examples in which principles have been re- 
 vealed b}^ events; and the Irish Land Bill is probably only a 
 commencement, in this country, of that legislation for the con- 
 version of nominal into real proprietorship, in the direction of 
 which almost all the progressive countries of Europe seem to be 
 tending.^ The great practical obstacle to all legislation affecting 
 rights of exclusive possession, even where these have been con- 
 fessedly carried to the extent of being self-destructive, arises 
 from the irrational and criminal outcry for equalization to which 
 it immediately gives rise. It may be possible, as is often as- 
 serted,^ that, by a redistribution of land, and readjustment of 
 taxation, which would in nowise affect the relative importance 
 or essential well-being of the propertied classes, combined with 
 a system of compulsory education maintained \j the State, the 
 evils and dangers both of pauperism and proletarianism might 
 be in a great measure removed. But no such arrangement is 
 
 1 Infra, Book II. Cap. IV. 
 
 2 Keports from Her Majesty's Eepresentatives respecting the Tenure of Land 
 in the several countries of Europe, 1869-70. 
 
 3 Even by Prof. Eoder, vol. ii. p. 291, 317, &c. ■ 
 
WITH EEFEEE^'CE TO HEMAX EEEATIOXS. 
 
 181 
 
 possible so long as tlie ignorant majority claim, and are incited 
 to claim, not only that tliey shall be relieved of all the burdens, 
 but that they should absorb the v'hole authority of the State. 
 Graduated taxation means either a corresponding gTaduation of 
 political power, or else confiscation of the property of the few 
 by the many, i.e. public robbery. 
 
 {h) Tlie right to he involves the right to dispose of the frvAts of 
 heing, raortis causa. At first sight it appears as if the right of 
 executing dispositions to take effect after death must be excluded 
 by a doctrine which declares that all rights originate in life, that 
 they continue to be measured by life, and terminate vdth life. 
 But if Ave analyze the character of such transactions more closely, 
 ve shall find that, to the full extent to which they are legitimate 
 at all, they fall fairly vdtliin the scope of the dc facto principle. 
 And here the first consideration vdiich presents itself is that a 
 mortis cansd deed is a transaction, not between a dead man and 
 a living man, but between two living men, — the man who gives 
 at the moment of giwng, and the man who receives at the moment 
 of receiving, are both in possession of the powers of life. The 
 only difterence between it and vdiat are usually known as transac- 
 tions inter vivos, arises from the fact that the one man must have 
 lost his power of giving before the other exercises his power of 
 receiwng. But this difference loses its importance when we con- 
 sider that, substantially, the same thing takes place in every 
 transference. In the very act of transferring a pound of tea, we 
 shall say, the proprietor, civA lorojrrictor, expires; and this is pre- 
 cisely what occurs when, at the moment of death, the property of 
 one man becomes the property of another. The apparent difii- 
 culty arises from the fact that because a period after death must 
 
182 
 
 OF THE TEACHING OF NATURE 
 
 intervene before the fact of transference can he proved, we imagine 
 that such a period intervenes before the fact of transference 
 exists, and, consequently, that it is an act of the dead. But the 
 transference, in all cases, is instantaneous. The last breath of the 
 expiring proprietor is immediately followed by the first breath of 
 his successor, and thus ''the king never dies." Again, it may be 
 said that deeds to take effect after death are, necessarily, future, 
 and that, in this respect at least, they differ from those which are 
 intended to receive present execution. To this objection the 
 answer is, that inasmuch as the present, so to speak, is a mathe- 
 matical point of time, every transaction necessarily has reference 
 to the future ; and, further, that inasmuch as life is uncertain, 
 every transaction, tacitly at least, contemplates the possibility 
 of its execution after death. As regards their origin there is 
 thus no difference at all between rights of transmitting the fruits 
 of life inter vivos, and mortis causa. 
 
 (i) All our subjeetive rights resolve themselves into the right to 
 liberty. 
 
 The right to liberty, i.e. to the exercise of our own subjective 
 powers, not only embraces the rights we have mentioned, but 
 it transcends them. Passing into the sphere of objectivity, it 
 constitutes a claim on the aid of our fellow men. Liberty has 
 thus a positive as well as a negative side; it is a claim not 
 only not to be hindered, but to be helped. This right to 
 the positive conditions of liberty, as we shall see, is the corre- 
 lative to the duties of mutual aid and charity, and forms the 
 basis of the positive side of jurisprudence, the claims of which 
 form so prominent an object in the teaching of the later schools 
 of Germany. 
 
■\\'ITH EEFEEEXCE TO HUMAX EELATI0X3. 
 
 183 
 
 (j) I'll the limitcttions icliicli ncdure imposes on our siihjedive 
 rights, v:e have the first rcvclatioii of the irrinciple of order. 
 
 In the dicta of our subjective nature we have found a warrant 
 for that side of jurisprudence by whicli our liberties are asserted 
 and vindicated. We have seen that the ridit to be, is but a 
 summary expression for the rigiit to tlie free exercise and develop- 
 ment of the powers of our physical and rational existence. We 
 have seen, moreover, in each particular instance, that the rights 
 of which we become conscious are not absolute and unlimited, 
 but relative to, and circumscribed by, the powers in which they 
 inhere. Absolute rights, like absolute powers, belong to God 
 only. He no more communicates the former to His creatures 
 than the latter, and it thus appears that our rights are limited, 
 not, as is generally supposed, by rights which are opposed to 
 . them, but in their own nature. They come into existence and 
 continue to exist in the case of each individual, oidy to the extent 
 of his powers. Without C[uitting the region of subjectivity, we 
 thus perceive the error of opposing objective to subjective 
 interests, and of supposing that our rights to life, Kberty, pro- 
 perty, and the like, owe their limitations to the necessity of 
 sharing them with our fellow-creatures. So far is this from being 
 so, that whereas the subjective limitations of our rights are real, 
 the objective limitations, in so far as they are in accordance with 
 natural law at all, are only apparent. I may appear to abandon, 
 in your behalf, rights, which, but for you, I should have 
 enjoyed. But the abandonment, in so far as natural law 
 calls upon me to perform it, is, in reality, a gain to me, pre- 
 cisely to the same extent to which it is a gain to you. The 
 recognition of your rights is just as much a condition of the 
 
184 
 
 OF THE TEACHING OF NATURE 
 
 exercise of mine, as the acts of appropriation which I make on 
 my own behalf. In myself, however, I am a finite and limited 
 being, and the subjective limitations of my rights are realities 
 which consciousness reveals to me, and which do not admit of 
 being explained away. IsTow these limitations, marking off as 
 they do the sphere of subjective from that of objective activity, 
 are manifestations of the principle of order ; and thus order takes 
 its proper place, not as an end in itself, as it has been the custom 
 of despotic governments to maintain, but as a means towards the 
 attainment of liberty, which is the end of jurisprudence, and 
 which, in its turn, as we shall see hereafter, becomes a means 
 towards the attainment of the ultimate ends of human life.^ 
 
 (k) Nature revecds to us the possibility, and the consequences of 
 the transgression of her laws. 
 
 Taken simply as a phenomenon,^ no revelation of subjective 
 consciousness is more unequivocal than the freedom of the will. 
 Though nature tells us neither of powers nor of rights which 
 transcend her limits, she informs us that we are at perfect 
 liberty to transgress them. But here a singular anomaly ap- 
 pears. The consciousness of power is no longer accompanied 
 by the consciousness of right. In abandoning us to ourselves 
 and rendering us the authors of our own actions, nature does not 
 deceive us. On the contrary, she bestows on us an autonomous 
 character, which she mercifuUy places beyond the reach of our 
 volition, and thus not only enables us to discover, but forces us 
 to feel that all transgressions of her laws are acts of subjective 
 as well as of objective injustice, and that, apart from considera- 
 
 1 Infra. Book 11. Cap. I. 
 
 2 As to the value of tliis phenomenon in the controversy between Liberty and 
 Necessity, see Hamilton's Meta])h. ii. p. 542. 
 
WITH EEFIEEXCE TO HrALlX EZLATIOXS. 
 
 185 
 
 tioas of future rewards and jjiinishments altogetlier, every sin or 
 folly Tvliicli we commit is, in principle, an act of self-desti^iction. 
 The snicidal cliaracter of abnormal and inharmonious action, 
 i.e. sin, is a doctrine which the revelation of natiu^e teaches as 
 nnecjiiivocally as the revelation of holy writ : though it leaves the 
 remedy against the mysteriotis propensity which seems to reside 
 in each of our separate tendencies to asseii itseK in isolation, and 
 to chaim an exclusive dominion over its, a hopeless enigma. 
 
 (/) Xature reveals ohjective rights ivhicli exactly corresjjonrl to 
 our siCbjective riglits. 
 
 The Cjuestion, whether or not objective rights, or, in other 
 words, the objective side of morality 'which has often been er- 
 roneously regarded as embracing morality altogether}, rests upon 
 native or upon convention, and, consec_[uently, whether a science 
 of jurisprudence, or of ecj_ual justice between man and man, be 
 possible or impossible, turns wholly on the preA'ious ciuestion, 
 whether our recognition of objective rights springs from the 
 same source, and rests on the same basis as that of the subjec- 
 tive rights which we have just considered. We have seen that 
 the so-called selfish system speaks with the voice of nature in 
 what it claims for the Ego. AA'e have adopted the dictum of 
 Spinoza, that '"'nature, considered in general, has a sovereign 
 right over ever}tliing which is within her power, that is to say, 
 that the rights of nature extend just as far as her power extends."^ 
 Must we then follow him the whole length to which he himself, 
 reluctantly, followed Hobbes, and concur in rejecting the coimter- 
 chctum of Grotius, that "it is false to say that, by nature, every 
 animal is impelled to seek only its own advantage" ?- 
 ^ Vol. i. pp. 20i-5, and ii. p. 251, Saisset's ed. " Prolcg. sec. 6. 
 
186 
 
 OF THE TEACHING OF NATURE 
 
 'Now, this question appears already to have received its 
 answer from the subjective revelations with which we have 
 become acquainted. 
 
 In the limitations inlierent in our subjective rights, and in 
 their dependence for their assertion on our recognition of the 
 objective rights which are erroneously supposed to limit them, 
 we have discovered, as it were, the unappropriated territory 
 which nature assigns to objective activity. The rights of the 
 Ego, so far from exhausting existence, are not even self-vindi- 
 cating, for the voluntary aid of created existences is one of the 
 conditions which nature has imposed on their exercise. The 
 principles of the selfish system itself thus furnish us with the 
 grounds of repudiating its conclusions. The rights of the Ego 
 are an adequate guarantee for the rights of the non-Ego. 
 
 But objective rights stand upon a separate correlative basis 
 of objective powers. If the recognition of rights be insep- 
 arable from the recognition of life in our own case, and if the 
 objective validity of this subjective asseveration be guaranteed 
 to us by the analogy of organic existence as a whole, then surely 
 the recognition of our neighbour's life involves the necessary 
 and involuntary recognition of his rights. To recognize human 
 life, and then to deny to it characteristics or qualities which 
 belong to, and indeed constitute life in general, would be to 
 involve ourselves in contradiction. 
 
 The only question that remains then is. Have we a neigh- 
 bour ? or, in other words, are there external existences at 
 all ? Into the metaphysical or physiological discussions as to 
 the manner in which we become cognizant of the non-Ego, and 
 the character in which it presents itself to our knowledge, 
 
"WITH EEFEEEXCE TO HOLIX EELATIOXS. 187 
 
 wlietlier niatericil and physical, or immaterial and dvnamical, 
 or both, the jurist, as such, is not called upon to enter. That 
 there are other existences than my own is a fact which, to my 
 mind, is sumciently proclaimed by the consciousness of my own 
 existence cis sqjarate, for separation involves the existence of 
 both the objects separated. The doctrine that the simultaneous 
 knowledge of opposites is necessary', appears to me to admit of 
 as httle C[uestion as that the simultaneous knowledge of contra- 
 dictories is impossible : and to the extent of holding that con- 
 sciousness gives us oiu"' knowledge of the object in the same act 
 in which it gives us our knowledge of the subject, I am a 
 '■■ Xatural Eealist.'"'^ But be this as it may — external existence 
 is a fact, at the practical recognition of which all minds arrive 
 by some process, and, such being the case, it is a fact- which, 
 in a treatise on jiuisprudence, I shall take the liberty to assume. 
 The assumption of this fact then, our previous conclusions being 
 sound, is one which, as I have said, carries the whole of our 
 subjective rights over to the oljjective side ; for every right 
 which was inseparable from my life necessarily clings to the 
 life of my neighbour. My recognition of objective rights is 
 thus dictated, neither by a sense of my own interests nor by a 
 volimtary tenderness for those of others, neither by the hopes 
 and fears of Hobbes, nor by the benevolence of Hutcheson. It 
 is founded on no contract, either verbal or tacit, upon no law 
 wliich man has made, for its roots are in a nature of which we 
 all were passive recipients, and over the constitution and pri- 
 mary characteristics of which none of us has, or can have the 
 slightest control 
 
 ^ Hamilton's Metaiili. Miiller on Sin, i. SO. 
 
188 OF THE TEACHING OF NATURE 
 
 Lastly, the proportion which we found to subsist between 
 subjective rights and powers, necessarily passes over along with 
 them to the objective side. The equality which my neighbour 
 can righteously demand, or which I can righteously concede to 
 him, is an equality, not of powers and rights, but of their recog- 
 nition. I must accept him as I conceive that God has made 
 him, and as life has developed him, and not as either he or I 
 think he ought to be, or to have been. It by no means follows, 
 however, that the estimate which I form of his qualities is an 
 accurate one. If his nature is deeper and richer than mine, 
 I am in danger of involuntarily doing him injustice ; if it is 
 shallower and poorer, I shall probably deceive myself and 
 lavish on him, or her,^ a degree of tenderness of which he, or 
 she, is not worthy. 
 
 4. Nature reveals objective duties, or duties hy others to us, 
 which exactly correspond to our suhjective duties, or duties hy us to 
 others. 
 
 The truth of this proposition follows from the preceding as a 
 matter of course, for, on the same grounds on which our rights 
 become our neighbour's, his rights must become ours. It is this 
 revelation which constitutes our warrant for the enforcement of 
 our rights, the necessity of such enforcement for their vindica- 
 tion having been ascertained, for all unnecessary exercise of 
 force is a waste of power, whether it be by the baton or the 
 sword, and nature abhors waste as she abhors a vacuum. 
 
 Viewed as efforts for the benefit, direct or indirect, temporal 
 or spiritual, of those against whom they are apparently directed, 
 and whose immediate freedom it is their object to constrain, 
 
 1 Adam Bcde, p. 308. 
 
WITH EEFEEE^'CE TO HUMAX EELATIOXS. 189 
 
 botli tlie laws of war and criminal laws find their justification, 
 and tlieir measure, in the objective rights of which we treated in 
 the last section. 
 
 5. Tlie existence of suljective and objective rights ctncl duties, 
 and of their mutual deimidence, constitute the sole revelcdion v:hich 
 nature makes to us with reference to hurnccn reloMons. 
 
 As the Ego and non-Ego exhaust the sphere of being, so, in 
 like manner, the ri!:^hts and duties of the Eo^o and non-Ecro 
 exhaust the sphere of justice. And as the Ego and non-Ego are 
 inseparable ontologically, so likewise are rights and duties linked 
 together by the necessities of our ethical nature. It is as this 
 nexus, or necessary interdependence, and not as any separate 
 and independent principle of our nature, that we must under- 
 stand the otK-etcoo-is of the Stoics, on which the system of Grotius 
 is founded. Viewed as a general principle of society, it is a 
 mere generalization of the intuitive and involuntary tendency 
 which manifests itself in each individual mind, to extend to the 
 object the rights of the subject. It is not a primary fact of 
 nature, but a natural law, evolved from the primary facts of 
 nature by our reasoning faculties.^ Eousseau has seen and 
 stated this very clearly. " ]\Ieditating upon the first and most 
 simple operations of the human mind, I believe myself to see 
 there two principles anterior to reason, of which the one 
 interests us in the liveliest manner in our own well-being 
 and preservation, and the other inspires into us a natural 
 repugnance to see a sensible being, above all, a being of our 
 own race, perish or suffer. It is from the concourse and com- 
 bination which our mind is in a condition to make of these 
 
 ^ Infra, cap. viii. 
 
190 HOW WE BECOME COGNIZANT OF LAW IN GENERAL. 
 
 two principles, without the necessity of introducing that of 
 sociability, that all the rules of natural law appear to me to 
 follow." 1 
 
 CHAPTEE VIII. 
 
 HOW WE BECOME COGNIZANT OF LAW IN GENERAL. 
 
 1. Natural laivs are rational inferences from the facts of nature. 
 
 In the preceding chapter we have seen that what consciousness 
 directly reveals to us is not laws or principles, but powers and 
 rights. In this, or in aU other instances, our experience of the 
 particular precedes our recognition of the general, and we shall 
 examine the dicta of nature in vain not only for the positive or 
 concrete laws by which separate communities ought to be 
 governed, but even for those abstract laws which assign the neces- 
 sary conditions of human well-being and progress. The suum 
 cuique of the Eomans, for example, is an abstract or natural law 
 so universal in its application as not to be confined even to 
 human relations. In this respect it differs widely from any 
 special or positive law by which the suum is defined and the 
 cuique individualized — from such a law, we shall say, as that the 
 'patria potestas (the suum) belongs to the grandfather, if alive 
 (the cuique). But the abstract law is no more revealed to us by 
 consciousness than the concrete laio. On the contrary, all that 
 
 ^ Discours sur Vorigine et les fondements de Vinegalite, preface, p, 50. It 
 is in such occasional utterances that we see what might have come of Rousseau, 
 had he been favoured by education and circumstances. As Cicero said of Socrates 
 that he was the Homer of Philosophers {Tuscul. Quces. i. 32), so we may say of 
 Rousseau that he was the Burns of Publicists. 
 
HOW "WE BECO^IE COG^'IZAXT OF LAW IX GEXEEAL. 191 
 
 nature teaches us directly is, first, that we ourselves, and, second, 
 that the other oro-anized existences of which ^ye are cognizant, 
 possess individual powers, with correspondent individual rights. 
 From these data, by the aid of our reasoning faculties, we infer 
 the general law that " right corresponds to power." 
 
 2. Matured Icnvs are necessary inferences from tlic facts of 
 nature. 
 
 We have seen that the ascription to the object of the rights 
 of which the subject is conscious is an involuntary act, and 
 that in each individual case, our knowledge of our rights 
 and our duties rests on the same basis of nature.^ But this act 
 is only the first step in a process of induction, every subsequent 
 step of which possesses the same involuntary character. The 
 moment that an objective existence is recognized, the recognition 
 of rights proportioned to his powers is forced upon us. In 
 addition to powers and rights, the relation which subsists 
 between them thus forms part of the phenomena presented by 
 our cognitive to our discursive faculties, and as the latter must 
 accept the data vdiich they receive, the only imaginable alterna- 
 tive lies between reasoning out these separate cognitions into 
 corresponding laws, and not reasoning at all. But the latter alter- 
 native, happily, does not lie within our reach, for the option of 
 reasoning is no more given to man than the option of being. He 
 may cease to reason, it is true, if he may cease to be ; but even 
 on the improbable hypothesis of self-annihilation being possible 
 to him, he can no more avoid having reasoned than he can avoid 
 having been. 
 
 Our knowledcje of the laws of nature is thus as inevitable as 
 
 1 Ante. p. 185. 
 
192 HOW WE BECOME COGNIZANT OF LAW IN GENEEAL. 
 
 our knowledge of the facts of nature, and the character of these 
 laws is as independent of our volition as the character of the 
 facts of which they are generalizations. 
 
 3. Natural laws determine the ultimate ohjects of positive laws 
 and fix the p)rinciples of jurisprudence as a whole. 
 
 From our previous discussions it has resulted that nature 
 assigns the realization of her own ideal (which in the case of 
 humanity is the Divine image which she reflects) as the object 
 (reAos) of her being. This object must consequently be the final 
 object of all laws, whether abstract or concrete. But what we 
 call natural or abstract laws are a statement of the necessary 
 conditions of the attainment of this object. These laws, then, 
 which nature prescribes to life as a whole, are necessarily binding 
 upon life in its partial manifestations. The laws of nature thus 
 fix the principles of positive law in all its departments, and 
 assign to it its necessary character. 
 
 The principles of jurisprudence, or abstract laws, find their 
 realization in wider and in narrower spheres ; and it is for this 
 reason, and not from any substantial diversity in the principles 
 themselves, that they are divided into natural laws, or principles 
 in the abstract : principles of legislation {i.e. the framing of 
 positive laws): and principles of jurisdiction (i.e. the applying of 
 positive laws to special cases). The first are the necessary con- 
 ditions of life in accordance with nature generally : the second, 
 the necessary conditions of life in accordance with nature in a 
 special community, or between special communities for a special 
 time: and the third, the necessary conditions of individual 
 life in accordance with nature, in the like circumstances of time 
 and place. 
 
HOW WE BECOME COGXIZAXT OF LAW IN GEXEEAL. 193 
 
 As the laws of nature, or general principles of jurisprudence 
 hold to legislation, or law-giving, precisely the same relation that 
 legislation holds to jurisdiction, or the administration of the law, 
 it will be obvious that for men to arrogate to themselves, or 
 others to confide to them, the duties of legislation whilst they 
 are ignorant of the laws of nature, would be just as absm^d in 
 itself, and would be likely to be productive of far wider mischief 
 than if men were to be raised to the bench who had no know- 
 ledge of the laws of their country. And yet the former occur- 
 rence is, I fear, far more frequent than the latter; for whilst 
 positive law is studied in general Avith infinite care, and nothing 
 short of long and successful practice will satisfy us of the effi- 
 ciency of our judges, almost any man is considered fit to be a 
 legislator, and all men equally fit to choose one. In such 
 circumstances should we find enacted laws Avhich are at variance 
 with the principles of nature, or which realize these principles 
 very imperfectly, the fact is one which we may well deplore, but 
 at which we cannot wonder. That the errors of our legislation 
 do in practice arise from mistaken or imperfect conceptions of 
 the objects which legislation ought to seek, quite as frequently 
 as of the means by which its objects are to be attained, is a fact 
 which will become apparent more and more as we compare 
 the objects of positive laws with the objects of natural laws; 
 and there is, moreover, this very important difference between 
 these two sources of error, that whereas a law which employs 
 inadequate means calls only for amendment, a law which aims 
 at a false object demands immediate repeal. When the legis- 
 lative engine is set on the right rails and turned in the right 
 direction, all that is requisite is that the greatest amount of speed 
 
194 HOW WE BECOME COGNIZANT OF LAW IN GENEEAL. 
 
 should be attained that is consistent with safety. But if it is on 
 the wrong line, or has run off the rails, the journey will never be 
 accomplished, and danger to life and property increases every 
 instant that the engine continues in motion.^ The question, then, 
 what are the laws which nature assigns to our human relations ?" 
 in addition to its lofty speculative interest, is the practical question 
 which omist take precedence of every other, because it is on it that 
 all other practical questions depend for their solution. 
 
 4. The natural or de facto hasis on luhich positive laiu rests 
 heing knoiun, the positive laiu which governs any given human 
 relation may he discovered. 
 
 From what we have seen of the genesis of our rights and 
 duties, we are now, I trust, in a condition to accept the three 
 following propositions. 
 
 1st. The laws of nature are logical, and, as such, necessary 
 inferences, which it belongs to the scientific jurist to make from 
 the facts which consciousness or internal observation, and ex- 
 perience or external observation, reveal to him as the necessary 
 conditions of human life. 
 
 2cl. The laws of the nation, public and private, and the laws 
 of nations, public and private, are similar inferences, which it 
 belongs to the legislator or practical jurist to make ; {a) from 
 the laws of nature, which he accepts as facts ; and (h) from the 
 local and temporal facts or circumstances of the nation, or of the 
 nations, which it is his business to ascertain. 
 
 2>d. Judicial sentences, or judgments, i.e. the laws of the 
 individual case, are inferences, equally necessary, which it be- 
 
 1 "If the principle of a law be wrong," says Burke, "the more perfect the law 
 is made, the worse it becomes." — Tracts on the Fopery Laics, cap. iii. part i. 
 
HOVv- TTE EEC 0 An: COGXIZAXT OF LATV IX GEXZEAL. 
 
 195 
 
 long? to the judge to make : (a) from the laws of the nation, or 
 of the nations, Tvhich he accepts as facts in themselves, and, 
 conseoiiently. as decisive of the lav of nature : and ^l] from the 
 facts, i.e. the characteristics and circumstances of the indi^tidual, 
 Avhich it is liis duty to ascertain. 
 
 There is probably no v-ay in vhich the absolute and neces- 
 sary character of positive lav in all its branches, and the fact of 
 jurisprudence being a science of nature, even in its minutest 
 details, can be better ULustrated than by remarking the close 
 analogy which subsists between it and the sciences of external 
 nature on the one hand, and the wide gulf which, on the other, 
 separates it from any system of rules logically deduced from 
 premises v-hich have been arbitrarily assumed. As an example 
 of the latter, let tts take the so-called science of heraldry. A 
 witty writer, in reviewing an heraldic book, claimed for the 
 '■' noble science " a foundation in nature, on the ground that 
 " man is a blazoning animal." But though the nature of man 
 ma}' impel him to blazon, it leaves him to blazon as he chooses, 
 at least in so far as his actions are free at all. There might be 
 fifty sciences of herpJdiy, each as good as the other, and this, 
 not in different circumstances, but in cii"'cumstances absolutely 
 identical At any time it would be possible to put a sponge 
 over such a science," and to construct another diametrically 
 opposed to it in every particular, and yet not inferior to it in any 
 respect. The second would be just as true to nature as the first, 
 just as true absolutely, because neither of them would have any 
 basis in nature, any absolute truth. The premises in both cases 
 being entirely arbitrary, so arbitrary that they might have been 
 determined by the casting of a die, if the tTiles were adhered to 
 
196 HOW WE BECOME COGNIZANT OF LAW IN GENEEAL. 
 
 and the conclusions logically deduced, tliat is all that could be 
 demanded in order to place them on a footing of perfect 
 equality. Both would be systems, neither would be sciences ; 
 and in place of two such systems coinciding, it would be quite 
 wonderful if they bore the slightest resemblance to each other, 
 even if the circumstances out of which they arose exhibited the 
 closest analogy. But with the sciences which have nature for 
 their object, and with the arts which rest upon these sciences, 
 the very reverse is the case. If the Chinese liad a system of 
 heraldry resembling ours, it would be as wonderful as if we 
 were accidentally to fall on the letters of their alphabet, and the 
 marks on their tea-chests, or if we were to find them playing 
 our game of whist. But if the Chinese liad a science of geo- 
 metry different from ours it would be no science at all. If they 
 measured the earth by it their measurements would be incor- 
 rect. If they built houses in accordance with it they would 
 tumble down. And so of their chemistry, of their physiology, 
 and their psychology, at least to the extent to which the bodies 
 and souls of Chinamen resemble those of other human beings. 
 Now it is the same with their jurisprudence. Their positive 
 law differs from ours, no doubt, very widely in its sjDccial pro- 
 visions; but these differences arise wholly from two causes, 
 viz., («) Error or imperfection in their conceptions of natural 
 law, or in ours ; for though natural law be infallible, all human 
 interpretations of it are subject to many errors ; and (b) differ- 
 ence of circumstances, wdiich necessarily varies the means by 
 which the same principles, or natural laws, are realizable in 
 diff^erent places, or at different times. Still, there are certain 
 invariable conditions of human life, such as the relations and 
 
HOW WE BECOME COGNIZANT OF LAAV IN GENERAL. 197 
 
 tlie limits of power, and, consequently, of right, tlie necessity of 
 mutual aid, the relations of the sexes, &c., Avhicli communicate 
 certain features of resemblance even to the positive rules by 
 which the laws of nature are realized in different countries. 
 Such laws, in short, differ in proportion to the extent to which 
 they are the result of differences of original genius, or of stages 
 of intellectual and moral development in the people, or of 
 climate and other conditions of inanimate nature ; they approxi- 
 mate in proportion to the extent to which these circumstances 
 are assimilated. Were the o'enius and the circumstances of two 
 nations the same in all respects, and their laws perfectly 
 adapted to them, these laws would be identical in their minutest 
 details. It is a profound saying of Kant,^ though not, as we 
 shall see hereafter, consistent Avitli the distinction betAveen per- 
 fect and imperfect obligations which he has adopted, that " there 
 can no more be two decisions in the same case than there can 
 be two straight lines between the same two points." As we can 
 only have a right line, and a crooked one, so we can only have 
 a right decision and a wrong one ; whereas, a case which has no 
 decision is as inconceivable as two points between which no 
 straight line can be drawn, or as a circle which has no centre. 
 It is an elevating thought on entering on the practice of our 
 profession, that there is thus no case that can be presented to 
 us so humble or insioiiificant that it mav not be so decided 
 as that we shall be entitled to say, with Kepler, that we have 
 " thought God's thoughts after Him." 
 
 5. Though necessarily existent and discoveraUe, ]oositive laws 
 never have heen, and prolahly never vnll he, perfeetli/ discovered. 
 ^ Metaphysic of Ethics, Semple's trans., p. 222. 
 
 i 
 
198 HOW WE BECOME COGNIZANT OF LAW IN GENERAL. 
 
 The truth of this proposition results only too plainly, from the 
 existence of that disturbing and bewildering element, which 
 in our moral nature we recognize as sin, and in our intel- 
 lectual nature as imperfection. Why we cannot discover a per-, 
 feet law, even when we seem to possess all the elements of 
 knowledge and reason, or obey a perfect law when we seem to 
 be conscious both of freedom and of will, is as great a mystery 
 as, but not a greater mystery than, why we cannot draw a per- 
 fect line or describe a perfect circle, though we know, and can 
 demonstrate, the conditions of perfection in both. But the 
 impossibility of discovering, or of obeying, perfect laws, is no 
 greater argument against making principle the guide of our 
 practice, and bringing positive as nearly as possible into con- 
 formity with natural law, tlian the impossibility of making 
 perfect lines or circles would be an argument against making 
 our straight lines the shortest distance we can discover between 
 the points they are intended to unite, or all the radii of our 
 circles as equal as we can. We cannot tell how near it may 
 consist with the scheme of the Divine government that either 
 the individual, or the race, should, in this life, approximate to 
 completeness, either of knowledge or of obedience. But our 
 ignorance, in this respect, need cause no irresolution to beings 
 whose nature does not cease to remind them of the rule of life 
 in its broader aspects, or set limits to the extent to which they 
 may trace out and conform to its minuter prescriptions. The 
 law of action and reaction, of which our extravagant and one- 
 sided tendencies, and our consequent reformations, and revolu- 
 tions, and reform bills, and party strifes, and party victories, 
 are humiliating and degrading manifestations, is, to all appear- 
 
OF THE LAWS OF XATUEE. 
 
 199 
 
 ance, jiist as inseparable from national life, as transgression and 
 re^Dentance are from individual life. History liolds out no hope 
 that the upAvard progress of humanity will ever be otherwise 
 than intermittent and indirect. But if there be any lesson of 
 encouragement that history teaches at all, it seems to be that 
 the experience which men purchase at so fearful a cost is never 
 viiolly lost by them, as a race. The idtimate identity of know- 
 iug and being asserts itself more and more. Though the ten- 
 dency to act on half truths never disappears, the opposite reasons 
 begin to tell sooner, and reaction takes place at an earlier 
 period, at each successive stage of the life of a progressive 
 pf^ople; and even where an individual nation has run so far 
 iuto excess as to render its continued advance, or even exist- 
 ence impossible, its fate is more readily recognized as a warning, 
 and its story as a contribution to that slowly accumulating mass 
 of recognized truth and realized knowledge which is power and 
 progress. 
 
 CHAPTEE IX. 
 
 OF THE LAAVS OF XATUEE, OK PPJXCIPLES OF JTEISPEUDEXCE WHICH 
 EESULT FEO^r THE HUMAX EIGHTS AXD DUTIES WHICH XATUEE 
 EEVEALS AS FACTS. 
 
 («) All liuman laws are declaratory. 
 
 The first great principle of jurisprudence, and that to which it 
 owes at once its sacred and its scientific character, is determined 
 by the necessity under which we have seen that our nature lies to 
 accept itself as right and to seek its own realization.^ I cannot 
 
 1 Ante, pp. i2, 43. 
 
200 
 
 OF THE LAWS OF NATUEE. 
 
 state it better than in the golden maxim of the greatest of our 
 own statesmen, which I have adopted as a motto to this work. 
 
 The passage, as a whole, is so instructive that I shall quote it 
 at length. " It would be hard," says Burke, " to point out any 
 error more truly subversive of all the order and beauty, of all 
 the peace and happiness of human society, than the position that 
 any body of men have a right to make what laws they please ; or 
 that laws can derive any authority whatever from their institution 
 merely, and independent of the quality of their subject-matter. 
 .... All human Imvs are, jproperly speaking, only declaratory. 
 They may alter the mode and application, but have no power 
 over the substance of original justice."^ 
 
 As laws are inferences from powers and rights,^ existing in 
 wider or narrower spheres, it is obvious that powers and rights 
 cannot owe their origin to laws. We have seen that out of the 
 original powers and rights which God bestows on His creatures, 
 new powers and consequent rights may be evoked by their free 
 activity. These new powers and rights may assume the form 
 either of increased personal capabilities of action, or of increased 
 dominion over external objects, and the latter more especially 
 may be transmitted and inherited.^ On the other hand, a pro- 
 cess of retrogression may have been in operation, and the indi- 
 vidual or the community may have dwindled, — may have become 
 less of an individual or less of a community than at a previous 
 period. In either case, and in all similar cases, it is obvious 
 from the necessary relation between power and right, that at 
 each step, whether of progress or retrogression, existing powers 
 
 1 Tracts on the PojJery Laws, cap . iii. part i. 
 
 2 ^nte, p. 190. ^ Ante, p. 178. 
 
OF THE LAAVS OF XATUEE. 
 
 201 
 
 are the sources of existinG^ ridits, that thev measure their extent, 
 and assign the limits of their recognition, ^vhether that recogni- 
 tion be effected internationally by treaty, nationally by statute, 
 or individually by judicial sentence. 
 
 Keeping this fundamental principle in yiew, you will at once 
 perceive the absurdity of the popular belief — of the prevalence of 
 which even in professional minds ^ too many instances might be 
 given — that rights are " conferred," " constituted," " modified," 
 " limited," " adapted," and even " altered " by law. Formally 
 of course, the thing may be done ; because anything may be 
 enacted. But the effect of such an enactment is not to change 
 rights, but to outrage them ; not to declare new truths, but to 
 
 1 Wheaton, History, pp. 99, 100, 104, 105 ; Pliilimore, vol. i. p. 21, and Mani- 
 festo of Great Britain to Russia in 1780, which he quotes. In such cases it is always 
 difficult to distinguish between loose Avriting and erroneous thinking ; but the 
 former in the author is too likel}" to become the latter in the reader. Even Grotius 
 is by no means so careful as could be Avished. As an instance take the concluding 
 sentence of sec. 40 of the Prolegomena. In that passage he speaks of a kind of 
 law ' ' Quod ex certis principiis certa argumentatione deduci non potest, et tamen 
 ubique observatum apparet, sequitur ex voluntate libera ortnm habeat." The 
 only hypothesis on which this passage is reconcilable with che general principle 
 that all positive law is necessary and declaratory is, that Grotius is here speaking 
 of mere enacted law which has failed to realize the law of nature. But that such 
 is not his meaning is plain from the fact that he says the law of which he is 
 speaking is of a kind that is ubique observatum. In stating, then, that there is a 
 species of purely voluntarj^ law, ex voluntate libera ortwm, which is ubique obser- 
 vatum, and which rests on no certain principles, and in speaking of this jus 
 voluntarium in other passages, e.g. i. i. ix. 2, audi. i. xiii., this great man has 
 not only forgotten, for the moment, the natural basis of jurisprudence, but has 
 contradicted his own doctrine, as set forth in sec. 12, 15, 16, 17, of the Frolego- 
 mc/ia and elsewhere. Voluntary law, in this sense, would not be the "grand- 
 child" (sec. 16), but the bastard of natural law. In the main, fundamentally 
 and substantially, the system of Grotius is both sound and consistent ; but in study- 
 ing hiui we must be actuated by the sentiment with which he himself approached 
 Aristotle : Nobis propositum est Aristotelera magni facere, sed cum ea libertate 
 quam ipse sibi in suos magistros, veri studio, indulsit" {Proleg. sec. 45). 
 
202 
 
 OF THE LAWS OF NATUEE. 
 
 proclaim falsehoods. Tlie vo/xw KaXov vojKX) KaKov is an aspiration 
 not only after the unjust, but the impossible. 
 
 The inflexible and universal character of what, in interna- 
 tional law, is known as the de facto principle, will be best 
 illustrated by bringing it in contact with special relations, and 
 mentioning a few of the directions in which legislation, by 
 attempting to set it at defiance, has caused an antagonism between 
 enacted and true positive law. 
 
 (b) Laio cannot constitute, extend, or circumscribe a p'oprie- 
 tary relation. 
 
 That possession is "nine points of the law," or, in other 
 words, that it constitutes the lorima facie title to possess, is a 
 maxim common to popular speech and to every department of 
 positive law. 
 
 The object which the thief has stolen is presumed to be his, 
 till previous possession has been estabhshed by another, to whom 
 the presumption of property is thus transferred. 
 
 The intruder can only be ejected by a previous possessor, 
 whose title the law declares to be preferable. 
 
 The law of prescription, by which questions of previous title 
 are excluded, is even a stronger illustration of the de facto origin, 
 and consequent declaratory character, of jurisprudence, inas- 
 much as it rests on the presumption, that after a limited time, no 
 other proof of property can be equal to actual possession. 
 
 In like manner, in public international law, de facto existence 
 as a state is the ground of cZc y^tre recognition, whilst in unap- 
 propriated territories actual possession and use must precede a 
 claim to exclusive title as against future occupants. Paper 
 titles, such as the Papal Bulls of other times, are now repudiated 
 
OF THE LAWS OF XATUEE. 
 
 203 
 
 as violations of natural right, on the ground that they are desti- 
 tute of the fundamental element of fact on ^A^hich right reposes. 
 Even partial occupation, such as that of savage and semi-civilized 
 nations, is held to confer an exclusive right only vuth reference 
 to territory which is actually occupied industrially, and not 
 simply wandered over, or occasionally resorted to as hunting- 
 ground or pasturage. It is on the same ground that paper 
 blockades have been repudiated by neutral states.^ 
 
 Such are a few of the most obvious, though not by any means 
 of the most indisputable instances of the declaratory character 
 which belongs to all true legislation, and to all real positive law. 
 It is by a more consistent adherence to, and a more extensive 
 application of the dc facto principle alone that legislative progress 
 is possible, and there are few legislative difficulties to which we 
 cannot, by its means, perceive the possibility at least of a theo- 
 retical solution. I have spoken elsewhere- of its applications 
 to international legislation, by the abandonment of the two 
 errors of permanence and ec|uality. Let us here advert to the 
 most delicate of all c^uestions of internal legislation, viz. : 
 Whether any, and if any what, limits may justly be set to 
 the accumulation and retention of private property ? The 
 principle that there is no right which does not arise from, 
 and continue to depend upon, power, and consequently that 
 law cannot carry a proprietary relation beyond the bounds of 
 its possible exercise, which decides this question in the case 
 
 "Solemn Declaration" of Paris, April 16, 1856. 
 ^ Bevue de Droit International, 1S71, iSTo. I. "Proposition d'nn Congres 
 international, base sur le principe de facto." Transactions of the Royal Society 
 of Edinhurgh, vol. xxiv. 1867, "On tlie application of the Principle of relative or 
 proportional Etj_TialitY to International organization." 
 
204 
 
 OF THE LAWS OF NATUKE. 
 
 of the savage, is equally sound, though of far more difficult appli- 
 cation, in the case of the civilized man. That alone can he 
 declared to he his which is his, and that alone is his which he 
 has made, and continues to make, his. As law can neither in- 
 crease nor diminish the faculties which God has given him, or 
 which he has developed, so neither can it assert or vindicate for 
 him rights which are in excess of these faculties, and which he 
 cannot exercise. To create rights is as impossible as to create 
 the individual in whom they inhere, to add a cubit to his stature, 
 or to raise him from the dead ; and to declare rights in excess of 
 his faculties is simply to declare what is not. But the powers 
 and faculties both of individuals and communities increase as 
 civilization advances, or rather, civilization consists in the in- 
 crease which takes place in these powers and faculties by means 
 of their exercise. A civilized community, or a cultivated man, is 
 thus in a condition to use and enjoy objects, which in the hands 
 of undeveloped communities, or individuals, are mere useless 
 tools. The powers of action and capacities of enjoyment and 
 suffering of the latter are mainly physical; whereas those of 
 the former, without ceasing to be physical, are in a still greater 
 measure spiritual, arising from the intellect, the imagination, 
 the taste. These additional powers and capacities are, in reality, 
 new elements of life, and they become additional sources of 
 rights over external objects, which it is the function of legis- 
 lation to ascertain, to declare, to vindicate. Within the same 
 community the rights of those who are more or less gifted by 
 nature and developed by education, stand in precisely the same 
 relation to each other, in kind, as the rights of the superior and 
 inferior, or of the civilized and savage races of mankind. Even 
 
OF THE LAWS OF XATUEE. 
 
 205 
 
 if tlie same means of culture could be placed witliin the reach 
 of all, men's powers of availing themselves of it differ so widely, 
 that, relatively at least, the barbarian, like " the poor," we shall 
 " have with us always." 
 
 'Now, whenever the external means and appliances of energiz- 
 ing in accordance with nature, in the case of individuals, of 
 classes, or of communities, are at variance with their powers and 
 capacities of so energizing, there legislative action is called for to 
 bring right into conformity with fact, and positive into harmony 
 with natural law ; and to the extent to which the facts can be 
 measured, the rights may be defined. The special rights being 
 dependent on the special, i.e. the local and temporal facts, and 
 variable with them, can never of course find expression in any 
 general or permanent formula. But when the general rights of 
 humanity of which the de facto principle is the expression, are 
 brought in contact not with the local and temporal, but with the 
 general and permanent facts of humanity, these three general 
 principles stand out for the guidance of legislation. 
 
 (1.) All men being equally men, and as such capable of 
 energizing humanly, i.e. of using and enjoying the means of 
 human existence, are equally entitled to use and enjoy them. 
 
 But the means of existing humanly, we have seen,^ include 
 the means of developing humanly. This principle consequently 
 brings compulsory taxation for the support and education of the 
 poor, within the sphere of justice, and to this extent limits the 
 exclusive rights of property. 
 
 (2.) All men not being equal men, are not capable of energiz- 
 ing equally, i.e. of using and enjoying the means of human 
 
 1 ^H^c, p. 173. 
 
206 
 
 OF THE LAWS OF NATUEE. 
 
 existence to the same extent; all men, consequently, are not 
 entitled to the same means of energizing, and a legislative enact- 
 ment which should attempt to bring about an equal distribution 
 of means would sin against nature by wasting her gifts in two 
 directions. 
 
 1st. It would deprive those whose powers were above the 
 average of humanity of means which they were capable of using 
 for the common benefit, and would thus cause a waste of power. 
 
 2cl It would confer on those whose powers were below the 
 average of humanity means which they were incapable of using, 
 and would cause a waste of means. 
 
 Natural law, then, which is the ideal of economy as well as of 
 justice, demands that a proportionate relation shall be main- 
 tained between means and powers. 
 
 dd. 'No man being more than a man, and man's powers both of 
 action and enjoyment, even when developed to the utmost, being 
 confined within very narrow limits, his right to the means of 
 energizing are necessarily limited both in extent and in duration. 
 
 This principle warrants legislative interposition to prevent the 
 indefinite accumulation of property in the hands of single indi- 
 viduals. This may be effected in various ways, e.g. 
 
 1st By enforcing the partition of property amongst the 
 children of the family. The de facto principle by no means for- 
 bids either a law of primogeniture, or the legal preference of 
 males to females ; but it brings both within the scope of the 
 principle of preserving the proportion between rights and powers. 
 We cannot accumulate the whole powers of a family in a single 
 son, or merge the ]30wers of women in the powers of men ; so 
 neither can we accumulate or merge their rights. But as the 
 
OF THE LAAVS OF XATUEE. 
 
 207 
 
 presumption of fact is in favour of the powers of the eldest son 
 exceeding those of his younger brothers at the period of the 
 father's death, and of those of the brothers exceeding those of 
 their sisters, it is in accordance with the dc facto principle that 
 the law of intestate succession, at all events, wdiich must pro- 
 ceed on such assumptions, should prefer them. The extent of 
 the preference is a question of fact for wdiich natural law" offers, 
 of course, no solution. That it will be greater in rude and w^ar- 
 like than in civilized and peaceful times is obvious ; but resting, 
 as it does to some extent, on permanent facts of age and sex, it 
 can never be wdioUy abolished. 
 
 2cZ. In the absence of children, unlimited legal rights may be 
 obviated by a compulsory distribution amongst collaterals, or by 
 the adoption of the Crown, or the public, as joint heir with any 
 individual whom the deceased may fai^our. 
 
 The practical difficulties wdiich stand in the w^ay of even an 
 approximate estimate of the amount of means which may be 
 really possessed and employed by a single individual, for the 
 purposes of human life, are so great as in general to have dis- 
 couraged modern legislators from attempting to realize a principle, 
 an inconsiderate application of which would lead to many of the 
 evils which in former times attended those sumptuary laws, the 
 object of wdiicli was to prevent waste in the direction not of 
 accumulation, but of expenditure. If w^e reflect, however, on the 
 marvellous rapidity with which w^ealth accumulates after it has 
 passed the bounds of possible enjoyment, and the tendency 
 VN'hich it has to become a burden and a snare to its nominal 
 possessor, and a source of corruption to the society which it 
 ought to fertilize, w^e shall see the advantage which might arise 
 
208 
 
 OF THE LAWS OF NATUEE. 
 
 in the embodiment in actual legislation of the ]3rinciple of the sub- 
 jective limitation of rights. That legislation from the subjective 
 side, which should define the rights of the ' possessor, would be 
 infinitely less dangerous than legislation from the objective 
 side, which should declare the apparent rights or interests of 
 others, is plain enough. Absolute spoliation could scarcely occur. 
 Still the task of framing such an enactment is too delicate to 
 render it probable that it will ever be satisfactorily performed. 
 The tendency of a democratic legislature unquestionably would 
 be to take cognizance all but exclusively of mere physical 
 powers, and thus to bring about an equalization of wealth which 
 would deprive the spiritual life, first of individuals, and then of 
 the community, of all means of support. ^ Like so many prin- 
 ciples of natural law, the principle which limits the accumula- 
 tion of means to the physical and spiritual powers of enjoy- 
 ment, though it may be enforced, is one which will be far more 
 easily and safely realized by men in their individual and 
 domestic, than in their citizen capacity. In this sense the task 
 is one which is almost wholly in the hands of the class whose 
 ultimate interests call so manifestly for its performance, that 
 private action, even at the sacrifice of a few cherished traditions, 
 ought not to be hopeless. No substantial loss of physical enjoy- 
 ment or social consideration would, I believe, be demanded by a 
 voluntary redistribution of wealth, which would remove all force 
 from the argument that a waste of means resulted from the accum- 
 ulation of property ; whilst by increasing the numbers of the cul- 
 tivated classes, a really trustworthy barrier would be erected 
 
 1 The almost total indifference of the legislature of this country to the interests 
 of the higher educational institutions is already an indication of this tendency. 
 
OF THE LAWS OF NATURE. 
 
 209 
 
 against those "barLarian influences from within, which, at the 
 present time, endanger the upward progress of humanity far 
 more seriously than any barbarian aggression from without, 
 and against which the weapons of mere physical warfare offer 
 no protection whatever. I fully admit the difficulties which 
 cling to all questions of degree, but still, if we take a few 
 extreme instances, we shall see that even these difficulties, like 
 other things, have their limits. There are bounds beyond which 
 they cease altogether, and these bounds may be rendered more 
 definite by careful study of the circumstances in which we seek 
 to impose them. 
 
 When Mr. Hole, in his beautiful Booh ahout Eoses} says — 
 " Trop n'est pas assez ; and if I had N'ottinghamshire full of roses, 
 I should desire Derbyshire for a budding-ground," — we can see 
 that he is speaking as a rosa-maniac fully conscious of his 
 infirmity, and we are as little led astray by him as by Beau 
 Brummell when he said that, with strict economy, a young 
 gentleman might dress himself for a thousand a year." But 
 such illustrations prove only that there are limits to what 
 may be rationally desired, or sanely expended, by reducing the 
 opposite proposition acl ahsurchtm. Let us try whether we cannot 
 come somewhat nearer to the point at which use ceases and waste 
 begins, and thus turn the utilitarian principle to its true use, — 
 that, namely, of guiding us to the means by which natural law is 
 reahzed. 
 
 A man, for example, in addition to providing for the require- 
 ments of his position, as a man and a citizen, may purchase an 
 estate of moderate dimensions, for the gratification of his taste, and 
 
 1 p. 62. 
 0 
 
210 
 
 OF THE LAWS OF NATUEE. 
 
 the indulgence of his pleasure. If no vested rights oppose him, 
 he may even clear it of its inhabitants, and turn it into a park 
 or a deer-forest, because these are forms in which he, or his heirs, 
 may be presumed to be capable of really enjoying it and exer- 
 cising the rights of property over it. But Mmrod himself would 
 have no claim to depopulate even so small a country as Scotland 
 or Switzerland for sporting purposes ; and if a modern millionaire 
 were to absorb a single county or a single canton for his pleasure, 
 or indeed under any plea of occupancy, and attempt to give it 
 permanently the character of a single possession, he would cer- 
 tainly evoke feelings, and probably provoke measures of a kind 
 which would be very prejudicial to the cultivated classes, and 
 ultimately to civilization. When we pass limits which, though 
 they cannot be absolutely may be relatively defined, the earth 
 can be no more appropriated than the air or the sea. It then 
 becomes a res puUica, and any attempt to establish rights of 
 property over it will be scorned as a failure, and resented as an 
 injustice. 
 
 In a precisely similar manner the de facto principle assigns 
 temporal limits to rights of property. After the lapse of a few 
 centuries, or even generations, permanency, when applied to 
 human rights, becomes as unmeaning a word as infinitude. We 
 transmit to our descendants, or to those whom we adopt in their 
 stead, the conditions of physical and spiritual life and develop- 
 ment on the same title on which we transmit life itself.-^ But 
 our descendants will be lost in the crowd of humanity that is to 
 come after us, as our ancestors have been lost in the crowd of 
 humanity that came before us. The longest posterity, like the 
 
 ^ Ante, p. 178, et seq. 
 
OF THE LAWS OF XATUKE. 
 
 211 
 
 longest pedigree, will have its limits, and wlien these limits are 
 reached, the basis of fact, on which the right of transmission 
 rested, will be lost. The right, consecjuently, must be held to be 
 non-existent, or rather to be transmuted into some new right in 
 harmony with the new fact which has been generated. In 
 declaring the existence of this new relation between ridit and 
 fact, there is manifestly no interference Avhatever with the 
 original right of property, because that right, in its original form, 
 has already perished. Here, as in the former case of the limita- 
 tion of rights in point of extent, C[uestions of fact of the most 
 delicate kind remain for the solution of the practical legislator ; 
 but the abstract formula of legislation plainly is this — 
 
 So long as, and to the full extent to icliich, the facts on ichich 
 rights of jjro'perty rest remain unchanged, these rights are inviolable; 
 hut no longer, and. no farther. 
 
 The riuht which A transferred to B not beino- an absolute and 
 unlimited, but a relative, conditional, and limited right, B's rio-ht 
 will cease, or change its character, when the condition fails, or 
 the limit is reached. 
 
 Of temporal limitations of rights arising out of the de facto 
 principle, Ave have numerous examples in positive legislation. 
 
 When rights of property are limited or resumed, as is said, for 
 public purposes, e.g. for the construction of a railway, the true 
 theory of the transaction is, not that the individual has been 
 deprived by law of a portion of what belonged to him, but that 
 his right was all along limited or conditioned by the necessity of 
 enjoying it as a member of the community, and that it can be 
 so enjoyed now only under the additional burden, or new con- 
 dition, which the law declares. From the first it held in greniio, 
 
212 
 
 OF THE LAWS OF NATURE. 
 
 SO to speak, a contingent subjective limitation wliicii lias now 
 emerged, and which has its counterpart in an objective right 
 on the part of the community to enforce a sale for public 
 purposes. 
 
 Precisely on the same principle, charitable and educational 
 endowments are modified by the legislature. When they cease to 
 fulfil their object, the rights which centre in them have no longer 
 the basis of fact on which they originally rested. An endowment 
 for the benefit of slaves, or for the support of an established 
 church, becomes inoperative on the abolition of slavery or the 
 disestablishment of the church. In all such cases the legislature 
 must look not to the immediate, but to the ultimate object which 
 the testator or benefactor had in view, and this it will effect by 
 ascertaining the new facts and the consequent rights which have 
 arisen. The Protestant Church of Ireland was established, and 
 many bequests were made to it for objects which were not found 
 to be attainable by its means. These bequests were thus in the 
 position of legacies, with conditions attached to them which had 
 proved to be impossible. That fact being ascertained — if it was 
 ascertained, — and Parliament having declared the Established 
 Church itself to have ceased to exist, on the ground that the 
 conditions of its existence had failed, all future rights which 
 would have continued to spring from it were declared to be no 
 longer emergent in their original forms. The rights of present 
 incumbents, on the other hand, were sustained, on the ground 
 that the conditions on which they accepted their offices remained 
 unaltered. The only respect in which the recent disestablish- 
 ment of the Protestant Church of Ireland differed from the 
 dismemberment of the Eoman Catholic Church at the Eeforma- 
 
OF THE LAAVS OF XATUEE. 
 
 213 
 
 tion was, that the establishment of the Irish Church was held 
 to have been an error, or an act of injustice from the first, — 
 the facts never liavino- warranted the riiihts which had been 
 legislatively affirmed, and the institution having rested on 
 enacted, and not on natural positive law.^ But the effect of the 
 tAvo measures on priA'ate bec|uests Avas precisely similar. The 
 Eeformation rendered half the founders' Avills in Oxford 
 obsolete, and Christianity must have SAvept aAvay those of the 
 pious donors of heathendom still more extensiA^ely. Eights, the 
 validity of which had been recognized for ages, Avere repudiated 
 on the ground, not that they AA'ere bad originally, but that they 
 Avoidd liaA^e been bad had the circumstances of society been 
 what they had become. The same effect would have been 
 folloAved had the donors or the founders lived ; for no endoAv- 
 ment bA^ a liAuns; man Avould noAv entitle him to haA'e masses 
 said for his soul by the FelloAvs of an Oxford college, or a temple 
 of A^enus built alongside of a Free-kirk. The case is analogous 
 to that in AAdiich a change has taken place in the A'alue of money. 
 The poAvers on Avliich the rights Avere founded are the money 
 which the testator Avilled should be paid for them. But if the 
 money for Avhich they Avere then procurable no longer measures 
 their value, to force the present possessors of the commodities, 
 supposing them to exist, to give them for the same sum, aa'ouM 
 not be to Adndicate the rights of the buyer, but to invade those 
 
 1 Our Edinburgli hospitals, in tliis respect, were in tlie same position as tLe 
 Established Church of Ireland. They never fulfilled the professed objects of their 
 founders. The case would be different if it were proposed to disestablish the 
 Church of England, or the Presbyterian Church of Scotland. The plea would 
 then be that of " tempora mutantur, nos et (those whom they once benefited) 
 mutamur in illis." 
 
214 
 
 OF THE LAWS OF NATURE. 
 
 of the seller. This remark suggests another illustration of the de 
 facto basis, and consequently of the declaratory character, of law. 
 (c) Lcm cannot fix a price. 
 
 Political economy hrst became a science when it was acknow- 
 ledged to be a statement, not of the ingenious devices of men, 
 but of the laws by which nature, independently of human con- 
 trivance, regulates the relations of trade, or, in other words, of 
 the acquisition and transference of wealth; and it is to the 
 frankness with which political economists have accepted, and 
 the fidelity with which they have acted on the declaratory or de 
 facto principle, to which all true scientific inquirers owe allegiance, 
 that we are indebted for the superiority of the departments of 
 our practical jurisprudence which fall within its sphere, to those 
 by which the relations of the citizen, and even the status of the 
 individual are governed. Whilst we have been "making" 
 political and social laws, we have been contented to discover the 
 laws of trade, and the consequence has been that, whereas in 
 the one direction the necessity of unmaking what experience 
 had repudiated has absorbed more than half our energies, and 
 there is still the widest divergence between different com- 
 munities, in the other a system has been developed, which has 
 met with so wide an acceptance as to have brought mankind 
 almost to the condition of a single family. But mercantile 
 legislation had not always the guidance of this monitor ; and 
 in former times nothing was more common than to fix the 
 prices of commodities, including labour, by law. The price of 
 a commodity is the right to the commodity valued in money, 
 or, in other words, the pecuniary measure of the right. ^N'ov/ 
 it is plain that a law which declares the right of the pos- 
 
OF THE LAWS OF XATURE. 
 
 215 
 
 sessor to be measured by tlie price, or, iu other words, given 
 liim an action for whatever he can establish to be the value of 
 his commodity, gives him his due (his suiim), and determines 
 his natural relation to others with reference to that object. But 
 if a nominal price be set on it, or a right in it to be " constituted 
 by law," different from its market value, a wrong is done, either 
 to the possessor and possible seller of the commodity, or to 
 the rest of the community. If the price assigned to it be 
 below its market value, the possessor is robbed of the difterence ; 
 if it be above the market value, a monopoly to the extent of the 
 difference is created in his favour. But in neither case is the 
 real value of the commodity changed, or the right of its possessor, 
 of which its value is the measure, affected by the arbitrary price 
 which has been fixed by the laAv, Such a law, it is true, may 
 be enforced, or what is far more easy, the parties defrauded by 
 it may be punished for its evasion. But it can no more become 
 a law, in the genuine sense in which alone positive laws find 
 their warrant in nature, and take their place in the science of 
 jurisprudence, than the arbitrary price can become the real price, 
 in accordance with the science of political economy. To 
 put it on a footing of ec|uality with a law which declares that 
 the seller shall have the real value of his commodity, on 
 the ground that it has been enacted by a competent authority 
 from some fancied motive of expediency, is to separate law from 
 justice altogether, and to fall back on the old fallacy of the vo/^w 
 
 All legislative errors are not ec^ually absurd, and a law fixing 
 a price for a commodity at variance with its real value, or declar- 
 ing aU men to be ecj_ual, at variance with the facts both of nature 
 
216 EELATIOX BETWEEN LEGISLATION AND JUEISDICTION. 
 
 and society, is not so manifestly ridiculous as a law declaring 
 that sweet shall be bitter/ that black shall be white. But all 
 laws which set the facts of nature and the arrrangements of 
 Providence, with their legitimate consequences, at defiance, are 
 equally at variance with the principles of the science of juris- 
 prudence, and for this simple reason that the object of that 
 science is not to redistribute God's gifts according to any prin- 
 ciple, either just or unjust, but to discover and to recognize 
 the distribution which He has made. 
 
 CHAPTEE X. 
 
 OF THE EELATION BETWEEN LEGISLATION AND JURISDICTION. 
 
 The function of the judge, as such, is limited to the interpretation 
 and application of written, or consuetudinary, law. 
 
 Though I have been careful and anxious to bring out the 
 importance of the distinction which, when seen in the light of 
 the science of jurisprudence, or with a view to legislation, exists 
 between a positive law and a mere arbitrary enactment, I hope 
 no one will impute to me any such opinion as that the judge 
 is emancipated from enforcing an enactment by what may 
 appear to him to be its imperfection, or even its absurdity.^ 
 The fact that it has been enacted, or is recognised by his 
 sovereign, whether that sovereign be an individual or a com- 
 munity, renders it a positive law to him, qua judge, because his 
 judicial existence rests on the hypothesis that his sovereign is a 
 
 ■'■ The vo'/x(fj y\vKv vSfxc^ wLKpbu of Democritus. 
 
EELATIOX BETAVEEX LEGISLATIOX AXD JUEISDICTIOX. 217 
 
 true interpreter of tlie laAV of nature in the circumstances of that 
 community. It is this hypothesis which giyes yaliclity to his 
 jurisdiction, and places eyery suitor yho asks liis judgment 
 yirtually in the position of the people of Israel Avhen they came 
 to Moses "to inquire of God." ^ It is the major premiss, so to 
 speak, of eyery judgment which he pronounces, and he would 
 not only act illegally but illogically if, in defiance of it, he either 
 exercised his priyate judgment, or arrogated to himself the 
 functions of the legislature. 
 
 But whilst his duty, as the official representatiye of the 
 soyereign will, is clear beyond all dispute, it is needless to 
 deny that cases may, and do occasionally occur, not only to the 
 judge but to the citizen, in which the duty of the indiyidual 
 giyes rise to most painful hesitation. Ought the judge to 
 administer, or the citizen to obey, a positiye law which the one 
 or the other belieyes to be at yariance with the law of nature 
 and the will of God ? or oudit not rather each of them to relin- 
 quish by anticipation, the one the office, and the other the 
 allegiance, which he knows may impose on him such a duty. 
 To all generous minds the affirmatiye answer will at once sug- 
 gest itself. Clearly, it will be said, no man ought to obey, far 
 less to administer, a law which he belieyes to be wrong. But as 
 a warning against hasty conclusions, eyen in the right direction, 
 just consider what would be the consequences of such a rule if 
 it were rigorously applied to the relations of any mere man, how- 
 eyer good and wise, and any actual, or I fear, any possible 
 community of human beings. Human judgments, being fallible, 
 are diyerse, not accidentally but necessarily. That the citizen, or 
 
 ^ Exod. yiii. 15. 
 
