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AUSTIN

JUKISPRUDENCE

STUDENT'S EDITION

PRINTED BY

BFOXTISWOODE AND CO., NEW-STREET SCJITAHE

LONDON

The Students Edition

LEOTDRES ON JURISPRUDENCE

OR THB

^Po^opfjp of g)o.0itil3C HatD

BY THE LATE

JOHN AUSTIN

OF THE IXSER TEMPLE, BAKBISTEB-AT-LAW

ABRIDGED FROM THE LARGER WORK FOR TBS USE OF STVDENTa

By ROBEET CAMPBELL

OV LINCOLN'S IXN, BAHRISTER-AT-LAW

SEVENTH THOUSAND

LONDON
JOHN MURRAY, ALBEMARLE STREET

1890

All rights reserved

Lately Ptchlished.

LECTURES ON GENERAL JURISPRU-
DENCE ; or, the Philosophy of Positive Law. By
John Austin Edited by Robert Campbell.
FiftJi Edition. 2 vols. 8vo. 325.

AN ANALYSIS OF AUSTIN'S JURISPRU-
DENCE FOR THE USE OF STUDENTS.
By Gordon Campbell. Third Edition. Post
8vo. 6*.

Mo

INTEODUCTION.

ON THE PURPOSE AND SCOPE OF THE
FOLLOWING LECTURES.

The valtte aud importance of the late John Austin's work in
the field of jurisprudence liavs been now so long and so widely
recognised that it would be superfluous to insist upon them in
this place. Except by a veiy few persons, the recognition was
late. Had it come earlier, the author might have been encouraged
to complete the record of the work upon which he entered. As it
is, that record breaks oft' in vvdio ; and for the preservation and
arrangement of what remains, the public are in great measure
indebted to the ability aud industry of the lady whose name is
subscribed to the preface of the first posthumous edition. In that
preface Mrs. Austin explained, by a personal naiTative of conaimimate
literary skill and absorbing interest, the reasons why the work was
broken off and never resumed by its author. An attempt to
abridge that narrative would be almost an injury to both the
persons here referred to. In order, however, to enable the student
to seize the point of view of the original Lectiu-es, the following
bare outline of facts seems necessary.

John ArsTiN was born in 1790. At a veiy early age he entered
the army, in which he served for five }'ears. He was called to the
bar in 1818 after the usual preparation as a student. In 1820 he
married the lady above mentioned, to whom he had been for several
years attached. She belonged to a gifted family, the Taylors of
Nonvich ; and to the attractions of great personal beauty in early life,
added the endiu-ing qualities of a clear and energetic intellect, high
principles of action, and a large heart.

Possessing to excess the subtlety of mind which sometimes,
when laid under conventional restraints, contributes to the

viii Liti'oditction.

reputation of a consummate lawyer, Mr. Austin was yet unfitted for
success in business by delicate healtb and a too bighly strung and
sensitive organization. After a vain struggle in which his health
and spii-its suffered severely, he gave up practice in the year 1825.

In 1826 the University of London (now University College)
was established. Among the sciences which it was proposed to
teach was Jurisprudence, and Mr. Austin was chosen to fill that
chau'. As soon as he was appointed he resolved upon going to
study on the spot what had been done and was doing by the great
jurists of Germany, for whom he had already conceived a profound
admiration. After some preliminary study of the German language,
he went in the autumn of 1827 to Germany. Having visited
Heidelberg, he established himself with his wife and child at Bonn,
then the residence of Niebulir, Brandis, Schlegel, Arndt, Welcker,
IMackeldey, Heff^ter, and other eminent men. With ready access
to this society, and with the assistance of a yoimg jurist as privai-
docent in reading German books upon law, he found excellent
opportunities for the study and preparation which he desii'ed. In
the spring of 1828 he returned to England and commenced his
work in the chair.

His career as a professor opened brilliantly, and his first class
included many who aftenvards became most eminent in law,
politics, or philosophy. But it soon became apparent that the
inducements to the scientific study of jm-isprudence in this country
would not afford a succession of students to maintain an unendowed
chair ; and he found himself under the necessity of resigning.

In June 1832 he delivered his last Lecture. In that year he
published the volimie entitled ' The Province of Jiu-isprudence De-
termined,' in the form of six Lectures, accompanied by an Outline
of the entire Coui'se of Lectm-es contemplated by him. This
' Outline ' is in itself a well-considered summary of the topics
embraced by the field of law, arranged on a philosophical system.
Subsequently (in 1834) an attempt was made by the Society of the
Inner Temple to institute a course of instruction in scientific jm-is-
prudence : and Mr. Austin was engaged to deliver a course of
lectures. But from causes similar to those already mentioned, and
which doubtless applied with still greater force to a scheme in-
augurated by a close society, the attempt proved a failm-e.

In consequence of this double failure Mr. Austin finally aban-
doned the idea of pm-suing in England the work of a teacher of
jiu-isprudence. His activity was tm-ned into other channels : and
when periods of rest and improved health supeiTened, he was not

Introdttction. ix

disposed to pick up the scattered threads of unappreciated and
interrupted worlc. Nor, although a demand was at length estab-
lished for the published volume, which became out of print, could
hs be persuaded to republish it.

After his death Mrs. Austin (in 18G1) by the advice of friends
edited a reprint of the volume containing ' the Province,' ■with the
preface above referred to. This was followed two years later by
two volumes containing all that by extreme diligence and assiduity
could be found and put together of Austin's work. Subsequently
the valuable notes of the original Lectures taken by J. S. Mill, who
was a constant attendant upon the course, were placed in Mrs.
Austin's hands for another edition. She commenced the prepara-
tion, but her death left the work unaccomplished, and it devolved,
at the request of the executors, on the present editor, Avhose edition
was published in 18G9. Of this the edition of 1873 is a reprint
with a few slight verbal corrections.

The large and increasing demand for Austin's Lectures for the
use of students has suggested an abridgment, which has been
.attempted in the following pages. While endeavouring to preser\ e
the train of thought, and much of the characteristic expression
of the author, I have not hesitated to diverge from the text where
it appeared to me necessary, and I have occasionally introduced
illustrations ft-om some events of more recent date than the original
work. It being remembered that the last of the Lectures was
delivered in 1832, and that the same year was that of the original
publication of ' the Province,' these passages will be readily dis-
tinguishable. In other passages where I have intentionally de-
parted from the meaning of the text, I have either used brackets
and the initials ' R. C or expressly pointed out by a note the
place of divergence (as for instance on p. 401). For the text of the
author so far as remaining extant the reader is referred to the larger
edition.

Having thus briefly explained the circumstances under which
the Lectures were originally delivered and published, I now proceed
to indicate the salient points which, as I understand the author's
method, appear to fm-nish the key to it.

* A considerable part of the substance of the following analysis appeared
5b the ' Edinburgh Journal of Jurisprudence ' for October 1863. — R. C.

X Introduction.

The appropriate subject of jurisprudence, or the matter with
which that science (as understood by Austin) is conversant, is
, Positive Laio ; that is, law established or ' positum,' in an independent
political community, by the express or tacit authority of its sove-
reign or supreme government.

In order therefore to determine the province of jurisprudence,
it is necessary to obtain a comprehensive and rigorous definition of
its subject, namely, Positive Law. To distinguish positive law jErom
objects to which it is related by resemblance or analogy, aiyi which
are signified jyroperhj or improperly by the large and vague expres-
sion laxv, is the purpose of the work originally published by the
author under the title of ' The Province of Jurisprudence Deter-
mined ; ' corresponding to the fu-st six Lectures of the series as now
published.

It would be out of place in this brief abstract to attempt an-x
outline of the method adopted in arriving at the requisite definition.
Briefly, Positive Law may be described as consisting of commands
set, as rules of conduct, by a Sovereign to a member or membeis of
the Independent Political Society wherein the author of the Law is
supreme* But in this description the object sought to be defined
is implicated with other terms and notions, each of which can
only be explicated by an intricate and difficult analysis. And the
labour of mastering this analysis is not easily to be abridged.

As an illustration of the definition of positive law ultimately
arrived at, I will here note one consequence which may seem, at
first sight, peculiar.

What is commonly called International Law is excluded from
the proper province of jurisprudence. It is obvious that those
rules commonly known as International Law, can have neither
their source nor their sanction in common with the law embraced
in the above description. The subject is, therefore, ine\-itably
relegated to take its place in a department of a science which-,
would properly be called that of Positive Morality; and if lan-
guage rigorously consistent were used, it would be termed, not
International Laic, but International Morality.

Limited to the consideration of the positive laws or rules of a
particular or specified community, jm-isprudence is 2}orticular or
national.

* ' Law is the command of a sovereign containing a common rule of life
for his subjects.' — Erskine's Principles of the Law of Scotland, ("1754.^

Introduction. ki

Althougli every system of law Las its specific or characteristic
differences, there are principles, notions, and distinctions common
to various systems, and forming analogies or likenesses by Tvhicli
such systems are allied. Many of these principles are common to
all systems — to the scant}- and crude systems of rude societies, and
the ampler and matui'er systems of refined communities. But the
ampler and maturer systems of refined commimities, besides being
allied by the numerous analogies which obtain between all sys-
tems, are allied also by analogies between themselves so numerous
and remarkable as to be the subjects of an extensive science. This
science is called general Jiu"isprudence, or the Philosophy of Posi-
tive Law^

The science of general jurisprudence is therefore distinguished,
on the one hand, from particular or national jurisprudence, and on
the other, from the science which concerns itself with the contem-
plation of law as it should be, or the adaptation of positive law to
the wants of a community, which is the science of Legislation. It
is, however, closely allied to each of these branches of knowledge.
That a study of general jurisprudence may with advantage precede
or accompany the study of a particular system of positive law is
now generally admitted even in England. The connection of
general Jurisprudence with the science of Legislation is still more
intimate. Nothing is more suggestive of improvement in an indi-
vidual system than the study and comparison of analogous institu-
tions in other systems ; and if an example were needed, it would
suffice to refer to the labours of the great Roman jurists, who, bv
a comparative study of the jus gentium (the law of the nations
known to them), that is, by the general jurisprudence of their dav,
elaborated and perfected their own system to be a model for
civilized commimities in all later times.

Having defined the province of jurisprudence and distinguished
general fi-om particular jiu-isprudence, the next topic is the analysis
of certain leading notions which are met with at every step in the
field of jurisprudence, and which pervade every particular system of
positive law. Such are persons, as those upon whom or for whose
benefit laws are imposed : things, acts, forbearances, as the matter
with which laws are conversant : wish, or desi e, in those phases
respectively called motive, toill, intention, with the negative phases
commonly included in the term negligence — in short, those notions
which belong to the modus operandi by which laws effect their
purpone of stimulating or preventing human action. Lastly, and

xii Introduction.

as iuvolviug the analysis of all the above uotious, to aualyze the
all-pervading and familiar yet most complex notions of rujht and
injury.

Lea\'ing the preliminary but necessary task of definition, the
author proceeds to the body of his discovu-se by considering law
imder two aspects : first in relation to its sources and the modes in
which it begins and ends ; and secondhj, in relation to its purjjoses
and the subjects about which it is conversant.

In treating of law in relation to its sources and the m^bdes in
which it begins and ends, the following are the leading distinctions
and topics adverted to : —

I. A law is set either by the Sovereign imniediatelij, or by a
person or persons in subjection, by the delegation or permission of
the Sovereign.

II. It is set either in the 2)roperly legislative mode, or in the
oblique mode oi judicial legislation.

III. Although aU laws flow from the Sovereign as their source
(whether immediate or ultimate), they differ in the causes whereby
the Sovereign has been moved to establish them. Amongst these
causes perhaps the most important to be considered is custom. It
is at once the most wide-spread in its operation, and the cause
whose mode of operation has been most often misconceived. Many
wiiters on jurisprudence have imagined that custom is itself law,
or rather that the persons among whom the custom prevails are,
as entertaining and enforcing the custom, the sources or authors of
law. Accordingly law obtaining through custom has been erected
into a distinct species and called _;';« morihas constitutum.

Now by Austin's analysis it becomes apparent that the phrase
last mentioned is misleading, as involving the misconception just
adverted to. It is nevertheless important that laws wliich arise in
consequence of custom should be considered in relation to the
custom as their cause. And for brevity and because the expression
is familiar, it is convenient to speak of law viewed in this aspect
i\sjus morihus constitutum. But the phrase, as adopted by Austin,
means, not that custom is the source of the law, but that the law has
been fashioned hj judicial decision upon pire-e.visting custom. The
phrase indeed would be equally applicable to law fashioned by direct
legislation upon pre-existing custom. But the phrase so employed
would embrace laws to which it was never applied by the Roman
lawyers. Xo one has ever imagined that laws of the class laat

Introduction. xi!i

metitioned emanated trom any authority other than the Learis-
latiire.

It must be confessed that an investigation into the nature of
what is called customary law puts a severe strain upon the rigid,
definition laid down by Austin. There is indeed little difficulty
in the case of a community enjoying a well settled system of law
like our o^vn. It will readily he admitted for instance that the
binding force of a custom such as the intestate descent of gavel-
kind lauds in Kent to the sons equally, obtains, not by the will
and practice of the men of Kent among whom the custom prevails,
but by the authority and sanction of the Lnperial Courts of justice
which maintain and enforce the custom as law. So in the case
where a certain course of dealing is set up as the general usage of ■
merchants, or the usage of merchants in a particular trade.
Whether or not the usage has the force of law depends on the
decisions of the Oom-ts ; and many such usages are gradually es-
tablished as law, fii'st by their existence being proved, and the
Court deciding that the usage so proved is good in law ; and the
Com-ts subsequently recognising the usage as a good legal custom
without special proof. In all these cases the usage is law, not by
reason of the habit prevailing amongst those using it, but because
a law has been fashioned by judicial decision upon the pre-existing
custom. Again there would be no difficulty in the case of com-
munities so destitute of any tie of political cohesion that they may
be said to live in a state of nature. Here clearly there can be no
positive law, nor anything like it.

But take the case of British Lidia: a congeries of societies
which the advent of British rule found in various stages of organi-
zation. Some of them had the rudiments of a system of property
law ; most were already feirly organized so far as relates to Police
and Land Revenue •, while in others the political cohesion itself was
of a rudimentary type. In all these societies British rule for the
first time introduced laio (jus) in the full significance imparted to
the word by Roman institutions — the command of the State per-
vading the transactions of the individual members of the society.
"What are here the relations of custom and law ? The answer tn
this question is sketched with a light but masterly hand in Sir H,
^Maine's interesting and suggestive book on Village Communities.
I am informed by my friend Mr. Rattigan, who, as I imderstand,
is preparing a book upon Customary Law in relation to India and
particularly to the Punjab — a book which may be looked for with
Ijreat interest — that the phase now assimied by this c[uestioD in

xiv Introdiictioil.

the last-named district is especially remarkable. It seems that a^
the waves of couquest passing the gates of the Xorth-west succes-
Bively indented upon the Eastern plains the bonds of Hindoo
and Mahommedan Law, the inhabitants of the frontier district,
unaflected by those wi-itten codes, remained clinging with tenacity
to their ancient village customs. Hitherto the sanction of these
customs has consisted in the force of opinion exerted severally by
the innumerable petty ■silLige communities ; nor have those customs
yet received any direct recognition from the State. To such a state of
things the Roman notions of laic, obligation, sanction, seen hardly
applicable. The State can scarcely be said to prescribe as law a
custom of which it has no cognisance. Nor can the notions of
duty and sanction apply in the case of a custom, to contravene
which has not been thought of as within the circle of hvmian
desires. The advent of British rule in fact meets with the reign
of the Oommimes in their primitive shape, a form of society which
has everywhere vnelded to the stronger organization based upon
Eoman types. "With the reign of Laio in the Roman sense, intro-
duced by British rule, the nature of the customs inevitably became
transformed in the manner indicated by Sii- H. Maine. What was
a flexible and bending custom becomes transmuted into a rigid
rule of law. Such customs as may ultimately be established to be
good, will obtain as law, not merely because they obtained as
custom, but because they are established as kw by the decisions of
the tribunals. Tn the mean time and pending the final settlement
of the questions which arise, such legal force as the customs enjoy
consists not in the authority of the several communes, which can
hardly be said to have the force of law, but in the anticipation by
the local officers of Government, and by the people themselves,
that the custom will be upheld if brought to the notice of the
English Courts of Justice.

I have dwelt here upon this point of customarj' law because
the considerations just adverted to furnish a crucial test of what
is meant by positive law as defined by Austin, and of the conditions
of society imder which a system of positive law can be said to
exist. Those conditions I think imply a society organized on the
principle that the command of the State largely pervades the
relations and transactions of its indi'vidual members — a principle
inherited from Roman institutions, and which is the backbone of
modern civilization.

Much of what has been said of ' customary law ' applies to ju»
prudentibna coinpositum — law imagined to obtain by the authority

Introduction. xv

of ptlvate la\vyers, "but wlilcli is really fasliionecl Tjy judicial de-
cision upon opinions and practices of the private and unauthorized
lawyers.

IV. The next topic adverted to hy the author is natural law,
as the term is commonly understood by modern writers on juris-
prudence. The author dilates on the various misconceptions to
which the term has given rise. In doing so he traces the notion
of natural law as originating in the jus c/entium of the Roman
lawyers, and shows that this last-mentioned expression was used
amongst the early Roman lawj-ers in a definite and purely his-
torical sense, but that subsequently, and as handled by the later
Roman laAv^-ers, it became mixed up ■^'ith certain speculations
borrowed ii-om the Greeks.

V. The author adverts to the distinction between law of
domestic growth and law of foreign original — the so-called jus
receptum — and to the positive law closely analogous to ike jus re-
cejjtum, which is fashioned by judicial decision on positive inter-
national morality.

YI. The author then adverts to Equity in its various meanings,
showing that the term as a species of law, is confined exclusively
to Roman and English jurisprudence, and that in each it is a
pm'ely historical notion.

The author then proceeds to treat of Imo in relation to its vvv.-
POSES and the strsxECTS ahoxit which it is conversant.

In order to find a secm-e basis for a complete system of general
jurisprudence, it is indispensable to discover an arrangement and
division of the whole subject which shall possess sufficient pre-
cision, and at the same time deviate quitm ininim^ in its terms
from those already established and familiar.

Fragmentary as are the remains of Austin's work, this essential
part has fortunately been left iu a state so nearly complete, as to
be a valuable guide to any subsequent workman having the patience
to study the plan and the skill to apply the materials so far pre-
pared.

The author has traced outlines of a general an-angement and
division of the science of law on two difl'erent systems, which may
be called by way of distinction, the conventional and the philo-
sophical. The outlines of the first kind are chiefly to be found in
the tables and notes appended to the latter volume of the large
edition. Of nine or more of these tables, originally prepared by
Mr. Austiu, unfortunately only three remain. After a search

xvi Introduction.

whicli must liave been most auxious aud painful, the recovery of
the others has been abandoned as hopeless. The second kind of
outline I call, in contradistinction, the philosophical^ because it is
given as the result of Austin's own conception of the best arrange-
ment, arrived at after careful comparison of the existing systems,
combined with independent reflection. Such is the ' Outline '
published by the author in his lifetime along with the ' Province,'
and which is only partially filled up by the Lectiu*es as since pub-
lished.

Of the tables just mentioned, ' Table I.' is headed ' The arrange-
ment which seems to have been intended by the Roman institutional
■writers.' The arrangement intended by these writers, whatever it
was, is historically the basis of all arrangements in later systematic
treatises ; aud therefore the plan which seemed to Austin to be
theu's, is undoubtedly, of all his outlines of a conventional tj^pe,
the one of primary importance. The terms employed in this table
are given in the language of the Roman classical jurists.

The arrangement, according to Austin, which the Roman
institutional writers contemplated, was as follows : —

Ijaw (jus) was in the first place divided into 'PuBLictrji' and
' PErvAiXJM ; ' the fii'st (jus Publicum), ' Quod ad Statum Rei
Romanfe — ad puhlice utilia — spectat.' ' Quod in sacris, in sacerdoti-
bus, in magistratibus consistit ; ' — the second (jus Privatimi), ' Quod
ad singulorum utilitatem — ad privatiia utilia — spectat.' The
Roman jurists have left us no systematic treatise upon public law ;
the elementary winters commouty confining themselves to private
law. The latter is the subject of the Institutes of Gains, the basis
of the more familiar Institutes of Justinian, which again are his-
torically the foundation of neaiiy all the more modern systematic
treatises.

Private law again was by these writers classed into three gi'eat
divisions : Jus (law) quod ad Person^as pertinet ; quod ad Res ^jw-
tinet; quod ad Actio:!^E3 pertinet, — or, 1. De Peeso>'IS; 2. De
Rebus ; 3. De Actionibus ; — the first of these divisions being also
IfldifFerently called, De jure Personarum — Drvisio Personariwi ; >'/
Twv irpoaiuwiov SiaiptffiQ — De CONDICIONE Ilominum — De SlAlU
Sominwn — De Personarum Statu.

In order to distinguish the classes of rig-hts comprised by the
fii'st two of the above heads, it is necessary to form an accurate
notion of what was meant by status. The labom* which the author
spent upon this point may be appreciated from a passage in his
Lectm'es where he incidentally says, ' For the purpose of ascer-

Introduction. xvii

taming the meaning whicli should be assigned to the word status,
I have searched the meanings which were annexed to it hy the
Roman lawyers through the Institutes of Gaius and Justinian, and
through the more voluminous Digest of the latter.' The res'jlt of
this investigation appears to he shortly the following : — The con-
ditions (or status) of various persons are not the sources of the
differences in their rights, obligations, or capacities, but are consti-
tuted or formed of those very differences. "\Miat is the nature of
the set of differences in rights, etc., which constitute a status, it is
exceedingly difficult to define : their principal characteristics are,
that they are attached to classes of persons ; that they are un-
limited in number and kind ; that they sometimes are purely
onerous, or consist of obligations only ; that they may be peculiar
to a single determinate individual, but can never belong to all
persons indiscriminately. They are, however, finally determined
only by an arbitrary line, leaving on one side such sets of rights,
etc., as may be conveniently detached from the bulk of the system
for the convenience of the comparatively narrow classes of persona
whom they concern, and leaving on the other side all other de-
scriptions of rights. Keeping in mind the meaning of status thus
explained, the division of law into 1 . Z)ePersonis — 2. Z)eEebus —
and 3. De Actionibus becomes equivalent to the following : 1 . The
law of Status — 2. Law regarding substantive riglits and obligations
in general minus the law of Status— 3. The means by which rights
are enforced when a resort to the tribunals is necessaiy.

Under the department of law De Rehus are again comprised
the great subjects, Doiuntctm (in the large signification of the
word) and Obligatio (in the correct signification).*

The class of rights comprised imder the word Dominium con-
tain again the following genera, — viz. : 1. Do:iiixirM rei singulse
(or Dominium in the strict acceptation, otherwise styled PEOPErE-
TAS, or otherwise li^ Re Potestas) ; 2. JrEA, sive Jttea in Ee
aliena : velut Servitus, Jus Pignoris, etc. ; 3. DoirixiTJil Rerum per
T>'lVEESlTATE3r acquisitarxim, velut Hcereditatis, Dotis, Peculii, etc.
The same class comprises also the cognate subjects of Jtrs PossES-
sio>t:s, and Jtteis in re aliena Qtjasi Possessio.

* Obligmtio, as used by Roman lawyers, diflfers from ' Obligation ' as
used by us. With us it is equivalent to ' Dutj-.' With them it is narrower
in one sense, as being restricted to duties conresponding to Eights in per-
tonam. Bat it is used also by them to denote the Right in question, as welJ
as the vinculum including the right and correlative duty.

xviii tnlroduclidn.

The class of rig-lits comprised under Ohligatio contains tile
foUowiug (7ene;-<7, — viz. : 1. Ojjligationes ex Contractu et quasi ex
Contractu; 2. Obligationes ex Delicto; 3. Obligattoites quasi
ex Delicto.

1. Obligatioxes ex Contractu et quasi ex Contractu. This de-
partment relates to

(«.) Obligations arising immediately from contracts and quasi-
contracts, — that is, Trimary obligations — obligations not founded
on injuries, delicts, or wrongs ; the miscellaneous class of such
obligations -which cannot be referred to contract, being'said, by
analogy, to arise from (quasi) contracts.

(b.) Injuries consisting in the non-performance, or in the undue
performance, of those primary obligations : e.y., Mora.

(e.) Ohligations arising immediately from those injiu'ies, though
mediately from the primary obligations of which those injuries are
violations : e.g., Liabilities on an Action ex contractu, with the
coiTesponding Right of Action residing in the injured party.

2. Obligationes ex Delicto. This department relates to

(rt.) Delicts in the strict signification of the term: i.e.. Damage,
intentional or by negligence (' dolo aut culpa '), to absolute rights
—to jura in rem (in the largest import of the phrase) — to jura
quce valent in personas Gekekatim (as opposed to jura quae valeut
in personam Deter jiinatas). As examples of Delicts, in the strict
bignification of the term, may be mentioned, Assaults, and other
offences against the body ; Libels, and otlier offences against repu-
tation ; Thefts, considered as civil inj uries ; Forcible dispossession ;
Detention, maldjide, from the Dominus or proprietor of the subject ;
Trespass upon another's land ; Wounding, or otherwise damaging,
his slaves, cattle, or other moveables.

(6.) The Obligations incumbent upon the injui-ing parties to
restore, satisfy, etc. ; with the corresponding Rights of Action, etc.,
which reside in the injured parties.

3. Obligationes quasi ex Delicto. The distinction between
Obligations ex Delicto and Obligations Quasi ex Delicto is con-
sidered by Austin superfluous and illogical. The Obligations
classed under this head by the Roman jurists arise from two
causes : — ■

(ff.) Damage to the right of another by one's own negligence
(cidpd, imprudentid, imperitid).

(b.) Damage to the right of another by some third person for
whose delicts one is liable (e.g., ' filius in potestate,' ' servus,' * ali-

Introduction.

XIX

qiiis eorum quorum opera exercitor navis aut stabuli uavem aut
etabulum exercet ').

The first of these classes Austin thiulis woiild properly fall
within the notion of Delict ; those obligations of the second class,
in which the party cannot he said to he guilty of intention or negli-
gence, might, he thinks, have heen more properly referred to the
class of obligations arising quasi ex contractu.

Whether the Law of Crimes, of Punishments, and of C'rimmal
Procedure, fell within the plan of the Eoman institutional writers,
Austin considers doubtful. The title in the Institutes, ' De Pub-
licis Judiciis,' seems not to be a member or constituent part of the
work, but rather a hasty and incongruous appendix added on an
after-thought. It, moreover, appears that Criminal Law was
looked upon by the Roman jurists as properly forming a department
of Jus Publicum ; which was probably not included in the treatises
from which Justinian's Institutes were copied or compiled.
Whether a similar title was appended to the Institutes of Gaius,
is uncertain ; the concluding portion of the manuscript being lost
or illegible.

I have here transcribed in some detail the outline of what
Austin considered to be the arrangement intended by the Romaa
institutional writers, because it furnishes the key to his own system.
Before, however, describing the scheme of arrangement adopted by
Austin himself, I shall refer shortly to the remaining tables of the
same nature with that above described.

Table II. is exactly coincident with Table I. in its divisions
and arrangement. It differs, however, in its terminology, adopting,
instead of the language of the Roman classical jurists, the terms
which obtained among Civilians from the latter portion of the IGtli
to that of the 18th century, many of which originated in the Middle
Ages, or in times still more recent. The importance of these terms
depends on the following considerations : —

1st, Some of these terms are better constructed than the corre-
sponding expressions of the ancients ; and are indeed the only ones,
authorized by general use, which denote tlie intended meaning
without ambiguity.

2ndlij, Writers upon universal jmisprudence, upon the so-called
Law of Nations, and even upon morals generally, who have drawn
largely upon the system of the Eoman law, have, in their express
or tacit references to it, commonly adopted the terms devised by
modern Civilians, or by commentators of the Middle Ages.

'6rdly, These terms have been imported into the technical

xxii Introduction.

Austin lays down the following criteria, by wLicli sacli aggregations
of righ.t3 are to be detaclied from the body of the legal system : —

\st, That the rights, etc., constituting the status, regard specially
a comparatively narrow class of the community ; and that it is
convenient to have them got together for the use of that class.

2(Uy, That they can be detached from the bulk of the legal
system without brealdng the continuity of the exposition ; and
that the so detaching them adds to the clearness of the exposition.

When once tliis idea of status is clearly apprehended, the mean-
ing intended by the division between the Law of Persons, and the
Law of Things becomes apparent. The Law of Persons is the
law concerned with those rights which constitute status, or shortly
the Law of Status. The Law of Things is the Law minus the
Law of Status. Since the diflerence which constitutes a -s^rt^jw can
be better understood after the more general classes of rights belong-
ing to the Law of Things have been expounded, the Law of Things
is placed before the Law of Persons. But since it is impossible to
obtain a division attaining perfect distinctness, it will be often
necessary in travelling- through the Law of Things to touch by
anticipation upon a portion of the Law of Persons.

La.w of Things. — Austin distributes the Law of Things under
two capital departments: — 1. Pm?2wy rights, with jwvmcrry relative
duties. 2. Sanctioning rights, with sanctioning duties. The first
of these divisions is meant to include law regarding rights and
duties which do not arise directly or immediately from injuries or
wrongs ; understanding the word injury or wrong in the largest
sense, e.g., including trespass or breach of contract. The second
division regards rights and duties which arise directly and exclu-
sively from injuries or wi-ongs ; and includes the consideration of
procedure, civil and criminal.

Primary Rights. — The subdivision of Primary rights ■ndth their
relative duties is fourfold : —

1. Rights in rem as existing simply, or as not combined with
rights in personam.

2. Rights in personam as existing simply, or as not combined
with rights in rem.

3. Such combinations of jus in rem and in personam as are less
complex.

4. Such more complex aggregates of jura in rem and in j^er-
eonam as are style J by modern Civilians, universitates juris.

Introduction. xxiii

'iTie meaning here intended by the expressions in rem and in
personam has abeady been explained in commenting on the terms
of the modern Civilians.

1. Instances oi jura in rem are, Ownership or Propertr, Servi-
tude, the right quoad third parties to the labour of a hired servant.
Some rights in rem have no subject, such as a monopoly, right to
iny good name, etc. They are included among rights in rem
because they avail against 2^^fSons in general ; e.g., obliging all
persons to forbear from selling the commodity in question, from
slandering my reputation, etc. This department includes the
enumeration of the diflerent kinds of subjects of such rights; the
limitations of such rights in extent or time ; a description of the
events by which such rights arise or are extinguished ; and lastly,
an account of the Hight of Possession.

It is in the discussion of this subdivision that the Lectm-es
break off.

2. All rights arising from contract ^«o«(Z the contracting parin
or his representatives are rights in personam : e.g., the right to
payment for a thing sold and delivered against the buyer, or one
representing him as heir or general assignee ; the right quoad the
hired workman to his services, etc. This head was intended to
comprise — I. Definition of leading terms, such as Promise ; Con-
vention ; Pact ; Contract : II. A consideration of the natm-e of
Contract: III. A consideration oi quasi-Contract, or events which,
being neither contracts nor delicts, engender rights in personam.

3. A complex right, pai-taking of the nature of a right in rem
and in personam, may be vested by the same event in the same
party : e.g., the rights arising from a sale completed by delivery
■s\-ith warranty.

Rights of this kind form the matter of the third subdidsion of
primary rights.

4. The last subdivision of primary rights comprises the de-
scription of universal succession arising either upon death or
insolvency.

Sanctioning Rights. — The Lectm-es having broken oft l)efore
arri%'ing at this point, the subjects contemplated under the head
of Sanctioning Rights can only be gathered from the ' Outline.
After expounding the nature of the distinction between civil and
cnminal delicts, it was intended to divide the capital department
of Sanctioning Rights into :

(1.) Rights and duties arising from civil injuries.

(2.) Duties and other consequences arising from crimes.

xxiv Introduction.

(1.) The matter of tliis sub-department was to be treated intlie
following order : —

I. Civil injuries to be classed and described with reference to
the rights and duties whereof they are respectively infringements.

II. Rights arising from civil delicts (which are generally them-
selves rights in personam) are divided into two departments : — (A.)
Those arising from civil delicts which are infringements of rights
in rem. (B.) Those arising from civil delicts which are infringe-
ments of rights in 2}ersonam.

A. The first of these departments again severs into four sub-de-
partments : — (a.) Rights of vindication, (b.) Rights tcT satisfac-
tion, (c.) Rights of vindication, combined with rights to
satisfaction, (d.) Rights of preventing or staying, judicially or
extra-judicially, impending or incipient oifences against rights
in rem.

B. The second department severs into three sub-departments : —
(a.) Rights of compelling, judicially or extra-judicially, the
S2>eci/ic ^icrformance of such obligations as arise from contracts or
quasi-contracts, (b.) Rights of obtaining satisfaction in lieu of
specific performance, (c.) Rights of obtaining specific performance
in part, with satisfaction or compensation for the residue.

III. The modes to be considered wherein these rights are exer-
cised, and these duties enforced ; in other words. Civil Procedure,

(2.) Under this head to be given —

I. Description of duties considered as relative or absolute.

II. Classification of crimes with reference to the rights and
duties whereof they are respectively infringements.

III. Description of the consequences of crimes.

IV. Criminal Procedure and Police.

Law op Persosts. — The arrangement of status or conditions
was intended to be distributed under thi-ee principal classes: — 1.
Private conditions. 2. Political conditions. 3. Anoinalous or
miscellaneous conditions.

Private Conditions. — These are classed into, 1. Domestic and
quasi-domestic conditions, such as Husband and Wife ; Parent and
Child ; Master and Servant ; Persons who, by reason of age, sex,
or infii'mity, are thought to require an extraordinaiy measure c
restraint or protection. 2. Professional conditions. '^

Political Conditions. — These are to include, 1 . Judges and other
ministers of justice. 2. Persons whose appropriate duty is the de-
fence of the community against foreign enemies. 3. JPersons in-

Inti-odnction. xxv

vested with riplits to collect and distribute the revenue of the
State. 4. Persons commissioned by the State to instruct its
subjects in religion, science, or art. 5. Persons commissioned
by the State to minister to the relief of calamity ; e.g., overseers
of the poor. 6. Persons commissioned by the State to construct
or uphold works which are thought to require its special atten-
tion ; e.(j. roads, canals, etc.

'Anomalous or Miscellaneous Conditions. — These include Aliens ;
Persons incapable of rights by reason of their crimes, etc. etc.

The foregoing analysis omits to note some important practical
suggestions for law reform embodied in the Lectures and Fragments
as contained in the larger edition.

Of the very important considerations stated by the author on
the subject of coclijication, it may be enough to say here that the
question in this country, after some futile experiments, remains and
is likely to remain for some time nearly where Austin left it. More
important at present is the subject of legal education; a topic on
which Austin held very decided views, and views which have
largely assisted in maturing an eft'ective public opinion. The
following passage, for which I find no convenient place in the
body of this work, is extracted from the detached matter con-
tained in the larger edition. It appears to have been contained in
the author's opening Lecture either to the course delivered at the
London University or to that commenced at the Iimer Temple : —

* In order to enable young men preparing for the profession, to Neces-
lay a solid basis for the acquisition (in the office of a practitioner) a Lavv
of practical skill, and for subsequent successful practice, an insti-
tution like the Law Faculty in the best of the foreign universities
seems to be requisite: an institution in which the general principles
of jurisprudence and legislation (the two including ethics geierally),
international law, the history of the English law (with outlines of
/he Roman, Canon, and Feudal, as its three principal sources), and
the nctual English law (as divided into tit compartments), might
be taught by competent instructors.

' In such a school, young men, not intending to practise, but
destined for public life, ("ad res gereudas nati,") might lind

Faculty

xxvi Introduction.

instruction in the sciences which are requisite to legislators. Young
men intended for administration (other than that of justice) would
attend the Law Faculty ; as, on the other hand, the men intended
for law would attend the courses on the various political sciences,
such as political economy, etc. For, however great may be the
utility of the study of General Jurisprudence to lawyers generally ;
however absolute its necessity to lawyers entrusted vnth the
business of Codification, its importance to men who are destined
to take part in the public business of the country is scarcely
inferior.

' It is extremely important that a large portion of the aristocracy,
whose station and talents destine them to the patrician profession
of practical politics, should at least be imbued with the generalia
of law, and -s^nth sound views of legislation ; should, so far as
possible, descend into the detail, and even pass some years in
practice.

' If the Houses of Parliament abounded with laymen thus ac-
complished, the demand for legal reform would be more discrimin-
ating, and also more imperative ; much bad and crude legislation
would be avoided ; — opposition to plausible projects coming fi'om
an unsuspected quarter. This, in the innovating age before us,
is no small matter. And though lawyers, fully acquainted with
system, alone are good legislators, they need perliaps a check on
professional prejudices, and even on sinister interests.

' But such a check (and such an encouragement to good lawyers)
would be found in a public of laymen versed in principles of law.

* It appears to me that London possesses peculiar advantages for
such a Law Faculty. The instructors, even if not practising
lawyers, would teach imder the eye and control of practitioners :
and hence would avoid many of the en'ors into which the German
teachers of law, excellent as they are, naturally fall, in consequence
of their not coming sufficiently into collision with practical men.
The realities with wliich such men have to deal, are the best
correctives of any tendency to antiquarian trifling or wild pliilosophy
*.o which men of science might be prone. In England, theory
would be moulded to practice.

' Besides the direct advantages of such an institution, many
incidental ones would arise.

'In the first place: A juridical literature wortliy of the English
bar.

' Good lega] treatises (and especially the most important of any,

IntrodiictiLVi. xxvii

a good institutional treatise, philosophical, historical, and dogma-
tical, on the whole of the English law) can only be provided by men,
or by combinations of men, thoroughly grounded and extensiveh' and
accurately read. Such books might be produced by a body of men
conversant (from the duties of their ofHce) with the subjects, but
can hardly be expected from the men w^ho now usually make them :
viz. not lawyers of extensive knowledge, (whose practical avoca-
tions leave them no leisure for the pm-pose, although generally
they are the only men fit for the task,) but young men, seeking
notice, and who often want the knowledge they aft'ect to impart.

* Such men as I assume a Law Faculty to consist of, being ac-
customed to exposition, would also produce well-constructed and
well-written books, as well as books containing the requisite in-
formation. Excellent books are produced by German Professors,
in spite of their secluded habits ; many of them being the guides
of practitioners, or in great esteem with them (e.g. those of Pro-
fessor Thibaut). In England, better might be expected, for the
reason already assigned : viz. the constant view to practice forced
upon writers by constant collision with practical men.

' Secondly : Another eifect of the establishment of a Law Faculty
would be, the advancement of law and legislation as sciences, by
a body of men specially devoted to teaching them as sciences ; and
able to offer useful suggestions for the improvement (in the w-ay
of systematisiug or legislating) of actual law. For though en-
lightened practical lawyers are the best legislators, they are not
perhaps so good originators (fi-om want of leisure for abstraction)
as such a body as I have imagined. And the exertions of sucli
men, either for the advancement of Jurisprudence and Legislation
as sciences, or in the way of suggesting reforms in the existing
law, might be expected to partake of the good sense and sobriety
to wliich the presence and castigation of practitioners would
uatmrally form them.

' How far such an institution were practicable, I have not the
means of determining.

' There would be one difficulty (at fii-st) ; that of getting a
sufficient nmuber of teachers competent to prove the utility of
learning the sciences taught by them : masters of their respective
sciences (so far as long and assiduous study could make them so) ;
and, moreover, masters in the difficult art of perspicuous, discreet,
and interesting exposition: an art very different fi-om that of
oratory, either in Parliament or at the Bar. Perhaps there is not
in England a single man approaching the ideal of a good teacher

xxviii Introduction.

of any of these sciences. But this dilTiculty wouki bo ohviated, in
a few years, by the demand for such teachers ; as it has been in
countries in which simikr institutions have been founded by the
governments.

' Another difficulty is, the general indifference, in this countiy,
about such institutions, and the general incredulity as to their
utilit)^ But this indifference and incredulity are happily giving
way (Tiowever slowly) ; and I am convinced tliat the importance
of such institutions, with reference to the influence and honour of
the legal profession, and to the good of the country (so much
depending on the character of that profession) will, before many
years are over, be generally felt and acknowledged.

' Encouraging symptoms have already appeared ; and there is
reason to hope from these beginnings, however feeble, that the
government of the country, or that the Inns of Court, will ulti-
mately provide for law students, and for young men destined to
public life, the requisite means of an education fitting them for their
high and important vocations.' *

It seems relevant here to note very briefly the movements
which have taken place in regard to legal education since the date
when the above considerations were put forward by the author.

The Incorporated Law Society are fairly entitled to the credit
of having made the first definite movement. In 1833, soon
after the date of their present charter, thej' established lectures for
the instruction of students intended for their own branch of the
profession ; and in 1836, at their instance, was established a system
of compulsory examination for all persons intending to be admitted
Rs attorneys or solicitors, a system which has ever since remained
in force and with the most beneficial results.

After the failiu-e of the attempt by the Inner Temple already
mentioned nothing appears to havebeen done on thepart of any of the
Inns of Court imtil 1847, when the Inner Temple established a lec-
tureship on Common Law, while at the Middle Temple lectures were
delivered upon Jmisprudence and the Civil Law, and Gray's Inn
established a com-se of lectures followed by voluntary examinations
in which the students were classed. In the year 1851 a meeting was
convened of the Benchers of the four Inns of Com-t, -with a view to
the better instruction of the students, and the result was the ectablish-
ment of aCoimcil of Legal Education, consisting of eight members,

* Written in the year 1834.

Introduction. xxix

two being selected by the benchers respectively of each of the four
Inns of Ooiut, and holdioj,^ their offices for two yeai-s. Regulationa
were also passed for providing Readers who shiiuld give lectui-es and
hold Private Classes for the better instruction of the students ; and
should at stated intervals conduct an Examination of the Students.
The alternative of regular attendance on the lectures or of passing
the examination was imposed upon all students; a condition
subsequently relaxed in the case of students who obtained a
certificate of attendance for a year as pupils in the chambers
of a barrister. Studentships and other encouragements were
given for students who distinguished themselves iu the exami-
nations.

The attention of Parliament had been directed to legal educa-
tion so long ago as 1S4G, when a select committee of inquiry was
appointed, who made areport, observing, amongst other things, 'that
a system of legal education, to be of general advantage, must com-
prehend and meet the wants, not only of the professional, but also
of the unprofessional student ;' and recommending that the Inns
of Coiu-t should be united into one body, so as to ' form for all piu-
poses of instruction a sort of aggi'egate of colleges, or in other
words a species of law univei-sity.'

Id the year 1854 an address to the Crown was voted by the
House of Commons, praying Her Majesty to appoint a Commission
to enquire into the arrangements of the Inns of Court for pro-
moting the study of the law and jurisprudence, the Revenues pro-
perly applicable and the means most liliely to secure a systematic
and sound education for students of law, and provide satisfactory
Tests of fitness for admission to the Bar. A Royal Commission was
accordingly appointed, consisting of very eminent lawyers and other
competent persons. They took the e\'idence of a number of ex-
perienced teachers, and made enquiries from those most competent
to give opinions in regard to the methods of conducting legal
education pursued in England, and also in Scotland, in the princi-
pal States of Europe, and in the United States of America : and (in
1855) they made their report with the following recommenda-
tion : — ' We deem it advisable that there shall be established a
preliminary examination for admission to the Inns of Coiul of
persons who have not taken a university degi-ee, and that there
shall be examinations, the passing of which shall be requisite for
the call to the bar ; and that the four Inns of Com't shall be
united in one university for the purpose of these examinations, and
of conferring degrees.' For this purpose they proposed the heads

a 3

XXX Litroduction.

of a sclieme : as to wliicli it need only be observed here that its
scope was limited, in like manner with the commission under
which they acted, to the Inns of Court and the branch of the legal
profession with which they are more immediately associated.

From the time of this Report in 1855 until very recently the
question of legal education in England has slept, nor, until m-ged by
an extraneous movement to be presently adverted to, has anything
farther been done by the Inns of Court either jointly or separately.

I need hardly say that neither the voluntary classes and exami-
nations conducted under the auspices of the Inns of Court- nor the
more effective system of examinations and somewhat more animated
classes of the Law Institution, satisfy the conditions of a school of
law such as that propounded by Austin : nor have the results of
the divided and partial efforts above mentioned been in any
measure adequate to the just requirements of the public or the
opportunities which the professional ability and legal knowledge
concentrated in London might be made to afford for a school of
law.

In this state of things a movement was set on foot which has
become important. The initiative is due to some gentlemen prac-
tising as solicitors in the provinces, who felt impressed with the
existing deficiency of means whereby the time spent in London
by their articled clerks might be tiu-ned to account in giving them
a wider and deeper knowledge of law than could be picked up in
the routine of office work. These gentlemen formed themselves
into an Association having for their prunary object the institution
of a genera] system of legal education which should embrace both
branches of the profession. The progi-amme was communicated to
some euiinent members of the bar in London, who having first in-
sisted on the elimination of certain irrelevant topics, warmly
entered into the project ; and an Association with an influential
Council, representing both branches of the legal profession in
London as well as in the pro\'inces, was formed with the following
objects : —

1st. The establishment of a Law University for the
education of Stitdents intended for the Profession of the
Law.

2nd. The placing of the admission to both branches of the
profession on the basis of a combined test of Collegiate Edu-
cation and Examination by a Public Board of Examiners.

Introduttion. xxxi

This Association, ■which adopted the name of ' The Leg-al
Education Association,' obtained the invahiable services of Sir
Roiindell Palmer (now Lord Selborne) as their President ; and
thus secured at once the attention of Parliament and the public,
and an able advocacy of their views. The subsequent movements
of the Association have aU been from time to time before the
public, and I shall allude to them very briefly ; but it ought to be
placed on record that at the critical period of its existence the Head
Centre and most active exponent of the movement was a friejid of
Mr. Austin's: now a judge in Iler Majesty's Court of Queen's
Bench — Mr. Justice Quain.

The Association was formally constituted at a meeting held in
July 1870, and an Executive Committee of the Coimcil was ap-
pointed for the ti-ansaction of business.

The specific objects of the Association as defined by the Execu-
tive Committee and adopted by subsequent general meetings of the
Association are as follows : —

(1.) To place the general course of Studies and the exami-
nations preliminaiy to and requisite for admission to the
practice of the Law, in aU its branches, under the management
and responsibilit}- of a General School of Law to be incor-
porated in London.

(2.) To make the passing- of suitable Examinations in the
General School of Law (or of equivalent Examinations of some
Universityofthe United Kingdom) indispensable to the admis-
sion of Students tothepractice of the Bar, or to practise asSpecial
Pleaders, Certificated Conveyancers, Attorneys, or Solicitors.

(3.) To offer the benefits of the course of Study and Exami-
nations to be aff"orded by the General School of Law to all
classes who may desire to take advantage of them, whether
intending or not intending to follow the Legal Profession, in
any of its branches, and whether members or not of any of the
Lins of Couit.

As the first step towards cam-ing out these objects Sir
Roundell Palmer placed two Kesolutions on the notice paper of the
House of Commons. It was then late in the session of 1870-71, and it
was not unto, the 11th of July 1871 that the author of the Resolu-
tions had the opportimity of bring-ing them to the notice of the
House. His speech was received with marked attention ; but
owing to the advanced period of the session it was impossible that

xxxii Introduction.

the subject should be fully discussed by the House. To the
precise terms of those Resolutions, which were settled by the Presi-
dent in conference with the Executive Committee of the Association,
it seems here hardly necessaiy to refer, fm-ther than to mertion
that, besides the objects above mentioned, they embodied an under-
standing arived at by the Executive Committee which I do not find
elsewhere explicitly recorded, namely, that in the government of
the proposed School of Law the diti'erent branches of the legal
profession in England shoidd be ' suitably represented.' It may
be mentioned that the designation ' General School cf Law,'
instead of ' Legal University,' was adopted in deference to a feeling
expressed by persons representing the views of the Loudon
University.

Early in the following session of Parliament (1871-72) the
following Resolutions were placed on the notice paper of the House
of Commons by Sir Roundell Palmer : —

(1.) That it is desu-able that a General School of Law
should be established in the metropolis, by public authority,
for the instruction of students intending to practise in any
branch of the legal profession, and of all other subjects of Her
Majesty who may desii'e to resort thereto.

