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- THE ESSENTIAL NATURE OF LAW.
THE
ESSENTIAL NATURE OF LAW
OR
The Ethical Basis of J urisprudence
BY
WILLIAM S. PATTEE, L. L. D.
DEAN OF THE COLLEGE OF LAW
UNIVERSITY OF MINNESOTA
CHICAGO
CALLAGHAN & COMPANY
1909
COPYRIGHT, 1909
BY
CALLAGHAN & COMPANY
To THE STUDENTS
WHO HAVE BEEN UNDER MY INSTRUCTION
IN THE GRADUATE DEPARTMENT
OF THE
COLLEGE OF LAW OF THE UNIVERSITY OF MINNESOTA
THIS BOOK IS
REsPEcTFULLY DEDICATED.
r ‘Ia/Km?!‘
(arm
‘1* ._ p I 4-...
\J _J&_ 15.3":
"True law is right reason conformable to nature, uni-
versal, unchangeable, eternal, whose commands urge us
to duty, and whose prohibitions restrain us from evil.
Whether it enjoins or forbids, the good respect its in-
junctions, and the wicked treat them with indifference.
This law cannot be contradicted by any other law, and
is not liable either to derogation or abrogation. Neither
the senate nor the people can give us any dispensation
for not obeying this universal law of justice. It needs
no other expositor and interpreter than our own con-
science. It is not one thing at Rome and another at
Athens; one thing today and another tomorrow; but in
all times and nations this universal law must forever
reign, eternal and imperishable. It is the sovereign mas-
ter and emperor of all beings. God Himself is its author,
its promulgator, its enforcer. And he who does not obey
it ﬂies from himself, and does violence to the very nature
of man. And by so doing he will endure the severest
penalties even if he avoid the other evils which are usu-
ally accounted punishment.”—Cicer0, On the Common-
wealth, Book 11]. § 22.
INTRODUCTION.
This volume grew out of an effort to emphasize and
illustrate to the graduate students of the College of Law,
in the University of Minnesota, the essential nature of
law in its most general signiﬁcation. After studying J u-
risprudence for a period of three years, the student real-
izes that he has been considering but one of a numerous
species of law. The Laws of God, the laws of physical
nature, the laws of the human mind, and especially the
moral law, have often been called to his attention in the
legal works he has pursued during his course of under-
graduate study. He has observed that the word “Law”
is used in a great variety of senses, and that positive law
is in some way related to natural and moral law; but just
how and in what sense, he does not exactly comprehend.
And the more he reads history, political science, econom-
ics and other subjects more or less closely related to
Jurisprudence, the more confused and bewildered he be-
comes by the conspicuous use of the word Law and the
various senses in which it is employed. And if, in the
course of his reading, he makes excursions into philos-
ophy, into the various branches of physical and mental
science, into literature and religion, his perplexity and
confusion are increased by the prominence the word as-
sumes and the multitude of meanings it is used to con—
vey. By some it is said that the worlds were ‘ ‘created by
law,” the universe is “run by law,” the phenomena of
the worlds “are caused by law.” It is employed by others
as synonymous with principle; it is employed as a substi-
tute for the word “fact,” and to it is often attributed a
casual energy making it equivalent to the word “force.”
The bewildering effect of this most conspicuous and
IX
X INTRODUCTION
ambiguous term seemed to warrant an inquiry into the
essential nature of law in its true and most general sig-
niﬁcation. And, moreover, the human mind craves a
uniﬁed knowledge of whatever subject it studies. It de-
sires to hold its knowledge of law, as its knowledge of
every other body of facts, in the unity of a system. It
craves the largest possible generalization. It desires to
see the genus and species systematically arranged.
This inquiry seemed also desirable from the fact that,
in making it, a large number of laws, as they have been
formulated by the ablest thinkers in ancient and modern
times, would naturally be grouped and presented to the
student’s attention in a body; and by that means he would
be at least introduced to the various systems of metaphy-
sical, scientiﬁc, psychological, ethical and sociological
laws, a knowledge of which is necessary to every thor-
oughly equipped and liberally educated counsellor or
jurist in these days of rapidly advancing knowledge. And
moreover a general survey of the primary laws of reason
and of their regulative function in the ﬁnite world of
thought and of things; a similar survey of the laws or
phenomenal order of mind and matter, and a special con-
sideration of some of the most conspicuous laws operative
in the world of individual and social life, furnishes the
student a background upon which he can behold more
clearly the facts and laws of any individual science to
which he may devote himself as a specialist.
And this is particularly true of the student of Juris-
prudence, because the science of human law is related in
a peculiar way to all the branches of physical and mental
science in that the courts of the civilized world judicially
notice the laws of the various natural sciences as soon
as they become a matter of general knowledge, and they
give them effect where ever the interest of justice de-
mands it.
It might at ﬁrst appear that the student should master
these various branches of learning as a part of his pre-
paratory training for professional study. This, however,
is hardly possible. It involves a wide range of reading
INTRODUCTION X1
requiring an amount of time not at the student’s com-
mand, and a breadth of research for which he is not, as
a rule sufficiently prepared. The wide range of subjects
and the questionable number of electives now offered
in the college and university curriculums, make it possi_
ble for students to graduate without having studied meta-
physics, but few if any of the physical sciences, and little
or nothing of philosophy, which subjects deal with laws
that play a most important part in the moral and intel-
lectual life of man. And even the subject of ethics, upon
which jurisprudence is based, and which lays at the very
heart of social life and good citizenship, has almost dis-
appeared from the course of study in our institutions of
higher education. While offered, but a very inconsider-
able number of students ever elect it, and the result is
that the persons coming to the study of Law have little
knowledge of the science of ethics or of those other sci-
ences whose laws are the most conspicuous and important
in the discussions of this volume.
And besides the students coming from the college and
the university to the study of Jurisprudence, large num-
bers from the high schools are attracted directly to it
on account of the practical assistance it affords them in
business life, and also from a desire to enter early upon
their life work. This class of students is also unfamiliar
with the natural sciences, with metaphysical, psychologi-
cal and ethical truth, which are necessary to insure them
an intelligent understanding of law in its widest sense.
In view of these facts it seemed necessary to offer
those graduate students, who desire a broader view of
law, a wider range of knowledge, and a more thorough
comprehension of the ethical basis of Jurisprudence, a
course of study embracing the fundamental truths of
reason, the phenomenal order of the physical universe,
the rational and ethical nature of man, and the true
nature of law in its broadest signiﬁcation as deduced from
these studies.
But a stronger motive perhaps than any of these men—
tioned for making this inquiry into the essential nature
XII IN TROD U C TI ON
of law, was found in the desire of many ambitious stud-
ents to trace human laws to their origin. The scientist
desires to knowr the origin of physical life, the origin of
species, and the origin of mind itself. And this is not a
modern passion. Before entering upon his discussion
of the Civil Laws of Rome, Cicero said to Atticus, “Let
us then once more examine before we come to the consid-
eration of particular laws, what is the power and nature
of law in general.” He insists that both Justice and Law
derive their origin from God Himself; that they are eter-
nal and immutable. In his First Book, which abounds in
the sublimest moral and religious sentiments, Cicero con-
siders the origin and essence of law, its sources, its ob-
jects, and its operation. And in conclusion he says: ‘ ‘this
then, as it appears to me, has been the decision of the wis-
est philosophers—that law was neither a thing contrived
by the genius of man, nor established by any decree of
the people, but a certain eternal principle, which governs
the entire universe, wisely commanding what is right and
prohibiting what is wrong. Therefore they call that ab-
original and supreme law the mind of God, enjoining or
forbidding each separate thing in accordance with reason.
On which account it is that this law, which the gods have
bestowed on the human race is so justly applauded. For
it is the reason and mind of a wise being equally able to
urge us to good and to deter us from evil. * * *
Therefore, the true and supreme law, whose commands
and prohibitions are equally authoritative, is the right
reason of the sovereign Jupiter.” 1
In other words, Cicero’s position is, that the perfect
reason of God is the supreme law. But to the average
student, or to others unfamiliar with theistic philosophy
this general statement seems transcendental and practi-
cally meaningless. We are prompted, therefore, to ask
in what sense can reason be a law: in what sense can the
perfect reason of God be the supreme law of the universe.
In answering these questions, we are obliged to consult
theistic philosophy. There is a sense in which man’s
1De Legibus, 431-2.
IN TROD U C TI ON xIII
ﬁnite reason is said to be a law to his action. We are all
subject to the regulative inﬂuence of certain self-evident
and immutable truths, which are law to our action in
the sense that they determine what we can and what we
cannot do and what we can and what we cannot think. For
example, we can change the form and position of matter
but we cannot reduce it to non-existence. That “some-
thing cannot be reduced to nothing” is a law to physical
power in that it determines what that power can and
what it cannot effect. That truth says to power “you
cannot.” It is a law also to intellectual power in the
sense that it determines what that power can and what
it cannot conceive or imagine. The ﬁnite mind can con-
ceive of something coming forth from something but not
from nothing. It is a law of things also no less than of
thought. Water may ﬂow from a fountain in which there
is water, but it cannot ﬂow from a fountain in which there
is no water. What is true of this common and familiar
self-evident truth or law, is equally true of all the other
primary or intuitive principles of reason: consequently
we speak of the entire body or system of rational or in- a I
tuitive principles, and all the necessary inferences that
may be logically drawn from them, as law in its deepest and primary meaning. The term “primary law” then, “
@§,,,l,lsr_eafter... .emp1oyed,-..emb13aQQS all. ‘the s elf-evident
truths of reasonnwithmtheir necessary’ implications. It
embraces the axi'qriiatiicétruths“of ‘mathematics, all the
self-evidentmépiiihciples “of ' mechanics, and" all others, such
as thosewhich demand that “every beginning or change
of being must have a cause,” that a “thing cannot both
be and not be at the same time” and so on to the end
of the list. In philosophy these principles are called the
truths or principles of reason, because the mental faculty
by which man recognizes and knows them is called his
reason. These truths of reason then are law to man’s
actions: and when we say that “reason” is law to man’s
power, we mean to say that these “truths of reason” are
law to his power. The term “reason” and the words
“truths or principles of reason” are used synonymously.
XIV IN TROD U C T] ON
It is in this sense then that reason is law. The individual
“truths of reason” as above enumerated, and all others
similar to them are law to physical and intellectual power
in that they determine what that power can and what
it cannot do.
But there is also a moral intuition—a truth of reason
which lies at the very foundation of man’s moral nature.
Recognizing that he exists in a world of primary law,
where every event must have a cause, where things cannot
both be and not be at the same time, where the same space
cannot be ﬁlled with both light and darkness at the same
instant, where one body cannot be in two different places
at one and the same time, where a statement cannot be
both true and false, and where a certain act cannot be
both right and at the same time wrong, where the same
act cannot be at the same time both just and unjust,
recognizing that he exists, I say, in such a world of law,
man knows intuitively that he ought to conform his con-
duct to the demands of these laws, and not to waste his
energies in the futile effort to attain his purposes in oppo-
sition to them, in other words, man knows that as a ra-
tional being he ought to act rationally. Here man comes
out into the light of moral obligation. He knows in-
tuitively that he ought to conform his choices and his
conduct to the imperative demands of these fundamental
principles. He knows them as law to his will. He recog-
nizes himself now as living in a new world,—a world
of moral obligation. Through his reason, man knows
intuitively that he ought to conduct his life in harmony
with these universal and immutable realities. He knows
himself as a moral being, living with other moral beings
in a moral system. That “a rational being ought to act
rationally” is itself a truth of reason known intuitively.
It is the basal principle in the moral constitution of ra-
tional beings. Without it a moral system and a moral
life were impossible. Unless a person knew that he ought
to obey law, he would be guiltless if he disobeyed it.
Such then are some of the fundamental realities recog-
nized by ﬁnite reason, and known to reason as law to phy-
IN TROD U C T1 ON XV
sical, intellectual, and voluntary Power. In this sense
Cicero was correct in saying that reason, or the “truths
of reason” are law.
Then arises the somewhat venturesome question as to
whether these self-evident truths including the moral in-
tuitions, are true to the perfect reason of God and hence
are law to His will in the same sense that they are law to
the action of man. Theistic philosophy does not hesitate
to assert that this is so. It claims that all these self-evi-
dent truths are eternal in the Divine Reason, that they
are law to the Divine Will, that they are, therefore, the
supreme law of the Universe, that God created the Uni-
verse in harmony with them.
Cicero’s statement, therefore, that the perfect reason
of God is the supreme law, accords with this philosophic
view. It means that the self-evident truths in the perfect
reason of God are law regulative of all power in the Uni-
verse, physical, intellectual and voluntary. Those truths
or laws, determining what physical power can and what it
cannot effect, they determine what intellectual power can
and what it cannot conceive, and they determine what
voluntary power ought and what it ought not to choose.
Those truths may be thought of, therefore, as extending
down from the Divine Mind, and as being operative with—
in and throughout the realm of Physical Nature, and with-
in and throughout the realm of ﬁnite mind.
So it seems to be the belief of the ancients and likewise
of modern philosophers, that the perfect reason of God
is the supreme law, and in seeking the origin of law, we
ﬁnd it in the reason and not in the will of God. These
“truths or principles of reason” are eternal in the Eter-
nal Reason. They are constituent elements in the Eternal
Mind. They are eternal law to the Eternal Will. In har-
mony with them were all ﬁnite beings created, and obed-
ient to their immutable demands the evolution of Nature
and the history of man are determined.
And still another motive for making this inquiry was
the desire to point out and emphasize the ethical basis of
XVI IN TROD U C TI ON
Jurisprudence. That positive law has a moral basis is
generally assumed; but in just what sense human law is
founded upon Moral law is not so generally understood.
To show this relationship it is ﬁrst necessary to know in
what the Moral law consists. What is the Moral law‘?
How may it be stated‘?
We have endeavored to show that, as the law of gravi-
tation is the all-comprehensive law of the physical world,
so the “law of Social Service,” or “the law 0 love” as
it would be called in Christian ethics, is thewatlln-Jconzipre-
Auerback in the “Villa
on the Rhine” translates the lawm‘n‘dthlouwshalt love thy
neighbor as thyself” into a slightly different form but
substantially the same in essence “thou shalt serve thy
neighbor as thyself.” According to intuitional ethics
man knows that he ought to seek the perfection of all his
fpowers and susceptibilities so far as that is possible in
this life. In this respect he is to serve himself. But such
is the dependence and interpendence of human beings
in society, that man ﬁnds his own highest well-being, or
perfection and happiness, to depend very largely upon
the highest well-being of his neighbors.
If one person owes another a debt he can attain his own
highest good only by paying what is due to the other; if
he has injured his neighbor, he can attain his own highest
good only by compensating his neighbor for the damage
he has suffered; if he ﬁnds his neighbor in destitution and
distress he can secure his own highest welfare only by
tendering such assistance to the unfortunate one as his
means will warrant and the necessities of the case may
require; and if his neighbor is seeking the truth to which
he has a right, then the informer can attain his own high-
est good only by being truthful in his attempt to impart
the desired information. In order to serve himself best, he
must serve his neighbor also. In order to attain the high-
est degree of moral perfection and happiness, each one in
society must perform his duties to others, and if each one
performs all his duties to others then all of those others
will have all- of their rights, and no higher state of social
1N TROD UC TI ON XVII
existence can be conceived than that wherein all men have
all their rights and all men perform all their duties.
Now according to Justinian, “Justice is the constant
and perpetual wish to render everyone his due” ( J ustitia
est constans ct perpetual, ooltmtas jus sumus cmlque tri-
bucndz') . “W?”
J usticalggitﬂgiinds, subjective and objective. Sub-
jective jus@e.consistsffﬁfthiéfw'ill’is"choiﬁsehitm t6 tli'éIdemahﬂds
of the law. As Justinian has said it is the “constant
wish” to render to everyone his due. If one wishes to
pay his debt, or to compensate another for damage he has
wrongfully inﬂicted upon him, if he wills to do so, though
unable, he is nevertheless, a just man. His willingness
to meet the demands of duty constitutes subjective jus-
tice. But on the other hand, if the debtor actually pays
to the creditor the money due, and the creditor returns
the note or other evidence of indebtedness if any, or
if he who wrongfully inﬂicts an injury upon another,
fully and actually compensates the injured one for the
damage he sustained, and receives from him a full re-
lease and discharge of all claims for such damage, then
objective justice has been fully met and obtained.
Objective ujustice consists in the outward adjust-
master the rights and duties of persons. The actual
payment of the debt, the outward performance of the duty
meets and satisﬁes the other’s rights. After that, the
former debtor has no further duty resting upon him with
reference to that matter and the creditor has no longer
any rights to be asserted. The rights and duties have
both been fully canceled by their equitable adjustment.
Justice in both its forms, as subjective and objective, is
but one aspect of the moral law, “thou shalt serve (love)
thy neighbor as thyself.” In order to serve himself best,
in order to attain his own highest good, man must be just,
he must perform his duties to others, and in order to
serve others most effectually, and help them attain their
own highest good, he must regard and accord to them
their rights. Man’s own highest well-being and that of
his neighbors can only be secured by mutual helpfulness,
xvIII I N TROD U C TI ON
by the mutual discharge of their respective duties, and the
mutual recognition of their respective rights. Such is
the dependence of man upon man in society, such the
solidarity of the human race, that the individual can
attain his own highest good only by working for the high-
est good of other individuals, and this is all involved in
the fundamental and all-comprehensive law of ethics,
“thou shalt love (serve) thy neighbor as thyself.” That
rational beings, existing in a rational system, ought to
obey reason, and recognize and regard their reciprocal
rights and duties, and thus be just in spirit and just in
conduct, is a “truth of reason” which man recognizes
and knows intuitively. It is a fundamental truth of rea-
son that men are under obligation to be just instead of
unjust. Hence Justice has its origin in reason as the
great Roman contended in his discussion upon the laws.
“Let us begin then” he says “to establish the principle
of justice on that supreme law (Right reason) which has
existed from all ages before any legislative enactments
were drawn up in writing or any political governments
constituted * * * of all the questions which are ever
the subject of discussion among learned men, there is
none which it is more important to thoroughly under-
stand than this, that man is born for justice, and that law
and equity have not been established by opinion, but na-
ture has given reason, she has given also right rea-
son and therefore also law, which is nothing else than
right reason enjoining what is good and forbidding what
is evil. 1
It is not contended that this all-comprehensive moral
law of love is intuitively perceived in its completed for-
mula as uttered by the Master “thou shalt love thy neigh-
bor as thyself,” but upon occasions in experience this‘
truth that man ought to do his duty and regard the
rights of others, came out into individual consciousness,
and, at last, the truth in its generality was recognized
and given expression.
As already said, justice, in both its forms, is involved
1Cicero De Legibus 407-411-413.
IN TROD U C T] ON XIX
in this all-comprehensive law. Justice is but one aspect
of love. Love is the choice of a person as an object of ser—
vice. Benevolence and veracity are other aspects of the
same principle, but we emphasize the fact that Justice is
involved in and is an aspect of love because Justice, orig-
inating in the Eternal Reason, and intuitively known by
the reason of Man, constitutes the Ethical basis of posi-
tive Law. It is not too much to say, that Justice, in its
broadest meaning is the foundation of Jurisprudence, in
the sense that Civil government and human law are chief-
ly instituted in order to establish and maintain objective
Justice in the conﬂicting affairs of mankind.
To maintain justice is not, however, the sole object of
civil government. As an individual is to seek his highest
well-being, so an aggregation of individuals—a nation—
is to seek its highest well-being. The well-being of the
people is the supreme law. Public welfare must be re-
garded and such measures enacted, and such enterprises
undertaken as will best secure its promotion.
And again, I have prepared these chapters particu-
larly for the graduate students in our college of law,
with the hope that they may inspire the young members
of the Bar to extend their investigations beyond the nar-
row limits of positive law, and to familiarizethemselves
with the fundamental truths of philosophy, and science,
and civil government. To say that these principles are
of little or no practical consequence to the practicing
lawyer, is to underestimate their value and importance.
And be their practical value great or small, the culture
that comes from their study, the satisfaction that a know-
ledge of them affords, the consciousness of strength
which a familiarity with them awakens, the appreciation
which one versed in them has for the labors of others
devoted to their study, and the enlarged sympathies which
an acquaintance with these truths quickens in the minds
of men interested in their consideration, are sufficient
reasons for bringing these principles, truths, and laws
into one volume, where their essential nature may be
XX INTRODUCTION
readily recognized, and their relation to Jurisprudence
clearly seen.
And ﬁnally, it is but justice to myself to say, that these
chapters have been prepared during such fragments of
time as could be procured from the busy periods of daily
instruction in a growing college of law, and amid the
exacting duties incident to its management and growth.
I publish them sincerely hoping that they may stimu-
late future students to a broader culture, and to wider
and profounder thought, as I am frequently assured they
have already so stimulated many former students who
have pursued courses in the graduate departments of this
College.
TABLE OF CONTENTS.
CHAPTER I.
ESSENTIAL NATURE OF LAW.
/
.- Law is of extensive signiﬁcation—It is generic, primal, and uni-
versal in its inﬂuence—Jurisprudence as distinguished from law in
general embraces only such rules of action as are enforcible by
the state, and is a species of law under‘ the all-comprehensive
genus—The vagueness of the term “law” as conceived by the an-
cients is seen in the discussions of Demosthenes, Sophocles, Pindar,
Cicero, and others who discuss its power.—It is generally regarded
as all-controlling.-—It is used in many senses and hence indeﬁnite—
ness enshrouds the whole subject—To discover its true meaning
is the object of this discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
CHAPTER II.
NATURAL LAWS.
RELATIVE To IMPERsoNAL BEiNos AND THINGS.
1-13
In all primary law there is an element of ﬁxedness, and a reality
that resists or directs power.-—We must therefore look for the
ﬁxed and changeless realities in the ﬁnite universe—First, the
general properties of matter; second, the primary principles of in-
tuition, and all the inferences deducible from them are ﬁxed reali-
ties in the universe, and are laws in the true sense—The law of
reception and production, the law of contradiction, and the law
of the persistency of force are primary law—Law in a secondary
sense, embraces all the generalized facts, and orderly sequences in
the impersonal realm—The laws of the conditioning and the con-
ditioned—Survival of the ﬁttest or natural selection—Compensa-
tion—Use and disuse—Inertia, conformity to type, reversion to
type, law of battle, evolution, continuity, certain orderly sequences,
theories and hypotheses as law, force as law, organic life and the
law of biogenesis, animal intelligence and instinct as law, the phe-
nomenal order itself as law, the laws of Nature are not suﬁ’icient
entities, but modes in which force manifests itself . . . . . . . . . . . . . ..
CHAPTER III.
LAWS RELATIVE TO PERSONAL BEINGS, INDIVIDUALS.
Mind differs from matter in that it is self-active, self-directive
and self-determining—It is a single entity, with power to know,
capacity to feel and power to choose—It gains knowledge through
intuition, representation and reﬂection—Through presentative in-
tuition it acquires knowledge of facts, through sense-perception
ICXI
14-62
xxII TABLE OF CONTENTS
it gains knowledge of external facts, through self-conscious-
ness it gains knowledge of states of mind—Through rational
intuition it gains knowledge of universal principles upon some oc-
casion in experience—The laws of thought are true laws—Laws in
a secondary sense, in the nature of generalized facts and orderly
sequences, also prevail in the realm of mind, such as the laws of
association, and laws regulating the emotions—There are also cer-
tain primary laws regulative of choice, as the law of obligation. . ..
CHAPTER IV.
61-78
LAWS RELATIVE TO PERSONAL BEINGS CONTINUED—INDIVIDUALS.
Moral law—Conscience considered—It has an intellectual and
an emotive side—Authority is in the reason, not in the will of
God—“A rational being ought to obey reason.”—This is the basal
law in ethics—Reason commands man to be perfect—Persons
are ends to be served, and man knows intuitively that he ought to
serve himself and others; hence the law—“Love thy neighbor as
thyself.”—Man must love self—He must make the most of himself,
and aid others to make the most of themselves—The perfection
of life and the happiness incident to it constitute the ultimate end
of life—the smmnum bonmn—Spiritual law—Man ought to love
God—This love should be his motive in serving man—Man must
take the initiative in spiritual growth—The moral law has been
recognized from earliest days—The ancients referred to it often.—
Rights and duties developed from the moral law.—A man has a
right to all the means necessary to perfect himself—Life, liberty
and property are such means—A right is the claim one has to
anything accorded him by law—The intellectual and moral order
as law
I I l u l a a o I I I 0 O O t I 0 0 0 o 0 I I 0 a I I I u o u o Q o I 0 o 0 I 0 o I O o 0 I I 0 I 0 0 o o 0 0 I
CHAPTER V.
LAWS RELATIVE TO PERSONAL BEINGS, CONTINUED—SOCIETY.
Human society, an aggregation of individuals, is subject to law
both in its primary and secondary sense—Human society has pro-
gressed from simplicity to complexity in language, government,
music, art, and in every other line of social development—To learn
these laws of progress is to found the science of sociology—The
choices of persons are not necessitated—The law of causation does
not operate in the realm of moral freedom—We cannot success-
fully argue against the mind’s instinctive beliefs—There are well
deﬁned social laws consistent with man’s freedom.—There is a
general order in human affairs—Human society never by agreement
divided itself up into nations and located each nation—God is in
the course of human history no less than in the evolution of Na-
ture—Society is bound by primary principles—It cannot make
something out of nothing—Congress cannot make a dollar out of
ﬁfty cents, nor reduce a pound sterling to a dime—Human pro-
gress is ensured by the presence, in the human mind, of certain
desires, such as the desire for knowledge, for power, for esteem,
and for property—The law, according to which human progress
is made, is given by Spencer, from the simple to the complex.—
80-120
TABLE OF CONTENTS
XJIIII
The law, as stated by Spencer, Fiske, Sumner, and others is sim-
ply a statement of fact—Guyot states the “law of distribution
and development.”—Customs in human society are laws—There
is in human society a kind of spontaneous generation of customs.—
These customs perform a most important part-in human progress.—
Certain generalized facts in political economy are given as law,
and similar general statements in sociology are called laws, but
they are law in the secondary sense.-—Orderly and uniform se-
quences also appear, such as the law of supply and demand, the
circulation of cheap money drives the better money out of circula-
tion, etc. . . . ..
CHAPTER VI.
TEACHINGS or INTUITIONAL PHILOSOPHY.
The primary principles of intuition are self-evident.——These
principles are seen to be true by original insight—No proof can
make them plainer.-—They are also universal—They are consti-
tuent elements in the minds of all rational beings—They are uni-
versally regulative of power, and are everywhere and always law
to both thought and things.—Theistic philosophy teaches that they
are eternal in the eternal mind of God—As they are in ﬁnite rea-
son, the effect, so they must be in the eternal reason, the
cause—Carlyle shared this belief—All ﬁnite things and beings
were created in harmony with them—They are truth regu-
lative of power, and hence are laws in the primary sense of the
term
CHAPTER VII.
RIGHT, LIBERTY AND JUSTICE.
There is a triple system of Natural law—ﬁrst, all these funda-
mental principles eternal in the creative mind, which regulative of
all power physical, intellectual, moral, spiritual and social, con—
stitute what has been called the Supreme Constitution of the
Universe—Second, that which embraces all the laws operative with-
in and throughout the impersonal realm; and third, that which
embraces all the laws operative within and throughout the realm
of ﬁnite personal spirit—All these laws taken together constitute
what is often referred to as “the Nature of things.”—Any action
which conforms to these laws is called right; hence the right con-
sists in conformity to law—The wrong consists in non-conformity
to law.—Right and wrong imply law—Law is the only test—Lib—
erty consists in freedom to do right—Civil liberty consists in free-
dom to act in accordance with civil law—Natural liberty consists
in one’s freedom to act in harmony with natural law.—A person
is always free to act lawfully—Wig. the
wrong dorm—Justice is subjective and o jective— u ject1ve\jus-
tice is the perpetual wish to obey law—Objective justice is the
outward adjustment of rights and duties—Jurisprudence deals ex-
clusively with objective justice—Natural rights are universal and
inalienable.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 121-148
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 149-159
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 160-169
XXIV TABLE OF CONTENTS
CHAPTER VIII.
THE ETHICAL BASIS OF JURISPRUDENCE.
The moral law manifests itself in three forms, among others,
those of Justice, Benevolence, and Veracity.—The principle of Jus-
tice is not a separate and distinct principle by itself—Nor are
the principles of Benevolence and Veracity separate and distinct.
—There is but one all—comprehensive moral principle, and that is
the principle or law of love or service—When We apply the prin-
ciple of love in the reciprocal affairs of life, it is called the prin-
ciple of Justice, when applied to gratuitous actions it is called the
principle of Benevolence, and when applied to the impartation
of truth, it is called the principle of veracity.——The one law has
three names, as the lawyer when trying cases is called a practi-
tioner, when on the bench he is called a judge, and when writing
treatises on Jurisprudence he is called a j urist—one man with three
names according to his occupation.—Jurisprudence chiefly concerns
itself with justice, benevolence, and veracity—The moral law ac—
cords the individual certain rights and imposes upon him certain
duties; jurisprudence, recognizing these rights and duties, en-
deavors to enforce the performance of the duties and to protect
the rights—The sanctions of the moral law are, in many cases,
insufficient to secure its observance: jurisprudence adds others.—
Justice is the tap—root of jurisprudence, upon which it rests, out of
which it grows, and from which it draws its vitality—Subjective
justice is the wish to give everyone his due—It may exist while
objective justice is wanting and vice versa.-—Jurisprudence has to
do also with benevolence—It cares for the poor and unfortunate.
—Jurisprudence has much to do with veracity—Witnesses in
court must tell the truth—Fraud, deceit, lying and misrepresenta—
tions are scorned by the courts—Besides being based upon the
moral law in a peculiar way, jurisprudence recognizes the whole
system of primary truth, and also the phenomenal order of the
ﬁnite universe—The courts take judicial notice of these laws under
certain conditions, and give them effect in the administration of
justice—The adjudicated cases clearly illustrate this fact—Some
judges have declared these primary truths and generalized facts
of Nature to be a part of “the law of the land.” . . . . . . . . . . . . . . . . .. 170-206
CHAPTER IX.
HUMAN LAW.
Human law, in its broadest signiﬁcation, embraces all the rules
of action which human beings adopt or enact for the regulation
of their conduct—The rules which individuals adopt and follow for
the improvement of the mind, fall Within this deﬁnition—Such
are the lowest type of law.—Next higher are those that are de-
signed to regulate the external conduct of the individual exclusive—
ly.—Above these, in public importance, are those social customs
operative in human society which have no sanction except public
displeasure—A higher order of law is found in those rules which
TABLE OF CON TEN TS xxv
have a determinate source, and a speciﬁc sanction enforcible by
the originator of the rule—Legal rules, or law in its most com-
plete form, embrace all these rules of external human conduct
enforcible by state authority; constitutional and international law
fall properly under this deﬁnition. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 206-228
CHAPTER X.
DIVINE LAW.
If regarded with reference to their source, all so-called natural
laws may be as well called Divine—If regarded with reference to
the realm wherein they are operative, they may properly be called
natural laws-In any event they are of God . . . . . . . . . . . . . . . . . . . . .. 230-232
THE ESSENTIAL NATURE OF LAW
Or The Ethical Basis of Jurisprudence

CHAPTER I.
LAW.
Law is a term of extensive signiﬁcation. It is generic,
and among its various and numerous species, are em?
braced the fundamental laws of Reason, the general
properties and orderl * sequences of material things, the
primary laws of ﬁnite mind, as the laws of thought and
association, as well as those rules or laws of social con-
duct which human society endeavors to enforce, either
through the established instrumentalities of public justice,
or through the non-legalized agency of public opinion.
In this general sense Law is primal. Before the worlds
were, Law was. IVhen all the shining inhabitants of
space were yet in their primordial condition of nebulous
vapor, the laws of chemical afﬁnity and molecular motion
were in full force and effect; and if we dare venture back
in time to the origin of that nebulous mass itself, we must
believe that the law of causation was operative in the
workings of the Eternal Energy whence emanated that
morning mist: and if that Eternal Energy is the per-
sonal God whom we worship, then the laws of Reason
were regulative of His will, otherwise he could not have
been a Moral Being.
Law is also universal. Nothing is beyond the reach
of its inﬂuence. Matter and spirit are alike subject to
its sway. From the swoop of a planet to the fall of a
dew-drop, all is in conformity to Law. Even the choices
of the human will made in the realm of personal freedom,
are not thereby placed beyond its persuasive inﬂuence.
VARIOUS CONCEPTIONS OF LAW
To law is due that order of the Universe, material and
spiritual, which every ﬁnite mind, awakened to intelli-
gence, adores, and seeks to discover and formulate. Law,
as an object of investigation, is fascinating. It has ever
been the quest of thoughtful men. It explains things.
In its discovery the inquiring mind alone ﬁnds rest. To
trace things to their beginnings is the natural tendency
of every thoughtful mind. It was this craving that
prompted Virgil to say: “Happy is the man who is
able to discover the causes of things.” The explorer
does not rest until he has discovered the river’s source:
the scientist desires to know the origin of man, the
genesis of life, the beginning of ﬁnite mind, and, if pos-
sible, the very beginning and nature of God. Prompted
by this spirit, Caesar said he would gladly exchange the
glory of all his victories, for a single glance at the sources
of the Nile. So the mind craves to get behind the veil
of outward manifestations, that it may see, not only their
causes, but that it may also discover the laws that con-
trol their movements. The mind cannot rest amid the
confusion of un-arranged facts. It can only rest in the
genial light, and under the tranquilizing influence of
Law. So man ever presses back through the inﬁnite _
complexity of phenomena to the primal simplicity of
controlling principle.
Inﬂuenced by this potent tendency, the ancient phil-
osophic mind assumed the existence of some First Princi-
ple by which to explain the origin and orderly on-going
of the universe. Thales taught that water was the one
substance out of which all things were formed, but that in
it there was an intelligence that directed all its opera-
tions as the soul in the body of man controls all his ac-
tions. Anaximenes differed from Thales in that he af-
ﬁrmed air to be the original substance; while Anaxagoras,
recognizing the existence, without attempting to explain
the origin of matter, conceived the necessity of an efficient
cause, distinct from matter,which he found in an Inﬁnite
Mind that established order and controlled the on-going
of the entire universe.
' I!
THE ESSENTIAL NATURE OF LAW 3
Recognizing the law of interdependence among the ob—
jects that make up the sum total of created things, Science
came later to face the same question. In studying the
individual man, Science found him to be related to hu-
manity, and humanity to the rest of the animal creation,
and the animal kingdom related to the earth, and the
earth likewise, related to the solar system, and the
solar system itself is but a part of the entire physical
universe, and even the universe, in its totality, must be
dependent upon some force or being for its existence
and orderly development. But what is this First Cause,
“Is it matter or spirit?” Agnosticism answers that it
is an eternal energy, absolute and inﬁnite, concerning
which we know nothing more. Theism, on the other hand
replies that it is a personal being, otherwise there is no
explanation for the existence of ﬁnite persons now exist-
ing in, and forming a part of the universal whole,-—the
cause must be adequate to account for all that appears
in the effect. Whether, therefore, we study Philosophy
or Science, we are ever pressing back through the com-
plex to the simple, or assuming the existence of the invisi-
ble, the invariable, and the eternal, in order to explain
the tangible, the changeable, and the transitory. We
are ever seeking for a law to explain the existence of
order. And in passing out of the necessitated realm of
impersonal things, into the region of personal freedom,
we do not escape beyond the jurisdiction of law; for there
is ever the law of moral obligation, operative upon the
ﬁnite will. And in addition to these changeless laws of
nature, into and under which humanity was born, we
also ﬁnd in human society all those constitutions, stat-
utes, ordinances, and judicial decisions, comprising the
self-imposed systems of jurisprudence.
Under the term jurisprudence is comprised all those
rules of human conduct, enforced through the author-
ized or acknowledged instrumentalities of public justice.
All such enforceable rules are, in common parlance, desig-
nated the laws of man while all other laws, of what kind
or character soever, have been sometimes called the laws
4 VARIOUS CONCEPTIONS OF LAW
of Nature, and sometimes the laws of God. Importance
attaches to the distinction between the laws for whose
violation man has provided a sanction enforceable by
human courts, and which are all embraced under the term
jurisprudence, and all those other laws, under which man
lives, embracing the ﬁrst principles of Reason, the laws
of the physical universe, and the psychic laws of ﬁnite
personal beings. The ﬁrst, for the purposes of this dis-
tinction, will be designated human law, or jurisprud-
ence, and the others of every kind will be designated
natural law. Constitutions, statutes, judicial decisions,
decrees, and every other rule of human conduct, of whose
violation human courts will take cognizance, fall under the
ﬁrst; while under the second are to be found the three
classes of law embracing metaphysical truth, the laws
of the physical universe, and the laws of psychic life,
with the establishment and operation of which man has
nothing whatever to do; hence, all of those laws may be
properly designated natural, and for want of a better
term, they will be so designated in this discussion.
Human law is conditioned by, and is founded upon,
the natural, and one cannot thoroughly understand and
fully comprehend the former, who does not also under-
stand and comprehend, to some extent at least, the latter.
The human is a natural outgrowth of the natural. J uris-
prudence, which is temporary, rests upon a foundation
of law which is eternal. The former is changeable, but
the latter is changeless. Yet one essential characteristic
of all law is common to both the foundation and the
superstructure; therefore our investigation into the na-
ture, the scope, and the necessity of human law, leads us
to consider the fundamental principles of Reason, the
laws of the physical world and of psychic life, as a neces-
sary preparation to a thorough and comprehensive view
of the changing and vanishing forms of jurisprudence.
What is La/w?—At the very threshold of the investi-
gation into its existence and nature, the inquirer is con-
fronted with the question, “What is law‘?” and an an-
swer must be given to this question before its inﬂuence,
THE ESSENTIAL NATURE OF LAW 5
and its scope and function, in the universe, can be intel-
ligently discussed. Before he can discover a law, the in-
vestigator must know what it is. The sportsman would
hunt the gazelle to little effect, if he did not know one
when he saw it.
That we live in a universe subject to unchanging law,
has long been the assumption of the thoughtful. It has
been customary for men in public discourse, whether po-
litical, legal, moral, or religious, to make frequent and im—
passioned reference to the eternal principles of right and
wrong, to the changeless principles of eternal justice, to
the unvarying principles of truth, to the immutable laws
of the universe and to the supreme laws of God.
A universal order, conditioned upon law, was recog-
nized long before man could formulate, deﬁne, or classify,
the laws that secured that order; as the stars and their
movements were recognized long before a correct system
of astronomy was given to the world. Demosthenes says:
“In short, we shall ﬁnd nothing noble or useful which is
not associated with law: indeed the whole universe, the
heavenly bodies and the seasons, as they are called, if
we may trust to what we see, appear to be governed by
law and order?”l And the poet, Sophocles, refers in
sublime language to the higher law. Antigone had vio—
lated one of the king’s decrees, by doing what she re-
garded as her duty under a law superior to his, and Creon
says to her:
“And didst thou dare to disobey the law?”
And Antigone replies :
“Nowise from Zeus, methought, this edict came,
Nor Justice, that abides among the gods
In Hades, who ordained these laws for men.
Nor did I deem thine edicts of such force
That they, a mortal’s bidding, should o’erride
Unwritten laws, eternal in the heavens.
Not of today or yesterday are these;
But live from everlasting, and from whence
They sprang none knoweth. I would not, for the breach
Of these, through fear of any human pride,
To Heaven atone.”2
1 e m o s t h e n e s. II Oration 2 Sophocles. Antigone. (White-
against Aristogiton. (Bohn, p. 87). law, London, 1883).
6 VARIOUS CONCEPTIONS OF LAW
With many of the ancients, law has been clothed with
kingly and divine attributes, as in the Vedas, where it is
declared: “Law is the King of Kings, far more powerful
and rigid than they; nothing can be mightier than law,
by whose aid, as by that of the mightiest monarch, even
the weak may prevail over the strong.” 3 And Pindar,
the Greek poet, also uses language of ‘a similar import:
“Law is the king of all, mortals as well as immortals.” 4
And Chrysippus has the same conception: “The common
law, which is the right reason, moving through things,
indentical with Zeus, the Supreme Administrator of the
Universe.”5 And Cicero, who has been called the lens
that collected all the rays of intellectual light in his day,
speaks of law in much the same strain: “Let us then,”
he says, “once more examine, before we come to the con-
sideration of particulars, what is the power and nature
of law in general; lest, when we come to refer everything
to it, we occasionally make mistakes, from the employ-
ment of incorrect language, and show ourselves ignorant
of the force of those terms which we ought to employ in
the deﬁnition of laws. * i" This, then, as it appears
to me, has been the decision of the wisest philosophers,—
that law was neither a thing contrived by the genius of
man, nor established by any decree of the people, but a
certain eternal principle which governs the entire Uni-
verse, wisely commanding what is right and prohibiting
what is wrong. Therefore they called that aboriginal and
supreme law the Mind of God, enjoining or forbidding
each separate thing in accordance with reason.” 6
And again, he says: “Let us begin, then to establish
the principles of justice on that supreme law, which
has existed from all ages, before any legislative enact-
ments were drawn up in writing or any political govern-
ments were constituted.” 7 And in more modern’ times
reference is frequently made to some “eternal principle,”
some “pre-existing law,” but no deﬁnite conception of
3Sat. Br. 144.223., Br. Ar. Up. 5Apud Diogenes Laertius, VII,
1.4.14. (From Holland, Juris). 88.
4Apud Plato, Gorgias. (Jowett, 6Cicero, De Leg. Bk. 2. IV.
p. 73). 7Cicero, De Leg. Bk. 1- VI.
THE ESSENTIAL NATURE OF LAW 7
its character is made known. Thus Burke, in the trial
of Warren Hastings, indulges in several vague generali-
ties. “We are all born,” he says, “in subjection, all
born equally, high and low, governors and governed,
in subjection to one great, immutable, pre-existent law,
prior to all our devices and prior to all our contrivances,
paramount to all our ideas, and all our sensations, ante-
cedent to our very existence, by which we are knit and
connected in the eternal frame of the Universe, out of
which we cannot stir. This great law does not arise
from our conventions or compacts; on the contrary, it
gives to our compacts all the force and sanction they
can have; f” 8 So Tolstoi, in his book entitled
“My Religion,” paraphrasing the words of Christ, “think
not I am come to destroy the law or the prophets,”
makes Christ say,—-“I am not come to destroy the
eternal law, of whose fulﬁllment your books of prophecy
foretell. I am come to teach you the fulﬁllment of the
eternal law, not the law that your Scribes and Pharisees
call the divine law, but of that eternal law which is more
immutable than the earth or the heavens.”9 Charles
Sumner, in his renowned speech on the Barbarism of
Slavery, said: “There is a better law above and a
meaner law below that operate in the affairs of men;”
and Lord Brougham says to the same effect: “There
is a law above all human enactments of human codes—
the same throughout the world—the same in all times;
it is written by the ﬁnger of God upon the heart of
man-.7710
Besides these conﬁdent references to the higher, im-
mutable and eternal laws, so often made by both ancient
and modern philosophers, orators, and poets, there are
still more positive assumptions of universal and change-
less law, adopted by the vigorous scientists of these later
days, as they pursue their investigations, and construct
their venturesome hypotheses regarding this world of
matter and mind. Law is assumed, and Science is in
8.Burke’s 'Works, Speech on the 9Tolstoi, My Religion, p. 53.
Trial of Warren Hastings. 10 Heron, History of Juris. 24.
8 VARIOUS CONCEPTIONS OF LAW
quest of it. Draper voices the sentiment of Science in
the following lines: “It is of law that I am to speak
in this book. In a world composed of vanishing forms,
I am to indicate the imperishability and the majesty of
the law, and to show how man proceeds in this social
march in obedience to it. I am to lead my reader, per-
haps, in a reluctant path, from the outward phantasma-
gorical illusions which surround us and so ostentatiously
intrude themselves upon our attention, to something that
lies in silence and strength behind. I am to draw his
thoughts from the tangible to the invisible, from the lim-
ited to the universal, from the changeable to the invari-
able, from the transitory to the eternal, from the expe-
dients and volitions so largely amusing the life of man
to the predestined and resistless issuing from the ﬁat
of God.” And further he says: “The Government of the
world is accomplished by immutable laws. * it‘ i“ The
laws of nature never vary, in their application they never
hesitate nor are wanting. But in this ascending to pri-
mordial laws, and asserting their immutability, univer-
sality, and paramount control in the government of this
world, there is nothing inconsistent with the free action
of man.” 11
This brief view of expressed opinions as to the exist-
ence and universality of law would be incomplete without
the oft-quoted words of Hooker. “Of law there can be
no less acknowledged, than that her seat is the bosom of
God, her voice the harmony of the world: all things in
Heaven and Earth do her homage, the very least as feel-
ing her care, and the greatest as not exempted from her
power: both angels and men and creatures of what condi-
tion soever, though each in different sort and manner,
yet all with uniform consent, admiring her as the mother
of their peace and joy.” 12
These few citations of unqualiﬁed belief in the uni-
versal prevalence of regulative principles, superior to
human enactments, taken, as they are, from the abund-
11 Intellectual Development of 12 Eccl. Polity, Book I, Chap. 16,
Europe, Vol. 1, 20, 22. Sec. 8.
THE ESSENTIAL NATURE OF LAW 9
ance of similar references in the literature of philosophy,
poetry, science, art and religion, testify to the fact that
in all ages men in every ﬁeld of investigation have seen in
the movements and heard in the harmony of the spheres
unequivocal evidences of the actual existence of certain
regulative agencies supremely efficient and universally
operative.
But to assume or assert the existence of law does not
deﬁne or explain it. To believe that there is a law is one
thing, to tell in what it consists is quite another. Every-
body knows that there is water upon the earth, but that
it is composed of two parts of hydrogen and one of oxy-
gen in a ﬁxed and changeless ratio is a further fact un-
known to thousands who even spend their lives upon the
sea. To know that things exist does not explain their
nature: so the fact that law has been recognized from
ancient days as a regulative factor in the universe, does
not disclose its essential elements. Men, not knowing its
real nature, have likened law to other things which they
supposed they did know. They have likened it to a king,
they have called it the mind of God, they have pronounced
it a “certain eternal principle,” but always and every-
where they have attributed to it a controlling if not an
intelligent efficiency.
It is certainly desirable to know, if possible, the con-
tent of words so universally employed as the words
“law” and “principle;” and especially as such universal
consequences are ascribed to their inﬂuence in the world
of mind and matter. What is this “better law” to which
Sumner refers, and what is this “immutable pre-existent
law” so important in the eyes of Burke? Can the “eter-
nal laws of justice” to which the great English advocate
says we are subject, be enumerated, deﬁned and classi~
ﬁed? Who enacted this “higher law”? Where can we
ﬁnd it? Has it been committed to writing? In short, if
asked to state a single one of these eternal and immutable
principles, what would the average layman or even lawyer
reply? There is a general impression abroad that when
the “higher law” is referred to, the ten commandments
10 VARIOUS CONCEPTIONS OF LAW
are meant. That cannot well be, for not a third of the
human family ever heard of them, hence they would have
no higher law. Some might reply that by the “higher
law” is meant the “moral law.” But the question then
arises, what is the “moral law”? How is it stated?
Where can it be found clearly worded so we may know
just what it forbids or commands? The fact is that con-
stant reference is being made to these higher and un-
changeble laws, and this reference implies that men rec-
ognize a great body of law, distinct and separate, and
above that which is taught in the school, and applied
and enforced by the court. In fact, human law, such
as our text-books and reports and statutes contain, is
often condemned as being contrary to the laws of reason,
contrary to the eternal principles of right and wrong,
contrary to the ﬁrst principles of justice, and therefore
it is said that these human laws ought not to exist, or,
at least, ought to be made to conform to the higher law.
In this judgment and condemnation, these “eternal prin-
ciples” are considered as the higher and more perfect,
because the human law is pronounced unworthy of ex-
istence, being in conﬂict with them.
Now, if there is a code of laws higher, and better, and
more obligatory, than those in our books, we want to
know where that code may be found, where we can pro-
cure a copy, and, if not in book form, then where and in
what form they are written. The reference which has been
made from the earliest days to this superior system, and
the fact that the human race has always believed in its ex-
istence, and referred to it as supreme, and tested to a
certain extent its own humanly constructed enactments
by it, are the strongest possible evidences that it has ex-
istence somewhere, and that the race turns instinctively
to it for guidance. It is a worthy task to ﬁnd this‘ sys
tem of law, to deﬁne it, as far as possible, to examine its
relations to mankind and to trace its remarkable inﬂu-
ence in the text-books, the reports, the statutes, and in
the orders and judgments and decrees of our courts. In
this we are not undertaking something of no practical
THE ESSENTIAL NATURE OF LAW 11
beneﬁt. It is of the highest utility. In the Great Palace
of Justice in Paris, behind and above the judges’ chair
is placed the cruciﬁx, whose constant inﬂuence upon the
judge is supposed to incite him to temper justice with
mercy. So in every court room in the civilized world,
there is present an invisible system of “higher law” in-
ﬂuencing the judge, the jury, and the counsel, in the dis-
charge of their respective duties. Though invisible,
though we do not ﬁnd it in a bound volume beside the
statutes upon the judge’s desk, or upon the counsels’
table, yet its presence, like the invisible atmosphere, ﬁlls
the room, and its inﬂuence, like that of the air, affects all
persons incessantly, though perhaps unconsciously.
Its many senses—The word law is used in so many
senses that we are confused by it. We hear of the law
of nations, the laws of nature, the laws of right and
wrong, the laws of the mind, the law of the seasons, the
laws of chemical afﬁnity, the laws of general average, the
laws of the heavenly bodies, the laws of trade, the law of
supply and demand, the laws of thought, the laws of the
feelings, the laws of the will, the laws of life, and the
great law of human progress. And in these days of ad-
vancing science, we hear much respecting the law of evo-
lution, the law of heredity, the law of reversion to original
type, the law of the persistency of force, the law of the
survival of the ﬁttest, the law of the correlation of forces,
and especially are we nowadays referred to the laws or
“Principles of Sociology.”
Over forty years ago Dr. McCosh said, that “Science,
as it advances, has been widening the domain of law, and
has detected its presence where the unlearned saw only
caprice, and where the piously disposed mind was accus-
tomed to contemplate the Divine Power, acting independ-
ently of all instrumental causes. It is now acknowledged
that there are physical causes determining every ‘ﬁtful
breeze, and every forming cloud, and every falling
shower.’ But while there is an universal recognition
among the reﬂecting community of the existence of gen-
eral laws, there is about as universal confusion of ideas
12 . VARIOUS CONCEPTIONS OF LAW
as to the nature of these laws.” ‘3 Often the word “law”.
is applied to the self-evident truths of reason, also to the
general properties of matter; again to an “observed order
of facts” in the realm of the ﬁnite mind, as when we speak
of the laws of association; and besides being used in
these different senses, it is often spoken of as an active
agent. “Te hear it said that the universe was “created
by law,” that it is “controlled by law,” that human pro-
gress and all ﬁnancial disturbances are “regulated by
law,” as though “law” were an active agent, creating,
regulating, and controlling things; and so imbued has
our generation become with the idea that everything in
the universe is subject to uniform regulation, that when-
ever we behold an unusual and unexplainable phenome-
non, we at once ascribe it to some undiscovered law. Not
infrequently we think of a person shortly before he calls
upon us, and, commenting upon the inexplicable fact, we
ascribe it to some probable law of telepathy not yet dis-
covered.
Laws are again spoken of in a figurative sense, as when
they are represented as running through the universe of
both material and immaterial things. Henry Wood, in his
work on “Economics,” says: “Natural law is every-
where. Its lines, as they permeate the business world,
may not be so easily traceable as in material science,
but the evidence of their existence and rule is no less posi-
tive and unquestionable.” So, Henry Drummond, in his
work on “Natural Law in the Spiritual World,” says:
“The natural laws, then, are great lines running not only
through the world, but as we now know, through the uni-
verse, reducing it like parallels of latitude to intelligible
order?’
That thinking people are rapidly becoming conscious
that they live in a world of order, where all things ma-
terial and immaterial, personal and impersonal, are sub-
ject to perfect and unchangeable principles, is undoubt-
edly a blessing; but to ascribe to law inﬂuences and
powers and characteristics which it does not and cannot
13 The Divine Government,, Physical and Moral, 86, 87.
THE ESSENTIAL NATURE OF LAW 13
possess, and especially to apotheosize and exalt it to a
control which it does not and cannot exert, is not only
misleading, but it diverts the attention from the truth
and thus retards our real progress. The many meanings
attached to the word, the many powers ascribed to it,
its identiﬁcation with personal beings by some, and the
assertion by others that it extends like “lines running
through the universe;” the statement at one time that
the universe is controlled by law, and the further state-
ment at another time that the world “governs itself ac-
cording to law,” 14 all tend to confusion and perplexity.
Vagueness, like a mist, enshrouds the whole subject; yet,
from these numerous utterances of both ancient and mod-
ern authors respecting the existence and nature of law,
we have unmistakable evidence of its importance as a
factor in the world of thought, as well as in the world of
being; and if we can sketch, through the mist of confus-
ing utterances, but the faintest outline of law’s essential
features, it may possibly assist us to better understand
the frail and fading imitations thereof, which humanity
has made from age to age, for its own regulation, in its
efforts to grow better and wiser.
14 Buchner, “Force and Matter,” 51.
CHAPTER II.
NATURAL LAws.
LAWS RELATIVE TO IMPERSONAL BEINGS AND THINGS.
In the preceding chapter we have seen that from the
earliest historic times reference has frequently been made
to law as a controlling agency. Its “immutability, uni-
versality and paramount control” are its generally recog-
nized characteristics. The world is regulated by law says
Demosthenes; the unwritten law divine cannot be abro-
gated for it is immutable, says Antigone; it governs the
entire universe, says Cicero. That law in this generic
sense is something ﬁxed, changeless and universal seems
to have been the idea of the race from the earliest days
of reﬂective thought. Not only is this fact observed in
these general references to law made by poets and orators
but in the various languages of the world the word itself
carries with it the same signiﬁcation.
In the Greek, the Latin, the Arabic, and other ancient
tongues the idea of ﬁxedness, that which is decreed, laid
down, and established, is the dominating thought, in the
word “law.” And in the modern languages also, the
word conveys the same idea of permanency and change-
lessness. So, in our quest after natural law, we look for
the ﬁxed and abiding elements in the realms of mind and
matter, and having found them we can then ascertain in
what their essential nature consists.
As the deﬁnition of an object can only be accurately
formulated at the close and not at the beginning of its
analysis, so the deﬁnition of law can be properly framed
only after our investigation as to what immutable real-
ities there are in this world of mind and matter. Yet
there are some advantages in having a general idea of the
chief elements of law when we start out upon our inquiry
as to its nature.
THE ESSENTIAL NATURE OF LAW 15
We shall ﬁnd that law carries in it the two ideas of
some ﬁxed reality that resists or directs, and some force
or power which is resisted or directed—some reality that
regulates, and some power that is regulated. As in the
chief languages “law” means that which is permanent,
we must ﬁrst Search for the ﬁxed and changeless realities
in the universe, and then consider the forces or powers to
which those realities set ﬁxed and immovable limits. We
shall ﬁnd ﬁrst that there are certain fundamental proper-
ties and realities in the material world which compose the
true constitution of physical nature; and in the realm of
ﬁnite personal beings we shall observe another group of
ﬁxed and changeless truths which compose the mental
constitution of ﬁnite persons; and, considering the pe-
culiar nature of these primary truths universally opera-
tive throughout the ﬁnite universe, we shall proceed to
inquire whether they may not constitute the eternal laws
so often referred to by writers in both ancient and mod-
ern times, and whether they may not in reality compose
the supreme constitution in accordance with which the
ﬁnite universe was constructed.
But in a discussion of law in general it is necessary to
observe the distinction between law as a system of juris-
prudence enforced by human authority and law as the
totality of controlling principles operative throughout
the universe of mind and matter. Jurisprudence, or posi-
tive law, such as the common law of a country, the con-
stitutional and statutory provisions for the government
of a people and the ordinances and rules of human con-
duct enacted by men for the purposes of social order and
human progress, is the usual term employed by jurists
to cover all those enactments or principles adopted and
enforced by state authority. It is sometimes called hu—
man law in distinction from natural, and must be kept dis-
tinctly separate in thought from that system of funda-
mental principles which, independent of all human agency,
reigns throughout the boundless realms of both the phys-
ical and spiritual universe.
Jurisprudence is the theme of the jurist. He discusses
16 LAWS IN THE IMPERSONAL REALM
its origin, its growth and its history. He analyzes and
classiﬁes its parts and reduces them to a scientiﬁc form
and gives to the world the science of jurisprudence, or
what is frequently but inaccurately called the “science
of law.” The “science of law,” strictly speaking, in-
cludes within its classiﬁcations every known law in the
universe be it human or otherwise. Jurisprudence is but
one species under the genus “law”; and it is this dis-
tinction between jurisprudence as the body of principles
enforced by judicial authority and that other system of
controlling principles reigning throughout the world of
mind and matter that is here emphasized. Prior to any
human enactment there was a “reign of law.” Even
before the worlds assumed deﬁnite forms and selected
their respective circuits in the heavens, and even while
the primeval mist dwelt in the solitude of starless space,
or even before the “eternal energy” gave the initial mo-
tion to that nebulous vapor, we are led to believe that
there was the reigning law in the Moving Mind in accord-
ance with which the primeval matter performed its mo-
tions, took on its forms and selected its sublime pathways.
While the laws of mind and matter have been classi-
ﬁed under various terms, such as spiritual laws, mental
laws, physical laws and material laws, the term “natu-
ral” will here be employed to cover all the laws of
mind and matter, though that term has been used by dif-
ferent authors to cover more restricted portions of this
ﬁeld of inquiry. Laws that are self-enforcing are natural,
and the term natural includes all the fundamental prin-
ciples of mind and matter. The principles which are
constitutive elements in the nature of any person or thing
are natural and hence whenever those principles are regu-
lative of power of any kind they are natural laws. The
fundamental truth that “there can be no beginning 'or
change of anything without a cause,” is an original prin-
ciple of reason, and may as properly be termed a natural
law of mind as gravitation may be termed a natural law
of matter. So in its most general signiﬁcation the “Sci-
ence of Law” may be considered under the two heads of
Natural Law and Human Law.
THE ESSENTIAL NATURE OF LAW 17
Natural Law in its primary sensa—Directing our at-
tention in this chapter to Natural Law, our ﬁrst endeavor
will be to consider the fundamental realities in the realm
of material things. Our quest after law in its primary
meaning is but a quest after the immutable realities that
abide in the physical world. Pursuing the method of
science, instead of that of speculative philosophy, we
must begin our inquiry with the facts about us, and pro—
ceed from the things we know to the things we wish to
know.
Looking upon the physical world about us, among the
most obvious and changeless facts are the following so-
called general properties of matter:
1. The extension of matter.
2. The indestructibility of matter.
3. The impenetrability of matter.
4. The divisibility of matter.
5. Inertia.
Extension—All material objects have extension. Power
cannot rob matter of this property. That material bodies
must occupy space is axiomatic. Length, breadth and
thickness are fundamental realities of all bodies from the
atom to the planet. No power of thought can dissociate
them from matter in the abstract and no physical force
can do so in fact. Matter may be expanded, compressed,
divided and changed from place to place, but it cannot by
any kind or degree of power be deprived of its three di-
mensions. Force cannot create matter for whose exist-
ence space is unnecessary. Whatever else force may do
respecting material things, it cannot deprive them of their
space qualities. Extension then is a fundamental reality
inseparable from matter and is a law in the primary sense
of the term as that which determines what power can and
cannot effect.
Indestractz'bility.—Matter cannot be destroyed. It is
indestructible. It may be divided into countless parts,
dissolved by acids, transformed from a solid into a liquid
by heat and from a liquid into a vapor; it may be com-
pressed and expanded, or changed into numberless forms,
but never destroyed. That which is cannot be reduced to
18 LAWS IN‘ THE IMPERSONAL REALM
that which is not. “Something cannot be reduced to noth-
ing” is a self-evident and eternal truth of reason. Inde-
structibility is a fundamental and necessary character-
istic of matter. It is called a property of matter, and a
law of matter.
This reality of indestructibleness, setting a limit as it
does to power, is, in the true sense of the term, a law.
Impenetrabtlity.—Not only is matter indestructible but
it is impenetrable. One body occupies space to the abso-
lute exclusion of all other bodies. Here again we ﬁnd
a self-evident truth operative in the realm of matter. To
say that matter is impenetrable is to say that no two
bodies can occupy the same space at the same time, which
statement is axiomatic. Matter may be forced from place
to place, it may be forced indeﬁnitely upward or down-
ward; planets may be whirled around one another with
inconceivable velocity and atoms may be drawn together
by chemical afﬁnity with incalculable intensity, but neither
atom nor planet can be compelled by any degree of power
to occupy the same space at the same time with another
atom or planet. This, too, is a fundamental reality re—
specting matter, and hence impenetrability being regu-
lative of power is in the true sense of the term a law in
the realm of material things. This is a universal and
necessary truth and hence a universal law. Nowhere in
space can power of any kind over-ride this dominant
reality. It calmly resists all the conceivable assaults of
power.
DivisibiZity.—In theory matter is inﬁnitely divisible.