218 KELATION BETWEEN LEGISLATION AND JUEISDICTION. 
 
 judge, sliould sometimes, as an individual, dissent from the 
 ruling voice of his countrymen is therefore inevitable ; and if on 
 the occurrence of every such difference of opinion, however 
 trifling, he thought it necessary for conscience' sake that he 
 should vindicate his own views, or even decline to accept theirs, 
 the woolsack would be converted into a bed of thorns, and 
 human society would be impossible. We should have but one 
 social phenomenon to contemplate, and that a phenomenon with 
 which we in Scotland are but too well acquainted, — a perpetual 
 hiving-off of minorities — one never ending "Disruption." 
 It is clearly of the nature of every community, whether lay or 
 ecclesiastical, that it should set certain limits to the right of 
 private judgment of its members ; nor will these limits be so 
 difficult to assign, in the particular instance, as may at first 
 aj)pear, if, on the one side and the other, it be kept in mind 
 that their object is not the restriction, but the greatest possible 
 extension of the borders of liberty to all. To pursue this sub- 
 ject further would bring us on ground which we must tread 
 hereafter,^ and for the present I shall content myself with 
 referring to the remarks of Dr. Lushington, Dean of the Arches^ 
 in the famous case of Williams v. Bishop of Salisbury.^ 
 
 The nearest approach to legislation which is permitted to the 
 judge consists in the dispensation of what is called " equity," by 
 which in its original, though scarcely in its later English tech- 
 nical sense, he is understood to modify the letter of the law 
 to the extent of enabling him to apply its spirit, i.e. to ad- 
 minister justice in circumstances which were unforeseen when it 
 
 1 Infra, Book IIL Cap. IIL 
 
 2 Morris P. C. Cases, 375. 
 
EELATION BETWEEN LEGISLATION AND JURISDICTION. 219 
 
 was enacted. We must guard, however, against the error of 
 supposmg that in dispensing equity the judge dispenses justice 
 of a different kind from that on which law reposes. There is 
 but one kind of justice; and legal justice and equity, as v/e shall 
 see hereafter,^ are identical. Something different from law, in the 
 sense of common or statutory law, he, no doubt, does dispense. 
 But the whole object of his departing from law is to enable him 
 to adhere to justice, and this not justice in any special sense, not 
 justice of a "higher and finer kind,"^ as Aristotle, or Eudemus, 
 somewhat misleadingly tells us, but the ordinary justice of the 
 case, which the law as it stands has failed to embrace. He ex- 
 temporizes, so to speak, an exceptional law (repcntinum edidiim) 
 to meet the exigencies of exceptional circumstances (^froid res 
 incidit). In the possibility of the occurrence of cases calling for 
 so irregular a use of the judicial office, or resulting in a legiti- 
 mate conflict between enacted law and the most recent dis- 
 coveries of physical science or theological truth, we behold the 
 extreme importance of such a constant revision of our statute 
 books, lay and ecclesiastical, as shall at all times preserve the 
 harmony between their provisions and the prevailing beliefs of 
 the existing generation. It is very far, hoAvever, from indicating 
 that the binding force of erroneous law, whilst unrepealed, arises, 
 as Mr. Austin supposed, from some other ultimate source than 
 natural law. Up to the moment that an enacted law is repealed, 
 it enjoys the presumption that it is not erroneous, — in other 
 words it continues to be the interpretation of the law of nature 
 which the community has authorized ; and it is surprising that 
 
 1 Cap. XI. XII. 
 
 2 Grant, Arist. v. c. 10, note p. 139. 
 
220 
 
 HISTORY OF THE DISTINCTION 
 
 Mr. Austin should not have seen that it was to this still 
 unbroken link which binds it to the source of all law, the foun- 
 tain of all legislation, that its authority is due.^ 
 
 CHAPTER XL 
 
 OF THE HISTORY OF THE DISTINCTION BETWEEN PERFECT AND 
 IMPERFECT OBLIGATIONS; AND ITS EFFECT IN GIVING RISE 
 TO THE NEGATIVE SCHOOL OF JURISPRUDENCE. 
 
 (a) Bights and duties hcing throughout reci^orocal and co-extcn- 
 sive, there is no distinction, in jprinciple, hetiveen one class of 
 obligations and a7iother. 
 
 Our previous inquiries^ led us to the result that the duty of 
 affording mutual aid infers, in every case, a corresponding right 
 to claim such aid, and that the rights and duties which bind 
 human beings to each other are throughout reciprocal and co- 
 extensive. I have frequently indicated, moreover, as the obvious 
 consequence of this revelation of our nature, that the question 
 what rights or obligations shall or shall not be enforced by 
 positive law ? is a question, not of principle at all, but of physical 
 possibility, or of local or temporary necessity or expediency. 
 Whilst the ultimate objects of positive law, being the objects of 
 our existence itself, are more stable than the hills, because their 
 variation is unthinkable, the proximate objects of positive law, 
 though by no means arbitrary, are necessarily and essentially 
 variable. 
 
 1 Austin, voL i. p. 234. ^^Antc, p. 185. 
 
BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 221 
 
 If this view be correct, any attempt to determine the limits 
 and define the province of legislation, by drawing a line of 
 absolute and permanent demarcation between what may and 
 what may not be enacted, must be abandoned as a mistake. 
 But before I ask my readers to relinquish so cherished and 
 attractive a project, there are one or two idols which, though 
 now instinctively shunned by many of their former worshippers 
 in the forum, still hold their own in the cave, and which, if 
 possible, I must displace from their pedestals. 
 
 It will readily be perceived that the doctrine which I have 
 submitted is inconsistent with the distinction by which rights on 
 the one hand, and duties and obligations on the other, have been 
 divided into two classes, called perfect and imperfect, of which 
 the first are said to possess, and the second to want, those in- 
 herent qualities which warrant the use of force to secure their 
 fulfihiient. 
 
 The distinction, as we shall see immediately, has been variously 
 stated by different schools of jurists and moralists, but under all 
 the modifications of it which do not amount to entire repudia- 
 tion, it means essentially what I have stated ; and of all the 
 stumbling-blocks with which pedantry has encumbered our 
 science, I tliink it is that which has proved most fatal to its 
 progress. 
 
 It is true that there is a meaning which is sometimes 
 attached to this distinction by practical lawyers, to which, 
 as it has no scientific significance, there can be no theoretical 
 objection, except this, that not being the meaning which was 
 assigned to it by any of the theoretical writers from whom the 
 practitioners ignorantly adopted it, its use is perplexing, and is 
 
222 
 
 HISTORY OF THE DISTINCTION 
 
 only a confused and roundabout way of getting at a distinction 
 which is perfectly plain, if simple men would be contented with 
 simple words. In the sense to which 1 refer, it merely asserts 
 that there is one class of obligations which, at a given time and 
 place, would, and another which, at the same time and place, 
 would not, and ought not, to be accepted as good grounds of 
 action in a court of law, without attempting to ex23lain the 
 reasons which led to the formation of the two classes. So stated, 
 it amounts to nothing more than the distinction between posi- 
 tive and natural law, and in that sense, as I said, my only 
 objection to it is that it is needless. But I object to it on far 
 higher grounds when I hear it in the mouths of theoretical jurists, 
 when I find it imported into natural law, and when obligations 
 are ranged in virtue of it into two classes, differing not in degree, 
 but in kind, and that so essentially, as that one of them falls 
 permanently without, and another permanently within an 
 imaginary line which is supposed to mark off the sphere of ethics 
 from that of jurisprudence. To say that some obligations are 
 more important, or more sacred than others, would be merely to 
 say, that all the transactions of life are not of equal magnitude — 
 a proposition too obvious to be supported by argument, even by 
 Puffendorf.i jsi'gr would it be less of a commonplace to assert, 
 that some of them, on the ground of their greater importance, 
 are more frequently enforced, or because they have reference to 
 external objects, may be enforced more readily than others. But 
 
 ^ But even in tins respect obligations continually change places. In general it 
 is a more sacred obligation that I should pay my debts than that I should go out 
 to dinner. But suppose the debt is an omnibus fare which my brother has paid 
 for me, and that the dinner is a feast of reconciliation to which he has invited me 
 after a long estrangement ? Quid Juris' 
 
BETWEEN PEEFECT AXD DIPEEEECT OBLIGATIONS. 
 
 223 
 
 to say tliat one lialf of tliem rests on a half clictiim of conscience, 
 and tlie other half on a whole dictum of conscience, that though 
 the observance of all of them be right, there is one half of which 
 the violation is not wrong, and that this half of them falls be- 
 yond the domain of justice — these are propositions which seem 
 to me not only unsound in theory, but fraught with practical 
 dangers of a more than ordinarily serious kind. It was of a 
 svstem in which this distinction was carried out to its legitimate 
 consequence, of a complete separation between law and ethics, 
 that Hugo applied the epithet of a cut-throat code ^ (Eine 
 Todtschlagmoral), and I shall point out to you instances of its 
 eftects by and by, which will convince you that the expression did 
 not o'o bevond the occasion. Yet so far is this error from beino- 
 an exploded and innocuous one that, at a period comparatively 
 recent, it formed, even in Germany, the basis of the prevailing 
 doctrines of scientific jurisprudence, and the only ones Avliich 
 ever largely infltienced the thought of this country : whilst, with 
 little knowledge of its history, and less perception of its conse- 
 cptences, it is still adopted and retailed by our latest Avriters, and 
 not unfrequently acted on by our statesmen and legislators. It 
 is in virtue of it that a recent writer- has asserted that, in passing 
 from the doctrine of recognition to' that of intervention, we 
 betake ottrselves to a " high and summary procedure, which may 
 sometimes snatch a remedy beyond the reach of law," of which 
 "its essence is its illegality and its justification its success;" and 
 it is m obedience to it that, shrinkino- from " the fluctuatinss- and 
 trackless depths of policy " in which this writer finds no guiding 
 
 ^ Tenneman, p. 361. 
 I 2 Historicus on Inter imtional Laic, p. 41. 
 
224 
 
 HISTORY OF THE DISTINCTION 
 
 principle at all, our newspapers liave advocated and onr Govern- 
 ment lias adopted the cowardly and heartless doctrine that we 
 may blamelessly withhold our aid from nations struggling with 
 oppression, even on the assumption that it is in our power to 
 afford it without counterbalancing loss, or even danger, to 
 ourselves. 
 
 {!)) The attempt to distinguisJi hctiueen perfect and imperfect 
 ohligations ivas not unknown to antiquity. 
 
 I cannot agree with Warnkonig, or with his authorities, 
 wdien he states ^ that neither amongst the Greeks nor Eomans 
 are any indications to be found of the distinction in question, 
 and that it was Thomasius who, in 1705, for the first time 
 divided ethics into two portions, viz. morals and natural law, 
 the first embracing those imperfect duties which cannot con- 
 sistently with justice, and the second those perfect duties 
 which must consistently with justice, be enforced. On the 
 contrary, I believe, that like most theoretical distinctions which 
 admit of many practical applications, it was early suggested 
 by foregone conclusions which it served to justify; and that 
 thus, in substance at least, it has a place in the history of 
 speculation in every age and country almost from the beginning. 
 As regards classical antiquity, at all events, it is not only 
 distinctly traceable in the later stoical distinction between 
 the KaOrjKov and the Karopdw/xa,'^ but we find that Socrates 
 regarded it as part of the prevalent teaching of his time, 
 and that it was his strong sense of the evils which resulted 
 from the sophistical habit of subordinating the virtues to each 
 
 1 DcUncatio, p. 6. 
 
 2 Grant's Aristotle, i. p. 262. Zeller's Stoics, p. 271. , 
 
BETWEEN PERFECT AXD IMPEKFECT OBLIGATIONS. 225 
 
 other, and thus withdrawing from them severally the 
 sacred character which conld not be refused to them as a 
 whole, that led him to contend so keenly for their unity, 
 and the ultimate identification of each with all, and of all with 
 each, 
 
 Tlien look at the middle ages. Asceticism, in so far as it 
 aimed only at self-discipline, on the one hand, or at a severer 
 training for tlie service of God and man, on the other, rested alike 
 on objective and subjective conceptions of duty; for every man 
 is bound to use the talents tliat have been committed to him, 
 and he can claim no merit, if, in order to render them available, 
 he has to fortify by external appliances a will which he recog- 
 nizes to be free. But when ascetic practices came to be re- 
 garded as works of supererogation — when it came to be thought 
 that God's favour could be secured by them, just in proportion 
 to the extent to which they transcended the bounds of duty, — 
 then, as of old, the virtues came to be referred to separate prin- 
 ciples, and an order of them was imagined to which no rights 
 corresponded, and the obligation to perform which was imper- 
 fect. It was on this distinction that a large part of the 
 science of casuistry-^ rested, which differed from jurisprudence 
 in this, that, whilst jurisprudence dealt with duties which, 
 seen from the opposite point of view, became rights, casuistry 
 was occupied mainly with the aptitudes, as they were called, 
 or unilateral duties. ^ 
 Lastly, as regards the earlier masters of our own science in 
 
 ^ It was in virtue of their admissioD of tlie ddcdcpopa that the Stoics became 
 the founders of casuistry. .Zeller's Stoics, pp. 218, 281. 
 " Neandtr. 
 
226 
 
 HISTOEY OF THE DISTINCTION 
 
 modern Europe the fact that the distinction is indicated by 
 Suarez and had found admission into such works as those of 
 Grotius and Puffendorf, is proof enough that, though they had^ 
 no thought of pushing it to the negative consequences which it 
 ultimately yielded, the idea of turning it to account as a meaos 
 of defining the province of jurisprudence was not reserved for 
 Thomasius in 1705, and still less for Mr. Philips in 1864.^ 
 
 (c) It is generally ascribed to Thomasius. 
 
 Whether justly or not, the distinction in question, when 
 viewed as a doctrine defining the limits of the science of 
 jurisprudence, is generally coupled with the name of Christian 
 Thomasius, almost in the character of a discovery, a circum- 
 stance amongst others which proves, though we hear little of 
 him now, that he was a man of first-rate importance in his 
 own day, and renders it desirable that I should preface my 
 criticism of his system with some slight account of his 
 personal character and position. Descended from a profes- 
 sorial family in Leipzig, his father was the still more and more 
 justly celebrated Jacob Thomasius, the author of many valuable 
 works on Philology and the History of Ancient and Scholastic 
 Philosophy. Christian, the son, was born in 1655, and was edu- 
 cated under the eye of his father, who held a chair in the university, 
 Leibnitz, the son of another professor, who through life expressed 
 the greatest affection and reverence for tlie elder Thomasius, 
 having been his pupil some years earlier.* P)eing naturally 
 
 1 As to the position taken up by Tliomas Aquinas, wliich excludes the distinc- 
 tion, see infra, Cap. XII. 
 
 2 Guilielmi Grotii Enchiridion, p. 121. 
 
 3 Philips on Jurisprudence, Introd. pp. 5-7. Austin has the opposite view, 
 vol. i. p. 20. 
 
 Leibnitz was born in 1646. 
 
BETWEEN PEEFECT AXD DIPEKFECT OBLIGATIOXS. 227 
 
 vain, and possessed with a mania for being tlionglit original, 
 Christian Thomasius early pnshed himself into notice as a leader 
 of the party of innovation, already in the ascendant. Safe in the 
 armour of Bacon and Descartes, he attached the scholastic philo- 
 sophy, and attempted to turn Aristotle into ridicule by the poor 
 device of translating selected passages from his writings, word 
 for word, into German. With more reason, he protested against 
 the use of Latin in the schools, and professed to deliver, in the 
 language of common life, a philosophical system which should 
 he intelligible to common understandings. It affords a curious 
 illustration of the difficulty which attended the application of the 
 modern languages to learned pursuits, that almost every one of 
 Thomasius's graver Avorks was written in Latin. But, whatever 
 justice there may have been in the claims which Tliomasius 
 advanced to the character of an original thinker, there can be no 
 doubt that he was a copious Avriter on all subjects connected 
 Avith jurisprudence. So varied Avere his acquirements that 
 Warnkonig goes the length of speaking of him as a modern 
 Antistius Labeo, though, as regarded his opinions, one Avould 
 have thought that, of the duo decora iiacis, he bore the stronger 
 resemblance to Capito. Of his influence in Germany the L^ni- 
 A^ersity of Halle, Avhich OAves its origin to him, and to Avhich, as 
 its first rector, he stood in a relation similar to that in Avhich 
 Leibnitz stood to Berlin, is a sufficient monument. But in this 
 country it is probable that the title of his Avork on natural law 
 commended it to notice more than even the fame of its author. 
 It is called Fundamenta juris naturce et gentium ex sensit coivu- 
 inuni deductct ; and Christian Thomasius, consequently, is one of 
 the one hundred and six Avitn esses Avhose testimony Sir ^Tilliam 
 
228 
 
 HISTORY OF THE DISTINCTION 
 
 Hamilton cites in proof of tlie universality of tlie pliilosopliy of 
 common sense.^ But whether it was to this circumstance or to 
 deeper causes connected with the general tone of thinking which 
 then prevailed that they owed the favour they enjoyed, the doc- 
 trines of Thomasius and his followers in jurisprudence and natural 
 law were in high repute amongst our countrymen a hundred 
 years ago. There is every reason to believe that it was from the 
 writers of this school, probably from Thomasius himself, that 
 Hutclieson, in particular, adopted the distinction between natural 
 law and ethics ; and the opinions of Hutcheson influenced those 
 of his successors, both here and in England, very extensively. 
 The doctrine, in the form in which Thomasius presents it, in so 
 far as it had an immediate historical source, is said by Ahrens,^ 
 I think justly, to have sprung from a misapplication of the tri- 
 partite division of justice which his friend and contemporary 
 Leibnitz had introduced a few years before, in a tract on the 
 method of learning and teaching jurisprudence.^ It was a 
 juvenile production, and is not included in some editions of 
 his works ; but it acquired importance from the fact that he 
 refers to it, and accepts the view of justice which it advocated, 
 in the celebrated preface to his Codex Dijjlomatimis Juris Gen- 
 tium^ (quemadmodum rem adolescens olim in libello, de methodo 
 jmis, adumbravi). 
 
 Justice, Leibnitz taught, manifested itself in three degrees: 
 (1) strict justice {jus stridtom), which consists in commutative 
 justice, and may be resumed in the principle aliiiin non loedere; 
 
 1 Hamilton's Reicl, p. 785. ^ p. 553. 
 
 2 Nova Mcthodus, discmdce. doccndveque JiLrisijrudcnticB. 
 ^ DisscrLatio i. sec. xii. 
 
BETAVEEX PEEFECT AXD BIPEEFECT OBLIGATIOXS. 
 
 229 
 
 (2) equity (cequitas), or distributive justice, witli the principle 
 suum cuique tribuere ; and (3) lAeij {pietas), or probity {prohitas), 
 enunciated in the maxim lioneste vivere} 
 
 I do not think tliis division, eA^en as a diAusion of degree, can 
 be maintained in any absolute sense. Tlie first and the third 
 branches are simply the second (simr/i cuique), exhibited in 
 different points of view : for not to hurt our neighbour is neither 
 more nor less than to give him his own, and the same is, I 
 think, plainly the ultimate meaning of the honcste vivere also. 
 On the principle then, that things which are equal to the same 
 thing are equal to one anotlier, if the first branch and the third 
 admit of being identified with the second, they are themselves 
 identical ; and the whole resolves itself into a series of distinc- 
 tions without differences. Aristotle has said, that an incapacity 
 to draw nice and subtle distinctions is the characteristic intel- 
 lectual defect of the Auilgar.- With ec[ual truth, perhaps, he 
 might have stated the cliaracteristic defect of the learned to con- 
 sist in distinguishing too often and too much. 
 
 But, be this as it may, Leibnitz did not establish, or mean 
 to establish, any absolute distinction between the stridurii jv.s 
 and the others, on ethical grounds. On the contrary, he indi- 
 cates, in the preface to the Codex Diplomaticus, a very clear 
 opinion to the effect that this distinction is created by posi- 
 tive law, by the action of which alone an aptitudo, as he 
 expresses it, is converted into a facidtas. That such was 
 Leibnitz's view, is further proved by the fact that he elsewhere 
 identifies justice with the "charity of the wise" (Justitiam 
 igitur, cpiae Aurtus est hujus affectus rectrix quem (^iXavOp^-nLa 
 
 ^ Alliens, ut siqj. " to hiopl^eiv ovk ecrri. tuv ttoWcov. Ethic. Xic. x. 2. 
 
230 
 
 HISTORY OF THE DISTINCTION 
 
 Grseci vocant, commodissime, ni fallor, definiemus caritatem 
 sapientis, hoc est, sequentem sapientise dictata). As Leibnitz 
 does not assert that there is a charity of the foolish, {caritas stulti), 
 differing from and transcending the charity of the wise, we may 
 take the liberty of separating his general dictum that justice may 
 be defined as charity from his qualification (sapientis), which he 
 probably introduced for no other reason than to guard against 
 the popular abuse of speech, by which the name of charity is too 
 often given to mere irrational sympathy, or it may be ostentatious 
 profusion. It is on the ground of his thus asserting the absolute 
 identity, in principle, between justice and charity — a subject of 
 which I shall speak fully hereafter — that Ahrens, when treating 
 of Leibnitz's views, says that "justice, according to him, does 
 not concern the external relations of men alone, but extends 
 as far as reason and the rational relations of men with all other 
 beings." 1 How little sympathy Leibnitz had with any scheme 
 for separating jurisprudence from ethics, becomes further appar- 
 ent from an interesting passage in one of his letters, which is 
 probably less known than those I have quoted. " Ethical," he 
 says, " est docere virtutem, jurisprudentise hunc quem dixi usuni 
 ejus ostendere. . . . Opinio, quae jus naturae ad externa re- 
 stringit, nec veteribus Philosophis, nec Jurisconsultis olim gravi- 
 oribus placuit, donee Pufendorfius Yir parum Jurisconsultus et 
 minim e Philosophus, quosdam seduxit : Est ejus non magna apud 
 me auctoritas ; quam fere popularia tantum de suo adferat, et 
 in cortice hsereat."^ 
 
 But if Thomasius cannot claim Leibnitz as a predecessor, he had 
 many loyal and illustrious followers in Germany. Of these, the 
 
 1 p. 553. ^ Eiyistola vii. 
 
BETWEEX PEEFECT AXD IMPEEFECT OBLIGATIONS. 231 
 
 most devoted were x^erliaps Gerard and Gundling/ and certainly 
 by far tlie most illustrious was Immanuel Kant. To Kant's influ- 
 ence, more than to any other cause, was probably due the un- 
 hesitating confidence with which, till a very recent period, this 
 distinction was generally maintained and applied. In Kant's 
 hands, it is true, it assumed a somewhat different form — a form 
 which admitted of its being more readily brought to the test of 
 experience, and which, on that account, has led to its being 
 absolutely rejected by a greater number of those who came in 
 contact with it as expounded by Kant and his followers, than of 
 those who still know it, as is the case in England, only as his 
 predecessors had stated it. Like Thomasius, Kant held that there 
 are two distinct classes of duties, those which may, and those 
 which may not be enforced, consistently with the dictates of 
 natural law, and, of course, of positive law in its true and proper 
 sense. The line by which these two classes of duties are divided, 
 he believed to be absolute and permanent — not a line indicated 
 by external circumstances, traced by particular systems of posi- 
 tive law, and varying with time and place ; but a line drawn by 
 the constitution of human nature, and the necessary relations of 
 human society. So far, indeed, neither Kant nor Thomasius 
 stated anything that was new, but the teaching of Thomasius 
 contained the germ of a principle whicli Kant worked out and 
 applied, and which may, I think, be regarded as the distinctive 
 feature of the Kantian school of natural law, as it unquestion- 
 ably is that which distinguishes it from the school which is now 
 fast gaining the ascendant in a speculative, as in so many direc- 
 tions it has already done in a practical point of view. The 
 
 1 Tenneman, p. 352, 
 
232 
 
 HISTOEY OF THE DISTINCTION 
 
 principle to wliicli I refer, is that wliicli assigns negative rights 
 and duties alone to justice as their source, whilst it holds all the 
 positive rights and duties of humanity to be based on the 
 Jionestum and decorum. Kant perceived that very little progress 
 was made towards rendering the old distinction between perfect 
 and imperfect obligations available for practical purposes, by 
 asserting that the former were enforceable, and that the latter 
 were not. To define a perfect obligation as one that was enforce- 
 able, and then an enforceable obligation as one that was perfect, 
 was to reason in a circle, from which it was possible to escape 
 only by the adoption of an external test, by which either the one 
 characteristic or the other could be positively determined. ISTow, 
 such a test was afforded by the principle which I have men- 
 tioned — the principle, viz., of confining the sphere of justice to 
 negative rights and duties ; and though its application is correctly 
 ascribed to Kant, there are passages in Thomasius which, I think, 
 establish his claim to its discovery. In particular, let me refer 
 to the passage where he says, "Prsecepta negativa pertinent 
 ad praecepta justi, praecepta afiirmativa autem ad prsecepta 
 decori, &c."^ 
 
 Adopting this principle, then, Kant taught that the obligation 
 not to interfere with the liberty of our neighbour w^as the only 
 perfect and enforceable obligation. All the positive duties 
 which we owe to our neighbour he held that we owe him morally 
 only — they are imperfect, non-enforceable obligations, and be- 
 yond the sphere of jurisprudence, forbidden to legislation, not 
 accidentally or generally but necessarily and invariably. It is 
 not a little remarkable that so staunch an adherent of what the 
 1 p. 213, ed. 1718. 
 
BETWEEX PEEFECT AXD DIPEEFECT OBLIGATIONS. 
 
 233 
 
 Utilitarians call the intiiitiA'e system as Kant, in this the almost 
 solitary instance in which he allowed his opinion to be formed 
 hy what seemed the manifest teaching of experience, should 
 have fallen into what, had he lived to om-- day, he would, I have 
 little donht, have repudiated as an error. The following I believe 
 to be pretty nearly the history of this occurrence. The curse of 
 Kant's time was over-legislation. To what extent the philoso- 
 phical doctrines, with which the AVolfian school were now 
 opposing the negative teaching of Thomasius is chargeable with 
 the fact may be c^uestioned : but the fact itself is certain. Trade, 
 religion, social life and progress in all directions, were regulated 
 and restricted. In Germany Frederick the Great and Joseph 
 the Second were patriarchal monarchs, who, as Ahrens^ has 
 said, unhesitatingly put " le salut public au dessus de droit et de 
 la liberte des individus." In his marvellous book on France 
 before the Picvolution, de Tocqueville has shewn us that, in no 
 small measure, it was the interference of the State, by means of 
 intendants and other officials, with the liberties of the individual 
 that brought about the French Eevolution : and in its earlier 
 stages, so long as it could be regarded as a protest in favour of 
 liberty, Kant, like Burke and so many others who afterwards 
 shrank in horror from its excesses, and turned in contempt from 
 its exaggerations, was a zealous sympathizer with the move- 
 ment. T/i corriqjtissir/id TciiuUicd ^plurimai leges - is the saying 
 of one who had lived through a still darker epoch ; and the whole 
 liberal party in Europe, Kant being of the number, were so 
 sensible of the fact that liberty had sufiered before their eyes 
 from the very science of government of which it was the true 
 
 ^ Alliens, vol. ii. p. 20. 2 Tacitus. 
 
234 
 
 HISTORY OF THE DISTINCTION 
 
 object, more than from any other cause, that they sought to 
 confine positive law within the narrowest limits. Their aim 
 was to elaborate a system in accordance with which the State 
 should become a mere police, which should never interfere with 
 individual action except for the purpose of preventing inter- 
 ference ; and in order to lay a theoretical groundwork for such a 
 system, it was plainly necessary that the sphere of jurisprudence 
 should be declared to be a purely negative sphere. Kant, as 
 may readily be imagined, occupied himself chiefly with the 
 theoretical groundwork, but that he aimed at the same practical 
 end as his contemporaries, is plain enough ; and if w e wish to 
 see the principles of his system worked out, not perhaps to the 
 full results which they logically yield, but to those which it is 
 probable Kant contemplated, we have only to turn to the pages of 
 another illustrious German of the generation which immediately 
 followed. In his work, entitled "Thoughts with a view to deter- 
 mine the limits of the action of the State," Wilhelm von 
 Humboldt sought to prove that the community, as such, was 
 necessarily and permanently incapacitated from aiding the 
 individual directly, and that the only influence which it could 
 legitimately exercise over him was confined to prohibiting him 
 from interfering with other individuals. 
 
 " The doctrine of Kant," ^ as Ahrens has said, " completes the 
 distinction established by Thomasius between morality and law; 
 law, however, preserved an intimate relation with the good, be- 
 cause it exists only for the purpose of assuring the personality 
 
 1 IcUcn zu eincm versuch die grenzen der Wirksamkeit des Staats zu 
 bestimmen. 
 
 2 p. U. 
 
BETWEEN PERFECT AXD IMPERFECT OBLIGATIOXS. 
 
 235 
 
 auci the moral liberty of man. The school of Kant has often 
 forgotten this relation in separating legal liberty, or the liberty 
 which exists of right, both in civil and political arrangements, 
 from moral liberty. But Kant himself had the fullest con- 
 sciousness of the connection which exists between these two 
 kinds of liberty, though he has not determined it with sufiicient 
 precision." Eeaders of Ahrens's own discussion^ may perhaps 
 be permitted to doubt whether the praise which he has bestowed 
 on Kant in the last sentence be not pretty nearly all which he 
 himself is entitled to claim. " Law and morals," he says finely, 
 " lend each other mutual su.pport ; separated or confounded, they 
 produce social disorder, but, distinguished and united, they are 
 the two most powerful levers of all real progress." The sin of 
 separating them, of which Kant was unintentionally guilty, 
 Ahrens certainly does not commit ; and perhaps I had better not 
 accuse him of confounding them till I have submitted to the 
 reader my own attempt to distinguish them.- 
 
 The difficulty which led Kant to adopt the distinction between 
 negative and positive, in preference to that between perfect and 
 imperfect obligations, had pressed itself on the better class of 
 thinkers in our own country at an earlier period; and whilst 
 Eutherford states the old distinction without the slightest 
 misgiving as to its serving the purpose of establishing a per- 
 manent and workable line of demarcation between law and 
 ethics, Hutcheson, follower of Thomasius thouQ-h he was, was 
 far less confident.^ In his first book (p. 68), indeed, he seems to 
 
 Distinction et rapports entre le droit et la Morale, vol. i. p. 159. 
 2 Infra, Book II. Cap. I. 
 
 ^ As in all similar cases, the more we look into the question, the less do we find 
 
236 
 
 HISTORY OF THE DISTINCTION 
 
 lean to tlie Socratic view of justice by wliicli the distinction, as 
 we shall see presently, was excluded ; and in the second book, 
 though he states it, he qualifies it thus : " Yet the boundaries 
 between perfect and imperfect obligations are not always easily 
 seen. There is a sort of scale, or gradual ascent, through several 
 almost insensible steps, from the lowest and weakest claims of 
 humanity to those of higher and more sacred obligation, till we 
 arrive at some imperfect rights so strong that they can scarce be 
 distinguished from the perfect, according to the variety of bonds 
 among mankind, and the various degrees of merit and claims 
 upon each other. Any innocent person may have some claims 
 upon us for certain offices of humanity. But our fellow-citizen, 
 or neighbour, w^ould have a stronger claim in the like case. A 
 friend, a benefactor, a brother, or a parent would have still a 
 stronger claim, even in those things which we reckon matters of 
 imperfect obligation." 
 
 The ground of hesitation which Hutcheson here indicates 
 has reference, not to the form of the distinction as commonly 
 stated in his time, but to its substance. He doubts if the 
 duties of humanity can be identified with those which are 
 imperfect, and as such non- enforceable, and hence we may 
 probably infer that unless, like Kant, he had been carried away 
 by the spirit of the rising generation, he would have pronounced 
 the test of negative and positive to be illusory. 
 
 The relation in which Dr. Eeid stood to the prevailing doctrine 
 
 it to be new. Here, for example, is a clear expression of opinion on the part of 
 Thomas Aquinas in favour of the positive school: "Plus est operari bonum 
 quam vitare malum. Et ideo in prseceptis affirmativis virtute includuntur prse- 
 cepta negativa. " — Swnma, Sec. Sec. Quces. 44, 3, 3. 
 
BETWEEN PERFECT AXD IMPEEFECT OBLIGATIOXS. 
 
 237 
 
 is a still more curious illustration of the gradual manner in 
 wliicli tlie truth dawns, even upon very clear-sighted men. In 
 the first place, ^ he states the distinction in the usual way, with- 
 out any apparent hesitation as to its soundness ; then, on the 
 following page,- he says " that the two classes, like the colours in 
 a prismatic image, run into each other, so that the best eye 
 cannot fix the precise boundary between them;"" and finally, 
 he returns to the ancient view, and admits charity, and, as a 
 necessary consequence, all the other imperfect obligations -within 
 the sphere of justice, — thus practically repudiating the distinc- 
 tion altogether. 
 
 Dugald Stewart, notwithstanding his vigorous and repeated 
 protests against the manner in which natural law was taught 
 by the civilians, in which I generally concur, does not seem 
 to have freed liis own mind from what was probably their 
 greatest error; for we find him admitting that "justice is the 
 only branch of virtue in which there is always a right on the 
 one hand, corresponding to an obligation on the other." ^ 
 
 The first of our countrymen — and, so far as I know, the only 
 English writer of importance even yet — who has consciously 
 abandoned the distinction, and expressly separated himself from 
 the prevailing doctrine, w^as Dr. Thomas Brown. As, in doing 
 so, he had the merit of having been one of the earliest modern 
 thinkers in Europe to assert the universal character of ethics, 
 and thereby to place the science of jurisprudence on what was 
 its ancient, and what I hope before long will be universally 
 recognized as its true basis, I shall quote the passage from 
 
 1 Hamilton's Rcid, p. 644. 2 p_ g45_ 
 
 3 658, 659. ^ Outlines, p. 269. 
 
238 
 
 HISTORY OF THE DISTINCTION 
 
 his lectures in wliicli lie expresses his views. It occurs towards 
 the end of Lec. 91} 
 
 " I have treated," he says, " of our moral duties with only few 
 remarks on what are commonly denominated rights; for this 
 best of reasons, that the terms right and duty are, in the strictest 
 sense, in morality at least, corresj^onding and commensurable. 
 Whatever service it is my duty to do to anyone, he has a moral 
 right to receive from me. ... I do not sjDeak at present, it is 
 to be remembered, of the additional force of law (that is, positive 
 law) as applied to particular moral duties, a force which it may 
 be expedient variously to extend or limit, but of the moral 
 duties alone ; and in these, alike in every case, the moral duty 
 implies a moral right, and a moral right a moral duty. . . . The 
 laws, indeed, have made a distinction of our duties, enforcing the 
 performance of some of them, and not enforcing the performance 
 of others ; but this partial interference of law, useful as it is in the 
 highest degree to the happiness of the world, does not alter the 
 nature of the duties themselves, which, as resulting from the 
 moral nature of man, preceded every legal institution. . . . On 
 this very simple distinction of duties which the law enforces, 
 and of those which for obvious reasons it does not attempt to 
 enforce, and on this alone, as I conceive, is founded the division 
 of perfect and imperfect rights, which is so favourite a division 
 with writers in jurisprudence, and with those ethical writers 
 whose systems, from the prevailing studies and habits of the 
 time, w^ere in a great measure vitiated by the technicalities of 
 law. The very use of these terms, however, has unfortunately 
 led to the belief that, in the rights themselves, as moral rights, 
 ■ " 1 p. 615. 
 
BETAATEX PEKEECT AXD I^IPEEFECT OBLIGATIOXS. 
 
 239 
 
 tliere is a greater or less clegTee of perfection or moral inciun- 
 bency, Avlieu it is eviclent that morally there is no sncli distinc- 
 tion ; or I may even say that if there were any such distinction, 
 the rights Avhicli were legally perfect wonld be of less pOAverful 
 moral furce than rights which are legally said to be iinperfect. 
 There is no one I conceive who would not feel more remorse, a 
 deeper sense of moral impropriety, in haAung suffered his bene- 
 factor, to whom he OAved his affluence, to perish in a prison for 
 some petty debt, than if he had failed in the exact performance 
 of some trifling conditions of a contract in terms which he -kncAv 
 well that the laAv Avould hold to be definite and of perfect obliga- 
 tion. It is highly important, therefore, for your clear aucavs in 
 ethics that you should see distinctly the nature of this difference 
 to AAdiich you must meet AAuth innumerable allusions, and allusions 
 that evince an obscurity, Avhich could not Imve been felt but 
 for the unfortunate ambiguity of the phrases employed to distin- 
 guish rights that are easily determinabde by laAv, and therefore 
 enforced by it, from rights Avhich are founded on circumstances 
 less easily determinabile, and therefore not attempted to be 
 enforced l^iy legal authority."' And he tlius sums up his A'iew. 
 '■' All riglits are morally perfect ; because wherever there is a 
 moral duty to another liAung being, there is a moral right in that 
 other, and Avhen there is no duty there is no right. There is as 
 little an imperfect right, in a moral sense, as there is in logic an 
 imperfect truth or falsehood.'"' 
 
 This A'ery clear exposition of the fallacy of the distinction 
 between perfect and imperfect obligations, in any other sense 
 than as a distinction betAveen ethics, or natural Liaa-, on the one 
 hand, and the positive laAv of a particular state, for the time 
 
240 
 
 HISTORY OF THE DISTINCTION 
 
 being, on tlie other, was, as I have said, one of the earliest in 
 Europe after the revival of what in antiquity had formed part of 
 the teaching of the Sophists by Thomasius, and its application 
 by Kant and his followers in the eighteenth century. 
 
 Brown lectured for the first time, as Dugald Stewart's assist- 
 ant, in 1810 ; and his brilliant career was terminated by his too 
 early death in 1820. The passage which I have quoted must 
 consequently have been written during the intervening ten 
 years. 
 
 In Germany the fame of its original patrons protected the 
 distinction from question for the better part of another decade. 
 The first writer who is mentioned by Trendelenburg as professing 
 the opposite doctrine is the now recognized father of the positive 
 school, Karl Chr. Fr. Krause.^ Then there are his two leading 
 disciples, Eoder,^ whose Politik appeared in 1837, and Ahrens,^ 
 the first edition of whose work appeared, in 1839 ; StaliP in 1830 
 and Schleiermacher,^ as was natural in one who was built on 
 Plato, in 1835, adhered to the ancient doctrine from different 
 points of view. Of later writers Trendelenburg classes as 
 adherents of what by that time was becoming the prevalent 
 doctrine, Wirth in 1841, Chalybseus in 1850, and the younger 
 Fichte in the same year, the elder Fichte having in this matter 
 adhered to Kant. To these writers Hegel, though differing from 
 most of them so widely in other respects, faUs in this respect to 
 be added ; and Trendelenbm^g himself, as by no means one of 
 
 ^ Ahriss des Systemes der PhilosopMe dcs Rcchts, odcr des Katurrcchts, 1828. 
 ^ Naturr edits, oder PveditspMlosopMe, 1860. 
 
 ^ Cours de Droit Katiird ou de Pliilosoiihie du Droit, 6tli edit. 1868. 
 
 Fhilosopliie des Rechts. 
 ^ Entwurf eines Systems der Sittenlehre. 
 
BET^EEX PEEiTCT AXD DIPEEFECT OBLIGATIOXS, 
 
 241 
 
 tlie least important — Ms T\-ork on Xatnral Law,i wliicli ap- 
 peared in 1S60, having had for its express object to restore the 
 connection between hivr and ethics, T^-hich the inflnence of the 
 Kantian school had so seriously Tveakened. AYarnkonig, A\-ho 
 Tras an eclectic, and not A'ery much of a philosopher, can 
 scarcely be said to have tanght a system of his ovm, bnt on 
 tills poiut he vas a firm adherent to the same view. Amongst 
 the various shades of opinion which he enimrerates - he men- 
 tions that of a writer called Piatt, who carried his opposition 
 to the limitations of the negative school so far as to maintain 
 that there are no perfect obligations. Tenneman mentions more 
 than one philosopher who rejoiced in this ominons cognomen, 
 and I am not myself accpaainted with the work to which 
 Warnkonig refers. Bttt if all that the writer in qtiestion meant 
 was that there are no obligations so perfect, morally, as not to 
 rec|nire that, in some conditions of society, they shotild be 
 made the snbjects of positive law, I shottld be A'ery much dis- 
 posed to assent to his proposition, provided he coiikl demon- 
 strate the possibility of its practical application. If we extend 
 the term positive law, so as to include tinder it the rttles of 
 society and the regulations of religious bodies, and if we recog- 
 nize opinion as one of its so called sanctions, the number even of 
 subjective obligations which fall within its scope will probably be 
 fotmd to be very much greater than we are accustomed to 
 suppose. 
 
 But it is the followers of Krattse who, not only by their writ- 
 
 ^ KaturrccM auf dem Grunde dcr EtliiJ:, 1S60. 
 
 ^ PhilosopJiice Juris delincatio, p. 26. His own Tie\rs Trill "be found in the doc- 
 trinal portion, p. 79. 
 
 Q 
 
242 
 
 HISTOEY OF THE DISTINCTION 
 
 ings but by the annual congresses wbicli they have recently 
 held, have made themselves the practical representatives and 
 expositors of the positive school; and for this reason it may 
 be desirable I should state their views in som.ewhat greater 
 detail. Their leading thought, more particularly as represented 
 by Eoder, is guardianship {vorimindscliafl). All legislative action, 
 all government — which the Kantian school had identified with 
 police — Eoder (reminding one of Plato's cj^vXaKes) resolves into 
 guardianship, exercised by those who are majors over those who 
 are minors, and having for its object, in the first instance, the 
 benefit of the latter. I say in the first instance, for one cannot 
 but feel that the tendency of the whole class of writers to which 
 Eoder belongs is, theoretically, to repeat what I have elsewhere 
 pointed out as the error of the school of benevolence,^ and to 
 forget the existence of subjective rights altogether, whilst practi- 
 cally they would sacrifice the fraternal to the paternal prin- 
 ciple, and fall back on absolutist doctrines of legislation. No 
 such objections, however, necessarily attach to their system; for 
 the interests of all being ultimately identical, in consulting the 
 real interests of their wards the guardians really consult their own 
 interests also, and vice versa. This thought then Eoder adopts, 
 quite legitimately, as expressing the principle of the positive 
 school; and he follows it out in all possible directions, and finds 
 for it all possible applications. It determines the true sphere of 
 action and of passion, and fixes the limits of interference and non- 
 interference in every department of jurisprudence ; for interfer- 
 ence shall take place when, and only when it conduces to the 
 
 1 Ante, p. 163. 
 
BETWEEN PEEFECT AND IMPERFECT OBLIGATIONS. 
 
 243 
 
 benefit of the minor, i.e. when it enables him, or tends to enable 
 him to attain the perfection of his being, and the ends of his 
 human existence. Wisely and considerately Eoder professes to 
 draw no absolute lines, either as regards public or private rela- 
 tions, between those whose duty it is to aid, and whose privilege 
 or misfortune it is to accept aid ; and the sphere of guardianship 
 thus always diminishes just in proportion to the extent to which 
 its objects are accomplished. The minor, who is majoritati 
 loroximus, is not entitled to the full rights, or bound to under- 
 take the whole responsibilities of a major; but he is no longer 
 an infant, and must mainly trust to self-guidance and self-help. 
 It is needless that I should point out the manner in which 
 this principle, originating in the relations of parent and child, is 
 extended to the other domestic relations, and even determines 
 the conditions and limitations under which free contracting' 
 
 o 
 
 power must be recognized between third parties. But, in these 
 times, I must not fail to call attention to the difference 
 between the order of political ideas which results from a system 
 which, starting from the relation of parent and child, embraces 
 the family relations in their integrity, and the ordinary demo- 
 cratic one, which, taking cognizance of the brotherly relation 
 {fratcrniU) alone, degenerates, in the end, into individual isola- 
 tion and collective anarchy. Applied to public law, the prin- 
 ciple of guardianship not only binds the community into a 
 single organism, but it supplies a rule for the gradual admission 
 of the whole community to share the rights and responsibilities 
 of self-government. It is thus liberal in the fullest and strictest 
 sense. But it manifestly shuts out the notion of an equal par- 
 ticipation in these rights and responsibilities, and in this respect 
 
244 
 
 HISTORY OF THE DISTINCTION 
 
 is strongly anti-democratic. Professor Eoder^ is consequently 
 an advocate for the principle of political graduation, wliicli I 
 have so long maintained, and a determined enemy to levelling 
 {glcichmachcrie). Even a restricted snffrage, a suffrage which 
 for the time being should shut out a large proportion of the 
 community from all participation in government, he holds to 
 be fully justifiable, so long as power shall be thereby placed 
 in the hands of those, and of those only, who can exert it better 
 for the common good — who can act as guardians. The result 
 is unquestionably legitimate, at least I can see no ground on 
 which it can be assailed, even though greater prominence were 
 given to individual rights than Eoder's system, in this aspect, 
 would seem to allow them. But by a proper application of 
 the principle of graduation, in the manner which I have else- 
 where explained," I think the limits of total exclusion might 
 be restricted beyond the point which Professor Eoder, and the 
 class of writers to which he belongs, seem to have contem- 
 plated. It is plain, however, that this jDrinciple excludes all 
 forms of government which contemplate the exclusive interests, 
 either of an individual or of a class — absolute monarchy, 
 oligarchy, and democracy, together with a government which, 
 though affecting to be confided equally to all, is in reality 
 exercised by a mere numerical majority; and these I believe to 
 be the only forms of government the realization of which will 
 
 1 Such, at all events, is liis general doctrine ; hwt, like i\lirens, lie has not 
 always maintained it consistently, and at vol. ii. p. 141 of his Naturrecht, yon 
 will find a passage in which he asserts the equivalence of functions with the zeal 
 of a communist. On the other hand, in his Politik he goes very boldly in the 
 opposite direction. 
 
 ^ Political Progress not necessarily Democratic, 1857 ; and Constitutionalism of 
 the Future, 1865. 
 
BETAVEEX PERFECT AXD DIPEEFECT OBLIGATIO.N'S. 245 
 
 ultimately be found to be iiTeconcilable witli order, progress, or 
 even civilization. 
 
 Tlie idea of giiardiansliip has its application also in external 
 politics, — tliey^^s inter gcntcs. The principle of graduation finds an 
 appropriate function in the ranking of states for purposes of 
 arbitration and intervention,^ whilst it furnishes the ground, and 
 I believe the only ground on vdiich the continued rule over a 
 peaceable but semi-barbarous or retrograde nation, our own rule 
 in India for example, can be jirstified.- Seen from the side of 
 the conquered people alone, however, the rule holds true that, 
 so long and so far as external government by a higher or more 
 advanced race does really promote the human development of 
 the lower or retrograde race, that government is just. It is an 
 interference in favour of liberty on the whole, and thus falls in 
 with the object of Ivant's system, to which we shall ultimately 
 see gTounds to give in our adliesion, though it conflicts with the 
 negative character of his means, which, I believe, we must 
 reject. The moment that the lower or retrograde race becomes 
 capable of attaining this end by its own eftbrts, the ride of the 
 higher race, unless spontaneously retained, degenerates into 
 tyranny. 
 
 But it is in the region of criminal law that Eoder conceives 
 his principle to be peculiarly fruitful, and he is never weary of 
 dilating on the benetits of its practical application. The true 
 
 ^ Transactions of Eoya2 Society of Edinburgh. lievue cle Droit international, ut 
 sup. p. 203. 
 
 ' That of the Frerich in Algeria might perhaps stand on the opposite ground, 
 that, in suppressing a nest of pirates, they were asserting rights on the part of 
 the treading nations of Europe not less real than any -vrhich the Algerians had to 
 their guardianship. 
 
246 
 
 HISTORY OF THE DISTINCTION 
 
 object of punisliment, lie says, is neither vengeance nor terror, 
 but the amendment of the criminal for his own benefit, and the 
 benefit of others. It is not to increase evil in the world by 
 extending to the transgressor the suffering he has inflicted on 
 others, but to diminish the evil by converting the criminal's will, 
 which, if it be a curse to his fellow-mortals, is a still greater 
 curse to him. If our object were simply to torture him, we have 
 only to let him alone. But it is in the fact that this object is 
 one which we are not entitled to set before us, that punishment 
 finds at once its reason and its justification. It is the medicine 
 to the enfeebled and vitiated will, and the criminal has a right 
 to it, just as those who are sick in body have to the apothecary's 
 draught or the surgeon's knife, or that the starving and impotent 
 poor have to the soup, the foul to the soap, or the ignorant and 
 indigent to the instruction that is doled out to them by the hand 
 of voluntary or compulsory charity. The compulsion in all 
 such cases, both in the case of him who gives and of him who 
 receives the benefit, may be held to be illusory; for, even in 
 the case of punishment, Eoder would agree with Hegel in hold- 
 ing that by the commission of crime the higher nature of man 
 consents to it, and that all that is effected by the jury, or tlie 
 judge, is to ascertain the fact of this consent, and to assign the 
 form and measure of its concrete realization. But no man can 
 be held to have consented to punishment which is not for his 
 own ultimate benefit. On this ground Eoder is an opponent of 
 capital punishment, which he holds — somewhat hastily perhaps 
 even with a view to this world — to cut the criminal off from the 
 opportunity of amendment, and to all forms of corporal punisli- 
 ment, which he believes to degrade him. On neither of these 
 
BETAYEEX PEEFECT AXD LAIPERFECT OBLIGATIOXS. 247 
 
 difficult questions do I wisli to be understood as expressing a 
 matured opinion. Xeitlier, as it seems to me, has yet been 
 Avorked out statistically, and as a question of comparative legisla- 
 tion, to the extent Avliicli its great importance demands. But, as 
 present eA'idence stands, it sometimes occurs to me tliat a little 
 more experience of criminal courts might probably have led 
 Professor Eoder and other philanthropists to ask themselves 
 whether tliere be not human beings whom no corporal punish- 
 ment could degrade, and to whose Sittliche-bildung " it might 
 even contribute. !Xor is it inconceivable that the last penalty of 
 the laAv, carried out after an adec|uate period for retlection and 
 repentance, might conduce more to the human perfection of the 
 criminal than the prolongation of his life ; or that his removal 
 from society would be more beneficial to others than any future 
 career that Avould be possible to a nature so degraded. But it is 
 not liujus loci to discuss these matters farther, or to follow out 
 the theory of guardianship into all the results which it is sup- 
 posed by Professor Eoder to yield within the sphere of positive 
 law, civil or criminal As regards the latter, more especially, 
 we continually encoimter his thoughts in every one of his works, 
 and he has besides set them forth very fully in a separate trea- 
 tise on the prevailing doctrines of crime and punishment.^ 
 
 II^r\ ing made these preliminary observations on the history 
 and present position of opinion with reference to the distinc- 
 tion, the admission or rejection of which is now recognized 
 as the touchstone by which the character of systems of juris- 
 prudence and their relation to ethics must be tried, I must now 
 endeavour to enter somewhat more closelv into the frrounds on 
 
 ^ Die Ecrrschaiden Gruncllehrcn von Vcrhreclien und Strafe. 
 
248 
 
 OF JUSTICE AND CHARITY. 
 
 wliicli I hold that on this, as on so many other points,^ we must 
 return to what I believe always to have been the central creed of 
 humanity, and accept, with the added light which Christianity 
 affords, the teaching of the great thinkers of the heathen world. 
 In doing so I shall take the subject up in the light in which the 
 Greeks loved to discuss it, and endeavour to discover the true 
 relations which subsist between the virtues, and more particu- 
 larly between justice and charity — the highest types of the two 
 orders into which the virtues have been distributed. 
 
 CHAPTER XII. 
 
 OF JUSTICE AND CHARITY. 
 
 {a) TIic principles of justice and charity'^ are identical; their 
 separate realization is impossihle ; and their commo7i realization 
 necessarily culminates in the same action. 
 
 Though it may not hitherto have been found possible to dis- 
 tinguish obligations either into perfect and imperfect, or into 
 
 ^ Ante, Cap. lY,, passim. 
 
 ^ Thomas Aquinas distinguishes between caritas and libcralitas, the former 
 being a Christian grace, unattainable by the heathen, the latter a moral virtue. 
 Charity in the sense in which it is here used, which is the popular and common j 
 ethical sense, thus corresponds to Uberalitas, not to caritas, which is the dydrt] i 
 of St. Paul. In this sense the relation to justice which the great schoolman j 
 assigns to charity entirely corresponds with that for which I contend, though I 
 do not admit that absolute justice does not include caritas even in its theological j! 
 sense. — Summa, Prim. Sec. Qu. Ixvi. art. 3 and 4. See also Prim. Sec. Qu. 
 Ixxxviii. art. 2, in which he lays it down that a pcccatum veniale may be con- 
 verted into a ;peccatum mortaU by a change of circumstances, and vice versa. 
 
OF JUSTICE AXD CHAPJTY. 
 
 249 
 
 negative and positive, in sncli a manner as thereby to discover 
 the basis for a definition of tlie sphere of jnrisprudence, is that 
 anv sufficient reason for conchiding; tliat oblio-ations do not 
 admit of a distinction in principle of any kind, and tliat all 
 delimitation of our science in that direction mnst be abandoned 
 as a mistake ? That sncli a protest against the doctruie v^hich 
 I have espoused should still arise in the minds of some of my 
 readers, is all the more conceivable that it has the support of a 
 writer vdiose views on the origin of our rights, and on the idea 
 of property, coincide with those which I previously submitted, 
 more closely than the A'iews of any other vniter with whom I am 
 acquainted ; I mean M. Cousin. 
 
 In his criticism of Smith's doctrine that labour is the origin 
 of property, M. Cousin raises the Cjuestion whether the whole 
 field of human duty falls within the domain of the principle of 
 justice, and consequently within the limits of natural law. To 
 this c^uestion, which under another aspect is precisely that vith 
 the discussion of which we are at present occupied, he returns a 
 negative answer. " The principle, which is the soul of Smith's 
 book," M. Cousin says, is the grand principle of the liberty of 
 labour. Before this principle Smith has beaten down all 
 obstacles, interior and exterior, which oppose themselves to 
 liberty, and consequently to the power of production, to the 
 development of riches, private and public, in each country, and 
 in the world at large. By this means he has greatly reduced 
 the function of governments ; and, to tell the truth, he has too 
 much reduced it. It is from Smith's book that has proceeded 
 the famous maxim, Zaisscz fcdrc, ct laissez passer : superintend 
 everythino:^ and interfere with nothing; or with scarceh' anvthing. 
 
250 
 
 OF JUSTICE AND CHAEITY. 
 
 Here Smith's errors commence, and they are tlie exaggeration of 
 a truth, as he himself said of the errors of the moral theories 
 which had preceded his. Yes, justice consists in the respect for 
 and the maintenance of liberty. It is the grand law of society, 
 and of the State which represents society ; but is justice the only 
 moral law ? We have proved that alongside of that law there is 
 another which does not simply oblige us to respect the rights of 
 others, but which makes it a duty for us to solace their miseries 
 of every kind, to come to the aid of our fellow-creatures, even to 
 the detriment of our own fortune and well-being. Examine the 
 principle of the smallest alms : you cannot reduce it to justice 
 alone, for that trifling sum of money which you believe it to be 
 a duty to give to an unfortunate, he has not the smallest right to 
 exact from you. This duty does not correspond to a right ; it 
 has its principle in a disposition of our nature, and in a particular 
 law which we have elsewhere analyzed with care,^ and denomin- 
 ated charity. Strange as it may seem, the same man who had 
 reduced all morality to sympathy scarcely recognized in politics 
 any other right than that of justice. This fact may aid us in 
 conjecturing what would have been the character of Smith's 
 grand political treatise. Judging by the maxims scattered over 
 the inquiry into the nature and causes of the wealth of nations, 
 we may be permitted to conjecture that his natural jurisprudence 
 reduced the function of laws and of government to the protection 
 of liberty. We ourselves, by our own reflections, and the 
 development of our princi]3les, have arrived at the conclusion 
 that justice, the protection of liberty, is the fundamental prin- 
 ciple and the special mission of the State. But we believe that 
 1 Philosophie Sensualiste, Premier Appendicc, p. 313, infra, p. 255. 
 
OF JTSTICE AXD CHAPJIT. 
 
 251 
 
 we have estaLlisliecl, at the same time, that it is absolutely im- 
 possible not to ascribe to that great individual v-horn we call a 
 society, some portion at least of that duty of charity vhich 
 speaks so energetically to every human souL According to us 
 the State ought, above all, to vindicate justice, but it ought also 
 to have a heart and bovels. It has not fulfUled all its task 
 when it has caused rights to be respected. Something else 
 remains for it to do — something grand and noble : it remains 
 for it to exercise a mission of love and charity at once sublime 
 and perilous : for we must not forget tliat ever}*thing has its 
 danger : justice, whilst respecting the liberty of a man, may, in 
 all good conscience, leave liini to die of hunger: charity, in 
 saving him morally and physically, but, above all morally, may 
 arrogate to herself the right to do him violence. Charity has 
 covered the world with admii^ible institutions ; but bewildered 
 and corrupted, it is she also vdio has raised and authorized and 
 consecrated many a tpanny. "We must restrain charity by 
 justice, but we must not abolish it, or interdict its exercise to 
 society. Smith did not comprehend this, and from fear of one 
 excess he has fallen into another.'""^ 
 
 Xow I c_[uite admit that Smith has committed the error of 
 which Cousin has accused him, and that he has so limited the 
 functions of society and of the State, which i3 the organized 
 expression of society, as to rob it of many of its most sacred 
 rights, and to deprive it of many of its most important offices. 
 In the very mildest view of the matter, Smith has absolved man- 
 kind from a large portion of the duties which God has laid upon 
 man. But, in so doing, he has simply given in his adhesion to 
 
 ^ Ecole Ecossai-se, p. 296, et seq. 
 
252 
 
 OF JUSTICE AND CHARITY. 
 
 tlie school of jurisprudence prevalent in his day, to which Cousin 
 has also unwittingly committed himself. In excluding charity 
 from the protection of the State, Smith has only recognized a 
 legitimate consequence of its separation from justice, for which 
 M. Cousin himself contends so keenly. The consequence is 
 one which Smith accepts, in common, with all the other 
 adherents of the absolute distinction between perfect and 
 imperfect obligations, M. Cousin being, so far as I know, the 
 only writer of note, who, whilst throwing charity beyond the 
 sphere of justice, insists that it shall be recognized as one of 
 the objects of jurisprudence, and admitted within the pale of 
 positive law. The theoretical source of Smith's error, moreover, 
 if I am not greatly deceived, is altogether different from that 
 which Cousin has indicated. Smith's mistake consists not in 
 failing to call into action another principle than justice, but 
 in limiting the action of justice itself; and this inadequate 
 view of justice is one which we shall see presently is common 
 to Smith and his critic. He has seen only the negative side of 
 justice, and consequently, like Kant, he has assigned to legisla- 
 tion, which is built upon it, only the negative duties of restraint. 
 But is there any reason why justice should not say do, as well as 
 do not ; act in behalf of liberty, as well as do not act against it ; 
 anticipate the restraints which will be imposed upon it by 
 poverty, ignorance, brutality, and tyranny, and prevent the 
 occurrence of crime, as well as its recurrence. If liberty be the 
 object of justice, whatever is antagonistic to liberty it belongs 
 to justice to remove ; and Smith needed not to travel beyond his 
 own principle, in order to find grounds upon which to recognize 
 all the duties which Cousin properly assigns to the State. But 
 
OF JUSTICE AXD CHARITY. 
 
 253 
 
 if Smitli was thus led, by an inadequate conception of the nature 
 of justice, to exclude from its province a large domain which 
 legitimately belongs to it, was it not an equally inadequate 
 conception of it which led Cousin to assign this domain to 
 another principle, which, at bottom, is neither more nor less 
 than the principle of justice itself, acting in different relations, 
 i.e. under different external circumstances ? If it were true that 
 the duties of charity were duties which, being measured by no 
 corresponding rights, fell into an independent territory of their 
 own where the voice of justice was unheard, they would indeed, 
 as Cousin says, be " perilous duties," and I believe it is the 
 popular adhesion to the doctrine which he advocates with so 
 much zeal, which has gathered around them more than half 
 their perils. But have we in reality any ground for reverting to 
 a belief in this neutral territory^ between justice and injustice, 
 which Thomas Aquinas rejected so emphatically in his day,- even 
 in deference to such names as Kant and Cousin ? 
 
 Justice and injustice are not, like pleasure and pain, con- 
 traries merely, but contradictories','^ for not only does the affir- 
 mation of the one imply the negation of the other, but the 
 negation of the one implies the affirmation of the other. Be- 
 tween pleasure and pain there is a border land of indifference, 
 though even this is for the most part debateable ground; but 
 justice and injustice, right and wrong, both reach the water- 
 
 "If we contemplate actions in tlieir true and real connection, we shall find 
 tliat nothing is indifferent, because every action is either one corresponding, or one 
 not corresponding to the order of reason {orclo rationis), and nothing can be con- 
 ceived as holding a middle place." Neander, viii. p. 239. 
 
 - Summa Tkcologice, Prima secundcc, qnxs. xviii. art. ix. 
 
 ^ Hamilton's Lcct. vol. ii. p. 436, 
 
254 
 
 OF JUSTICE AND CHAEITY. 
 
 shed on the xiioiintam-top ; and that charity which does not 
 floAV down the valley of life like a fertilizing stream, will speedily 
 find its way to join those headlong torrents which roar down the 
 valley of the shadow of death. Omne minus honum hctbet ratio- 
 nem mali^ seems true, at least to the extent to which it 
 hands over to the dominion of darkness whatever does not be- 
 long: to the kinodom of ligjht ; thoiidi it is not true as exclud- 
 ing degrees of virtue and vice,^ and a consequent progress in 
 perfection or degradation. Viewed in this aspect the question 
 of the limits of justice belongs to the subject of theology rather 
 than of jurisprudence, and it is to the theologians and school- 
 men of the middle ages, and to their modern interpreters in 
 Germany and in this country ,3 that I must consequently 
 refer for its exhaustive discussion. It is necessary that we 
 should bear in mind, however, as I have said already, that the 
 whole doctrine of the Eoman Catholic Church on the subject of 
 works of supererogation^ {opera su])ererogcUio7iis), works, that is 
 
 ^ '* Malum enim est privatio boni." St. Augustin quoted by T. Aquinas, 
 Prima sccundoi, quses. xviii. sec. viii. Miiller on Sin, vol. i. p. 61, 
 
 2 The inability of the Stoics to maintain the distinction between obligations 
 which they had partially recognized was probably the cause of most of their ' ' con- 
 tradictions." For example they violated it by maintaining that there is no mean 
 between virtue and vice, and that virtue admits neither of increase nor diminu- 
 tion, the latter maxim being again contradicted by the whole object of their sys- 
 tem, which was increase in virtue, the natural implantation of which in all men 
 was the very root of their doctrine. (Zeller's Stoics, p. 249.) As regards the 
 identity of justice and charity in particular, they seem to have been consistently 
 inconsistent, Seneca being specially explicit (Zeller, 298). 
 
 3 Mr. Maurice has some excellent remarks on the subject in his Lectures on 
 Christian Ethics, Lec. xiii. p, 201. 
 
 ^ A modern English writer maintains that to do away with the belief in the 
 possibility of works which transcend the sphere of duty was one of the special 
 functions of Christianity. ' ' Extraordinary services to humanity become ordi- 
 nary and imperative in the Christian commonwealth" {Ecce Homo, p. 299). 
 
OF JUSTICE AXD CHAPJTY. 
 