(2.) That it is desirable, on the establishment of such
School, to provide for examiuations, to be held by Examiners
impartially chosen, and to requii'e certificates of the passing
of such examinations as may respectively be deemed proper
for the several branches of the legal profession as necessary
qualifications (after a time to be limited) for admission to
practise in those branches respectively.

In support of these Resolutions, a petition was presented signed
by about 400 members of the Bar. Out of about 10,000 solicitors
practising in England and "Wales, 6,000 signed petitions in favour
of the Resolutions. Similar petitions were presented by the In-
corporated Law Society, the Metropolitan and Provincial Law
Society, and by various provincial Law Societies (including those
of Liverpool, Manchester, Leeds, Birmingham, Bristol, und Ply-
mouth) in their corporate character. Nor is it a cii'cumstance
without significance, as indicating the class who specially feel the
want which the objects of the Association are calculated to meet,
that Resolutions in favour of those objects were passed by the
Congress of Law Students held at Birmingham in the preceding

Introductioji. xxxiii

month of June. On the 1st of March, 1872, Sir Eoundell Palmer
introduced the motion for adopting the Resolutions, h^ a speech in
which he entered fully into the history of the question and the
ai'guments showing the public need of an institution such as that
proposed by the Association. The motion was supported by
speeches from Jlr. Spencer Walpole, Q.C., Mr. (now Baron)
Amphlett, Mr. (now Mr. Justice) Denman, Mr. (now Sir William)
Harcoiui, Q.C., Mr. G. Osborae Morgan, Q.O. (who seconded the
motion), and Mr. Thomas Hughes, Q.O.

The course taken by the Government in the debate was in effect
to put in a plea for delay, on the gi-ound that the time of the House
at their disposal was already fully mortgaged. Mr. Gladstone,
while stating that the Government did not think it convenient or
expedient for the House at that moment to afHrm the matter con-
tained in the Resolutions, said that ' it would be a mistake to
suppose that they were about to meet with rejection at the hands
of the Government.' Notwithstanding this intimation that for
the purposes of a division the Government threw their weight into
the scale against the motion, Sir Roundell Palmer determined to
take the sense of the House upon it; and in a House of 219 mem-
bers 103 recorded their votes in favour of the motion, which was
therefore lost by a majority of 13 only.

This was practically an end of the matter for the session of
1871-72. Before the commencement of the following session, Sir
Roundell Palmer (Lord Selbome) having become Lord OhanceUor,
deemed it expedient to resign his office as President, although he
remained a private member of the Association, and assured them
of his unabated personal interest in their objects. They were also
given to understand that the subject of legal education was likely
before long to occupy the attention of Government. In these cir-
cumstances it was inevitable that active movement on the part of
the Association shoidd be in a measure suspended.

la the mean time an opportunity was afforded to the Inns of
Oourt to show how far they were willing to attempt, or able to
effect, the organization of a comprehensive and liberal scheme of
legal education. Urged to action by the movement from without
which I have attempted to describe, they adopted a new scheme,
to come into operation at the beginning of the year 1873 ; super-
seding the an-angements for teaching and examination embodied
in the Consolidated Regulations of the four Inns of Court, and
which were the outcome of the period of acti^dty commenced in
1851. The new scheme creates ' a peimanent Committee of eight

xxxiv Introduction.

members, to be appoiuted by the Council of Legal Education, and
to be called the " Committee of Education and Examination.'
Tills Committee is, subject tc the control of the Council of Legal
Education, ' to superintend the education and examination of
students for the Bar.' The scheme provides for the conduct of the
work of teaching under a staff of professors and tutors to hold
office at the pleastu-e of the Council for three years and not longer
unless re-elected, and also for examinations by a paid board of six
examinei-s, each to hold office for not more than two years, and
not to be eligible for re-election until he has been a year out of
office.

Into the details of this scheme it is unnecessary to enter further.
Considered as a piu-ely Bar scheme it has merits and defects which
it would be impertinent here to discuss. But I may permit myself
to add one remark, and in doing so ma}' be allowed to boiTow from
the Report of the Executive Committee of the Legal Education
Association adopted by the Association at their annual meeting on
the 10th of January, 1873, namely that 'an organization which is
confined to students for one branch of the legal profession only, which
excludes the general public altogether, which keeps its administra-
tion practically in the hands of self-electing bodies claiming- to be
iiTesponsible, and which may at any moment be modified or
abandoned by those bodies, entii'ely fails to meet the requirements
of a general School of Law, open to all who wish to study law as
a science, as well as to those who wish to study it with a view to
professional practice, and administered by a public and responsible
governing body.'

It may be mentioned that the Inns of Court, after adopting
theu' new scheme and appointing a staff to cany it out, conceded
^Q principle of admitting the general public to the advantages of
the instruction provided by them. And although under a system
so organized, the concession can hardly be expected to have much
practical effect, it is a strong indication of the advance of opinion
within the Inns of Couil in the dii-ection of the objects advocated
by the Association.

On the 12th of December 1873, a deputation from the Association
waited upon Lord Selborne (then Lord Chancellor), who informed
them that he did not intend to allow more time to pass without
reducing into proper form a Draft Bill which might be fit to be
submitted, before the meeting of Parliament, to the then Govern-
ment for their consideration. He added that in this Draft Bill iie
proposed not only to deal -with the scheme of a Genentl School of

Introduction. xxxv

Law, but to endeavour at the same time to deal with the consti-
tutioQ and government of the Inns of Court.

The dissolution of Parliament in the end of the year 1873, the
change of government ensuing upon the general election, and the
consequent late period at which Parliament met, precluded the
chance of the subject of legal education being effectively dealt with
la£t session. Lord Selborne, however, no longer trammelled by
Ills official position as Lord Chancellor, again accepted the post of
President of the Association, and as a private member of the
House of Lords, at a late period of the session, brought in two
bills, one for the constitution of a general School of Law, and the
other attempting the more difficult but inevitably connected object
of dealing with the Inns of Court.

^^^lat may ultimately be the relation of the Inns of Com-t to
legal education in this country, it would be premature to speculate :
but in concluding this topic, I feel bound to remark that the views
of the Association to which I have refeiTed will not, nor will the
demands of a widespread and growing con\'iction of the intelligent
public mind, be satisfied by the establishment of a mere examining
university, still less by a university or school so constituted as to
rest on the Inns of Court as its sole basis.

In the above discussion of a particular object I may appear to
have wandered from the proper purpose of an introduction to a
course of lectures on general jurisprudence. I have not entered
on the topic without deliberation: and I have judged it due both
to the memory of Austin and to the objects which he thought
desirable, to trace and record the connection between the \-iew3
so earnestly insisted on by him, and those which through the
association of numbers and the most eminent advocacy are now
able to command the attention of Parliament and of the Govern-
ment of the dav.

I must here mention that in the final re\'ision of the sheets for
the press I am indebted to the suggestions of my friend Mr. AV.
I'ayne, of this Inn ; and for general help in carrying the work
tlirough the press and in compilation of the index I have to
acknowledge my obligations to an able assistant, Mr. Walter
Clift.

E. CAMPBELL.

JAv.cokCs Inn.
Latt Courts Chambers, 33 Chancer^/ Lane;

December, 3.874.

CONTENTS.

FAOF.

Introduction (by the Editor) . vii

Beief Outline of the Course .1

The same in a Tabular Form . . 4

PART I.- DEFINITIONS.

.Section I. — The Province of Jurisprudence determined.

I.ECTCIiE

Analysis of Lectures I.-VI. ^\ 5

I.* Essentials of a Law, properly so called 11

11-^ The Distinguishing Characters of Divine Law, revealed and
unrevealed. Diverse Hypotheses as to the index to Divine
Laws of the latter class 20

III. % Continuation of the same topi'; 32

I V.V The same topic further continued 42

V.^ Distinguishing characters of Positive Moral Laws or Rules:

and of Laws so-called by a figure of speech .... 58

VI. Ifc- Final definition of Positive Law, with the implicated terms

Sovereignty and Iiidependent Political Society ... 82

Skcjton II. — General and Particular Jurisprudence.
^ XL On General as distinguished from Particular Jurisprudence . 1-17

- C >
Section III. — Analysis of Pervading Notions.

^II.> Analj'sis of the term ' Right ' (commenced) . . . lf>9

XIII. ' TTrm^s' and their relation to 'Rights' . . . . ICG

b

Kxxviii CoJitents.

l.ECTURK PAdS

XIV. ' Act ' and ' Forbearance.' Jaainrem — in personam . 173

XV. Jus in rem — in personam (continued) 186

XVI. Eights considered generally 191

XVII. Absolute and relative duties 194

XVIII.. t Will' and 'Motive' 198

XIX. ^-Intention' 203

XX. ' Xegligence,' ' Heedlessness,' and ' Rashness ' . . . 20T

XXI. ' Intention ' further considered , . 212

XXII. > Sanction' 217

XXIII. Physical Compulsion distinguished from Sanction . .221

XXIV. 'Injury' or 'Wrong," Guilt," Imputability' . . 223

XXV. Analysis of ' Injur}- ' or ' Wrong' continued. Grounds of

Non-iniputability 229

XXVI. Grounds of Non-inipu(ability. Digression on Presump-
tions 241

XXVIl. Different kinds of Sanctions 249

PART II.— LAW IN RELATION TO ITS SOURCES, AND TO
THE 3I0DES IN WHICH IT BEGINS AND ENDS.

XXVIIL

XXIX.

XXX.

XXXI.
XXXII.
XXXIII.
XXXIV.

XXXV.

XXXVI.

XXXVII.

XX XVII L

XXXIX.

On the various Sources of Law ... . 254

Law : Written and Unwritten — Statute and Judiciary . 2G2

Certain Supposed Sources of Law Examined. — Jus 3Ioribus
constitutum. Jus Prudentibus coinjwsitam. Jus Naturale . 2G8

Jus gentium ......... 277

Law Natural and Positive 289

Different Meanings of Equity 293

Equity as a Department of Law considered Histoiicallj*.
Jurisdiction of the Prator Urhanus .... 296

Legislation of the Prajtors 299

Jus Prajtorium and Englisli Equitj' Compared . . . 310

Statute and Judiciary Law . . ... 314

Groundless Objections to Judicial Legislation . . . 322

((Parti.) DisadvfiDtages of Judicial Legislation . . 325
((Part II.) 'I'lio qni'stion of r«iilifi( atidU (liscussed . .3.'!!

Contents. xxxix

PART 111.— LAW IX RELATION TO ITS PURPOSES AND TO
THE SUBJECTS WITH WHICH IT IS CONVERSANT.

LECTURE PAGE

XL. Law of Things and the Law of Persons or Status . . 346

XLI. Status. Erroneous Definitions examined .... 354

XLII. Status. Erroneous Definitions further considered . ^59

XLIII. The subject of status and division of law into jus rerum and

JUS personarum concluded ....... 362

XLIY. Law, Public and Private . 36G

XLV. Law of Things. Its main Di\'isions 373

XLVI. Method of subdivision of Primary Eights, ete. . . . 379

XLYII. Rights in rem as existing per se. Different meanings of

' Dominium ' or ' Property ' 380

XLYIII. Dominium as opposed to Serviius 385

XLIX. Servitus as distinguished from Dominium .... 389

L. Real and personal Servitudes . .... 395

LI.) Rights limited by regard to successive periods of enjoyment.
LII. J The Jura in Re Aliend of the Roman law .... 401

LIII. On Complete and Inchoate, Vested and Conticgent Rights 419

LIV. Introducing the subject of Tirles, Modes of Acquisition, or In-
vestitive and Divestitive Facts .... 428

LV. Titles 431

LVI. Titles continued 436

LYII. Titles variously classified ....... 441

Outline of kemaixixg fart of the ixtendeu) Coubse . . 443

Tables 467

Index .. ..... .... 477

LECTUEES ON JDEISPEUDENCE

PART I.
DEFINITIONS.

Section I. — The Peoytxce oe Ji-rispeudencb

DETERMJraED.

Introducfori/. — Pnrjmse and Method of the
Six ensuing Lectures.

The matter of Jurisprudence is jwsitive lav: : law strictly so
railed, that is, law set bv political superiors to political
inferiors. But since by the word latv are also denoted,
properly and improperly, other objects related to positive
law by resemblance or analog}', it is first necessary to dis-
tinguish positive law from those various related objects ;
in other words to determine the province of jurisprudence.

A lawj in the literal and proper sense of the word,
mayT)e defined as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over
him. This definition seems to embrace all the objects to
which the word can be applied without extension of its
meaning by metaphor or analogy, and in this sense laio
comprises

Laws set by God to men, and

Laws set by men to men.

Laics set hyClod to men. — To the whole or a portion of
these has been sometimes applied the phrase, Lena of Nature,
or Xatural Laic. The phrase is also frequently applied to
other objects which ouglit to be broadly distinguished.
Rejecting it accordingly as ambiguous and misleading, I
designate these laws, considered collectively, by the term
Lawof^Godj

Laics set hy men to men. — Of these, 1st, some are estab-
lished by political superiors acting as such, and are here
collectively marked by the name of positive laic — the ap-

A^'AI.YSIS.

Lect.

i-vr.

Purpose of
the attempt
to determine
the province
of juris-
prudence
briefly
explained.

Law properly

80 called

Law of Gild

Human Laws
two cliBses,

Province of Jiirispnidence.

These and
the second
class of
human laws
placed
together
under the
name
' Positive
Morality.'

Objects
metaphoric-
ally termed
laws.

propriate matter of jurisprudence ; 2ndly, otliers are set.bj
men not political superiors, or not acting as such.

Closely analogous to human laws of this second class
are a set of objects frequently but improperly termed laws,
being rules set and enforced merely by the opinion of an
indeterminate body of men ; cjj., where the word law is
used in such expressions as ' the law of honoiu',' the ' laws
of fashion.' Rules of this species constitute much of what
is usually termed ' International law.'

Himian laws of the second class above mentioned {i.e.,
those set by men not as political superiors) with the objects
improperly but by close analogy termed laws I place togeth_er
in a common class under the term 'positive morality. The
name morality severs them fi'om positive law ; while the
epithet ^;os//'n'e disjoins them from the law of God, marking
the distinction between morality according to the rules and
opinions actually prevailing amongst men, and morality con-
ceived of as conforming to the law of God.

There are numerous applications of the term law which
rest upon a slender analogy, and are merely metaphorical.
Such is the case when we taUi of hncs observed by the
lower animals, of laws regulating the growth of vegetables,
or determining the movements of inanimate bodies or masses.
Intelligence is of the essence of law, and where intelligence
is not, or is of a kind too limited to take the name of
reason, the word law can only be applied by a figm-e of
speech. By using the word law in the figicative sense,
and then ignoring the circumstance that the use of the word
was merely figurative, a deluge of muddy speculation has
been introduced into the field of jurisprudence and morals.
In this respect the phrase ' Law of Natm'e ' {^jus natwale)
has much to answer for.

The following table illustrates the di^dsion and rela-
tions between the several objects indicated: —

Law of

God.

Human Laws.

i

Positive
Law,

(The ap-
propriate
matter of
jurispru-
dence.)

Laws set
by men
not as
political

superiors.

Objects impro-
perly but.b}- a
close analogy
termed laws.

Positive moralitj'.

Laws so
called
by a
mere
figure of
speech.

Pour classes
of laws
(proper and
otlierwise).

Laws properly so called, with laws improperly so called,
may accordingly be divided into the four following kinds.

1 . The di\nne laws, or the laws of God : that is to say^
the laws which are set by God to his human creatiu'es.

Method of Detcruiination.

2. Positive laws : that is to say, laws wliich are siuiply
%nd strictly so called, and which form the appropriate matter
of general and particular jurisprudence.

3. Positive morality^ rules of positive morality, or posi-
tive moral rules.

4. Laws metaphorical or figurative, or merely meta-
phorical or figurative.

Positive laws (the appropriate matter of jm-ispaiidence)
are therefore related in the way of resemhlance or by close
or remote analogies to the following- objects. 1. In the way
of resemblance they are related to the laws of God. 2. In
the way of resemblance they are related to those rules of
positive morality which are laws properly so called. And
by a close or strong analogy they are related to those rules
of positive morality which are laws set by opinion. 3. By
a remote or slender analogy they are related to laws figm-a-
tively so called.

The leading pm-pose of the first part of this work is
to distinguish positive laws (the appropriate matter of jmis-
prudence) from the objects lastly above enumerated : objects
with which they are often confounded in consequence of the
resemblance and analogies above mentioned, and of the
common name of ' laws ' being applied to all. The first
part of this work is accordingly entitled ' The Pro\ance of
Jm'ispi-udence Detemiined,' and its piu'pose is to describe
the boundary which severs that province from the regions
Ijing on its confines.

The method I adopt for accomplishing this purpose may
be shortly stated as follows : —

I. I determine the essence common to all laws properly
so called : in other words I determine the essence of a law
imperative and proper.

II. I determine the respective chai'acters of the foui"
several classes into which laws (proper and othei-wise) may
be divided, assigning to each class the appropriate marks by
which laws of that class are distinguished from laws of the
others.

It is convenient to treat these classes in the following
order :—

(a) Lmcs of God.

(b) Positive 3Ioralifi/.

(c) Ldics in ajif/urcitive sense.

(d) PosiTrvE Laws.

By determining the essence or nature of a law imperative
and proper, and the respective characters of those four several
classes, I determine positively and negatively the appropriate
matter of jiuispiiidence. I determine positively what that
matter is ; and I distinguish it from various objects which
are variously related to it, and with which it is apt to be

Lect.
I-VI.

I'nnclple of
the method
adopted for
determining
the Provinc*
of juris-
prudence.

Province of Jiirisprudence.

Topics em-
braced In
this portion
of the work,
and their
order.

1. Essentials
of law de-
termined,—
therein
ileflning
■ command,'
' sanction,'
• duty,'
■ ' superior and
inferior.'

II. (a) Divine
laws, re-
vealed and
unrevealed.

Nattire of In-
dex to tiie
latter.

Iteasons for
iiiis excur
sum into
the field of
elLics.

confounded. I sliow moreover its affinities with those
various related objects : affinities that ought to be conceived
precisely and clearly, as there are numerous portions of the
rationale of positive law to which they are the key.

HaA-ing suggested the pm-pose of that portion of the
work contained in the ensuing six lectures, I now will
indicate the topics embraced therein, and also the order
in which those topics are presented to the reader.

I. Inj^iejirst of the six lectures which immediately
follow, I state the essentials 'oT a law or rule (taken jsvith
the largest signification that can be given to the term pro-
perly). In other words, I determine the essence common
to all laws properly so called.

Determining the essence of a law imperative and proper,
I determine implicitly the essence of a command ; and I
distinguish commands which are laws from occasional or
particular commands. Determining the natm-e of a com-
mand, I fix the meanings of the terms implied by ' cgm-
ihand ' : namely, 'sanction ' or ' enforcement of obedience ; '
' 4liiZ ' ^^ ' obligation ' ; 'Superior and inferior.'

""11. (a) Tn tne beginning of the second lecture, I briefly
determine the characters by which the laws of God are
distinguished from other laws ; and I divide the laws and
other commands of the Deity into two kinds : the revealed
or express, and the unrevealed or tacit.

I then pass to the natm-e of the signs or index through
which commands of the latter kind are manifested to Man.
Now, concerning the natiu'e of the index to the tacit
commands of the Deity ,^there are three hypotheses : First,
the pure hyijothesis of general utility ; secondlj', the pm'e
hj'pothesis of a moral sense ; thirdly, a hypothesis mixed
or compounded of the others. And with a statement and
explanation of these three h^-potheses the gi'eater portion
of the second lecture, and the whole of the third und fourth
lectures, are occupied.

That exposition of the three h^-potheses or theories, if
apparently impertinent to my subject, is yet a necessary
link in a chain of systematic lectures expounding the prin-
ciples of jurisprudence. Of those principles, both as re-
gards their essential character, and as they are expressed in
the writings of jurists, there are manj' which could not be
expounded correctly and clearly, if the three hypotheses or
theories had not been prcAdouslj- expounded. For example :
Positive law and morality are distinguished by modern
jurists into law natural and law positive : and this dis-
tinction nearly tallies with one which pervades the Pandects
and Institutes, and which was taken by their compilers from
the jurists who are styled ' classical.' By the ' claesical '

Method of Detcniiinatioii.

jurists (of excerpts from whose writinfrs the Paiulects are
mainly comjiosed),^*/^ cinle is distinguished from jus cjeii'
Hum, or ;ms omnium (jentium. For (say they) a portion
of the positive law which obtains in a particular nation, is
peculiar to tbct community: And may be styled jhs cicile,
or jus prof^'u ni ipsius civitatis. But there are other rules
of positive law which obtain in all nations, and there are
lilies of positive morality which all mankind observe : And
since these legal niles obtain ia all nations, and these moral
I'ldes are observed by all mankind, they may be styled the

S' IS omnium f/entium, or the commune omnium Jtominum jus.
ow these rides, beinir universal, cannot be purely or simply
of human invention and position. ^lore probably are they
fashioned by men on laws cominp- from God, or from tlie
intelligent and rational Nature which is the soul and the
guide of the universe. But the legal and moral rules which
are peculiar to particular nations, are purely or simply of
human invention and position. Inasmuch as they are par-
tial and transient, and not universal and enduring, they
can hardly be fashioned by their luuuan autliors on di-\-ine
or natural models. — Xow, without a previous Imowledge
of the three In^otheses in question, the worth of the two
distinctions to which I have briefly alluded, cannot be
Imown coiTectly, or estimated truly. Assmuing the pure
hvpothesis of a moral sense, or assuming the piu-e hypothesis
of general utility, those distinctions are purposeless and
idle subtilties. But, assuming the hvpothesis compounded
of the others, those distinctions are significant, and are also
of considerable moment.

Besides, the divine law is the measm-e or test of positive
law and morality. That is to say law and morality, in so
far as they are what they ouf/ht to be, conform, or are not
repugnant, to the law of God. Consequently, an all-im-
portant object of the science of ettiics (or, borrowing the
language of Bentham, ' the science of deontology ') is to
determine the nature of the index to the tacit commands
of the Deity, or the nature of the signs or proofs through
which those commands may be known. — I mean by ' the
science of ethics' (or by 'the science of deontology''), the
science of law and morality as they respectively ouf/ht to
be: as they respectively w;;;.?^ be if they conform to their
measure or teM. That department of the science of ethics,
which is concerned with positive law as it ought to be, is
styled the science of legislation : that which is concerned
with positive morality as it ought to be, has not an appro-
priate name. — Xow, though the science of legislation (or o^
positive law as it ou(/ht to be) is not the science of juris- i
prudence (or of positive law as it is), still the sciences are I
connected by numerous ar,d indissoluble ties. Since, then,_A
the nature of the index to the tacit commands of the Deity

10

Province of Jurispnidence.

kT)) r»sitivc
morality.

fc) Laws
metaphoric-
ally EO called.

(d) Positive
laws strictly
BO called.

is an all-important object of tlie science of legislation, it
is a fit and important object of the kindi'ed science of juris-
prudence.

Deeply convinced of the truth and importance of the
theory of general utility-, I depart in. some degree irom_ my
strict Course in order to rectify cei-tain cun-ent misconcep-
tions of the theory : to answer certain objections resting on
those misconceptions : and to solve or extenuate difficulties
vdth which the theory is really emban-assed.

(b) At the beginning of the fifth lecture, I distribute
laws or rules imder two classes: Fu'st, laws propejiy so
called, with such improper laws as are closely analogous to
the proper ; secondly, those improper laws which are re-
motely analogous to the proper, and which I style, there-
fore, laws metaphorical or figurative. — I also distribute laws
proper, ^^•ith such improper laws as are closely analogous to
the proper, under three classes : namely, the laws properly
80 called which I style the laws of God ; the laws properly
so called which I style positive laws ; and the laws properly
so called, with the laws improperly so called, which I style
positive morality or positive moral iiiles. — I assign moreover
luy reasons for marking those several classes with those
respective names.

Having determined, in preceding lectui'es, the characters
or distinguishing- marks of the di\'ine laws, I determine, in
the fifth lecture, the characters or distingruishing marks of
jjositive moral rules : that is to say, such of the laws or
rules set by men to men as are not anned with legal sanc-
tions.— Having detennined the disting-uishing marks of
positive moral rules, I deteiinine the respective characters
of their two dissimilar kinds : namely, those which are laws
imperative and proper, and those which are laws set by
opinion.

The di\ine law, positive law, and positive morality, are
mutually related in various ways. I advert, in the fifth
lecttu'e, to the cases wherein they agree, wherein they dis-
agree without conflicting, and wherein they disagi-ee and
conflict.

I show, in the same lecture, that my distribution of
laws proper, and of such improper laws as are closely
analogous to the proper, tallies, in the main, with a division
of laws whicli is given incidentally by Locke in his Essay
on Human Understanding.

(c) At the end of the same lecttu-e, I determine the
characters or disting-uishing marks of laws metaphorical or
fio-urative. And I show that laws which are merely laws
by a figm'e of speech, are blended and confounded, by -writers
of celebrity, with laws imperative and proper.

(d) In the sixth and last lecttu-e, I determine the cha-
racters of laws positive: that is to say, laws which are

Method. — Lcnvs are Conunands.

II

eimply and strictly so called, aud -which form the appropriate
matter of general and particular jurisprudence.

H£i:eiD I determine implicitly the notion of soyeieigiaty,
with the implied or correlative notion of independent
political society. For the essential difference of a positive
law may be stated generally in the following manner. Every'
positive law, or every law strictly so called, is set by a
sovereign person, or a sovereign body of persons, to sj.
member or members of the independent political societyK
wherein that person or body is sovereign or supreme.

To elucidate the nature of sovereignty, and of the in-
dependent political society that sovereignty implies, I ex-
amine various topics which I aiTang'e under the following
heads. First, the possible forms or shapes of supreme
political government ; secondly, the limits, real or imagin-
aiy, of supreme political power; thirdly, the origin or
causes of political government aud society. Examining
those various topics, I complete my description of the limit
or boundaiT by which positive law is severed from positive
morality. For I distinguish them at certain points where
the line of demarcation is not easily perceptible.

The essential difference of a positive law (or the differ-
ence that severs it from a law which is not a positive law)
may be stated generally as I haA^e stated it above. But
this general statement is open to certain correctives. And
with a brief allusion to those correctives, I close the sixth
lectm'e.

LECTURE I.

I. — In pursuance of the pmpose above sketched out I
proceed in the first place to state the essentials of a law
properly so called.

Every law or rule (taken with the largest signification
which can be given to the term j^ropeiiy) is a commnnd.
Or, rather, laws or rules, properly so called, are a species of
commands.

Now, since the term cPH?»?ffHfZ comprises the teim Icno, i.;iw3 or rules
the fii'st is the simpler as well as the larger of the two. i'l^iied, arc a
But, simple as it is, it admits of explanation. And, since jgmmands.
it is the hey to the sciences of jmisprudence and morals,
its meaning should be analyzed with precision.

Accordingly, I shall endeavour, in the first instance, to
analyze the meaning of ' command:' an analysis which ia
necessarily difficult and involves circumlocution iu propor-
tion as the term to be explained is simple.

If you express or intimate a wish that I shall do or

12

Province of Jnrispnidence.

Part I.
§1-

The meaning
<if the term
comviani.

The meaning
(if the term

The terms
C07jnna7;riand
liaUi are cor-
relative.

The meaning
of the term
tantlioii.

To the exist-
ence of a
command,
duty, and a
sanction, a
violent mo-
tive to com-
pliance is not
requisite.

forbear from some act, aud if j^ou "will visit me with an
evil in case I comply not with yoiir wish, the e.r^vession or
inti7nation of yom- wish is a command. A command is
distinguished from otlier significations of dwire, not by the
style in which the desire is signified, but by the power
and the purpose of the party commanding to inflict an evil
or pain in case the desire be disregarded. If you cannot or
will not harm me in case I comply not with your wish, the
expression of yom* wish is not a command, although you
utter your wish in imperative phi-ase. If you are able and
willing to harm me in case I comply not with yom* wish,
the expression of j'our wish amounts to a command-^ al-
though you are prompted by a spmt of com-tesy to utter
it in the shape of a request. ' Preces erant, sed quibus con-
tradici non 2>osset.' Such is the language of Tacitus, when
speaking of a petition by the soldieiy to a son and lieutenant
of Vespasian.'

Being liable to evil from you if I comply not with a wish
which you sig-niiy, I am hound or ohlir/pd by yom* command,
or I lie under a duty to obey it.-

Command and duty are, therefore, correlative tenns : the
meaning denoted by each being implied or supposed by the
other. AVherever a duty lies, a command has been signiiied ;
and whenever a command is signified, a duty is imposed.

The evil which will probably be incurred' in case a com-
mand be disobeyed or (to use an equivalent expression) in
case a duty be broken, is frequently called a sancf/ion. The
command or the duty is said to be sanctioned by the chance
of incmTing the evil. Some sanctions are called punish-
ments.

Paley, in his analysis of the term oblu/afion, lays much
stress upon the violence of the motive to compliance. His
meaning appears to be that, unless the motive to compliance
be violent or intense, the expression of a wish is not a cmn-
mand, nor does it place the pereon to whom it is du'ected
under a duty.

But in truth the magnitude of the eventual evil, and
the magnitude of the chance of incurring it, are foreign to
the matter in question. The greater the eventual e\'il,
and the greater the chance of incumng it, the gi-eater is the
efficacy of the command, and the greater is the strength of
the obligation. But where there is the smallest chance of
incurring the smallest evil, the expression of a wish amounts
to a command, and, therefore, imposes a duty. The sanction,
if Toa will, is feeble or insufficient ; but stiU there is a
sanction, and, therefore, a duty and a command".

* Of a similar nature would be a request or advice tendered by a
British Resident to the reigning personage in a (so-called) indepen-
dent state in India. — R. C.

Meaning of Conunnnd,

13

Li.cT.
I.

Rewards are
not eanciioiia

By Locke and Beutham, tlie term sanction, or enforcc-
*nent of obedience, is applied to conditional good as well as
to conditional evil : to reward as well as to punishment.
]iiit, witli all my habitual veneration for these names, I
think this extension of the term pregnant wdth confusion.

llewards are, indisputably, motives to comply with the
wishes of others. But to talk of commands and duties as
sanctioned or enforced by rewards, is sm'ely a wide departm'e
from the established meaning of the terms. If you expressed
a desire that I should render a service, and protfered a reward
iis the inducement to render it, yon would scarcely be said
to command the service, nor should I, in ordinary langnage,
be ohliyed to render it.

If we pnt reioard into the import of the term sanction,
we must engage in a toilsome and probably nnsuccessful
struggle with the current of ordinary speech.

The ideas then comprehended by the term command are Tiicmcaning
the following. 1. A wisli ov-desii'e-eencpTnrtnjy a rational yommand,
being, that another raliniial lieing shall do or forbear. 2. gt^tei'^*''
An evil to proceed from the former, and to be incurred by/
the latter, in case the latter comply not with the wish. 3.,i
An expression or iutimat4an.iif_ the wish by words-OX-other^
signs.

.^^ It appears from what has been premised, that command. The insepar-
dufy, and sanction are inseparably connected terms: that
each embraces the same ideas as tlie others, though each
denotes those ideas in a pecidiar order or series.

' A wish conceived by one, and expressed or intimated
to another, with an evil to be inflicted and incurred in case
the wish be disregarded,' are signified directly and indirectly
by each of the three expressions. Each is the name of the
same complex notion. But they difl'er in this, that the word The manner
^command points dn-ectly and prominently to the loish ex-
pressed by the one: the word ' didy ' to the chance of meeting
the evil incurred by the other ; the word ' sanction ' to the
evil itself ; each expression referring less direct!}^ and pro-
minently to the remaining notions.

To those who are familiar with the language of logicians
(language um'ivalled for brevitj', distinctness, and precision),
I can express my meaning accurately in a breath. — Each of
the three tenns siynijies the same notion ; but each denotes
a diflerent part of that notion, and connotes the residue.

Commands are of two species. Some are laics or rules. Laws or m'.ca
The others have not acquired an appropriate name, nor from"^"'* "^
is there any short expression which will mark them pre-
cisely. I must, therefore, note them as well as I can by
the ambiguous and inexpressive name of ' occasional or par-
ticular commands.' The distinction may, I thinli, be stated
in the following manner.

alile connex-
ion of the
tliree terms,
command,
duty, and
sanction.

of that cou-
nexiuu.

com-
mands which
are occasio^ial
i>T particular.

1 4 Province of yiirispriidence.

By every comiuand, the party to wliom it is directed is
obliped to do or to forbear.

Now where it obliires generally to acts or forbearances of
a class, a command is a law or ride. But where it obliores
to a specific act or forbearance, or to acts or forbearances
tpecijicalhj or indiiiduaUy,& couuuand is occasional or par-
ticular.

For instance, if you command yom* servant to go on a
given en-and, or not to leave your house on a given evening,
or to rise at such an horn* on such a morning, or to rise at
that hour diuing the next week or month, the command is
occasional or particular. For the act or acts enjoined or
forbidden are specifically determined or assigned.

But if you command him simply to rise at that hour, or
to rise at that hour always, or till further orders, it may be
said, with propriety, that you lay down a rule for the guid-
ance of yom- servant's conduct. For no specific act is assiofned
by the command, but the command obliges him generally to
acts of a determined class.

If a regiment be ordered to attack or defend a post, or to
quell a riot, or to march from their present quarters, the
command is occasional or particular. But an order to exer-
cise daily till fm'ther orders would be called a general order,
and might be called a rule.

If Parliament prohibited simply the exportation of com,
either for a given period or indefinitely, it would establish a
law or rule : a hind or sort of acts being detennined by the
command, and acts of that kind or sort being generally for-
bidden. But an order issued by Parliament to meet an im-
pending scarcity, and stopping the exportation of corn then
8hi2}ped and in port, would not be a law or rule, though issued
by the sovereigTi legislature. The order regarding exclusively
a specified quantity of corn, the negative acts or forbearances,
enjoined by the command, woidd be determined specifically
or individually by the determinate natm'e of their subject.

Again : Aji act which is not an ofience, according to the
existing law, moves the sovereign to displeasiu-e : and, though
the authors of the act are legally innocent or imoftending,
the sovereign commands that they shall be punished. As
enjoining a specific punishment in that specific case, and as
not enjoining generally acts or forbearances of a class, the
order uttered by the sovereign is not a law or nile.

To conclude with an appropriate example, judicial com-
mands are commonly occasional or particular, although the
commands which they are calculated to enforce are commonly
laws or rules.

For instance, the lawgiver commands that thieves shall
be hanged. A specific theft and a specified thief being
given, the judge commands that the thief shall be hanged,
agreeably to the command of the lawgiver.

*

L aiis. — Particular Commands.

\^.

Now tlie lawgiver determines a class or doscnption of Lect.

Rcts ; proliibits acts of the class generally and indetinitely ; ^ I.

and commands, with the lite gefierality, that punishment ' ' '
shall follow trausgi-ession. The command of the lawgiver
is, therefore, a law or rule. But the command of the judge
is occasional or particular. For he orders a specific punish-
ment, as the consequence of a specific ofience.

The distinction immediately ahove stated and illustrated
does not indeed acciu-ately square with established forms of
speech. For instance an order by Parliament stopping the
exportation of corn then in port, would veiy likely be called
a law because it wears the fonn of law and is issued by the
sovereign legislatiu'e. An act of attainder deliberately passed
by a Psirliament with the forms of legislation would probably
be called a law, though a similar order made by a sovereign
monarch without deliberation or ceremony would be styled
an arbitrary command. -\nd on the other hand there are
many commands issued by way of delegated legislation
which really are laws, although not called so by common
language. Such are various Orders in Council, Orders issued
by Public Departments, Schemes of the Charity Commis-
sioners when duly laid before Pailiameut, Orders or
• Eules ' made imder powers given in Acts of Parliament re-
lating to Judicial Procediu'e or othenvise made in exercise
of delegated leoislative functions.

According to the line of separation wliich I have at-
tempted to describe, a law and a particidar command ai3
distinguished thus. — Acts or forbearances of a elms are on-
juined generally by the fonner. Acts dettrmhied speeiJieuUy,
are enjoined or forbidden by the latter.

A different line of separation has been drawn by Black-
stone and others. According to them, a law and a particular
command are distinguished in the following manner. — A law
obliges (jeneralhj the members of the given community, or
persons of a given class. A particular command obliges a
single person, or persons inclmduallij.

This is not a con-ect account of the distinction.

YoVjJirst, commands which oblige generally the members
of the given community, or persons of given classes, are not
always laws or rules.

Thus, in the case akeady supposed ; that in which the
sovereign commands that all corn actiuilly shipped for ex-
portation be stopped and detained ; the command is obliga-
tory upon the whole conununity, but as it obliges them only
to a set of acts individually assigned, it is not a law.

And, secondly, a command which obliges exclusively
persons individually determined, may amoimt, notwithstand-
ing, to a law or rule.

For example, A father may set a rule to his child or

Incorrect
account o?
the dlstiiic-
tlon given by
Blackstone
and otbers

i6

Province of Jityispyudcncc,

Part I. cliildren : ;i guardian, to liis ward : a master, to his slave
§ ^' _. or servant. And certain of God's laiis were as binding on
the first man, as they are binding at this horn* on the
millions who have sprun"- from his loind.

Again suppose that Parliament creates and grants an
office, and binds the grantee to services of a given descrip-
tion, this would be a law established by political superiors,
xnd yet exclusively binding a specified or determinate
person.

Laws established by political superiors, and exclusively
binding specified or determinate persons, are styled, in, the
language of the IJoman jurists, immleyia. Though that
name, like most of the leading terms in actual systems of
law, is equally applied to a heap of heterogeneous objects.*

A law, properly so called, is tlierefore a command which
obliges a person or persons ; and as distinguished from a
particular or occasional command, obliges generally to acts
or forbearances of a class.

Laws and other commands are said to proceed from
supenors and to bind or oblige inferiors. I will, therefore,
analyze the meaning of those correlative expressions ; and
will try to strip them of a certain mystery, by which that
simple meaning appears to be obscured.

Superiority is often synonymous with 2^)'^c''(lence or e.r-
cellence : as for instance when we talk of superiors in rank,
wealth or virtue.

]^ut, taken with the meaning wherein I here understand*'
it, the term siipcrioriti/ signifies mif//d : the power of aflfecting
others with evil or pain, and of forcing them, through fear
of that evil, to fiishion tlieir conduct to one's wishes.

For example, God is emphatically the superior of Man.
For his power of affecting us with pain, and of forcing us
to comply with his will, is unbounded and resistless.

To a limited extent, the Sovereign One or Number is the
superior of the subject or citizen : the master, of tlie slave
or servant : tlie father, of the child.

In sliort, whoever can ohli>ic another to comply with his
wishes, is the superior of that other, so far as the ability
reaches : That otlier being, to tlie same extent, the inferior.

The might or superiority of God, is simple or absolute.
But in all or most cases of human superiority, the relation

* Where a privilegium merely imposes a dut}-, it exclusively
obliges a determinate person or persons. But where a privilegium
confers a right, and the right conferred avails ayainst the world at
large, the law is privilegium as viewed from a certain aspect, but is
also a general law as viewed from another aspect. In respect of the
right conferred, the law exclusively regards a determinate person,
and, therefore, is privilegium. In respect of the duty imposed, and
corresponding to the right conferred, the law regards generally th«
members of the entire commtmity.

Superior and Inferior. Ij?

of superior aud inferior, and the relation of inferior and Lect.
superior, are reciprocal. The party who is the superior as I.

viewed from one aspect, is the inferior as viewed from ' ~'

another.

For example, To an indefinite, though limited extent, the
monarch is the superior of the governed: his power being
commonly sufficient to enforce compliance with his wiD.
But the governed, collectively or in mass, are also the su-
perior of the monarch : who is checked in the abuse of his
might by his fear of exciting their anger ; and of rousing to
active resistance the might which slumbers in the multitude.

A member of a sovereign assembly is the superior of the
judge: the judge being bound by the law which proceeds
from that sovereign bodj\ But, in his character of citizen
or subject, he is the inferior of the judge: the judge being
the minister of the law, and armed with the power of en-
forcing it.

It appears, then, that the term superiority (like the terms
(7m^// and sanction^ is implied by the term command: and
therefore ' that laics emanate from superiors ' is an identical
proposition. The meaning which it aflects to impart is
contained in its subject. -

I must now advert to certain objects improperly called Some laws
laws, not being commands, which may nevertheless be pro- ^eluSFS-e ^^
perly included within the province of imisprudence : wuiiin the

■^ -^ 1 ■•■ J 1 scope of ji;n*

namely : — mudence.

1. Acts on the part of legislatures to explain positive -
law. Worlring no change in the actual duties of the go-
verned, but siiuply declaring what those duties are, they
are not commands, but, to borrow an expression from the
writers on Roman law, acts of authentic interpretation.
And although they are not laws properly so called, they are '
so intimately connecte^L^ith positive law as to come within
the provihce"l)fjurisprudence.

It often, indeed, happens (as I shall show in the proper
place), that laws declaratory in name are imperative in effect :
Legislative, like judicial interpretation, being frequently de-
ceptive ; and establishing new law, under guise of expounding
the old.

2. Laws to repeal laws, and to release from existing- -
duties. In so far as they release from duties imposed by
existing laws, they are not commands, but revocations of
commands. These are often named * permissive ' laws. ,

Remotely and indirectly, indeed, permissive laws are
often or always imperative. For the parties released from
duties are restored to liberties or rights : aud duties answer-
ing those rights are, therefore, created or revived.

But this is a matter which I shall examine with exaet-
uess, when I analyze the expressions ' legal right,' ' permis-
sion by the sovereign or state/ and 'civil or political liberty,'

18

Province of jurisprudence.

Part I.
S 1.

Laws (^pro-

yerly so
oalled) which
may stem not
imperative.

Laws sup-
posed merely
to create
rights.

3. Imperfect laws, or laws of imperfect obligation. _
An imperfect law (with the sense wherein the term is
used by the Roman j mists) is a law which wants a sanction,
and which, therefore, is not binding. A law declaring that
certain acts are crimes, but annexing uo punishment to the
commission of acts of the class, is the simplest and most
ob\"ioiis example. An imperfect law is not so properly a
law, as counsel, or exhortation, addressed by a superior to
inferiors.

Examples of imperfect laws are cited by the Roman
jm-ists. But with us in England, laws professedly imperative
are always (I believe) perfect or obligatory. Whel:^ the
English legislature afiects to command, the English tribunals
not um-easonably presume that the legislatm'e exacts obedi-
ence. And, if uo specific sanction be annexed to a given
law, a sanction is supplied by the com'ts of justice, agreeably
to a general maxim which obtains in cases of the kind.

Many of the writers on morals, and on the so called
Icno of nature, have annexed a different meaning to the
term imperfect. Speaking of imperfect obligations, they
commonly mean duties which are not lef/al: duties imposed
by commands of God, or duties imposed by positive morality,
as contradistinguished to duties imposed by positive law.
An imperfect obligation, in the sense of the Roman j mists,
is exactly equivalent to no obligation at all. For the term
imperfect denotes simply that the law wants the sanction
appropriate to laws of the kind. An imperfect obligation
in the other meaning of the expression is a religious or a
moral obligation.

The laws (improperly so called) which I have here lastly
enumerated, are (I think) the only laws which are not com-
mands, and which yet may be properly included within the
province of jmisprudence. But though these, with the so
called laws set by opinion and the objects metaphorically
termed laws, are "the only laws which really are not com-
mands, there are certain laws (properly so called) which
may seem not imperative. T subjoin a few remarks upon laws
of this dubious character.

First it may be said that there are laws which merehj
create riyJits : And, seeing that eveiy command imposes a
dutii, laws of this nature are not imperative.

But, as 1 have intimated already, and shall show com-
pletely hereafter, there are no laws merely creating rights.
There are laws, it is true, which merehj create duties : duties
not correlating with correlative rights, and which therefore
may be styled absolute. But every law really confen-ing a
right, imposes expressly or tacitly a relative duty, or a duty
con-elating with the right. This will more clearly appear
when I come hereafter to analyze the expression ' rights.'
Secondly, according to an opinion which I must notice

All Laws arc Coimuands. IQ

inckhntalhj liere, tliougli the subject to which it relates will Lfxt.
be treated directlij hereafter, customary laws are an exception i.

to the proposition ' that laws are a species of commands.' ^^ ' '

By many of the admirers of customary laws (and, es- ^1",^^''"'^''''
pecially, of theu* German admirers) they are thought to
oblige legally (independently of the sovereign or state) be-
cause the citizens or subjects have observed or kept them.
Agreeably to this opinion, they are positive law (or law,
ctrictly so called) inasmuch as they are enforced by the
courts of justice : But exist as positive laio by the sponta-
neous adoption of the governed, and not by position or
establishment on the part of political superiors. And, con- -
ser|uently, customary laws, considered as positive law, are
not laws or rules properly so called.

An opinion less mysterious, but somewhat allied to this,
is not uncommonly held by the adverse party which is
strongly opposed to customary law ; and to all law made
judicially, or in the way of judicial legislation. According
to the latter opinion, all judge-made law is purely the crea-
tui'e of the judges by whom it is established immediately.
To suppose that it speaks the legislative will of the sovereign,
is one of the foolish or \ui^\\s\iJictions with which lawyers,
in every age and nation, have perplexed the simplest truths.
It can easily be shown that each of these opinions is
groundless : that customary law is imperath^e in the proper
signitication of the t'jrm ; and that all judge-made law is
the creature of the sovereign or state.

At its origin, a custom is a rule of conduct which the
governed observe spontaneously, or not in pursuance of a law
set by a political superior. The custom is transmuted into
positive law when it is adopted as such, either by being
expi-essly embodied in statutes promulgated by the sovereign
authorit}', or implicitly by decisions of the com-ts of justice
which are enforced by the power of the state.

For the legal rule introduced by a judicial decision
(whether suggested by custom or not) is in etlect legislation
by the sovereign. A subordinate or subject judge is merely
a minister. The rules which he makes derive their legal
force from authority given by the state : an authority which
the state may confer expressly, but which it commonly im-
parts in the way of acc[uiescence.

The opinion of the party which abhors judge-made laws,
springs from their iuadecj[uate conception of the nature of
commands.

Like other significations of desire, a command is ex-
press or tacit. If tlie desire be signified by worth (written
or spoken), the command is express. If the desire be
signified by conduct (or by any signs of desire which are
not words), the command is tacit.

Now when customs are turned into legal mles by deci-

20

Province of Jurisprudence.

r.aws which
Ere not com-
iiiand?, enu-
merated.

sious of subject judges, the legal rules wliicli emerge fi'om
the customs are tacit commands of the sovereign legislatui'e.
Tlie state, which is able to abolish, permits its ministers to
enforce them : and it therefore signities its pleasm-e, by that
its voluntary acquiescence, ' that they shall serve as a law to
the governed.'

It appears then that the positive law styled customary
as well as all positive law made judicially, is established by
the state directly or circuitously, and therefore is impera-
tive: although it is true that law made judicially and law
made by statute are distinguished by weighty differences ;
and into the nature and reasons of these I shall inquire here-
after.

I assume, then, that the only laws which are not im-
perative, and which belong to the subject-matter of im'is-
prudence, are the following: — 1. Declaratoiy laws, or laws
explaining the import of existing positive law. 2. Laws
abrog-ating or repealing existing positive law. 3. Imperfect
laws, or laws of imperfect obligation (with the sense wherein
the expression is used by the Eoman jm-ists).

But the space occupied in the science by these improper
laws is comparatively narrow and insignificant. Accordingly,
although I shall take them into account so often as I refer
to them directly, I shall throw them out of account on
other occasions. Or, in other words, I shall limit the term
laiv to laws which are imperative, unless I extend it ex-
pressly to laws which are not.

(a) The Divine
laws, or the
livrs of God.

LECTUEE II.

II. — Havtn'g stated the essentials of a law or lole (talren
with the largest signification which can be given to the
term pro})erhj), 1 now proceed, according to the purpose and
method above sketched out, to distinguish the 'characters
of the four difi'ereut kinds or classes of laws (properly and
improperly so called) in the order enumerated on p. 7 above.

(a) The Divine laws, or the laws of God, are laws set
by God to his human creatm-es. As I have intimated
aii'eady, and shall show more fully hereafter, tliey are laws
or rules, 2>roj)erli/ so called.