The mind cannot conceive of a division of matter carried
to such an extent that the parts may not be divided still
further. Force can reach no limit in its dividing process,
for inﬁnite divisibility necessitates inﬁnite time in which
to make the division. Matter does, therefore, defy the
action of power in its process toward an ultimate separa-
tion of matter into parts. If it is a fact, as theoretically
assumed, that matter in its last analysis is composed of
indivisible atoms, then the indivisibility of those atoms
is a ﬁxed and irrefragable reality pertaining to all the
THE ESSENTIAL NATURE OF LAW 19
elements of matter, and hence it becomes a law to force
in the primary and accurate sense of the word.
Inertia—Matter is inert. It is not, like mind, self-
active. At rest it cannot move, in motion it cannot stop
by any power of its own. Every change must have a
cause. If there is no efﬁcient force within an atom or
mass of matter, then there is no cause within it to pro-
duce a change of place. Being destitute of any inherent
causal efﬁciency, the dead lump of matter cannot be con-
ceived of as moving itself. As the mind cannot think of
an effect without a cause, it cannot think of matter desti-
tute of causal efﬁciency as moving itself. If there is no
cause either without or within matter, its motion would
be inconceivable. If there is a causal power without but
none within matter, then its self-activity is inconceivable.
As to whether or not the inertia of matter is self-evi-
dent has been discussed by metaphysicians, as we shall
hereafter observe, but that inertia is one of the general
characteristics of matter as it is now known, is unques-
tionable. To move it when at rest, power is necessary, to
stop it when in motion, power is also necessary. Power
may overcome inertia, but it cannot make unnecessary a
sufﬁcient cause for its motions.
These general properties of matter, its length, breadth
and thickness, its indestructibility, impenetrability and
divisibility are ﬁxed realities respecting matter and may
be said to compose its fundamental constitution. These
realities are the inexpugnable barriers over or through
which power has no ability to break, but to whose regula-
tive and directive characteristics all power is held in per-
fect subjection. These constitutional realities are regu—
lators of power of all kinds,—of intellectual in that the
mind cannot conceive of matter without these properties,
and of physical in the sense that they determine what
physical power can and what it cannot effect. The forces
of nature must respect these essential laws of nature
within whose inﬂexible framework they are permitted to
exercise themselves. These realities are the things
which we ﬁnd to be ﬁxed, immutable, invincible and as
universal as matter. They are not active agencies but they
‘20 LAWS IN THE IMPERSONAL REALM
are passive barriers. They are not intelligent self-active
forces, but they are dumb realities setting limits to all
the forces in the universe whether intelligent or unin-
telligent. They are simply realities regulative of power.
Primary Truth as Lawn—1n addition to these general
properties of matter there are other ﬁxed, immutable and
imperative realities which operate throughout the entire
physical universe. I refer to the primary principles of
reason, generally called self-evident truth. They include
the principles of mathematics and all the fundamental real-
ities of reason and the necessary inferences to be drawn
from them. Often spoken of as laws of thought, they are
in fact permanent and changeless laws to physical force.
Further consideration will be given these fundamental
truths in subsequent pages, when their nature and im-
portance will be discussed; but in order that their char-
acter as law in the material world may be recognized we
mention the following, not as a complete enumeration of
rational intuitions, but as examples of that important
class of fundamental truths which constitute law in the
physical system in its true and primary meaning. Among
the many truths of reason and the necessary inferences
that may be drawn from them which are regulative of
physical forces and conspicuously obvious in the material
world are the following:
(a) Every beginning or change must have a cause.
(b) The same complex of causes always produces the
same effect.
(c) Something cannot come from nothing.
(d) With ﬁnite agents reception must precede pro-
duction.
(e) Nothing can be and at the same time not be.
(f) If equals be added to equals the sums must be equal.
These truths are among the most common self-evident
realities and at the same time they are true laws of nature
regulative of all the physical forces in the world of mat-
ter. They tell force what it can and what it cannot do.
No force of any kind can change or annul these realities.
They are immutable, irreversible and universal. They
are persisting realities in a material world of endless
THE ESSENTIAL NATURE OF LAW 21
changes. They command material forces absolutely. It
is always and everywhere true that “every event must
have a cause.” No kind nor degree of force can render
a cause unnecessary to the production of an event. Force
may be the cause of events, but it cannot make a cause
unnecessary in a world of events. That is something
which force cannot do. Stated in its positive form the
law would be “Every change or new existence is and
must be due to some cause.” ‘Vherever we observe a
change in matter, either in composition, form, size, color,
or otherwise, we know that such change must have had
an adequate cause. 'We see the planets moving in their
courses, the ocean surging, the vegetable kingdom under-
going constant changes from season to season and the
animal world ever subject to countless beginnings and
disso utions, and behind all these mutations we know an
adequate cause exists. That any event should occur with-
out a cause is unthinkable.
The importance of this law, as illustrated in the ma-
terial phenomena about us, warrants a somewhat lengthy
quotation from Mivart:
“Every change in anything which already exists is,
in fact, a new mode of being; and therefore equally de-
mands a cause for its existence. It must, then, be due
either to something distinct from it, or to some antece-
dent mode of being of that which now exists in its new
mode.
“Thus, when we awake from sleep, our awakening
must be due either to something external which has awak-
ened us, or to some change which has taken place in our
own organism. In the latter case, that change or new mode
in our being, which we call ‘wakening from sleep,’ had
for its cause an antecedent state of our body—increased
vigor of the circulation or what-not.
“Moreover, all the various objects we see or feel must,
each of them, we know, he a result of the action of some
cause or causes external to it. This is, of course, most
manifestly evident with respect to every artistic product,
and everything which has been made by man. But a little
reﬂection will show that the same is the case with all the
22 LAWS IN THE IMPERSONAL REALM
products of nature. No stone we tread upon, no patch of
sand or mud, can have come to be what it is, save by the
action of antecedent causes. The shape of every moun-
tain is, at least, largely due to the action of water, and
so on. And this law of causation applies to the most
minute and simplest, as well as to the largest and most
complex, of bodies. Even pieces of matter, which, so far
as we yet know, consist of but one chemical element—such
as a fragment of gold or carbon—owe the shape, place
and the relations in which we ﬁnd them, to conditioning
causes. And carbon in its brilliant condition as a dia-
mond (a state we term crystalline) is equally an effect
of causes; and, as yet, all the causes which have produced
all the diverse and most deﬁnite forms of crystallisation,
which are characteristic of different minerals, are for
us mysterious.
“Any and every such object demands a cause for its
actually being in the place it is, at the time it is there,
for its size, its shape, etc., and for its relations to sur-
rounding things, as well as for any special qualities of its
own internal conditions. These special conditions would
demand a cause, even if such a body existed alone and
by itself in an otherwise empty universe—if we may per-
mit ourselves to frame for a moment so absurd an hy-
pothesis.” 1
This self-evident principle is a law to physical force
in that it determines what that force can and what it
cannot do. Physical forces can cause changes, produce
effect, but it is not possible for force by any conceivable
exertion to render a cause unnecessary for any particular
change in matter. In this sense this truth is a law to
physical power.
Complex of Causes—The truth that “the same com-
plex of causes will always produce the same effect,” needs
only to be incidentally referred to. This is a primary
truth, and no kind or amount of power can change its
nature or inﬂuence as a regulative reality in the ﬁnite
universe. In rowing a boat across a running stream, the
1 Mivart, Groundwork of Science, 258.
THE ESSENTIAL NATURE OF LAW 23
force of the current and the force exerted by the rower
will combine to effect a certain result, which, under like
conditions, will always be the same.
Another universal law is found in the truth that “some-
thing cannot come from nothing.” This is true in the
realm of matter and mind alike. Water cannot ﬂow from
an empty fountain, a living tree cannot come from a life-
less seed, and the feelings of love cannot exist in the
heart where there is nothing but hate. In all the affairs
of life this truth ﬁnds application. He who has no title
to property cannot convey one to another, and he who has
no money cannot give money to the poor.
The Law of Reception and Production is Self-evident.—
No finite being can give out that which it does not have,
and no ﬁnite being can have that which it has not ﬁrst
received. In mechanics this law ﬁnds constant and uni-
versal application. A machine can produce results only
in proportion to the power it has received. The locomo-
tive can draw a train across the continent upon condition
that it has ﬁrst received the necessary power. The same
law operates throughout the vegetable world. The tree
can put forth its foliage and its fruit only as it ﬁrst re-
ceives from the earth, the atmosphere and the sunlight
the necessary elements for their production and devel-
opment. All the cosmic forces are focused upon the plant
imparting to it their energy, in order that the plant may
issue its ﬂower and perfume. And even man himself can
accomplish nothing save as he receives his existence and
his powers from parents associates, food, air and count-
less agencies that play upon him from without.
Law of Contradiction—Nothing can be and at the same
time not be. This so-called law of logic ﬁnds endless illus-
trations in the realm of matter. It is a law of things, no
less than a law of thought. A piece of paper cannot be
white and at the same time black. A door cannot be open
and shut at the same instant. A person cannot be pres-
ent with me and at the same time absent. \Vater may
be either hot or cold at any moment but it cannot be both
hot and cold at the same moment. A star may be within
the range of human vision or it may be beyond it, but it
24 LAWS IN THE IMPERSONAL REALM
is impossible that it should be both in sight and out of
sight of the same observer at the same instant of time.
A body may be either square or cubical, but it is not possi-
ble that it should be both. So the illustrations of this
fundamental truth in the world of matter might be car-
ried to an indeﬁnite extent. This truth determines the
possibilities of physical force. It may fashion a block
of marble into the form of a Venus, or into the form of a
Hercules, but it cannot by any conceivable degree of
energizing give it both forms at the same time. The
truth or reality itself is a law to power determining
what it can and what it cannot do.
Concerning this principle as a law of objective phe-
nomena it has been well said:
“But, once more, it is no mere law of our own minds,
no affair of mere logic, since, if we areto accept as abso-
lutely true what our reason declares to be self-evident,
it is a law which applies to all things from physical phe-
nomena to mental states. Such we have seen to be the
case with respect to the various instances we have put
forward as examples. When we say that the number
of balls in a bag cannot at the same time be both “odd”
and “even”, we are certain that this is not a truth due to
our organization, but to the real necessary objective con-
ditions of existence of the balls themselves. Our reason
declares that the law of contradiction is no ‘form of
thought’ imposed on our intellect, but is a certain and
inevitable law of objective existence independent of our
intellect.
“To doubt this would be to destroy all certainty, since
it is a fundamental truth on which all reasoning depends.
“If we could not be sure that the fact that ‘all men are
mortal’ did not necessarily imply that none could live
forever we could never infer the mortality of anyone as
a consequence of his humanity. Thus for anyone to at—
tempt such a task as that of ‘proving’ the law of contra-
diction would be in the highest degree absurd, since he
would be compelled already to assume its certainty at
the very outset of his demonstration—at the very ﬁrst
assertion he made.
THE ESSENTIAL NATURE OF LAW 25
“Our perception, therefore, of the necessary validity
of the law of contradiction, teaches us both an absolute
verity with respect to objective existences—with respect
to the matter of all science—as well as the existence of
our own mental perception thereof.” 2
That “things which are equal to the same thing are
equal to each other” is known and daily acted upon as a
valid and incontrovertible principle, not merely as a form
of thought, but as a universal truth respecting bodies and
masses in the world of things. It is a law to physical
power in that it sets limits to the possibilities of power.
Power cannot make things that are equal to the same
thing unequal to each other.
Referring to this principle as a law of things as well
as of thought, Mivart also says:
“As with the law of contradiction, so with this axiom
—-it is practically known and constantly acted on in every-
day life without advertence to its axiomatic character, and
even without any knowledge of it as a recognized truth
at all. The familiar application of a yard measure to
different objects is an amply sufﬁcient demonstration
that such is the case. But the principle applies not only
to the equality of material things but to every kind of
equality-equality of motion, illumination, and feeling-—
and it is evidently a principle of objective validity, and
is a law of things no less than of thought.” 3
So it might easily be shown that all the self-evident or
primary truths of intuition and the necessary inferences
drawn from them are laws in the physical world, except
those moral intuitions which have to do exclusively with
the power of free-will. But enough has already been said
to illustrate how these ﬁrst principles are ﬁxed realities
regulative of physical force.
Persistency 0f Forca—It is interesting to observe that
the fundamental law of the persistence of force rests, as
a doctrine of science, entirely upon the self-evident truths
of reason. The whole structure of physical science rests
upon this simple principle. If this principle is unsound,
2 Mivart, Groundwork of Science, 246.
3 Mivart, Groundwork of Science, 247.
26 LAWS IN THE IMPERSONAL REALM
the science of material things is without foundation and
falls worthless to the ground. This is the basal princi-
ple of Physics, and it has an immovable foundation be-
cause it rests entirely upon the changeless laws of reason.
That the amount of force existing at any moment in the
universe never varies but must forever remain the same
is a necessary inference from the axiomatic truths, that
something cannot become nothing—as would be the case
if a quantity of force should cease to be—and that “noth-
ing cannot become something,”—as would be the case
if a quantity of force should appear when there was no
such force before. Force cannot create other force from
nothing, so the assertion that the sum total of force exist-
ing at any time is always the same, is a fundamental
reality respecting power itself. This reality also is a
law to power, for it is as impossible for power to create
other power from nothing as it is for it to create more
matter from nothing. Concerning this point Prof. Fiske
says: “How do we know that force is persistent? If
force is not persistent, if a single unit of force can ever
be added or subtracted from the sum total at any mo-
ment existing, our entire physical science is, as we have
seen a mere delusion. What proof have we
that no force is ever created or destroyed? Logically
speaking we have no proof. An axiom which lies below
all frameable propositions cannot be deductively demon-
strated. Nor can an axiom be demonstrated
inductively, without reasoning in a circle. We cannot
adduce the observed equality of action and reaction in
proof of the persistence of force, because this persistence
is taken for granted in every observation by which the
equality of action and reaction is determined. Obviously
it is impossible to prove the truth of an axiom by any
demonstration in every step of which the truth of the
axiom must be assumed. i“ if 'We are compelled to
believe in the persistence of force, because it is impossible
to conceive a variation in the unit by which force is meas-
ured. It is impossible to conceive something becoming
nothing, or nothing becoming something, without estab-
lishing in thought an equation between something and
THE ESSENTIAL NATURE OF LA W 27
nothing, and this cannot be done. Thus, the
proof of our axiom is not logical but psychological, and
as was formerly shown this is the strongest kind of
proof.” 4 a
It may be that the time will come when every ante-
cedent and consequent, when all the orderly and uniform
sequences with which physical nature abounds, may be
traced each to its underlying principle of reason, in ac-
cordance with which it operates, and because of which it
cannot be otherwise than it is. Already many of the
phenomena of nature which appear as mere uniform se-
quences, have been found to rest on some rational ﬁrst
principles and to owe their uniformity to the immuta-
bility and universality of the underlying law. Upon this
point Doctor Harris observes:
“Some laws of nature, which are usually regarded as
merely uniform sequences, do in reality rest on rational
principles from which they derive all their signiﬁcance
as laws. The law of gravitation is commonly spoken of
as expressing merely an observed uniform sequence, but
in truth this law is not known by experience, but is de-
duced from an a prior?) mathematical principle. The
same is true of the law of dispersion of light. Also, when
science carries an observed sequence beyond the observed
facts, the induction rests entirely on self-evident intui-
tion of reason. Also, the laws of mechanics rest partly
on the law of causation and partly on mathematical prin-
ciples both of which are ﬁrst principles of reason.” 5
Indeed we are already taught that “the uniformity of
nature is a necessary result of the law of causation, which
necessary and self-evident truth gives the eﬂicient and
necessary support to that expectation which good sense
and human testimony combine to produce in us.” 6
That these self-evident, universal and immutable prin-
ciples, disclosed through man’s rational intuition, have
an objective reality and are fundamental truths regula-
tive of the material forces of the universe and hence laws
4 Fiske, Outline of Cosmic Phil., 1. vol., 284-5.
5Harris, Phil. Basis of Theism, 186.
6 Mivart, Groundwork of Science, 262.
28 LAWS IN THE IMPERSONAL REALM
in the primary meaning of the term as that which regu-
lates power, seems to be incontrovertible, unless we deny
unqualiﬁedly the trustworthiness of the human intellect.
NATURAL Law IN A SECONDARY SENSE.
Generalized Facts as Lam—But in this physical uni-
verse there are many so-called laws which are law only
in a secondary sense. We hear the word “law” con-
stantly upon the lips of men devoted to the physical sci-
ences, when they have in mind nothing but the general-
ized facts or an orderly sequence of phenomena or events.
They speak of the laws of motion, the laws of light, the
laws of heat, the laws of sound, the laws of electricity,
the law of the seasons, the law of evolution, and the law
of gravitation. Let us state some of these laws as they
have been formulated by science, and examine them with
a special view of ascertaining whether they are laws in
the true sense of the term, or whether they are laws only
in the secondary sense; meaning the general facts and or-
derly sequences in the realm of nature. Among the mul—
titude of natural laws now generally understood are the
following:
Gram'tatioa—“Every particle of matter in the uni-
verse attracts every other particle with a force directly
proportioned to the mass of the attracting particles, and
inversely to the square of the distance between them.” 7
Newton’s Laws of Motion:
1. “Every body continues in its state of rest, or of uni-
form motion in a straight line, except in so far as it is
compelled by force to change that status.”
2. “Change of (quantity of) motion is proportional to
force, and takes place in the straight line in which the
force acts.”
3. “To every action there is always an equal and con-
trary reaction; or, the mutual actions of any two bodies
are always equal and oppositely directed.” 8
7International Encyclopedia, Vol. 7. page 28.
8Ency. Brit. Vol. 15, Page 676.
THE ESSENTIAL NATURE OF LAW 29
Kepler’s Three Laws:
1. “Every planet moves in an elliptical orbit, in one
focus of which is the sun.”
2. “The line drawn from the sun to a planet, or the
radius vector of the planet, sweeps over equal areas in
equal times.”
3. “The squares of the numbers representing the peri-
odic times of the planets vary as the cubes of the numbers
representing their mean distances.” 9
Liquids—Besides these laws pertaining to solid mass-
es, we have the same term applied to certain facts respect-
ing liquids, as “\Vhere pressure is exerted on any part
of the surface of a liquid that pressure is transmitted
undiminished to all parts of the mass and in all direc-
tions. ’ ’ 1°
Gases—And in the case of gases we have the law of
Avogadro: “Equal volumes of all gases under the same
conditions of temperature and pressure, contain the same
number of molecules. ” 1°
Atoms—And when we pursue our investigation down
into the very atoms of which matter is supposed to be
constructed, we ﬁnd the law of deﬁnite proportions,—
“Chemical combinations always take place between deﬁ-
nite masses of substances.” 11 And to this may be added
the law of multiple proportions,—“If two elements form
several compounds with each other, the masses of one
that combine with ﬁxed masses of the other bear a simple
ratio to one another.” 12
Heat:
1. “Every body has a deﬁnite melting point assignable
on the thermometric scale, if the pressure to which it is
subjected be the same.”
2. “When a body is melting it retains that ﬁxed tem-
perature, however much heat may be applied, until the
last particle is melted.” 13
Light—To these may be added the laws of light:
9 Ency. Brit. Vol. 2, p. 779. (9th 11 Remsen, Introduction to Chem-
Ed.) istry, 194.
10 Inter. Ency. Vol. 7, p. 746. 12 Id. p. 74.
13 Inter. Ency. Vol. 7, 396.
3O LAWS IN THE IMPERSONAL REALM
1. “In a medium of uniform density light goes in
straight lines with a uniform velocity.”
2. “The intensity of light varies inversely as the
square of the distance from its source.”
The laws respecting refraction of light are stated as
follows:
1. “In passing into a denser medium light is bent.
toward a perpendicular to the surface at the point of inci-
dent.”
2. “In passing into a rarer medium, light is bent from
the perpendicular.’ ’
Electricity—In electricity we have Ohm’s law that:
“In electricity the quantity of current which will pass
through a conductor is proportional to the pressure and
inversely proportional to the resistance.” 14
Sound—The laws regarding sound have been stated
as follows:
1. “The velocity of sound varies inversely as the
square root of the density of the substance.”
2. “The velocity of sound varies directly as the square
root of the elasticity of the substance.”
Then again we have the law of reﬂection of light and
sound which is that: “The angle of incident is equal to
the angle of reﬂection.”
We may take these few selected specimens of the laws
of nature as illustrations of that vast Natural Code to
discover and formulate which is the arduous task of sci-
ence. But when we carefully examine these so-called
laws we shall ﬁnd them to consist of generalized facts
respecting the behavior of matter, rather than truths
or general properties of matter regulative of power. For
example, when it is said that, “every particle of matter
in the universe attracts every other particle with a force
directly proportional to the mass of the attracting parti-
cle,” the statement is one of uniform fact. Masses of
matter always attract one another in that way. If we con-
ceive of matter as a substance by itself, and force as a
power outside of matter, but exerted upon it, then the
14 Inter. Ency. Vol. 5, 330.
THE ESSENTIAL NATURE OF LAW 31
statement is simply one asserting how force behaves '
toward matter. It uniformly compels all masses to tend
toward each other in a uniform manner. And if we con-
ceive matter as a substance possessed of attracting forces
within itself, then the statement is simply an assertion
as to how such matter uniformly behaves. To say that
any body unsuspended in the air will tend to fall toward
the center of the earth sixteen feet the ﬁrst second is
simply to make a general statement as to how all bodies
uniformly act; and it is this uniformity of action which
is by science called a law.
To say that every body at rest continues at rest, or,
if in motion, continues in motion in a straight line, except
in so far as it is compelled by force to change that state;
to say that the change of motion is proportional to the
force, and that to every action there is always an equal
and contrary reaction is to make simple statements of
fact respecting the behavior of matter or the conduct of
force. To say that all planets move in an elliptical orbit,
with the sun in one of its foci, is to make a statement of
fact respecting the relation of planets to the sun. And _
if this is true as to the orbit of Mars and Venus and Jupi-
ter and so on through the entire solar system, then this
is a uniform arrangement in that particular, and science
calls that uniform, orderly arrangement a law. If the
radius vector of a planet sweeps over equal areas in equal
times, and this is true of all planets, this is but a general-
ized fact,—-the uniform manner planets have of behaving
themselves. If the pressure exerted upon one part of
the surface of a liquid is transmitted undiminished to all
other parts of the mass in all directions, and this is true
of all cases of pressure upon all kinds of liquids, then
this is but a statement of fact which is found to be uni-
formly and universally true. If equal volumes of all
gases, under the same conditions of temperature and
pressure, contain the same number of molecules, this is
a uniform fact throughout the realm of gases, and science
calls it a law. If two elements forming several com-
pounds with each other always combine in a ﬁxed ratio
chemically, this is simply stating how atoms behave them-
32 LAWS IN THE IMPERSONAL REALM
selves and is therefore a mere generalization which the
chemist calls a law. If when a body is melting, it re-
tains a ﬁxed temperature however much heat may be
applied until the last particle is melted, this is but a
statement as to how melting bodies retain their tempera-
ture, but science calls it a law. To say that light goes
in straight lines with uniform velocity is but a statement
of fact respecting light. And if the velocity of sound
varies inversely as the square root of the density of the
substance, this too is but a bare statement of fact.
And so we might go on through the entire realm of
nature, and wherever we ﬁnd matter or force operating
in a uniform manner we shall ﬁnd science pronouncing
this uniformity a law of nature. It is true, as Mr. Fiske
says in his Cosmic Philosophy, page 393: “A law of na-
ture, as formulated in a scientiﬁc treatise, is a statement
of fact and nothing more.” And, as Mr. Drummond
says: “The laws of nature are simply statements of the
orderly condition of things in nature;” and further be
observes, “The natural laws originate nothing, sustain
nothing; they are simply responsible for uniformity in
sustaining what has been originated and what is being
sustained. ’ ’ 15
In this age of investigation, when so much is attributed
to law, it is worth our while to examine others of these
general facts which are so often referred to as laws of
nature, and by analyzing, ascertain their real nature.
Among them we may proﬁtably consider the following:
The Law of Conditioning and the Conditioned :——In his
illustration of this law, of which he makes much account,
President Hopkins says: “Let us see how this is with
reference to the great forces by which the Universe is
controlled * ”“ In the beginning the earth was with-
out form and void—mere differential, nebulous, chaotic,
surging matter in space; what would be the force which ,
must act in order to bring this matter into such a con-
dition that it might serve the purpose of a world? * * *
Evidently it would be the force of gravitation; that is to
15 Natural Law in the Spiritual World, p. 5.
THE ESSENTIAL NATURE OF LAW 33
say, it would be that force by which all matter tends
towards all matter by a certain deﬁnite law. It would be
necessary that such a force or mode of force should exist
and apply itself to every particle of matter in order to
its aggregation in such a way that it could become sub-
ject to the action of another force or mode of force.
Being thus the condition for the action of any other force
we may set Gravitation down as the lowest and most uni-
versal of all the forces or forms of force. By
gravitation matter is brought together, but simply as
loose particles. That it may be serviceable as matter
now is, there must be a force which will unite the particles
into separate bodies. WVhat is this? It is the attraction
of cohesion. This exists between the particles of all
bodies whether solid or ﬂuid that can be deﬁned or limited
as separate bodies. This would give us a world made up
of the different kinds of matter indiscriminately mixed,
or with kinds separated as in crystallization.
‘WVhat force then is there by which such indiscriminate
mixture may be avoided, and the varieties and combina-
tions of matter as we now have them be given us? It is
Chemical Afﬁnity, which is the next higher power as con-
ditioned upon gravitation and cohesion. Under this, also,
as under gravitation, we have uniformities so perfect
that they may be represented by mathematical formula.
These laws being given, and working upon suitable ma-
terials we have the condition on which the cause of vege-
table life, whatever that may be, can work. Without
them vegetable life could not be.
‘ ‘Again, having vegetable life given, mediating as it does
between inorganic nature and animal life, by converting
inorganic matter into food, by absorbing superﬂuous
carbon, and by giving out oxygen to supply the waste
made by animals, we have the conditions, and the only
conditions, on which animal life could be produced and
permanently maintained. This then gives us our next
higher force—Animal Life.
“But one higher force remains, that is, Rational or
Spiritual Life. That an animal life is a necessary con-
dition of this in all beings, is not claimed or supposed.
34 LAWS IN THE IMPERSONAL REALM
But in man it is. Man exists in his present state only as
the laws and forces already mentioned are given as a part
of himself, and to be subjected under the force of a
Rational and Free ‘W ill. This gives us Man Looking at the relations of the forces and powers, we
see that man has a right to the highest place on two
grounds. First, all other things are a condition for him.
He is conditioned upon them. They precede him, not
arbitrarily, as a herald precedes a king, but in the way
of preparation, as soil precedes vegetation, and as vege-
table precedes animal life. So far as the creation was a
process of upbuilding, that which came last was of course
highest. But again, man is also highest because he sub-
ordinates all things to his own ends and uses them as they
do not use him. " ' So we can trace the law still
further by observing that the physical constitution of
man including the brain is a condition precedent to the
human intellect. The intellect is a condition in order
that there may be feeling or sensibility, and sensibility
in turn is a necessary condition in order that there may
be motive for the exercise of a free will, and a free will
is essential in order that there may be moral responsi-
bility. ’ ’ 16
Thus this law of the “Conditioning and the Condi—
tioned” is seen to extend throughout the universe of
created things. And even back of material things the
universe itself must depend for its existence and con-
tinuance upon the unconditioned but all-conditioning
Being whence all things proceed.
This truth expresses a universal fact. The earth must
exist before the roots and trunk of the tree can have
existence, the trunk must precede and condition the
branches, the branches condition the twigs, the twigs con- 5
dition the leaves and the buds, and the buds precede and
condition the fruit, and so on throughout the ﬁnite uni-
verse we ﬁnd the law of the Conditioning and the Con-
ditioned necessarily operative.
Some philosophers make no distinction between a con-
16 Outline study of Man. 18-22.
THE ESSENTIAL NATURE OF LAW 35
dition and a cause, but the foundation of a house cannot
be regarded as the cause of the superstructure, though it
is a necessary condition for the erection of the ediﬁce.
There is in the idea of a cause someforce, some causal
efficiency that works changes which is lacking in the mere
idea of one thing being a condition for another, as water
is a condition for a ﬂoating steamer.
The existence of force is a condition precedent to all
effects or change in the sense that the force must precede
the change; but it is more than simply a precedent con-
dition; it is a causal agent, an efﬁcient power producing
effects. But apart from the element of power, the law of
Conditioning and Conditioned reigns throughout all na-
ture. The mineral kingdom conditions the vegetable, the
vegetable conditions the animal, the animal organism con-
ditions intelligence, and intelligence conditions moral
consciousness, and moral consciousness in turn condi-
tions man’s religious or spiritual nature.
These conditions are necessary. The conditioning must
precede the conditioned: the foundation must precede
the superstructure: the mineral must precede the vege-
table: the vegetable must precede the animal: the animal
must precede intelligence. There cannot be an intelli-
gent being until there is a being to be intelligent: there
canot be an organism vegetable or animal, without ma-
terial from which such organism can be constructed. This
is self-evident, and hence the law of the conditioning and
the conditioned rests upon law in the primary sense of
the term.
The Law of the Survival of the F-ittestz—Mr. Darwin
in the “Origin of Species” explains in what sense he
employs the term “struggle for existence.” He says:
“I use the term in a large and metaphorical sense, in-
cluding dependence of one being upon another, including
(what is more important) not only the life of the indi-
vidual, but success in leaving progeny. Two canine ani-
mals, in the time of dearth, may be truly said to struggle
with each other which shall get food and live. But a
plant on the edge of a desert is said to struggle for life
against the drought, though more properly it should be
36 LAWS IN THE IMPERSONAL REALM
said to be dependent on the moisture. A plant which
annually produces a thousand seeds, of which one on an
average comes to maturity, may be more truly said to
struggle with the plants of the same and other kinds
which already clothe the ground. The mistletoe is de-
pendent on the apple and a few other trees, but can only
in a far-fetched sense be said to struggle with these
trees, for if too many of these parasites grow on the same
tree, it languishes and dies. But several seedling mis-
tletoes growing close together on the same branch may
more truly be said to struggle with each other. As the
mistletoe is disseminated by birds, its existence depends
on them; and it may metaphorically be said to struggle
with other fruit-bearing plants, in tempting the birds to
devour and thus disseminate its seeds. In these several
senses which pass into each other, I use for convenience’
sake the general term of struggle for existence.” 17
In both vegetable and animal life, there are found cer-
tain individual differences and variations, which prove to
be an advantage or hindrance to the individual in its
struggle, and Mr. Darwin proceeds to say, “Can it then
be thought improbable, seeing that variations useful to
man have undoubtedly occurred that other variations
useful in some way to each being in the great and com-
plex battle of life, should occur in the course of many
successive generations? If such do occur, can we doubt
(remembering that many more individuals are born than
can possibly survive) that individuals having any pos-
sible advantage, however slight, over others, would have
the best chance of surviving and procreating their kind?
On the other hand, we may feel sure that any variation in
the least degree injurious would be rigidly destroyed. This
preservation of favorable individual difference and vari-
ations and the destruction of those which are injurious
I have called Natural Selection, or the Survival of the
Fittest.” 18
In this struggle for existence, other things being equal,
the individual possessing the greatest power, or power
17 Origin of Species, p. 56. 18 Origin of Species, p. 70.
THE ESSENTIAL NATURE OF LAW 37
working at greater advantage by reason of some favor-
able difference or variation of structure or otherwise,
must prevail over the individual with less power or with
less favorable variations; and the stronger is thus said
to be selected by Nature to survive,—selected by reason
of its superior natural powers or its natural and advan-
tageous variations or differences. Or, in other words,
the stronger survives, and the weaker succumbs. So this
law of the Survival of the Fittest is simply a statement
of the fact that whenever a greater power, or a power
working at greater advantage, comes into opposition or
competition with a'lesser power, or a power working at
lesser advantage, the greater must prevail.
“The law of the survival of the ﬁttest declares merely
what must result when a stronger force encounters a
weaker.” Is it not self-evident tha a greater power op-
posing one that is less must prevail? Is this not a neces-
sity under the law of causation? Equal powers, when
opposed, must hold each other in check. Two locomotives
upon opposite ends of a train of earl/s, pulling with equal
power in opposite directions, would produce no motion of
the train, but add to the power of one locomotive ﬁfty
horse power more and this extra power becomes the
cause by which motion is effected in the direction whither
the increased power is exerted. The motion is affected
by the increased power; hence the power and motion
stand to one another in the relation of cause and effect.
Consequently the ‘ ‘law of the Survival of the Eittest,” in
so far as it signiﬁes that the stronger individual plant
or animal, other things being equal, will prevail over the
weaker is but an application of the more general law of
causation. Of this law it has been said, “The applica-
tion of this becomes less easy as the arrangements of
nature become more complicated, and especially in or-
ganic and conscious life. But in all complications the
law of causation remains true, and the greater power or
the power working at greater advantage must always
prevail over the less when they come into opposition. In
organic life this is the law of the survival of the ﬁttest.” 19
19 Harris. Self-Revelation of God, 534.
38 LAWS IN THE IMPERSONAL REALM
As Mr. Darwin uses the terms “Natural Selection” and
“The Survival of the Fittest” interchangeably, so the so-
called “law of Natural Selection” and the “law of the
Survival of the Fittest” are identical. Nature selects
the ﬁttest as the one to survive in the struggle for exist-
ence.
But, on the other hand, in so far as the term law has
reference to the existence simply of “individual differ-
ence and variations” it is simply the statement of a
generalized fact, and is a law only in the secondary sense
of the term.
The Law of Compensation—This law has a varied and
extensive application. In discussing it at great length
Emerson has said, “In the animal kingdom the physi-
ologist has observed that no creatures are favorites, but
a certain compensation balances every gift and every de-
feet. A surplusage given to one part is paid out of a
reduction from another part of the same creature. If
the head and neck are enlarged the trunk and extremities
are cut short—also in mechanics ‘what we gain in power
is lost in time’--The cold climate invigorates, the barren
soil does not breed fevers, crocodiles, tigers, or scorpions.
Every sweet has its sour, every evil its good. For every
grain of wit there is a grain of folly. The President has
paid dear for the White House. It has commonly cost
him all his peace and the best of his manly attributes.” 20
And speaking of the same law Mr. Darwin has said,
“The elder Geoffray and Goethe propounded, at about
the same time, their law of compensation or balancement
of growth, or as Goethe expressed it, “in order to spend
on one side nature is forced to economize on the other
side.” I think this holds true to a certain extent with
our domestic productions: if nourishment ﬂows to one
part or organ in excess it rarely ﬂows, at least in excess,
to another part; thus it is difficult to get a cow to give
much milk and to fatten readily. The same varieties of
the cabbage do not yield abundant and nutritious foliage
and a copious supply of oil-bearing seeds. When the
seeds in our fruit become atrophies, the fruit itself gains
20 Essay, Compensation.
THE ESSENTIAL NATURE OF LAW 39
largely in size and quality. In our poultry a large tuft of
feathers on the head is generally accompanied by a dim-
inished comb, and a large beard by diminished wattles.
With species in a state of nature it can hardly be main-
tained that the law is of universal application, but many
good observers, more especially botanists, believe in its
truth.” 21
To whatever extent Goethe’s statement is true that
“in order to spend on one side nature is forced to econo-
mize on the other” it is not a necessity in the sense that
we cannot conceive the process to be otherwise. That
it is a general truth is the most we can say of it, and
hence a law in the secondary sense. .
The Law of Use and Disasez—This law is one of uni-
versal application. The use of the power we have in-
creases it. The use of the muscles of the body increases
their capacity, the proper use’ of memory makes it more
retentive and ready, the exercise of the imagination in-
creases its strength and vividness. Of this law Professor
Fiske has said, “The principle in accordance with which
the gloved hand of the dandy becomes white and soft
while the hand of the laboring man grows brown and
tough is the main principle at work in the improvement
of humanity. Our intellectual faculties, our passions,
our prejudices, our tastes and habits become strength-
ened by use and weakened by disuse, just as the black-
smith’s arm grows strong and the horse turned out to
pasture becomes unﬁt for work. This law of use and dis-
use has been of immense importance throughout the whole
evolution of organic life. With man it has come to be
paramount.” 22
This too is the statement of a general fact. It is not
inconceivable that use should weaken and rest should
strengthen both mind and body.
Mr. Darwin gives interesting illustrations of the same
law. “It is well known that several animals, belonging
to the most different classes, which inhabit the caves of
Carniola and Kentucky are blind. In some of the crabs
the foot-stock for the eyes remains though the eye is
21 Origin of Species, p. 131. 22 Destiny of Man, 98.
4O LAWS IN THE IMPERSONAL REALM
gone. The stand for the telescope is there, though the
telescope with its glasses has been lost. As it is difficult
to imagine that eyes, though useless, could be in any
way injurious to animals living in darkness their loss
may be attributed to disuse. In one of the blind animals,
namely the cave-rat (Nestoma), two of which were cap-
tured by Professor Silliman at above half a mile distance
from the mouth of the cave, and therefore not in the
profoundest depths, the eyes were lustrous and of large
size, and these animals, as I am informed by Professor
Silliman, after having been exposed for about a month
to a gradual light, acquired a dim perception of ob-
jects.” 23
This is nature’s method of operation, and the uniform
method is spoken of by scientists and by the public gen-
erally as a law.
The Law of Inertiaz—This law is a generalized fact,
rather than a self-evident truth or principle. The law
as stated is not “an a priori necessity,” though many at—
tempts have been made to show that it is. We shall not
submit this law to a metaphysical examination for the
purpose of ascertaining whether it should be classiﬁed
as law in the primary or the secondary sense, for it is
not a matter of prime importance whether the classiﬁca-
tion of the laws we are enumerating should be meta-
physically correct. Inertia of matter is a fact, and being
of general application it is a law, as are other generalized
facts. Concerning this law, however, Professor Bowne
has said, “The ﬁrst and basal law of motion is that of
inertia, according to which a body cannot start or stop
itself. If at rest it remains at rest, and if in motion it
remains in uniform motion in a straight line unless
interfered with from without. Many attempts have been
made to show this law to be a necessity of thought, but
without success. If the non-sponteneity of the elements
be allowed, the law is of course an identical judgment,
for the law is simply a denial of sponteneity with regard
to space-relations. A change of condition is always an
effect and pre-supposes some cause; and if an element
23 Darwin, Origin of Species, p. 123—4.
THE ESSENTIAL NATURE OF LAW 41
has not inﬂuence over its own states of course all changes
come from without. But when the point is to know
whether the law is an a priori necessity, we must inquire
whether there is any ground for saying that the elements
must be of this sort. That they are such may be allowed;
but that they must be such is not made to appear. The
apparent self-evidence in the case is largely due to the
abstraction of a material point with which mechanics is
wont to begin. This point is conceived as the inert and
rigid subject of possible motion, and in itself is so emptied
of all quality as to contain no ground of activity of any
sort. The deduction of the law from this conception is
easy enough; but this conception is a pure ﬁgment of
the imagination. As applied to a real element, even the
ﬁrst part of the law, which asserts that a body at rest
will remain at rest unless moved by something outside
of it, is not self-evident. It is not self-evident that an
element, if it could exist alone in space, could not, what-
ever its nature, begin motion; for motion, as we have
seen, is but the spacial expression of an internal state,
and if that state were given motion would result. It is
not self-evident that the inner changes of such a thing
could never result in that state which expresses itself in
motion. ’ ’ 24
After further argument Professor Bowne concludes
that “it is not self-evident that motion must take place
along the line which joins the bodies, for all we can say
it might be in any other line whatever. *
He then concludes his comments with the following
reﬂection: “We must reduce the whole apparent world
in space and time to phenomenal existence, the study of
the phenomenal laws, leaving the metaphysical question
to philosophy. As a matter of fact phenomena have
laws. They come together, vary together, succeed one
another according to rules. These laws are largely spa-
cial and temporal and admit of geometrical and numer—
ical expression. Every such expression is valuable if it
helps us to a knowledge of the order of phenomena, and
especially if it gives us any practical control of them.
24 Bowne, Metaphysics, 227.
42 LA W S [N THE IMPERSONAL REALM
These laws have to be learned from experience. Neither
the laws of motion nor the so-called laws of force admit
a priori deduction, and all alike are valuable only for
the practical control of phenomena to which they may
help us.” 25
Conformity to Type.~—-Huxley says that “It is the ﬁrst
great law of reproduction, that the offspring tends to
resemble its parent or parents more closely than any-
thing else.”
Attention is called by the Botanist to the wide differ-
ence between the lichen, the oak and the palm tree. In
structure, in form, in the variety of fruit and ﬂower they
are distinct, and as unlike as organic life can well be.
But the germs of these three organisms are so similar
that it is difﬁcult and even impossible to discover by aid
of the most powerful microscope any difference in their
structure. While these germs are alike so far as dis-
coverable even by the Chemist, yet they develop into
structures bearing the slightest possible resemblance to
one another. Each germ contains a type in itself.
Darwin states this law under the name of “Unity of
Type,” and says that by it “is meant that fundamental
agreement in structure which we see in organic beings
of the same class and which is quite independent of their
habits of life.”
According to this law the hemlock produces the hem-
lock, the birch the birch, the bird according to its type
produces the bird, the lion produces a lion and so on
throughout the realm of organic life.
This law is a general fact and we call. this uniform
tendency for like to produce like, the Law of “Unity of
Type” or “Conformity to Type.”26
Every living thing that comes into the world is com-
pelled to stamp upon its offspring the image of itself.
The Law of Reversion to Type—If animals or plants,
which have once been improved by care or cultivation,
are neglected or allowed to care for themselves, they will
deteriorate and return to the type of their progenitors.27
25 Bowne, Metaphysics, 242. 27 Nat. Law in Spiritual World,
26 Orlgin of Species, page 186. page 97.
THE ESSENTIAL NATURE OF LAW ' 43
This is a law often referred to by naturalists, and it is
illustrated by Mr. Drummond as follows :
“If a garden is planted with strawberries and roses
and for a number of years left alone, it will run
to waste. But this does not mean that the plants will
really waste away, but that they will change into some-
thing else, and, as it universally appears, into something
worse; in the one case, namely, into the small, wild straw-
berries of the woods, and in the other into the primitive
rose of the hedges. ‘” And if we neglect a bird, by
the same imperious law it will be gradually changed into
an uglier bird. And the law of reversion to type runs
through all creation.
If a man neglect himself for a few years he will change
into a worse man and a lower man: if it is his body that
he neglects, he will deteriorate into a wild and bcstial
savage,—-like the de-humanized men who are discovered
sometimes upon desert islands. If it is his mind, it will
degenerate into imbecility and madness. If he neglect
his conscience it will run off into lawlessness and vice.”
Mr. Darwin throws some doubt upon the universality
of this law that our “domestic varieties, when running
wild, gradually but invariably revert in character to their
aboriginal stock.”
So far as it is a law, however, it states no more than a
general fact and is a law only in that sense.
The Law of Battle—By the law of battle is meant the
struggle that goes on between the individuals of one sex
in the lower orders of animal life, generally the males,
for the possession of the other sex. The males contend
for the favor of the females in the lower orders of ani-
mal life as well as in the higher. The fact that such a
battle is resorted to, and is quite general, has been desig-
nated the law of battle. The males ﬁght for the posses-
sion of the females. Mr. Darwin says, “How low in the
scale of nature the law of battle descends I know not.
Male alligators have been described as ﬁghting, bellowing,
and whirling around, like Indians in a war-dance, for the
possession of the females; male Salmons have been ob-
served ﬁghting all day long; male stag beetles sometimes
All LAWS IN THE IMPERSONAL REALM
bear wounds from the huge mandibles of other beetles;
the males of certain lymenopterous insects have been fre-
quently seen by'that inevitable observer M. Fabre ﬁght-
ing for a particular female, who sits by, an apparently
unconcerned beholder of the struggle, and then retires
with the conqueror.” This general fact that the lower
orders of animal life-are pugnacious and that the males
contend for the possession of the females has been desig-
nated the law of battle.
The Law of Evolation.—"Evolution is an integration
of matter and concomitant dissipation of motions; dur-
ing which the matter passes from an indeﬁnite, incoherent
homogeneity to a deﬁnite coherent heterogeneity, and dur-
ing which the retained motion undergoes a parallel trans-
formation.” 28 This, as it will be observed, is the mere
statement of a fact, a phenomenal process as Mr. Spencer
understood it; and as it is the general process which Na-
ture follows in all her productions, it may be termed the
world process—a general fact. It does not state a neces-
sary truth; it simply points out “the steps by which any
living being has acquired the morphological and the phy-
siological character which distinguish it.” 29
It states the world process, the order pursued by na-
ture as a mere matter of fact. It has nothing to say
about causation. It does not tell us how vegetable or
animal life came upon the earth, but it simply recounts
the fact that “the simplest and lowest forms of existence
preceded the higher and more complex forms. Nothing
begins ready made. The present grew out of the past,
the complex out of the simple, the high out of the low,
the heterogeneous out of the homogeneous. In the inor—
ganic world, if one should trace its history backward, we
should ﬁnd simpler and simpler physical conditions, until
we came to some simple state of dispersed matter, say
a nebulous cloud. In the organic world, if we should trace
living forms backward along genealogical lines, we should
ﬁnd those lines converging towards a common point of
radiation. The forms of life would grow simpler, until
in some very simple forms we should ﬁnd the common
28 First Principle, 407. 29 Huxley, Ency. Brit. 9ed.
THE ESSENTIAL NATURE OF LAW 45
,2
starting point from which the complex forms of today
have been developed. The same order is to be observed
in the development of mind, society, civilization and insti-
tutions in general.
“Evolution in this sense is simply a description of an
order of development, a statement of what, granting the
theory, an observer might have seen if he had been able
to inspect the cosmic movement from its simplest stages
until now. It is a statement of method and is silent about
causation; and the method itself is compatible with any
kind of causation. One might hold to this phenomenal
order and be an agnostic, or a positivist or an idealist,
or a theologian, as to the causation.
“This conception of the phenomenal history of the world
as showing such a continuous progress from the simple to
the complex, from the low to the high, we may call the
doctrine of evolution in its scientiﬁc sense. It lies within
the ﬁeld of science, and is open to scientiﬁc proof or dis-
proof. Whenever the doctrine transcends this ﬁeld of
phenomenal description, and claims to give a theory of
the productive causes, it then becomes metaphysics, and
must be handed over to the philosophical criticism for
adjudication.
“Evolution then, in the scientiﬁc sense is neither a
controlling law nor a producing cause, but simply a de-
scription of a phenomenal order.” _
While this law is generally accepted as the general
order of nature in the organic world, yet “how the ascent
even of species has been brought about” is a matter of
dispute.
But whether this cosmic formula be accurately stated
or not, and whether it be true or false, the general order
of nature as we observe it is a matter of fact rather than
a self-evident truth of reason, and in our classiﬁcation of
laws it must be regarded as a law in the secondary rather
than in the primary sense of the term.
Law of Continuity—It is claimed that Leibnitz ﬁrst
formulated this law and conﬁned it to motions, but it is
now stated in various forms and ﬁnds numerous applica-
tions. “Motion is continuous.” “Natural causality is
46 LA WS IN THE IMPERSONAL REALM
8
continuous.” “The order of phenomenal law is continu-
ous,” and the more comprehensive statement of the law
may be that “Nature continuous.”
This law has been the subject of much comment by
scientists and of much analysis and criticism by meta-
physicians. In a superficial sense this law is a mere
statement of an apparent fact and belongs to the class
of secondary laws.
Professor Bowne indulges in the following comments
upon this law: “NVhat is it then, in thecase of Nature,
that is continuous? Is it natural things in their exist-
ence, or natural causality, or nature as phenomenon?
The suspicion begins to dawn upon us that nature is not
continuous in any of these senses, and that the continuity
is to be found in the continuous validity of the system
of law and in the continuity of thought of which nature
is the ﬂowing expression.
That nature is continuous in its existence is a meta-
physical proposition. It might mean that nature itself
is a continuous substantial somewhat, or that the ma-
terial elements are continuous in their existence, and
suffer no increase or diminution of their number. Both
propositions are already condemned. The necessary de-
pendence of the ﬁnite on the fundamental reality reduces
it to contingent existence, and leaves us entirely unable
to say how, or when, or in what order, they shall cease
to be. A metaphysical doctrine with so many riders as
this can never be put forward as a ﬁrst principle. In
addition, metaphysics reduces all impersonal existence to
a ﬂowing form of the activity of the fundamental reality.
‘ The only metaphysical continuity in the case is the contin-
uity of the inﬁnite being in which nature has its root.
But natural causality is continuous. To question this
would be fatal to all science. But here again we have
confusion. Some causality must be continuous, without
doubt; the cessation of all causality would be the vanish-
ing of nature. If natural causality means the causality
which supports nature, it is continuous, not indeed as a
necessity, but as a matter of fact. How long it shall re-
main continuous however, is unknown to all but the un-
THE ESSENTIAL NATURE OF LAW 47
critical dogmatist, and he simply mistakes the monotony
of his thinking for a law of existence. If by natural cau-
sality we mean the causality of nature, considered as
an impersonal agent or system of agents, we have to say
that there is no such thing.
Again, what the uncritical speculator really needs here
is not a metaphysical doctrine about natural causality,
but rather an inductive postulate of the continuity of
natural law. As long as the order of law holds we may
hope to construe experience. If this order should fail us,
all hope of dealing with experience would vanish. But
no metaphysical principle whatever can assure us of
this continuity. There is nothing in the conception of
impersonal causality to assure us that it is shut up to a
uniform manifestation. The continuity of law, therefore,
is a pure postulate which must either be referred to an
abiding purpose in the cosmic intelligence, or else be ac-
cepted out of hand as an opaque fact.
The continuity of nature as phenomenon means the
same thing, the continuity of phenomenal laws. In the
strictest sense a moving world has no continuity in it-
self, but only for the observing or producing mind.
Apart from this mind, nature, supposing it to exist at
all, would be a mirage of vanishing phantoms, each and
all perishing in the attempt to be born. But granting
the observer and the phenomenal world, the only con-
tinuity possible would be the continuous succession of
phenomena according to the same laws. The new phe-
nomena as events would be other than the old, however
similar that might be, as a new day is another day not-
withstanding its logical equivalence to old days. But
all the phenomena, new and old alike, would be compre-
hended in the same scheme of law and relation; and this
fact constitutes the unity and continuity of the system.
From the phenomenal standpoint nature has no other
continuity. The only inductive continuity we can ﬁnd
or allow is one of phenomenal law. And this law pro-
duces nothing and really prescribes nothing. It merely
states a uniformity of the phenomenal order.”30
aoBownc, h'letaphysics, 264.
48 LAWS IN THE IMPERSONAL REALM
Orderly Sequences as Law—There are in addition to
these generalized facts certain orderly and uniform se-
quences to which the term “law” is also applied. The
earth, rotating upon its axis, is attended by alternate and
orderly sequences of light and darkness; in its revolu-
tions around the Sun it is also attended by the orderly
succession of the seasons as a natural and necessary se-
quence. So in the vegetable realm a seed dropped into
the soil swells and bursts forth into the blade, then im-
folds into the trunk of a tree developing its branches and
twigs upon which later appear the leaves, the buds, the
ﬂower and ﬁnally the fruit which, passing gradually
through its various stages, comes at length to its ﬁnal
maturity. In the animal world the same rule of invari-
able and orderly sequence applies. An egg subjected
to the proper degree of heat passes through its various
stages of development until bursting the shell the young
chick appears, only to proceed along another gradual
course of progression and so on through its natural period
of life to maturity and to ﬁnal dissolution. The heart
of an animal throbs and as a result the blood courses
throughout the system, carrying the proper materials
for upbuilding the tissues, and the process of reconstruc-
tion goes on year after year through the allotted stages
of animal life; and so throughout the entire physical
universe unvarying antecedence and consequence prevail,
and to this orderly ongoing of nature is also applied the
term law. The infant mind of man, appearing at ﬁrst
little more than instinct, gradually unfolds until slight
indications of intelligence are followed by the intellectual
processes of reﬂection, then follow analysis, synthesis,
moral perceptions, conscience and voluntary determina-
tions of the will. All of these progressive unfoldings
of the seed, the egg and the mind are the natural and or-
derly sequences of forces apparently inherent in nature,
regulated by the principles of reason amid the conditions
of physical and mental existences. These uniform and in~
variable sequences are themselves called laws. They are
the necessary results of law in its deeper and primary
meaning, but as scientiﬁc usage has conferred upon them
THE ESSENTIAL NATURE OF LAW 49
the term “law” it is necessary to distinguish them from
those controlling principles which constitute law in its
primary sense.
Referring to both the generalized facts and the orderly
sequences of nature Henry George says:
“ Thus, then, when we ﬁnd in Nature certain invariable
sequences, whose cause of being transcends the power of
the will testiﬁed to by our own consciousness—such, for
instance, as that stones and apples always fall towards
the earth;'that the square of a hypothenuse is always
equal to the sum of the squares of its base and perpendic-
ular; that gases always coalesce in certain deﬁnite pro-
portions; that one pole of the magnet always attracts
what the other always repels; that the egg of one bird
subjected to a certain degree of warmth for a certain time
brings forth chick that later will clothe itself with plum-
age of a certain kind and color, and the egg of another
bird under the same conditions brings forth a chick of a
different kind; that at a certain stage of infancy teeth
appear, and later decay and drop out; and so on through
the list of invariable sequences that these will suggest;
we say, for it is really all that we can say, that these se-
quences are invariable because they belong to the order
or system of Nature; or, in short, that they are ‘laws of
nature.’ ” 31
To the same effect but with greater discrimination
Doctor Harris observes: “The uniform factual sequen-
ces observed in nature are also called laws of nature, but
these are so called only in a secondary sense. In truth
they are only factual manifestations or revelations of
law in its true signiﬁcance which is always the appliance
of law or reason.” And further he says: “But the so-
called laws of nature are mere observed factual sequences.
The name ‘laws’ can be applied to them only in a second-
ary application. *“ f ”“ The principles of reason regu-
lating physical force are the laws of nature in their true
and deepest meaning. The terms have become to be
called laws because they are seen to reveal in nature this
31 Henry George Science of Political Economy, 55.
5O LAWS IN THE IMPERSONAL REALM
intelligent and rational regulation by the power above
nature.”
Theories and Hypotheses as Lara—Theories and hypo-
theses regarding the origin, development and on-going
of physical nature have frequently been digniﬁed by the
name of “law” before they have been sufﬁciently veri-
ﬁed to be generally accepted as facts.
The nebular hypothesis, as the correct explanation of
the origin of the whole physical universe, the theory of
universal gravitation, the atomic theory, the theory of
spontaneous generation, the materialistic theory of the
transformation of motor force into thought and emotion,
and the theory of evolution, and others, are sometimes
designated as “laws of nature.”
Strictly speaking, a theory or hypothesis, as used in
this connection, is simply an intelligible conception as to
how phenomena are brought about. This conception is
assumed because it tends to explain the origin of things
and how and why one event follows another. When any
such theory is so veriﬁed as to be practically demon-
strated as true, as in the case of gravitation, as formu-
lated and expressed by Newton, and as in the case of
Kepler’s laws which he held as theories long before he
proved them to be true, the term “law” in its secondary
meaning is properly applied to it. The theory has
ripened in such case under the light of successful investi-
gation, into a natural law as an established fact.
But a theory that has been proved to be a true concep-
tion as to how things are related and how they operate,
is quite different from one that has few if any facts to
support it. We can speak of the law of scientiﬁc evolu-
tion with much more propriety than we can of the law
of materialistic evolution, because the latter assumes
spontaneous generation to be an established fact, when
there is no adequate, if indeed, any proof of it whatever.
In this connection we ﬁnd the same carelessness re-
specting the use of the term “law” as prevails generally
in the use of that word. It is applied to the supposed
order quite as freely as it is to the known order of events.
Thus we speak of the law of telepathy, when no such law
THE ESSENTIAL NATURE OF LAW 51
has ever been formulated. The fact that one person
sometimes thinks of another just before seeing him, and
other similar facts lead to the supposition that one mind
acts upon another at a distance without the use of words
or the other ordinary signs of expression. But that one
mind does in fact act upon another, under such circum-
stances, is a pure assumption. It is an easy method of
quieting the inquiring mind to refer the unknown relation
of events and their causes to the inﬂuence of some law.
The mind naturally seeks the causes of things and not in-
frequently, as we have before observed, we ﬁnd “law”
referred to as a causal agency. Confusion of thought
is inevitable when we confound law which directs with
the causal agencies which are directed.
Force as Lam—Force itself is sometimes referred to
as a law, but without justiﬁcation if law is that which
regulates force. The Force of Gravitation is one thing;
the manner of its action is another. We know it as a
“force of attraction operating between all the particles
of matter in the exact measure which was ascertained by
Newton—that is—directly as the mass, and inversely as
the square of the distance.” 32
The force of attraction is the causal agency, but the
manner in which it acts upon matter, namely, “directly
as the mass and inversely as the square of the distance”
is the law of its action. The force and method of its
action are not identical. The method is called a law, but
it can be such only in the secondary sense of the term.
Electricity or lightning is said to follow the line of the
least resistance, but the electric force is one thing and
the manner of its behavior is quite another. The force is
a causal agent, but the fact that “it acts uniformly in
the line of least resistance” is called the law of its action
—-but law in the secondary sense.
Organic Life.—-The preceding illustrations of law in
the secondary sense of the term have been drawn from the
inorganic and organic realms indiscriminately. No at-
tempt has been made to separate and group certain laws
32 Argyle Reign of Law, page 72.
52 LAWS IN THE IMPERSONAL REALM
as those prevailing exclusively in the organic or inorganic
kingdoms respectively.
The phenomenal order discovered to exist in any one
of these realms embraces all the so—called laws of that
particular realm. The laws of planetary motion and
others enumerated in our astronomy belong to the inor-
ganic world; the law that all vegetable life springs from
a seed, and others named and discussed in our botany,
prevail in the vegetable sphere; while the law that all
animate life comes from an egg, and the numerous other
laws pertaining to the senses, digestion, circulation, res-
piration and secretion announced in our zoology operate
throughout the animal kingdom.
Then there are certain of these laws like gravitation,
chemical attraction and combination which prevail in both
the inorganic and organic realms; and still others like
the law of growth and decay, and the geographical dis-
tribution of life on the globe, which are conﬁned in their
operation to the organic world, but are present in both
the inanimate and animate spheres. And still others like
the laws of vision, locomotion, nervous excitability, and
intelligence, exist only in the animal world. To under-
stand all the laws in the organic realm would be to know
its entire phenomenal order in all its details. Science
here has but just entered upon its work.
Law of Biogenesis—The law of biogenesis is a funda-
mental principle in the organic sphere. It illustrates
how a fundamental truth of reason operates as a law in
the realm of phenomena. Harvey’s statement of the
general fact that all life comes from life, “Oinne cinnin
ex vino,” expresses the basic principle in the phenomenal
order of the organic world. Everywhere we behold life
springing from life. “Life is the gift of life.” The
growing corn sprang from the living seed, the living tree
and shrub and bush and grasses all spring from a vital-
ized source. The ﬁshes and birds and beasts and insects
all have their origin in some egg containing the principle
of life. Though attempts have often been made to experi-
mentally establish the alleged fact of spontaneous genera-
tion, yet the prospects are not good for demonstrating
THE ESSENTIAL NATURE OF LAW 53
that life can be extracted or generated from materials
in which there is no life. Water cannot ﬂow from an
empty fountain. Something cannot come from nothing.
This fundamental truth holds throughout the realm of
nature.
Animal Intelligcnca—Crossing the line which separ-
ates the inanimate from the animate realm, we encounter
at once a new factor in the organic world. Intelligence
varying in degree from the lowest order of simple per-
ception to the highest order of the animal mind appears
and presents a most difﬁcult ﬁeld for investigation. Of
the impersonal or animal intelligence comparatively little
is known. The psychic nature of the animal world has
arrested the attention of thoughtful and industrious men;
but the phenomenal order of an invisible existence, where
introspection is impossible, eludes the investigator. That
intelligence exists in the brute being, that the process of
memory and reasoning go on in some fashion, and that
the elements of fear and joy and sorrow and affection
exist in the mind of many grades of animal life is un-
questionable; but the discovery and the formulation of
the laws prevailing in the impersonal mind of the animal
kingdom must of necessity be extremely slow.
The most conspicuous element of animal life is the
instinctive element, and as that plays such an important
part in regulating animal conduct we will refer to that
alone in this connection.
Instinct as Law—Besides the truth of reason, the gen-
eralized facts and orderly sequences of physical nature
there are the instincts of animal life, which are ﬁxed
and regulative agencies in the realm of animate exist-
ence. Instinct is a constitutional element in animal life,
and its ofﬁce is to guide the forces of animate being. It
is found throughout the whole scale of animal creation,
from the lower orders of life to man himself. It is a regu-
lative propensity. It is distinct from the power which it
guides. The physical force exerted by the bird which
migrates from one clime to another is not identical with
the native propensity which directs that force. Instinct
54 LAWS IN THE IMPERSONAL REALM
has been deﬁned as “a special internal tendency to per-
form blindly a series of deﬁnite and useful actions.” 33
Whether it is in the nature of a feeling as some con-
tend, or whether it is in the nature of intelligence as
others believe, it is in either case directive and regulative.
Even if it is a psychical force, it is nevertheless change-
lessly and blindly regulative of physical power and hence
it is a law to such power. Its range of inﬂuence in the
animal world is co-extensive with animal life, and forms
a most interesting chapter in its history. I quote from
Mr. Mivart the following examples of this regulative
tendency in animal life.
“But instinct, as it exists in man, is very feebly and
obscurely developed, compared with the manifestations
of that faculty which may be met with in various orders
of the lower animals, and especially among insects.