 255 
 
 to say, wliicli profess to transcend the law, rests on tlie same 
 limited and imperfect conception of justice Avliicli in juris- 
 prudence lias led to tlie distinction between perfect and imper- 
 fect obligations. Tliey were regarded not as duties, but as good 
 works beyond the sphere of dnty, and independent of it; just as 
 works of charity, in which in no small measure they consisted, are 
 regarded by Cousin as beyond the sphere and independent 
 of the principle of justice. The fallacy involved in the train of 
 reasoning by which these works Avere inculcated and of the con- 
 sequent distinction in principle between consilia and jjrc€cci)ta, 
 of which we find traces even in Thomas Aquinas,^ is excellently 
 exposed by Mtiller on Sin.- But our present object will be 
 better attained by examining for ourselves the far clearer, if less 
 subtle, exposition AAdiicli M. Cousin has presented of vdiat essen- 
 tially is the very same argument against vdiicli Mtiller contends. 
 Let us examine his statement then that there are duties which 
 have no reciprocal rights in the light of the illustrations which 
 he has adduced ; and for this purpose let us turn to that portion 
 of his vuitings to which he refers in the passage which I have just 
 quoted. It is the appendix to his work on the Sensualist Philo- 
 sophy;^ and in it aauII be found an elaborate discussion of the 
 mutual relations and limits of justice and charity. Almost at 
 the very outset of this discussion the following pointed sentence 
 seems to concede the whole matter in dispute. "Duty and right are 
 
 ^ Prim. sec. Qu.^es. cviii. art. iv. 
 
 ^ Yol. p. 50. Tliis important but somewhat abstruse work is now yerj- fairly 
 translated into English. Considering the poverty of our native literatui'e, it is 
 surprismg that the industry of translators does not occasionally take the direction 
 of jurisprudence, as well as of theology. 
 
 ^ p. 313, et. scq. 
 
256 
 
 OF JUSTICE AND CHARITY. 
 
 brothers, tlieir common mother is liberty. They are born the same 
 day, they grow up, they develop and they perish together." We 
 cannot be so unjust to M. Cousin as to set down this pithy dictum 
 as a mere rhetorical embellishment, and if we are to attach to it a 
 serious meaning we can regard it as nothing short of an unquali- 
 hed recognition of the fact that rights and duties are reciprocal 
 and co-extensive. Yet tliis same dictum, in terms which if not 
 identical are equally unequivocal, might be quoted from the 
 writings of moralists and jurists without number, who like M. 
 Cousin repudiate the results to which it leads,^ and who, with 
 him, would indignantly reject the notion of confining the sphere 
 of duties within the limits which they themselves had assigned 
 to that of rights. If the truth be, as we contend, that the two 
 spheres are absolutely co-extensive, and that as regards human 
 relations the reciprocity of rights and duties has neither limits 
 nor exceptions (for in relation to the divinity, as I have 
 already explained, we are debtors only, and not creditors) the 
 circumstance of this fact being propounded thus unawares and 
 as it w^ere involuntarily, furnishes a striking illustration of the 
 greater trustworthiness which often belongs to the instinctive 
 perceptions of the reason than to the results of our conscious 
 mental processes. Let us test it, then, by the instance 
 which Cousin regards as most clearly fatal. The poor, he 
 tells us, have no rights — none at all events which constitute 
 
 ^ A curious illustration of the consequences of separating tliQjustum from the 
 d&corum is given by Barbeyrac. When commenting on Grotius (vol. i. p. 68) 
 he says that, according to his author though it may be honest and commendable 
 to content oneself with one wife, one cannot be said to do wrong in taking two. 
 Such was no doubt the logical consequence of what Grotius had said, but it was 
 very heartless in Barbeyrac to point it out. 
 
OF JUSTICE AND CHAEITY. 
 
 257 
 
 claims on our justice — and consequently our duties to them if 
 they exist at all, must be founded on another principle. If the 
 fact be as stated, the inference is indisputable ; and our concern 
 is consequently with the question of fact. In order to its solu- 
 tion let us recall for a moment what we have formerly said of 
 the origin of our rights. We found them to originate in the 
 distribution which God had made of His gifts to His creatures, 
 it being true, without exception, that every gift which we receive 
 from Him comes to us, accompanied by the consciousness of a 
 right to its retention, its exercise, and the results of its exercise. 
 In this view we have the fullest concurrence of M. Cousin him- 
 self " Property is sacred," he says, " because it represents the 
 right of personality itself The first act of free and personal 
 thought is an act of appropriation. Our first property is our- 
 selves, is our ego, is our liberty, is our power of thought; all 
 other properties are derived from this, and reflect it."^ 
 
 Now, if this be so, the question whether a pauper has rights 
 resolves itself into the question whether he has possessions, or 
 rather whether he has that original possession of personality, of 
 human life, in which, as M. Cousin says, all other possessions 
 { originate. If the answer to this question be negative, if we are 
 dealing not with a person but a thing, we postulate the condition, 
 j not of pauperism, but of slavery, which even the Eoman jurists 
 : pronounced to be an institution contra naturam, and which, in 
 our view of the matter, cannot claim to exist either ethically or 
 legally. The theory of slavery, moreover, annihilates duties as 
 weU as rights, for we can have no duties, in the human sense, 
 .towards things. It thus carries us beyond the pale of charity, 
 
 1 Ih. p. 319. 
 
258 
 
 OF JUSTICE AND CHAEITY. 
 
 as M. Cousin defines it, as well as that of justice. On the other 
 hand, the moment we depart from this theory, in its absolute 
 rigour, we just in so far assume the existence of a persona more 
 or less perfect, and answer the question in the affirmative. But 
 M. Cousin is not dealing with slavery, and the existence of the 
 persona is inseparable from freedom. The answer then, in the 
 pauper's case, must be affirmative. But if the answer be affirma- 
 tive — if the existence of the persona and its consequences be 
 admitted, then it is clear that the rights which accompany this 
 primary possession and its adjuncts exist in the humblest speci- 
 men of humaoity, just as fully as do the rights that accompany 
 the more multifarious possessions which have sprung from the 
 selfsame source in others. Now though M. Cousin maintains 
 that there may be duties to which no rights correspond, he does 
 not hold the converse of the proposition, and maintain that there 
 are rights without corresponding duties — though he maintains 
 that I may have duties towards you which confer on you no 
 rights, he does not maintain that you may have rights against 
 me which impose on me no duties. If the pauper has rights 
 then, on M. Cousins own shewing, I have duties towards Lim 
 corresponding to his rights, wdiatever they may be ; and as it is 
 only duties which do not spring from rights that fall beyond the 
 sphere of justice, my duties to the pauper not being of that 
 description, necessarily fall within the s^Dhere of justice. 
 
 It is no answer to this argument to allege that, by parallel 
 reasoning, it would be easy so to extend the domain of charity 
 as to make it include that of justice ; because what I am con- 
 tending for is just that the principles which lie at the root, of 
 justice and charity are identical, though seen from different 
 
OF JUSTICE AND CHAEITY. 
 
 259 
 
 points of view. The principle wliicli, in the case of justice, we 
 see in the light of a right to claim, in that of charity presents 
 itself in the light of a duty to give. 
 
 But however conclusive this argument may seem, does 
 it not, by limiting the legitimate action of the principle of 
 justice, lead at least to partial injustice ? In imposing on me 
 the duty of preserving his life, does not the pauper, to that 
 extent, make an inroad on my possessions, and rob me, so to 
 speak, of gifts which were a consequence of the original gift of 
 life to me ? My answer must be to remind you that subjective 
 rights are self-limited,^ their exercise being dependent on the 
 recognition of objective rights.^ So far from adding to my gifts, 
 my rights, or my liberties, by refusing to recognize those of my 
 neighbour, I should diminish them, or, in other words, render 
 their exercise impossible, to that extent There is no duty, how- 
 ever painful it may be, and however great may be the amount of 
 immediate self-sacrifice involved in its performance, which, when 
 fully understood, is not also a privilege, the exercise of which 
 may be claimed as a right, ^^ay, on the principle of that pro- 
 found maxim that " it is more blessed to give than to receive," it 
 would seem that the balance of gain is necessarily in favour of 
 him who performs the sacrifice, not of him for whom it is per- 
 formed. To the fullest extent, therefore, to which charity is a 
 duty founded on the rights of others, it is thus a duty founded 
 on our owTi rights. As mankind is constituted, the interests of 
 the subject and the object — my rights and thy rights — are 
 inseparable ; and it is only when I carry the exercise of charity 
 beyond the sphere of justice, when I pass the point at which 
 
 1 Ante, p. 160. 2 pp_ ^gS, 186. 
 
260 
 
 OF JUSTICE AND CHARITY. 
 
 liberty degenerates into Kcence, that I begin to squander my 
 means, to abridge my powers, and, in the mistaken belief that I 
 am adding to the means and the powers of my neighbour, com- 
 mit an act of injustice from which we mutually and eqiially 
 suffer. Just as we shall see presently that the highest liberty 
 implies the most perfect order, so here the widest charity is 
 identical with the strictest justice. The two culminate in the 
 same point. Beyond this point each sinks into its own opposite, 
 by the weight of the self-contradiction which all further attempt 
 at its realization involves. Up to this point all is mutual 
 benefit, and all sacrifice on either side is merely apparent. 
 
 But it will be objected that, according to this view, self-denial 
 and self-interest practically become synonymous. Such unques- 
 tionably is the fact ; the only difference between the self-interest 
 of which we here speak and that which commonly exhibits 
 itself in the form of selfishness, being that the former is an 
 enlightened self-interest, such as perfect intelligence would pre- 
 scribe ; whereas the other, always in reality, and very often de- 
 monstrably, is unenlightened, and such as only folly or knavery 
 would commend.i 
 
 On the very same principle on which " honesty is the best 
 policy," charity, in so far as it is an act of justice, nay, is not an 
 act of injustice to others, is self-interest. I^or need we be scared 
 from these conclusions by the consideration that, as mankind is 
 constituted, good policy would, in general, be a very unsafe ground 
 
 1 This conception of tlie solidarite of interests, and the possibility of reducing 
 vice to ignorance, as well as virtue to knowledge, on which so much of the argu- 
 ment in favour of compulsory education rests in modern states, though not acted 
 upon to the same extent, was as familiar to the better minds of heathendom as of 
 Christendom. See Plato, Protag. c. 37, sec. 38, et pass. 
 
OF JTSTICE AXD CHAPJTY. 
 
 261 
 
 on wliicli to preacli charity, or even honesty. It is the shortness 
 of our vision which makes the ground unsafe. If ve saw through 
 the whole vista of policy, as God sees through it, the ground 
 would be sufficient ; and we should not only, with Kepler, 
 " think God's thoughts," but do God's deeds after Him. 
 
 But though, in preventing the poor of our own neighbourhood, 
 or our children and near relatives, from diminishing what may 
 be regarded as the common stock of human life and liberty, by 
 sacrificino' the oifts which God has bestowed on them, we mav 
 be fulfilling the requirements of that principle of justice of which 
 life and liberty are the objects, what shall we say when we come 
 to other virtuous acts, to deeds of general philanthropy, or to 
 those special acts of heroic self-devotion by which the rights, the 
 interests, and the liberties of the individual, nay, the individual 
 himself, are freely sacrificed for the interests of others ? M. Cousin, 
 following Cicero/ adduces the instance of Publius Decius and 
 his descendants. The positive laws of most modern states have 
 made charity compulsory, and the laws of all civilized states 
 have enforced the mutual obligations of parents and children ; 
 but no code of laws ever decreed, or could decree, that, for the 
 sake of his country, a man should court death with greater 
 eagerness than ever Epicurus courted pleasure, still less that 
 three members of the same family in succession should do so. 
 "Was the self-devotion of the Decii then, or the martyr-death of 
 Eegulus, we shall say, an act of justice ? We answer the 
 question by another. "Was it an act of injustice ? or must we 
 again take refuge in a neutral territory between the just and 
 the unjust ? Or some may perhaps be disposed to say that, 
 1 De Fin. lib. ii. c. 19. 
 
262 
 
 OF JUSTICE AND CHARITY. 
 
 though an act of the highest virtue to others, it was an act of 
 injustice to himself. Decius, I reply, was God's creature as 
 mucli as any other Eoman, and God cannot have so ordered the 
 world as that an act of virtue to one should be an act of injus- 
 tice to another. To suppose the same action to be at once vir- 
 tuous and unjust would be to justify injustice, to confound 
 virtue and vice. If it was an act of virtue at all, it certainly 
 was an act of justice also — the fulfilment of a duty, if not of 
 the kind which men can impose upon men, at all events of the 
 kind which God imposes on heroes and on saints. 
 
 The mention of Cicero will recall to many the discussion 
 in the D& Finihus, in which Eegulus is maintained to have 
 been actually happier in the midst of tortures than Thorius, 
 stretched on a bed of roses, sipping the choicest wines. In 
 identifying virtue with utility and self-interest, even in this 
 present world, I of course accept this argument to the fullest 
 extent, though I do not deny the tendency which it has to de- 
 generate into a mere logomachy, turning on two distinct mean- 
 ings of the word " happiness." But what I wish to point out 
 as important for bur present purpose, is, that in consulting his 
 real as opposed to his apparent interest in circumstances so 
 painful, Cicero represents Eegulus not as having exceeded, 
 but as having nobly fulfilled his duty. The great jurist knew 
 nothing of works of supererogation. 
 
 (5) The doctriiie of the identity of the principles of justice and 
 charity was taught hy Christ's mediatorial sacrifice, and is im- 
 plied in the whole scheme of redemption. 
 
 The reader will only be giving utterance to a sentiment which 
 has received much prominence from the teaching, not of Chris- 
 
OF JUSTICE AND CHARITY. 
 
 263 
 
 tianity I think, but of Cliristians, if lie should meet the doctrine 
 which I have been enunciating by the question, whether 
 Divine justice be not transcended by Divine mercy ? The act 
 of creation may fall beyond the sphere of our ethical contempla- 
 tion, and revelation may have done nothing to bring it within 
 our ken. But have we not been told expressly that the act of 
 redemption was a work of supererogation ? The very highest 
 view that has ever been taken by Christians of the merit of good 
 works, the most extreme construction that ever has been put on 
 the Epistle of St. J ames, falls far short of bringing the goodness 
 of God within the limits of justice. According to the theology 
 of all the Churches of the Eeformation, it is to free grace alone, 
 and not to our righteousnesses — that are as filthy rags" ^ — that 
 we are indebted for His bounty. Here, then, is surely an in- 
 stance in point, for the charity of God, in transcending the 
 limits of justice, cannot possibly pass over into the opposite 
 region of injustice. Since God cannot possibly be unjust, there 
 must be some other principle, reconcilable but not identical with 
 justice, on which He acts : some neutral territory between justice 
 and injustice on which His mercy displays itself. But what, in 
 this view, do we make of the merits of Christ which are im- 
 puted to us ? Of His vicarious suffering for sin, and of our 
 faith in this suffering which is ''counted to us for rigliteousnessV"^ 
 An argument derived from God's forgiveness, so long as it was 
 viewed by the light of natural religion alone, might have been 
 maintained in support of M. Cousin's doctrine ; and it was in 
 this view, that in treating of creation, and of the consequent 
 relation of Creator to creature in general, w^e admitted that the 
 
 1 Isa. Ixiv. 6. 2 Qal. iii. 6. 
 
264 
 
 OF JUSTICE AND CHARITY 
 
 correspondence between rights and duties wliicli governs human 
 relations, is there inconceivable. But when taken in connection 
 with the scheme of redemption, the Divine clemency, so far 
 from supporting the notion of a possible separation between 
 charity and justice, seems absolutely fatal to it ; for the whole 
 end and object of that scheme was to bring the mercy and long- 
 suffering of God within the sphere of His justice — to reconcile it 
 with justice, or to prevent it, unmerited as it was by mere man, 
 from being unjust.^ If even God Himself cannot, consistently 
 with justice, extend to His creatures a mercy beyond their 
 merits, without falling back on an expedient which is at variance 
 with the ordinary arrangements of His providence, much more 
 must such a proceeding be impossible to creatures who are abso- 
 lutely bound by these arrangements. In this case, most emphati- 
 cally the rule is proved by the exception ; since even the excep- 
 tion is removed by the miraculous interposition of Him who 
 " of God is made unto us righteousness." ^ If justification by 
 free grace on God's part be a mystery, on man's part it is an im- 
 possibility ; and human pardon, mercy, charity, and, to sum up 
 all, virtue in every form, must be contented to keep within the 
 pale of the most rigid justice. 
 
 Nor is the case altered if, in place of the ordinary view of 
 redemption as a mere buying- off from merited punishment, we 
 adopt the deeper, and probably far truer view of it, as progres- 
 sive deliverance from sin by a growing consciousness of the filial 
 relation in which we stand to God, and consequent acceptance 
 of His will. Tor, if mercy be dependent on, and proportioned 
 to, the extent to which man is thus purified from sin by reunion 
 
 1 Matt. y. 17, 18 ; Luke xvi. 16, 17 ; Rom. iii. 31. = i Cor i. 30. 
 
OF JUSTICE AXD CHAPJTY. 
 
 265 
 
 with the Divine, then is mercy pLainly coincident with justice, 
 and this eqnally by whatever means this reunion may have been 
 effected. The regenerated creature, the new man in Christ, in 
 so far as the original image in which he was formed is restored 
 to him, has become entitled to mercy, or, in other words, the 
 mercy which is extended to him has become justice. 
 
 Xor was the doctrine of the unity of justice and mercy pecu- 
 liar to the Xew Testament. Those who conceive of justice as 
 opposed to mercy," says Mr. Erskine,^ " must regard the Psalmist's 
 utterance, 'Also unto Thee, 0 Lord, belongeth mercy, /o/- Thou 
 renderest to every man according to his works,'- as a complete 
 subversion of the meaning of words, and I have sometimes 
 thought they must be tempted to conjecture that the copyist 
 has, by mistake, substituted the word merry for justice. They 
 have been accustomed to suppose that nothing worse could be- 
 fall them than that God should render unto them according to 
 their works, and their hope in His mercy has just been the hope 
 that He woirld not so deal with tliem ; the idea therefore that 
 mercy itself will render unto them according to their works 
 seems to be the annihilation of all hope." 
 
 I believe," he continues, that all this is founded on misap- 
 prehension, and that in God mercy and justice are one and the 
 same thing, — that His justice never demands punishment for its 
 own sake, and can be satisfied with nothing but righteousness, 
 and that His mercy seeks the highest good of man, which cer- 
 tainly is righteousness, and will therefore use any means, hoAv- 
 ever painful, to produce it in him. If men could understand 
 that God's purpose, in rendering to them according to their 
 1 SjjirUuod Order, p. 71. = Psa. Ixii. 12. 
 
266 
 
 OF JUSTICE AND CHAEITY. 
 
 works, is to instruct them in the true nature and character of 
 their works, that so they may apprehend the eternal connection 
 between sin and misery, between righteousness and blessedness, 
 and thus be led to flee from sin and take hold of righteousness, 
 they would also understand that it is in mercy that He deals 
 thus with them, and that, in fact, the purposes of mercy can in 
 no other way be accomplished." 
 
 " I know that I should be a minister of good to many if I 
 could help them to apprehend that this is the meaning of God's 
 justice, and therefore that it is to be as much trusted as His 
 mercy. They have been accustomed to look upon Christ as 
 their Saviour, because He has delivered them from justice by 
 suffering the penalty which it denounced against them, whilst, 
 in truth. He is their Saviour, by revealing to them that justice is 
 their friend, being only the enemy of their enemy." 
 
 It is in the direction of separating justice from mercy, as here 
 indicated, rather than of separating mercy from justice, that the 
 ordinary teaching of Christianity has gone most widely astray. 
 That God could not be merciful without being just seems always 
 somehow to have been admitted, however irrationally it might 
 be explained ; but that He might be just without being merci- 
 ful was, and is still, strenuously contended for. Of all the 
 fruits of this unhappy severance of the Divine attributes, the 
 bitterest surely has been the belief in a region of final repro- 
 bation from which mercy is for ever shut out, and to which 
 those who are impenitent in this world are condemned for ever, 
 not for their good or for any good — not, indeed, with any object 
 at all, except simply the satisfaction of what is called " God's 
 justice." 
 
OF JUSTICE AXD CHAPJTY. 
 
 267 
 
 (c) The doctrine of the identity of justiee and charity vms not 
 first ]promidgated ly Christ, and is not cxcei^tioncdly Christian. 
 
 Truth is one and eternal. Xo truth, then, no portion or aspect 
 of truth, no doctrine that is true, can be either exceptional or 
 new. MoreoA^er, to ascribe either the revelation of truth to 
 mankind, or its recognition by mankind, to a particular epoch, is 
 to cut off humanity of the previous time from the Divine element 
 which constitutes the human characteristic, and to interrupt 
 the current of human identity. ]\Iore definite and consistent 
 revelation from within and from without, clearer recognition 
 and fuller acceptance of the truth, and not the discovery of 
 novelties, are the phenomena of progress, in all those depart- 
 ments of science which haA^e man for their object. I altogether 
 repudiate the division of the history of mankind into epochs in 
 Vv'hich man was and was not conscious. Man, as such, is a con- 
 scious being. An unconscious man is a contradiction in terms ; 
 and, — inasmuch as the doctrine in question is a revelation of 
 consciousness, as well as of external observation, and of the 
 word, — I no more agree with those who maintain that Christ first 
 taught that charity was a duty, than with those who date 
 f rater nits from the French Ee volution, or with Hegel when he 
 says that " the mandate hnoio thyself was first given to the 
 Greeks." ^ 
 
 But if this was so, the doctrine in question must have a place 
 in the history of opinion. AYe find, accordingly, that it was 
 pre-eminently the doctrine of that ethical school which I re- 
 gard as representative of what, more or less definitely, have 
 
 1 Phil, of Hist., p. 230. That it was given to those from whom the Greeks 
 sprang is, at any rate, a historical fact ; ante, p. 72. 
 
268 
 
 OF JUSTICE AND CHAUITY. 
 
 always been the central beliefs of mankind. 'Nor is tliere any 
 doctrine in their adhesion to which the disciples of Socrates 
 followed his leading more -unswervingly, or with reference to 
 which they were more nnanimons. I am aware that in this, as 
 in so many other directions, an attempt has been made to separate 
 Aristotle ^ from the other members of the Socratic school ; 
 and his divergence in so important a matter, if real, would in 
 so far as ethics are concerned, no doubt place him amongst the 
 imperfect Socratics. The case is one in which it is difficult to 
 reconcile the various expressions, so as to discover what 
 Aristotle's opinion really was. My own impression is, that his 
 objection to the manner in which Plato states the prevailing 
 opinion arose merely from his sense of the danger which there 
 was of the analytical examination of the virtues, as separate 
 manifestations, being abandoned in consequence of their funda- 
 mental identification ; and that, on this, as on all other occasions, 
 he stepped forward as the champion of the analytical method. 
 This view is strongly supported by the remarkable passage in 
 the Nicom. Ethics (v. i. 15), in which he speaks of SiKaioo-vvr] as 
 reXeia fxaXia-ra dperr], and as Comprehending the others,^ a passage 
 w^hich, to the mind of Thomas Aquinas, seemed not only to 
 settle the opinion of Aristotle, but which greatly influenced his 
 own view as to the inseparable character of the virtues.^ 
 
 As Sir Alexander Grant disputes the genuineness of the fifth 
 
 ^ Zeller's Socrates and the Socratic Schools, Eng. trans, p. 120 ; Grant's Aris- 
 totle, vol. i. p. 163. 
 
 ^ A.VT7] jxev odv i] diKaiocrvvr] ov fiepos aperris, dXka oXrj apery} icrrlu : ovd' ij 
 havrla ddiKLa, fx^pos KaKias, dW oXt) KaKia. 
 
 3 " Virtutes morales perfectas necesse est ad invicem connexas esse, ut altera sine 
 altera esse non valeat. " — Prim. Sec. Quces. Ixv. art i. And as to their relation to 
 justice, V. Sec. Sec. Quces. Iviii. art. vi. and xii. 
 
OF JUSTICE AXD CHARITY. 
 
 269 
 
 Book, his argument is not wholly invalidated by this passage, 
 though it is seriously weakened by it in consequence of his 
 admission that even the Eudemian Ethics are not an independent 
 work, but merely Eudemus's " exposition of the theory of Aris- 
 totle, slightly modified by his own views." That Eudemus 
 should have misunderstood Aristotle, or that he wholly dissented 
 from his views and silently and intentionally misrepresented 
 them, on a subject so often discussed in the school, are neither of 
 them probable solutions of the difficulty. But be this as it may, 
 if there be any single opinion that is traceable to Socrates per- 
 sonally, it would seem to be that of the unity of the Aurtues ; 
 and this instance, though by no means the only one, is perhaps one 
 of the most remarkable, of the extent to which the views which 
 tradition has ascribed to him were anticipations of the teaching 
 of Christ. I might refer to many passages in Xenophon, and 
 also in the Eepublic and the Laws ; but I shall select one which, 
 belonging to the earlier Dialogues, is more unquestionably 
 Socratic, and which has the farther advantage of taking up 
 the discussion more directly in the aspect in which I have pre- 
 sented it. 
 
 The main point at issue between Socrates and Protagoras, in 
 the dialogite which bears the arch- sophist's name, is almost 
 identical with that wliicli we have just been discussing with 
 Cousin, and the soltttion which Socrates forced on his reluctant 
 antagonist is precisely that at which M. Cousin might have 
 arrived by a surer way than any that was open to Protagoras. 
 The earlier portions of the dialogue contain perhaps the most 
 vivid picture of the intellectual life of Athens to be found in the 
 whole range, even of these marvellous productions. The gayest- 
 
270 
 
 OF JUSTICE AND CHARITY. 
 
 banter is mixed with the deepest wisdom, whilst the sharpest 
 satire that ever perhaps was turned against human pretentious- 
 ness and self-sufficiency is tempered, as it always is by Socrates, 
 not only by an urbanity which would have done no discredit to 
 the best days of chivalry, but by a forbearance and charity which 
 would have done great honour to the milder times in which we 
 live. At last the point is reached at which Socrates, in a 
 manner the least likely to alarm him, and, as it w^ere by the 
 way, places the Sophist face to face with the main difficulty. 
 " But still, Protagoras, I am a little at fault in a small matter, 
 which I must ask you to clear up for me, if you would have me 
 complete. You say that virtue admits of being taught ; and if 
 I could be persuaded of it by any man, I should be persuaded of 
 it by you. But, whilst you have been discoursing, there is a 
 matter which has puzzled me, and regarding which I beg that 
 you will set my soul at rest. You say that Zeus sent justice 
 and modesty to men ; and frequently, in the course of the dis- 
 cussion, you have spoken of justice, and temperance, and piety, 
 and the like, as if taken together they were one — namely, virtue. 
 Tell me then plainly whether virtue is a unity (eV) of which 
 justice, temperance, and piety form component parts (/xopia), or 
 whether these are all but different names for that same unity, 
 which bears also the name of virtue. It is this which I miss in 
 your discourse hitherto." " Nothing is more easy, my good 
 Socrates, than to answer that question ; for, virtue being one, 
 those qualities of which you speak are clearly parts of it." " But 
 whether," I said, " are they parts of it in the sense in wdiich the 
 features of the face, the mouth, the nose, the eyes, the ears, are 
 parts of the face; or, in the sense in which portions of gold 
 
OF JUSTICE AXD CHAEITY. 
 
 271 
 
 wliicli differ neitlier from each other, nor from the whole, except 
 in size, are parts of the mass of gold AA'hich they compose?" 
 " As the features are parts of the face, Socrates, so it appears 
 to me." " Do some men then," I asked, " possess one, and others 
 another, of these parts of Adrtue, or must he wlio has one have 
 all?" "By no means," he replied; "since many are brave 
 without being just, and just without being wise." "Are Avisdom 
 and courage, tlien, also parts of virtue ?" " AboA'e all," he said, 
 " wisdom more especially, seeing that it is the greatest of all the 
 parts." "Each of them is different from the other?" " Cer- 
 tainly 1" "And each of them has a special function, like the 
 features of the face ; for the eye is not like the nose, nor is its 
 function the same; neither of the others is one like another, 
 either in the function which belongs to it, or any other respect. 
 Is it so, also, with the parts of virtue ? Is no one like another, 
 either in its function, or in any other respect ? Plainly, it must 
 be so, if our example holds." " It is so, Socrates," he replied. 
 " And," I continued, " then none of the other parts of Aurtue 
 resemble knoAvledge, or justice, or courage, or temperance, or 
 piety ?" " Xone of them." " Come along, then, and let us 
 inquire together Avhat each of them is like ; and, first, after this 
 fashion : Is justice anything or nothing ? I hold it to be some- 
 thing, Avhat say you?" "I agree AAuth you" "How, then, if 
 anyone were to say to us. Tell me, Protagoras and Socrates, is 
 this thing Avhich you call justice a just thing or an unjust thing ? 
 I would answer, a just thing. AVhat A^ote would you give ? the 
 same, or a different one ?" " The same," he said. 
 
 A similar inquiry is instituted regarding piety — it, too, is a 
 thing, and a holy thing ; and Protagoras, on the principle that 
 
272 
 
 OF JUSTICE AND CHAEITY. 
 
 things wliich are equal to the same thing are equal to one 
 another, is dragged into the admission, first, of the similarity, 
 and, at last, of the identity of virtue and its component parts. 
 The dialogue exhibits, at many of its turns, that almost oriental 
 subtilty, which proves how entirely the great opponent of the 
 Sophists was master of their weapons. Tor a time, in common 
 with Protagoras, we almost lose the direction of the current ; 
 but, again, a little further on, the way we have "made shows 
 plainly enough how the stream has been running. "What 
 then, Protagoras, should we reply to our interrogator if he were 
 to ask us. Is piety then not a just thing, nor justice a holy 
 thing ?" Protagoras is painfully alive to the turn of affairs, but 
 he rallies wonderfully. Even opposites, he alleges, have a cer- 
 tain resemblance ; and so the virtues, though neither identical 
 nor like, are not without certain elements of resemblance. " And 
 have justice and piety," I exclaimed, in amazement, " according 
 to your view of the matter, only a slight resemblance to each 
 other ?" Protagoras exhibits an unmistakeable desire to change 
 the subject, and Socrates ' gratifies him, or rather seems to do so. 
 Nearly half of the dialogue passes; and when the subject is 
 resumed (in the 33rd chapter) Protagoras takes his stand on 
 courage. All the virtues resemble each other pretty closely, it 
 must be allowed, except courage ; but nothing is more common 
 than for the bravest man to outrage justice in the most flagrant 
 manner. The exceptional instance is chosen with infinite skill, 
 and seems far more likely to carry him through than that which 
 M. Cousin selected. But the relentless and insatiable dialectic 
 of his opponent was not to be robbed of its prey. Courage is 
 distinguished from rashness, the former being resolved into 
 
OF JUSTICE AND CHARITY. 
 
 273 
 
 knowledge^ the latter into ignorance, of what is truly terrible ; 
 and, in this respect, having the very same origin as cowardice. 
 But evil alone, it had already been admitted by all, is truly 
 terrible; and, farther, that no man chooses evil except from 
 ignorance. 'No man therefore knowingly chooses the truly 
 terrible. In choosing what seems to the ignorant to be terrible, 
 therefore the brave man simply chooses what he knows to be 
 good. But to choose the good knowing it to be such, is to exer- 
 cise wisdom. Courage is thus only another name for wisdom ; 
 and the Sophist who has declared, again and again, that wisdom 
 is the chief of all the virtues, handsomely owns himself beaten, 
 and ends by telling Socrates that he always maintained that he 
 was a promising youth, with whom he gladly conversed, and 
 that he would not be greatly surprised if he were one day to 
 acquire some reputation for wisdom. 
 
 I The views entertained by Socrates on the relation of virtue to 
 what are commonly regarded as its component parts, as exhibited 
 in this and other parts of Plato's dialogues, may be thus summed 
 up : — Virtue is not an aggregate of separate elements, neither is 
 
 j it a generic term for objects resembling each other only in their 
 common participation in one single element, however important ; 
 and when we speak of tlie virtues, distinguishing them into 
 courage, temperance, piety, and the like, we do not mention the 
 parts of a divisible whole (e.g. of a lump of gold), but the differ- 
 ent phases in which an indivisible whole (the quality of gold) 
 exiiibits itself. 
 
 The Aristotelic doctrine that the soul is all in the whole, and 
 ; all in every part,^ finds its precise analogon in the case of virtue : 
 
 H 1 Hamilton's Lectures, vol. ii. p. 9. 
 
 I ^ 
 
274 
 
 OF JUSTICE AND CHARITY. 
 
 it is all in the sum and all in each of the virtues. There can 
 be no justice without temperance, nor temperance without justice, 
 nor piety without both justice and temperance, &c. Each virtue 
 involves every other and all the others ; and in exhibiting itself, 
 it exhibits not itself alone, but virtue, the good (to aya^ov), the 
 idea, one and indivisible, audit is thus that we arrive at a philo- 
 sophical explanation of the dictum that " he who hath sinned 
 against one part hath broken the whole law,"^ which, as Thomas 
 Aquinas has remarked, finds its counterpart in Cicero's saying 
 in the Tusculan questions, " Si unam virtutem confessus es te 
 non habere, nuUam necesse est te habiturum."^ It was on the 
 same principle that the Gnostics maintained that each of the 
 Divine attributes presents the whole essence of Divinity under 
 one particular aspect, and may thus appropriately be called God.^ 
 Thus, then, we perceive the ground on which, according to Plato, 
 charity and mercy fall within the sphere of justice ; and, follow- 
 ing out his views, when we speak of justice as embracing the 
 whole field of ethics, we regard it as corresponding to that phase of 
 the good in which it exhibits itself as a harmony in human 
 relations. Even when we quit this phase, the essential 
 wholeness of the good necessitates the presence of justice in the 
 other phases of its manifestation. Adoration is nothing more 
 than a just recognition of the Divine perfections, for whatever 
 indulgence our helplessness may require of God, He can require 
 none from us. If we could satisfy His justice, He would be 
 satisfied. Even the sphere of the intellect by no means excludes 
 the good or its manifestations in the form of justice. 'Not only 
 
 ^ Kom. xiii. 8 ; Gal. vi. 2. 
 3 Neander, ii. p. 11. 
 
 Frim. sec. quces. Ixv, art. 1. 
 
OF JUSTICE AND CHARITY. 
 
 275 
 
 the speech of philosophers, but the language of Greece itself 
 coupled the beautiful and the good. In our own country, Price 
 and Wollaston and others have identified truth with justice, and 
 we have the highest of all authority for joining truth to righteous- 
 ness. Truth is to knowing, what righteousness is to doing. If 
 righteousness consist in acting or suffering, truth consists in 
 knowing or thinking, in accordance with justice.^ And in like 
 manner beauty — art — which is truth presented to the senses, 
 " the divine made visible," as Hegel finely said — resolves itself 
 into justice in proportion and colour. Moreover, truth resembles 
 virtue in this, that it is not a mere aggregate of separate and 
 unconnected truths, a vast and ever swelling mass of inorganic 
 fact, falling now within and now without the pale of what may 
 be called intellectual justice. On the contrary, it is one and 
 the same quality of rectitude, exhibiting itself in numberless 
 instances, unveiling itself in manifold aspects. Every fresh 
 discovery is simply an additional revelation of the cosmic 
 relations of the special department of the universe to which it 
 belongs : it is a revelation, not of truth which differs from, but of 
 truth which harmonizes with, nay, the moment it is discovered, 
 is felt to be inseparably and indissolubly allied to all that was 
 known to be truth before. If it were not felt and seen to be so, 
 we should have in that single fact a certain proof either that the 
 new truth was no truth, but rather a contradiction of truth, or 
 that the old truth must be dismissed as an exploded error. 
 
 Were I to attempt to enumerate all the errors, theoretical 
 and practical, into which mankind have been led by the narrow 
 and unworthy view of justice in its relation to the other virtues, 
 
 The one is the rjdLKrj aperri, tlie other the dLavorjTCKr] dperr] of Aiistotle. 
 
276 
 
 OF JUSTICE AND CHARITY. 
 
 and the consequent distinction between perfect and imperfect 
 obligations, against which I have here contended, I should have 
 to travel through every department of science which is occu- 
 pied with the relations either of man to man, or of man to 
 God. To point out the effect of these errors on the develop- 
 ment of jurisprudence as a science will form one of my chief 
 objects in the concluding chapters of this treatise ; and in our 
 studies of positive law there is no department in which we 
 shall not come upon numberless illustrations either of the 
 practical repudiation of the negative doctrine, or of the disas- 
 trous consequences of its application. As illustrations of the 
 former, I have mentioned the laws which, in all municipal 
 codes, impose duties on the potent towards the impotent 
 members of the community, whether that impotence arises from 
 age, from imbecility, or from poverty ; and as an illustration of 
 the latter, the unworthy conception of international duty on 
 which we have recently exhibited too great a tendency to act. 
 Another illustration, which will readily occur to Scotch lawyers, 
 is to be seen in the false distinction between law and equity, 
 which, for many generations, has given so confused and unscien- 
 tific a character to the municipal jurisprudence of our English 
 fellow-countrymen. 
 
BOOK 11. 
 
 OF THE OBJECTS OF NATUEAL LAW, AXD JUPJS- 
 PEUDENCE IX GEXEEAL. 
 
CHAPTEE I. 
 
 OF THE DELATION BETWEEN JURISPRUDENCE AND ETHICS. 
 
 rjlHE relation which subsists between jurisprudence, and, as a 
 necessary consequence between natural law, and ethics, is 
 determined by the definition of the objects of jurisprudence and 
 of natural law, ultimate and proximate. 
 
 (a) The ultimate object of jurisprudence is the realization of 
 the idea of humanity, the attainment of human perfection, and 
 this object is identical with the object of ethics. 
 
 (h) The proximate object of jurisprudence, the object which it 
 seeks as a separate science, is liberty. But liberty, being the 
 perfect relation hehveen human beings, becomes a means towards 
 the realization of their perfection as human beings. Hence 
 jurisprudence, in realizing its special or proximate object, 
 becomes a means towards the realization of the ultimate object 
 which it has in common with ethics. 
 
 In conformity with the limited scheme which the character of 
 this work imposes on me, I terminated, in last chapter, the con- 
 sideration of the sources of jurisprudence — of the teaching of 
 nature with reference to human relations, — and, in their primary 
 aspect, of the laws or principles of jurisprudence which result 
 from this teaching. My chief object in the discussions into which 
 this 'portion of our subject has led us, has been to exhibit the 
 inseparable relation not only between natural law and positive 
 
280 OF THE RELATION BETWEEN 
 
 human law in all its branches, but between the science of juris- 
 prudence as a whole, embracing both natural and positive law, and 
 that still wider and more general science which comprehends all 
 the other human sciences, and assigns to them one final end, — I 
 mean the science of ethics^ in its widest sense, — that is to say, 
 in the sense of the science of human life and of human progress, 
 social and individual 
 
 It now becomes my duty to point out, if possible more 
 explicitly than I have done hitherto, the characteristics which 
 distinguish that particular human science with which we are 
 occupied from this all embracing science, and from the cognate 
 branches which grow with it on the same parent tree. In 
 addressing myself to this task I pass from the sources and genesis, 
 to the sphere and objects of the science of jurisprudence. 
 
 From the whole view which we have taken of the nature of 
 our rights, and of the manner in which our duties arise, the 
 reader is of course prepared for the announcement that, in my 
 view of the matter, the object of jurisprudence, in so far as it is 
 a science separate from the great science of life, may be em- 
 braced in a single word — a word dear and venerable to all men, 
 but of all men most dear and venerable to us — Liberty. Juris- 
 prudence, in its special capacity, does not profess to give us 
 strength, knowledge, happiness, or virtue; but it professes to 
 supply, or rather to vindicate, a condition which is inseparable 
 from the attainment of them all — the free exercise of the powers 
 which God has bestowed on us. 
 
 ^ I have here attached to ethics the sense advocated by Ahrens, pp. 123 and 
 136 ; and which is generally attached to it by latsr German writers. See 
 Warnkonig, Encyc. p . 7. 
 
JUKISPRUDEXCE AXD ETHICS. -281 
 
 The root of all subsequent individual riglits, liberty is tlie end 
 and object of all citizen duties.^ 
 
 The relation in Avhich jurisprudence stands to ethics is thus a 
 subordinate one, the relation of species to genus, Avhilst under 
 the species again, as we shall see hereafter, are ranged as indi- 
 viduals the various departments of positive law. But though 
 jurisprudence, embracing of course both natural and positive 
 law, be subordinated to ethics on the ground that it professes to 
 contribute to the perfection of humanity only in one direction, 
 the contribution which it offers partakes of the full ethical char- 
 acter, so far as it goes. Liberty, the proximate object of juris- 
 prudence, is perfection, absolute perfection, ideal perfection, not 
 in the beings or objects related, it is true, but in their relations 
 to each other. 
 
 "Whether an absolutely perfect relation be realizable between 
 imperfect beings may indeed be Cjuestioned, because one of the 
 consequences of their imperfections will obviously be to hinder 
 the realization of the relation, or to disturb it when realized. 
 But a perfect relation, apart from the character of the objects 
 related, is at any rate conceivable in the abstract, and witli its 
 attainment the object of jurisprudence, as a separate branch of 
 science, is exhausted ; whereas the function of positive law, or of 
 jurisprudence as a practical art, consists in approximating to 
 this perfect relation. If one man be a saint and another man a 
 sinner, if one man be a sage and another man a simpleton, 
 jurisprudence accepts them just as mathematics accepts num- 
 
 ^ " There is," says Kant, " but one congenital right — Freedom" [Einlcitur.g, p. 
 xlv.). "La fin de I'etat," says Spinoza, "est done veritablement, la liberte " 
 (i. p. 218). "Justice," says Hegel, "is the reign of liberty realized" (Alirens, 
 p. 77-9, jpassim). 
 
282 
 
 OF TPIE RELATION BETWEEN 
 
 bers and spaces, and declares the relations in which they stand 
 to each other ; whilst positive law, taking the conditions of time 
 and place into account, assigns to them their respective rights 
 and responsibilities, prefers them and subordinates them, rewards 
 them and punishes them, ranks them in short, just as the 
 engineer lays the greater weight on the stronger beam, or the 
 accountant distinguishes between pounds and pence. 
 
 But though to jurisprudence, as such, the character of the 
 objects with the relations of which it deals, is thus, formally so 
 to speak, a matter of indifference, it is not less clear on the 
 other hand, that by perfecting their relations, jurisprudence tends, 
 in a most important manner, to perfect the objects or persons 
 related, and that it thus acts as a means towards the attainment 
 of the ultimate object of human existence — the end which it has 
 in common with ethics. It is from failing to distinguish be- 
 tween the relation and the objects related, more I believe than 
 from any other cause, that the difficulty of distinguishing be- 
 tween jurisprudence, and as a necessary consequence natural 
 law, and ethics has arisen ; whilst it is from failing to perceive 
 the identity of their ultimate ends, that those who have distin- 
 guished them, have so often fallen into the opposite and still 
 more fatal error of separating them altogether, and almost of 
 opposing them to each other. 
 
 But is liberty an object peculiar to the science of jurisprudence, 
 and, above all, does it constitute a distinction between it and the 
 science of ethics ? Ethics too, it may be said, has liberty for its 
 object ; and this not as a means to some final and ultimate end, 
 but as its own special end. Now there is a narrower sense than 
 that in which I have used it — as identical with the science of 
 
JUPJSPEUDEXCE AND ETHICS. 
 
 283 
 
 life as a whole, — in Avliicli the term ethics has no doubt been 
 used, both in the ancient and the modem world, and which 
 uncj_uestionably justifies this remark. To deliver the true, 
 general, or normal nature of the individual, from the restraints 
 which his false, exceptional, or abnormal nature imposes upon it, 
 was the professed object of the ancient moralists. Liberty, in 
 this sense, is expressly stated by Epictetus to have been the end 
 of his ethical system ; and this end, variously understood, has 
 been sought, more or less exclusively, by every subsequent 
 moralist whose system had any practical drift at all. Eecog- 
 nizing this fact, it has been common with many ^ who have 
 attempted to draw a line of demarcation between jurisprudence 
 and ethics, to say that the one is concerned with external liberty 
 and the other with internal liberty; or, in other words, that the 
 object of jurisprudence is to deliver us from the restraints 
 imposed on us by others, and the object of ethics to deliver us 
 from the restraints which we impose upon ourselves. 
 
 Further, as the subjective impediments to liberty being self- 
 imposed must be self-removed, ethics as a system, it has been said, 
 consists of the ruLes by which each individual seeks to effect this 
 object for himsell', whereas jurisprudence consists of the rules by 
 which he protects himself, or is protected b}^ others, from impedi- 
 ments from without. In this view of the matter etliics stands to 
 jurisprudence pretty much in the relation in which municipal 
 law stands to international law. As municipal law governs the 
 internal, and international law the external relations of the state, 
 so ethics govern the internal, and jurisprudence the external 
 relations of the individual. But, viewed in this light, it is plain 
 
 ^ £aut, Semple, p. 175. 
 
284 
 
 OF THE RELATION BETWEEN 
 
 that ethics, in place of being a wider and more general science 
 with an ulterior end of its own, becomes neither more nor less 
 than a branch of the science of jurisprudence, and a branch 
 which, the moment that it is embraced as part of the teaching 
 of a particular sect, whether philosophical or religious, assumes 
 the character of positive law. It is a system of law, differing 
 from other systems in the domain which it governs and the 
 tribunals by which it is enforced, but having essentially the 
 same objects, — the attainment not of perfection directly, not of 
 the final end of life in itself, but of freedom as a means to that 
 end, or of order, which, as we shall see presently, is a means to 
 freedom. Systems of rules of this description have often been 
 devised, their object being to give freedom to the normal 
 impulses of humanity within the subjective domain; and to 
 these systems the character of positive law has been recognized 
 as belonging, not by implication merely, but expressly. It was 
 of such a system that Epictetus said, " Whatever directions are 
 given you, look upon them as so many laws which have binding 
 power, and such as you cannot without impiety depart from."^ 
 
 iSTow, if there be anything to be gained by confining to systems 
 of this particular class the term ethics, and inventing another 
 term for the general science under which all systems for the 
 government of human action fall, and which assign to them their 
 common end, I have no objection to that proceeding. But J 
 object to the ethical character, however we may choose to desig- 
 nate it, being arrogated to themselves by these subjective 
 systems, whilst the other co-ordinate systems, which deal more 
 prominently with external liberty, are handed over to the science 
 
 ^ Stanhope's trans. 
 
JURISPRUDENCE AND ETHICS. 
 
 285 
 
 of jurisprudence, as if these two sciences were reciprocally 
 exclusive, and covered territories, the confines of one of wdiich 
 commenced only where those of the other terminated. The laws 
 which govern the relation of citizen to citizen, of state to citizen, 
 and of state to state, are ethical rules, because their ultimate 
 end is perfection, just as much as the dvexov koX the sustine 
 
 et abstine, or any other rule for the guidance of individual 
 conduct. 
 
 And as ethics embrace the whole field of jurisprudence, so 
 there is no portion of the domain of ethics from wdiich the 
 ministration of jurisprudence, by its own special means — tlie 
 attainment of liberty through the instrumentality of order — is 
 necessarily or scientifically excluded. It may be that the 
 state can give little aid to the individual in applying or en- 
 forcing the rules by which his own liberty demands that 
 his conduct should be regulated. Personal activity and in- 
 dustry, whether bodily or mental, can be but little stimulated 
 by social appliances ; and, in the normal conditions of life, are 
 called forth most effectually by the compulsitors of necessity, 
 and the inducements of well-being. But, even in free states, 
 labour is made a condition wherever public charity is bestowed 
 on the able-bodied; and education, the search after and dis- 
 semination of truth, as opposed to the acceptance of dogma, is 
 enforced by the policy of the most advanced states in Europe. 
 Then take the negative virtue of temperance. It may be im- 
 possible to enforce it by positive law. That is a question of 
 fact, relative to which there is much difference of opinion; 
 and according, as we decide it affirmatively or negatively, will 
 be our view^ as to the expediency, or inexpediency, of enactments 
 
286 
 
 OF THE EELATION BETWEEN 
 
 having the enforcement of temperance for tlieir object. To 
 interfere with the use of God's gifts is an interference with 
 liberty, and the question as to the limits of use and abuse is one 
 which the community may possibly be incompetent to solve by 
 any general rule. But suppose those limits passed, interference 
 to prevent a repetition of the offence, assuming prevention to be 
 possible, would be an interference in favour of the liberty of the • 
 victim of intemperance, and consequently in accordance with 
 the principles of jurisprudence. Nay, very possibly it might be 
 an interference in accordance with his wishes, for there seem to 
 be cases where men (individually or collectively) say, " I am 
 weak and wish to be protected against my own weakness. I 
 should be glad of a law which made it more difficult for me 
 than is now the case, to gratify my inclinations in the direction 
 of wrongful indulgence. Or, again, the reformation of the 
 individual offender may or may not be attainable by means 
 of punishment ; but nobody doubts that it may be legitimately 
 sought by that means, and that here, too, even positive law may 
 come, if it can, to the aid of those ethical rules by which the 
 subjective domain is more ordinarily governed. 
 
 There is another ground, analogous to that which I have just 
 mentioned, on which the sphere of jurisprudence has been 
 attempted to be distinguished from that of ethics. It is said 
 that it takes cognizance of actions alone, not of thoughts, 
 opinions, or intentions : that it will neither vindicate for me the 
 power of thinking freely, nor protect you against such evil and 
 malicious thoughts as I may harbour against you. But here., 
 just as in the case of the subjective domain generally, the 
 exclusion of jurisprudence arises from practical rather than 
 
JURISPRUDENCE AND ETPIICS. 
 
 287 
 
 theoretical considerations. On the one hand it is scarcely 
 possible to imagine circumstances which would call for its 
 interposition, for, inasmuch as there is, and can be, no re- 
 straint on internal liberty, interference with mere thought and 
 opinion can consequently never be requisite on the ground 
 of removing such restraint. On the other hand it is equally 
 difficult to imagine circumstances in which interference would 
 be possible. So long as thought or opinion remains within the 
 breast, so long, that is to say, as it is mere thought or mere 
 opinion, neither its character nor its existence can be ascer- 
 tained, and consequently it cannot be put into the crucible of 
 human judgment. But the limits of jurisprudence in this 
 direction are fixed, not by principle, but by necessity ; for the 
 moment that its interference becomes possible, it is conceivable 
 (though still perhaps very unlikely) that it may be justified in 
 the name of liberty. Nor is the principle that the quality of 
 thoughts, as good or evil, or of opinions, as true or false, is 
 indifferent to jurisprudence, that on which its interference for 
 the most part is withheld till the thought finds expression in an 
 act, or the opinion is propagated in the form of a doctrine which 
 the Church or the State conceives to be dangerous to well-being. 
 So far from repudiating all ethical considerations, the ground on 
 which jurisprudence declines to interfere is that, being bound to 
 interfere on ethical considerations alone, it possesses, and in the 
 circumstances can possess, no ethical information. Jurisprudence 
 does not say that it will take no cognizance of the quality of 
 intentions, for it is on the judgment which it forms of the 
 motives of the agents that the whole doctrines of responsibility 
 and non-responsibility rests. The moment that the intention of 
 
288 
 
 OF THE RELATION BETWEEN 
 
 the agent is made manifest (as, for example, by an attempt to 
 commit a crime, by tbe writing of a threatening letter, the 
 equipment of a ship of war by a neutral, or the like) juris- 
 prudence will anticipate the encroachment on external liberty 
 which the actual perpetration of crime would occasion, and not 
 only constrain the will of the intending criminal, but punish 
 him for his evil purpose.^ 
 
 Trom these observations, I think, you will perceive the rela- 
 tions in which the science of jurisprudence, as a whole, stands 
 to the science of ethics, in the wider sense. It is, as I said at 
 the outset, that of a special to a general science, of a means to 
 an end; for if the end of jurisprudence be liberty, liberty itself 
 is manifestly desirable only with a view to the attainment of 
 other objects, of which the sum is the realization of that perfect 
 Jmman development, and consequent happiness, which is the 
 end of the science of human life as a whole, the human end in 
 itself. The limits of the two sciences, as I have all along said, 
 are co-extensive ; their final ends are the same, for natural ^ law 
 seeks perfection by the fulfilment of the duties of charity, 
 
 ^ When Kant observes then that " the coincidence of an action with the laAv, 
 abstracted from any regard had to the motive whence it sprang, is its legality ; 
 but such coincidence — when tlie idea of duty, founded on the law, is at the same 
 time the inward spring — forms its moralitij,'' I deny the validity of the opposi- 
 tion. The motive so far from being " abstracted from," is often the very essence 
 of the legality or illegality of an act. Shooting, in the abstract, is legal. Shooting 
 with intent to kill a man, unless it be in self-defence, or for the protection of our 
 country, is illegal. Enlisting is legal and commendable; enlisting "with the 
 intent to serve against the Queen's allies " is a violation of the Foreign Enlistment 
 Act. Whether it be wise to frame enactments, the enforcement of which depends 
 on a proof of " intention, " is a practical question with which we have here 
 happily, nothing to do. 
 
 As to the limited sense in which the word " natural " is used with reference 
 to jurisprudence, see Introduction, ante, p. 2. 
 
JUEISPRUDEXCE AXD ETHICS. 
 
 289 
 
 benevolence, and the otlier so-called imperfect obligations, just 
 as it does by the vindication of the so-called perfect obligation 
 of justice — the question of hoAv far its dicta may be enforced by 
 jjositive IdiW, being a question of facts and circumstances of tem- 
 porary expediency. But jurisprudence is not the only special 
 science vdiicli seeks the final end of life ; nor does it stand to the 
 other sciences which seek it by different means, in any otlier 
 than a co-ordinate relation. Xeither from the common science 
 of ethics then, which has for its function to assign their common 
 end to all the human sciences, nor from these sciences specially 
 considered, each of which, though employing partial means, 
 seeks the attainment of perfection not partially but completely, 
 is the science of jurisprudence distinguishable as regards its 
 domain. Each science, by its own special means, seeks the 
 realization of all the virtues. The science of instruction, for 
 example, seeks the attainment of the good by the inculcation 
 of the so-called imperfect obligation of charity, just as of the 
 perfect obligation of honesty, or of the duty of cidtivating the 
 reason, which is its more special end. The science of war seeks 
 to maintain our honour, and to fulfil our human destiny, as 
 well as to protect our more immediate interests as a nation. 
 And so of each of the others. Each seeks, in so far as its means 
 permit, to cover, so to speak, the whole ethical field, to fulfil the 
 whole law. But each is distinguishable, first, from the general 
 science of ethics, inasmuch as being special and practical sciences, 
 they employ special and practical means for the attainment of 
 the common object ; and, second, from each other, inasmuch as 
 tlie means which they employ are different. Xow it is the 
 means employed by the science of jurisprudence for the attain- 
 
290 
 
 OF THE RELATION BETWEEN 
 
 ment of the common end wliich constitutes its object considered 
 as a separate science ; and the means which jurisprudence sup- 
 plies for this purpose is liberty, just as the means which educa- 
 tion supplies is knowledge, or the means which medicine supplies 
 is health.^ 
 
 In further illustration of the relation in which the various 
 sciences stand to the central science of ethics, and to each other, 
 let me recall the results of our recent inquiry into the antique 
 conception of virtue. After endeavouring to prove the ground- 
 lessness, in point of principle, of the distinction which had been 
 attempted to be drawn between justice and charity, I referred to 
 the famous argument in the Protagoras of Plato, by which the 
 unity of the virtues is established. According to Plato's view, 
 we found that virtue, the good, when considered as a whole, is 
 not an aggregate of separate elements, neither is it a generic 
 term for specific objects resembling each other only in their 
 common participation in one single element, and that when we 
 speak of the separate virtues of courage, temperance, justice, and 
 the like, we do not mention the parts of a whole, e.g. of a lump 
 of gold, but the different phases in which an indivisible whole— 
 the quality gold in the abstract — exhibits itself. As Aristotle 
 said of the soul, " that it is all in the whole, and all in every 
 
 1 The relation in which the position here taken up places us to the Kantian 
 school, may be thus stated : — 
 
 1st. In accordance with the Kantian School, we adopt : 
 (a) Liberty as the object or end (reXos) of jurisprudence, and 
 (&) Order as the means, sine qua non, to the attainment of liberty. 
 2d. In opposition to the Kantian school we reject (p, 231 et seq.) the negative 
 character which it imposes on the means by which jurisprudence seeks the attain- 
 ment of its end, following, in this latter respect, the teaching of the positive 
 school (p. 240). 
 
JUPJSPPcUDEXCE AND ETHICS. 
 
 291 
 
 part;" and as Hamilton, adopting liis view, held that it is the 
 same individual mind that operates in sense, in imagination, in 
 memory, in reasoning, &c., differently indeed, but differently 
 only, because operating in different directions ; so of virtue we 
 conclude it is all in the sum, and all in each of its parts. But, 
 like the mental faculties, the impulses which correspond to the 
 various virtues operate in different directions, they seek a common 
 end by different means. l^o^Y it is to the means employed by 
 the virtues, thus separately regarded, that the various branches 
 of human endeavour, with a view to the realization of the good, 
 correspond ; and these branches, when systematized and reduced 
 to rule, constitute the various human sciences. But the various 
 human sciences when applied to practice, that is to say, when 
 brought in contact with external existence, become arts and 
 professions, all bound together by one ultimate and general 
 object — the realization of the good, or of the human idea, which 
 is the good in its human aspect, — and all held apart by their 
 various proximate and special objects, the realization of which 
 they seek as separate professions. 
 
 CHAPTER IL 
 
 OF THE EELATIOX BETWEEX ORDER AND LIBERTY. 
 
 Order ccnd liberty, like justice and charity, are in j^'^i'^^ciple 
 identical. They can he realized only in conjunction, and neces- 
 sarily cidminate together. 
 
 It was not without reason that our own ancestors, in word 
 
292 OF THE RELATION BETWEEN OEDER AND LIBERTY. 
 
 and deed, coupled liberty witli law; that the sacred writers 
 spoke of the " perfect law of liberty " as the law prescribed by 
 Him whose "service is perfect freedom;" or that Cicero said, as 
 Plato had said before him, " legum idcirco omnes servi sumus 
 ut libcri esse possimus." ^ 
 
 But the conditions under which our rights are realized, rather 
 than the origin of these rights, or the final end of their exercise, 
 bring the subjects with which jurisprudence, when seen not as a 
 science but as an art, is mainly conversant, — the realization of 
 order, and not the attainment of liberty, came very generally to 
 be regarded as the final and exclusive object of jurisprudence. 
 The error, like most errors, was a half-truth; for the means, 
 which was thus mistaken for the end, being not one of many, but 
 the exclusive and infallible means — the means without which 
 the end was, in all cases, unattainable, and with which its attain- 
 ment was inevitable — if not identical with the end, was involved 
 in it, and in the last analysis implied in it. But the practical 
 results of the error have not been on this account less fatal ; for it 
 has been by considering order as an end in itself, and by forgetting 
 that its value ceases the moment that it fails to fulfil tlie 
 function of a means towards the attainment of liberty, that 
 authority has been hardened into despotism, that obedience has 
 degenerated into slavery, that nation has been separated from 
 nation, class from class, and man from man, till humanity itself 
 has groaned under the burden which was bound on its back by 
 honest and upright, but ignorant hands. The principle that the 
 perfection of legislative, as of all other machinery, consists in its 
 simplicity, and that so soon as a law becomes needless it becomes 
 
 1 Pro. CI. 5, 3. 
 
OF THE EELATIOX BETWEEN OEDER AXD LIBERTY. 293 
 
 injurious, — a stumbling-stone in the way to liberty, an impedi- 
 ment in our progress towards the realization of the final end of 
 life, was the great discovery of the eighteenth century. 
 
 As usual, it received a one-sided application. Theoretically, 
 as we have seen, it led even men like Kant so to limit the sphere 
 of legislation as to lose sight of its positive side, and this error 
 speedily opened the door to the still more formidable conclusion 
 that the negative side of it must be repudiated also. Order, 
 which feudalism and despotism had adopted and discredited as 
 an end, under the reaction which arose against them lost its hold 
 as a means, and its opposite — license — no longer stigmatized as 
 the irreconcilable foe of liberty, was tolerated as its excess, and 
 hailed as a rougher and more perilous, but shorter road to the 
 goal of human life. Now, if license and liberty differ only in 
 degree, and if order, as the opposite of license, be thus separated 
 from liberty, it will at once be apparent that there is an end to 
 compulsory legislation altogether. The " police " of the negative 
 shares the fate of the " guardianship " of the positive school ; for 
 order having confessedly no separate standing-ground, no inde- 
 pendent warrant of its own, it is in the name of liberty alone, 
 his own included, that the greatest criminal can be punished for 
 the greatest crime. The only answer, then, to a train of reason- 
 ing which has led to far graver results than even the substitution 
 of order for liberty, consists in the denial that license ever is 
 liberty in excess. 
 
 We often hear, in popular speech, of the exaggeration of a 
 truth, or of a virtue ; but as Cousin^ and many other reasoners 
 have pointed out, no such exaggeration is possible. Liberty, 
 1 Ecol. Ecoss. p. 297. 
 
294 OF THE RELATION BETWEEN ORDER AND LIBERTY. 
 
 like truth and virtue, never can be carried too far. What really 
 takes place in the circumstances which these phrases describe 
 is not an exaggeration, but a transition ; and a transition very 
 often to error, or vice, of tlie gravest kind, though on the prin- 
 ciple that extremes meet — to error, or vice, which lies in the very 
 borders of truth and virtue.^ That license then stands to liberty 
 in tlie relation, if not directly, of an opposite, at least necessarily 
 of an opponent, and is practically equivalent, not to its more 
 perfect, but to its less perfect realization on the wliole, or, as 
 Kant would say, " as an universal law," will, I think, be apparent 
 if we consider that, in every imaginable instance, it is resolvable 
 into a pushing of the meum into the domain of the tmim, or the 
 reverse. There can be thus no general or absolute gain; for, 
 assuming the subject to be a gainer, in direct proportion to what 
 the subject gains, the object loses. But why, it may be said, 
 should there be an absolute loss ? Now the answer to this ques- 
 tion will be found in recalling the fact that man is a dependent 
 being, the full possession and enjoyment of whose gifts, powers, 
 and faculties is possible, only by the aid of the highest possible 
 realization of objective means. Liberty is something more than 
 the mere negation of restraint. It is only by the help, the 
 active aid and co-operation, of the object, that the subject 
 can be free ; and were I to succeed, not only in robbing you of 
 your liberty, but in annihilating the whole objective world, I 
 should be more limited by my own impotence, more enslaved by 
 myself, than I could possibly be by its encroachments. The 
 
 ^ The doctrine of the fxeaSrTjs is explained by Sir Alex. Grant in such a way as 
 to free Aristotle from the reproach which Kant and Grotius, and so many others 
 have brought against him, of making the distinction between virtue and vice 
 merely quantative. Grant's Aristotle, i. p. 201. 
 