As distinguished from duties imposed by himian laws,
duties imposed by the Divine laws may be called religious
duties. Violations of religious duties are styled sins.

As distinguished from sanctions annexed to himian laws,
the sanctions annexed to the Di\"ine laws may be called re-
ligious sanctions. They consist of the evils, or pains, which
we may sufler here or hereafter, by the immediate appoint-

Divine Laiv.

21

meat of God, and as consequences of Lreakiug Lis command-
ments.

Of the Divine laws, or the haws of God, some are re-
vealed or promulgated, others unrevcaled. Those which are
imrevealed are not imfrequently denoted by the phrases ;
' law of nature ; ' ' natural law ; ' ' the law manifested to man
by the light of nature or reason ; ' ' the laws, precepts, or
dictates of natm-al religion.'

The revealed law of God, and the portion of the law of
God which is xinrevealed, are manifested to men in difierent
ways, or by different sets of signs.

"With regard to the laws which God is pleased to reveal,
the way wherein they are manifested is easily conceived.
They are express commands : portions of the uord of God :
commands signified to men through the medium of human
language ; and uttered by God directly, or by seiTants whom
he sends to announce them.

Such of the Divine laws as are imrevealed are laws set
by God to his human creatures, but not through the medium
of hmuan language, or not expressly.

These are the only laws which he has set to that portion
of manlrind who are excluded from the light of Eevelation.

These laws are binding upon us (who have access to the
truths of Eevelation), in so far as the revealed law has left
our duties imdetermined. For, though his express declara-
tions are the clearest evidence of his will, we must look for
many of the duties, which God has imposed upon us, to
tlie marks or signs of his pleasure which are styled the liyht
of nature. Paley and other divines have proved beyond a
doubt, that it was not the purpose of Revelation to disclose
the ichole of those duties. Some we could not know, with-
out the help of Eevelation ; and these the revealed law has
ttated distinctly and precisely. The rest we may know, if
we will, by the light of nature or reason ; and these the
revealed law supposes or assumes. It passes them over iu
silence, or with a brief and incidental notice.

But if God has given us laws which he has not revealed
or promulgated, how shall we know tliem ? "What are those
signs of his pleasure, which we stylo the lif/ht of nature;
and oppose, by that figm'ative phrase, to express declara-
tions of his will ?/

Of the DlvlD*
laws, some
are revealed,
and others
are unre-
vcaled.

Sucli of the
Divine laws
as are re-
vealed.

Such of the
Divine laws
as are 7m?e-
vealed.

What fs the
index to sucli
of the Diving
laws as are
unrevcaled ?

The h^'^Dotheses or theories which attempt to resolve this
question, may be reduced, I think, to two.

According to one of them, there are hmuan actions
which all manlrind approve, human actions which all men
disapprove ; and these imiversal sentiments arise at the
thought of those actions, spontaneously, instantly, and in-
evitably. Being common to all mankind, and inseparable

The hypo-
theses or the-
ones which
regard the
nature of
that index.
The hypo-
thesis or
theoi-y of a
moral sense ;
of innate
practical priii-

22

Province of Jurispnidciicc

ciples ■ of a
practical
reason ;
comyyion sense,
&c., &c.

Tlic theory or
hypothesis of
ulility.

A biief sum-
mary of the
theory of
Utility.

fi'om tlie tliouglits of those actiona^ these sentiments aixj
marks or sig-ns of the Divine pleasm-e. They are proofs that
the actions which excite them are enjoined or forbidden by
the Deity.

The rectitude or pravity of human conduct, or its agree-
ment or disagreement with the Laws of God, is instantly
inferred from these sentiments, without the possibility of
mistake. He has resolved that om' happiness shall depend
on om' keeping his commandments: and it manifestly con-
sists with his manifest wisdom and goodness, that we should
know them promptly and certainly. Accordingly, he has
not conmiitted us to the guidance of om- slow and fallible
reason. He has wisely endowed us with feeUnc/s, which p
warn us at every step ; and pm'sue us, with their importu- »
nate reproaches, when we wander from the path of om"l
duties.

These simple or inscrutable feelings have been compared
to those which we derive from the outward senses, and
have beeu refeiTed to a peculiar faculty called the moral
sense : though, admitting that tlie feelings exist, and are
proofs of the Divine pleasm-e, I am unable to discover the
analogy which suggested the comparison and the name.
The objects or appearances which properly are perceived
through the senses, are perceived immediately, or without an
inference of the understanding. According to the hypo-
thesis which I have briefly stated or suggested, there is
always an inference of the understanding, though the in-
ference is short and inevitable. From feelings which arise
within us v>'hen we think of certain actions, we infer that
tiiose actions are enjoined or forbidden by the Deity.

The hypothesis of a moral sense has been expressed by
various terms ; by the term common sense in relation to man-
kind in general ; conscie nee in relation to the individual.
And the laws of God to which these feelings are supposed
to be the index have been styled innate 2)ractical principles.

According to the other of the adverse theories or hypo-
theses, the laws of God, which are not revealed or promul-
gated, must be gathered by man from the goodness of God,
and from the tendencies of human actions. In other
words, the benevolence of God, with the principle of general
utilitj'^, is our only index or guide to his um-evealed law.

God designs the happiness of all his sentient creatm'es.
Some human actions forward that benevolent pm-pose, or
their tendencies are beneficent or useful. Other human ac-
tions are adverse to that purpose, or their tendencies are
mischievous or pernicious. The former, as jn'omoting his
pui"pose, God has enjoined. The latter, as opposed to his
pm'pose, God has forbidden. He has given us the faculty
of observing ; of remembering ; of reasoning : and, by duly
applying those faculties, we may collect the tendencies of

Tlteory of Utility.

our actions. Knowing the tendencies of oiir actions, and
knowing his benevolent pm-jaosC; we know his tacit com-
mands.

Such is a brief smnmary of this celebrated theoiT. I
should wander to a measm-eless distance fi-om the main pur-
pose of my lectm-es, if I stated all the explanations with
which that summaiy must be received. But, to ob\-iate the
principal misconceptions to which the theory is obnoxious,
I will subjoin as many of those explanations as my purpose
and limits wiU admit.

The theory is this. Inasmuch as the goodness of

God is boundless and impartial, he designs the gi-eatest
happiness of all his sentient creatm^es. From the tenden-
cies of hmuan actions to increase or diminish the aggregate
of human enjoyments, we may infer the laws which he
has given, but has not expressed or revealed.

Now the tendency of a hmuan action thus imderstood
is the whole of its tendency : the smn of its probable con-
sequences, remote and collateral, as well as direct, in so far
as they may influence the general happiness.

Trying to collect its tendency (as thus understood), we
must not consider the action as if it were sinrjle and insu-
lated, but must look at the class of actions to which it
belong-s. The question is this : — If acts of the class were
f/enerally done, or generally forborne or omitted, what would
be the probable elfect on the general happiness or good ?

Considered by itself, a mischievous act may seem to be
usefid or harmless. Considered by itself, a useful act may
seem to be pernicious.

For example. If a poor man steal a handful from the
heap of his rich neighbour, the act, considered by itself, is
harmless or positively good. One man's poverty is assuaged
with the superfluous wealth of another.

But suppose that thefts were general (or that the nseful
right of property were open to frequent invasions), and
mark the result.

Without security for property, there were uo induce-
ment to save. Without habitual saving on the part of
proprietors, there were no accumulation of capital. Witli-
out accumulation of capital, there were no fund for the
papnent of wages, no division of labour, no elaborate and
costly machines: there were none of those helps to laboiu*
which augment its productive power, and, therefore, multiply
the eujo}auents of every individual in the corumunity. Fre-
quent invasions of property woidd bring- the rich to poverty,
and aggTavate the poverty of the poor.

Again : If I evade the payment of a tax imposed by a
good government, the specific eftects of the mischievous for-
bearance are indisputably usefid. For the money v.hich I •
unduly withhold is convenient to myself; and, compared

23

Lect.
II.

The following
explanations
of that sum-
mary l-ritt1y
introduced.

Ttti true teiv-
dency of a
human
action, an"!
the true ttst
of that ten-
dency.

24

Province of Jnrisprudeiice.

According to
the theory of
utility, God's
commands
are mostly
rules.

It does not
follow from
the theory of

ntility, that

with the hulk of the public revenue, is a quantity too small
to be missed. But the regular payment of taxes is neces-
sary to the existence of the government. And I. and the
rest of the community, enjoy the security which it gives,
because the payment of taxes is rarely evaded.

In the cases now supposed, the act or omission is good,
considered as single or insulated ; but, considered with the
rest of its class, is evil. In other cases, an act or omission
is evil, considered as single or insulated ; but, considered
with the rest of its class, is good.

For example, A punishment, as a solitary fact, is an
evil : the pain inflicted on the criminal being added fo the
mischief of the crime. Bat, considered as part of a system,
a punishment is useful or beneficent. By a dozen or score
of puuisluneuta, thousands of crimes are prevented. With
the suflerings of the guilty few, the security of the many is
purchased. By the lopping of a peccant member, the body
is saved from decay.

If the tendencies of actions considered in the light above
mentioned be the index to the will of God, it follows that
most of liis commands are general or universal. The useful
acts wliich he enjoins, and the pernicious acts which he
prohibits, he enjoins or prohibits, for the most part, not
singly, but by classes: not by commands Avhich are par-
ticular, or directed to insulated cases ; but by laws or rules
which are general, and commonly inflexible.

For example. Certain acts are pernicious, considered as
a class : while such are the motives or inducements to the
commission of acts of the class, that unless we were deter-
mined to forbearance by the fear of punishment, they toould
be frequently committed. If we combine these data with
the wisdom and goodness of God, we must infer that he
forbids such acts zcithout exception. In the tenth, or the
hundredth case, the act might be useful : in the nine, or the
ninety and nine, the act would be pernicious. If the act were
permitted or tolerated in the rare and anomalous case, the
motives to forbear in the others would be weakened or
destroyed. lu the hurry and tumult of action it is hard
to distinguish justly. To grasp at present enjoyment, and
to turn from present imeasiness, is the habitual inclination
of us all. And thus, through the weakness of our judg-
ments, and the more dangerous infirmity of our wills, we
should frequently stretch the exception to cases embraced by
the rule.

Consequently, where acts, considered as a class, are
useful or pernicious, we must conclude that he enjoins or
forbids them, and by a ride which probably is intlexible.

Such, I say, is the conclusion at which we must arrive,
supposing that the fear of punishment be necessary to in-
cite or restrain. TJiis is not the case in recrard to all

Theory of Utility. 25

kinds of actions. To some useful acts we are sufficiently
prone, and from some mischievous acts sufficiently averse,
without the motives which are presented to the will by a
lawgiver. Motives natural or spontaneous impel us to ac^^irfs''t°'e
action in the one cf se, and hold us to forbearance in the ^','^,^5^'^°^ *
other. In the language of Mr. Loche, ' The mischievous junction ,'and
omission or action would bring down evils upon us, which n^^ciou^a*""^"
are its natural products or consequences: and which, as action, the

. 7 • ■ i •/ 7 J 7 ) object of a

natural inconveniences, operate u-itnout a lau: Divine pro-

Now, if the ordinary measure or test for trying the ten- iii^ition.

dencies of our actions be that above explained, the most a current

cuiTent and specious of the objections which are made to obfectfoTto

the theory of utility, is founded in gross mistake, and is the theo-y of

, . •• ^ . ' r J. x- utility, intro-

open to triumphant relutation. dured and

That objection may be stated thus : stated.

' Pleasure and pain (or good and evil) are inseparably
' connected. Every act and forbearance is followed by
' both : immediately or remotely, to ourselves or to our

* fellow-creatures.

'Consequently, if we shape our conduct justly to the
' principle of general utility, every election wliich we make
' between doing or forbearing from an act will be preceded
' by the following process. Fhst : 'We shall conjecture
' the consequences of the act, and also the consequences of
' the forbearance. Secondly : "^^'e shall compare the con-
' sequences of the act with the consequences of the for-
' bearauce, and determine the balance of advantage.

' Now suppose we actually tried this process before
' an'iving at our resolves. INIark the absurd and mischievous
' effects which would inevitably follow.

' Generally speaking, the period allowed for deliberation
' is brief : and to lengthen deliberation beyond that limited
' period is equivalent to forbearance or omission. Con-

* sequently, if we performed this process completely, we

* should often defeat its purpose. But feeling the necessity
' of resolving- promptly, we should not perform the process
' completely or correcth'. We should guess or conjecture
' hastily the effects of the act and the forbearance, and
' compare their respective effects with equal precipitancy.
' Our premises would be false or imperfect ; our conclusions,
' badly deduced. Labouring to adjust our conduct to the
' principle of general utility, we ehould work inevitable
' mischief.

' And such would be the consequences of following the
' principle of utility, though we sought the true and the useful

* with simplicity and in earnest. But, as Ave commonly
' prefer our own interests to those o.f our fellow-creatm-es,

* and our own immediate to oiu* own remote interests, it is

* clear that we should warp the principle to selfish and

* hiu'tful ends,'

C

26

Province of Jiirisprtidence.

The txco apt
answers to
the foregoing
objection
briefly intro-
duced.

Thc^rse
answer to the
foregoing
objection
stated.

The second
answer to the
foregoing
objection
briefly intro-
duced.

Sucli, I believe, is the meaning of those — if thjy have R
meaning — who object to the principle of utility ' that it is
a dangerous principle of conduct.'

It has been said, iu answer to this objection, that it
mvolves a contradiction in terms. Danger is another name
for 2^>'ohable mischief: And, siu'ely, we best avert the pro-
bable mischiefs of our conduct, by estimating its probable
consecj^uences. To say ' that the principle of utility is a
dangerous piinciple of conduct,' is to say 'that it is
contrary to utility to consult utility.'

Now, though this is so brief and pithy that I heartily
wish it were conclusive, I must admit that it scarcely
touches the objection. For the objection assumes that we
cannot foresee and estimate the probable efiects of om* con-
duct : and the argument is that by tlie attempt at calcu-
lation, which would inevitably fail, we shoidd fall into error
and sin, and so deviate fi"om the principle of utility by
which we professed to be guided. A proposition iuvoMng
when fairly stated nothing like a contradiction.
""~— But, though this is not the refutation, there is a refu-
tation.

And fu'st, If utility be our only index to the tacit com-
nauds of the Deity, it is idle to object its imperfections.
We must even make the most of it.

If man were endowed with a vwral sense, or in other
words were gifted with a peculiar organ for acquiring a
knowledge of the duties imposed upon him by the I3eity, these
would be subjects of immediate consciousness, and an attempt
to displace that invincible consciousness by the principle of
utility would be impossible, and manifestly absm'd. But, if
we are not gifted with that peculiar organ, we must gather
om- duties, as best we can, fi'om the tendencies of human
actions ; or remain, at our own peril, in ignorance of our
duties.

Before stating the second answer to the objection I
must observe that the objectors misunderstand the theory
which they impugn. They assume that, if we adjusted our
conduct to the principle of general utility, every election
which we made between doing and forbearing from an act
would be preceded by a calculation : by an attempt to cou-
jectm-e and compare the respective probable consequences of
action and forbearance.

And, granting their assumption, I grant their inference.
I gi-ant that the principle of utility were a halting and
pm'blind guide.

But their assumption is groundless. For, according
to that theoiy, our conduct woidd conform to 7-ides infeiTed
from the tendencies of actions, but would not be deter-
mined by a direct resort to the principle of general
utility. Utility would be the test of our conduct ultimately,

Theory of Utility.

but not immediately : the immediate test of the rules to
which om- conduct would conform, but not the immediate
test of specific or individual actions. Our rules ■nould be
fashioned on utility ; our conduct, on om* rules.

The second answer to the objection consists merely in
a reiteration of the explanations of the theoiy akeady ad-
vanced, and the deduction of some necessary conclusions.

The whole tendency of an act, — the sum of its probable
results in all their infinite ramifications, — can only be
measured by supposing- that acts of the kind were largely
practised, and considering- the probable result. The total
is often capable of a direct estimation, for which, if we re-
gard only the individual act, there are no certain data.
Thus we arrive at a means for testing: the quality of the
individual act.

The question therefore is what would be the probable
effect upon the general happiness or good, if acts of the class
were generally done or forborne. If the balance of advan-
tage or disadvantage lie on the positive side, the tendency
of the act is good : the general happiness requii-es that
acts of the class shall be done. If it lie on the negative
side, the tendency of the act is bad : the general happiness
requires that acts of the class shall be forborne.

But, concluding that acts of the class are useful or per-
nicious, we are forced upon a fm-ther inference. Adverting
to the known wisdom and the known benevolence of the
Deity, we infer that he enjoins or forbids them by a general
and inflexible rule.

Such is the inference at which we ine-vitably an-ive,
supposing that the acts be such as to call for the intervention
of a lawgiver.

To rules thus infen-ed, and lodged in the memoi-y, our
conduct would conform iinniediatehj if it were truly adjusted
to utility.

We should not therefore, as the objection supposes, be
under the necessity of pausing and calculating upon each act
or forbearance. To do so would be superfluous, inasmuch as
the result of that process would be embodied in a known
rule ; and mischievous, inasmuch as the true result would
be expressed by that rule, whilst the process would probably
be faulty if it were done on the spur of the occasion. On
the contrary, the inferences suggested to our minds by re-
peated experience and observation are drawn into jirin-
ciples, or compressed into maxims ; and these we can-y about
us ready for use, and apply to individual cases promptly or
without hesitation.

This is the main, though not the only use of theory .
which ignorant and weak people are in a habit of oijposiny
to practice,

C2

Tlie second

answer

Elated.

It our con-
duct were

truly adjusted
to the prin-
ciple of
general
utility, our
conduct
would con-
form, for the
most part, to
rales ; rules
which ema-
nate from
the Deity,
and to which
the tenden-
cies of huniao
actions are
the guide or
iudex :

28

Province of Jw-ispritdeiice.

■ml by soiii-
iiieKts asso-
elatedwith
those rules.

* 'Tis true in thcorij ; but, then, 'tis false in practice,^
says Noodle, with a look of the most ludicrous profundity.

But, with deference to this worshipful and weighty per-
sonage, that which is true in theory is also true in practice.

Seeing that a tme theory is a compendium of particular
truths, it is necessarily true as applied to particular cases.
Unless the theoiy he tme of particulars, and therefore true
in practice, it has no truth at all. Truth is always particular,
though languacje is commonly general. Unless the terms
of a theoiy can be resolved into particular truths, the theory
is mere jargon : a coil of those senseless abstractions which
often ensnare the instructed, and betray the ignorant. ,

They who talli of a thing being tme in theory but not
true in practice, mean (if they have a meaning) that the
theoiy in question is folse : that the particular truths which
it concerns are ti'eated imperfectly or incorrectly ; and that,
if applied in practice, it might mislead.

Spealring then generally, human conduct is inevitably
guided by rules, in the form, for the most part, of general
principles or maxims.

The human conduct which is subject to the Divine com-
mands, is not only guided by j-ules, but also by moral senti-
ments associated with those rules.

If I believe (no matter why) that acts of a class or
description are enjoined or forbidden by the Deity, a senti-
ment of approbation or disapprobation is inseparably con-
nected in my mind with the thought or conception of such
acts. And by this I am urged to do, or restrained from
doing such acts, although I advert not to the reason in
which my belief originated, nor recal the Divine rule which
I have inferi'ed from that reason.

Now, if the reason in which my belief originated be
the useful or pernicious tendency of acts of the class, my
conduct is truly adjusted to the principle of general utility,
but not determined by a direct resort to it. It is indeed
guided remotely by calculation : but, immediately, or at the
moment of action, is determined by sentiment ; a sentiment
associated with acts of the class, and with the rule which I
have infeiTed from their tendency.

For example. Reasons which are quite satisfactory, but
somewhat numerous and intricate, convince me that the
institution of property is necessary to the general good.
Consequently, I am convinced that thefts are pernicious ;
and therefore I infer that the Deity forbids them by a
general and inflexible rule. But I am not compelled to
repeat the train of induction and reasoning by which I amve
at this rule, before I can know with certainty that I should
forbear from taking your purse. Through my previous habits
of thought and by my education, a sentiment of aversion has
become associated in my mind with the thought or concep-

Theory of UiilHy.

29

Mon of a theft : And I aiu determined by tliat ready emotion
to keep my lingers from your purse.

To think that the theory of utility would substitute cal-
culation for sentiment, is a gTOss and flagTant error : the
error of a shallow, precipitate understanding-. He who
opposes calculation and sentiment, opposes the rudder to
the breeze which swells the sail. Sentiment without cal-
culation were blind and capricious ; but calculation without
sentiment were inert.

To crusli the moral sentiments is not the scope or pur-
pose of the true theory of utility. It seeks to impress those
sentiments with a just or benelicent direction: to free us of
(jroundless likings, and fi'om the tyi'anny of senseless anti-
pathies ; to fix our love upon the useful, our hate upon the
pernicious.

If, then, the principle of utility were the presiding prin-
ciple of our conduct, our conduct would be determined
immediately by Divine rules, and sentiments associated with
those rules. And the application of the principle of utility
to particular cases, would neither be attended by the errors,
nor followed by the mischiefs, which the current objection
in question supposes.

But these conclusions (lilce most conclusions) must be
taken with limitations.

Tliere certainly are cases (of comparatively rare occur-
rence) wherein the specific considerations balance or out-
weigh the general : cases which (in the language of Bacon)
are ' immersed in matter : ' cases peqilexed with peculiarities
which cannot be safely neglected, in short anomalous cases.
Even in these to depart from the rule is mischievous ; but
the specific consequences of the resolve are so important
that the mischief of following the rule may outweigh the
mischief of breaking it.

For instance it is a general inference from the principle
of utility, that God commands obedience to established
Govermnent. Without obedience to ' the powers that be '
security is weakened, and happiness, as a general rule,
diminished. Disobedience even to a bad government is an
evil. But the change from a bad govei'nment to a good one
is an end so important, that if resistance will jjrobabli/ attain
that end the subjects are justified in entertaining the question
of resistance. The members of a political society who re-
volve this momentous question must dismiss the rule and
calculate specific consequences. They must measure the
extent of the mischief wrought by the actual government ;
the chance of getting a better by resistance •, the inevitable
e\'il of resistance whether it prosper or fail ; and the possible
good which may follow successful resistance. And upon a
calculation of these elements they must solve the question
to the best of their knowledge and ability.

But in ano-
malous and
excepted
cases (of
cnnipara-
tively rare
occurrence)
our conduct
would lie
fashioned
directly on
the principle
of general
utility, or
guided by a
conjecture
and coni-
parison of
specific or
particular
conse-
quences.

30 Province of Jurisprudence.

Part J. In tlie anomalous case tlie application of the principle of

§ 1- atility would be beset -^-ith the difficulties -which the objec-

''"~'^' ' tion in question imputes to it generally. The calculation
and resolve would be a difficult and uncertain process, and
one upon which the wise and the <rood and the brave might
differ. A Milton or a Hampden might animate their
countrymen to resistance, a Hobbes or a Falkland would
counsel obedience and peace.

But althoug-li the principle of utility would afford no
certain solution, the community would be fortunate if their
opinions and sentiments were formed upon it. The pre-
tensions of each party being referred to an intelligible
standard, would be capable of abatement by mutual con-
cessions, so that compromise would be at least possible. The
adherents of the established government might prefer innova-
tions which they disapproved to the mischiefs of a violent
contest. The party affecting reform would probably accept
concessions short of theii- notions and wishes, rather than
insist in the pui-suit of a greater possible good through the
evils and hazards of a war.

But if instead of measm-ing the object by the standard of
utility, each party were led by the ears and appealed to
unmeaning phrases such as ' the rights of man," * the sacred
rights of sovereigns,' ' unalienable liberties,' ' eternal and
immutable justice,' ' an original contract or covenant,' oi
' the principles of an in^•iolable constitution,' neither could
compare its object with the cost of a violent pursuit, not
would there be room for compromise. The phrases ha-\-ing
no meaning, the objects represented by them are of course
invaluable, and must be fought for ' to the bitter end ' re-
gardless of cost.

It really is important that men should think distinctly
and speak with a meaning-.

In most of the domestic broils which have agitated
civilized communities, the result has been deteiinined or
seriously affected by the natm-e of the prevalent talh : by the
nature of the topics or phrases which have figured in the
war of words.

Take for example the needless and disastrous war waged
by England -with her American colonies. The stup'd and
infiuiate majority who nished into that odious war, could
perceive and discourse of notliing but the sovereignty of the
mother coimtiy, and her so-called right to tax her colonial
subjects.

Had the dominant opinions and sentiments of the people
of England been fashioned on the principle of utility, tiie
public would have asked, — Is it the interest of England to
insist upon her sovereignty ? Is it her interest to exercise
her right without the approbation of the colonists ? For
the chance of a slight revenue to be wrung from her American

Theory of Utility. 3 1

Bubjects, and of a trifling- relief from the taxation which
IK.'W oppresses herself, shall she drive those reluctant subjects
to assert their alleged independence, ■sasit her own children
with the evil of war, squander her treasiu'es and soldiers
in trying to keep them down, and desolate the very region
from which the revenue must be drawn ?

If these and the like considerations had determined tlie
public mind, the public would have damned the project of
taxing and coercing the colonies, and the Govermnent
would have abandoned the project. Thus would the ex-
])enses and miseries of the war have been avoided ; the
connection of England with America not have been torn
asunder ; and if their common interests had led them to
dissolve it quietly, the relation of sovereign and subject,
of parent and child, would haA'e been followed bj"^ an equal,
but intimate and lasting alliance. For the interests of the
two peoples coincide, and the hostilities, open and covert,
which still smoulder between them, are the ofispring of an
antipathy begotten of their original quaiTel.

Such considerations would have swayed the mind of the
English Parliament and public had they listened to Mr.
Burke. He asked them what they would get if the project
of coercion should succeed ; and implored them to compare
lie advantage with the hazard and the cost. But the sound
practical men still insisted on the ri(jht ; and sagaciously
thook their heads at him, as a refiner and a theorist.

If a serious difference shall arise between om-selves and
Canada, or if a serious difference shall arise between om'-
f elves and Ireland, an attempt will probably be made to cram
us with the same stuff. But, such are the mighty strides
Avhich reason has taken in the interval, that I hope we
shall not swallow it with tlie relish of our good ancestors.
It will probably occm* to us to ask whether she be worth
Iceeping, and whether she be worth keeping at tlie cost of
a war ? — I think there is nothing romantic in the hope
which I now express ; since an admirable speech of Mr.
Baring, advising the relinquishment of Canada, was seem-
ingly received, a few years ago, with general assent and
approbation.*

* This was publislied in 1832. Since then further advances have
been made towards the rational discussion of such questions. In-
deed most people would now be ashamed to discuss them without
at least professing to argue on grounds of utility. The particular
1 opics inimediateiy above referred to are at this time ( 1874) hardly
agitated, the one because Canada is self-reliant and content, the other
because leading statesmen of both parties are agreed, on the argument
of expediency alone, that Ireland /s worth keeping at the cost of a war.
Jiy way of contrast to the principal topic discussed in the text may
be suggested the question which arose at the commencement of the
great war of Secession in America. There were not wanting cries or
false issues — The right of Secession — The Union one and indivisible.

32

Province of Jurisprudettce.

Paut I. There are, then, anomalous cases; and to these the man

§ ^- whose conduct vras fashioned on utility, ■would apply that

ultimate principle immediately or directly. And the appli-

answer'to the Cation of the principle would probably be beset with the

jection'i')fiefl" ^difficulties which the current objection in question imputes

Msumed. to it generally.

But eyen in these cases, the princip.e would afford an
intelligible test, and a likelihood of a just solution : a pro-
bability of discoyering the conduct required by the general
good, and therefore required by the commands of a wise
and beneyolent Deity.

And the anomalies, after all, are comparatiyely few: In
the gi'eat majority of cases, the general happiness requires
that rules shall be obser^'ed, and that sentiments associated
with rules shall be promptly obeyed. If our conduct
were tnily adjusted to the principle of general utility, our
conduct would seldom be determined by an immediate or
direct resort to it.

Cf

LECTURE III.

Leot.
III.

A sernnd
(ilijection to
tlie theory of
utility
elated.

Bi'T here arises a difficulty which is really perplexing, and
which hardly admits of a complete solution.

If the Di^•iue laws must be gathered from the tendencies
of action, how can they who are boimd to keep them, know
them fully and correctly ?

So numerous are the classes of actions to which those
laws relate, that no single mind can mark the whole of those
classes, and examine completely their respective tendencies.

Besides, ethical, like other wisdom, ' cometh by oppor-
tunity of leism-e : ' And the many busied with earning the
means of liyiug, are unable to explore the field of ethics,
and to learn their numerous duties by learning the tendencies
of actions.

If the Di^i^e laws must be gathered from the tendencies
of actions, the ineyitable conclusion is absm-d and monstrous
— God has given us laws which no man can know com-
pletely, and to which the great bulk of manldnd has scarcely
the slightest access.

The considerations sug-gested by this and the next dis-
coui'se, may solve or extenuate this perplexing difficulty.

But there were issues more real and important. To confine -within
the states who owned it their abominable domestic institution —
(emancipation was an afterthought) : to protect the threatened
channels of commerce and national wealth : these were the large
olyects which tardily determined the inflexible purpose of the
President who interpreted the mind of a great nation. — K. C.

Theory of Utility.

33

In so far as law and moralit}- are wliat tliey oucj'kt to Tje, Lf:cr.
io|i'al and moral rules have been fashioned on the principle HI.

of utility, or obtained by obsenation and induction-from the ^~ " '
tendencies of human actions. But it is not necessary that umf sItoIiV
all whom they bind should know or advert to the process objection
tlirourrh which tliey have been gotten. If all whom they
bind keep or observe them, tlie eiids to which they exist are
sutHciently accomplished ; altliough many of the persons
who observe them are unable to perceive their ends, and
ignorant of the method by which tliey have been constructed
or of the prools by which tliey are established.

According to the theory of utility, the science of Ethics
or Deontology (or the science of Law and Morality, as they
should be, or oiu/Jit to be) rests upon observation and induc-
tion. The science has been formed, through a long succes-
sion of ages, by many and separate contributions from many
and separate discoverers. No single mind could explore the
whole of the field, though each of its mmierous departments
has been explored by numerous inquirers.

If positive law and morality were exactly fashioned to
utility, all its constituent i-uhs might be known by all or
most. But all the numerous reasons, upon which the sys-
tem would rest, could scarcely be compassed by any : wliile
most must limit their inquiries to a few of those numerous
reasons. Many of the rules of conduct actually observed
or admitted would be taken even by the most instructed
on authority, testimony, or trust, and a large number of the
less instructed, without an attempt to examine the reasons,
must receive the whole of the rules from the teaching and
example of others.

But this inconvenience is not peculiar to law and mo-
rality. It extends to all the sciences, and to all the arts.

Many conclusions of mathematics applied to natural
phenomena are doubtless believed on authority or testunony
by deep and searching mathematicians ; and of the thou-
sands who apply arithmetic to daily and hourly use, not
one in a hundred knows or surmises the reasons upon which
its rules are founded. Of the millions who till the earth
and ply the various handicrafts, few are acquainted with
the grounds of their homely but important arts, though
these arts are generally practised with passable expertness
and success. The greatest part of any man's knowledge
consists of results gotten by the researches of others, and
taken by himself upon testimony.

And in many departments of science we may safely rely
upon testimony : though the knowledge which we thus ob-
tain is less satisfactory than that which we win for our-
selves by direct examination of the proofs.

In the mathematical and physical sciences, and in the arts
which are founded upon them, we may commonly trust the

34 Province of Jurispnidence.

Part I. v^ouclusious wliieli we take upon autLoiity, For the adept8
§ 1. iu these sciences aud arts agree in many of their most im-
*■" • ~^ portaut results, aud are at least free from any temptation to
deceive the iguoraut.

But the case is uuhappily different with the important
science of ethics, aud with the various sciences — legislation,
politics, aud political economy — nearly related to ethics.
Those who have inquired, or affected to inquire into ethics,
have rarely been impartial, and therefore have differed iu
their results. Sinister interests, and prejudices thence aris-
ing, have made them advocates rather than inquii-crs.
Instead of examining the evidence and honestly pursuing its
consequences, most of them have himted for arguments iu
favour oi given conclusions, and have neglected or purposely
suppressed the unbending and incommodious considerations
which pointed at opposite inferences.

Now how can the bulli of manlrind, who have little
opportunity for research, compare the respective merits of
these varying and hostile opinions ? Here, testimony is not
to be trusted. There is not that concurrence or agreement
of numerous and impartial inquirers, to which the most cau-
tious and erect understanding readily aud wisely defers.
The multitude, anxiously busied with the means of earning
a precarious livelihood, are debarred fi-om every opportunity
of carefully surveying the evidence: whilst every authority,
whereon they may hang their faith, wants that mark of
trustworthiness which justifies reliance on authority.

Accordingly, the science of ethics aud the nearly
related sciences lag behind the others. The sincere inquirers
are few, and the multitude undiscriminatiug. Consequently
the advaucement of the sciences themselves is comparatively
slow ; whilst the most perspicuous of the truths, with which
they are occasionally enriched, are either simimarily rejected
by the many or win their way to general assent through n

Many of the legal and moral rules which obtain in the
most civilized communities, rest upon brute custom and not
upon manly reason. They have been taken from preceding
generations without examinatiou, and are deeply tinctured
with the childish caprices and narrow views of barbarity.
And yet they have been chei-ished and perpetuated, through
ages of advancing Iniowledge, to the comparatively enlight^
ened period in which it is our happiness to live.

The foregoing It were idle to deny the difficulty. The diffusion and

ul'i'fo'rego'ing the advancement of ethical truth are hindered by gi-eat and

Bop^d'^or peculiar obstacles,

rxtenuated. But these obstacles, I am firmly convinced, will gTadually

Theory of Utility. 3 5

disappear. In two carses of slow tut sure operation, we may Lect.
clearly perceive a ciu-e, or, at least, a palliative of the e-vil. — lif.
In every civilized coiuaiimity of the Old and New World, ^— -r — -*
the leading principles of the science of ethics, and of the
nearly related sciences, are gradually finding their way, in
company with other knowledge, amongst the mass of the
people : whilst the persons who acciu-ately study, and lahom*
to advance these sciences, are proportionally increasing iu
number, and waxing in zeal «,nd activity. From the combi-
nation of these two causes we may hope for a more rapid
progi-ess both iu the discovery and iu the difiusiou of moral
truth.

Profound knowledge of these, as of the other sciences,
will always be confined to the comparatively few who study
them long and assiduously. But the multitude are fully com-
petent to conceive the leading principles, and to apply them
to particular cases. And, if they were imbued with those
principles, and practised iu the art of applying them, they
would be docile to the voice of reason, and armed against
sophistry and en-or. The man who is both ignorant of
principles and unpractised iu right reasoning dilFers vastly
from the man who is simply ignorant of particulars or
details. The latter can reason correctly from premises supplied
to him, and can justly estimate the conclusions di'awn from
those premises by others. If the minds of the many were
informed«aud invigorated, so far as their position will permit,
they could distinguish the statements and reasonings of
their instructed and judicious friends, from the lies and
fallacies of those who would use them to sinister purposes,
and from the equally pernicious nonsense of their weak and
ignorant well-wishers. They would thus be competent to
examine and fathom the questions which it most behoves
them to understand : Though the leism'e which they can
snatch fi'om their callings is necessarily so limited, that their
opinions upon numerous questions of subordinate importance
would continue to be taken from the mere authority of
others.

The shortest and clearest illustrations of this most,
cheering truth, are furnished by the inestimable science oa
political economy. The broad or leading principles of thi^
science may be mastered, with moderate attention, iu a
short period. With these simple, but commanding princi-
ples, a number of important questions are easily resolved.
And if the multitude (as they cau and will) shall ever
understand these principles, many pernicious prejudices will
be extirped from the popular mind, and tiiiths of ineffit.ble
moment planted in their stead.

For example, the inequality which in all ci-^ilized coun-
tries follows the beneficent institution of property, is

36 Province of Jurisprudence.

uecessaiily invidious. To tlie jaundiced eyes of tlie ignorctit
poor it seems monstrous that tliey who toil and produce should
tare scantily, -while others who ' delye not nor spin ' should
batten on the fruits of labour. Of the numerous evils which
flow from this single prejudice I shall touch on a few.

In the first place, this prejudice blinds the people to the
cause of their sufferings, and to the only remedy or pallia-
tive which the case will admit.

AVant and labour spring from the niggardliness of na-
tiu'e, and not from the inequality which is consequent on
the institution of property. These evils are inseparable
from the condition of man upon earth ; and are lightened,
not aggravated, by this useful, though in^adious institution.
Capital and the arts which depend on it are creatures of
the institution of property ; and from capital and by means
of the arts depending on it the reward of the labom-ers is
obtained. "Without the institution of property and the
capital accumulated by it their reward would be far scantier
and infinitely more precarious than it is. They are in fact,
though not in name, co-sharers in the accumulated wealth.

It is to be wished that their reward were greater, and
that their toil consisted of less incessant di'udgeiy. But
any chance in these respects depends on themselves and not
on the will of the rich. In the true jmnciple of 2Jopulciti(m,
detected by the sagacity of Mr. Malthus, they must look
for the cause and the remedy of their peumy and excessive
toil. There they may find the means of comparative
aftluence, of reasonable leisure, and of personal dignity and
political influence.

And these momentous truths are deducible from plain
principles, by short and obvious inferences. Here is no
need of large and careful research, or of subtle and sustained
thinking. If the people understood distinctly a few indis-
putable propositions, and were capable of an easy process of
reasoning, their minds would be purged of the prejudice
which blinds them to the cause of their sufferings, and they
would see and apply the remedy suggested by the principle
of population. Their repiniugs at the affluence of the rich,
would be appeased. Their mm'murs at the injustice of the
rich, would be silenced. They woidd see that %'iolations
of property are mischievous to themselves : — by weakening the
motives to accimiulation, and so diminishing the frmd which
yields the labourer his subsistence. They would see that
they are deeply interested in the securit}/ of property: that,
if they adjusted their numbers to the demand for their
labour, they would share abundantly with their employers
in the blessings of that useful institution.

Another of the numerous evils which flow from the pre-
judice in question, is the fi-equency of ciimes. Nineteen
offences out of t^'euty are oflences against property. To

Theory of Utility. 37

bffences of tliis class poverty, for the most part, is the iu- Lect.
ceutive. ^^^'

And while this prejudice perpetuates poverty hy hliudiu<^
people to the cause aud the remedy, it weakens the restraints
which arise from public disapprobation. Compared with
the fear of legal punishment, that of public disapprobation
is scarcely less effectual as a deterring motive, and infinitely
more efiectual as a means of rooting in the soul a prompt
aversion from crime. The activity aroused iu the case of
ci'imes which excite public disapprobation strengthens
the legal sanction by making detection and punishment more
certain.

If the people saw distinctly the tendencies of offences
against property and the gi'ounds of the punishments; if
they were therefore bent upon pursuing the criminals to
iastice ; the laws which prohibit these offences would seldom
be broken with impunity, and by consequence would seldom
be broken. An enlightened people were a better auxiliary
to the judge than an army of policemen.

But, in consequence of the prejudice in question, the
fear of public disapprobation scarcely operates upon the poor
to the end of restraining them from offences against the pro-
perty of the wealthier classes. For every man's public is
formed of his own class. The poor man's public is formed
of the poor. And the crimes which affect merely the pro-
perty of the wealthier classes are regarded with little dis-
favour, and with no abhorrence, by the indigent and ignorant
portion of the working people. Not perceiving that such
crimes are pernicious to all classes, but considering property
to be a benefit in which they have no share and which is
enjoyed by others at theii" expense, they are prone to con-
sider such crimes as reprisaU made upon usm-pers and
enemies. They regard the criminal with sympathy rather
than with indignation. They incline to favour, or, at least,
wink at his escape, rather than to lend their hearty aid
towards bringing him to justice.

Those who have inquired into the causes of crimes, aud
into the means of lessening their number, have commonly
expected magnificent results from an improved system of
punis/unents, Doubtless something might be and has been
done by a judicious mitigation of punishments, and by re-
moving that frequent inclination to abet the escape of a
criminal which spring-s from their repulsive severity. Some-
thing also by improvements in prison-discipline, and by
providing a refuge for criminals who have suffered their
punishments. For the stigma of legal punishment is com-
monly indelible ; and, by debarring the unhappy criminal
from the means of living honestly, forces him on further
crimes.

But nothing but t/ie diffusion of knotcledge through the Advantage
great mass of the people will go to the root of the evil, fusiunoi'

5^

Province of Jiirispnidence.

Part I.

§1-

ethical
knowledge.
1st; expul-
sion of iiiis-
chievoua
ropular
error.

Nothing but tliis will extii'pate their prejudices, and correct
their moral sentiments : or lay them under the heneficial re-
straints which operate so potently on the more cultivated
classes.

The evils which I have now mentioned, with many
which I pass in silence, flow fifom a single prejudice, — a
single error. And this, with other prejudices, might he
expelled from the uuderstanding-s and sentiments of the
multitude, if they had mastered the broad principles of the
science of political economy, and could make the easiest
applications of those simple, though commanding truths.

The nicer points of political economy, e.g., the fimctions
of paper money, the incidence of taxes, &c., will probably
never be understood by the multitude, and their opinions (if
they have anj') on those points will always be taken from
authority. But the infinitely more important principles, —
the reasons which call for the institution of property, and
the effect of the principle of population on the price of labour,
— are not difficult to master. If these were clearly appre-
liended by the many, they would be raised from penmy
to comfort : from the necessity of toiling like cattle, to the
enjoyment of sufficient leisure : fi-om ignoi'ance and brutish-
ness, to knowledge and refinement: from abject subjection,
to the independence which commanch respect.

I could show, by many additional and pregnant examples,
that the multitude might clearly apprehend the leading
2mnciples of ethics, and also of the nearly related sciences :
and that, if they had seized these principles, and could reason
distinctly and justly, all the more momentous of the deri-
vative practical ti-uths would find access to their imderstand-
ings and expel the antagonist errors.

And the multitude (in civilized communities) would
soon apprehend these principles, and would soon acquire the
talent of reasoning distinctly and justly, if one of the weight-
iest of the duties, which God has laid upon governments,
were perfonned with fidelity and zeal. For, if we must
construe those duties by the principles of general utility,
it is not less incumbent on governments to foi-ward the
diffusion of laiowledge, tlian to protect theii- subjects from
one another by a due administration of justice, or to defend
them by a military force from the attacks of external
enemies" A small fraction of the simis which are squan-
dered in needless war, would pro\'ide complete instruction
for the working people : would give this important class that
portion in the knowledge of the age, which consists with the
uatm-e of their callings, and with the necessity of toiling for
a livelihood.

If ethical science rest upon obseiTation and induction
applied to the tendencies of actions, much of it (1 admit)

T^ieory of Utility.

\vill ever be hidden from the multitude, or be taken by
them on authority, testimouy, or trust.

But the multitude might clearly understand the ele-
ments or groundworlv of the science, together with the more
momentous of the derivative practical truths. To that extent
they might be freed from the dominion of authority : from
the necessity of blindly persisting in hereditary opinions
and practices ; or of tm-ning- and veering, for want of di-
recting principles, with every wind of doctrine.

Nor is this the only advantage wliich would follow the
wide diffusion of those elements of ethical science. Another
advantage would be the rapid advancement of the science
itself

If the minds of the many were informed and invigorated,
their coarse and sordid pleasures, and their stupid indif-
ference about Imowledge, would be supplanted by refined
amusements, and by liberal curiosity. A numerous body
of recruits from the lower middle class and the higher
class of the worldng people would thielien the slender ranks
of the reading' and reflecting public : tlie public whose opinion
detennines the success or failure of books ; and whose
notice and favom* are naturally courted by the writers.

And until that public shall be much extended, the science
of ethics, with all the nearly related sciences, will advance
slowly.

It was the opinion of Locke, in which I fully concm*,
that there is no peculiar uncertainty in the subject or matter
of these sciences : that the great difHculties by which their
advancement is impeded, are extrinsic, and arise from pre-
judices, tlie offspring of sinister interests : and that if those
who seek or aflect to seek the truth would pursue it with
steadiness and ' indifferency ' they might frequently hit upon
the object.

But this 'indifferency,' or impartiality, will be a rare
quality among professors of truth, so long as their audience
shall continue to be formed only from the classes elevated
by wealth and social rank, and from the so-called ' liberal '
callings. The only sure guide in these sciences is generpl
utility : and the true conclusions of general utility will
always run counter to the special interests of particular and
naiTow classes. It is hardly to be expected of writers
whose reputation depends upon such classes, that they should
fearlessly tread the path indicated by the general well-being.
* Indiflerency ' is hardly to be expected of writers in so base
a position. Knowing that a fraction of the community can
make or mar their reputation, they (perhaps unconsciously)
accommodate their conclusions to the prejudices of that
narrower public. Or again to borrow the apt expressions
oi Locke, ' they begin by espousing the %vell-endoioed opinions

39

Lect.
III.

2ncl ; ad-
vancement ot
the science
of ethics
Itself.

40 Pro'Vince of yiivispriidciice.

in faslaion ; aud then seek arg-uments to show their beauty,
or to varnish and disg-iiise their deformity.'

This sinister influence is exemplified, in the celebrated
and much esteemed treatise of Paley on Moral and Political
Philosophy. Dr. Paley was, as men -jo, a wise and 'sartuous
man. By the qualities of his head and heart, by the cast
of his talents and affections, he was fitted, in a high degree,
to seek for ethical truth, and to expound it successfully to
others. He had a clear and a just understanding; a hearty
contempt of paradox, and of ingenious, but useless refine-
ments ; no fastidious disdain of the working people, but a
warm sympathy with their homely enjoyments and, suffer-
ings. He Imew that they are more numerous than all the
I'est of the community, and he felt that they are more im-
portant than all the rest of the community to the eye of un-
clouded reason and impartial benevolence.

If the buUc of the conmiunity had been iustnicted, so
far as their position will permit, he might have looked
for a host of readers from the middle classes : and from
the better paid aud more iutelligent of the working people.
To such readers, a well made aud honest treatise on Moral
and Political Philosophy, in his clear, vivid, downright,
English style, would have been the most easy aud attractive,
as well as instructive and useful, of abstract or scientific
books.

But those numerous classes of the commuuity were com-
monly too coarse aud ignoraut to care for books of the sort.
The great majority of the readers who were likely to look
into his book, belonged to the classes which are elevated by
rank or opulence, and to the peculiar professions or callings
which are distinguished by the name of ' liberal.' A steady
pursuit of the couclusions of (jeneral utility was therefore
not the way to professional advancement, nor even the short
cut to extensive reputation. And the character of the
book betrays the position of the wi'iter. In abnost every
chapter, and in almost every page, his fear of oftending the
prejudices of his audience palpably suppresses the sugges-
tions of his clear and vigorous reason, and masters the better
affections which inclined him to the c/eneral good.

He was one of the greatest aud best of the great and
excellent writers, who, by the strength of their philosophical
genius, or by their large and tolerant spirit, have given im-
perishable lustre to the Church of England, and extinguished
or softened the hostility of many who reject her creed.
He may rank with the Berkelej^s aud Butlers, with the
Burnets, Tillotsons aud Hoadlys.

But, in spite of the esteem with which I regard his
memory, truth compels me to add that the book is uuworthy
of the man. For there is much ignoble truckling to tha
dominant and influential few. There is a deal of shabby

Theory of Utility. 41

aopliistry iu defence orextenuatiou of abuses wliieli tlie few Leci'.
tire interested in upliolding. ^^^-

If there were a reading public numerous, discerning-, " ' ^
and impartial, the science of ethics, and all the various
sciences which are nearly related to ethics, would advance
with unexampled rapidity.

By the hope of obtaining the approbation which it
would bestow upon genuine merit, writers on these subjects
would be incited to the patient research and reflection
appropriate to a scientitic inquiry. They would cultivate
accm-acy and simplicity of method, and seek precision, clear-
ness and conciseness, as the first and only essential recpii
sites of style. And, what is equally important, they woidd
become imbued with the spirit of dispassionate inquiry :
they would pursue truth with ' indilierency,' secure in
the protection of a nmuerous and just public. They would
Bcrutinise established institutions, and cmTent or received
opinions, fearlessly, but coolly ; with the freedom which is
imperiously demanded by general utility, but without the
antipathy which is begotten by the dread of persecution.