Chickens will, very soon after they are hatched, peck at
small objects, grains and insects, and but little later will
at once perform, when they come in contact with water,
the movements for making it ﬂow over their backs and
fall off. Some birds will feign lameness, or some other
injury, to draw off attention from their eggs or young.
Birds of the ﬁrst year, when the time of migration ar-
rives, are often the earliest to depart, and duly accom-
plish their journey, though they can have no knowledge
of the route they have to pursue, or the region it is the
object of their journey to attain. Snakes taken out of
their mother’s body just before their natural birth will
even then threaten to strike, and, if rattle-snakes, to
rattle, or at least rapidly vibrate the end of the tail.
Ichneumon ﬂies will lay their eggs within the bodies of
caterpillars, that they may ﬁnd abundant suitable food
‘when they are hatched, but we cannot believe that they
foresee the purpose and practical utility of their action.
“A kind of wasp, called ‘sphex,’ provides for the nutri-
tion of her unhatched young in an analogous but yet
more remarkable manner. She will hunt about until she
ﬁnds a suitable caterpillar, grasshopper, or spider, which
she adroitly stings on the spot which induces, or on the
33 Mivart, Groundwork of Science, 133.
THE ESSENTIAL NATURE OF LA W 55
several spots which induce, complete paralysis, so as
to deprive it of all power of motion, but not to kill it, as
to kill it would defeat her purpose. This done, she stores
away the helpless victim along with her eggs, in order
that when her eggs are hatched the grubs which issue
from them may ﬁnd living animal food ready for them
and in a suitable state of helplessness; for were they not
in such a state, the grubs would be utterly unable to catch,
retain and prey upon them. The species of sphex which
preys upon the grasshopper ﬁrst stings it and then throws
it upon its back, so as to get at the delicate membrane
which unites the pieces of its hard armour at their joints.
This it bites through to reach a specially enlarged por-
tion of nervous tissue there concealed by mutilating
which it attains its practical but surely unforeseen end.
“But if the adult insect cannot reasonably be supposed
to understand the future conditions of its unborn young
which it will never see, still less can the poor grub be
expected to understand what will be the future condi-
tions of its own life when it is a grub no longer,—condi-
tions so utterly different from those of which it has had
any experience. Yet many species of caterpillar form
cocoons in modes and places most suitable for their pro-
tection and for their own easy emergence when they
have changed into the adult form. The caterpillars of
a moth found in Africa will unite their efforts to form,
as it were, a great common cocoon, within which external
envelope each caterpillar makes its own special cocoon,
but which are so skillfully arranged as to leave passages
between them to facilitate their departure when, as moths,
the time has come for them to ﬂy away.
“The caterpillar of the emperor moth is described as
spinning for itself a double cocoon, but leaving an open-
ing fortiﬁed with elastic bristles pointing outwards, and
so directed that while they readily yield to pressure from
within, they ﬁrmly resist pressure from without. Thus
the caterpillar is at the same time both protected from
intrusion from the outside, and enabled easily to obtain
its own exit when fully developed.
“As an example of the blindness which characterizes
56 LAWS IN THE IMPERSONAL REALM
these instinctive actions, we may refer to a kind of wasp
which does not enclose living food with her eggs, but
from time to time feeds the grubs which thence emerge
with fresh food, visiting her nest for that purpose at
suitable intervals. She covers her nest so carefully with
sand that it is completely hidden, and this covering is
replaced with equal care after each of her visits. While
it remains thus hidden she, it is said, can always ﬁnd it;
but if an entrance is made ready for her, this, instead
of helping her to get to her young, seems to puzzle her
completely, and even to prevent her from recognizing
her own offspring.
“But as everyone knows, moths and butterﬂies habit-
ually lay their eggs on the leaves of such plants as will
form suitable food for the grubs when hatched, although
the parents themselves neither feed on such leaves nor
make any other use of them than that of serving as a
receptacle for their eggs. It may be that the parents are
insects which, in the adult condition, do not feed at all,
and it is incredible that they foresee the use to their un—
hatched young of leaves useless to themselves, and the
past utility of which to the grubs they once were they can-
not be supposed to remember. Still more incredible is
it, however, that a grub should foresee the shape of the
body it is destined later to acquire, especially when this
shape is widely different in the two sexes. Yet the grub
of the female stag-beetle, when she digs the hole wherein
she will undergo her metamorphosis, digs it no bigger
than her own body; whereas the grub of the male stag-
beetle makes a hole twice as large as his own body, in
order to leave room for the enormous jaws (the so-called
‘horns’) which he will have to grow.
“One more example of that function of the nervous sys- “
tem which results in instinct must here suﬁice. There
is a kind of beetle called ‘sitaris,’ which is parasitic on
certain bees, while its relation to those insects is very
different during the different stages of existence which
make up its life history. It is hatched from eggs which
the mother sitaris lays in passages in the bees’ nest.
Instead of being in the form of a grub (as is the case
THE ESSENTIAL NATURE OF LAW 57
with beetles generally), it comes forth from the egg as
an active six-legged little insect with eyes and two ‘feel-
ers,’ or antennae. In the spring, as the male bees
(drones) pass out for their nuptial ﬂight with the queen,
the sitaris attaches itself to one of them, and as soon as
the opportunity offers, passes from it to the body of the
queen bee. When afterwards, the queen bee lays her egg
in the hive, the sitaris springs upon it, and is unsus-
pectingly enclosed in a cell with the honey destined to
nourish the bee-grub when the queen’s egg is hatched.
Thus left alone with the egg, the sitaris devours it, and
then undergoes a transformation in the empty egg-shell.
having been active in the earliest stage of its life it
assumes the helpless form of a ﬂeshy grub, which ﬂoats on
the honey and gradually consumes it. Afterwards it
transforms itself once more, and regaining its six legs,
emerges as a peaceful beetle, and so with its egg begins
again the cycle of this species’ strange life-history.” 34
For our purpose it is unnecessary to go further into
this subject than to call attention to the guiding and
regulating nature of instinct. It is a law to the power
it regulates only in the secondary sense of that term. It
is not one of the immutable, universal and self-evident
truths which constitute law in its primary meaning, but
falls into that class of laws where are classiﬁed the or-
derly sequences and uniformities of nature. Instinct is
uniform in its regulative tendencies, and orderly in its
results, and, as a constitutional characteristic of animal
life, it is a law in the secondary sense of the term. It
is a reality regulative of power.
The Material World Itself a Lara—But there is a
sense in which all these generalized facts and orderly
sequences of nature are laws to man in the true and
real signiﬁcance of the term. Man is a force in nature.
He is a ﬁnite personal power, placed in a world of ﬁxed
and uniform physical phenomena. To man the so—called
law of gravitation is a ﬁxed and unalterable fact regu-
lative of his power. Relative to man, the laws of rotary
motion, the laws of chemical combination, the laws of
34 Mivart, Groundwork of Science, pp. 127-131.
58 LA WS IN THE IMPERSONAL REALM
heat, light and sound are facts ﬁxed, laid down, and un-
alterably established, as much so as the laws of reason
themselves. Man, by all his native force, and by all the
forces he can command, can no more change the course
of the stars than he can make two bodies occupy the
same space at the same time; he can no more interrupt
the course of the seasons than he can enclose a portion
of space with a straight line; he can no more make oxy-
gen and hydrogen unite chemically in other than their
established proportions than he can make two and two
equal ﬁve; he can no more make solid bodies tend to ﬂy
away from the center of the earth than he can hasten or
retard the ﬂight of time; he can no more prevent light
from dispelling darkness than he can make a circle whose
diameter is greater than its circumference; he cannot pre-
vent the rotation of the earth, nor the reﬂection of the
moon, nor the ebb and ﬂow of the tides, nor the growing
of the ﬂowers, nor the movements of the atmosphere,
nor the chemical effects of sunlight about him, any more
than he can change the constitution of the multiplication
table, or make the whole of anything less than the sum
of its constituent parts.
All these so-called laws of nature, all these uniformities
in the physical world, are ﬁxed, and unchangeable by
human power, and are therefore regulative of human.
power in that they determine what man can and what he
cannot do. Whatever he accomplishes must be accom-
plished in harmony with, and not in violation of these
uniform tendencies and sequences of nature. If man
would ﬂoat an ocean steamer he must conform his work
of its construction to the uniform demands of liquids
and mechanics. If he would scale the heavens in a bal-
loon he must harmonize its construction with the laws
of the atmosphere,—-in deﬁance of them he must fail,
in compliance with them he may succeed. They regulate
his power, in that they determine what he can and what
he cannot do.
Enough of these so-called laws of Nature have now
been examined to illustrate their character. Aside from
the primary truths of intuition, and the necessary in-
THE ESSENTIAL NATURE OF LAW 59
ferences therefrom, which are regulative of all the ﬁnite
energies of the physical universe and, as we have seen,
are laws in the primary and true sense of the term, there
are the generalized facts and orderly sequences of im-
personal nature and the manner in which certain forces
act, to all of which the term, “Natural Law” has been
applied.
\Ve have observed in our examination that these facts
are not forces. Orderly phenomena are the effects pro-
duced by forces. Natural laws in the realm here referred
to, are simply the modes in which energy uniformly mani-
fests itself. They have no real existence apart from the
energy whose uniform methods of action they are, any
more than motion has an existence independent of the
body that moves. It is easy for the human mind to hy-
postasize these modes of action, and thus give to them '
an apparent existence as actual entities. We think of
these laws as real things, as a frame-work of changeless
realities. They are sometimes conceived as things dis-
tinct and separate from Matter and Force, as we think
of the earth’s orbit around the sun as a real elliptical
path. Were the earth removed from the Solar System,
no orbit or path would remain. The orbit is simply the
imaginary figure described by the earth’s motion. So
when we say it is a law of nature that planets revolve
around the sun in elliptical orbits, the law referred to is
nothing more than the uniform manner in which the plan-
ets revolve around the sun. The “law” is not the planet
nor its orbit, but it is the name given to the general fact
that each one of the planets, and hence all of them in
general describe an ellipse in their respective revolutions
around the sun. In this sense the law is simply a gen-
eralized fact.
From this, the inaccuracy of attributing to “Natural
Law” causal efficiency is clearly seen. Force produces
results. The orderly phenomena of Nature are effects,
not causes. We give the name law to the whole phenom-
enal order of impersonal nature; and to each speciﬁc
phenomenal process we give a speciﬁc name, as, to the
uniform phenomena of attraction between masses of mat-
6O LAWS IN THE IMPERSONAL REALM
ter we give the name, “Law of Gravitation,” to the uni-
form attraction between atoms of matter, we give the
name, “The Law of Chemical Afﬁnity,” and so on
throughout the known realm of the physical universe.
WVhen we speak of the “Laws of Nature,” producing
this or that effect, as when we say that the universe was
created by law, we are attributing to law a certain effi-
ciency which it does not possess, and we are likely to
be lead thereby to false conclusions in our reasoning
about Nature.
“The laws of nature which declare mere uniform
factual sequences are laws only in the secondary sense.
In the lapse of time these sequences may change and
give place to new arrangements. On the contrary, it is
the principles and laws of reason which extend over
nature and its ideals and ends which are progressively
realized in the ceaseless course of nature. It is these
principles and laws which persist in all physical se-
quences, survive all their changes, reappear and persist
in every new arrangement. Such, for example, persist-
ing unchanged through all changes, are the laws of causa-
tion, the law of uniformity, and continuity, that the same
complex of causes must everywhere and always produce
the same effect, the law of the correlation and conserva-
tion of motor force, the principles of mathematics, the
laws of falling bodies, or gravitation, of the dispersion
of force, and all laws of mechanics founded on mathe-
matical principles—these are the true laws of nature.” 35
35 Harris, Self—Revelation of God, 506.
CHAPTER III.
Laws RELATIVE TO PERSONAL BEINGs.
INDIVIDUALS.
Having examined the general properties of matter and
certain universal and necessary truths which together
constitute the laws of physical nature in the primary
meaning of the term, and having also examined certain
generalized facts and orderly sequences which are laws
only in a secondary sense, we now come to look for those
realities in the realm of the human mind which, regula-
tive of mental forces, constitute laws in the mental realm.
Mind differs from matter in many respects, but the
one chief distinction which concerns our inquiry is, that
while matter is inert, mind is self-active and self-direc-
tive. It has the power to know, the power to recall its
own past experiences, the power to construct ideals
through the imagination, the power to choose the ends
toward which it will exert its energies and to choose the
means it will employ for the attainment of these ends.
The mind of man is an energizing entity. It is a causative
power. Man is a sub-center of causal force in a universe
of physical and mental laws. We have seen in what the
laws of matter consist; and now, pursuing the same meth-
od of investigation, we are to inquire in what the laws
of mind consist. _What are the realities in the realm
of mind regulative of mental energy?
For reasons more clearly to appear later in the dis-
cussion of moral law, it is necessary to notice the fact
that while various faculties and powers—as intellect,
memory and imagination among others —are ascribed
to the human mind, the mind is nevertheless a single or
indivisible entity. It is not composed of several faculties
constituting a compound, as water is composed of oxygen
and hydrogen, but the soul is a single, rational, emotional,
62 LAWS IN THE PERSONAL REALM
self-conscious and self-directive force, called a person.
When this mental force exerts itself in the act of know-
ing it is called Intellect, when it is considered as suscepti-
ble of motives and emotions it is known as Sensibility,
and when it puts itself forth in self-determination or
choice it is regarded as Will; but it is always an indi-
visible energy, employed though it may be in various
kinds of activity. When recalling its past experiences the
mind is known as Memory, when constructing some ideal
as the plan of a mansion or cathedral, it is regarded as
Imagination, when cognizing self-evident truth it is
known as Reason, and when cognizing moral truth it is
known as Conscience; but these terms are employed as a
matter of convenience to denote that the mind is capa-
ble of various activities or states. This general division
of the mind’s power into Intellect, Sensibility and Will is
now quite generally adopted by psychologists, respec-
tively denoting the mind’s power to know, capacity to
feel, and power to choose.
I atellect—The mind acquires all its knowledge through
Intuition, Representation and Reﬂection. Through Pre-
sentative Intuition the mind acquires a knowledge of
facts,—a knowledge of the phenomena of both the exter-
nal world and of the internal world of mind itself; as
when through sense-perception a person gains immediate
knowledge of the objects and beings about him constitut-
ing his environment; and as when through self-conscious-
ness or introspection he acquires immediate knowledge
of the mind in its various states and operations. Through
sense-perception the mind acquires a knowledge of ex-
ternal phenomena, and through self-consciousness it ac-
quires a knowledge of internal phenomena, and thus
through both processes it acquires immediate knowledge
—not mediate knowledge—of the facts in both the worlds
of matter and mind. These physical and mental phenom-
ena or facts, thus acquired and known immediately by
the mind, supply the raw materials upon which the mind
further operates in its various processes of thought.
Through Rational Intuition the mind gains immediate
knowledge, not of facts, but of self-evident, necessary and
THE ESSENTIAL NATURE OF LAW 63
universal principles,—those principles which, as we have
observed in the foregoing pages, are regulative of all the
forces in the physical universe. Upon some occasion in
experience, as the falling to the ground of a body unsus-
pended in the air, the truth of the principle that “every
event must have a cause” is brought out into the con-
scious recognition of the perceiving mind. So one after
another these self-evident principles, now known and ad-
mitted to be true, have come out into the consciousness of
mankind. That “something cannot spring from nothing,”
that “something cannot be reduced to nothing,” that “a
thing cannot both exist and not exist at the same time,”
that “any action conforming to a universal law is right,
and any action not conforming thereto is wrong,” and
many other similar principles are known through Ra-
tional Intuition, and are regulative principles in every
process of mental activity. The origin and nature of
these principles will be considered more in detail in the
following pages.
Through the process of Representation, a phenomenon,
once before the mind through sense-perception or self-
consciousness, is called up from the past and again pre-
sented to the mind in a mental image. This mental im-
age is known by the mind immediately as a representa-
tion of the reality which was before it on a former occa-
sion. It is not sufﬁcient that the mind have the power of
acquiring, it must have the power of retaining and re-
presenting its knowledge as well; otherwise the mind’s
present knowledge would be its entire knowledge, and
progress would be impossible. The mind’s power of re-
taining knowledge which has passed out of consciousness,
and of representing and immediately knowing it again,
is generally designated by the term memory. “Memory
is the power of representing the past and of knowing it
again through the representation.” 1 Hamilton and
others, however, apply the term memory to the mind’s
power of retaining knowledge, and its power of repro-
ducing knowledge in consciousness they call the Repro-
1 Harris, Philosophic Basis of Theism, 47.
64 LAWS IN THE PERSONAL REALM
ductive Faculty. 2 The knowledge gained in memory is
that of a reality once known by the mind, but now known
again through a representation.
In Reﬂection the mind gains still further knowledge
through its processes of thought. Having already before
it the materials or facts supplied by Presentative Intui-
tion, the mind, analyzes, compares, notices the similar-
ities, differences, attributes, properties and relations of
these raw materials; and through the processes of infer-
ence, reasoning, generalization and classiﬁcation, and all
in obedience to the regulative principles known through
Rational Intuition, the mind acquires a more exhaustive,
elaborate and uniﬁed knowledge of the materials under
its consideration. Through the three processes of, ﬁrst,
apprehending or inspecting the objects before it; and,
secondly of observing their similarities and differences;
and, thirdly, of arranging the objects according to some
common relation or characteristic and thus comprehend-
ing them in the unity of a class, the mind progresses from
individual things te classes, from classes to still greater
groups and from the greater groups to the sublime unity
of the Cosmos.
Sensibility—By Sensibility is meant man’s capacity
to feel, and experience emotion. Under this head fall his
appetites, such as hunger and thirst; his natural and be-
nevolent affections, such as love of country, parental and
ﬁlial love and pity for those in distress; and also those
others generally known as malevolent affections, such as
revenge, fear, anger, hate and envy; and also the desires
such as those for property, for knowledge, for power, for
esteem, and in addition to these the instincts. And be-
sides these man is distinguished from the impersonal
world by certain rational emotions, such as the esthetic,
or the emotion of beauty; ethical, as self-approval and
the joy and peace that follow righteous action, or remorse
and self-loathing that follow unrighteous conduct; sci-
entiﬁc, as the joy experienced by one who has discovered
a new truth; and religious, as that of adoration and
praise.
2Hamilton’s Metaphysics, 274.
THE ESSENTIAL NATURE OF LAW 65
These natural and rational sensibilities furnish the
motives that inﬂuence man to action. They are not forces
that compel and thus necessitate the action of man’s will,
but rather feelings that incite it to free and voluntary self-
determination. The appetites and desires which incite
one to procure something for self, and the affections
which incite one to impart beneﬁts to others, precede in
time the action of the will; and the emotions awakened by
such action necessarily follow. A desire for knowledge
may incite a Newton to investigation, through choice and
volition the investigation is made and the exact law of
attraction established, and then follows the emotion of
joy and triumph. The motive incites, the will chooses and
the satisfaction or emotion succeeds.
The Will—The will is the mind’s power of self-determi-
nation. It is not a particular- part of the mind acting
in a particular manner, but it is the entire self-active
indivisible mind as a conscious unit exerting itself in the
act of self-determination. The mind of a personal being
has the power of freely exerting and directing its own
energies. It is a causal force. The power of personal
mind is a free power. Were the mind’s choice caused
by some force outside itself, then the choice would not
be that of the mind, but rather that of the outside causa-
tive agency. A choice carries in it necessarily the idea
of freedom. A choice necessitated by force differs in no
respect from any other effect in the world of necessity. A
choice is a result of a cause within and not without the
mind; and it is always made in the light of obligation in
the presence of certain rational ideas, such as that of the
right, the perfect, the good, thereby differing from all ef-
fects in the impersonal realm. Self-active mind is a causa-
tive power. How it causes its own choices cannot be illus-
trated, because it has no analagon in nature. It is sui
generis.
In this brief outline of man’s mental constitution we
observe that while the soul is a single conscious unit, or
Ego, it is nevertheless, complex in its activities. It is
power perceiving; power retaining, recalling and reknow-
ing its possessions; power apprehending rational truth;
66 LAWS IN THE PERSONAL REALM
power analyzing, comparing, generalizing and classify-
ing; power desiring, hoping and loving; and power self-
directing its energy in the light of moral obligation.
“The powers I have been speaking of rush on to their
ends instinctively and blindly. The native power goes on
to action, the appetite claims indulgence, the dominant
passion claims its object, each according to its nature.
But these activities and propensities are often incon-
sistent the one with the other. The intellect would set
out on high pursuits, but is opposed by some grovelling
appetite, or the man would wish to acquire fame, but, in
doing so, ﬁnds that he cannot accumulate property as he
might otherwise do. Is man condemned to be the slave
of these appetencies, yielding to the one which happens
to assail him, or obeying the strongest when they are com-
peting or clashing? It is probable that this is the condi-
tion of the brute creature, and would be the state of man
did he not possess a higher power. That power is the will.
“Properly speaking, the will does not furnish the in-
citements, inducements, or motives; these come from the
appetencies which we have just been considering. It is
the province of the will, seated above them, to sanction
or restrain them when they present themselves, and to
decide among them when they are competing with each
other for the mastery. We have seen that the character-
istic property of emotion is attachment or repugnance,
with associated excitement. The distinguishing quality
of will is choice or rejection. Inducements being held
out, the mind, in the exercise of will, sanctions or refuses.
It assumes a number of forms, in all of which there is the
element of choice. If the object is present, we positively
choose it or adopt it; if the object is absent, we wish for
it; if it is to be obtained by some exertion on our part, ‘
we form a resolution to take the steps necessary to pro-
cure it.” 3
Choice is the will’s determination, among many mo-
tives or feelings, as to which one shall be gratiﬁed. A
man feels under obligation to pay a debt; conscience
pleads for its payment, his cravings for strong drink
3 McCosh, Intuitions of the Mind, 246.
THE ESSENTIAL NATURE OF LAW 67
plead for gratiﬁcation at the same time. His money is
insufﬁcient to gratify both. “Which feeling shall be
gratiﬁed, conscience or thirst? To settle this is the
work of the will. The will decides which feeling shall be
gratiﬁed by the will’s action. By its inherent power of
self-exertion and self-determination it decides which feel-
ing shall have its aid, and then by voluntary exertion it
proceeds to the act of gratifying that one. It is not the
motive or feeling that determines the will’s choice, but
it is the will’s choice that determines which motive or
feeling shall prevail and procure what it craves. It is
the combination of Intellect, Sensibility and WVill in one
spiritual entity that constitutes personality. “A person
is an individual, endowed with reason, susceptible to ra-
tional motives, conscious of free-will, and also conscious
of personal identity through all his varied experiences.”
Now what are the realities in the realm of mind that
regulate these several powers of this personal being, viz.:
his power to know, his power to retain and recall his
knowledge, his power of imagination and his power to
choose? We will consider those realities regulative of
his power to know and to choose, as illustrations of law
in its primary meaning in the realm of personal spirit.
Laws of Thought, as Law in Its Primary Sense—First
there are the rational intuitions, regulative of the mind’s
power to think. They are called the laws of thought.
As these fundamental realities operate within, and con-
stitute law in the physical world, so they operate within
and constitute law in the mental world. As we have al-
ready observed them to be the laws of things so now we
observe them to be laws of thought. They are intuitive
truths regulative of intellectual power.
First Law of Thought—The mind can acquire no
knowledge unless there is some reality to be known.
Knowledge implies a subject that knows and a reality
known, and in the absence of either knowledge is impos-
sible. This has been called the ﬁrst law of thought. In-
tellectual power may acquire knowledge of a multitude
of existing objects and realities, under certain conditions,
but in the absence of all objects and all realities to be
68 LAWS IN THE PERSONAL REALM
known intellectual power is, of course, ineffectual. Reality
is a condition precedent to knowledge. That the mind
may know anything there must be some reality to be
known is a self-evident, immutable and universal truth
which regulates the very ﬁrst effort of mental energy in
its exertion to know. Without reality to be apprehended
knowledge would be as impossible as it would be if there
were no mind capable of apprehending. As ﬁre cannot
burn without something to consume, and as a person can I
not see a ﬂower or a stream if there is no ﬂower or stream
to be seen, so the mind of man cannot know unless there
is a reality or being of some kind to be apprehended.
This self-evident truth determines what the intellectual
power of man can and what it cannot do, and hence it
has properly been called the ﬁrst law of thought? ,It is
a fundamental truth or reality regulative of intellectual
power, determining what that power can and what it
cannot do.
Second Law of Thought—Admit that some material
object does exist, yet intellectual power is wholly unable
to apprehend'it except as being in space. Intellectual
power cannot even in imagination posit a material object
outside of space. It can apprehend such bodies in rela-
tion to space but not out of all relation thereto. Space
is a reality and intellectual power cannot ignore it, but
is compelled to picture objects in space relation, if it
pictures them at all. That all objects must occupy space
is an intuitive truth regulative of intellectual power, and
is therefore a law to power in the true sense of the term.
Third Law of Thought—If this self-active power of
the mind, in its efforts to know a material object, observes
it once, and afterwards observes it again, the idea of time
comes necessarily into consciousness. By no possible ex-
ertion can the intellectual power of man separate itself
from all connection with the past, the present and the
future. Every event it contemplates must be contem—
plated as taking place now, or having taken place in the
time past, or to take place in time to come. Mental power
4Porter, The Human Intellect, 62; Harris, Philosophic Basis of
Theism, 10. -
V THE ESSENTIAL NATURE OF LAW 69
can no more over-leap the barriers of time than it can
over-leap those of space. Time-relations hold intellec-
tual power securely within their cast-iron grasp and per-
mit it to exercise itself only within the limits which they
establish. Time is a fundamental reality, and gives law
to power in that it conﬁnes all its energies to the past,
the present, or the time which is to come.
Fourth Law of Thought—The intellectual power of
ran may think of an object as existing now, but as not
existing in the past, but it is beyond such power to con-
ceive of an object as both existing and not existing at
the present time. That “a thing cannot both be and not
be at the same instant” is one of those numerous self-
evident and universal truths of reason, operative alike in
the realms of both the personal and the impersonal. The
intellectual power of man is wholly submissive to this
law as a matter of absolute necessity. Hamilton calls
this the “supreme law of thought,” 6 and it is supreme
in the sense that is must be true to Reason always and
everywhere. ~
Fifth Law of Thought—“A thing either is, or it is
not.” One of these alternatives must be true. There
can be no middle ground. To be, or not to be, are the
extremes, but there is no mean position; hence this propo-
sition is called the law of the “excluded middle.” A
proposition is true or it is not true; a cause of action
exists or it does not exist; a murder was committed or
it was not committed; a judge is corrupt or he is not
corrupt; if any one of these propositions be true its cor-
responding alternative cannot be. The intellectual power
of man cannot harmonize these contradictories, and make
the absurd to be real. It may conceive the one as true
and its opposite as false, but it cannot do both; hence
this self-evident truth is a law to intellectual power.
Sixth Law of Thought—“Whatever is predicated of a
class of objects may be predicated of all that is contained
in that class.” This axiom is called Aristotle’s dictum.
It is self-evident, axiomatic and hence universally true.
If it is asserted that one hundred acres of land are all
6Hamilton's Metaphysics, 526.
7O LAWS IN THE PERSONAL REALM
good and tillable, it must be true that each acre of the
one hundred must be good and tillable. If the mind ad-
mits the ﬁrst proposition it must admit the second. It
is not a matter of choice but a matter of necessity. In-
tellectual power is subject to the all-regulative principles
of logic.
Seventh Law of Thought—The law of equality runs
through all knowable objects. “Things equal to the
same thing are equal to each other.” This familiar axiom
is not conﬁned to numbers, but extends to all other real-
ities as well. In physics, if the temperature of two sep-
arate liquids is equal to the temperature of a third, then
the temperature of those two different liquids will be
the same. This is a universal and necessary truth, and
the intellectual power of mind is unable to draw any
other conclusion. By no possible exertion of its ener-
gies can it think the contrary.
Eighth Law of Thought—The law of attribution illus-
trates the same regulative nature of self-evident truth.
“Every attribute implies a substance of which it is an
attribute.” The intellectual power of the mind can
conceive and can know attributes—as extension, color,
weight— but it cannot think of them except as attributes
of some particular thing. There can be no color unless
there is something to have a color. There can be no
weight except there be something to have weight. There
can be no motion unless there is a body to move; nor
any power unless there is some being or thing to which
that power belongs. The intellectual power is utterly
unable to know an attribute without knowing at the same
time that there must be some substance to which the at-
tribute attaches.
It is not pretended that the constitutional character-
istics of personal spirit and the self-evident truths which
regulate its intellectual and voluntary powers which have
now been enumerated are all the fundamental features
or regulative principles of the ﬁnite mind. These that
have been mentioned are only specimens of those origi-
nal truths of reason which taken together make up the
real code of genuine law in the realm of ﬁnite personal
THE ESSENTIAL NATURE OF LAW 71
existence. They have been mentioned and illustrated
principally to show the real nature of law as that which
regulates power, and to correct the false but common im-
pression that law if not creative is at least an active
agency of universal control. The tendency of modern
scientiﬁc discussion has been to deify law, and by attribu—
ting all change in the universe, if not all actual creations,
to this potent agency it has been vainly supposed that
the existence of an intelligent Creator was thereby ren-
dered unnecessary. Laws are passive realities, not ac-
tive forces. Laws regulate by their passive presence,
and forces are regulated in their efficient activities.
Laws in a Secondary Sense—But besides these funda-
mental realities and truths which are regulative of all
power, physical and mental, there are in the realm of
personal spirit, as in the realm of impersonal nature, cer-
tain generalized facts and orderly and uniform sequences,
whichwe call laws. One thought follows another as day fol-
lows night; one feeling is followed by another as season
succeeds season; a certain emotion follows a particular
choice as regularly and as certainly as light attends the
rising sun. Thoughts and emotions and choices are not
lawless. The mind is not a pandemonium ﬁlled with ir-
rational thoughts, frantic feelings and lawless choices.
all in a bedlam of confusion; but thought suggests thought
feeling inspires feeling, and choice conﬁrms choice. Thus
we may predict with a fair degree of certainty how cer-
tain men will act and how they will feel and what thoughts
will be suggested to their minds under any given set of
circumstances. We may make predictions as to the
thoughts that will arise in the human mind under cer-
tain conditions, somewhat as we can predict when certain
stars will arise above the horizon and appear in the
heavens.
If I should throw twenty apples into the air they would
all fall uniformly to the ground; so we say that gravi-
tation acts uniformly, but if I should place a gold sov-
ereign before each of twenty men and say that they could
have them as their own, there would probably be a uni-
formity of action on their part quite as exact and unde-
72 LAWS IN THE PERSONAL REALM
viating as that of gravitation. Of course, it would not nec-
essarily be so. If I should speak the word “mother” to
an audience of a thousand thoughtful people, the thought
and likeness of her who bore each one respectively of
that assembly would come to those respective minds, and
with the face would come a whole group of thoughts and
memories of childhood. This result too would not follow
necessarily. If a good man does a noble deed, there fol-
lows that act a feeling of self-approval; and just as regu-
larly and certainly, if under stress of temptation he does
a mean, ignoble deed, there follows it a feeling of self-
loathing. With men as a general rule, emotions of ap-
proval follow right choices and emotions of self-denuncia-
tion follow wrong choices, with as great a uniformity as
day follows night.
Philosophers have spent much time endeavoring to dis-
cover, formulate and classify the laws of the human mind,
but it is never safe to say in our present state of knowl—
edge thatany enumeration is exhaustive. Among those
generally admitted as primary laws of association are
the following, which are called by President Porter ‘ ‘gen-
eral facts or laws.” 7
Generalized Facts as Law—Among these laws, in this
secondary sense, is ﬁrst, that of resemblance. Should one
person see another bearing a marked resemblance to a
friend of his, the thought of that friend would arise in
the mind of the observer. Not that it must necessarily -
do so, but it would uniformly do so; and many times the
slightest point of resemblance is sufficient to effect the
association. If in his travels in foreign lands one sees a
tree or mountain peak similar to one in his own neigh-
borhood he will think of that in his own country. So,
too, in middle life or in old age, if one hears a melody
familiar to him in his childhood, he will recall the scenes
and associations connected with it.
A second law is that of contrast. The thought of the
very rich has a tendency to suggest to the mind the ab-
jectly poor. The coldest days of winter will suggest the
hot days of summer. The sight of a dwarf will often
7 Porter, Human Intellect, 282.
THE ESSENTIAL NATURE OF LAW 73
suggest the idea of a giant, and if one contemplates time
he will ﬁnd the idea of eternity appearing to his mind.
A third law is that of contiguity in time or place. If
one stands upon the lofty mound in the center of the
battle-ﬁeld of Waterloo, he will think of Napoleon and
Wellington. It is safe to say that no one familiar with
the history of that battle could visit the historic spot
without recalling to his mind the two warriors who bat-
tled there. To the thoughtful American the recurring
anniversary of the day of Independence revives in his
mind the Declaration of the Revolution. So the thought
of a person, in some manner associated with another, will
uniformly recall that other before the mind. The thought
of Wilkes Booth suggests the thought of Abraham Lin-
coln, as the thought of Guiteau suggests that of Presi-
dent Garﬁeld.
The Secondary Laws of Association—Then there are
certain other laws of association of which President Por-
ter says: “The secondary laws have been enumerated and
propounded as follows: (1) Those objects are more likely
to be recalled, other things being equal, which occupy the
mind for the longest period of time; (2) those also which
are apprehended most vividly; (3) those which are
brought most frequently before the mind; (4) those which
are most recently present; (5) those which are the most
free from entangling relations; (6) those which are con-
templated with the greatest strength of emotion;
(7) those which are viewed with favoring circumstances
of bodily health; (8) those which are coincident with
prevalent habits; (9) those to which the original constitu-
tion of body or mind predisposes us with the greatest
interest or aptness.” 8
It is unnecessary to examine particularly these so-
called laws of association. They are laws in the sec-
ondary sense of the term. They simply state the general
fact that the thought of one thing, connected under cer-
tain circumstances with another, will be followed in the
mind by the thought of that other; and that in recalling
certain past thoughts those that have been held in the
8Porter, Human Intellect, 286.
74 LAWS IN THE PERSONAL REALM
mind under certain speciﬁed conditions will be most easily
recalled. These so-called laws of association are ﬁxed
facts, laid down and established, and unalterable in the
human mind. They present what we may call an estab-
lished order of the mental world.
It is contended by President Porter that the primary
laws and some if not all of the secondary laws of associa-
tion may be reduced to the one “general fact” or law,
“that the mind tends to act again more readily in the
manner or form which is similar to any in which it has
acted before, in any deﬁned exertion of its energy.” 9
Orderly Sequences—As. in physical nature so in
the mind there are certain orderly sequences, or ante-
cedents and consequents, between which there seems to
be a causative connection. As in the world of matter
the seed deposited in the soil bursts forth into “the
blade, then the ear and after that the full corn in the
ear ; ” so in the world of mind a truth apprehended by the
Intellect affects the Sensibilities, which in turn incite
the Will to a free choice, and succeeding the choice are
certain emotions whose character is determined by the
quality of the choice that precedes it. The fact that a
friend is in distress being known by the Intellect may
cause feelings of pity and excite a sense of obligation to
go to his rescue, which feeling inﬂuences the will to de-
termine and put forth an effort to minister assistance,
which act being performed may be. followed by the emo-
tion of self-approval and gladness. When one is to choose
between two courses of conduct, one of which is right
and the other wrong, if he selects the right the emotion
of self-approval succeeds, and if he chooses the wrong
there follows the emotion of self-condemnation. The
emotion of joy follows a knowledge of good news, as a
feeling of sadness follows that of evil tidings; the emo-
tion of beauty follows the apprehension of a perfect
production or scene, and the emotion of triumphant j'oy
follows the discovery and demonstration of some great
truth. These orderly sequences prevail throughout man’s
emotional nature. They are laws in the secondary sense,
9 Porter, Human Intellect, 282.
THE ESSENTIAL NATURE OF LAW 75
and they constitute a part of the established order of
rational life.
Uniform Expression—But besides these there are cer-
tain other uniformities worthy of consideration. The
members of the human family are all endowed uniformly
with certain emotions and desires, and these emotions
and desires have certain uniform modes of outward ex-
pression. In every race of men we ﬁnd existing “joy,
grief, affection, fear, rage, and wonder,'and each has a
characteristic expression i“ There must be some
deep connection in the human frame between the inward
states of consciousness and the physical or corporeal
activities to produce results so uniform throughout the
human race.” 10
There are also found in every human soul the desire
for property, the desire for society and the desire for
knowledge. No normally constructed person'is without
them. They may differ in their degrees of intensity ac-
cording to the peculiarities of the individual or the race,
and also according to the degree of civilization attained,
but the germs of these instinctive desires are in every
human spirit. They are very largely the impelling forces
in man’s progress from barbarism to reﬁnement. They
supply the motives to action.
Now, respecting all these emotions and instinctive de-
sires which are uniform characteristics of ﬁnite persons,
they have a uniformity in their modes of outward ex-
pression. Every emotion of the soul has its character-
istic sign in the outward form. The countenance of a
person writhing in pain is never mistaken for a coun-
tenance expressive of joy; the features of a child terriﬁed
by some frightful object are never mistaken for those
of a child rejoicing in the possession of a new toy. Joy
animates the whole person; grief depresses and weakens
it. Fear draws the blood from the face and throws a
pallor over the whole countenance, while hope animates
and suffuses the face with radiance. Rage sends the
blood coursing through the face and arms till the whole
person is bristling with antagonism. and assumes an
10 Int. Encv, Vol. V. p. 412.
76 LAWS IN THE PERSONAL REALM
attitude of deﬁiance. \Vonder has ‘its peculiar manifes-
tations,—the eyes protrude, the mouth unconsciously
opens, and surprise rests upon the brow. And so it is
that every emotion of the mind has its characteristic
expression in the face, the posture of the body, or in gest-
ure. WVe never mistake the countenance of him who is
pleased for the countenance of him who is angry. The
uplifted brow and the smile are characteristic signs of
the former, while the corrugated brow and closely closed
lips are the unmistakable signs of the latter, the words
of the former are ﬁlled with hilarity; the words of the
latter with scorn and resentment.
These are characteristics slightly varying perhaps, but
generally uniform throughout the entire length and
breadth of the realm of ﬁnite mind; they are among its
uniformities; they are part of the established order of the
human race; they are ﬁxed, laid down and unalterably es-
tablished. We do not say that these are laws in the true
sense of the term, but as all the uniformities in the physi-
cal world are ﬁxed and relative to man, are to a certain ex-
tent regulative of his power so all these uniformities in the
human mind are equally ﬁxed, and relative to man are
regulative of his power in dealing with his fellow beings.
I cannot make a man smile and rejoice by stinging his
soul to resentment and anger. I cannot ﬁll him with
revenge and hate by bestowing on him precious gifts
and exercising towards him acts of love and affection.
It is beyond my power to make a man hate me by help-
ing him in disaster and cheering him in sorrow. These
uniformities even are therefore laws in the true sense
of the term, in that they determine what man can do
as a mental force or power and what he cannot do.
Mental Order as Law—As in the physical world so
in the mental the orderly sequences, where thought
suggests thought, where emotions of self-approval follow
right choices and emotions of self-reproach follow wrong
ones, where intelligence of good to come will awaken
pleasure and that of evil to come will awaken pain, and
where anxiety follows guilt as uniformly as mental rest
and composure attend the guiltless spirit, are ﬁxed and
THE ESSENTIAL NATURE OF LAW '77
relative to man are changeless elements in the mental
constitution of the ﬁnite soul. Man can no more change
his mental constitution than he can change the constitu-
tion of physical nature. The orderly sequences in the
one are as irreversible by man as the orderly sequences in
the other. And as a personal power in this dual universe
of mind and matter man must produce his results in har-
mony with this order and not in antagonism to it.
The mental order as a reality determines what mental
power can and what it cannot accomplish. If one would
secure a particular choice from a fellow man he can reach
his will in but one way. He must impart such knowledge
to his intellect as is calculated to and does arouse those
feelings which appeal to and inﬂuence the will to make
the choice desired.
Laws of Choioe.—I.Iaving considered primary or self-
evident truth as law of thought, and having also con-
sidered the laws of association and others of a second-
ary character in reference to intellectual power. the
question next arising has reference to the rational intui-
tions as law to will power. The will, though free, is not
lawless. It is under law in two senses at least.
First: The fundamental principles of intuition can
not be changed, enlarged or diminished, or annulled by
will power. In this particular they are law to the will
in the sense that they set limits to its action. \Vill power
can accomplish results in harmony with self-evident
or primary truth, but it is powerless to produce results
which they forbid. In this these ﬁrst principles are law
to the will in the same sense that they are to the intel-
lect; they determine what it can and what it cannot ac-
eomplish.
Second: Law of Obligation—But all the fundamental
principles of self evident truth and all the necessary in-
ferences that can be drawn from them are law to the
power of free-will in a most important and vital sense.
When any or all of these truths are brought to bear upon
a free-will they do not command what it must choose, but
in the light of moral obligation they inform the will what
it ought and ought not to choose. It is possible for a
78 LAWS IN THE PERSONAL REALM
free-will to choose a course of action antagonistic to
these fundamental principles, and thus choose to realize
an absurdity; but such choice is prohibited by the moral
intuition that “a rational being ought to act rationally.”
To choose conformity to truth is rational, to choose non-
conformity to truth is irrational. A person has imme-
diate or intuitive knowledge that he ought to choose ra-
tional ends instead of irrational ones—that he ought to
act rightly instead of wrongly. Here we come to a new
realm, the realm of moral law. It may be said that when
these primary or self-evident truths are brought to bear
upon free-will they will then constitute moral law. They
then operate upon a power which is free, not upon a
power under necessity as is the case with physical or
intellectual power.
When these primary truths regulate physical forces
they are known as the laws of the material world, and are
often called the laws of matter; when they regulate in-
tellectual forces they constitute the laws of thought, and
the ﬁrst principles of logic are examples of this class;
and when they are brought to bear upon will power they
then become moral law. In the world of matter these
principles determine what physical force can and what
it cannot accomplish. It can change matter from place
to place, but it cannot annihilate it. In the world of in-
tellect they determine what intellectual force can and
what it cannot conceive. It can conceive of two bodies
at different points in space, but it cannot conceive of
them as occupying the same space at the same time.
When bearing upon the free-will of a personal being
they determine, not what it can and cannot choose, but
what it ought or ought not to choose to accomplish by its
self-exertive and self-directive energy. These principles
are, therefore, moral law in the sense that they are known
to man as principles which he is under moral obligation
to observe in the exercise of his free moral agency. When
as a body of principles they are considered as regulative
of physical power they constitute the physical order of
the universe, when regulative of intellectual power they
constitute the intellectual order of the universe and when
THE ESSENTIAL NATURE OF LAW 79
they are considered as regulative of rational beings or
free-will power they constitute the moral or rational
order of the universe. Man knows intuitively that he
ought not seriously to employ his energies in the fruit-
less effort to accomplish a known impossibility. A per—
son might choose to waste his life in the vain and ab-
surd effort to build up in himself a perfect moral char-
acter by violating every law involved in the process.
But, constituted as he is, that he should do so without
being conscious of self-condemnation is nearly incon-
ceivable.
CHAPTER IV.
LAws RELATIVE TO PERSONAL BEINGS.——GONTINUED.—
INDIVIDUALS.
MORAL LAW.
In the last chapter we considered some of the laws
and orderly sequences peculiar to the human mind; but
of one important law we purposely omitted the consid-
eration, that it might be duly emphasized by a separate
and more extensive treatment. So far in the considera-
tion of ﬁnite persons but slight reference has been made
to man as a moral being. In what man’s moral nature
consists, and the peculiar characteristics of the moral
law can now be better understood.
So far in this inquiry into the nature of law in gen-
eral it has been contended that all the universal and self-
evident truths of reason are laws in the true sense of
the term, as they are regulative of power of all kinds.
And it has also been observed that when the immutable
principles of reason are brought to bear upon free-will
power they then become moral law. As man lives in a
physical and rational so he lives in a moral system. As
a personal power man abides in a world of changeless
realities which regulate his will power, in the sense that
they determine what he ought and ought not to choose.
Among the rational’ and moral intuitions which speak
to the will in terms of authority are the following.
Conscience.—Man’s power to know generally is called
the intellect, but when the intellect knows self-evident
truth it is called Reason, and when it knows moral truth
it is called by' some Moral Reason, by others Practical
Reason and by still others Conscience. The power to
know is a single power of the mind engaged in knowing
three different classes of truth. It is one power em-
ployed in three ways and known accordingly by three
names, as a person trying cahses in court is called a law-
THE ESSENTIAL NATURE OF LAW 81
yer, when sitting on the bench he is known as a judge,
and when writing learned treatises on jurisprudence he
is called a jurist.
But Conscience has also an emotive side. The term
not only embraces the mind’s power to know moral truth,
but it also includes the mind’s feeling of obligation.
Standing at the beginning of two lines of action, one of
which is known to be right and the other wrong, Con-
science on its intellectual side knows that the will ought
to choose the right and on the emotive side it feels that
it ought to so determine. Conscience in its broader sense
both knows and feels obligation. The intellectual appre-
hension by man that he is under obligation to obey the
changeless laws that prevail about and within him is
also uniformly accompanied by certain moral sentiments.
Preceding every choice made between two courses of con-
duct one of which is known by him to be right and the
other wrong, there is ever present a peculiar feeling
prompting and inciting man to choose the former and re—
ject the latter, and there uniformly follows the choice a
feeling of approval or disapproval according as the choice
was in accordance with or in violation of law. Not only
does man intuitively know himself as under obligation
to law, but that knowledge is ever re-enforced by what
may be properly called the feeling of obligation. This
feeling is an incitant to right and a deterent from wrong.
It pleads for the former and dissuades from the latter.
It urges the will on to obedience and restrains it from
disobedience. And after the choice is made or the act
is done, then springs up spontaneously in the soul the
joys of self-approval, self-respect, or merit, in case the
right prevailed or the pain of self-reproach, self-loath-
ing, or demerit, if the wrong shall have triumphed. This
power to know and capacity to feel obligation in the pres-
ence of known right and wrong is a ﬁxed constitutional
characteristic of man. It is a permanent, immutable and
essential element in personality. 1 As a rational being
1See Carter’s “Law, its Origin, ture and authority of Conscience.
Growth and Function,” page 151, See also Wilson’s works, vol. 1,
where the author considers the na- chapter 2.
82 THE MORAL LAW
man both knows and feels that he ought to act rationally.
This knowledge is immediate and the rational or intui-
tive principle is generally stated by Intuitionalists as
follows: “A rational being ought to act rationally,” or
as Professor Hibben expresses the truth, “Whatever
is true to the reason becomes a law to the will.”
Law of Obligation—Man knows himself as subject to
law in the physical, the intellectual, and the moral realms.
The fundamental principles of reason are involved as
law in the constitution of the material universe; and in
the constitution of rational beings, being everywhere and
always regulative of physical and intellectual power.
When these principles are brought to bear upon free-
will power, they are also moral law in that they determine
what persons ought and what they ought not to choose.
In the presence of these truths, man knows them as law
to his will. They speak to him in tones and words of
authority. They say to physical and intellectual power,
“you can,” and “you cannot,” but to will power they
say, “you ought” or “you ought not.”
The mind of man is so constituted that, when in the
presence of these truths, he sees in their light, his obli-
gation to conform his choices and his conduct to their
demands. As a rational being he knows that he ought
not to choose or act irrationally. Man ought not to spend
his time and energy in the futile attempt to realize the
absurd and impossible. This knowledge of obligation
is intuitive. This doctrine has been clearly expressed
in the following words: “The ethical idea of right and
law arises in the rational intuition that I ought to act
reasonably, that is, in accordance with the truths of rea-
son; or, more generally formulated, ‘a rational being
ought to obey reason,’ or, ‘what is true to reason is a law
to the will,’ In this intuition the person comes to the
knowledge of a new reality which is expressed in the
word ought and to which the nouns corresponding are
obligation, duty, law. This new reality is that he exists
under law; that the universal principles and the neces-
sary inferences from them. which he knows as truths, are
laws which he is under obligation to obey. Like other
THE ESSENTIAL NATURE OF LAW 83
intuitions this one is practically operative on his action
before he formulates it in reﬂective thought or even rec-
ognizes it as a judgment. But as he reﬂects he ﬁnds that
what he knows as true to his reason he knows to be a
law to action; he ﬁnds himself saying, I ought, and learns
the signiﬁcance of obligation and duty; he ﬁnds himself
approving some actions because conformed to principles
which he knows as true; and this common quality of
these acts he calls right, and the contrary quality he calls
wrong. Thus the ideas of right and wrong rise directly
from rational intuition. \Vithout rational intuition man
could never have known the difference of right and wrong
or had any idea of law, duty and obligation.” 2
Authority.-—Intuitional philosophy also teaches that
these primary or intuitive truths, including this moral
intuition, are eternal in the divine Reason. They are not
laws above or outside of God, imposed upon Him, but
as the absolute and unconditioned Being these truths
are constitutive elements in His eternal reason. These
rational principles are involved in and belong to the
Divine Mind. They have their seat in God. They are
law to the eternal will. These truths of reason, when
addressed to a free will speak to it in tones and words
of authority. Reason is authoritative. It says to phy-
sical and intellectual power, “Thou must,” and to vol-
untary power it says, “You ought,” or “Thou shalt.”
God’s reason and not His will is the seat of ﬁnal au-
thority.
“All principles in the divine Reason are law to every
rational being. So the ultimate ground of the authority
of law and of moral obligation to obey it is eternal in
God the Absolute Reason.”
Some claim that the ground of authority and obligation
is in the “constitution of things.” This can only be true
in the sense that the constitution of things is but the
expression of Cod’s mind. Back of the constitution of
things are the eternal principles of Reason which, when
applied to things, compose their constitution. Final au-
thority is found in the original principles themselves.
2 Harris: Phil. Basis of Theism, 187.
84 THE MORAL LAW
Others say that the ground of authority is found in the
“rational and moral constitution of man.” This too can
be true only in the sense that man is but a likeness whose
original is God. The rational and moral principles com-
posing the constitution of man are those original truths
eternal in the divine Being. The fountain head of all
authority is back of all created things. “Authority is the
right to declare and enforce law.” Reason does this by
its own right.
As we have already observed, primary or self-evident
truths are intuitively or immediately perceived by the
mind of man through his reason. Whenever these funda-
mental truths are brought to bear upon a free will, they
are known as law to that will. Man knows them as regu-
lative of power; he knows them as law to action. These
principles are rational in the sense that they are in-
volved in the constitution of rational beings. To act
rationally, means to act in harmony with them; to act
irrationally is to antagonize and attempt to override
them.
Thus implicated in a world of changeless principles,
man recognizes himself as under obligation to act ration-
ally. This ability to recognize his obligation to obey law,
his ability to know and feel obligation in the presence
of imperative and immutable truth, characterizes man
and separates him from other ﬁnite creatures, and classi-
ﬁes him as a moral being. This idea of obligation takes
man into a new realm of thought and motive and pur-
pose. Through this idea he enters into a moral and
' spiritual world, abounding in new visions of truth, where
moral rights and duties to man and God, and where moral
freedom and moral ideals and the possible moral per-
fection of his being dawn upon his spirit. This moral
intuition, “That rational beings ought to obey reason,”
is the fundamental fact, or principle, in the moral and
spiritual universe, as gravitation is in physics. It is self-
evident.
To say that a rational being ought not to obey reason.
ought not to obey the laws of its own nature, but is under
obligation to violate them would be as contradictory to
THE ESSENTIAL NATURE OF LAW 85
reason, as a statement that a thing can exist and not
exist at the same instant. It would be equivalent to
saying that a rational being ought to be at once rational
and irrational; or that an adding machine calculated to
register the right sum, should always register the wrong
one.
This intuition has been stated in various forms, all
expressing the same idea. As man is a rational being, it
may be said that, “Man ought to act rationally.” As to
act rationally means to obey reason, it may be said that
“Man ought to obey reason,” and, as Reason in its abso-
lute sense is equivalent in meaning to the word God, it
may be said that “Man ought to obey God.”
The reality of ultimate truth expressed in these various
forms is intuitively discerned by conscience. Conscience
knows by original insight; by immediate perception, that
rational beings ought to obey reason. In this truth man
sees and knows his moral obligation. At this point and
in this discovery his moral life begins.
Conscience says, “obey law;” comply with the prin-
ciples of reason which are law, comply with the principles
of mathematics and logic and mechanics, and metaphysics
generally, because they are the standards or tests of right
and wrong in the concrete transactions of mankind.
The multiplication table is involved in all the daily
affairs of human life in computing interest upon a debt.
in determining the acreage of land conveyed, in ascer-
taining the price of articles sold, in estimating the cost
and disbursements in actions and suits in legal con-
troversies. And the principle of mechanics are to
be applied in the construction of every kind of
machinery and in every piece of mechanism, in
the construction of bridges and buildings of every
description. The navigator must have recourse to
his logarithms, and the surveyor to the principles of
geometry. The principles of logic and the syllogism
are involved in every human effort to ascertain truth
through reasoning and argument. They appear in po-
litical discussion, in ﬁnancial controversies, in legal con-
tentions, and wherever differences of opinion and con-
86 THE MORAL LAW
ﬂicts of interests are sought to be reconciled through
rational debate. And all the deeper principles of self-
evident truth are assumed and employed everywhere
and by everybody in the settlement of all questions aris-
ing in the complex affairs of human life. No transac-
tion is too triﬂing to involve their application, whether on
the farm, upon the street, in the shop, behind the coun-
ter, in the office, in the bank, in the court room, in the
halls of legislation, or in the church.
These universal, immutable and imperative principles
of primary law have a moral aspect, in the sense that
they are standards and tests of right and wrong. The
will ought not to disregard them in determining courses
of conduct to be pursued, nor should it reject their de-
mands in practical affairs. In the sale of two jewels
worth one hundred dollars each, the sum of their values
cannot be more nor less than two hundred dollars. Self-
evident or mathematical truth is the test as to the cor-
rect sum of their values. Any dispute concerning their
aggregate worth is referred to that test. To reject the
result would be irrational and morally wrong, because
such rejection would in principle plunge all human trans-
actions into a chaos of perpetual confusion. It would
transform the rational order into irrational disorder and
make civilized life and moral progress impossible.
A rational being, then, ought to obey reason.
What Reason Commands—If it is true that men ought
to obey reason, the next important question arising is,
what speciﬁc thing does reason command men to do?
Reason commands men, as rational beings, living in a
universal rational system, to choose and seek their high-
est good, or well-being; to make the most of themselves;
to choose and seek for themselves that which is abso-
lutely the best.
But the perfect is the best. The best body is a perfect
body, the best intellect is a perfect intellect, the best
memory is a perfect memory, the best imagination is a
perfect imagination, the best will is a perfect will, the
best spirit is a perfect spirit, the best disposition is a
perfect disposition, the best moral character is a perfect
THE ESSENTIAL NATURE OF LA W 87
.
moral character. “Be ye therefore perfect,” is the com-
mand of reason to men. The perfection of his body, his
mind, his susceptibilities, the perfection of his entire
being physical, intellectual, moral and spiritual, consti-
tutes man’s highest conceivable good. Nothing else can
compare with it in value.
Persons as Ends—This command, “Be ye therefore
perfect,” is addressed to persons. Reason always ad-
dresses her commands to persons and not to things.
The ultimate and true end for which all human effort is
rightly made is some rational being. Persons are ends
and not means.
The state, like the Sabbath, was made for man, not man
for the state. Schools are established for children; chil-
dren are not raised in order that there may be schools.
Churches are organized and cathedrals are erected for
the elevation of man’s character; men were not created
that there might be churches and cathedrals. The sculp-
tor does not chisel out the statue from the block of mar-
ble for the sake of the block, but for the sake of some per-
son, either himself or others, or both, who, looking upon
the form of beauty, may experience some pleasing emo-
tion or catch some holy inspiration. The painter does
not produce his work of art for the sake of the canvas
on which it appears, but for the sake of some person, who,
beholding it, may experience some noble and worthy emo-
tion. The author does not produce his work of ﬁction
for the sake of the bound volume, but for his own grati-
ﬁcation, or for the sake of others, who reading it, may in
some way be affected by its sentiments. Nor does the
projector of a transcontinental line of transportation
construct it for the sake of the rails and the road-bed,
but rather for his own sake, or that of his associates,
or the people to be beneﬁted thereby, or perhaps for all
of them.
Persons—men, women and children—are ends in them-
selves, and they are never merely means to be owned and
used as tools for the attainment of some other end be-
yond; or at least they should never be so used. wWendell
Phillips was wont to say, “Our trade, our labor, our
88 THE MORAL LAW
learning, our science, our religion and our law are only
the scaffolding wherewith to make a man.”
Humboldt said, “The fairest fruit the earth holds up
to its Maker is a man.” “The worth of a state,” said
John Stuart Mill, “is the worth of the individuals com-
posing it.” Lowell has said, “Democracy in itself is no
more sacred than monarchy. It is man who is sacred.”
And Ruskin expressed the same opinion regarding man’s
value when he said, “The ﬁnal outcome and consumma—
tion of all our wealth is in the producing as many as pos-
sible full-breathed, bright-eyed and happy-hearted human
creatures. ’ ’
Kant writes upon this subject as follows: “Man, and
generally any rational being, exists as ,an end himself,
not merely as a means to be arbitrarily used by this or
that will, but in all his actions, whether they concern him-
self or other rational beings, he must always be regarded
at the same time as an end. All objects of the inclination
have only a conditional worth, for if the inclinations and
the wants founded upon them did not exist, then their
object would be without value. But the inclinations them-
selves, being sources of want, are so far from having an
absolute worth for which they should be desired, that on
the contrary it must be the wish of every rational being
to be wholly free from them. Thus the worth of any ob-
ject which is to be acquired by our action is always con-
ditional. Beings whose existence depends not on our
wills but on nature’s have, nevertheless, if they are ra-
tional beings, only a relative value as means and are,
therefore, called things, but rational beings on the con-
trary,are called persons, because their very nature points
’ them out as ends in themselves, that is, as something that
must not be used merely as means.”
Much is gained in this world when we regard our fel-
low-men as spiritual beings to be loved and served and
improved. No higher aim can be sought than their per—
fection equally with our own.
Perfection and Happiness Their Aim—The law, “be
ye therefore perfect,” is not only addressed to persons,
but it carries with it the ideal attainment to be sought
THE ESSENTIAL NATURE OF LAW 89
for by them—the perfect. The perfection of man’s na-
ture, physical, intellectual, moral, and spiritual, is the
supreme excellence. There is nothing beyond. Nothing
better can be conceived or hoped for. The perfection
presupposes a law and action exerted in accordance with
that law. A perfect steam engine can be produced only
when the mechanic complies with every law of mechanics
involved in the construction of a steam engine. So a
perfect character, spiritual or moral, can be attained
only when the person complies with all the moral and
spiritual law involved in the production of such a charac-
ter. The same is true of intellectual and physical de-
velopment.
Man has a four-fold nature, and in each we ﬁnd a
force operating under a speciﬁc law. The vital force of
the body operates under the laws of the physical organ-
ism, such as respiration, digestion and gestation; the
intellectual power under the laws of thought; the power
of the will under the moral law, “Thou shalt love thy
neighbor as thyself;” and the will power also operates
under the spiritual law of man’s nature, “Thou shalt
love God with all thy heart, mind, soul and strength.”
Perfection of man’s entire nature, then, is possible
only by obedience to the laws involved in his entire be-
ing. Only by obedience to the laws of his nature can
the perfection of his nature be realized.
But the perfection of one ’s nature does not comprise
the whole of the Supreme Good which man is to seek
for himself and others. There is inseparably connected
with the orderly process toward the perfection of the
mind and body, a certain satisfaction, pleasure and joy.
Happiness or enjoyment always attends the harmonious
workings of the forces of human nature in harmony with
the laws that regulate those forces. Each of the four
distinct natures of man has its own peculiar desires, and
a susceptibility to its own peculiar pleasures. The body
has its desire for food and drink; the intellectual nature
has its desire for knowledge; the moral nature its de-
sire for approval and self-approbation; and the spirit
craves divine protection and spiritual companionship.
90 THE MORAL LAW
Each nature has also its own peculiar emotional elements.
The body experiences the satisfaction of gratiﬁed desire
and the numerous pleasures and pains incident to a phy-
sical organism. The intellectual nature experiences the
joy of intellectual triumphs, such as Newton and Frank-
lin experienced upon making their great discoveries. The
moral nature experiences the feelings of self-approval
or disapproval, of self-respect, or self-loathing, of self-
complacency or displacency; and so the spirit experiences
the emotions of spiritual peace and joy and reverence for
the Divine Being, or fear and torment according to the
attitude it has assumed towards God.
Happiness and unhappiness are incident to man’s en-
tire nature. It is a prominent factor in the Highest Good
of man. It cannot be ignored. But happiness may be
either worthy or unworthy. The happiness incident to
sinful action such as that experienced by the drunkard
and debauchee is unworthy. It is tinctured with the virus
of sin which spoils it. But the happiness incident to
righteous action is worthy. It is beﬁtting a rational
being. Happiness is incident to wrong action as well as
to right and it cannot therefore be the ﬁnal standard
of action as the false philosophy of the Utilitarian or
Hedonist asserts. We cannot say that because a certain
action gives us pleasure, therefore it is right. A bank
robber might be delighted over his successful plunder-
ings and escape from detection, but that fact would not
prove him to have acted rightfully.
Whether a person experiences happiness in perpetrat-
ing a wrong upon his fellow men depends upon his moral
character. In no event, therefore, can happiness be the
test of right and wrong action. Law is the standard by
which actions are to be tested. If the action accords with
the laws of man’s moral and spiritual nature it is morally
right; if not, it is morally wrong.