OF THE EELATION BETWEEN ORDER AND LIBERTY. 295 
 
 fraternal relations of humanity, as realized in association, co- 
 operation, combination, and the like, are favourite themes at 
 present, chiefly with those by whom the deeper principle of 
 mutual aid in the paternal direction of guardianship has been 
 forgotten. But the successful, or even the safe application of 
 the fraternal principle, must depend on our recognition of the 
 fact that, so far from being at variance with the principle of 
 order which has been falsely associated with the paternal principle 
 exclusively, true fraternity is only order in another aspect. Seen 
 in this light, and recognized like order on the whole, not as an 
 end but as a means, fraternity, like guardianship, rests on the great 
 truth that, as God has made nothing in vain, and that there is 
 no creature, however insignificant or comparatively unimportant, 
 the free and perfect exercise of whose faculties is not demanded 
 for the realization of the objects of humanity as a whole; 
 whilst the converse of the proposition is likewise true, viz., that 
 there is no created being, or collection of beings, so self-sup- 
 porting as to dispense, without loss, with the aid of any being 
 that God has made. It is then the maximum, and not the 
 minimum, of objective, which is the condition of the attainment 
 of the highest subjective liberty. But a maximum of objective 
 liberty, combined with a maximum of subjective liberty, is 
 possible only in the case in which neither oversteps its legitimate 
 boundaries. There must be no debateable ground of anarchy 
 between them, else one or both will fall below the maximum. 
 But the arrangement by which their respective borders are 
 defined, as it were, by an ideal line, which robs neither of its 
 territory, is the arrangement to which I give the name of order ; 
 and I think, therefore, that the conclusion is warranted that the 
 
296 OF THE RELATION BETWEEN ORDER AND LIBERTY. 
 
 highest liberty involves the most perfect order, and, reciprocally, 
 the highest order, the most perfect liberty. 
 
 One of the most important consequences of the interdepen- 
 dence of order and liberty, is the impossibility of either progress 
 or retrogression taking place in the one apart from the other. 
 Nothing can be more misleading than to talk of order as the 
 permanent, and liberty as the progressive, element in society, 
 as if order resembled the mechanical arrangement of bricks in a 
 wall, and liberty the organic development of a^ plant or an 
 animal, whereas they are, in truth, the complementary functions 
 of one single organism, the cells and the sap of one living body. 
 Nor is this relation in any degree affected by the fact that, in 
 progressive societies, order, as we have said, becomes more and 
 more spontaneous, and less and less dependent for its mainten- 
 ance on positive law ; for it is in voluntary obedience, in free 
 acceptance of law, and not in compulsion, however perfect, that 
 order culminates. A self-acting machine is not the negation but 
 the perfection of mechanism ; and so an autonomous community 
 is not a community set free from order, but a community which 
 freely orders itself For this reason, paradoxical as it may seem, 
 it nevertheless admits of demonstration, that if a republic were 
 realized, in the only sense in which its realization is possible, it 
 would be more anti-democratic, in the popular sense of demo- 
 cracy, than the most despotic government that ever existed, nay, 
 than any government that ever existed, or could possibly exist, 
 on the face of the earth. 
 
 The inseparable connection between order and liberty did not 
 escape Socrates, as few things did. Plato represents him as 
 illustrating it, in a passage in the Gorgias, in a very ingenious 
 
OF THE EELATION BETWEEN OEDEE AND LIEEETY. 297 
 
 and characteristic manner. Order, system, regularity," he 
 says,^ " are the only conditions of well-being in a house, and in a 
 ship. To this same order and regularity in the body we give 
 the name of health. But the health is the condition of liberty 
 in the body ; for even the physicians allow the healthy body the 
 fidlest gratification of its desires, whereas the moment it becomes 
 sick, the only mode in which it can be cured is by restraining it, 
 and interfering with its liberty. But to the order and regularity 
 of the soul, that which corresponds to bodily health, we give the 
 name of law (vofios), which is righteousness and temperance 
 (SiKaioo-vvy] re Kal crojcfipocrvvi'i, which he elsewhere^ combines under 
 Koa-fLo s). And in the soul, precisely as in the body, whilst the 
 healthy soul fulfils its longings without injury, the diseased soul, 
 that is to say, the soul that is irrational, and intemperate, and 
 unjust, and unholy, in order to its own restoration to health 
 must be restrained in its desires." " ISTor, even if present 
 gratification be regarded as the end, is it attainable through 
 license; for what gratification does an unhealthy body derive 
 from the fulfilment of its desires ; " ^ and the case of the soul is 
 again analogous. It is in this latter point of view that the 
 analogies derived from our bodily functions present to us, in the 
 strongest light, the universal antagonism between license and 
 liberty, and the self-destructive character of the former. Even 
 before the physician can interpose, the limitations which he 
 would have suggested are but too often effected by the unim- 
 peded action of the indulgence itself; and, without the slightest 
 external interference, the point is reached at which it is appointed 
 by the constitution of our nature that "the grasshopper shall 
 become a burden, and desire shall cease." ^ 
 
 1 Cap. 59. 2 Cap. 63. ^ Cap. 59. 4 Eccles. xii. 5. 
 
298 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 CHAPTER III. 
 
 OF THE HISTORY OF THE DOCTRINE THAT THE IDEA OF LIBERTY 
 INVOLVES THE IDEA OF ABSOLUTE EQUALITY. 
 
 Before we quit the consideration of liberty as the object of 
 law, there is one question, in particular, which demands our 
 attention, because the notion which we form both of liberty itself, 
 and of those special and proximate objects which are in reality 
 means towards its attainment, will largely depend on the answer 
 which we give to it. The question to which I refer is whether 
 Equality, which common sentiment and vulgar speech have now, 
 for nearly a century, so frequently connected and even identified 
 with liberty, be really implied in it ; and if so in what sense ? 
 
 In addition to the scientific importance which must always 
 belong to it, this question is, moreover, that of all others which 
 has perhaps the most important bearing on the practical life of 
 our time, both social and .political. However much the better 
 sort of Englishmen may be satisfied of the practical impedi- 
 ments which stand, for the present, in the way of the attain- 
 ment of social and political equality, in the popular sense, either 
 in England or anywhere else — nay, however fully they may be 
 convinced of the impropriety of its admission amongst the im- 
 mediate objects of any scheme of legislation, or system of posi- 
 tive law, in any stage of development which mankind has yet 
 reached, there are, in many honest minds, hazy notions about its 
 absolute justice and ultimate expediency, which cause them to 
 hesitate in dismissing it from the objects of jurisprudence on 
 absolute grounds. They shrink from the consequences which it 
 
THE IDEA OF ABSOLUTE EQUALITY. 299 
 
 has involved hitlierto, and wliicli apparently it must always 
 involve ; and yet, as tliey can see no logical or scientific escape 
 from it, they arrive at the untenable, irrational, and absurd con- 
 clusion that though wrong in practice, it must be right in theory. 
 And it so chances that if in some degree protected by their 
 national temperament against the extremest practical conse- 
 quences of the doctrine of equality. Englishmen stand to it, 
 logically, in a peculiarly helpless position. The historical 
 method is the only one with which the vast majority even of 
 educated men in this country are acquainted, or in which they 
 have any confidence, and here the inadequacy of the histori- 
 cal method, either as a refuge against error or as a basis for 
 truth, has become specially apparent. It is true that history 
 repudiates equality ; that the life of man, hitherto, has failed to 
 reahze it ; and that these facts are good arguments, so far, against 
 its claim both to scientific and practical recognition. But they 
 only go a certain length. They are grounds of hesitation, not of 
 decision. The life of man is not ended ; history has not closed ; 
 and the verdict of history is thus neither final nor infallible. 
 It may be that the future shall turn its back on the past ; nay, 
 it is possible that a contemporaneous history may be growing up, 
 in America or elsewhere, even now, wdiich shall reverse the pre- 
 vious history of mankind. On these, and similar grounds, the 
 logical and formal validity of which it is impossible to deny, 
 and the material truth of which we may question but cannot 
 absolutely refute, the historical method has been repudiated by 
 speculative politicians, from the days of Hobbes to our own. 
 The enemies of historical society have appealed from tradition 
 to nature, from empiricism to science. The appeal is legitimate ; 
 
300 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 and those of us who undertake the defence of society must be 
 contented to follow them into this court of last resort. Our own 
 acceptance of the challenge is the more imperative, because the 
 method on which political scepticism here relies is that which we 
 ourselves have all along invoked as the only means of reconciling 
 liberty and order, and placing society on an immoveable basis of 
 reason. Without withdrawing, then, from the position which 
 we have hitherto occupied, I shall endeavour to develop a 
 theory of equality in accordance with nature, which, however 
 much it may differ from the popular ideal, will, I trust, satisfy 
 the utmost longings of scientific liberalism. But before I 
 present the doctrine which seems to me, logically and neces- 
 sarily, to result from the principles of nature which we have 
 already recognized, it may be proper that I should endeavour to 
 indicate, historically, the origin and development of the opposite 
 view. "To trace an error to its fountain-head," said Lord Coke, "is 
 to refute it;" and Mr. Bentham shrewdly remarked that, " with 
 many understandings it is the only refutation that has any weight."^ 
 (a) As a protest against authority. 
 
 As a mere protest against authority the doctrine of absolute 
 equality is as old as mankind. It is the contre coup with which 
 vanity and envy respond to oppression, and by which one class 
 of vices counteracts another. In this sense it has found expres- 
 sion in every servile war, in every agrarian outrage, in every act 
 of insubordination which exceeded the bounds of a legitimate 
 protest against tyranny or exclusiveness. But it is not in the 
 spirit in which it was acted upon on these occasions that the 
 principle is vindicated by its advocates. It is viewed not as a 
 
 ^ Stewart's Works, vol. i. p. 192. 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 301 
 
 watcliworcl of temporary dissatisfaction, whether justifiable or un- 
 justifiable, but as the ^^ermanent goal of social and political effort. 
 (h) By the Jesuits. 
 
 As advocates of the supremacy of the clerical order, and 
 defenders of t}Tannicide, several of the Jesuits of the sixteenth 
 century^ came so close on the development of a theory of political 
 equality as to justify the assertion of Bunsen,- that "J esuitism and 
 radicalism are two several masks of the same destroying spirit." 
 Of the alliance between ultramontanism and revolution, the his- 
 tory of our own day, and even of our own country, furnishes many 
 examples. But the alliance is essentially dishonest, and has 
 never produced any consistent theory of mutual aspiration.^ 
 
 (c) By Hobbes. 
 
 The earliest systematic statement of the doctrine that can be 
 said to influence existing opinion is that of Hobbes. Hobbes 
 brings equality within the sphere of j astice, by bringing it first 
 within the sphere of fact. He does not argue that all men ought 
 to be equal, or to be made equal, by social or political arrange- 
 ments, in obedience to any law either human or divine ; but he 
 boldly asserts that all men are equal absolutely, in strength, 
 wisdom, and virtue ; and this not at birth alone, but throughout 
 
 1 Hallam, Literature, voL ii. p. 33, et seq. ^ Life, ii. p. 149. 
 
 3 The relations between Calvinism and democracy are excellently brought out 
 in " Les Fran9ais en Americ[ue pendant la Guerre de I'lndependance (p. 29, et seq.), 
 par Thomas xBalch," an American gentleman resident in France, who for many 
 years has been a careful student of political philosophy. That these relations 
 have been, practically, of the most important kind cannot be doubted. But I am 
 not aware that any doctrine of absolute equality, as the ideal relation of human 
 beings, was ever enunciated by any leading Calvinist. Equality even amongst 
 the clergy was no part of the original scheme of Knox, and Calvin's system was 
 borrowed from, not the cause of, the republican constitution which, in imitation 
 of the rest of Switzerland, Geneva had already adopted. 
 
S62 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 life, not by their own arrangement, but by tlie providence of 
 God.^ In perfect accordance with the principles which we have 
 recognized throughout, it would follow from this single assertion, 
 if true, that every distinction which has ever been established 
 amongst men was an invasion of liberty, an act of injustice, and 
 that the vindication of absolute equality, and its consequences, 
 belongs to the science of jurisprudence, quite as inalienably as 
 the vindication of liberty. Mr. Hallam has said that Hobbes 
 adopted the "strange and indefensible paradox of the natural 
 equality of mankind, rather in opposition to Aristotle's notion 
 of a natural right in some men to govern, founded on their 
 superior qualities, than because it was at all requisite for his 
 own theory."^ I cannot agree with Mr. Hallam in that opinion. 
 To me, on the contrary, it appears that the doctrine of equality 
 formed the very corner-stone of Hobbes's whole political, and 
 even of his ethical system; and that he was correct in sup- 
 posing that his difference from Aristotle was necessitated by the 
 conclusions which he had determined to reach. Essentially I 
 regard it of course as an unstable foundation, because I believe 
 the assertion to be false ; but formally it was sufficient for its 
 purpose as no other foundation could have been, and if the 
 reader will permit me to assume its truth for a moment, I think 
 I can shew him how Hobbes's wdiole political system, which was 
 what he had most at heart, flowed from it. 
 
 The first effect of all men being equal in powers, was that all 
 men were equal in rights ; for Hobbes, be it remembered, was 
 fully alive to the necessity of founding jurisprudence in nature, 
 and correctly held that rights are proportioned to powers.^ 
 
 ^ De Corjjore Politico, cap. iv. sec i. ; Leviathan, cap. xiii. sec. 1, and cap. xv. : 
 ^ Lit. of Europe, vol. ii, p. 538. ^ Lev. pass. andX'e Cor. Pol. pt, i. c. iv. s. 14. 
 
THE IDEA OF ABSOLUTE EQUALITY. 303 
 
 All men thus possessed an equal right to all things. There 
 was no reason, either in fact or in law, why one man should 
 give way to another. The earth, and the fulness thereof, was 
 equally the inheritance of each, and each was as able as the 
 other to hold his own. God had made no distribution of his 
 gifts; but had tossed them, so speak, into the arena, to be 
 scrambled for by combatants whom, in order that the fight 
 might be interminable, He had endowed with equal powers. 
 Here was surely a sufhcient foundation for the doctrine of 
 a state of natural ivar, and this, as is well known, formed the 
 second stage in Hobbes's political structure. That the attain- 
 ment of this second stage was the object with which Hobbes 
 enunciated the doctrine of equality is a fact, of the reality of 
 which a single glance at the beginning of the 13th chapter of 
 the Leviathan will convince us, for he there lays it down 
 expressly that "from equality proceeds diffidence, i.e. mutual 
 distrust, and from diffidence, war." But the very equality which 
 rendered war inevitable and interminable, rendered its prosecution 
 detrimental to every single individual. Eeason and experience 
 concurred in teaching that the only condition on which each 
 could take exclusive possession of the fraction which fell to him 
 when the sum of possessions was divided by the sum of posses- 
 sors, was that he should renounce his claim to all the other 
 fractions. In order to carry out this arrangement, to enforce 
 this " covenant," as Hobbes and his followers were in the habit 
 of calling' it, government was necessary. But for government, as 
 he terribly put it, the life of man would be " solitary, poor, 
 nasty, brutish, and short." It was for the common interest, 
 
 ^ Cap. xiii. 
 
304 THE IDEA OF ABSOLUTE EQUALITY. 
 
 moreover, that this arrangement should be carried out, not 
 approximately, but absolutely, — the government must be absolute, 
 i.e. it must absorb the whole powers of the whole community, 
 leaving no individuals, or society of individuals, in a condition 
 to deal with it on better terms than the rest. In this way 
 Hobbes arrived at the conclusion that, whatever the form of 
 government might be, it must be absolute, — altogether uncon- 
 trolled in the exercise of its powers — despotic. The Leviathan, or 
 mortal God, must share in the omnipotence of the immortal God, 
 whom he represented on earth. Non est potestas super terram 
 quce comparetuT ei} is the motto of his book, and he will not 
 hear of a practical objection to this doctrine. His observations 
 on the relative value of experience and reasoning are strangely 
 at variance with the prevailing sentiment of our own day ; but 
 they are so characteristic of his vigorous way of thinking that I 
 cannot resist the temptation of quoting a single sentence. " The 
 greatest objection," he says, "is that of the practice." . . . . 
 " Howsoever, an argument from the practice of men that have not 
 sifted to the bottom, and with exact reason weighed the causes 
 and nature of commonwealths, and suffer daily the miseries which 
 proceed from the ignorance thereof, is invalid. For though in 
 all places of the world, men should lay the foundation of their 
 houses on the sand, it could not thence be inferred that so it 
 ought to be. The skill of making and maintaining common- 
 wealths consisteth in certain rules, as doth arithmetic and 
 geometry ; not as tennis-play, on practice only." 
 
 ■'• Job xli. 33. Let every one who would have a conception of the political 
 aspirations of the first great and only logical apostle of equality, read and con- 
 sider this tremendous chapter. 
 
THE IDEA OF ABSOLUTE EQUALITY. 305 
 
 But tlioiigli a despotic government be possible under any one 
 of the three simple forms of government enumerated by the 
 ancients — monarchy, aristocracy, or democracy — the doctrine of 
 equality pointed clearly to the first. For if all the radii of the 
 circle being equal, each will reach the centre ; vdiy, all the 
 citizens of the state, being equal, should not all reach the 
 throne ; and, conversely, the influences of the throne penetrate 
 to each?i The interposition of an assembly, council of respon- 
 sible ministers, or the like, Avould, of course, have prevented this 
 result. ^Moreover, as there vere no natural difterences amongst 
 men, there could be no natural foundations for the various 
 orders of society. Subordination of any kind was an evil, an 
 injustice, to which free and equal citizens submitted only to the 
 extent to which self-interest rendered it indispensable to each. 
 The object of political science must be to reduce this evil to its 
 minimum, by having the smallest possible number of superiors. 
 The ideal government of Hobbes, consequently, was and 
 ahsohite riionarchy, and ahsolute centralization. It was unques- 
 tionably the logical result of the arbitrary assumption of equality, 
 on which he based his system ; and as this result is known to 
 have been a foregone conclusion with him, I am surprised that 
 he did not press it home even more unhesitatingly than he has 
 done, and on more absolute grounds, in the last instance. The 
 ordy inconsequent, or rather, I ought to say, inconsistent, part of 
 his reasoning is, that he rests his argument in favour of absolute 
 monarchy, as opposed to absolute aristocracy or democracy, on 
 
 Dante has a similar argument in favour of his "Monarch," ^vho in other 
 respects differs from the Leviathan pretty much as Ormuzd differs from Ahrinian, 
 and to wliom the only objection seems to be the impossibility of hnding him. 
 iJe Monarchid, lib. i. sec. xiii. 
 
 U 
 
306 THE IDEA OF ABSOLUTE EQUALITY. 
 
 grounds of expediency, which, when speaking of the absolute 
 character of governments generally, he had contemptuously 
 repudiated. But it is very interesting and important, as illus- 
 trating the logic of facts, to observe that the experience of man- 
 kind has affirmed the conclusion of the shrewd old cynic of 
 Malmesbury more emphatically than even he himself had ven- 
 tured to do, differing, as that conclusion does, from those of 
 almost all subsequent speculators who started from his premises. 
 If there be one fact that history teaches more consistently and 
 unequivocally than another it is this, that wherever an attempt 
 has been made to realize the doctrine of equality, the result has 
 been not democracy and local government, but first anarchy, 
 that is to say, Hobbes's state of war, and then despotism and 
 centralization. The crop which so often has been rashly sown 
 by the democrat has invariably been reaped by the despot ; and 
 surely the despot has some claim to it, seeing that it was first 
 introduced into the field of modern politics, not by the specula- 
 tive republicans of the commonwealth, whose theories were 
 opposed to it, nor by the levellers of the commonwealth, who had 
 no theories at all, and, like the communists of our own day, 
 were merely criminals under another name, but by the grave 
 and orderly tutor of Charles II., and the theoretical vindicator 
 of the divine right of kings ! 
 (d) Spinoza. 
 
 In tracing the history of this doctrine, the next great name 
 that we encounter is that of Spinoza. The mind of Spinoza was 
 a very much finer one than that of Hobbes, and his philosophical 
 system, in other respects, is far subtler and more profound. Hobbes 
 could never, by any possibility, have been the father of German 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 307 
 
 pantheism. But in the matter ^vith which we are concerned at 
 jDresent, there is reason to believe that Spinoza deceived Loth him- 
 self and his followers, which cannot be alleged against Hobbes. 
 
 Spinoza, too, was a believer in the doctrine of natural ec|nality; 
 but he differed from Hobbes in supposing that in enunciating 
 that belief, and insisting on its consequences, he was laying the 
 foundation of free government. Though not without reluctance 
 and occasional recalcitration, Spinoza, in so far as his political 
 system was concerned, made the whole philosophical journey, up 
 to the last stage, in company with Hobbes. Having accepted 
 the doctrine of equality, he recognized in it, coupled with the 
 facts of human depravity, the foundations of a state of natural 
 war, and the ideas of justice, property, and the like, came thus 
 to be dependent on the mutual agreement and conseciuent 
 government by Avhicli alone this war was terminated. But 
 Spinoza shrank from recognizing, vith Hobbes, the unlimited 
 and irresponsible power of the Lcviatlicn. If the state be the 
 source of property," says M. Saisset, the latest and best editor of 
 Spinoza : — if the state be the source of property, as it is the 
 source of justice, if it makes the mcum and the tuum as it makes 
 the just and the unjust, the good and the evil, where is the 
 limit to its omnipotence, where is the guarantee to the indivi- * 
 dual ? Must we proclaim the state to be infallible, impeccable, 
 and put into its hand, as Hobbes has done, not only the fortune 
 and the life of the citizens, but their conscience, their thoughts, 
 their soul — in short, altogether. Spinoza made the greatest 
 I'orts to shake himself free from these consequences." ^ Xor 
 did Spinoza's ingenuity desert him at this pinch. He carried 
 
 1 Vol. i. p. 209. 
 
308 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 the discussion a step backwards, and disposed of the justice by 
 denying the possibility of despotism. " Those," he says, " who 
 believe it to be possible for a single man to possess supreme right 
 in the state are in a strange error. For right is proportioned to 
 power. But the power of a single man is, and must be, insuffi- 
 cient for such a weight." Here apparently Spinoza forgot the 
 source from which the powers of the Leviathan are derived by 
 Hobbes, viz., the consent of the governed. JSTeither according to 
 his system, nor that of Hobbes, had these powers any founda- 
 tion in nature, for by nature no man was stronger or better than 
 another. The consent was ex liyj)otliesi, a subversion of nature ; 
 and if that consent was absolute, there was no longer any diffi- 
 culty about the absolute character either of the powers or the 
 rights of the Leviathan. Apart from that consent there could, 
 as I have said, be no government either de fait or de droit, 
 because both Hobbes and Spinoza had assumed that all men 
 were equally able and equally entitled to govern themselves. 
 All government, so to speak, was thus a wrong which men 
 inflicted on themselves, and Hobbes had contended for monarchy 
 only on the ground that it was the form in which it was the 
 least wrong — the form, viz., in which it was possible to vindicate 
 order at the smallest sacrifice of equality. Spinoza, as I have said, 
 declined to accept this conclusion — with which, under the titles 
 of Democratic-Imperialism, Cassarism, and the like, we were 
 recently so familiar — " and his manner of solving the problem," 
 as M. Saisset has remarked, " did more honour to his practical 
 Avisdom than to his philosophical sagacity." According to him, 
 there are no durable governments but such as are reasonable, 
 and there are no reasonable governments but such as are tem- 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 309 
 
 perate, " "We are surprised and charmed," lie adds, " to see 
 this theorizer, who, by the rigid character of his mind, and the 
 narrow logic of his system, seemed devoted to the idea of a 
 simple democratic-despotism, brought back by his natural 
 sagacity, and his honest observation of facts, to comprehend and 
 advocate a system of mixed government.^ But a moment ago 
 we had difficulty in distinguishing him from Hobbes, and now 
 we seem to have to do with Montesquieu." 2 
 (e) Rousseau. 
 
 Though sects of " levellers," in the sense of mere rebels a^rainst 
 
 CD ' O 
 
 authority, and religious fanatics like the old Anabaptists of 
 Munster, were rather conspicuous in the days of Hobbes and 
 Spinoza, both in Germany and England, neither Hobbes nor 
 Spinoza lived to see the doctrine of equality brought to the test 
 of experience by being actually adopted as the fundamental 
 principle of government. From the period when they quitted 
 the stage — I regard them as contemporaries ^ — til] the appear- 
 ance of Eousseau's celebrated Discours sur Vorigine et les fonde- 
 ments de VinegcdiU j^cirmi les hornmes (1755), and his still more 
 celebrated Contrat socicd (1762), towards the middle of the 
 following century, no writer of decided mark appears to have 
 undertaken the vindication of the principle of equality.^ 
 
 ^ I rather tliink, with j\Ir. Hallani, that no personal preference for any form of 
 gOYernment can be inferred from the writings of Spinoza ; though, like all theories 
 of equality, the logical issue of his, unquestionably, is despotism. Hallam, 
 vol. iii. p. 437. 
 
 ^ Saisset, i. p. 213. 
 
 ' Hobbes was forty-five when Spinoza was born in 1633, but he outlived him by 
 a couple of years, dying only in 1679 at the great age of ninety-one. All his 
 works, moreover, were written in advanced life. 
 
 ^ Rousseau may be regarded either from a social or a political point of view, but 
 the weapon which he employed for his double purpose was the same, and we have 
 to do with it here in itself rather than in its applications. 
 
310 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 Ptousseau's system, in many respects, is the very reverse of those 
 of Hobbes and Spinoza. He, too, holds equality to be the true 
 foundation of society ; but to him it is an object to be attained 
 rather than a fact to be recognized, and thus he builds his house, 
 as it were, from the roof downwards. Eousseau never ventures 
 to assert that men are really equal, even at birth.^ He does not 
 allege that they treated each other as equal, otherwise than in so 
 far as their equality was real, even in the so-called " state of 
 nature." His whole allegation, in point of fact, is that " the 
 difference between man and man is less in the state of nature 
 than in that of society, and that natural inequality in the human 
 race is augmented by artificial inequality," ^ — in other words, 
 that it increases as civilization advances. From this statement, 
 which I believe to be quite correct, he deduces conclusions which 
 it does not seem to warrant in the slightest degree. Had Hobbes 
 been right in asserting that God had made men equal, he would 
 have been right in asserting that they were entitled to vindicate 
 their equality. The fact, had it been a fact, would have sup- 
 ported the right ; and Hobbes did not allege that the right ought 
 to go beyond the fact ; on the contrary, it was one of his 
 favourite maxims, and one in which Spinoza followed him, that 
 notwithstanding the mysteries connected with the presence of 
 powers of wrong as well as of powers of right, rights, in the main, 
 are measured by powers. But Eousseau laid no such substratum of 
 fact. God had not made men equal, and the result of the 
 exercise of the powers which He had bestowed on them was, 
 that they had become unequal more and more. But he, Eous- 
 seau, had a strong opinion to the effect that God was wrong ; 
 
 1 Discours, p. 99, 100. » p. 100. 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 311 
 
 that they ought to have been equal to begin with ; and, at any 
 rate, that they ought to be made equal as fast as possible now, 
 was a proposition that he affirmed without the slightest reserve 
 or qualification. Man must be decivilizecl. Though nature was 
 not quite perfect, Eousseau had not so bad an opinion of 
 her as Hobbes. He did not believe in a natural state of war ; 
 on the contrary, the pictures which he drew of what he supposed 
 to have been man's original condition in the woods, taken 
 together with one of the most charming styles that ever was 
 written, were the main causes of the marvellous popularity of 
 his works. It is civilization and reason — which he strangely 
 considers to have nothing to do with nature — that are the hetcs 
 noires of Eousseau. " Lliomme qui mSclite est un animal deprav^. 
 C'est la philosophic qui I'isole ; c'est par elle qu'il dit en secret, d 
 I'aspect d'un homme souffrant; peris, si tu veux; je suis en surete;" 
 and he proceeds to give a charming picture of a philosopher 
 lying snugly in bed, whilst his neighbour's throat is being cut 
 under his window. " He has only to put his fingers into his ears," 
 he says, " and reason with himself a little, in order to prevent the 
 sentiments of his nature from identifying him with the man w^ho 
 I is being assassinated." 
 
 It was his declaration against nature as it is, in favour of 
 nature as he conceived that it ought to be (for he says expressly 
 in his preface that he doubts if it ever were so), which gave its 
 peculiarly dangerous character to the philosophy of Eousseau 
 and his followers. If his premises were not sufficient to support 
 rights of equality, they were fully sufficient to support rights of 
 revolution, both social and political. When right was once 
 divorced from fact, it was at everybody's mercy ; there was no 
 
312 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 longer any external measure to it ; there was no Leviathan to 
 enforce it, if it had been measured; and so " ought" meant what 
 every man chose to mean by it. As nothing could be proved, 
 nothing could be denied — one man's assertion was as good as 
 another's, — more especially as all men were equal, or ought to 
 be so. Accordingly, in Eousseau's own case, one of the very 
 first conclusions that he arrived at was, that of all the discoveries 
 of human reason, of all the devices of civilization, the most fatal 
 was the institution of property.^ 
 (/) Democrats of the Revolution. 
 
 When this stage was reached the theoretical deluge was come ; 
 and the practical deluge, as usual, proved to be at no great 
 distance. We need not pursue the subject further in this direc- 
 tion, nor waste our time over the shallow platitudes of that 
 school of atheists, blasphemers, and libertines, who inherited the 
 errors without the genius of Eousseau — Diderot and his encylo- 
 psedists, Helvetius, the Abbe Eaynal, Yolney, and others, with 
 whom unfortunately the really distinguished name of d'Alem- 
 bert must be associated. Assuming, with scarcely even the 
 affectation of proof, the doctrines which they advocate with so 
 much vehemence, the works of these men are totally destitute 
 of scientific value, and must long ago have sunk into the 
 oblivion which they deserve, had it not been for the practical 
 recognition which, contrary to the intention of such men as 
 Washington and Hamilton, this central principle of disorder 
 obtained in America in 1776,^ and its still more reckless asser- 
 tion in France in 1789. 
 
 1 Proudlion, however, is, I believe, entitled to the credit of the famous maxim 
 that "propert}^ is robbery" (la propriete c'est le vol). 
 
 ^ The unguarded and unqualified assertion "that all men are created equal," 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 813 
 
 Jso attempt to strengthen its tlieoretical gronnclwork has 
 heen made by the manv democrats and dema^iooTies ydio have 
 smce reiterated it in America, and on the continent of Europe;^ 
 and strangely enough, the only fresh argument in its fayour 
 with ydiich I am acquainted that merits notice eyen for its 
 ingenuity, proceeds from one ydio is neither an American, nor 
 a Frenchman, nor a democrat, nor a demagogue. 
 
 (g) Ahrens. 
 
 Ahrens in strange inconsistency with his chapter on re- 
 presentation,- and his assertion that " 1' egalite ne doit etre 
 concue C[ue comme la liberte egalement garantie a tous,"^ has 
 an elaborate yindication of ecj_uality, not merely as a conse- 
 quence, but as the yery basis of liberty — as the sine qua non 
 of personal freedom. It is not a defence of ecjuality before 
 
 \nth ^vliicli tlie celebrated "Declaration of Independence" sets out, was due to 
 Jefferson, to wliom, tliough. Adams was associated witli him in the work, it is now 
 believed that the merit and demerit of the preparation of this famous document 
 mainly belongs. Jefferson, as a born democrat ^1 use the word in its European and 
 not in its American sense), was probably sincere in the statement ; but there is no 
 reason to believe that AYashington, or Jay, or Hamilton was led astray by it, and it 
 is grievously to be deplored that they consented to its publicatiou . If Adams at 
 first inadvertently assented to the adoption of such a principle as the basis of the 
 constitution of his country, there can be no doubt that he was thoroughly awakened 
 from his delusion by the scenes which shortly after were enacted, with a view to 
 to its vindication in France ( JVcrJcs of John Adams, 2d President of the United 
 States, by his gi-andson, Charles Francis Adams, vol. i. p. 462). Some additional 
 information on this subject will be found in a note to Mr. Balch's work, Les 
 Frayi^ais en A)nerique, pp. 37, 3S. 
 
 ^ Even M, Emile Acollas, whom, I regard as one of the ablest writers of the 
 extreme political school, and who, if it were possible to separate his method from 
 the use which he makes of it, would be entitled to rank high as a scientific jurist, 
 does little more in this matter than accept the teaching of Eousseau, L'Idee du 
 Droit, 1871, p. 40. 
 
 2 5th ed. p. 511. 
 
 ^ 5th ed. p. 43. In the 6th ed. p. 43, it runs, "I'egalite n'est que la liberte 
 garantie d'une maniere identiq^ue a tons." I do not see that tlie sense is altered. 
 
314 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 tlie law in municipal affairs ; nor of political or social equality 
 in tlie sense in whicli tliat doctrine repudiates tlie existence 
 of castes in the East, or of exclusive classes, such as was the 
 noble "class in France previous to the Eevolution. As a pro- 
 test against all lines either of social or political demarcation 
 that are impassable, we have always adopted it in this country, 
 where from the earliest times any man who began life at the 
 bottom was permitted to end it at the top of the constitutional 
 ladder, with the single exception of its last step, — and that 
 even, with her characteristic liberality. Her Majesty has recently 
 rendered accessible — provided he had ability, and energy, and 
 bodily strength to climb so long, and so high. But the sense in 
 which the principle is advocated by M. Ahrens appears to be 
 that of absolute social and political equality de jure, and in as 
 far as is humanly possible de facto, of free citizens of the state. 
 
 " The first quality," he says,^ " which belongs to personal 
 humanity, whether we consider it in itself, or in its relations to 
 other similar personalities, is equality!' 
 
 Equality, he goes on to say, has a triple source, — physical, 
 psycliologiccd, metaphysical. 
 
 1. In its physical relations, equality is the result of the unity 
 of the human race. There is but one human nature, and conse- 
 quently there is the same nature in all men. The different races 
 are not different species of men as there are different species in 
 the animal kingdom. The animal kingdom is divided into 
 genera and species, which form so many steps on the ladder 
 of ascending organization. In the animal kingdom, nature 
 begins her organization with the most imperfect beings, and 
 
 1 p. 229, et seq. 5th ed. 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 315 
 
 runs tliroiigli many stages before arriving at the superior 
 animals, — those, that is to say, which exhibit the functions 
 of vitality in a more perfect form. Here it is not ec[uality, 
 but difference of organization that we remark ; there is a pro- 
 gression from the less perfect to the more perfect, and all the 
 steps of the series are constituted by beings in whom are 
 developed differently, but in a j^^^^'^^ominant manner, a par- 
 ticular organic system, at the expense of the other portions of 
 the organism. The whole animal kingdom is thus created on the 
 type of a progressive variety, or of an evolution, successive and 
 always preponderating, of one or other systems of organization. 
 The human race, on the contrary, is formed on a type of 
 harmonious unity of all the systems and of all the functions of 
 organic existence. The human organization, the most perfect of 
 all, is the synthesis, the resumS of the whole creation : it pos- 
 sesses in cequilihrio all the parts, all the organs disseminated 
 through the different classes of the animal kingdom. In conse- 
 quence of this type of imity and harmony, so visible in the whole 
 human form, man is functionally distinct from the animal. The 
 human race is not a continuation or trans forniation from the 
 animal kingdom; it is organized on a superior princijjle and consti- 
 tutes a kingdom apart, — the human kingdom. This unity of the 
 human race is the physiological reason of equality. 
 
 2. In a psychological point of view the same fundamental 
 equality of all men is observable ; and it is worthy of remark 
 that the principle of harmony, which is the constituent element 
 in the physical organization, dominates equally all the faculties 
 and aU the manifestations of mind. Man — the superior unity 
 of creation — can raise himself by his intelligence to the ideas of 
 
316 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 the unity, the order, the harmony of the world ; he can love them, 
 take them as the models for his actions, realize them in his life. 
 " Ce caracUre de Vliomme se resume dans la raisonr 
 
 To the same effect under the third head. 
 
 3. From the metaphysical point of view, " equality is founded 
 on the grand principle that man is humanity," — that is to say, 
 that human nature, as a whole, exists in each man. 
 
 Now the first thing that strikes one, on perusing this argu- 
 ment, is that it confounds the characteristics of genus and 
 species. Supposing all that M. Ahrens has said to be true, 
 physiologically, psychologically, and metaphysically, it is as true, 
 mutatis mutandis, of each species of the lower animals as it is 
 of the so-called genus man. The whole nature of the whole 
 animal kingdom, it is true, does not exist in any other species 
 as it exists in the highest species, just as all the steps of the 
 ladder will be under the feet only of him who is at the top of 
 the ladder. But the whole nature of the animal horse exists 
 in each horse, the whole nature of the animal dog in each dog. 
 Whether it be possible so to arrange the animal kingdom as 
 that each species, as we ascend, shall contain the qualities of all 
 the lower ones, and hold to them the relation wdnch man is said 
 by M. Ahrens to hold to the whole, or whether there be co-ordinate 
 species which, in virtue of their specific qualities, naturally 
 exclude each other, are questions of comparative physiology 
 with which we need not occupy ourselves here. Even granting 
 to Ahrens the two positions for which he contends — first, that 
 man is a distinct genus : and, second, that the genus man is not, 
 like the genus animal, distinguishable into species : all that he 
 is entitled to conclude is, that the different races of men do not 
 
THE IDEA OF ABSOLUTE EQUALITY. 
 
 317 
 
 constitute an ascending scale, but that each possesses the quali- 
 ties common to the whole genus. But the same conclusion 
 would follow from the ordinary hypothesis that man is not a 
 genus by himself, but a species of the genus animal ; for the 
 same thing is true of every species icithin itself, whether w^e 
 suppose them to be subordinated or co-ordinated to each other. 
 The withdrawal of man from the genus animal, therefore, 
 whether warranted or not in point of fact, seems to do nothing 
 for the arfiument. 
 
 But fundamental unity, whether of genus or of species, does 
 not exclude family, still less individual, differences. Thouoli all 
 horses are equally horses, all horses are not equal horses. A 
 turnspit is as much a dog as a mastiff, but he is not as much of 
 a dog. The difference between them, moreover, is not the result 
 of education, diet, climate, or any other external or accidental 
 cause. It is a natural difference, as much as the difference 
 between a doo; and a cat. It is a difference which nature, i.e. 
 God, imposed for reasons which, whether we apiDreliend them or 
 not, are no doubt good and sufficient reasons ; and, what is even 
 more to the purpose, it is a difference which God will mamtain, 
 on the whole, and the partial obliteration of which, to the extent 
 to which He permits it. He appears to punish by the degrada- 
 tion of the more perfect family type. Xow it is to the family 
 distinctions within the same species that the distinction of races 
 in the human species, or genus, Avhichever we choose to call it, 
 is supposed by physiologists to correspond. Whether they exist 
 to the same extent, and are equally the result of nature, or 
 whether they are more attributable to circumstances within 
 human control, are points on which it is not necessary that I 
 
318 THE IDEA OF ABSOLUTE EQUALITY. 
 
 slioulcl offer a personal opinion. That they exist, at present, to 
 an extent not inferior to that to which they are to be found in 
 any other species of animal, and that the history of mankind 
 liitherto does not afford the slightest indication of their ultimate 
 obliteration, are the only points in the controversy which, as yet, 
 can be regarded as settled. But even giving up the distinction 
 of races altog^ether, which is more than M. Ahrens contends for 
 (for even he goes the length of saying expressly that " the 
 white race possesses faculties more highly cultivcdcd than the 
 ' black,'' ^ whilst he makes no attempt to account for this cultiva- 
 tion on any other ground than that of higher natural gifts), all 
 that is important for the support of the o292^osite conclusion to 
 that at which he has arrived remains. It is not on distinctions 
 of race, whether delible or indelible, that social and political 
 inequality rests in European society generally, and least of all 
 within the same state. Amongst persons of pure Caucasian 
 blood, no such distinctions are admitted, or even contended for. 
 Even family distinctions, in the narrower sense of the family, 
 are not placed on this basis. If you were to take ten men from 
 the benches of the House of Lords, and ten men from the hulks, 
 it would be a mere accident if you found the slightest difference 
 between them in point of race ; and it would be the same if you 
 took men promoted to the highest station on personal grounds — 
 the bench of bishops or of judges we shall say — and contrasted 
 them with an equal number of crossing-sweejoers. The whole 
 fabric of inequality, of social and official pre-eminence and sub- 
 ordination, hereditary and acquired, — which is in reality the whole 
 fabric of society in so far as society is an organic body, and not 
 
 1 p. 230. 
 
THE IDEA OE ABSOiriE EQEALITY. 319 
 
 a mere inorganic and cliaotic mob — rests on individual differences 
 and. tlicir conseciuences. Under tlieir consequences, Ave include, 
 of course, the transmission to others of the results of individual 
 power or weakness, energy or indolence, A'irtue or vice, whether 
 in the form of wealth and poverty, knowledge and ignorance, or 
 sound and unsound moral training, and the like. Xow Ahrens 
 admits the existence of individual inequalities — Hohhes and 
 Spinoza being, I fancy, the only speculators who were bold 
 enough to deny them — but what T confess seems to me scarcely 
 less strange than if he had denied them ; he does not admit that 
 they are natural — the result of God's arrangements, but ascribes 
 them to human arrangements, interfering with God and nature, 
 which it is the mission of Christianity to rectify. His position 
 is consequently the same as that of Eousseau, with the difference 
 that, for the present at least, he seems to hesitate in pronouncing 
 social inequalities to be evils. 
 
 W^e mtist remark, he says, that the equality which exists is 
 equality only as regards fundamental dispositions and faculties, 
 and that on that basis spring up inequalities, v.diich have their 
 origin on the one side from the culture which the faculties 
 receive in different individuals, and on the other side from the 
 different applications which are made of them in social life — 
 
 Tons les hommes sont egaux en tant qu'hommes, mais iis sont 
 inegaux, en tant qu individus," — an indisputable proposition 
 certainly 1 But he proceeds thus, Inequalities are therefore 
 inevitable: for on the one hand, the development of each 
 depends on his proper activity (which one would imagine 
 depended in some degree on his natural gifts); ''on the other 
 hand, the objects of human life are so vast, that a single man 
 
320 
 
 THE IDEA OF ABSOLUTE EQUALITY. 
 
 can only embrace one of tliem as liis special vocation, if he 
 would attain to anything like perfection. Inequality is thus an 
 effect of individual spontaneity and liberty. Human nature is 
 so rich that all the generations and all the nations are insufficient 
 to exhaust its development. These inequalities are, moreover, 
 useful ; for equality of culture and application would cause the 
 whole human race to die of enmii and idiotis7neJ' Strange that 
 the special function of Christianity should be to bring about so 
 sad a result. One would imagine, from these last phrases, that 
 a basis broad enough to support organic society was being laid 
 after all, liOAvever false might be M. Ahrens's reading of nature.'^ 
 But the very next sentence undeceives us: "All the objects 
 which mankind can pursue are equally imijortant and necessary ; 
 because they are all human objects, and hence the social equality 
 of all men, — that is to say, the equal dignity of the different 
 occupations or professions of men living in society."^ One can 
 scarcely believe one's eyes when one reads such words as these ; 
 when one knows by whom they were written and where they 
 are read and taught ^ as embracing the fundamental doctrines of 
 
 ^ Ahrens grasps at everything that has the slightest resemblance to an argument 
 in favour of this doctrine, with the desperation of a man supporting a monomania. 
 " In the organization of the human body all the parts stand to each other in a 
 conditional relation, and all are equally important ; in like manner in a good 
 social organism," &c. (6th edit., vol. ii. p. 40.) One would think that it might 
 have occurred to him that a man's head could scarcely be dispensed with, but 
 that he might get on very fairly without a finger or a toe. 
 
 2 p. 231. 
 
 3 M. Ahrens holds a chair in the University of Leipzig ; and of the success of 
 his book some conception may be formed from the fact that it has been translated 
 into almost every European language excejd English. Since the first Erench 
 edition in 1839, in addition to a pirated version of the 3rd edition at Milan, there 
 have been four translations in Italy, three in Spain, one in Germany in 1846, dis- 
 tinct from the original edition at Vienna in 1850, one in Portugal, one in Brazil, 
 
THE IDEA OF ABSOLUTE EQUALITY. 321 
 
 society at the present day. After thus letting in the waters of 
 anarchy it was surely needless to deplore their ravages, as M. 
 Ahrens does in his section on Democracy in the 6th edition.^ 
 To pursue the discussion through the many pages in which 
 these views are expanded and illustrated, and to trace the 
 manner in which the argument is continually shifted from the 
 assumption of individual equality to the assumption of equality 
 of race — what is denied in one sentence being conceded in the 
 next — would be an unwarrantable encroachment on the reader's 
 patience and his time. Enough has been said to indicate the 
 character of a system which, if logically carried out, would 
 by the tacit acknowledgment even of its author, tend to justify 
 those schemes of socialism and communism which have since 
 borne such fearful fruits, and which he ventures to condemn 
 only as "exaggerations;"^ and to warrant me in taking some 
 pains to prove that the opposite doctrine on which the whole 
 of our social and political structure practically reposes, rests 
 upon a sound theoretical basis. 
 
 CHAPTEE IV. 
 
 I 
 
 OF THE RELATION OF EQUALITY TO LIBERTY CONTINUED. 
 
 In what sense is equality involved in the idea of liberty ? 
 
 The idea of liberty involves the idea of equality in one 
 
 land one in Hungarian in 1848, so that in 1868 there were nineteen editions, 
 'Original and translated. Preface to 6th Ed. v. It was recently used as the text- 
 book on natural law in the Ecole du Droit, in Paris ; and I have myself always 
 recommended it. 
 
 1 p. 392. ^ p. 245. 
 
 X 
 
322 
 
 OF THE RELATION OF EQUALITY TO LIBERTY. 
 
 sense only, that which is fojpiilarly called " eqiiality hefore the 
 law!' 
 
 Before stating what is certainly tlie far older, and what I 
 believe to be the far sounder opinion on the subject of equality, 
 it may be well to recall the position in which the doctrines 
 which we ourselves have evolved place us with reference to the 
 theories which we have reviewed. 
 
 The view of human nature in point of fact, the diagnosis, so 
 to speak, on wdiich we have founded our belief in the rectitude 
 of the existing organization of society in the main, and of the 
 distribution of the gifts of Providence which actually takes 
 place amongst mankind, is the very reverse of that on which 
 Hobbes rested his political system. We have readily admitted the 
 adequacy of Hobbes's premises to support his conclusions. Had 
 it been true, as he alleges, that " all men among themselves are 
 by nature equal ; the inequality we now discern hath its spring 
 from the civil law," ^ and that it is " a law of nature that every 
 man acknowledge the other for his equal," ^ I am very far from 
 disputing Hobbes's second proposition that it is " another law of 
 nature" that men allow mqiialia wqualihus, or from denying 
 the legitimacy of his inference that the recognition of social and 
 political equality of the most absolute kind would, in these 
 circumstances, have been inseparable from the vindication of I 
 justice. But Hobbes's system, and Spinoza's in so far as he 
 followed Hobbes, were the only ones in favour of which I felt I 
 compelled to acknowledge the merit even of logical consistency. 
 In shrinking from the bold assumption with which Hobbes | 
 
 ^ Lev. voL ii. p. 7, Molesworth's ed. I 
 2 De Corpore Pol. vol. iv. p. 103. . 'H 
 
OF THE EELATIOX OF EQUALITY TO LIBERTY. 323 
 
 started, liis followers rendered tlieir own foundations insecure ; 
 and tlieir . arguments became more or less sound just in pro- 
 portion to the extent to wliicli tliey reverted to that assump- 
 tion. Between all these systems then, and that which I have 
 maintained, the question at issue, like so many so called ques- 
 tions of principles, really resolves itself, in the last instance, 
 into a question of fact; for, if we admit the adequacy of 
 Hohbes's premises to support his conclusions, I think we may 
 assume that Hobbes himself would not have disputed the suffi- 
 ciency of premises the very opposite to support conclusions the 
 very reverse. For the solution of this, as of all other questions 
 of fact with reference to our nature, I must refer the reader to 
 the tribunal of subjective and objective experience. If, like 
 Hobbes, he shall receive from consciousness, observation, and 
 history, as the three great exponents of nature, a verdict to the 
 effect that all men are born and continue to be equal in fact; 
 then, accepting the premises, he Avill also accept the conclusion 
 of Hobbes's system, and recognize the social and political 
 equality of all men as an object which the science of jurispru- 
 dence is bound to seek ; and this although it should appear to 
 him, as it appeared to Hobbes, that in order to attain it even 
 approximately we must be contented to sacrifice liberty alto- 
 gether, and resort to the desperate expedients of absolute des- 
 potism and complete centralization. But if, on the other hand, 
 the A^rdict which he receives should coincide with that which 
 has been vouchsafed to me, if he should see it, or feel it, to be 
 beyond all rational question that, for reasons which may possibly 
 be hidden from us for ever, but which we are not the less bound 
 to believe are in accordance with the scheme of absolute justice, 
 
324 OF THE RELATION OF EQUALITY TO LIBERTY. 
 
 God has distributed His gifts to His creatures very unequally, 
 then tliis distribution being, as I have said, that which it is the 
 object of the science of jurisprudence to carry into its minutest 
 consequences, liberty will be saved — the fullest and freest exer- 
 cise of his faculties, such as they are, will have been secured to 
 every man — but the attainment of equality, in the absolute 
 sense, will be finally and for ever excluded from the objects of 
 jurisprudence. On the latter hypothesis a legislative enactment 
 which should have equality in this sense for its object, would 
 not possess the characteristics which I have pointed out 
 as inseparable even from positive law, — it would be simply a 
 legislative miscarriage. And as regards the science ; to say with 
 one breath that its object was to carry out an arrangement that 
 was unequal, and with the next that it was to establish equality, 
 would be to render it self-contradictory and suicidal. 
 
 But what then do we mean by " equality before the law ?" for 
 that is an object which jurisprudence surely does not repudiate, 
 which is inseparable from liberty, and which, apparently, involves 
 the recognition of the most perfect equality. 
 
 The distinction between "equality before the law," and 
 equality in the sense of the recognition of a right existing in 
 individuals to equal shares of God's gifts, or their consequences, 
 admits of a very simple explanation. The method pursued by the 
 science of jurisprudence with a view to the truths which it seeks, 
 like that pursued by every other science whatever, necessarily 
 embraces two functions ; the one analytical, the other synthetical.-^ 
 
 ^ " Both are absolutely necessary to philosophy, and both are, in philosophy, 
 as much parts of the same method as, in the animal body, inspiration and expira- 
 tion are of the same vital functions" (Sir W. Hamilton's Lectures on Metaphysics, 
 vol. i. p. 99). 
 
OF THE RELATION OF EQUALITY TO LIBERTY. 325 
 
 (a) Analytic jiistice. 
 
 Equality before the law is neither more nor less than analytic 
 justice. As such, it necessarily demands the application to 
 investigations conducted for legislative or judicial purposes of 
 the same indifference to the subjects with which it deals and the 
 results which it may yield, which governs all investigations that 
 have truth for their object. "Wlien the legislator who is about to 
 enact, or the judge who is about to apply a positive law, proceeds 
 to inquire into the facts of the case for which he is to legislate, 
 or in which he is to pronounce judgment, the value of the claim- 
 ants, or the suitors, as individuals, are considerations just as 
 irrelevant to him as would be the market price of lead or silver 
 to the chemist who was about to inquire into the presence or the 
 absence of lead or silver, or the proportions in which they 
 existed in a piece of ore. The individuals, or classes, or nations 
 whose rights and relations are under investigation, are entitled at 
 the hands of the jurist, of the arbiter, or, if no litigation has 
 arisen, of each other, to the same " equality " which the chemist 
 accords to the substances which he puts into his retorts and his 
 crucibles. If this equality be denied in either case, the result of 
 the inquiry will be vitiated, — the parties will be wronged. The 
 chemist will produce a false report, the legislator will enact a 
 law which does not fulfil the conditions of true positive law, the 
 judge or the arbiter will pronounce a false judgment or an unfair 
 award. Viewed in its analytical function then, as an inquiry 
 into what lawyers call the "merits," justice — and liberty, as the 
 object of justice — do unquestionably demand absolute equality ; 
 and this it is, and this only, that is meant by " equality before the 
 law." That all men are equal, to this extent, is the first maxim of 
 
326 OF THE EELATION OF EQUALITY TO LIBERTY. 
 
 the science of jurisprudence. J ew and Gentile, white skin and 
 black skin, the wise man and the fool, the slave and his master, 
 the prosecutor and the criminal, all stand on the same level. 
 
 'Not does this species of equality stop even with the human 
 race. When the Society for the Suppression of Cruelty to 
 Animals brings a question between a horse and a man before the 
 judge, it is his duty to place the horse and the man on a footing 
 of absolute equality ; and we have seen that something analogous 
 takes place when a question arises between the exercise of mere 
 human caprice and the interests even of a plant or a tree. " The 
 last rose of summer " is not without its rights. 
 
 (h) Synthetic justice. 
 
 But the absolute equality which governs the inquiry cannot 
 possibly determine its result, for in that case the result would be 
 already determined. If we recur to the physical illustration of 
 which we have just made use, it will be at once apparent that 
 the claim for equality, in the sense of equal shares of whatever 
 may be the object in controversy, wages or labour, power, or 
 honour, or responsibility, or punishment, is a begging of the 
 question which it belongs to analytic justice to determine, 
 or a repudiation of the result at which analytic justice has 
 arrived. For what should we think of telling a chemist, before- 
 hand, what the result of his analysis must be — that it must 
 result in the discovery of equal quantities, or equal values, of 
 silver and of lead — and that we would accept it on no other 
 condition ? Would he not tell us, in return, that the result 
 was independent both of him and of us, but that, if we would 
 wait for it patiently, he would declare it loyally; that if 
 nature herself had established the equality on which our 
 
OF THE EELATIO^' OF EQUALITY TO LIBERTY. 
 
 327 
 
 heart ^'as set, lie would not fail to proclaim it ; but that, on 
 the contrary, if, for reasons with which he had nothing to do, 
 nature had arranged it otherwise, in that case equally he would 
 tell us the truth. Xow, precisely in the same manner, it is 
 neither equality nor inequality, but truth, which the analytic 
 jurist being bound to discover and proclaim, the synthetic 
 jurist is bound to accept, and to vindicate deductively. 
 Whether the relation, in point of fact, be that of equality, 
 of superiority, or of inferiorit}', the just award, the true 
 result of the joint action of the two inseparable elements of all 
 scientific method, will be proportioned to that relation. In 
 other words, the duty of the practical jurist, whether legislator 
 or judge, will be to see, not that all men are ec^ual, but that 
 those who are ecj_ual shall have equal shares, and that those who 
 are unecj^ual shall have unequal shares p^oijortioned to thdr 
 imqyxdityy 
 
 As regards the relation between ec[uality and liberty then, 
 the conclusion at which we arrive is this. The principle of 
 analytic justice is ec|uality — the principle of synthetic justice is 
 proportion, the terms of which are determined by the previous 
 analysis. AMien these two principles are vindicated, the sphere 
 of jurisprudence is exhausted, and liberty, as its object, is 
 re ah zed. 
 
 The learning and ingenuity of two thousand years, culminating 
 in that of modern Germany, appears to have failed in evolving 
 a consistent and exhaustive theory of justice from Aristotle's 
 discussions, in the form in which they have come down to us.- 
 
 ^ \i?r\ taol ovK tea 'i^oval, et v. v. Aristot. Eth. Kic. v. c. 
 
 ^ I used to thiiik that tliis would be possible by identifying diortbotic justice 
 
328 
 
 OF THE EELATION OF EQUALITY TO LIBEETY. 
 
 And yet all men recur to them for instruction, and recur to 
 them not in vain, because they proclaim the great principle that 
 all applied justice is necessarily proportional justice, and that 
 the equality which it measures out is not absolute equality, but 
 equality which shall bear an absolutely accurate relation to the 
 facts of nature, and to their consequences. The best minds of 
 the middle ages preserved a perfectly clear conception of the 
 frojportio. " Jus," says Dante, " est realis et personalis hominis 
 ad hominem proportio, quae servata servat societatem, et cor- 
 rupta corrumpit ^ and Thomas Aquinas, "Materia justitise est 
 exterior operatio, secundum quod ipsa vel res cujus est usus, 
 debitam proportionem habet ad alteram personam; et ideo 
 medium justitise consistit in quadam proportionis sequalitate rei 
 exterioris ad personam exteriorem." ^ And still more definitely, 
 in speaking of distributive justice, he says, " Et ideo in justitia 
 distributiva non accipitur medium secundum sequaKtatem rei ad 
 rem, sed secundum proportionem rerum ad personas, ut scilicet 
 una persona excedit aliam, ita res quae datur uni personse, exce- 
 
 {^Lko^iov diopdoiTiKbv) with, what I have here called analytic, and dianemetic justice 
 {5'i.KaLov diavefxrjTiKov) with synthetic justice, and that thus order might be brought 
 out of the confusion into which the 5th Book of the Nicom. Ethics confessedly 
 has fallen. On a re-exaniination of the text, with the light which Professor 
 Trendelenburg's learned dissertations {Zur Aristotelischen Ethik. Historische 
 Beitrage zur Fhilosophie, vol. iii. p. 399, Berlin, 1867) throw on it, I am con- 
 vinced that no such identification is warranted. Aristotle unquestionably in- 
 tended both as subdivisions of applied, or synthetic justice ; and in this sense, 
 as I have explained above, 1 cannot subscribe to the absolute distinction by which 
 the one is confined to public, and the other to private law, which Professor 
 Trendelenburg appears to accept. I think they involve each other, and that 
 both must come into play in every department of jurisprudence. For the 
 scholastic distinction between commutative and distributive justice, see Thomas 
 Aquinas, Sum. Sec. Sec. Quces. Ixi. art. 1. 
 ^ Be Monarchia, lib. ii. sec. v. 
 
 * Sec. Sec. Quces. Iviii. art. 10. Roder's Naturrecht, vol. i. p. 115. 
 
OF THE EELATION OF EQUALITY TO LIBERTY. 
 
 329 
 
 dat rem quse datiir alii." And lie applies it thus, " Tanto plus ali- 
 cui de bonis communibus datur, quanto ilia persona majorem 
 habet principalitatem in conimunitate." ^ 
 
 It would be interesting to inquire when tlie vulgar conception 
 of equality, wliicli, since the Frencli Eevolution, has made such 
 insane havoc in European politics and economics, first assumed 
 the aspect of a speculative doctrine. It is certainly older than 
 Hobbes, and is, as I have said, traceable as far back, at any rate, 
 as the attempts of the J esuits to found a theocracy by levelling 
 down all secular distinctions before the Church. But I find no 
 trace of it in the chief of the schoolmen, and whencesoever it 
 may have come, it most assuredly did not come from Aristotle, 
 for he unmistakeably extends the 'pro^portio (to Kar a^tav to-ov), 
 not only to justice in every form in which it is known to juris- 
 prudence, but to justice in forms in which jurisprudence can 
 scarcely approach it.^ " Even friendships," he says, " which 
 appear unequal, are equalized and saved by proportion (to 
 avotAoyoi/), just as tanners, shoemakers, and weavers exchange 
 their commodities in proportion to their value." ^ 
 
 This great principle of proportion, before which the spirits of 
 misrule tremble as if it were holy water, being once secured, it is 
 doubtful whether much is gained for science by dividing applied 
 justice under different heads, as Aristotle did, or as Eudemus 
 did for him. Such absolute distinctions as those which would 
 confine dianemetic or distributive justice to public, and diorthotic 
 or corrective justice to private affairs, and the righting of v/rongs, 
 whether criminally or civilly, cannot be maintained. If we 
 
 ^ Hzc. Sec. Quas. Ixi. art. 2. ^ Trendelenburg, ut sup. 408. 
 
 3 Nic. Eth. ix. 1. 
 
330 OF THE RELATION OF EQUALITY TO LIBERTY. 
 
 take the familiar instance of tlie distribution of a bankrupt 
 estate, we sliall see distributive justice in operation, just as 
 unmistakeably as when the state distributes its honours, rewards, 
 and responsibilities, and it is just as possible that it may be 
 called on to act geometrically. Suppose one man has invested 
 £50, and another has invested £500, in the concern, and that 
 the dividend is Is. per £. The one man will get £2, 10s., 
 whilst the other gets £25. The proportion is preserved geome- 
 trically, and the whole proceeding is dianemetic, thou.gh it takes 
 place within the sphere of private law. Then, as regards the 
 other, the diorthotic principle, which is said to be confined to 
 private law, and to act arithmetically by simple addition and 
 subtraction. Is it not obvious that it may be called into action 
 in public, just as the dianemetic principle may be called into 
 action in private law, and that it may there act arithmetically ? 
 For suppose the state hitherto has wronged a particular class of 
 persons, we shall say, by giving them less political power than 
 corresponded to their real weight or value in the state, will 
 not the remedy in this case be effected diortliotically (correc- 
 tively) by giving to them, and in giving to them by taking 
 away from other classes, such an amount of power as shall 
 restore the true political balance proportio) between them ? 
 And is not this remedy just the dianemetic result, the distributive 
 justice, which in this case is worked out in the form of corrective 
 justice ? These two principles then resolve themselves into 
 each other, or, at most, they are two different forms of synthetic 
 justice, the application of the one or of the other of which 
 depends on the circumstances of the case, and not on the depart- 
 ment of law in which it is called into play. The same remarks 
 
or THE EELATIOX OF EQUALITY TO LIBERTY. 331 
 
 apply to retributive justice (to a.vTL77€7rov66s, retaliatio, jus talionis), 
 the action of which Aristotle is also careful to limit to the Kar 
 dvaXoyiav Kal /xt) Kar' iaori^ra,'^ and I think to every other kind of 
 justice — if other kinds there be — in whatever relations they may 
 be called into play. 
 
 If the distinction into diorthotic and dianemetic justice, as it 
 is usually stated, be Aristotle's at all, which may well be doubted, 
 it is perhaps to be accounted for on the ground that, being a 
 politician and not a lawyer, he felt the necessity of the limita- 
 tion which the proportional element seemed to impose more 
 forcibly in public than in private law, and for this reason 
 reserved its highest action, in the geometrical form, for diane- 
 metic justice. That, unlike the modern world, Aristotle was 
 deeply impressed with the necessity of excluding equality from 
 the sphere of politics cannot be doubted. But his position, 
 even in this respect, would have been strengthened, and his 
 object more effectually attained, had he, or his interpreter, per- 
 ceived that equality is the principle of analytic justice exclu- 
 sively, and does not come into action in synthetic justice at al], 
 in any department, either public or private, otherwise than 
 accidentally, i.e. as a result of the antecedent analysis. From 
 this source — from nature as interpreted by science — it is true 
 that its appearance on the political horizon remains formally 
 possible. If nature should repent her of w^hat so many seem 
 to regard as her previous wrongs, and for the future should send 
 men into the world equally endowed ; and, if further, by their 
 own efforts, by mutual aid, or any other means, they should 
 develop themselves equally, and keep abreast of each other — 
 
 ^ Trendelenburg, id sup. p. 404. 
 