This patience in investigation, this acciu-acy and distinct-
ness of method and style, this freedom and * indiiferency ' in
the pursuit of the usefid and the true, would thoroughly dis-
pel the obscurity by which the science is clouded, and
would clear it from most of its uncertainties. The wish,
the hope, the prediction of Locke would in time be accom-
plished : and ' ethics would rank with the sciences which
are capable of demonstration.'' The adepts in ethical, as well
as in mathematical science, would commonly agree in their
results : And, as the jar of their conclusions gTadually sub-
sided, a body of doctrine and authority to which the midti-
tilde might trust would emerge fi'om the existing chaos.
For while the multitude would confine their direct ex-
amination to the elements of the science, they woidd find
ill the unanimous or general consent of numerous and im-
partial inquirers that mark of trust-worthiness which
justifies reliance on authority, wherever we are deban'ed fi'om
the opportunity of examining the evidence for oiu'selves.*

* The period which has elapsed since tlie foregoing lecture was
■written, if not fully answering to the author's sanguine hopes, yet
seems to have reached the beginning of a tardy fultiiment of some of
them. And if sound conceptioi.6 of ethics and political economy
have in our own country penetrated more widely and deeply than a
few years ago was apparent, I believe it possible to discern, in the
■writings of those who have been most successful in diffusing this
knowledge among the populace, a trace at least of Mr. Austin's in-
fluence; an influence fitr more powerful, as I have been assured, by
those conversant with his living discourse, than can be estimated by
those acquainted only with the remains of his writings. — R. 0.

42

Province of Jurisprudence,

Part I.
§1-

LECTURE IV.

The connec-
tion of the
fourth with
the third
lecture.

In order to liuk tliis lectiu-e with tlie preceding one, I will
now restate, in an abridged shape, the objection and the
answer with which that lectiu'e was occupied.

The objection may be put briefly, in the following
manner.

If utility be the proximate test of positive law and mo-
rality, it is impossible that the rules of conduct achialh/
obtaining amongst mankind should accord completel;:^ and
coiTectly with the laws established by the Deity. Theindex
to his will is imperfect and uncertain. His laws are sig-
nified obsciu-ely to those upon whom they are binding, and
are subject to inevitable and iuvolantary misconstruction.

Yov,Jirst, positive law and morality, fashioned on the
principle of utility, are gotten by observation and induction
from the tendencies of himian actions. And, these actions
being infinitely various, and their effects being infinitely
diversified, the work of classing them and of collecting
their effects completely, transcends the limited faculties
of created and finite beings.

And, secondly, if utility be the proximate test of posi-
tive law and morality, the defects and errors of jwpular or
vulgar ethics will scarcely admit of a remedy. For if ethical
truth be matter of science, and not of immediate conscious-
ness, most of the ethical maxims which govern the senti-
ments of the multitude must be taken, without examina-
tion, from human authority. And human authority upon
such subjects seems to consist of confficting maxims, taught
under the influence of prejudice^the offspring of sinister
interests.

Such is the objection. — The only answer of which the
objection wiU admit, is suggested by the remarks which I
offered in my last lecture, and which I here repeat in an
inverted and compendious form.

In the^rs^ place, the diffusion of ethical science amongst
the great buUi of mankind will gradually remove the obstacles
which prevent or retard its advancement.

Secondly : Though the many must trust to authority for
a number of subordinate truths, they are competent to
examine the elements v.hich are the ground-work of the
science of ethics, and to infer the more momentous of the
derivative practical consequences.

And, thirdly, as the science of ethics advances, and is
cleared of obscurity and uncertainties, they who are de-
barred from opportunities of examining the science exten-
sively will find an authority whereon they may rationally
rely, in the unanimous or general agTeement of searching
and impartial inquirers.

Theory of Utility.

43

A further
aiifwer to
tliat Bfcond
objection.

But this answer, it must be admitted, merely extenuates
tlie obiection. It shows that law aud morality fashioned ou
the pnuciple of utility might approach continually and iu-
dehnitely to absolute perfection. But it grants that law obfectfoifto
aud morality so fashioned is ine"s-itably defective and errone- J,'jf,i';''.'"^^ °'
ous : that if the laws established by the Deity must be sumed'.
construed by the principle of utility, the most perfect system
of ethics which the wit of man could conceive, were a
partial and inaccurate copy of the Divine original or pattern.

And this (it may be urged) dispro\es the theoiy which
ruakes the principle of utility the index to the Divine plea-
sure. For it consists not with the known wisdom and the
known benevolence of the Deity, that he should signify his
commands defectively aud obscm'ely to those upon whom
they are binding.

But, admitting the imperfection of utility as the index
to the Divine pleasure, there is ]io necessary inference ' that
utility is not the index.'

The objection is founded on the alleged inconsistency
of evil with the perfect wisdom aud goodness of God. But
the argimient of the objector proves too much. If the argu-
ment is soimd, it would prove not only that all God's works
are in fact exempt from evil, but also that the notion con-
veyed by the terms law duty and sanction, as applied to the
Law of God, is a meaningless abstraction. For these temis
imply the presence of evil in the world, and the prevention
or remedy of that evil by a restraint which is in itself a
fiu'ther enl.

In truth, owing to causes hidden from the human under-
standing, all the works of God which are open to human
observation are alloyed with imperfection or evil. Lawii
or commands (like medicine) suppose the existence of evils
which they are designed to remedy, and let them be signified
as they may, they remedy those evils imperfectly. Analogy
might lead us to suppose that the Deity should signiiy his
commands defectively and obscurely. That he should do
so is strictly in keeping with the rest of his inscrutable
ways ; and such imperfection in the mode of manifesting
his commands would be strictly analogous to the imperfec-
tion or evil which those commands or laws are designed to
remedy. ' That his laws are signified obscui'ely, if utility
be the index to his laws,' is therefore rather a presumption
in favom- of the theory which makes utility our guide.

My answer to the objection is the very argument which
the excellent Butler, in his admirable ' Analogy," has wielded
in defence of Christianity with the vigour and the skill of a
master.

Considered as a system of itiles for the guidance of himian
conduct, the Chi'istian religion is defective. There are also
circiunstances, regarding the manner of its promulgation,

44

Province of Jurisprudence.

The hypo-
thesis of a
moral sense,
briefly intro-
duced.

'A moral
sense," ' .1
common
sense,' ' a
moral in-
stinct," ' a
rrinciple of
reflection or
conscience,"

• a practical
reason,"

• innate prac-
tical prin-
ciples,' * con-
nate practical
principles,
ire., i-c, are

wliicli liuman reason vainly labours to reconcile with the
wisdom and g-oodness of God. Still it were absurd to arcue
* tliat the religion is not of God, because the religion is de-
fective, and is imperfectly revealed to mankind.' For, since
evil pervades the universe, in so far as it is open to oui'
inspection, a similar objection will He to even/ system of
religion which ascribes the existence of the universe to a wise
and benevolent Author. "Whoever believes that the universe
is the work of benevolence and wisdom, is concluded, or
estopped, by his own religious creed, from taking an objec-
tion of the kind to the creed or system of another.

Analogy (as Butler has shown) would lead us to expect
the imperfection upon which the objection is foimded.
Something of the imperfection which runs through the fi'ame
of the universe, would probably be found in a revelation
emanating fi'om the Author of the universe.

And here my solution of the difficulty necessarily stops.
To reconcile the existence of evil with the wisdom and
goodness of God is a task which sui-passes the powers of
om" narrow and feeble understandings. From the decided
predominance of good which is observable in the order of
the world, and fi'oni the manifold marks of wisdom which
the order of the world exhibits, we may di-aw the cheering
inference 'that its Author is good and wise.' Why the
world which he has made is not altogether perfect, is a
question impossible to solve, and idle to agitate. It is
enough for us to know that the Deity is perfectly good ; and
that, since he is perfectly good, he wills the happiness of his
creatures. This is a truth of the gTeatest practical moment.
For the cast of the affections, which we attribute to the
Deity, determines, for the most part, the cast of our moral
senriments.

If we reject nfilifi/ as the index to God's connnands, we
must assent to the theory or h}-pothesis which supposes a
moral sense. One of the adverse theories which regard the
nature of that index is certainly true. He has left us to
jvesume his commands from the tendencies of hmuan actions,
or he has given us a peculiar sense of which his commands
are the objects.

All the h\q50theses, regarding the natm-e of that index,
which discard the principle of utility, are built upon the
supposition of a peculiar or appropriate sense. The language
of each of these h^iwtheses differs from the language of the
others, but the import of each resembles the import of the rest.

By * a moral sense,'' with which I am furnished, I
discern the human actions w-hich the Deity enjoins and
forbids : And, since you and the rest of the species are pro-
vided with a like organ, it is clear that this sense of mine
is ' the common sense of mankind.' By ' a moral instinct,^
with which the Deitv has endowed me, I am urged to some

Hypothesis of a JMoral Sense.

45

of these actions, and am warned to forbear from others,
' A principle of reflection or conscience,^ which Butler assures
me I possess, informs me of their rectitude or pravity. Or
' t/ie innate jyrnctical principles,^ which Locke has presimied
to question, define the duties which God has imposed upon
me, with infallible clearness and certainty.

The hypothesis of a moral sense, variouslv signified by
these various but equivalent expressions, involves two as-
simiptions : 1st, That we are gifted with moral sentiments
which are ultimate or inscrutable facts ; 2ndly, That these
inscrutable sentiments are signs of the Divine will, or the
proofs that the actions which excite them are enjoined or
forbidden by God.

The first assimiption involves certain positive and
negative propositions ; it implies positiieli/ that the concep-
tions entertained by human beings of certain himian actions
are generally accompauied by certain sentiments of approba-
tion or disapprobation, and negatively that these sentiments
are not the consequences of reflection upon the tendencies
of hmuan actions, ?;o;! the consequences of education, ?io/- the
consequences or efl'ects of any antecedents within the reach
of oiu' inspection. To express these negative propositions
biiefly, the sentiments in question are said to be ' instinctive,'
or are termed ' moral instincts.' This word ' instinct,' it
must be remembered, is essentially nec/ative. "When we say
a bird builds her nest by instinct, we merely mean that she
has not been taught how to do it by example or thi'ough
education imparted by others. This it is necessary to
remark, because (simple as the meaning is) the advocates of
the theory now in question are apt to invest the word with
the false and cheating appearance of a mysterious and
magnificent meaning.

In order that we may clearly apprehend the nature of
these ' moral instincts,' I will descend from general expres-
sions to an imaginary case.

I will take the liberty of borrowing Paley's solitary
savage : a child abandoned in the wilderness immediately
after its birth, and gTowing to the age of manhood in
estrangement from human society. In dealing with his
subsequent history I shall not follow Paley, but proceed
after my own fashion.

I imagine that the savage, as he wanders in search of
prey, meets, for the first time in his life, with a man. This
man is a himter, and is carrying a deer which he has killed.
The savage pounces upon it. The hunter holds it fast.
And, in order that he may remove this obstacle to the
satisfaction of his hunger, the savage seizes a stone, and
knocks the hunter on the head. — Now, according to the
hypothesis in question, the savage is aftected with remorse —
not merely comjHission — but the more complex emotion of

various ex-
pressions for
one and the
same hypo-
thasis.

Tlie hypo-
tliasis in
question
iiiVDlres two
assumptions.

The first of
the two as-
sumptions
involved ty
t\i« hypo-
thesis in
quastion,
stated in
general ex
pressions.

The fore-
going state-
ment of the
first assump-
tion.exempli-
fied and ex-
plained by an
imaginary
case.

46 Province of Jurisprudence,

Part I, self-coudemuntiou : with the feeling that haunts and torturea

§ 1- civilized or cultivated men, whenever they violate rules

' ' which accord with their notions of utility, or which they

have learned from others to regard with habitual veneration.

Again : Shortly after the incident which I have~how
imagined, he meets with a second himter whom he also
Imocks on the head. liut, in this instance, he is not the
aggressor. He is attacked, and to prevent a deadly blow
which is aimed at his own head, he kills the assailant. —
Now here, according to the hypothesis, he is not affected
with remorse. The sufferings of the dying man move him,
perhaps, to compassion : but his conscience (as the J^hrase
goes) is tranquil. He feels as you would feel after a justifi-
able homicide : after j'ou had shot a highwayman in defence
of your goods and your life.

That you should feel remorse if you kill in an attempt
to rob, and should not be affected with remorse if you kill
a mm-derous robber, is a difference which I readily account
for without the supposition of an instinct. The law of your
country distinguishes the cases: and the current morahtyof
your country accords with the law.

If you have never adverted to the reasons of that dis-
tinction, the difference between yoiu- feelings is easily ex-
plained by imputing it to education: — the iuHuence of
authority and example on opinions, sentiments, and habits.

If you have adverted to the reasons of that distinction,
you, of coiu-se, have been struck with its obvious utility.
— Generally speaking, the intentional killing of another is
an act of pernicious tendency. If the act were frequent,
it would annihilate that general secmity, and that general
feeling of secm-ity, which are, or should be, the principal
ends of political society and law. But the intentional
killing of a robber who aims at your property and life, is
an exception. Instead of being adverse to the principal
ends of law, it rather promotes those ends. It tends, as
punishment would, to deter others from the crime of
murder ; and in the particular instance, prevents the execu-
tion of the mm-derous design, an end which punishment
would be too tardy to reach. The difference between the
sentiments with which you regard the two acts is therefore
easily explained by your imputing it to a perception of
utility.

But the difference, supposed, between the feelings of the
solitary savage, cannot, on the hypothesis, be imputed to
education.

Nor can the supposed difference be imputed to a per-
ception of ntiiity. — He knocks a man on the head, that
he may satisfy his hunger. Ho knocks another on the
head, that he may escape from wounds and death. So
far, then, as these different actions exclusively regard him-

Hypothesis of a Moral Setise. 47

Bolf, they are equally good : and so for as these different
actions regard the men whom he kills, they are equally
bad. As tried by the test of utility, and icith the lights
which the savar/e possesses, the moral qualities of the two
actions are precisely the same.

To the social man the dift'erence between these actions,
as tried by the test of utility, is immense. — The general
hapjDiuess or good demands the institution of property :
that the exclusive enjoyment conferred by the law upon the
owner shall not be distm-bed by private and unauthorized
-persons without the authority of the S(/\'ereign acting for
the conuuon weal. Were want, however intense, an excuse
for violations of property, that beneficent institution would
become nugatory, and the ends of government and law
would be defeated. — And, on the other hand, the very
principle of utility which demands the institution of property
requii-es that an attack upon the body shall be repelled
at the instant : that, if the impending evil cannot be averted
otherwise, the aggi'essor shall be slain on the spot by the
party whose life is in jeopardy.

But these are considerations which would not present
themselves to the solitary' savage. They involve a number
of notions with which his mind would be unfui'nished.
They involve the notions of political society ; of supreme
government ; of positive law ; of legal right ; of legal duty ;
of legal injury. The good and the eYil of the two actions,
in so far as the two actions would affect the immediate
parties, is all that the savage could perceive.

The difference, supposed by the hypothesis, between the
feelings of the savage, must, therefore, be ascribed to a
■moral seiise, or to innate jfi'actical principles. Or (speaking
in homelier but plainer language) he would regard the two
actions with different sentiments, tre know not why.

The first assimiption then involved by the hypothesis in
question, is that certain inscrutable sentiments or feelings
accompany our conceptions of certain human actions, and
that these sentiments or feelings are ultimate facts — simple
elements of our nature. And thus far the hj-pothesis has
been embraced by sceptics as well as by religionists.
For example, it is supposed by David Hume, in his essay
on the 'Principles of Morals,' that some of our moral senti-
ments spring from a perception of utility ; but he also
appears to imagine that others are not to be analyzed, or
belong exclusively to the pi'ovince of taste. His intention,
however, is not clear. When he speaks of moral senti-
ments belonging to the pro-\dnce of taste, he may be ad-
verting only to the origin of benevolence or sympathy, a
very different thing from the sentiments of approbation or dis-
approbation which accompany our judgments upon actions.

The second assumption is this : — That the inscrutable The 8«ooua

The flrst ol
the two as-
sumptions
Involved in
the hypo-
thesis iu
question
briefly
summed up.

48

Province of Jurisprudence.

As an index
tiiGoJ's
(•(iiiiinands, a
moral sense
were less
fallible than
the principle
of general
utility.

But Is tlipro
•Any evidence
to sustain the
hypothesis in
question t

Tljehypo-
ihesis in
question is
disproved by
the negative
state of our
conscious-
ness.

sentiaients, the existence of wliicli is assumed by tlie first
assumption, are signs of the Di^-ine will, or proofs that the
actions which excite them are enjoined or forbidden bv
God.

In the language of the admirable Butler (who is the
ablest advocate of the hypothesis), the hmnan actions by
which these feelings are excited are their direct and ap-
propriate objects: just as things ^"isible are the direct and
appropriate objects of the sense of seeing.

In homelier but plainer language, I may put his meaning
thus. — As God has given us eyes, in order that we may
see therewith ; so has he gifted or endowed us with tlie
feelings or sentiments in question, in order that we may
distinguish directly, by means of these feelings or senti-
ments, the actions which he enjoins or permits, from the
actions which he prohibits.

Now, if the Deity has endowed us with a moral sense
or instinct, we are free of the difficidty to which we are
subject if we must construe his laws by the principle of
general utility. According to the h^'pothesis in question,
the inscrutable feelings which are styled the moral sense,
arise directly and inevitably with the thoughts of their ap-
propriate objects. We camiot mistake the laws which God
has prescribed to mankind, although we may often be
seduced by the blandishments of present advantage from
the plain path of our duties. The vmderstanding is never
at a fault, although the will may be frail.

But here arises a small question. — Is there any evidence
that we are gifted with feelings of the sort P

That this question is possible, or is seriously asked and
agitated, woidd seem of itself a sufficient proof that we arc
vot endowed with such feeling's. — According to the hj^j^o-
thesis of a moral sense, we are conscious of the feelings
which indicate God's commands, as we are conscious of
hunger or thirst. If I were really gifted with feelings or
sentiments of the sort, I could no more seriously question
whether I had them or not, and could no more blend and
confound them with my other feelings or sentiments, than I
can seriously question the existence of hunger or thirst, or
can mistake the feeling which aiiects me when I am hungiy
for that which aftects me when I am thirsty.

The two
current argu-
ments in
favour of the
hypothesis iu
question,
briefly stated.

The first ar-
gument in
favour of the

The two cuiTent arguments in fevoiu* of the hypothesis
in question are raised on the following assertions. 1. The
judgments which we pass internally upon the rectitude or
pravity of actions are immediate and involuntary. 2. The
moral sentiments of all men are precisely alike.

Now the fii'st of these venturous assertions is not uni-
versally true. In numberless cases, the judgments ■which

HypotJiesis of a 3Ioral Sense.

49

liypntliesis 1q

question,

examiucil.

we pass internally upon the rectitude or pravity of actions
are hesitating- and slow. And it not unfrequently happens
that we cannot an-ive at a conclusion, or are utterly at a loss
to determine whether we shall praise or blame.

And, g-rantin<r that our moral sentiments are always
instantaneous and inevitable, this will not demonstrate that
our moral sentiments are instinctive. Sentiments which are
factitious, or begotten in the way of association, are not less
prompt and involuntary than feeliug-s which are instinctive
or inscrutable. For example, we begin by loving money
for the sake of the enjoyment which it purchases. In time,
our love of enjo^aueut becomes inseparably associated with
the thought of the money which procures it. Again : we
begin by loving knowledge as a mean to ends. But, in time,
the love of the ends becomes inseparably associated with
the thought or conception of the instrmuent. Curiosity is
instantly roused by every unusual appearance, although
there is no purpose which the solution of the appearance
would answer, or although we advert not to the purpose
which the solution of the appearance might subserve.

The promptitude and decision with which we judge of
actions are impertinent to the matter in question : for oiu*
moral sentiments would be prompt and inevitable, although
they arose from a perception of utility, or were impressed
upon our minds by the authority of oiu* fellow-men. At
the outset indeed, tlie sentiment derived from eitlier of these
soiu-ces would hardly be excited by the thought of the cor-
responding action. But, in time, the sentiment would ad-
here inseparably to the thought of the conespondiug action ;
and without recalling the ground of our moral approbation
or aversion, would recur directly and inevitably with the
conception of its appropriate object.

But, to prove that moral sentiments are instinctive or xiie semnd
inscrutable, it is boldly asserted, by the advocates of the tlfmn?,tiho
hypothesis in question, that the moral sentiments of all men iiyp"tiiesis iu
are precisely alike. examined

The argument raised on this hardy assertion may be
stated briefly as follows: — Xo opinion or sentiment which
is a result of observation and induction is held or felt by
all mankind. Observation and induction, as applied to the
same subject, lead ditlerent men to dili'erent conclusions.
But the judgments which are passed internally upon the
rectitude or pravity of actions, or the moral sentiments or
feelings which actions excite, are precisely alike with all
men. Consequently, our moral sentiments or feelings were
neither acquii-ed by oiu* own inductions from the tendencies
of actions, nor obtained by the inductions of others and
then impressed upon our minds by human authority and
example. Therefore, our moral sentiments are instinctive,
or are ultimate or inscrutable facts.

50

Province of jtiirisprudence.

A brief state-
ment (if the
fact whereon
the second
Erguinent in
favour of the
hypotliesis in
question is
founded.

The fact
accords
exactly with
the hypo-
thesis or
theory of
utility.

M

4 brief state-
Kent of the
intermediate
hypothesis
wliicli is
compounded
of the hypo-
thesis of
utility and
the hypo-
thesis of a
moral s«iise.

Now, altlioup-L. tlie assertion were granted tliat tlie moral
sentiments of all men were precisely alike, it would hardly
follow that moral sentiments are instinctive.

But the assertion is gi'oundless, and contradicted by no-
torious facts. That the respective moral sentiments of
different ages and nations, and of diflereut men in the same
age and nation, have differed to infinity, is a proposition
resting on facts so familiar to every instructed mind, that I
sliould hardly treat my hearers with due respect if I at-
tempted to establish it by proof. I therefore assume it
without an attempt at proof; and I oppose it to the assertion
which I am now considering, and to the argiuuent which is
raised on tliat assertion.

The plain and glaring fact is this. — With regard to
actions of a few classes, the moral sentiments of most,
though not of all men, have been alike. But, with regard
to actions of other classes, their moral sentiments have
differed, through eveiy shade or degTee, from slight diversity
to direct opposition.

And this is what might be expected, supposing that the
principle of general utility is oiu" only guide or index to the
tacit commands of the Deity. For, first, tlie positions
wherein men are, in different ages and nations, are, in many
respects, -R-idely different : and, secondly, since human tastes
are various, and human reason fallible, men's moral senti-
ments must often widely differ even in respect of the cir-
cimistances wherein their positions are alike. But, with
regard to actions of a few classes, the dictates of utility are
the same at all times and places, and are also so obvious
that they hardly admit of mistake or doubt. And hence
would naturally ensue what observation shows us is the
fact : namely, a general resemblance, with infinite variety,
in the systems of law and morality which have actually
obtained in the world.

According to the h^-]iotliesis which I have now stated
and examined, tlie moral sense is our only index to the tacit
commands of the Deitv. According to an intennediate
hypothesis, compounded of the hypothesis of utility and the
hypothesis of a moral sense, the moral sense is our index to
some of his tacit commands, but the principle of general
utility is our index to others.

In so f\ir as I can gather his opinion from his admirable
sermons, it would seem that the compound h}-pothesis was
embraced by Bishop Butler. But of this I am not certain :
for, from many passages in those sermons, we may perhaps
infer that he thought the moral sense oui- only index or
guide.

The compound hvpqthesis now in question naturally
aro?e from the fact to which I have alreadv adverted, — With

Intermediate Hypothesis.

51

regard to actions of a few classes, the moral sentiments of
most, thougli not of all men, have been alilve. AVith repard
to actions of other classes, their moral sentiments have
differed, through every shade or degree, from slight diversity
to direct opposition. — In respect to the classes of actions,
^vith regard to which their moral sentiments have agreed
there was some show of reason for the supposition of a
moral sense. — In respect to the classes of actions, with
regard to which their moral sentiments have differed, the
supposition of a moral sense seemed to be excluded.

- But the modified or mixed hj-jiothesis now in question
is not less halting than the pure h^•pothesis of a moral
sense or instinct. — With regard to actions of a few classes,
the moral sentiments of mod men have concm'red or agreed.
But it would be hardly possible to indicate a single class of
actions, with regard to which all men have thought and
felt alike. And it is clear that every objection to the simple
or pure hypothesis maj' be urged, with slight adaptations,
atrainst the modified or mixed.

Leot.
IV.

At this point I will briefly indicate the practical im-
portance of the above disquisition to a treatise occupied with
the rationale of jurisprudence.

By modern wi'iters on jurisprudence, law (including in
the term positive law and a poition of positive moralitj') is
di\ided into laiv natural and kno ■positive. By the classical
Roman jurists, borrowing from the Greek philosophers, yi«s
civile (or positive law together with a portion of positive
morality) is divided into jm (jentium and jus civile. These
are exactly equivalent divisions.

By reason of these respective di-snsions of law, crimes
are divided, by modern wiiters on jm-ispnidence, into 'mala
in se ' and ' mala quia proltihita : ' — by the classical Roman
jm-ists, into crimes juris [lentium and crimes jure civili.
And these divisions of crimes, like the di%'isious of law
wherefrom they are respecti\ely derived, are equivalent.

Now without a clear apprehension of the hjq^othesis of
utility, of the pure h}qiothe3is of a moral sense, and of the
modified or mixed hjqiothesis which is compounded of the
others, the distinction of law into natural and 2Jositive, with
the vaiious derivative distinctions which rest upon that
main one, are utterly unintelligible. Assimiing the h^-po-
thesis of utility, or assuming the pure h^qoothesis of a moral
sense, these distinctions are senseless. But, assuming the
intermediate hypothesis which is compounded of the others,
positive law, and also positive morality, is inevitably dis-
tinguished into natural and jjositioe. In other words, if the
modified or mixed h\q)otliesis be founded in truth, positive
human rules fall into two parcels: — 1. Positive human rules
which obtain with all mankind; and the conformity of
D 2

The division
of positive
law into Into
Maturalmid
law positive,
and the
division of
jjis civile into
jus gentinm
and jits civile,
suppose or
involve tbe
intermediate
hypothesis
which is
compounded
of the hypo-
thesis of
utility and
the liypo-
thesis of a
moral seiise.

52

Province of Jiirlsprndcnce.

The fore-
going dis-
qiiisitinns on
tlie index to
fiod's com-
mands, closed
with an en-
deavour to
clear tlie
tlieory of
utility from
t «'o current
tliouch gross
misconcep-
tions.

The two mis-
conceptions
stated.

The first mis-
conception
txamined.

wli icli to Diviue cominauds is, tlierefore, indicated by tlie
luoral sense : 2. Positive liiunau rules wliicli do not obtain
imiversally ; and tlie conformity of which to Divine com-
mands is, therefore, not indicated by that infallible guide.

Having stated the hv|30thesis of utility, the liypothesi3
of a moral sense, and the modified or mixed h^-pothesis
which is compounded of the others, I ■will close my disquisi-
tions on the index to God's commands with au endeavour to
clear the hypothesis of utility from two cm'rent though gi-os?
misconceptions.

Of the writers who maintain as well as those who impugs
the theory of utility, tlii'ee out of foiu* fall into one or the
other of the following errors. — 1. Some of them confound
the motives which ought to determine our conduct with the
proximate measure or test to which our conduct sliould con-
form and by which om- conduct should be tried. — 2. Others
confound the theory of (jeneral utility with that theory or
hypothecs concerniny the oriyin of benevolence which is
branded by its ignorant or disingenuous adversaries with the
misleading and insidious name of the selfish system.

I will examine these two errors in their order.

According- to the theory of utility, the measure or test of
human conduct is the law set by God to his human creatures.
Xow some of his commands are revealed, whilst others are
unrevealed. The commands which God has revealed, we
must gather from the terms wherein they are promulgated.
The commands which he has not revealed, we must construe
by the principle of utility: by the probable effects of our
conduct on that general happiness or good which is the final
cause or piu-pose of the good and wise lawgiver in all his
laws and commandments.

Strictly speaking, therefore, utility is not the measure to
which oiu* conduct should conform, nor the test by which
our conduct should be tried. It is not in itself the source
or spring of our highest or paramount obligations, but it
giudes us to the som'ce whence these obligations How. It is
the index to the measm'e, the index to the test. But, since
we conform to the measm'e by following the sug-gostions of
the index, I may say with sutlicient, though not with strict
propriety, that utility is the measm-e or test proximately or
immediately. Accordingly, I style the Diviue commands
the ultimate measure or test : but I style the principle of
utility, or the general happiness or good, the jvoxiinate
measm'e to which om- conduct should conform, or the 2)>'oxi-
mate test by which om- conduct shoidd be tried.

Now, though the general good is that proximate measure,
or test, it is not in all, or even in most cases, the motive or
inducement which ouaht to determine our conduct. If our

^

Tlicory of Utility j\Iisiindcrstood. 53

conduct were always determiued Lv it cousidered as a vio-
tive or indiicevient, oiir conduct would often disagree with it
considered as the standard or measure.

Though these propositions may sound like paradoxes,
they are perfectly just. I cannot here go through the whole
of the proofs by which they are capable of being established
beyond contradiction. I shall content myself with thi'owiug
out some hints by way of illustration.

By the (jeneral or pidjlic good or happiness I mean the
aggregate enjoyments of the individuals to whom I refer
collectively by the words ^ (jeneraV ox '■ indjlic.^ These words
' general,' ' public,' and others such as * family,' ' country,'
' mankind,' are concise expressions for a number of individual
persons considered collectively or as a whole. If the good
of those persons considered singly were sacrificed to the
supposed good of the whole, the general good would be
destroyed by the sacrifice. The general good would be
sacrificed to the name of the general good : — an absurdity
when broadly stated, but nevertheless a consequence to
which some current notions, for example the notion of the
jnddic rjood cun'eut in the ancient republics, have inevitably
tended.

Now (speaking generally) every individual is the best
possible judge of his own interests : of what will affect him-
self with the greatest pleasm-es and pains. Compared with
this intimate knowledge, his knowledge of the interests of
others is vague conjecture.

If every individual neglected his own for the sake of
pursuing and promoting the interests of others, the interests
of every indi^ddual woidd be managed unsldlfully ; and the
general or public good would diminish with the good of
the indi\-iduals of whom that general or public is constituted
or composed.

Consequently, the principle of general utility imperiously
demands that each sliall commonly attend to his O'oti rather
than to the interests of others : that he shall not habitually
neglect that which he knows accm'ately in order that he may
habitually pursue that which he knows imperfectly.

This is iilso the arrangement which the Author of man's
nature manifestly intended. For our self-regarding aliectious
are steadier and stronger than our social : the motives by
which we are urged to pursue our peculiar good operate
with more constancy, and commonly with more energy, than
the motives by which we are solicited to pursue the good of
our fellows.

The principle of general utility does not demand of us
that we shall always or habitually intend the general good :
but only that we shall never pursue om* own peculiar good
by means inconsistent with that paramount object.

For example : A man delves or spins to put money in his
4iu-se, and not with the purpose or thought of promoting the

54 Province of Jtirispiiidence.

general •well-beiug. Bat by delving or spinning, lie adds to
tiie sum of commodities : and promotes that general weU-
heing, wliicli is not, and oiiglit not to be, liis practical end.
General utility is not bis motive to action. But Ms action
conforms to utility considered as tlie standard of conduct :
and, when tried by the test of utility, deserves approbation.
Again : Of all pleasures bodily or mental, the pleasm-es
of mutual love, cemented by mutual esteem, are the most
enduring and varied. They therefore contribute largely to
swell the smu of hmuan happiness. And for that reason,
the well-wisher of the general good must consider them
with much complacency. But he is far from maintalniug
that the general good ought to be the motive of the lover.
It was never contended or conceived by a soimd, orthodox
utilitarian, that the lover sboiild kiss his mistress with an
eye to the common weal.

And by this last example, I am natiu'ally conducted to
this fLulher consideration.

Even where utility requires that benevolence shall be our
motive, it commonly requires that we shall be determined by
partial rather than by general benevolence : by the love of
family, rather than by s}inpathy with the wider circle of
li'ieuds or acquaintance : by sympathy with friends or ac-
quaintance, rather than by patriotism : by patriotism, or love
of countiy, rather than by the larger himianity which em-
braces mankind.

In short, the principle of utility requires that we shall
act with the utmost efiect, to the end of producing good.
And (speaking generally) we act most effectively to that end
when om* motive or inducement to conduct is the most
m'gent and steady, when the sphere wherein we act is the
most restricted and the most familiar to us, and when the
purpose which we directly pm-sue is the most determinate
or precise.

The foregoing general statement must, indeed, be received
with numerous limitations. The principle of utility not
unfrequently requires that the order at v,-hich I have pointed
shall be inverted or reversed : that the self-regarding afl'ec-
tions shall yield to the love of family, or to sympathy with
friends or acquaintance : these to the love of countiy : the
love of country to the love of mankind : in short that the
general happiness or good, which is always the test of our
conduct, shall also be the practical end to which oiu- con-
duct is directed,
badnes's^of'"'^ In Order further to dissipate the confusion of ideas giving
motives. j-jse to the misconception last examined, I shall here pause

to analyze the expression ' good and bad motives,' and to
show in what sense it represents a sound distinction.

Properly speaking, no motive is either good or bad:
since there is no motive which may not by possibility, and

Theory of Utility Misunderstood. 5 5

^'llicll does not occasionally in fact, lead Loth to beneficial Lf.ct.
and to luiscliievous conduct. ^^ • ^

Thus in the case which I have already used as an illus-
tration, that of the man who digs or weaves for his own
subsistence ; the motive is self-regarding, but the action is
beneficial. The same motive, the desire of subsistence, may
lead to pernicious acts, such as stealing. Love of reputa-
tion is a motive generally productive of beneficial acts ; and
with some persons a most powerful incentive to acts for the
public good. That form of love of reputation called vanity,
-on the other hand, imphing, as it does, that the aim of its
possessor is set upon worthless objects, coimnonly leads to-a
waste of energy, and is therefore of evil tendency. Yet if
subordinated in the individual to other springs of action,
and existing merely as a latent feeli'ig of self-complacency
arising out of considerations however foolish or unsubstan-
tial, it may be harmless, or even useful as tending to consen'e
energy. Benevolence, on the other hand, and even religion,
though certainly imselfish, and generally esteemed good
motives, may, when narrowed in their aims, or directed by
a perverted understanding, lead to most pernicious actions.
For instance, the affection for children is with many per-
sons more apt to lead to acts contraiy to the public good
than any purely selfish motive ; and the palliation, which
the supposed goodness of the motive constitutes in the eyes
of the public for the pernicious act, encom-ages men to do
for the sake of their childi'en, actions which they woidd be
ashamed to do for their own du'ect interest. Even that en-
larged benevolence which embraces humanity, may lead to
actions extremely mischievous, unless guided by a perfectly
Bound judgment ; e.c/. attempts at t}Taunicide.

But, although eveiy motive may lead to good or bad,
some are pre-eminently likely to lead to good ; e.r/. benevo-
lence, love of reputation, religion. Others pre-eminently
likely to lead to bad, and little likely to lead to good ; e.y.
the anti-social ; — antipathy — paiiicular or general. Others,
again, are as likely to lead to good as to bad ; e.g. the self-
regarding. They are the origin of most of the steady in-
dustry, but also of most of the offences of men.

In this qualified sense we may correctly speak of good
motives,— good dispositions : and these ought to be recog-
nised and approved. For the quality of the act, though
ultimately tested by its conformity to utilits", does to some
extent depend upon the motive or disposition. These are
the springs of action. It is important that they should be
abundant and health}^ : but whether their efiect shall be a
boimteous harvest or a desolating torrent depends on how
they are guided and du-ected.

To adjust the respective claims of the selfish and social
motives, of partial sympathy and general benevolence, is a

56

Province of Jiirispnidence.

Paht 1.
§1-

The second
misconcep-
tion ex-
ainiaed.

task wliich belongs to tlie detail, rather tlian to the principles
of ethics ; and if piu'sued would lead me too far frona the
appropriate jDiui^ose of my Course. What I have suggested
will suffice to conduct the reflecting to the following con-
clusions. 1. General utility considered as the measure or
test, differs from general utility considered as a motive or
inducement. 2. Our conduct, if truly adjusted to the
principle of utility, would conform to rules fashioned on the
principle of utihty, or be guided by sentiments associated
with such rules. But, this notwithstanding, general utility,
or the general happiness or good, would not be in all, or even
in most cases, our motive to action or forbearance.

Having touched on the first of the two misconceptions,
I will now advert to the second.

They who fall into this misconception are guilty of two
eiTors. 1. They mistake and distort the hypothesis concern-
ing the oiigin of benevolence which is styled the selfish
system. 2. They imagine that that hypothesis, as thus mis-
taken and distorted, is an essential or necessary ingredient
in the thionj of utility. The fii'st of these mistakes is made
amongst others by Godwin,* the second by Paley.

I will examine the two errors into which the misconcep-
tion may be resolved, in the order wherein I have stated
them.

] . According to an hji^othesis of Hartley and of various
other writers, benevolence or sjTiipathy is not an ultimate
fact, — it emanates from self-love, or from the self-regarding
affections, through that familiar process styled ' the asso-
ciation of ideas,' to which I have akeady adverted.

It follows that these writers dispute not the existence of
disinterested benevolence or sj'mpathy : but, assimiing the
existence of the feeling, they endeavoiu* to trace it to the
simpler and ulterior feeling- of which they believe it the
offspring.

Yet, palpable as this consequence is, it is fancied by
many opponents of the theory of utility, and even by some
of its adherents, that these writers dispute the existence of
disinterested benevolence or sympathy.

According to the h^-j^othesis in question, as thus mistaken
and distorted, we have no sympathy' properly so called with
the pleasures and pains of others. That which is styled
sympathy, or that which is styled benevolence, is pro\ideut
regard to self. Every good office done by man to man

• ' Enquiry concerning Political Justice.' By William Godwin.
Januar}-, 1793, book iv. cli. viii. I presume the author classes
Godwin anionfcst the adherents of the theory of utility. This writer
certainly anticipates, under the name of i\ui priuciple of justice, some
of the arguments nio^t eftectively urged in favour of the theory of
utility by its more modern adherents. — K. C.

TJieory of Uiiliiy Misunderstood. 57

gpnuo-3 from a calculation of whicli self is tlie object. We Lect.
perceive tliat we depend on others for much of oiu* own IV.

happiness : and, perceiviup; this; we do good unto others that "^^ ' ~*
others may do it unto us.*

2. Having thus mistaken and distorted the so-called
selfish system, many opponents of the theory of utility,
together with some adherents of the same theor}', imagine
that the former, as thus mistaken and distoi-ted, is a neces-
sary portion of the latter. And hence it naturally follows,
that the adherents of the theory of utility are styled by
many of its opponents ' selfish, sordid, and cold-blooded
calculators.'

According to the tbeoiy of utility, the principle of
c/eneral utility is the index to God's commands. Though
benevolence be nothing but a name for provident regard
to self, we are moved by regard to self, when we think of
the awful sanctions of those commands to pm-sue the gener-
ally useful, and to forbear from the generally pernicious.
This is the version 0 f tbe theory of utility rendered by Paley.
He lays down yeneral utility as the proximate test of con-
duct ; but he supposes that all the motives by which our
conduct is determined are purely self-regarding.

Now the theory of ethics, wliicb I style the theory of
utility, has no necessary connection with any tbeory of mo-
tives ; nor is it concerned with any hypothesis as to the
nature or origin of benevolence or sympathy. I think
Paley 's version of the theory of utilit}' is coherent : though
I think his theory of motives miserably partial and shallow,
and that mere regard to self, although it were never so pro-
vident, would hardly perform the office of genuine benevo-
lence or sympathy. For if genuine benevolence or sympathy is
a portion of bur nature, it furnishes, besides the self-regarding

• The selfish system, in this its literal import, is flath'' incon-
sistent with obvious facts, and is hardly deserving of serious refuta-
tion. We are daily and hourly coHSCiO!« of disinterested benevolence
or sympathy in tlie sense of wisliing the good of others without
regard to our own. And here I must note an ambiguity of the
word selfish. In the wider sense all motives are selfish. A motive
is a wish, and therefore a pain affecting a man's self, which seeks
relief. lu the narrower sense selfish motives are opjiosed to benevo-
lent ones. To obviate the ambiguity Ijentham discards the word
selfish. The motives which solicit us to pursue the good of others
lie stvles social. Those which impel us to pursue our own advan-
tagfthe styles self-regardinrj. Besides this, there are disinterested
motives by which we are solicited to visit others with evil. These
disinterested but malevolent motives Bentham styles anti-social.
The existence of such motives has been questioned, but in imputing
them to human nature, Bentham is not singular. Their existence
is assumed by Aristotle and Butler, and by all who have examined
the springs or motives of conduct. And the fact is easily explained
by the all-pervading principle which is styled ' the association of
ideas.'

I. 3

50

Province of Jurisprudence.

Pj^rt I. motive, a distinct iuducemeiit to consult tlie peueral good,
§ ^- namely, a disinterested regard for the general welfare or
happiness. And without this the motives impelling us to pro-
mote the general good would he more defective than they are.
But whether benevolence or sympathy be a simple or ulti-
mate fact, or be engendered by the principle of association
on the self-regarding affections, it is one of the motives by
which oiu' conduct is determined. And, on either of the
conflicting suppositious, the principle of utilit}', and not
benevolence or sympathy, is the measure or test of conduct :
For as conduct may bo generally useful, though the motive
is self-regarding ; so may conduct l)e generally pernicicus,
though the motive is pm'ely benevolent. Accordingly, in all
his expositions of the theory of utility, Bentham assimies or
suj^poses the existence of disinterested sympathy, and
scarcely adverts to the h^-potheses which regard the origin
of the feeling-. *

LECTURE V.

Lect.-
V.

nxiMfiii.ition
of certuiu
terms.

Analogy

TrcG tenii laio, or laics, is applied to the following objects :
— to laws proper or properly so called, and to laws im-
properly so called : to objects which have all the essentials
of an imperative law or rule, and are said to resemble (in
the naiTow sense of the word) : and to objects which are
wanting in some of those essentials, but to which the tenii
is undidy extended either b}' reason of analogy or in the
way of metaphor,

Wliat is here meaut by the word resemble, and by the
word analof/i/, may be explained as follows. Resemblance,
in the ^^dder sense of the word, includes ever}' dega-ee of
likeness between objects or classes of objects. But iu the
narrower sense and in the language of logic, objects which
have all the qualities composing the essence of the class, and
all the qualities which are the consequences of those compos-
ing the essence, resemble.

Analogy in the original and proper sense of the word is
used, to express the relation between two objects or groups
of objects which consists iu the fact that one has some of
the properties, and the other all the properties of a class
expressty or tacitly referred to.

• But here I may remark that although not directly an ingre-
dient in the theorj- of utility, the hypothesis of Hartley is, if we!!
founded, very important in determining the nature of a souiid
eystem of education. For as I have shown tlie importance of
motives, which are the springs of action, it follows that the process
by which they are generated is of great practical moment, and
well deserving of close and minute examination.

Resemblance — A nalogy — Metaphor.

59

Metaphor, in its larger sense, may be defined as tlie
transference of a temi fi-om its primitive sig'nification to
objects to "wliicli it is applied in a secondary sense. An
analogy real or supposed is always the ground of tlie trans-
ference ; hence eveiy metaphor is an analogical application
of a term, and every analogical application of a term is a
metaphor.

In coiumon parlance, however, analogy has come to he
tised in a somewhat naiTow and definite sense ; namely, to
mark the resemblance between natm-al objects which do not
belong to the same species (that is to say, a natm-al division
which we conceive of as a somewhat naiTOw one), but which
do belong to the same r/enus, order, class, or whatever name
may be used to denote a larger natural di^^sion of objects.
To explain the distinction fully woidd require a solution of
the question — ^\'hat are the criteria of a true classification
of natural objects: — a question amongst the most profound
of those which are in any way hopeful of solution.* But
the distinction may be suggested by a single illustration.
There is a close resemblance between a leaf and the petal of
a flower — there is an analogy between both these and the
breathing organs of an animal. But when a feature of the
human face is desciibed as ' tip-tilted like the petal of a
flower,' we are conscious that the expression is based on a re-
mote and fanciful resemblance. Accordingly we say that the
expression is ajigure of speech. To call the featm-e in ques-
tion a ' petal ' (not because it breathes, but because it is
* tip-tilted '), would be a metaphor.

Now it is convenient to make a similar distinction be-
tween the tenns analor/ji and viefajyhor as applied to the
complex objects comprehended by the tenn law or laws.
"Df laws, improperly so-called, some are closelij, others are
remotely analogous to laws proper. The tenn law is ex-
tended to some by a decision of tlie reason or understanding.
The term law is extended to others by a turn or caprice of
the fancy.

I style laws of the first kind laws closely analogous to
lairs projjer. These are merely opinions or sentiments held
or felt by men in regard to himiau conduct. I say that they
are called latcs by an analogical extension of the term. 1

Metaphor.

Analogy

metaphor

used In

common

parlance

defined.

Laws Im-
proper are
of two
kinds. —
1. Laws
closely ana-
logous to law
proper.
2 Laws
metaphorlrai
or flgur»ti?e.

* I have here treated the text somewhat freely, hut I think
fairly representing the author's meaninsj, in his use of the ■\vord
analonni-. The best ra^/ona/e of classification I have yet seen is given
in Mill's ' Logic,' ch. vii. § 4. Although he tloes not go quite to the
root of the matter, his account of it";is very important and sugges-
tive. The question remains, what are the grounds of the induction
hy which we infer that the common properties of the natural ob-
jects which constitute a true kind aie indefinite and inexhaustible.
Can we. indeed, resolve this without an inquiry into the physical
origir. of species ? — R. C.

6o

Province of Jurisprudmce.

Part I.

§1-

Olslribution
of laws
proper, and
(it such im-
proper laws
as are closely
analogous lo
the proper,
under three
capital
classes. —

1. The law of
God.

2. rositive
law.

3. Positive
morality.

Explanation
of the terms
•positive law
and positive
morality.

style laws of the second kiud laics metaphoriccil or Jit/urcltive.
1 say that they are called laics by a metaplior ovjifjure of
speech.

I distribute laws proper, with such improper laws as
are closely analogous to the proper, under three capital
classes.

The fu-st comprises the laws of God — the laws (properly
so called) which are set by God to his hiuuau creatures.

The second comprises positive laws — the laws (properly
so called) which are set by men as political superiors, or
by men, as private persons, in pursuance of legal rights.

The third comprises laws of the two following species ;
1 . The laws (properly so called) whicJi are set by men to
men, but not by men as political superiors, nor by men, aa
private persons, in pursuance of legal rights : 2. The laws
which are closely analogous to laws proper, but are merely
opinions or sentiments held or felt by men in regard to

human conduct. 1 put laws of these two species into a

common class, and I mark them with the common name of
imsitive moraliti/, or positive moral rules.

My reasons for using the two expressions '^;osJii'ye law '
and 'positive morality,' are the following.

There are two capital classes of human laws. The first
comprises the laws (properly so called) which are set by
men as political superiors, or by men, as private persons,
in pm'suance of legal rights. The second comprises the laws
(proper and improper) which belong to the two species im-
mediately above mentioned.

As merely distinguished from the second, the fii'st of
those capital classes might be named simply laze. As
merely distinguished from the lii'st,the second of those capital
classes might be named simply moralitij. But both must be
distinguished from the law of God : and, for the pm-pose of
distinguishing both fi'om the law of God, we must qualify the
names law and morality. Accordingly, I style the first of
those capital classes ' jwsitice law : ' and I style the second of
those capital classes 'jjositive morality.' By the common
e'pithet j^ositive, I denote that both classes flow fi'om human
sources. By the distinctive names knv and morality, I de-
note the difference between the human sources from which
the two classes respectively emanate.

The use which I so make of the term 'positive laio'' is
strictly in accordance with the language commonly em-
ployed by wi-iters on jmisprudence. The term '^josiV/^e
morality ' I have adopted as an expressive phrase to denote
a class of objects bearing to morality a relation similar to
that which jwsitive laio bears to laiv. For the term morality
taken by itself may signify either what I have just called
positive morality, or it may signify that Divine law which is
the ultimate test of positive morality as it ought to be.