Every right action as we have observed has persons,
God or man, as the end for the sake of which the act is
done. Then the question arises, what is the highest good
to be attained by man for himself and others? What is
the most worthy and valuable acquisition which man can
THE ESSENTIAL NATURE OF LAW 91
secure? The answer to that question is, that the perfec-
tion of his entire being, and the happiness inseparable
from it, constitute that most valuable acquisition. This
compound of perfection and happiness constitutes the
true good which man is to choose for himself and for his
fellow-men. It is something to be acquired, possessed,
enjoyed, as the most valuable and worthy attainment of
.: human effort.
Hamilton says, “The value of ends is absolute—the
value of means is relative. Absolute value is properly
called a good; relative value is properly called a utility.
Of good, or absolute ends, there are for man but two—
perfection and happiness. By perfection is meant the
full and harmonious development of all our faculties,
corporeal and mental, intellectual and moral; by happi-
ness, the complement of all the pleasures of which we are
susceptible. Now I may state "f that human perfection
and human happiness coincide, and thus constitute in
reality but a single end. For as, on the one hand, the
perfection or full development of a power is in proportion
to its capacity for free, vigorous and continued action,
so, on the other, all pleasure is the concomitant of activity.
To promote our perfection is thus to promote
our happiness. ‘f Perfection (comprising hap-
piness) being thus the one end of our existence, in so
far as man is considered either as an end unto himself.
or as a means to the glory of his Creator, it is evident
that i‘ studies and sciences in common with all
other pursuits should be judged useful as they contribute,
and only as they contribute, to the perfection of our hu-
manity—that is, to our perfection simply as man.”3
To the same effect Janet remarks, “If pleasure always
accompanies action, if each function has its own peculiar
pleasure, it follows plainly that every development of
our activity, consequently every development of perfec-
tion in man, is accompanied by pleasure, whether we wish
it or not. Nature has not troubled herself to inquire
whether it will suit abstract philosophies, but has de-
creed that each of our faculties, the highest as well as
3Hamilton, Lect. on Meta, Lecture 11.
92 THE MORAL LAW
the lowest, shall have its own peculiar pleasure by the
very fact of being exercised. Hence the perfection of
being cannot be acquired without gaining also the feel-
ing of this perfection, the joy of possessing it. Now this
feeling, this joy, is what we should call happiness, insep-
arable, as we have seen, from perfection itself. Good,
then is indissolubly composed of perfection and happi-
ness.” 4
Doctor Harris carries the same idea of the true good
somewhat further: “The essential good of a person is
the perfection of his being; his consequent harmony with
himself, with God the Supreme Reason, and with the
Constitution of the Universe; and the happiness neces-
sarily resulting. Man’s acquisitions are
not merely of external goods to be consumed for his
enjoyment or used as instruments in accomplishing his
ends. There are also excellencies constituting the per-
fection of his being, which are to be acquired by his own
action. This perfection is what he must primarily seek
to acquire as the true good. ' i‘ The attainment of
perfection must begin in the acquisition of right moral
character.” But “Besides right moral charac-
ter the good consists in the perfection of all the powers
and spiritual perfection. And it can be real-
ized only by action in accordance with the law of love.
Should a person propose to himself his own perfection
as the great object of acquisition and should he seek it
only for his own aggrandizement and enjoyment, he would
be serving himself supremely, not God and his neighbor;
he would miss the perfection which he proposed to at-
tain, and instead of its grandeur and blessedness would
ﬁnd himself shrivelled in selﬁshness and his whole sphere
of interest and action, the whole ﬁrmament and horizon
of his life shrunk within the bounds of what he can clasp
within his own arms and hug to his own bosom. it‘ *2 it But
“There is no absolute perfection to a ﬁnite being,_but
only its perfection in its own kind and under its own
necessary conditions. But man, endowed with reason
and free-will, is capable of progress. While his moral
4 Theory of Morals, p '72.
THE ESSENTIAL NATURE OF LAW 93
character at a given point of time may be right, he is in
culture and capacity capable of continual growth. His perfection, therefore is not a resting in any attain-
ment as a ﬁnality. The very fact of resting in knowledge
or power acquired or good works done as a ﬁnality and
satisfying suﬁciency would involve the cessation of ac-
tivity, and the resting would be a rusting in routine, for-
malism and cant. The perfection of man involves con-
tinual growth. The growth is the perfection and har-
mony of the rational being and the happiness indissolubly
united with it.” 5
To the same effect is the conclusion of Professor Paul-
son, “Such modes of conduct and volition are good as
tend to realize the highest goal of the will, which we may
call welfare. I mean by it the perfection of our being
and the perfect exercise of life.” 6
That the perfection of man is the end of his being is
also taught by the ripest science of the present day.
Professor Fiske in his volume entitled “Through Nature
to God” uses the following language bearing upon this
topic: “Our historical survey of the genesis of humanity
seems to show very forcibly that a society of Human
Souls, living in conformity to a perfect moral law, is the
end toward which ever since the time when our solar
system was a patch of nebulous vapor, the cosmic pro-
cess has been aiming ”* toward the spiritual perfection
of humanity the stupendous momentum of the cosmic
process has all along been tending, ‘f that spiritual
perfection is the true goal of evolution, the divine end that
was involved in the beginning. When Huxley asks us
to believe that ‘the cosmic process has no sort of rela-
tion to moral ends,’ I feel like replying with the question,
‘Does not the cosmic process exist purely for the sake
of moral ends?’ Subtract from the universe its ethical
meaning and nothing remains but an unreal phantom,
the ﬁgment of false metaphysics.” Science and philoso-
phy both testify that the perfection of man is the ulti-
mate end toward which the cosmic forces are ever tend-
5 Harris, Phil. Basis of Theism, 271, 272, 273.
6 System of Ethics, 223.
94 THE MORAL LAW
ing, and that man’s own forces, when rightly directed,
are ever tending to the same end.
And ﬁnally it has been tersely said: “But if we per-
sist in having a world-goal, we can ﬁnd a sufficient one
only in the moral realm, a community of moral persons
obeying moral law and enjoying moral blessedness is the
only end that could excuse creation or make it worth
while.” 7
The fact that man has been groping in uncertainty for
ages, seeking the ultimate end toward which all his forces
should be directed, need not shake his conﬁdence in the
correctness of his ﬁnal conclusion that the perfection of
his being is that true and ultimate end, because the deep-
er the truth or the more fundamental the law the more
difﬁcult the task of discovering, comprehending and ac-
curately formulating it in human language. The law of
gravitation was operative in the universe before the time
of Newton, though not until his arrivel did any man ac-
curately formulate and express it. But what intuitional
philosophy has substantially claimed from the earliest
days of metaphysical discussion, namely, that the per-
fection of man’s being constitutes his “Siimmnm boniim,”
is now being, as we have seen, corroborated by cosmic
philosophy and scientiﬁc deductions. The spiritual per-
fection of man is the goal toward which all the cosmic
forces, including the powers of man himself rightly dir-
ected, are tending. Man recognizes this goal as the ﬁxed
and unalterably established end, and that end being ﬁxed
in the very nature of reason itself becomes the supreme
law to all rational beings. It is one of those realities
which, being unalterably ﬁxed, becomes regulative of
man’s powers, in that it determines what he ought and
what he ought not to choose as the ﬁnal goal of all his
efforts. This law says to man, “Make the most of all
the powers with which you are endowed. Let the choice
of the will be ever in harmony with the immutable laws
under which you live.” Man, recognizing this law of his
being, knows and feels that he ought to comply with it.
As between a superior and an inferior good man knows
7Bowne, Theism, 231.
THE ESSENTIAL NATURE OF LAW 95
intuitively that he ought to prefer and choose the former.
He also knows intuitively that a perfect character is
superior and preferable to an imperfect one. And he
further knows intuitively that in the rational and moral
system within which all personal beings exist each indi-
vidual ought to act rationally toward all other individ-
uals.
Physical, intellectual, moral, and spiritual perfection,
and the happiness that ﬂows from it, is then the highest
good that man can attain.8
The perfection here demanded is not, however, that
unattainable thing which consists in absolute complete-
ness. Man can never become perfect in the sense that
he cannot still grow in the power of intellectual and moral
discernment and knowledge: but perfect in the sense
that his will is ever in harmony with its law—perfect in
essence, though capable of indeﬁnite enlargement. The
perfection demanded by the law is that state of well-being
which it is possible to attain in the ﬁnite universe,—per-
fect as a child, but capable of indeﬁnite development into
a mature person.
Law of Service—If then, reason declares that it is per-
sons upon whom all human energies should be focussed,
and that the perfection and happiness of man constitute
his proper object and aim in life, then the next question
arising is, in what manner, or according to what law
shall that perfection and happiness be sought? Shall
each seek his own highest good irrespective of others, or
must each individual in society have regard to the good
of others equally with his own?
How shall man’s duties
to persons be distributed?
8Mr. Carter, in “Law, its Origin,
Growth and Function,” p. 132,
says, “Going back to fundamental
principles we ﬁnd happiness to be
‘our being’s end and aim’. But in
what line of conduct is our happi'
ness to be found?” He seems to
adopt in his answer to this ques-
tion Mr. Spencer’s claim that “the
largest and completest life must be
the nearest approach to pure hap-
piness.” But it may be asked in
what line of conduct is the “great-—
est and completest” life to be
found? Our answer to that ques—
tion would be—it is to be found
in the completest obedience to all
the laws of our physical, intellect—
ual, moral and spiritual natures.
Perfection of character is the re-
sult of obedience to law, and such
perfection is attended by satisfac-
tion, or happiness. Perfection is
the end. happiness the incident.
96 THE MORAL LAW
What service shall he render to himself, what to his
neighbor, and what to God? Reason points out the ob-
ject of life, does it also declare the law by which that
object can be secured?
It has long been recognized that the highest well-being
of each individual is involved in the highest well-being
of all. In seeking his own supreme good, each person
must regard the rights and interest of others equally
with his own. So intercommingled and interrelated are
the interests of mankind in the rational and social sys-
tem that mutual services are a necessity. The highest
perfection and greatest happiness of individuals in so-
ciety are possible only by a proper balancing of egoistie
and altruistic services. Each must serve others as well
as himself. Universal egoism or universal altruism
would work the universal destruction of the race. Each
is born to minister and to be ministered unto. Such is
the constitution of human society that it is only as each
serves his neighbor that the highest good of self and
others is possible.
If a laborer agrees to work for his employer a year for
a speciﬁed sum, he can attain his own highest good only
by faithfully and fully performing the work, if he is able,
according to the terms of the agreement, and the employ-
er can attain his own highest good only by compensating
the laborer fully and promptly as he has agreed to do.
Each serves the other. Each receives a beneﬁt and in the
same transaction bestows one. In society, each is inti-
mately related to others. Each is so dependent upon
others that mutual helpfulness becomes a necessity. But
by what general principles is the individualto determine
his duty to others?
As through rational intuition man knows that he ought
to obey reason; and knows also through intuition that
reason commands him to perfect himself physically, in-
tellectually, morally and spiritually, so he also knows
through intuition that, being related to others in a ration-
al system he and all men are on the same level, each
owing duties to all others, and that, “in all his actions
bearing on another rational being he ought to consult the
THE ESSENTIAL NATURE OF LAW 97
rights and interests of the other as really as his own.”
As he must work for his own highest good, so he must
work for that of his neighbor. The best attainment he
can acquire for himself is the perfection of his nature,
so the best attainment he can help his neighbor to ac-
quire for himself is the perfection of his entire nature.
Man is an object to be served, not a thing to be pos-
sessed and used as a tool. Persons are ends in them-
selves; they are never means to be employed for the at-
tainment of some end beyond. Things may be sacri-
ﬁced for the sake of persons, but persons cannot right-
fully be sacriﬁced for the sake of things. As persons are
the highest beings known to exist their claims are su-
perior to all others, and their interests are to be pro-
moted before the interests of any inferior beings. To
serve persons then is the highest and hence the most
imperative duty man has to perform. Man is under
obligation to serve himself, to serve his fellow-men and
to serve his Creator.
When man awakens to the fact that he exists in a ra-
tional system, bound by mutual and reciprocal rights and
duties to other persons, he recognizes that he ought to
regard the interests and welfare of others equally with
his own. As it has been stated by another, “When a
man ﬁnds his own action affecting the interests of an-
other person and recognizes the fact that he and the other
exist together in a rational system, he knows intuitively
that he ought to respect the rights of the other equally
with his own.” That man ought to serve his neighbor
as himself is the great law of human service. And it is
equally true and equally recognized by man, that as the
Personal Creator is embraced within the rational sys-
tem in which ﬁnite human beings exist, the highest con-
ceivable service of which he is capable is that which he
can render to his Maker. To serve God supremely, and
to serve one’s neighbor as himself is the supreme law of
human action.
First, under this law man is to serve himself. He serves
himself when conforming his action to the laws of his
physical nature he develops and perfects his physical
98 THE MORAL LAW
constitution, when by conforming his action to the laws
of his intellectual nature he acquires mental vigor, ac-
cumulates knowledge, cultivates his reasoning faculty,
strengthens his imagination and invigorates all his intel-
lectual forces, when by conforming his action to the
moral law he quickens his moral sense, habituates his
will to right choices, increases his self-respect and other-
wise ennobles and harmonizes all his moral powers, and
when by conforming his action to the spiritual law of
love he gains truer conceptions of God, attains a more
constant trust and acquires a purer reverence, a greater
peace and holier purposes. And besides these services,
by which man attains his own personal development, he
may by the exercise of industry, frugality and economy
amass a fortune of wealth in its varied forms, and by
complying with the conditions of ﬁnancial, political and
ecclesiastical preferment he may attain commanding and
honorable positions in the realms of commerce, states-
manship and the church. In these and other commend-
able ways man may serve himself. He may seek his own
physical, intellectual, moral and spiritual perfection, and
aspire to and attain positions of inﬂuence and power, all
to the end that with these various instrumentalities of
power he may the more efﬁciently and successfully serve
his neighbors in their effort to attain for themselves a
fuller life of development and power.
Second, man is to serve others. But in order to serve
them he must ﬁrst serve himself, not selﬁshly nor su-
premely but rightly. As man may serve himself by culti-
vating and developing all his physical and mental powers
by perfecting his whole nature, so he can serve others by
helping them to do the same. But it is evident that before
man can impart knowledge to the ignorant he must ﬁrst
gain the knowledge himself; before he can teach man
the science or art of correct reasoning he must himself
have ﬁrst mastered that science~or art; before he can im-
part moral inspiration to others he must himself possess
it; before he can awaken a holy zeal for divine things in
others he must have experienced it within his own life;
and before he can give food to the hungry, clothes to
THE ESSENTIAL NATURE OF LAW 99
the naked, drink to the thirsty, shelter to the exposed,
homes to the homeless, and before he can erect libraries,
build and equip hospitals and endow universities for the
public he must ﬁrst amass the wealth necessary to such
beneﬁcence. Before a person can give a dollar to the
needy or a book to the ignorant he must of necessity get
the dollar or the book. As man can serve himself by
making the most of himself so he can serve others by as-
sisting them to make the most of all their powers and
talents. Men can perform all their duties to their neigh-
bors, and then their neighbors will have all their rights;
and men may go far beyond this demand of justice and
do deeds of beneﬁcence, cherish toward others the spirit
of benevolence and perform all other acts involved in the
general law that men ought to serve one another equally
with themselves. Men are so constituted and the solid-
arity of human society is such that one person can pro-
cure his own highest welfare and greatest happiness only
as he performs his duties to other members of society
and conscientiously regards the interests of all. The
prosperity and growth and moral and spiritual well-
being of others are involved in the process by which each
individual seeks his own well-being.
Fulﬁlling his obligation to others is‘ the means
by which man attains his own supreme good. By the
steps of justice, benevolence, veracity, gratitude, mercy
and loyalty to others, man ascends to the exalted plane
of his own perfection and happiness. Each individual,
under the law, is to choose his neighbor as an object of
loving service. In a rational system he is to look out for
the rights and interests of others, helping thus in the
great work of universal progress and the public welfare.
Each right thinking individual wishes to be a factor
in the great work of human advancement. In the Uni-
versal uplift of mankind the individual sees a work
worthy of his greatest energies of body and spirit. To
have no share in this world-object is unworthy. Only
as man sympathizes with all the practical movements
and means adopted for its accomplishment, sympathizes
with the material, educational, political and religious bet-3" 3, _
o...
166‘ THE SPIRITUAL LAW
terment of all mankind, and engages, to some extent, in
efforts to realize the same, can he attain his own broadest
development and highest self-respect. Like the elevator
boy, man goes up with those he elevates, and goes down
with those he lowers. The perfection and happiness of
all mankind is the inspiring vision that most deeply stirs
the soul conscious of its relation to God and His children.
“Thou shalt serve (love) thy neighbor as thyself,” is
the moral law.
SPIRITUAL LAw.
Service to God—As the Supreme Source whence all
things proceed, the fountain head of all ﬁnite being, and
power, life, intelligence, order, and perfection, man owes
particular duties to God.
As the Absolute Reason, Creator, Father, seeking in
all the ways inﬁnite wisdom suggests or permits to per-
fect the ﬁnite rational spirits of men, they owe to Him
the duty of obedience, of trust, thanksgiving, praise and
adoration. As absolute, independent, experiencing no
want, man’s service to God must consist primarily in
submission and conformity to His will.
The law of service or love to God, which is commanded,
consists radically in an act of the will, in a choice of God
as an object of service, and requires obedience to His
law however expressed, whether in the self-evident truths
of intuition, in the constitution and laws of the physical
Universe, or in the constitution and laws of ﬁnite rational
life.
We have seen how intuitive truths reign supreme as
law throughout the physical and spiritual realms and are
involved in all the activities of material and mental forces,
how human relations and the solidarity of the race are
such that by mutual services only can individuals attain
their highest well-being, thus disclosing the law of ser-
vice as the supreme law of moral conduct; and as these
laws are expressive of God’s will, it is only as man con-
forms his will and his action to them, that it is possible
for him to serve God. We serve him whose will we obey.
-, {I Only as we obey orders are we faithful servants. So by
THE ESSENTIAL NATURE OF LAW 101
conformity to these universal laws, man attains his own
and his neighbor’s highest welfare and happiness, and in
doing this he is securing the very good which God is
seeking for every individual. By obedience, therefore,
man enters into the plan of God and becomes a co-worker
with Him in the establishment of the kingdom of right-
eousness upon the earth. He is attaining the very good
which God is Himself seeking for man.
In this conformity and obedience, then, man is en-
gaged in the services of his Lord, serving at once himself,
his neighbor and God. This rational principle that a
rational creature ought to obey his Creator constitutes
the supreme law of human action. This command that
man shall serve (love) God supremely stands ﬁrst in
importance. It is the supreme law of the spiritual realm.
It does not, however, as some have contended, consti~
tute the whole law. Love to man is as imperative. The
two laws together constitute the law of service to per-
sons. Such are the relations of man to man, and man
to God, that only as an individual serves man from a
motive to obey God can he realize his own highest well-
being.
It is theoretically possible for a person to be highly,
if not perfectly developed physically, intellectually and
morally, and yet know little, if anything, of spiritual
life. He may be a Hercules in physical strength, an
Apollo in physical form, a Plato or a Shakespeare in
intellectual and poetic genius, and a John Stuart Mill in
moral conduct, and yet be a spiritual dwarf. Robert
Ingersoll was a man of ﬁne physical development, having
a powerful and well-trained intellect, and, so far as I
know, he was a moral man, in the sense that he met his
moral obligations to his family and to his fellow men;
yet, no one would claim that he was a spiritually minded
man. He himself would probably have resented any such
claim made on his behalf.
There is then, a higher and a distinct nature in man;
where we ﬁnd a law different and superior to all other
laws of his being. As the moral law commands the will
to love and serve man, so the spiritual law commands the
102 THE SPIRITUAL LAW
will to love and serve God. The moral law has for its
object man, the spiritual law has for its object God.
Man’s will power, regulated by the ﬁrst and great com-
mandment constitutes man’s spiritual nature.
Man may, and often does, love his fellow men, work
for their comfort, their general good, and for their inteld
lectual and moral well-being; while, at the same time,
he ignores the claims of this supreme law, which come
mands him to love God with all his heart, soul,
mind, and strength. In such cases a person may de-
velop his body, discipline his intellect, become as great
a moralist as Marcus Aurelius or Seneca, and yet, be-
cause he has never recognized the existence of his spirit-
ual nature, has never acknowledged the reign of the Su-
preme Law of love within his soul, has never entered
into and cultivated his highest self, he is spiritually be—
numbed, if not spiritually lifeless.
Man, then, has his four natures, each fully equipped
with its power and its law, its peculiar desires and its
peculiar pains, pleasures and emotions.
Of these four the spiritual is the highest—highest in
the sense that the law which reigns there is the Supreme
Law of man’s life. The law of love to God is a constitu-
tional provision. It is supremely authoritative. It ap-
plies to all the ﬁnite souls in the universe. No other
law has any validity in reality if it violates this one.
Man’s spiritual nature, then, is not only distinct, and
superior because the essential law reigning there is the
supreme law of the spiritual universe, but because the
person to be loved under that law is the Supreme Being,
the Eternal Father. In the moral realm we are to love
ourselves, and our neighbors as ourselves; but in the
spiritual realm we are to love God, serving him in all the
ways our minds can devise, with all the enthusiasm our
heart’s affections can inspire, and with all the strength
of our mental being.
As we have already seen, man’s moral nature consists
primarily of his will-force acting under the law, “Thou
shalt love thy neighbor as thyself.” Now, a man be-
comes morally developed, disciplined and perfected just
THE ESSENTIAL NATURE OF LAW 103
in proportion as that will force chooses and acts in har-
mony with that law. \Vhen by habitual practice the will
comes to always obey the law and becomes changelessly
conﬁrmed in that habit, then that person has become mor-
ally perfect.
So we have seen that man’s spiritual nature consists
primarily of his will-force acting under the law, “Thou
shalt love the Lord thy God with all thy mind and heart
and strength.” Now also, a person becomes spiritually
developed, disciplined and perfected just in proportion
as that will force chooses and acts in harmony with that
law. When, by habitual practice, the will comes to al-
ways obey that law, and becomes changelessly conﬁrmed
in that habit, then that person has become spiritually
perfect,—-not perfect in the sense that the spirit cannot
still grow in the power of spiritual comprehension and
blessedness; but perfect in the sense that its will is ever
in harmony with the demands of its law, and hence, ever
in tune with the will of God—perfect in essence, though
capable of enlargement.
Spiritual progress, then, consists in the habituating
of the will to obey the Supreme Law of love to God. As
that habit becomes more and more ﬁrmly established,
the soul of man becomes more and more godlike, and
hence more and more spiritually inclined, and spirit-
ually stable, and spiritually conﬁrmed in godliness; and
all the spiritual emotions of the soul become more keenly
alive.
Man must take the initiative in securing spiritual pro-
gress, just as he must in securing physical, intellectual or
moral development. In other words, he must take the
initiative, so far as to comply with the necessary con-
ditions of spiritual progress. Before he can have the
advantage of the sunlight, he must open his eyes; before
he can have the assistance of electricity he must make his
connections; before he can have a harvest, he must sow
the seed; and so, before he can experience the gracious
and regenerating inﬂuences of the Divine Spirit he
must comply with the ﬁrst and great law of the spiritual
world.
104 THE SPIRITUAL LAW
Now, as man progresses toward physical, intellectual
and moral perfection by exercise and practice, so he pro-
gresses spiritually in the same maner. He must make a
ﬁght for it. He must make it his chief business. He must
work for it every conscious moment. The prize ﬁghter
spares no pains or effort in preparing his body for the
ring. Intellectual equipment can be secured only by un-
tiring exertion. The moralist can acquire the habit of
applying the rules of right conduct only by resolute effort
and self-denial. So, in this highest realm, that of spirit-
ual discipline and equipment, excellence and progress to-
ward spiritual perfection can be attained only by making
it the chief business of life. Persons become spiritually
minded when they are willing to pay the price of self-de-
nial which it involves.
Man must serve God, not simply man. If a starving fel-
low being ask me for bread, and, without any idea of
God in my mind, or care for God in my heart, or rever-
ence for God in my spirit, I give to the hungry one the
bread he needs, through pity or human compassion, I
do a good and a moral act; but I have not performed a re—
ligious act, nor have I complied with the supreme law
of my spiritual nature. I have acted on the moral plane‘
alone. I have not ascended to the high privilege the oc-
casion affords me. But let me see in that poor, starving
_ man, a child of God, a ﬁnite spirit in the image of its
Maker, a struggling soul whom God loves with an inﬁ-
nite tenderness, and one whom God wants me to help;
and one whom he has commanded me to help; and, out
of loving obedience to God, as well as out of pity for the
starving one, I feed him and help him; I have then as-
cended to the plane of spiritual activity; and my sense
of God’s presence is quickened, my spiritual desire to
please God is satisﬁed, my conscience approves the act,
and an upward movement of my soul toward the state of
habitual obedience has been realized.
My recognition of God is the cause, my spiritual uplift
is the effect. Putting God into all the transactions of
daily life, as the controlling motive, is a condition, nec-
essary for spiritual progress.
THE ESSENTIAL NATURE OF LAW 105
Again, only as we keep the spiritual nature of man dis-
tinct in our thought, can we see the true signiﬁcance of
religious education.
As we have seen, a person may train his body ‘to the
highest degree of strength and development, as do many
of the pugilists, giving no special attention to his intel-
lect or to his moral or spiritual natures; or, one may
train his body and his intellect, disregarding the higher
claims of his moral and spiritual life; or even, one may
train his body, his intellect, and his moral sense, but
give no thought to his religious life, as is frequently
the case in schools of the world today. But no such
person has entered into the largest privileges of life.
No such person has learned where true education be-
gins, for, while it is possible to train our body and
intellect and moral nature to a high degree, to the ex-
clusion of the spirit, it is not possible to train the spirit
and neglect our three-fold nature below it. A person
may be moral and not religious, but he cannot be religious
and at the same time immoral, or intellectually and
physically indolent and neglectful. The law in our
spiritual nature, demands obedience to God’s will; and
the moral law, and the laws of the intellect and body
are expressions of God’s will. Those laws are God’s
laws. To serve God involves obedience to all His laws
whenever they are brought to bear upon the voluntary
power of man.
It is God’s will that man should obey the laws of his
body, and the laws of his intellect and moral life, for
they, too, are His laws. So man’s religious education
involves the symmetrical development of his entire
fourfold nature. Only in this manner can man gain the
end of his existence, to-wit: the perfection of his being,
and the happiness incident to and inseparable from that
perfection.
“Thou shalt serve (love) God supremely,” is the con-
trolling law in the spiritual world.
Summarizing the whole moral law then, the best lan-
guage that can be employed is that of the great teacher:
106 THE SPIRITUAL LAW
(1) “Be ye therefore perfect even as your father which
is in heaven is perfect.” 9
(2) “If thou wouldst be perfect *' thou shalt
love (serve) the Lord thy God with all thy heart, and
with all thy soul, and with all thy mind *
and thou shalt love (serve) thy neighbor as thy self.
Regarding the relation of these two laws it has been
said: “We now see that the two great commandments
of the law are complemental; neither can be obeyed in
its full signiﬁcance without obedience to the other. They
are two aspects of one and the same law, the law of uni-
versal love. In the history of the Christian church we
discover tendencies to overlook this unity and to give
preponderant attention to one with comparative neglect
to the other. The inadequate attention to either is practi-
cally dangerous and cripples the individual and the church
in their character, work and inﬂuence. If the fact that
love to God must manifest itself in loving service to men
is overlooked, the tendency is to regard religion as consist-
ing exclusively in the worship of God; then the tendency is
to seek highly wrought feeling, to retirement and medita-
tion in the life of worship, to asceticism, to mysticism and
fanaticism, to superstition, to the pharisaic and self-
righteous multiplication of rites and rules, and punctil-
iousness in observances. If, on the other hand, the fact
is overlooked that there can be no true and normally
effective love and service to man which is not vitalized,
inspired and guided by love to God, the tendency is to
a godless and shallow humanitarianism, which seeks to
better man’s condition from the outside by changing his
circumstances, by enactment and enforcement of civil
laws, by caring for his physical wants, without seeking
the spiritual renovation of the man himself, and in disre-
gard of the principle of Christian progress, ‘Make the
tree good and the fruit will be good also,’ and without
recognizing man’s relation to God and the true signiﬁ-
cance of right character and the attractive motives to
it involved in that relation. * This one-sided-
ness in the conception of the two aspects of the law of
7710
9 Matthew, 6-48. 10 Matthew, 19-21, and 22-37 and 39.
THE ESSENTIAL NATURE OF LAW 107
love and the consequent misapprehensions and misappli-
cations of the law are rebuked by Christ. In his person
and life, as well as in his teaching, he reveals the insepar-
able unity and interdependence of love to God and love
to man, as two aspects of obedience to one and the same
law. He teaches that all true love to God is-
sues in love to man. Thus he declares the inseparable
unity of the two great commandments of the law; obedi-
ence to one is never genuine and complete without obedi-
ence to the other. He presents them in unity as the prin-
ciples under which all human duties to God and to man
are summarized, and from which all duties in detail are
to be unfolded and deﬁned. It will be an epoch in the ad-
vancement of the kingdom of God and the renovation and
progress of human society when the inseparable unity
of religion and morality, of love of God and love to man,
is acknowledged in its full signiﬁcance and importance
and the lives of all Christians are in conformity with the
law of love in both its aspects.” 11
MoRAL LAW, CONTINUED.
.We have now seen in what the spiritual law consists.
Thou shalt love (serve) God supremely. We have seen
its relation to the moral law, thou shalt love (serve) thy
neighbor as thyself. The two are often spoken of as
one, and that is called the moral law. We prefer to treat
them separately, because men often exhibit moral virtue
and observe the rule of moral conduct, without having
any spiritual culture: and moreover it is upon the moral
law, service to self, and to one’s neighbor, that the great
systems of positive law which we are to consider are
chieﬂy based.
This law of man’s interest in man was early recog-
nized and has appeared as an accepted principle all along
the history of the race.
It is not claimed that this law is known, in rational
intuition as formulated and expressed by the Great
Teacher, but philosophy has recognized the essential
element of the law from the remotest days. Men ﬁnd
11 God, Creator and Lord of All, 2d vol. pp. 348, 349.
108 ANCIENT VIEWS OF THE MORAL LAW
themselves in a rational system so related to one another
in society that their highest welfare depends upon mutual
helpfulness. Nowhere is man in a state of complete iso-
lation. The family, the tribe and the clan are aggrega—
tions of individuals who from the very ﬁrst have recog-
nized themselves in a system of reciprocal rights and
duties. The sympathies and affections of men have ever
bound them in smaller or larger groups, and they have
recognized that absolute selfishness, where each looked
alone to his own pleasure, would work the utter extinction
of the race.
Of the early recognition of this law of service Buckle
says: “There is unquestionably nothing to be found in
the world which has undergone so little change as those
great dogmas of which moral systems are composed. to
do good to others, to sacriﬁce for their beneﬁt your own
wishes; to love your neighbor as yourself; to forgive
your enemies; to restrain from passions; to honor your
parents; to respect those who are set over you; these
and a few others are the sole essentials of morals, but
they have been known for thousands of years, and not
one jet or tittle has been added to them by all the ser-
mons, homilies and text-books which moralists and theo-
logians have been able to produce.” 12
Long before men constructed systems of philosophy and
gave accurate expression to the laws embraced within
those systems the laws themselves were recognized upon
occasions in experience and habitually obeyed by man—
- kind. The law of gravitation was recognized of neces-
sity from the earliest days in human history, but never
until Newton’s time did anyone formulate and give it
accurate expression; and so the law of service, which de-
mands that men should not live in utter selfishness but
should recognize and respect the rights and necessities
of others and should unselﬁshly exert themselves in their
behalf, was operative in human society centuries before
philosophers and teachers ever gave it expression in
human language. That man ought to perform his duties
by respecting the rights of others, that he ought to choose
11’ Hist. of Civilization, Vol. 1, p. 129.
THE ESSENTIAL NATURE OF LA W 109
for himself and others good instead of evil, is recognized
intuitively by man’s reason, upon those occasions in his
experience when he is called upon to choose one or the
other.
To emphasize the practical character of this law of
service I quote the following eloquent words: “Political
economy, the science of business exchanges, which is
founded solely on enlightened self-interest, coincides with
Christian ethics in this respect. Its fundamental prin-
ciple is, that every legitimate exchange is the exchange
of equivalent services; it is coming to accept the word
‘service’ as best expressing whatever is exchanged.”
“Legitimate business is in its prosecution a service,
because it is productive, and supplies human wants. The
farmer raises food for man and beast, and material for
clothing. The mechanic and manufacturer ﬁt the raw
material for use. The merchant transports products and
makes them accessible to those who want them. The peo-
ples of the world serve each other by their productive
labor—the Asiatic serves the European, and the Euro-
pean serves the Asiatic. Over all the world men are in-
dustriously serving each other, producing what meets
human wants. Thus viewed, the creation and circulation
of products through the world, beneﬁcent as the circu-
lation of air and water, rises to the sublime. The circu-
lation of the products of all countries, passing in white-
sailed ships over the ocean, millions of wealth always in
motion from mart to mart, a circulation so noiseless that
the products of the other hemisphere ﬂow daily through
the streets unnoticed as the wind, and so equable and com-
plete that you have only to step across the street and the
product of any country is stored ready for your hand,
and the table is daily spread with the products of every
quarter of the globe—this circulation, all pervading as
the ﬂow of blood in the body, binds all nations in the
unity of a common interest and life.” 13
This law of love, both to God and man, appears in the
religion, philosophy and literature of nearly every civi-
lized race of ancient times. To regard the rights and
13 Kingdom of Christ on Earth, p. 153.
110 ANCIENT VIEWS OF THE MORAL LAW
interests of others is not peculiar to Christianity. Far
back in the days of Confucius, we ﬁnd the doctrine that
one should do to others as he would have them do unto
him. Buckle says in the “History of Civilization,” that
the “system of morals propounded in the New Testament,
contained no maxim which had not been previously enun-
ciated, and that some of the most beautiful passages in
the apostolic writings are quotations from pagan authors
is well known to every scholar; and so far from supply-
ing, as some suppose, an objection to Christianity, it is
a strong recommendation of it, as indicating the intimate
relation between the doctrine of Christ and the moral
sympathies of mankind.” 14
Budha taught that religion is the faculty of love. Plato
recognized the relation of God to man and the universal
moral order when he said, “The ruler of the universe
has ordered all things with a view to the preservation and
perfection of the whole. i‘ Everything that
comes into being exists for the whole, that the whole may
be blessed. You exist for the whole, not the whole for
you. 7? 15 _
Epictetus comprehends and states the same great truth,
“He then who has observed with intelligence the admin-
istration of the world, and has learned that the great-
est and supreme and the most comprehensive community
is that which is composed of men and God, and that from
God have descended the seeds not only to my father and
grandfather but to all beings which are generated on the
earth and are produced, and particularly to rational be-
ings, for these only are, by their nature formed to have
communion with God, being by means of reason conjoined
with Him, * i‘ ”‘ why should not such a man call
himself a citizen of the world ‘f * a son of
God?” 16
He also recognized the great truth that the highest goal
of man could only be attained by self-sacriﬁce—service
to others. “Speak good of your brother, never claim
in opposition to him any of the things which are inde-
14 His. of Civilization, Vol. II, p. 15 Laws Book X 903.
129-130. 16 Book 1, Chap. 9.
THE ESSENTIAL NATURE OF LAW ' 111
pendent of the will, but readily give them up that you
may have the larger share of what is dependent on the
will. For see what a wonderful thing it is, in place of a
lettuce (triﬂe) ——you gain for yourself goodness of dispo-
sition. How great is the advantage.” 1'’
And Marcus Aurelius recognized the solidarity of the
race in his saying: “We are working together to one
end, some with knowledge and design, and others with-
out knowing what they do.” 18 And again he says,
“Adorn thyself with modesty and simplicity, and with
indifference toward the things which lie between virtue
and vice. Love Mankind, Follow God.”
Approving the sentiments of Plato, Cicero says, “But
(as has been strikingly said by Plato) we are not born
for ourselves alone, our country claims her share of us;
and, as the Stoics hold all the earth produced is created
for the use of man, so men are created for the sake of
men, that they may mutually do good to one another.” 19
Terence voiced the same sentiment, “I am a man
and nothing which is human can be alien from me.”
Augustin, bishop of Hippo, in the fourth century, said,
“Every man is most closely connected with his fellow
men, nor should any distance of relationship enter into
consideration where there is a common nature.” 2°
The Persians also expressed their faith in this law,
which requires good to be bestowed upon even our ene-
mies. The verse of Saadi says: “Confer beneﬁts on him
who has injured thee,” and Haﬁz writes in the same
strain:
“Learn from yon Orient shell to love thy foe,
“And store with pearls the hand that brings thee woe.”
Cicero also recognized a distribution of duties, “In
society there are degrees of duties by which every man
may understand what belongs to himself. The ﬁrst is ow-
ing to the immortal gods, the second to our country. the
third to our parents, and lastly to others through differ-
ent gradations.”
17 Book 1, Chap 10, 19 Oﬁices, Book 1, Chap. 7.
18 Epictetus 1, Chap. 10, Note, 20 Oﬁices, Book 1, Chap. 10, Note.
Meditations p. 190.
112 RIGHTS AND DUTIES
The moral law is rooted in the very constitution of
man and of human society. It is the fundamental princi-
ple from which is developed all the rights and duties of
mankind.
Rights and Duties—The rights and duties of persons
are all developed fundamentally from the one all-com-
prehensive law of service or love, namely, “Thou shalt
serve (love) thy neighbor as thyself.” Persons are to
serve themselves. They are to perfect themselves. But
self-perfection involves the performance of duties to
others.
If I owe a person money which is due and payable, and
I have or can procure the same, in order to secure my
own highest good or well-being, I must perform my duty
to my neighbor by paying the debt. It is my duty to pay
and his corresponding right to receive payment. If I
have contracted to sell and convey to my neighbor a par-
ticular farm on a certain day for a speciﬁed sum of money
in order to attain my own highest good, I must sell and
convey the farm to him according to the terms of the.
agreement. It is my duty to convey and his right to have
the conveyance.
If I agree to work for my neighbor for the term of one
year for a speciﬁed sum of money, in order to attain my
own highest welfare, I must, if able, perform the labor
fully and faithfully. It is my duty to perform the work
and his right to have it performed. If I negligently in-
jure my neighbor, in order to attain my own highest well-
being I must, if able, duly compensate him for the injury
he has sustained. It is my duty if I am able to compen-
sate him and his right to receive compensation. If I am
selling my neighbor a machine for a particular purpose,
and there is in it a latent defect, in order to attain my
own highest good through the transaction, I must if I
know it inform my neighbor of the defect. It is my duty
to inform him and his right to receive the information.
The same law of love or service which commands me to
perfect my moral character commands me to perform
my duties to my neighbor in all the aﬁairs of life and
THE ESSENTIAL NATURE OF LAW 113
at the same time confers upon my neighbor a right to
the discharge by me of those duties.
It is in this outward world of concrete affairs that
persons ﬁnd the opportunity to realize their own self-
completion or self-perfection, and to secure the happiness
which is inseparably connected with right conduct.
It is by justice, and benevolence, and veracity, exer-
cised by one person toward another in the varying rela-
tions and necessary transactions of life, that persons
attain the true end of their individual existence. If one
would attain his own perfection and happiness he must
obey the law of social service; and, if a merchant, he
must give full weight and measure to his customers; if
a laborer, he must perform faithful services to his em-
ployer; if a physician, he must exercise his utmost skill
in behalf of his patient; if a teacher, he must instruct,
inspire and in every possible way improve and encourage
his pupil; if an attorney, he must employ his best judg-
ment, knowledge, and skill in the interest of his client to
the end that justice may be secured. And, on the other
hand, the customer, the employe, the patient, the pupil
and the client are under equal and corresponding obli-
gations to reciprocate to the full extent demanded by this
law of service.
Rights and duties are not abstractions. They are nec-
essarily involved in the application of the moral law. If
I would attain my own highest excellence under the law
of service, I cannot ignore my duties to the poor, the
unfortunate, the depraved. Whatever, under any par-
ticular circumstances, my duty to them may be, only by
the full discharge of that duty can I meet the rights
which they possess. It may be my duty to give, without
hope of reward, to the sick and the helpless. Benevo-
lence is often a duty.
Persons also have a right to the truth. If‘, when I am
about to sell my neighbor a farm, he asks me the num~
ber of acres it contains, if I know, it is my duty to inform
him. He has a right to the truth. If I would gain my
own highest good, I must meet all the demands of his
right by performing my duty. So in all the transactions
\
114 RIGHTS AND DUTIES
of life, persons must, under the law of service, satisfy
the rights of others by the performance of their own
duties to those others. Otherwise, one does not love him-
self as the law requires.
This law of service is fundamental. It is the one all-
comprehensive moral law. It is generic, of which all
moral precepts and rules of human conduct are but the
species.
While one must, under this law, perform duties to
others, he also has rights which under the law they
must respect.
If persons are themselves ends, or beings to be served,
and the perfection of all their powers and susceptibilities
is the greatest service that can be rendered them—the
“greatest good” to be attained for self or conferred upon
others—then the law of service imposes upon man the
duty to seek his own and his neighbor’s highest well-
being—their perfection and happiness. It imposes upon
man the duty of enlarging and perfecting all his powers
and susceptibilities,—-physical, intellectual, moral and
spiritual. This is the end of man’s being and at the
same time a law to his action, and in so far as it im-
poses upon man the duty to perfect himself, it accords
to him a right to the means necessary to the perform-
ance of that duty. “A man will have a right to every-
thing that is essential to the attainment of the end for
which he was made.” 21 It cannot be one’s duty to ac-
complish the impossible, and that is impossible for the
attainment of which there are no means. It cannot be
the duty of any one to cross the American continent in
an hour, because there are no means known to man by
which such an act can be accomplished; and it is equally
clear that when the law imposes upon one the duty to do
a speciﬁc thing it guarantees to him a right to the means
essential to its accomplishment. The same law which
imposes the duty confers a right to the means neces-
sary to its performance. If it is made the duty of an oﬁ‘i-
cer of the law to see that the peace is kept, the same law
which imposes that duty confers upon the officer the legal
21 Hopkins, Lectures on Moral Science, p. 254.
THE ESSENTIAL NATURE OF LAW 115
right to command the assistance of other persons if nec-
essary to the performance of his duty; and whenever
anything is required by civil law to be done, and it is
found impossible to do that thing unless something else
be done which is not expressly authorized by that law,
then the right to do that necessary thing must be held
to exist by necessary implication. So the law of man’s
highest well-being, which makes it his duty to educate,
expand and perfect his intellectual, moral and spiritual
powers, accords to him the right to his life, his liberty
and the products of his own industry as means abso-
lutely necessary to the attainment of that end. These
natural rights then are grounded in man’s constitution;
they are inherent in the very frame-work of his personal
being. They are not rights created by any civil enact-
ment, but they exist prior to civil enactment and but for
their existence civil enactments would have no signifi-
cance. Beings without rights and duties are not per-
sons, but they are impersonal beings like animals. It
is here in the moral constitution of man that we ﬁnd
at once the law, the duty it imposes, and the rights it
confers upon him. The duty of self-perfection, the right
to life, to liberty and to the products of his own industry,
and the right to defend himself against the unwar-
iantable and violent assaults of others are found to be
constitutive elements in personality.
A Right Deﬁned—"W e may therefore deﬁne a right as
a claim one has to anything accorded him by law. If
accorded him by civil law the right is a civil one, if ac-
corded by natural law the right is a natural one. A
person is said to have a legal right to occupy his dwell-
ing-house because the positive law recognizes his claim
to do so and will restrain other persons from interfering
with such occupation. A person is said to have a natu-
ral or moral right to defend himself against the unpro-
voked and violent assault of another because the natural
law of instinctive resentment accords him that right and
warrants such defense. And so a person is said to have
a natural or moral right to sum of money due under
a contract that is outlawed because the moral law ac—
116 RIGHTS AND DUTIES
cords him that right, though the law of the land will not
enforce it. A right, then, implies the existence of a law;
and the natural or moral rights of man are the claims
accorded to him by natural or moral law.
If then man has a right to the means essential for his
development and perfection the question arises as to
what are those essential means.
Life—Foremost among those essential means of self-
perfection is physical life. Man has a right to his body.
Without knowledge man cannot improve his mental con-
dition, and all his knowledge begins with impressions
made through the medium of the senses. The ﬁve senses-
are the avenues of approach from the external world to
the internal spirit. It has been said by another, “this
body is the necessary means of his development. He
is developed by the body. He learns through the eye and
the ear, the hand and the foot, the activities of the phy-
sical organization. Is he blind, one element of his de-
velopment is cut off; is he deaf, another element; is he
deprived of his sense of touch, a third element. With
these all gone some development may be carried on, but
generally speaking it may be said that the body is nec-
essary to his development. By the very discipline he re-
ceives through his body, his soul is moulded and shaped.
He is educated through the physical organization. Then
he comes into the second stage in which this body becomes
the necessary instrument of his activity. It is the power
by which he operates upon the world without. His lungs,
his heart, his stomach keep the machine in order while
the machine is being used to impart to other lives. Be-
cause he has bands which are themselves tools, he makes
tools as no handless animal can. Because he has eyes
he can produce color which otherwise he could not pro-
duce. With his tongue he speaks and communicates his
thoughts to others. His body is the necessary instru-
ment of his activity. ’ ’ 22
If as a ﬁnite person man is to develop his powers of
mind, enlarge the scope of his mental vision, strengthen
the wings of his imagination and grow into perfect man-
22 Abbott, in Outlook for March 27th, 1897, p. 842.
THE ESSENTIAL NATURE OF LAW 117
hood, if this is his duty, if this is the end to be attained
by his earthly pilgrimage, then he has a claim, a right,
to his body as an indispensable means to that exalted
end. Deprive him of the means and the end is unat-
tainable. It follows, therefore, that, if self-perfection
is enjoined under the laws of reason, man must have a
right to his life, his liberty and to the product of his
own industry which are the means necessary for his own
perfection, and also the means necessary for him in his
efforts to aid others to a like perfection of their being.
A person’s physical constitution conditions all his possi-
ble growth and development in human society; hence the
right to life is properly regarded as the most sacred of
rights. The law which commands me to work for the
perfection of my neighbor as well as for my own also
commands me, by necessary implication, not to de-
prive him of physical life, or of his physical liberty, or
of anything pertaining to his physical perfection. This
law was as imperative before the announcement of the
decalogue as it was afterwords, and it would be as im-
perative ‘today in the absence of positive law forbidding
the same as it is in the presence of such law. The fact
that a legislature of men says, “Thou shalt not kill,”
does not make it any more obligatory upon man to re-
spect his neighbor’s life than it was before. In all his
efforts for his own and his fellow-man’s well-being man
ought to act conformably to all the laws of the moral sys-
tem in which he lives.
The test of the means man may employ for the attain-
ment of his end in life is law itself. He is to seek his
own and his neighbor’s good or well-being according to
law.
Liberty—Only in freedom can man attain his highest
well-being. Liberty is a means necessary to man’s per-
fection. He cannot perfect himself while in bondage. He
must have the free use of his body. If conﬁned in prison,
what knowledge can man gather from the world in which
he has been placed? When he is shut in, the world to
him is shut out. The thoughts it suggests, the inspira-
tion it imparts and the broadening effects upon man of
118 RIGHTS AND DUTIES
his communication with nature are denied him just in
proportion as his liberty is circumscribed. Nearly the
same observations regarding man’s liberties can be made
as those that were made regarding his life. To attain
the end of self-perfection man must be free. Only in the
free use of his powers can man perfect them. Next to
the importance of physical life a condition of self-
culture is the condition of physical liberty—freedom to
execute ‘those choices which a person makes for the ac-
complishment of the true end of his being. So long as
man is under command to attain his highest well-ljieing
he has a right to all the means essential thereto, and free-
dom is one of those means—freedom of body, freedom of
speech, freedom to carry out in human affairs those en-
terprises calculated to secure his own and his neighbor’s
good. Man must have liberty to act as he chooses so
long as he does not interfere with the like liberty of every
other person. Man has a right to liberty as a means to
attain the end which he is under obligation to attain.
Property—We ﬁnd also among the means necessary
for man’s perfection the product of his own industry.
Man must have houses and clothing to protect his body,
books to inform his mind, churches in which to worship,
and accumulations for the purposes of leisure wherein he
may investigate the truths and laws of the world in which
he lives. As a means for the attainment of self-develop-
ment man has a right to property. “Thou shalt not
steal” was written in the constitution of the race long
before its announcement from Sinai.
My right to life, liberty and property is a law to all
other persons in that it commands them to respect that
right. The rights of each are laws to all others in the
sense that those others ought not to violate or disregard
those rights. These natural rights are ﬁxed and estab-
lished facts in the realm of personal existence, and as
such they are regulative of human conduct, in that they
determine what man ought and what he ought not to do.
NVith these we might include the right to reputation, the
right of free speech, the right to contract, the rights
growing out of domestic relations, and many others, but
THE ESSENTIAL NATURE OF LAW 119
they are all laws, some in the primary and others in the
secondary sense of the term, in that they are regulative
factors, declaring what man ought or ought not to choose
or to actually do. 23
NVe might carry this analysis of rights further, but
those which form the basis of positive jurisprudence have
been already considered. As the perfection of man’s
being is the prime duty to himself, as seeking the per-
fection of the being of others is his prime duty toward
his fellow-men, it follows that he has the right to all the
means which will best enable him to accomplish those
ends.
Intellectual and Moral Order as Laid—The intellectual
and moral order of personal beings is a ﬁxed, and rela-
tive to man, a changeless reality. That order can no
more be changed by human power than the phenomenal
order of the physical universe. Man ﬁnds himself impli-
cated in that order. His intellectual and moral constitu-
tion, his intellectual powers, desires, and emotions; his
moral intuitions, desires and asprations are all as ﬁxed
and real as the nature and orbits of the planets and stars.
That order is a reality and determines what man can and
what he cannot do; and also what he ought and ought
not to choose. One can secure intellectual and moral re—
sults only by complying with the intellectual and moral
nature of man. ‘One can become learned only by comply-
ing with the laws of thought, of memory and imagina-
tion. One can impart knowledge to another only in the
same manner. One can become morally sensitive and
resolute only by complying with the provisions of his
moral constitution and the laws of his moral nature. If
an attorney wishes to secure a certain verdict from the
jury, or an orator wishes to secure the passage of a cer-
tain resolution by his audience, or the preacher wishes
23 \Vith these rights to life, liber- action. These inherent rights are
ty, property, and to free speech, to
contract and to trade, human laws
are chieﬂy concerned. To protect
persons in the exercise of these nat-
ural rights is the function of con-
stitutions, legislation, and judicial
constituent elements in personality.
They precede human law as man
himself precedes human law.
‘Wilson’s \Norks, Vol. I, page 275.
Vol. II, page 309.
120 RIGHTS AND DUTIES
to secure some deﬁnite action by his church, he can do
so only by imparting to them information calculated to
arouse such desires, emotions or passions as are likely
to induce such a choice as the speaker desires. He cannot
compel such choice. The intellectual and moral order
forbids that. By complying with the demands of that
order he may procure the result or obtain the object he
wishes. The order confronts him. He may comply with
it and succeed, otherwise he must fail.
CHAPTER V.
LAws RELATIVE TO PERSONAL BEINGS, CONTINUED.—
SocIETY.
SOCIOLOGICAL LAWS.
In the last two chapters we have seen how the individ-
ual is subject to the laws of thought;_to the laws of asso-
ciation; to moral and spiritual law, and to a phenomenal
order that prevails throughout the universe; and now,
we wish to enquire whether Human Society—the entire
aggregation of individuals—is also subject to invariable
and uniform laws, and if so whether those laws, or some
of them, have been discovered and reliably formulated
so that there may properly be said to exist at the pres-
ent time a Science of Sociology.
Is human society subject to law in its primary mean-
ing, as we have seen physical nature to be, and have so-
cial affairs also such a ﬁxed order of sequence as we have
found to prevail throughout the realm of matter?
If there is such a phenomenal and deﬁnite order of
sequence, if the movements of society, the successive
stages to civilization, have all taken place conformably
to certain uniform laws, then this order and these laws
are, of course, the subject of scientiﬁc investigation, and
to discover and formulate them is to found the Science
of Sociology.
That human society has progressed from simplicity
to an almost incomprehensible complexity there can be
no question. In language, in government, in music, in art,
and every other line of social development, progress has
been from the homogeneous to the'heterogeneous, and that
this progress has taken place conformably to law, rather
than by chance, is also generally admitted.
But the disputed question relative to human progress
has been whether the law of causation reigns supreme
122 LAWS IN THE SOCIAL REALM
and universal throughout the realm of social phenom-
ena. Are human choices necessitated, so that they must
be what they are? Are human choices bound by the law
of necessity? Do they take place according to a ﬁxed
order, subject to ﬁxed laws, as bodies of all kinds tend
toward the earth, under the inﬂuence of gravitation?
It is stated by some that the law of causation is uni-
versal, that it has ever in any one instance been vio-
lated, we may be excused for taking up with the theory
of chance; and so it is asserted that all the vast bodies
in the siderial universe move on for untold ages in their
orbits in strict conformity to law; that in conformity to
law, the solar system in all its complexity, has grown out
of a homogeneous nebula, that the earth’s crust has cooled
and condensed, that organic life has arisen, and that
man has been created in accordance with law; that his
thoughts chase each other along deﬁnite paths and con-
tiguous channels marked out by the laws of association;
that never and in no place is law interfered with—that
yesterday, today and forever the effect follows the cause
with inevitable and inexorable certainty. And hence, we
cannot believe that in one particular corner of the Uni-
verse, upon the surface of one little planet, in a portion
of the organism of one particular creature there is one
special phenomenon called volition, in which the law of
causation ceases to operate. 1 And consequently, those
who hold this view of causation contend ‘that social phe-
nomena are all subject ‘to natural law, that human
choices are determined by the established order, and that
the science of sociology comprehends within its jurisdic-
tion every social phenomenon of every kind and character
whatsoever.
This materialistic view reduces man to a child of fate,
swept on by the current of human events as helpless as
the log that ﬂoats upon the river. I/Vhatever reasoning
and subtle philosophizing those who hold this view may
indulge in, they have never yet convinced any considerable
number of the human race that man has not a free will
and that he is not the creator of his own moral character.
1 Cosmic Phil. 2d vol., 171-2.
THE ESSENTIAL NATURE OF LA V/ 123
It is useless to argue against the instinctive beliefs of
the race. N 0 one can be convinced by argument, however
plausible, that there is no God, that the soul is not im-
mortal, and that man is not free in the exercise of his
will power.
Can ‘there, then, be a science of sociology? Any pre-
tended science which denies or ignores unmistakable facts
cannot be a true science. Upon this point it has been
said: “Sociology will never reduce human action to the
exactness of mechanical laws. This is impossible for the
simple reason that man is not a machine, but a person.
Free will is a power above mechanism and chemical affin-
ity. And it is inherent in the very essence of free will
that it can disobey law. Hence the actions of particular
persons or communities cannot be foretold with unerring
accuracy. The man who was a blasphemer in the morn—
ing, may be a penitent at night. The young man who till
yesterday has abstained from intoxicating drink, may
drink to drunkenness today; a community quite under des-
potism this year, may be in armed revolution the next.
In the Duke of Alva’s time a Protestant fleeing from an
officer of the Inquisition crossed a frozen lake. His pur-
suer broke through the ice and was likely to drown. The
fugitive, hearing his cries, returned and rescued him from
death. Then the officer seized the unarmed and defence-
less man and delivered him up to the Inquisition. No
person, probably, would have predicted that a man would
make this return to one who had voluntarily come back
to him and saved him from death.
In all calculations as to the probability of human action
the moral character of a person or of a community, ac-
quired by free choice, must be taken into account. The
very same agencies that move one person or community
to righteous and benevolent action, will move a person
or community of different moral character to unrighteous
and selﬁsh action.” 2
The assumption that there is a law underlying all so-
cial phenomena, including the voluntary choices of man,
which absolutely determines these choices, and determines
2 Phil. Basis of Theism, 404.
124 LAWS IN THE SOCIAL REALM
the course of human progress, and necessitates the ﬂow of
human events, as the force of gravity necessitates the
current of the river towards the sea, is unwarranted and
contrary to the facts of consciousness.
WVe are not to infer, however, because the choices of
man are not subjected to the law of necessity, that there
is no such science as sociology. Such a science has a
legitimate sphere, and there are certain well deﬁned so-
ciological laws, consistent with man’s. moral freedom.
Society, as an aggregation of individuals, possesses
power, performs acts, applies means to the attainment
of ends, and is subject to law as truly as is the individual
himself. There are certain things that it can, and cer-
tain other things that it cannot accomplish.
That Humanity, or Society, in its broadest sense,
should have divided itself, politically, into the Japanese,
Chinese, Germans, Italians, Turks, Russians, Austrians,
French, Spanish, English, the various American Nation-
alities and others, so that each should occupy just the po-
sition it does, within just such territorial limits upon
the globe, possessing the form of government it possesses,
and has made just the history for itself it has made, and
that too, by mere accident, is to accredit human progress
to chance and deny the existence of a directive intelli-
gence in the affairs of mankind.
But, on the other hand, if a directive intelligence has
superintended the course of history, and “hath made of
one blood all the nations of mankind, to dwell upon the
face of the whole earth, and ordained to each the appoint-
ed seasons of their existence, and "the bounds of their
habitation,” then a uniformity of process, and an orderly
sequence of events would be expected in the history of
man as truly as it is found in the evolution of matter.
In examining it with reference to the laws that prevail
therein, we ﬁnd society subject to law both in the primary
and secondary sense of the term.
Primary Truth as Law—All the primary or self-evi-
dent truths previously considered are regulative of social
forces as truly as they are of physical and mental power.
They are law to Society as they are to individuals, and
THE ESSENTIAL NATURE OF LAW 125
in the same sense that they determine what society can,
and what it cannot effect.
Society cannot produce something from nothing; no
Parliament or Congress can make a dollar out of ﬁfty
cents, nor reduce a pound sterling to a dime; no nation
can cede its dependencies to another and at the same time
retain them; nor can society elude, modify, or annul the
Moral law, or change the phenomenal nature of the phy-
sical or mental systems in which it is implicated and
under which all social forces are exercised. Reason
speaks to society in the same imperious terms of author-
ity that she uses in addressing individuals.
All primary truth and the inferences arising there~
from are law to all the social forces of mankind. They
are rigidly regulative of the forces of any community,
of a nation, of a state, and of humanity as a whole, just
as truly as they are regulative of the physical or mental
powers of the individual.
Generalized Facts as Lana—But here, as in the realm
of physical nature, there are certain generalized. facts,
certain processes, certain uniform courses of phenomena
which are digniﬁed by the distinguishing title of Law. It
is our purpose to enumerate a few of the more common
ones sufﬁcient to illustrate their existence and general
character; and we will ﬁrst consider the “Law of Human
Progress.” Humanity is capable of and destined to, un-
limited progress and development.
There is in the human mind an ineradicable desire for
knowledge. This desire incites man to observe the world
in which he lives, to seek the causes of the phenomena
which he beholds, and to discover the laws that insure
order and system throughout the universe. This de-
sire for knowledge is implanted in every ﬁnite mind. In
children we call it curiosity. It manifests itself in an
early age in 1the young of every tribe and class and race
of men. It is as natural for the mind to be curious and
inquisitive, as it is for the sun and stars to shine. This
inborn desire of the mind is a certainty. Concerning its
existence there is no doubt, and by its naturally diverse
tendencies great variety of human knowledge is insured.
126 LAWS IN THE SOCIAL REALM
One mmd tends toward the study of the earth, another
toward the study of ‘the heavens, another toward the
study of natural history, another toward the study of
human history; while others desire a knowledge of the
human mind, knowledge of metaphysical truth, and
others a knowledge of God. So in these diverse mental
tendencies a sure provision is made for advancement in
knowledge.
Inﬂuenced by this desire, men have observed the phe-
nomena of the ﬁnite mind, and penetrating in behind
these phenomena, they have discovered the laws that reg-
ulate them. They have observed the phenomena of na-
ture, and going behind them, they have found the grand
system of natural law. Unsatisﬁed with these, men have
sought the deepest truth of all, and there have found
the cause and the original constitution of the universe.
So men have come to know something of God, something
of nature, and something of the ﬁnite mind, which are
the only objects of human knowledge. Godmatureand
the ﬁnite mind are the three great continents open to
man’s investigation. They comprise the entire sphere of
human knowledge. Therefore, under the inﬂuence of this
desire implanted in the human mind, the human race has
already made excursions into many realms of truth,
though it has merely begun its rich accumulation of facts
and its thrilling discoveries of law. NVhat it has done
is but prophetic of what it will do. What progress it has
made in knowledge is but a promise of what it will make.
But as deeply ﬁxed in the human mind as the desire
for knowledge, is the further desire for power. Man is
not content with knowledge. He desires to produce re-
sults. He desires to make his power known and felt and
acknowledged. He desires to combine the forces of na-
ture, to control their results, and to conquer them. From
the mere child commanding his toys up to Alexander
commanding the world or Franklin commanding the light-
ning, all are fascinated by achievement and inﬂamed by
victory. Men are not satisﬁed with a knowledge of steam
power, but they must enslave it, chain it to a car, drive
it around the world. Men are not satisﬁed with a knowl-
THE ESSENTIAL NATURE OF LAW 127
edge of electrical force; they enslave it; they make it
carry humanity’s burdens, herald humanity’s thoughts,
illumine humanity’s habitations. Men are not satisﬁed
with a knowledge of atmospheric power, but they throw
themselves across its pathway and make it waft them
over the sea and spirit their white-winged ships from
ocean to ocean. No principle in physical or mental sci-
ence is more universally recognized and acknowledged
than this human desire for power.