332 
 
 OF THE NATUEAL RIGHT OF AGGRESSION. 
 
 if all workmen, for example, should possess the same skill and 
 industry, and produce the same quantity and quality of work, 
 then the economist and the politician, like the judge, must take 
 them as they find them, and recognize their equality. Till this 
 occurrence takes place, equality and liberty are irreconcilable 
 conceptions: aspirations which mutually exclude each other: 
 and the apparent reconciliation of which, even for a time, can be 
 purchased only at the sacrifice of justice. 
 
 CHAPTEE V. 
 
 OF THE NATURAL RIGHT OF AGGRESSION. 
 
 (a) Aggression is a natural right, the extent of which is measured 
 ly the power which God has hestowed on the aggressor, or permitted 
 him to develop. Up to this point, the right of conquest, individual, 
 social, political, and ethnical, is involved in the idea of liberty, and 
 included in the objects of jurisprudence. 
 
 To those who have accepted our doctrine with reference to 
 the sources of jurisprudence, the soundness of this proposition, 
 startling as in its practical aspect it at first sight appears, in so 
 far as logic is concerned will be even more obvious than that for 
 which we have just been contending. If God be the source of life, 
 and life be the source of rights, life in every form warrants the 
 amount of aggression that is requisite for its preservation and 
 development, and the higher the life the greater the amount of i 
 aggression which it warrants.^ Man is the aggressive animal, 
 par excellence, and the most highly endowed and developed men, ![ 
 
 1 Ante, p. 170. 
 
OF THE NATURAL EIGHT OF AGGRESSION. 333 
 
 and races of men, are the most aggressive. The process 
 is one which we contemplate with approval every day, in 
 the individual, the family, the state, the race ; — the able, 
 the active, the industrious, the instructed, the earnest, sup- 
 plant the weak, the indolent, the idle, the ignorant, the frivo- 
 lous. The rule is one to which there are probably no real 
 and ultimate exceptions at all. But there are many hidden 
 sources of power, and there are many successes which are 
 only apparent, and it is by omitting to notice the former, 
 and by dwelling on the latter — by watching the wave whilst 
 we fail to observe the tide — that, to our eyes, it seems as 
 if " the race were not to the swift nor the battle to the 
 strong." The region in the history of human affairs which 
 we assign to chance is merely a territory of mystery to 
 which the understanding does not penetrate. But there are 
 directions in which the understanding is led astray by par- 
 tial or intermittent light. In a calculation of chances other- 
 wise accurate, the moral element in the combatants or their 
 leaders, or the influences of the good and the bad cause, 
 escape our observation, or count for less than their due, and 
 we are startled by what seem to be results without causes. 
 And yet there is nothing more exceptional in the case than 
 when nerve conquers muscle, or where the invalid survives 
 the illness of which the strong man dies. Again, the exertion 
 of a single faculty, or a spasmodic effort of the system, often 
 produces immediate success, just as the gratification of a 
 single passion produces immediate pleasure. But the partial 
 character of the success, and the ephemeral natm^e of the 
 pleasure, taken along with the cost at which they are pur- 
 
334 
 
 OF THE NATURAL EIGHT OF AGGEESSION. 
 
 chased, deprive them of all absolute reality, and relegate them, 
 even in this world, to the category of "pound foolishness."^ 
 
 Moreover, the limits of the right of aggression are determined 
 for ns by the same principles by which its reality is guaranteed ; 
 for we have seen that from the necessary interdependence of 
 rights and duties, there can be no aggression which is either 
 rightful or real on the part of the aggressor, by which the object 
 of the aggression is not an equal gainer. All aggression which 
 is really and ultimately destructive either of life or liberty on 
 the whole, is excluded from the objects of jurisprudence by the 
 de facto principle, on the ground that it is self-contradictory 
 and suicidal, — that it counteracts its professed action. When 
 applied to international relations, these principles suggest the 
 conditions of the exercise of the right of national and ethnical 
 development and expansion. They reconcile us to the course 
 of the world's history, as they do to that of our country, our 
 county, our parish, our profession, our family, or our own. 
 That the Anglo-Saxon race should supplant the Eed Indian 
 in America, or the Celtic in Scotland in Ireland and in 
 Wales, are occurrences which, if brought about by natural 
 means, are as fully in accordance with natural law, — as much j 
 in the interests of the supplanted — as that B, who had made 
 a fortune, should purchase an estate for a price which other- 
 wise invested will yield more than its rental, from A, who has 
 
 ^ To this category the conquests of the first Napoleon, and the consequent 
 intoxication of his countrymen, emphatically belonged. They were no more 
 instances of real success than the hallucinations of insanity are proofs of fact. 
 The same may be said of the conquest of Alsace by Louis XIV. ; and would no 
 doubt have come true of that of Rhenish Prussia and Bavaria, had France proved 
 successful in the late war. The inroads of the so-called barbarians on the effete 
 Roman Empire, on the other hand, were true, and have been enduring conquests. 
 
OF THE NATURAL EIGHT OF AGGRESSION. 
 
 335 
 
 lost a fortune and is in ^'ant of a living; or that D should 
 be appointed to an office of which C has become incapable of 
 discharging the duties, and his retention of which could only 
 cover him with disgrace. 
 
 But what are natural means ? Does the natural right of 
 conquest justify the use of force ? and if so, when ? and to what 
 extent ? 
 
 (h) The right of aggression justifies the apjplicatioTi of force, and 
 involves the right of luar, luhen, and to the extent to vjhieh, force or 
 war is necessary for its vindication. 
 
 An art is more or less perfect in proportion not only to the 
 completeness with which it accomplishes its object, but to the 
 smallness of the means which it employs, or the force which it 
 expends. If aggression then be, as we have seen, one of the 
 objects of natural law, and if force be indispensable to the attain- 
 ment of that object, the use of force to this extent is justified by 
 natural law, and its application falls within the sphere of juris- 
 prudence as an art ; but the perfection of this art will be greater 
 or less in proportion to the smallness of the amount of force with 
 which it realizes just and necessary aggression. Neither in this, 
 nor in any other respect, is there the slightest difference in the 
 principles which govern public and private relations. In both the 
 legitimate amount of aggression is that which corresponds to the 
 real power of the aggressor, and the legitimate amount of energy 
 or force is that absolutely requisite for its realization. 
 
 If states were reasonable beings, living under a rational system 
 of international law, the richer and more populous country would 
 flow over gently into the other by voluntary arrangement, and 
 this to their mutual benefit. The fact of conoj^uest, like the fact 
 
336 
 
 OF THE NATURAL EIGHT OF AGGRESSION. 
 
 of purcliase, would,, if necessary, be ascertained judicially, and its 
 recognition would be enforced by the executive. Such a process 
 in minimis, may sometimes be seen where both states are 
 members of the same confederation, and where no international 
 jealousies hinder this natural process of adjustment, as, for 
 example, in the Swiss cantons, or in our own counties ; and this 
 fact has often seemed to me to furnish a powerful argument in 
 favour of very small states. But the great independent nations, 
 and separate races of mankind, have not as yet become reason- 
 able entities, nor have they as yet developed a rational system 
 of international adjustment ; and till these ends be attained, it is 
 plain that natural rights of aggression, when they arise in point 
 of fact, will in general have to seek realization by means 
 of force. Nor is it less obvious that if the question be 
 between the non-realization of this right, and its realiza- 
 tion by the application of force, even in the terrible form of war, 
 the latter is the preferable alternative; for the former, even 
 if it were possible, which it is not, would involve the abandon- 
 ment of progress, whereas the latter secures its attainment, 
 though at a terrible, and perhaps needless, price. Let us strive 
 then for the abolition of war by the development of a self- 
 vindicating system of international jurisprudence ; but let us not 
 waste our time and our energies in futile efforts for its direct 
 abolition, before we have succeeded in supplying its place by its 
 only conceivable substitute. 
 
 The most terrible responsibility that can fall to the lot of man, 
 is that of determining the point at which a casus helli has 
 arisen; and this responsibility is heightened by the fact that 
 there is scarcely any cause that is wholly just and pure. But as 
 
OF THE NATUEAL EIGHT OF AGGEESSION. 
 
 337 
 
 a counterpoise to scruples wliicli may paralyze tlie arm of duty as 
 well as restrain the liancl of violence, it is well on such occasions 
 to remember, that as there are central truths to which we must 
 hold, notwithstanding the admixture of error which we detect in 
 the forms in which they are presented to us, so there is a central 
 right — a right-side" — in every c^uestion which, if we can but find 
 it, we are entitled to embrace, and for which, if need be, we are 
 bound to fight, notwithstanding the wrongful manner in wliich it 
 may have been hitherto, or may still, be maintained. A cause^ a 
 party, or a state which is mainly in the right, though partially 
 wrong, merits not our sympathy alone, but our support, against 
 one which is mainly wrong, though partially right. Virtue and 
 knowledge may or may not be identical ; but imperfection is a 
 characteristic which climbs, in this world, to the realization of 
 both. There are, it is true, no imperfect obligations, and there- 
 fore we must make no compromise even with little sins. But 
 nations, like indiAuduals, obey as they know, only in part ; and 
 from both the most scrupulous of us must be satisfied with that 
 partial obedience which, as sinners ourselves, we hope may be 
 accepted by Him who hates sin with a perfect hatred." 
 
 Y 
 
B.OOK III. 
 
 OF THE SOUECES OF POSITIVE LAW, OE SPECIAL 
 JVEISPEUDENCE. 
 
CHAPTEE I. 
 
 OF THE ULTIMATE SOURCES OF POSITIVE LA^^ 
 
 rjlHE ultimate sources of positive law are : 
 (a) The Lav: of Nature. 
 (Ij) The conditio'iis of existence under vsliich that law must he 
 realized. 
 
 But the perfect realization of the lavr of nature, even in the 
 relative sense of its perfect adaptation to the circumstances 
 of imperfect beings, is impossible to such beings from four 
 causes. 
 
 1st. The imperfection of their knowledge of the law to be 
 realized, 
 
 2nd. The imperfection of their knowledge of the conditions of 
 its realization. 
 
 ord. The imperfection of their power to realize it as known. 
 
 A:tli. The imperfection of their will to realize it as known. 
 
 Though human autonomy, in the abstract, be demonstrable 
 beyond dispute, human autonomy, in the concrete, thus suffers 
 serious limitations ; and, in our search for the limits witliin 
 which and the means by which it is practically attainable, we 
 have to look, not to the ultimate, but to the proximate sources of 
 positive law. 
 
342 OF THE PROXIMATE SOURCES OF POSITIVE LAW. 
 
 CHAPTEE II. 
 
 OF THE PROXIMATE SOURCES OF POSITIVE LAW. 
 
 The proximate sources of positive law, or the sources of positive 
 law as such, like the sources of natural law, may be divided into 
 (a) Primary, and (h) Secondary. 
 
 (a) TJie primary source of positive law is the power, as exhibited 
 in and measured hy, the rational will of the whole community subject 
 to the law. 
 
 (b) The secondary sources of positive law are the means by 
 which the community vindicates its power in accordance with 
 reason, or in other words its real as distinguished from its 
 apparent power. 
 
 CHAPTER III. 
 
 OF THE PRIMARY SOURCE OF POSITIVE LAW. 
 
 The definition which I have given of the primary source of 
 positive law involves the following propositions. 
 
 (a) That positive law will exist in a community, or in other 
 words, that a community will be practiccdly autonorruous, to the 
 extent to which power and reason exist and coincide in it, or in 
 other words, to the extent to which its power is real. 
 
 In our previous discussions we have seen that the fact that 
 power is the root of law, is guaranteed to us by the necessary 
 coincidence, to our minds, of the two conceptions. Absolute 
 power and absolute law differ only as different manifestations of 
 
OF THE PRIMARY SOURCE OF POSITRT: LAAY. 343 
 
 the same divine influence. The universe, as a whole, must thus 
 be a perfect cosmos, at all events ive cannot think of it other- 
 wise. But tliis world is a part of this perfect cosmos, equally 
 subject with every other part of it to this same power and this 
 same law. It would thus appear that the coincidence of power 
 and law which we predicate of the whole must be equally 
 predicable of the part. But whilst we are impelled by reason 
 to accept this result as ultimately irrefragable, we are shut out 
 from it, for the present, by experience, the reality of which is 
 guaranteed both by internal and external evidence. The pre- 
 sence in the actual life of man — our own and that of others — of 
 those mysterious and contradictory elements of imperfection 
 which exhibit themselves as imbecihty, ignorance, and wicked- 
 ness, not only limit in man the Manifestation both of power and 
 reason, but render their coincidence necessarily partial. There 
 may thus be power — at least apparent power — which does not 
 generate law; and practically we know that it often defeats 
 it. By what test then shall we distinguish power which 
 is from power which is not legislative ? IN'ow with this 
 test we are already familiar. It is the test of ultimate as 
 opposed to immediate reality;^ of not ending in self-contra- 
 diction and suicide. But the only power which is not contra- 
 dictory, and as such ultimately self-destructive, is power which 
 coincides with and is guided by reason. Eeal power is thus 
 coincident with reason, just as it is coincident with law; and 
 therefore I think the conclusion is warranted that the extent to 
 which a community is autonomous will be measured by its 
 power, in so far as that power is under the influence of reason. 
 
 1 Ante, pp. 168, 183, 332, &c. 
 
344 OF THE PEIMARY SOURCE OF POSITIVE LAW. 
 
 (h) Positive km can originate and suhsist in a community 
 only to the extent to which that commicnity is free, and all true 
 legislation is thus, in the last analysis, self-legislation. 
 
 Freedom and power, for our present purpose, may be regarded 
 as convertible terms. The Creator, who is omnipotent, alone is 
 absolutely free. The freedom of created beings, like their power, is 
 limited ; but this limitation does not prevent the one from corres- 
 ponding accurately to the other. N'or is there any exception to 
 this rule in the case of what we call latent power. The strong 
 man in fetters is popularly regarded as one whose power is 
 unimpaired, though his liberty be gone ; but a moment's reflec- 
 tion suffices to convince us that his liberty is latent like his 
 power, and precisely to the same extent. The correspondence 
 of power to freedom then, and of freedom to power, may be 
 stated as absolute; and of communities, as of individuals, we 
 may say that they are free to the extent to which they are 
 powerful, and powerful to the extent to which they are free. 
 The coincidence between freedom and law results, moreover, not 
 only from our acceptance of power as the source and measure of 
 both, but of freedom as the object of law,^ and the obvious con- 
 sequence that they can be realized only in common. 
 
 In opposition to this train of reasoning, however, it may occur 
 to the reader that a definition which, by identifying legislation 
 with self-legislation, denies the character of positive law to all law 
 imposed by external human authority, conflicts, or may conflict 
 with the de facto basis which we have assigned to jurisprudence. 
 If power, you may say, be the source of all law, if the fact of the 
 reality of power be the warrant for its exercise, why should not 
 the power of a conqueror or of a conquering race, be the source 
 
 1 Ante, p. 279. 
 
OF THE PEIMAKY SOUECE OF POSITIVE LAW. 345 
 
 of legitimate positive law. The power of Eussia over Poland, 
 and of Germany over the recently conquered French Provinces, as 
 a phenomenon, is for the present unquestionable, and inasmuch 
 as it produces a higher degree of individual freedom of action 
 than any which either Poland or Prance ever succeeded in 
 attaining by their unaided efforts, it is quite possible that it 
 may be real permanent power — the result, not of any epheme- 
 ral spasmodic and self-counteracting effort, but of the normal 
 exercise of the right of aggression by autonomous on anarchical 
 races, which we have admitted within the sphere of natural law.^ 
 Is there, then, any ground on which the character of positive 
 law can be withheld from the law of Ptussia as administered in 
 Poland, or that of Germany as administered in Alsace ? My 
 answer is that the law of the conqueror, as the only means of 
 attaining or approximating to the attainment of the object of 
 all law, may be good positive law to the conquered state for the 
 time being, or even permanently ; though, in its primary aspect, 
 it is not the positive law of the conquered state. Its source — 
 positive source — is elsewhere, viz. in the overbalancing weight 
 of the conquering power, occasioned by the higher reason which 
 for the time being resides in that power, from its being more real. 
 A conquered province or nation is, in the community of nations, 
 in the position of the party that is out-voted, or of the individual 
 who is not sui juris in the civil community. Both obey a law to 
 which, directly at least, they have not consented ; but which, inas- 
 much as by vindicating cosmos it ministers to the attainment of 
 liberty on the whole, their own included, is not on that account 
 the less entitled to the character of positive law, even to them. 
 
 1 Ante, p. 332. 
 
346 OF THE PRIMARY SOURCE OF POSITIVE LAW. 
 
 Such is the direct aspect of the matter, and it is in this con- 
 sideration that all compulsory legislation and jurisdiction find 
 their immediate justification. If the concurrence of the convicted 
 criminal, or the unsuccessful litigant in the sentence of the judge 
 were the condition, sine qua non, of its righteous execution, 
 positive law would he an idle name. 
 
 But this is only the primary aspect of the matter. It by no 
 means follows that, even in what thus appear to be exceptional 
 instances, volition is not present as a source of law. There is 
 such a thing as normal and general, as opposed to special and 
 exceptional, assent. It can scarcely be said that the patient 
 assents to the wrench by which the dentist quenches rebellion, 
 and gives victory to law. And yet the justification of the dentist 
 for the application of vis major from without rests not only on 
 the fact that he has vindicated order and realized liberty, but 
 that he has done so with full concurrence of their recipient, and 
 even by his positive instructions. And precisely in the same 
 way, though the infant, the imbecile, the criminal, or the poli- 
 tician who is out- voted at the poll, does not consent to the applica- 
 tion of the law which takes place in his own case on the particular 
 occasion, it is nevertheless fairly presumable that that, law is in 
 accordance with the rational will which governs his whole being, 
 so far as his being is governed by a rational will, and, as such, is 
 autonomous at all. There are few lunatic asylums which do not 
 contain patients who have been placed in them, or are retained 
 in them, by their own normal, as opposed to their abnormal will ; 
 and many men have been punished, and some even hanged, in 
 accordance with their own wishes. But we have seen that 
 legitimate conquest can take place only on the ground of the 
 
OF THE PEIMAEY SOUECE OF POSITIVE LAW. 347 
 
 conquered exhibiting characteristics analogous to those of infancy, 
 imbecility, and criminality, or, at all events, being as it were out- 
 voted by the conquering power ; and as there is a general assent 
 which the citizen of the world, who is sui juris, gives to its laws, 
 just like that by which the citizen of the state binds himself to 
 accept the laws of his national legislature, or the judgments of 
 his national tribunals, even against himself, so there is a con- 
 structive assent on the part of the conquered province, which 
 takes from the law imposed on it from without the involuntary 
 and exceptional character which at first seems to belong to it. 
 Directly viewed it is law to the conquered state ; but when we 
 consider it indirectly and fundamentally, we perceive that it is 
 also the law of the conquered state. It is to this consideration, 
 in addition to the inherent absurdity of plebiscites as a means 
 of ascertaining the volition of a people, that the answer of Ger- 
 many to the claims of the conquered provinces of France to be 
 consulted as to their nationality, if good at all, owes its force. 
 These provinces, in the frame of mind in which, as part of the 
 French nation, they then were, were not autonomous communities ; 
 and their own ^positive laiv, their normal, and as such their real 
 will, was more likely to be realized by attending to their race, 
 their past history, and their geographical position, than by listen- 
 ing to anything they might say directly. I offer, of course, no 
 opinion on the fact ; but I think it will be apparent that the 
 possibility of their having gained, in place of lost, their autonomy 
 by their conqu.est, is not excluded by the circumstance of their 
 being made subject, in the first instance, to law that flows 
 apparently, at least, from an external source. The allegation 
 that they have been made free against their will, and powerful 
 
348 
 
 OF THE PRIMARY SOURCE OF POSITIVE LAW. 
 
 by being placed under subjection, is not formally absurd ; and 
 can be refuted only by an appeal to fact. 
 
 (c) Positive law can spring only from the whole autonomous 
 community v:hich oheys it. 
 
 Just as we have seen that natural law is the enactment of 
 our whole normal nature, and not of any special or exceptional 
 faculty called conscience,^ so positive law must be the enact- 
 ment of the whole autonomous community which obeys it, and 
 not of any s]3ecial or exceptional class, either high or low. 
 
 Theoretically this proposition scarcely requires illustration, 
 for if all law must be voluntary, it is plain that law which a 
 portion of the community has not willed, either directly or 
 indirectly, is no more binding on it than if it were the law of 
 a community with which it had no local connection. The only 
 legitimate ground then of exclusion from the rights, and exemp- 
 tion from the duties and responsibilities of legislation, is want 
 of power, or, as we more commonly say, incapacity. It is 
 for this reason that tests of incapacity, rather than of capacity, 
 have hitherto been the battle-fields of politicians. The ques- 
 tions which thus arise have reference not to principles but to 
 facts, which necessarily vary not only with every community, 
 but within every community at different periods; and their 
 consideration, consequently, does not belong to our present 
 subject. 
 
 But in addition to this theoretical consideration, there is a 
 practical consideration which very strongly illustrates the neces- 
 sity of positive law springing from the whole autonomous 
 society. Partial legislation affords no measure of the power 
 
 ^ Ante, p. 145. 
 
OF THE PEDIAEY SOURCE OF POSITIVE LAW. 
 
 349 
 
 and reason of the portions of tlie community which it puts to 
 silence, and consequently it offers no guarantee for its accordance 
 with the stage of development to which the community has 
 attained. If such legislation proceeds from tlie most enlightened 
 class it will be above the community, as a whole, and beyond it ; 
 if it proceeds from the least enlightened classes, it will be below 
 the community as a whole, and behind it. If it proceeds from 
 the so called middle class, it may, no doubt, correspond to the 
 whole community. But then what is the middle class ? Avhere 
 does it begin, and where does it end ? To discover tests 
 of incapacity which relegate its subjects to the position of 
 pupils, may be difficult ; but to discover tests which shall 
 guarantee one class to possess the capacity of interpreting and 
 representing all classes is, I believe, impossible. If the com- 
 munity is to be gOA'erued by its own wiU, that AviU must 
 actually be uttered by it, as an organic whole. Theoretically 
 there is no ultimate answer to the claim for imiversal suffrao-e ; 
 and as the separation of sound practice from sound theory is 
 impossible, it must be a subject of abiding regret that its 
 practical recognition of this claim has been rendered incom- 
 patible with order and freedom by the insane outcry for equality 
 with which, even in this country, it has been combined. 
 
 (f?) As the 'presence, of 'positive Ictio is pmgortionecl^ to tlie 
 existence and coincidence of pov:er and reason, or, in other I'jords, 
 to the existence of real as opposed to apparent povjcr, in the ichole 
 comrniLnity, the contrihutions ifhich the individual rnenibers of the 
 community raahe to it icidl he proportioned to the existence a.ncl 
 
 ^ As to tlie respective functions of equality and proportion in jurisprudence 
 generally, see ante, p. 327, d scq. 
 
350 
 
 OF THE PEIMARY SOURCE OF POSITIVE LAW. 
 
 coincidence of power and reason, or the existence of real 'power, in 
 each of them. 
 
 That it does not fall witliin the province of jurisprudence to 
 reverse the fact of natural inequality amongst men, has already, 
 I trust, been sufficiently established.^ So long, then, as men 
 continue to be unequally endowed with power and reason, posi- 
 tive law must not demand that they shall contribute equally 
 to its formation, or intrust to them equal rights, and impose on 
 them equal responsibilities, in interpreting and enforcing it. 
 In this, as in all other directions, it holds true that "unto 
 whomsoever much is given, of him shall be much required," and 
 vice versa. Just as we saw that the proposition that all men 
 are equally men did not involve the proposition that all men 
 are equal men, so now we see that the proposition that all 
 citizens are equally citizens does not involve the proposition 
 that all citizens are equal citizens, or that because all citizens 
 ought to be voters, all voters ought to be equal voters. 
 
 CHAPTER IV. 
 
 THE DOCTRINE OF THE NECESSARY SOVEREIGNTY OF THE RATIONAL 
 WILL OF THE WHOLE COMMUNITY IS IN ACCORDANCE WITH THE 
 COMMON SENSE OF MANKIND. 
 
 That true doctrines with reference to human affairs, at the stage 
 of historical development which we have reached, can never be 
 new doctrines — that in this department of inquiry, at all events, 
 
 1 Ante, p. 200. 
 
THE EATIOXAL VTLLL. 
 
 351 
 
 no " scienza niiova " is to be looked for, is a remark TvLicIi vre have 
 often had occasion to make, and ^'liicli, I trust, we have often 
 verified. In the present instance the reader may conseqnently 
 feel entitled to call on me to prove the soundness of my asser- 
 tion that the rational ^vill of the community, as I have explained 
 it, is the necessary source of positive law, hj showing that, more 
 or less definitely, that opinion has received the assent of man- 
 kind. To say that legislation, in general, has consistently con- 
 formed to it, would be to claim for human enactments a char- 
 acter which their results have too plainly belied. But if we 
 recall to memory the most progressive periods in the history 
 of those nations wliich are emphatically called historical, 
 I think we shall have little difficulty in perceiving that it is 
 then and there, pre-eminently, that this principle has been 
 accepted as the basis of legislation ; whilst in our own political 
 practice, following more immediately that of Holland, it is indis- 
 putable that, for nearly two centuries, it has been consciously 
 and professedly, though not consistently, acted on. Even in 
 countries and at periods of history in which the practical 
 supremacy of the rational will has not been recognized, so strong 
 has been the feeling, that by means of it alone reform was to be 
 sought, or progress hoped for, that there is perhaps no condition 
 of external circumstances, no form of government, under which 
 its validity has not been theoretically maintained. Lieber, in his 
 ingenious and interesting work on "Political Ethics,"^ has given 
 a curious enumeration of writers of ever}' shade of creed, posi- 
 tion, and opinion, from Father Persons the Jesuit to Frederick 
 the Great, who have distinctly recognized the sovereignty of 
 
 1 Manual of Political Etliics, by Francis Lieber, p. 297, et seq_. 
 
352 
 
 THE EATIONAL WILL. 
 
 the general will. It is Sir William Hamilton's " Cloud of 
 Witnesses," to the universality of the Philosophy of Common 
 Sense, recalled and examined regarding their political creed. 
 Singularly enough, Lieber has omitted from his list the names 
 of two of the very greatest of his own countrymen, Kant and 
 Savigny ; and, I think, we cannot do better than select them 
 ourselves, not on account of his omission or of their pre- 
 eminence in their respective departments alone, but from the 
 importance which belongs to the fact of their having arrived at 
 the same result by methods directly the opposite of each other. 
 Gaided by a method independent, and with the single exception 
 which I have already indicated,^ almost defiant of experience, 
 Kant thus fixes the necessary centre of sovereignty. " The 
 legislative power," he says, " can belong only to the united will 
 of the people. Thus it is that, as all justice proceeds from this 
 will, it is impossible that it can do injustice to any one by the 
 laws which it may establish. So long as one enacts for another, 
 it is always possible that he may do him injustice, never so 
 where he enacts only for himself (for, volenti non fit injicria).'' ^ 
 And, again : ^ " The sovereign (legislator) cannot be, at the same 
 time, the governor (regent), because the latter is subject to the 
 law and consequently lies under obligations to another — i.e. the 
 sovereign. The sovereign can take from the governor his power, 
 can depose him, and reform his administration, but cannot punish 
 him." The same doctrine pervades the whole of that portion of 
 Kant's work in which he treats of the sources of positive law. 
 
 Nor is the necessary sovereignty of the rational will less 
 clearly or u.nreservedly acknowledged by Savigny as the result 
 
 ^ Ante, p. 233. ^ Eechtslehre, part ii. sec. 46. ^ lb. sec. 49. 
 
THE EATIONAL WILL. 
 
 353 
 
 of the historical method of tracing out political and legal prin- 
 ciples, of which he may be regarded as the most eminent repre- 
 sentative. " In the common consciousness of the people," he 
 says, " lives positive law." ^ ..." It is the spirit of the people, 
 living and working in each individual, which generates positive 
 law ; and which, consequently for the consciousness of each, is 
 one and the same law, not accidentally but necessarily." 
 
 Savigny by no means confines this doctrine to the generation 
 of those laws by which the private relations of individuals are 
 governed, and which come more directly within the scope of his 
 treatise. He tells us, on the contrary, that the source of private 
 and of public law — of law in the sense in which it deals with 
 the relations which subsist between the individual members of 
 the community, and that which assigns to the citizen his position 
 with reference to the state — is the same. " Do we inquire into 
 the origin of the state ? we must seek it in a higher necessity, in 
 a power which acts from within, just as in the origin of law in 
 general ; and this holds true, not as regards the existence of the 
 state in the abstract, but with reference to the particular form 
 which the state assumes amongst each particular people ; for 
 the generation of the state is, in a sense, the generation of the 
 lav/ — indeed, the highest form of the generation of the law." 
 According to this view the rules by which public relations are 
 governed, and the institutions in which they find expression, and 
 by which they are upheld, are as much the result of a pre- 
 existent common feeling of what is right in the abstract, and 
 expedient with a view to the vindication of right in the par- 
 
 ^ "In dem gemeinsamen Bewiistsejm de Volkes leLt das positive Recht." — 
 System, i. p. 14. 
 
 Z 
 
354 
 
 THE EATIONAL WILL. 
 
 ticular instance, as are the laws by which it is sought to main- 
 tain for each individual what common consent or judicial 
 sentence has pronounced to be his private rights ; and thus it is 
 that this doctrine, as I have said, directs us to the source alike 
 of private, of public, and, I will add, of international law. Nay, 
 farther, it indicates very clearly the means by which their 
 development can alone be attained, for legislation being the 
 result of the spirit of the community which it governs, to endea- 
 vour to regulate this spirit by legislation is to mistake an effect 
 for a cause. 
 
 In saying this it is far from my intention to question a 
 fact so frequently and unequivocally established by experience 
 as that the character, even of an independent nation, may be 
 modified by influences from without. The political is as sensi- 
 tive as the stock exchange. So intimate is the relation, and so 
 close the interdependence of the civilized nations of the world, 
 that it is scarcely possible for a revolution of opinion, even 
 though it should not be accompanied by a change in the form 
 of government, to take place in one of them, by which the 
 others shall not be more or less affected. Their thoughts are 
 so linked together that if the change has been in the direc- 
 tion of truth- — by bringing positive law more closely to corres- 
 pond to the dictates of our normal humanity — a step in advance 
 will have been made by the whole civilized world; whilst, 
 on the other hand, if it has been in the direction of error — 
 by the establishment of a positive law which runs counter to 
 nature — mankind, as a whole, will have gone backwards. If, as 
 is too commonly the case with such movements, the change has 
 exhibited both truth and error, there will have been a gain in 
 
THE RATIONAL ^YILL. 
 
 355 
 
 one direction and a loss in tlie other, wliich may possibly leave 
 the question of progress or retrogression a subject of dispute. 
 But as regards external influences, there is a wide difference 
 between the cases in which they appeal to the spirit of a people 
 even by means of the most violent and noisy propagandism, and 
 those in which they directly attack their institutions. Where 
 the latter occurrence takes place, the links which connect the 
 positive laws of a people with their national spirit are broken ; 
 their legislation is transferred from a native to a foreign source ; 
 and whatever may be the effect of the change on the liberty of 
 the individual citizens for the time being, or even on the ulti- 
 mate liberty of the nation, its separate life, so far, is at an end. 
 Nothing of all this occurs in the case of an appeal, however 
 urgent, to the national spirit ; for our convictions are our own, 
 however we may have formed them, and the laws in which we 
 embody them are our own laws. But though it is by appealing 
 to the national convictions and thus moulding the national will, 
 and not by attacking national institutions directly, that the 
 positive laws of a people can alone be legitimately affected either 
 by external or internal influences, it is needless to deny that the 
 process has often been practically reversed, and that a change in 
 the national will, nay even the renunciation of a separate national 
 will altogether, has resulted from a direct attack on national 
 institutions. The effects of such an attack will be permanent 
 only when, and in so far as, they realize a higher liberty than 
 that which they sacrifice. But even where there is no reason to 
 credit them with this character of permanence, that they may be 
 very enduring requires to be established by no more recondite 
 fact, than that no small portion of Europe, after having been Pro- 
 
356 
 
 THE EATIONAL WILL. 
 
 testant, was during the course of the seventeenth century, dragged 
 back by external influences into the Catholicism in which much 
 of it has since remained. But the general assertion is not affected, 
 that for the spirit of a people to follow their institutions is at no 
 time the natural course of events, and that without a sacrifice of 
 independence, such an occurrence is next to impossible. In free 
 states positive law is possible only to the extent to which it is 
 an expression of the social influences which lie within the com- 
 munity, — of the moral forces which are at work in it. 
 
 We must not suppose that in all cases those writers who have 
 enunciated, or those legislators who more or less fully have 
 recognized, the supremacy of the general will, have formed 
 to themselves clear conceptions of its constituent elements. 
 There is, on the contrary, no subject of scientific politics with 
 reference to which so much confusion of thought and inconse- 
 quence of action has prevailed. Still, when the opinions of such 
 men as Kant and Savigny, and the higher class of political 
 thinkers are in question, we must positively understand that by 
 the expressions " rational will," " spirit of the people," common 
 consciousness," " state conscience," and the like, they are very far 
 from meaning the will or even the conception of right and wrong 
 of the numerical majority, or even of the whole inhabitants of the 
 state as an inorganic mass of equal individual units. From 
 Savigny's words, which I have quoted, it will be readily gathered 
 even by those who know less of his position than I may presume 
 in most of my readers, that he was no democrat ; and Kant, it is 
 well known, regarded democracy — which he was careful to dis- 
 tinguish from republicanism — as the only form of political exist- 
 ence by means of which the realization of the aspirations of the 
 
THE EATIOXAL WILL. 
 
 357 
 
 general will is impossible. Ilegel is equally emphatic to tlie 
 same effect.^ It was on this ground that he expressed his dis- 
 trust of our legislation in 1832, and had he lived to 1867 there 
 can be little doubt that his disapproval of a second recognition 
 of the supremacy of mere numbers would have been still more 
 emphatic. ^ 
 
 ]N'or haA^e even French writers been awanting to warn their 
 countrymen against the delusion which has cost them so dear. 
 " The national will/' says Sismondi,^ " that is the sum of all the 
 wills, of all the intelligence, of all the virtue of the nation, a sum 
 in which each quantity counts for what it is, and negations count 
 for nothing, is almost always absolutely opposed to the doctrine 
 of universal (and equal) suffrage, which makes those who have 
 no will prevail over those who have, those who know nothing of 
 what they are deciding upon, over those who know it."* It is 
 quite consistent with this definition of sovereignty, and is 
 indeed contemplated by it, that the sum of rational influence, the 
 aggregate of real will of which sovereignty consists, instead of 
 coincidino: with should stand over a^fainst the sum of individual 
 
 o o 
 ^ PMlos. of History, pp. 265-6, 274, 463, 468. 
 
 ' Was the provision that the members of the Reichstag should be chosen by- 
 universal sufTrage and ballot introduced into the constitution, first of the Xorth 
 German Confederation, and then of the Empire, in the interests of liberty or in the 
 interests of the Leviathan ? The subsequent provision that the chancellor and 
 other officers of the executive shall not be responsible for their actions either to 
 the Federal Council or to the Diet of the realm, but only to the emperor, seems to 
 render the answer very doubtful ; and one cannot but regret that the old Teutonic 
 system of the double vote and graduation by proportioning the number of voters 
 to the amount of taxes paid, which is followed in the constitution of Prussia, was 
 not retained in that of the Empire. 
 
 ' It is scarcely accurate to call Sismondi a French writer ; but he was at any 
 rate a writer in French, whose works were widely read. 
 
 * Essays, English trans., p. 291. 
 
358 
 
 THE RATIONAL WILL. 
 
 opinions ; that the minority should outweigh the majority, and 
 that the institutions of the state, the positive law of the land, for 
 the time being, should be in accordance with the opinions of the 
 former, and at variance with those of the latter. As regards the 
 individual, whatever may be the amount of influence — which, for 
 practical purposes, we must assume to be the measure of reason — 
 which he possesses amongst his fellow-citizens generally, whether 
 it be greater or less than that of the average social unit, to the 
 exercise of that influence, in determining the public and private 
 laws by which he himself is to be governed, and to nothing more, 
 is he entitled. If, then, the rational^ utterance of one man be ten 
 times as definite and powerful as that of another, the fact that 
 he contributes ten times as much to swell that general voice of 
 which positive law is the expression must be recognized. And 
 what is true of the privileges is equally true of the responsi- 
 bilities of the individual. He is bound to share in the duties to 
 the same extent to which he shares in the rights of sovereignty. 
 He must contribute according to his means, not only to the 
 material but to the spiritual wealth of the state, and one of the 
 most direct forms in which the latter duty behoves to be per- 
 formed is by striving, with such might as may be in him, to 
 bring its positive laws into conformity with the dictates of 
 normal humanity, — with natural law. 
 
 ^ The fault of all the schemes for improving representation from a democratic 
 point of view — a fault from which even Mr. Hares, by far the most ingenious 
 of them, does not seem to be free — is that they aim at giving equal value to rea- 
 son and unreason, to sense and nonsense. Even so rude a measure of intelligence, 
 and I will add of character, as is offered by the payment of direct taxes, would 
 surely be better than no measure at all. 
 
OF THE SECOND AKY SOURCES OF POSITIVE LAW. 359 
 
 CHAPTEE V. 
 
 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 The secondary sources of positive laiv, as already said} are the 
 means hy which the community vindicates its j^ower in accordance 
 with reason — that is to say^ its real "power. 
 
 Anything approaching to an exhaustive treatment of the 
 secondary sources of positive law would manifestly lead us into 
 the discussion of subjects which, though belonging legitimately 
 to public law, lie beyond the scope of a treatise on the principles 
 of jurisprudence. We shall consequently content ourselves with 
 little more than an enumeration. 
 
 I. The means hy which the community foryns its rational luill. 
 
 By the formation of the rational will, as opposed to its develop- 
 ment, I mean the bringing it, on the part of the community 
 generally, sufficiently near to the point which it has reached in 
 the exceptionally cultivated classes, to enable the community, 
 as a whole, to take part in legislation. This function, in the 
 modern world, is chiefly performed by four great institutions — 
 viz., the Church, the school, the press, and the polling-booth. 
 
 1. The Church. 
 
 By the Church is here meant, not the whole body of the 
 faithful, nor yet any particular ecclesiastical institution, but the 
 whole organization by which popular oral instruction on religion 
 and morality is communicated, and by which divine influences 
 are invoked. The great obstacle to the activity of the Church 
 as an instrument for the farther discovery of truth, and that 
 which keeps it down to the level of an organ for the dissemi- 
 
 1 Ante, p. 342. 
 
'360 .OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 nation of truth already known, is the necessity of its dogma 
 being fixed by some definite symbol This necessity — which, 
 though greatly exaggerated, is to some extent real — exists 
 equally in established and endowed, and in disestablished and 
 disendowed Churches; whereas the latter are depressed, in 
 addition, by the dependence of the clergy on the people — the 
 teachers on the taught. An endowed Church is conceivable in 
 which the clergy, like the professors in the Theological Faculty 
 of an endowed University, should be permitted to seek for divine 
 truth, as freely as the lay professors of such institutions are per- 
 mitted to seek for secular truth ; and the only objection to such 
 a Church seems to be that its teaching, by becoming individual, 
 would lose the weight which belongs to it as the result of the 
 consent of many minds. But such an unendowed Church, or 
 even congregation, could never be a permanent institution. A 
 few exceptional individuals might, at times, contrive to impose 
 their own opinions on their hearers ; but if these differed at all 
 widely from prevailing beliefs, their positions would always be 
 insecure, and it would be too hard a trial for the sincerity or the 
 activity of most men to tell them that they must seek truth, 
 but that if they found more of it than other people, other people 
 would deprive them of the means of living. The remedy seems 
 to consist, not in the total abandonment of ecclesiastical symbols, 
 but in their frequent revision, so as to maintain the popular 
 dogma, as nearly as may be, on a level with the scientific theo- 
 logy of the period. 
 
 On the other hand, it must be remembered that the pre-emin- 
 ence of the Church, as a means of forming the rational will, rests 
 on various considerations by which it is distinguished from all 
 other teaching institutions. 
 
OF THE SECONDAEY SOURCES OE POSITIVE LAW. 361 
 
 (1.) Tlie Cliurcli alone seeks to influence the '^^ill, not only 
 indirectly, tlirongli tlie understanding, but directly, and this in 
 two ways : 
 
 (a) By supernatural, though not on that account preternatural, 
 means, which are commonly spoken of as " means of grace." 
 
 The efficacy of the sacram.ents in restoring the union between 
 the divine and human principles, partially destroyed by volun- 
 tary transgression, is a subject on which it would not be becom- 
 ing that we should here enlarge. But as jurists and politicians, 
 it is proper that we should remember that prayers for the coming 
 of God's kingdom are neither more nor less than prayers for the 
 union of power and reason in His creatures ; and that the extent 
 of their influence will be proportioned to the sincerity with which 
 they are offered. When such prayers degenerate into formalities, 
 their influence will sink to almost nothing. On the other hand, 
 it is quite conceivable that they should be animated by a faith 
 so strong and general, as to bring a w^hole nation into relations 
 to the Divinity of so close a kind as would almost counteract the 
 influences of human wickedness and folly. " Knock, and it shall 
 be opened to you," is a promise not limited to individual suppli- 
 cations, nor is it individual faith alone that may " remove moun- 
 tains." 
 
 Llore tilings are wrought by prayer 
 Than this world dreams of. Wherefore let thy voice 
 Kise like a fountain both by night and day. 
 For what are men better than sheep or goats 
 That nourish a blind life within the brain, 
 
 If, knowing God, they lift not hands of prayer 5 
 Both for themselves and those who call them friends ? 
 For so the whole round earth is every way 
 Bound by gold chains about the feet of God.''^ 
 
 1 The Holy Grail, p. 155. 
 
362 OF THE SECOND AEY SOURCES OF POSITIVE LAW. 
 
 In our prayers, however, as in everything else, we must be 
 guided by the reason which God has bestowed on us, and the 
 experience which He has permitted us to acquire. To pray for 
 the alteration, modification, or even the temporary suspension of 
 what we know to be His laws, would not be reasonable prayer ; 
 first, because reason forbids the supposition that He will change 
 what, being in accordance with His perfect will, is already per- 
 fect ; and, second, because experience, though its teaching never 
 rises above probabilities, does, in this case, certainly render it 
 in the highest degree improbable that He will so act. But it 
 does not therefore follow that the deepest wisdom may not lie in 
 praying, that we, and others whose knowledge and wills are 
 confessedly imperfect, should be enabled to know these laws 
 more perfectly, and to conform to them more completely. To 
 take an example in point: — though every democrat now in 
 existence — nay, though the whole human family till the end of 
 time — were to pray that all men should be made equal, there 
 would be no more chance of that prayer being heard than if 
 they were to pray that they should be made immortal. But if 
 one righteous man were to pray that he and others might be led 
 to accept the inequalities which God has ordained, and to avail 
 themselves of them for social and political purposes, there is no 
 saying to what extent that prayer might avail. ISTor, accepting 
 the perfection notwithstanding the mystery which surrounds 
 the dealing of God with His creatures, is it difficult to see that 
 it is this form of prayer alone which, for our own sakes, we can 
 logically present. To pray for the alteration of laws which we 
 assume to be perfect, is to pray for evil ; whereas to pray for 
 power and will to conform to such laws, is to pray for that 
 
OF THE SECOND AEY SOUECES OF POSITIVE L.W. 363 
 
 wliicli alone is Tvanting to our good ; and the act of offering such 
 a prayer is, in itself, no unimportant step towards its fulfilment. 
 To pray that sin may be no longer sin, is to throw breath away ; 
 but to pray that we may not be sinners, is already to be sinless 
 so far ; and the frequent repetition of such prayer may end in the 
 formation of habits of comparative sinlessness, or, in other words, 
 of voluntary conformity with God"s laws. 
 
 (b) By natural means. The method of toucliing the will by 
 appealing to the heart belongs especially, though by no means 
 exclusively, to the Church. 
 
 The function of the Church is not only, or even so much, 
 to disseminate truth, as to prepare the soil for its reception, — to 
 teach tractableness. Of the necessity of this preparatory process 
 anv one maA' convince himself bv observino; the verv slio'ht effect 
 which a rcdv.ctio ad alsurduiii of their opinions produces on the 
 vast majority even of educated men. Political and social halluci- 
 nations, having their roots in selfishness and vanity quite as 
 much as in sttipidity and ignorance, present, in a conspicuous 
 manner, the pitiful spectacle of the will bidding defiance to 
 the reason. As regards them, above all, it is true that 
 
 " A man convinced against his will, 
 Is of the same opinion still." 
 
 Here, then, we must approach the reason by the will, and not 
 the will by the reason. The proceeding is one which belongs to 
 the ecclesiastical rather than to the secular instructor. It is 
 in place in the Ptilpit; but it would be wholly out of place in 
 the Chair. 
 
 (2.) The Church appeals to the classes that are least within 
 the reach of other influences^ and retains its hold on them 
 during life. 
 
364 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 It is with the spiritual interests of the working classes, more 
 especially, that the Church is concerned. To the classes whose 
 position and occupations enable them to command leisure, even 
 Christian influences come from many other quarters, and their 
 spiritual life is fed by a thousand rills. But to the children of 
 toil, the Church and its ministers offer almost the only incentives 
 to reflection. Of the small measure of leisure which is theirs, a 
 very large portion is spent in immediate contact with the influ- 
 ences which she wields, and, for good or for evil, these exercise a 
 very important effect on their characters and lives. Any one 
 who considers how different is the role which the Sunday plays 
 in the life of the man of labour and the man of leisure, and who 
 knows how much more exclusively the views and opinions of 
 the former are the result of pulpit teaching than those of the 
 latter, will have a practical illustration of what we mean. Now 
 that such teaching should deal directly with political interests, 
 even when these are seen from the most all-embracing point of 
 view, is, of course, neither possible nor desirable. Still, so to 
 expound Divine laws as to set the current of popular thinking in 
 the direction in which sound human laws are to be found, does 
 seem to be entirely witliin the Church's province, and we see no 
 reason why this should not at times be done a little more ex- 
 plicitly than merely by dwelling on the general fact that moral 
 and religious principles form the basis of citizen life. 
 
 There are phases and habits of rational secular thought and 
 feeling, to the formation of which the clergy even in their 
 strictly clerical capacity may very well contribute, which will 
 set limits at once to arrogance and insolence, and out of which 
 just conceptions both of the active and the passive duties of 
 
OF THE SECONDAEY SOURCES OF POSITIVE LAW. 
 
 365 
 
 citizenship will spring almost inevitably. There are necessary 
 relations, such, for example, as that between rights and duties, 
 which, even as abstract doctrines, may be popularly expounded 
 from the pulpit, and which, if once apprehended, without any 
 special application to existing circumstances at all, vill very 
 soon and very surely bear practical fruits. 
 
 . In many passages of our own history we have examples of the 
 happiest and most important secular results, which are referable 
 directly to the pulpit exhortations, and to the more private 
 influences of the ministers of religion. I shall have occasion 
 presently to speak of the suggestive character of Wickliffe's 
 teaching and that of the later Eeformers, in secular directions. 
 To come nearer to our own times ; it was the teaching of their 
 pastors (narrow and ungenial as it now appears to us) which 
 supported Independents and Presbyterians in their political as 
 well as in their religious struggles, and which, by the hands of 
 the Puritan Pathers of JN'ew England, laid the foundation of 
 the most fruitful colonial life which the world has ever seen. 
 Looking in another direction, it is impossible to say to how great 
 an extent that reverence for existing institutions, which, breath- 
 ing through the whole of the liturgy of the Church of England, 
 reminds one continually of Queen Elizabeth's days, may have 
 tended to foster in the English people those conservative in- 
 stincts which characterize them even as contrasted with the 
 Scotch, and which, in the absence of conscious reason, have so 
 often been the safeguards both of order and liberty.^ In Eoman 
 
 ^ Of tlie living poAver of religious feeling in secular directions, we have just 
 had a memorable instance in the effect of the National Thanksgiving for the 
 recovery of the Prince of Wales, in putting to silence the demagogic outcry against 
 monarchy. 
 
366 OF THE SECOND AEY SOURCES OF POSITIVE LAW. 
 
 Catliolic countries the influences of the Church have unhappily- 
 been too often placed in antagonism with those of the State. 
 But however much we may deplore the use which has 
 been made of them, it is impossible to question their effi- 
 ciency, and we should be strangely unjust if, in dwelling 
 on the reactionary and retrograde tendencies which they at 
 present exhibit, or the disbelief and disobedience which they in- 
 directly engender, we failed to remember how often they have 
 formed the only check on despotism, or the only mitigation of 
 anarchy. Still in identifying political and ecclesiastical, secular 
 and religious interests, the advantages of Protestantism must 
 always be very great ; and whereas the political, like the reli- 
 gious atheism which has overtaken so large a portion of the 
 Eom^an Catholic world is in no small measure traceable to the 
 abuse of clerical influences, I doubt whether, at this moment, 
 sound doctrine in politics and jurisprudence finds anywhere more 
 efficient supporters than in the Protestant clergy of Europe and 
 America. But their aid might without difficulty be rendered 
 still more efficient ; and in the present crisis of the history of 
 mankind I believe the Church could find no nobler function than 
 to trace out and exhibit the secular applications of the Sermon 
 on the Mount. 
 
 But, in order thus practically to influence the general will, 
 there is one principle which it is above all indispensable to 
 keep in view. Christianity must be regarded as inculcating 
 not what is negative merely, but still more prominently what 
 is positive in human conduct. The womanish view so often 
 presented of Christianity by those who profess to expound it, and 
 the disposition to regard it as a mere string of prohibitions, not 
 
OF THE SECONDARY SOURCES OF POSITIVE LAW. 367 
 
 only tends to enfeeble tlie characters of those who accept this as 
 the true exposition, but has the farther and greater evil of driving 
 the manlier characters who reject it to seek their exemplars and 
 rules of conduct elsewhere.^ These unhappy results, not un- 
 known in Protestant countries, are most of all conspicuous where, 
 as in France, the worship of the Virgin has all but supplanted 
 the worship of God. If the doing of important and noble 
 duties, rather than the abstaining from petty and ignoble vices, 
 were insisted on, even the latter object would be attained 
 far more effectually ; and if the motive were made not the 
 hope of escaping punishment, but the certainty of attaining 
 the love and favour of the Most High, Christianity would be 
 placed in a truer, and to many a far more attractive light. 
 In place of limping after us like a senile monitor, in whose 
 eyes the small and the formal is of greater importance than 
 the great and the substantial, Christianity would become, 
 as it was intended to be, a fresh and ever youthful leader 
 wherever our effort w^as to do God's will on the greatest scale, 
 and our abiding support and consolation, when, in order to 
 do so, the tangled maze of circumstances imposed on us the 
 necessity of violating the immediate dictates of humanity 
 or the promptings of instinct. ISTowhere more than in their 
 citizen capacity, so long as there is sin in the world, must men 
 stand in need of this positive view of Christian duty. ]^ot 
 
 ^ T^s dpeTr/s yap fj^aXXov to ed Trocelv 9j to ed Trdcrxea';- /cat to, /caXa irpdrTeLv [xdWov, 
 rd aicrxpcL fxri irpaTTeLV, Aristot. Endc. lib. iv. C. 1. Xenophon tells us that 
 one of the facts alleged by the accusers of Socrates was that he was in the habit 
 of quoting this line from Hesiod, "'Epyov 5' ovhev oVetSos, depyeir) de t oueidos. 
 Socrates was far from repudiating the imputation, and no one who feels, like him, 
 the higher dignity which belongs to a teacher of active virtue, will shrink from 
 hearing it along with him. 
 
368 OF THE SECONDAKY SOURCES OF POSITIVE LAW. 
 
 only to those wlio guide, but to tliose wlio execute the volitions 
 of a whole people, the place of Providence on a limited field is 
 assigned ; and he who, with merely passive Christianity to sup- 
 port him, is called upon to draw the sword, to erect the scaffold, 
 or to perform any of the sterner duties of citizenship, must do so 
 either without reference to Christianity at all, or, what is worse, 
 in violation of what alone he has been used to regard as its dic- 
 tates. The moment we are called to deal actively with public 
 relations our Christianity must be of such a kind as to raise us 
 above all minor anxieties, and in the most trying circumstances 
 to give victory to law. Where the voice of duty pronounces 
 unmistakeably for vigorous and unsparing action, he who repre- 
 sents the Word of God as prescribing childish inactivity or 
 feminine submission, however harmless may be his intentions, 
 will in his deeds be at once a traitor and a false prophet. 'Nov, 
 on the other hand, will he be a truer interpreter who, recognizing 
 the paramount claims of duty, represents these as incapable of 
 any genuine recognition which is not accompanied by a per- 
 petual austerity, and in constant conflict with all that is humane 
 and genial in the ordinary relations of life. Whilst our Divine 
 Master has told us that He brought into the world " not peace, 
 but the sword," we know that the very first object for which He 
 interrupted the ordinary laws of nature was to provide more 
 abundantly, not for the wants, but for the convivial enjoyments 
 of those who, for the time, were His companions in mirth. Had 
 nothing else to the same effect been recorded of Him (and there 
 is much), in this one saying and this one act we should have had 
 abundant proof that His notions of Christian duty were neither 
 sickly nor sour. 
 
OF THE SECOXDAEY SOUECES OF POSITRT: LAAV. 
 
 369 
 
 2. Tlic School, inducling the University, in so far as the latter 
 is regarded riierely as a riiea/iis of instruction and clisciijline, and 
 not as an organ for the advanceriient of science. 
 
 Education being tlie development of man as a rational being, 
 that tlie autonomous character of a community will, on the 
 whole, keex3 pace with its educational advancement, is a pro- 
 position the acceptance of which I shall take for granted. It is 
 true that education alone is neither the only source, nor the 
 only measure of autonomy. There must be something to edu- 
 cate ; and as communities, like men, do not all start with the 
 same aptitudes, the same amount of instruction, or even of 
 experience, Avill not bring them all up to the same point. England, 
 in the days of Simon de Montfort, was a more autonomous 
 country than Erance is now, or CA'er has been ; and yet it can- 
 not be doubted that Erance has lono; had a far wider rano'e of 
 instruction to guide her than England had then, and a far wider 
 range of experience than England has yet, or it is to be hoped ever 
 will have. Such differences are usually ascribed to race. That 
 race in general contributes to them very largely is a conclusion 
 which is placed beyond question by a comparison of the his- 
 torical with the non-historical races of mankind ; and that the 
 difference between Erance and England may arise from the 
 preponderance of Celtic^ blood in the one, and of Teutonic blood 
 in the other, is a conjecture which is forced upon us by the 
 history of the different portions of our own population. Though 
 there are some intellectual and even moral qualities which 
 appear to be possessed by the Celtic in a higher degree than by 
 
 ^ Bnnsen holds tlie Celtic or Keltic tribes to be "the lower gi'ades of the Aryan 
 stock, in Europe and Asia." God in Hidory, vol. i. p. 239. 
 
 2 A 
 
370 OF THE SECONDAEY SOURCES OF POSITIVE LAW. 
 
 the Teutonic race, tlieir religious conceptions are always marked 
 by that tendency to ecstatic delirium which characterizes the 
 religions of the lower races ; whilst, secularly regarded, there 
 is no historical example of a Celtic population which, by its owa 
 efforts, has thrown off the restraints of patriarchal government 
 without falling into anarchy. Even on the limited scale on 
 which republics have been found to work well with other races, 
 they have been impossible where Celtic blood preponderated. 
 There never was a Celtic " free-town" or " hansa," and if M. Eenan 
 should be correct in liis view that the Celtic element in England 
 is superseding the Teutonic element, there will soon, I fear, 
 cease to be a free England, as there has ceased to be a free 
 France. The jjhenomenon is a very sad one, but its political 
 aspect ceases to alarm us. when we remark how rapidly the 
 Celtic is being mixed with other races, and how valuable it is as 
 an ingredient in the composite stock. Of the subordinate posi- 
 tion wdiich it takes when brought in contact with other ethnolo- 
 gical elements, the invariable disappearance of its language seems 
 an infallible indication. 
 
 But even in the same country, and where the race has 
 remained substantially unchanged, the relation between the 
 advance of knowledge and autonomous power does not always 
 hold good. It is true that Spain has by no means kept pace with 
 the ]^orth of Europe in the race of knowledge. But even Spain 
 can scarcely have failed to learn something — to make some advance 
 on her own position in this respect — during the last 400 years ; 
 and yet it is certain that Spain has been a less autonomous nation 
 — less orderly and less free — during the last half century, than 
 during any similar portion of the long period which elapsed 
 
OF THE SECOXDAEY SOURCES OF POSITIVE LAW. 371 
 
 between the victory over tlie Moors in 1212, and the union of 
 the crowns of Castillo and Arragon, under Ferdinand and Isabella. 
 It woidd be difficult, perhaps impossible, to obtain direct data as 
 to the educational condition of Spain at the one period, and at 
 the other; but I think it may be taken for granted that the 
 elements of instruction are now more widely disseminated, and 
 if material prosperity be any guarantee for general intelligence, 
 Spain has made great advances within the last fifty years.^ The 
 same may be said of France during the reign of !N'apoleon III., 
 when she certainly was more prosperous and instructed, but less 
 autonomous than during that of Louis Philippe. 
 
 ]^ow the explanation of the failure of the general relation 
 between education and autonomy, in these and other in-, 
 stances in which it cannot be ascribed to difference of race, 
 will be found, I believe, in the fact that it is not all education 
 which tells in the direction of autonomy, but only such educa- 
 tion as results in the discipline of the individual character, and, 
 through the individual, of the national character. By discipline 
 I mean, not only formal compliance with the arrangements of 
 nature with reference to human relations, for tliat may be enforced 
 from without, but voluntary acceptance of these arrangements 
 as the true measures both of rights and duties. A man or a 
 community that is disciplined, in this sense, is autonomous, 
 because his will coincides with the necessary conditions of 
 existence. He obeys no master except Him whose service is 
 perfect freedom, and whose will it is that he should be free, and, 
 consequently, it may be said of him in the deepest sense, Volenti 
 
 Is Spain now really becoming an autonomous nation? If so, the pheno- 
 menon will be one of the most interesting in political history. 
 
372 OF THE SECONDARY SOUKCES OF POSITIVE LAW. 
 
 non fit injuria. And if we take the matter up liistorically, 
 either as regards the nations I have mentioned, or any others, I 
 think we shall find that experience has not belied the conclu- 
 sion that the men and nations that have most freely and fully 
 accepted the laws of nature, whether revealed through nature or 
 to nature — the most disciplined men and nations — the most 
 moral and religious men and nations, have been the freest men 
 and nations. 
 
 This voluntary acceptance of the laws of nature may be either 
 spontaneous and unconscious, or it may be the result of reason 
 consciously exercised. In the former case, in so far as it is not 
 dependent on special temperament, its source will be found in 
 the organization of the family and of society, which to a certain 
 extent is inevitable. In its rudimentary stages organization is 
 thus the cause of that discipline of which, in its higher and more 
 perfect manifestations, it is the result. The simplest instance 
 of spontaneous discipline is the necessary relation of parent and 
 child. Every child must stand in a position of dependence and 
 subordination to its mother, or to the nurse who takes its 
 mother's place. That is a lesson of discipline which no one can 
 escape, and which no one resists ; and it is the first step on the 
 ladder of organic social life. Filial dependence, indeed, is the 
 school of discipline which nature has provided, attendance on 
 which she has rendered compulsory, and which she continues 
 longer in man than in the lower animals, in consequence of the 
 greater amount of teaching of which he stands in need. The 
 same is true of relative inferiority in all its stages and forms. 
 As has been said of philosophy we may say of discipline : 
 Man is disciplined as he lives, he may be disciplined much or 
 
OF THE SECOXDAEY SOUECES OF POSITIVE LAA7. 
 
 373 
 
 little, well or ill, but disciplined lie iimst be. Life, in short, 
 altogether is an educational institution, and tliis is true of it, 
 not only in its ideal conception, but in its humblest manifesta- 
 tions. 
 
 But though the rudiments of discipline, as of philosophy, be 
 thus taught by the ineA'itable conditions of human life, and Avill 
 be learned better or Avorse in proportion as that life is higher or 
 lower either in the individual or in the race : like philosophy, 
 also, it may be taught, and in its higher forms can be taught, 
 only by an appeal to that conscious reason, Trhich is the cha- 
 racteristic peculiarity of man. And if this be so, the ques- 
 tion Avith reference to the educational institutions of a country, 
 viewed as sources of positive law, comes to be this, — is there 
 any special kind of direct instruction by which tliis discipline 
 can be attained, and, if so, what is that kind ? 
 
 Xow here there need, I think, be no difference of opinion. 
 The school, like the Church, must take this matter in hand 
 openly and directly, as it does other matters. If you wish to 
 teach a man to avail himself of the powers, or to conform to the 
 laws of physical nature, you teach him the laws by which these 
 powers act and react. If you wish to enable him to combine an 
 acid with an alkali, we shall say, you teach him chemistry, the 
 laws which govern the relations between material substances, and 
 not jurisprudence, the laws which govern the relations between 
 man and man. Just reverse this process ; then and when you 
 wish to develop a social or political aptitude in him, give him 
 social or political instruction. If you wish self-governing men, 
 teach them how they are to govern themselves ; but do not hope 
 that they will linow how to govern themselves — and you too, for 
 
374 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 it lias come to that — without teaching of any kind, or in conse- 
 quence of your having taught them to combine acids with alka- 
 lies, to make railways, or to spin cotton. 
 