PesiiivC Laiv — Positive JMorality.

6i

Explanation
of tho follow-
ing expres-
sions : viz.
scietice of ju-
risprudence
and science of
j}ositive ino-
rality ; science
0/ ethics or
deontology,
science of le-
gislation, and
science of
morals.

rroru the expression positive hno aud tlie expression posi-
tive morality, I pass to certain expressions "with wliich tliey
are closely connected.

The science of jurisprudence (or, simply and briefly,
jurisprudence) is concerned with positive lazes, or with laws
strictly so called, as considered without regard to their
gcoduess or badness.

Positive moralitij, considered without regard to its
goodness or badness, inir/ld be the subject of a science closely
analogous to jurisprudence. I snj ^ tuiffhthe:' since it is
only in one of its branches (namely, the law of nations or
international law), that positive morality, thus considered,
has been treated by writers in a scientific or systematic
manner. — IPov the science of positive morality considered
without regard to its goodness or badness, cmi-ent or estab-
lished language will hardly aftbrd us a name. But, since
the science of jurisprudence is not unfrequently styled 'the
science oi positive law,' the science in question might be
styled analogically ' the science of positive morality.' The
department of the science in question which relates to inter-
national law, has actually been styled by You Martens, a
writer of celebrity, 'positives oder p-r/rf/sc/^es Yollven-echt : '
that is to say, 'positive international law,' or 'jvrtctical in-
ternational law.' Had he named that department of the
science ' ^Msitive international moralitij,^ the name would
have hit its import with perfect precision.

The science of ethics (or, in the language of Beutham,
the science of deontology) may be defined in the follo^\ang
manner. — It affects to determine the test of positive law
and morality. In other words, it affects to expound them
as they ought to be ; as they would be if they were good or
worthy of praise ; or if they conformed to an assumed measure.
'' The science of ethics (or, simply and briefly, ethics) con-
sists of two departments : the one aflects to determine the
test of positive law, and is styled the science of leyislation, or
briefly, leyislation ; the other aflects to determine the test
of positive morality, and is styled the science of morals, or,
briefly, morals.

Here I may observe that when we say that a hmuan law
is good or bad, or is what it ought or ought not to be, we
mean (unless we intimate our mere Hiring or aversion) this:
namely, that the law agrees with or diflers from a something
to which we tacitly refer it as to a measure or test. Ac-
cording to the theoiy of utility, which I now assmue as
sufficiently proved, a human law is good or bad as it agTces
or does not agree with the law of God as indicated by the
principle of utility.

Positive laws, the appropriate matter of jmispnidence, The connec-
are related in the way of resemblance, or by a close or p'rSent c'the

JEoaning of
tlie epitlict
good or bad ai
applied to a
human law

J2 Province of jurisprudence.

Part 1. remote analopy, to tlie followins- objects. — 1. In the way of
§ !• resemblance, they are related to the laws of God. 2. In
the way of resemblance, they are related to those rules of
positive morality -svhich are laws properly so called. 3. By
a close or strong- analopy, they are related to those rules of
positive morality which are merely opinions or sentiments
held or felt by men in regard to hmnan conduct. 4. By a
remote or slender analogy, they are related to laws merely
metaphorical, or laws merely figurative.

To distinguish positive laws fi-om the objects now
enumerated, is the pm-pose of the present attempt to deter-
mine the pro"vince of of jurisprudence.

In pm'suance of the purpose to which I have now ad-
verted, I stated, in my first lecture, the essentials of a lino
or ride (taken with the largest signification which can be
given to the tevm 2)roperh/).

In my second, third, and fourth lectures, I stated the
marks or characters by which the laws of God are distin-
guished from other laws. And, stating those marks or
charactei's, I explained the nature of the index to his uure-
vealed laws, or I explained and examined the hj-potheses
which regard the nature of that index. I made this expla-
nation at a length which may seem disproportionate, but
which I have deemed necessaiy because these laws, and the
index by which they are Imown, are the standard or mea-
sure to which all other laws should conform, and by which
they should be tried.

Before proceeding fm-ther I must shortly indicate the
essential difference of a positive law (i.e. the difference
which severs it from a law which is not a positive law) and
advert to the reason why I postpone its complete definition
until after I have described the remaining sets of objects
above mentioned.

3::^very positive law, or every law, simply and strictly so
called, is set by a sovereign person or a sovereign body of
persons, to a member or members of the independent politi-
cal society wherein that person or body is sovereign or
supreme.

But the full analysis of these expressions occupies so
Icirge a space that it wiU be convenient to postpone it, and I
shall accordingly complete the determination of the pro-
vince of Jm-isprudence in the following order.

In the present lecture I shall examine the distinguishing
marks of tliose positive moral rules which are Imcs proverhj
so called ; m those positive moral rules which are styleWlaus
or )-ides by an analof/icol extension of the term ; and of the
laws which are styled hncs by a metaphor. In doing this I
shall also touch on some subordinate topics, and also (so far

Positive Moral Rules defined.

63

as is absolutely necessary to the immediate objects of tbis
lectm-e) I must anticipate the fuller analysis of sovereignty
which I reserve for the following lecture. In the following
(the sixth) lecture I shall conclude the determination of the
province of jurisprudence, by explaining the marks or cha-
racters which distinguish positive laws. I shall at the same
time analyze the expression sovereignty, the correlative ex-
pression suhjection, and the inseparably connected expression
independent jwlitical society.

(b) In pursuance of the order stated on p. 7, and above
adverted to, I proceed to analyze positive morality, describing
separately rules of the two species described on p. CO and
there classed together under this name.

From the definition of a law, properly so called, con-
tained in the first lectm-e, it follows that every law properly
so called, flows from a determinate soiu'ce, or emanates from
a determimde author.

It follows also fi'om the premises stated in the preceding
lectures that the laws of God are laws properly so called.

Positive laws or laws strictly so called, are established
immediately by mouarchs or sovereign bodies, as supreme
political superiors ; by men in a state of subjection as sub-
ordinate political superiors ; or by subjects as private persons
in pursuance of legal rights. In each case they are set di-
rectly or circuitously by a monarch or sovereim body. They
therefore flow from a deterininate source and are laws pro-
perly so called.

Besides the hmnan laws which I style positive law,
there are human laws which I style positive morality, rules
of positive morality, or positive moral rules.

The positive moral rules which are laws properly so
called, are distinguished from other laws by the union of two
marks. — 1 . They are imperative laws or rules set by men to
men. 2. They are not set by men as political superiors, nor
are they set by men as private persons, in pursuance of legal
rights. The}' are not commands (either direct or circuitous)
of sovereigns in the character of political superiors.

Consequently, they are not positive laws : the}' are not
clothed with leyal sanctions, nor do they oblige leyally the
persons to whom they are set. But being commands (and
therefore being established by determinate individuals or
bodies), they are laws properly so called: they ai-e armed
with sanctions, and impose duties, in the proper acceptation
of the terms.

Of positive moral rules which are laws properly so
called, some are established by men who are not subjects, or
are not in a state of subjection to a monarch or sovereign
number. — Of these, some are established by men li^'ing in
the negative state which is styled a state of natm-e or a

(U) Positive
Morality.

A corollary
from the
definition of
laws prorer.

Laws of God
and positive
laws are laws
proper.

Deflnitjon of
positive law
furllicr an-
ticipated.

The positive

moral rules
which are
laws properly
50 called, are
comtnandshwt,
are not set
t)y political
superiors.

64 Province of Juyisprudence.

state of anarchy : that is to say, by men who are net
members, sovereiirn or subject, of auy political society :
others are established by sovereigTi iudividuals or bodies,
but not in the character of political superiors.

Of laws properly so called which are set by subjects,
some are set by subjects as subordinate political superiors ;
others by subjects as private persons : — meaninp: by ' private
persons,' subjects not in the class of subordinate political
superiors, or subordinate political superiors not considered
as such. Laws set by subjects as subordinate political
superiors, are positive laws : they are clothed with legal
sanctions, and impose legal duties. They are set -ejr-
cuitously or remotely by sovereigns or states in the
character of political superiors. Of laws set by subjects
as private persons, some are not established by sovereign
or supreme authority — these are rules of positive morality ;
they are not clothed with legal sanctions, nor do they
oblige legally the parties to whom they are set : others are
set or established in pm'suance of legal rights residing in the
subject authors — and these are positive laws or laws
ttrictly so called ; they are clothed with legal sanctions ;
they are commands of sovereigns as political superiors, al-
though they are set by sovereigns circuitously or remotely.

It appears from the foregoing distinctions, that positive
moral rules which are laws properly so called are of three
lands. — ]. Those which are set by men living in a state of
nature. 2. Those which are set by sovereigns, but not by
sovereigns as political superiors. 3. Those which are set
by subjects as private persons, and are not set by the subject
autliors in pursuance of legal rights.

To cite an example of the first kind, would be super-
fluous labour. A man living in a state of nature may impose
an imperative law. And the law being imperative (and
therefore proceeding from a determinate source) is a law
properly so called ; though, for want of a so-^ereign author,
proximate or remote, it is not a positive law but a rule of
positive morality.

An imperative law set by a sovereign to a sovereign, or
by one supreme government to another supreme government,
is an example of rules of the second kind. Not being set by
a political superior, it is not a positive law or a law strictly so
called. But being imperative (and therefore proceeding from
a determinate som-ce), it amoimts to a law in the proper sig-
nification of the term, although it is purely or simply a rule
of positive morality.

The following imperative laws so far as they are set by
their authors as private persons merely, and not in pursu-
ance of legal rights, are examples of rules of the thii-d kind :
namely, those set by parents to children ; by masters to
servants j ly lenders to borrowers ; by patrons to parasites.

Positive Moral Rules, 65

Being iviperative (and therefore proceeding from determinate
sources), they are laws properly so called. Being set by
subjects as private persons, and not in pursuance of legal
rights, they are not positive laws but rules of positive
morality.

Again : A club or society of men, signifying its collec-
tive pleasure by a vote of its assembled members, passes or
makes a law to be kept by its members severally under pain
of exclusion from its meetings. Now if, and so far as it be
not made by its authors in pursuance of a legal right, the
-law so voted and passed is a further example of rules of the
third kind.

The positive moral rules which are laws improperly so Tiie positive
called, are Unos set or imposed hy genercd opinion : that is to '"J,'™^ .^J-y*^^
say, by the general opinion of any class or any society of lawsimpro-
persons. For example. Some are set or imposed by the raut^d!"are
general opinion of persons who are members of a profession '"f'^g||^ j""
or calling : others, by that of persons who inhabit a town gerierai
or province : others, by that of a nation or independent "i"'"""-
political society : others, by that of a larger society formed
of various nations.

A few species of the laws which are set by general
opinion have gotten appropriate names. — For example,
There are laws or rules imposed upon gentlemen hy opinions
cun-ent amongst gentlemen. And these are usually styled
the rules of honour, or the laws or laio of honour. — There are
laws or rules imposed upon people of fashion by opinions
current in the fashionable world. And these are usually
styled the laivs set by fashion. — There are laws which regard
the conduct of independent political societies in their various
relations to one another ; or, rather, there are laws which
regard the conduct of sovereigns or supreme governments in
their various relations to one another. And laws or rules
of this species, which are imposed upon nations or sove-
reigns by opinions cmi'ent amongst nations, are usually styled
the law of nations or international law:

Now a law set or imposed by general opinion is a law a law set nr
improperly so called. It is styled a laiv or 7'ule by an ana- general ""
logical extension of the term. The fact denoted by the ^''g"e,''"f|',|
expression is the following :^Some indeterminate body or opinion m
uncertain aggregate of persons regards a kind of conduct an1"d«"c/-'^
with a fa^•ourable or imi'avourable opinion. In consequence mmateho^y
of that sentiment, or the sentiment associated with that regard to'a
opinion, it is likely that they or some of them will be dis- ^"ujuct.
pleased 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 (what party being undetermined) will
nsit the party provokin? it with some evil or another. , , , .„.

rr'iTi-r !•• IT • •! 1 L An indeter-

ihe body by whose opinion the law is said to be set minatebody
does not command, either expressly or tacitly. For, since niBJod" *^''^'

66

Province of Jurisprudence.

Part I.

§1-

A brief
statement of
the analogy
between a
law proper
and a law set
or imposed
by general
epiuioi].

it is not a body precisely determined or certain, it cannot,
as a hody, express or intimate a wish.

A determinate member of the body, who shares in the
opinion or sentiment, may doubtless be moved or impelled,
by that very opinion or sentiment, to co;«?n«?!fZ that conduct
of the kind shall be forborne or pursued. The command so
expressed or intimated is a law properly so called. But the
author is the determinate member, not the o-eneral indeter-
minate body. For example, The so-called law of nations
consists of opinions or sentiments cm-rent amongst nations
generally. These are not laws properly so called. But one
supreme government may doubtless commaml another to
forbear from a kind of conduct which the law of nations
condemns. And, though it is fashioned on law which is
law improperly so called, this command is a Icnv in the
proper signification of the temi. Speaking precisely, the
command is a rule of positive morality set by a determinate
author. For, as no supreme government is in a state of
subjection to another, the govei'nment commanding does
not command in its character of political superior. If the
government receiving the command were in a state of sub-
jection to the other, the command, though fashioned on the
law of nations, would amount to a positive law. Nor does
the government which gives the command act as the
executor of a command proceeding fi-om the uncertain body
■ — the collective family or aggregate of nations. That
government may, however, act as the executor of a com-
mand proceeding from a definite umnber of sovereign states
allied under a treaty. In that case there would be a com-
mand issuing from the allied states collectively, and enforced
by the one government as their minister. This would be
still a rule of positive morality and not of positive law,
because the government or state which is to be coerced
would not (on the hypothesis) be in a state of subjection
either to the allied governments collectively, or to the
govermnent who for the occasion acted as their minister.

It follows from the foregoing reasons, that a so-called
law set by general opinion is not a law ; — is not armed with
a sanction ; — and does not impose a duty, in the proper
acceptation of the expressions : — but is closely analogous to
a law, in the proper sig-nification of the term, in the follow-
ing respects : — 1. In the case of a law properly so called,
the determinate indi^idual or body by whom the law is set
wishes that conduct of a kind shall be forborne or pursued.
In the case of a law imposed by general opinion, a wish
that conduct of a kind shall be forborne or piu-sued is felt by
the uncertain body whose opinion imposes it. 2. If a partv
obliged by the law proper shall not comply with the wish of
the determinate individual or body, he probably will suffer,
in consequence of his not complying, the evil or incouveni-

VV/iai is a Determinate Body of Persons.

6f

ence annexed to tlie law as a sanction. If a party liable
to theirclispleasiu'e shall uot'comply witli the wish of the
uncertain body of persons, he probably will sutler, in con-
sequence of his not complying, game evil or inconvenience
d'om some party or another. 3. By the sanction annexed
to the law proper, the parties obliged are inclined to act or
forbear agreeably to its iuj unctions or prohibitions. By the
§ijl which probably will follow the displeasure of the un-
certain body, the parties obnoxious are inclined to act or
forbear agi-eeabty to the sentiment or opinion which is stjded
analogically a law. 4. In conser^uence of the law_properly
so called, the conduct of the parties obliged has a steadiness,
constanc}', or uniformity, which, without the existence of
the law, their conduct would probably want. A jDISPJseJ^-
similar consequence results from the sentiment or opinion
which is styled analogically a law. • —

I In the foregoing analysis of a law set by general opinion,

/the meaning of the expression ^indeterminate body of
persons ' is indicated rather than explained. To complete

I my analysis of a law set by general opinion (and to abridge
that analysis of sovereignty which I shall place in my sixth

'lectm-e), I will here insert a concise exposition of the im-
portant distinction between a determinate, and an indeter-

\ minate body of persons.

I will first describe the distinction in general or abstract
terms, and then illusti'ate the general description.

If a body of persons be determinate, all the persons who
compose it are determined and assignable.

Determinate bodies are of two kinds. Either, 1st. The
body is composed of persons detennined specifically and in-
di-vidually. It consists of the persons, A. B. C. &c., as in-
di\dduals determined, each by his specific and appropriate
description. Or — 2udly. The body is composed of persons
detennined generically ; in other words, every person who
answers to a given generic description, or to any of two or
more given generic descriptions, is also a member of the
determinate body : and is such not by reason of his own
personal description or character, but by reason of his answer-
ing to tlie given generic description.

If a body be indeterminate, all the persons who compose
it are not deteiinined and assignable. Not every person who
belongs to it is determined, or capable of being indicated.
An indeterminate body consists of some of the persons who
belong to another and larger aggi'egate. But hoio many of
those persons are members of the iudeteiiuinate body, or
lohich of those persons in j^crticular are members of the in-
determinate body, is not and cannot be known completely
and exactly.

For example, The trading finn or partnership of A. B. and
0. is a determinate bodv of the kind fii-st described above.

Distinction
between a
determinate,
and an ind«-
terminate
body of
single or
individual
persons.

Distinction
stated in
general
terms ;

and illus-
trated by
examplei,

68 Province of jfttrisprudejice.

Every member of tlie fom is determined specifically, or Ly a
character or description peculiar or appropriate to himself.
And eveiy member of the firm belongs to the determinate
body, not by reason of his answering to any generic descrip-
tion, but by reason of his bearing- his specific or appropriate
character.
^^^ The British Parliament for the time being is a determi-
nate body of the second kind above described. It comprises
j:^ the one person ansyyering to the description of King [or
Queen] not as an individual, but as the person for the time
being- answering to the generic descnption contained in the
Act of Settlement. It comprises every person belonging to
the class of peers who are entitled for the time being to vote
in the Upper House. It comprises everij person belonging to
the class of commoners who for the time being represent the
commons in Parliament. And the peers or commoners who
are entitled to sit and vote, are so entitled not in their
several capacities as individuals ; but in their generic
character as ^;ee;-5 and rejyresentatwes of the commons, or as
respectively answering to the smaller but still generic de-
scriptions of Earl of A. (according to the limitations of his
patent), Knight of the Shire of B., or Member for the
Borough of C. duly retm-ned pursuant to the Royal Writ
(or the Speaker's Writ as the case may be).

To exemplify the foregoing description of an indetermi-
nate body, I will revert to the natm-e of a law set by general
opinion. \\Tiere a so-called law is set by general opinion,
most of the persons who belong to a determinate body or
class have certain feelings or sentiments in regard to a kind
of conduct. But the number of that majority, or the several
indi^-iduals who compose it, cannot be fixed or assigned with
perfect fulness or accm-acy. For example, A law set or im-
posed by the general opinion of a nation, of a legislative
assembly, of a profession, or of a club, is an opinion or senti-
ment, which is held or felt in regard to conduct by most of
those who belong to that certain body. But how many of
that body, or which of that body in particular, hold or feeJ
that given opinion or sentiment, is not and cannot be Imown
completely and correctly. Generally spealring, therefore, an
indeterminate body is an indeterminate portion of a boay
determinate or certain. But a body or class of persons may
also be indeterminate, because it consists of persons of a
vague generic character. For example, a law set by the
general opinion of gentlemen is an opinion or sentiment of
most of those who are commonly deemed to be gentlemen ;
or a class of persons whose generic character cannot be
described precisely ; for whether a given man is a gentle-
man or not, is a question which different men might answer
in different ways. — An indeterminate body may therefore be
indeterminate after a twofold manner. It may consist of au

Detcrininatc and Imictcnninatc.

69

body of
persons.

uncertain portion of a cei-tain "body or class, or of an uncer-
L;'i:n portion of an uncfi3|an' Ijody or class.

A determinate body of persons is capable of corpm-ate
conduct. AVbether it consist of persons determined by
specific characters, or of persons determined or defined by a
character or characters generic, every person who belongs to conduct
it is determined and may be indicated. In the tirst case,
every person who belongs to it may be indicated by his spe-
cific character. In the second case, every person who belongs
to it is also kniawable ; for crerij person who answers to the
given generic description, or who answers to any of the given
generic descriptions, is therefore a member of the body.
Consequently, the entire body, or any proportion of its
members, is capable, as a hochj, of positive or negative con-
duct : as, for example, of meeting at determinate times and
places ; of issuing expressly or tacitly a law or other com-
mand ; of choosing and deputing representatives to perform
its intentions or wishes ; of receiving obedience from others,
or from any of its own members.

An indeterminate body is incapable of corporate conduct. Not so an in-
inasmuch as the several persons of whom it consists cannot ''ctcrminate
be known and indicated completely and coiTectly. But in
case a portion of its members act or forbear in concert, that
given portion of its members is, by that very concert, a
determinate or certain body. A law imposed by general
opinion may be the cause of a law in the proper acceptation
of the term. But the law properly so called, whicli is the
consequent or eifect, utterly dilfers from the so-called law
which is the antecedent or cause. The one is an opinion or
sentiment of an uncertain body of persons ; of a body essen-
tially incapable of joint or corporate conduct. The other is
set or established by the positive or negative conduct of a
certain individual or aggTegate. ^

For simplicity, I have supposed that a determinate body
either consists of persons determined by specific characters,
or of persons determined or defined by a generic description
or descriptions. But a determinate body may consist partly
of persons determined by specific or appropriate characters,
and partly of persons determined by a character or characters
generic. Let us suppose, for example, that the individual
Oliver Cromwell was sovereign or supreme in England:
that he convened a House of Commons elected in the ancient
manner : and that he vnelded a part in the sovereignty to
this representative body. Now the sovereign or sujireme
body formed by Cromwell and the House would have con-
sisted of a person determined or defined specifically, and
of persons determined or defined by a generic character
or description. A body of persons, forming a body deter-
minate, may also consist of persons determined or defined
specifically, and determined or defined moreover by a

70

Province of Jiirispnidence.

riie fore-
going dis-
tribution of
\-\v:s, prober
and of such
im proper
laws as are
closely ana-

logODS to

tber.roper,
liriefiy re-
capitulated.

The sanc-
tions, i>ro-
pcr and

character or characters generic. A select committee of a body
representing a people or nation, consists of individual
persons named or appointed specifically to sit on that given
committee. But those specific individuals could not be
members of the committee, unless each answered the generic
description ' representative of the people or nation.'

It follows from the exposition immediately preceding
that the one or the number which is sovereign in an inde-
pendent political society is a determinate individual person
or a determinate body of persons. If the sovereign one or
number were not determinate or certain, it could not, as
akeady shown (p. Go supra), couunand expressly or tacitly,
and could not therefore be an object of obedience to the
subject membere of the community-.

As closely connected with the matter of the exposition
immediately preceding, the following remark concerning
supreme government may be put conveniently in the present
place. In order that a supreme govenmient, whether mon-
archical or otherwise, may possess much stability, and that
the society wherein it is supreme may enjoy much tran-
quillity, the persons who take the sovereignty in the way of
succession, must take or acquire by a given generic mode,
or by given 's^eric modes, or by reason of theii* respectively
answering to given generic descriptions. This is well illus-
trated by the histoiy of Rome under the government of the
Emperors or ' Princes,' whose succession did not go accord-
ing to any generic title.

By a caprice of current language, Laws set by r/eneral
opinion, or opinions or sentiments of indeterminate bodies,
are the only opinions or sentiments that have gotten the
name of hncs. But an opinion or sentiment held by an in-
dividual or by all the members of a determinate body, may
be as closely analogous to a law proper, as the opinion or
sentiment of an indeterminate body. The foregoing analysis,
however, applies only to such laws analogous to laws proper
as are set by general opinion.

It appears fi-om the expositions in the preceding portion
of my discomse, that lavN's properly so called, with such
improper laws as are closely analogous to the proper, are of
thi-ee capital classes. — 1. The law of God. 2. Positive law,
3. Positive morality.

It also appears from the same expositions, that positive
morality consists of rules of two species. — 1. Those positive
moral iniles which are express or tacit commands, and which
are therefore laws in the proper acceptation of the term.
2. Those laws improperly so called (but closely analogous
to laws in the proper acceptation of the term) which are
set by opinion.

The sanctions annexed to and the duties imposed by the
laws of God, may be styled relif/ious. — The sanctions annexed

Conjiict of Law and JMurality.

71

to and the duties imposed by positive laws, may be styled,
emphatically, legal : for the laws to which these sanctions
are annexed, these duties imposed, are styled, simply and
cmphaticiiUy, laivs or hnv. Or, as every positive law sup-
poses a TToAiQ or cicifcts, or supposes a society political and
independent, tlie epithet iwUtical may be a})plied to these
sanctions and duties. Of the sanctions which enforce com-
pliance with and the duties imposed by positive moral rules,
some are sanctions and duties properly so called, and others
are styled sanctions and duties by an analo<:>ical extension of
the term : that is to say, some are annexed to and imposed
by rules whicli are laws imperative and proper, and others
enforce and are imposed by rules which are laws get by
opinion. Since rules of either species may be styled positive
luoralit}', the sanctions which euforce compliance with and
the duties imposed by rules of either species may be styled
moral sanctions — moral duties.

To the propositions regarding sanctions and duties stated
in the last paragraph, propositions in all respects correlative
may be stated in regard to rights which correspond to the
duties imposed by the several kinds of rules above mentioned.
But inasmuch as the nature of right cannot be fully explained
until positive law is distinguished from the various related
objects, I shall here content myself with the above general
observation, leaving the student to apply it for himself when
the meaning of the term right has been fully explained to him.

The foregoing distribution of laws proper, and of such im-
proper laws as are closely analogous to the proper, tallies in
the main with a division of laws which is given incidentally
by Ijocke in liis ' Essay on the Human Understanding,'
Book II. Chapter xxviii. The passage of his essay in which
the division occurs, is part of an inquiry into the nature of
relation, and is therefore concerned indirectlg with the nature
and kinds of Uno. The student is, however, recommended
to cousidt this chapter, and compare the propositions laid
down by Locke in regard to ' the Divine law,' ' the civil
law,' and ' the law of opinion or reputation,' with those
stated in these lectures.

Tlio fore-
going dis-
tributjiin of
laws iirii;ifr
and of siicli
iniprorer
laws as arc
closely ana- .
logons to t.lio
proper, talliei
Willi a divi-
sion of, laws
given inri-
dcn tally by
Locke in lils
' Essay on
Human Un-
derstanding.

The laws composing those aggregates respectively here
styled the law of God, positive law, and positive morality,
sometimes coincide, sometimes do not coincide, and some-
times conflict.

They co/H.cu?f, when acts which are enjoined or forbidden
by a law of the one class are also enjoined, or are also for-
bidden, by those of the others respectively. Por example, - s""''^:'-'i
The killing which is styled murder is forbidden by the posi-
tive law of every political society : it is also forbidden by a
so-called law which the general opinion of the society haB
set or imposed: it is also forbidden by the law of God ae
known through the principle of utility.

The law of
God, posi-
tive law,
and positivo
morality,
sometiinca
coincide,
sonictimci
do not coin-
cide, and
nicg

Province of Jnrispnideiice.

Their coin-
cidence some-
times gives
rise to a mis-
conception
concerning
the origin of
positive
law.

They do not coincide, wlien acts whicli are enjoined or
forbidden by a law of the one class are not enjoined or
are not forbidden by any law of one of the other classes.
For example, Though smu<rgling is forbidden by positiye
law, and (spealrine generally) is not less pernicious than
theft, it is not forbidden by the opinions or sentiments of
the ignorant or um-eflecting : and where the impost or tax
is itself of pernicious tendency, smuggling is hardly forbidden
by the opinions or sentiments of any. Offences against the
game laws are also in point : for they are not offences against
positiye morality, although they are forbidden by positiye
law. A gentleman is not generally shunned by gentlemen,
though he shoots without a qualification. A peasant who
wires hares escapes the censm-e of peasants, though the
squires, as doing justiceship, send him to the prison and the
tread-mill.

They conjlict, when acts which are enjoined or forbidden
by a law of the one class are forbidden or enjoined by some
law of one of the other classes. For example, In most of
the nations of modeni Em-ope, the practice of duelling is
forbidden by positiye law. It is also at yariance with the
law which is receiyed in most of those nations as ha^-ing
been set by the Deity in the way of express reyelation. But
in spite of positiye law, and in spite of his religious couyic-
tions, a man may be forced by the law of honour — the
opinion of the class to which he belongs— to giye or to take
a challenge.

The simple and obyious considerations to which I haye
now adverted, are often oyerlooked by legislators. If they
fancy a practice pernicious, or hate it they Icnow not why,
they proceed, without further thought, to forbid it by posi-
tiye law. They forget that positive law maybe supertluous ;
that the moral or the religious sentiments of tlie community
may ah-eady suppress the practice as completely as it can be
suppressed ; or that, if the practice is favoured by those ^ <
moral or religious sentiments, the strongest possible fear // V
wliich legal pains can inspire may be mastered by a stronger
fear of other and conflicting sanctions.

In consequence of the frequent coincidence of positive
laws and rules of morality, and of the positive laws and the
laws of God, the true nature and fountain of positive law is
often absurdly mistaken by writers upon jin-isprudence.
AVhere positive law has been fashioned on positive morality,
or on the law of God, they forget that the copy is the
creature of the sovereign, and impute it to the author of
the model.

For example : Customary laws are positive laws fashioned
by judicial legislation upon pre-existing customs. Now,
until clothed with legal sanctions by the sovereign one or
number, the customs are merely rules set by opinions of the

Positive Llorality.

\

73

provemed, and sanctioned or enforced morally: Though, •
when they become the reasons of judicial decisions upon
cases, and are clothed with legal sanctions by the sovereign
one or number, the customs are rules of positive law as well
as of positive morality. But, because the customs were
observed by the governed before they were clothed with
sanctions by the sovereign one or number, it is fancied that
customary laws exist cts iwdtwe laics by the institution of
the private persons with whom the customs originated.

Again : The portion of positive law which is parcel of
the law of nature (or, in the language of the classical jurists,
which is parcel of the jus gentium) is often supposed to
emanate, even as positive law, from a Divine or Natural
source. But (admitting the distinction of positive law into
law natural and la\v positi-\-e) it is manifest that law natural, \
considered as a portion of positive, is the creature of human |
sovereigns, and not of the Divine monarch. To say that it
emanates, as positive law, from a Divine or Natural source,
is to confound positive law with law^ wheron it is fashioned,
or whereunto it conforms. •

Before leaving the subject of positive morality, I must
note a prevailing tendency to confound what is with what
ought to be law or morality, that is, 1st, to confound posi-
tive law with the science of legislation, and positive morality
with deontology ; and 2ndly, to confound positive law with
positive morality, and both with legislation and deontology.

A law which exists is a law, though we happen to dis-
like it, or though it vary from our assmued standard. This
truth, when formally announced as an abstract proposition,
is so simple and glaring that it seems idle to insist upon it :
but the enumeration of the instances in which it has been
forgotten would fill a volume.

Blackstoue, for example, says, in his ' Commentaries,'
that the laws of God are superior in obligation to all other
laws ; that no human laws should be suffered to contradict
them ; that human laws are of no validity if contrary to
them ; and that all valid laws derive their force from that
divine original.

Now, he 7nai/ mean that where human laws conflict with
the Divine, we our/hi to obey the latter rather than the
former. If this be his meaning, I assent to it without
hesitation, and have only to observe that, the sanctions
of the Divine law being infinitely stronger and surer than
those of hiunan law, the proposition is identical, and a
mere triusm.

Perhaps, again, he means that human lawgivers are
themselves obliged by the Divine laws to fashion the laws
which they impose by that ultimate standard.

But the meaning of this ^lassage of Blackstone, if it has

Two ten«
dencies
lending to
confusion ut
thought.

1st. Tendoncj
to confound
positive law
with the
science of
legislation
and positive
morality with
deoutolcgy.

Example

from

Blackstone.

74

Province of Jurispnidcnce.

Part I.

§1-

xl

Another
example from
Blackscone.

Paloj'silefiuL-
tion of civil f
liberty.

Example
from the
■writers of
iuteruational
law.

a meauiug, seems rather to he this : that no human law
which conflicts with the Divine law is binding. Now, to
say this is sheer nonsense. The most pernicious laws, and -
therefore those which are most opposed to the will of God,
have been and are continually enforced as laws b}^ judicial
tribunals. Suppose an act innocuous, or positively'' benefi-
cial, be prohibited by the sovereign under the penalty of
death ; if I commit this act, I shall be tried and condemned,
and if I impugn the validity of the sentence, tm the ground
that it is contrary to the law of God, the ultimate minister
of justice {videlicet the hangman) will demonstrate the
inconclusiveness of my reasoning.

But this abuse of language is not merely puerile, it is
mischievous ; and in times of civil discord the mischief is
apparent. To prove by pertineut reasons that a law is per-
nicious is higlily useful, because such process may lead to
the abrogation of the pernicious law. To incite the public
to resistance by determinate A"iews of idilifij may be useful.
But to proclaim generally that all laws which are pernicious
or contraiy to the will of God are void and not to bo
tolerated, is to preach anarch}', hostile and perilous as much
to wise and benign rule as to stupid and galling t^i-anny.

In another passage of his ' Commentaries,' Blaclcstone
enters into an argument to prove that a master cannot have
a right to the labour of his slave. Had he contented him-
self with expressing his disapprobation, a very well-grounded
one certainly, of the institution of slavery, no objection
could have been made to his so expressing himself. But to
dispute the existence or the possibility of the right is to
tallv absm-dly. For in every age, and in almost e^ery nation,
the right has been given by positive law, whilst that perni-
cious disposition of positive law has been backed by the
positive morality of the free or master classes.

Paleys admired definition of ci^'il liberty appears to me
to be open to the same objection. ' Oinl liberty,' he says,
' is the not being restrained by any law but that which
conduces in a greater degi'ee to the public welfare ; ' and
this is distinguished from naturcd liberty, which is the not
being restrained at all. Now, if cicil liberty means anything
as opposed to naturcd liberty, it means the liberty which is
giveu and protected by law, whicli is the same thing as
riffht. But PaJey's definition can only apply to ' ei^-il
liiserty ' or right as it would be if it conformed to the stan-
dard of utility.

Grotius, Puffendorf, and the other writers on the so-
called law of nations, have confounded positive international
morality, or the rules which actually obtain among civilized
nations in their mutual intercom-se, with their own vague
conceptions of international morality as it ouf/ht to he, with
that indeterminate something which they conceive it

Positive Blorality.

75

2nd. Ten-
don i-y to
cniifound
positive law
with positive
morality, and
botli witli
legislation
and deonto-
logy.
Examples

would be, if it conformed to tliat indetermiuate sometliiug
which they call the law of nature. Professor Von Martens,
of Gottingen, who died only a few years ago,* is actually
the first writer on the law of nations who has avoided that
confusion. He distinguished the rules which owjlit to be
received in the intercourse of nations from tliose which are
so received, eudeavom'ed to collect from the practice of
civilized communities what are the rules actuallj' recognised
and acted upon by them, and gave to these rules the name
of positive international law.

Those who know the writings of the Roman lawyers
only b}' hearsay are accustomed to admire their philosophy.
Their real merit consists in this, that they have seized the
general principles of the Roman laW-w*tb-gretrt-elefmi'?SS'
and penetratioG7lKtve JipptitFcl these^pnucTples with admirable
logic to the explanation of details, and have thus reduced
this positive system of law to a compact and coherent
whole. But the philosophy which they borrowed fiom the from ti
Greeks, or fashioned after the examples of the Greeks, is 1^','™^'
naught. Their attempts to define jurisprudence and 1o de-
termine the province of the jurisconsult are absolutely
pitiable, and it is hardly conceivable how men of such
admirable discernment should have displayed such con-
temptible imbecility.

At the commencement of the Digest is a passage at-
tempting to define jurisprudence. ' Jurisprudentia est
divinarum atque humanarum rerum notitia, justi atque
iujusti scieutia.' In the excerpt from Ulpian, which is
placed at the beginning of the Digest, it is thus attempted
to define the office or province of the jurisconsult. ' Juri
operam datm-um prius nosse oportet, unde nomen juris
descendat. Est autem a justitia appellatum ; nam, ut
elegauter Celsus definit, jus est ars boni et ajqui. Cujus
merito quis nos sacerdotcs appellet ; justitiam namque
colimus, et boni et a^qui notitiam profitemur, fequum ab
iniquo separantes, licitum ab illicito discernentes, bonos non
solum metu poenarum verum etiam proimiorum quoque
exhortatione efilcere cupientes, veram, nisi fallor, philoso-
phiam, non simulatam affectautes.'

"Were I to present you with all the criticisms which
these two passages suggest, I should detain you a full hour.
I shall content myself with one. Jurisprudence, if it is
anything, is the science of law, or at most the science of
law combined witli the art of appljing it ; but what is here
given as a definition of it, embraces not only law, but
positive morality, and even the test to which both the.-o are
to be referred. It therefore comprises the science of legis-
lation and deontology. Further, it affii-ms that law is the

* This, it will be remembered, was spoken i;i the year 1330 or 1831.

76

Part I.

§1-

rxamr'e
frnni Lord
Mansfleld,

Laws meta-
] liorical or
11 'curative.
— Tlie com-
mon and
negative
nature of
laws of the
class.

Province of J^irisprudcnce.

creature of justice, wliicliis as mucli as to say tlaat it is the
child of its own ofl'spring. True, we speak of law and
justice as opposed to each other ; but when we do so, wo
mean to express mere dislike of the law, or to intimate that
it conflicts with another law, the law of God, which is its
standard. But, in truth, law is itself the standard of
justice. "What deviates from any law is unjust with re-
ference to that law, though it may be just with reference
to another law of superior authority. The judge who
habitually talks of equity or justice — the justice of the
case, the equity of the case, the imperious demand_s of
justice, the plain dictates of equity, — forpets that he is
there to enforce the Imo of the land, else he does not ad-
minister that justice or that equity with which alone he is
immediately concerned.

This is well known to have been a strong tendency of
Lord jMansfield — a strange obliquity in so great a man. I
will give an instance. By the English law, a promise is
not binding without a motive of a particular kind, called a
consideration. Lord Mansfield, however, overruled the
distinct provisions of the law by ruling that moral obliga-
tion was a sufficient consideration. Now, moral obligation
is an obligation imposed by opinion, or an obligation imposed
by God : that is, moral obligation is anything which we
choose to call so, for the precepts of positive morality are
infinitely varying, and the will of God, whether indicated
by utility or by a moral sense, is equally matter of dispute.
This decision of Lord Mansfield, which assumes that the
judge is to enforce morality, enables the judge to enforce
just whatever he pleases.

I do not blame Lord Mansfield for having assumed the
office of a legislator. I by no means disapprove of what
Bentham has chosen to call b}' the disrespectful, and there-
fore, as I conceive, injudicious, name of judge-made law.
^ly censure refers to the timid, narrow, and piecemeal
manner in which judges have legislated, and for legislating
under cover of vague aud indeterminate phrases, such as
Lord Mansfield employed in the above example, and which
would be censurable in any legislator.

(c) The analogy borne to a law proper by a law which
; opinion imposes, lies maiuly in this point of resemblance : — -
In each case a rational being or beings are liable to con-
tingent evil, in the event of their nut compl}-ing with a
known or presumed desire of another. The analogy lies in
the resemblance of the improper sanction and duty to the
sanction and duty properly so called. That analogy is strong
or close. The delect which excludes the law imposed by
opinion from the rank of a law proper, merely consists in
this : that the wish or desire of its authors has not been

Objects mctapJioyically tcruicd Laivs.

77

Tlic (■onimon
ami negative
nature of
laws ineta-
lOidrical or
e.

A^^sjigXiified, antl tliat they liave no formed intention of
indicting evil or pain upon tliose wlio may break or trans-
gress it.

But, beside the laws improperly so called which are set
or imposed by opinion, there are others which are related to ;
laws proper by slender or remote analogies. I style these j
laws metaphorical, or laws merely metaphorical. The '■
analogies by which they are suggested are numerous and
diflerent, but these so-called laws have the following com-
mon and negative nature. — No property or character of any
metaphorical law can be likened to a sanction or a duty.
Consequently, every metaphorical law wants that point of
resemblance which mainly constitutes the analogy between
a law proper and a law set by opinion.

The most frequent and remarkable of those metaphoiical
applications is suggested by that uniformity, or that stability
of conduct, which is one of the ordinary consequences of a
law proper. We say, for instance, that the movements of f|f,'\,!JJ'b'''
lifeless bodies are determined by i^ertain Imcs : though, since examples,
the bodies are lifeless and have no desires or aversions, they
cannot be touched by aught which in the least resembles a
sanction, and cannot be subject to aught which in the least
resembles an obligation. We mean that they move in cer-
tain uniform modes, and that they move in those uniform
modes through the pleasure and appointment of God : just
as parties obliged behave in a uniform manner through the
pleasure and appointment of the party who imposes the law
and the duty. — Again : We say that certain actions of the
lower and irrational animals are determined by certain laics.
We mean that they act in certain uniform modes : and that,
since their uniformity of action is an effect of the Divine
pleasure, it closely resembles the uniformity of conduct
which is wrought by the authors of laws in those who are
obnoxious to the sanctions.* — In short, whenever we talk
of Icncs governing the iiTational world, the metaphorical
application of the term law is suggested by this double
analogy: 1. The successive and synchronous phenomena
composing the in-ational world, happen and exist, for the
most part, in uniform series : which uniformity of succes-
eion and coexistence resembles the uniformity of conduct

* Speaking with absolute precision, the lower animals, or I he
animals inferior to man, are not destitute of reason. Since their
conduct is partly determined b}' conclusions drawn from experience,
they observe, compare, abstract, and infer. But their intelligence
is so extremely limited, that, adopting the current expression, 1
style them irrational. Some of the more sagacious are so far frem
being irrational, that they understand and observe laws set to them
by human masters. But thes3 laws being few and of little im-
portance, I tlirow them, for the sake of simplicity, out of my account.
I say universally of the lower animals, that they cannot understand
a law, or guide their conduct by a dutj-.

78

Province of Jurispnidcnce.

Part I.
§1-

Laws nieta-
phorical or
Eoiurative
are often
blended and
confounded
with laws
imperative
aud proper.

Examples :
I. Ulpian.

produced by au imperative law. 2. That uniformity of
succession aud coexistence, like the uniformity of conduct
produced by an imperative law, springs from the will and
intention of an intelligent and rational author. When an
atheist speaks of laios governing the irrational world, the
metaphorical application is suggested by an analogy still
more slender aud remote than that which I have now ana-
lyzed. He means that the uniformity of succession and
coexistence resembles the uniformity of conduct produced
by an imperati\e rule. If, to draw the analogy closer, he
ascribes those laws to an author, he personiiies a verbal
abstraction, aud makes it play the legislator. lie attrilSutes
the uniformity of succession and coexistence to laics set by
nature : meaning, by nature, the world itself ; or, perhaps,
that very uniformity which he imputes to nature's com-
mands.

Many metaphorical applications of the term Unu or rule
are sugg'ested by the analogy following. — An imperative
law or rule guides the conduct; of the obliged, or is a norma,
model, or pattern, to which their conduct conforms. A
proposed guide of human conduct, or a model or pattern
olfered to human imitation, is, therefore, frequently styled
a Unv or rule of conduct, although there be not in the case
a shadow of a sanction or a duty.

For instance, we often speak of a law set by a man to
himself: meaning that he intends to pursue some given
course of conduct as exactly as he would pursue it if he
were boimd to pm-sue it by a law. He is not constrained
to observe it by aught that resembles a sanction. For
though he may iairly purpose to inflict a pain on himself, if
his conduct sliall depart from the guide which he intends it
shall follow, the infliction of the conditional pain depends
iipon his own will. — Again : When we talk of rules of art,
the metaphorical application of the term rules is suggested
by the analogy in question. By a rule of art, we mean a
prescription or pattern which is offered to practitioners of
an art. There is not the semblance of a sanction, nor is
there the shadow of a duty. But the oflered prescription
or pattern may guide the conduct of practitioners, as a rule
imperative and proper guides the conduct of the obliged.

The preceding disquisition on flgurative laws is not
superfluous. Figurative laws are not unfrequeutly mistaken
for laws imperative aud proper. Nay, attempts have
actually been made, and by writers of the highest celebrity,
to explain and illustrate the nature of laws imperative and
proper, by allusions to so-caUed laws which are merely such
through a metaphor.

For instance, an excerpt from Ulpian placed at the
beginning of the Pandects, and also inserted by Justinian
in the second title of his Institutes, a fancied jtis naturale,

Objects uictaphoyically tcniicd Laics. 79

couiiuon to all auiiuals, is tlius distiDguished I'loiii tkcjus Lect.

ntiturale or gentium to which I have adverted above. ^ Jus ^•

naturale eai, (\il\o([ natura omnia animalia docuit : nam jus ' '

istud non humani generis proprium, sed omniiun auimalimn,

quEB in terra, qute in mari nascuutur, avium quoque commune

est. Iliuc descendit maris atque feminte conjunctio, quam

nos matrimouium appellamus ; hinc liberorum procreatio,

hinc educatio : videmus etenim cetera quoque animalia, feras

etiam, istius jm-is peritia censeri. Jus gentium est, quo

gentes' humante utuntur. Quod a naturali recedere, inde

facile intelligere licet ; quia illud omnibus animalibus, hoc

solis hominibus inter se commune est.' The passage here

cited discloses a double contusion in the mind of the author,

namely, 1st, By the slender analogy above mentioned he is

misled into confounding the instincts of animals with laws.

2ndly. He confounds laws with certain motives or afi'ections

which are among the ultimate causes of laws. — I must,

however, remark that the jus quod natura omnia animalia

docuit is a conceit peculiar to Ulpian : and that this most

foolish conceit, though inserted in Justinian's compilations,

has no perceptible intiueuce on the detail of the Roman

Law. The jus naturale of the classical jiuists generally,

and the jus naturale occurring generally in the Pandects, is

equivalent to the natural law of modern writers upon jiu'is-

prudence, and is s^Tionymous with the jus gentium, or the

jus naturale et gentium, which I have akeady adverted to

(p. 51, ante). It means those positive laws and those rules

of positive morahty, which are not pecid-iar or appropriate

to any nation or age, but obtain, or are thought to obtain,

in all nations and ages : and which, by reason of their

obtaining in all nations and ages, are supposed to be formed

or fashioned on the law of God or Nature as known by the

moral sense. ' Omnes populi ' (says Gains), ' qui legibus et

moribus reguntm*, partim suo proprio, partim communi

omnium hominum jm-e utuntur. Nam quod quisque populus

ipse sibi jus coustituit, id ipsius proprium est, vocatm-que

jus civile 5 quasi jus propriimi ipsius civitatis. Quod vero

naturalis ratio inter omnes homines constituit, id apud omnes

populos peraeque custoditm*, vocatm-que jus gentium, quasi

quo jm-e omnes gentes utuntm*.' The universal leges et

mores here described by Gains, and distinguished from the

leges et mores peculiar to a particular nation, are styled

indifferently, by most of the classical ]m:is,\&, jus gentium,

jus naturale, or jus naturale et gentium. And the law of

nature, as thus understood, is not intrinsically absm'd. For

as some of the dictates of utility are always and everwhere

the same, and are also so plain and glaring that they hardly

admit of mistake, there are legal and moral rules which are

nearly or quite universal, and the expediency of which must

be seen by merely natural reason, or by reason without the

So

Province of Jurisprudence,

t. Montes-
quieu.

liglits of extensive experience and olDsciTation. The dis-
tinction of law and morality into natm-al and positive, is a
needless and futile subtilty : but is founded on a real and
manifest difference, and would be liable to little objection,
if it were not supposed to be the offsprin,2^ of a moral
instinct or sense, or of innate practical principles. But,
since it is closely allied (as I .shall show hereafter *) to that
misleading- and pernicious jargon, it ought to be expelled,
with the natural laiu of the moderns, from the sciences of
jm-isprudence and morality.

The following passage is the first sentence in Monits-
quieu's Spirit of Laics. ' Les lois, dans la signification la
p'ius etendue, sont les rapports necessaires qui derivent de la
natm-e des choses : et dans ce sens tons les etres ont leurs
lois : la Di^iuite a ses lois ; le moude materiel a ses lois ; les
intelligences superieures a rhonuue out leurs lois ; les betes
ont lem'S lois ; I'homme a ses lois.' Now objects widely
different, though bearing a common name, are here blended
and confoimded. The considerations which liave been
ali'eady stated are sufficient to suggest a criticism of the
passage which the student should, as a useful exercise, work
out for himself.