Not only is there a desire for knowledge and a desire
for power, but equally deep in the human mind is planted
the desire for property. Man naturally craves those
things which minister to his sustenance and his comfort.
This desire is a ﬁxed and ineradicable constituent of the
ﬁnite mind. Without it the wheels of human progress
would cease to revolve, as quickly as would the wheels
of an engine without steam. Property, and an individual
right to its use and control, is an indispensable condi-
tion to civilization. This desire for property and desire
for power have been regarded by some writers as identi-
cal, because wealth augments one’s power. But whether
one or two distinct desires, they constitute together an
incitation to progress in civilization. The two are cor-
related. With wealth, a man is more powerful than with-
out it. ‘With it he can attain results which without it
are unattainable; with it he can exercise control where
without it he would be powerless.
These desires, with other active and moral powers
of human nature stimulate industry, economy, pru-
dence, and insure progress in the varied forms of civil—
ization.
Not only is man possessed of these desires for knowl-
edge, power, and property, but there is in man’s nature
a radical impulse to put forth all his mental powers in
action. This radical impulse is deeply ﬁxed and instinct-
ive in the human ﬁnite mind. This instinctive propensity
toward the exercise of all man’s intellectual and voluntary
powers is at the bottom of all human progress. This
tendency of the human mind to put itself forth in action
is a constituent element of the mind. And we ﬁnd in this
128 LAWS IN THE SOCIAL REALM
instinctive, deeply ﬁxed impulse to action the moving
element in the law of human progress.
In this impulse and in these desires, and other consti-
tutional powers provision is made for continuous pro-
gress.
The motive forces of human progress, so to speak,
having been considered, the next question naturally aris-
ing is, “According to what law or laws does society pro-
gress?” A partial answer to this question was given by
Herbert Spencer in the April number of the Westminster
Review for the year 1857. In an article entitled, “Pro-
gress; its law and cause,” the law that progress is from
the simple to the complex is illustrated by numerous
and most striking examples, and there, that law accord-
ing to the author, ﬁnds its ﬁrst full and coherent state-
ment. 3
The Germans had recognized the fact, at that time. that
the series of changes in the progress of individual organ-
isms, as in the development of a seed into a tree, or an
ovum into an animal, constitutes an advance from the
homogeneity of structure to the heterogeneity of struc-
ture. In its primary stage every germ consists of a
substance that is uniform throughout, both in texture
and in chemical composition. The ﬁrst step in its de—
velopment is the appearance of a difference between two
parts of its substance; of (as the phenomenon is des-
cribed in physiological language) a differentiation. “ Each
of these differentiated divisions presently begins itself
to exhibit some contrast of parts; and by and by, these
secondary. differentiations become as deﬁnite as the
original ones. This process is continuously repeated—
is simultaneously going on in all parts of the growing em-
bryo; and by endless multiplications of these differen-
tiations there is ultimately produced that complex combi-
nation of tissues and organs constituting the adult ani-
mal or plant. It is settled beyond dispute that organic
progress consists in the change from the homogeneous to
the heterogeneous.”
Then the author asserts that “this law of pro-
3But see First Principles, p. 284 note.
THE ESSENTIAL NATURE OF LAW 1.29
gress is the law of all progress. \Vhether it be in the
development of the earth, or the development of life upon
its surface, in the development of society, of Government,
of manufactures, of commerce, of literature, of language,
science, art, this same evolution of the simple into the
complex, through the process of continuous differentia-
tions, holds throughout. From the earliest traceable
cosmical changes, down to the latest results of civiliza-
tion, we shall ﬁnd that the transformation of the homo-
geneous into the heterogeneous is that in which progress
essentially consists.”
According to the Nebular Hypothesis, the nebulous
mass, nearly homogeneous, through concentration, con—
solidation and varied velocities, increased its differentia-
tions in number and extent until there was evolved “the
organized group of sun, planets and satellites which we
know now— a group which presents numerous contrasts
of structure and action among its members.”
The earth too, has been becoming more and more hete-
rogeneous by the multiplication of its strata, in its va-
riety of rocks caused by the heat within, in the varied
elevations of its mountains, in its change of climates and
in numerous other particulars.
Coming then to the plants, and to animals that live
upon the earth’s surface, each organism has been devel-
oped out of the simple seed or ovum, then it has pro-
gressed from the simple to the complex; but whether the
earth’s Flora and Fauna as a whole have become more
heterogeneous is more difﬁcult of proof.
But in the case of man, it is claimed that during his
existence upon the earth, the human organism has grad-
ually become more and more heterogeneous; and that
the species as a whole has been made more complex by
its multiplication of races, and the differentiation of
these races from each other.”
Language too has progressed in accordance with the
same principle of development. Language began with
exclamations, with single sounds, the simplest kind of
speech; but later the noun and the verb appeared, fol-
lowed by the adverb and the adjective, the conjunction
130 LAWS IN THE SOCIAL REALM
and all the other parts of speech; and the moods and
tenses, written as well as unwritten language, prose and
poetry and all that goes with them to make up the lan-
guages of the earth as they exist at the present time.
Painting and sculpture are no exception to this order
of development.
Mr. Spencer says further, “On passing from humanity
under its individual form to humanity as socially em-
bodied, we ﬁnd the general law still more variously em-
bodied and exempliﬁed. The change from the homo-
geneous to the heterogeneous is displayed equally in the
progress of civilization as a whole, and in the progress of
every tribe and nation; and is still going on with increas-
ing rapidity.” 4
In his later works, however, Mr. Spencer regards the
transformation from the homogeneous to the heterogene-
ous as the most conspicuous part of the secondary redis-
tribution in Evolution, rather than Evolution itself, giv-
ing greater attention to the integration of matter and
dissipation of motion, and ﬁnally states the law as fol-
lows: “Evolution is an integration of matter and a con-
comitant dissipation of motion, during which matter
passes from an indeﬁnite, incoherent, homogeneity to a
deﬁnite coherent heterogeneity and during which the re-
tained motion undergoes a parallel transformation.”5
Recognizing this law of Evolution, Mr. Fiske in Cos-
mic Philosophy, considers the evolution of society, and
endeavors to discover and formulate the law of social
evolution. The prime factors in social progress he ﬁnds
to be “the community and its environment.” It is un-
necessary for our purpose to follow his argument. It is
enough that we state his law, which is as follows: “ The
evolution of society is a continuous establishment of
psychical relations within the community, in conformity
to physical and psychical relations arising in the en-
vironment; and during which, both the community and
the environment pass from a state of relatively indeﬁ-
nite, incoherent homogeneity to a state of relatively deﬁ-
nite coherent heterogeneity, and during which the con-
4First Principles 122 id. 145. 5 First Principles 407.
.' ‘Yr
THE ESSENTIAL NATURE OF LAW 131
stituent units of the community become more and more
distinctly individual.” 6
Mr. Fiske also undertakes to state more fully than the
author himself, Comte’s law of human progress. It is
as follows: “The progress of society is a gradual change
from anthropomorphic to positive conceptions of the
world, and from military to industrial modes of life; and
the latter change is determined by the former.” 7
The law of human progress is stated by Charles Sum-
ner in his renowned oration on the “Law of Human
Progress,” as follows: “Man as an individual is capable
of indeﬁnite improvement. Societies and nations, which
are but aggregations of men, and ﬁnally the human fam-
ily, or collective humanity, are capable of indeﬁnite im-
provement. And this is the destiny of man, of societies,
of nations, and of the human family.” 8
In order to understand fully the signiﬁcance of any of
these so-called laws of human progress as it lay in the
mind of the author, a thorough study of his arguments
leading up to the generalization, is necessary. But for
our purpose it is sufﬁcient to notice that the law as stated
in the various deﬁnitions is simply a statement of the
steps by which, or the manner in which, society has ad—
vanced from the simplest beginnings to its present stage
of complexity. It is a general statement of the process by
which society goes from the homogeneous to the heter-
ogeneous. The law simply states how society advances.
The simple fact that man individually and collectively
has the capacity of indeﬁnite improvement, and that such
improvement is his destiny, constitutes the essence of
the law as stated by Sumner. His is not even the state-
ment of a process, but the statement of a capacity and
a tendency. This is a law in the secondary sense of the
term—a mere general fact or truth called a law.
In discussing the distribution and development of man-
kind, Prof. Guyot frequently applies the word, Law, to
the important general truths, which he emphasizes in his
lectures upon “Earth and Man.” \Ve have recognized,
6 Cosmic Phil., 2d vol., 223. 8Works of Chas. Sumner, Vol. 2
7Cosmic Phil., 2d vol., 240. p. 115.
LAWS IN THE SOCIAL REALM
he says, “in the life of all that develops itself, three suc-
cessive states, three grand phases; three evolutions iden-
tically repeated in every order of existence; a chaos,
where all is confounded together; a development where
all is separating; a unity where all is binding itself to-
gether and organizing. We have here observed,” he says,
“that here is a law of phenomenal life, the formula of
development, whether in inorganic nature, or in organic
nature.” 9
After numerous illustrations of this law, he proceeds
to note the differences between the development or pro-
gress of man toward a state of perfection, and that of the
rest of the animal kingdom.
Besides the law of human progress, working from the
simple to the complex in structure, function and govern-
ment, mankind seems to be distributed over the earth and
mentally and morally developed according to a generally
recognized and established order, which Prof. Guyot for-
mulates and calls the “law of distribution and develop-
ment.”
Considering the animal kingdom, he ﬁnds the Arctic
Fauna is the least highly developed, the species are fewer
in number, more uniform in ﬁgure, and darker in color.
This region is inhabited by the white bear, the reindeer
and the whales, which are the lowest in rank of all mam-
mals. From this region, down through the temperate
to the torrid zone, there is a regular increase in the de-
velopment of animal life. The fauna of the temperate
zone is more varied than that of the arctic, and the
fauna of the torrid is still more varied in form, more
brilliant in color, more numerous in species than that
of the temperate zone. In this region, animal life is
stronger and more highly developed. The types are im-
proved; there is greater intelligence, and here the animal
form approaches more nearly to that of the human
ﬁgure.
The regular gradation in animal development, from the
arctic to the torrid regions is thus formulated as a law.
“Nature goes on adding perfection to perfection from
9Earth and Man p. 100.
THE ESSENTIAL NATURE OF LAW 133
polar regions to the temperate zone, and from the tem-
perate zone to the regions of the greatest heat.”
But man forms an exception to this rule. WVhile all
the types of plants and animals are increasing in per-
fection from the polar to the equatorial regions, in pro-
portion to an increase in temperature, “Man presents
to our view his purest and most perfect type at the very
center of the temperate continents, at the center of Asia—
Europe, in the region of Iran, of Armenia, and of the
Caucasus; and departing from this geographical cen-
ter in the three grand directions of the lands, the types
gradually lose the beauty of their forms in proportion
to the distance, even to the extreme points of the southern
continents, where we ﬁnd the most deformed and degen-
erated races and the lowest in the scale of humanity.” 1°
He states the law as follows: “In man the degree of
perfection of the types is in proportion to the degree of
intellectual and moral improvement, and to the physical
conditions favorable to physical and moral improve-
ment.” 1°
The author then proceeds to say that “this law of de-
velopment is the law of man, the law of the human race,
and the law of society.” 11
CUsToMs.
Having noted the general fact of human progress,
which is sometimes called its law, and also the law of
social evolution, and the law of distribution and develop-
ment of organic life in general and of man in particular,
we come now to consider the further question as to wheth-
er society as a whole exhibits orderly sequences, and-
uniformities of social conduct, similar or analogous to
those which obtain in the physical world.
Are there social laws, and if so, do we ﬁnd them formu-
lated in the social sciences? Are there in human society,
as there are among impersonal beings, rules of action uni-
formly observed, and to which uniformity, the term law
is applied?
loGuyot, Earth and Man, p. 250. 11 Earth and Man p. 265.
134 LAWS IN THE SOCIAL REALM
Answering affirmatively, we will consider a few of these
so-called laws, and examine their nature. As in the phys-
ical world bodies unsuspended in the air uniformly tend
toward the earth, and as in the animal world there is a
uniform tendency towards self-preservation, so, in hu-
man society, there is a constitutional and uniform ten-
dency on the part of the individual to preserve life; ac-
quire property; exert power; and to meet the demands of
their other common and instinctive appetites, affections,
and desires; and groups of persons also uniformly con-
tend for prolonged existence, and struggle for the acquisi-
tion of wealth, and for the possession of power. There is,
in these particulars a general uniformity of conduct. What
individuals and groups of persons will do relative to self-
preservation, and to the acquisition of property and
power can be predicted with a fair degree of certainty.
Besides these tendencies to uniform conduct based on
the instinctive, active and moral powers of man, customs
and usages of various kinds and character appear
throughout human society as a natural product of social
life. Society is not lawless. As naturally as leaves appear
in the forests, and grasses spring from the soil, so, as nat-
urally general and local customs spring up, imperceptibly
but inevitably, among the different tribes and races of
men, providing a code of unwritten laws which insure
harmony of action and supply a kind of natural govern-
ment, where other law and government have not yet been
consciously provided by mankind. This spontaneous gen-
eration of customary rules of conduct in society is un-
doubtedly the oldest form of law-making among mankind.
When, where, and under what circumstances the ﬁrst
custom arose among men, is, of course, as uncertain as
the date and place of man’s origin; or the year, the month,
and the day when organic life ﬁrst made its appearance
upon the globe; but the existence of these regulative
agencies in the family and in the tribes of ancient peo-
ples, as well as among the nations of the world generally,
and at all times, is a part of their accepted history.
A custom has been described as “any usual method of
action, deﬁned and enforced by the tacit consent of the
THE ESSENTIAL NATURE OF LAW 135
community, or of the class to which it belongs.” “They
are the earliest and simplest products of the organic ten-
dency in society. They arise, in a large measure, uncon-
sciously, preceding all forms of conscious constructions,
preparing the way for them and accompanying them.
Custom is the cellulose tissue of the social body, occupy-
ing all vacant places, storing material, and ready to pass
into more speciﬁc forms. Customs arise inevitably among
social rational beings.” 12
Among those which have prevailed with the essential
force of law, are the domestic and religious customs of
various peoples, and they vary from time to time in the
course of their history. The ceremonies attending mar-
riage, the betrothal of children, the burial or other dis-
position of the dead, have generally been of a uniform
character throughout speciﬁc tribes and communities.
The number of wives allowable, the character of per-
sonal ornaments adopted in a community, and even the
style of their huts in primitive and of their more pre-
tentious dwellings in the higher stages of progress, have
been largely determined by the regulating force of cus-
tom. Even the division of labor, whereby the wife in a
savage state performs the drudgery of the domestic circle,
while the husband engages in the hunt and in the com-
mon sports of the tribe, is sanctioned by the usage of the
tribe, and in civilized communities such division of do-
mestic duties is equally the result of a customary course
of conduct.
These domestic customs, varying so widely with differ-
ent peoples, and varying in the history of the same peo-
12 Bascom Sociology, p. 11. sons under like circumstances.” On
For an able and interesting dis-
cussion of Custom as Law, consult
Carter’s “Law, its Origin, Growth
and Function.” Page 173.
On page fourteen, the learned
author asks the question, “What is
Law?” He here refers to law as
a rule of human conduct, and in the
pages immediately following he gives
the historic development of custom.
On page 122 he says, “Custom is the
uniformity of conduct of all per-
page 173 he summarizes his conclu-
sion thus, “Custom is not simply
one of the sources of law, from
which selections may be made and
converted into law by the indepen—
dent and arbitrary ﬁat of a legisla-
ture or a court, but law, with the
narrow exception of legislation, is
custom, and like custom, self-exist-
ing and irrepealable.
See also Wilson’s Works, Vol. 1,
pages 88, 89, 429.
136 LAWS IN THE SOCIAL REALM
ple, are the law of the social circle, in the sense that they
determine what is proper, right, or safe for the individ-
ual members of the group to do. For the wife and the
mother in an American home to appear in the presence
of the family attired in man’s clothing, and to persist in
such a violation of the customary rule of dress, could not
be much more offensive to the family circle by the enact-
ment of a positive statute forbidding it.
Where these domestic usages have become ﬁxed rules
of conduct, to act counter to them is to offend the feelings
of the group among which such rules prevail, and con-
sequently, such domestic customs become, in a sense, bind-
ing upon the individuals of the community, and to that
extent they approach the essential character of a posi-
tive law.
Religious customs and usages have also exerted a po-
tent inﬂuence upon the history of mankind. Religious
rites and ceremonial observances stimulated by the sen-
timents of the human heart, have attended and largely
determined the progress and development of every his-
toric race; the recognition of the gods, customary forms
of worship, the erection of altars, the establishment of
priestly orders, the adoption of eccliastical vestments, the
offering of sacriﬁces, and burning of incense, the set-
ting apart of certain days for feasts and religious cele~
brations have found a prominent place in the religious
history of the world. In later days, the customs of family
devotions, the invocation of a divine blessing upon the
daily meals, the customary attitude of kneeling in prayer
have had among Christian people at different times and
places the force and effect of divine Commandments.
To a congregation being accustomed to the kneeling
posture while partaking of the emblems, a forced change
of the custom to a standing posture would produce a re-
vulsion of feeling approaching positive indignation, and
awaken a sense of impiety.
Among the religious customs, that of animal sacriﬁces
is at once the most common and universal. From its uni-
versality it is obvious that it arose from a common senti-
ment among people widely dispersed and variously con-
THE ESSENTIAL NATURE OF LAW 137
stituted. From the common practice of sacriﬁcing the
choicest of the ﬂocks and herds, the custom extended to
the immolation of human victims, the bloody rites attend-
ing which, have darkened the history of both hemispheres.
It is hardly possible that the offering of children to M0-
loch or Kronos could have equaled in extent or cruelty, the
sanguinary offerings made by the ﬁerce Aztecs of Mexico
as late as the fourteenth century, upon whose bloody al—
tars there were annually immolated, it is variously esti-
mated, from twenty to ﬁfty thousand victims; and whose
every festival was closed with these loathsome and bloody
rites.
Generation after generation, these religious customs
are observed, until they obtain over the minds of those
who obey them, the sanctity of a divine law.
The rules of social intercourse, likewise, and the be-
havior of persons in society generally, embraced within
the term etiquette, are largely ﬁxed by custom, or usage,
and they become an important factor in the good order
and social development of mankind.
The commercial and industrial worlds also exhibit uni-
formities of action or conduct attributable to custom. The
usages of merchants, which developed into the Law Mer-
chant of England, such as allowing “days of grace,” in
connection with commercial paper, is an example of the
law-making power of society through custom.
The whole body of the common law exhibits, on a large
scale, the tendency of society to supply itself with rules
of action, anterior to the rules or existence of positive
law, or the existence of courts for its enforcement. Illus-
trative of those usages of the people which ripened into
the “Custom of the Realm” are those determining how
land should descend, as where by general custom the
eldest son alone was the heir of his ancestor, and, in case
of three brothers, the eldest was the heir of the second.
in exclusion of the youngest; and again, by the particular
customs of certain boroughs, the youngest son should
inherit the estate in preference to all his elder brothers,
and the widow should be entitled, as dower, to all
her husband’s lands, instead of a one-third part, which
138 LAWS IN THE SOCIAL REALM
was the general rule, and further, according to the custom
of gavelkind, in Kent, all the sons alike succeeded to the
inheritance, instead of the eldest son of the father. And
under general customs again, property could be acquired
and transferred by writing, a deed was of no validity un-
less sealed and delivered, a breaking of the peace was an
offense and punishable by ﬁne and imprisonment. And
many similar rules were not created by statute, but their
validity, as a law, depended entirely upon immemorial
usage. And even the courts of the realm depended for
their existence upon custom rather than positive enact-
ment, as the four courts of record, the Chancery, the
King’s Bench, the Common Pleas, and the Exchequer;
and even the Constitution of England and her form of
government rest upon immemorial usage. And from
these facts, we see that society possesses the inherent
power of generating orderly and uniform courses of
conduct even to the extent of providing courts, and
constitutional governments. Originating in usage, by
a kind of evolutionary process, the customs of the
people, unconsciously adopted, develop into the con-
sciously recognized and judicially enforced laws of the
realm.
All these customs, or usages, to which reference has
been made are but, “the usual methods of action, deﬁned
and enforced by the tacit consent of the community, or
of the class to which they belong.” They arise among
the people unconsciously, and they precede all conscious
attempts at law-making. But society does not outgrow
its usage-forming or custom-making habit. Every nation
and every community continues to evolve new customs as
its changing circumstances and conditions demand. A
large part of the regulative principles of every people
consists of the usages and customs in business, and the
uniform fashions, rules of etiquette, and the conventional
regulations necessary for the good order and success of
every social, literary, political, religious, or other organ-
ization. -
From the foregoing facts, we observe that usages pre-
vail in every group of human society, and that they con-
THE ESSENTIAL NATURE OF LAW 139
stitute the spontaneously evolved rules of action which
society unconsciously observes, and are among the ﬁrst
agencies regulative of human conduct, having nearly the
effect of positive law; and some of which actually pass
into the realm of Jurisprudence.
Just when a usage becomes a part of the positive law,
it is difﬁcult to tell. Many of them never do. WVhen reas-
onable, certain, and prevalent from time immemorial, and
by meeting other requirements, they may be regarded and
treated as positive law by judicial recognition and en—
forcement.
“The state, through its delegates, the judges, undoubt-
edly grants recognition as law to such customs as come
up to a certain standard of general reception and useful-
ness. To these, courts give operation, not merely pros-
pectively from the date of such recognition, but also
retrospectively; so far implying that the custom was law
before it received the stamp of judicial authentication.
The contrary view, supported by Austin, is at variance
with fact. The element of truth, in his view, which has
done good service, by bringing it into prominence, is that
usage, although it may make rules, cannot, without ob-
taining for them the recognition of the State, make laws.”
“IVhen, therefore a given set of circumstances
is brought into Court, and the court decides upon them
by bringing them within the operation of a custom, the
Court appeals to that custom as it might to any other pre-
existent law. It does not, propm'o mom then, for the
ﬁrst time make ‘that custom a law; it merely decides as a
fact, that there exists a legal custom, about which up to
that moment there has been some question, as there might
about the interpretation of an act of Parliament. It then
applies the custom to the circumstances just as it might
have applied an act of Parliament to them.” 13
Custom, it has been said, was the ﬁrst method of law-
making in human society. “There can, in fact, be no
doubt that customary rules existed among people long
before nations or states had come into being.”
Courts were established, governments organized, and
13 Holland Juris. 57.
14-0 LAWS IN THE SOCIAL REALM
constitutions created, in part at least, through the agency
of immemorial custom.
After the formation of the state, usage developed into
positive law. Justinian says, “The unwritten law is
that which usage has established; for ancient customs,
being sanctioned by the consent of those who adopt them,
are like laws.” 14
By judicial recognition and enforcement they become
known as a part of the law of the land, and together with
constitutions, statutory enactments, municipal charters,
ordinances and all other rules of social conduct enforci-
ble at law, they constitute the jurisprudence of the state.
Jurisprudence, then, is one of the social sciences, but
as we are here examining the meaning of the term law
in other than its legal sense, we shall not consider the
rules of positive law in this connection.
Another of the social sciences which affords numerous
illustrations of the use of the term law, applied simply
to express the existence of a generalized fact or orderly
sequence, is the science of political economy.
When we transfer our inquiry to the science of politi-
cal economy, we ﬁnd that law as here used, also signiﬁes
simply a general proposition, or a uniform order of
events. If a certain state of things exist then as a matter
of fact, a certain result will follow; if a redundant issue
of paper money is put into circulation, then as a matter
of fact, gold will cease to circulate. If the population of
a state greatly increases, then we may reasonably expect
that the price of land there will increase. If land is made
to bear a heavy burden of taxation, then, as a general
thing, the price of the land will decrease. If there is a
rise in the rate of interest, then there will be a decline in
the price of stocks. So, as has been said, “An economic
law is nothing but a general proposition or statement of
uniformity, more or less certain, or more or less deﬁ-
nite.” Such general statements appear almost without
number in works upon the social sciences, but it is only
when they are of unusual importance that they are sev-
erally digniﬁed by being called laws.
14 Just. 1. §2. 9.
THE ESSENTIAL NATURE OF LAW 141
An illustration of how a general proposition, or a state-
ment of a general truth is termed a law, is found in Mr.
Mill’s “Three laws of production.” After stating that
Political Economy endeavors to investigate and teach
the nature of wealth, and to discover and formulate the
laws of its production and distribution, and adding that
the requisites of production are labor, capital and land,
or the Materials and the motive forces afforded by N a-
ture, the author proceeds to discuss the three laws in-
volved.
First: Of the law of “Increase of labor” he says,
“The increase of labor is the increase of mankind or
population. The power of multiplication inherent in all
organic life may be regarded as inﬁnite. There is no one
species of vegetable or animal which, if the earth were
entirely abandoned to it, and to the things on which it
feeds, would not in a small number of years overspread
every region of the globe, of which the climate was com-
patible with its existence. To this property of organized
things, the human species forms no exception. Its power
of increase in indeﬁnite, and the actual multiplication
would be extraordinarily rapid if the power were exer-
cised to the utmost. Population has the power of in-
creasing in an uniform and rapid geometrical ratio.” 15
Second: Discussing the law of the increase of capital,
the author says, “Since all capital is the product of sav-
ing, that is of abstinence from present consumption for
the sake of a future good, the increase of capital must
depend upon two things: the amount of the fund from
which the saving can be made, and the strength of the
disposition which prompts to it. The fund from which
savings can be made, is the surplus of the produce of
labor, after supplying the necessaries of life to all con-
cerned in the production (including those employed in
replacing the materials, and keeping the ﬁxed capital in
repair). More than this surplus cannot be saved under
any circumstances, as much as this, though it never is
saved, might be.” 16
Third: Considering the Law of increase of products
15 Principles of Pol. Ec. 97-100. 16 Principles of Pol. Ec. 101.
142 LAWS IN THE SOCIAL REALM
from land, Mr. Mill states it in the following words:
“After a certain and not very advanced stage in the pro-
gress of Agriculture, it is the law of production from
the land, that in any given state of agriculture skill and
knowledge, by increasing the labor, the produce is not
increased in an equal degree; doubling the labor does not
double the produce, or to express the same thing in other
words, every increase of produce is obtained by a more
than proportional increase in the application of labor
to the land.” He says further, “This general law of
agricultural industry is the most important proposition
in political economy. NVere the law different, nearly all
the phenomena of production and distribution of wealth
would be other than they are now.” 17
This last proposition of Mr. Mill is also called, “the
law of diminishing return,” and Mr. Perry states it as
follows, “Increase of agricultural efforts and expendi-
tures on a given piece of land will secure a larger amount
of produce, but as a general law, the increased amount
will not be proportional to the increased expenditures.”18
Mr. Marshall states the law as follows: “An increase
in capital and labor applied in the cultivation of land,
causes, in general, a less than proportionate increase in
the amount of produce raised, unless it happens to co-
incide with an improvement in the arts of agriculture.”19
The law of demand and supply has been formulated in
the following language, ‘ ‘As the price falls, (other things
remaining the same), the quantity demanded increases,
and conversely, as the price rises, the quantity demanded
decreases.’ ’ 2°
Discussing the law of demand and supply, Mr. Mill
says, “Demand and supply, the quantity demanded and
the quantity supplied, will be made equal. If unequal at
any moment, competition equalizes them, and the man-
ner in which this is done is by an adjustment of value.
If the demand increases, the value rises; if the demand
diminishes, the value falls. Again, if the supply falls
off, the value rises, and falls if the supply is increased.
1'7 Prin. Pol. Econ. 109. 19 Prin. Econ. Marshall 229.
18 Prin. Pol. Econ. Perry 154. 20 Prin. of Pol. Science 29.
THE ESSENTIAL NATURE OF LAW 143
The rise or the fall continues until the demand and the
supply are again equal to one another; and the value
which a commodity will bring in any market is no other
than the value which, in that market, gives a demand
just sufﬁcient to carry off the existing or expected supply.
This, then, is the law of value with respect to commodities
not susceptible to being multiplied at pleasure. 2‘
Discussing the same principle, Mr. Marshall says,
“there is then, one law of demand, which is common to
all demands, viz: that the greater the amount to be sold,
the smaller will be the price at which it will ﬁnd purchas-
ers; or, in other words, that the amount demanded in—
creases with a fall in price, and diminishes with a rise in
price.” 22
The Law of Rent is one which has received much at-
tention from economists, and is stated by Mr. ‘Walker as
follows: “Bent arises out of differences existing in the
productiveness of different soils under cultivation at the
same time, for the purpose of supplying the same market.
2d: The amount of rent is determined by the degree of
those differences. Speciﬁcally, the rent of any piece
of land is determined by the difference between its an-
nual yield and that of the least productive land actually
cultivated for the supply of the same market, under equal
applications of labor and capital, it being assumed that
the quality of the land as a productive agent is, in neither
case, impaired or improved by the cultivation. 2’3
The Law of international values has been concisely
stated as follows: “The produce of a country exchanges
for the produce of other countries, at such values as are
required in order that the whole of her exports may ex-
actly pay for the whole of her imports. This law of
international values is but an expression of the more
general law of value which we called the Equation of Sup-
ply and Demand. We have seen that the value of a com-
modity always so adjusts itself as to bring the demand
to the exact level of the supply.” 2*
In the subject of currency, Gresham’s law is, that
21 Prin. Pol. Ec. 272. 23 Pol. Econ. Walker p. 207.
22 Prin. of Econ. Marshall 175. 2-4 Prin. Pol. Econ. Mill p. 358.
14-i- LAWS IN THE SOCIAL REALM
“Bad money drives out good money,” and perhaps one of
the most fundamental laws is that “An increase of the
quantity of money raises the prices and a diminution
lowers them,” of which Mr. Nicholson says that it is the
most elementary proposition in the theory of currency,
and without it we should have no key to any of the
others.25
Coming to the Science of Sociology as it is now being
formulated, the elements of which are, in these days,
being subjected to critical examination, we ﬁnd the same
use of the term Law, that we have found in the various
speciﬁc sciences which we have before considered.
It is applied to not only the general truths well estab~
lished, but also to “Approximations to general truths.”
In order to fully understand the real meaning, and to
comprehend the full signiﬁcance of those sociological
laws which are to be considered, it would be necessary to
follow the author’s analysis and general treatment of the
subject matter from which he makes his generalization.
But for our purpose, the meaning of the propositions, or
the laws, as stated by the different authors, will be suffi-
ciently clear for us to recognize their general character as
mere statements of fact.
A few illustrations may be taken from the “Elements
of Sociology,” by Mr. Giddings. He begins his “Ele-
ments of Sociology,” by calling attention to the facts,
among others, that natural societies are found in those
parts of the globe, where the physical features of the
land and the climate are favorable to the grouping of
living beings: that the different groups or societies are
increased either by the birth of new individuals or
by the immigration of individuals into one group
from groups located elsewhere: that these living
objects are conscious individuals who think and feel. who
have appetites, desires and passions, who form purposes
in life, and try to achieve them: that there is usually a
stronger sympathy among members of a family than
among all the members of a nation; and stronger sym-
pathy among Protestants than among Protestants and
25 Nicholson, Prin. of Pol. Ec, Vol. 2, p. 113-118.
THE ESSENTIAL NATURE OF LAW 145
Roman Catholics taken together; and from these facts
of sympathy the author deduces and formulates what he
terms the “law of sympathy,” viz: “The degree of sym-
pathy ‘decreases as the generality of resemblance in-
creases.”
Further considering the “crowd,” the same author
says it is devoid of the sense of responsibility, because,
when lost in the mass, the individual loses his own feel-
ing of responsibility. Like the savage and the child, the
crowd is intolerant of anything interposed between its
desires and their realization, and it always manifests a
tendency to carry suggested ideas into action.
After considering these and other conditions favor-
able to sympathetic and impulsive social action, the auth-
or states the following laws:
First: “Impulsive social action is commenced by these
elements of the population that are least self-controlled.”
Second: Further he says, if starting from one individ—
ual the suggestion or impulse is communicated by him
to a second there are immediately two centers of inﬂu-
ence, and if each of these again communicates the im-
pulse to another individual not yet reached, there are at
once four centers of inﬂuence, and so on in a geometrical
ratio; and the individual who started the movement was
at the outset, subject only to the original stimulus acting
upon his own mind: but when he has communicated it
the emotional excitement of a second mind reacts upon
the ﬁrst, and when in turn they communicate it to two
more, the emotional reaction of three minds has begun
to act upon each of the four, and so on indeﬁnitely: and
hence, from these facts, the author deduces the second
law, as follows: viz: “Impulsive social action tends to
extend and to intensify in a geometrical progression.” 26
Third: The only restraint, the author proceeds to say,
that can hold in check the tendency to impulsive social
action is deliberation—critical comprehensive thinking.
Deliberation, however, must have become a habit of
mind in order to exercise much restraint upon social im-
pulse.
26 Elements of Sociology 139-140.
146 LAWS IN THE SOCIAL REALM
Many of the most vital achievements in life depend
upon indirect means, and the discovery of indirect means
is possible only through reason and deliberation. If,
under the stress of impulse, one’s thoughts are diverted
to some other matter than that which occasions the ex-
cited feelings, those feelings subside, so the law of Re-
straint is stated as follows: “Impulsive social action
varies inversely with the habit of attaining ends by in-
direct and complex means.” 27
After discussing the difference between belief and
knowledge, and noting how tradition acquires in society
all the tremendous force of authority, the author states
the laws of Traditional Control.
First: “Tradition is authoritative and coercive in
proportion as its subject matter consists of belief rather
than critically established knowledge.” 28
Discussing the “Laws of Social Choice,” the author
again says : “ So long as the majority of men chieﬂy value
the primitive virtues of power,_independence, courage
and ability in every form, it is evident that rational social
choice must more often than not turn upon this particular
object of social esteem. In like manner the least inﬂuential
object in determining social choice is that rational self-
realization which appeals only to the few. Consequently
we have the ﬁrst law of social choice, the law of prefer-
ence of ends to be achieved, as follows: In all social
choice, the most inﬂuential ideal is that of personal force,
or of virtue in the original sense; the second in inﬂuence
is the hedonistic or utilitarian ideal, namely the ideal of
pleasure; the third is the self-conservation, or the Puri-
tan ideal; the least inﬂuential is the ideal of self-realiza-
tion or self-development. But if mental evolution con-
tinues, the higher ideals become increasingly inﬂuen-
tial. ” 29
In a similar way the author proceeds to consider the
facts and formulate what he calls the “Law of Combina-
tion of Means,” the “Law of Development of the Social
Composition,” the “Laws of Liberty,” and ﬁnally, the
27 Elements of Sociology 139-140. 29 Elements of Sociology 168.
28 Elements of Sociology 154.
THE ESSENTIAL NATURE OF LAW 147
“Law of the survival of social interests and relations,”
all of which are but an enumeration of facts, generalized
into the form of a comprehensive statement of the truth,
as the author discovers it to exist.
Examples of sociological laws, sufﬁcient to answer our
purpose have now been given. Upon examination we
ﬁnd them belonging chiefly to what we have called law in
_ the secondary sense of the term. They are, as will be
observed, mere statements of general truth—or an ap-
proximation to the truth.
In the last three chapters we have considered some
of the powers and laws of the human mind and of society.
Here as in the realm of physical nature, we ﬁnd the fund-
amental truths of reason operative as law. They set ﬁxed
and changeless limits to mental and social forces. The
ideas of time and space, all the familiar axiomatic princi-
ples, such as the law of attribution, the law of equality, the
law of excluded middle, the so-called Aristotle’s dictum,
and all the other self-evident principles, laws of logic,
mathematical axioms, and the necessary inferences that
may be drawn from them, are regulative of all intellec-
tual, moral, spiritual, and social forces. The mind can
never escape their presence, modify their demands nor an-
nul their irresistible and regulative inﬂuences.
And besides these primary realities, there are in the
realm of personal spirit, as in the realm of impersonal
nature, certain generalized facts, and orderly and uni-
form sequences to which we give the name of law. We
ﬁnd one thought following another as day follows night,
certain emotions following particular choices, as a feeling
of self approval follows a choice of the right and a feeling
of condemnation follows a choice of the wrong, under the
law of contrast the idea or thought of the vastly rich
tends to suggest a thought of the poor, and the coldest
days of winter tend to suggest the hottest days of sum-
mer, the thought of success inspires joy, the thought of
defeat inspires fear, pure thoughts ennoble the character,
and impure thoughts debase it, the feelings of joy bring
the smile, and the feelings of sadness bring the tear, and
so throughout the mental realm we ﬁnd a phenomenal
148 LAWS IN THE SOCIAL REALM
order under which thought awakens feelings, feelings in-
ﬂuence choices, and choices are succeeded by emotions
varying according to the character of the choices them-
selves. These generalized facts and orderly sequences of
the mind are not laws in the sense that primary truths are
law, but the name law has been given to them. As all the
uniformities and orderly sequences in the physical realm
are ﬁxed and relative to man are regulative of his power,
so all of these orderly sequences of thought, and feeling,
and choice, and emotion are equally ﬁxed and relative to
man they are regulative of his power in dealing with his
fellow-men. They are facts to be considered and reck-
oned with in all human transactions. I cannot make a
person smile and rejoice by stinging his soul to resent-
ment and anger. I cannot ﬁll him with revenge and hate
by bestowing upon him precious gifts and performing for
him acts of love and affection. It is beyond my power to
make a person hate me by helping him in disaster and
cheering him in sorrow. All the uniform successions of
thought, ideas, feelings, choices, and emotions that com-
pose this phenomenal mental order are laws in the true
sense of that term in that they determine what a person
can and what he cannot do. Man can produce his desired
results only in harmony with this established intellectual,
moral, spiritual and social order and not in antagonism
to it.
CHAPTER VI.
TEAcHINcs or INTUITIoNAL PHILOSOPHY.
We ‘began our brief survey of physical nature in search
of those ﬁxed and invariable realities which, regulative
of power, constitute the true laws of the material world.
The general properties. of matter, which are simply self-
evident truths applied to physical bodies, ﬁrst engaged
our attention, and ﬁnding them immutable realities, we
pronounced them laws of matter in the primary sense of
the term. We observed also that the whole system of
self-evident and irreversible truths, and all the necessary
inferences that can be drawn from them, operate through-
out the ﬁnite universe, regulative of its physical forces;
and consequently being changeless universal and im-
perative they are the fundamental laws of the material
universe. In addition to these universal truths, we ob-
served certain generalized facts and orderly sequences
in the impersonal world, which are not eternal verities,
yet regulative of power they are laws in a secondary
sense. They belong to the ﬁnite and temporal realm.
They had a beginning and we are taught by science that
they will have an end. They all came into existence, con-
tinue in existence, and will ﬁnally terminate, if at all,
in accordance with the universal truths or primary laws.
Coming to the realm of personal beings, we observed
the universal prevalence of these same fundamental
truths regulative of mental forces. They determine
what intellectual power can and cannot conceive or effect.
They are laws of thought in this realm as they were
found to be laws of things in the realm of matter. They
set the limits within which intellectual power may acquire
knowledge, they guide the reasoning power through all
its processes of ratiocination and they speak in authori-
tative commands to the will declaring what it ought or
ought not to attempt. They constitute law in the
150 NATURE AND SCOPE OF PRIMARY LAW
deepest and truest meaning of the term in the realm of
mind no less than in the realm of matter. In this region
of mental forces we also observed generalized facts and
orderly sequences which have acquired the name of law,
but which are not self-evidencing and imperative. Like
the general facts and observed uniformities in the physi-
cal world, they are laws relative to man in the sense that
he has no power to change their established order, and
they determine what he can and what he cannot accom-
plish. But the facts and processes of the ﬁnite realm of
material and mental forces lack universality, immuta-
bility, and imperativeness that characterize the primary
principles of reason.
Those ﬁrst principles, such as, “every change or be-
ginning must have a cause,” and, “every complex of
causes always produces the same effect,” persist un-
changed through all the changes, upheavals, convulsions,
reconstructions and dissolutions of material or spiritual
existences; and, in fact, it is in strict accord with these
fundamental principles that all these changes occur. The
ﬁnite universe including all its general facts and orderly
sequences—laws in the secondary sense—comes into ex-
istence under the superior and regulating inﬂuence of
these primal realities. We have detected the prevalence
of the ﬁrst principles in both the region of mind and mat-
ter. They are primal. They regulate all power. They
are law in its true sense, and they are of such import-
ance that their distinctive characteristics should be ob-
served.
Tests of I ntnitive Truths, Self-evident—The most gen-
erally recognized test of intuitive truth is its self-evi-
dence. Whenever upon an occasion in experience one of
these rational intuitions comes out into the light of con-
sciousness the mind at once recognizes its self-evidenc-
ing character. If one sees two parallel lines, as for ex-
ample, the two rails upon a railroad track, and the pos-
sibility of their meeting is suggested to his mind, he knows
immediately that those two lines cannot be made to meet
so long as they remain parallel. This truth is seen at
once. N o proof can make it plainer. The moment these
THE ESSENTIAL NATURE OF LAW 151
truths are announced in terms which are understood their
validity is instantly recognized. Should a child of even
tender years be asked if he can take a knife out of his
pocket, when there is no knife there, he would give an
immediate and correct reply. And if he is asked further
if something can ever be taken from a place where there
is nothing, he would give an answer equally correct if
he understood the terms employed. From one example
he sees the truth just as clearly as he can ever afterwards
discern it. A multiplication of examples does not make
the truth more convincing. When once the mind com-
prehends a self-evident truth, it demands no other proof
of its validity than that which the truth carries within
itself.
Universal—These truths are also universal in the
sense that they are constituent elements in. the minds of
all rational beings, but not in the sense that they are
formulated principles in the minds of all men. Infants
and savages do not have these self-evident truths clearly
formulated, and even many intelligent and highly edu-
cated people may never have given these metaphysical
truths sufﬁcient attention to have a clear and extended
knowledge of them. Yet the capacity to know them is
there, and whenever the circumstances or occasions in
experience are such as to suggest the truth, it will then
be seen in all its self-evidencing clearncss and in this
sense these truths are universal. These fundamental
realities are also universal in another sense. They are
not only truths of reason, but they are laws regulative of
all things, and hence they are universal in the sense
that they are everywhere applicable as regulative factors
throughout the universe. And they are also universal in
the sense that they are without exception.
Necessary—Again, these truths are necessary in the
sense that the opposites of them cannot be conceived.
By no possible exertion of mental energy can the mind
conceive of something being made from nothing, that a
proposition should be both true and false is equally in-
conceivable. That “everything that begins to be must
have a cause,” is a necessary truth in the sense that the
152 NATURE AND SCOPE OF PRIMARY LAW
opposite of it is unthinkable. The multiplication table
is true throughout the whole universe, not only on this
earth but on every planet and star and sun. So all self-
evident truth is necessarily true always and everywhere
because it is truth. The same truth cannot be true in
one place and false in another, any more than gold on
the earth would cease to be gold if taken to the moon.
These fundamental principles are not true because the
mind of man is so constituted that it cannot conceive of
them otherwise than they are. The nature of the ﬁnite
mind is not the cause of these primary truths, but these
primary truths, existing as realities independent of ﬁnite
mind, do themselves regulate the intellectual powers of
man so that he cannot over-leap their bounds. The multi-
plication table is not what it is because the ﬁnite mind
recognizes and accepts it as true, but the ﬁnite mind rec-
ognizes and accepts it because it is true and real and so
limits the intellectual power of man that it cannot con-
ceive the relations of numbers to be other than in reality
they are.
These truths or principles then are among the things
that are ﬁxed and irreversibly permanent. If “law” in
all languages carries in it the idea of ﬁxedness, then we
may properly regard as among the realities that are thus
ﬁxed and permanent these self-evident universal and nec—
essary truths of reason. If we ask what among all the
transitory and ﬂeeting forms of time can be found that
is changeless and eternal, we can safely say that these
self-evident and fundamental principles of reason are ab-
solutely and irreversibly ﬁxed, so that by no possible
energy of mind can the slightest variation in any of them
be either calculated or even imagined. Their opposites
are unthinkable. Here then, in our search for things
that are unchangeable, do we ﬁnd the most permanent
and immutable realities that the ﬁnite mind has ever dis-
covered. If those realities which are ﬁrmly ﬁxed and
unchangeably established are laws, then these rational
principles must constitute the eternal laws of the uni-
verse.
Having observed the primary truths prevailing in the
THE ESSENTIAL NATURE OF LAW 153
physical and mental realms, and having found them ever
regulative of power, we are naturally led to make the
venturesome. inquiry whether they extend up into and
operate throughout the Inﬁnite Mind, which from logical
necessity we are obliged to place back of the ﬁnite world.
While not abandoning our search for the true essence
and character of law, we may venture to question intui-
tional and theistic philosophy in order to ascertain if
possible whether these primary laws in our ﬁnite world
prevail throughout the untraversed and boundless zone
of the Inﬁnite that surrounds our temporal and limited
sphere.
Theistic philosophy teaches that as we ﬁnd man, in this
ﬁnite universe of effects, an intelligent, rational and free
moral being, it must logically follow that the Creator of
man is an intelligent, rational and free moral Being, for
the reason that the cause must always be adequate to
the effect. The effect cannot be greater than the cause.
The stream cannot rise higher than its source. The per-
sonal cannot spring from the impersonal. A stone with-
out life could not create a tree with life. The Creator
cannot impart what He does not Himself have. If He
has imparted to man life, intelligence, reason, moral
sense and the power of free-will, it follows of necessity
that He possesses those powers. Man, the effect, is a per-
sonal being endowed ewith reason. God, the Creator,
must then have had reason with which to endow him. It
is the ofﬁce of reason to recognize self-evident or primary
truth. Man, the effect, possessed of reason, recognizes
those truths as operative in his own mind and also opera-
tive as law throughout the physical world; so God, the
cause, possessed of reason, recognizes the primary prin-
ciples as fundamental realities, not above and separate
from Himself, but as constituent elements of His own
eternal reason. In the First Cause must exist poten-
tially all that actually appears in the effect. These funda-
mental principles, these necessary universal truths or
realities, pervade and operate as law throughout the en-
tire ﬁnite universe; so, it is contended that in the Eternal
Creator Himself these fundamental realities exist and
154 NATURE AND SCOPE OF PRIMARY LAW
are law to His eternal will. Otherwise, it is said, He
would not be a moral being.
From this reasoning the conclusion is reached that
these ﬁrst principles or primary truths which we have
recognized as universal laws in the physical world and
in the minds of personal beings were operative as law
in the Eternal Mind before the creation of the ﬁnite uni-
verse, and in obedience to, or in accordance with them
the worlds were made and their inhabitants created. In
this view of the case, theistic philosophy teaches that
these primary truths are the supreme laws of the ﬁnite
universe. Before the worlds were, they were law to the
Eternal Creative Energy; and in accordance with their
permissions and prohibitions all ﬁnite things were con-
structed.
This philosophy reaches the conclusion that personal
beings, endowed with reason, conscience and freedom,
must have been created by a being as highly endowed, at
least, as the creatures which he has made. As life comes
from life, so personality must come from personality, and
such has been the opinion of many of the world’s most
thoughtful and profoundest thinkers.
Carlyle, sharing the belief of Frederick the Great, said,
“Atheism truly, he never could abide; to him, as to all
of us, it was ﬂatly inconceivable that intellect and moral
emotion could have been put into him by an Entity that
had none of its own.” 1
That these intuitive truths are operative in the Inﬁn-
ite and Eternal Reason has been contended for as fol-
lows: “Theism teaches that the principles and laws of
reason are not external to or independent of and above
God, also that they are not caused by His will or depend-
ent on it, but are eternal in God the Absolute Reason.
‘f ‘f ‘i Therefore these principles and laws of reason
are not independent of God and external to Him. They
are not mere abstractions. They are concrete as con-
stituent elements of Absolute Reason, the guiding lights
of the Divine Intelligence and action, and are real with
all the reality of God. if if if While the truths and
1Carlyle’s Works, Vol. VI. p. 501.
THE ESSENTIAL NATURE OF LAW , 155
laws of reason are eternal, immutable and uncreated in
God, they are the laws in accordance with which, in the
exercise of his almightiness, he freely determines to di-
rect his action in constituting the ‘universe. " God creates matter and endows it with its interacting
forces so that it is real being and is capable of real inter-
active energy in the chain of causes and effects which
we call the course of nature. This constitutes the phy-
sical system. God also creates personal beings. Each
of these is a real individual being, a sub-creative center
of intelligence and energy. As thus consti-
tuted, the universe has a dependent but not actual reality
in itself, it is the objective reality on which
God exerts His power, the plastic medium in which He
expresses His thought, and by using its energies He pro-
gressively realizes in it the ideals of His wisdom and
love. The principles and truths of reason are the laws
of nature in the true meaning of that phrase. Because
physical things and powers in nature have no choice, its
construction according to the principles and laws of
reason insures in it continuity and uniformity of se-
quence. ‘f The true laws of nature are inherent
in the physical system, and are the principles eternal in
God, realized and revealed in nature. Because rational
persons are free agents, the moral law does not insure
the certainty of their uniform obedience to it. In a life
of selﬁshness the person puts himself in opposition to
the constitution of the universe and to the principles and
laws of Absolute Reason. There is no place nor time in
the universe in which a person may realize his perfection
and well-being in a life of selﬁshness. The law of love
is in the spiritual system analogous to the law of gravi-
tation in the physical. Thus the laws both of the phys-
ical system and of the spiritual are eternal in the Ab-
solute Reason and are the constitution of the universe.” 2
It is also claimed by the theist that as rational and
moral intuitions are found operating as law in the mind
of the creature they must also be operative as law in the
mind of the Creator. These truths or principles are con-
2 God, Creator and Lord of All, Vol. 1, p. 147-154.
156 NATURE AND SCOPE OF PRIMARY LAW
stituent elements in the Divine Nature, and hence are
eternal. Doctor Lidden comments upon this phase of the
question in the following words: “Why the ‘Eternal’
Law? This question can only be answered when we re-
ﬂect upon the nature of moral truth. Moral truth is not
like the laws and facts of the physical world; it is not
something which might have. been otherwise than it is,
had God so willed. God was under no necessity to make
either one or a million suns or planets, or to furnish
them with a particular temperature and particular in-
habitants. Why not? Because there was nothing in his
necessary nature which constrained him so to do. f He might have created otherwise; he was free not to have
created at all. But could God ever have sanctioned
you or me in saying that that which we know to be
false is true? Why not? Because, in sanctioning us,
God would be contradicting, not a law which He might
have made other than He made it, but a necessary truth
of His own Eternal Nature. A moral truth is like a
mathematical axiom, we see it intuitively and we do this
because it is necessarily true, and, as being necessarily
true, is also a truth of God’s Eternal Nature. Can any
reasonable man, for instance, without destroying and
uprooting the very constitution of the mind which God
has given him, conceive that under any possible circum-‘
stances it could ever have been true that things which
are equal to the same thing are not equal to one another?
If not, then here we have an eternal truth. And if this
be an eternal truth, it is, as such, a real part of God’s
Eternal Nature; since if this be denied, we must admit
that there are eternal truths independent of God, and
existing eternally apart from Him. Would not this in
effect be a denial of His solitary self-existence? Either
God does not exist, or all that is eternal is God. But if
pure mathematical truth, as being eternally true, be thus
Divine, moral truth is not less so. If we cannot believe
that a lie was ever right, this is because veracity is an
eternal law of the Divine Nature; and this applies to
the whole moral law, which is, in reality, the Divine Na-
ture, formulated into rules which suit the conditions
THE ESSENTIAL NATURE OF LAW 157
of creaturely existence. Thus, given the parental rela-
tionship, it never could have been right to dishonor a
father or a mother; given human life, murder could
never have been any other than criminal; given the idea of personal rights, of property, and steal-
ing is necessarily condemned. And thus it is that sin
does not contradict a rule which God has made of one
kind, but which He might have made of another; it con-
tradicts a rule which, in its principle, is necessary and
eternal; a rule which does not depend even upon the will
of God Himself, since it embodies and expresses His Di-
vine and unchanging Essence; a rule which, accordingly,
it is impossible to contradict, without running counter
to, and, so far as we can, setting at naught and destroy-
ing the very Being and Nature of God Himself.” 3
SUMMARY.
Having thus pursued our investigation from the mate-
rial bodies that surround us up through the universal
realities, generalized facts and orderly sequences of both
the impersonal and the personal realms, ﬁnding them law
at every step either in its primary or secondary signiﬁ-
cation, we have reached at length by a process of justi-
ﬁable inferences, generally acceptable to the inquiring
mind, the eternal law that reigns supreme in the Divine
Nature. According to this philosophy, all the primary
truths of reason which we have found at every turn in
the world of matter and in the world of ﬁnite mind, regu-
lating every physical and mental force, are eternal real-
ities reigning as law to the Eternal Will of the Creator,
and constituting the supreme constitution in accordance
with which every thing was made that was made. We
have found orderly sequences, uniform processes, general-
ized facts, and certain general properties of matter as
existing and-ﬁxed realities in the physical world; and we
have observed also orderly sequences, uniform processes,
generalized facts and certain constitutional characteris-
tics ﬁxed and abiding as realities in the human mind; to
all of which we may properly apply the term “law,” in
3 Lidden, Some Elements of Religion, 151.
158 SUMMARY
its secondary sense,—law pertaining to ﬁnite and tem-
poral things and beings, law pertaining to things that
have been created and which processes and sequences
could not have been law prior to their creation: hence
they are temporal, not eternal. \Ve have also observed
that the primary transcendent and universal principles of
reason are regulative of things in the world of matter
and regulative of thought in the world of mind, and ac-
cording to theistic philosophy, regulative of the Eternal
Will itself. To those changeless and imperative rational
and moral principles the term “law” applies in a special
sense. They are primary, universal and eternal law.
They constitute the “Supreme Constitution” of the uni-
verse, in the sense at least that in accordance with and
obedient to them the ﬁnite universe and all its processes,
orderly sequences and uniformities, called laws, have
been created and established.
This theistic conception of the universe, brieﬂy referred
to in the foregoing quotations, places Spirit‘ before mat-
ter, and in Spirit it places these original principles of
reason as constituent elements. It is in the power of
rational spirit to recognize these original realities and
also to recognize their irreversibility and their author-
ity as laws regulative of mental power. These truths of
reason give law to the Divine Will, and hence all cre-
ated things were brought forth not in violation of but
in perfect accord with them. This conception of crea-
tion regards the Eternal Energy whence all things came
as the God of the universe, and pictures Him as project-
ing His creations into space in strict compliance with
these eternal principles. The universe came into being,
not spontaneously, in violation of the law of causation,
but obedient to it. God was Himself the cause. He
spake by the might of his power and the worlds appeared
in perfect harmony with these truths of His reason. The
half of everything He has created is less than the whole
of the same thing, the shortest distance from Mars to
Venus is a straight line and not a broken one, nowhere
among all His creatures can be founda being that is both
rational and irrational, that is both animate and inani-
THE ESSENTIAL NATURE OF LAW 159
mate, that is both a solid and a liquid, that is both round
and square, that is both good and evil, that is both sound
and unsound, that is both perfect and imperfect, at the
same instant; and nowhere has He posited a world outside
of space, nor created a world that is both luminous and
non-luminous perpetually; nowhere has He placed two
neighboring mountains without a valley between them,
nowhere do highlands appear unaccompanied by low-
lands, and nowhere has He created a being who is both
free to choose and at the same time irresistibly con-
strained so to do, but everywhere all created things have
come into existence and arranged themselves in an or-
derly and harmonious universe obedient to these original
principles resident in the Eternal Mind of their Creator.
Law, therefore, is not a product of God’s will, but it is
an inherent element in His reason. Regulative truth is
law. Reason is legislative, giving law to the universe;
will power is executive, creating and arranging things
according to law. These fundamental realities in the
Eternal Reason, regulative of the Eternal Energy, con-
stitute the eternal laws to which impassioned reference
has been made by statesmen, orators and poets from the
earliest times. These original truths are supreme, they
are themselves unconditioned, while they condition all
created things; power is regulated by them, but it is not
possible for power to ever annul or modify them. These
principles are changeless, universal and all-controlling;
they “regulate both thought and things, and they per-
sist unchanged through all changes and convulsions,
through all production and all dissolution, and all changes
must accord with them. No action of power, even though
Almighty, ever interrupts their operation.” They are
the primary principles that regulate, and power is the
thing that is regulated. They are thus laws to power.
A law, in its true and primary sense, then, is truth regu-
lative of power; anal as these fundamental laws are su-
preme, eternal and irreversible, in pursuance of which
all ﬁnite things have been created, we may properly style
them the Supreme Constitution of the Universe.
CHAPTER VII.
RIGHT, LIBERTY AND J UsTIoE.
Accepting the theistic View of the universe, we have as
the Supreme Constitution, in harmony with which all
ﬁnite things have been created, all the fundamental and
immutable principles eternal in the Creative Mind. They
are universally regulative. To their authority all power
must submit, and in harmony with them all things have
been fashioned. They constitute the primal and su-
preme law.
The second system of law is that operative throughout
the physical and impersonal universe, consisting as we
have seen of the general properties of matter, generalized
facts, such as the orbits and orderly motions of ma-
terial things, and the uniform sequences which every-
where abound throughout the physical world; and in ad-
dition to these the principles of the Supreme Constitu-
tion extending down, as we may say, into and operative
throughout the entire material and impersonal realm.
The third system is that operative in ﬁnite personal
spirit. It includes all the laws of association, the laws
of memory, imagination, reasoning, the law of moral
obligation, and all those orderly processes abounding in
man’s intellectual, moral and religious nature; and here
too we ﬁnd the principles of the Supreme Constitution
constantly operative, giving us the laws of thought.
Thus we have a triple system of Law—laws of the
Divine Nature, laws of physical and impersonal nature,
and the laws of ﬁnite personal nature. This triple sys-
tem of law constitutes “the nature of things,” so often
referred to.
The immutable principles operative throughout the
realm of the impersonal, and the established order and
uniform sequences prevailing there, constitute the “na-
ture” of impersonal things; and likewise the immutable
THE ESSENTIAL NATURE OF LAW 161
principles operative throughout the personal realm, and
the established order, intellectual, emotional and moral,
prevailing therein, constitute the “nature” of personal
beings, and consequently when we say that a certain event
can or cannot happen from the “very nature of things”
we mean, if we speak intelligently, that such event is
possible or impossible under the existing laws of this
triple system.
As every citizen of an American city lives under
a triple system of human law, composed of the
Federal Constitution and Statutes, the Constitution and
Statutes of his state, and the Charter and Ordinances
of his municipality, so every person lives under this triple
system of natural law which antedates all civil institu-
tions and whose commands and prohibitions are binding
upon all civil government. Hence, our study should not
stop with the common law of the land, nor with the con-
stitution and statutes of the state and nation, nor even
with the broader rules of international conduct; but
above and beyond all these human enactments and com-
pacts are the superior principles of that great triple sys-
tem of natural law, whose regulative inﬂuence, as we shall
hereafter see, plays a most important part in the admin—
istration of justice in the conﬂicting affairs of human
life.
Right and Wrong.-—It is in view of this triple system
of law that we are now in a position to see clearly the
signiﬁcance of right and wrong as qualities of action.
Law is the test or standard of right and wrong. Right is
applied to any action which conforms to law, and wrong
to any action which does not so conform. Until we know
the law in any given instance we are unable to tell
whether the action is right or wrong. The mother who
sacriﬁces her child to appease the wrath of an offended
deity believes that the law demands it, and subjectively
the mother’s act is right; but whether the act is object-
ively right depends entirely upon what the law actually
demands. The physician who ministers a certain drug to
his patient believes that certain favorable sequences will
certainly follow under the established order of the pa-
162 RIGHT, LIBERTY AND JUSTICE
tient’s physical constitution, and subjectively his act is
right, for what is true to man’s intellect becomes a law to
his will; but whether that act is objectively right depends
upon the established order of nature, and whether as a
fact the drug will be followed by the favorable sequences
anticipated, whether the act is objectively right depends
upon the law operative within the patient’s physical con-
stitution. The statesman who advocates a tariff upon
foreign imports believes the highest welfare of his coun-
try demands it, and his advocacy of the measure is sub-
jectively right; but whether the highest welfare of his
country will, as a matter of fact, be promoted in the long
run by such a measure depends upon the law regulative
of international trafﬁc, and if that law permits or de-
mands such a measure the act is objectively right, but ob-
jectively wrong if such law forbids govermental interfer-
ence. The difficulty of the problem arises from man’s
present inability or failure to discover the law applicable
to the case, and to convince the world of its immutable
and imperative character.
Right and wrong imply law. Independent of law they
have no signiﬁcance. Law therefore is primal. The quest
for law is man’s mission, both in the world of mind and
of matter. Only as we discover and learn how to con-
form our action to it is human progress and civilization
possible. By the term “the right” is meant agreement
with law. The term has no intelligible meaning independ-
ent of law. The ground of “right” or of “the right” is
not the will of God, as some theologians have claimed,
nor happiness, as some philosophers contend; but law
itself, the fundamental and abiding truths or realities in
the realms of personal spirit and impersonal nature, is
the ground of right. Law exists ﬁrst and right and wrong '.
afterwards. When we apply the term right to a moral
act we mean simply that the act is in agreement with
moral law, and if the act is in agreement with positive
law, we say it is legally right. But the term is applied
to any act that is in harmony with any law.