 The objections which are made to this pretty obvious view of 
 the question, are I think mainly two : — 1st, The natural laws 
 of the human relations, it is said, do not admit of any precise 
 statement, and consequently cannot be taught. I hope that I 
 have already answered this objection in the preceding treatise 
 — if not I cannot answer it. 2nd, It is said that at all events 
 they cannot be taught in a popular maimer, and that all attempts 
 so to teach them only stir questions of principle which cannot 
 be adequately solved, and with which it is wiser and safer that 
 men in general should not concern themselves. E'ow all "popular 
 teaching is necessarily imperfect : the knowledge which it com- 
 municates is incomplete : and no community which is led by 
 it ever can be as safe, either from internal disorder or external 
 disaster, as a community so organized as to take advantage of the 
 best and highest light which political science has brought within 
 its reach. A community which subordinates its higher to its Jowei 
 elements imperils its stability as well as its progress, and I am 
 very far from contending that a very considerable amount of 
 danger will not always attend the practical application of such 
 political knowledge as can alone be communicated to the numeri- 
 cal majority. But this argument loses all meaning in the mouths 
 of those who advocate the dominion of the numerical majority; 
 and all practical application to communities in which that do- 
 minion is already recognized. Edged-tools will always be dan- 
 gerous in unskilled hands ; but if men are resolved that edged-tools 
 shall be put into unskilled hands, or if edged-tools, have been put 
 
OF THE SECOXDAEY SOUECES OF POSITR^E LAW. 375 
 
 into unskilled hands already, the more sldlfiil those hands can 
 be made the less will be the danger. Petroleum and gun-cotton 
 will ngyer be safe commodities in all men's keepino;. But if all 
 men must keep them, and keep them too in equal quantities, 
 the sooner such information with reference to the mode of 
 handling them as all men are capable of receiving can be 
 disseminated the better. 
 
 'Not do I see any reason to believe that popular teaching 
 should necessarily be more imperfect or incomplete when it has 
 reference to moral and social, than to physical laws, or indeed to 
 any other branch of knowledge by which the higher faculties 
 are called into exercise. The political education of all classes 
 can no more be equalized than their education in other respects. 
 But, in a Avell organized conununity the political education of all 
 classes might without difficulty be projjortioned to their require- 
 ments, that is to say, to their rights and responsibilities ; and with 
 this view the very obvious rule suggests itself, that in proportion 
 as the political influence of the individual rises, ought his citizen 
 training to become wider in its range, and more scientific in its 
 character: or, reversing the proposition, that his political influence 
 should be made dependent on the measure of his citizen training. 
 The only difflculty which seems to stand in the way of such educa- 
 tion being made compulsory on all classes,^ arises from the want 
 
 ^ The old Scotcli Statute, 5 James lY. c. 54 (1494), Avliicli enacted that barons 
 and freeholders should send their sons and heirs to the grammar schools till 
 "they be competentlie founded and have perfite Latine," and thereafter to re- 
 main three years at "the schules of art and jure, swa that they may have know- 
 ledge and understanding of the lawes," has always seemed to me a very enlightened 
 provision ; and as the opportunity of imposing an educational test on electors has 
 been lost by the apathy and irresolution of the upper classes, it might perhaps 
 still be possible in some measure to supply the place of it by imposing some such. 
 
 I 
 
376 OF THE SECONDARY SOUECES OF POSITIVE LAW. 
 
 of any legal recognition of classification in modern states. The 
 objection to siicli recognition, wliicli to many minds seems fatal, 
 is the tendency which classes so recognized wonld hare to 
 degenerate into castes. To me it appears that this objection 
 would be obviated if this classification were recognized only for 
 political purposes, and if the principle of la carrUre ouverte 
 were expressly maintained in it ; as, for instance, by the adoption 
 of a graduated suffrage, one of the elements of admission to, 
 and advance in which, should be education. "Whether such 
 organization as would lay the basis of a consistent system of 
 compulsory political education has been rendered impossible by 
 the democratic legislation which has already taken place in this 
 and other countries, is a question which I cannot here discuss. 
 
 In the absence of an arrangement by which so many of our 
 hardest problems would have been solved, the only means of 
 enforcing political education of the higher kind seems to consist 
 in rendering it imperative for admission to all Government 
 appointments, raising its character in proportion to their import- 
 ance. Tor admission to all the professions, and more particularly 
 to the law, it ought unquestionably to be demanded ; and this is 
 a measure in the hands of bodies so obviously interested in it, that 
 its adoption is not improbable. In Germany, a country from which 
 we have still much to learn, the degree of Doctor of Laws is 
 required for admission to all the higher offices of the civil service 
 of the state ; and the degree of Doctor of Laws implies instruc- 
 
 test on the elected. As matters stand at present we have no constitutional 
 guarantee that we shall not ultimately be governed by a majority of persons who 
 can neither read nor write. That many of our present governors could not meet 
 the requirements of a Scotch freeholder's son in 1494 is, I fear, very certain. 
 
OF THE SECOND AEY SOUECES OF POSITIVE LAW. 377 
 
 tion and examinations in scientific jurisprudence or natural law, 
 in politics, and in political economy. 
 
 But, even on the assumption that it was to be entirely voluntary 
 — if direct political instruction of every kind, from the highest 
 and most exhaustive which the universities could communicate, 
 down to the simplest and most obvious which need be no burden 
 on a parish or even a ragged school, were to be sown broadcast 
 over the land, I cannot doubt that it would speedily yield a rich 
 harvest, not only of progress and safety, but of peace and good- 
 will. Great advantages have already resulted from the extent to 
 which a knowledge of political economy has been disseminated 
 in this country, partly by po]3ular lectures, but chiefly by the 
 newspapers. It is this knowledge, more than anything else, that 
 has protected our lower classes, beyond those of other countries, 
 from the delusions of communism, socialism, and other forms of 
 political and economical error. But such benefits would be in- 
 finitely deepened if men in general could be taught in their youth 
 not only that such schemes are unprofitable, or even that they 
 are wicked, but that they are im^^ossibU ; for the simple reason, 
 that they violate natural laws which are as unchangeable as those 
 which govern the revolutions of the seasons, the flow of the tides, 
 or the alternations of day and night. If the politician could ex- 
 pound the two words "necessary" and "impossible" in their 
 political acceptation, as the economist has expounded the Avords 
 "profitable" and "unprofitable" in their economical acceptation, 
 our "reigns of terror" would be over. And such teaching, I am 
 convinced, could be communicated in a manner that would be 
 perfectly intelligible and convincing, not only to every reasonable 
 man and woman, but to every ordinarily intelligent child of ten 
 or twelve years of age. 
 
378 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 ' 3. The Press. 
 
 Wlien we speak of the Press in this relation, it is necessary to 
 distinguish between the art of printing and publishing, when 
 used for the purpose of developing or disseminating truth or error, 
 and the art of printing and publishing when carried on as a 
 mercantile speculation. In the former capacity the press is an 
 instrument, the effect of which, for good or evil, will be propor- 
 tioned to the power of him who wields it. Its function is to 
 represent extreme opinions, and its tendency will always be to 
 go beyond the community in some direction ; and in point of 
 ability, either to rise above or sink below the general standard 
 of thought and knowledge. Even the error which it teaches will 
 not be altogether common error; and where it exercises any 
 influence at all, that influence will be in the direction of develop- 
 ing existing thought rather than of disseminating it. What may 
 be called the mercantile press, on the other hand, which alone 
 properly falls to be spoken of in this section, is the most effica- 
 cious means which the modern world possesses of popularizing 
 and diffusing thought and knowledge; but its function scarcely 
 rises higher. Tlie question with its conductors, necessarily, is 
 not "what is true ?" but "what will pay?" and nothing will pay 
 which either rises very much above, or sinks very much below, 
 the point which the general intelligence has already reached. 
 Publishers by profession, and those who seek their favour, are 
 thus of necessity teachers, and not cidtivators of science ; and 
 inasmuch as the mercantile value of a book is the best possible 
 test of its value as an organ of instruction, publishers and book- 
 sellers are really the most efficient managers of the press for mere 
 teaching purposes. Where public taste is good, the books which 
 
OF THE SECOXDAEY SOL'ECES OE EOSITR'E LA^V. 379 
 
 tliey select, in point of form, often leaA'e little to be desired ; tliey 
 frequently contain new facts ; and tliey exhibit familiar opinions, 
 and even sparkling paradoxes, in brilliant language. But new, 
 and as sucli recondite tliouglit, is necessarily excluded from tliem. 
 Even tliouglit wliicli is familiar in one country is scarcely eA'er 
 introduced into another by the mercantile press, for the simple 
 reason, that the works in which it is embodied, even when trans- 
 lated, do not pay till they have become familiar. In addition to 
 popular books, the mercantile press includes all magazines, 
 reviews, and other periodicals which are the property of publishers, 
 even when conducted by "'able editors" — with the partial excep- 
 tion of those which publish the names of their contributors — 
 together with the vast majority of newspapers. From the imme- 
 diate and marvellous increase in the cj_uantity, and deterioration in 
 the quality of its newspapers that takes place the moment that a 
 nation sinks into anarchy, it Avould almost seem as if autonomous 
 reason were in an inverse proportion to the amount of time and 
 energy consumed in the production and perusal of this species of 
 literature. And yet there is no other secular means of develop- 
 ing the populcir reason which possesses half the efficacy of the 
 ne^^'5paper press ; and there is none which is, on the whole, more 
 worthily used, in this country. 
 
 The other evils which to some extent coimterbalance the many 
 benefits which the mercantile press confers on the cause of 
 ci^'ilization seem to be mainly these. 
 
 (f/) From the zeal and energy with Avliich popular Avorks are 
 pressed on the attention of the public, the success and to some 
 extent the production of recondite and original works is interfered 
 with. The greater activity of the learned press in Germany than 
 
380 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 in England, is in some degree to be accounted for by tlie greater 
 activity of the popular press in England than in Germany. 
 
 (h) The multiplication of secondary sources of thought and know- 
 ledge draws attention away from the primary sources, and induces 
 men to follow inferior guides. In place of reading a little of 
 standard works, most of us read a great deal about standard works. 
 
 (c) The amount of time and energy devoted to trivial and 
 indolent reading, limits that which most men have at their 
 command for meditation and reflection. The most commonplace 
 persons are very often those who read most ; and probably the 
 dead level of character which we all exhibit, and of which we all 
 complain, is in no small measure due to the efforts requisite to 
 keep up with what is called " the current literature of the day." 
 
 4. The Folling-hooth. 
 
 The mere exercise of the electoral suffrage is by many regarded as 
 sufficient to confer the measure of rational will which it demands. 
 The proverb that " office makes the man," here above all, it is 
 said, is true. I am far from denying either the truth of the pro- 
 verb, or its bearing on the matter in hand. Practice is the best 
 of schoolmasters, and the polling-booth is a very precious school 
 of practical instruction. It is in recognition of this fact that I 
 mention it here amongst the means by which the rational will of 
 the community is formed, though I regard its direct and primary 
 function as being, not to form that will, but to measure it and 
 declare it. 
 
 But granting its title to take rank as an educational institution, 
 it is an error to suppose that by the suffrage, or any other office 
 or function, we can supply gifts by merely calling for their exer- 
 cise. The Bench of Judges and the Bench of Bishops are both 
 
OF THE SECOXDAEY SOUECES OF POSITIVE LAW. 
 
 381 
 
 of tliem very sharp and efficient scliools of instruction ; but did any 
 sane man ever propose to appoint a judge or a Lisliop in tlie hope 
 that he would thereby be instructed in the duties of his calling ? 
 Even supposing tlie ultimate instruction of the individual to be 
 an adequate return for the injury to himself and others which must 
 arise from his inevitable failures in the first instance, this object 
 would not be attained; for experience will no more supply the 
 place of knowledge than sunshine will supply the place of seed. 
 You can no more convert a mob into disciplined citizens by 
 giving them the suffrage, than you can convert them into a dis- 
 ciplined army by giving them muskets ; and we do not require 
 to travel into the history of former times to convince ourselves, 
 either that the dangers attendant on the two experiments are on 
 a par, or that the one experiment has a tendency to lead to the 
 other. 
 
 The reason why men fail to see, in the case of the suffrage, 
 what is so obvious with reference to every other function, is 
 that its exercise is regarded only in the character of a right. 
 Men, it is said, have no right to be judges, or bishops, or soldiers, 
 but all men have a right to be citizens, and to all the advantages 
 which may arise from the exercise of citizenship. The error, 
 like the opposite one of denying that it is a right altogether, 
 arises from forgetfulness of the relation, which we formerly dis- 
 covered, of the inevitable reciprocity of rights and duties. 
 We then saw^ that there can absolutely be no rights at all to 
 vhich corresponding duties do not attach, and that if there be a 
 failure of the relation as regards duties, it can only be in the 
 case of the duties which we owe to the Author of our being. 
 1 Ante, Book 1. Cap. TIL XL XII. 
 
382 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 The two prevalent theories of the suffrage are thus equally 
 erroneous, and from the same cause. Like all other functions 
 that are legitimate at all, the function of citizenship is hoth a 
 right and a duty, inherent in all who are capable of its exercise. 
 It is inherent in them as a right in proportion to the extent to 
 which it is a duty, but it emerges neither in the one character 
 nor in the other till, nor beyond the extent to which it emerges 
 in both. On precisely the same principle lawyers and clergy- 
 men are entitled to preferment — men who are able and willing to 
 defend the community are entitled to powder and shot ; but in 
 each case the right brings its corresponding duty, and continues 
 dependent on, and measured by, its performance. 
 
 But tliese considerations, though they deprive the suffrage of 
 the character of an educational institution except for those who 
 are already capable of its exercise, do not invalidate it for those 
 who are as a potent instrument for the formation and develop- 
 ment, as well as for the expression, of rational will. It has 
 taught nothing in France, but it has taught much in England ; 
 and if graduated in proportion to capacity, it would have the 
 farther advantage of acting as a very powerful stimulant to the 
 use of the other means of progress. 
 
 But there is another ground on which we must limit our 
 recognition of the suffrage as an educational institution. In a 
 manner closely analogous to that in which it belongs to the 
 electoral or representative system, an educational character 
 might be ascribed to every other institution of the social 
 organism. The legislature which enacts positive law, the court 
 which administers it, the executive which enforces it in civil, 
 and, above all, in criminal cases, like the laws which they enact 
 
OF THE SECOXDAEY SOURCES OF POSITIA'E LAW. 
 
 383 
 
 and administer and enforce, are all of tlieni " sclioolmasters to 
 bring ns nnto Christ." ^ The State, as a Avhole, like the life of 
 man in its highest and widest conception,- is a teaching institu- 
 tion, and is thus the source of that positive law, of which it is 
 likewise the fullest and most perfect expression. The apparent 
 loetitio ]principii of which we are guilty in thus viewing positive 
 law, or the state which is its embodiment, as its own source, 
 arises only when we lose sight of the distinction which we 
 formerly made between jurisprudence as a special science, and 
 jurisprudence as a branch of the science of life. Viewed as a 
 special science, law does not teach, but only gives freedom to 
 learn. It is thus only mediately, through its participation in 
 the wider objects of life as a whole, that positive law contributes 
 to its own formation, and, as we have likewise seen, to its own 
 gradual and approximate, though not in this world, probobly, to 
 its ultimate annihilation.^ 
 
 II. The means hy v:Jiich the community dcxeloijs its rational 
 loitl. 
 
 (a) Individual and class effort. — Under this head a question 
 deeply affecting the duties both of individuals and of classes 
 forces itself on our consideration. For some time past we have 
 been much in the habit of consoling ourselves for the lack of in- 
 dividuals of unusual insight or strength of character, by the notion 
 that though government may still demand some sort of conscious 
 
 1 Gal. iii. 24. 
 
 2 That God's dealings with man, not in time only, but in eternity, are wholly 
 educational, was a favourite thought with the late Mr. Erskine of Linlathen, and 
 he has worked it out in many directions in the profound and eloquent papers 
 which he has left behind him—" The Spiritual Order, and other papers, selected 
 from the MS. of the late Thomas Erskine of Linlathen." 
 
 3 Ant , Book II. Cap. 1. 
 
384 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 and organized superintendence, progress, for the future, may 
 be entrusted to a certain divine, though blind, instinct which 
 inspires the masses. Acting on the theory that " The individual 
 withers, and the world is more and more," not statesmen and 
 politicians only, but the educated classes, as a whole, have 
 recently exhibited a tendency to abdicate their traditional 
 leadership, and to make a merit of drifting," as it is called, or 
 indolently floating on the current which they had formerly 
 striven to direct. Sensible that the impious denial of the 
 universality of reason must be abandoned — recognizing the fact 
 that the rule of an exclusive oligarchy was unjust, and for the 
 future impossible, and dazzled by the attraction of extreme 
 opinions, they have seen no resting-place between the untenable 
 position which they quitted, and a fatalistic acceptance of the 
 dictation, and as a practical consequence of the dictatorship, of 
 the numerical majority. Vox pojjuli vox Dei has been accepted, 
 not as a recognition of the fundamental rectitude of mankind, 
 but of the infallibility of the portion of mankind which has 
 always been, and must always continue to be, the most fallible. 
 It is the same error which I pointed out^ in another connec- 
 tion, as having been committed by those anthropologists who 
 seek to derive their knowledge of humanity from a study of the 
 imperfectly organized, the partially developed, or the lapsed 
 races of mankind, Avitli this difference — that the proposal here is 
 to ascertain the opinions of those most likely to be mistaken, 
 not with a view to their possible rectification, or even to the 
 gratification of our curiosity, but in order that we may adopt 
 them for the guidance of our conduct and of theirs. In point of 
 
 1 Ante, Book I. Cap. IV. 
 
OF THE SECOXDAEY SOUECES OF EOSITRT: EAAV. 385 
 
 consistency, too, the advantage is on the side, not of the poli- 
 ticians bnt of the philosophers ; for the numerical majority of man- 
 kind consists, and always has consisted, of savao-es. It is to 
 them then, and not to the more ignorant class in European 
 countries, that we must look for our instructors. It is they, and 
 not our householders, who are the true lorohtarii, and, if the 
 numerical theory is to be adhered to before we drain it to the 
 dregs, we shall have to extend our suffrages and our plebiscites 
 vastly beyond their present limits. 
 
 But this theory, some may perhaps still be tempted to allege, 
 is involved in the doctrine, that though man be fallible, and race 
 smk before race, 'mankind, as a wdiole, is divinely guided to the 
 goal of existence, and the final object of creation is secure. 
 For this reason it seems necessary that I should analyze it with 
 what, to some may appear, superfluous care. 
 I The theoretical answer to the belief in the xoxfoj)!'!!, then, as 
 the true expression of the rational Avill, or rather the theoretical 
 means of siftincr the truth from the error wdiich it contains, is 
 not far to seek. It is furnished by a fact on which I have 
 already dwelt sufficiently — viz., that though God has endowed 
 all men equally Avith reason. He has not endowed them all with 
 reason ec^ually ; and that, as duties and gifts are reciprocal. He 
 cannot have intended to absolve the recipients of His greater 
 bounty from corresponding responsibilities. The promise of 
 divine Guidance, which the instincts of our nature affords us, is 
 not a promise of guidance without human means ; and the human 
 means which God has appointed for this end are — leadership 
 
 proportioned to power and reason, and obedience proportioned to 
 
 2 B 
 
386 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 immaturity, imbecility, mediocrity, and irrationality.^ Neglect 
 of the means, it is true, will not arrest the laws of nature, or 
 prevent the attainment of general or final ends. Winds will 
 blow, and tides will run ; ships, as a rule, will reach their ports, 
 and mankind will " rejoice on the shore." But individual ships 
 will perish, and individual men and nations will weep; and this 
 equally whether their officers neglect to issue the requisite 
 orders, or their crews refuse to obey them. No providential 
 guidance of wind or tide, no blind inspiration of the crew, will 
 supply the place of honest conscious effort, or loyal obedience, 
 as his duty may be, on the part of any single member of the 
 crew. But the consequences of negligence will not be equal, 
 either in all or to all. On the contrary, it will increase and 
 diminish in exact proportion to the importance or insignificance 
 of the individual, from the captain to the cabin boy. Power 
 and reason will be the measure of responsibility — a measure 
 which will certainly be applied to it here or hereafter. 
 
 The de facto principle, properly understood, is thus our answer 
 to the fatalism which has been ignorantly urged against it ; and 
 this just as much where fatalism springs from democratic as 
 despotic roots. The exclusive rule of the many gains no more 
 by it than the exclusive rule of the few ; but it surrounds the 
 proportional rule of all with the halo of divine authority. 
 
 Such, then, I take to be the theoretical response which it 
 behoves us to return to the claim of the body politic to march, 
 like St. Denis, with its head in its teeth. Let us now see to 
 what extent experience warrants the experiment. Thucydides 
 
 1 "The fountain head of all life, and the only possible human cause of any 
 development, is conscious personality." Bunsen's G'oc? in History, vol. i. p. 50. 
 
or THE SECOXDAEY SOURCES OF POSITIVE LAAV. 387 
 
 said of llie Athenian state, in the days of Pericles, that, though 
 nominally a democracy, it was in reality a government adminis- 
 tered by the first man. I believe he voiild have nttered no 
 paradox, if he had said that on this account alone did it enjoy 
 its short and precarious existence, even in name. But thougli 
 the appearance of such a leader as Pericles does not often occur, 
 and even the approach to democracy which Thucydides com- 
 memorates has rarely been recorded by historians, there never 
 has been a generation of civilized men, particularly if it was 
 at all a progressive generation, to which a body of persons, few 
 in comparison with the whole community, did not fill the place 
 which Pericles did to the Athenians at the commencement of 
 the Peloponnesian War. If any particular period of history be 
 mentioned, we can, for the most part, tell the names and count 
 the numbers of those who, in any individual state, directed the 
 current of thouo-ht and action. True it is that to those of 
 whom history takes note there would fall to be added, in order 
 to sum up the leaders of a whole generation, a still greater 
 number of persons whose activity was not less precious, but 
 who, partly from accident and partly from choice, have been 
 covered by a privacy Avhich history endeavours to penetrate 
 in vain. Still, if both classes were reckoned together, the 
 tale would be inconsiderable,^ not only as compared with the 
 whole community, but with those who hold public offices, or 
 who sit in the Legislature. The number of names in Smith's 
 Dictionary of Biography probably does not exceed the number 
 3f officials in the Eoman Empire at any one time from the age 
 )f Augustus to that of Constantine, and certainly does not equal 
 
 ^ Coleridge's Statesman s Manual, pp. 214, 215, Pickering's ed. 
 
•388 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 the number of inhabitants of a very moderately- sized city; 
 and yet it contains the name of every person who is known 
 to have influenced thought and opinion in the ancient world, 
 together with the names of many who certainly did not. If the 
 latter be put against the great names that have perished, per- 
 haps the whole number of names which it contains may pretty 
 nearly correspond to the= whole number of really influential men 
 and women who lived during the whole period of history which 
 the work embraces. But granted, it will be said, that the few 
 have led the many in times past, does that fact afford any proof 
 either that they will continue to lead them, or that they have 
 led them forward ? I answer that it affords a good deal of proof 
 both ways, because, first, there is always much reason to believe 
 that what has continued long, and been often repeated, depends 
 on laws which are permanent ; and, second, permanent laws, 
 being God's laws, the result of their action, by whatever means, 
 will be progress ultimately and on the whole. 
 
 But there is another consideration than that of the number of 
 actors by which w^e may perhaps come nearer to a solution of 
 this question. Though the history of the world presents to us 
 the phenomenon of a flowing tide, it is a tide in which the 
 receding alternates with the advancing wave. Let us take such 
 of the advancing waves as are historically known to us, and try 
 whether we can so analyze them as to discover whether the 
 influences which moved them onwards have been supplied by 
 conscious individual effort, or by those unconscious general 
 impulses to wdiich w^e at present trust. 
 
 The greatest of all onward m.ovements, and the most popular 
 in the sense of that by which the people w^ere the greatest 
 
OF THE SECOXDARY SOURCES OF POSITIVE LAW. 
 
 389 
 
 gamers, surely was Cliristianity. Did Christianity, then, spring 
 up as a spontaneous popular growth, or was it laboriously sown 
 and watered with the blood and tears of a sinde Founder ? We 
 are often told that great men are mere exponents of a spirit 
 which is struggiiDg for utterance, that they light a train which is 
 laid. But such expressions are in general only acknowledgments 
 of our ignorance of hoAv the spirit was infused, or the train was 
 laid. In the case of this greatest of all men, and of all popular 
 leaders, we know, at all events, that He struck no chord that was 
 ready strung. On the contrary, the many of all ranks " rejected 
 and despised " Him, and after His marvellous work was ended and 
 His teaching was complete. His whole adherents assembled " in an 
 upper room." 
 
 But the origin of Christianity, it may be urged, was miracu- 
 lous, and affords no analogy by which we may judge of the action 
 of human causes. That the character of its Founder can be mea- 
 sured by no human standard I fully admit, though I believe that 
 much of the benefit of Christianity is lost by His activity being 
 treated as an exception to, in place of an ideal instance of, the 
 general action of Divine grace. But I am quite willing to peril 
 this aroTiment on what are usualh^ reirarded as natural occurrences. 
 
 O I/O 
 
 By Protestants, to whom I mainly address myself, the Pieforma- 
 tion will be admitted to have been the most unequivocal step in 
 advance that mankind has made since the spread of Christianity. 
 Now whatever phase or period of the Fieformation we select, 
 in whatever country we study it, I think we shall find that it was 
 traceable to individuals. In England, in the thirteenth century, 
 it received its first impulse from Wicldiffe and Chaucer, and it 
 was favom-ed by the King and John of Gaunt. In their own 
 
390 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 way, possibly, Occam and Greatliead (Gros-tete) did even more. 
 In many places, no doubt, " the common people beard it gladly;" 
 but it was preached to them by a few who were not only specially 
 gifted, but had been specially instructed. It was not for a couple 
 of centuries later that it fully took hold of the masses ; and even 
 then by no means spontaneously. In Bohemia, it was Wick- 
 liffe's writings and example that inspired, not the masses, but 
 John Huss and Jerome of Prague. With them the movement 
 was born, and with them, substantially, it died. In the 
 fifteenth and sixteenth centuries the Eeformation became a 
 popular movement, if ever there was one ; but it did not even 
 then begin with the people, and, in so far as it was an advance 
 in thought, it scarcely made the slightest progress after it passed 
 out of the hands of its originators. In Germany, in Switzerland, 
 in Scotland, it remained stationary at the points at which Luther 
 and Calvin and Knox left it, or it went back. Even Melville's 
 teaching was narrow and retrograde" compared w^ith Knox's ; and 
 during the periods when, and in the directions in which, it 
 passed into popular hands, it strikingly degenerated. German 
 Anabaptists, English Puritans, and even Scottish Covenanters, 
 though more than justified by the illiberality of their opponents, 
 did nothing but exaggerate the errors to which Protestantism 
 was prone, and occasion those schisms, dissents, and disruptions 
 by which both religious and civil life have been rent asunder. 
 
 Again, take the political reformation, the monument in favour 
 of universal liberty. Like the religious reformation it began in f 
 this country in the thirteenth century, and sprang from the 
 very same roots — it was the secular side of Wickliffe's teach- 
 ing, and Wickliffe, and Chaucer, and J ohn of Gaunt and Piers 
 
OF THE SECOXDAEY SOUECES OF POSITIVE LAW. 
 
 391 
 
 Ploughman, or Plowman — wlio was no ploughman at all — were 
 its first apostles. In the great transaction at Pamymede, it is 
 true, no single name is very conspicuous. IMore than almost 
 any other historical event, it possessed the character of common 
 action ; hut then it was the action of the few, not of the many, 
 and it stands out as a conspicuous example of a gift of liberty 
 by an oligarchy to a whole people. It was otherwise with the 
 next great step in the development of our political liberties. 
 The more closely the reign of Henry III. has been studied in 
 recent years, the more has it appeared that the representation of 
 the Commons is traceable to the personal insight and activity of 
 Simon de ]\Iontfort.i 
 
 But Jack Cade's insurrection, you Avill say, centres in his 
 name, as unmistakeably as the rising in Henry III.'s day 
 does in that of Simon de Montfort, and if the latter be called 
 the father of the commons, the former with ecj_ual reason may 
 be called the father of communism, unless indeed his distin- 
 guished predecessor Wat Tyler have a better claim to it.- I am 
 far from desirincr to rob either of them of that honour. Mobs 
 have their leaders as well as armies ; error has its apostles as 
 well as truth : weeds may be sown as well as grain : the dema- 
 gogue and the fanatic are individuals, as well as the sage and 
 the saint. AAliat I maintain is that weeds will sow themselves, 
 
 ^ Pauli, Gescliichte von England, vol. iii. p. 488, ct seq. 
 
 2 The best claim of all is probably that of John Ball, the vagabond priest, whom 
 the people took out of the archbishop's prison, and put forward as their spokesman 
 in Wat Tyler's insurrection, in 1381. From his sermon, as sketched by Dr. Pauli, 
 it would seem that he laid claim, on behalf of his constituents, to absolute 
 eqimlitj—Freiheit und Ghichheit— in the sense of 1789. His cry was uEqiia 
 libertas, eadem noMHtas, jMr dignitas, similisque iM&stas : 
 
 Whan Adam delfte and Eve span, 
 
 Who was then a gentleman ? 
 
 — Pauli, id sujf. iv. 527. 
 
392 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 but grain will not — at least not to any useful purpose ; and that 
 in like manner, though error may be planted and cultivated, 
 and retrogression may thus be precipitated by individual effort, 
 it is not dependent on it, whereas truth and progress without it 
 are impossible. 
 
 Of this we find a conspicuous example in that remarkable 
 movement which has so deeply affected the life of our own time, 
 and which may in some respects be traced to the free institu- 
 tions of our own country, and the liberal aspirations of our 
 race,' — I mean " the Eevolution." 
 
 Towards the end of last century this movement was ushered 
 in and welcomed by a galaxy of talent and of virtue, as great as 
 is to be found in most periods of history. Washington and 
 Lafayette and Necker do not perhaps rank very high amongst 
 the intellectual heroes of humanity, but their characters were 
 an entire guarantee for the purity of their intentions; and 
 when we remember the circumstances in which they acted, 
 and recall the doctrines which they really taught, we have 
 no difficulty in accounting for the indiscriminating sympathy 
 which they experienced even from men like Edmund Burke, 
 and Immanuel Kant. In America, down to the presidency of 
 J efferson, and in France, till the meeting of the National Assem- 
 bly, the Eevolution is chargeable with no serious error. Its doc- 
 trines, as understood and acted on by its promoters, amount to 
 nothing more than a recognition of truths which we ourselves 
 have found to rest firmly on the basis of nature. But these 
 doctrines unhappily, even in the state documents which were 
 issued, were not stated w^ith such perspicacity^ as to guard them 
 
 1 Ante, p. 312. 
 
OF THE SECOXDAEY SOURCES OF POSITIVE LAAV. 
 
 393 
 
 against the errors wliicli the writings of Eousseau and others 
 had sown in the public mind ; and no sooner did the Ee volution 
 pass out of the hands of its originators, and become a really 
 popular movement, than this very remarkable phenomenon was 
 exhibited. The truth was received with comparative indiffer- 
 ence, and has often since been entirely lost sight of, the error 
 was hailed with shrieks of enthusiasm, and has been clung to 
 ever since wuth fanatical devotion. The reason, of course, was 
 that the error appealed to the superficial and immediate, the 
 truth to the deeper and fundamental instincts of humanity. 
 Liberty really meant la carriere omcrte aux talents, "the tools 
 to him that can handle them," and so it was preached at first. 
 But what was that in comparison with the glad tidings that 
 came afterwards, that men for the future were to handle no 
 tools at all ? Equality again was equality before the law. But 
 that was no very dazzling boon ; for, though the law might give 
 no heed to who a man was, it was much to be apprehended 
 that it might take cognizance of what he did, and failed to do. 
 Equality before the tax-gatherer was another phase of equality 
 before the law ; but that the tax-gatherer should knock at all 
 doors alike, was a mere mockery to him who had got hold of 
 the liidier doctrine that he should knock at all doors but his. 
 Even fraternity was a doctrine which cut both ways ; and which 
 required to be defined in a liberal sense. But absolute equality 
 — meaning thereby a levelling-down to the leveller's own level, 
 and a fair division for the future, not of work but of wages — 
 that was what was wanted. And such accordingly was the con- 
 struction which the inspiration of the many, as expressed in the 
 " Declaration of the Eights of Man," put on the equivocal words 
 
394 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 with which Washington and Adams, to the great regret of the 
 latter/ had permitted Jefferson to head his "Declaration of 
 Independence." It is now eighty-two years since the revolu- 
 tionary doctrine received this popular exposition from nameless, 
 or at least unmentionable individuals. During that long period 
 the Eevolution has had no single leader who rose above, and very 
 few who reached, the average intelligence of an educated man. 
 And the consequence has been that, as a political doctrine, it 
 has remained absolutely stationary. Like the dynasty which it 
 superseded, it can neither learn nor forget ; and in 1872 it is still 
 muttering the shibboleths of 1789. The only approach to a 
 new idea which has come out of it, even indirectly, is the idea 
 of Csesarism, by which it has twice been suppressed; and in 
 striking confirmation of my thesis, that idea did not originate with 
 the people, but was the old idea of the latter Empire, revived by 
 two very remarkable individuals, whom the insupportable anarchy 
 under which the nation groaned called into activity. 
 
 I shall mention but one other instance of a progressive, and 
 with us now happily a popular doctrine, the origin of which was 
 not popular — the doctrine of Free Trade. The honour of its dis- 
 covery and scientific enunciation, as a legitimate inference from 
 the facts of nature, belongs to the occupant of a university 
 chair. Eveu its popular triumph in this country was effected 
 mainly by the personal efforts of two individuals of unusual 
 energy and oratorical power. In France its partial adoption was 
 due to one whom " the Eevolution" cannot mention without exe- 
 cration ; " the Eevolution" has again repudiated it ; and in Am erica- 
 it continues to be opposed by the extreme representatives of 
 
 1 Aiite, p. 312. 
 
OF THE SECONDAEY SOUECES OF POSITIVE LAW. 
 
 395 
 
 popular opinion. The only novel and fruitful application of the 
 principle of fraternity, has tlius been condemned by its most 
 boisterous advocates of that principle. 
 
 Greater than even the impetus of free trade has been that 
 which material progress has derived from mechanical invention, 
 and no one I fancy will question that invention is the work of 
 individual effort. 
 
 But I positively must not multiply instances, or dwell longer 
 on a theme which manifestly admits of indefinite expansion. 
 Enough, I hope, has been said to convince my readers, that 
 whilst experience and reason concur in assuring us that the voice 
 of man is the voice of his Maker, and thus, in one sense, vox 
 loopuli vox Dei is the deepest as it is the oldest^ of all political 
 truths, there is another sense, and a far commoner one, in which, 
 as scientific jurists, we are bound to dismiss it as the shallowest 
 and most pernicious of errors. 
 
 *' Vox populi vox Dei," do they say ? 
 
 Alas, quite otherwise ! — and he who first 
 
 Mouthed the crude sophism sowed a seed accurst, 
 
 To choke the growth of Truth, and bar man's way 
 
 To Freedom with rank jungle — fruitful but 
 
 Of rottenness. All history proves this true : 
 
 God speaks not by the Many, but the Few. 
 
 And in all ages, — since "The People" shut 
 
 "With the blank seal of death the inspired lips 
 
 Of Socrates, — since that yet darker hour 
 
 When blood-stained Calvary owned their "sovereign power," 
 
 And nature groaned in earthquake and eclipse — 
 
 Has that fierce Voice at some loud babbler's nod 
 
 Been lifted in blind rage against the Voice of God. ^ 
 
 {b) Social Organization. 
 
 ^ Bunsen says that it had found articulate utterance in the Chinese laj-s of the 
 earliest period, God in History, i. p. 252. 
 ^ *' Spindrift," hy Sir J. Noel Paton. 
 
396 OF THE SECOND AKY SOURCES OF POSITIVE LAW. 
 
 In studying the objects of natural law, we have seen^ that 
 order, though not indeed the general object in itself, is the means, 
 sine qua non, to the attainment of that object, which is liberty. 
 We now encounter a special illustration of this general relation . 
 in the fact that the development of the rational will, in virtue of 
 wliich a community is autonomous, is dependent on, and propor- 
 tioned to, the perfection of its organization. In the last section 
 I endeavoured to shew that the formation and development of 
 the rational will is the work of conscious effort, and not a spon- 
 taneous growth of unconscious and self-directing influences. It 
 is obvious, then, that like other works, this work will have the 
 best chance of being performed well when it is portioned out to 
 the special labourers, or classes of labourers, who can best perform 
 it, according to their respective capabilities, and not when, 
 capable and incapable alike, they all set about it indiscriminately 
 without order or method. ISTow, with rare exceptions, of which 
 I shaU speak presently, such portioning out is effected by the 
 natural division of society into what are called classes or orders, 
 which^ for purposes of social and political work, exactly correspond 
 to its division into professions and handicrafts for the performance 
 of its other functions. If castes, by wdiich men are deprived of 
 each other's aid, be an impediment to progress, classes, by means 
 of which they are enabled to avail themselves of each other's 
 qualities, and supply each other's defects, are in both respects 
 precisely the reverse ; and the cry for the abolition of class dis- 
 tinctions must be numbered with the other hallucinations of false 
 liberalism.^ The class to which a man belongs is merely the more 
 
 1 Ante, p, 291. 
 
 2 ' ' Take but degree away, untune that string, 
 
 And, liark, what discord follows ! 
 
 — Troilus and Cressida, Act i. Scene iii. 
 
OF THE SECOXDAEY SOUECES OF POSITIVE LAAV. 
 
 397 
 
 immeiliate sphere in wliicli lie is called to work, for tlie time 
 being. So far from its being requisite that he should remain 
 stationary in one class — the very highest test of the usefulness 
 of a citizen will often consist in his having passed successively 
 upwards, through every class from the lowest to the highest ; 
 wlhlst his inverse progress downwards will be the surest sign 
 of uselessness. But at each stage of his progress, in the one 
 direction as in the other, his value will in no small measure be 
 proportioned to the completeness Avith which he enjoys the 
 privileges and shares the responsibilities of the class to which he 
 belongs, for the time being. The only natural limit to social 
 promotion, either in extent or rapidity, consists in the inability 
 of any but the ditc of mankind adequately to perform the duties 
 of any class except that in wliich they are born, or for which 
 they are educated, or to perform them without long practice. 
 Each step, whether upwards or downwards, demands a new 
 education, a process both of learning and unlearning, of which 
 few men are capable; and unless this new education be complete, 
 or at least as complete as the former one, it is obvious that both 
 the community and the individual will be losers by the change. 
 The point of transition is always a period of peculiar danger. 
 The notion prcA'alent in free countries that every man who is born 
 below the highest level ought to rise, is thus an error ; though it 
 is not nearly so fatal an error as the notion prevalent in demo- 
 cratic countries that every man who is above the average level 
 ought to fall To the "levelling down" process, in addition to 
 the consideration that it is a retrograde step on the part of the 
 society which performs it, by means of which it loses ground both 
 absolutely and relatively to surrounding nations, there is this 
 
398 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 farther objection as regards the individual, that men adapt them- 
 selves far better to the duties of the class above them than to 
 those of the class below them. Even where the descent can be 
 ascribed neither to the fault of the individual nor to the injustice 
 of others, it is always a misfortune over which few men can 
 triulnph. 
 
 (c) By the selection, and setting cqjart, of exceptional workmen 
 for exceptional ivork. 
 
 Though the classification of society, which naturally results 
 from the unequal distribution of individual gifts, if not artifi- 
 cially interfered with, will effect such an amount of division of 
 labour as to supply the conditions of orderly, and as such, to 
 a certain extent, progressive existence, it does not exhaust the 
 means of progress which every society has at its disposal. 
 More or less every man has his specialty, in the sense of a kind 
 of work for which he is more suited than for any other. But 
 the difference between normal and exceptional men, in addition 
 to a difference of power, lies also in this, that the specialties of 
 the normal man belong to many, whereas the specialties of the 
 exceptional man belong to few. It is obvious, then, that the 
 community, whilst it suffers but slightly from the mal-selection 
 or neglect of labour in the one case, will suffer very seriously 
 from the same causes in the other ; and hence the necessity for 
 its active interference to secure its extraordinary resources. It 
 is true that men who have strongly marked specialties will, in 
 general, not only manifest them, but insist on following them ; 
 and thus their selection may be said to be spontaneous. But 
 men often deceive themselves, and it is therefore not surprising 
 that they should deceive others, particularly with reference to 
 
OF THE SECOND AEY SOUECES OF POSITIVE LAW. 399 
 
 subjects which, ex hy]jothcsi, can be familiar to few. Hence the 
 necessity for the community adopting every available test of 
 capacity before appointing individuals to the discharge of its less 
 usual duties. The necessity, when such men are selected, of 
 setting them apart and purchasing their services, for the most 
 part for life, arises from the fact that we cannot trust to their 
 being maintained by the direct and immediate sympathy of the 
 community. The mercantile press, we have seen, can render 
 them no aid ; and it is impossible that they can be popular 
 teachers of what must, necessarily, be unpopular. 
 
 Tlie Professoriate. — The institution by means of which ex- 
 ceptional work of this kind has usually been secured is the 
 University, viewed not as a means of disseminating, but of ad- 
 vancing knowledge ; and the of6.ce by which this is effected is 
 the Professoriate. 
 
 It is impossible to imagine any error more fatal to the life of 
 the State, and, as such, more discreditable to a statesman, than the 
 error of regarding the University as a mere teaching institution 
 — except, indeed, the error of regarding it as a mere examining 
 board, and making no provision for the existence of the know- 
 ledge which it is to measure. The life of the community, like 
 the life of the individual, nay, like life itself, exhibits but the two 
 phenomena of progress and retrogression. Stationary existence 
 is the antithesis of existence altogether, as we know it. A 
 state then which makes no provision for advancement, accepts — 
 not permanence, not even continuous material prosperity — but 
 retrogression ; the loss first of spiritual and then of physical life, 
 for the spirit is the salt that keeps the body from rotting. ]N'ow 
 the University is the State in the attitude of a seeker after 
 
400 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 truth, of an aspirant to new and higher life of a claimant for 
 more reason and more power, and the organ in virtue of which 
 the University seeks to gratify these aspirations of the State is 
 the Professoriate. 
 
 To the Church the theological department of the University, 
 acting by means of the professoriate as an organ of scientific 
 investigation, stands precisely in the same relation in which its 
 secular department stands to the State. The recognition of 
 dogma, which we have indicated as inseparable from the 
 Cliurcli as a teaching institution, here becomes altogether out of 
 place. The function of an academical faculty of theology, like 
 that of an academical faculty of philosophy, is simply to discover 
 the truth, and thus they differ not in their object, but in the 
 means which they employ. 
 
 Of the dependence of the life both of Church and State on the 
 vigour and activity of a scientific professoriate, the existing 
 condition of the two leading nations of continental Europe 
 furnish striking examples. 
 
 During the last half century, the progress, both absolute and 
 relative, of the States of North Germany has been prodigious. 
 First their intellectual and then their material supremacy has 
 been reluctantly acknowledged ; and the centre of power has been 
 shifted from Paris to Berlin. And simultaneously with this acces- 
 sion of life, the activity and vigour of the German professoriate 
 has been beyond all parallel, not only in any other country, but in 
 any other period of history. In Italy, in Switzerland, and even 
 in Spain, it has rendered, and I believe is rendering, important 
 services to progress ; and the same, I hope, may be said of Scot- 
 land. But in no country in the world was such an army ever 
 
OF THE SECOXDAEY SOUECES OF POSIim: LAW. 401 
 
 armed and sent fortli for the simple conci_iiest of truth as in 
 modern Germany, and in no country haA^e such A'ictories ever 
 been gained over error, or knowledge been more speedily converted 
 into power. In France, on the other hand, after the ancient 
 Universities were swept into the vortex of centralization, and 
 the State had become a vast examinino- board — the Faculties 
 once the nurseries of science degenerated into mere cramming 
 schools, and the scientific professoriate ceased to exist, — the 
 very name of the office becoming synonymous with school- 
 master. The new system has been in operation for sixty years : 
 a longer period of probation than has been accorded to any 
 other institution of modern France. And now we find that 
 it is to its degrading and enervating influences that the most 
 clear-sighted of French politicians unite in ascribing the moral, 
 intellectual, and, ultimately, the material decadence of their 
 country. " The success of Germany," cries Clahe Deville, " is 
 due to the liberal oro;anization of the German universities. It 
 is science tliat 1ms vang_uisJicd I'.s" 
 
 In farther illustration of this very important subject I shall 
 quote two or three sentences from a lecture " On Teaching Uni- 
 versities and Examining P)oards," recently^ delivered by Dr. Lyon 
 Playfair — himself a high authority — to the Philosophical Insti- 
 tution of Edinburgh. 
 
 '•'Eecent events," he says,- "have strengthened the conviction 
 which De Tocc|ueville expressed twenty years ago, that there is a 
 continually increasing poverty of eminent men in France. I wiU 
 cite the evidence only of men of the highest eminence, members 
 of the Institute, or professors in the University itself. Their 
 
 1 Jan. 31, 1S72. ^ p. 8, et seq. 
 
 2 c 
 
402 ■ OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 opinions may be taken as answers to tlie question whicli forms 
 the title of Pasteur's pamphlet : * Pourquoi la Trance n'a pas 
 trouve cl'hommes superieures au moment clu peril?' That is a 
 grave question for France, and its best sons are trying to answer 
 it ; but it is melancholy to see the assaults that they are obliged 
 to make on a University which, in its days of independence, used 
 to be hailed as ' the fountain of knowledge,' the ' tree of life/ 
 and the ' candlestick of the Lord' — terms which were accorded 
 by the enthusiastic admiration of all countries. First, let Pasteur, 
 whose eminence I need not advert to in an academic assembly, 
 answer for himself 'While Germany was multiplying its 
 Universities, and establishing among them a most salutary emula- 
 tion ; while it was surrounding their masters and doctors with 
 honour and consideration ; while it was creating vast laboratories 
 furnished with the best instruments. Prance, enervated by revolu- 
 tions, always occupied with sterile aims at a better form of 
 government, gave only a heedless attention to its establishments 
 of higher education. The unanimity is surprising with which 
 eminent men ascribe the intellectual paralysis of the nation to 
 the centralization of administration and examination by the 
 University of Prance." Dr. Playfair then cites the passage from 
 Claire Deville quoted above, and thus proceeds : "Dumas, one of 
 those eminent men in Prance, formerly a minister, and for 
 years actively engaged as one of the eight inspectors of superior 
 instruction in the University, gives his testimony as follows : — 
 'If the causes of our marasmus appear complex and manifold, 
 they are still reducible to one principle, administrative centraliza- 
 tion, which, applied to the University, has enervated superior 
 instruction.' He proceeds to show that municipalities and 
 
OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 403 
 
 provinces lose all interest in their colleges and schools wlien 
 these are deprived of their powers of self-government ; and when 
 their instruction and their examinations are regulated from the 
 centre : and he contrasts the French system with that of other 
 countries. 
 
 " Dumas then indicates what is necessary for the restoration of 
 France to her position among nations — 'restore to our Universities 
 under the surveillance of the State, when connected Avith State 
 grants, the independence vdnch they enjoyed before the Eevolu- 
 tion. The great men of those times are glorious historical 
 witnesses of the vigour of the studies and of the discipline effected 
 
 by the liberty of education enjoyed by our fathers I plead 
 
 for the autonomy and liberty of our Universities.' Quatrefages, 
 General ]\Iorin, and others, express themselves in nearly similar 
 terms. Lorain, Professor in the Faculty of ^Medicine, gives 
 
 testimony, if possible, still more emphatic He tells us 
 
 that a central university professing to direct everything, really 
 directs nothing, but trammels all efforts in the provinces. 
 'Originality in the provinces is destroyed by this unity.' 
 
 "After c^uoting the opinions of the commissioners of 1870, as 
 to the want of unitv of de^Tees in France notwithstanding: the 
 unity of examination, he sums up the demands of reformers in 
 the folloAving words : — 'What Ave demand is not new ; it is simply 
 the return to the ancient system — to the tradition of the ancient 
 Universities. We demand the destruction of the University of 
 France, and the creation of separate Universities. That is our 
 programme.' 
 
 " I have hitherto quoted the opinions of men of science, but I 
 might add to them those of a long list of politicians and men of 
 
404 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 literature^ from Talleyrand, Turgot, De Tocqiieville, Prevost- 
 Paradol, down to tlie present day; but to economize time I must 
 content myself with two more quotations. In a letter to myself, 
 Michel Chevalier, after stating that the liberalization of the 
 University frequently engaged the attention of the Senate during 
 the last Empire, sums up his opinion of the necessary reforms as 
 follows : — ' Much more of autonomy in our Faculties than they 
 have at present, even for those which are supported by the 
 State ; a large vote for their maintenance in the budget ; liberty 
 for individuals and associations to found rival faculties ; reser- 
 vation to the State under equitable guarantees of the right of 
 granting degrees, as long as there are degrees.' And, finally, to 
 quote a dis.tinguished clerical opinion (I give the words of 
 Ptenan) : ' The system of examinations and competitions, on the 
 great scale, is illustrated in China, where it has produced a 
 general and incurable senility. In France we have already gone 
 far in the same direction, and that is not one of the least causes 
 of our abasement. The paltry Faculties created by the first 
 Empire in no way replace the great and beautiful system of 
 rival Universities, with their separate autonomies — a system 
 which all Europe borrowed from France, and which all countries 
 but France have preserved. We must create in the provinces 
 five or six Universities, each independent of the other.' " 
 
 One of the greatest political evils resulting from the absence 
 of a secular learned class in France, has been that the priest and 
 the demagogue have come face to face, and that popular reason 
 has by no means been advanced by their altercations. " Hither- 
 to," says M. Eenan, " France lias known but two poles — 
 Catholicism and democracy. Oscillating unceasingly between 
 
OF THE SECOXDAEY SOURCES OF POSITIVE LAW. 405 
 
 the one and the other, she is nevev at rest. In order to do 
 penance for her demagogic excesses, France abandons herself 
 to the narrowest Catholicism ; and in order to react against her 
 narrow Catholicism, she throws herself into the arms of a false 
 democracy. She onght to do penance for both of them at once." ^ 
 
 On the other hand, however, the experience of Germany re- 
 minds ns that the political action of the learned class, as such, 
 must be indirect. Direct legislation does not belong to those 
 who must, as a rule, dwell much apart ; and hence the failure 
 of the " Frankfort Parliament of Professors," in 1848. 
 
 The external requirements of an efficient professoriate, in so 
 far as the community can secure them, seem to be these — 
 
 (a) Careful selections of its members. This raises, at once, 
 the difficult and as yet unsolved question of the best form of 
 patronage — the only clear point being that the selection cannot 
 be by examination, the requisite qualities being of a hind tliat 
 cannot be thus tested. Probably the " Testimonial" system, with 
 all its objections, combined with the patronage either of the 
 Crown, or of a jury in which impartiality is more important 
 than knowledoje, is all that can be made of it. 
 
 {h) Leisure, combined with public teaching, to the extent of 
 bringing and keeping its members in contact with the best 
 minds of the rising generation. 
 
 (c) Such dignity and independence of position as to protect 
 its members from impertinent intrusion, or popular dictation. 
 
 (d) Such publicity as to expose them to criticism. 
 
 (e) Such competence of external means as to free them from 
 the temptation of accepting other literary and scientific occupa- 
 
 1 La Ecformc, p. 107. 
 
406 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 tions merely for the sake of remuneration : to enable them to 
 associate on easy terms with the representatives of their re- 
 spective departments in other schools of learning, at home and 
 abroad : and lastly, to diminish the temptation, always great, to 
 seclude themselves from the general society of the places in 
 which they reside. 
 
 (/) Such moderation of external means, and modesty of 
 position, as to take away the inducement, and free them from 
 the duty of taking a prominent part either in general society, or 
 in public life. 
 
 III. The means hy luliicli the community ascertains its rational 
 luill. 
 
 In this momentous problem of the science of positive law, it 
 can scarcely be said that we have, as yet, got beyond the region 
 of negative results. Our analysis of the rational will of the 
 community, as the primary source of positive law, has shown us : 
 — 1st, That, inasmuch as that will resides, to a greater or less 
 extent, in every sane member of a civilized community, it cannot 
 be ascertained except by an appeal to them all. 2nd, That in- 
 asmuch as that will does not reside in each member of the com- 
 munity in an equal degree, it cannot be ascertained by an appeal 
 to them all as equals. 
 
 The first of these propositions negatives the principle of ex- 
 clusiveness on which despotic and oligarchic theories of legisla- 
 tion are founded ; the second negatives the principle of equality, 
 on which democratic theories of legisktion are founded. We 
 have thus two danger-signals — beacons placed by nature herself 
 — on the opposing rocks between which our course must lie. 
 But they afford little indication of the manner in which we musti 
 
OF THE SECOXDAEY S0UECE3 OF POSITIVE LAW. 407 
 
 steer tliroiigli the shifting currents of irrationality and passion 
 by Avhicli so many individual states have been swept along to 
 destruction, and civilization itseK has so often seemed in danger, 
 for a time. Mainly, of course, the problem belongs to the 
 objects of positive law, depends on circumstances of time and 
 place, and does not admit of any permanent or general solution. 
 But let us try whether, by looking into the phenomena which all 
 society presents, we may not, from the side of nature, succeed in 
 fixing, if not another light-house, at least another permanent 
 buoy. 
 
 {(') Tlic amount of organizatio-ii requisite for the asccrtaiirnicnt 
 of tlie rationo.l vsill, u:ill Ic iii a/ii inverse ratio to the amount of 
 direct 'personal contact Kitli each other, on the part of the indi- 
 viduals lehose rationed will is to he ascertained. 
 
 Where individuals are brought into direct personal contact, 
 their equalities necessarily assert themselves. The stronger 
 impose their laws on the w"eaker: and as strengch and reason 
 ultimately coincide, the wise and virtuous prevail over the foolish 
 and the Avicked. " A fair field and no favour," is all thatEeason 
 demands to make her voice heard, and continuous personal 
 contact will supply tliat field. Xow, in tlie family, or in a 
 community so small as to resemble a family, such contact is 
 inevitable ; and the amount of rational will which they contain 
 will, in general, be ascertained and vindicated without any organi- 
 zation beyond that which contact supplies. In the smaller of the 
 Swiss cantons, for example, the personal character and weight of 
 every individual is known and felt by every other, and little 
 artificial classification is requisite to give the community tlie 
 
408 
 
 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 benefit of the wisdom of its wisest.^ The same, in no small 
 measure, was the case in the small states of Greece, and even 
 in Eome in the earlier days of the republic ; though the legis- 
 lators of antiquity wisely supplemented this advantage by a 
 constitutional graduation of ranks. In colonies, during the 
 earlier and ruder period of their existence, the necessity for 
 artificial classification is limited by additional considerations. 
 1st, The circumstances of the case being such as to render 
 equality of condition and intelligence very much more of a 
 reality than in old countries, there is less to classify, and the 
 supremacy of reason will, consequently, be less endangered by the 
 absence of classification ; and, 2d, Families and individuals are 
 there so widely separated as to render them in a great measure 
 independent of each other — they can neither aid nor injure each 
 other to the same extent, — and the miscarriage of communal rea- 
 son, even should it occur, becomes a matter of comparative indif- 
 ference. There is a vast difference between being separated from 
 a free and independent neighbour by a couple of bricks and a 
 range of mountains. In the latter case, the problem of ascertain- 
 ing the rational will of the community has scarcely arisen, because 
 the community itself has scarcely been formed. But as its forma- 
 tion progresses, the problem of the ascertainment of its rational 
 will increases at once in importance and in complexity, and the 
 law which I have enunciated comes into operation. The natural 
 agents of direct personal contact and individual rivalry, by which 
 
 ^ See a very interesting and able report on the political and industrial condition 
 of Switzerland by Mr. Gould. "Farther Reports from H.M.'s Diplomatic and 
 Consular Agents abroad, on the Condition of the Industrial Classes, kc, in Foreign 
 Countries," 1871, p. 669. 
 
OF THE SECOXDAEY SOUECES OE POSITIVE LAW. 409 
 
 its solution in small and simple commmiities is spontaneously 
 effected, gradually disappear, and tlie necessity for artificial 
 organization emers^es. 
 
 But is not the effect of progress the very reverse of vdiat we 
 have represented it ? Does it not tend to equalize individuals ? 
 thus limiting the sphere of exceptional reason ; and does it not 
 promote rivalry ? thus supplying the spontaneous means of its 
 ascertainment. Both I know to be prevalent; but both, I 
 think, are erroneous impressions. 
 
 As to the first, there is a single consideration which, apart 
 from all others, is, to my mind, decisive. 
 
 Almost every form of natural disparity may be summed up in 
 the disparity of power which men exhibit of availing themselves 
 of experience, — subjective and objective. It is out of this 
 disparity, on a great scale, that the distinction bet^Yeen the 
 historical and non-historical — the civilized and the uncivilized 
 races of mankind — has arisen ; it is to this disparity, on a smaller 
 scale, that the distinction between educated and uneducated 
 classes and individuals is traceable. Ag;ain, the difference 
 between a cultivated and an uncultivated community consists 
 mainly in the fact, that the former, beyond the latter, offers to 
 the individual the opportunity of developing this power by 
 exercise, and availing himself of its consequences. Surely it is 
 obvious, then, that the community which offers the greatest 
 opportunities, will carry the fortunate possessors of exceptional 
 power farthest ahead of those to whom such exceptional power 
 has been denied, — in other words, that education will increase 
 rather than diminish natural disparities and their conse- 
 quences. Of the reality of this fact civilized states exhibit 
 
410 
 
 OF THE SECONDAEY SOURCES OF POSITIVE LAW. 
 
 ample proofs within their own borders. Mental gifts certainly, 
 and probably even physical gifts of nature, tell more amongst the 
 educated than the uneducated classes. The difference between 
 the fortunes of a clever ploughman and a stupid ploughman is mea- 
 sured by two or three pounds of wages; but the difference between 
 a clever farmer and a stupid farmer is wealth and bankruptcy. As 
 occupations rise in difficulty, this principle makes itself more and 
 more felt ; and the object of the examination system, the latest 
 device of civilization, is to give it full play. In doing so, how- 
 ever, examinations, if successfully carried out, which they can be 
 only in a very modified sense, would only anticipate the verdict 
 of time, and prevent inevitable failure in after life; because 
 success in most of the careers to which they are applied is 
 impossible except to the able both in mind and body. Though 
 the organs called into exercise are not the same, there can, I 
 imagine, be no question that the continued strain through life, 
 even on the physical power of a barrister,^ is far greater than on 
 those of a blacksmith. Literature is more trying work than even 
 law, as is seen by the higher proportion of men who break down 
 under it ; and politics, worthily pursued, probably is the hardest 
 of all. Eousseau's assertion that civilization is the cause of 
 inequality was one of the most egregious, and has been one of 
 the most pestilent, of his errors. But that civilization brings out 
 the consequences of inequality, as of every other fact of nature, I 
 conceive to be quite unquestionable. 
 
 But civilization — progress — not only increases differences : it 
 
 1 The old age to wliicli men live on the bench, and in other dignified social 
 positions, is often remarked. It would not seem remarkable if men would take 
 into account the amount of bodily strength and liealth which is requisite to get 
 there. 
 
OF THE SECOXDAEY SOUECES OF POSITIVE LAW. 411 
 
 causes separation, and limits contact. In a rude and primitive 
 condition there is but one occupation — that, viz., of procuring 
 the necessaries of existence. In this occupation, consequently, 
 all men must engage ; all thus come into competition, and their 
 recognition of each other's capabilities is immediate and spon- 
 taneous. But civilization confers leisure, and specializes labour ; 
 and in so doing it confines competition within narrower 
 limits. ^Moreover, as occupations rise in ditticulty and import- 
 ance, those who discharge them diminish in number, and mark 
 themselves off more sharply from the community at large. Of 
 the truth of this statement we have a striking proof in the fact 
 of the very small number of candidates for higher as compared 
 with lower appointments. As the community advances, it thus 
 loses, more and more, the spontaneous guidance of its most 
 gifted and cultiA^ated members. Their retirement into classes is 
 no fault of theirs, or of the community from vdiicli they 
 separate themselves. It is an inevitable, and, as such, a legiti- 
 mate result ; nay, as we have seen already, it is the condition of 
 progress.^ But its occurrence proves that, if they are to be 
 called into general activity at all, it must be in relation not to 
 the community as a whole, but to the classes in which they have 
 ranged themselves. It is in and through the class alone that 
 the individual can be measured and utilized. " Individuals," as 
 Savigny has said, must be understood to constitute the state, 
 not as such, but in their constitutional divisions." Even sup- 
 posing exceptional individuals to quit the position which the 
 natural organization of advanced society has assigned to them, 
 and for political purposes to take their place in the ranks, the 
 
 1 Ante, p. 396. 
 
412 
 
 OF THE SECONDAEY SOURCES OF POSITIVE LAW. 
 
 community would be thereby not only robbed of tlie special 
 services wliicli they would otherwise have rendered it, but misled 
 in its calculation of the amount of reason which it contained. 
 An army would form a very inaccurate conception of its force 
 which counted its officers as common soldiers ; and would give 
 very great proof of its folly if it insisted on their acting as 
 such. And yet that is precisely what advanced communities do 
 when, in endeavouring to ascertain the general will, they count 
 all wills as equal, or in endeavouring to consult the general 
 interest, they assign equal duties- to all men. 
 
 (h) For practical purposes it ivill, in general, he necessary that 
 all citizens included in each loolitical class or ccdegory, he dealt 
 ivith as contrihiding an equal amount of rationed will. 
 
 Inasmuch as no two human beings ever were wholly alike, 
 ideal justice knows nothing of classification. " God sees each 
 human being different from every other, and His thought and 
 acting towards them are righteous, because He has respect to this 
 difference." ^ The adoption of the principle of classification, then, 
 is a confession of the necessary imperfection of all human govern- 
 ment; for the equality which is thus declared for political purposes 
 to exist between the individual members of each class, is by no 
 means a perfect equality in point of fact. All that can be said for 
 the justice that classification does, is that it is preferable to the 
 injustice which it prevents. It is never, therefore, to be resorted 
 to as good in itself, or maintained beyond the point of necessity. 
 A well governed family may be regarded as the model of a well 
 governed state ; and prudens pater -faniilias does not classify 
 his children, but, in direct imitation of the Heavenly Father, 
 
 ^ The SinrUual Order, c&c, by T. Erskine of Linlatlieu, p. 235. 
 
OF THE SECOXDARY SOURCES OF POSITIVE LAW. 
 
 413 
 
 measures out to each his individual rights and responsibilities. 
 That even he does more perfect justice by the latter method 
 than the best government can ever hope to do by the former, is 
 unquestionable. 
 