If you read the disquisition in Blackstoue on the nature
of laws in general, or the fustian description of law in
Hooker's Ecclesiastical Polity, you will find the same con-
fusion of laws imperative and proper with laws which are
merely such by a glaring perversion of the term. The cases
of this confusion are, indeed, so numerous, that they would
fill a considerable volume.

Physical or

natural

sanctions.

From tlie confusion of metaphorical witb imperative aud
proper laws, I turn to a mistake, somewhat similar, which, I
presume to think, has been committed by Bentham.

Sauctiouj^ proper and improper are of three capital
classes :— 4te sanctions properly so called which ar^ annexed
to the laws of Go^ : the sanctions properly so called, which
are aunexea to positive law_s : the sanctions properly so called,
and the closely analogous sanctions, which respectively en-
force compliance with positive moralrulgg. But to sanctions
religious, legal, and moral, this great philosopher and jurist
adds a class which he styles jV^ys/cff/ ov natural sanctions.

"When he styles these sanctions 2^^'psical, he does not
intend to intimate that these are the only sanctions which
affect the sufferers thi-ough means physical or material.
Any sanction of any class may reach the suffering party
through physical means.

The meaning annexed by Bentham to the expression
* physical sanction,' may, I believe, be rendered in the fol-

* Lcct. xxxii. post.

Declaratory Laivs, &c.

8r

lowing manner. — A physical sanction is an evil brought
upon the sufl'ering- party by an act or omission of his own.
For example : If your house be destroyed by fire through
3'our neglecting to put out a light, you bring upon yom'self,
by your negligent omission, a jyhysical or natural sanction:
supposing, I mean that your omission is not to be deemed
a sin, and that the consequent destruction of your house ia
not to be deemed a punishment iutlicted by the hand of the
Deity.

Such physical or natural evils are related by the following
analogy to sanctions properly so called. 1, When they are
actually suffered, they are sulfered b}' rational beings through
acts or omissions of their own. 2. Before they are actually
sufiered, or whilst they exist in prospect, they afiect the
wills or desires of the parties liable to them as sanctions
properly so called aft'ect the wills of the obliged. The parties
are urged to the acts which may avert the evils from their
heads, or are deterred from the acts which may bring the
e\'ils upon them.

But in spite of the specious analogy at which I have
now pointed, I dislike the application of the term sanction
to these physical or natural evils: 1. Because they are not
sufiered, by intelligent beings, as consequences of their not
comph'ing with desires of intelligent rational beings. 2. By
the term sanction, as it is now restricted, the evils enforcing
compliance with laws imperative and proper, or with the
closely analogous laws which opinion sets or imposes, are
distinguished from other evils briefiy and commodiously.
If the term were commonly extended to these physical or
natural evils, this advantage would be lost. The term would
then comprehend every possible evil w^hich a man may bring
upon himself by his own voluntary conduct.

I close my disquisitions on figurative laws, and on those
metaphorical sanctions which Bentham denominates^Viysico/,
with the following connected remark,

Declaratoiy laws, and laws repealing laws, ought in
strictness to be classed with laws metaphorical or figurative :
for the analogy by which they are related to laws imperative
and proper is extremely slender or remote. Laws of im-
perfect obligation (in the sense of the Roman jurists) are
laws set or imposed by the opinions of the law-makers,
and ought in strictness to be classed with rules of positive
morality. But though laws of these three species are
merely analogous to laws in the proper acceptation of the
term, they are closely connected with positive laws, and
are appropriate subjects of jurisprudence. I separate them
accordingly from the classes of improper laws to which in
Btrictness they belong.

e3

In strlctnoss,
decl«ratory
laws and lawa
repealing
laws ouglil
to lie classed
with laws
metaplioiinii
or figurative,
and laws oT
imperfect ob-
ligacion (in
tlie sense o£
the Iloman
jurists) Willi
rules of posi-
tive mural icy

82

^ Province of Jurisprudence,

%'^

r\

LECTURE VI.

Thedistin-
guisliing
msrks of
Bnvereignty
and inde-
pendent
political
Bociety.

The relation
of sove-
reignty and
subjection.

Strictly
spoaknig tlje
sovereitrii
iKirtion of tlie
eocletv, :ind
cot the

According to tlie purpose and order stated at tlie com-
mencement of these lectures, and adverted to in the last
preceding lecture (p. 62), I proceed to explain the marks
or characters which distinguish iwsitive laws from the
various related objects above described, and to analyze
certain expressions which are essential to that distinction.

(d) The essential difference of a positive law (or the differ-
ence that severs it from a law which is not a positive law)
may be stated thus. Every positive law, or every law simply
and strictly so called, is set by a sovereign person, or a sove-
reign body of persons, to a member or members of the
independent political societ}' wherein that person or body is
sovereign or supreme. In other words, it is set by a monarch,
or sovereign number, to a person or persons in a state of
subjection to its author.

It is therefore necessary to analyze the expression sovc-
reigntij, the correlative expression subjection, and the insepar-
ably connected expression independent 2)oliticcd society.

The superiority which is styled sovereignty, and the
independent political society which sovereignty implies, is
distinguished from other superiority, and from other society,
by the following marks or characters.- — 1. The bidk of the
given society are in a habit of obedience or submission to a
determinate and common superior : let that common superior
be a certain individual person, or a certain body or aggregate
of individual persons. 2. That certain individual, or that
certain body of individuals, is not in a habit of obedience to
a determinate human superior.

Or the notions of sovereignty and independent political
society may be expressed concisely thus. — If a determinate
human superior, not in a habit of obedience to a like superior,
receive habitual obedience from the bidk of a given society,
that determinate superior is sovereign in that society, and
the society (including the superior) is a society political and
independent.

To that determinate superior, the other members of the
society are subject : or on that determinate superior, the other
members of the society are dependent. The position of its
other members towards that determinate superior, is a state
of suljection, or a state of dependence. The mutual relatioii
which subsists between that superior and them, may be styled
sovereif/nty and subjection.

Hence it follows, that it is only through an ellipsis that
the society is styled independent. The party truly indepen-
dent (independent, that is to say, of a determinate human
superior), is not the society, but the sovereign portion of the

Independent Politieal Society.

^l

society. By ' an independent political society,' or ' an inde-
pendent and sovereign nation,' we mean a political society
consisting- of a sovereign and subjects, as opposed to a
political society consisting- entirely of persons in a state of
subjection.

In order that a ^ven society may form a society political
a*id independent, the two distinguishing marks which I have
mentioned above must unite. The generality of the given
society must be in the habit of obedience to a determinate
and common superior : whilst that determinate person, or
determinate body of persons, must not be habitually obedient
to a determinate person or body. It is the union of that
positive, with this negative mark, which renders that certain
superior sovereign or supreme, and which renders that given
society (including that certain superior) a societ}' political
and independent. I proceed to illustrate and explain the
marks which must so unite.

1. The generality or bulk of its members must be in a
habit of obedience to a determinate and common superior.

In case the generality of its members obey a determi-
nate superior, if the obedience be rare or transient, and not
habitual or permanent, the relation of sovereignty and sub-
jection is not created therebj^ between that certain superior
and the members of that given society. In other words, that
determinate superior and the members of that given society
do not become thereby an independent political society.

For example : In 1815 the allied armies occupied France;
and so long as the allied armies occupied France, the com-
mands of the allied sovereigns were obeyed by the French
govermneut, and, thi'ough the French govermnent, by the
French people generally. But since the commands and the
obedience were comparatively rare and transient, they were
not sufficient to constitute the relation of sovereignty and
subjection between the allied sovereigns and the members
of the invaded nation. In spite of those commands, and in
epite of that obedience, the French government was sove-
reign or independent. In spite of those commands, and
in spite of that obedience, the French government and its
subjects were an independent political society, whereof the
allied sovereigns were not the sovereign portion.

Now if the French nation, before the obedience to those
sovereigns, had been an independent society in a state of
nature or anarchy, it would not have been changed by the
obedience into a society political. And it would not have
been changed by the obedience into a society political, be-
cause the obedience was not habitual. For instance, while
Paris was in the hands of the Commune after the capitida-
tiou to the Germans in 1871, and although both the con-
tending parties obeyed occasional commands of the German
Bovereigu, it could scarcely be said that France including

society Itself
is indepen-
dent, sove-
reign, or
supreme.

In order that
a given
society may
form a society
political ano
independent,
the two dis-
tinguishing
marks which
are men-
tioned alx)V8
must unite.

84 Province of ynrisprndcnce.

Paris formed one political society, still less that France and
the German government formed a political society of which
the latter was sovereign.

2. In order that a given society may form a society poli-
tical, habitual obedience must be rendered, by the generality
or bulk of its members, to a determinate and common supe-
rior. In other words, habitual obedience must be rendered,
by the generality or hulk of its members, to one and the same
determinate person, or determinate body of persons.

For example : In case a given society be torn by intestine
war. and in case the conflicting parties be nearly balanirad,
the given society is either in a state of nature or is split up
into two or more independent political societies. If the-
bulk of each of the parties be in a habit of obedience to its
head, the given society is broken into two or more societies,
which, perhaps, may be styled independent political societies.
If the bullv of each of the parties be not in that habit of
obedience, the given society is simply or absolutely in a state
of nature or anarchy. It is either resolved or broken into its
indi\'idual elements', or into numerous societies of a size so
limited, that they could hardly be styled societies independent
and jwlitical. For, as I shall show hereafter, a given indepen-
dent society would hardly be styled i^olitical, in case it fell
short of a number which cannot be fixed with precision, but
which may be called considerable, or not extremely minute.

3. In order that a given society may form a society poli-
tical, the generality or built of its members must habitually
obey a superior determinate as well as common.

On this position I shall not insist here. For I have shown
1 sufficiently in my fifth lecture, that no indeterminate party
■ can command expressly or tacitly, or can receive obedience

or submission : that no indeterminate body is capable of

corporate conduct.

4. It appears from what has preceded, that, in order that
a given society may form a society political, the bulk of its
members must be in a habit of obedience to a certain and
common superior. But, in order that the given society may
form a society political and independent, that certain superior
must not be habitually obedient to a determinate human supe-
rior, lie may be habitually affected by so-called laws which
ojnnion sets or imposes, or may render occasional submission
to commands of determinate parties. But the society is not
independent, although it may be political, if that certain
superior habitually obeys the commands of a certain person
or body.

Let U3 suppose, for example, that a viceroy obeys habitu-
ally the author of his delegated powers. And, to render the
example complete, let us suppose that the ^^ceroy receives
habitual obedience from the generality or bulk of tlie persons
who inhabit his province. In such circumstances the viceroy

Indcpoident Political Society.

85

!3 uot sovereign withiu the limits of liia proviuce, nor are
lie and its inhabitants au independent political society. He
and through him the inhabitants of his province are in a
state of subjection to the sovereign of that larger society,
lie and the inhabitants of his pronnce are a society political
but subordinate.

A natural society, or a society in a state of natiu'e, is
composed of persons ^vho are connected by mutual inter-
course, but are not members, sovereign or subject, of any
society political. None of the persons who compose it live
in a state of subjection : all live in the negative state which
is styled a state of independence.

Considered as entire communities, and considered in
respect of one another, independent political societies live, it
is commonly said, in a state of nature. And considered as
entire cormuunities, and as connected by mutual intercourse,
independent political societies form, it is commonly said, a
natural society. To speak more accurately, the several
members of the several related societies are placed in the
following positions. The sovereign and subject members of
each of the related societies form a society political : but the
sovereign portion of each of the related societies lives in the
negative condition which is styled a state of independence.

Society formed by the intercom'se of independent political
societies, is the province of international law, or of the law
obtaining between nations. I'or (adopting a current ex-
pression) international law, or the law obtaining between
nations, is conversant with the conduct of independent
political societies considered as entire communities: circa
negotia et causas r/entium integrarum. Speaking with gi'eater
^irecision, international law, or the law obtaining between
nations, regards the conduct of sovereigns considered aa
related to one another.

And hence it inevitably follows, that the law obtaining
between nations is not positive law : for every positive law
is set by a given sovereign to a person or persons in a state
of subjection to its author. As I have abeady intimated,
the law obtaining between nations is law (improperly so
called) set by general opinion. The duties which it impo-ses-
are enforced by moral sanctions: by fear on the part of
nations, or by fear on the part of sovereigns, of provoldng
general hostility and incurring its probable e^ils in case they
shall violate maxims generally received and respected.

A society political but subordinate is merely a limb or
member of a society political anl independent. All the
persons who compose it, including the person or body which
is its immediate chief, live in a state of subjection to one
and the same sovereign.

Besides societies political and independent, societies in-
dependent but natiu'al, society formed by the intercourse of

A society
indepencirn
but natural.

Society
formed by tlie
intercourse of
independent
political
societies.

A society
political but
subordinate.

A society not
political, but
forming a

86

Province of Jurisprudence.

Tliedcflnition
of the

abstract term
iaiei^cndtiit
political
Siifieti/ (in-
cluding tbe
definition
of tlie corre-
lative terra
sovereignty)
cannot be
rendered in
expressions
of perfectly
precise
import,
and is there-
fore a fallible
test of
specillc or
particular
cases.

iiidepeudent political societies, and societies political but
subordiuate, there are societies consisting of subjects consi-
dered as private persons. — A society consisting of parents
and cbildreu, living in a state of subjection, and considered
in tbose characters, may serve as an example.

To distinguish societies political but subordinate from-
societies not political but consisting of subject members, is
to distinguish the rights and duties of subordinate political
superiors from the rights and duties of subjects considered
as private persons. And before I can draw that distinction,
I must anatyze many expressions of large and intricate
meaning which belong to the detail of jurisprudence. But
an explanation of that distinction is not required by my
present purpose, which is merely to determine the notion of
sovereignty, with the inseparably connected notion of inde-
pendent political society.

The definition of the abstract teim independent i^olitwal
societij (including the definition of the correlative term
sovereigntij) camiot be rendered in expressions of perfectly
precise import, and is therefore a fallible test of specific or
particular cases. The least imperfect definition which the
abstract term will take, would hardly enable us to fix the
class of every possible society. It would hardly enable us
to determine of every indejyendent society, whether it were
jwlitical or natural. It would hardly enable us to determine
of every jwlitical society, whether it were independent or
subordinate.

In order that a oiven society may form a society political
and independent, the positive and negative marks which I
have mentioned above must unite. The cjenerality or hulk
of its members must be in a Jtahit of obedience to a certain
and common superior : while that certain person, or certain
body of persons, must not be /tabitualli/ ohedieut to a certain
person or body, II; is obvious that the terms bidk or c/ene-
ralitij — habit and habitualhj — are so wanting in precision as
not always to fm-nish a certain test whether or not a given
society is independent.

I proceed to illustrate this. And fast as to the positive
test or mark of independent political society. — In some cases,
so large a proportion of the members obey the same superior,
and the obedience of that proportion is so frequent and
continued, that, without a moment's difficulty and without
a moment's hesitation, we should say that the fjeneralify of
its members were in a habit of obedience or submission to a
certain and common superior, and should accordingly pro-
uoimce the society jwlitical. Such, for example, is the ordi-
nary state of England, and of eveiy independent society
somewhat advanced in ci^ilization. In other cases, obedi-
ence to the same superior is rendered by so few of the
members, or general obedience to the same is so unfrequent

Independent Political Society. %'j

and broken, that, witlioiit a moment's difficulty and without
a moment's hesitation, we should pronounce the society
natural: we should say the f/encraliti/ of its members were
not in a habit of obedience to a certain and common superior.
Such, for example, is the state of the independent and savage
Bocieties which subsist by hunting or fishing in the woods
or on the coasts of New Holland.

But in the cases of independent society which lie between
the extremes, we should hardly find it possible to determine
with absolute certainty, whether the generality of its mem-
bers did or did not obey one and the same superior, or
whether the general obedience to one and the same superior
was or was not habitual. For example : During the height
of the conliict between Charles the First and the Parlia-
ment, the English nation was broken into two distinct
societies : each of which societies ijiay perhaps be styled
political, and may certainly be styled independent. After
the conflict had subsided, those distinct societies were in
their turn dissolved ; and the nation was reunited, under the
common government of the Parliament, into one independent
and political community. But at what juncture precisely,
after the conflict had subsided, were those distinct societies
completely dissolved, and tlie nation completely reunited
into one political community ? When had so many of the
nation rendered obedience to the Parliament, and when had
the general obedience become so frequent and lasting, that
the hulk of the nation were habitualbj obedient to the body
which aftected sovereignty ? And in the mean time wliat
was the class of the society which was formed by the Euglisli
people ? These are questions which it would be impossible
to answer with certainty, althoug-h the facts of the case were
precisely known.

Next, as to the negative mark of iudepeudeut political
Bociety. — Given a determinate and coimuon superior, and
also that the bulk of the societj' habitually obey that supe-
rior, is that common superior free from a hahii of obedience
to a determinate person or body ?

For example : Previously to the war of 18GG which ended
with Sadov\'a, the smaller German states which now form
part of the German Empire may be said to have been inde-
pendent. For although they obeyed the occasional coju-
raands of a superior, whether of Prussia, Austria, or the
Bund, it was not definitely ascertained to which of those
authorities obedience was due, still less can it be said of some
of these states (e.g. Saxony) that they were in the hahit of
obedience to a definite and certain superior. After the con-
clusion of the war of 1870-71, the smaller States comprised
in the German Empire can hardly be said to be independent.
But it would be difficult to state with precision the time at
which the hahit of obedience to the supreme federal

S8

Province of Jicrispnidence.

Part I.
§1-

In order that
an indepcii-
dent SDcii'ty
may form a
liociety politi-
cal, it must
nntfall slinrt
of a number
wlitcli cannot
bo fixed witli
precision, but
■vvliicli may be
called con-
siderable, or
not extremely
miuute.

Govcnimeut, whetlier under tlie uame of the North German
Coiifederatiou or the German Empire, became established.

The difficulties which I have laboured to explain, often
emhaiTass the application of those positive moral rules which
are styled international law.

For example : At the commencement of the war of
Secession in America, was the Union a Political Society ?
"Were the Seceding States rebels or Confederate Independent
States at war with the Union ? These were at the time and
long remained emban-assing and difficult questions to Go-
vernments who looked on from a distance.

This difficulty presents itself under numerous forms in
international law : indeed almost the only difficult and em-
baiTassing questions in tliat science arise out of it. And
law strictly so called is not free from like difficulties. "What
can be more indeiinite, for instance, than the expressions
reasonahle time, reasonahle notice, reasonable diligence ? than
the line of demarcation which distinguishes libel and lair
criticism ; or that which constitutes a violation of copy-
right ; or that degree of mental abeiTatiou which consti-
tutes idiocy or lunacy ? In all these cases, as in the case in
point, the "difficulty arises from the vagueness or iudefinite-
uess of the terms in which the definition or rule is ine^^tably
conceived.

I have tacitly supposed, during the preceding analysis,
that eveiy independent society forming a society political
possesses the essential property which I will now describe.

In order that an independent society may form a society
political, it must not ftill short of a number which cannot be
lixed with precision, but which may be called considerable,
or not extremely minute. A given independent society,
whose number may be called inconsiderable, is commonly
esteemed a natural, and not a jjolitical society, although the
generality of its members be habitually obedient or submis-
sive to a certain and common superior.

Let lis suppose, for example, that a single family of
savages lives in absolute estrangement from eveiy other
community. And let us suppose that the father, the chief
of this insulated family, receives habitual obedience from the
mother and children. Although the societ}- has all the marks
expressly mentioned in my definition, it would be ridiculous
to style such a society a society jwlitical and independent, the
father and chief a monarch or sovereir/n, or the obedient
mother and children sut^'fif^s. — 'La puissance politique' (says
]Montesquieu) ' comprend necessairement I'union de plusieurs
families.'

In the case of tribes such as those who live hy Iiunting
or fishing in the woods or on the coasts of New Holland ;
and those tribes of Indians who range the imsettled parts of
the North American continent, we should deny the title

Independent PoUtieal Soeiety.

89

^^

'iudepGudeut^;o//;!/cff/ society,' because tlie boud wliicli eon- Lf.ct.
nects the concjeries of families of wliicli they consist is too ^'i.

slight to say that they render Itahitual obedience to any cer- '" ' '
tain superior, although they may on occasions unite in
obedience to a leader for warlike purposes. If we admitted
the term ' independent political society ' to describe a society,
however small, which uiiited the conditions above mentioned,
we should say that these tribes consisted of a congeries of
independent political communities. They are, strictly speak-
ing, a congeries of groups having all the marks of indepen-
dent political societies except size. They are commonly
included in the expression natural society, although that
expression as above detiued strictly applies to a congeries of
independent units.

The lowest possible nmnber which will satisfy the con-
dition DOW under consideration cannot be fixed precisely.
But, looking at many of the commimities which commonly
are considered and treated as independent political societies,
we must infer that an independent society may form a
society political, although the number of its members ex-
ceed not a few thousaiills, or even a few hundreds. The
ancient Grison Confederacy (like the ancient Swiss Con-
federacy with. which the Grison was connected) was rather
an alliance or union of independent political societies, than
one independent community under a common sovereign.
Now the number of the largest of the societies which were
independent members of the ancient Grison Confederacy
hardly exceeded a few thousands. And the number of the
smallest of those numerous confederated nations hardly ex-
ceeded a few hundreds.

The condition immediately above considered, it will be
observed, introduces a fmllier element of vagueness into this
definition of independent political society, and adds to the
difficulties which, as I have already stated, are owing to
the vagueness of the terms necessarily employed.

But here I must briefly remark, that the property which
I have last described is not an essential property of subor-
dinate political society. If the independent society, of which
it is a limb or member, be a political and not a natural so-
ciety, a subordinate society may form a society political,
although the number of its members might be called extremely
minute. For example : A society incorporated bythe state
for political or public purposes is a society or body politic ;
although it may consist of a very small number of members. ,.^

Having tried to determine the notion of sovereigntj', Certain of uia

with the implied or correlative notion of independent poll- tue wrn'i"*^^

tical society, I will produce and briefly examine a few of the au'd of*i[?/<f '

definitions of those notions which have been given by writers implied or

of celebrity, orrelatlvo

90

Province of Jurisprudence.

Distinguishing political from natural society, Bentliam,
in Lis Fragment ou Gorernmeut, thus defines the former :
* When a number of persons (whom we may style subjects)
are supposed to be in the habit of paying obedience to a per-
son, or an assemUage of persons, of a Imown and ceitain
description (whom we may call governor or f/overnors), such
persons altogether (subjects and r/uvcrnors) are said to he in
a state oij^^liticcl society.' And in order to exclude from his
definition' such a society as the single family conceived of
above, he adds a second essential of political society, namely
that the society should be capable of indefinite dm-atioji. —
Considered as a definition of independent political society,
this definition is defective, by the omission of the negative
mark ; namely, that the sovereign is not habitually obedient
to another. It is also a defective definition of political so-
ciety in general. For before we can distinguish political
society from society not political, we must detenuine the
natm'e of those societies which are at once political and in-
dependent. For a political societj" which is not independent
is a member or constituent parcel of a political society which
is. The powers or rights of subordinate political superiors
are merely emanations of sovereignty,— particles of sove-
reignty committed by sovereigns to subjects.

According to the definition of independent political
society which is stated or supposed by Hobbes, in his
excellent treatises on government, a society is not a society
political and independent, unless it can maintain its inde-
pendence, against attacks from without, by its own intrinsic
or imaided strength. But as I have abeady remarked, this
can hardly be said of any existing society. The weaker of
Buch actual societies as are deemed political and independent,
owe theii' precarious independence to positive international
morality, and to the mutual fears or jealousies of stronger
communities. The most powerful of such actual societies
as are deemed political and independent, could hardly main-
tain its independence, by its own intrinsic strength, against
an extensive conspiracy of other independent nations.

In his gTeat treatise on international law, Grotius defines
sovereignty in the following manner. ' Summa jjotestas
civilis ilia dicitm', cujus actus alterius jmi non subsunt, ita
ut alterius voluntatis humana3 arbitrio irriti possint reddi.
Alterius cum dico, ipsmn excludo, qui summa potestate
utitm* ; cui voluntatem mutare licet.' Now, in order to an
adequate conception of the nature of international morality,
as well as in order to an adequate conception of the natm'e
of positive law, the positive as well as the negative of the
two essential marks of sovereignty, stated in my definition,
must be noted or taken into account. But the positive
essential of sovereign power is not inserted by Grotius iu

Independent Political Society.

9'

liis definition. And the negative essential is sttited inac-
curately. If, as the definition supposes, perfect or complete
independence be of the essence of sovereign power, there is
not in fact the human power to which the epithet sovereuin
will apply with propriety. Every p-overnment, let it he
never so powerful, renders occasional ohedience to commands
of other governments ; defers frequently to those opinions
and sentiments which are styled international law, and
defers habitually to the opinions and sentiments of its own
subjects. Not to be in the hahit of obedience to another
constitutes all the independence that a government can
possibly enjoy.

According to Von Martens of Gottingen (the writer on
positive international law already refen-ed to), ' a sovereign
government is a government which oiujht not to receive
commands from any external or foreign government.' — Of
the conclusive and obvious objections to this definition of
sovereignty the following are only a few. 1. If the defini-
tion in question applies to sovereign goveiTiments, it wiU
also apply to a subordinate government which holds its
power at the wiU of and as a trustee for its own sovereign.

2. "Whether a given government be or be not supreme, is a
question of fact. A government reduced to subjection is
actually a subordinate government, although, according to
the morality which obtains between states, it ouf/ht to be
sovereign or independent. 3. It cannot be affirmed absolutely
of a sovereign or independent government, that it ought not
to receive commands fi'om foreim or external governments.
Although the morality which actually obtains between states
as well as that international morality which is commended
by general utility forbids excessive intermeddling by inde-
pendent govermnents with other independent governments,
yet, according to both systems of morality, no independent
government ought to be fi-eed completely from the super-\-i-
sion and control of its fellows. 4. In this definition by Von
Martens (as in that which is given by Grotius) there is not
the shadow of an allusion to the positive character of
sovereignty. ^ y^

In order furtner to elucidate the nature or essence of
sovereignty, and of the independent political society which
sovereignty implies, I will make a few concise remarks upon
the following subjects or topics. — 1.' The various shapes
which sovereignty may assimie, or the various possible forms
of supreme government. * 2. The real and imaginary bounds
which limit, or are supposed to limit, the power of sovereisTis.

3. The origin of govermneut, with the origin of political
society : or the causes of the habitual obedience which is
rendered to the sovereign by the bulk of subjects.

Lhct.
VI.

i. Von Mar-
tens.

The ensuing
jiortion of the
present
lecture is
concerned
with the
following
topics. — 1.
The forms of
supreme
government.
2. The limits
of sovereign
power. 3.
The origin of
government.

92

Province of Jurisprudence.

'S.\&cs su-
preme go-
Ternment is a
monarchy
(properly so
called) or au
aristocracy
(in the

generic mean-
ing of the
expression).
In other
words it is a
government
of one, or a
Ki'Vernment
01 a number.

1. An independent political society is divisible into two
portions: namely, the portion of its members which is
sovereign or supreme, and the portion of its members which
is merely subject. I'or unless every member of a political
society were adult and of sound mind, it would be impos-
sible for the sovereignty to reside in all the members. The
existence of such a society is so improbable, that, with this
passing notice, I thi'ow the idea of it out of my account.

When the sovereign portion consists of a single member,
the supreme government is properly a monarchy, or the
sovereign is properly a monarch.* When the sovereign
portion consists of a number of members, the supreme
government may be styled an aristocracy (in the generic
meaning of the expression). And here I may brieily re-
mark, that a monarchy or government of one, and an
aristocracy or government of a nimiber, are essentially and
broadly distinguished by the following important diiference.
In the case of a monarchy or government of one, the'
sovereign portion of the community is simply or purely
sovereign. In the case of an aristocracy or government of a
number, that sovereign portion is sovereign as viewed from
one aspect, but is also subject as viewed from another.
Considered collectively, or considered in its corporate
character, that sovereign number is sovereign and indepen-

* In every monarchy, the monarch renders habitual deference to
the opinions and sentiments held and felt by his subjects. Ikit in
almost everv" monarchy, he defers especially to the opinions and sen-
timents, or he consults especialh' the interests and prejudices, of some
cspeciall}' influential though narrow portion of the community. If
the monarchy be military, of if the main instrument of rule be the
sword, this influential portion is the military class generally, or a
select body of the soldier}-. If the main instrument of rule be not the
sword, this influential portion commonly consists of nobles, or of
nobles, priests, and lawyers. For example : In the Roman world,
under the sovereignty of the princes or emperors, this influential
portion was formed by the standing armies, and, more particularly,
by the Praetorian guard : as, in the Turkish empire, it consists, or
consisted, of the corps of Janizaries. lu France, after the kings
had become sovereign, and before the great revolution, this influen-
tial portion was formed by the nobility of the sword, the secular
and regular clergy, and the members of the parliaments or higher
courts of justice.

Hence it has been concluded, that there are no monarchies properly
so called ; that every supreme government is a government of" a
number: that in every community which seems to be governed by
one, the sovereignty really resides in the seeming monarch or auto-
crator, with that especially influential though narrow portion of the
community to whose opinions and sentiments he especially defers.
This, though plausible, is an error, arising from a confusion of laws
properly so called with laws improper imposed by opinion. The
liabitual independence which is one of the essentials of sovereignty,
is merely habitual independence of laws imperative and proper. By
laws which opinion imposes, every member of every society is habit
uallv determined.

Forms of Supreme Govarnment.

93

dent. But, considered severally, the individuals and smaller
aggi'egates composing that sovereign number are subject to
tlie supreme body of which they are component parts.

Governments which may be styled aristocracies (in the
generic meaning of the expression) are not unfrequently
distinguished into the three following forms : namely, oli-
garchies, aristocracies (in the specific meaning of the name),
and democracies. If the proportion of the sovereign number
^to the number of the entire community be deemed extremely
small, the supreme government is styled an oligarchy. If
the proportion be deemed small, but not extremely small,
the supreme government is styled an aristocracy (in the
specific meaning of the name). If the proportion be deemed
large, the supreme government is styled liopular, or is styled
a democracy. But these three forms of aristocracy (in the
generic meaning of the expression) can hardly be distin-
guished with precision, or even with a distant approach to
it, and the line of demarcation, vague as it necessarily is,
shifts according to the prepossessions of the person who uses
the respective phrases.

The distinctions between aristocracies to which I have
now adverted, are founded on differences between the pro-
portions which the mmiber of the sovereign body may bear
to tlie number of the community.

Other distinctions between aristocracies are founded on
diflerences between the modes wherein the sovereign number
may share the sovereign powers.

For the sovereign number is commonly a mixed or
heterogeneous body, or a body of individual persons whose
political characters are different. And the various consti-
tuent members of the heterogeneous and sovereign body
may share the sovereign powers in any of infinite modes.

The infinite forms of aristocracy which result from those
infinite modes, have not been distinguished systematically
by generic and specific names. But some of them have
been distinguished broadly from the rest, and marked with
the common name of limited monarchies.

-" In all or most of the governments which are styled
limited monarchies, a single individual shares the sovereign
powers with an aggregate or aggi'egates of individuals : the
share of that single individual, be it greater or less, sur-
passing or exceeding the share of any of the other individuals
who are also constituent members of the supreme and
heterogeneous body. And by that pre-eminence of share
in the sovereign or supreme powers, and (perhaps) by pre-
cedence in rank or other honorary marks, that single indi-
vidual is distinguished, more or less conspicuously, from
any of the other individuals with whom he partakes in the
sovereignty. But he is not a monarch in the proper accep-
tation of the term. He is not sovereim, but is one of

Of surh dis-
tinctions
between
aristocracies
as are
founded on
differences
betwoen tlie
rrnportions
which tlie
number of
tlie sove-
reign body
may bear to
the number
of the co-ii-
munity.

Of such dis-
tinctions
between
aristocracies
as are
founded on
differences
between tlio
modes
wherein the
sovereign
number may
share the
soTereigu
powers.

Of»such
aristocracies
as are styled
limited
monarchies

94

Province of Jjirispn(dence.

Various
ineaiiings of
tlic following
terms: 1. The
term ' sove-
reign,' or ' *7ic
sovereign.'
2. The terra
' republic,' or
' common-
wealth.' 3.
The term
' state,' or
' the state.'
4. Tlie term
' nation.'

a sovereign nimilaer. Considered singly, he lives in a state
of subjection, and is subject to the sovereign body of which
he is merely a limb.

Limited monarchy, therefore, is not monarchy. It is
one or another of those intuiite forms of aristocracy which
result from the infinite modes wherein the sovereign number
may share the sovereign powers. And, like any other of
those infinite forms, it belongs to one or another of
those three forms of aristocracy which I have noticed in a
pre' eding paragraph.

^Vs meaning monarchical power limited by positive law,
tb( name limited 7?!(9?)ffrc7i?/ involves a contradiction in terms.
For a monarch properly so called is supreme, and supreme
power is incapable of lerjal limitation. It is true that the
power of an aristocracy, styled a limited monarchy, is
limited by positive morality, and also by the law of God.
But, the power of every government being limited by those
restraints, the name limited monarcJui, as pointing to those
restraints, is not a whit more applicable to such aristocracies
as are marked with it than to monarchies properly so called.
Its application too is capricious, and indeed is commonly
determined by a pm'ely immaterial circumstance : by the
nature of the title, or the natm-e of the name of office,
which that foremost member of the mixed aristocracy
happens to bear. For example : The title of (iaaiXng, res,
or kiuf/, is commonly borne by monarchs in the proper ac-
ceptation of the term : and since our own king happens to
bear that title, our own mixed aristocracy of king, lords,
and commons, is usually styled a limited monarchy. If his
share in the sovereign powers were exactly what it is now,
but he were called protector, president, or stadtholder, the
mixed aristocracy of which he is a member would probably
be styled a republic. And for such verbal difl^erences be-
tween forms of supreme government has the peace of man-
Idud been frequently troubled hj ignorant and headlong
fanatics.*

* The present is a convenient place for the followhig remarks
upon terms.

The term ' sovereign,' or ' the sovereign,' apphes to a sovereign
bodj' as Avell as to a sovereign individual. ' II sovrano ' and ' le
souverain ' are used by Italian and French writers -with this gencrio
and commodious meaning. ' Die Oi/vV/keit' (the person or body
over the community) is also applied indifferenll)", by Genuan writers,
to a sovereign individual or a sovereign number : though it not un-
frequentlj' signifies the aggregate of the political superiors who in
capacities supreme and subordinate govern the given society. But
though ' sovereign ' is a generic name for sovereign individuals and
bodies, it is not unfrequently used as if it were sv'noiiymous with
' monarch ' in the proper acceptation of the term. ' Sovereign,' as
well as ' monarch,' is also often misapplied to the foremost individual
member of a so-called limited monarchy.

' Kepublic,' or ' comm'"fflweaUh,' has the following amongst other

Forms of Supreme Government, &e.

95

To the foregoing brief analysis of tlie forms of supreme
government, I append a short examination of the four fol-
lowing connected topics. 1. The exercise of sovereign
powers, by a monarch or sovereign body, through political
suboixiinates or delegates representing their sovereign author.
2. The distinction of sovereign and other political powers
into legislative and executive. 3. The true natures of the
communities or governments which are styled by writers
on positive international law half-sovereign states. 4. The
natm-e of a composite state, or a supreme federal government :
with the nature of a sijstcm of confederated states, or a
pei-manent confederacy of supreme governments.

It is conceivable that in an independent political society
of the smallest possible magnitude, inhabiting a territory
of the smallest possible extent, and living under a monarchy
or an extremely narrow oligarch)', all the supreme powers
(save those committed to subjects as private persons) might
be exercised directly by the monarch or supreme body. But
by every actual sovereign (whether an individual or a
luimber), some of those powers are exercised thi'ough

meanings. — 1. Without reference to the form of tlie government, it
denotes the main object for which a government should exist ; — the
■\veal or good of an independent political society. 2. Without re-
ference to the form of the government, it denotes a society political
and independent. 3. Any aristocracy, or government of a number,
which has not acquired tlie name of a limited monarchy, is com-
monly styled a republican government, or, more briefly, a republic.
But the name • republican government,' or the name ' republic,' is
applied emphatically to such of the aristocracies in question as are
deemed democracies or governments of many. 4. ' IJepiiblic ' also
denotes an independent political society whose supreme government
is styled republican.

The meanings of ' state,' or ' the state,' are numerous and dis-
parate : of which numerous and disparate meanings the following
are the most remarkable. — 1. ' The state' is usually synonymous
with ' the sovereign,' the individual or body hearing the supreme
power. This is the meaning which I annex to the term, unless
I employ it expressly with a different inijwrt. 2. By the Roman
lawyers, the expression 'status reipublicre' seems to be used in two
senses: — it is either synonymous with ' republic,' in the first of the
four meanings enumerated above ; or it denotes the individual or
body which Is sovereign in a given society, together with the subject
individuals and subject bodies who hold political rights from that
.sovereign one or number. 3. Where a sovereign body is compounded
of minor bodies, or of one individual person and minor bodies, those
minor bodies are not unfrequently styled ' states' or ' estates.' 4. An
independent political society is often stj'led a 'state,' or a ' sovereign
and independent state.'

An independent political society is often styled a * nation,' or a
' sovereign and independent nation.' But the term * nation,' or the
term ' gens,' is used more properly with the following meaning. It
denotes an aggregate of persons, exceeding a single family, who are
connected through blood or lineage, and perhaps through a common
language. And, thus understood, a ' nation' or ' gens' is not ne-
cessarily an independent political society.

Of the exer-
cise of sove-
reign powers,
by a raonarcli
or sovereign
body, throucrh
political sub-
ordinates or
delegates
representing
their sove-
reign autlior.

o6 Province of Jiirispyjidcncc.

Pai;t I. political subordinates or delegates representing their so-
§ ^- vereign author. This is practically necessaiy for numerous
^'" ' reasons. For example : If the numher of "the society be

large, or if its territoiy be large, although its number be
small, the quantity of -work to be done in the way of
political government is more than can lie done by the
sovereign without the assistance of ministers. If the
society is governed by a popular body, especially if dis-
persed through a wide area, there is, by reason of the bulk
and dispersion of that body, some of the business of govern-
ment which cannot be done by the sovereign without the
intervention of representatives. Some of the business of
government also the body is prevented from performing by
the private avocations of its members.

In most or many of the societies whose supreme Govern-
ments are monarchical, oligarchical, or aristocratical (in
the specific meanino- of the name), many of the sovereign
powers are exercised by the sovereign directly. This is also
the case even in some of the societies whose supreme go-
vernments are popular. For example : In the democracies
of ancient Greece and Italy, the sovereign people or nimiber,
formally assembled, exercised directly many of its sovereign
powers. And in some of the Swiss Cantons whose supreme
governments are popular, the sovereign portion of the
citizens, regularly convened, performs directly much of the
business of government.

But in many of the societies whose supreme governments
are popular, the sovereign or supreme body (or any nmueroua
body forming a component part of it) exercises through
representatives, whom it elects and appoints, the whole, or
nearly the whole, of its sovereign or supreme powers. In
our own country, for example, the commons (a narao
specifically applied to those commoners who share the
sovereignty with the King and the Peers) exercise through
representatives the whole of their sovereign powers, except
their sovereign power of electing and appointing represen-
tatives to represent them iu the British Parliament.

"Where a sovereign body (or any smaller body forming a
component part of it) exercises through representatives the
whole of its sovereign powers, it may delegate its powers
in either of two modes. 1, It may delegate them subject
to a trust or trusts. 2. It may delegate them absolutely or
unconditionally, so that the representative body, during the
period for which it is elected and appointed, occupies com-
pletely the place of the electoral, and is invested completely
Avith the sovereign character of the latter.

For example : The commons delegate their powers to
the members of the commons' house, in the second of the
above-mentioned modes ; and (as it has been supposed) so
absolutelv that the commons' house mipht concm* with the

Lcs'islativc and Executive Poivers.

97

kinp: aud tlie peers in defeating the principal object of its
election, e.g. by passintr an Act extending its own duration
for twenty years. AVhen Parliament is dissolved, or the
period for which a member is elected expires, the delegated
share in the sovereignty reverts to the delegating body, so
far at least as regards the choice of new representatives.

If the commons, instead of delegating their powers in
the second of the above-mentioned modes, had delegated
them subject to a trust, that trust would have imposed
upon the representative body either a legal or a moral
obligation. That is to say, the trust would be enforced
either by legal or by merely moral sanctions. The repre-
sentative body would be bound by a positive law or laws :
or merely by a fear that it may offend the bulk of the
coimuunity, in case it shall break the engagement which it
has contracted with the electoral.!

This last is really the position occupied by the members
of the commons' house. Adopting the language of most of
the writers who have treated of the British Constitution, I
have supposed that the present parliament, or the parliament
for the time being, is possessed of the sovereignty. But,
speaking accurately', the members of the commons' house
are merely trustees for the body by which they are elected
and appointed : and, consequently, the sovereignty always
resides in the king and the peers, with the electoral body
of the commons. The supposition that the powers of the
commons are delegated absolutely to the members of the
commons' house probably arose from the following causes.
1 . The trust imposed by the electoral body upon the body
representing them in parliament, is tacit rather than express :
consequently the trust is general aud vague. The represen-
tatives are merely bound, generally and vaguely, to abstain
from any such exercise of the delegated sovereign powers
as would tend to defeat the purposes for which they are
elected and appointed. 2. The trust is simply enforced by
moral sanctions. In other words, that portion of constitu-
tional law which regards the duties of the representative
towards the electoral body, is positive morality merely.

From the exercise of sovereign powers by the sovereign
directly, and also by the sovereign through political subor-
dinates or delegates, I pass to the distinction of sovereign,
and other political powers, into such as are legislative, and
such as are executive or administrative'

It seems to be supposed by many writers, that legislative
political powers and executive political powers may be dis-
tinguished with an approach at least to precision : and that in
every society whose government is a government of a number,
the legislative sovereign powers and the executive sovereign
powers belong to distinct parties. According, for example,
to Sir William Blackstone, the legislative sovereign powers

Of the (lis-
tincMou
uf sove-
reign, and
other rolit'-
ral powers,
into such as
are legi»la-
tive, and such
as are execu-
tive or ad-
ministrative.

98 Province of jfurisprudeiicc.

reside in tlie parliament : that is to say, in tlio tripartite
sovereign body formed Ly the king;, the members of the
house of lords, and the members of the house of commons.
But, according to the same writer, the executive sovereign
powers reside in the Idng alon*..

Now, on a moment's consideration it will appear that the
distinction is not precise. So far as political powers can bo
described by the words ler/islative and executive in any
determinate meaning, that meaning must be this. Legisla-
tive powers are powers of establishing laws, and issuing
other commands ; administrative powers are powers of ad-
ministering or camdng into operation laws or otker
commands abeady established or issued. If this be the
meaning of the words, they cannot accurately describe two
opposed classes of sovereign powers. For a great part, of
the admimstration of existing law consists in vialdng Icncs.
For instance, the decree of a Com't of Justice is in many cases
a Imojyroper, laying down a rule, or prescribing to the parties
a course of conduct. And ihe judcpnent of a Com-t of Justice
in a particular case, so far as the Court (exercising delegated
powers of sovereignty) thereby intimate that they will in
futiu'e adhere to the 2}''ecedent established by the case, is
a law just as much as an Act of Parliament is a law. Rules
of procedure, too, laid down for the guidance of Com-ts of
Justice (whether made by the Courts themselves or by
Parliament) are at once laws, and means of administering
laws.

That the legislative sovereigTi powers and the executive
sovereign powers belong, in any society, to distinct parties,
is a supposition easily shown to be false by the following^,
amongst other, examples. 1. The power of making laws
subsidiaiy to the execution of other laws is seldom confined
exclusively either to what is commonly called the legislative,
or to what is called the administrative branch of govern-
ment. "Whether, therefore, this function be deemed legis-
lative or administrative, the fallacy of the supposition in
question is equally apparent. 2. In almost eveiy society,
judicial powers commonly esteemed executive or admini-
strative, are exercised directly by the supreme legislature.
The lionian emperors or jjrinces issued ]iot only edictal
constitutions, but decretcs or judgments. In libera rejmhlicd,
or before the ^-irtual dissolution of the free or popular
govermnent, the sovereign Roman people, then the supreme
legislature, was a High Court of Justice for the trial of
criminal causes. In this countiy the powers of supremo
judicatm'e inhering in the modern parliament consisting of
the Ling and the upper and lower houses have, I believe,
never been brought into exercise ; for in making the ex post
facto statutes called Acts of aftaimler, parliament is not
properly a Com't of Justice. But the ancient parliament,

Legislative and Executive Ponrrs. qq

formed by the Idim- and the barons, of which the modern is Lrct.
the offspring, was the ultimate court of appeal as well as the VI.
Sovereign legislature. The Scottish parliament retained its - ■ -'
character as" an original court of jurisdiction until a com-
paratively late period,* and retained its character as a court
of ultimate appeal (although not without controversy) t
up to the Union of the Kingdoms in 1707. To the present
time, important executive or administrative powers have
been exercised by each of the houses, in whom is vested,
conjointly with royalty, the greatest part, if not the whole,
of the sovereign powers. The House of Lords exercise juris-
diction as the ultimate court of appeal (although by the
Supreme Court of Judicature Act of 1873 a term has been
assigned to its functions as an English Court of Appeal) ;
anduntil the Parliamentary Elections Act, 1868, by which
the power of trying the validity of an election was com-
mitted to subordinate judges, that judicial power was
exercised by the lower house through a committee of its
membi^rs. 3. The sovereign administering the law through
subordinate courts of justice is the author of that measureless
Bvstem of judge-made law or rules of law made judicially,
which has' been established by those subordinate tribunals
as directly exercising their judicial functions. In this
countiT, where the rules of judge-made law hold a place of
almost paramount importance in our legal system, it can
hardly be said that Parliament (the so-called legislature) is
the author of those rules. It may, indeed, be said, that
Parliament by not interfering permits them to be made, and,
bv not repealing them by statute, permits them to exist,
lint, in truth. Parliament has no effective power of prevent-
ing their being made, and to alt«r them is a task which
often baffles the patience and slrill of those who can best
command parliamentaiy support. J

Of all the larger divisions of political power, that into

* At all events bo late as tlie institution of ' the Session' by
James I., in 1425.

t The process was called ' protestation for remeiil of law,' and
forms a curious episode in the history of the Scottish Bar. An ac-
count of it will be found in an address on the Historical Study of the
Law delivered to the Juridical Society of Edinburgli, in 1863, by the
Eight Hon. John Inglis, then Lord Justice-Clerk. (Blackwood and
Sons, Edinburgh and London, 18G3.)

{ Austin instances as legislative powers exercised by the king
and not by parliament, the power of making articles of war, and the
power exercised through subordinate judges of making rules of
procedure. But these are, at all events in the present day, not sove-
reign powers exercised independently of Parliament, but powers of
legislation formally delegated by Parliament, viz., by the annual
Mutinj' Act, and by the various statutes relating to Procedure. Of a
similar nature are various Orilers in Council, &c., &c., rrade under
authority of various Acts of Parliament. — R. C.
r2

100

Province of Jiirispnidence.

Division ol
j>olilical
powers into
E;iprenie and
Eubordinate.

The true
nature of
the roir.-
iiiunitics or
jjovcrntiicnts
whirl] arc
Hylrd by
writers on
International
law ho\(-

(tales.

aupreme and subordinate is perliaps tlie only precise one, and^
is possibly sometimes the one really present to the minds of.
those who speak of the distinction between lef/islative and
executive pon'ers as if it were a precise division. Supreme'
political powers are those, infinite in number and kind,
which, partly brought into exercise and partly lyin? dormant,
belong to a sovereign or state ; subordinate political powers
are those which are delegated to political subordinates, being
either persons merely subordinate or persons who are them-
selves immediate participants in the supreme powers.

There were formerly in Europe many of the communities
or governments which are styled by wiiters on positive
international law lialf-soi-ercifpi states. In consequence of
the mighty changes wrought by the French Revolution,
such communities or governments have wholly or nearly
disappeared : and they are here adverted to not so much for
their intrinsic importance as because the epithet half-
sovcreif/n obscures the essence of sovereignty and independent
political society, by suggesting the notion that these goveru-
inents are at once sovereign and subject.