Liberty—In view of this triple system, we can also see
the true meaning of liberty. Liberty is freedom to do
1'';
THE ESSENTIAL NATURE OF LAW 163
right, or freedom to act in accord with civil law, natural
liberty to act in accord with natural law. Man is unre-
strained when there is no law forbidding what he is doing.
The law does not forbid any action in harmony with
itself. Man is at liberty, so far as law is concerned, to
do anything the law allows. This is the only liberty
known to rational beings. Law stands opposed to all
who would violate it. Man was never at liberty to ad-
vance ﬁve years into the future, nor to run back ﬁve
years into the past, nor was he ever at liberty to add one
cubit to his stature, nor to be true and false at the same
time in a single act, nor to possess a good and a bad
character at the same time, nor to both love and hate
his neighbor continually. Man was never at liberty to
break an immutable law. He may choose to do so, but
he cannot. He is at liberty to conform his action to law,
that is, to do right. Hence the only liberty man ever
possessed was the liberty to do right. In every other
effort the law opposes him. As paradoxical as it may
seem, there is no liberty without restraint. Every ﬁnite
rational being is restrained by his own limitations, as
well as by the immutable laws of the universe. If a man
could ﬁnd a spot on earth where no human law prevailed,
yet even there the laws of thought and moral obligation
and others would’ reign. He can never escape beyond
their jurisdiction. A person is always free to act law-
fully. If one keeps within the permission of the law in
this triple system there is nothing to oppose him, but as
soon as he attempts to violate or override it or to accom-
plish ends contrary to the provisions of the law he ﬁnds
the whole rational system opposing him. They confront
him, they defy him, they thwart his purposes, they an-
tagonize him at every point.
Living within this rational system of law, all the liberty
of which we have or can have any knowledge must be
such as is consistent with this system. We are living in
a system of rational and moral order, and nowhere in it
is there unrestrained license. N 0 one can do as he pleases
unless he pleases to do right; and when we come to the
realm of positive law we shall also ﬁnd that civil liberty
164 RIGHT, LIBERTY AND [USTICE
consists In one’s freedom to act obediently to that law.
Within the limits of law one is free, but to break over
those limits he is not free. If he attempts it the law
opposes and restrains him. Its sanctions threaten him.
Justice—“7e are now in a position to see, also, in
what Justice consists. Many deﬁnitions may be found
in the numerous works upon Ethics and jurisprudence,
but that of Justinian is, perhaps, the most simple and
accurate. “Justitia est constans ct perpetua uoluntas
jus suum cuique tribuendi.” Justice is the constant and
perpetual wish to render every one his due. But even in
this deﬁnition Justinian conﬁnes himself to subjective
justice alone. He says justice is the constant and per-
petual “wish” to render every one his due, implying that
he would be a just man who wished to render everyone his
due, whether he were able to actually render it or not.
\Vishing to do a particular thing, and actually doing it
are two separate acts. A person may wish to pay a debt,
but be wholly unable to do so, in which case he would
be subjectively just; but objective justice would not be
realized. Objective justice consists in the outward act
of rendering to persons that which is due them. Justice,
therefore, presents two distinct aspects; the inward wish,
and the outward act, and in considering the matter with
reference to jurisprudence, this distinction becomes im-
portant because courts of justice attempt only to control
external conduct.
Subjectively considered, justice consists in the will’s
consent to the law, and to its demands. He is a just
person whose constant and perpetual purpose is to act
cord to every one his due. His inability to perform the
outward act does not alter his inward will or purpose.
His will still consents to the law which demands the per-
formance of duty. The law of obligation demands the
discharge of duty so far as ability will permit. but no
farther. Duty ceases where ability fails. One cannot
be morally bound to do what for him is impossible. To
this law of moral obligation the will of the just man cor—
dially consents, and to realize its demands to the ex-
tent of his power, is his constant and perpetual wish.
THE ESSENTIAL NATURE OF LAW 165
Justinian has given us a faultless deﬁnition of sub-
jective justice. It consists in the “constant and perpet-
' ual wish to render to every one his due.”
Should A purchase of B a precious stone, agreeing to
pay him on a certain day, a speciﬁed sum of money for
the same, there would arise upon the completion of the
bargain, certain reciprocal moral rights and duties. To
pay the stipulated sum on the appointed day would be
the duty of A, and B would have a corresponding right
to the money at the same time. The duty of A and the
right of B are correlative. As we have already observed,
the law of moral obligation demands of A full payment
of the money upon the speciﬁed day, and the same law
confers upon B a right to the actual possession of the
money at that time.
Objective justice consists in the actual extinguishment
of B’s right by the actual performance of A’s duty. The
transfer of the money cancels both A’s duty or obliga-
tion, and B’s right. B no longer under this transac-
tion has any right to money from A, and the duty to pay
money to B no longer rests upon A. Their respective
rights and duties have been adjusted by the performance
of the outward act agreed upon. Objective justice con-
sists in the outward adjustment of the rights and duties
of persons. As we shall see hereafter, objective justice
may be secured by the assistance of courts of justice, ir-
respective of the defendant’s willingness to perform his
duty. Objective justice may be secured, though subjec-
tive justice be wanting.
As we have already observed, an action which con-
forms to law is right; so we say that an act which con-
forms to law, as when A pays the debt he owes to B, is
just. Is there then no difference between rightness and
justice? While the term “right” may properly be ap-
plied to any act in agreement with law, the term “just”
is properly conﬁned to these acts only which acknowl-
edge or deny the rights of some person or persons. If
the government should take one man’s property and give
it to another, the act would be both wrong as contrary to
law, and unjust as an infringement upon the rights of
166 RIGHT. LIBERTY AND IUSTICE
him whose property was taken. But if the government
should enact a statute providing that the sum of ten and
ten should equal thirty, the act would be wrong as con-
trary to a mathematical law, but no citizen could com-
plain of any injustice resulting to him. Injustice con-
sists in depriving some person of his natural or legal
rights. Natural justice consists in according a person his
natural rights, as legal justice consists in according him
his legal rights. The denial of these rights is injustice.
That natural justice consists in according to persons
their moral rights is discussed by John S. Mill in his
essay on Utilitarianism.
“In our survey of the various popular acceptations of
justice, the term appeared generally to involve the idea
of a personal right—a claim on the part of one or more
individuals, like that which the law gives when it confers
a proprietary, or other legal right. .Whether the injustice
consists in depriving a person of a possession, or in
breaking faith with him, or in treating him worse than
he deserves, or worse than other people who have no
greater claims, in each case the supposition implies two
things—a wrong done, and some assignable person who
is wronged. Injustice may also be done by treating a
person better than others; but the wrong in this case is
to his competitors, who are also assignable persons. It
seems to me that this feature in the case—a right in some
person, correlative to the moral obligation—constitutes
the speciﬁc difference between justice, and generosity or
beneficence. Justice implies something which it is not
only right to do, and wrong not to do, but which some
individual person can claim from us as his moral right.
No one has a moral right to our generosity or beneﬁ-
cence, because we are not morally bound to practice those
virtues towards any given individual. And it will be
found, with respect to this as with respect to every cor-
rect deﬁnition, that the instances which seem to conﬂict
with it are those which most conﬁrm it. For if a moral-
ist attempts, as some have done, to make out that man-
kind generally, though not any given individual, have a
right to all the good we can do them, he at once, by that
THE ESSENTIAL NATURE OF LAW 167
thesis, includes generosity and beneficence within the
category of justice. He is obliged to say, that our utmost
exertions are clue to our fellow creatures, thus assimilat-
ing them to a debt; or that nothing less can be a sufﬁcient
return for what society does for us, thus classing the
case as one of gratitude; both of which are acknowledged
cases of justice. \Vherever there is a right, the case is
one of justice, and not of the virtue of beneficence; and
whoever does not place the distinction between justice
and morality in general where we have now placed it,
will be found to make no distinction between them at all,
but to merge all morality in justice.” 1
There is also a sentiment of justice—a feeling that
prompts man to demand his own rights, and to sympa-
thize with another whose rights are violated.2 \Vhen
the rights of any person are denied him there is a uni-
versal feeling among men that the wrong-deer should be
made to suffer for the injury he has inﬂicted upon him
whose rights he has violated. This sense of justice is not
satisﬁed by anything less than the punishment of the
wrong-deer or a complete restoration to the injured
party of all that has been wrongfully denied him. This
sentiment is a ﬁxed element in the moral constitution of
man. It demands a perfect and complete adjustment of
all the rights and duties of mankind. It is satisﬁed only
when all men perform all their duties, for then all men
will have all their rights. This ﬁxed and universal reality
or element in man’s moral constitution constitutes the
‘ ‘principle of justice,” inasmuch as it is regulative of free-
will power telling it what it ought and ought not to
choose. Free-will power which chooses to perform indi-
vidual du'ty thereby accords to every one his correspond-
ing rights, and justice being secured the universal sense
of justice is satisﬁed. As natural justice rests upon the
natural rights and duties of personal beings it is desir-
able that their constitutional nature be further empha-
1John Stuart Mill, Utilitarianism, “justice considered as a sentiment
118-120. is the sense of what ought to be
2 Carter’s “Law, its O rig i n, done by one to another.”
Growth and Function.” Page 155.
168 RIGHT, LIBERTY AND jUSTlCE
sized, and to that end I quote the words of President
Porter as being especially clear and forceful:
“The extent and authority of these rights is empha-
sized by the adjectives natural, universal, and inalien-
able. They are called natural, because they are founded
in the natural capacities and requirements of all human
beings, and are entirely independent of any artiﬁcial or
changing capacities or circumstances. They spring di-
rectly from the constitution of man as man; from his en-
tire nature, be it observed, as personal, social, sympa-
thetic, and moral. They are called such in contrast with
those which are artiﬁcial, limited, temporary, and adven-
titious; such as are constituted by statutes which may be
repealed, by fashions which may change, by institutions
which may be abandoned, by relationships which may
be dissolved, and yet which, while they exist, may enforce
sacred obligations of duty. The nature from which they
spring, and on which they are founded, is human nature.
“These rights are also universal. Being derived from
the nature of man, they extend as widely as universal
manhood. They are limited to no race, color, or citizen-
ship, but are co-extensive with the human family. Being
founded on an assumed similarity or community of en-
dowments, and sanctioned and consecrated by that con-
science which makes the whole world kin, they include
as receivers and givers all those to whom the capacity of
being blessed and the obligation to impart a blessing
can reach. By this is not intended that every member of
the human race, under all conceivable circumstances, is
entitled ‘to the actual security or enjoyment of these so-
called universal rights. Some men may forfeit their claims
by crime; others may be debarred the actual enjoyment
of the blessings in their gift, under the pressure of cir--
cumstances that refuse them a developed and normal
manhood. It is intended, however, that, so far as a com-
mon manhood is concerned, it avails for all alike whether
these rights are claimed or waived; and that the claim is
always responded to at 'the court of conscience and of
unperverted public opinion.
“These rights are also inalienable. They are incapa-
THE ESSENTIAL NATURE OF LAW 169
ble of being rightfully parted with by their possessor, or
being taken away from him by any act of personal vio-
lence or arbitrary decree. By this is not intended that
a man may not expose himself to certain death to save
the life of his friend or to defend his country, or volun-
tarily subject himself ‘to the external conditions of per-
sonal slavery for benevolent or moral ends, or from simi-
lar motives abandon all private ownership of property,
so far as this is possible. It is intended, however, that
no act of an individual man or of society can deprive a
single individual of any of these descriptions of rights,
except for reasons or by processes which apply to all
men alike.” 3
In harmony with the position taken that justice con-
sists in the consent of the will to the demands of the
moral law respecting the performance of duties and the
satisfaction of rights, the same author further says: “If
‘rights’ are used to signify what are generally known as
‘the natural or universal rights of man then justice is
~ interchangeable with’ the benevolent recognition of these
natural rights, and the duties which these involve.” 4
And to the same effect are the following words of
Dugald Stewart: “In the case of justice, also, there is
always a right on one hand corresponding to an obliga-
tion on the other. If I am under an obligation, for ex—
ample, ‘to abstain from violating the property of my
neighbor, he has a right to defend by force his property
when invaded. It therefore appears that the rules of
justice may be laid down in two different forms, either
as a system of duties, or as a system of rights. The
former view of the subject belongs properly to the mor-
alist, the latter to the lawyer. It is in this last form, ac—
cordingly, that the principles of justice have been stated
by the writers on natural jurisprudence.” 5
3Porter, Elements of Moral Sci- 5Active and Moral Powers of
ence, 401. Man (Walker), 362.
4 Porter, Elements of Moral Sci-
ence, 413.
CHAPTER VIII.
ETHICAL BAsIs or JUmsPRUDnNoE.
\Ve have already observed in Chapter IV that the moral
law manifests itself under three distinct forms among
others, those of Justice, Benevolence, and Veracity.
As the clover seed sends up its single shoot, which, as
a stem, unfolds at the top into three distinct leaves, so
this single moral law presents to us three distinct aspects,
justice, benevolence and veracity. They are not three
separate moral principles, but only three different mani-
festations or aspects of one principle.
This one law of love or service requires man to seek
his highest good, but in order to attain his highest good,
he must perform duties to others. The same law requires
him to work for the good of others as well as his own;
and such are our human relations that only by perform-
ing our duties to others can we attain our own self-appro-
val and our own highest well-being.
Man attains his moral perfection largely by his con-
duct in the outward affairs of life. If he borrow money
of his neighbor, he can attain his own highest good only
by paying his neighbor when the money is due. If he
has negligently injured his neighbor, he can gain his own
highest good only by compensating his neighbor for the
injury. If he has contracted with his neighbor to sell
him a farm for a certain sum of money, he can attain his
own highest good only by executing the contract accord-
ing to its terms. If he has slandered his neighbor, he
can attain his ‘own highest good only by recompensing
his neighbor for the injury inﬂicted. If he agrees to do
a day’s work for his neighbor, for a stipulated compen-
sation, he can gain his own highest good only by perform-
ing the labor fully and fairly, according to the agreement.
And, so, in all the possible instances of reciprocal serv-
THE ESSENTIAL NATURE OF LAW 171
ices, each can attain his own greatest good only by ren-
dering to the other that which is due him.
But all such conduct as this is what we call justice.
The moral law, then, when applied in outward affairs ap—
pears in that form. Objective justice is but the outward
manifestation of that one moral law.
Again, if man would attain his highest good, his per-
fect character, he must render gratuitous services in
many instances to the weak, the ignorant, and the help-
less. If he would attain his own good, he must, under
certain circumstances, feed the hungry, clothe the naked
and shelter the homeless. So this law of service mani-
fests itself necessarily in the form of benevolence. He
who would serve himself best; he who would live up to
his moral ideals, cannot ignore his duties to those in dis-
tress. His highest good can only be secured by bestow-
ing good gratuitously and benevolently upon his fellow
men.
This basal law then manifests itself also in the form
of benevolence.
But perhaps this law of service manifests itself in no
other form so frequently and so constantly as in the form
of veracity. Every human being needs reliable informa-
tion from others. His need constitutes a right, and the
right upon his part imposes a duty upon others. So
under the law of service, a person cannot attain his own
highest well-being, except as he performs his duties to
others by conforming his communications with them to
the truth. The importance of truthfulness in the affairs
of human society is immeasurable. To secure it, the
courts of justice resort to the oath. In his home, in busi-
ness, in society, everywhere, he who would attain his own
highest well-being must conform his words and his action
toward others to the demands of truth.
Man’s highest well-being begins in right moral charac-
ter. This he can attain only by veracity. If, in selling
a jewel, whose quality he knows but the buyer does not,
the seller serves himself best by telling the truth to the
conﬁding buyer. Instances arise daily in every life which
172 ETHICAL BASIS OF jURlSPRUDENCE
illustrate this truth. Here also the law of service mani-
fests itself in the form of veracity.
So necessary is veracity in social life that, without it,
society would crumble into ruin and the administration
of justice become impossible. Imparting knowledge of
the truth to others is one of the highest forms of service
to them, and, at the same time, one of the highest forms
of service to self.
Now what relation does this one fundamental law of
service, in its three-fold manifestation, sustain to juris-
prudence? This is our question.
First: The moral law, which is coeval with rational
beings, was ﬁrst in order of time. Under the moral law,
as we have seen, it is the duty of each to serve his neigh-
bor, and the neighbor possesses a corresponding right to
be served. In the concrete affairs of life, if A owes B a
sum of money, the day it falls due, it is the duty of A
to pay it, and the right of B to have it. The duty of
one is always attended by a corresponding right in the
other. Duties and rights are correlative. They exist as
correlatives in the nature of the moral system. \Vhen
man appeared upon the globe as a moral being, impli-
cated in a moral system, he was subject to the moral law;
just as when he appeared upon the globe as a physical
being, implicated in the physical system, he was subject
to the law of gravitation and the other laws of physics.
Moral rights and duties precede, legal rights and duties
follow. Jurisprudence is the product of ethical concep-
tions; ethical conceptions are not the product of juris-
prudence.
Second: Besides being the ﬁrst in order of time, the
ethical conceptions of justice, benevolence and veracity
called for legal assistance in man’s struggle for life, for
development, and for civilization.
From the dawn of human history, men have been con-
tending for their moral rights against those who were
unwilling to perform their moral duties; and from time
to time a human law was announced by a despot, a mon-
arch, a court, a king, or enacted by a tribe, a council, or
a parliament, which, in some manner, secured to the indi-
THE ESSENTIAL NATURE OF LAW 173
7'
vidual his moral rights, in a certain class of cases, such
as his right to life, his right to liberty, and his right to
property.
And all these human laws, taken together, and in force
in any particular state, constitute the Jurisprudence of
that state. As the race has advanced, and as men have
come from century to century, to recognize more clearly
their moral rights and duties, they have multiplied hu-
man enactments, amended deﬁcient laws, adopted im-
proved systems of government, and enlarged the sphere
of judicial action, so that ‘the Jurisprudence of the world
today is the mature product of centuries of evolutionary
development.
The desires men have for the enjoyment of their rights
ensure the construction of systems of human law, just
as certainly as their desires for knowledge ensure the
establishment of educational institutions, or their desires
for national safety ensure the construction of coast de-
fenses. As the moral consciousness of the race discerns
more and more clearly its individual and collective rights,
and duties, the Jurisprudence of the world must corre-
spondingly develop and improve.
I have purposely singled out this basal law of Ethics,
and have speciﬁcally illustrated its three-fold manifesta-
tion as justice, benevolence and veracity, because J uris-
prudence chiefly concerns itself with these three forms
of human conduct. Much that this moral law demands
in the outward conduct of men toward one another, Juris-
prudence also demands. The moral law demands that
the individual pay his just debts to his neighbor; Juris-
prudence insists upon the same: the moral law commands
that those with ability shall feed the destitute, care for
the sick, and assist the ignorant; jurisprudence also pro-
vides almshouses for the poor, hospitals for the sick, and
schools for the ignorant and defective; the moral law de-
mands that men shall speak the truth, one to another, in
their communications; jurisprudence discountenances in
severest terms deceit, and lying, and fraud in the out-
ward concerns of human life.
The moral law of service says, “ thou shalt not steal,”
174 ETHICAL BASIS OF IURISPRUDENCE
and Jurisprudence repeats it, saying, “if you do, you
shall be punished.” The moral law says, “thou shalt not
bear false witness against thy neighbor,” Jurisprudence
enacts the same principle and provides additional pen-
alties for its violation. The moral law says, “thou shalt
not kill,” and Jurisprudence makes murder unlawful and
inﬂicts its heaviest punishment upon the murderer, so
wherever the moral sense of mankind, preceding, discerns
man’s rights respecting his life, his liberty, and his prop-
erty, Jurisprudence, following, undertakes to secure to
each individual the enjoyment of these rights.
The sanctions of the moral law were insufﬁcient, in
many cases, to secure its observance. So to those sanc-
tions the state added others, enforcible by human courts,
and calculated to secure obedience to that moral law, at
least in the outward conduct of mankind. In this way
Jurisprudence grew up on the foundation of the moral
law, prohibiting what it forbade, and compelling what it
commanded, within a certain range of human action.
Jurisprudence, therefore, supplements Ethics. By its
added sanctions it secures correct conduct, where Ethics
left to itself, would fail. Ethics precedes, commanding
men to be just, benevolent and truthful, and Jurisprud-
ence follows, compelling obedience to this command
within the practical range of outward observance. And
hence, we may properly regard Jurisprudence as a branch
of applied Ethics.
The Federal Constitution and the Constitution of every
state in the Union declare that they are severally or-
dained and established, among other things, to establish
justice and to promote the general welfare. Justice is
the most conspicuous form of the moral law, which de-
mands the attention of the state.
It is not too much to say that the administration of
justice is the chief object of civil governments and hu-
man laws. Justice is the tap-root of Jurisprudence, upon
which it rests, out of which it grows, and from which it
draws its vitality. To see the true relation, however,
existing between them, an analysis is necessary. As
we have seen, justice appears in two forms; one sub-
THE ESSENTIAL NATURE OF LAW 175
jective and the other objective. Subjective justice con-
sists in the consent of the will to the demands of the
law. Justinian’s deﬁnition of justice has reference to
this subjective form. He says, “Justice is the constant
and perpetual wish to render every one his due.” It is
the constant and perpetual consent of the will to accord
every one his due that constitutes subjective justice, or
that constitutes one a just person.
An illustration may be permissible. If A owes B one
hundred dollars for borrowed money, which sum is due
and payable, and A has the money with which to meet the
obligation, it is A’s moral duty to pay the debt, and it
is B’s moral right to have the money. If under these
circumstances, A, recognizing his duty, consents to the
demands of the moral law to pay B, is willing to do so,
wishes to do so, he is subjectively just. This voluntary
consent upon his part to meet the demands of the law
makes him a just man, subjectively considered. But
up to this point we see nothing but subjective justice.
Now if A actually pay over the money to B, and B sur-
renders the note, if one, to A, then objective justice is
secured. A’s duty to pay and B’s right to have the
money, have both been met. A’s duty is correlative to
B’s right. The outward adjustment of this right and
duty by actual payment, constitutes objective justice. So
we deﬁne objective justice to be the outward adjustment
of the rights and duties of persons.
But again, if A, under the circumstances supposed,
when the money is due, and he has it in his possession,
refuses to pay B, then he does not consent to the demands
of the law, and he is subjectively unjust. He is an un-
just man. This unwillingness to meet the moral law’s
requirements constitutes subjective injustice. And the
actual withholding of the money by A, from B, who has
a right to it, constitutes objective injustice.
Now, suppose B sues A for this money, procures a
judgment against him, has an execution issued; and the
officer duly levies it upon A’s land, sells the same and out
of the proceeds pays over to B enough to fully satisfy the
debt, and pays the balance, if any, after settling the costs,
176 ETHICAL BASIS OF jURlSPRUDENCE
over to A. Then objective justice has been secured. The
right and the duty of the parties have been adjusted. B
no longer has any right to money from A; and the duty
to pay money to B no longer rests upon A.
But it will be observed, that while objective justice has
been secured by means of the court, yet A has remained
unwilling all the time to pay, consequently he has re-
mained subjectively an unjust man. This distinction be-
tween subjective and objective justice is essential in the
consideration of our subject, because courts of law have
to do with objective justice only. The courts enforce the
outward adjustment of men’s rights and duties, leaving
the subjective justice and injustice wholly to the court of
conscience. _
In other words, Jurisprudence concerns itself with ob-
jective conduct and not with the subjective state of the
human mind.
Jurisprudence will proceed to collect the debt, irre-
spective of A’s consent or dissent to the demands of the
law. From the nature of things, human courts cannot
investigate men’s mental states, consequently there is a
great zone of ethical conduct which lies around and out--
side of the narrower zone of judicial redress. No court
of law will issue a writ of mandamus to compel one to
love his neighbor, nor will a court of equity issue a writ
of injunction restraining one person from hating another.
Until a moral law has been adopted, or taken up into
jurisprudence by judicial or legislative action, its viola-
tions are left to the courts of conscience alone for recog-
nition and redress.
But Jurisprudence does not deal exclusively with jus-
tice. Every civilized state recognizes its duty to the poor,
the defective, and the insane. Human laws provide for
their care and well-being. Enormous sums of money are
raised‘each year by taxation for the comfort and improve-
ment of the unfortunate.
The laws of the United States, by which lands are do-
nated in large quantities to the respective states for edu-
cational purposes, the laws of the state exempting col-
leO‘es and seminaries and churches from taxation, the laws
THE ESSENTIAL NATURE OF LAW 177
of the state compelling certain persons to care for their
destitute relatives, and providing for county, city, village
and town systems of charity, whereby the poor shall be
cared for,-all these laws, and many more of a similar
character, are embraced within the term Jurisprudence,
and they all recognize the duty of the strong to care for
the weak and unfortunate. Volumes could be written
upon the laws of civilized states and their interpretations
by the courts, which have for their object a benevolent
regard for the poor; and still more could be said about
that multitude of laws whose object has been to secure
donations for the church and other religious organiza-
tions. No small part of the world’s Jurisprudence has
recognized the duty of mankind to render gratuitous serv-
ices in the form of tithes, donations, or taxes, to the desti-
tute and unfortunate portion of mankind.
We need to give but brief consideration to the rules in
both the systems of law and equity, which recognize
man’s duty to speak the truth to his neighbor. The max-
im that, “Equity will not suffer a person to speak the
truth when he wants to, if he neglected to speak it when
he ought to,” expresses the attitude of Jurisprudence
upon this subject.
Fraud, which is generally practiced by untruthful
words, deceitful conduct, or misleading silence when one
should speak, constitutes one of the great subjects in the
consideration of which both courts of law and equity
spend much of their time and thought. The duty of one
party to speak the truth, and the duty of the other not
to mislead or deceive, appear in one form or another, in
nearly every transaction in the business of the world.
Without truthful witnesses, the administration of justice
were impossible, and hence the oath in many systems of
legal procedure.
The moral right, which the individual has to the truth
in human transactions, is one which the courts are most
frequently called upon to consider, and no species of in-
jury is more vigorously redressed by them, than that
which one party sustains by the fraud, the deceit and the
lies of the other.
178 ETHICAL BASIS OF IURISPRUDENCE
The moral law then, as it is manifested in the forms
of Justice, Benevolence and Veracity, is the foundation
of Jurisprudence. It is the tap root extending down into
the rational nature of man, while, at the same time, its
vitalizing and civilizing forces extend above into the body
and into all the branches of Jurisprudence. '
But while the moral law supplies the foundation of
Jurisprudence there exists an important and interesting
relation between Jurisprudence and the other systems of
Natural Law which we have already considered.
The student of Jurisprudence is daily confronted by
references, in judicial authorities, to certain systems of
law, which exert a controlling inﬂuence in the administra-
tion of justice, while at the same time, the jurist would
not admit that they constitute any part of the positive
law of the land. What is the relation of Jurisprudence
to those various systems of truth.
The courts take judicial notice of the well established
and generally recognized laws of physical nature; requir-
ing no proof of the well authenticated laws of causation,
of gravitation, or of the ebb and ﬂow of the tides, the
time of the rising and setting sun; the instincts of animal
life, as the instinct of self-preservation, and that of pro-
tection exercised by the parent toward the offspring.
But this body of natural law is not regarded by the jurist
as any part of Jurisprudence.
The courts also take judicial notice of that important
body of self-evident truths including all the fundamental
principles of mathematics which are necessarily involved
in all mathematical processes or calculations, as in the
estimation of legal damages, in the entering up of ﬁnan-
cial judgments, and in ascertaining the amount of fees,
costs and disbursements incident to any particular liti-
gation or judicial proceeding. While these mathematical
principles are necessarily involved and applied in every
judicial proceeding, hearing, or ﬁnal process, yet, as a
body of changeless principles the jurist does not regard
or treat them as a part of the positive law of the state
or nation.
THE ESSENTIAL NA TURE OF LAW 179
Then there are the fundamental laws of human thought
and of logic; the laws of association, and the generally
recognized and well established principles of psychology,
such as the power of the human soul to know, its capacity
to feel, and its power to choose; and all of these too are
judicially noticed by the courts of civilized nations, yet
these laws of thought, of logic and of psychology, are not
in the estimation of the jurist any part of state, national
or international law. In their administration of justice,
the counts, as we have said, often recognize and give effect
to the laws of these various systems of truth which ante-
date all human enactments and judicial tribunals.
To know the generally recognized laws of the Universe
is indispensible for him who would be profoundly learned
in the laws of states and nations. Positive law presup-
poses the existence of moral principles and it is admin—
istered by our courts in the helpful light of all those phy-
sical and mental truths before alluded to.
A relation exists, therefore, between Jurisprudence and
ethical principles that does not exist between J urisprud-
ence and the other system of law referred to. The system
of self-evident truths, the laws of physical nature, of
animal existence, of thought and of sociology, are all pre-
supposed by Jurisprudence and, of course, they antedate
it in time; but of ethical truths something more takes
place. Many ethical or moral principles are practically
re-enacted by either judicial or legislative action and in
that way they are adopted into and become a part of posi-
tive law. Thou shalt not kill, thou shalt not steal, thou
shalt not commit adultery, and the more general ethical
principle, thou shalt not in any way injure thy neighbor
in his person or property simply for the sake of injuring
him, were all ethically prohibited long before they were
forbidden by positive enactments. The sanctions of the
moral law were insufﬁcient in many cases to secure its
observance. To those sanctions the state added others, en-
forcible by human courts, calculated to secure obedience
to those re-enacted commands, at least so far as they
pertained to the outward conduct and behavior of man-
180 ETHICAL BASIS OF jURlSPRUDENCE
kind. In this way Jurisprudence grew up on a foundation
of ethical principles and by re-enacting the same, J uris-
prudence supplements Ethics. By its added sanctions
it secures correct conduct, where Ethics, left to itself,
would fail. Ethics precedes, commanding men to be just.
Positive law follows compelling obedience; and conse-
quently Jurisprudence may be properly regarded as a
branch of Applied Ethics.
While there is this intimate and special relation be-
tween Jurisprudence and Ethics, there are also important
relations between Jurisprudence and each of the other
systems referred to. The courts give effect necessarily
to their respective principles, though we cannot say they
execute those laws. If A claims a title to certain property
from B and it appears to the court that B never had any
title to it, the court must deny A’s claim, not because the
positive law says it must be denied, but because the meta-
physical truth that “something cannot come from noth-
ing, ” necessitates the denial.
_Likewise in the realm of physical nature, the court
gives effect to the known laws operating in that sphere.
If in a cause to determine the parentage of a child it ap-
pears to the court that for a year or more immediately
before the child’s birth, the alleged father was continually
in one country and its mother in another, according to the
natural law of gestation the decision of the court must
be that the alleged father could not be the actual father
of the child. That law of physical nature renders neces-
sary such a decision by the court.
And in the realm of ﬁnite mind, if in determining
whether a person has committed a certain crime, it ap-
pears to the court that, at the time the act was committed,
the accused was so insane that he did not know what he
was doing, he must be acquitted of the charge, upon the
fundamental principle of the mind that there can be no
intent in a mind destitute of knowledge. Intention nec-
essarily implies a knowledge of the thing intended.
I say Jurisprudence is a branch or part of applied
ethics, because positive law is not co-extensive with mor-
THE ESSENTIAL NATURE OF LAW 181
ality. The courts of the state assume no jurisdiction
whatever over the thoughts and feelings and secret pur-
poses and motives of the individual, however wicked and
vicious and immoral they may be. All of these unex-
pressed activities of the mind are within the exclusive
jurisdiction of conscience. But when these inward im-
pulses and immoral purposes ﬁnd expression in outward
conduct, in acts violating the rights of others, they fall
within the jurisdiction of human tribunals, so far, at
least, as legislation and judicial authority have included
them within the scope of positive law. But here even not
every immoral word or act will 'be a sufﬁcient cause for
judicial consideration. Jurisprudence covers but a part
of ‘the moral realm, even so far as outward behavior is
concerned. Many incivilities and insults experienced in
social life, while morally reprehensible, are ignored by
the courts of the land.
For the lawyer to understand man’s ethical nature,
to understand the relation of Jurisprudence and its funda-
mental principles, and to know how the courts regard and
give effect to the laws of the universe of both mind and
matter, is of vital importance, would he aspire to the
broadest conception of the sublime subject of J urisprud-
ence.
The courts, as I have said, take judicial notice of these
systems of Natural Law. They give effect to them in the
administration of justice. They judicially notice the well-
known laws of physical nature, the principles of mathe-
matics, and other primary principles of reason, the in-
stincts of animal life and the laws of the human mind
as well as the established principles of Sociology. The
courts do not execute or administer them in the sense that
they administer positive laws, but all through the text-
books and judicial reports we ﬁnd frequent illustrations
of the court’s recognition and application of them in the
settlement of contested causes.
Among the many instances where courts have recog-
nized the primary laws of reason and the phenomenal
order of nature, may be mentioned the following cases:
182 ETHICAL BASIS OF jURlSPRUDENCE
That something cannot come from nothing (cw m'hz'lo
m'hz'l ﬁt), is one of the fundamental truths of reason,
whose appearance, as a controlling fact, in judicial rea-
soning, is frequent and noticeable. Where a testator de~
vised one portion of his real estate to a son named J o—
seph and another portion to another son named Medeef,
and ordered, if either of his sons should die without law-
ful issue, that his share or part should go to the sur-
vivor, it was held by the court that the right of Medeef
in the share devised to Joseph, during the lifetime of
Joseph, was a mere naked possibility, which in law is no
interest at all, and as a necessary consequence its assign-
ment by Medeef to one Winter carried nothing to the as-
signee. If Medeef has nothing, he could assign nothing
to another, ex m'hilo m'hz'l fit. 1
And the principle is again illustrated where it was-
sought to introduce a void clause in a will to show the
intention of the testator regarding a valid portion of the
same instrument. The judge in his argument says: “Void
things are as no things; as a void award is said to be no
award. ”*‘ it 7 Assuming that the clause is merely
void it follows that it cannot be read for any purpose, and
especially for the purpose of showing intention. Ea;
m'hz'io mlhél ﬁt.” Adopting the language of others, he
says further, “The expressions which cannot have any
meaning are rejected as if they had not been written, and
do not hinder the others from having their effect.” Quot-
ing the language of the court in another case, the judge
says: “The trust being void is as though it never eX-
isted. So we may say of this power it is as though it had
never been written in the will. You cannot argue from
it any more than from the history of Lilliput or Robin-
son Crusoe.” And the court ﬁnally says: “The law has
not divided zero into degrees. How am I to infer from
what the law will not notice that there was any intention
to create an authority?” How can an inference be drawn g‘
from nothing‘? How can a testator’s intention be inferred
from nothing? An inference cannot rest upon zero any
ljackson vs. Waldron, 13 Wend. 221.
THE ESSENTIAL NATURE OF LAW 183
more than a conclusion can rationally be drawn from non-
existing premises. Ear nihilo nihil ﬁt. 2
Of the same nature is the maxim, qui non habet, ille
non dat. Where an heir previous to the death of his an-
cestor conveys by deed all his interest in the estate of his
ancestor, and there is a judgment against the heir previ-
ous to the conveyance on which, after the descent of the
property, a sale is had, the purchaser, at such sale, and
not the grantee under the conveyance, takes the land, be—
cause says the court, When the deed was executed the
grantor had no title or claim to the premises, and could
therefore convey no right to them. Qui non habet, ille
non dat. A grant by a person who has no estate cannot,
of course, pass any estate to the grantee. 3
To the same effect, Lord Coke says that where a son
releases in the life time of his father the release is void,
because he has no right at the time of making it. The
father takes nothing because the son has nothing to give. 4
The same principle assumes another form in the maxim,
N emo plus jurisin alium transferre potest quam ipse habet.
In the court of Exchequer, where one Dixon agreed to join
his brother in making a promissory note for his accommo-
dation, provided that B would also join, Dixon the brother
accordingly signed an instrument in the form of a prom-
issory note, a blank being left for the name of the payee.
B refused to join; and Dixon, for whose accommodation
the note was to be made, inserted the plaintiff’s name as
payee and represented that he had authority to deal with
the note, when in fact he had no authority whatever. The
money was advanced by the plaintiff, and when payment
was refused, he sued the signer, and the judge said that
where a party takes such an incomplete instrument he
cannot recover upon it, unless the person from whom he
receives had a real authority to deal with it. There
was no such authority in this case and unless the circum-
stances show that the defendant conducted himself in
such a way as to lead the plaintiff to believe that the
2Root vs. Stuyvesant, 18 Wend. 3Jackson vs. Bradford, 4 Wend.
301. 619.
4 Coke on Littleton, 265 a.
184 ETHICAL BASIS OF IURISPRUDENCE
defendant’s brother had authority, he could take no bet-
ter title than the defendant’s brother had to give. The
plaintiff could only take it as a note under the authority
of the defendant’s brother, and he had no authority con-
sequently the instrument is void, as against the defend-
ant. The maxim of law is, N emo plus juris in alium
transferre potest quam ipse habet. The instrument was
a piece of blank paper not a note, and consequently the
plaintiff received no note. 5
Another illustration of the same principle arises when
one attempts to grant goods which are not in existence,
or which do not belong to the grantor, actually or poten-
tially, at the time of executing the deed. One may “grant
all the wool of his sheep for seven years,” but he cannot
grant “the wool that shall grow upon the sheep that he
shall buy hereafter.” In other words one has no grant-
able interest in a possibility upon a possibility, and where
one grants goods which are not in existence or which do
not belong to the grantor at the time of executing the
grant, no title passes to the grantee, as the granter had
none to transfer. N emo dat, qui non habet.6
Another primary law of reason is found in the expres-
sion that, “the same body cannot be in two different
places at the same time,” and this fundamental law of
reason is illustrated in all those cases where, in criminal
prosecutions, the defense of an alibi is interposed. If the
defendant accused was in New York at the time the crim-
inal act was committed in San Francisco, that fact would
of itself constitute a perfect defense. The universal prin-
ciple that a person or an object of any nature cannot be
in two different places at the same time would be recog-
nized by the court and given effect in the prosecution
of the case. In the case of the People vs. Levine, the Su- "
preme Court approved the following language of the
court below: “One of the defenses in this case is called
an ‘alibi’; that is, that the accused was elsewhere at the
time the offense is alleged to have been committed. If
5Awde vs. Dixon, 6 Exch. 869, 379; Chidell vs. Galsworthy, 6 C.
872. B. N. 471, 478.
6Lunn vs. Thornton, 1 C. B.
THE ESSENTIAL NA TURE‘ OF LAW 185
this is true, it being impossible that the accused could
be ‘in two places at the same time, it is a fact inconsistent
with the charge sought to be proved, and excludes its pos-
sibility. I‘ f In considering the strength of the evi-
dence necessary to sustain this defense it is obvious that
all evidence tending to show that the accused was in an-
other place at the time of the offense is in direct conﬂict
with that which tends to prove that he was at the place
where the crime was committed and actually committed
it.” 7 The conclusiveness of this defense when clearly
proven is stated by the court in another case as follows:
“The defense of an alibi sought to be set up, though very
conclusive, if certainly, clearly and fully established, is
one liable to abuse.” 8 To the same effect is the language
of others considering the “alibi.” 9
The primary ruth that a thing cannot both be and not
be at the same time must ﬁnd its application in the realm
of jurisprudence as truly as elsewhere. A contract can-
not both exist and not exist at the same instant; there
cannot both be and not be at the same time a valid con—
sideration for a promise; a contract cannot be both valid
and not valid, voidable and not voidable, legal and ille-
gal at the same moment. A pleading cannot be both
sufﬁcient and insufﬁcient, a ﬁrm cannot both exist and not
exist, a corporation cannot be and not be duly created
and organized, and there cannot be at the same time both
a cause of action and not a cause of action existing
against the same party, growing out of precisely the same
set of circumstances, jurisdiction in the court either ex-
ists or it does not, the judgment of the court is either
valid or not valid, the stock issued by a corporation is
either valid or not so, and the criminal intent necessary
to constitute the crime of which a prisoner is accused
either does or it does not exist,—in all these instances and
countless others familiar to the jurist there is involved
the fundamental and self-evident principle under consid-
eration. There cannot be both jurisdiction and no juris-
7 People vs. Levine, 24 Pac. R. 632.
8State vs. Thompson, 5 Humph. 138.
9 People vs. Atman, 76 Ill. 149.
186 ETHICAL BASIS OF IURISPRUDENCE
diction in the court. Jurisdiction exists or it does not;
and all these and numerous other instances, abounding in
the adjudicated cases, illustrate the primary truth of
reason that a thing cannot be and not be at the same
time.
In the case of Scovill vs. Thayer,10 an incorporated
company had issued certiﬁcates of stock in excess of the
limit imposed by its charter. Such issue being without
legal authority was void in the sense that the holder of
such shares was not entitled to the legal rights, nor sub-
ject to the legal liabilities which attach to the holder of
authorized stock. Inasmuch as the holder of this stock
attended the meeting of the corporation at which the stock
was voted and received and held the illegal certiﬁcates,
it was contended that he was estopped to set up their in-
validity as a defense to an action by creditors against
him to recover the unpaid balance due for the said cer-
tiﬁcates. This over-issue of certiﬁcates of stock was ille-
gal. There was no such stock. The so-called certiﬁcates
were nullities. They were nothing. They constituted
stock or they did not, and in view of this principle, hold—
ing the over-issue a nullity, the court allowed the defend-
ant to assert his non-liability. To have held the unau-
thorized stock void, and at the same time to have held the
defendant liable to pay for it, would have been in reality
holding the stock at once void and valid—stock and at the
same time no stock.
The principle is. further illustrated in Stace and
Worth’s case,11 where it appeared that there was an
agreement for the amalgamation of the London Northern
Insurance Corporation and the Life Investment Mortgage
Insurance Company, and the two corporations to be
formed into one, under the name of the corporation ﬁrst
mentioned. The corporation was to issue shares in exchange
for those held in the company, and the amalgamated
board was to consist of ﬁve directors of the corporation,
and of seven of the directors of the company, to be se-
lected by themselves. After the amalgamation, Stace
10105 U. S. 143. 11 Law Rep. 4 Ch. App. 682.
THE ESSENTIAL NATURE OF LAW 187
and \Vorth, it was alleged, received and accepted certiﬁ-
cates for shares in the corporation in exchange for their
shares in the company, and they with ﬁve others were
appointed directors of the corporation. Afterwards a
resolution was passed for voluntarily winding up the cor-
poration, and the names of Stace and Worth were placed
on the list of contributors. An application to have their
names removed from the list was made to Vice-Chan-
cellor James, who, after hearing the case argued, di-
rected their names to be removed. This was done on the
ground that the agreement for amalgamation was be-
yond the powers of the corporation, and therefore, void.
In giving the reasons for his decision he said: “It is,
however, contended that notwithstanding the agreement
itself was ultra vires and void, yet there are personal
acts and things personally affecting these two gentlemen
which render them still liable as shareholders.” These
were the acceptance of shares by Stace and Worth, the
fact that their names appeared on the register of share-
holders, and that they had sat as directors of the cor-
poration after the attempted amalgamation. But he de-
clared: “This was a void agreement with a void acting
upon it, a void recognition, and a void ratiﬁcation by the
acts which have been mentioned. It comes to an aggre-
gate of nothings, and that aggregate of nothings is all
that there is to ﬁx these gentlemen on the list of stock-
holders.”
Again, the “whole includes all the parts of anything,”
so if a person has title to a section of land he must have
title to each quarter of that section, and in a negative
form Judge Christiancy recognized judicially this prin-
ciple when, in a case for damages the question of reas-
onable care arose, the court said that it was bound to
know that when no care was used in approaching a dan-
ger, reasonable care could not have been used. 12
Further illustrations of this principle are found in the
case of contracts void because made in violation of the
common law or of some statute. In many states con-
12 L. S. 8: M. S. R. R. Co. vs. Miller, 25 Mich. 273.
188 ETHICAL BASIS OF jURlSPRUDENCE
tracts made on Sunday are declared by law to be void.
Gambling contracts and contracts to do any act pro-
hibited by law, and in some states contracts tainted with
usury are void, and hence are nullities. Strictly speak-
ing there cannot be a void contract, because a void con-
tract, as that term is used, means no contract. The term
void agreement more properly expresses the idea in-
tended, because a void agreement is such an agreement of
the minds as does not create any legal rights. .When we
speak, therefore, of a void contract, we mean an agree-
ment destitute of legal effects. From the nature of things
a contract cannot be attended both legal effects and with
no legal effects. If any legal rights are created by an
agreement of parties, to that extent they have made a
valid contract. There can no more be a valid contract
which is not a valid contract, than there can exist a
planet which is not a planet. Consequently the courts
in considering void contracts speak of them as “nulli-
ties.” They have no “legal force or obligation.” And
of one it was said, “No repudiation by a formal act was
requisite to render it inoperative,” and “it has no par-
tial validity, such as would make it capable of subsequent
completion.’ Speaking of ‘a Sunday agreement the
court said that the defendant could not ratify the illegal
contract, because its want of validity did not depend in
any degree upon his choice. The law annulled it and
there was no subject of ratiﬁcation. 13 The so-called void
contract is no contract, and there cannot be a ratiﬁcation
of a contract unless there is a contract to ratify, nor can
there be an “adoption” of a contract unless there is
a contract to adopt.
It is, of course, equally true that a statute repugnant
to the constitution cannot be a valid law and at the same
time void. It is either a law or it is not a law. It cannot
be and not be a law at the same instant. In the language
of Justice Brewer, “an unconstitutional act is not a law;
it confers no rights; it imposes no duties; it affords no
protection; it creates no ofﬁce; it is in legal contemplation
13 Day vs. McAllister, 15 Gray 433.
THE ESSENTIAL NATURE OF LAW 189
as inoperative as though it had never been passed.” 14 It
is a nullity and consequently a Board of Commissioners
assuming to exist under an unconstitutional act has no
legal existence; it was an unauthorized and illegal body;
their acts in subscribing for stock and issuing bonds in
payment for the same were void. The act being void
conveyed no rights, and to hold their action as valid
would be to hold the act both void and valid at the same
time.
The courts also judicially notice all mathematical
truth. The self-evident needs no proof. They not only
recognize and give effect to the fundamental principles
of arithmetic, geometry and trigonometry, but all neces-
sary inferences, logical consequences and accurate calcu-
lations based upon those principles they equally recog-
nize and adopt. The almanac, based upon mathematical
calculations has been held a part of the law of England.
As far back as 1702 a defendant was convicted under a
statute for embezzling yarn delivered to him to be woven.
It appeared on the face of the conviction that there was
no summons duly served upon the defendant, for he was
ordered to appear before the court on Tuesday, the 17th
of April, 1702, which was an impossible date, as the 17th
of April on that year was Friday. Granting a motion to
have the conviction quashed, the court held that, if a
conviction state that the defendant was summoned and
did by virtue thereof appear on Tuesday, the 17th of
April, and it appears by the almanac, which is a part of
the law of England, and of which the court is bound to
take judicial notice, that the 17th day of April was on
Friday, the conviction shall be quashed, for the time of
the summons being impossible, it is the same as if there
had been no summons. 15
It was also held that a writ of inquiry, executed on a
Sunday, was void, that the court was “bound to look
into the Almanac and take notice of it, though not spe-
cially assigned as error,” for now, it is said in the same
14 Norton vs. Shelby County, 118 15 Queen vs. Dyer, 6 Mod. 41.
U. 425.
i90 ETHICAL BASIS OF jURlSPRUDENCE
case, “the calendar is looked upon as a part of the law
of the land.’ ’ 16
The American courts also judicially notice the rising
and the setting of the sun and moon and other
events based upon mathematical calculations. Reference
to the adjudicated cases is made in this connection for
the single purpose of illustrating the fact that that great
body of mathematical truth by means of which men fore-
cast with exact certainty the future movements of the
heavenly bodies and which at once enter into the every
day calculations and measurements of time and prices
and wages of the people in the petty details of their busi-
ness life, is an object of judicial knowledge in the light
of which courts must of necessity ascertain the amount
of damages they award, compute the interest they al-
low, ascertain the costs to be charged and determine the
amount of the ﬁnes they inﬂict, or civil judgments they
render. One Munshower having been tried for murder,
the Supreme Court of Maryland in a review of the case
made the following comments upon the point under con-
sideration: “It was conceded that it became material
and competent for the State to prove at what hour the
moon rose on the night of Saturday, the 9th of August,
1879, and for the purpose of proving this, the State of-
fered in evidence Gruber’s Almanac for the year 1879.
The prisoner objected to its admissibility, but the court
overruled the objection and allowed the almanac to be
offered for the purpose stated. To this ruling the pris-
oner excepted.
“This is all the exception states in regard to the al-
manac offered, and we must assume that it contained
tables giving the periods of the rising and the setting of
the sun and moon on each day of the year, such as are
usually found in such works. The prisoner did not pro-
pose to offer proof assailing or impeaching the accuracy
of the astronomical calculations upon which the tables
in the particular almanac in question were made, but his
_ counsel contend that the almanac was not the best evi-
16 Hoyle vs. Cornwallis, 1 Strange, 387.
THE ESSENTIAL NATURE OF LAW 191
dence, nor indeed any evidence as to when the moon rose
on that night. The argument is, that it was a mere cal-
culation made by some one long anterior to the happen-
ing of the event, that the event would occur at a certain
hour and minute; it was not evidence that the moon had
risen at a certain hour, but the statement of a conjecture
that it would do so. On the 2nd of January, 1880, when
this case was on trial, there were surely better and surer
means of proving when the moon did actually rise on the
9th of August, 1879, than by relying on the computation
of an almanac maker that it would or ought to rise at a
given time that night: how is the fact that it did rise at
a particular hour proved by tendering as evidence the
conjecture or calculation of some one that it would do so‘?
If Gruber’s almanac is evidence for this purpose, so
then are all the other various ones published, because
there is nothing in this one to make it more authentic
than the others, and thus a fact susceptible of exact
proof like any other event that has happened, may be
established by the unsworn conjecture of almanac com-
pilers. We do not propose to elaborate the question, nor
to rely upon the fact that the Statute of 24 Geo. 2, ch. 23,
is in force in this state. As has been well argued by the
Attorney-General in his brief, the precise periods at
which the sun and moon will rise or set at any particu-
lar period of twenty-four hours in the future is as abso-
lutely certain and just as capable of exact mathematical
ascertainment, as the occurrence of the day in which
such setting or rising will take place. Courts have re-
ceived as evidence weather reports, reports of the state
of the market, prices current, and life insurance tables
tending to show the probable duration of human life,
though these are records which are not capable of mathe-
matical demonstration, which cannot be tested by any
certain law, and which may or may not omit the record
of changes which have actually taken place. But an
almanac forecasts with exact certainty planetary move-
ments. We govern our daily life by reference to the
computations which they contain. No oral evidence or
192 ETHICAL BASIS OF IURISPRUDENCE
proof which we could gather as to the hours of the rise
ing or setting of the sun or moon could be as certain or
accurate as that which we may obtain from such a source.
Why then should not these computations which are, after
all, but parts of the ordinary computations of the calen-
dar, be admitted as evidence?” 1"
\Vhile reference in the above case is made to the ad-
mission of the almanac in evidence, strictly speaking no
evidence of facts which the court judicially notices is
required. Courts consult the book to inform themselves.
They likewise consult books upon the sciences generally
to ascertain the laws of chemistry, psychology, astron-
omy and many other branches of scientiﬁc learning.
The course of time and the fact that certain days of
the week fall'upon certain days of the month are equally
within the judicial knowledge of the court. It was said
by the judge in a comparatively recent decision that
“courts-will judicially take notice of the coincidence of
days of the week with days of the month, as what days
of the month fall upon Sunday. i‘ Matters of
which judicial notice is taken need not be stated in the
pleading. ’ ’ 18
The course of time and the regular or varying coinci-
dence of days of the week upon certain days of the
month, the hours of the day when the sun and moon rise
and set, are often important facts frequently before the
courts and for the purpose of satisfying himself upon
these points, as we have before observed, the judge may
refer to the almanac or any other book of reference for
that purpose. 19
The courts require no proof of things which must
have happened according‘ to the ordinary course of na-
ture. The phenomenal order of nature is judicially no-
ticed. Lew spectat naturae ordinem. As we have al-
ready observed in the foregoing pages, by the laws of
nature in the secondary sense of the term is meant the
1'7 Munshower vs. The State, 55 4 Md. 409; Wilson vs. Van Leer,
Md. 11. 127 Pa. St. 378; Donaldson vs.
18 Clough vs. Goggins, 40 la. 325. Mississippi, etc., 18 la. 291.
19 Sasscer vs. The Farmers Bank,
THE ESSENTIAL NATURE OF LAW 193
established order of antecedent and consequent that pre-
vails throughout the ﬁnite universe. Whether in the
realm of matter or of ﬁnite spirit, in addition to the
primary truths of reason that direct the forces of the
ﬁnite universe, there are certain factual sequences, cer-
tain established and orderly methods of operation in
both matter and spirit to which the term law has been
applied. That the planets revolve around the sun in
elliptical orbits, that the earth rotates upon its axis, that
bodies of matter attract one another directly as the mass
and inversely as the square of the distance between them,
that day follows night and summer follows winter, that
the tides regularly ebb and ﬂow, that the rivers run to
the sea, that water seeks its level, that grass grows from
grass seed and corn from corn and rice from rice, that
heat radiates in straight lines, that the velocity of sound
varies inversely as the square root of the density of the
substance, that electricity follows the line of least re-
sistance, that animals have the instinct of self-preserva-
tion; and that personal beings, living under both an in-
tellectual and moral order, are morally responsible for
their voluntary conduct, and that the feelings of self-
respect naturally follow right action and that self-re-
proach follows low and vicious choices and unlawful
behaviour,—-this whole phenomenal order is judicially
noticed. Without legal proof the courts render their
decisions in the light of these notorious facts. The court
no more requires proof of these so-called laws of nature
than it does of the constitution and the general statutes
of the state under which the court is operating. These
common operations or laws of nature are frequently
recognized and given effect in the trial of actual causes.
In a certain case where the defendant had been accused
of burglary and the question arose as to when the sun
set upon that particular day the court said, “the time
of the rising and the setting of the sun on any given day
belongs to a class of facts like the succession of the
seasons, changes of the moon, days of the month and
week, etc., of which courts will take judicial notice.”20
20 State vs. Morris, 47 Conn. 179.
194 ETHICAL BASIS OF [URISPRUDENCE
The natural law of the tides, their ebb and ﬂow, is one of
the generalized facts, which the court judicially notices.
Where a libel was ﬁled against the steamboat Planter,
the court in trying the case felt authorized to judicially
notice the situation of New Orleans for the purpose of
determining whether the tide ebbs and flows as high up
the river as that place; and was satisﬁed that, although
the current of the Mississippi at New Orleans- may be
so strong as not to be turned backward by the tide, yet the
effect of the tide upon the current is so great as to occa-
sion a regular rise and fall of the water. 21 The court
takes notice that the bay of New York is within the ebb
and ﬂow of the tide, and it judicially notices the fact
that the tide did not ebb and flow within the range of a
voyage made by a certain ship upon the Missouri River.
The courts judicially notice the “course of the sea-
sons,” the law of maturing crops, or the “general
course of agriculture,”22 the “operation and effect of
natural forces,,,23 scientiﬁc principles, as the magnetic
variation from the true meridian, 24 concerning which
the court says it must take judicial notice as truly as it
would of the law of gravitation, the descent of waters, the
diurnal revolution of the earth, or the change of seasons.
And the phenomena of vegetable and animal life gener-
ally are judicially noticed, so far, at least, as such phe-
nomena are commonly known, as for instance, the regu-
lar period of gestation, as illustrated in the case where
the court will take judicial cognizance of the fact that
a child, born fourteen days after the ﬁrst meeting of the
mother and reputed father, could not possibly be his
child. 25
LAWS on THE HUMAN MIND.
The courts also judicially notice the constitution and
laws of the human mind as well as the constitution and
laws of the material world and of impersonal beings. That
21Peyroux vs. Howard, and Va- 23 Ware vs. Chew, 43 N. J. Eq.
rion, 7 Pet. 324. 493.
22 Ross vs. Boswell, 60 Ind. 235; 24 Bryan vs. Beckley, 16 Ky. 91.
Floyd et al vs. Ricks, 14 Ark. 286. 25 King vs. Luffe, 8 East. 202.
THE ESSENTIAL NATURE OF LAW 195
the human mind possesses the constitutional powers of
thinking, feeling and willing, requires no proof; nor does
the fact that the intellectual power of mind is regulated
by certain laws of thought, that there are certain uni-
form sequences of mental phenomena, as that self-ap-
proval follows a right choice and self-condemnation a
wrong one, that the feeling of anger is aroused by unpro-
voked insult and abuse, that the will is free to choose
obedience or disobedience to lawqand that a feeling of
moral responsibility attaches to such choices, and further
that there is in man an instinctive impulse which
prompts him to self-defense when either his life is threat-
ened or his safety is jeopardized. That laughter follows
joy, and mourning grief, that fear follows threatened
destruction, and pain physical torture need not be proved
in any court of law. All these phenomena are uniform
and, with many others, constitute the phenomenal order
of the mental and moral world, and, being obvious
to the common apprehension of mankind, are a “part
of the law of the land,” in the sense that they are recog-
nized by the courts, and given effect without proof, the
same as the constitution and general laws of the state
are judicially noticed without evidence of their existence.
When it is said that the courts notice the “order of na-
ture,” (lea: spectat ordinem naturae), the meaning is that
they notice the material order, the intellectual order, the
emotional order, the moral order, and the constitutional
instincts of animal life. All these systems of order are
pre-supposed, judicially noticed, and, when occasion de-
mands, they are given effect in the administration of
human law.
The intellectual and moral order of the human mind
is recognized by the courts in all those cases where they
indulge the presumption of sanity. It is a presumption
of human law that all men are of sound mind—that the
phenomenal order of the intellect, feelings and voluntary
power are normal or undisturbed. In order to overcome
this presumption of law, and shield a defendant from
legal responsibility, the burden is on him to prove, to the
196 ETHICAL BASIS OF IURISPRUDENCE
satisfaction of the jury, by a preponderance of the whole
evidence in the case, that at the time of committing a
homicide, for instance, he was not of sound mind. “The
law infers from the fact that a prisoner is a human
being, the further fact that he is a reasonable
being, that is, that he is of sane mind, ‘f and
proof of the former fact is sufﬁcient evidence of the lat-
ter, until the latter is disproved by a preponderance of
evidence.” 26
The further fact that human choices are ever attended
by motives and that motives inﬂuence the will’s determi-
nation, is a mental law requiring constant judicial recog-
nition. As nearly as possible in the application of legal
principles to the conﬂicting interests of mankind, the
judge and jurors should be free from bias. The will
should be uninﬂuenced by affections or antipathies. The
will “should hang in equal poise,” so far as that may
be possible: consequently we ﬁnd abundant rules of court
or legislation intended to secure this unbiased condition
of mind as respects courts and jurors. A juror will be
deemed disqualiﬁed from serving as such when it ap-
pears that he is a near relative of one of the parties, or
“is under the power of either party or in his employ-
ment,” or if he is to receive “part of a ﬁne upon convic-
tion,” or if there are “actions pending between the jury-
man and one of the parties,” which imply hostility or
if the “juror have a pecuniary interest in the result of
the cause.” Perfect mental equilibrium it may be im-
possible to ﬁnd in fact, but to guard against bias upon
the part of those who hold the property interests, the
liberties, and the lives of their fellowmen in their keeping
is the constant effort of the courts. The courts judicially
notice the mental constitution of man, and a judge or
juror biased against either party in a cause, is not prop-
erly allowed to sit upon the bench or in the jury box.
So the laws of the human mind, no less than the laws
of physical nature, are judicially noticed by the court.
That men act from motives, that there must be an intent
26 Commonwealth vs. Eddy, 7 Gray, 583.
THE ESSENTIAL NATURE OF LAW 197
in the committal of crime, that men possess conscience
and know the difference between right and wrong are
facts judicially noticed; in short, the courts take judicial
notice of the constitution and laws of the human mind,
just as truly as they recognize the laws and constitution
of the material universe. Having occasion to discuss this
point, Judge Christiancy said: “The laws of nature and
of the human mind, at least such of them as are obvious
to the common apprehension of mankind, as well as the
more obvious dictates of common sense and principles of
human action—which are assumed as truths in any pro-
cess of reasoning by the mass of sane minds—constitute
a part of the laws of the land, and may and must be as-
sumed‘by the court without being found by the jury; in-
deed the ﬁnding of a jury which should clearly disregard
them, should itself be disregarded by the court. In other
words the courts are bound judicially to know and apply
such laws and principles as part of the law of the land.’ ’ 2"
The courts judicially recognize the laws of memory.
“Constant repetition,” is said to be the “ﬁrst law of
memory,” so that a person who cannot read or write,
and must therefore carry the details of his business af-
fairs in his mind, recalling them from time to time, in-
stead of consulting a book where they may have been
recorded, has a more retentive and ready memory than
those persons who commit to paper the record of their
business transactions. In considering this point, the
court in a recent case has said: “We take judicial notice
of the fact that persons who are engaged in business and
cannot read and write have their faculty of memory
more acutely educated for the reason that they are com—
pelled to depend upon their memory, and cannot rely
upon written memoranda. The fact that this woman
could not read or write would, according to common ex-
perience, tend to create in her a more accurate and reten-
tive memory because it would be upon that faculty that
she must rely in the conduct of her affairs.” 28
27 L. S. & M. S. vs. Miller, 25 28 People vs. Martin, 32 Y.
Mich. 291. Sup. 941.