 But the method, which is founded on the appreciation of 
 individual merits, is applicable, in human hands, only to a very 
 limited community. It could scarcely be applied to two 
 families, and its inapplicability to the government of a school is 
 notorious and confessed. As a rule, then, this method is appli- 
 cable only where the governing power really knows, and can 
 actually appreciate, every single member of the community 
 which it governs. 'Now, a state of any considerable size is not, 
 and cannot be, thus omniscient within its own borders — a large 
 community cannot measure itself with this degree of accuracy. 
 The defence for the principle of classification then, is not that a 
 government founded upon it attains, but that it approximates to 
 a recognition of the individual qualities of the governed more 
 nearly than one that rejects it ; for the latter form of govern- 
 ment, however honest may be its intentions, is forced by its 
 ignorance of individual qualities to treat all men as if they were 
 alike, and thus violates their rights to a greater extent than a 
 goverilment which treats some men as if they w^ere alike by 
 classifying them in accordance with characteristics by which, 
 though they do not exhaust their differences, each class is really 
 distinguished from the rest of the community.^ Suppose, by 
 
 ^ It is scarcely possible to conceive more contradictory claims than those of the 
 extreme liberal party for entire individual independence on the one hand, and 
 absolute individual equality on the other. If all men are to be independent indi- 
 viduals, and each to rest on his own merits solely, even class equality must be 
 abandoned : if all are to be equal, there can be no individual independence at all, 
 because all must be swept into one class. 
 
414 OF THE SECONDAEY SOUECES OF POSITIVE LAW. 
 
 way of illustration, that all students of law were classed together, 
 and equal privileges and burdens were assigned to them, some 
 degree of injustice would be done to many, perhaps to most of 
 the individual students, for it would be only in rare and ex- 
 ceptional cases that the real importance of the individual 
 would correspond exactly to that which was assigned to the 
 class. But a smaller amount of injustice would be done to 
 them than if their privileges had been declared to be the 
 same with those of chimney-sweeps, and their fiscal liabilities 
 the same as those of merchant princes, or leading seniors at 
 the bar. If a cry could be raised for a poll in place of an 
 income-tax, the advantages of classification would soon become 
 as apparent to those at the bottom, as it is now to those at the 
 top of the social ladder. 
 
 It may seem that, as the most perfect form of government 
 viewed as a mechanism for ascertainino the rational will, would 
 admittedly be one which took cognizance of the qualities of 
 individuals directly, we shall approximate more or less closely 
 to such a government as we diminish the classes of which it 
 professes to take cognizance in extent, and multiply them in 
 number; for the nearest approach to dealing with the individual 
 himself, is to deal with a very small number of individuals 
 whose personal characteristics and external circumstances pre- 
 cisely, or very closely, resemble his. It is on this ground that 
 Sir James Mackintosh has remarked, with great truth, that " of 
 the two faults" of excess or defect of sim]Dlicity, "the excess of 
 simplicity would certainly be the greatest ; for laws mgre com- 
 plex than are necessary would only produce embarrassment, 
 
OF THE SECONDARY SOURCES OF POSITIVE LAAV. 415 
 
 whereas laws more simple than the affairs which they regulate 
 would occasion a defect of justice." ^ 
 
 But there is a practical limit to perfectibility in this direc- 
 tion, for it is obvious that classification might very easily be so 
 extended as that we should lose the benefit of it altogether. A 
 very extended and complicated classification comes to be no 
 classification at all. The necessity for simplification, then, which 
 led to the admission of the principle of classification at first, 
 limits its application in this direction. How far it ought to be 
 carried is a question which every conmiunity must determine 
 for itself, and the answer to which, even in the same community, 
 will vary. All that can be said abstractly, will, I think, be 
 embraced in the following proposition. 
 
 (c) Tlie amount of classification requisite for legislative pur- 
 poses luill correspoud to that which has heen acloptecl for eeonomical 
 and social purposes, for the time hcing. 
 
 The truth of this proposition rests on the declaratory character 
 which we have seen to belong to jurisprudence as a whole. To 
 positive law the facts of society, for the time being, bear the 
 same relation that the permanent facts of nature bear to natural 
 law. With reference to both, the object of legislation is to 
 recoGfnize and vindicate, not to overturn or reconstruct. And 
 this is, above all, true of the electoral machinery, by means of 
 which the community measures its rational will. Its function 
 is to reflect the nation in the legislative mirror, not as wiser or 
 foolisher, better or worse, than it is, but simply as it is ; and this 
 it can do only by recognizing the stage of complexity which it 
 has really attained, for the time being. To constitutional law, 
 
 1 Discourse, p. 51. 
 
416 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 more especially, is that other saying of Sir J ames Mackintosh 
 applicable : " Laws ought to be neither more simple nor more 
 complex than the state of society which they govern, but ought 
 exactly to correspond to it." ^ 
 (d) The electoral system. 
 
 The very difficult and important questions which, for every 
 advanced commu.nity, must arise out of the adjustment of its 
 electoral system, depending for their solution on the circum- 
 stances of each particular case, do not fall within the range of 
 the present work. All that remains constant is the fact that, if 
 the rational will of any community is to be measured with 
 sufficient accuracy to enable it to be autonomous, and as such 
 autarchous, it must be effected by taking cognizance of the 
 differences of individual reason, natural and acquired — for in 
 politics these correspond to the 2^^us and imims signs in algebra 
 — and that this can be done only by means of constitutional 
 arrangements which will grow in complexity as the society ad- 
 vances in civilization. 
 
 IV. The means hy which the community declares its rational 
 will. 
 
 The rational will of the community may be declared either 
 expressly, by legislation, or tacitly, by consuetude. 
 
 [a) Legislation. — Legislation may be efiected either directly or 
 indirectly. The former takes place when the autonomous com- 
 munity speaks in its own person; the latter when it speaks 
 through its representatives. 
 
 The comparative advantages of the one system or the other are 
 dependent entirely on the practical question, — which of the two, 
 
 1 ut sup. p. 415. 
 
OF THE SECOND ARY SOURCES OF POSITIVE LAW. 417 
 
 in the special circumstances of the case, will give the most perfect 
 expression to the rational will ? 
 
 (h) Consuetude. — Custom is the earliest form of legislation, and 
 a form in which it may be quite as widely and permanently effica- 
 cious as in any other — witness the Consolato del Mare, the 
 Eolles of Oleron, and the other commercial codes of the middle 
 ages; and indeed the whole system of international law, both public 
 and private, in so far as it does not rest upon treaty or convention. 
 But it would be an error to suppose that custom ceases to act 
 when, or where, direct legislation comes into i)lay. On the 
 contrary, custom, as the expression of will which has been of some 
 permanence, and on that account may be assumed to be rational, 
 precedes, or ought to precede, every special enactment, just as 
 it preceded enactments in general ; and it repeals enactments to 
 as great an extent as it dictates them. It is in this indirect 
 action, indeed, on positive law, that consuetude assumes a legis- 
 lative character in advanced communities. 
 
 V. The means hj ivhich the ixttional luill of the community is 
 applied to the sjjecial case, may he either sjjontaneous, or hy 
 jurisdiction. 
 
 When the will of an autonomous community is unambigu- 
 ously declared, either by legislation or by consuetude, it is scarcely 
 disputed except by lunatics and criminals, and in their cases it 
 is enforced. But numerous cases occur in which it is not 
 unambiguous, and these are met by jurisdiction. The relation 
 between jurisdiction and legislation has been already explained.^ 
 As the means of ascertaining the general will is the least advanced, 
 the means of applying it is, in organized communities, the most 
 
 1 Ante, 216. 
 2 D 
 
418 OF THE SECONDARY SOURCES OF POSITIVE LAW. 
 
 advanced department of positive law, at tlie stage of develop- 
 ment wliicli we have now reached. 
 
 VI. The means hy which the community enforces its rational 
 loill. 
 
 The community can govern itself only as an organism ; and 
 the more highly it is organized, the better will it enforce its own 
 laws. 
 
 The same principles which apply to the formation, the develop- 
 ment, the ascertainment, and the expression of the rational will, 
 apply to its enforcement. The community can be self-governing 
 only on the same condition on which it is self-legislating, viz., 
 its acceptance of the organic structure which springs from the 
 natural disparities of individual power and wisdom.. A state 
 which proclaims an artificial equality of citizens loosens the bonds 
 of obedience, paralyzes the arm of command, and turns its arms 
 a2;ainst its own life. It reduces its character, in short, from that 
 of an army to that of a mob, and how incapable of self-control 
 the best of mobs are is a matter of common observation. 
 Even as regards external defence, where there can be no sepa- 
 ration of interests, the recent example of France and Germany 
 ought to convince the most incredulous of the impo- 
 tence of Chaos to struggle wdth Kosmos. So closely, indeed, are 
 the legislative and executive functions bound up together, that 
 I believe there is no historical exception to the rule that the 
 state which makes the best laws administers them best ; and 
 that every state ceases to be autarchous just in proportion as it 
 ceases to be autonomous. 
 
 The question of the relative advantages of citizen and stand- 
 ing armies is one which depends on special circumstances, 
 
OF THE SECOXDAEY SOUECES 'OF POSITIVE LX\Y. 
 
 ■419 
 
 and does not, tlierefore, admit of any general solution. This, 
 ho^vever, may be said alisolutely, that a citizen army ydll be 
 trustworthy only where the social organization is yery high, and 
 where the national character is constitutionally dispassionate. 
 It is plain, moreover, that if it is to execute the law, it can do 
 so only on condition of its l.ieing entirely guided by, and mainly 
 composed of, those vdio recognize it as their interest to obey the 
 law. Order can be enforced only by those by vdiom it is 
 accepted: and it is vain to hope that anarchical armies will 
 protect civilization against anarchy. On the other hand, how- 
 CA'cr, it must not be forgotten that there is no better school of 
 citizen discipline than the ranks of a disciplined army: and that, 
 in states in vdiicli the national temperament warrants the ex- 
 periment, ochlocratic evils may perhaps be obviated by a 
 judicious application of a means by Avhich they cannot be sup- 
 pressed. With this view it is obvious that the first recj_uisite of 
 citizen armies is that the educated classes shoitld accept the 
 burden of serving, not as officers only, but as privates. The 
 spectacle of obedience voluntarily rendered by their superiors, 
 combined with the necessity of rendering it themselves, will im- 
 press the first lessons of citizenship far more deeply than the 
 discipline of the best mercenary army; and yet we have few 
 anarchists amongst our own soldiers or sailors. In countries iu 
 vrhicli there is great disparity of wealth there might possibly 
 !je advantages both to the community and themselves; if the 
 ,reat landowners and capitalists were to volunteer not only to 
 serve in, but to support, the forces which might be requisite for 
 the administration of the law in their own districts, or even for 
 the national defence. By thus worthily employing their wealth 
 
420 OF THE SECONDAEY SOURCES OF POSITIVE LAW. 
 
 tliey would furnish the best, and only permanent, answer to 
 those who might be disposed to question their right to its re- 
 tention, and reclaim for themselves the position of protectors of 
 order by which their ancestors commended themselves to the 
 reverence and affection of the nation. 
 
BOOK IV. 
 
 or THE OBJECTS OF POSITIVE LAW. 
 
CHAPTEE I. 
 
 OF THE ULTIMATE OBJECT OF POSITB'E LAAY. 
 
 rpHE ultimate object of positive law is identical with the 
 proximate object of natural law, viz. liberty. 
 But liberty being realizable only by means of order, order is 
 the proximate object of positive law, its object as such. 
 
 CHAPTEE IT. 
 
 OF THE PEBIAEY AXD SECO^'DAEY OBJECTS OF POSITIVE LAW. 
 
 (ft) Primary. Order, as we have just seen, is the proximate, 
 or immediate object of positive law — the object in virtue of 
 which it is distinguished from, and subordinated to natural 
 law, just as natural law was distinguished from, and subordi- 
 nated to ethics in virtue of its narrower object, viz. liberty, 
 when contrasted with the wider object of ethics, viz. perfection. 
 But on turnin^i from natural law in its relation to ethics, and 
 regarding it in itself, Ave found that it sought realization of its 
 object, not directly, but by means which became to it, as it 
 were, a secondary object, and that this means was order. 
 
 Xow in the like manner, when we contemplate positive law 
 
424 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 no longer in its relations to natural law, but as a separate sub- 
 ject, having a special object of its own, we find that it seeks this 
 object not directly, but by means, which means thus become its 
 secondary object, or objects. 
 (&) Secondary. 
 
 The secondary objects of positive law are, the specific rules by 
 which order is realized in the various relations in which human 
 beings stand to each other in a particular community, or in 
 which states stand to each other in the community of nations at 
 a given time. 
 
 My readers are no doubt aware that, in working out systems 
 of natural law, it has been usual to attempt to determine the 
 general rules which nature, or expediency, is supposed to point 
 out for the guidance of legislation, with reference to the various 
 relations in which human beings necessarily stand to each other, 
 whether as members of the family, the state, or what has been 
 called the federal union of civilized nations. The cultivation of 
 natural law in this positive direction, proceeds on the assump- 
 tion that, as there are certain fixed principles of action which 
 nature and reason indicate, so there are certain fixed, or neces- 
 sarily recurring, circumstances and relations, in which mankind 
 will always be called upon to act; and that, by applying 
 the invariable principles to these invariable conditions, a body 
 of invariable rules applicable to the life of the family and of 
 society, both within and without the state, may be evolved. In 
 all the older writers, and in many of the moderns, we have thus 
 what is called " a special part of natural law," in which is 
 included the natural law of marriage, guardianship, succession, 
 contracts, sale, and the like. Wolff's system, which Warnkonig 
 
OF THE OB.JECTS OF POSITIVE LAW. 
 
 425 
 
 lias cliaracterizecl as iiigcns v.niversi juris naturalis co-qms} 
 extended to nine vols, quarto : and we all know what a ponderous 
 mass of jDonderous matter Puffendorf accumulated. Xow, I am 
 far from denying the truth of the assumption that there are in- 
 variable social relations, and, to a limited extent, other external 
 circumstances, Avhich are very little affected by changes of 
 time and place: nor do I call in question the sottndness of 
 the rules which, on this assttmption, have been evolved by 
 many industrious, and by some gifted men. The relations of 
 the family, to a very great extent, are fixed points. The idea 
 of property, inseparable from the consciousness of subjective 
 existence, involves proprietary relations : and from property 
 result rights of gift, sale, and succession testate and intestate. 
 Human intercourse can be carried on, and the necessities of 
 mutual aid can be satisfied, only by means of mutual obligations, 
 which iuA'olve midtifarious relations dependent on good faith. 
 
 It is possible, in all these cases, by a study of comparative 
 jurisprudence, and a careful application of the process of abstrac- 
 tion, to separate the necessary and invariable conditions of all 
 society from the accidental and variable conditions of a parti- 
 cular society, and to resolve the ciuestions arising out of the 
 former, in accordance with the principles of natural law, apart 
 from the latter. It is possible, by bringing our normal humanity 
 face to face with these invariable conditions, to discover the 
 general line of conduct which nature indicates ; and thus a body 
 of abstract positive law, applicable to human society in so far as 
 its conditions are unchangeable, may be bttilt up. But though 
 I do not cj_uestion the possibility of such a work, or its scientific 
 
 1 Delineatio, p. 22. 
 
426 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 legitimacy, I do exceedingly question its utility, both for prac- 
 tical and speculative purposes. And I do so for this reason : In 
 so far as the relations thus evolved are invariable, they must 
 recur in every positive system of law. If they are the relations 
 of the family, or of the citizens of the state to each other, they 
 will recur in every municipal system. If they are the relations 
 of the citizen to the sovereign power, they will recur in every 
 system of public law, properly so-called. If they are the rela- 
 tions of state to state, they will recur in international law. In 
 each of these cases, then, we shall have an opportunity of study- 
 ing them in their proper places, sometimes as jurists in the 
 narrower sense of that term, sometimes as politicians, and some- 
 times as political economists. It is impossible that we should 
 fail to encounter them, because, ex hypotlicsi, their recurrence is 
 necessary and invariable. 
 
 !N"or can I see any advantage which their study, when iso- 
 lated, presents over their study in connection with conditions 
 which may be accidental — that is to say, which may be con- 
 fined to one or more states, and one or more periods .of his- 
 tory or stages of development. The co-existence of accidental 
 and ephemeral with necessary and permanent relations in 
 real life, is inevitable, because there must always be peculi- 
 arities belonging to every country, to every race, and to every 
 stage of development. A system of abstract law then, which 
 applied the principles of natural law only to the relations of 
 human life which are invariable, could scarcely admit of any 
 direct application to humaji affairs. Even as a guide to positive 
 legislation for any actual living people, its utility would be very 
 limited, even supposing it to be the result of a sufficiently wide 
 
OF THE OBJECTS OF POSITIVE LX^Y. 
 
 427 
 
 incluction to entitle it to the imiversal character to which it laid 
 claim. Such a supposition, moreover, can scarcely be entertained. 
 The construction of a system of the kind in Ciuestion, though 
 not, as I have said, a theoretical, I hold to be pretty nearly a 
 practical impossibility. Is it not one of the first lessons vdiich 
 history teaches, that vdiat is confidently believed to be necessary 
 by one generation, the experience of the next shows to be 
 accidental ? There are certain relations, as I have said, to vdiicli 
 this remark does not apply. But even these admittedly per- 
 manent relations are modified, in the forms vdiich they assume, 
 by the accidental conditions which accompany them, and which 
 consequently determine the character of the positive laws by 
 which they are governed. Children must be born helpless : and 
 their support and education lies, in the first instance, at the 
 door of those who brino- them into the world. To this o-eneral 
 ride of conduct, the general rule that we should follow nature, 
 and the promptings of that natural aftection vdiich the Greeks 
 called o-Topy-i], taken along with the invariable circumstances of 
 •irth and helplessness, no doubt guide us. But a general rule 
 of this kind does little more, practically, than to refer us back to 
 the instincts of our nature: and a knovdedge of circumstances 
 vdiich are not invariable, is requisite to help us to any rule of a 
 more special kind. Tlie kind of nourishment or education to be 
 given, the length of time either is to be continued, vdiether and 
 to what extent the duties of education and protection on the one 
 hand, and obedience and docility on the other, ought to be 
 enforced ; all the details, in short, of the relation can be learned 
 only when the special circumstances of country, climate, stage 
 of civilization, age, and social rank of the parties, and other 
 
428 OF THE OBJECTS OF POSITIVE LAW. 
 
 so-called accidents, are considered. If these are not taken into 
 account, natural law will be violated by tlie very provisions 
 wliicli were devised for carrying it out. Accordingly we find 
 that, whenever it has been attempted to develop a detailed 
 system of natural law, it has invariably run into the municipal 
 law of some particular country, or has borrowed accidental pro- 
 visions from the municipal laws of several countries. If the 
 writer was a Dutch civilian, his system was worked out in 
 accordance with the legal relations of the municipal systems of 
 Holland and of Eome — the accidental and the necessary being 
 scarcely even attempted to be separated. If he was an English- 
 man, the influence of the very special conditions of English life, 
 and the very peculiar insular system of positive law which had 
 grown out of these conditions, was largely perceptible. In place 
 of being a system universally applicable to mankind in all times 
 and places, it was a system for which the most that could be 
 said was that, if it had gone a little more into detail, it might 
 
 have been applicable, for the time being, to England or to 
 
 • 
 
 Holland. These considerations explain to us, I think, in no 
 small degree, the disrepute into which the study of natural law 
 ultimately fell, and may serve as a warning against the repetition 
 of attempts which, even in able hands, were so barren of results. 
 I entirely agree with Dugald Stewart when he says that " an 
 abstract code of laws is a thing equally unphilosophical in 
 design, and useless in execution." ^ Whether the principles on 
 which such systems profess to be constructed were adhered to 
 or violated, the failure was almost equally inevitable. If they 
 were adhered to — if no relations were considered except those 
 1 Collected Works, vol. i. p. 187. 
 
OF THE OBJECTS OF POSITIVE LAW. 
 
 429 
 
 which really were universal, and these were taken apart from 
 the specialties which always accompany them in real life, 
 nothing was produced except a string of the commonplaces of 
 municipal law, so obvious as to render their repetition tedious 
 and unprofitable in the last degree. If, on the other hand, they 
 were departed from, and the inquiry carried out into specialties 
 which might give it some value for a particular society at a par- 
 ticular time, then a positive error was committed, for relations 
 which were peculiar and accidental were represented as universal 
 and permanent; and there was no small danger of the rules 
 really applicable to one class of relations being thus imported 
 into other relations to which they had no proper application. 
 The practical value of these systems was thus not only confined 
 to the particular state, but stood almost in an inverse ratio to 
 their scientific accuracy, and even to the generalizing capacities 
 of their authors. The better the man and the w^ork, in a scien- 
 tific sense at least, the worse the system. 
 
 Influenced by these considerations, when I treated of the 
 objects of natural law, I contented myself, for the most part, 
 with presenting them in their widest generality, without reference, 
 otherwise than for purposes of illustration, to the special rela- 
 tions in which they seek their realization. In aU the relations 
 in which human beings can be placed, liberty and order as the 
 condition of liberty, are the objects which nature assigns to the 
 science of jurisprudence, and these objects she seeks as much 
 and as constantly when the conditions which she offers are the 
 most ephemeral and accidental, as when they are the most 
 permanent and inevitable. This latter consideration, more 
 especially, seems to me to furnish a practical reason of a very 
 
430 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 cogent kind, when we pass to the objects of positive law, for 
 dealing with that department of the science of jurisprudence in 
 its integrity, and refraining from any attempt to distinguish be- 
 tween its provisions which are permanent and those which are 
 variable. What is called the special part of natural law, is 
 likewise the general part of positive law. The two subjects are 
 not only intimately related — they are identical; as may be seen 
 by comparing the beginnings of the chapters of any municipal 
 treatise in which the general maxims relating to such subjects 
 as marriage, guardianship, contracts, and the like, are set forth, 
 with the chapters on the same subjects in such works as those 
 of Puffendorf or Paitherford, or even in the works of such 
 modern writers as Ahrens, Eoder, or Trendelenburg. Now the 
 practical effect of exhibiting the rules which govern the general 
 and permanent relations of humanity as a portion of the system 
 of natural law, Avhilst the rules which govern the special and 
 transitory relations of humanity are not exhibited in any direct 
 connection with natural law at all, is to lead to the inference 
 that these latter relations are governed either by no principles 
 wd'iatever, or by other principles than those of natural law. And 
 such is the inference wdiich is actually drawn by the vast 
 majority of practical lawyers.^ The general and unchangeable 
 relations of human society, they say, are governed by the 
 principles of natural laAv ; the special and variable relations of 
 society are governed by the principles of expediency. But ex- 
 pediency, as I have shown, has no principles of its own apart 
 from the principles of nature. Either it is an organ for the dis- 
 
 1 And not by lawyers only, but by pliilosopliers, as may be seen from Ganz's 
 preface to HcgcVs Tliilosoi^liy of History, Bohn's translation, p. xiv. 
 
OF THE OBJECTS OF FOSITIVE LATT. 
 
 481 
 
 covery of nature's la^vs, in wliicli case it takes its place as one 
 of tlie secondary sources of natural la^v; or else it is merely 
 another name for tlie indications afforded by reason and ex- 
 perience, as to the special means best calculated, in special cir- 
 cumstances, to attain the objects of jurisprudence, in which case 
 it takes its place amongst the sources of positive law. Xow the 
 role Avhich reason and experience play is the same in principle, 
 whether the rules which they suggest have reference to relations 
 and conditions which are permanent, or to those which are 
 transitory. The object of the special rules is the very same as 
 the object of the general rules, namely, to give free scope to the 
 normal impulses of our nature, under the conditions in which it 
 is brought in contact with the actual world. 
 
 I think I can illustrate this by a very simple example. The 
 object of the law of marriage is the gratification of those im- 
 pulses, physical, moral, intellectual, and religious, which lead to 
 the cohabitation of persons of opposite sexes. Xo^r, for the 
 attainment of this object, expediency, that is to to say reason 
 and experience, prescribe certain rules which are general, be- 
 cause they are applicable to circumstances which are permanent 
 and universal : and other rules, which are special, because they 
 are applicable to circumstances which are transitory, and very 
 frec|uently local. As examples of the general rules, I may men- 
 tion those vdiich prescribe that- the matrimonial contract shall 
 be entered into only by persons capable of consent — a rule 
 common to all contracts : only between persons who have 
 attained to the age of puberty : only between one male and one 
 female at the same time : which limits it to persons not related 
 to each other within certain degrees, and the like. The special 
 
432 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 rules are those which define the patrimonial relations of the 
 parties : their respective obligations to the offspring of the mar- 
 riage : which prescribe the modes of celebration, that is to say, 
 the manner in which the existence of the contract may be 
 proved in accordance with the social arrangements of the 
 country in which it is alleged to have been entered into : etc. 
 To the latter class of rules obviously belong those which pre- 
 vail amongst ourselves, to the effect that " habit and repute," 
 "promise, sich. cop.," etc., prove marriage, whereas in England 
 they are held to prove concubinage ; and quite rightly, perhaps, 
 in both countries, because the meaning of a fact not unfrequently 
 depends on, and consequently varies with, the customs of different 
 countries. 'Now, the first class of rules are often incapable of 
 receiving any definite interpretation without the aid of the 
 second. The age of puberty, for example, varies according to 
 climate ; and a very absurd anomaly exists in our own laAv, from 
 a rule dependent on the age which was special to southern 
 climates being regarded as a rule which was general to man- 
 kind. Even where rules are not dependent on physical 
 peculiarities resulting from climate, or the like, it is often diffi- 
 cult to say whether the rules which are in reality of the most 
 general ap]Dlication, are altogether independent of the circum- 
 stances in which they generally come into operation. The rule 
 which forbids polygamy is a rule of this class. Though riot its 
 only, one of its chief reasons unquestionably is the equality of 
 the sexes in point of numbers. ISTow, if that reason fail al- 
 together, would the other reasons in favour of it support opposite 
 reasons against it which might possibly prise ? Suppose one 
 man and twenty women cast on an island, without hope of ever 
 
OF THE OBJECTS OF POSITIVE LAW. 
 
 433 
 
 being restored to society. Their choice would lie between three 
 courses — 1st. They might adhere to monogamy, and allow their 
 race to become extinct after the first generation : 2nd. They 
 might adhere to monogamy, and allow brothers and sisters of the 
 full blood to marry : or, 3d. By resorting to polygamy, they 
 might avoid a nearer connection than between brothers and 
 sisters of the half blood for one generation, afterwards re-estab- 
 lishing monogamy and the ordinary rules as to the forbidden 
 degrees. The first course is that which they probably ought to 
 adopt ; but inasmuch as polygamy is less revolting than incest 
 the third course Avould clearly be preferable to the second; 
 and, in so far as the teaching of nature goes, a good deal might 
 be said for it even as opposed to the first. 
 
 Kow, if what we have been in the habit of regarding not only 
 as general, but as universal rules, thus lose their hold on nature 
 when they cease to minister to her objects ; and, e converso, rules 
 which are exceptional at the highest, aiid if adopted generally, 
 would violate her behests, are entitled to claim her sanction the 
 moment tljat it can be shewn that they really vindicate her 
 objects, is it not obvious that the establishment of any permanent 
 line of demarcation between these two classes of rules is a futile 
 effort ; and that if, whilst we connect the general rules of positive 
 law with the principles of natural law, we separate the sj)ecial 
 rules of positive law from these principles, we tend to confirm 
 the popular error by which the latter are held not only to be 
 variable, but arbitrary ? So greatly do I deprecate a result 
 which woitld destroy the sanctity of positive law, that I should 
 regard the possibility of its occurrence, apart from all risk of 
 speculative errors, as a sufficient ground for adhering to tlie 
 
434 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 bipartite division of the science of jurisprndence wliich we 
 adopted in the outset, and maintaining, in its integrity, the dis- 
 tinction between natural and positive law. 
 
 But it may seem that a third choice remains. Why, it 
 may be said, should we not have a complete system of applied 
 natural law, in the sense of a system which takes cognizance of 
 the special as well" as the general relations of humanity, and 
 this, not inadvertently, or from any imperfection of execution, 
 but consciously and expressly ? Now, to this idea, — which 
 seems to have been that which Puffendorf attempted to 
 realize, — apart from the practical difficulties which oppose its 
 fulfilment, there is this very serious objection to its value if 
 fulfilled, even for any particular community, that the special 
 relations of human life are variable not in place only, but in 
 time. Such a system, embracing, as it must do, public law, 
 private law, and economics, even if satisfactorily executed for the 
 time being, would be like the catalogue of a library to which not 
 only Avere new books being added, but from which old books 
 were being dismissed. It would stand to a permanent science of 
 jurisprudence, absolutely considered, in about the same relation 
 in which the catalogue of a bookseller's shop, where a rapid sale 
 was going on, might be supposed to bear to the literature of the 
 past, the present, and the future. Even with reference to a 
 particular time, it would be requisite that such a system should 
 be a collection of all the positive laws existing in the world, — a 
 work, the irrationality and inutility of which render the impos- 
 sibility of its performance a subject of rejoicing. 
 
 In so far as such a work has any uses at all, they are attained 
 by a branch of study much cultivated abroad under the name of 
 
OF THE OBJECTS OF POSITR'E LAW. 
 
 435 
 
 comparative legislation ; a study wbicli lias been cliiefly carried 
 out in the directions of criminal and mercantile law, but wliicli 
 admits of more general application. 
 
 If a science of applied natural law is to be attempted, then, 
 there is no alternative but to draw the best line Ave can between 
 relations and conditions of human life which are permanent, and 
 those which are transitory. It is not a course, as I have 
 said, which we are bound to reject on absolute grounds, similar 
 to those which forbid us to cut natural law through the middle 
 by dividing rights and obligations into perfect and imperfect : 
 but the practical reasons vdiich I have stated appear to me 
 sufficient to warrant us in breaking with the tradition by which 
 it has been sanctioned. As I presented the objects of natural 
 law — the ultimate objects of jurisprudence as a special science, 
 — without reference to the different character of the rela- 
 tions in which these objects are realized, so, in enumerating 
 the objects of positive law — the proximate objects of jurisprud- 
 ence, — I shall abstain from attempting to select any of them as 
 more closely connected with natural law than the others. 
 General and special, permanent and transitory, I regard them as 
 all, and all er|ually, seeking to give free scope to the normal 
 impulses of humanity, within the spheres which they respec- 
 tively embrace. 
 
 The objects of positive law may be classified with reference 
 either to the spheres within which they seek their realization, or 
 to the forms in which they are manifested. 
 
 From the former point of Auew tv^o schemes of division have 
 been proposed, either of which is capable of being rendered 
 exhaustive. 
 
436 
 
 OF THE OBJECTS OF POSITIVE LAW. 
 
 T. The first is tlie Eoman division — which still prevails generally 
 in Europe — into public law and private law. As the Eomans 
 had formed no distinct conception of law without the State as a 
 separate branch of science, these two divisions had reference to 
 national law alone. Public law (jus publicum) was, quod ad 
 stahim rei Romance special . Private law (jus privatum) was, 
 quod ad singulortim idilitatem pertinet. 
 
 Adhering to the principle of this scheme, and embracing under 
 it the modern subject of international law, we should have — 
 
 (1.) Fuhlic law williin the Slalc, the slaals-rechl of the Germans, 
 — what we often loosely and inaccurately call constitutional law. 
 
 The object of public law, in this sense, is to regulate the 
 relations of the State to the citizen, and of the citizen to the 
 State, political, personal, and economical. 
 
 (a) The first and most important branch of public law within 
 the State, is that which has for its object to measure the autono- 
 mous power of the community, by ascertaining its rational will. 
 It is this branch which determines the form of government, — 
 which fixes the political relation in which the various classes of 
 citizens shall stand to the whole organism, that is, to the State, 
 and to each other. Under this branch fall also the relations of 
 the different members of a federal government to the central 
 power, and to each other — except in cases in wdiich these relations 
 are so loose as to entitle the various states to be regarded as 
 independent communities, — and the relations of dependencies 
 and colonies to the dominant State, or to the mother country. 
 
 (h) The second brancli of public law within the State, is that 
 which regulates the individual relations of the citizens to the 
 State. Under it fall the regulation of the public service, 
 
OF THE OBJECTS OF POSITIVE LAW. 
 
 437 
 
 criminal law, poor law, tlie government of the imbecile and 
 insane, the rules of civil litigation, and ecclesiastical law. 
 
 (f) The third branch of public law within the State fixes and 
 apportions taxation, and other pecuniary burdens, general and 
 local 
 
 (2.) PvJjIic lav: vjitliout tlic State, or jus inter gentcs. 
 
 («) Pacific, or stationary relations of states to each other. 
 
 (Ij) Hostile, or aggressive relations of states to each other. 
 
 (3.) Private la.io ifithin tlie State, or municipal law, i.e. the 
 relations of the citizen to the citizen. 
 
 (a) The domestic relations, or relations of life in the family, 
 as exhibited by marriage, guardianship, &c., generally included 
 under the law of status. 
 
 (l) The social relations, or life in society as exhibited in sale ; 
 partnership, letting and hiring, &c., generally included under the 
 law of contract. 
 
 (-i.) Private lav: v:itliout the State, or private international law, 
 i.e. the relations of the citizens of different states to each other. 
 The object of this branch is to determine the occasions on which 
 justice recj_uires that the municipal law of one state should be 
 recognized by the municipal law of another. 
 
 II. The second scheme, which is more consistent with modern 
 forms of thought, divides positive law into national and inter- 
 national ; and these again into public and private, thus : — 
 
 1st. {a) Xational public laAV ; and, 
 (h) Xational private law. 
 2ml. (a) - International public law; and, 
 (Jj) International private law. 
 
 III. In addition to this classification of the various branches 
 
438 
 
 OF THE OBJECTS OF POSITIVE LAW, 
 
 of positive law, arising from the domains which they severally 
 embrace, there is another, derived from the various forms in 
 which the rational will — the source of all positive law — expresses 
 itself. Seen from this point of view positive law is, 
 
 (a) Common, or consuetudinary law (jus non scrip tum). 
 
 (h) Statute law (jus scriptum). 
 
 (c) Codified law. 
 
 (d) Treaty law. 
 
 (e) The received, or politically orthodox, interpretation of 
 revealed law. 
 
COXCLUSION. 
 
 439 
 
 CHAPTEE III. 
 
 CONCLUSION. 
 
 Of the conciliatory relcdioii in ichich the system of imitive laiv 
 which logically results from the ^jriiiciijles of jurisjmtdence as 
 deterrainecl hy nature, stctncls to the ^progressive and conservative 
 schools of Euro]pectn p)olitics. 
 
 Knowing liow widely I differ from revolutionary politicians in 
 the results at wliicli they arrive, botli in this country and abroad, 
 it may possibly seem surprising that I should not have differed 
 from them more decidedly in the objects which they profess to 
 seek, and that I should have permitted our discussions to lead 
 us into the train of thouglit which gave rise to that historical 
 watchword of disorder — Lihert^, egalit4, fraternite I The coin- 
 cidence, however, has neither been involuntary nor insensible on 
 my part ; for far from wishing to stigmatize this much abused 
 and justly dreaded formula, as necessarily the war-cry of 
 anarchy, and, as such, the justification of despotism, I am ready 
 to accept it, when urged in accordance with nature's teaching, 
 as the symbol of order and progress. It is for this reason that I 
 have not only assented to the doctrines which it inculcates 
 severally, to the fullest extent of their possible realization, but 
 that I venture, in conclusion, to recognize them in their ominous 
 conjunction. 
 
 Liberty, we have seen, is the special object of our science, and 
 inasmuch as the highest manifestations of liberty, so far from 
 conflicting with, involve and necessitate the highest manifesta- 
 
440 
 
 CONCLUSION. 
 
 tions of order, it is in the capacity of an apostle of order, and as 
 coming, so to speak, from the opposite camp, that I have avowed 
 myself a claimant for the maximum of liberty. " La politique 
 radicale," says M. Jules Simon, " aspire a la pleine et entiere 
 possession de la liberte.''^ Had M. Jules Simon been enpleine. 
 et entidre possession de la science, he might, with equal confidence, 
 have ascribed the same aspiration to the opposite school, in so 
 far as that school has any aspiration at all beyond the realization 
 of order for order's sake, and the impossible retention of the 
 stcchcs quo. In so far as liberty is concerned, then, I am a radical 
 as uncompromising as M. Jules Simon himself. 
 
 But liberty not only implies and necessitates, but absolutely 
 identifies itself with equality in the only sense in which equality 
 is anything else than a longing for the impossible, begotten of a 
 sinful and ignoble "envying and grieving at the good of our neigh- 
 bours." Here, then, is the second aspiration of " the Eevolu- 
 tion" which, without being a revolutionist, I have ado]3ted, in 
 what I believe I have demonstrated to be the only sense in 
 which it is not at once a folly and a crime. ^ 
 
 Third and lastly, as regards fraternity. In repudiating the 
 distinction between perfect and imperfect obligations, in pro- 
 claiming the entire reciprocity of rights and duties, and in 
 asserting the identity in principle between justice and charity, 
 I have recognized fraternity to the fullest extent to which it 
 does not conflict with the other two principles of liberty and 
 equality, i.e. in which its realization is not forbidden by its 
 encroachment either on subjective or objective rights, — in which 
 it would not be unjust even if it were not unreal. In identify-' 
 
 ^ La Politique Badicale, p. 6. 
 
CONCLUSION. 
 
 441 
 
 ing the principle of fraternity with that of guardianship, I have 
 vindicated more specifically its relation to order, and restored 
 their jnst importance to the long forgotten duties of paternal 
 authority and filial obedience. The princijjle of fraternity in 
 this its wider and loftier conception — the ergdnzancle gemeinscliaft 
 of the Germans, the societatis ajyiJetitiis of the older writers — is 
 the instrument of progress in which all our hopes must centre. 
 Its proclamation was the secret of the marvellous success of 
 Stoicism in Greece and Eome, and of Buddhism in the East, 
 and I entirely concur with an eloquent writer of our own day in 
 regarding its fuller inculcation as the characteristic peculiarity of 
 the Christian, as opposed to the heathen conception of the human 
 relations.-^ To recognize our dependence on, and our obligations 
 to our fellow-beings, is indeed only another form of recognizing 
 our dependence on God, and acknowledging the vanity and im- 
 piety of that spirit of self-sufficiency which we have indicated 
 as the most prominent blot on heathen etiiics. 
 
 Any separate discussion of the principle of fraternity, similar 
 to that which we devoted to ec|uality, would have been wholly 
 superfluous in a work of which, from first to last, it has been the 
 key-note; and one of the express objects of which has been to 
 vindicate the pretensions of the positive or active, as opposed to 
 those of the negative or passive school of jurisprudence. If 
 guardianship {vormundschaft), in its widest sense, embracing, that 
 is to say, every expedient by which human beings, either by 
 acting or by abstaining from action, by commanding or obeying, 
 by leading or following, by teaching or learning, can aid each 
 other in attaining the objects for which life was given them, be, 
 
 ^ Ecce Homo, pp. 175 and 179. 
 
442 
 
 CONCLUSION. 
 
 as is maintained by the writers whose views in this respect I 
 have adopted, the whole end and object of positive law : then 
 positive law in all its branches, in all the manifestations of order 
 or of liberty which it calls forth, is neither more nor less than a 
 realization of the principle of fraternity. 
 
 So entirely, indeed, does each of the three principles in ques- 
 tion involve the other two, that a system of jurisprudence which 
 adopted fraternity or equality for its object — if logically de- 
 veloped from the facts of nature — would arrive at results wholly 
 identical with those of one which set liberty before it as its 
 goal. 
 
 Then as to the practical means, the legislative mechanism, by 
 which these great objects may be attained. It does not belong 
 to abstract science to investigate the positive provisions, either 
 for the internal organization of separate states, or for their 
 external organization as a family of nations ; and I have, conse- 
 quently, declined to enter on partial discussions of these and 
 the other objects of positive law. But as principles of nature, 
 and, as such, common to legislation as a whole, I have in what 
 will be regarded as the liberal direction — recognized not on 
 grounds of expediency, but on the ground of right — the in- 
 alienable sovereignty of the rational will ; whilst, with a view 
 to the ascertainment of that will and its enforcement when 
 ascertained, without expressing my preference for any one of the 
 forms of legislation or government by which these objects can 
 be shewn to be attainable, I have not hesitated to repudiate 
 democracy as the negation of government altogether, and as a 
 form of existence in which it is imjjossihle that the rational will 
 of any community should be either ascertained or acted on. 
 
COXCLUSIOX. 
 
 443 
 
 Like most other words, democracy is a word to which several 
 meanings have been attached. But in the only sense in which it 
 does not identify itself with, or constitute an element in,i some 
 of the other, or rather, I ought to say, with som.e of the possible, 
 forms of government, it may, in imitation of Hegel's celebrated 
 definition of law, be defined as " the reign of absolute equality 
 realized." It is in this sense that it hovers before the imagina- 
 tions of its worshippers, and it is in this sense that I have de- 
 clared its realization to be forbidden by nature, and excluded 
 from the objects of jurisprudence. Implying, in this sense, as we 
 have seen, an entire reversal of natural law, democracy identi- 
 fies itself with that condition of lawlessness or disorganization, 
 that non-political condition, which is known as anarchy ; and we 
 shall approach to it more and more nearly only as the State 
 approaches its dissolution. Democracy, or equality realized, is 
 the antithesis of political life — it is political death — and a death, 
 moreover, from which history, so far as I know, tells of no re- 
 surrection. 
 
 It is true that in the state, as in the individual, death does 
 not mean annihihation. To us annihilation is inconceivable. 
 Whether or not it be possible for the Author of being to bring 
 being to a close, is a Cjuestion Ave shall never answer. But that 
 such an occurrence is unthinkable to us, we know experimen- 
 tally,^ and unless where thouglit is hedged in by rival impossi- 
 bilities, and a dictum of consciousness, in so far as we are con- 
 cerned, settles the question for practical purposes in favour of 
 one of them (as in the case of free-will),^ we must accept the 
 
 ^ Freeman's Growth of the English Constitution, p. 10, ct scq. 
 
 2 Hamilton, Metaph. ii. 405. ^ lb. Appendix, 542. 
 
444 
 
 CONCLUSION. 
 
 limits of thought as the measure of reality. What we cannot 
 think Ave must assume is not. There is, tlien, no annihilation. 
 The state, like other entities, both spiritual and material, in its 
 ultimate elements, must continue to be. But that it shall con- 
 tinue to be, by no means implies that it shall continue to be, or 
 return to being, as a separate organism in time and place. 
 Under other conditions of existence, we must believe that the 
 idea of the community, like the idea of each individual member 
 of it, will ultimately receive that perfect realization which is and 
 ever will be unattainable here. God will leave no idea finally 
 unfulfilled. When we shall be capable of performing perfectly 
 that " service which is perfect freedom," we shall be free, as He 
 whom we serve is free. The perfect relation of separate exist- 
 ences will then be realized ; but the Christian revelation ex- 
 pressly shuts out the hope that equality, in the sense in which 
 fools contend for it on earth, shall exist even in Heaven."^ 'Not 
 in time only, but in eternity we must believe that one star will 
 still differ from another in glory.^ But perfection does not belong 
 to this world ; and " here," consequently, " we have no continuing 
 city." 3 The continued existence of a state tliat has been sub- 
 jected to the solvent of anarchy will be no longer an organic 
 existence. Its elements, like those of our own mortal being, 
 alone will remain. The spirit which animated it — its idea — will 
 form a contribution to the political traditions of humanity. Its 
 body will subsist in the inheritors of its physical life, in the chil- 
 dren's children of those who were its citizens, though their blood 
 should be as unrecognizable as the dust of their fathers. The 
 
 1 Matt. V. 19 ; xi. 11 ; Luke vii. 28 ; 1 Cor. xv. 41 ; Ephes. i. 21 ; iiL 10, &c. 
 
 2 1 Cor. XV. 41. 3 Heb. xiii. 14. 
 
COXCLUSIOX. 
 
 445 
 
 spirit of Phoenicia, for example, lives in the mercantile law and 
 colonial system of the modern world. The body of Phoenicia 
 lives in the maritime populations of Loth sides of the Mediter- 
 ranean, and probably constitutes the best part of them. The 
 spirit of Greece lives in the spiritual life of mankind. What has 
 become of the material life of Greece we scarcely know. But 
 this we know, that Phoenicia, and her daugliter Carthage after 
 her, as political organisms, are as dead as Harniibal : that Greece 
 is as dead as Socrates ; and that it is as unlikely that either of 
 them will come to life again as that Hannibal or Socrates will 
 rise from the dead. 
 
 It is true that the induction wliich seems to warrant our 
 belief in political mortality is so much narrower than that on 
 which we assert the mortality of individuals, as scarcely to 
 justify more than a probable conclusion. But it is equallj^ con- 
 sistent, so far as it goes, for whether or not there be an autoch- 
 thonous race, there is no more an autochthonous state than 
 there is an autochthonous man. 
 
 Admitting, then, the mortality of the body politic and the 
 impossibility of its resuscitation, and recognizing democracy, 
 moreover, as a violation of the law of its life, and consequently 
 as at any rate one of the processes by which its dissolution will 
 be inevitably accomplished, the question still remains, is this 
 process, the action of this political solvent, inevitable ? If the 
 cycle must be accomplished, is this necessarily its final stage and 
 its new point of departure ? If the State must die, must it 
 necessarily die prematurely of this terrible disease ? Must it, 
 in the fulness of material well-being and progress, be torn in 
 pieces by such hideous paroxysms of sin and suffering ? or may 
 
446 
 
 CONCLUSION. 
 
 not its life be indefinitely prolonged till, like the healthy indi- 
 vidual body, it gently and almost imperceptibly gives place to 
 yonnger and more vigorous organisms ? 
 
 It is at this point that my political creed separates itself from 
 the democratic-fatalism which cast so deep a shadow over the 
 life, and finally clouded the intellect of my dear and gifted friend 
 M. Prevost-Paradol, and which still depresses so many of the 
 best and bravest of his countrymen. That a physician in the 
 midst of an epidemic which sets at defiance the utmost resources 
 of the healing art, should feel as if all men were not only doomed 
 to die, but to die of that particular plague, till at last he comes 
 almost to persuade himself that it is no plague at all but the 
 natural termination to human life, is a perfectly intelligible state 
 of feeling. And such was very much M. Prevost-Paradol's case. 
 But does it follow that his belief commends itself to other men, 
 or that it would have commended itself to him in happier 
 circumstances ? It may be that disease is as inevitable as death, 
 and most diseases in their ultimate form will produce death, but 
 there are very few diseases which, in their earlier stages, are not 
 more or less under human control, and none certainly which a 
 rational being ought, d ijriori, to accept as his doom. It is true 
 that in accepting what I have called democratic-fatalism as his 
 ultimate political creed, M. Prevost-Paradol's patriotism lost 
 nothing of its fiery zeal. To the last he wore himself out in con- 
 tending against what he regarded as inevitable, in attempt- 
 ing to reconcile what he knew to be irreconcilable. Anarchy or 
 despotism were the horns of his acknowledged dilemma; and 
 that foreign conquest must be the result of either alternative 
 was a subject on which he cherished no delusions; for from 
 
COXCLUSIOX. 
 
 447 
 
 delusions of all kinds the intense honesty of his nature recoiled 
 with a furious antipathy which I scarcely ever saw in the nature 
 of any other man. And yet his position was essentially a false 
 one : for the honesty with which he accepted his premises shut 
 him out from the foregone conclusion Avhich his patriotism im- 
 posed on him, and he worked on a prohlem confessedly insolu- 
 ble. On ne saurait done trop le redire : la Eevolution francaise 
 a fonde une societe, elle cherche encore son gouvernement."^ 
 These, and such as these, were his words. Xow, to seek a 
 government for a democratic society, on his own shewing, was 
 like seekincr a doctor for a dead man. If the doctor is to he of 
 anv use, we must try to keep a spark of life in the man till the 
 doctor comes to him: and before M. Prevost-Paradol went to 
 seek for a government for France, he was bound to shew in the 
 societv of France some slumbering embers of reverence, order, 
 and lovalty, which had survived the Eevolution, on Avhich a 
 o^overnment could be based — to prove in fact that, far as she had 
 gone in that fatal direction, France was not yet finally and hope- 
 lessly democratic. It is in this respect that M. Penan, as it 
 seems to me, has become wiser than his friend, and wiser in his 
 last than in his previous writings, from the terrible teaching of 
 recent events.- 
 
 A state may no doubt play with democracy, as a man may play 
 with a guillotine. It is a dangerous sport, and one in which I 
 
 1 La France Nouvelle, p. 296. 
 
 2 "Ily a cercle vicieux," lie says, " a rever qu'on pent reformer les eiTeurs 
 d'uue opinion inconvertissable en prenant son seul point d'appui dans I'opinion " 
 [La Rcforrae, p. 26) ; and farther on he asks, " Quel est pour la France ce defaut 
 favori, dont il import, avant tout q^u'eUe se corrige ? C'est le gout de la 
 democratie superficielle. La democratic fait notre faiblesse militaire et politique ; 
 
448 
 
 CONCLUSION. 
 
 grieve to think that this country should have indulged so long. 
 But sport, however objectionable, is one thing, and reality is an- 
 other. So long as a man's head is on his shoulders the mad- 
 doctor, with his strait-jacket, may do something, if not to cure 
 him, at least to keep him in life. But once his head is off, it is 
 the grave-digger that must be sent for ; and the grave-digger 
 will come sooner or later to the dead state like the dead man, as 
 he came to Poland, and as he has come already to two of the 
 fairest provinces of what once was France. 
 
 Now, though it may be impossible to reverse the law of 
 political mortality, or to bring states to life again after they are 
 dead, it appears to me that by accepting as fixed points the facts 
 of nature in so far as they are known, those states which still 
 live and breathe through the various organs of the body politic 
 may do much to promote their indefinite longevity. If reason is 
 to have any influence in human affairs at all, the " search for a 
 government," or, taking the matter from our point of view, the 
 gradual development of the government which is rooted in 
 their past, ought not for such states surely to be a hopeless 
 task. 
 
 For its accomplishment two requisites, the one social and the 
 other political, seem alone to result from our inquiries. 
 
 1. The social requisite is : The simultaneous abandonment of 
 the claim for exclusiveness on the one hand, and equality on the 
 other; and the fullest and freest acce]Dtance of the duties of 
 
 elle fait notre ignorance, notre sotte vanite . . . Corrigeons-nous de la demo- 
 cratie " (pp. 64, 65). To M. Eenan it has at last become plain that the option 
 for France lies between democracy and life ; bnt the earlier essays which he has 
 republished shew that his recognition of this fact came many months after M. Pre- 
 Yost-Paradol's death. 
 
COXCLUSIO^'. 
 
 449 
 
 mutual aid in the three directions pointed out by the natural 
 relations of individuals, those, viz., of parents, children, and 
 brethren. 
 
 2. The political requisite — not, probably, when folloicing on 
 the social one, of difficult attainment — is : The discovery, or 
 development, of a self-adjusting representative system, as uni- 
 versal as is consistent with order at the stage of progress 
 which the community has reached as an autonomous society, 
 and sufficiently equal to correspond to the substratum of fact in 
 relation to which alone equality can be justly claimed, or per- 
 manently asserted. 
 
 There is a last consideration on which my rejection of demo- 
 cratic-fatalism, in favour of a belief in the ultimate prevalence 
 of political reason, is founded, which, I trust, our discrimi- 
 nating, though not on that account limited acceptance of the 
 three famous doctrines popularly ascribed to the Eevolution has 
 enforced, — I mean the fundamental rectitude of human nature. 
 In the persistent advocacy and partial triumph of these doctrines, 
 we have had a memorable confirmation of the fact that the great 
 human heart, even when it goes fatally astray, is not wholly in 
 error. ]\Iore than ever, indeed, it has been proved to us that the 
 vulgar intelligence is incapable of distinction, impatient of 
 analysis, one-sided, and prone to exaggeration. More clearly than 
 ever we have seen that the vulgar conscience, groping in the 
 dark without li^ht, " and sta^'O'erin^^' like a drunken man,"^ is 
 readily led captive by vain hopes and still vainer fears. Where 
 the political organization of a community unhappily is such that 
 the purifying and moderating influences of its better spirits 
 
 i Job xii. 23, 25. 
 
450 
 
 CONCLUSION. 
 
 are excluded or neutralized, its best impulses frequently 
 become mere snares to error. But its errors, even then, how- 
 ever fatal they may prove to it as a separate state,i are only 
 distortions of the truth, and of that side of the truth, moreover, 
 v^hich for the time being had fallen out of sight. The maxim, 
 follow nature," which our earlier investigations seemed to 
 warrant, and wliich the history of ancient opinion sanctioned, 
 derives additional confirmation from the fundamental righteous- 
 ness which, amidst all their aberrations, has characterized popular 
 aspirations during the last eighty or a hundred years. Much as 
 she has suffered at the hands of her apostles, liberty has generally 
 been victorious over despotism, and in the Germanic nations at 
 least she promises to maintain with anarchy a more than equal 
 fight. The reflection is a consolatory one at all times, and from 
 all points of view, for in it rests our only rational hope, if not in 
 the permanence of individual states, at least in the progress of 
 humanity. Ultimately nature, whether right or wrong, will 
 certainly prevail, for of her, with far greater truth tlian Hobbes 
 said of his Leviathan, we may say, non est ]Jotestas suyer terram 
 qiim comiDctreMir ei. But if nature, not uprooted, but purified, 
 potentiated, and explained to herself, be not a trustworthy guide, 
 if the vox 2^o2ov2i, in the sense of the whole voice of a whole 
 people organically uttered, be not at bottom also the Vox Dei, 
 then there are but these alternatives : either we must take refuge 
 in dualism and content ourselves with the prospect of perpetual 
 war, or else the future of a world wliich God has made must be 
 abandoned to Satan, and even war will become a dream. 
 
 ^"La France," says M. Kenan, "expie aujourd'hui la Kevolution ; elle en 
 recueillera peiit-etre un jour les fruits dans le souvenir reconnaissant des peuples 
 emancipes." i?c/br??ic, pref, xiii. \ 
 
INDEX. 
 
 Abelard, 131. 
 
 Aberrations, theory of ethical and 
 
 political, 14-3. 
 Abraham and Moses, 75. 
 Abstract conception of Deity, 63. 
 Academic Questions, 113, 114. 
 Academics, their relation to the Stoics, . 
 
 113. 
 
 Ackerniann, 28. 
 
 Acollas, Emile, accepts Rousseau's doc- 
 trine of equality, 313. 
 
 Actions, none of them indifferent, 253. 
 
 Adams, Charles Francis, edits his grand- 
 father's works, 313. 
 
 Adams, John, did not hold doctrine of 
 equality, 313. 
 
 Adam and Eve, social arrangements in 
 their time, 391. 
 
 'Adidcpopa, admission of in casuistry, 
 225. 
 
 Aditi, 71. 
 
 Aggression, natural right of, 332 ; con- 
 demned by de facto principle when 
 self-contradictory, 334 ; unjust if 
 really destructive of life or liberty 
 on the Avhole, 334 ; right of, how far 
 it justifies force, 335 ; peaceable be- 
 tween small states, 336. 
 
 Agni, 59 ; = Ignis, 71. 
 
 Ahrens. list of works on natural law, 4 ; 
 on Hegel, 19 ; on character of evil, 
 22 ; on theological school, 27 ; writers 
 of theological school, 29 ; on statis- 
 tics, 38 ; criticism of Kant, 235 ; 
 following Krause, rejects distinction 
 between perfect and imperfect obliga- 
 tions, 240 ; his doctrine of equality, 
 313 ; position with reference to equah 
 ity identical with that of Eousseau, 
 319 ; marvellous popularity of his 
 work, 320 ; alive to the evils of demo- 
 cracy, 321. 
 
 Ahura-Mazda, 75. 
 
 Alabaster, 47; " Wheel of the law," 86. 
 Alcuin, 118. 
 Alexander of Hales, 131. 
 
 Alexanders expedition to India, 57. 
 Alexandria, Stoicism in, 124 ; Jews of, 
 125. 
 
 Alfred, king, 118. 
 
 Algeria, 50 ; rule of French in, 245. 
 
 Alsace, 345. See Aggression. 
 
 American "Declaration of Independ- 
 ence," 312, 313 ; politics, their errors 
 began with presidency of Jefferson, 
 392. 
 
 American Ranters, 129. 
 
 Analytic justice demands absolute 
 
 equalit)', 325 ; is equality before the 
 
 law, 325. 
 
 Analysis and synthesis, 5. See Analytic 
 Justice. 
 
 Anarchy, cause of barbarism, 50. See 
 
 Democracy. 
 Anaxagoras, 100, 
 Anaximenes, 99. 
 Animals, rights of, 172. 
 Annihilation, how far implied in Nir- 
 
 wana, 84 ; absolute unthinkable, 443. 
 Anselm, St., 66, 131. 
 Anthony, St., 120. 
 
 Anthropology, 52 ; oriental, 55; classi- 
 cal, 94 ; Shemitic and Christian, 125. 
 Anthropomorphism, 19. 
 Apathy, 85. 
 Apollo, worship of, 97. 
 Appropriation, 170. 
 AiMtudo and foadtas, what, 229. 
 Aquinas. See Thomas. 
 Arabian scholars, 132. 
 Arcesilas, 113. 
 
 Argyll, Duke of, 2, 17, 26, 38. 
 
 Aristotle, 28, n. 52, 98 ; quotes Pro- 
 verbs, 104 ; not a "judicious utili- 
 tarian," 106 ; an eudamronist, 107 ; 
 (Economics, 121 ; Politics, 143 ; does 
 not differ from Socrates in identify- 
 ing justice and charity, 268, 302 ; 
 theory of justice has fallen into con- 
 fusion, 321 ; did not confine propor- 
 tion to Public Law, 329 ; prefers 
 positive to negative duties, 367. 
 
454 
 
 INDEX. 
 
 Art of positive law, 6. 
 
 Aryans believed in beneficence of God, 
 
 67 ; of India, 57 ; of Greece, ih. ; 
 
 or Indo- Germanic races, 56 ; Western 
 
 Asiatic, 74, 
 Asceticism and fanaticism, 1 28 ; rested 
 
 on distinction of obligations, 225 ; 
 
 not in accordance with Christianity, 
 
 368. 
 
 Assent, general and special, 346. 
 
 Athanasian Creed, 61. 
 
 Augustin, 137, 254, 44. 
 
 Austerity no part of Christianity, 368. 
 
 Austin, 219. 
 
 AvrapKeia, 141. 
 
 Authority and obedience, 440. 
 
 Autonomy of human nature, 30 ; hu- 
 man, speculative ground for believ- 
 ing in, 43 ; history of opinion regard- 
 ing, 45, etscq. ; realization of, hindered 
 by democracy, 134 ; human, limita- 
 tions of, 341, 
 
 AvTovofiLa. See Autonomy. 
 
 Azazel, or Satan, not the rival, but the 
 servant of God, 22. 
 
 Bacon, 31 ; and Grotius, 133 ; Brew- 
 ster on, 133. 
 Bactra, 75, 
 
 Balch on Calvinism, 301 ; on American 
 
 Declaration of Independence, 313. 
 Ball, John, first j3reached "freedom and 
 
 equality," 391. 
 Barbarian influencesfrom within, 50. 209. 
 Barbarians, conquest of, justified by 
 
 principles of positive school, 245. See 
 
 Savages. 
 Barbarism, 50. 
 
 Baxbeyi-ac, undutiful to Grotius, 256. 
 Barrister requires more physical power 
 
 than blacksmith, 410. 
 Barthelemy, St. Hilaire, 47, 88, 
 Being and becoming, 18. 
 Bench, Scotch, 23. 
 Bentham, 35 ; a hedonist, 107. 
 Bequests, how limited, 212. 
 Bible, 126. 
 Black skin, 73. 
 Blackie, 103, 107, 110. 
 Blockade, law of, rests on de facto 
 
 principle, 203. 
 Boethius, 117. 
 Brahma, 60. 
 
 Brahma, Vishnu, and Siva, 74. 
 
 Brahmanas find Upanishads, 62. 
 
 Brewster, Sir David, 133, n. 
 
 Broad Church party, 127. 
 
 Brown, Dr. Thomas, first rejects dis- 
 tinction between perfect and imper- 
 fect obligations, 237. 
 
 Buddha's own creed, 79 ; no leveller, 
 88 ; protests against exclusiveness, 
 100 ; had the conception of cosmo- 
 politanism, 123. 
 
 Buddhists not atheists, 47 ; their creed, 
 77, 78; numbers of, 77, 78, n., et 
 seq. ; Buddhism and Christianity, 83. 
 
 Bunsen, 19, 25, 45, 52, 61, 66, 75 ; 
 on Chinese, 89, 98 ; on Egyptians ; on 
 Nemesis, 103; on Reformation, 136. 
 
 Burdens, public, 211. 
 
 Burke, 194 ; holds all law to be declara- 
 tory, 200 ; at first favours the Revolu- 
 tion, 233, 392. 
 
 Burnouf, Eugene, 79. 
 
 Butler, Bishop, 115 ; theory of con- 
 science, 136, et seq.; 14/. 
 
 Calvin, 390. 
 
 Calvinism, its influence in promoting 
 democracy, 301. 
 
 Campbell, Lord, 124. 
 
 Candidates, few for high appoint- 
 ments, 411. 
 
 Canon of limitation of the historical 
 method, 46 ; of application, of his- 
 torical method, 48 ; regulative of ap- 
 plication of historical method, 48. 
 
 Carlyle, Revolution, 57. 
 
 Casuistry dealt with imperfect obliga- 
 tions, 225 ; founded by the Stoics, 
 225. 
 
 Casus belli, what, 336. 
 Cato, Dionysius, 118. 
 Causation, 63. 
 Cause, and first cause, 65. 
 Cazenove, 18. 
 
 Celtic race, what, 369 ; never had a 
 free town, 370 ; when pure incapable 
 of self-government, 370. 
 
 Centralization in University of France 
 has caused intellectual paralysis, 402. 
 
 Cerberus, 95. 
 
 Chalybseus rejects distinction between 
 perfect and imperfect obligations, 
 240. 
 
 Chance is mystery, 333. 
 
 Chancellor, Lord, 23. 
 
 Charity of the wise, 229. 
 
 Charles II. pupil of Hobbes, 306. 
 
 Chaucer, 118, 389. 
 
 Chevalier, Michel, 404. 
 
 Child, rights of, 171, 177. 
 
 Chinese, 19, 89; politics, 90; wisdom 
 summed up by Bunsen, 92 ; their 
 sciences identical with those of Euro- 
 peans, 196 ; their systems different 
 from those of Europeans, 196. 
 
 Christ, 28 ; accepts Roman law, 119. 
 See Christian and Christianity. 
 
INDEX. 
 
 455 
 
 Christian Fathers enclaemonists, 107; 
 anthropology, 125; teaching has sepa- 
 rated justice from mercy, not mercy 
 from justice, 266. 
 
 Christianity, 30 ; contradictory teach- 
 ing of, 83; evokes nature, 128, 130; 
 natural, 138 ; necessary, 138 ; must 
 be manly not austere, 368 ; not the 
 work of the many, 389 ; holds out no 
 hope of equality, either on earth or in 
 heaven, 443. 
 
 Church and Aristotelians, 131 ; since 
 Reformation has not maintained its 
 position, 135, 359 ; alone influences 
 will directly, 361 ; supernatural means 
 by which it influences the will, 361 ; 
 
 • natural means by which it influences 
 the will, 363 ; appeals to lower classes, 
 364 ; extent to which it may teach 
 politics, 364; must inculcate positive 
 duties, 366. 
 