According to writers on positive international law, a
government half or imperfectly sovereign has most of the
political and sovereign powers which belong to a supreme
government, and in particular in regard to its foreign
alliances and the making war or peace. But, notwithstand-
ing this, the government, or a member of the government
of another political society, has political power over it.
For example : In theGermanico-Roman Empire, the German
governments holding of tlie empire in capite were deemed
imperfectly so\"ereign in regard to that general govermnent
which consisted of the Emperor and themselves as forming
the Imperial Diet. For, although in their foreign relations
they were independent or nearly so, they were bound (in
reality or show) by laws of that general government ; and
the political communities in which they were half-supreme
were subject to the appellate jurisdiction of the imperial
tribunals.

Now every government which is deemed imperfectly
supreme will be found on analysis to be, in relation to the
government to which it is deemed to be half subject, in
one or another of the following predicaments. It is either,
1st, wholly subject; or, 2ndly. perfectly independent; or,
Srdly, in its own community it is jointly sovereign -wdth
the other, and is therefore a constituent member of a
government supreme and independent.

A government is in relation to another in the first of
those three predicaments, when the political powers of
the one government are exercised entu-ely and habitually at
the pleasure and bidding of the other. For instance,
the various so-called independent princes in India, from

A Supreme Federal Goveriunent.

loi

Vl ' Cape Comoriu to the Himalayas, from tlie Bay of Bengal
^P^ to the SiJlbglJiisSj fire in this position in relation to the
British grovernment of India. The power -which they
exercise over the people in their respective territories is
held virtually hy the ^vill of the Sirkar — the acknowledged,
paramount authority of the British government — and they
liabitually obey the commands of that government conveyed
through the British Superintendent or Kesideut. An instance
of a government standing in relation to another in the
. second of those predicaments is furnished by the Great
Frederic of Prussia, who, as prince-ele( tor of Brandenburg,
was deemed half or imperfectly sovereign in respect of his
feudal connection with the German empire. Potentially
and in practice he was thoroughly independent of the
imperial government. Being in the habit of tlirashing its
armies, he was not in a habit of submission to his seeming
feudal superior. Instances of governments standing to
another in the third predicament are furnished by tha
domestic governments of the communities now united under
the leadership of the King of Prussia as Emperor of Germany,
and by those British Colonies which possess independent
legislatures, in their respective relations to tlie Imperial
Government.

For the reasons above given, I believe that no govern-
ment is sovereign and subject at once : nor can be properly
styled half ox imperfecthj supreme.*

^ It frequently happens that one government, political and
sovereign, arises from a federal union of several political go-
vernments. By some of the writers on positive international
law, such a sovereign government is styled a composite state.
It would be more aptly, as well as more popularly, styled a
supreme federal (/overnment. It also frequently happens
that several independent political societies are compacted
by a permanent alliance. By some of these writers the

* The application of the epithet half-sovereign is capricious. For
example : No one has applied the term to those communities where-
in the Roman Catholic is the prevalent and established religion, and
where legislative and judicial powers are exercised b}' the Pope. It
seems to be supposed by tlie writers in question, that in every such
political community, either those powers are merely exercised by
the authoritjvof the domestic government, or the domestic govern-
ment and the Pope are jointly sovereign. On the former of those
suppositions the domestic government is perfectly sovereign; on the
latter the domestic government is a constituent member of a govern-
ment supreme anil independent. According, indeed, to some of such
\vriters, although those powers are not exercised by the permission
or authority of the domestic government, yet if the exercise be con-
fined to matters strictly ecclesiastical, the sovereignty of the do-
mestic government is not impaired. But those powers, whether in
matters ecclesiastical or not, are still legislative and judicial powers.
And how is it possible to distinguish matters which are strictly
ecclesiastical from those which are not?

A composite
state or a
supreme
federal
government
— A system
of confede-
rated state?,
or a per-
raaneuC con-
federacy of
supreme po-
TerumeDi*.

102 Province of Jurispriuhmce.

several societies or governments so compacted are styled a
system of confederated states. But they might be more
aptly styled a 2}en)ianent confederacy/ of supreme yovcrn-
ments.

I advert to the uatm'e of a so-called composite state,
and to that of a system of confederated states, 1st, in order
to show that the former of these objects is uo exception
to the rule that in an independent political society the
sovereign is either one individual or one body of individuals ;
and, 2ndly, in order to obviate the confusion which is apt
to arise from the fallacious resemblance which exists between
these widelj'-dilierent objects.

1. In the case of a so-called composite state or supreme
federal government it will easily be seen that the common
or general government is not sovereign or supreme ; and
also that no one of the several governments is sovereign or
supreme, even in the general society of which it is the
immediate chief. For if the general government were
supreme, each of the several governments considered in
that character would be pm-ely subordinate. And if the
several governments were severally sovereign, they would
not be members of a composite state, although, as I shall
show presently, they would form a system of confederated
states.

The sovereigTity of each of the united societies, and
also of«the larger society, arising from the union of all in fact,
resides in the united governments as forming one aggregate
body ; that is to say, as signifying their joint pleasure or the
joint pleasm-e of a majority of their number agreeably to the
form determined by the federal compact. By that aggregate
body the powers of the general government were conferred
and determined; and by that aggTegate body its powers
may be revoked, abridged, or enlarged. By the same
aggregate body, also, the powers of the several governments
forming its constituent members are confeiTed, and may
be revoked, abridged, or enlarged. For the powers of the
general government are so many powers subtracted from
the powers of the several governments ; and, therefore,
when that is determined these are deducible by necessaiy
inference.

To illustrate the nature of a supreme federal govermuent,
I will add the following remark. Neither the inunediate
tribunals of the coimnon or general government, nor the
immediate tribunals of the several or domestic governments,
are bound or empowered to execute every command
that the general government may issue. The political
powers of the common or general government are merely
those portions of their several sovereignties which tliA
several governments, as parties to the federal compact, liavo
relinquished and conferred upon it. The competence of

A System of Confederated States. 103

the general govermneut to make laws and to issue other
oormnands may and ought to he examined hy its own
immediate trihunals, and also hy the domestic trihunals
of the several governments. And if, in making a law or
issuing a command, the general government exceed the
limited powers which it derives from the federal compact,
hoth the tribunals of the general government and of the
se\'eral governments are empowered and bound to disobey.

The supreme govermuent of the United States of
'America agrees (I believe) with the foregoing general de-
scription of a supreme federal government. I believe that
the common govermuent, or the government consisting of
the Congress and the President of the United States, is
merely a subject minister of the united states' governments.
I believe that no one of the latter is properly sovereign or
supreme, even in the state or political society of which it
is the immediate chief. And, lastly, I believe that the
sovereigTat<y of each of the states, and also of the larger
state arising from the federal union, resides in the states'
govermuents as forming one aggreijate hvdy : meaning hy a
state's government, not its ordinary legislature, hut the hody
of its citizens zv/iich appoints its ordinary legislature, and
tv/iich (the union apart) is jn'operly sovereign therein. If the
several immediate chiefs of the several united states were
respectively single individuals, or were respectively naiTow
oligarchies, the sovereignty of each of the states, and also
of the larger state arising from the federal union, Avould
reside in those several indiAiduals, or would reside in those
several oligarchies, as forming a collective icttole*

2. A system of confederated states is broadly distinguished
from a composite state or supreme federal government by
the following essential difierence. In the case of a compo-
site state, the several united societies form one independent
society or are severally subject to one sovereig-n body. In
the case of a system of confederated states, each of the
several societies is an independent political society, and each
of their several governments is properly sovereign or
supreme. Although the aggregate of the several govern-
ments was the fi-amer of the federal compact and may
subsec[ueutly pass resolutions concerning the entire con-
federacy, neither the terms of that compact nor such
subsequent resolutions are enforced in any of the societies
by the authority of that aggxegate body. They owe their

* It will be recollected tliat the lectures (from -which the above
paragraph is transcribed entire) were delivered in 1830—1832, long
before the war of 1860-61, the result of which was to give a new and
very conclusive demonstration of the sovereignty of the Union, which
is here maintained by Austin to have been the intention of the
founders, on a true construction of the written Constitution framed by
deputies from the several states in 1787. — K. 0

r04 Province of yiirispnidcncc.

legal effect) in any one of those several societies, to law8
and other commands which the government of that society
makes or fashions upon them, and which of its own
authority it addresses to its own subjects. In short, a
system of confederated states cannot be distinguished by
any definite mark from a number of independent govern-
ments connected by an ordinary alliance. All that can be
said is, that the compact is intended to be permanent, and
that the ends and pm-poses of the compact are mor^^
numerous and complicated than those of a simple alliance.

I believe that the German Bund ox Confederation, whjcli
succeeded to the ancient Empire, was merely a system of
confederated states ; that the L)iet of that period was merely
an assembly of ambassadors from several confederated but
severally independent governments ; and that the resolutions
of the Diet were merely articles of agxeement spontaneously
adopted by each of the confederated governments, and
which owed their legal effect in any one of the several com-
pacted societies merely to laws and commands fashioned ou
them by its own domestic sovereign. The Diet, as such,
never really possessed any power of enforcing its own
decrees. What was called federal execution took place
merely when Prussia or Austria, or both, with such of the
smaller states as chose or were influenced by fear or example
of the stronger power, found it convenient to unite and
enforce a conunand in conformity with the resolution of
the Diet.

The nature of the Bund is strongly illustrated by the
events which preceded its breaking up in 18(16. The sub-
sequent development of the North German Confederation
and its transformation by the course of events into a com-
posite state, under the leadership of the King of Prussia
(with the title of the Emperor of Germany), are matters
fresh in the recollection of everyone, and further illustrate
the broad difference between the two classes of objects here
considered.

The Swiss Confederation may probably be classed as a
system of confederated states. The ciiterion always is,
whether the federal government enforce their own resolu-
tions, in which case the aggTegate body is sovereign ; or
whether those resolutions are only carried out by command
issued and enforced at the will and by the power of the
several governments, in which case there is merely a con-
federacy (more or less permanent) of supreme governments.
For the purpose of national defence, doubtless the Swiss
confederacy is very close and likely to be lasting. But its
permanence seems rather to depend on the imanimity of
the several governments in regard to that object than on
any recognised power in the general government to coerce
any smgle community. This instance, however, is one that

TJic Limits of Sovereign Povjcr.

105

illustrates the ditricidty of drawiug a precis
cation l)et:ween<tbe two classes of objects.

line of demar-

From the vaiious possible forms of supreme government,
^5 T proceed to the limits, real and imaginary, of sovereign
power.

The essential difference of a positive law may be put

tlius : — It is set directly or circuitously by a monarch or

sovereign member to a member or members of the indepen-

- dent political society wherein that person or body ia

sovereign or supreme.

It fcllowd that the power of a monarch properly so
called, or the power of a sovereign number in its collegiate
and sovereign capacity, is incapable of /pr/ffHimitation. For
a monarch or sovereign number bound by a legal duty
would be subject to a higher or superior sovereign: — contrary
to the h}-pothesis involved in the definition of the terms
monarch and sovereign nmuber.

And every political society must have a sovereign (one
or a number) freed from Icxjal restraints. For if the society
is subject to a pei-son or body not freed from-^egal restraints,
that person or body^iust be subject to another person or
bodv, and so on in a series of human authorities, which
must terminate, and must therefore terminate in a person or
bodv who is freed from legal restraint, and is sovereign.

Monarchs and sovereign bodies have attempted to oblige
themselves or to oblige the successors to their sovereign
powers. But, in spite of such attempts, the position that
sovereign power is incapable of legal limitations holds
without exception.

The author of a law of the kind, or any of the sovereign
successors to that immediate author, may abrogate the law
at pleasm'e. And if the law be not abrogated, the sovereign,
for the time being, is not constrained to observe it by any
legal sanction. If he were, he would be in a state of
subjection — contra hypothesen.

As regards the author of a law pui-porting to oblige the so-
vereign, such a law is merely a law by a metaphor, being only
a principle assumed for the guidance of his own conduct. As
regards his successor?, it amounts at most to a rule of positive
morality, the quasi sanction being the opinion of those who
revere the memory of the author, or admire (rightly or
wrongly) the principle of the so-called law. If that is a
good principle, its violation by the sovereign may be not
only a breach of positive morality, but a sin ; it cannot be
a breach of legal duty.

For example: The sovereign Homan people solemnly

voted or resolved that they would never pass or even take

into consideration what I will venture to denominate a hill

, of i^ains and penalties. This solemn resolution or vote was

F 3

The limits ol

sovereign

power.

Tlie essential
dilfereiire y|
a poaitivo
law.

It follows
from tlio
essential
difference of
a positive
law and fror.x
the nature of
sovereignty
and indepen-
dent politi-
cal socicty
that sove-
reign power
l3 incapable
of legal
limitation.

Attempt? of
sovereis-'MS to
oblige tiiom-
selves or to
oblige
the succes-
sors to their
sovereign
powers.

io6

Province of Jurispnidcncc.

Part I.

§1-

The mean-
ings of the
epitliet Uii-
constilii-
tional, as it is
rontradis-
tiiiguislied to
the epithet
illegal, and as
it is applied
to conduct of
a monarch, or
to conduct of
a sovereign
number in its
collegiate
and sove-
reign
capacity.

passed with tlie forms of legislation, and was iuserted in
the Twelve Tables iii the following imperative terms: —
lirivilcyia ne irroyanto. But although the resolution or vote
was passed with the forms of legislation, it scarcely was a
law in the proper acceptation of the term, and certainly
was not a law simply or strictly so called. By that resolu-
tion or vote, the sovereign people adopted, and commended
to their successors in the sovereignty, an ethical principle or
maxim which (admirable as it is) could not legally bind
the then present or any futm'e sovereign. If the supreme
government for the time being had afterwards passed a law
or command infringing on the principle, the Roman tribunals
could not have treated such a law or command as not
legally binding.

Again : By the authors of the Union between England
and Scotland an attempt was made to oblige the legislatiu-e
which, in consequence of that union, is sovereign in both
countries. It is declared in the Articles and Act of Union,
that the preservation of the Chiu-ch of England and of the
Kirk of Scotland is a fundamental condition of the union.
Now, so long as the buUs: of either nation shall regard its
established chm-ch with love and respect, the abolition of
that church by the British Parliament would be au inunonil
act, for it would violate the positive morality \vhich obtains
with the bulk of the nation aft'ected by the change. Sup-
posing the abolition to conflict with the law of God, either
as revealed or commended by general utility, the act would be
a sin. But assuming, what will scarcely be denied, that the
parliament for the time being is sovereign both in England
and Scotland, no man, talldug with a meaning, would call
a parliamentary abolition of either or both of the chm'chea
an illegal act. The condition which affects to confer
immortality upon those ecclesiastical institutions is not a
positive law, but is comisel or advice offered by the authors
of the union to future supreme legislatm-es.

By the topic lastly above discussed, I am led to con-
sider the meanings of the epithet unconsfitutional, as applied
to conduct of a monarch, or to conduct of a sovereign
number in its collegiate and sovereign capacity. This
epithet as tiius applied, and as opposed to the epithet 'eV/^'^w/,
is sometimes used with a more general and vague, and some-
times with a more special and dehnite meaning. I will
begin with the former.

1. In almost every independent political society, there -^^
are principles or maxims expressly adopted or tacitly accepted
by the sovereign, and which the sovereign habitually ob-
serves. The cause of this observance commonly lies in the
regard which is entertained for those principles or maxims
by the bulk or most influential part of the couununity ; or il
may be that those principles or maxims have been adopted

Meaning of the l^ciin ' UnconstitntioiiaU 107

from a perception of utility or from a belief of tlieir cou- Lect.
formity to tlie Divine ^\'ill, or lastly they may Lave had an VI.

origin which affords no valid reason for their continuance. A ^ " '
law is said to be unconstitutional in the more general sense
if it conflicts with these principles or maxims. I'or example :
'Iho ex post facto statutes which urestyled Acts of Attainder,
may he called unconstitutional, though they cannot be called
illegal. For they conflict with a principle of legislation
which parliament has habitually observed, and which is re-
garded with approbation by the bulk: of the British com-
munity.

In shert, when an act of a sovereign is styled unconsti~
tutional in that^more general sense of the word, what is
meant is, I believe, this : That the act is inconsistent with
some given principle or maxim : that the given supreme
government has expressly adopted the principle, or, at least,
has habitually observed it, and that the principle is coufoi'm-
able to the general opinion and sentiments of the community
which are shocked by the act in question : or that the
principle is useful and the act pernicious : or that the
principle is approved and the act disliked by the speaker,
without any reason of which he can give an account.

2. The epithet unconstitutional as applied to conduct of
a sovereiga, and as used with the meaning which is more"'
special and definite, imports that the conduct in question
conflicts with constitutional laiv.

By the expression constitutional law, I here mean the
positive morality, or the compound of positive morality and
positive law, which determines the character of the person,
or the respective characters of the persons, in whom, for the
time being, the sovereignty shall reside : and which, more-
over, supposing the government in question an aristocracy or
government of a number, determines the mode wherein the
sovereign powers shall be shared by the constituent members
of the sovereign mmiber or body.

Now, against a monarch properly so called, or against a
sovereign body in its collegiate and sovereign capacity, con- "
stitutioual law, whether expressly adopted by the sovereign
or his predecessors or not, is positive morality merely :
though, as I shall show hereafter, it may amount to positive
law, or may be enforced by legal sanctions, against the
members of the body considered severally. Consequently,
although an act of the sovereign which violates constitu-
tional law, may be st^-led with propriety iinconstitutional,
it is not an iufriugeiBent of law simply and strictly so called,
and cannot be styled with propriety illegal.

For example : From the ministry of Cardinal Richelieu
down to the great Eevolution, the king for the time being
was virtually sovereign in France. But, in the same country,
and during the same period, a traditional maxim cherished

log

Province of ynrisprudence.

by tlie courts of justice, and rooted in the aflections of the
bullv of tlie people, determined the succession to the throne
agreeably to the canon of inheritance which was named
the Salic law. Now, in case an actual king, by-'q, royal
ordinance or law, had attempted to divert the throne to his
only daughter and child, that royal ordinance or law might
have been styled with perfect propriety an nnconstifutional
act. But iilef/al it could not have been called : for, inas-
much as the actual Icing was \drtually sovereign, he was
inevitably independent of legal obligation.

Again : An Act of the British parliament vesting thc-so-
vereignty in the king, or vesting the sovereignty in the king
and the upper or lower house, would essentially alter the
structiu-e of our present supreme government, and might
therefore be styled with propriety' an unconstitutional law.
But to call it illefial were absurd : for if the parliament foK
the time being be sovereign in the United Kingdom, it is
the author, directly or circuitously, of all our positive law,
and exclusively sets us the measure of legal justice and
injustice.*

"Wlien I affirm that the power of a sovereign is incapable
of legal limitation, I always mean by a ' sovereign,' a mon-

Tlie meaning
f.l Hobbes'
prnposition
that ' no law
oaii be un-
just.'

Ju^t or un-
just, jnsUce
or injustice,
are terms of
relative and
varying
import.

* It is affirmed by Hobbes, in his masterly treatises on govern-
ment, that ' no law can liq ii"j"g^ : ' which proposition has been
deemed by many an immoral or pernicious paradox. If we look at
the scope of the treatises in which it occurs, or even at the passages
by which it is immediately followed, we shall find that the propo-
sition is neither pernicious nor paradoxical, but is merely a truism
put in unijuarded terms. His meaning is obviously this : that ' no
pasitive law is legally unjust.' And the decried proposition, as thus
understood, is indisputably true.

Just or unjust, justice or injustice, arc terms of relative and vary-
ing import. When uttered with a determinate meaning, thej- are
uttered with relation to a determinate law which the speaker
assumes as a standard of comparison. This is hinted by Locke in
the i^assage referred to at the end of ray fifth lecture ; and it is,
indeed, so manifest, on a little sustained reflection, that it hardlj'
needs the authority of that great and venerable name. If positive
law be taken as the standard of comparison, it is manifest that a
positive law cannot be unjust. For that were equivalent to saying
that it would be found unequal to itself used as a measure.

ThoxTgh signifying conformity or non-conformity to any deter-
minate law, the terms justice or injustice sometimes denote empha-
tically, conforniit}' or nonconformity to the ultimate measure or
test :"namely, the law of God. This is the meaning annexed to
jMS</ce, when law and justice are opposed : when a positive human
tule is styled unjust. And when it is used with this mcan'mg. justice
is nearly equivalent to cieneral utility. The only difference between
them consists in tliis : that, as agreeing immediately with the laiu
of God, a given and compared action is just ; whilst, as agreeing
immediately with the principle which in the index to the law of
God, that given and compared action is generally useful. And hence
it arises, that when wo style an action just or nnjust, we not un
commonly mean that it is generally useful or pernicious.

I'Jic Limits of Sovereign Poivcf.

109

nrcli properly so called, or a sovereign nuniLer in its collegiate
auii sovereign capacity. Considered collectively, or con-
sidered in its corporate cliaracter, a sovereign number is
sovereign and independent: but, considered severally, tlie
individuals and smaller aggregates composing that sovereign
number are subject to tbe supreme body of which they are
component parts. Consequently, though the body is ine^•i-
tably independent of legal or political duty, any of the indi-
viduals or aggregates whereof the body is composed ma}- bo
legally bound by laws of which the body is the author." If
a law set by the body to its meiiibers, e^'en as members of
the sovereign body, is clothed with a legal sanction, or the
means of enforcing it judicially are provided by its author,
it is properly a positive law. If it regards the constitution
or structure of the given supreme government, a breach of
the law, by the party to whom it is set, is not only uncon-
stitutional, but is also illegal. The breach of the law is un-
constitutional, inasmuch as the violated law regards the con-
stitution of the state. The breach of the law is also illegal,
inasmuch as the violated law may be enforced by judicial
procedure.

In fixct or practice, the members considered severally,
but considered as members of the body, are commonly free,
wholly or partially, from legal or political restraints. For
example : The Idng, as a limb of the parliament, is not re-
sponsible legally, or cannot commit a legal injury : and, as
partaking in conduct of the assembly to which he immedi-
ately belongs, a member of the house of lords, or a member
of the house of commons, is not amenable to positive law
But though this freedom from legal restraints may be highlj'
useful or expedient, it is not necessarj' or inevitable. Con-
sidered severally, the members of a sovereign body, be they
individuals or be they aggregates of individuals, may clearly
be legally amenable, even as members of the body, to laws
which the body imposes.

And here I may remark, that if a member considered se-
verally, but considered as a member of the body, be wholly
or partially free fi'om legal or political obligation, that
legally irresponsible aggregate, or that legally irresponsible
indindual, is resti'ained or debarred in two ways from an
unconstitutional exercise of its legally unlimited power. 1.
liike the sovereign body of which it is a member, it is
obliged or restrained morally : — by opinions and sentiments
current in the given community. 2. If it aflected to issue
a command which it is not empowered to issue by its con-
stitutional share in the sovereignty, that command would
not be legally binding. Nay, the persons whom it com-
missioned to execute the unconstitutional command, would
probably be amenable to positive law, if they tried to ac-
complish their mandate. For example : If the king or eithei

Considered
severally,
tlie members
of a sove-
reign body
are in a state
of suhjsctioii
to the body,
and may
tberefore bo
legally
bound, evera
as members
of the body,
by laws of
which it is
the author.

no

Province of ynrispnidcnce.

Pact I.
SI-

A'pvarcnt
exception ia
certain
societies
wliere tlie
government
is styled a
liniiteii
monardiy.

of the houses, by way of proclamation or ordinance, affected
to establish a law equivalent to an act of parliament, the
pretended statute would not be legally binding, and dis-
obedience to the pretended statute woiUd therefore not be
illegal. And although the king or the house would not be
responsible legally for this supposed violation of constitu-
tional law or morality, those whom the king or the house
might order to enforce the statute, would be liable civilly or
criminally, if they attempted to execute the order.

And this leads me to explain an apparent exception to
my proposition that, considered severally, all the individuals
and aggregates composing a sovereign nimiber are subject to
the supreme body of which they are component parts ; and
to show that the apparent exception is not a real one. In
some of the mixed aristocmcies which are styled limited
monarchies, the so-called limited monarch is exempted or
absolved completely from legal or political duty. For ex-
ample : According to a maxim of the English law, the king
is incapable of committing wrong : that is to say, he is not
responsible legally for aught that he may please to do, or for
any forbearance or omission.

But though he is absolved completely from legal or
political duty, it cannot be thence inferred that the king is
sovereign or supreme, or that he is not in a state of subjec-
tion to the sovereign or supreme parliament of which he is
a constituent member.

Of the numerous proofs of this negative conclusion, which ^
it were easy to produce, the following will amply suffice. —

1. Although he is free in fact from the fetters of positive
law, he is not incapahle of legal obligation. A law of the
sovereign parliament, made with his own assent, might ren-
der himself and his successors legally responsible. — 2. If he
affected to transgress the limits which the constitution has
set to his authority, disobedience on the part of the governed
to his unconstitutional commands, would not be illegal :
whilst the ministers or instruments of his imcoustitutional
commands, would be legally amenable, for their imcoustitu-
tional obedience, to laws of that sovereign body whereof he
is merely a limb. — 3. He habitually obeys the laws set by
the sovereign body of which he is a constituent member.
If ho did not, he must speedily j'ield his office to a less re-
fractory successor, or the British constitution must speedily
expire. If he habitually broke the laws set by the sovereign
body, the other members of the body would probably devise
a remedy : though a prospective and definite remedy, fitted
to meet the contingency, has not been provided by positive
law, or even by constitutional morality. But in all these
points the king difiers from a sovereign properly so called.
For — 1. The sovereign is hicapahle of legal obligation. ^

2. The subjects are bound to obey its commands, and the

Free and Despotic Govcrnviaifs.

TIT

ence between
free and
despotic
govcrii-
meut3.

ministers executing tliem are absolved by tlie command from
legal liability to any person who may feel ap'giieved b}' reason
of such, execution.- — 3. The sovereign cannot habitually
obey the commands of another determinate body.

But if sovereign or supreme power be incapable of legal The nature
limitation, or if every supreme government be legally abso- cfvu°iibertj°'^
lute, wherein (it may be asked) doth political liberty consist, together ^
and how do the supreme governments which are commonly posed differ-
deemed free, diifer from the supreme goverimients which
are commonly deemed despotic ?

I answer, that political or civil liberty is the liberty from
legal obligation, which is left or gi-auted by a sovereign
government to any of its own subjects : and that, since the
power of the government is incapable of legal limitation,
the government is legally free to abridge their political li-
berty, at its own pleasure or discretion.

Political or civil liberty has been erected into an idol,
and extolled with extravagant praises by doting and fanatical
worshippers. But political or civil liberty is not more
■worthy of eulogs- than the political or legal restraints which
are implied by the words -oAu- and ciiitas. The final cause
or piu-pose for which government ought to exist, is the
furtherance of the common weal to the gi-eatest possible
extent. , And it must attain this purpose not less by im-
posing restraints than by confening rights or liberties. As
I shall show hereafter, political or cinl liberties rarely exist
apart from coiTesponding legal restraints. Where persons
in a stitte of subjection are free from legal dtities, their
liberties (generalh' speaking) would be nearly useless to
themselves, unless they were protected in the enjoi,-ment of
theii" liberties, by having legal rights (importing legal duties
on their fellows) to those political liberties which are left
them by the sovereign government. * I am legally free, for
example, to move from place to place, in so far' as I can
move from place to place consistently with my legal obli-
gations : but this my political liberty would be but a sorry
libei'ty, unless my feUow-subjects were restrained by a
political duty from assaulting and imprisonmg my body.

• Politick or civil liberties are left or granted by sovereigns, iu
two ways; namely, through pennissions coupled with commands,
or through simple permissions. If a suljject possessed of a liberty
be clothed with a legal right to it, the liberty was granted by the
sovereign through a permission coupled with a command : a per-
mission to the subject who is clothed witli the legal right, and a
command to the subject or subjects who are burthened with the
relative duty. But a political or civil libert}- left or granted to a
subject, may be merely protected against his fellows by religious and
moral obligations. In ether words, the subject possessed of the
political liberty may not be clothed with a legal right to it. And,
on that supposition, the political or civil liberty was left or granted
to the subject through a simple permission of the sovereign or st&te.

112

Province of yurisprudence.

Supposed

distinction

between

govemmcnts

as fret or

despotic.

Political liberty is therefore fostered by that very political
restraint from which the devotees of the idol liberty are so
fearfully and blindly averse.

From the nature of political or civil liberty, I turn to
the supposed dilfereuce between free and despotic govern-
ments.

Every supreme government is free from legal restraints : ~
or (what is the same proposition dressed in a different
phrase) every supreme government is legally despotic. The
distinction, therefore, cannot mean that some governments
are freer from restraints than others : nor can it mean that
the subjects of the govermueuts which are denominated
free, are protected against their goverimients by positive
law. Those who use the distinction employ the epithet
free as importing praise, and the epithet despotic as importing
blame. They can therefore hardly mean that the govern-
ments which are denominated free, leave or grant to their
subjects more of political liberty than those which are
styled despotic. For they who distinguish governments
into free and despotic, suppose that the tirst are better than
the second. But inasmuch as political liberty may be
generally useful, it cannot be assumed that one government
i.s better than another, merely because the sum of the
liberties which the former leaves to its subjects, exceeds
the simi of the liberties which are left to its subjects by the
latter. The excess in the sum of the liberties which the
former leaves to its subjects, may be purely mischievous.
In consequence, for example, of that mischievous freedom,
its subjects may be guarded inadequately against one
another, or against attacks from external enemies.

They who distinguish governments into free and despotic,
probably mean by a ' free government ' a govermuent of a -
popular or democratic form, and by their distinction wish
to imply that sucli a go-\ernment, being likely to regard
the weal of the whole and not only of a nanow section
of the community, is apt to leave or grant to its subjects
not perhaps more political liberty than is left or granted
them by a government of one or a few, but more of that
2wlitical liberty w/iich conduces to the conimomceal. They~.
mean that, as lea^•ing or granting to its subjects more of
that useful liberty, a government of many may be styled
free: whilst, as leaving ur granting to its subjects less of-
that useful liberty, a go-\'ernment of one or a few may be
styled not free, or may be styled despotic or absolute. In
short, by the epithet free, as applied to governments of
many, they mean that governments of many are compara- '
tively f/ood: and by the epithet despotic, as applied to
monarchies or oligarchies, they mean that monarchies or
oligarchies are comparatively bad.

The epithets free and despotic are rarely, I think-, em-

The Limits of Sovereign Potvcr.

U3

ployed by the lovers of moiiarcliy or oligarch}'. If the
lovers of monarchy or oligarchy did employ those epithets,
they would prohably apply the epithet free to governments
'of one or a few, and the epithet despotic to governments of
many. For they think the former comparatively good, and
the latter comparatively had ; or that monarchical or oli-
garchical governments ara better adapted than popular, to
attain the ultimate purpose for which governments ought to
exist.

But with the respective merits or demerits of various
forms of government, I have no direct concern. I ha-^e
examined the current distinction between free and despotic
governments, because it is expressed in terms which are
extremely inappropriate and absurd, and which tend to
obscure the independence of political or legal obUgation,
that is common to sovereign governments of all forms or
kinds.

That the power of a sovereign is incapable of legal limi-
tation, has been doubted, and even denied. But the diffi-
culty, like thousands of others, probably arose from a ^-erbal
ambiguity — from the circumstance that the foremost indi-
vidual member of a so-called limited monarchy, whose
power is not only capable of legal limitations, but is some-
times actually limited by positive law, is often improperly
styled monarch or sovercif/n.

'\^'hatever may be its origin, the error is remarkable.
For the legal independence of monarchs in the proper ac-
ceptation of the term, and of sovereign bodies in their
corporate and sovereign capacities, not only follows inevit-
ably from the nature of sovereign power, but is also asserted
expressly by renowned political writers of opposite parties
or sects : by celebrated advocates of the governments which
are decked with the epithet /ree, as by celebrated advocates
of the governments which are branded with the epithet
desjiotic.

' If it be objected (says Sidney) that I am a defender of
arbitrary powers, I confess I cannot comprehend how any
society can be established or subsist without them. The
difference between good and ill governments is not, that
those of one sort have an arbitrary power which the others
have not ; for they all have it ; but that in those which are
well constituted, this power is so placed as it may be bene-
ficial to the people.'

' It appeareth plainly (sa3's Ilobbes) to my understand-
ing, that the soveraigu power, whether placed in one man,
as in monarchy, or in one assembly of men, as in popular
and aristocraticall commonwealths, is as great as men can
be imagined to make it. And though of so unlimited a.
power men may fancy many evill consequences, yet the
consequence of the want of it, which is warre of every man

Wliy It lias
lieeu iloulitcJ
tliat tlie
power (if a
sovereign is
incapable of
legal limit-
ation.

The proposi-
tion is as-
serted ex-
pressly liy
renowned
political
writers of
opposite
parties or
sects

1 14 Province of Jurisprudence.

against his neigliljour, is mucli worse. The condition of
man in this life shall never he without inconveniences : hut
there happeneth in no commonwealth any gi'eat inconveni-
ence, hut what proceeds from the subjects' disobedience.
And whosoever, thinlriug soveraign power too great, will
seek to make it lesse, must subject himselfe to a power
which can limit it : that is to say, to a gi-eater.' — ' One of
the opinions (says the same writer) which are repugnant to
the natm-e of a commonwealth, is this : that he who hath
the soveraign power is subject to the civill lawes. It is true
that all soveraigus are subject to the lawes of nature ; "be-
cause such lawes be Divine, and cannot by any man, or by
any commonwealth, be abrogated. But to the civill lawes,
or to the lawes which the soveraig-n maketh, the soveraign
is not subject : for if he were subject to the civiU lawes, he
were subject to himselfe ; which were not subjection, but
freedom. The opinion now in question, because it setteth
the ci^-ill lawes above the soveraign, setteth also a judge
above him, and a power to punish him : which is to make
a new soveraign ; and, again, for the same reason, a thii'd
to pimish the second ; and so continually without end, to
the confusion and dissolution of the commonwealth.' — ' The
diflerence (says the same writer) between the kinds or
forms of commonwealth, consisteth not in a diflerence be-
tween their powers, but in a diflerence between their apti-
tudes to produce the peace and secmity of the people:
which is theii- end.' *

* Bj' liis modern censors, French, German, and even English,
Hobbes' main design in liis various treatises on politics, is grossly
and thoroughly mistaken. With a marvellous ignorance of the
-writings ■which they impudently presume to condemn, they style
him ' the apologist of tyranny : ' meaning by that ran^ that his
main design is the defence of monarchical goveriJm^t, Now
though he prefers monarchical, to popular or oligarchical govern-
ment, it is certain that his main design is the establishment of these
propositions : 1. That sovereign power, ichetlter it reside in one, or
in many or aftw, cannot be limited by positive law : 2. That a pre-
sent or established government, be it a gnvernvient of one, or a
government of viuny or a feic, cannot be disobeyed by its subjects
consistently with the common weal, or consistently with the law of
God askno^\Ti through utility or the Scriptures. — That his principal
purpose is not the defence of monarchy, is sufficiently evinced by
many passages of his Leviathan, and also of his treatise De Cive.
To those who have really read, although in a cm-sorj' manner, these
the most lucid and easy of profound and elaborate compositions,
the current conception of their object and tendency is utterly laugh-
able.

The capital errors in Hobbes' political treatises, are the follow-
ing.— 1. He inculcates too absolutely the religious obligation of
obedience to present or established government. He makes not the
requisite allowance for the anomalous and excepted cases wherein
disobedience is counselled by that very principle of utility which
indicates the duty of submission. Writing in a season of civil
discord, or in apprehension of its approach, he naturally fixed his

Sovereign lias no Legal Rights against Subjects 115

Before I discuss tlie ongin of political g'overnmeut and Lect.

society, I will briefly examine a topic allied to tlie liberty VL

of sovereigns from political or legal restraints. ' ' '

A sovereign government of one, or a sovereign govern- '
ment of a niuuber in its collegiate and sovereign capacity,

attention upon the glaring mischiefs of resistance, and scarcely
adverted to the mischiefs v.-hich obedience occasionally engenders.
And although his integrity was not less remarkable than the gigantic
strength of his understanding, we may presume that liis extreme
timidity somewhat corrupted his judgment, and inclined him to
insist unduly upon the evils of rebellion and strife. — 2. Instead of
directly deriving the existence of political government, from a per-
ception by the bulk of the governed of its great and obvious expe-
diency, he ascribes the origin of sovereignty, and of independent
political society, to a fictitious agreement or covenant. He supposes,
indeed, that the subjects are induced to make that agreement, bj*
their perception of the expediency of government, and by their de-
sire to escape from anarchy. But, placing his system immediately
on that interposed figment, instead of resting it directly on the
ultimate basis of utility, he often arrives at his conclusions in a
sophistical and quibbling manner, though his conclusions are com-
nionh' such as the principle of utility will warrant.

If these two cajjital errors be kept in mind by the reader, Hobbes'
extremely celebrated but extremely neglected treatises may be read
to great advantage. I know of no other writer (except Jeremy
Bentham) who has uttered so many truths, at once new and impor-
tant, concerning the necessary structure of supreme political
government, and the larger of the necessarj' distinctions implied by
positive law. And he is signally gifted with the talent, peculiar
to writers of genius, of inciting the mind of the student to active
and original thought.

The authors of the antipathy with which he is commonly re-
garded, were the papistical clergy of the Roman Catholic Church,
the high church clergy of the Church of En;;land, and the Presby-
terian clergy of the true blue complexion. The pretensions which
these persons advanced in favour of ' the church ' to an authority in
' ecclesiastical matters,' co-ordinate with the authority of the secular
government, were ofiensive to Hobbes, who supported with unfail-
ing loyalty the temporal sovereign for the time being. He repelled
those anarchical pretensions with a wei.i4lit of reason, and an aptness
and pungency of expression, which the aspiring and vindictive
priests did bitterh^ feel and resent. Accordingly, they assailed him
with the poisoned weapons of malignity and cowardice. And so
deep and enduring is the impression which they made upon the
public mind, that ' Hobbes the Atheist,' or ' Hobbes the apologist
of tyranny,' is still regarded with pious, or with republican horror,
by all but' the extremely few who have ventured to examine his
writings.

Of positive atheism ; of mere scepticism concerning the exist-
ence of the Deity ; or of, what is more impious and mischievous
than either, a religion imputing to the Deity human infirmities and
vices; there is not, I believe, in any of his writings, the shadow of
B shade.

It is true that he prefers monarchical (though he intimates his
preference rarely), to popular or oligarchical government. But of
tjTanny in the sense of monarchical misrule, he is no apologist, but
may rank with the ablest and most zealous of its foes. Scarcely a

1 f 6 Province of Jurisprudence.

Pahj I. lias no legal rujliU (in tlie proper acceptation of tlie term)

§ ■- against its oicn subjects.
rifiMs (in the Every legal right is tlie creature of a positive law : and

proffer ao it answers to a relative duty imposed by that positive law,

sincjle advocate of free or popular institutioQS, even in these latter
and com par.1 lively enlightened ages, perceives and inculcates so
clearly and earnestly as he, the principal cause and preventive of
tyrannous or bad government — nanieh-, ignorance on the part of
the multitude of sound political science.

In those departments of his treatises on politics, which are con-
cerned with ' the office (or duty) of the sovereign,' Hobbes insists on
the following propositions : Tlinf pnnd find stable poveriir:ient is
simply or nearly impossible, unless the fundamentals of political science
be known by the bulk of the people : that the bulk of the people are
as capable of receiving such science as the loftiest and proudest of
their superiors in station, wealth, or learning : that to provide for
tlie diffusion of such science throughout the bulk of the people, may
be classed with tlie weightiest of the duties which the Deity lays
upon the sovereign : that he is bound to hear their complaints, and
even to seek their advice, in order that he may better understand
the nature of their wants, and may better adapt his institutions to
the advancement of the general good : that he is bound to render
his laws as compendious and clear as possible, and also to publish
their more important pro\'isions through every possible channel :
that if the bulk of his people know their duties imperfectly, for
want of the instruction which he is able and bound to impart, he is
responsible religiously for all their breaches of the duties whereof
he hath left them in ignorance.

In regard to the respective aptitudes of the several forms of
government to accomplish the ultimate purpose for which govern-
ment ought to exist, Hobbes' opinion closely resembles the doctrine,
which a century later, that is, about the middle of the eighteenth
century, was taught by the French philosophers who are styled em-
]ihatica]lv the (Economists. — In order, saj- the Qilconomists, to the
being of a good government, two things must preexist: 1. Know-
ledge by the bulk of the people, of the elements of political science
(in the largest sense of the expression) : 2. A numerous body of
citizens versed in political science, and not misled by interests con-
flicting with the common wenl, who may shape the political
opinions, and steer the political conduct, of the less profoundly in-
formed, though instructed and rational multitude. — And, for
numerous and plausible reasons (which my limits compel me to
omit), they affirm, that, in any society thus duly instructed, monar-
chical government would not only be the best, but would surely be
chosen by that enlightened community, in preference to a govern-
ment of a feu-, or even to a government of many.

The opinion taught bj' the Q2conomists is rather, perhaps, defec-
tive, tlian positively erroneous. They leave an essential considera-
tion uneanvassed and nearly untouched. — In a political community
not duly instructed, is not popular gcvemment, with all its awkward
complexness, less inconvenient than monarchy? And, unless the
government be popular, can a political community not diily in-
structed, emerge from darkness to light ? from the ignorance of
political science, which is the principal cause of misrule, to the
knowledge of political science, which is the best security against
it ? The (Economists, indeed, occasionalh' admit, ' que dans Fctai

Sovereign lias no Legal Rights against Subjects. i ly

and iucumbeut ou a person or persous otlier tliau tlie person
or persons iu whom the right resides. To every legal right,
there are therefore three several parties: namely, a party-
bearing the right ; a party burtheued with the relative duty ; the term)
and a sovereign government setting the law through Avhich "^i^n'lubjfcti.
the right and tlie duty are respectively conferred and im-
posed. A sovereign government cannot acquire rights
through laws set hy itself to its own subjects. A man is
no more able to confer a right on himself, than he is able
to impose on himself a law or duty. Consequently, if a
so^'ereign government had legal rights against its own sub-
jects, those rights would bo the creatures of positive laws set
to its own subjects by a third person or body, who must,
therefore, be sovereign over them. The community Avould
therefore be subject to two diflerent sovereigns, which is
contrary to the definition of sovereigTity.*

d"ignora7ice rautorite est plus dangereuse dans les mains d'un seul,
qu'elle ne Test dans les mains de pkisieurs.' But with this consider-
ation they rarely meddle. They commonly infer or assume, that,
since in the stale of ignorance the government is inevitably bad, the
form of the government, during that state, is a matter of consum-
mate inditference. Agreeing with them in most of their premises,
I arrive at an inference extremely remote from theirs ; namely,
that in a community already enlightened, the form of the govern-
ment were neuly a matter of indifierence ; but that where a com-
munity is still in the state of ignorance, the form of the government
is a matter of the highest importance.

The political and oeconomical system of Quesnai and the other
CEconomists, is stated concisely and clearly by M. Jlercier de la
iviviere in his ' L'Ordre naturel et essentlel des 8ocie'te's politiques.'

* It has often been affirmed that ' [i^tlitiaaoyrht,' or that ' might 'Right it
is right.' But this paradoxical proposition (a great fiivourite with "^'^ht.'
shallow scoffers and buffoons) is either a flat truism affectedly and
darkly expressed, or is thoroughly false and absurd.

If it mean that a party who possesses a right possesses the right
through might or power of his own, tlve proposition is false and
absurd. 1' or a party wlio possesses a right necessarily possesses the
right through the might or power of another: namely, the author
of the law by which the right is conferred.

If it mean that right and miglit are one and the same thing, or
are merely difi'erent names for one and the same object, the proposi-
tion in question is also false and absurd. My phjsical ability to
move about, when my body is free from bonds, may be called miglit
or /jtiife/-, but cannot be called a right: though mj' ability' to move
ohovit without hindrance from you, may Annhila&s be styled a right,
with perfect precision and propriety, if 1 owe the ability to a law
imposed upon you by another.

If it mean that every right is a creature of might or power, the
proposition is merely a truism disguised in paradoxical language.
For every right (divine, leg/il, or moral) rests on a relative duty,
i^nd. manifestly, that relative duty would not be a dutv substan-
tially, if the law which affects to impose it were not sustained by
might.

I must here observe that 'right' as a noun substantive has two
meanings which ought to be distinguished carefulh'.

The nouu substantive 'a right ' signities that which jurists deno

ii8

Province of y^irisprudence.

But so far as tliev are bound hy the law of God to obey
tlieir temporal sovereign, a sovereign government has rights
rf«n'??e against its own subjects: rights which are conferred
upon itself, through duties which are laid upon its subjects,
by laws of a common superior. And so far as the members
of its own community are severally constrained to obey it by
the opinion of the community at large, it has also vroral
rights against its own subjects severally considered : rights

'Right' as
meaning
' faculty,'
•right 'as
meaning
'JHstlce, and
•right as
meanTng
law.'

minate 'a faculty:' that which resides in a determinate party or
parties, by virtue of a given law ; and which avails against a party
or parties (or answers to a duty lying on a party or parties) "other
than the party or parties in whom it resides. And the noun sub-
stantive ' rights ' is the plural of the noun substantive ' n right.'
But the expression 'right,' when it is used as an adjective, is equi-
valent to the adjective 'just : ' as the adverb 'rightly ' is equivalent
to the adverb 'justly.' And wlien used as the abstract name
corresponding to the adjective ' right,' the noun substantive ' right '
is synonymous with the noun substantive 'justice.'

It is manifest that 'right ' as signifying ' faculty,' and ' right'
as signifying 'justice.' are widely different though not unconnected
terms. But, nevertheless, the terms are confounded bj- many of the
writers who attempt a definition of 'riglit ;' and their attempts to
determine tlie meaning of that very yierplexiug expression are,
therefore, sheer jargon. By many of the German writers on the
sciences of law and morality (as by Kant, for example, in his
' Metaphysical Principles of Jurisprudence '), ' right ' in the one
sense is blended with ' right ' in the other. And through the dis-
quisition on 'right' or 'rights,' which occurs in his 'Moral Philo-
sophy,' Palej' obviously wavers between the dissimilar meanings.

The Italian 'diritto,' the French 'droit,' the German 'recht,'
and the English 'right,' signifj- 'right' as meaning ' faculty,' and
also signify 'justice : ' though each of those several tongues has a
name which is appropriate to 'justice,' and by which it is denoted
without ambiguity.

In the Latin, Italian, French, and German there is a further
ambiguity; the name which signifies ' right ' as meaning 'faculty,'
also signifies 'law:' 'jus,' 'diritto,' 'droit,' or 'recht,' denoting
indifferently either of the two objects. Accordingly, the ' recht '
which signifies 'law,' and the 'recht' which signifies 'right' as
meaning ' faculty,' are confounded by German writers on the philo-
sophy or rationale of law, and even by German expositors of par-
ticular systems of jurisprudence. They treat 'recht' as a genus or
kind, which they divide into two species or two sorts : namely, the
' recht ' equivalent to 'law,' and the ' recht ' equivalent to 'right'
as meaning ' faculty.' And some of them thicken the mess by a
misapplication of terms borrowed from the Kantian philosophy.
They divide ' recht,' as forming the gemts or kind, into ' recht in the
objective sense,' and ' riclit in the snhjectivp. sense ;' denoting by the
former of those unapposite phrases, ' law ; ' and denoting by the
.after, ' right' as meaning 'faculty.' (See note, p. 175, post.)

The confusion of 'law' and 'right,' our own writers avoid: for
the two disparate objects which the terms respectively signify, are
commonly denoted in our own language by nalpablj' distinct marks.
But Hale and Blackstone are misled by this double meaning of the
v;ord jus, and translate jus personarum et rerum, 'rights of persona
and things : ' which is mere jargon.

W/m^ is meant by ' Rights of Sovereign ' f 119

^vliicli are conferred upon itself by the opinion of tlie com-
munity at large, and which answer to relative moral duties.

Consequently, when we say that a sovereign government,^
as against its own subjects, has or has not a rirjht to do this
or that, we necessarily mean by a rujht (supposing we speak
exactly), a right divine or moral: we necessarily mean (sup-
posing we speak exactly), that it has or has not a right de-
rived from a law of God, or derived fi-om a law improperly
so called which the general opinion of the community sets to
its members severally.