198 ETHICAL BASIS OF jURlSPRUDENCE
Such are a few of the judicial utterances which claim
that the eternal principles of reason, the generalized
facts and orderly sequences of mind and matter, are a
part of the law to which courts give effect in their admin-
istration of justice.
SUBJECTIVE J USTICE.
The distinction of subjective and objective justice is
important for the reason that the science of jurispru-
dence deals primarily and most exclusively with ob-
jective justice. Human law deals with overt acts, with
outward conduct, not with inward states of mind. A may
choose to murder B, and have his will fully set to that
purpose, but so long as he does no outward act whatever,
human law takes no jurisdiction over his immoral mental
state or purpose. Simply because A hates B, is no ground
for equity to interfere and issue an injunction restraining
him from hating his neighbor. ‘We are commanded to
love our neighbor, but a court of law would not issue a
writ of mandamus to compel it. In other words human
courts do not concern themselves with mental states un-
connected with any outward conduct. As a general rule
it may be said that courts concern themselves only with
outward actions, not with inward thoughts and purposes
—however immoral they may be. And yet, we must no-
tice the fact, that, as moral principles are so inseparable
from outward actions, sometimes the inward moral pur-
pose or motive prompting an outward act, will determine
the legality or illegality of that act.
For example, there is a certain group of cases where-
in the courts regard an act legally right or legally wrong
according as the motive prompting the act was morally
right or morally wrong. The ethical character of the
motive in such cases determines the legal character of
the conduct. If the motive of the defendant was morally
right, then no cause of action exists; but if morally wrong,
then his conduct is held to be actionable. In this class of
cases, if the defendant was actuated by the immoral and
unworthy motive or purpose simply to injure and harm
THE ESSENTIAL NATURE OF LAW 199
the plaintiff, his injurious and harmful conduct will be
regarded and treated by the courts as unlawful, and such
damages as plaintiff may have suffered from such con-
duct would be awarded him. If, for example, the de-
fendant should place poison in his barn for the purpose
of killing rats that were infesting his premises, and his
neighbor’s dog, while trespassing there, should eat the
poison and die as a consequence, the defendant would
have done no moral wrong, and his conduct would be
legal and so treated by the courts; but, if, on the other
hand, he had placed the poison there for the sole pur-
pose and with the intent to kill his neighbor’s dog, and
thereby injure the plaintiff, and succeeded in so doing,
then his conduct being immoral would also be unlawful,
and he would be legally liable in damages.
Again it has been held that where an insurance com-
pany issued a policy upon the life of A in favor of B, and
X killed A, so that the company was compelled to pay the
amount of the policy to B, no action for damages by the
insurance company would lie against X, but on the other
hand, if X had killed A, for the purpose of inflicting this
injury upon the company, then, and in that case, an ac-
tion by the insurance company against X for damages
would lie. Here the purpose, or motive of the wrong
doer, being immoral, makes the action of the wrong doer
unlawful.
So it was held in England29 that the plaintiff, an inno-
cent man, who had been subjected to a criminal prosecu-
tion for theft, had no action for damages against the de-
fendant for publishing all the criminal proceedings in his
newspaper because he acted from a sense of public duty
to bring the supposed criminal to justice. But if, on the
other hand, the defendant had published the proceedings
for the purpose, and from the motive to inﬂict injury
and disgrace upon the plaintiff, then an action for dam-
ages would lie against the wrong doer. The moral char-
acter of the plaintiff’s motive would determine the legal
character of his action.
29 Stevens vs. Sampson 5 Ex. Div. 53.
200 ETHICAL BASIS OF ,IURISPRUDENCE
Again in Illinois30 an insurance company contracted
with a manufacturer to indemnify him against liability
for the claims of employees, for injury sustained while
in his employment. The plaintiff, one of the employees,
got injured and the insurance company recognizing
its liability, disputed the amount of his claim, and
threatened to have him discharged by the manufacturer
unless he would take a lesser sum which the company
offered in full satisfaction of his claim. The plaintiff
refused to yield to this demand, and the insurance com-
pany induced the manufacturer to discharge the injured
employee, and threatened to cancel the policy unless he
was discharged. The plaintiff brought an action for
damages against the insurance company for injury sus-
tained on account of this discharge, and in concluding
its opinion the court said:
“We therefore conclude, both upon reason and authori-
ty, that where a third party induces an employer to dis-
charge his employee who is working under a contract
terminable at will, but under which the employment would
have continued indeﬁnitely, in accordance with the de-
sire of the employer, except for such interference, and
where the only motive moving the third party is a desire
to injure the employee and to beneﬁt himself at the ex—
pense of the employee by compelling the latter to sur-
render an alleged cause of ‘action, for the satisfaction of
which, in whole or in part,‘ such third party is liable, and
where such right of action does not depend upon and is
not connected with the continuance of such employment, a
cause of action arises in favor of the employee against
the third party.”
Again, the plaintiff was a hotel keeper, and he was also
the assessor of the town, and in the discharge of his du-
ties, as such assessor, he incurred the ill-will of certain
citizens who claimed that he had placed too high a valua-
tion upon their property. To retaliate and get even with
him, these persons induced certain commercial travelers
not to patronize plaintiff ’s hotel, whereby his business
30 London Co. vs. Horn, 206 Ill. 493.
THE ESSENTIAL NATURE OF LAW 201
was ruined. Plaintiff sued the offenders for damages
and recovered, the court ﬁnding that the defendants acted
from an immoral motive, their actions being wilful and
malicious.31
We ﬁnd another class of cases illustrating the same
fact, that the ethical quality of a man’s motive may de-
termine the legal character of his conduct. In modern
days strikes are sometimes declared. And it sometimes
happens where certain employees do not like some partic-
ular one of their co-employees, they threaten to strike,
unless the employer will discharge their unwelcome co-
laborer. Should the employees insist upon the discharge
of one of their number because he has a loathsome disease
or other such cause, making him dangerous to them, they
would be justiﬁed in their action, but on the other hand,
if they induce the employer to discharge him because of
spite and ill-will toward him, and use their inﬂuence to
compass his discharge in order to injure him, then their
conduct is actionable. An illustrative case to this effect
is found in the King’s Bench, where in the language of
the Lord Justice it is said:
“A combination of two or more persons, without justi-
ﬁcation, to injure any workman by inducing employers not.
to employ him or continue to employ him, is, if it results
in damage to him, actionable. What is a justiﬁcation
must depend upon the circumstances of the particular
case.
“Even if a single individual who, by virtue of his po-
sition or inﬂuence, has power to carry out his design, sets
himself to the task of preventing, and succeeds in prevent-
ing, a man from obtaining or holding employment in his
calling, to his injury, by reason of threats to or special
inﬂuence upon the man’s employers, and the design was to
carry out some spite against the man, or had for its ob-
ject the compelling him to pay a debt, or any similar ob-
ject not justifying the acts against the man, then that
individual is liable to the man for the damage conse-
quently suffered.”32
31 Webb vs. Drake, 52 La. An. 290.
32 Giblan vs. Nat. Union, 2 K. B. 600 (1903).
202 ETHICAL BASIS OF jURlSPRUDENCE
Now, in all these cases the outward act of the defendant
was performed in order to injure the plaintiff, not to help
him, in order to harm him, not to serve him; in order to
lessen his neighbor’s welfare, not to promote it. He was
not loving his neighbor by helpful deeds, but he was hat-
ing his neighbor by harmful deeds, and such harmful
deeds, say the courts, shall be legally unlawful, because
they are morally unlawful. In other words, what the
human law, in this case, is, depends upon what the moral
law is. The moral law forbids such conduct prompted by
such a motive, so the human law shall forbid it. The
human law is therefore based upon the moral law by judi-
cial declaration.
Again, there is another group of cases where the courts
themselves feel called upon to read exceptions into a
statute where its strict enforcement would shock the
moral sense of mankind. There are two especially tragic
cases, where the violation of the moral law led the court
to declare exceptions to the clearest language of a human
statute.
A certain testator made his will, leaving small legacies
to two of his daughters, and the remainder of his estate
to his grandson, a lad 16 years of age. The boy being
aware of this provision in his grandfather’s will, and in
order to prevent his grandfather from revoking the pro-
vision, which he had manifested some intention to do, and
to obtain the speedy enjoyment and immediate possession
of his property, wilfully murdered his grandfather by
poisoning him. After the death of the testator the daugh-
ters, who were legatees, prayed the court to cancel and
annul the will so far as it bequeathed property to the
murderer, upon the ground that he was estopped to take
under the will by his own immoral conduct. That is, this
residuary legatee had violated the moral law, “thou shalt
not kill,” in order that he might obtain legal rights to
certain property, and in deciding the question as to
whether he could do so under the will, according to the
clear provisions of the law of the state, the court said:
“Where, therefore, a beneﬁciary under a will, in order
THE ESSENTIAL NATURE OF LAW 203
that he might prevent revocation of the provision in his
favor, and to obtain the speedy enjoyment and possession
of the property, wilfully murdered the testator, held that
such beneﬁciary, by reason of the crime committed by
him, was deprived of any interest in the estate left by his
victim, and so was not entitled to the property either as
donee under the will or as heir or next of kin; and that
an action was maintainable to cancel said provisions.
“All laws, as well as all contracts, may be controlled
in their operation and effect by these general funda-
mental maxims of the common law, viz: No one shall be
permitted to proﬁt by his own fraud, to take advantage
of his own wrong, to found any claim upon his own ini-
quity or to acquire property by his own crime.” 33
This decision is reached upon the ground that a thing
which is within the letter of a statute, is not within the
spirit and scope of the statute, unless it is within the in-
tention of the lawmakers; and the court says that it could
not have been the intention of the legislators to allow a
legatee to take property under the will of a testator
whom he had murdered.
Again, one Hunter had procured an insurance policy
upon the life of another person, payable by assignment
to himself, upon the death of the insured, and then killed
the insured in order to get the money under the policy.
In deciding this case, in an action to recover the money
from the insurance company, Justice Field for the Su-
preme Court of the United States, said:
“Independently of any proof of the motives of Hunter,
' in obtaining the policy, and even assuming that they were
just and proper, he forfeited all rights under it when,
to secure its immediate payment, he murdered the as-
sured. It would be a reproach to the jurisprudence of
the country if one could recover insurance money payable
on the death of a party whose life he had feloniously
taken. As well might he recover insurance money upon
a building that he had wilfully ﬁred.”
Under the civil law of Rome, evolved from the natural
33 Riggs vs. Palmer, 115 N. Y. 506.
204 ETHICAL BASIS OF IURISPRUDENCE
law of justice, by the juris-consults, philosophers and
statesmen of many generations, it was held, “That no
man could take property by inheritance or will from an
ancestor or benefactor whom he had murdered.” (Do-
mat, Part 2, Book 1, Title 1, §3.)
Many of the legal maxims suggested by these cases are
but brief statements of the moral law. “No one shall
proﬁt by his own wrong, or found any claim upon his own
iniquity, or acquire property by his own crime,” are rec—
ognized principles of the common law. They are the
announcement of the truth, that no man shall gain a legal
right to himself by violating the moral right of another.
In all cases where these maxims control the decision, it
may be said-that the moral law prevails when it comes in
conﬂict with the conventional rules of jurisprudence. In
other words, the courts give effect to the moral law in
these murder cases just cited. For why in fact is it that
the lad who killed his grandfather could not take property
under his will? The moral laws says, “Thou shalt not
kill.” The human law says, when the testator dies the
legacy shall go to the legatee. Now according to this
rule, if the testator dies a natural death title passes to
the boy, but if the boy kills the testator it shall not, be-
cause the court itself would read an exception into the
statute, making it accord with the demands of justice,
or, in other words, with therdemands of the moral law.
In these cases, the real law is the moral law; and the
courts, taking that as a real rule intended by the legisla-
ture, make the statute conform to it. They base the hu-
man law upon the moral by construction on the ground
that the law-maker intended to do so.
SUMMARY.
Beginning with the ﬁxed and changeless realities that
surround us on every side, such as the essential charac-
teristics of matter, and proceeding to that other large
body of fundamental realities, known as self-evident
truths, we have found that they are unchangeable,
imperative, and set immovable limits to the actions of
THE ESSENTIAL NATURE OF LAW 205
all physical, intellectual, moral, spiritual and social
forces. \Ve are all compelled to admit and recognize
their controlling inﬂuence, and to submit to their impera-
tive demands. Being regulative of power, in that they
determine what power can and what it cannot accom-
plish, and being strictly fundamental, they are not only
law in its primary and deepest signiﬁcation, but they are
also authoritative and reign supreme within and through-
out the realms of both mind and matter.
Proceeding further we observed, in both personal
and impersonal nature, large numbers of generalized
facts and orderly sequences to which the term law is
usually applied. These facts and sequences compose the
phenomenal order in the physical and mental realms.
They express the orderly on-going of ﬁnite nature.
They are contingent rather than necessary truths, and
they are law in a secondary sense rather than in the
primary sense of that term. Yet relative to man they
are to be regarded and reckoned with in determining
what is duty and in the pursuit of his purposes in life.
In this they are regulative of his action, and being ﬁxed
and changeless, so far as the power of man is concerned,
they are law in its primary sense in so far as they de-
termine what he can and what he cannot accomplish.
We also found a phenomenal order prevailing in hu-
man society, ﬁnding its expression in the so-called laws
of sociology; and especially those wrought out and form-
ulated in the science of political economy.
The moral law of love or service was emphasized as
the all-comprehensive basis of jurisprudence; and the
true meaning of rights, liberty and justice was consid-
ered as essentially involved in the science of human law
and civil government. But while jurisprudence rests pri-
marily upon the moral law, it nevertheless recognizes,
and as we have seen from abundant authorities, courts
judicially notice and give effect to the universal laws of
reason and the phenomenal laws of mind and matter as
they become generally known and recognized. Some
206 SUMMARY
6‘
judges even declare these laws of nature to be a part
of the law of ‘the land.”
In the co'ns‘deration of these fundamental realities and
the laws of ﬁnite nature amid which we live, we ﬁnd law
in its essential nature to consist in any truth or reality
regulative of power, and we have found jurisprudence
to chiefly rest upon the all-comprehensive moral law.
CHAPTER IX.
HUMAN LAW.
Human law, in its broadest signiﬁcation, embraces all
the rules of action which human beings adopt or enact
for the regulation of their conduct. As in the realm of
nature the word “law” is applied to the truths of reason,
to the general properties of matter, and to the gener-
alized facts and orderly sequences of both mind and
material things, so in the sphere of human activity the
term “law” is applied indiscriminately to almost every
rule of human action whether regulative of the conduct
of nations, the conduct of the individual citizens of a
state, the conduct of persons associated in other than
legal relations,—such as the members of literary clubs,
political leagues, college fraternities and other similar
voluntary associations; and the term is applied even to
those rules of etiquette and fashion which depend en-
tirely for their enforcement upon the power of public
opinion; and hence we speak of the laws of nations, the
laws of the state, the laws of a religious or political con-
vention, the laws of fashion, and even the laws of whist,
of chess, of football, and of the other games of chance and
skill.
It is out of this confusion, arising from such indis-
criminate use of the term “law,” that jurists have been
endeavoring, especially since the days of Austin, to bring
order and system by assigning to the various rules of ac-
tion some distinguishing term, such as “positive law,”
to those rules of conduct which are enforced by judicial
authority, “international morality” to those rules regu-
lating the conduct of one state or nation toward another;
“imperfect laws,” or “laws of imperfect obligation,”
as those which are without a sanction, and hence not en-
forcible by the courts of the land, “customary laws,”
being such as had their origin in the customs of society
208 HUMAN LA WS
and became binding by subsequent judicial enforcement,
“Divine laws,” being these commands given by God to
his human creatures, and so on throughout the entire
list of those rules or precepts which are observed by ra-
tional beings as regulative of their external behaviour.
But no jurist has, as yet, been successful in classifying
human laws so perfectly, and naming them so appro-
priately, that succeeding writers have felt disposed to
adopt his classiﬁcation and nomenclature as ﬁnal, or even
as reasonably satisfactory in all their particulars. The
subject of human law, however, is not peculiar in this
respect: the same is true of the physical and mental sci-
ences; and so long as our knowledge of mental and phy-
sical phenomena continues to expand, no ﬁnality of clas-
siﬁcation or perfection of nomenclature can be expected.
As human law, in its broadest possible signiﬁcation,
embraces all the rules of action adopted or enacted by
human beings for the regulation of their conduct, it, of
course, includes those rules adopted for the discipline or
improvement of their mental powers, as well as those
adopted or enacted for the regulation of their external
behaviour.
In the cultivation and discipline of his mind, the in-
dividual adopts and applies various rules calculated to
strengthen and quicken its several moral, religious and
intellectual powers. In his Meditations, Marcus Au-
relius records his rule for the cultivation of virtue,
“When thou wishest to delight thyself, think of the vir-
tues of those who live with thee; for instance, the ac—
tivity of one, and the modesty of another, and the liber-
ality of another, and some other good quality of a fourth.
For nothing delights so much. as the examples of the
virtues, when they are exhibited in the morals of those
who live with us and present themselves in abundance
as far as possible. Wherefore we must keep them be-
fore us.” 34 In the writings of the Ephesians there was
the precept, “Constantly think of some one of the men
of former times who practiced virtue.” 35 and even the
34 Marcus Aurelius, 180, 279. 35 Epictetus, 426.
THE ESSENTIAL NATURE OF LAW 209
pagan Epictetus was so profoundly religious that he
prescribed the rule, “Think of God more frequently than
you breathe,” and the further moral precept, “WVhat
we ought not to do, we should not even think of doing.”
In accord with these rules is the injunction of St. Paul,
that, whatsoever things are true, honest, just, pure,
lovely or of good report, if there be any virtue and if
there be any praise, “think on these things.” If you
would cultivate virtue, concentrate attention upon the
good, and not upon the vile, is the precept of both pagan
and Christian philosophy. It is a simple rule, prescrib-
ing what should and what should not be an object of con-
templation.
While the feelings and emotions are not directly under
the control of the will, yet indirectly a person can modify
and discipline them, as when he declines to give expres-
sion to a passion, its excitability and the frequency of its
recurrence diminish. In the cultureof the feelings, the
rule, “Refuse to express a passion and it dies,” has
been found most effective. The rule simply prescribes
a uniform refusal under provocation to express the in-
flamed feelings, and it ﬁnds a terse expression in the
precept of Epictetus, “Check your passions that you
may not be punished by them.” And the rules for
mental discipline are also illustrated by that of Cicero
which required him at night to mentally recall in order
all the more important personal experiences and events
of the day, that his memory might thereby become more
ready and retentive. This rule simply ﬁxed a deﬁnite
and appropriate time when Cicero should comply with
the requirements of that natural law of mental repro-
duction, “Frequent repetition is the ﬁrst law of mem-
ory.” This is further illustrated by the rule imposed
by Agassiz upon his pupils, which required them to fasten
their attention exclusively and for a long period of time
upon a single object, that they might thereby observe the
greatest possible number of facts or details exhibited
by it, and that they might at the same time, and by the
same process cultivate the mind’s power of perception,
210 HUMAN LAWS
as upon that process, followed by comparison, abstrac-
tion, and generalization, depend those true and accurate
concepts, which embody those qualities common to an
entire class of objects. “Form accurate concepts,”
therefore, becomes a rule for the guidance of mental
energy.
Rules for the cultivation of the will have also been laid
down as “Choose along the line of greatest resistance,”
and “decide with promptness and act with energy in the
less important affairs of life,” which rules are calculated
to habituate the mind to promptness and vigor in the exer-
cise of its self-determining power.
While these and other similar rules for the regulation
of mental conduct do not fall under the popular concep-
tion of “law,” yet they contain the essential elements
of a law in its most fundamental signiﬁcation. While
they are not changeless, like the laws of nature, yet, while
they exist as actually regulating rules of action, they are
realities regulative of mental power, and they properly
fall under the head of “human law,” as above deﬁned.
It is true that they are self-imposed, capable of violation,
subject to exception, ‘modiﬁcation and repeal, but so are
all the laws which humanity has ever adopted or enacted
for the regulation of its conduct, whether that conduct
be individual, tribal, municipal, or international.
In turning our attention from those rules regulative
of mental conduct to those which are designed to control
the outward behavior of mankind, we notice ﬁrst those
which are individual. in their adoption and application.
There are countless rules designed to regulate the ex-
ternal conduct of human beings, ranging in the extent
of their inﬂuence and importance from the comparatively
insigniﬁcant rule of the individual as to his hour for re—
tiring up to the far-reaching and important rules regu-
lating the action of states in their international rela-
tions.
Individual Conduct—It is unnecessary to more than
call attention to the numerous rules adopted by individ-
uals for the regulation of that portion of their conduct
THE ESSENTIAL NATURE OF LAW 211
which is exclusively personal. The different occupations,
enterprises, and varying conditions of mankind make it
necessary for individuals to adopt rules as to the charac-
ter and extent of the physical exercise they may take and
the time and perhaps the place when and where they will
take it; rules ﬁxing the hours for retiring and arising,
and also ﬁxing the time when they will begin and discon-
tinue the labors of the day. Under this head of external
conduct may properly be placed those rules regulating
the personal attire and even the manners of the indi-
vidual. Like the rules pertaining to mental development
and culture, those relating to personal conduct are
changeable, subject to numerous exceptions, and often
they are of brief duration. But while they continue they
are regulative realities, and hence embody the elements
of a true law. In neither of these two classes of rules is
there any enforceable sanction for their violation, un-
less the rule has taken on a moral aspect. If, in any in-
stance, the rule is not followed by the individual, the cir-
cumstance preventing, its application practically estab-
lishes an exception; but if the rules adopted for either
the mental or physical behavior of the individual are ac-
tually calculated to aid in the perfection of his manhood,
then a moral tinge is given to them, and conscience ap-
plies its sanction in case of their violation.
From these, the least stable, endurable and authorita-
tive rules of individual conduct, we proceed to consider
those rules of social conduct which are clothed about with
a sanction, either applied by the power of public
opinion, or by the power of the persons establishing the
rules themselves.
Social Customs—There is a large body of rules opera-
tive in human society, which silently and imperceptibly
come into existence but exactly whence no one can tell,
yet when they once legislate themselves upon a commun-
ity, no tyrant was ever more exacting and cruel in his de-
mands.
Of this class of laws, Mr. Austin has given the follow-
212 HUMAN LAWS
ing account: “A few species of the laws which are set
by general opinion have gotten appropriate names. For
example, there are laws or rules imposed upon gentle~
men by opinions current amongst gentlemen. And these
are generally styled the rules of honor, or the laws or
law of honor. There are laws or rules imposed
upon people of fashion by opinions current in the fashion-
able world. And these are usually styled the laws set
by fashion.” “Now a law set or imposed by
general opinion is a law improperly so called. It is
styled a law or rule by an analogical extension of the
term. The fact denoted by the expression is the follow-
ing: Some indeterminate body or uncertain aggregate
of persons regards a kind of conduct with a favorable or
unfavorable opinion. In consequence of that sentiment,
or the sentiment associated with that opinion, it is likely
that they or some of them will be displeased with a party
who shall pursue or not pursue conduct of that kind.
And, in consequence of that displeasure, it is likely that
some party (that party being undetermined) will visit
the party provoking it with some evil or another. The
body by whose opinion the law is said to be set does not
command, either expressly or tacitly. For, since it is
not a body precisely determined or certain, it cannot as
a body, express or intimate a wish.” “It follows
from the foregoing reasons, that a so-called law set by
general opinion is not a lawz—is not armed with a sane-
tion; and does not impose a duty, in the proper accepta-
tion of the expression:—but is closely analogous to a
law, in the proper signiﬁcation of the term.”
The chief characteristic of these rules of action is the
indeterminate source whence they spring, and also the
fact that they generally have no speciﬁc sanction attend-
ing their violation. These rules have performed an im-
portant part in the peace, development and progress of
human society. Many of the legal rules now enforced
by courts of justice were once rules of this class, and were
then attended by no sanction, except the displeasure of
those persons affected by their non-observance, but as
THE ESSENTIAL NATURE OF LAW 213
they became more generally observed they ﬁnally as-
sumed the aspect of authoritative commands, and to rude-
ly disobey or ignore them became such an offense against
public sentiment that the courts regarded them as equiv~
alent to legal enactments and enforced them as Law.
There is, however, a great body of these rules new opera-
tive in human society which has never assumed suﬂicient
importance in the estimation of the courts to warrant
judicial enforcement, and to this body belong the so~
called rules of honor, etiquette, fashion and many others
which owe their origin to no known and conscious ac
tion of any determinate person or body of persons, and
for whose violation no legal redress is obtainable. In
certain parts of our country, and it is equally true in
some other countries, if a person under particular cir-
cumstances challenges another to ﬁght a duel, to decline
or ignore the challenge would be looked upon with public
disfavor as an act of cowardice, or indicative of a lack of
true manliness. The law of honor, or public opinion,
commands an acceptance of the challenge and an actual
encounter. The person who violates this law suffers in
the loss of public esteem, which to a sensitive person is
one of the severest penalties that could be inﬂicted upon
him.
There are also the rules of etiquette, which are ﬁxed
by the opinion and practice of the public, such as those
regulating the salutations exchanged between persons
meeting upon the street, in public conveyances and at
public gatherings generally; and the rules observed by
persons exchanging social calls, and others regulating
the hospitality extended to friends or to strangers, and
the customs observed at public dinners, social parties, re-
ceptions and balls, besides those numerous rules of con-
duct adopted by civilized people calculated to promote
the harmony, civility and pleasure of human intercourse.
These rules, adopted in social life, calculated to promote
decent behavior, politeness, and good manners, are among
the most important and inﬂuential laws operative in hu-
man society. Though not enforced by judicial decrees,
214 HUMAN LAWS
they are nevertheless enforced by public opinion and
humanity is unconsciously elevated and reﬁned by this
system of unauthoritative legislation.
Uniformity of conduct seems to be the tendency of
personal no less than of impersonal nature; while in the
latter necessity makes uniformity perfect, in the former
freedom makes non-conformity possible. The principle
of imitation, so deeply grounded in human nature, tends
toward and insures a large degree of uniformity of hu-
man action. This principle imbedded in man’s nature
not only results in uniform usages and rules of social
and uniform behavior in the various classes or communi-
ties of human beings; but it manifests itself quite as
perceptibly in the uniformity of dress which public opin-
ion most imperatively commands. A general uniformity
in the style of dress and of personal adornments is prev-
alent wherever humanity exists. “Fashion in the dis-
tant wilds of Africa tortures and harasses poor human-
ity as much as in the great prison of civilization.” 36
National costumes are as characteristic as national
systems of jurisprudence. Fashion ﬁxes the style of
dress within her jurisdiction as rigidly as the legislature
ﬁxes the rules for levying and collecting taxes within the
scope of its authority, and the changes in one of these
systems of law is quite as frequent as those in the other.
The style of hat, the cut of the dress or coat, and the form
of the shoe are not matters generally left to the choice of
the individual, but they are determined by the decree of
fashion, and compliance with that decree is enforced by
a relentless inﬂiction upon the offender of that peculiar
discomfort which one experiences when confronting the
chilly displeasure of the public, or when conscious of his
own noticeable singularity.
These rules regarding dress extend from the poorest
classes of society in some obscure province up to the
diplomatic circles and royal courts of sovereign states.
The rules of etiquette and of fashion prevalent in royal
circles form an interesting chapter in the history of any
36 Fowler, Fashion in Deformity, p. 26.
THE ESSENTIAL NA TURE OF LAW 215
civilized nation; and the persistency with which compli-
ance with these rules is demanded is forcefully illus-
trated by the unpleasant consequences attending the at-
tempt of Mr. Marcy, the Secretary of State under Presi-
dent Pierce, to have the representatives of the Republic
appear at foreign courts in the simple dress of an Ameri-
can citizen. When Jackson became president, the diplo-
matic costume “informally or ofﬁcially recommended,
was a blue coat, lined with white silk; straight standing
cape embroidered with gold; buttons plain, or if they can
be had, with the Artillerist’s eagle stamped upon them,
cuffs embroidered in the manner of the cape, white cassi-
mer breeches, gold knee-buckles, white silk stockings, and
gold or gilt shoe buckles. A three cornered chapeau bras,
a black cockade to which an eagle has been attached, a
sword, etc.” President Jackson recommended certain
changes whereby the dress became more conformable to
the simplicity of American institutions, but Mr. Marcy
undertook to introduce into royal courts abroad an ex-
ception to their antique costumes and rules by requesting
that the United States be represented there in the unos-
tentatious attire of an American citizen. This breach of
the unwritten law of royal custom was visited with mani-
fest displeasure by Foreign Royalty, and even in Eng-
land the public press denounced the innovation as due
to General Pierce’s republican ill-manners and to Ameri-
can puppyism.”
These rules of etiquette and fashion, so exacting in
their demands, are regulative of human conduct, leading
to uniformity of external action and similarity of per-
sonal attire. Indeed they have the essential elements of a
law in its primary signiﬁcance. They are realities, ﬁxed
for the time being, and regulative of human power, in that
they determine what man may and what he may not safe-
ly do. He is at liberty to obey and meets no opposition
in obeying, but he is not at liberty to disobey them with-
out the opposing power of public sentiment.
Conventional Rules—In addition to the foregoing rules
regulative of personal and social conduct, there are cer-
216 HUMAN LAWS
tain others originating with some determinate person or
body of persons, and which, in addition to the sanction
of public displeasure, have other sanctions enforceable
by other than judicial authority. Belonging to this class
are the rules established for the government of the fam-
ily, for the government of tribes and clans, for the gov-
ernment of schools, universities, churches, literary so-
cieties, political, religious and other similar clubs, leagues,
or voluntary associations, and even the established rules
by which are played the games of chance and skill.
In these and many other similar instances, the rules
originate with some particular and determinate person
or persons, as with the parents in case of family gov-
ernment, with the chief or council in case of tribal gov-
ernment, and with the teacher or some governing board
in the case of schools and churches. In all the instances
of this class the regulative principles or rules spring from
a deﬁnite source, and besides that they usually have some
deﬁnite sanction attending thir violation, as that which
parents and teachers may inﬂict; expulsion from member-
ship of him who violates the rules of any club, league or
other association, and the forfeits incident to the one
who violates rules of the various games of chance. A
ﬁne of a few pennies is often inﬂicted by‘ its rules upon
him who neglects to return a book to a public library.
This class of regulative principles, springing from non-
legal sources, is one of vast importance in the progress
and development of human society. Illustrations of this
class of rules are so numerous and easily called to mind
that a further enumeration of them is not necessary.
In no instance is the sanction attending their violation
enforced by the courts of justice. If it were, then the rule
itself, by the very act of judicial enforcement, would be;
transformed into a municipal or positive law. By the
act of judicial enforcement it would be elevated from the
great class of conventional rules of personal conduct and
placed among the positive rules of Jurisprudence.
In these rules also are discovered the prime essentials
of law in its primary meaning. They are realities ﬁxed
THE ESSENTIAL NATURE OF LAW 217
and established, though subject to change, violation, and
even repeal, but during their existence they regulate
man’s power in the sense that they determine what he
ought or ought not to do.
Had all these rules of action hereinbefore enumerated
and adopted by man for the regulation of his conduct
been denominated “rules” instead of “laws,” and had
the distinction been always observed by writers upon
jurisprudence, clearness of thought would have been
greatly subserved. But as the words “rules,” “princi-
ples,” and “laws” have been used indiscriminately by
writers and speakers upon the subject, it has best sub-
served my purpose to regard the word “law” as generic,
with the following species, “rules regulative of mental
conduct,” “rules regulative of external individual con-
duct,” “social customs,” “conventional rules” and
“legal rules.” Having considered the others, we will
now consider the remaining species, “legal rules,” or
law in its legal sense.
LEGAL RULES.
Jurisprudence is the science of positive law, and posi-
tive law embraces all the rules of external human con-
duct enforcible by state authority, whether through the
agency of the courts of justice, the military force, or
other agency directed by the state. Whatever rule the
state rightfully enforces, be it a principle of the common
law, a statutory requirement, a constitutional provision,
or a rule agreed upon by the civilized nations of the
earth as regulative of their conduct toward one another,
that rule, principle, or provision may be properly ac-
corded a place under the general head of Positive Law.
All such rules and provisions are either enacted or adopt-
ed by man for the regulation of human conduct either
individual or national, and the state in one way or an-
other undertakes to maintain and enforce those rules, or
inﬂict punishment for their violation.
In its legal sense, “law” has been variously deﬁned.
Blackstone says that law, in its most general and com-
218 HUMAN LAWS
prehensive sense, “is that rule of action which is pre-
scribed by some superior and which the inferior is bound
to obey.” 3'7 And civil law he deﬁnes as “a rule of civil
conduct prescribed by the supreme power in a state, com-
manding what is right and prohibiting what is wrong.” 38
Not satisﬁed with this deﬁnition, Austin says that “Law,
in the literal and proper sense of the word, may be de-
ﬁned as a rule laid down for the guidance of an intelli-
gent being by an intelligent being having power over
him.” 39 And positive law, he continues, is one “set by
a sovereign person or a sovereign body of persons, to a
member or members of the independent political society
wherein that person or body is sovereign or supreme. In
other words, it is set by a monarch or sovereign member,
to a person or persons in a state of subjection to its auth-
or.”4° Neither of these deﬁnitions has satisﬁed the
critical demands of more recent jurists, and the result
has been that the numerous writers upon jurisprudence
have multiplied deﬁnitions of law in general and of civil,
or positive law, in particular, to an almost interminable
extent.41
It will be observed in the foregoing deﬁnitions, that
the source of law has been emphasized. In order to be
a law, the rule of action, according to Blackstone, must
be prescribed by some superior, and according to Austin
it must be set by some sovereign to operate upon a per-
son in a state of subjection. Educated under a monar-
chical form of government, it was natural for these
learned authors to regard the sovereign as the supreme
source of civil or positive law, as God was regarded as
the author of natural law. The analogy was striking and
plausible; and as the civil law had, as a matter of fact,
been “prescribed,” or “set,” as a general thing, by a
recognized sovereign to persons of admitted inferiority,
the theory that all rules of action, in order to be binding
37 Elk. Vol. 1 §38. 41 For a recent answer to the
38 Blk. Vol. 1, §44. question, “What is Law,” see “Law,
39 Austin, Vol. 1, §2. its Origin, Nature and Function,”
40Austin, Vol. 1, §189. 138. by Carter, p. 14. Andrews Am.
Law, 50 and 60.
THE ESSENTIAL NATURE OF LAW 219
upon inferiors, must emanate from some superior source,
was the one which most closely accorded with the facts
then known or existing.
But Austin, at least, recognized the insufﬁciency or in-
accuracy of his own deﬁnition, and he enumerated cer-
tain laws, properly included within the province of juris-
prudence, but which could not be regarded as the “com-
mands” of a superior addressed to an inferior person.
Among them were “the laws explaining the import of
existing positive laws, and the laws abrogating or repeal-
ing existing positive law.” ‘*2 Nor can those laws which
have arisen out of the customs of the people be properly
said to have been “prescribed” by some superior for the
control of an inferior, who is bound to obey, as must be
the case according to the deﬁnition of Blackstone. Con-
sequently modern jurists have not accepted the teach-
ings of either Blackstone, Austin, or others, who like
them have found the distinguishing characteristic of civil
law in the superiority of those who may have “pre-
scribed” or enacted it.
Among those who have justly criticised those deﬁni-
tions is Judge John F. Dillon, who says, “I cannot, after
much reﬂection, but regard this deﬁnition (Blackstone’s)
as both inadequate and incorrect. To make it cover the
actual body of the whole civil law of a state, the word
“prescribe” and the word “command,” here used, must
be given an elasticity of meaning or an artiﬁcial meaning,
not consonant with the general or appropriate use of
these words.
“Austin’s deﬁnition of law is equally defective, and
the same criticism applies. ‘Law,’ according to Austin,
is the aggregate of rules set by men as ‘politically super-
ior or sovereign to men as politically subject.’
“The deﬁnitions of Blackstone and Austin are apt and
accurate as applied to the great body of what we call or-
dained, or enacted law of a state. But there is a large
body of law to which the term ‘rules prescribed,’ or ‘com-
mands,’ or ‘rules set,’ by a sovereign do not apply,
42 Austin, Vol. 1, §37.
220 HUMAN LAWS
except by subjecting these words to a strain which alters
or greatly expands their proper meaning.” ‘*3
A further difﬁculty with these deﬁnitions is found in the
fact that they both exclude from the strict province of
jurisprudence “International Law.” The law of nations
comprises those rules of conduct which sovereign states
agree to observe in their intercourse and relations with
one another.
Certainly it cannot be properly said that these rules
are “prescribed” by a superior power which an inferior
power is bound to obey, nor can it be said that such rules
are set by a sovereign power to a person or persons in a
state of subjection. These rules of international con-
duct are adopted by free, equal and independent sover-
eign states—not politically superior or inferior; nor
are they “prescribed” by one state for the guidance
and control of another.
Austin recognized and acknowledged the fact that “In-
ternational Law,” under his deﬁnition, could not be re-
garded as law, in the strict sense of the term; hence he
designates those rules “International Morality.”
Of such narrow and evidently inaccurate deﬁnitions
of civil law, Sir Frederick Pollock has said, “If therefore,
we ﬁnd that our deﬁnition of law does not include the law
of nations, the proper conclusion is, not that there is no
such thing as a law of nations, and that we are to talk
pedantically of positive international morality, but that
our deﬁnition is inadequate.” ‘*4
It will also be observed that constitutional law, and
especially that of the United States, and others adopted
by the people of a country, cannot be regarded as law
within the restricted deﬁnitions of Blackstone and Aus-
tin, because such constitutions are not “prescribed” or
“set” by a superior power for the control of inferior
subjects. Such constitutions are adopted by the sover-
_eign people for their own control and guidance, quite as
much as for the control and guidance of those persons
43 Laws and Juris. of Eng. and 44 Oxford Lectures, page 19.
Am. Dillon, page 10.
THE ESSENTIAL NATURE OF LAW 221
who compose the government under such constitutions.
The people, the executives, the legislators, the judges, are
all equally amendable to constitutional provisions.
In this instance Austin was obliged, as in the case of
international law, to deny the digniﬁed name of law to
constitutional provisions, and to designate that body
of rules “constitutional morality.W15 By holding tena-
ciously to his primary deﬁnition Austin was obliged to
exclude from the realm of positive law that vast body of
constitutional provisions, which constitute so important
a part of modern jurisprudence. Had he written his work
in the last quarter of the nineteenth century, in all prob-
ability he would have based his system of general juris-
prudence upon a less restricted deﬁnition. To exclude
international and constitutional law from the realm of
positive jurisprudence at the present time would give
to any system of law a one-sided, defective and faulty
appearance.
It shows, however, that our deﬁnitions in the realm of
jurisprudence, as elsewhere in scientiﬁc investigation,
must be revised as new facts make their appearance.
Doubt has been expressed as to the possibility in our
present state of knowledge of framing a perfect deﬁni-
tion of “law.”
In his introductory chapter to International Law, Wil-
liam Edward Hall refers to this matter in the following
language: “the various ideas of law formed in different
societies and times, and the various groups of customs
which have been obeyed as law, have not yet been sufﬁ-
ciently compared and analyzed, and until an adequate
comparison and analysis have been made no deﬁnition
or description of law can be regarded as ﬁnal.”
Other and later writers than Blackstone and Austin,
recognizing the difﬁculty, not to say the absurdity of ex-
cluding the rules of international conduct from the pro-
vince of “law” in its legal sense, have so enlarged the
scope of their deﬁnitions as to properly include them.
Thus Prof. E. C. Clark of Cambridge University has de-
45 Austin, Vol. 1, §249.
222 HUMAN LAWS
ﬁned law in its ordinary sense to be “a rule of human
conduct sanctioned by human displeasure,” and concern-
ing the rules regulating the conduct of states he says,
“I maintain that the rules of international conduct, as
now actually administered by the general consent and ac-
tion of civilized nations, constitute a practical law to
which it is absurd to deny the name, because it is not
enacted or administered by a political superior.” 46
It will be observed that Prof. Clark does not regard
it essential that a rule of human conduct in order to be
a law must be the “command” of a superior to an in-
ferior, nor that it be enforced by a political superior;
but rather that the really essential elements in a law are,
First, “a rule of conduct observed among a class of hu-
man beings,” and Second, that the violation of that rule
awakens human disapproval, or as the author says, the
rule is “sanctioned by human displeasure.” Further
elaborating this conception of law he says, “Where there
is amongst any body of human beings, however associ-
ated with one another, a rule of conduct actually operat-
ing upon their wills by virtue of human displeasure,
whether that of the association at large, or some part of
the association, or of some other human being or beings,
people in general would not feel that they were employ-
ing any metaphor in calling that rule a law. Formula-
tion, if not imposition, by a political authority is more and
more the case with law as it approaches modern times,
but it has not been always the case, and it is not essential
to the true (that is the commonly received) signiﬁcation
of law in general.” 47
To the same effect Hall, in his introductory chapter to
International Law, without deﬁning law in general says,
“If the rules known under the name of International Law
are linked to the higher examples of typical positive law
by specimens of the laws of organized communities, im-
perfectly developed as regards their sanction, the weak-
ness and indeterminateness of the sanction of interna-
tional law cannot be an absolute bar to its admission as
46 Practical Iuris, page 187. 47 Practical ]uris., p. 134.
THE ESSENTIAL NATURE OF LAW 223
law; and if there is no such bar the facts that interna-
tional rules are cast in a legal mould, and are invariably
treated in practice as being legal in character necessarily
become the considerations of most importance in deter-
mining their true place. That they lie on the extreme
frontier of law is not to be denied, but on the whole it
would seem to be more correct as it is certainly more con-
venient, to treat them as being a branch of law than to in-
clude them within the sphere of morals.” 48
While Prof. Clark’s description of human law as “a
rule of human conduct sanctioned by human displeasure”
disregards both the determinateness of its origin and the
authority by which it is enforced, it seems nevertheless
to embrace the essential elements of law in a general
sense; yet, when we come to regard that species of human
law known as legal rules, we ﬁnd that they are character-
ized by the fact that they are enforcible in some manner
by the state, or that their violation awakens the resent—
ment of the state whose law is broken, or in case of
international law the resentment of the state at least
which is offended against. So the same learned writer
says that “the law of a state is the aggregate of rules
administered mediately or immediately by the state’s
supreme authority.” And of those rules regulative of
national conduct he says, “I maintain that the rules of
international conduct, as now actually administered by
the general consent and action of civilized nations, con-
stitute a practical law, to which it is absurd to deny the
name because it is not enacted by a political superior.” ‘*9
This author would therefore give the name “law” to
those rules of conduct, which obtain between the mem-
bers of the same state, and which are “administered by
the state’s supreme authority;” and also to those rules
which obtain between the states themselves, and are “ad-
ministered by the action of civilized nations.” And
there is no sufﬁcient reason why the name law should be
applied to the rules regulative of individual action, but
denied to those rules regulative of state action. In the
48 International Law, p. 17. 49 Practical Jurisprudence 172, 186.
224 HUMAN LAWS
former instance the rules regulate the conduct of indi-
vidual persons, and in the latter instance, they regulate
sovereign aggregations of persons.
It is true, to be sure, that in ancient days customs had
the force and effect of law before the courts actually de-
clared them to be law. It is contended by some that these
customs must have been law, otherwise the courts could
not have enforced them without performing the odious
act of judicial legislation. However this may be, it is
true that until a rule of action is recognized by a court,
as binding upon individuals, or recognized by civilized
nations as binding upon them, and its violations punish-
able by state authority in the usual methods adopted by
injured states, that rule is not properly regarded as a
part of the positive law. It may have the effect of law
upon the ‘action of persons, it may supply a sufﬁcient
motive to induce men to act in accordance with its de-
mands; but obedience is secured to its demands by moral
or prudential reasons alone, for until the state actually
undertakes to enforce it, or actually asserts its right or
purpose so to do, no one can be certain that any state en-
forcement will ever be undertaken. Such rules of action
or customs may be lawin the making; but the actual en-
forcement of such rules, the assertion of the right and
purpose by the state in some form to enforce them is
necessary to complete the process and convert the cus-
toms into a part of the positive law of the land.
Positive law then may be deﬁned as “a rule of external
human action, enforcible by state authority.” This deﬁ-
nition embraces municipal law, including the written and
unwritten constitutions of states; and it also embraces the
provisions of International Law for they are often en-
forced by authority of the state which has been offended
by its violation; and not infrequently enforced or given
effect by the established courts of the land. While in case
of municipal or civil law, there is an arbiter or court that
enforces the rights of the respective parties; in centre-
versies between states themselves there is no such arbiter
or Court, but the injured state asserts its rights and in-
THE ESSENTIAL NATURE OF LAW 225
ﬂicts such penalty as the conditions and circumstances
of the case may require or permit. In any event the
sanction, whatever it may be in any given instance, is
administered by state authority.
The true test of a “law” in the legal sense of the term,
is not found in the source whence it originates; but rather
in the character of the power which enforces it. The
power that enforces rather than the power that origin-
ates, determines what rules of human conduct shall be
elevated to the dignity of positive law. Some of those
rules may have their origin in the moral constitution of
man, such as those forbidding murder or theft. Some of
them may arise from the customs of the people such as
the laws regarding primogeniture and conveyance of
land by deed. Some of them may have been enacted by
the sovereign power of a state, and still others may have
been adopted by sovereign states as rules regula-
tive of their conduct toward one another; but what-
ever the origin of the rule, unless the state in one form
or another undertakes to enforce it, or claims the right
to do so, the rule cannot be regarded as a law in the legal
sense of the term. But when the state does rightfully
administer it, then such rule is a part of the great body
of positive law, and must be considered in discussing the
subject of jurisprudence.
When legal rules are violated, when law in its legal
sense is broken, some state, in its capacity as a state, has
occasion to act. It may exert its power through the exe-
cutive, as in case of removal of an ofﬁcial for malfeasance
in ofﬁce, or through the legislature as when a corporate
charter is repealed for an abuse of the franchise granted
thereunder, or through the courts in the ordinary methods
of inﬂicting ﬁnes, or awarding damages in cases where
the criminal or civil law has been violated, or still further
by a sovereign state in declaring war, or enacting retalia-
tory measures against another state that has improperly
or wrongfully violated some established provision of in-
ternational law. In every case, where a legal rule, a law
in its legal sense, is broken, the State in one method or
226 HUMAN LAWS
another may be called upon to set in operation its sover~
eign power. Such infraction of law furnishes a legal oc-
casion for the state to act. In accordance with these
facts, a law in its legal sense may be deﬁned as “a rule
of external human action, enforcible by state authority.”
As to whether the rules of International Law should be
regarded as belonging to Jurisprudence or to the realm
of morals, there has been much discussion. The follow--
ing quotations are instructive:
“Is it well at this stage of our English legal history
to refuse the name Law to the rules which regulate the
mutual dealings of States‘?
“To conﬁne the term Law to the commands of de-
terminate human authority, to commands enforced by de-
terminate sanctions, would doubtless facilitate the fram-
ing of a formally faultless Science of Jurisprudence. But,
on the other hand, to deny to any rule the name of Law,
on whatever ground, would be in the popular mind to de-
prive it of all that peculiar halo of respectful reverence
which has undoubtedly attached to the term in the pass-
ing of the ages. Either a rule governing human conduct
is law or it is not; if it is not law, it is not binding. So
argues the average man, ‘the man in the street,’ and it
is useless to talk to him of the obligation of morality,
more particularly if he be taught that the test of mor-
ality is utility. The popular mind, as Austin’s master,
Jeremy Benthem, saw, does not draw ﬁne distinctions.
Were it not for its deleterious practical consequences
we might be content to leave the great logical precisian
in the undisturbed enjoyment of his logic and his verbal
purism, but, if the choice must indeed be made, rather
let us seek out some other unoccupied route to a legal sci-
entiﬁc perfection than, by claiming as private a hitherto 1”
public high road, block the way of a progressive Interna-
tional Law. Rather let us have peace and peacefulness
without the blessings of neat terminology than precise
language and therewith the spirit of lawlessness. It is
well to have a formally faultless Science of J urisprud-
ence; it is better to have English-speaking peoples dis-
THE ESSENTIAL NATURE OF LAW 227
playing ready obedience to the dictates of Honour, Jus-
tice and proved Utility enshrined in the rules as the Law
of Nations or International Law.” 5°
To the same effect are the following words of Mr.
Hall:
“In what has been said up to this point the rules gov-
erning the conduct of states have been spoken of as legal
rules; it has, therefore, been implied either that they
constitute a body of true law, identical in its essential
characteristics with law regulating an organized political
community, or at least that, if not identical with such law,
they are so closely analogous to it as to be more prop-
erly described as law than by any other name. It is,
however, not uncommonly thought—in England at any
rate—that neither of these views is correct. The only
fundamental distinction, it is. said, which separates legal
from moral rules, is that the former are, and the latter
are not, commands given and enforced by a determinate
authority; both are general precepts relating to overt
acts, but in the one case a machinery exists for securing
obedience, in the other no more deﬁnite sanction can be
appealed to than disapprobation on the part of the com-
munity or of a section of it. Judged by this test, it is urged
the rules of International Law are nothing more than
counsels of morality, sanctioned by the public opinion of
states.
“That there is an element of truth in this criticism
must be frankly admitted. International Law does not
conform to the most perfect type of law. It is not wholly
identical in character with the greater part of the laws
of fully developed societies, and it is even destitute of the
mark which strike the eye most readily in them. But
it is now fully recognized that the proper scope of the
term law transcends the limits of the more perfect ex-
amples of law. To what extent it transcends them is not
equally certain. The various ideas of law formed in dif-
ferent societies and times, and the various groups of
customs which have been obeyed as law, have probably
50A history of the Law of Nations, T. A. Walker, Vol. 1, p. 18.
228 HUMAN LAWS ,
not yet been sufﬁciently compared and analyzed, and until
an adequate comparison and analysis have been made, no
deﬁnition or description of law can be regarded as ﬁnal.
During the continuance of this state of uncertainty as
to the proper limits of law, it is impossible, in dealing
with International Law to ignore the two broad facts,
that it is habitually treated as law, and that a certain part
of what is at present acknowledged to be law is indis-
tinguishable in character from it.” 51 To the same effect
are the words of Mr. Pollock: 52
“There is another branch of legal science of which I
have as yet said nothing, and which stands by itself; I
mean that which deals with existing or possible relations
not between citizens of the same State but between inde-
pendent States. International Law is a true branch of ju-
risprudence, notwithstanding all that may be said about
its want of sovereign power and a tribunal. You may de-
ﬁne it as ‘positive international morality’ not having the
nature of true law, but if you do, the facts are against
you. For what are the facts?
‘ ‘1. The doctrines of International Law are founded on
legal not simply on ethical ideas. They are not merely prev-
alent opinions as to what is morally right and proper, but
something as closely analogous to civil laws as the nature
of the case will admit. They purport to be rules of strict
justice, not counsels of perfection.
“2. Since they assumed a coherent shape they have
been the special study of men of law, and have been dis-
cussed by the methods appropriate to jurisprudence, and
not those of moral philosophy.
“3. There is also a practical test, and a conclusive one.
If international law were only a kind of morality, the
framers of State papers concerning foreign policy would
throw all their strength on moral argument. But as a
matter of fact this is not what they do. They appeal not
to the general feeling of moral rightness, but to preced- ,
ents, to treaties, and to opinions of specialists. They as- ''
sume the existence among statesmen and publicists of
51 W. E. Hall, International Law, page 14.
52 Pollock Sir F., Oxford Lect., 18.
THE ESSENTIAL NATURE OF LAW 229
a sense of legal as distinguished from moral obligation
in the affairs of nations.
“4. Further, there is actually an international moral-
ity distinct from and compatible with international law in
the usual sense. As a citizen among citizens, so a nation
among nations may do things which are discourteous,
high-handed, savouring of sharp practice, or otherwise
invidious and disliked, and yet within its admitted right
and giving no formal ground of complaint. There is a
margin of discretionary behaviour which is the province
not of claims and despatches but of friendly representa-
tives and ‘good offices.’ ” 53
It is safe to say that in the opinion of most modern
jurists those rules of conduct which regulate the inter-
course of civilized nations should be regarded as law in
the legal sense of that term. Though there is no separ-
ate and distinct court to enforce those rules in their ap-
plication to an offending individual nation, yet, when
violated the offended state through its established gov-
ernment seeks such redress as is generally recognized
and sanctioned by civilized nations. These rules of con-
duct are recognized, maintained and enforced by state
authority. If war is declared, or retaliatory legislation
enacted, or diplomatic relations discontinued, or any other
customary redress sought, it is through the authority of
the state that all such sanctions are applied. And any
rule of conduct intended to regulate the intercourse of
individuals, states, or civilized nations, whose violation
is recognized and dealt with by state authority, is a law
in its true and legal sense.
53 Oxford Lectures, etc., Pollock, p. 18.
CHAPTER X.
DIVINE LAW.
As to what constitutes “Divine Law” there has been
a great variety of opinions. In the works of James ‘Wil-
son the author says: “The law of Nature, and the law
of Revelation are both Divine; they ﬁow, though in dif-
ferent channels, from the same source. It is indeed pre-
posterous to separate them from each other.” 53
From our foregoing analysis we have observed that
“law” in its primary sense consists in the fundamental
truths of reason, and that these truths and principles are
eternal in the Divine Mind. Being thus constituent ele-
ments of the Eternal and Divine Reason, they may,
with the strictest propriety be designated ‘ ‘Divine Law.”
But, as a matter of fact, we ﬁnd them operative through-
out the entire realm of ﬁnite nature constituting both
laws of things, and laws of thought, and therefore, if we
name them from their original source they may be pro-
nounced Divine; while if we name them from the realms
wherein we ﬁnd them operative, they may properly be
called “Natural”; and we have considered them in the
foregoing pages as “Natural Law.” And it may also be
said that the generalized facts and orderly sequences.
which we have observed both in the realms of matter
and of ﬁnite mind are established through the Divine In-
telligence and Power; and hence might be regarded for
that reason as Divine. But here, too, if we consider prin-
cipally the realms wherein these generalized facts and
orderly sequences appear, we should regard them as
Natural Law, being found operative in the realm of ﬁnite
nature. Hence we may consider, with reference to their
sources, all these laws both primary and secondary, as
Divine; and with equal propriety we may say, with ref-
erence to the spheres wherein we ﬁnd them operative that
53 Wilson’s Works, Vol. 1, p. 106.
THE ESSENTIAL NATURE OF LAW 231
they are Natural. Thus it becomes largely a matter of
choice as to whether we shall declare them to be Divine or
Natural. In either event they are of God.
Finally, the laws, “to be found only in the holy scrip-
tures,” or the “laws of revelation,” to employ Black-
stone’s words again, are generally called divine. So far
as they are the re—announcement of natural law they may
be called either divine or natural, for reasons already
mentioned; but if the laws of the Hebrews generally, re-
corded in the Bible, are to be called divine laws because
they are conceived as speciﬁcally formulated, written out
and given to Moses or other Hebrew leaders by the Di-
vine Creator, in a manner altogether peculiar, it is more
than questionable whether the word divine should be ap-
plied to them. As an example of some of the laws in the
scriptures, we have the following: “Ye shall not eat
anything that diest of itself; thou mayest give it unto
the sojourner that is within thy gates, that he may eat
it, or thou mayest sell it to a foreigner.” This law sounds
very human. In fact it sounds inhuman. The most can-
did view possible for us to take of it is that it is of hu-
, man origin, like the code of Hammurabi; the codes of
Lycurgus, of Solon, and the ancient Romans. To call
such a law divine in the sense that God originated it and
imposed it upon the people would be to shock our faith
in God’s impartial love.
The view is coming to prevail that the laws of the an-
cient Hebrews as found recorded in the Holy Scriptures,
came into existence very much in the same manner as
the laws of the Assyrians, the Babylonians, the Egyp-
tians, and all the other peoples of the earth, ancient and
modern, and came to their end also just as other human
laws have become extinct or inoperative.
But it is asked whether the law of love to God and to
our neighbor is not peculiarly a divine law, and hence can-
not be regarded as natural. We have seen that man’s
duty to choose God as the Supreme Object of service, and
to serve Him with all his mind, and heart, and strength
is involvedinhismoral constitution, or, as we say, the sense
232 DIVINE LAWS
of obligation to serve and obey God is apart of man’s moral
nature. So the obligation man is under, to love his fellow
men, in the sense that he should choose them as objects
of service is grounded also in his moral constitution, con-
sequently they may both, with strict propriety, be desig-
nated natural laws, the same as the laws of thought,
of imagination, and of memory are regarded as natural.
The law of love to God and man are involved in the
moral order. They are a constituent part of man’s moral
nature. They are not external commands imposed by
arbitrary authority; but they are internal commands
written upon the heart of man by his Creator; hence,
they, too, like the laws of the physical universe, may be
called divine laws as given by the Divine Ruler, or they
may be regarded as natural laws, operating as they do,
in the sphere of man’s moral nature.
In the foregoing chapters we have classiﬁed them as
“Natural Laws,” but with the conviction that they, like
all other laws considered, except the rules of human ori-
gin, may be as properly regarded as Divine.
CHAPTER XI.
GENERAL SUMMARY AND CoNoLUsIoN.
That we live in a Universe subject to unchanging law
has been assumed by the most thoughtful minds from the
earliest times. There seems to be an instinctive belief
in the human mind, that, behind the ever changing phe-
nomena of the ﬁnite universe, there exists some change-
less and regulative principle. To the changeless and
controlling principles, and to the ever changing phe-
nomena, general facts, forces, hypotheses and uniformi-
ties of nature the name law has been given indiscrimi-
nately. This name has also been given to the rules of
human conduct, and there have been accorded to it at-
tributes of power, intelligence, royalty, and even it has
often been spoken of as an actual entity possessed of
creative energy. The ancients referred to law as the
King of Kings: they also spoke of it as an eternal prin-
ciple that governed the Universe, and even in modern
days it has been apparently regarded as a controlling
entity exercising dominion over mind and matter. We
are bewildered by the conﬂicting senses in which the word
is employed, and embarrassed and confused by its con-
spicuous and careless use in science, philosophy, ethics,
theology and in general literature. This led to our in-
quiry into the essential nature of law.
The human mind desires to hold all its knowledge in
the unity of one grand system, and so we ever ﬁnd our-
selves endeavoring to construct a perfect system or classi-
ﬁcation of the laws of the universe, both natural and hu-
man. The inquiring mind desires also to discover the
essence of things, and hence in the realms of law, espe-
cially where the word is applied to such numerous
and varying conceptions, it becomes a matter of inter-
est and importance to discover, if possible, its real and
essential meaning. The idea of ﬁxedness dominates in
234 GENERAL SUMMARY AND CONCLUSION
the general conception of law, so to ﬁnd the changeless
and established truths and facts of the universe seemed
to be the ﬁrst step in discovering the true conception
of the term.
In order that we might discover the nature of law in
its primary signiﬁcation, we enumerated among others
the following fundamental truths which are regulative
of all power. It is self-evident that every beginning or
change of being must have a cause; the same complex of
causes always produces the same effects; something can-
not come from nothing; with ﬁnite agents reception must
precede production; nothing can both be and not be at
the same time; the shortest distance between two points
is a straight line; a straight line cannot enclose a por-
tion of space; a thing cannot be in two different places
at the same instant; two bodies cannot occupy the same
space at the same time; things that are equal to the same
thing are equal to each other; there can be no knowledge
unless there is some reality to be known; all events must
occur in past, present, or future time; no body can exist
without occupying space; whatever is predicated of a class
of objects may be predicated of all that is contained in
that class; there can be no attribute without a substance
to which that attribute belongs; there can be no motion
without a body to move; and the moral intuitions, that
a rational being ought to act rationally; obedience to
moral law is right and disobedience is wrong, the prod-
uct resulting from exact compliance with law must be a
perfect product; the product resulting from non-compli-
ance with law must be imperfect; as an engine con-
structed in exact conformity to every law of mechanics
involved in its construction must be a perfect engine, and
a moral character constructed in exact compliance with
the all-comprehensive law of love must be a perfect char-
acter.
These few fundamental truths and inferences are ex-
amples of that vast body of primary and regulative real-
ities which are law in the primary and deepest sense of
the word. They are primary realities. They are ulti-
THE ESSENTIAL NATURE OF LAW 235
mate. We cannot go back of them. The mind rests upon
them without uneasiness but in perfect tranquillity. The
truth that the shortest distance between two points is a
straight line is a ﬁnal reality. We can give no other
reason for it than the assertion that it is. We cannot
go behind the fact. In it we ﬁnd the ultimate, and so
it is with the whole body of primary principles. In the
moral realm the truth that man ought to choose the
right, and ought not to choose the wrong expresses a
fundamental reality. We cannot go back of the fact. It
too is ultimate. Conscience apprehends the fact by orig-
inal insight, and accepts it without question as ﬁnal. We
cannot overemphasize the fact that in the quest for pri-
mary law we are looking for ultimate realities. They
set the limits to all action. They determine what power
can and what it cannot do. They are law, and these
ultimate principles comprise the ﬁrst great code of su-
preme and ﬁnal authority which we have found operative
within and throughout the realms of both matter and
mind. This Supreme Constitution of the Universe, as
it has been called, ﬁxes the limits for all power. It com-
mands society no less than the individual. It speaks with
authority to the legislator, the judge and the executive.
It prescribes what physical power may and what it may
not do; it announces to the intellect what it can and what it
cannot conceive, and it tells the will what it ought and
what it ought not to choose. Its provisions are universal,
imperative and changeless. It constitutes that eternal
law to which Demosthenes and Cicero referred, and to
which impassioned orators have ever since referred in
their heated efforts to ground their arguments upon an
immovable and eternal foundation. Being realities regu-
lative of all power, these truths of reason are law in its
primary and truest sense. The power-regulating ele-
ment is the essential element in law.