 Church of Ireland, 212. 
 
 CJiurch, Protestant, advantages of, for 
 political purposes, 366. 
 
 Cliurch, Eoman Catholic, its political 
 influence, 366. 
 
 Churches endowed and unendowed, 
 360. 
 
 Cicero, 1, 9: n. 52; on Aristotle, 106; 
 inherited Stoical -traditions, 113; on 
 method, 113, 140; recognises iden- 
 tity of justice and charitj', 261 ; 
 holds the unity of the virtues, 274, 
 292. 
 
 Citizen army can be trusted only in 
 communities which recognize ine- 
 quality, 419. 
 
 Civil law, ]19. 
 
 Civilization, eff'ects of, in increasing 
 rights and powers, 204 ; not cause of 
 inequality, 410 ; causes separation of 
 classes, 411. 
 
 Class, middle, 349 ; the sphere of action 
 of the individual for the time being, 
 397 ; each demands a separate edu- 
 cation, 397 ; learned, political action 
 of, must be indirect, 405 ; all citi- 
 zens contained in each must be politi- 
 cally dealt with as equal, 412. 
 
 Classes as opposed to castes, their ob- 
 ject, 396 ; individuals pass from one 
 to another, 397. 
 
 Classical anthropology, 94. 
 
 Classilication has limits in both direc- 
 tions, 314; adojition of the principle 
 of, a confession of necessary imperfec- 
 tion of government, 412 ; does less 
 injustice than the want of it, 413 ; 
 political correspondents to economi- 
 cal and social, 415. 
 
 Cleanthes and Zeno, 112, 
 
 Clement of Alexandria, a Stoic, 125 ; 
 
 identity of divine and human Logos, 
 
 127. 
 
 Clergy, since Reformation, correspond 
 to Predicant Friars, 135 ; hampered 
 by symbols, 360 ; examples of teach- 
 ing politics b}', 395. 
 
 Code, primitive, 8. 
 
 Codifled law, 438. 
 
 Coleridge, 43, 111. 
 
 Commercial codes, 417. 
 
 Common law, 438. 
 
 Commonplace persons produced by 
 
 popular books, 380. 
 Common sense of mankind, recognized 
 
 by Thomasius as basis of natural law, 
 
 227 ; recognizes necessary sovereignty 
 
 of the rational will, 350. 
 Commune, 51. 
 
 Communities, the most highly organized 
 will produce best laws, and enforce 
 them best, 418. 
 
 Comparative philology, 68. See Max 
 Miiller. 
 
 Compulsion of criminal illusory, 246. 
 Conclusion, 438. 
 Confession, 138. 
 
 Confucius, 22, 89 ; his creed self-reve- 
 lation, 93. 
 
 Conquering nation, law of, how it may 
 become law of conquered, 347. 
 
 Conquest, right of, see Aggression; to 
 what extent involved in idea of 
 liberty, 332 ; of Roman Empire by 
 barbarians a real success, 334 • whuu 
 it justifies use of force, 335 ; volun- 
 tary, 335 ; may give freedom and 
 power, 347. 
 
 Conscience, judge must not consult in 
 trifles, 218 ; is moral consciousness, 
 145; modern theory of, in Scotland, 
 145 ; not a separate facult}-, 145 ; in 
 Avhat sense a direct revelation, 149 ; 
 development of, 149 ; Trendelenburg's 
 theory of, 152, 1 54 ; Grant's theorv oJ, 
 15.5. 
 
 Consciousness as a whole, 143. 
 
 Consent the only source of government, 
 308 ; constructive, by conquered na- 
 tion, 345 ; bypatient, infant, imbecile, 
 and criminal, 346. 
 
 Consolato del mare, an instance of con- 
 suetudinary legislation, 417. 
 
 Consolatio Philosophic, 118, 
 
 Consuetude, 8 ; how it effects direct 
 legislation, 417 ; means of declariu': 
 rational will, 417. 
 
 Continental Universities, 1. See Uni- 
 versity. 
 
456 
 
 INDEX. 
 
 Contract, law of, 437 ; primitive, 8. 
 Corn-law leacrue, 113. 
 Cosmoloo^y, 98. 
 
 Cosmopolitanism, 123. See Socrates, 
 Stoics, Buddhists. 
 
 Cosmos, See Ko&mos. 
 
 Coulanges, M. de, 29. 
 
 Cousin, 167 ; criticism of. Smith's doc- 
 trine of property, 249 ; distinguishes 
 between justice and charity, 251 ; 
 sensualist philosophy quoted, 255 ; 
 maintains duties without rights, not 
 rights without duties, 258, 293. 
 
 Creator, character of, is creature's mea- 
 sure of perfection, 16. 
 
 Creed, central of humanity, 54 ; see 
 Autonomy, necessity in Church^^ 360. 
 
 Criminal, laws, 189 ; law, theory of, 
 according to principles of positive 
 school, 245 ; higher nature consents 
 to punishment, 246 ; his own benefit 
 object of punishment, '^46 ; construc- 
 tive assent to punishment, 346. 
 
 Cromwell, 65. 
 
 Custom, earliest form of legislation, 
 
 417. 
 Cyrenaics, 144, 
 
 Aat'/xwJ', 25, 
 D'Alembert, 312, 
 
 Dante, 25; "Monarch," 305 ; held 
 
 doctrine of proportion, 328. 
 Darwin, 50. 
 Daughter, 69. 
 
 Death, a right, 169 ; of state, no resur- 
 rection from, 442 ; of state, does not 
 mean annihilation, 443. 
 
 Decisions, cannot be two in same case, 
 197. 
 
 Declaratory character of all law, 199. 
 Deer forests, 210. 
 
 D& facto principle, 180, 202 ; the 
 
 answer to political fatalism, 386. 
 De Finibus. See Cicero. 
 Definitions and Divisions, 1. 
 Degeneracy, pre-historic, 49. 
 Deity, 16. 
 
 Democracy, 50 ; plays into the hands 
 of despotism, 306 ; in Athens, meant 
 obedience to Pericles, 387 ; definition 
 of, 442 ; is it the necessary death of 
 the state, 442 ; repudiated as identical 
 with anarchy, 442, 445 ; states may 
 play with, 447. 
 
 Democratic fatalism rejected as a politi- 
 cal creed, 445 ; society does not admit 
 of government, 446 ; ultimate ground 
 for rejection of, 448. 
 
 Democrats of the Revolution, 312. 
 
 Denis, St., the type of an ideal demo- 
 cratic society, 386. 
 Dentist has general assent of patient, 346. 
 Descartes, 32. 
 
 Despotism, the logical result of Hob- 
 bes's system, 304 ; results from demo- 
 cracy, 446, 
 
 De Tocqueville, France before the Re- 
 volution, 233, 404, 
 
 Development, of conscience, 149; right 
 to conditions of, 173. 
 
 Deville Claire, 401. 
 
 Dhammapadam, 78. 
 
 Diderot, 312. 
 
 Difference of ability, effects of, on a 
 
 farmer and a ploughman, 410. 
 Digest, 9. 
 tii.Ka.Lov, 121. 
 
 Ai/ca/ov 8Lay€jj.r]TiKbu, diKaiov diopdujTLKbv, 
 328. 
 
 Dionysus, 97. 
 
 Direct revelation, 24, 
 
 Discipline, means voluntary acceptance 
 of law, 372 ; taught by arrange- 
 ments of nature, 372 ; first lesson of 
 politics, 373. 
 
 Distinctions, learned, make too many, 
 vulgar, make too few, 229 ; social, 
 rest on individual differences, 319. 
 
 Division, Ulpian's, 10 ; Gaius's, 11 ; 
 modern, 11 ; of ethical history of 
 Greece, 101 ; of objects of positive 
 law, 435. 
 
 Dog, rights of, 172. 
 
 Domestic relations, 437. 
 
 Donaldson, 29, 103, 126, 
 
 Doric legislation, 100, 
 
 "Drifting," tendency of higher classes 
 towards, 384, 
 
 Dualism, 17, 62, 450. 
 
 Duhitar, 69. 
 
 Dumas ascribes intellectual and moral 
 decadence in France to loss of ancient 
 universities, 402. 
 
 Duties, subjective, corresponds to rights, 
 166 ; subjective and objective, not 
 opposed, 183; objective, revealed by 
 nature, corresponding to subjective 
 duties, 188 ; M. Cousin believed in 
 them, 225 ; Roman Catholic Church 
 held them, 254 ; unilateral Stoics in- 
 consistent in their doctrines regard- 
 ing them, 254. 
 
 Duty to ourselves, what it involves, 166. 
 
 Eastern, or Indian Aryans, 69. 
 Economy, natural law ideal of, 206 ; 
 
 political, a science of nature, 214 ; 
 
 advantages derived from teacliing of, 
 
 377. 
 
INDEX. 
 
 457 
 
 Editors in pay of booksellers, 379, 
 
 Education, riglit to, 174 ; compulsory, 
 175 ; higher disregarded in demo- 
 cratic countries, 208 ; and autono- 
 mous power do not always correspond, 
 370 ; resulting in discipline alone has 
 political value, 371 ; obedience, first 
 lesson of political, 372 ; political, 
 cannot now be made compulsory in 
 this country as condition of suffrage, 
 375 ; political, ought to correspond 
 to responsibilities, 375 ; political in- 
 fluence of, 369 ; increases rather than 
 diminishes natural disparities, 409. 
 
 Ego, source of rights, 26 ; measured by 
 power of separate existence, 168. 
 
 Egypt, 56. 
 
 Electoral system must take cognizance 
 of differences, 416. 
 
 Elizabeth, Queen, 118. 
 
 Empirical method, = Utilitarianism, 36. 
 
 Enactment, human, 6 ; causes of its 
 imperfection, 7, 341. 
 
 Encyclopedia in Continental Univer- 
 sities, 1. 
 
 England has had great municipal 
 lawyers, 123 ; has had no scientific 
 jurists, 123. 
 
 English jurists contrast unfavourably 
 with schoolmen, 133. 
 
 English, their shallow conceptions of 
 jurisprudence, 133 ; false distinction 
 between law and equity, 276 ; why 
 more conservative than Scotch, 365. 
 
 Enthusiasm, characteristic of Turanian 
 religions, 89. 
 
 Epictetus, liberty the object of his 
 ethical system, 283. 
 
 Epicureans, 112, 144. 
 
 Equality and inequality, what rights 
 and responsibilities they imply, 205 ; 
 absolute, history of the doctrine of, 
 298 ; absolute, as a protest against 
 authority, 300 ; absolute doctrine of, 
 by the Jesuits, 301 ; doctrine of, 
 corner-stone of Hobbes's system, 302 ; 
 Spinoza's doctrine of, 306 ; Saisset's 
 criticism of, 307 ; assertion of, in 
 American " Declaration of Independ- 
 ence," 312 ; nothing done by French- 
 men to strengthen argument for, 
 since Kousseau's time, 313 ; Ahrens's 
 doctrine of, 313; physical, psycho- 
 logical, and metaphysical, 314 ; 
 Ahrens's argument for, confounds 
 genus and species, 316 ; of functions 
 held by Ahrens, 320 ; before the law, 
 only sense in which equality is invol- 
 ved in liberty, 322, 324 ; before the 
 law is analytic justice, 325 ; Aris- 
 
 totle's doctrine of, 327, 329 ; just in 
 law, only when true in fact, 332 ; how 
 understood b)^ the leaders and fol- 
 lowers of the Revolution, 393 ; will 
 not exist in heaven, 443. 
 
 Equalization, outcry for hinders econo- 
 mical reforms, 180. 
 
 Equity, English, 9 ; praetorian, 9 ; dis- 
 pensation of, by judge, 218, 229 ; false 
 distinction between, and law, 276. 
 
 Errors arising from erroneous concep- 
 tions of justice, 275 ; refuted by 
 being traced to their fountain-head, 
 300. See Aberrations. 
 
 Erskine, of Linlathen, 138, faith an 
 eternal reality ; identifies mercy and 
 justice, 266 ; God's dealings with 
 man are educational, 383. 
 
 Ethical and political preceded physical 
 science, 98 ; systems worked out into 
 rules of conduct, 284. 
 
 Ethics and jurisprudence, relation be- 
 tween, 279; in what sense co-exten- 
 sive, 285. 
 
 Ethics, ISTicomachian v., sense in which 
 used, 280 ; teaches proportion, 283 ; 
 sense in which its object is liberty, 
 328. 
 
 Eudaimonism, 35 ; what, 110. 
 Events reveal principles, 180. 
 Evidence, laws of, 48. 
 Evil, 22. 
 
 Examinations, 176. 
 
 Exceptional workmen, their function in 
 the community, 398 ; derive no aid 
 from mercantile press, 399; must be 
 set apart, 399. 
 
 Exchange of political sentiments in 
 modern communities, 354. 
 
 Exclusiveness, 87, 100, 393. 
 
 Execution, 6. 
 
 Existence must precede activity, 42. 
 
 Fact of being involves right to be, 167 ; 
 
 and all subsequent rights, 168, etseq. 
 FacuHcs, what, 229. 
 Faculty of law, 5. 
 Faith, 137. 
 
 Families can dispense with classifica- 
 tion, 413. 
 
 Father, mother, &c. Sanscrit meaning 
 of, 67, ct scq. 
 
 Fathers, 126. 
 
 Fergusson, Adam, 40. 
 
 Few always lead many, 387 ; always 
 guide advancing waves, 389. 
 
 Fichte, the younger rejects distinction 
 between perfect and imperfect obliga- 
 tions, 240 ; the elder adheres to Kant, 
 240. 
 
458 
 
 INDEX. 
 
 Filial obedience, 440. 
 
 Flatt, no perfect obligations, 241. 
 
 "Flesh," 110. 
 
 "Follow nature," 34; doctrine com- 
 mon to mankind, 43, 45 ; Stoics had 
 no claim to originating maxim, 113, 
 143. See yvuidc aeavTov. 
 
 Forbes, the Rev. G. H., 127. 
 
 Force, the root of law, 17, — life = ego, 
 
 168 ; or power, real and apparent, 343. 
 France, 51, 345 ; has become less au- 
 tonomous, 371 ; and Germany, their 
 relative positions the result of the 
 presence and absence of a scientific 
 professoriate, 400 ; poverty of eminent 
 men in, 401 ; vanquished by science, 
 401 ; oscillates between Catholicism 
 and democracy, 404 ; France nouvelle, 
 446. 
 
 Frankfort parliament of professors, 405. 
 
 Fraternity a doctrine which acts both 
 ways, 393 ; separate discussions of, 
 needless, 440; principle of, embraced 
 in guardianship, 441. 
 
 Frederick the Great, 233. 
 
 Freedom, 19, the object of jurisprud- 
 ence, see liberty ; the condition of 
 positive law, 344 ; and power may 
 come from subjection, 347. 
 
 Free trade, doctrine of, not of popular 
 origin, 394. 
 
 Gaius, division of law, 11. 
 
 Garutmat, 59. 
 
 Gathas, 76. 
 
 Gaunt, John of, 389. 
 
 Gerard, follower of Thomasius, 231. 
 
 Germany, 20 ; and France, their relative 
 
 position, 400 ; learned press in, 379. 
 
 See Aggression, and Alsace. 
 Gibbon, 117. 
 
 Gladstone, 102. ' " ' 
 
 Gnome, 104. 
 
 Gnostics held identity of the virtues, 
 274. 
 
 TvwOl creavTOP, in Sanscrit, 72 ; yi>Qi6c 
 aeavTbu, in China, 91 ; yvddi aeavrdu, 
 historical origin of in Greece, 104 ; 
 said by Hegel to have been first given 
 to the Greeks, 267. - 
 
 Vvdj/ar}. See Gnome. 
 
 Gobineau, Count, 61, 75. 
 
 God, personal, = primary source of 
 naturallaw, 16 ; conscious, 20 ; idea of, 
 59 ; God's will and morality identical, 
 161 ; rights have no validity against, 
 
 169 ; leaves no idea unlullilled, 443. 
 Good and useful, 108. 
 
 Gould, Mr., report on industrial 
 classes in Switzerland, 408. 
 
 Government, search for, in vain in de- 
 mocratic society, 448. 
 
 Grace and nature, 136. 
 
 Grant, Sir Alexander's, Aristotle, 41 ; on 
 savages, 50, 98 ; three eras of ethical 
 history of Greece, 101; "doctrine of 
 the mean," 105 ; on "follow nature," 
 115 ; theory of conscience, 155 ; criti- 
 cism of Butler, 158. 
 
 Greece, 94 ; as an organism, is dead, 444. 
 
 Grenada. See Suarez. 
 
 Gros-tete, or Greathead, 390. 
 
 Grotii, Gul. brother of Hugo, Encheir., 
 10, 39, 226. 
 
 Grotius, Hugo, 119, 123, 185, 201; his 
 merits, real and pretended, 132. 
 
 Guardianship, natural foundation and 
 limits of, 179; central idea of Posi- 
 tive School, 243; its application to 
 external politics, 245 ; embraces fra- 
 ternity, 441. 
 
 Guillotine, 51, 447. 
 
 Gundling, follower of Thomasius, 231. 
 
 Guthrie's Savigny, 36. 
 
 Hallam on ecclesiastical jurists, 129. 
 Hamilton, Sir William, 40, 143 ; laws 
 of parsimony and integrity, 151, 184. 
 Happiness, 35. 
 
 Hardy, Manual of Buddhism, 47. 
 
 Hedonism and Eudsemonism, 35 ; Aris- 
 totle no hedonist, 107. 
 
 Hegel, definition of natural law, 2, 19, 
 22, 36, 74 ; rejects distinction between 
 perfect and imperfect obligations, 
 240 ; opposed to equality, 357. 
 
 Hegelianism, 19. 
 
 Hell and purgatory, belief in, depends 
 
 on climate, 85, 86. 
 Helvetius, 312. 
 Henry HI., 391. 
 Heraclitus, 99. 
 Heraldry, 195. 
 Heresies, their source, 142. 
 Hermits and Anchorites, 128. 
 Hesiod, 103. 
 Hindu trinity, 74. 
 
 Historical method, 36 ; objections to, 
 37 ; canon of limitation of, 46 ; ap- 
 plication .of, 48 ; regulative canons 
 for aj)plication of, 48 ; impotent 
 against doctrine of absolute equality, 
 299. 
 
 Historicus, false doctrine of interven- 
 tion how accounted for, 223. 
 
 History, of opinion with reference to 
 autonomy, 45 ; of mankind not divisi- 
 ble into epochs, 267 ; repudiates doc- 
 trine of absolute equality, 299. See 
 historical method. 
 
INDEX. 
 
 459 
 
 Hobbes, 121, 185; repiidiates "histori- 
 cal method, 299 ; political doctrine 
 of, 301 ; system logical, 301 ; takes 
 equality for granted, 301 ; founds 
 jurisprudence in nature, 302 ; why- 
 government was introduced, 304 ; 
 ideal of government, 305 ; only logi- 
 cal advocate of equality, 324. 
 
 Hole, Mr,, liis "Book about roses," 209. 
 
 Homer, 25, 57 ; religion of, 102. 
 
 Honesty the best policy, 260, 
 
 Hooker, division of law. 
 
 Horace, 139. 
 
 Hospitals, 213. 
 
 Hottentots, not valuable as specimens 
 of humanity or teachers of anthropo- 
 logy, 52. See Savages. 
 
 Hugo, representative of historical school, 
 36. 
 
 Human nature, autonomy of, 39. 
 Humboldt, AVilhelni von, 234. 
 Hunter, Annals of rural Bengal, GO. 
 Husband and wife, 73. 
 Hass, 390. 
 
 Hutcheson, develops theory of moral 
 sense, 145 ; identifies virtue and bene- 
 yolence, 164; his opinion as to dis- 
 tinction between obligations, 228 ; 
 his doctrine of obligations, 235 ;' hesi- 
 tates as to distinction between perfect 
 and imperfect obligations, 236. 
 
 Idea of humanity object of ethics, and 
 
 ultimate object of jurisprudence, 279 ; 
 
 of state as of individual will be ulti- 
 
 matel}^ realised, 443. 
 Ignorance the source of vice, 260. 
 Immortality, Buddhist belief in, 80, 
 
 169 ; unattainable in states, 444. 
 Imperfection, 138. 
 
 Incapacity, only legitimate ground of 
 exclusion from rights, 348 ; tests of, 
 348. 
 
 India, 51, 59, 70 ; rule of British in, 
 245. 
 
 Indirect revelation, 26. 
 Individual and class effort, 383. 
 Individuals contribute to positive law 
 
 in proportion to their real i>ower, 
 
 349. 
 
 Inductive school, 31. 
 
 Inequality, see Equality. 
 
 Inheritance, laws of, rest on subjective 
 rights, 178. 
 
 International law, idea of originated 
 with the Stoics, though Buddlia had 
 preached brotherhood, 88, 122 ; its 
 function as a substitute for war, 335 ; 
 public and private, 437. 
 
 Introduction, 1. 
 
 Ionia, free cities of, 100. 
 Ireland, Church of, 212. 
 
 Jack Cade's insurrection, 391. 
 
 Jetferson, a born democrat, 313 ; author 
 of American "Declaration of Inde- 
 pendence," 313, 399. 
 
 Jerome of Prague, 390. 
 
 Jesuits, their doctrine of absolute 
 equality, 301. 
 
 Jews, 29 ; at Alexandria, 124. 
 
 Johnson's " Rasselas," 115. 
 
 Judge, function of the, 216; bound by 
 positive law, 217; analyzes case as 
 chemist analyzes substance, 395. 
 
 J udgraents, causes of failure of, 7 ; ne- 
 cessary inferences from national or 
 international law, and from local and 
 temporal circumstances, 194; human, 
 necessarily diverse, 217. 
 
 Jurisdiction, 6, 192. 
 
 Jurisprudence, its relation to theology, 
 21 ; analogy of, with sciences of ex- 
 ternal nature, 195 ; difference be- 
 tween, and heraldry, 195; relations 
 between, and ethics, 279 ; stands to 
 ethics in relation of species to genus, 
 281 ; and ethics, why confused with 
 each other, 282 ; ministers to perfec- 
 tion by perfecting relations, 282 ; 
 does not take cognizance of actions 
 alone, 286; science of, embraces legis- 
 lation, ih. ; special, 339. 
 
 Jus civile, 9. 
 
 Jus gentium, Eoman, 9. 
 
 Jus inter gentes, 10 ; divisions of, 437. 
 
 Jus naturale-, Roman, 9. 
 
 Jus strictum, 228. 
 
 Justice, Liebnitz's theory of, 228 ; dis- 
 tinctions of, cannot be maintained, 
 229 ; the charity of the wise, 230 ; 
 ■ and charity identical in prmciple, 
 248 ; and injustice, contradictories 
 not contraries, 253 ; and charity mu 
 tually include and exhaust each other, 
 258 ; and charity culminate in the 
 same point, 260 ; and charity, iden- 
 tity of, taught by scheme of redemp- 
 tion, 263 ; "and charity, identity of, 
 taught equally by deeper view of re- 
 demption, 265 ; and charity, identi- 
 fication of, not first promulgated by 
 Christ, 267 ; harmony in human rela- 
 tions, 274 ; in what sense identical 
 with beauty and truth, 275 ; analytic 
 and synthetic, 324 ; commutative and 
 distributive, 328. 
 
 Justinian, 101. 
 
 Justin Martyr, 127. 
 
 Jus voluntarium, 201. See Grotius. 
 
460 
 
 INDEX. 
 
 Kadis, 23. 
 Kalidasa, 60. 
 
 Kant, 109 ; theory of conscience, 150; 
 " Categorical Imperative," 151, 197 ; 
 followed Tliomasius in distinguishing 
 between perfect and imperfect obli- 
 gations, 231 ; distinguishes between 
 negative and positive rights and 
 duties, 232 ; over-legislation in his 
 time, 233 ; wishes to reduce state 
 interference, 234 ; holds freedom the 
 one congenital right, 281 ; opposes 
 legality to morality, 288 ; relation in 
 whicli the system here taught stands 
 to his school, 290 ; recognises neces- 
 sary sovereignty of rational will, 352 ; 
 does not advocate equality, 356 ; ap- 
 proves of the revolution at first, 233, 
 392. 
 
 Ka9T]Kov and KaropOco/xa, distinction be- 
 tween, 224. 
 Kepler, 197. 
 
 KhondsandSantals, 76. See Hottentots. 
 King never dies, 182. 
 King, or sacred books of Chinese, 90. 
 " King's Complaint," 118. 
 Knowledge of opposites simultaneous, 
 187. 
 
 Knox, 390 ; no advocate for equality, 
 
 301. 
 Koran, 132. 
 
 Kosmos, intuition of, 52 ; u.niverse must 
 be perfect, 342. 
 
 Krause rejects distinction between per- 
 fect and imperfect obligations, 240 ; 
 founder of positive school, 241. 
 
 Lafayette, 392. 
 
 Laity, called into spiritual life by Ee- 
 formation, 135. 
 
 Land, how much may be held, 209 ; in- 
 dividual property in, has necessary 
 limits, 209. 
 
 Landowners and capitalists ought to 
 maintain volunteers, 419. 
 
 Lao-tse, 91. 
 
 Lassen, Professor, 69. 
 
 Latin civilization, will it survive ? 50. 
 
 Latin, loss of, 135. 
 
 Law, natural, definitions and divisions, 
 1 ; in what sense used, 2 ; obeyed 
 before discovered, 4 ; faculty of, 5 ; 
 of nations, 8 ; of nature defined nega- 
 tively, 8 ; of integrity, 143 ; never 
 voluntary, 201 ; cannot constitute a 
 proprietary relation, 202 ; cannot fix 
 a price, 214 ; and ethics, consequences 
 of separating them, 223 ; and equity, 
 severance of, arising from imperfect 
 conception of justice, 276 ; positive, 
 
 sources' of, 339 ; of nature, reali- 
 zation of why impossible, 341 ; Ger- 
 man, in Alsace, 345 ; to the state and 
 of the state, 345 ; of marriage, illus- 
 tration from, to shew that general 
 rules are not unchangeable, 432 ; 
 public, 436 ; public, within the state, 
 
 436 ; positive, division of, into na- 
 tional and international, public and 
 private, 437 ; private international, 
 
 437 ; private, within the state, 437 ; 
 private, without the state, 437 ; public 
 international, 437 ; public, without 
 the state, 437 ; codified, 438 ; posi- 
 tive, unwritten, common or consue- 
 tudinary, 438 ; revealed, politically 
 orthodox, 438 ; treaty, 438 ; written 
 statute, 438. 
 
 Laws, of Manu, 73 ; of war, 189 ; are 
 inferences from facts, 190, 191 ; of na- 
 ture are realised in wider and narrower 
 spheres, 192 ; of nature determine the 
 objects of positive laws, 192 ; of na- 
 ture necessary inferences from facts, 
 194 ; of the nation, necessary infer- 
 ences from laws of nature and local 
 and temporal facts, 194 ; positive, 
 never perfectly discovered, 197 ; al- 
 ways declaratory, 199 ; too many in 
 corrupt states, 233 ; natural, cannot 
 be altered by prayer, 362 ; natural, 
 may be taught to children, 374. 
 
 Lawyer and priest, 22. 
 
 Law. See natural, positive, Roman, kc. 
 
 Leading and following the conditions 
 of progress, 386. 
 
 "Leaps in the dark," English confi- 
 dence in, 101. 
 
 Leckie, 45, 164. 
 
 Legal faculty, 23. 
 
 Legge, Dr., on Chinese religion, 93. 
 
 Legislation, 5, 6 ; principles of, 192 ; 
 impossible without knowledge of na- 
 tural law, 193 ; and jurisprudence, 
 relation between, 216 ; partial, afi'ords 
 no measure of power or reason of com- 
 munity, 348 ; means of declaring 
 rational will, 41 6. 
 
 Leibnitz, his connexion with elder 
 Thomasius, 226 ; misunderstood by 
 Christian Thomasius, 228 ; nova me- 
 thodus, 228 ; divisions of justice, 228 ; 
 did not separate perfect and imper- 
 fect obligations, 229 ; doctrine of 
 obligations, 229 ; epistle of, 230 ; his 
 doctrine of justice, 230 ; identifies 
 justice and charity, 230. 
 
 Levelling down, efi"ects of, 397. See 
 Equality. 
 
 Leviathan, Hobbes's, 303. 
 
INDEX. 
 
 461 
 
 Lewis, Sir G. C, 36, 48, note. 
 
 Liberie, egalite, fraternite, not neces- 
 sarily symbol of disorder, 438. 
 
 Liberty, positive side of, 182 ; right to, 
 embraces all our subjective rights, 
 
 182 ; proximate object of jurispru- 
 dence, 279, 280 ; the perfect relation 
 between human beings, 281, 294 ; 
 maximum of objective, condition of 
 attainment of highest subjective 
 liberty, 295 ; progresses and retro- 
 gi-ades with order, 296 ; ultimate 
 object of positive law, 422 ; eej^uality 
 and fraternity, each involves the other 
 two, 439 ; promises to vanquish an- 
 archy in Germanic nations, 449. 
 
 License not liberty in excess, 293. 
 
 Lieber's political ethics, 351. 
 
 Life, the root of rights and obligations, 
 39, 167, et seq. ; rights proportioned 
 to, 170; spiritual, provision for, ne- 
 glected in democratic countries, 208 ; 
 an educational institution, 373 ; of 
 nations, 443. 
 
 Light, eternal object of Aryan worship, 
 62. 
 
 Limitation of historical method, canon 
 of, 46. 
 
 Limitations imposed by nature on sub- 
 jective rights, the source of order, 
 
 183 ; objective, are apparent, 183 ; 
 subjective, are real, 183; natural, of 
 right of war, 335 ; of human auto- 
 nomy, 341. 
 
 Literature harder work than law, 410. 
 Livy, 134. 
 Locke, 148. 
 
 Logic used before discovered, 4. 
 Logos, 127. 
 Luther, 134. 
 Lycurgus, 100. 
 
 Magna Charta, gift of liberty by oli- 
 garchy, 391. 
 Magyars, 89. 
 
 Mahommedan fatalism, 20. 
 Mahomet, 22. 
 
 Majority, what they believe, 84 ; nu- 
 merical, blind trust in, 384 ; intelli- 
 gence of, must always be below aver- 
 age intelligence, 385 ; of mankind at 
 present savages, 385 ; never can be 
 source of progress, 388 ; Christianity 
 did not spring from, 389 ; does not 
 lead even mobs, 391, See Democracy. 
 
 Man, an unconscious, a contradiction in 
 terms, 267. 
 
 Manichaeism, 149. 
 
 Mansfield, Lord, 124. 
 
 Manu, 22 ; = man, 73. 
 
 Many always led by the few, 387. See 
 
 Majority. 
 Marcus Aurelius, 118. 
 Materialism, 19. 
 Maurice, 254. 
 
 Maxims, 101. See Gnome. 
 Max Miiller, 4, 31, 47, 49, 56, 59, 64, 
 97. 
 
 Mechanical inventions not of popular 
 origin, 395. 
 
 Mrjdev dyav, 105, 
 
 ^leyaXo-^vxio., 139. 
 
 Melanchthon, 136. 
 
 Melville, 390. 
 
 Merivale, 119. 
 
 MeaoTTjs, 105. 
 
 Method, historical, 46. 
 
 MerpLOTrjs, 105. 
 
 Merpou dpLcrTov, 105. 
 
 Mexico and Greece, inferior in civili- 
 zation to Sandwich Islands, 50. 
 
 Middle class, 349. 
 
 Mill, 35, 106. 
 
 Milton's Satan, 144. 
 
 Minos, 100. 
 
 Miraculous revelation to man, 24 ; 
 
 through man, 24. 
 Mitra, 59. 
 
 Mischief, wanton, right of property 
 
 does not warrant, 173. 
 Mob, the, its undue influence since the 
 
 Reformation, 134. See JVtajority. 
 Mcbs have their leaders, 391. 
 Mollahs, 23. 
 Mongolian tribes, 89. 
 Montesquieu, 85. 
 
 Moral actions, must they be *' unwill- 
 ingly" performed, 109; sense, 145. 
 See Ethics. 
 
 Morals, three eras of, 102. 
 
 Mosaic law, 139. 
 
 Moses, 22. 
 
 Muftis, 23. 
 
 Muir, Dr., 57, 62, 75 ; translations of 
 
 Vedic Hymns, 70. 
 Miiller on Sin, 42, 255. 
 MuUer. See Max. 
 Mure on Homer, 102. 
 Mysteries, 98. 
 
 Napoleon's conquests were not real 
 successes, 334. 
 
 National thanksgiving, its political 
 influence, 365. 
 
 Natural law described, 1 ; science of, 3 ; 
 natural realism, 187 ; when known, 
 the positive law of a given relation 
 may always be discovered, 194 ; right 
 of aggression, 332 ; special part of, in 
 all the older systems, 424 ; special 
 
4C2 
 
 INDEX. 
 
 part of, identical with positive law, 
 430 ; stands in same relation to general 
 and special rules of positive law, 430 ; 
 does not admit positive development, 
 435. 
 
 Nature asserts its existence, 39 ; hu- 
 man, autonomy of, 39; guarantees its 
 veracity, 41 ; the result of an exter- 
 nal cause, 41 ; a gift, 42 ; as neces- 
 sary, is right, 43 ; cannot be refused, 
 48 ; reveals its impotence, 137 ; re- 
 veals no rights in relation to Crea- 
 tor, 160; reveals duties to Creator, 
 162 ; reveals possibility and conse- 
 quences of transgression, 184 ; re- 
 veals objective corresponding to 
 subjective rights, 185 ; reveals only 
 subjective and objective rights, 189. 
 
 Neander, 28; Christlichen Etliik, 128; 
 on ixeyaKoxpvx'-o., 139. 
 
 Necker, 392. 
 
 Negative school of jurisprudence, 220 ; 
 and positive rights and duties, 232. 
 
 Neighbour, have I one ? 186. 
 
 Nemesis, 102 ; signilies moral indigna- 
 tion, 103. 
 
 Nepenthes, 85. 
 
 Newman's Arians, 127. 
 
 Newspapers, their value, 379. 
 
 Newton, 4. 
 
 Nic. Ethic. ; see Aristotle. 
 
 Nirvana or Nirwana, what, 79 ; popular 
 
 conception of, 82. 
 No'fiw KoKou vofjiii} KaKov impossible, 202. 
 Non-Aryan races, 76. 
 NoOs of Anaxagoras. 
 
 Obedience, a forgotten duty, 440. See 
 
 Guardianship. 
 Objective, or sensational school, 34. 
 Objects of positive law, 423 ; divisions 
 
 of, 436. 
 
 Objects of natural law, 277 ; of juris- 
 prudence, ultimate and proximate, 
 279. 
 
 Obligations, history of distinction be- 
 tween perfect and imperfect, 220 ; 
 no distinction in principle between 
 them, 220 ; perfect and imperfect, 
 history of distinction between, 220 ; 
 change their importance according to 
 circumstances, 222; distinguished by 
 Suarez, Grotius, and Puffendorf, 226 ; 
 distinction of, repudiated by Thomas 
 
 ; Aquinas, 226 ; Kant, doctrine of, 
 231 ; Hutcheson, views regarding, 
 235; Eeid's, 236; Stewart's, 237; 
 Brown's, 237, et seq. ; distinction be- 
 tween perfect and im])erfect, list of 
 modern waiters who reject, 240. 
 
 Observational school, 31. 
 
 Occam, 131, 390. 
 
 Ot/ceiwcTis of the Stoics, 189. 
 
 Old Testament, 65. 
 
 Oleron, rolles of, 417. 
 
 Omnipotence, 17. 
 
 Oneness, kinds of, 65, 
 
 One precedes two, 63. 
 
 Opera supererogationis, belief in, rests 
 on distinction between perfect and 
 imperfect obligations, 254. 
 
 Order, its source in limitations of sub- 
 jective rights, 183 ; means to attain- 
 ment of liberty, 184 ; and liberty 
 culminate together, 291 ; and liberty 
 identnml in principle, 291 ; regarded 
 as the object of jurisprudence, 292 ; 
 what, 295 ; can be enforced pnly by 
 those by whom it is accepted, 419 ; 
 proximate object of law, 422. 
 
 Oriental, or ante- classical anthropo- 
 logy, 55. 
 
 Originality destroyed by centralization 
 
 in France, 403. 
 Orpheus, 97. 
 'Ouyoai'dsr: Varuna, 71. 
 Over-legislation in Kant's time, 233. 
 
 Paley, 32. 
 Pantheism, 18. 
 
 IlapeK^daeLS. See Aberrations. 
 Parson means Persona, 111. 
 Pascal, 85. 
 
 Pasteur, i)amphlet by, 402. 
 Paternal authority, 440. 
 Paternity embraced in guardianship, 
 249. 
 
 Patience and resignation in Buddhist 
 
 creed, 81. 
 Paton, Sir Noel, verses by, 395. 
 Pauli, Dr., 391. 
 Patil, St., 146. 
 Pelagius, 147. 
 
 Pentagram, Bun sen's explanation of, 
 66. 
 
 Perfect and imperfect obligations, dis- 
 tinction between, 220, et seq. See 
 Obligations. 
 
 Perfection, 17 ; ultimate object of jur- 
 isprudence, 279. 
 
 Perfect positive law impossible, 198. 
 
 Periodicals published i'or profit dissemi- 
 nate, but do not advance knowledge, 
 379. 
 
 Pcrniques-hlondes, 51. 
 
 Persian dualism, 61. 
 
 Persona, 120 ; primary possession, 258 ; 
 
 source of rights, 258. 
 Personal contact renders ascertainment 
 
 of rational will more easy, 407. 
 
INDEX, 
 
 463 
 
 Pliarisees, 141. 
 
 Philips on jurisprudence, 226. 
 Piiillimore, 201. 
 Philo, 125, 127. 
 
 Piiiiology, comparative. See ^tlax 
 
 Miiller, 68. 
 Philosophy of law, 3. 
 Philosophical school, 33. 
 Phoenicia, as an organism, is dead, 414. 
 ^uXuKES, 242. 
 Physics in Greece, 99. 
 Piers Ploughman, 391. 
 Piety, 229. 
 Pindar, 137. 
 
 Plato, 290 ; and Aristotle, 106 ; 
 
 Gorgias, 296, 
 Plavfair, Dr. Lyon, 401. 
 Poland, 345, 
 
 Polemo, the teacher of Zeno, 113. 
 
 Political economy, why a science, 214 ; 
 graduation, results from, principles of 
 positive school, 244; maybe taught 
 in schools, 377 ; mortality, cliaracter 
 of, induction on which it rests, 444 ; 
 organisms die, 444. 
 
 Politics. See Aristotle. 
 
 Politics, European, impeded hy the 
 mob, 134; must be taught directly, 
 373 ; hardest of all work, 410 ; pro- 
 gressive and conservative schools of, 
 logically reconcileable, 438. 
 
 Polling-booth, how far a school of poli- 
 tics, 380. 
 
 Polytheism, 17. 
 
 Poor, have they rights ? 257. 
 
 Popular rt^ading, evils of, 380. 
 
 Possession, exclusive, limits of, ISO ; 
 its significance, 202. 
 
 Positive law, 5 ; and natural law not 
 distinguished by the obligations with 
 which they deal, 222 ; school, doc- 
 trines of, 242 ; school rejects exclu- 
 sive interests, 244; school rejects nu- 
 merical majority, 244 ; sources of, 
 ' 339 ; proximate sources of, 342 ; im- 
 plies freedom, 344 ; may arise from 
 external source, 347 ; springs from 
 whole autonomous community, 348; 
 effect of external influences in forma- 
 tion of, 355 ; secondary sources of, 
 359 ; objects of, 421 ; ultimate object 
 of liberty, 422 ; primary ami secon- 
 dary objects of, 423 ; primary object 
 of, order, 423 ; proximate object of 
 order, 423; secondary objects of, 
 the specific rules by which order is 
 realised, 424 ; changes like catalogue 
 of bookseller's shop, 434 ; objects of, 
 how classified, 435; division of into 
 national and international, public 
 
 and private, 437 ; division of, derived 
 from form in which rational will ex- 
 presses itself, 438. 
 Power, real and apparent distinction 
 between, 333 ; real, measure of right, 
 333 ; in what sense the primary 
 source of positive law, 342 ; the root 
 of law, 342 ; when real, 342, see Right; 
 apparent does not generate law, 343 ; 
 coincident with reason, alone not self- 
 destructive, 343 ; of conqueror may 
 be source of positive law, 345 ; can- 
 not be measured by partial legisla- 
 tion, 348. 
 
 Prayer, 133 ; its political influence, 361 ; 
 must be reasonable, 362. 
 
 Predicant Friars, 135. 
 
 Prescription, an illustration of de facto 
 principle, 202. 
 
 Press, mercantile and scientific, 378; 
 the, 378: learned, why more active 
 in Germany, 379 ; mercantile, evils 
 which counterbalance its good effects, 
 379 ; learned and popular, activity 
 of, in inverse ratio, 380 ; mercantile, 
 gives no aid to exceptional work, 399. 
 
 Prevost Paradol, 404 ; why a democra- 
 tic-fatalist, 445 ; patriotism in anta- 
 gonism with his creed, 446. 
 
 Professoriate, ofiice by which excep- 
 tional work is efiected, 399 ; its rela- 
 tive position in France and Germany, 
 401 ; conditions of an efficient, 405. 
 See University. 
 
 Progress, the work of individuals, 384 ; 
 does not tend to equalize individuals, 
 409. 
 
 Price cannot be fixed by law, 214. 
 
 Primary source of law, 15. 
 
 Primitive code, 33 ; condition of man, 
 49 ; beliefs, 49 ; contract, 55 ; intui- 
 tion of Godhead, 64. 
 
 Primogeniture, 206. 
 
 Principles of jurisprudence fixed by 
 natural laws, 192. 
 
 Private international law, 437 ; law 
 within the State, 437; without the 
 State, 437. 
 
 Probity, 229. 
 
 Progress rarely direct, 144, 
 
 Proletarianism, ISO, 
 
 Property, the idea of, 170; rights of, 
 do not imply indulgence of caprice, 
 179; how acquired, ISO; transmis- 
 sion of, in all eases instantaneous, 
 182 ; transmission of, inter vivos and 
 mortis cecum, identical in principle, 
 182; limits of, determined by o?5 facto 
 principle, 203; indefinite accumula- 
 tion of, how to prevent, 206 ; limita- 
 
464 
 
 INDEX. 
 
 tion of, less dangerous from suhjec- 
 tive side, 208 ; temporal limits to 
 rights of, 210; condemned by Rous- 
 seau, 312; Proudlion's view of, 312. 
 
 Proportion, 99 ; doctrine of, held by 
 Dante, 328 ; doctrine of, held by 
 Aristotle, 328 ; doctrine of, held by 
 Thomas Aquinas, 328 ; doctrine of, 
 its political importance, 329 ; doc- 
 trine of, finds application in every 
 branch of jurisprudence, 330. 
 
 Protagoras quoted in proof of Socratic 
 doctrine of the identity of the virtues, 
 269. 
 
 Proudhon holds that ' ' property is rob- 
 bery," 312. 
 
 Province of legislation cannot be de- 
 fined by drawing a line between per- 
 fect and imperfect obligations, 221. 
 
 Pessimism, 55. 
 
 Public and private law, 12. 
 
 Public law, 436; within the State, 
 three divisions of, 436 ; without the 
 State, two divisions of, 437. 
 
 Publishers, object of their existence is 
 to disseminate knowledge, 318 ; best 
 judges of books by which knowledge 
 will be disseminated, 379 ; do little 
 to encourage science, 379. 
 
 Publius Decius, 261. 
 
 Pufiendorf's system, 425. 
 
 Pundits, 23. 
 
 Punishment, capital, 246 ; corporal, 
 
 246 ; criminal's medicine, 246. 
 Puranas, 60. 
 
 Puritans, their political influence, 365. 
 Pythagoras, 57, 99. 
 Pythagorean Pentagram, 66. 
 
 Races, 49 ; different political aptitudes 
 of, 369. 
 
 Rational will, necessary sovereignty of, 
 recognised by common sense of man- 
 kind, 350 ; how formed, 359 ; means 
 by which developed, 383 ; means by 
 which the community ascertains it, 
 406 ; may be declared by legislation 
 or consuetude, 416 ; means by which 
 community declares it, 416 ; means 
 by which it is applied may be spon- 
 taneous, or by jurisdiction, 417 ; 
 means by which it is enforced, 418. 
 
 Raynal, 312. 
 
 Reaction against error more rapid as 
 
 civilization advances, 199. 
 Reading, indolent, hinders reflection, 
 
 380. See Press. 
 Reason, 18 ; and power, coincidence of, 
 
 as primary source of positive law, 
 
 342. See Rational Will. 
 
 Recognition, doctrine of, rests on de 
 facto principle, 202. 
 
 Rectitude, human, 46. 
 
 Red Indian, 53. 
 
 Red Republican, 53. 
 
 Reid, Doctor, inconsistency of his doc- 
 trine as to obligations, 237. 
 
 Reform Bill of 1832 condemned by 
 Hegel, 357 ; of 1867 repeats the error 
 of that of 1832, 357. 
 
 Reformation, what it taught, 133; not 
 the work of the many, 389 ; declined 
 when it became a popular movement, 
 390. 
 
 Regulative canons, 48. 
 
 Regulus did his duty, 261. 
 
 Reichstag, members of, why chosen by 
 universal suffrage, 357. 
 
 Relation, the perfect is liberty, 281 ; 
 between order and liberty, 291. 
 
 Relations, domestic, 437 ; social, 437. 
 
 Renan, 51 ; on Reformation, 129 ; on 
 the University of France, 404 ; re- 
 jects democratic fatalism, 447. 
 
 Representatives, political education of, 
 may be exacted, 376. 
 
 Repul)lic, the only realizable is anti- 
 democratic, 296. 
 
 Republican, Red, 53. 
 
 Responsibility depends on intention, 
 287. 
 
 Revelation, 24 ; indirect, 26. 
 
 Revolution, 134 ; truths of perished, 
 errors of flourished under popular 
 influences, 392 ; averse to free trade, 
 394 ; popular, Caesarism, its only new 
 idea, 394 ; popular, has produced no 
 leader of ability, 394 ; in what sense 
 alone its doctrines are realizable, 438, 
 et seq. 
 
 Right and wrong, 43 ; to be involves 
 right to continue to be, 168 ; to 
 be, and to continue to be, implies a 
 right to the conditions of existence, 
 170 ; proportioned to power of appro- 
 p)riation, 171 ; to be implies right to 
 develop our being, 173; to be in- 
 volves right to reproduce and mul- 
 tiply our being, 176 ; to reproduce 
 and multiply our being involves the 
 right of transmitting the conditions 
 of the existence which we confer, 
 177 ; to be involves the right to dis- 
 pose of the fruits of being inter vivos, 
 178; to be involves right to dispose 
 of fruits of being mortis causa, 181 ; 
 and power co-extensive, 203 ; of ag- 
 gression, 332. 
 
 Rights, none in relation to the Creator, 
 160 ; belong to organic existence as 
 
INDEX. 
 
 4G5 
 
 a whole, 171 ; proportion to powers a 
 universal law, 173 ; all subjective, re- 
 solve themselves into right to liberty, 
 
 182 ; absolute, belong to God only, 
 
 183 ; objective, corresponding to sub- 
 jective revealed by nature, 185 ; ob- 
 jective source of, 187 ; cannot be 
 modified by law, 201 ; cannot be limi- 
 ted bylaw, 201 ; cannot be constituted 
 by law, 201 ; cannot be conferred by 
 law, 201 ; cannot be altered by law, 
 201 ; cannot be adapted by law, 201 ; 
 public, are limitations inherent in 
 private rights, 211 ; inviolable, whilst 
 facts unchanged, 211 ; and duties re- 
 ciprocal and co-extensive, 220 ; and 
 duties inseparable, 258 ; subjective 
 and objective, inseparable, 259 ; can 
 be denied only on ground of incapa- 
 city, 348 ; of man, declaration of, 
 393. 
 
 Rig Veda Sanhita, 62. 
 
 Roder opposed to capital punishment, 
 172 ; rejects distinction between per- 
 fect and imperfect obligations, 240 ; 
 representative of positive school, 
 242. 
 
 Roman law, 119 ; rests on nature, 120. 
 
 Rome, Stoicism in. 111. 
 
 " Roses, book about," 209. 
 
 Roth, Professor, note, 57. 
 
 Rousseau denies separate social prin- 
 ciple, 189 ; Contrat social, 309 ; Bis- 
 cours stir I'origine et Us fo^adevimts 
 cle Vinegalite paroni Us homines, 
 309 ; next writer of distinction after 
 Spinoza, who advocates absolute 
 equality, 309 ; does not assume 
 natural equality, 310 ; man must be 
 decivilized, 311 ; thought men ought 
 to be equalized, 311 ; state of nature, 
 311 ; condemns institution of pro- 
 perty, 312. 
 
 Rousseau's system logical as an argu- 
 ment for revolution, 311 ; system 
 illogical as an argument for equality, 
 311 ; system afforded no measure of 
 right, 312. 
 
 Royal Society, Transactions of, 203. 
 
 Rule of life, a doctrine of relations,- 33, 
 143 ; what, 152. 
 
 Rules, special and general, of positive 
 law cannot be distinguished, 431. 
 
 Runymede, 391. 
 
 Russia, 345. 
 
 Rutherford, 235. 
 
 Sacerdotal class, 23. 
 Saisset, Emile, 22; criticism of Spin- 
 oza's political system, 308. 
 
 2 
 
 Sanscrit Texts, see IMuir ; study of, 
 58 ; words indicate beliefs, 68. See 
 Max :MiLller. 
 
 Satan, 22. 
 
 Savigny, 10, 36 ; recognizes necessar}^ 
 sovereignty of rational will, 353 ; 
 does not advocate equality, 356. 
 
 Scepticism, Hindu, 74. 
 
 Schelling, 49. 
 
 Schlagintweit, 47, 77. 
 
 Schleiermacher rejects distinction be- 
 tween perfect and imperfect obliga- 
 tions, 240. 
 
 School and University as a teaching 
 institution, 369 ; might teach natural 
 law, 377 ; ragged might teach rudi- 
 ments of politics, 377. 
 
 School inductive or observational, 31. 
 
 Schoolmen and Ecclesiastical Jurists, 
 128 ; their method scientific, 130. 
 
 Schools of juiisprudence, 26 ; negative 
 and positive, 220. 
 
 Schwegler, 50, 63. 
 
 Science, physical instruction in, does 
 not give political aptitude, 373. 
 
 Science and System, difference between, 
 195. 
 
 Sciences applied to practice are arts and 
 
 professions, 291. 
 Science of law, 4 ; of positive law, 6. 
 Sciences seek the realization of all the 
 
 virtues, 289. 
 Sclaves and Germans, 96, 
 Scotch Bench, 23. 
 Scotch doctrine of conscience, 145. 
 Scotch political education of freeholders 
 
 in 1494, 375. 
 Scribes, 23. 
 Seeley, 137, 440. 
 
 Selection of exceptional workmen for 
 exceptional work, one of the means 
 of developing the rational will, 397. 
 
 Self-assertion, 140. 
 
 Self-defence, 165. 
 
 Self-denial and self-interest synony- 
 mous, 260. 
 
 Self-devotion falls within sphere of 
 justice, 261. 
 
 Selfishness not self-interest, 260. 
 
 Selfish system, how far true, 185. 
 
 Self-sacrifice, by which true charity is 
 effected, always apparent, 260. 
 
 Semitic. See Shemitic. 
 
 Servms Tullius, 100. 
 
 Seven sages famed for political wisdom, 
 99. 
 
 Shaftesbury, 145 ; on the moral sense, 
 148, 162. 
 
 Shemitic and Chi'istian anthropolog}^, 
 125. 
 
466 
 
 INDEX. 
 
 Simeon, St., 129. 
 
 Simon de Montfort, representation of 
 commons traceable to personal influ- 
 ence of, 391. 
 
 Simon, M. Jules, 439. 
 
 Sin, 185. 
 
 Sismondi opposed to equal suffrage, 
 
 357. 
 Siva, 60. 
 Skin, black, 73. 
 
 Skins, human, tanned in France, 51. 
 
 Slavery, Roman theory of, 120. 
 
 Smith's Dictionary, names in, 387. 
 
 Social organization, a means of develop- 
 ing the rational will, 396. 
 
 Social relations, 437. 
 
 Society, enemies of historical, appeal 
 from nature to science, 299. 
 
 Society, no separate principle of, 189. 
 
 Society of France, democratic, 446. 
 
 Socrates, 25, 46, 53 ; his central ethical 
 doctrine anticipated in China, 91 ; 
 ethics of, 106 ; an eudajmonist, 107 ; 
 held the unity of the virtues, 269 ; 
 pointed out connection between order 
 and liberty, 296 ; prefers positive to 
 negative duties, 367. 
 
 Solidarite of interests recognized in anti- 
 quity, 260. See Buddha. 
 
 Solon, 100. 
 
 Soto, 119, 132. 
 
 Sources of natural law, 15 ; secondary 
 of natural law, 24 ; of positive law, 
 339 ; of positive law ultimate, 341 ; 
 of positive law proximate, 342. 
 
 Spain has become less autonomous, 371. 
 
 Special jurisprudence, 339. 
 
 Special revelation through man, 24. 
 
 Sjjinoza, liberty, the object of the state, 
 281 ; follows Hobbes in assuming 
 equality, 305 ; advocates freedom, 
 307; political system illogical, 307 ; ac- 
 cording to Hallam indicates no prefer- 
 ence for any form of government, 309. 
 
 Stahl rejects distinction between per- 
 fect and imperfect obligations,' 240. 
 
 Stair, Lord, 124. 
 
 Standing armies and citizen armies, 418. 
 
 Stanley, Dean, 119. 
 
 State, of nature, 8, 49 ; a teaching in- 
 stitution, 383 ; death of does not mean 
 annihilation, 443 ; survives in its ele- 
 ments, 443 ; its life may be indefi- 
 nitely prolonged, 445 ; dead must be 
 buried, 447. 
 
 States, small admit of peaceable aggres- 
 sion, 336 ; conditions of their inde- 
 finite longevity, 448 ; ultimate ground 
 for believing in their indefinite lon- 
 gevity, 449. 
 
 Stationary existence impossible to the 
 
 state, 399. 
 Statistical method, 36. 
 Statute law, 438. 
 Status, law of, 437. 
 
 Stewart, Dugald, retained distinction 
 between perfect and imperfect obliga- 
 tions, 237. 
 
 Stoical doctors, their influence, 112 ; 
 doctors, lists of, 113; doctors of She- 
 mitic blood, 115 ; distinction between 
 KadrjKov and Karopdooua, 224. 
 
 Stoicism, practical recognition of, 116; 
 speculative objections to not under- 
 stood in Rome, 117. 
 
 Stoics, 9 ; and Epicureans, 112 ; apathy 
 of, 85 ; three directions in which they 
 formulated the rule of life, 111; did 
 not invent the maxim " follow na- 
 ture," 113; why popular in Rome, 
 114 ; departed from nature, 115 ; pro- 
 claim unity of human race, 122 ; their 
 religious literature, 138, 144 ; founders 
 of causistry, 225 ; contradictions of, 
 254.' 
 
 Stowell, Lord, 123. 
 
 Strength, bodily, more required in 
 higher than lower occupations, 410. ■ 
 
 Suarez of Grenada, 21, 119, 132, 226. 
 
 Subjective and objective teaching, 26. 
 
 Subjective school, 33, 185. 
 
 Success immediate and permanent, 
 333. 
 
 Suffrage, theoretically no ultimate an- 
 swer to claim for, 349, see Proportion ; 
 universal, practical adoption of ren- 
 dered impossible by democratic legis- 
 lation, 349 ; evils of regarding it only 
 as a right, 381 ; has taught much in 
 England, nothing in France, 382. 
 
 Summa. See Thomas. 
 
 Summa of Schoolmen, 119. 
 
 Summum Bonum, European and Orien- 
 tal, 85. 
 
 Sun, 54 ; worship of, 97. 
 
 Hvpeldrjais, i46. 
 
 Supererogation, works of, 225. 
 
 Supernatural means by which the Church 
 influences the will, 361. 
 
 Stcum puique, not revealed as a law, 
 190 ; and " alium non Isedere, honeste 
 vivere," identical propositions, 229. 
 
 Symbol, effect of in limiting scientific 
 activity of the Church, 360. 
 
 Synthetic justice = proportional equal- 
 ity, 227. 
 
 Talleyrand, 404. 
 Tarreivos, 139, 
 
 Taxation, graduation of robbery, unless 
 
IXDEX. 
 
 467 
 
 coupled vritli graduation of political 
 power, 181. 
 TeXos of nature, tlie final object of all 
 law, 192. 
 
 Trj (pvcreL, not added to Stoical formula 
 
 by Cleantlies, 112. 
 Temperament, 143. 
 Ten Commandments, 28. 
 Terror, reign of, 51, 
 TertuUian, 51. 
 
 Testamentary power, natural origin of, 
 181. 
 
 Testimonia ponderanda, 53. 
 Thales, 99. 
 
 Theologia Germanica, 25. 
 
 Theological School, 27, 128. 
 
 Theology and jurisprudence since Refor- 
 mation, 134. 
 
 Thomas Aquinas, note 1 ; definition of 
 natural law, 3 ; division of I law, 3 ; 
 25, 42 ; an eudaemonist, 107, 119; 
 and Augustin, 130, 132, 140 ; favours 
 positive school, 236 ; distinguishes 
 between caritas and liheralitas, 248 ; 
 identifies justice and charity, 248 ; 
 on Aristotle's doctrine of the virtues, 
 268 ; distinguishes commutative and 
 distributive justice, 328 ; held doc- 
 trine of proportion, 328. 
 
 Thomasius did not first distinguish 
 obligations, 224 ; Christian, biograph- 
 ical notice of, 226 ; influence on 
 Scotch philosophy, 226 ; Christian, 
 influence of, in this country, 228 ; 
 misunderstood Leibnitz, 228 : claim 
 to have anticipated Kant in the dis- 
 tinction between negative and posi- 
 tive rights and duties, 232. 
 
 Threatening letter, 288. 
 
 Time limits rights, 210. 
 
 Tradition, one of the sources of Greek 
 religion, 98. 
 
 Treaty, law, 438. 
 
 Trendelenburg, 108, 110, 121 ; rejects 
 distinction between perfect and im- 
 perfect obligations, 240 ; on 5th book 
 of 'N'icom. Ethic, 328 ; theory of con- 
 science. 
 
 Trinity, Hindu, 74. 
 
 Troplong, 9. 
 
 Turanian races, 88. 
 
 Turgot, 404. 
 
 Twelve tables, 
 
 Ulpian, 121. 
 Ulemas, 23. 
 
 Unity of God, 62, et seq. 
 Universalism, 18. 
 
 Universal suff'rage, practical adoption 
 of, rendered impossible by outcry for 
 
 equality, 349 ; theoretically no ulti- 
 mate answer to claim for, 349. 
 
 Universe must be cosmos, 342. 
 
 Universities the only safe haven for 
 theolog}^, 135 ; as a teaching institu- 
 tion, 369 ; as institution for promo- 
 tion of science, 399. 
 
 University, error of regarding it as a mere 
 teaching institution, 399 ; greater 
 error of regarding it as a mere examin- 
 ing board, 399 ; institution by means 
 of which exceptional work is secured 
 to community, 399 ; theological, de- 
 partment of, emancipated from dogma, 
 400 ; theological department of, its 
 relation to the Church, 400 ; the 
 state in its progressive attitude, 400 ; 
 centralized of France has caused in- 
 tellectual paralysis, 402. 
 
 Upanisliads, 62. 
 
 'TtoOtikt], 104. 
 
 Ushias, the da^vn, 71. 
 
 Utilitarianism as a method, 35; as a 
 system, 34. 
 
 YAiirxA, 57, 59 ; = 'Ovpavos, 71. 
 Yeda older than Zendavesta, 75. 
 Yedichymns made to please the gods, 56. 
 Yirtues, the insepai-able character of, 
 
 held by Aristotle, 268; cannot be 
 
 exaggerated, 294. 
 Yolney, 312. 
 
 A'ormundschaft. See Guardianship. 
 Vox jyoimli, vox Dei, verses on, by Sir 
 
 >Toel Paton, 395 ; ultimately the 
 
 true doctrine, 450. 
 
 YTae, natural results from Hobbes's 
 system, 303 ; right of, how limited, 
 
 335 ; cannot be abolished till _ its 
 place as means of progress is supplied, 
 
 336 ; preferable to non-realization of 
 right, 336. 
 
 AYarnkonig rejects distinction between 
 perfect and imperfect obligations, 
 241. 
 
 Y^asiiington, did not hold doctrme of 
 equality, 313, 392. 
 
 Wat Tyler's claim to be father of com- 
 munism, 391. 
 
 Waves of history, advancing, always 
 guided bv few, 389. 
 
 Y'ealth, evils resulting from accumu- 
 lation of, 207. 
 
 Y'eeds sow themselves, 392. 
 
 Well-being, not being, the object of 
 nature, 177. 
 
 Y^estern Asiatic Aryans, 74. 
 
 Y'heaton, 201. 
 
 Wheel of the Law, 47. 
 
468 
 
 INDEX. 
 
 "Wickliffe, 136; political influence, 365, 
 389. 
 
 "Williams, tlie, v. Bishop of Salisbury, 
 218. 
 
 "Will, 141 ; rational, liow formed, 359 ; 
 rational, means by which the com- 
 munity ascertains it, 406 ; rational, 
 means by which it is applied may be 
 spontaneous or by jurisdiction, 417; 
 rational, means by which it is en- 
 forced, 
 
 "Wills, limited by change of circum- 
 stances, 213. 
 
 "Wirth, rejects distinction between per- 
 fect and imperfect obligations, 240. 
 
 "Witness, best, 48; higher races, best, 
 49. 
 
 "Wolff, school of, 233. 
 "Wolff's system, 424. 
 Wordsworth, 97. 
 
 World, a portion of Cosmos, 343. 
 Worm has rights, 172. 
 
 Xenophon, 46, 108. 
 
 Yama, 59. 
 
 Zeller, 20, 112 ; note, 94 ; on 
 
 crates, 108. 
 Zendavesta, 57, 75. 
 Zeno, 113; and Cleanthes, 112. 
 Zeus, 96. 
 Zoroaster, 22, 75. 
 
 MUIB AND PATEKSON, PRINTERS, EDINBURGH. 
 
Date Due 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 Lorimer, James, The insti- 
 
 
 tute of law. 
 
 
 L25633 
 
 
 DATE 
 
 ISSUED TO 
 
 
 '.^ - 1 
 
 tA56 33