Besides these regulative and fundamental principles,
science has given the name law to many general facts
and orderly sequences of the ﬁnite universe. They are
law, however, only in a secondary sense. They are not,
236 GENERAL SUMMARY AND CONCLUSION
like primary truths, regulative of all power, but they
are rather the orderly manifestations of power. Force
manifests itself uniformly under the same conditions, and
to this uniformity of expression the name law has been
given. The whole phenomenal order of impersonal na-
ture, embracing the general facts and uniformities of the
inorganic, the vegetable and the animal kingdoms, ex-
cluding man as a rational being, constitute that great
body of natural law so-called with which Science largely
concerns itself. In order that we might observe the
factual and phenomenal character of these laws so-called,
an enumeration of a few of them was made and consid-
ered, among which the following were mentioned:
Every planet moves in an elliptical orbit: the radius
vector of a planet sweeps over equal areas in equal times:
every body continues in its state of rest, or of uniform
motion in a straight line, except in so far as it is com-
pelled by force to change that state: to every action
there is always an equal and contrary reaction: every
particle of matter in the universe attracts every other
particle with a force directly proportioned to the mass
of the attracting particles, and inversely to the square
of the distance between them: in a medium of uniform
density light goes in straight lines with a uniform veloc-
ity: in passing into a denser medium light is bent toward
a perpendicular to the surface at the point of incident:
and in passing into a rarer medium light is bent from
the perpendicular; the angle of incident is equal to
the angle of reﬂection in case of both light and sound;
electricity follows the lines of least resistance: every-
where under the law of the conditioning and the con-
ditioned, the earth precedes and conditions the exist-
ence of the roots and trunk of the tree; the trunk in
turn conditions the existence of the branches; the
branches condition the existence of the buds, the buds
precede and condition the ﬂower and the fruitage: in the
struggle for existence the ﬁttest survives: in the lan-
guage of Goethe “in order to spend on one side Nature
must economize on the other,” to which fact is given the
THE ESSENTIAL NATURE OF LAW 237
name of the law of Compensation: the use of one’s pow-
ers enlarges them: the offspring tends to resemble its
parent or parents: “man as an individual is capable of
indeﬁnite improvement. Society and nations, which are
but aggregations of men, and ﬁnally the human family
or collective humanity are capable of indeﬁnite improve-
ment” is a statement of fact merely, but is given by
Charles Sumner as the Law of Human Progress. And
to these so-called laws may be added the general facts
of evolution, the continuousness of Nature, and all the
orderly sequences observed in the realms of matter and
mind, such as the fact that light and darkness alternately
follow the rotation of the earth upon its axis, the varying
seasons follow the revolutions of the earth around the
sun; and in the realm of animal life instinct secures uni-
form migrations from cold regions to warm in winter,
and from warm to cooler regions in summer, while in
human society abundant illustrations of uniform se-
quences are recognized: If the price of an article falls
(other things remaining the same) the quantity demand-
ed increases, and if the price rises the quantity demanded
decreases; and if cheap money is put in circulation the
better money will disappear: if land is made to bear a
heavy burden of taxation, then, as a general thing, the
price of land will decrease: if there is a rise in the rates
of interest then there will be a decline in the price of
stocks: and if the population of a state greatly increases,
then we may reasonably expect the price of land there
will increase. All these so-called laws, as will be ob-
served, are simply statement of general facts. They are
not self-evident truths but contingent. It is conceivable
that a planet should revolve around the sun in a circle
instead of an ellipse; it is conceivable that a falling body
should descend forty feet the ﬁrst second instead of six-
teen, but it is not conceivable that the shortest distance
between two points should be a broken line instead of a
straight one. It is perfectly obvious that these gener-
alized facts and orderly sequences to which the term law
has been applied, are law only in a secondary sense.
238 GENERAL SUMMARY AND CONCLUSION
They had a beginning and may have an end, hence they
are not eternal. They are generally manifestations of
force, rather than regulative of force. They have re-
ceived the digniﬁed name of law, though they lack the
essential element of law. We have observed, however,
that relative to man’s power they are regulative, in that
they often determine what he can and cannot do.
Then again we observed a similar phenomenal order in
the realm of ﬁnite rational beings. Man as a person,
possessed of reason, free will, and conscience presents
another realm of law in this secondary sense. There are
certain general facts, observed in the realm of the human
mind, unlike any that are found in the impersonal sphere.
They constitute a body of secondary law different from
any observed in the other two spheres. Among those
which were considered may be mentioned the following:
Under the so-called law of association of ideas, we ﬁnd
the following general tendencies: the sight of a person,
who resembles in appearance a distant friend, will gen-
erally suggest the thought of that friend: the sight of a
mountain peak in a foreign land resembling one in our
own land, will as a rule suggest the thought of the latter:
the thought of the very rich suggests by way of contrast
the thought of the very poor: the coldest days of winter
suggest the hottest days of summer: on the battle-ﬁeld
of Waterloo one acquainted with its history will think
of Napoleon and Wellington: the thought of Wilkes
Booth will suggest the thought of Abraham Lincoln to
one familiar with the history of their day, as the name
Guiteau will suggest that of Garﬁeld. This tendency of
one thought to suggest another is called a law. It is a
general fact and is so universally true that it is recog-
nized as a part of the established order of thought.
Again under the law of memory we ﬁnd that matters
which occupy the mind for the longest period of time
are, other things being equal, more likely to be recalled:
and also those objects which are apprehended most viv-
idly, and brought before the mind most frequently, are
most readily reproduced in memory: and here too we
THE ESSENTIAL NATURE OF LAW 239
ﬁnd many uniform sequences among the thoughts and
emotions, as the thoughts of success inspire hope, and
apprehension of defeat awakens fear: a choice of right
is followed by an emotion of self-approval, and a choice
of the wrong is followed by self-condemnation: cheerful
obedience to the laws of God is followed by spiritual
peace, and willful disobedience is followed by spiritual
discord and unrest. Many other illustrations might be
given of that large body of so-called law that operates
within and throughout the ﬁnite rational realm. These suf-
ﬁce to show their character. They are facts and nothing
more. They are called laws as that whole group of uni-
form tendencies and sequences in the physical world are
called laws. We may properly look upon them as a body
of so-called laws unlike those in the other two spheres,
and to a certain extent separate from them, and possess-
ing essential characteristics of their own. They belong
to that great class of somewhat similar laws which had
a beginning and hence are not eternal. They are second-
ary, net primary law.
From the foregoing enumeration of observed laws we
ﬁnd three systems more or less distinct and separate, yet
constituting one all-comprehensive body of natural law.
The immutable and eternal principles of reason con-
stitute the ﬁrst system and by reason of their univer-
sality and supremacy, they have been called the Supreme
Constitution of the Universe. To their authority all cos-
mic, psychic, and social forces must submit. In harmony
with them all created things have been fashioned. They
are laws of thought in the world of mind, as they are
laws of things in the world of matter. They determine
what physical power can and cannot effect, what intel-
lectual power can and cannot conceive, and what volun-
tary power ought and ought not to choose.
The second system embraces all those generalized facts
and orderly sequences found within and throughout the
impersonal realm, including the phenomenal order of
physical nature as well as the instincts and impersonal
intelligence of the animal kingdom. Relative to man all
240 GENERAL SUMMARY AND CONCLUSION
these so-called laws are established facts and are regula-
tive of his power, in that they set limits to his action.
He’ cannot annul the law of gravitation, but he can accom-
plish many things in harmony with it.
Within the third system are embraced all those es-
tablished facts and uniform occurrences peculiar to the
rational constitution of man, such as the law of moral
obligation, of scientiﬁc imagination, of rational repro-
duction or memory, the laws of association of ideas, and
all the factual sequences prevailing within the realms of
ethics, esthetics, and religion.
Thus man lives under and is implicated in a three-fold
system of Natural law, in a way somewhat analogous to
that in which an American citizen lives under a three-
fold system of human law. He lives under the Consti-
tution and Statutes of the United States, under the Con-
stitution and Laws of his State, and under the Charter
and Ordinances of his City or other municipality.
We then considered in what sense human law or juris-
prudence rests upon natural law.
This triple system of nature antedates all human law,
Man is born into it. No person or race can escape its
jurisdiction. Every system of positive law is based upon
it, or in some way related to each one of the three bodies
of natural law composing the triple system. But J uris-
prudence is related to the ﬁnite rational system in a pc-
culiar and special manner. The principles of Ethics be-
long to the body of rational law, and the one all-compre-
hensive law of love or service to man furnishes the basis
of Jurisprudence. We observed that the moral law,
“ Thou shalt love thy neighbor as thyself ” was the genus,
under which all the principles of justice, of benevolence,
of veracity, of gratitude, of mercy and others are found
to be but species.
This all-comprehensive principle of the moral law is
rooted in the rational constitution of man, and has been
recognized by all races of men with greater or less dis-
tinctness. The literatures of the ancients in both the
Orient and the Occident disclose the idea that man was
THE ESSENTIAL NATURE OF LAW 241
not made to live for self alone. Terence voiced this
thought in his saying, “I am a man and nothing which is
human can be alien to me.”
The system of moral rights and duties is developed
fundamentally from this universal law. The statement
itself, that man shall love his neighbor as himself, nec-
essarily implies that man is to love or serve himself.
Love to self is the standard of duty; love to our neigh-
bor ought to come up to that standard. A moment’s con-
sideration shows that this is necessarily true. If man
would serve his neighbor in any capacity he must have
served himself ﬁrst. If one would give money to the
poor, he must ﬁrst get the money, if he would impart
knowledge to the ignorant he must ﬁrst acquire the
knowledge; if he would bless the world in any manner
he must ﬁrst acquire the instrumentalities of power by
means of which he can bestow that blessing. In short,
if a person would give he must get; he must be egoistic
before he can be altruistic. We have seen that in all
ﬁnite action reception must precede production, and the
moral law of love is but an aspect of that universal prin-
ciple. Man must serve himself before he can serve
others; he must perfect his own powers before he can
assist others most eﬂiciently to perfect theirs.
But what does love to self involve? It means that man
must make the very most of himself. He must cultivate,
reﬁne, enlarge, and perfect all the susceptibilities and
powers of his being. Doing this is to love self, and to do
this requires the discharge of all duty. If he owes a
debt, it is his duty to pay it, and it is a right of the cred-
itor to receive it. It is man’s duty to respect his neigh-
bor’s rights to life, liberty and property. Only by per-
forming those duties can man serve himself best; only
by performing those duties can man make the most of
himself; only by performing them can he ever hope to
perfect himself; only by performing them can he com-
ply with the law “love thyself.” But the discharge of
one’s duties, and the corresponding satisfaction of an-
other’s rights, the adjustment of rights and duties, is
242 GENERAL SUMMARY AND CONCLUSION
what we call the principle of justice. So it transpires
that the principle of justice and the law of service or love
are identical. When we apply the law of love to the re-
ciprocal rights and duties in the business or other trans-
actions of human life, we call it the principle of justice,
and when we apply it in those cases where man ﬁnds it
his duty to give to his neighbor hoping for nothing in
return—in all gratuitous transactions—we call it benevo-
lence, and when we apply it in transactions involving the
impartation of truth, we call it veracity: so these prin-
ciples of justice, benevolence and veracity, are only dif-
ferent names given to the law of love, according to the
nature of the transactions wherein the law is applied, as is
the case with the general legal principle of ﬁxtures, which,
when applied to articles of personal property annexed to
premises for domestic purposes is called the principle of
domestic ﬁxtures; and when applied to such articles an-
nexed to the premises for purposes of trade is called
the principle of trade ﬁxtures, and when applied to such
articles annexed to premises for agricultural purposes is
called the principle of agricultural ﬁxtures, one principle
receiving three different names according to the peculiar
facts involved in its special application.
It may be said that the administration of justice is
the essential work of courts of law. Positive law has
primarily and chieﬂy to do with the enforcement of du-
ties and the protection of rights. To see that the out-
ward adjustment of men’s rights and duties is secured
is the prime object of human law; and as the principle
of justice is, in essence, the moral law, it may be said,
as we have contended, that jurisprudence or positive law
is founded upon and draws all its vitality and force from
the one fundamental and all-comprehensive moral law of
service or love.
But much legislation has to do with the establishment
of almshouses, institutions for the insane, for the feeble-
minded, and other defective fellow beings. Such legis-
lation is in a sense an application of the principle of
benevolence. The people, by taxation, bestow their
THE ESSENTIAL NATURE OF LAW 243
money upon the unfortunate and feeble, hoping for no
equivalent in return. It is essentially a gratuity, and yet
such legislation becomes a part of the law of the land
and is included in the subject matter of Jurisprudence. _
The principle of veracity also ﬁnds a most prominent
place in the realm of Jurisprudence. The violation of
this principle is the occasion of much legislation, and
judicial ruling. It enters into every business transac-
tion. Fraud, deceit, and misrepresentation of every kind
play a conspicuous part in the transactions of human
life. The law has many legal provisions calculated to
establish truth and to eliminate falsehood in human af-
fairs. Even a good or bad motive often determines the
legal or illegal character of the outward action inspired
by such motive. The morality of his motive may deter-
mine the legality of one’s conduct. The principle of ve-
racity, the moral principle of love applied in human af-
fairs respecting truthful statements and honest conduct,
is ever before the court for application. Witnesses must
tell the truth and the whole truth. No one can gain a
legal right by his own fraud, lying, or deceitful behavior.
If a person does not speak the truth when he ought to,
the court will not permit him to speak it when he wants
to in order to gain an advantage over his adversary.
In the ever present demands of justice, benevolence,
veracity, and perhaps other moral principles, we ﬁnd the
foundation of human law; and as these separate princi-
ples, are, in reality, but aspects or component parts of
the one all-comprehensive law of love, the conclusion is
fairly established, I think, that at the bottom of all juris—
prudence we ﬁnd as the basal law that one all-controlling
command of reason, “Love thy neighbor as thyself.”
If this is true, the advantages gained by recognizing
the fact are many. It makes jurisprudence a branch of
applied ethics; it gives to jurisprudence itself the high-
est possible dignity; it raises the administration of jus-
tice from a selﬁsh scramble by litigants and counsel for
unrighteous ends, to a digniﬁed effort on the part of
judge, counsel and adrocate, to discover where the
244 GENERAL SUMMARY AND CONCLUSION
golden thread of moral principle runs in the complicated
affairs of human life, and to settle the rights of the par-
ties interested according to the demands of that prin-
ciple; it digniﬁes the ofﬁce of the judge, by making him
a priest at the altar of moral law, and it raises the ofﬁce
of counsel to the exalted life work of one devoted to the
advocacy of unselﬁsh love in the complicated details of
human life. Judge and counsel together become the un-
selﬁsh arbiters of the conﬂicting interests of their fellow-
men, ever seeking to discover and satisfy the demands
of the all-controlling law of love. From such a concep-
tion of jurisprudence, and from such a conception of its
administration, what judge or advocate or even what
minor ofﬁcer of the court can fail to gain an uplifting and
ennobling inspiration?
But we have seen too that jurisprudence bears a dis-
tinct relation to the other two systems of natural law,
that of primary truth, and that of impersonal nature.
The courts everywhere necessarily recognize the funda-
mental principles of reason, and give force and effect to
the generalized facts and established sequences in the
worlds of ﬁnite mind and matter.
If a person is indicted for the committal of a murder
in the city of Boston, and, on the trial, he completely es-
tablishes the fact that on the day the crime was com-
mitted he was in London, no further proof of his inno-
cence is necessary. The court, the jury and the counsel
as well, all apply the primary and universal law that no
body or person can be in two different places at the same
instant. This law is decisive of the case. All parties
concerned submit without question or argument to the
imperative demands of this self-evident principle of in-
tuition. While this law is not counted by the jurist as
one of the positive laws of the land, and while that whole
body of rational, self-evident principles is not regarded
or treated as a part of jurisprudence, yet, as a matter of
fact, we have found from numerous judicial authorities
that the courts take judicial notice of this vast system of
fundamental truth, and give to the individual principles
THE ESSENTIAL NATURE OF LAW 245
the force and effect of positive law, wherever they are
found applicable in the trial and ﬁnal decision of actual
cases before them. There is, therefore, a real and close
relationship existing between jurisprudence and this vast
system of universal and imperative principles.
Then, too, we ﬁnd a similar relationship existing be-
tween jurisprudence and the phenomenal order of the
physical universe and all impersonal nature as well. The
courts take judicial notice of the laws of the material
world, the instincts of animal life, and all the established
uniformities in that vast realm of generalized facts and
orderly sequences, whenever they become the subject of
general observation and knowledge. When one who is al-
leged to be the father of a child, born out of lawful wed-
lock, fully establishes the fact before the court that for
two or more years immediately before the child’s birth,
he was constantly in a land foreign to that where the
child’s mother resided during all that time, he must be
pronounced innocent of the offence, as, under the nat-
ural law of gestation, he could not have been the child’s
father. The law of gestation need not be proved. The
court takes judicial notice of that general fact, and ap-
plies it as he might apply a statute or a principle of com-
mon law where such application would be appropriate.
The courts give force and effect to all such laws where-
ever they are involved in the subject matter of the liti-
gation before them, and their application often becomes
the decisive factor in the controversy. Such laws, when
necessarily applicable in any given case, perform the
same ofﬁce that positive law performs. They are the de-
cisive factor in the controversy. This fact illustrates the
close and vital relationship existing between jurisprud-
ence and this great system of natural law.
While the expounder of positive law would conﬁne
his inquiry to the principles enforceable by state au-
thority, yet, if we would notice and consider every de-
cisive principle operative in the decision of human con-
troversies before our courts, we should be surprised to
see how many of the laws or controlling principles in-
GENERAL SUMMARY AND CONCLUSION
volved in those decisions, are but universally admitted
principles of so-called natural law. They are given effect
through judicial notice and application. They are in
fact a part of the “law of the land.” They exert a de-
cisive inﬂuence in the litigated cases before our courts;
and respecting them Judge Christiancy says, “The laws
of nature and of the human mind, at least such of them as
are obvious to the common apprehension of mankind, as
well as the more obvious dictates of common sense and
principles of human action—which are assumed as truths
in any process of reasoning by the mass of sane minds-
constitute a part of the law of the land, and may and
must be assumed by the court, without being found by
the jury; indeed the ﬁnding of a jury which should clearly
disregard them, should itself be disregarded by the court.
In other words the courts are bound judicially to know
and apply such laws and principles as part of the law of
the land.”
So, while we observe the peculiar and essential rela-
tion of jurisprudence to the moral law, whence it draws
\ its essential life and nature, we see also how the whole
system of natural law, embracing the primary intuitive
principles, the impersonal phenomena and the personal
order constitute the real foundation or basis of the
world’s systems of human law. Hence it is not enough
that the student, the lawyer, the judge, and the jurist
should become familiar with the common law of the land,
with the constitutions and statutes of states and nations,
and even with the broad principles of international con-
duct, but they should look above, beyond, and back of
all these human enactments, rules and compacts to the
superior principles of that great triple system of natural
law, whose regulative inﬂuences are felt in all the details
of human life. While we ﬁnd the basis of jurisprudence
to be essentially ethical, we also observe that it sustains
a close relationship to the system of universal principles,
and to the phenomenal order of the impersonal realm.
Having considered the essential nature of law in its
most general sense, and having considered the founda-
THE ESSENTIAL NATURE OF LAW 247
tion of human law as enforceable by the state, we pro-
ceeded to consider the particular nature of human law
itself. We observed that human law in its broadest sig-
niﬁcation embraces all the rules of human conduct which
human beings have adopted or enacted for the regula-
tion of their conduct. We observed that the word law
is applied indiscriminately to all the rules of human
action, whether regulative of national conduct, the con-
duct of the individual citizens of a state, to the conduct
of persons associated in the various relations of social
life as members of literary clubs, political leagues, college
fraternities, ball teams, improvement societies, and other
similar voluntary associations; and it is applied also to
rules of etiquette and fashion, and even to those which
regulate the games of chess, whist, checkers, and all the
other games of chance or skill, as well as to the rules
adopted by industrial, political, and religious conven-
tions to facilitate the transaction of business. So we
ﬁnd ourselves speaking of the laws of golf, the laws of
football, the laws of polite society, the laws of good man-
ners, the laws of etiquette, the laws of library associa—
tions, the laws of labor organizations, the laws of the
women’s federation, the laws of political conventions, at
the same time we are speaking of the laws of nations,
the laws of the state, and “the law of the land.” We
observed too that had the word law been reserved for
and applied exclusively to those rules of human conduct
which are enforced by state authority, and the word rule
applied to all others, then the classiﬁcation would have
been made easy. Little, however, is to be gained by mere
classiﬁcation. The only distinction, important to be
made among these rules, is that afforded by the fact that
some of them are enforcible by the state and others are
not. Those which are so enforcible are strictly law in
the sense that they impose upon persons civil obligations
cognizable by the courts of justice, and all other rules are
law only in the sense that they tend to subserve some
good end and secure regularity of conduct, but persons
are in no way answerable to the courts for violating
248 GENERAL SUMMARY AND CONCLUSION
them, being subject only to such disadvantages of per-
sonal loss or public disapproval as their violation may
involve.
Among the rules adopted by persons for individual
improvement may be named the following: What we
ought not to do, we should not think of doing: refuse to
express a passion and it dies: check your passions that
you may not be punished by them: frequent repetition
is the ﬁrst law of memory: choose along the line of great-
est resistance: decide with promptness and act with en-
ergy in the less important affairs of life has been given
as a helpful rule in the cultivation of the will: and here
too we might mention rules adopted by individuals for
the preservation and improvement of physical health,
such as the rules ﬁxing the hours for arising and retir-
ing, for exercise, for recreation, and for labor.
These rules for individual improvement, mental and
physical, though self-imposed and self-repealable, are the
least stable and authoritative of all the rules adopted by
mankind. They are the lowest order or type of regula-
tive realities. They are adopted for a worthy end. and
so long as they are unrepealed they tend to regulate the
conduct, hence they have in them the essential element of
law.
Proceeding from these rules of individual conduct we
next considered these rules of social conduct which are
attended by a sanction either applied by the power of
public opinion, or by the persons themselves prescribing
the rules. Among others we mentioned the law of honor,
whereby in some places a person challenged to ﬁght a
duel must accept it or suffer disgrace in the public mind:
the laws of etiquette, the laws of fashion, rules regulat-
ing the salutations of persons upon the street or at pub-
lic gatherings: rules observed by those exchanging calls,
rules observed by hosts and guests on occasions of hos-
pitality, the customs observed at public dinners determin-
ing, among other things, the position of guests at the
table, or in the receiving line at a public reception: and
here too may be mentioned those rules of court etiquette
THE ESSENTIAL NATURE OF LAW 249
in our own and other countries, which, when sovereigns,
presidents, ministers, ambassadors, and other dignitaries
assemble, regulate their conduct in a manner as tyranni-
cal as the decree of a despot regulates the conduct of his
subjects. Among the laws of fashion we observed those
most common ones which dictate the form of the hat,
the cut of the shoe, and the style of the dress or coat which
are so exacting in their demands that a fair degree of
uniformity is secured throughout the land in the case
of all men, women, and children alike, and they affect all
classes of people as a rule from the poorest of society up
to the royal courts of sovereign states.
These rules too are regulative of human conduct, and
possess therefore the essential element of law. The chief
characteristic of these rules or laws aside from their
regulative element, is their indeterminate source, and they
are not as a general thing attended by any speciﬁc sanc-
tion. Their violation arouses public dis-approval which
is one of the most severe forms of punishment.
In addition to these rules of a non-legal character we
considered one other class of important rules or laws
established for the government of the family, for the
government of schools, churches, literary societies, politi-
cal, religious and other similar clubs, leagues and volun-
tary associations, to which rules there are, in addition to
the sanction of public displeasure, other sanctions spe-
ciﬁcally provided and enforced by the person or persons
prescribing them. In these and similar instances the
rules originate with some particular and determinate
person or persons, as with the parents, the chief of a tribe,
the teacher, the governing board of the voluntary asso-
ciation or other organization. These sanctions vary in
form and character to suit the demands of each particu-
lar rule, as expulsion or suspension from school in case
of disobedience, forfeits incident to the violated rules of
games of chance, ﬁnes in money for the non-return of
books to a library at the proper time, and many other
similar sanctions prescribed by such bodies or associa-
tions, but in no instance is the sanction attending the vio~
250 GENERAL SUMMARY AND CONCLUSION
lation of any of this class of rules enforced by the courts
of justice. Should the courts undertake to enforce the
performance of these rules, that very act would raise the
rule from a mere conventional regulation to the dignity
of law in its legal signiﬁcation.
This class of regulative principles, springing from non-
legal sources is one of vast importance in the progress
and development of human society. These rules are pe-
culiarly regulative in their nature, being speciﬁcally pre-
scribed for the regulation of human conduct. They are
ﬁxed and established, and, while remaining in force, pos~
sess that regulative element that characterizes law in its
essential nature.
Having examined this class of non-legal human laws,
positive law only remained forour consideration ; and after
reviewing various deﬁnitions of law we decided that the
following statement correctly expresses all the elements
essential to law in its legal sense. Positive law is a rule
of ewternal human action enforcible by state authority.
Our examination satisﬁed us, that both constitutional
and international law are fairly embraced within both
the spirit and the letter of this deﬁnition: and that all
positive law is characterized by that regulative element
essential to law in its most general sense.
As to whether the vast body of laws, which we classify
as natural, might be also called divine, with as much pro-
priety and exactness as they might be called natural, we
concluded in Chapter X that they might be so named.
Regarding this matter James Wilson said: “The law of
nature, and the law of revelation are both divine; they
ﬂow, though in different channels, from the same source.
It is indeed preposterous to separate them from each
other.”
There would be an advantage, indeed, in calling the
whole body of law, excepting that of purely human origin,
Divine. It would bring into our study of the laws of Na-
ture the thought of a divine presence which the use of the
term natural has largely excluded. In scientiﬁc thought
with many, God and Nature have been divorced, or, more
THE ESSENTIAL NATURE OF LAW 251
accurately, perhaps, Nature is looked upon as all-sufﬁ-
cient, and the presence of God unnecessary. But in more
recent days the immanence of GOCl is gaining favor,
especially in religious thinking, and the laws and uni-
formities of Nature are now regarded as immediate mani-
festations of God actually present and actively energiz-
ing in the movements and ongoing of the ﬁnite universe.
‘In harmony with this view of Nature and of God’s immed-
iate presence within it, the laws of Nature, which are but
God’s uniform activities, might with strict accuracy be
called Divine; and we should then say: All laws are either
Divine or human.
APPENDIX.
For the beneﬁt of those students who wish to pursue
philosophical inquiries, and to consider natural law in
both its primary and secondary sense, the following out-
line of questions and authorities is appended. The laws
of thought and the laws of things are necessarily involved
in the subjects considered. The three objects of all hu-
man thought, it has been said, are “the Ego or person,
the World, and God,” or as others express it, “The
World-ground, Physical Nature, and Soul.” If these
are the three continents of all possible human knowledge,
then all the laws of which we can have any knowledge
must be found within these realms. By perusing the
works referred to, we learn something of the nature of
law as viewed by these authors. As our objective point,
however, (in addition to learning the nature of law in
general) has been to see clearly the relation of jurispru-
dence to the moral law, we are especially concerned with
the ethical nature of man. As the ﬁnite reason knows
intuitively that a thing cannot both be and not be at the
same time, so intuitional ethics teaches that the ﬁnite
reason knows intuitively that “a rational being ought
to act rationally.” In the abiding and illuminating pres-
ence of its rational intuitions the soul both sees and feels
its obligation to choose and to act in harmony with them.
The soul both recognizes and knows them as law to its
action. This knowledge of oughtness is itself an essen-
tial element in man’s rational nature. It is this original
and fundamental intuition that constitutes man a moral
being. When an occasion in experience arises, man
knows by original insight that “a body cannot be in two
different places at the same time,” and that “ a straight
line cannot enclose space,” and so by the same immediate
insight he knows, when an occasion in experience arises,
that he ought to act rationally, that he ought to use his
powers for rational ends, that he ought to seek his own
APPENDIX 253
welfare, rather than his own destruction, that he ought
to seek his neighbor’s welfare, rather than his injury
and ruin, that he ought to conform his choices to the de-
mands of truth, and thereby secure the perfection of his
being, and that he ought to “love (or serve) his neighbor
as himself.” _
Throughout the following authorities natural law is
incidentally referred to and employed in a variety of
senses: and the moral law in particular is fully consid-
ered in those works devoted to the subject of ethics. The
nature or essence of human law is discussed in the works
referred to under that topic. In general, the problems
in philosophy are considered under the theories of Know-
ledge and the theories of Being.
THEoRIEs or KNowLEDGE.
Are there intuitive truths? If not, there can be no in-
tuitive ethics.
IssUE.
I ntuitionalism or Rationalism alleges that a knowledge of
intuitive truths is acquired through Rational Intuition.
The Opposing Theories deny that knowledge of intuitive
truth or of any other truth is acquired through Ration-
al Intuition.
, AUTHORITIES
Harris, Phil. Basis of Theism, 109 ch. 3, 7.
McCosh, Intuitions of the Mind, 20, 101, 309-310.
Hopkins, Outline Study of Man, ch. 3, 4.
Haven, Mental Phil., 238.
Browne, Theory of Thought and Knowledge, ch. 3, 4.
Hickok, Rational Psychology, Introduction, and ch.
1, Book 2. ,
Wayland, Intellectual Phil., ch. 3.
Fiske, Outline of Cosmic Phil., Vol. I, p. 46, Vol. II,
p. 161.
Lotze, System of Phil, ch. 3, pp. 450, 513.
Mivart, On Truth, ch. 4.
Mivart, Groundwork of Science, ch. 8.
Leibnitz, Phil. Works, by Duncan, 307.
Des Cartes, Phil. of, by Torry, 2, Med. 113.
Kant, Critique of Pure Reason, Muller, Vol. I, p. 398.
Paulsen, Introduction to Phil., 373.
Farrier, Institutes of Metaphysics, 79.
Porter, Human Intellect, 61, 497.
Mansel, Praelegomena Logica, ch. 4, p. 92.
\ Mansel, Metaphysics, 221, 242.
Intuitionalism <

254
APPENDIX
Empiricism
Sensationalism #
Relativity of
Knowledge
Positivism
Phenomenal-
ism
<
'r
l
r-
Spencer, First Principles, 70.
Bain, Mental Science, 181.
Fiske, Outline of Cosmic Phil, Vol. I, p.
Vol. II, p. 161.
Mill, System of Logic, Book 2, ch. 5, p. 152.
Hegel, Logic, ch. 4, p. 76, and ch. 5.
Carpenter, Mental Physiology, 237.
Lewis, The Study of Psychology, ch. 10.
Lewis, Problems of Life and Mind, Vol. I, 191, 338.
Reply: McCosh, Intuitions of the Mind, 294, 361.
L Bowne, Theory of Thought and Knowledge, ch. 4.
Locke, Sources of our Knowledge, Bk. 2, ch. 1, § 3,
4, 5, ch. 12, § 8, ch. 22, § 1, 2, 3.
Condillac, Origin of Human Knowledge, ch. 1.
Hume, Treatise on Human Nature, part 4, § 6, Bk. 1,
part 1, part 3, § 5.
Mill, Examination of Sir Wm. Hamilton’s Phil, Vol.
1, p. 13.
Fiske, Outline of Cosmic Phil, Vol. I, p. 3.
Reply: McCosh, Intuitions of the Mind, 340.
Harris, Phil. Basis of Theism, 109.
{Auguste Comte, Postitve Phil., Vol. I, ch. 1.
(
Kant, Critique of Pure Reason, Muller, 2d Vol.
Reply: Harrls, Phll. Basis of Theism, 99.
General Reply: Harris, Phil. Basis of Theism, ch. 5.
THEORIES or BEING.
I.
ABSOLUTE BEING.
Accepting the intuitional theory of knowledge, there
must be an uncaused, unconditioned, or absolute Being,
from which all things emanate.
What is its essence?
Is it spirit or matter, or something unlike either‘?
Philosophy supplies the following answers.
ISSUE.
Spiritualistic Philosophy or Spiritualisin alleges that
matter is the product of mind.
Materialistic Philosophy or Materialism denies this, and
alleges that mind is the product of matter.
56, 287,
APPENDIX 255

’ - Atoms of Democritus
Plurahsm Monads of Leibnitz
- Extended Being
Ontologyl Dualism { Thinking Being Des Cartes
Materialism
Spiritualism
*Momsm Parallelism Spinoza Matter and mind
or Spencer phases of a third
Identity theory Fechner substance.
’ AUTHORITIES
Anaxagoras, Ueberwig His. of Phil. Vol. I, p. 60—3-5.
Plato, Ueberwig His. of Phil. Vol. I, p. 127.
Aristotle, Bk. XI, ch. 6, 7 and 8.
Descartes, Third Meditation.
Liebnitz, Phil. Works, by Duncan, 100, 218.
Crookeil-i Tl\lI1e Theip/titi Conception of the World, 95-7.
- - -. Maxwe , ature, o. 8, p. 441.
Splntuahom < LeConte, Princeton Review, March, 1881, p. 149.
McCosh, Princeton Review, May, 1881, p. 369.
Bowne, Princeton Review, Nov., 1881, p. 344.
Flint, Theism, ch. 4.
Mivart, On Truth, ch. 26.
Bowne, Studies in Theism, 375.
Bowne, The Phil. of H. Spencer, 218.
Harris, Phil. Basis of Theism, ‘428.
Lucretius, Watson’s Edition.
Buchner, Force and Matter, ch. 1.
Materialism < Haeckel, History of Creation, Vol. I, p. 20, 75, 316.
International Encyo, Vol. 9, p. 593.
L Lange, History of Materialism.
II.
THE CosMos.
hf
Accepting the spiritualistic theory, the Absolute Being
is spirit. What then, is its relation to the cosmos“? Does
it constitute an underlying unity ever manifesting itself
in the manifold phenomena of the universe‘?
Philosophy furnishes the following suggestions.
FIRST CAUSE

' Polytheism
Theism
Lord Herbert
Deism Locke
Cosmology l Monotheism .Vojtalre
Spinoza h
' Feuerbac
Panthelsm { -—Thoughts on Death
and Immortality.
256 APPENDIX
IssUEs.
Theistic Philosophy alleges that Spiritual Being is the
First Cause of the universe and thus transcends it,
is immanent in it, ever sustaining it and revealing
thought and purpose in its evolution.
Deistic Philosophy admits the transcedence of the First
Cause, but denies its immanence.
Pantheistic Philosophy admits the immanence of Spirit
in the universe, but denies its transcendence.
’ AUTHORITIES
Harris, Self-revelation of God, 251, 341.
_ 4 Flint, Theism, ch. 4.
Thelsm Bowne, Studies in Theism, 287.
Fisher, Princeton Review, July, 1881, p. 16.
Bowne, Phil. of Spencer, 219.
Harris, God, Creator and Lord, Vol. I, p. 78.
k
Deism { Lord Herbert.
. - Ueberwig, His of Phil, 55, 60-78.
Panthelsm {Spmoza' l Fullerton, Phil. of Spinoza.
As To ITs MANIFESTATIONS.
Theistic Philosophy suggests that the First Cause may
reveal itself in the phenomena of the universe, according
to the law of scientiﬁc evolution.
ISSUE.
Scientiﬁc Evolution alleges “that the existing arrange-
ment of the physical Universe, is the result of a contin-
uous and progressive evolution ﬁrom simple and lower
to more complicated and higher conditions and forms, ”
according to certain laws, and by means of resident
forces. (P. b. 455). .
Materialistic Evolution admits this, but alleges further
that the existing Universe, including life and mind,
is the result of matter and force which are alone eter-
nal.
APPENDIX 257
" AUTHORITIES
Harris, Phil. Basis of Theism, 455.
Drummond, Ascent of Man, 1.
LeConte, Princeton Review, March, 1881, p. 149.
Scientiﬁc 4 ]l§/IcCosh,PPrinceton Review,NMay, 1881, p. 367.
' owne, rinceton Review, ov. 1881, p. 344.
Ewlutwn Abbott, Outlook, Jan. 2 and 9, 1897.
Fiske, Destiny of Man, ch. 1 and 2, and p. 110.
Harris, God, Creator and Lord, Vol. 1, p. 72.
Bowne, Metaphysics, 271.
k Harris, Self-revelation of God, 278-280.

Haeckel, Princeton Review, May, 1880, p. 144.
Materialistic Buchner, Force and Matter.
Evolutlon Eglivlfiei, Phil. of H. Spencer, p. 146, 240.
III.
THE SoUL.
PSYCHOLOGY.
As there cannot be motion without a body to move, nor
an action without something to act, can there be thought
and feeling and choice without some being (Self) to
think, to feel, and to choose?
ISSUE.
Realistic Philosophy or Substantialism alleges that there
is a separate self, distinct from the phenomena of con-
sciousness.
Nihilistic Philosophy or N on-Substantialism denies that
there is any separate self, distinct from the phenomena
of consciousness, and alleges that mind consists in a
series of states of consciousness.
’ AUTHORITIES
Mivart, On Truth, 19.
Haven, Mental Science, 252.
Muller, Science of Thought, 64.
Hopkins, Princeton Review, ]an., 1881, p. 1.
Substantialism A Fisher, Princeton Review, july, 1881, p. 1.
Ladd, Elements of Psychology, 607.
Harris, Phil. Basis of Theism, 155, 94-99.
Mivart, Groundwork of Science, ch. 8.
Bowne, Metaphysics, 314.
McCosh, Intuitions of the Mind. 127.
Hickok, Rational Psychology, 714.

f
258 APPENDIX
r James, Psychology, ch. 10, p. 90.
Spencer, Psychology, Vol. 1, p. 193, Vol. 2, p. 501.
Mill, Examination of Hamilton. Vol. 1, p. 253.
Fiske, Cosmic Phil., Vol. 2, p. 119.
Non-Substan- Hume, Treatise of Human Nature, Bk. 1, part 4, § 6.
tialism Clifford’s Lectures and Essays, Vol. 1, p. 288, Vol. 2,
p. 57.
General Reply:
Harris, Phil. Basis of Theism, ch. 7.
Harris, Self-revelation of God, 80-1, 342.
A
IN GENERAL.
Realism alleges that there is a real existence of the ex-
ternal world, independent of all human thought about
it.
Idealism alleges that all reality is in its nature psychical;
that the souls of men, and God, and the ideas in them
are the only existences.
Realism Mivart, On Truth, 77, 3.83.
{ Harris, Self-revelation of God, 75-82, 193.
McCosh, Intuitions of the Mind, 108.
Berkeley, Principles of Human Knowledge, Philo-
sophical Works, Vol. 1, p. 155.
Idealism Royce, Spll'lt of Modern Ph1l., 341. _
Bowne, Theories of Knowledge, Idealism.
International Encyc. Vol. 7, p. 789.
Discussion, Hamilton Metaphysics, 198.
ETHIos.
The supreme question in ethics, both for the individual
and the state is: What is the greatest good man can
possess?
The correct answer to this question gives the supreme
law of human action. Some have said it is happiness,
others have said it is the perfection of one’s being, and
others claim that it is the perfection of one’s being, plus
the happiness necessarily involved in the process of at-
taining and in the possession of that perfection.
I.
Any correct answer to this question must recognize
the controlling fact that persons are ends in themselves,
APPENDIX 259
and are beings to be served. This is the supreme fact
in ethics.
AUTHORITIES
Kant, Fundamental Principles of the Metaphysic of
Morals. Abbott’s Trans.
Harris, Self-revelation of God, pp. 285,501.
Harris, Philosophical Basis of Theism, 266-285.
Seth, Ethical Principles, 214.
Kant, Theory of Ethics, pp. 52, 56, 302, 306.
II.
If persons are to be served, what is the greatest service
that can be rendered them, or what is the greatest good
that they may attain for themselves, or help others to
attain?
IssUE.
Hedonism says that happiness is the greatest good, and
the supreme end of human conduct.
Intuitive ethics says that the perfection of one’s being
and the happiness necessarily connected with it is the
greatest good and-the supreme end of human conduct.
’ AUTHORITIES
Zeller, Socrates and the Socratic Schools, ch. 7, and
ch. 13.
Zeller, Stoics, Epicureans, and Sceptics, Part 2.
W. \Vallace, Epicureanism.
H. Sidgwick, History of Ethics, ch. 2, § 3, 4, 16
and 17.
Bentham, Introduction to the Principles of Morals
and Legislation.
1. S. Mill, Utilitarianism.
Hedonism < L. Stephens, Science of Ethics.
H. Spencer, Data of Ethics, Part 1.
H. Sidgwick, Method of Ethics, Bk. 3, chs. 13 and
_ 14; Bk. 4.
T. H. Green, Prolegomena to Ethics, Bk. 3, ch. 4,
§ 219-239; Bk. 4, ch. 4.
I. Martineau, Types of Ethical Theory, Vol. 2, Part
2, Bk. 2, chs. 1 and 2.
Hume, Enquiry Concerning the Principles of Morals;
Treatise on Human Nature, Bk. 3.
E. Albee, History of English Utilitarianism.
c I. Dewey, A Study of Ethics, pp. 41-68, 115-123.

260 APPENDIX
rKant, Fundamental Principles of the Metaphysic of
Morals. Abbott’s Trans.
Seth, Ethical Principles, 79-235.
Harris, Philosophic Basis of Theism, Chap. 9.
Harris, Lord and Creator of A11,Vol. 2,p. 147, 178-192.
Intuitive Ethics< W. W. Capes, Stoicism.
Windelband, History of Philosophy, § 72-85.
Butler’s Sermon’s, 1-3, 11 and 12.
I. Dewey, Outline of Ethics, pp. 78-95, 147-152.
I. S. Mackenzie, Manual of Ethics, Bk. 2, ch. 3.
sF. H. Bradley, Ethical Studies, Essay 4.

THE STATE.
Persons are ends to be served, and the state and civil
government are means by which their highest good and
general welfare are to be secured.’
In order to do thi§ the state and the individual must
both observe the universal moral law, seeking to realize
their perfection and well-being through the exercise of
justice. benevolence and veracity.
’ AUTHORITIES
Harris, God, Lord and Creator of All.
Woolsey, Political Science, Part 2, chs. 4 and 5.
Burgess, Political Science, Vol. 1, p. 83.
Bluntschli, Theory of the State, 305-326.
Wood, Government and State, chaps. 2 and 3.
Humboldt, Sphere and Duties of Government.
.< Mill, J. S., Liberty, Political Ec., Book 5.
Locke, Treatise on Government, Bk. 2, ch. 9.
Seth, Ethical Principles, p. 287.
Lieber, Political Ethics, Vol. I. 159.
Harris, God, Creator and Lord of All, Vol. 2, p. 388-525
and 538.
Spencer, Principles of Ethics, 212, 222.
Willoughby, Nature of the State, Ch. 12.
cEncy. Britannica Government.

INDEX.
Absolute Reason . . . . . . . 100-154
Agnosticism . . . . . . . . . . . . 3
Altruism . . . . . . . . . . . . . . . . 96
Anaxagoras . . . . . . . . . . . . . 2
Anaximenes . . . . . . . . . . . . . 2
Andrews, James D. .. 218
Animal Intelligence . . . . .. 53
Animal Kingdom . . . . . . . . 132
Antigone . . . . . . . . . . . . . . . . 5
Apollo . . . . . . . . . . . . . . . . . . 101
Association, Laws of. . . . . 72-73
Atoms . . . . . . . . . . . . . . . . . . 29
Augustin . . . . . . . . . . . . . . . . 111
Aurelius, M. . . . . . . . . . . .. 102-111
Austin, John . . . . . . . . . . . . 219
Authority . . . . . . . . . . . . . . . 83
Bascom, John . . . . . . . . . .. 134
Battle, Law of . . . . . . . . . . . 43
Benevolence . . . . . . . . . . . . . 113
Biogenesis, Law of . . . . . . . 52
Blackstone . . . . . . . . . . . . . . 219
Bowne, Prof. Borden P.. . 41-46
Buckle . . . . . . . . . . . . . . . . . . 110
Budha . . . . . . . . . . . . . . . . . . 110
Burke, Edmund . . . . . . . . . 9
Caesar . . . . . . . . . . . . . . . . . . 2
Carlyle . . . . . . . . . . . . . . . . . 154
Carter, James C . . . . . . . . .
. . . . . . . . . . . . .81, 95, 134, 167,218

Courts . . . . . . . . . . . . . . . . . . 138
English . . . . . . . . . . . . . . . 138
Give Effect to Natural
Law . . . . . . . ..179-180, 181-182
Judicial Notice Illus-
trated . . . . . . . . . . . . . . .185, 195
Judicial Notice of Self
Evident Truths . . . . .. 178
Take Judicial Notice of
Natural Laws . . . . . .. 178
Creator, to be served... 97
Custom, Deﬁned . . . . . . .. 134-135
Customs . . . . . . . . . . . . . . . . 133
As Laws . . . . . . . . . . . .. 135
Become Postive Law by
Judicial Recognition. . 139
Domestic . . . . . . . . . . . . .. 135
First Method of Law
Making . . . . . . . . . . . . . 139
Regulative Tendency of 138
Religious . . . . . . . .' . . . . .. 136
Social . . . . . . . . . . . . . . . . 137-138
Darwin . . . . . . . . . . . . . . . . . 39
Demosthenes . . . . . . . . . .. 5-14
Desires—-
For Power, Knowledge
Esteem . . . . . . . . . . . .. 126-127
Dillon, J. F . . . . . . . . . . . . . .. 219
Divine Law . . . . . . . . . . . .. 230
Embraces Natural Law 230
Draper . . . . . . . . . . . . . . . . . . 8
Drummond, Henry . . . . .. 12-32
Duties and Rights . . . . . . .. 112
Duty——
To self . . . . . . . . . . . . . .. 95
To neighbor and to God 96
Egoism . . . . . . . . . . . . . . . .. 96
Electricity . . . . . . . . . . . . . . 30
Epictetus . . . . . . . . . . . . . .. 110
Ethics . . . . . . . . . . . . . . . . .. 174
Precedes Jurisprudence. 174
Supplements Jurispru-
Causation, Law of . . . . . . . . 122
Choice, Laws of. . . ...~ . 77-8
Choice . . . . . . . . . . . . . . . . . . 66
Christ . . . . . . . . . . . . . . . . . . . 7
His teachings regarding
Law . . . . . . . . . . . . . . . . 107
Christianity . . . . . . . . . . . . . 110
Chrysippus . . . . . . . . . . . . . . 6
Cicero . . . . . . . . . . . . . . . . .6, 14, 111
Clark, Prof. E. C... .. .. . . 221
Commandments—
Two Commandments one
law . . . . . . . . . . . . . . . . . 106
Compensation, Law of... 38
Complex of Causes . . . . .. 22
Conformity to Type, Law
of . . . . . . . . . . . . . . . . . . . . . 42
Confucius . . . . . . . . . . . . . .. 110
Conscienece . . . . . . . . .66, 80, 81-85
Constitution, Supreme. . .. 160
Constitutional Law, Em-
braced in Positive Law. 221
dence . . . . . . . . . . . . . .. 174
Etiquette, Law of . . . . . . .. 213-214
Equity . . . . . . . . . . . . . . . . .. 177
Forbids Fraud, Deceit,
Misleading Silence. . . 177
Evolution, Law of . . . . . . .. 44-130
Fashion, Law of . . . . . . .. 214-215
First Cause . . . . . . . . . . . .. 3-153
Fiske, John . . . . . . . . . . . .32, 93, 131
26%2
IDIIDIZJi
Force—
AS Law . o . . . . . . . . . . . . .
Cause of Events . . . . . . .. 21
Persistency of . . . . . . . . . 25
Frederick the Great . . . . .. 154
Gases . . . . . . . . . . . . . . . . . . . 29
Generalized Facts—
AS Law . . . . . . . . . 28, 72, 125, 147
Giddings, Franklin . . 144
Elements of Sociology
by . . . . . . . . . . . . . . . 144-145-146
God—
A Moral Being . . . . . . .. 154
All Natural Law His
Law . . . . . . . . . . . . . . . . . 105
Author of Natural Law 230
Love of, Motive of Ac-
tion . . . . . . . . . . . . . . . . . 104-105
Subject to Laws of Rea-
son . . . . . . . . . . . . . . . .. 154
Good . . . . . . . . . . . . . . . . . . . 95
Greatest . . . . . . . . . . . . . . 114
Man’s Good Consists of
Perfection and Happi-
ness . . . . . . . . . . . . . . . . 92
Gravitation . . . . . . . . . . . . . 2s
Gresham’s Law . . . . . . . .. 143-144
Guyot . . . . . . . . . . . . . . . . . .. 131
Haﬁz . . . . . . . . . . . . . . . . . . . 111
Hall, Wm. E. . . . . . . . . .. 221
Hamilton, Sir William. . . . 91
Hammurabi . . . . . . . . . . . . . 231
Code of . . . . . . . . . . . . . . . 231
Happiness—
An Incident not an End 90
Harris, Samuel . . . . . . . . . . 92
Hastings, Warren . . . . . .. 7
Heat . . . . . . . . . . . . . . . . . . . . 29
Hedonist—-
Theory of Incorrect.. . . 90
Hercules . . . . . . . . . . . . . . .. 101
Hibben, H. P. . . . . . . . . . .. 82
Higher Law . . . . . . . . . . . . 9
Holland, T. E . . . . . . . . . . .. 139
Honor, Law of . . . . . . . . .. 213
Hooker, Bishop . . . . . . . .. 8
Hopkins, Mark . . . . . . . . .. 32-34
Human Law . . . . . . . . . . .. 207
Deﬁned . . . . . . . . . . . . . . . 207
Embraces Rules for
Personal Improve-
ment . . . . . . . . . . . . . .208, 211
For Social Improve-
ment . . . . . . . . . . . . .211, 212
Humanity— > '
Capable of Progress... 125
Humboldt . . . . . . . . . . . . . . . 88
Hypotheses, as Law. . . . . 50
Inertia, Law of . . . . . . . . . . 4O
Instinct, as Law . . . . . . . .. 53

Intellect . . . . . . . . . . . . . . . . 62
International Law . . . . . . . 228
Intuition—
Rational . . . . . . . . . . . . .. 96
Jenet, Paul . . . . . . . . . . . . .. 91
Jurisprudence . . . . . . . . . . . 3-15
A Social Science . . . . . .. 140
Branch of Applied Eth-
ics . . . . . . . . . . . . . . . . .. 180
Deals with Objective
Justice . . . . . . . . . . . . . . 176
Ethical Basis of . . . . . . .. 170
Its Relation to Natural
Law . . . . . . . . . . . . . . . . 178
Rests on the One Moral
Law . . . . . . . . . . . . . . .. 172
Justice . . . . . . . . . . . . ..113-160-164
Deﬁned . . . . . . . . . . . . . . . 164
Is Tap Root of Juris-
prudence . . . . . . . . . . . . 174
Objective . . . . . . . . . . . .. 165
Sentiment of . . . . . . . . .. 166
Subjective . . . . . . . ..164, 165, 193
Justinian . . . . . . . . . . . . . . . . 140
Kant, Immanuel . . . . . . . . . 88
Kepler ——
Three Laws . . . . . . . . . .. 29
Law—
Eternal . . . . . . . . . . . . . .. 156
Generic and Universal. 1
Human . . . . . . . . . . . . . . . 4
Many Senses . . . . . . . .. 11
Human . . . . . . . . . . . . .. 16
Natural . . . . . . . . . . . . . 13-16
Moral . . . . . . . . . . . . . . . . 10-100
Not Product of God’s
ill . . . . . . . . . . . . . . .. 159
But Inherent In Rea-
son . . . . . . . . . . . . . . . 159
Of Battle . . . . . . . . . . . . . 43
Of Biogenesis . . . . . . .. 52
Of Compensation . . . . . . 38
Of Conditioning and
Conditioned . . . . . . . . . 32
Of Contradiction . . . . .. 23
Of Demand and Supply 142
Of Development of the
Social Composition .. 146
Of Evolution . . . . . . . .. 44-130
Of Increase of Capital.. 141 '
Of Increase of Labor... 141
Of Increase of Products 142
Of Inertia . . . . . . . . . . . .. 40
Of Instinct . . . . . . . . . . . . 53
Of International Values
Stated . . . . . . . . . . . . . .. 143
Of Liberty . . . . . . . . . . .. 146
Of Light . . . . . . . . . . . .. 29
Of Liquid . . . . . . . . . . . .. 29
Of Obligation . . . . . . . . . 82
INDEX
2€K3
Law—(Continued)—
Of Progress . . . . . . . . . . . 129
Of Reception and Pro-
duction . . . . . . . . . . . .. 23
Of Rent . . . . . . . . . . . . . .. 143
Of Service . . . . . . . . . . .. 95
Of Survival of Social In-
terests . . . . . . . . . . . . .. 147
These Laws Mere
Statements of Fact. 147
Of Survival of the Fit-
test . . . . . . . . . . . . . . . .. 35
Of Sympathy . . . . . . . . . . 145
Postive Deﬁnition . . . .. 218-219
Spiritual . . . . . . . . . . . . . . 100
Summary of . . . . . . . . .. 106
Three Systems . . . . . . .. 160
Ultimate Standard of
Right and Wrong. . .. 90
Laws—-
In Secondary Sense. . .. 71
Of Thought . . . . . ..67, 68, 69-70
Sociological . . . . . . . . . . . 121
Idberty . . . . . . . . . . . ..117,118,160
Deﬁned . . . . . . . . . . . . . . . 1.63
No Liberty without Re-
straint . . . . . . . . . . . . . . 163
Lidden . . . . . . . . . . . . . . . . . . 156-157
Life, Right t0 . . . . . . . . . . . . 116-117
Love—
Supreme Law of Human
Action . . . . . . . . . . . . . . 101
Lowell, J. R . . . . . . . . . . . . .. 88
Lycurgus . . . . . . . . . . . . . . . . 230
Code of . . . . . . . . . . . . .. 230
Man—
An Object to be Served 97
Fourfold Nature of. . . . . 89
His Four Natures . . . . .. 102
Spiritual Highest .. .. 102
His Spiritual Nature... 102
Must Serve Himself. . .. 99
Serve Self by Serving
Others . . . . . . . . . . . . . . 99
Marshall, Alfred . . . . . . .. 142-143
Matter, Properties of... .. 17
McCosh, James . . . . . . . .. 11-66
Mill, J. S . . . . . . . . ..88,101, 141,166
Mind—-
A Causative Power. . . . . 61
A Single Entity . . . . . .. 61
How Differs from Mat-
ter . . . . . . . . . . . . . . . . . . 61
Human Laws of . . . . . . . . 194
Judicially Noticed . .. 196-197
Mental Order as Law.. 78
Mivart St. George . . . . . . .. 21-54

Moral Law . . . . . . . . . . ..10, 80-107
All Comprehensive 170
Co-eval with Rational .
Beings . . . . . . . . . . . . .. 172
Foundation of Jurispru-
dence . . . . . . . . . . . . . . . 172
Its Object Man . . . . . . . . . 102
Recognized in Remotest
Day . . . . . . . ..107-108-110-111
Rooted in Human Con-
- stitution . . . . . . . . . . . . 112
The Moral Law Mani-
fests Itself in Justice,
Benevolence, Veracity 173
Motive——
Effect on Legality of
Action . . . . . . . . . . . . . .198, 204
Natural Law—
Not An Efficient Cause 61
Natural Laws——
Are Divine . . . . . . . . . . .. 231-232
Nicholson, J. S . . . . . . . . . .. 144
Obligation, Law of.. .. ... 82
Order—
Intellectual and Moral
aw . . . . . . . . . . . . . . .. 119
Orderly Sequences as
Law . . . . . . . . . . . . . . . .48, '74, 147
Organic Life . . . . . . . . . . .. 51
Palace of Justice . . . . . . . .. 10
Paulson . . . . . . . . . . . . . . . . . 93
Perfection—
As Ultimate Good . . . . .. 89
Not Absolute . . . . . . . . .. 95
Realized only by Obed-
ience to Law . . . . . . .. 89
Perry, Arthur L . . . . . . . . .. 142
Persistency of Force. . 25
Person—
As an End . . . . . . . . . . .. 87-97
Deﬁned . . . . . . . . . . . . . . . 67
Phenomenal Order—
As Law . . . . . . . . . . . . . .. 57
Phillips, Wendel . . . . . . . . . 87
Philosophy—
First Principles of . . . . .. 150
Intuitional . . . . . . . . . . . . 149
Its Truths Self-evident 150
Natural . . . . . . . . . . . . . . . 152
Necessary . . . . . . . . . . . .. 151
Teaching of . . . . . . . . . .. 150
Universal . . . . . . . . . . . .. 151
Theistic Philosophy ... 153
Its Teachings . . . . . .. 153
Pindar . . . . . . . . . . . . . . . . . . 6
Plato . . . . . . . . . . . . . . . . . .. 101-110
Political Economy . . . . .. 140-141
Laws of...... . . . . . . . .. 140
264
INDEX
Pollock, Sir Frederick. . .. 220
Porter, Pres. . . . . . . . . . . .. 168
Positive Law—
As Correctly Deﬁne;l.. 224
Deﬁnitions of ... ... . . . 218-219
Embraces Constitution-
al Law . . . . . . . . . . . . . . 221
Includes International
Law . . . . . . . . . . . . . . .. 222-223
Primary Truths . . . . . . . .. 124
Enumerated . . . . . . . . . . . 20
As LaW to physical
force . . . . . . . . . . . . . . .20-24-25
As Law to Intellectual
power . . . . . . . . . . . . .. 67-70
As law to will power.. 80
As law to Social forces 124
They are laws to both
thought and things... 149-150
Progress-—
Distribution and Devel-
opment . . . . . . . . . . . . . 132
Law of . . . . . . . . . . . . . .. 129-133
Must Strive for it. . . . . 104
Spiritual . . . . . . . . . . . . . . 103
Property, Right to . . . . . .. 118
Rational Intuition . . . . .. 62-96
Reason—
Authoritative . . . . . . . . . . 83
Its Truths Supreme . . . . 159
Legislative . . . . . . . . . . . . 159
Recognizes Self-evident
ruth . . . . . . . . . . . . . .. 153
What it Commands. . . .. 86
Perfection . . . . . . . . . . . 87
Reﬂection . . . . . . . . . . . . . . . 64
Representation . . . . . . . . . . 63
Right and Wrong . . . . . . .. 161
A Right Deﬁned . . . . . .. 115
Ground of is in Law... 162
Right and Wrong Imply
Law . . . . . . . . . . . . . . . . 162
Rights and Duties—
Correlative . . . . . . . . . . . . 112-113
Developed from Moral
Law . . . . . . . . . . . . . . . .- 113
Rights, Universal and In-
alienable . . . . . . . . . . . . .. 168-169
Rules— _
Conventlonal, as Law.. 215-216
Legal . . . . . . . . . . . . . . . . . 211
Ruskin, John . . . . . . . . . . . . 88
Saadi . . . . . . . . . . . . . . . . . . . 111
Seneca . . . . . . . . . . . . . . . . . . 102
Sensibility . . . . . . . . . . . . . . 62-64

Service——
Law of . . . . . . . . . . . . . .. 95-100
A Law of Legitimate
Business . . . . . . . . . . . . 109
An Act of \Nill . . . . . . . 100
Gratuitous . . . . . . . . . . . . 171
Is Fundamental, All-
comprehensive . . . . . . 114
Shakespeare . . . . . . . . . . . .. 101
Society—
Subject to Law . . . . . . .. 124
Sociology, Science of.121, 123-144
Solon, Code of . . . . . . . . . .. 230
Sophocles . . . . . . . . . . . . . .. 5
Sound, Laws of . . . . . . . . .. 30
Spencer, H. . . . . . . . . . . . .. 128
Spiritual Law . . . . . . . . . .. 100
Its Object—God . . . . . . . 102
Stewart, Dugald . . . . . . . . . 169
Stoics . . . . . . . . . . . . . . . . .. 111
Summum Bonum—
Perfection and Happi-
ness . . . . . . . . . . . . . . . . 88
Summary . . . . . . . . . ..157, 158,204
Final Summary and
Conclusions . . . . . . . . .233, 251
Sumner, Charles . . . . . . . . . 7
Terrence . . . . . . . . . . . . . . . . 111
Thales . . . . . . . . . . . . . . . . .. 2
Theories, As Law . . . . . . . . 150
Thought, Laws of . . . . . .. 68-70
Tolstoi . . . . . . . . . . . . . . . . . . 7
Truth—
As Law . . . . . . . . . . . . . . . 20
As True Laws of Nature 155
Intuitive . . . . . . . . . . . . . .' 150-155
Uniform Expressions .. .. 75
Use and Disuse, Law of.. 39
Utilitarianism . . . . . . . . . . . 166
Utility—
Not Ultimate End of
Action . . . . . . . . . . . . . . 90
Veracity . . . . . . . . . . . . . . . . 113
Virgil . . . . . . . . . . . . . . . . . . . 2
Walker, F. A . . . . . . . . . . . .. 143
Well—Being—
Highest . . . . . . . . . . . . . . . 171
Begins in Moral Char-
acter . . . . . . . . . . . . . . . . 171
Will . . . . . . . . . . . . . . . . . . .. 62-65
Freedom of . . . . . . . . . .. 122
Wilson, James—
Works of . . . . ..81, 119, 134,230
Wood, Henry . . . . . . . . . .. 12
Wrong . . . . . . . . . . . . . . . . . . 161
Zeno . . . . . . . . . . . . . . . . . . . . 6
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