But when we say that a government, as against its own
subjects, has or has not a riffht to do this or that, we not
uncommonly mean that we deem the act in question (/ene-
ralbj useful ov ■pernicious. And this application of the word
is not inexact if we mean that the act conforms to the
Di^-ine law as measured by the standard of utility ; and that
the government have therefore a right conferred on them by
the Divine law to do such an act.

To ignorance or neglect of these palpable truths, we may
impute a pernicious jargon that was cun-ent in our own
coimtiy on the eve of her horrible war with her Xorth
American children. By the great and small rabble in and
out of parliament, it was said that the government sove-
reign in Britain was also sovereign in the colonies ; and
that, since it was sovereign in the colonies, it had a right to
tax their inhabitants. It was objected by Mr. Burke to the
project of taxing their inhabitants, chat the project was in-
expedient : pregnant with probable e^^l to the inhabitants
of the colonies, and pregnant with probable evil to the in-
habitants of the mother country.

But to that most rational objection, the sticklers for the .
scheme of taxation returned this asinine answer. They said ' -~^
that the British government had « rif/hi to tax the colonists; ■V'*'

and that it ought not to be withheld by paltry considerations
of expediency, from enforcing its sovereign right against its
refractory subjects. Now, if they attached any determinate
meaning to the word right, they must have meant that the
British government was empowered by the law of God to
tax its American subjects. But it had not a Di^nne right
to tax its American subjects, unless the project of taxing
them accorded with general utility : for every Divine right
springs from the Divine law ; and to the Divine law general
utility is the index. To oppose the right to expediency, vf&i,
therefore, to oppose the right to the only test by which it
was possible to determine the reality of the right itself.

A sovereign government of one, or of a nimiber in its From an
collegiate and sovereign capacity, may appear in the cha- l^soTOrelgn' '
racter of defendant, or of demandant, before a tribunal of governmeiit
ita own appointment, or deriving j ui'isdiction from itself, tdbunaiof

120 Province of yurisprudciicc.

But we cannot lience infer that the government lies under
legal duties, or has legal rights against its. own subjects.

The claim of the plaintiff aguinst the soverei"-n defendant"

Its own, we TP -i ■\ '■ ••! T-' 1

c;iiniot infer cannot be lounded on a positive law. jor then would the -

Kovermnent Sovereign defendant be in a state of subjection — contrary to

i""^ ^d''*'^ s ^'^ definition of sovereignty. And the claim of the sove-

or has legal' reign demandant cannot be founded on a positive law ; for

against its such a law must have been set by a third party to a member

own subjects, or members of the societj^ wherein the demandant is supreme :

or in other words, the society is subject to another sovereign

— that is to two sovereigns at once — contrary to the natijre

of sovereignty.

In fact, where the sovereign government appears in the
character of defendant, it appears to a claim founded on a
so-called law which it has set to itself. Where it appears
in the character of demandant, it apparently founds its claim
on a positive law of its ovm, and it pursues its claim judi-
ciall}'. The rights which are pursued against it before
tribunals of its own, and also the rights which it pm-sues
before tribunals of its own, are merely analogous to legal
rights (in the proper acceptation of the term) : they are
q_uasi legal rights. The rights which are pursued against
government before toibunals of its own, it may extinguish
by its own authority. But it yields to those claims, when
they are established judicially, as (/"they were truly founded
on positive laws set to itself by a third and distinct party. —
The rights which it pursues before tribunals of its own, are
powers which it is free to exercise according to its own plea-
sure. But it prosecutes its claims through the mediiun of
judicial procedm-e, as if they were truly founded on positive
laws set to the parties defendant by a third person or body.
The foregoing explanation of the seeming legal rights
which are pursued against sovereign governments before
tribunals of their own, tallies with the style of judicial pro-
cedure, which, in all or most nations, is observed in cases of
the kind. The object of the plaintiffs claim is not de-
luanded as of riglit, but is begged of the sovereign defendant
as a grace or favour. In our own country, whether the
claim be against the sovereign, or against the king individu-
ally, the form of proceeding is by what is called a Petition
of Itir/ht* In the latter case tliis mendicant style of pre-

* A Petition of Right according to the English practice may
relate to a claim arising out of the act or omission of a department
of Government, or to a claim against the Queen in a private capacitj'.
In the former case redress is prayed from ' Her Majesty,' meaning
(I think) the sovereign, as the ultimate author of the wrong, and
morally responsible for it ; and from the nature of the case, if in the
power of the sovereign to give or withhold redress. The Act of
Parliament (23 and 2-1 Vict. c. 34) which at present regulates the

Rationale of Petition of Right. 121

sentiiig tlic claim i? merely accidental. It arises from tlie
mere accident to wliif li I have adverted already: namely,
that our own king-, tlioudi not properly sovereign, is com-
pletely free in fact from legal duties.

procedure, is in strict conformity with tliis view of tlie case. Vr-:
BBC. 14 of tiiat Act, the Commissioners of the Treasury are required
to pay the money and costs decreed ' out of any moneys in their
hands for the time being lepallv applicable thereto, or which may
.be hereafter voted by Parliament for that purpose.' Where the
petition relates to a claim of the latter kind, it also happens that the
compulsion is merely a moral one. By the section last quoted it is
in this case provided that ' the amount to which the suppliant is en-
titled shall be paid to him out of such funds or moneys as Her
Majesty shall be graciously pleased to direct to be applied for that
jiurpose.' So runs the statute in accordance with the venerable
tradition that the queen is personally free from legal obligation.
This, as Austin shows, is a mere accident or peculiarity of our system
of positive law. It is clear that if Parliament were to authorize
legal execution against the queen's private property, however wwcon-
stitxdinnal such an act might be considered, the queen would be bound
personally by a legal obligation. It will appear from what is said
above, that in the style of foimal documents the words 'Her
Majesty ' or the ' (Queen's most Excellent Majesty ' are used in three
entirely dilTerent senses : — 1. As meaning the sovereign, e.g. when we
speak of Her Majesty's Court of Queen's Bench. 2. As meaning the
queen in a public capacity, but merely as a subject member of the
parliament or of the body politic. '6. As meaning the queen as a
private person.

The circumstance that suits brought in the Courts in India
against the 'Government of India' are in the form of ordinary
actions is hardly an exception to the proposition that claims against
the sovereign are presented iu a mendicant form. The 'Government
of India,' as the phrase is here used, is a political subordinate, whose
relations with the Imperial Government are of a very complex
description. In this country ' the Secretary of State in Co'iincil of
India' represents the pecuniary liabilities of the Government of
India, and is constituted a legal person capable of being sued in an
ordinary action. But notwithstanding this, the Indian Government
in the Political Department, which is under tlie absolute control of
the Secretary of State, is not foi-mal/i/ amenable to any legal lialtilit^-.
The anomaly is, that there is no certain criterion to determine the
class of matters which belong to the Political Department, and
such determination is often practically left to the uncertain and
cxpricious action of subordinate officials.

This may be the place to observe that in this countrv the
immunity which the sovereign necessarily has. and which the king
actually has, from legal obligation, is extended in form to tne
ninisters or servants of the crown. Thus no civil action or man-
damus will lie against the Lords of the Treasury, or the Postmaster-
General, nor action against persons iu their respective employ, at
such public servants. (The Queen v. Lords Commissioners of the
Treasury-, L.R. 7 Q. B. 387.) And there are some wrongs for which
there is no redre-^s by Petition of Right. For that is only admissible
where the gwasi-obligation of the king or sovereign is equivalent
to a debt, or arises in respect of the possession of a hereditament
or chattel, or out of the breach of a contr.ict made within the
G

A sovereign
government
Jiiay have
a legal

right against
a subject or
subjects of
aonther
Bovereign
government.

The origin or
causes of
I>olltical
government
and society.

Province of ytirispnidence.

Though a .sovereigu government of one, or a sovereign,
government of a number in its collegiate and sovereign
capacity, cannot have legal rights against its own subjects, '
it may have a legal right against a subject or subjects of
another sovereign government. A law imposed by the other
government upon its own subjects may create a right in
favour of the first government. The possession of a legal
or political right against a subject or subjects of another
sovereign government, consists, therefore, with that in-
dependence which is one of the essentials of sovereignty.*

Ha-^ing determined tlie general notion of sovereignty; and
illustrated my definition by considering the possible forms of
supreme govermneut and the limits of supreme political
power, I now proceed to the origin or causes of the habitual
or permanent obedience, which, in eveiy society political
and independent, is rendered by the bulk of the community
to the monarch or sovereign number. In other words, I
proceed to the origin or causes of political government and
society.

powers constitutiouall}^ committecl to tlie Jilinister or Department of
Government by wliom the contract is made.

The remech' against a servant of the cro^vn lies only in a com-
plaint to the Head of the Department ; and if redress is got from
him, the remedy would, I think, according to Austin's scheme, be a
hgnl one, though not obtained b}' the ordinary forms of law. Again,
if it is tlie act of the Head of the Department that is complained of,
the attention of the Government as a bodv might be called to it bj'
a motion or question in Parliament ; and if made a Cabinet question,
and the Government as a body disapproved of the act, the oflending
minister might be compelled to vacate his office. This again would,
according to Austin's definitions, be stricth' a legal sanction. But
if the Government should defend the act, or not think proper to
interfere, the onh' means of redress which remain are those which
are morally sanctioned; namely, by tlie force of opinion — whether
expressed in the censure of a definite body or bodies, such as Parlia-
ment or tlie constituencies convened at an election, or remaining in
the indefinite form called public opininn ; — unless indeed, there is
taken into account the exceptional and extraordinary remedy of a
parliamentary impeachment, which would be, according to Austin's
analysis, a legal remedy. — R. C.

* In our own courts of law and equity it is held as undoubted,
that foreign sovereigns, whether in name monarchs or republics,
can sue in their sovereign capacity ; and they are recognised as
plaintiffs in our courts of law and equity by the same name and
stj-le under which they are recognised by our own sovereign (that
is, nominally, by Her Majesty) in diplomatic intercourse. — (Case of
the King of Spain, judgment by Lord Lyndhurst in the House of
Lords. 2 Bligh Reports. New series, ]). 31. Case of the United
States of America v. Wagner, Court of Chancerv, Maj- 29, June 11,
1 7, 1867. L. R. 2 Ch. 582. Judgment by Lord' Chancellor Chelms-,
ford and Lord Justices Turner and Cairns.)

As to the possibility of a sovereign being subject to another
sovereign, to certain limited eiFects, see concluding explanations in
this chapter. — R. G.

Proper Objects of Political Society.

123

The proper pui-jiose or end of a sovereitru political goveru-
ment, or the pui-pose or end for which it oii<i-ht to exist, is
the greatest possible advancement of hiuuan liappiuess. To
accomplish that end effectively, it commonly must labour
directly and paiticiUarly to advance as far as is possible the
weal of its own community. For tlie good of tbe universal
society formed by mankind is the aggregate good of the
particular societies into which manldnd is divided : just as
the happiness of any of those societies is tlie aggregate Hap-
piness of its single or individual members. And if eveiy
.government consulted the weal of its own subjects, the
probable tenderer would clearly be to promote the general
happiness of manldnd. And it were easy to show, that the
general and particular ends never or rarely conflict. An
enlightened regard for the common happiness of nations,
implies an enlightened patriotism ; whilst the stupid and
atrocious patriotism wbicli looks exclusively to coimtiy, and
would further the interests of country at the cost of aU
other communities, gi'ossly misapprehends and frequently
crosses the interests that are the object of its naiTow con-
cern. But the topic which I now have suggested, belongs
to the province of ethics, rather than the province of juris-
prudence. *

* The proper purpose or end of a sovereign political govern-
ment is conceived inadequately or obscurely by most or many of
tlie writers On political government and society.

Speaking generally and vaguely, it may be said that the proper
end of government is to co-operate in advancing the happiness of
mankind. This is the same as to say tiiat the particular and deter-
minate end is (in an enlightened manner, and therefore with due
regard to the happiness of other communities) to advance as far as
possible the weal of its own community. The writers in question
mistake for the proper absohUe end one or a U-y^ of the instru-
mental ends tlrrough which a government must accomplish that
absolute end.

For example : It is said by many of the speculators on political
government and societv, that ' the end of every government is to
iuslitute and protect property.' And here I must remark, hj the
by, that the jiropounders of this absurdity give to the term 'pro-
perty ' an extremely large and not very delinite signilication. They
mean generall}- by the term ' property,' legal rights, or legal facul-
ties: and they mean not particularly by the term 'property,' the
legal rights, or legal faculties, which are denominated strictly ' rights
of property or dominion.' !Now the proper paramount purpose of a
sovereign political government, is not the creation and protection of
legal rights or faculties, or (in the terms of the proposition) the
institution and protection cf property. If that were the paramount
purpose, the end might be the advancement of misery, rather than
the advancement of happiness ; since many of tlie legal rights
which governments have created and protected (as the rights of
masters, for example, to and against slaves), are generally per-
nicious, rather than generally useful. To advance as far as is
possible the common happiness or weal, a government must confer
on its suhjects beneficent legal rights, or such legal rights as general
O 2

The proper
purpose or
end of poll
tical goveia-
nicnt and
society, or
the purpos«
or end for
which they
ought to
exist.

124 Province of ynrispriidence.

From the proper purpose or end of a sovereign political
govemmeut we may readily infer the causes of that habitual
obedience which would be paid to the sovereip-n by the bulk
of an enlhjhtened society. If they thoug-ht tlie government
perfect, or that the govenunent accomplished perfectly its
proper pm-pose or end, this their con-viction or opinion would
be their motive to obey. If they deemed the government
faulty, a fear that the eAal of resistance might surpass the
evil of obedience, would be their inducement to submit : for

utility commend? ; and, having conferred on its subjects benefi-
cent legal rights, must preserve those rights from infringement, -bj'
enforcing the corresponding sanctions. But the institution and
protection of beneficent legal rights, or of the kinds of property that
are commended by general utility, is merely a subordinate and
instrumental end through which the government must accomplisli

its paramount or absolute purpose. As affecting to determine the

absolute end for -which a .'overeign government ouglit to exist, the
proposition in question is, therefore, false. And, considered as a
definition of the means through which the sovereign government
must reach that absolute end, the proposition in question is defec-
tive. If the government would duly accomplish its proper para-
mount purpose, it must not confine its care to the creation of legal
rights, and to the creation and enforcement of the answering rela-
tive duties, 'i'liere are absolute legal duties, or legal duties without
corresponding rights, that are not a whit less requisite to the ad-
vancement of the general good than legal rights themselves with
the relative duties which they imply. Nor would a government
accomplish thoroughly its proper paramount purpose, if it merely
conferred and protected the requisite rights, and imposed and en-
forced the requisite absolute duties : Though a good legislation with
a good administration of justice, or good laws well administered,
are doubtless the chief of the means through which it must attain
to that end, or (in Bacon's figurative language) are the nerves of
the common weal.

The prevalent mistake which T now have stated and exemplified,
Is committed by certain of the writers on the science of political
ccconomy, whenever they meddle incidentally with the connected
science of legislation. Whenever they step from their own into the
adjoining province, they make expressly, or they make tacitly and
imconsciously, the following assumption : that the i)roper absolute
end of a sovereign political government is to further as far as is
possible the growth of the national wealth. If they think' that a
political institution fosters, or that a political institution damjis
production and accumulation, they forthwith pronounce that
tlie institution is good or bad. They forget that the wealth of
the community is not the weal of the community, though wealth
is one of the means requisite to the attainment of happiness. They
forget that a political institutiim may further the weal of the com-
munity, though it checks the growth of its wealth ; and that a political
institution which quickens the growth of its wealth, may hinder the
advancement of its weal.*

» This it will be remembered was written long before the appearance of
J. S. Mill's ' Political Economy.' That author and Professor Fawcett must
be mentioned as writers by whom the distinction here referred to is never

igaovcd or forgotten. — R.C,

True Causes of Political Society. 125

tliey would not persist in tlieir o"bedieuce to a government
which they deemed imperfect, if tliey thought that a Letter
government might probably be got by resistance, and that
the probable good of the change outweighed its probable
mischief.

Since every actual society is inadequately instructed or
enlightened, the habitual obedience to its government which
is rendered by the bidk of the community, is partly the
consequence of custom — the habit already acquired. Or it
is partly the consequence of prejudices : meaning by
' prejudices,' opinions and sentiments which have no found-
ation whatever iu the principle of general utility. If, for
example, the government is monarchical, they partly pay
that obedience to that present or established govermuent
because they are fond of monarchy inasmuch as it is mon-
archy, or because they are fond of the race from which the
monarch has descended. Or if, for example, the govern-
ment is popular, they partly pay that obedience to that
present or established government, because they are fond of
democracy inasmuch as it is democracy, or because the
word ' republic ' captivates their fancies and affections.

But though that habitual obedience is partly the con
sequence of custom, or of prejudices, it partly arises from a
reason based upon the principle of utility. If, for specific
reasons, they are attached to the established government,
their perception of the utility of government concui's with
their attachment, and assists in confirming the habit.
If they dislike the established government, their dislike is
controlled by the same cause. The perception, by the bullc
of the conmiunity, of the utility of political government, or
a preference by the bidk of the community of any govern-
ment to anarchy, is the only cause of the habitual obedience
in question, which is common to nearly all societies : and
therefore the only cause which the present general disquisi-
tion can properly embrace. The causes of the obedience in
question which are peculiar to particular societies belong
to the province of statistics, or the province of particular
histoi-y.

The only general cause of the permanence of political
governments, and the only general cause of the or'ajhi of
political governments, are exactly or nearly alike. Though
every government has arisen in part from specific or par-
ticular causes, almost every government must have arisen
in part from the following general cause ; namely, that the
buUi of the natural society from which the political was
formed, were desirou-s of escaping to a state of government,
from a state of natm-e or anarchy. If they liked specially
the government to which they submitted, their general per-
ception of the utility of government concurred, with tlieir
epecial inclination. If they disliked the government to

126

Province of Jurisprudence.

Part I.

Tlie position
ihat every
governmeut
continues
through the
people's con-
»ent,' and the
position' tliat
every govern-
ment arises
through the
people's coii-
«e?i(,'ex-
Btniiied and
*rplaiued.

wliicli tliey submitted, their general perception of tlie utility
of government controlled and mastered their repug-nance.

According to a current expression, the permanence
and origin of evei-y govermnent are owing to the people's
consent : that is to say, every governmeut continues thi'ough
the consent of the people, or the bullc of the political
community : and every government arises through the
consent of the people, or the bulk of the uatm-al society
from which the political is formed. According to the same
opinion dressed in a dili'ereut phrase, the power of the
sovereign flows fi-om the people, or the people is the foun-
tain of sovereign powei*;

That a government coutimies through the people's con-
sent is true in one sense. The permanence of every govern-
ment depends on the habitual obedience which it receives
from the bulk of the community. But all obedience is
voluntanj ot: free, or every party who obeys consents to obey.
In other words, every party who obeys zcills the obedience
which he renders, or is determined to render it by some
motive or another. That acquiescence which is purely in-
voluntary, or which is purely the consequence of physical
compulsion or restraint, is not obedience or submission. As
correctly or truly apprehended, the position ' that every
governmeut continues through the people's consent ' merely
amounts to this ; that, in every society'political and inde-
pendent, the people are determined by motives of some
description or another, to obey their government habitually ;
and that, if the bulk of the community ceased to obey it
habitually, the government would cease to exist.

But tiie position iu question, as it is often understood, is
taken with one or another of the two follo'U'iug meanings : —
1st. That the bulk of every commuuits*, without inconveni-
ence to themselves, can abolish the established government,
and yet consent to its continuance or pay it habitual obedi-
ence ; which is the same as to say, That the bulk of every
commimity approve of the established government, and con-
sent to its continuance, or pay it habitual obedience, by
reason of that their approbatiou. As thus understood, the
position is ridiculously false ; the habitual obedience of the
people, iu most or many communities, arising wholly or
partly from their fear of the probable evils which they might
suffer by resistance. Or 2ndly, That if the bulk of a com-
munity dislike the established government, the government
ought not to continue. If every actual society were
adequately instructed or enlightened, the position, as thus
understood, would approach nearly to the truth. For the
dislike of an enlightened people towards their established
government, would beget a %'iolent presumption that the
government was faulty or imperfect. But, iu every actual
society, the government has neglected to instruct the people

True Causes of Political Sccicty. 127

in soimd political science ; or paius have been taken by tlie
government, or the classes that influence the government, to
exclude the bulk of the comniuuitj' from sound political
science, and to perpetuate or prolong the prejudices -^liich
weaken and distort their imdertakings. Every society,
therefore, is inadequately instructed or enlightened; and,
in most or many societies the love or hate of the people
towards their established government v^'ould scarcely beget
a presumption that the government Avas good or bad. An
ignorant people may love their established government,
though, by cherishing pernicious institutions and fostering
mischievous prejudices, it positively prevents the progress
in useful knowledge and in happiness, which its subjects
would make spontaneously if it simply were careless of their
good. And so may an ignorant people hate their estab-
lished government, thouhg it labom-s strenuously and wisely
to fm-ther the general weal. The dislike of the French
people to the ministry of the godlike Turgot, amply evinces
the melancholy truth. They stupidly thwarted the mea-
sm"es of their warmest and AA-isest friend, and made common
cause with his and their enemies — with the rabble of nobles
and priests who strove to uphold misrule and to crush the
reforming ministry with a load of cahunny and ridicule.

That the 'permanence of every government is owing to
the people's consent, and that the orujin of every govern-
ment is owing to the people's consent, are two positions so
closely allied, that Avhat I have said of the former will
nearly apply to the latter.

Every government has arisen tlirough the consent of the
people, in this sense, that their submission is a consequence
of motives, or they icill the submission which they render.
But a special approbation of the government to which they
freely submit may not be their motive to submission. Al-
though they submit to it freely, the government perhaps is
forced upon them by a fear of the evils which Avould follow
a refusal to submit. Through a fear of those e-^-ils (and,
probably, by a general perception of the utility of political
government), they freely submit to a government from
which they are specially averse.

The expression ' that every government arises through
the people's consent ' is often uttered with the following
meaning ; that the bulk of a natural society about to be-
come a political, or the inchoate subjects of an inchoate
political government, promise, expressly or tacitly, to obey
the futiu-e sovereign. The expression, as uttered with this
meaning, confounds consent and pironiise, and therefore is
grossly incorrect. The proposition so intended to be con-
\ eyed is, however, noteworthy as being involved by an
Lypothesis which I proceed to examine.

In every political society the subjects are imder duties to Thehjpo-

128

Province of yiirispj'udence.

tlie sovereign one or Lody, partly religious, partly legal, and
partly moral. The sovereign government is under duties to
the subjects, religious and moral, but not legal. This can
easily be made to appear by an easy application of the prin-
ciples reiterated in the preceding lectures. ,

It follows that the duties of the subjects towards tlie
sovereign government, with the duties of the sovereign
government towards the subjects, originate respectively in
three several som-ces ; namely, the Divine law (as indicated
by the principle of utility), positive law, and positive
morality. And, to my understandings, it seems that we ac-
count sufficiently for the origin of those obligations, fvheu
■we simply refer them to those their ob\'iou3 fountains,
and that an ampler solution of their origin is not in the
least requisite, and, indeed, is impossible. But there are
many ■\\Titers on political government and society, Avho are
not content to account for their origin by simply referring
them to those their manifest sources, and who accordingly
resort to the liypothesis of the original covenant or contract,
or the fandainoital civil pact.

By the writers who resort to it, this renowned and r.ot
exploded hypothesis is imagined and rendered variously.
But its effect as imagined and rendered by most of those
writers, may be stated generally thus :

To the formation of eveiy society political and indepen-
dent— of every ttoAic- or civitas — aU its future members then
in being are joint or concurring parties : parties to an agree-
ment in which tha body politic then originates, and on which
as a basis it afterwards rests. As being the necessary source
of the independent political society, this agTeement of all is
.styled the orif/inal covenant : as being the necessary basis
whereon the civitas afterwards rests, it is siyl^di. pactum civile
fundamcntale. — In the process of making' this covenant or
pact there are three several stages ; which may be described
in the following manner. 1. The futm-e members of the
connu unity about to be createcl jointly resolve to unite them-
selves into an independent political society : signifying and
determining withal the paramount pm-pose of their union,
or even some of its subordinate or instrmuental ends. And
here I must briefly remark, that the paramount pm-pose so
determined is the paramount purpose for which a society
political and independent ought to be founded and per-
petuated. By the writers who resort to the liypothesis,
this paramount purpose or absolute end is conceived differ-
ently. To writers who admit the system which I style the
theory of utility, this purpose or end is the advancement of
human happiness. To a multitude of writers who have
flourished and flomish in Germany, the following is the truly
magnificent though somewhat mysterious object of political
government and society : namely, the extension over the

Hypothesis of an On'gitial Covenant. 129

earth, or over its buman inhabitants, of the empire of right Lect.
or justice. It would seem that this right or j ustice, like VI.

the good Ulpiau's justice, is absolute, eternal, and immut- ' '
able. It is not the right or justice which is merely a creature
of the law of God, but something self-evident to which his
law conforms or should conform. I cannot understand it,
and will not attempt to explain it. Merely guessing at what
it may be, I take it for the right or justice mentioned in a
preceding note : I take it for general utility darkly con-
.ceived and expressed. 2. Having resolved to unite them-
selves into an independent political society, all the members
of the inchoate community jointly determine the constitu-
tion of its sovereign political government ; the member or
members in whom the sovereignty shall reside ; and if
there are to be more than one, they jointly determine the
mode wherein the sovereign number shall share the sovereign
powers. 3. The process of forming the independent politi-
cal society is completed by promises given and accepted :
namely, by a promise of the inchoate sovereign to the in-
choate subjects, by promises of the latter to the former, and
by a promise of each of the latter to all and each of the rest.,. _..
The purport of these promises is the following. — The sove-
reign promises generally to govern to the paramount end of
the independent political society, and specially to govern to
the subordinate ends (if any) signified b}^ the resolution to
form the society. The subjects promise to render to the
sovereign such obedience as shall consist with that para-
mount pm'pose and those subordinate purposes. The re-
solution of the members to unite themselves into an inde-
pendent political society, is styled intctum uniom's. Their
determination of the constitution or structm'e of the sove-
reign political government, is styled. })cictum const itutioms ov
pactum ordinationis. The promise of the sovereign to the
subjects, with the promises of the subjects to the sovereign
and to one another, are styled 2)actu)n suhjectionis : for,
thi'ough these promises the relation of subjection and sove-
reignty arises between the parties. But of the three so-
called^j«c^5, the last only is properly a convention. Through
this convention, which is styled the original convention, or
fundamental pact, the sovereign is bound (at least religiously)
to govern as is mentioned above : and the subjects are boimd
(religiously) to render to the so^■ereign for the time being,
the obedience above described. And the binding virtue of
this fundamental pact is not confined to the fomiders^ of the
independent political society ; but exjeuds to their respec-
tive successors. Through the promise made by the original
sovereign, following sovereigns are bound (religiously) to
govern as is mentioned above. Through the promises made
by the original subjects, following subjects are bound (reli-
giously) to render to the sovereign for the time being, the

130

Province of yuyispnidmcc.

Three

conclusive

objections

to the

liypothesis

euggegted.

1. For its pro-
fessed object,
namely, to
account for
tlie relatire
duties of
sovereigns
and subjects,
the hypo-
thesis is
needless, and
Inappro-
priate,

obeclieuce above tlesciiljed. — lu every society political and
independent, the duties (that is to say, religious duties) of the
sovereign towards tlie subjects, and of the subjects towards
the sovereign, arise from a pact or original covenant such as
I have above delineated. Unless we suppose such an apree-
ment, we cannot accoimt adequately for those their respec-
tive obligations.

Such, I believe, is the general piu-port of the hvpothesis,
as it is imagined and rendered by most of the writers who
resort to it.

But, as I have remarked above, the writers who -resort
to the hypothesis imagine and render it variously. Accord-
ing to some. The original subjects, covenanting for them-
selves and their followers, promise obedience to the original
and following sovereigns : but the original sovereign is not
a promising party to the fundamental civil pact. And by
the different writers who render the hypothesis thus, the
purport of the subjects' promises is variously imagined.
For example, some suppose that the obedience promised by
the subjects is the qualified or conditional obedience de-
scribed above ; whilst others suppose that the obedience
promised by the subjects is an obedience passive or im-
iimited. But though the writers who resort to the hypo-
thesis imagine and render it variously, they concur in this :
That the religious duties of the subjects towards the sove-
reign are creatm-es of the original covenant. And the
"writers who fancy that the original sovereign was a promis-
ing party to tlie pact, also concm- in this : That the religious
duties of the sovereign towards the subjects are engendered
by the same agreement.

Ha^-ing stated the purjjort of the hypothesis, I will now
suggest shortly a few of the conclusive objections to which
it is open.

1. To account for the respective duties of subjects to-
wards their sovereign government, and of the sovereign
government towards its subjects, is the scope of every
writer who supposes an original covenant. But we suffici-
ently account for the origin of those respective obligations,
when we refer them simply (or without the supposition ol
an original covenant) to their apparent and ob-\ioas foun-
tains : namely, the law of God, positive law, and positive
morality. Besides, if the fonnation of an independent po-
litical society were really preceded by a fundamental ci\-il
pact, scarce any of the duties Mng thereafter on the
subjects, or on the sovereign, would be engendered or influ-
enced by that foregoing convention. The hypothesis, there-
fore, of an original covenant, is needless, and is worse than
needless. It affects to assign the cause of certain pheno- ■
mena, namely, the respective duties of subjects and sovereign:
and the cause which it assigns is not only supei-fluous, but
also inefficieut.

Hypothesis of an Original Covaiaiif. 13 1

That au original coveuaut, although it reallj' preceded Lf.ct.
the formation of an independent political society, would ^ ^-
hardly oblige {le(/alhj, rclujioushj, or moralli/) the original
euhje'cts or sovereigns or their respective successors, will
appear from the following analysis.

Every convention which obliges legally (or every con-
tract properly so called) derives its legal efficacy from a
positive law. Speaking exactly, it is not the convention
that obliges legally, or that engenders the legal duty : but
the law annexes the duty to the convention ; or determines
that duties of the given class shall follow conventions of the
given description. Consequently, if the sovereign govern- ~
ment were bound ler/alli/ by the fundamental ci-\il pact, the
legal duty lying on the government would be the creature of a
positive "law annexing the duty to the pact. And such a
law must have been set by a sovereign go-\ernment otlier
than the so^•ereign government bound by it. Consequently, -^
the latter would be in a state of subjection — contrary to
the hypothesis. The subjects, however, might be legally
bound to keep the original covenant. Jint this legal duty
would properly proceed from the law set by their own sove-
reign, and not from the covenant itself.

Again, if the sovereign or subjects were bound religiimsly •
by the fundamental civil pact, the religious duty lying on
the sovereign, or the religious duty lying on the subjects,
would properly proceed from the Divine law, and not from
the pact itself.

The proper absolute end of an independent political
society, and the nature of the index to the law of Cod, are
conceived diflerently by different men. But whatever be
the absolute end of an independent political society, and
whatever be the nature of the index to the law of God, the
sovereign would, without an original covenant, be bound
religiously to govern to that absolute end : and the subjects
would, without an original covenant, be bound religiously
to render to tlie sovereign the obedience whicli the accom-
plishment of the end might require. The original covenant,
if consistent with that absolute end, would be superfluous
and tlierefore inoperative. If the original covenant con-
flicted with that absolute end, it would also conflict with tlie
law which is the source of religious obligations, and would
not oblige religiously tlie sovereign government or its subjects.

And though the original sovereign or the original sub-
jects might have been bound religiously by the original
covenant, why or how should it bind religiously the succeed-
ing sovereigns or subjects ? Duties to the subjects for the
time being, would be laid by the law of God on all the
following sovereigns ; and duties to the sovereign for the
time being, would be laid by the law of God on all the follow-
ing subjects : but why should tliose obligations be laid on
those following parties, through the fundamental pactP

132 Province of yiirisprndaice.

Part I. — tlirough or in cousequence of a pact made without their
§ 1. authority, and even without their knowledge ? Lerjal obli-

*~ ' "^ gations often lie upon parties (as, for example, upon heirs or
administrators), through or in consequence of promises made
by other parties whose faculties or means of fulfilling obli-
gations devolve or descend to them by virtue of positive
law. And I perceive readily the expediency of these pro-
visions of positive law. But I am unable to perceive, why
or how a promise of the original sovereign or subjects
should bind religiously the follovring sovereigns or subjects:
though I see that the cases of legal obligation to which I
now have adverted, probably suggested the gi-oundless Cuu-
ceit to those who devised the hypothesis of a fundamental
civil pact.

If, again, the sovereign were bound morally to keep the
original covenant, the sovereign would be bound by opinions
cm-rent amongst the subjects, to govern to the absolute ead
at which its authors had aimed. And if the subjects were
bound mortillii to keep the original covenant, they would be
bound severally by opinions of the community at large, to
render to tlie sovereign the obedience which the accomplish-
ment of the end might require. But the moral obligations
thus incmubent on the sovereign, with the moral obligations
thus incumbent on the subjects, would not be imposed by
the positive morality of the community, through or in conse-
quence of the pact.

To take the case most favourable to the hypothesis that
these obligations arise from such a pact, let us assume that
the fancied original covenant was conceived and constructed
bv its authors, with some particularity and precision : that,
ha^-ing determined the absolute end of their imion, it speci-
iied some of the ends positive or negative, or some of the
means or modes positive or negative, through which the
sovereign government should rule to that absolute end.
The founders, for example, of the independent political
societv (like the Iloman people who adopted the Twelve
Tables), might have adverted specially to the monstrous and
palpable mischiefs of p.f;:>osi!/<rfc/o legislation. The fancied
covenant might have determined specially, that the sovereigTi
government about to be formed sliould forbear from legisla-
tion of the kind ; and the obedience promised by the subjects
might have been promised with a coiTesponding reservation.
Now the bulk or generality of the subjects, in an indepen-
dent political communitj', might think alike concerning the
absolute end to which their sovereign government ought to
rule : and \et their uuifomi opinions concerning that absolute
end mis'ht bind or control their sovereign very imperfectly.
For notwithstanding such uniformity of sentiments they
misht thinlv so variously in regard to the subordinate ends
by "which that paramoimt end was to be compassed that they
would hardly oppose to the government, in any particular

Hypothesis of an Original Covenant. I33

case, a uniform, simiiltaueous, and effectual resistance. — But
if the mass of the subjects thought alike or uniformly con-
cerning more or fewer of the proper subordinate ends of
govemment, those uniform opinions \YOuld probably exercise
a potent influence over the sovereign. Speaking generally,
the proper subordinate ends of a sovereign political govern-,
ment may be imagined in forms, and stated in expressions,!
which are neither extremely abstract, nor exti-emely vague. ;
And, if they are clearly conceived and dehuitoly expressed, \
the government could hardly ventm-e to deviate from any '
of them without iucumug discontent and possible resistance. J

The extent to which a government is bound by the .
opinions of its subjects and the efficacy of the moral duties V^
which their opinions impose upon it depend, therefore,
mainly on the two following causes : J'ii'st, the nimiber of
its subordinate ends concerning which the mass of its sub-
jects think alike or unifonuly : secondly, the degi'ee of clear-
ness and precision with which they conceive the ends in
respect whereof their opinions thus coincide.

It foUows from what I have premised, that, if an
original covenant had determined clearly and precisely some
of the subordinate ends of government, and those ends were
favoured by the opinions of the mass of the subjects for the
time being, the sovereign would be bound effectually by the
positive morality of the community, to rule to the subordi-
nate ends which the covenant had thus specified. And here
(it might be argxied) the sovereign would be bound morally
to rule to those same ends, through or in consequence of the
fundamental pact. For (it might be said) the efficacy of th«
opinions binding the sovereign government would mainly
arise from the clearness and precision with which those
same ends were conceived by the mass of the subjects ; and
this again from the clearness and precision with which those
same ends had been specified by the original covenant. It
will, however, appear, on a moment's reflection, that the
opinions of the subject founders of the independent political
societ}' were the cause rather than the effect of the covenant.
And, granting that the clearness with which they were spe-
cified by the covenant would impart an answering clearness
to the conceptions of the subjects their successors, that efi'ect
would not be wrought by the covenant as being a covenant
or pact ; but as being a luminous statement of those same sub-
ordinate ends. And any similar statement which might
circulate widely (as a similar statement, for example, by a
popidar and respected wi-iter), would work a similar efiect.

The following (I think) is the only, or nearly the only
case, wherein an original covenant, as being a covenant or
pact, might generate or influence any of the duties lying ou
the sovereign or subjects.

It might be believed by the bulk of the subjects, that
their sovereign government was bound religiously to govem

134 Province of yiirispi'tuiencc.

Part I. to what they esteemed the absohite end of gOYernment,
§ !• rather because it had promised to goveru to that ahsohite

"~' ' end, than by reason of the intrinsic worth belonging to the
end itself. Now, if the mass of the subjects potently
believed this, the duties of the government towards its
subjects, which the positive morality of the community im-
posed upon it, would exist wholly or in part, because the
original covenant had preceded or accompanied the institu-
tion of the independent political society. For if it departed
fi'om any of the ends determined by the original covenant,
the mass of its subjects would be moved to anger _(aud
perhaps to eventual rebellion), by its breach of its proim'se,
real or supposed, rather than by that misrule of which they
esteemed it guilty. In this single case, the moral duties of
the sovereign towards the subjects would be influenced by
au original covenant real or supposed. But it will appear
from the following analysis, that, where it might engender
or influence any of those moral duties, that preceding con-
vention would probably be pernicious.

An original covenant woidd be simply useless, if it merely
determined the absolute end of the sovereign political
government : if it merely determined that the absolute end
of the government was the greatest possible advancement of
the common happiness or weal. For though the covenant
might give uniformity to the opinions of the mass of the
subjects in regard to that paramount purpose expressed in
general terms, that uniformity would, as I have shown
ah-eady, hardly influence the conduct of their sovereign
political government.

But the co^■enant might specify some of the means
through which the government should rule to its absolute
end — the common weal. And as specially determining any
of those means, or any of the subordinate ends to which the
government should rule, the original covenant would bo
simply useless, or would be positively pernicious.

If the covenant of the founders of the community did not
aftect the opinions of its succeeding members, it w^ould bo
simply useless.

If the covenant of the foimders of the community did
affect the opinions of its succeeding members, it probably
would be pernicious. Tlie community would impute to the
subordinate ends specified hj the original covenant, a worth
extrinsic and arbitrary, or independent of their intrinsic
merits. They would respect the specified ends not merely
because they believed them to be useful, but because the
venerable founders of the independent political society had
determined (by the venerable original covenant) that those
same ends were some of tlie ends or means through which
the weal of the community might be furthered by its sove-
reiorn government. Now the venerable age wherein the

Hypothesis of an Orighial Covenant.

13!

community was founded, woidd probably be less enlightened

(notwitbstandiug its claims to Aeneratiou) than any of the
ensuing and degenerate ages throngli wliich the community
might endm'e. Consef[uently, the oinnious held in an age
comparatively ignorant, concerning the subordinate ends to
which the government should rule, would influence, more or
less, through the medium of the covenant, the opinions held,
concerning those ends, in ages comparatively well-informed.
Let us suppose, for example, that the formation of the
British community was preceded by a fundamental pact.
Let us suppose (a * most unforced ' supposition) that the ig-
norant founders of the community deemed foreigTi commerce
hmlful to domestic industiy. Let us suppose, moreover,
that the government about to be formed promised for itself
and its successors, to protect the industry of its own societs',
by forbidding and preventing the importation of foreign
manufactm'es. Now if the fundamental pact made by om*
worthy ancestors were devoutly reverenced by many of om-
selves, it would hinder the diffusion of sound ceconomical
doctrines through the jn-esent commimity : and it would
prevent the existing sovereign government from legislating
wisely and usefully in regard to oiu* commercial intercourse
wi th other independent nations. Xay, the lovers of darkness
assm-edly would affirm, and probably woidd potently believe,
that the government was incompetent to withdi-aw the re-
strictions which the laws of preceding governments have
laid on our foreigm commerce : that being, as it were, & privy
of the first or original government, it was estopped by the
solemn promise which that govermuent had given.

Promises or oaths on the part of the original sovereign,
or of succeeding sovereigns, are not the efficient secm-ities,
moral or relif/ious, for beneficent government or rule. The
best of moral securities, or the best of the securities yielded
by positive morality, would arise from a wide diiiusion,
through the mass of the subjects, of the soundest political
science which the lights of the age could afibrd. The best
of religious securities would arise from worthy opinions,
held by rulers and subjects, concerning the wishes and pur-
poses of the Good and "Wise ^lonarch, and concerning the
nature of the duties which he lays upon earthly sovereigns.

2. It will appear ft'om the following strictm-es, that the
hypothesis of the fundamental pact is not only a fiction, but
is a fiction approaching to an impossibility : "that the insti-
tution of a TToXii; or civitas, or the formation of a society
political and independent, was never preceded or accom-
panied, and could hardl}' be preceded or accompanied, by
an original covenant properly so called, or by aught resem-
bling the idea of' a proper original covenant.

Every convention properly so called consists of «^>;wHj«e
or mutual ^rorms,Qs proffered and accepted, Where one only

Lect.

YI.

2. The hypo-
thesis is a
fiction, and
tlie flgnient
could have no
existence la
fact.

136 Province of Jurispnidctice.

I'Aiir I. «f the agi'eeing parties gives a promise, the couveutiou is said
§ 1. to be unilateral. Wherever mutual promises are proffered

' — -^ and accepted, there are, iu strictness, two or more cou-
veutious : for the promise proffered by each, and accepted
bv the other of the agTeeing parties, is of itself an agree-
ment. But where the performance of either of the promises
is made to depend on the performance of the other, the
several conventions are commonly deemed one convention,
and the convention is then said to be bilateral.

The main essentials of a convention are these : First, a
signijication by the promising party, of his intention to do
the acts, or to observe the forbearances, which he promises
to do or observe : secondly, a signijication by the promisee,
that he exj)ects the promising party will fulfil the proffered
promise. And that these are of the very essence of a
luopei convention or agreement, will appear on a moment's
reflection.

The conventions enforced by positive law ov morality are
enforced legally or morally for various reasons, of which
the following is always one. — Sanctions apart, a convention
tends to raise in the mind of the promisee an expectation
that its object will be accomplished : and to the expectation
so raised he naturally shapes his conduct. Now, as niuch
of the business of himiau life tm'ns or moves upon conven-
tions, frequent disappointments of those expectations which
conventions naturally excite, would render human society
a scene of baffled hopes, and of thwarted projects and
labours. To prevent such disappointments is a main object
of the legal and moral rules whose direct and appropriate
pm-pose is the enforcement of pacts or agreements. But
the promisee would not entertain the expectation, unless
the corresponding intention were sig-niiied by the promising
party : and, unless the existence of the expectation were
signified by the promisee, the promising party would not
be apprised of its existence, although the profiered promise
had actually raised it. "Without the signification of the
intention, there would be no promise properly so called: with-
out the signification of the expectation, there would be uo
sufficient reason for enforcing the genuine promise which
really may have been profiered. A promise profiered but
not accepted is called, in the technical language of the
lloman jurists, a^7o'//c;yff;'/o?i.*

It follows that an original covenant properly so called,

* The incidental statement, in the text, of the essentials of a
convention or pact, is sufficient for tlie limited purpose to which I
have there placed it. A good exposition of the rationale of con-
tract or convention would involve a seaichin£c analysis of the fol-
lowing intricate expressions : — promise ; pollicitation ; convention,
agreement, or pact; contract; quasi-contract; some of which will be
further adverted to in the sequel.

HypotJicsis of an Original Covenant.

or auglit resemljliug it, could hardh' precede tlie formation
of an independent political society.

According to the hypothesis of the original covenant, in
60 far as it regards the promise of the original sovereign,
the sovereign promises to govern to the absolute end of the
union (and, perhaps, to more or fewer of its subordinate or
instrumental ends). And the promise is proffered to, and
is accepted by, all the original subjects. According to the
h}'pothesis of the original covenant, in so far as it regards
the promise of the original subjects, they promise to render
to the sovereign such a qualified obedience as shall consist
with the given ends. And the promise of the subjects
passes from all the subjects : from all and each of the sub-
jects to the monarch or sovereign body, or from each of the
subjects to all and each of the rest.

Xow it appears from the foregoing statement of the
main essentials of a convention, that the promise of the
sovereign to the subjects would not be a covenant properly,
unless the subjects accepted it. But the subjects could
hardly accept it, unless they apprehended its object. Other-
wise, the promise could hardly raise in their minds any
determinate expectation, still less could they signify such
expectation. Now the ignorant and weaker portion of the
inchoate community (the portion, for example, which was
not adidt) could hardly apprehend the object of the sove-
reign's promise, whether general or special. We Imow that
the gTeat majority, in any actual community, have no
determinate notions concerning the absolute end to which
their sovereign government ought to rule ; nor any deter-
minate notions concerning the ends or means through which
it should aim at the accomplishment of that its paramount
purpose. It surely, therefore, is absurd to suppose, that
all or many of the members of any inchoate community
would have determinate notions concerning the scope of
their union, or concerning the means to its attainment.
Consequently, most or many of the original subjects would
not apprehend the object of the original sovereign's promise :
and, not apprehending its object, they would not accept it
in effect, although they might accept it in show. With
regard to them, the promise of the original sovereign would
be hardly a covenant or pact, but a mere pollicitation.

The remarks which I have now made on the promise of
the original sovereign, will apph', with a few obvious adapt-
ations, to the promise of the original subjects.

If you would suppose an original covenant which as a
mere hypothesis will hold good, you must suppose that the
society about to be formed is composed entirely of adult
members : that all these adult members are persons of sane
mind, and even of much sagacity and much judgment; and
fairly acquainted with political and ethical science. Oa

138 Province of yurisprudence.

Part I. these bare possibilities, you may build an original covenant
§ 1- which shall be a coherent fiction.

^"~ ' It is hardly necessary to add, that the hj-pothesis of the

original covenant, in any of its forms or shapes, has no
foundation in actual facts. There is no historical e\adence,
that the h-\-pothesis has ever been realised : that the forma-
tion of any society political and independent has actually
been preceded by a proper original covenant, or by aught
approaching to the idea.

In a few societies political and independent (as, for ex-
ample, in the Anglo-American States), the sovereign political
government has been determined at once, and agreeably to
a scheme or plan. But, even in these societies, the parties
who determined the constitution (either as scheming or
planning, or as simply voting or adopting it) were merely a
slender portion of the whole of the independent community,
and were ^-irtually sovereign therein before the constitution
was determined: insomuch that the constitution was not
constructed by the whole of an inchoate community, but
rather was constructed by a fraction of a community already
consummate or complete. In most societies political and
independent, the constitution of the supreme government
has groicn. Bj' which fustian but current phrase, I intend
not to intimate that it hath come of itself, or is a marvellous
something fashioned without hands. I mean that its con-
stitution has been the work of a long series of authors,
comprising the original members and many generations of
their followers. And the same may be said of most of the
ethical maxims which opinions current with the subjects
constrain the sovereign to observe. The original sovereign
govenmient could not have promised its subjects to govem
by those maxims. For the current opinions which actually
enforce those maxims, are not coeval with the independent
political society, but rather have arisen insensibly since the
society was formed. In some societies political and inde-
pendent, oaths or promises are made by rulers on their
accession to office. But such an oath or promise, and an
original covenant to which the original sovereign is a pro-
mising party, have little or no resemblance. That the
formation of the society political and independent preceded
the conception of the oath itself, is commonly implied by
the terms of the latter. The swearing party, moreover, is
commonly a limited monarch, or occupies some position
like that of a limited monarch : that is to say, the swearing
party is not sovereign, but is merely a limb or member of a
sovereign body.

It is said, however, by the advocates of the hypothesis,
(for the purpose of obviating the difficulty which these
negative cases present), that a tacit original covenant pre-

Hypothesis of an Original Covenant.

ceded the formation of the society, although its fonnation
was not preceded by an express covenant of the kind.

Now the only difference between an express, and a
tacit or implied convention, lies in this : That, where the
convention is express, the intention and acceptance are sig-
nified by langaiage, or by signs which custom or usage has
rendered equivalent to language : but that, where the con-
vention is tacit or implied, the intention and acceptance are
not signified by words, or by signs which custom or usage
has made tantamount to words.

Most or many, therefore, of the members of the inchoate
society, could not have been parties, as promisors or pro-
misees, to a tacit original covenant. For they could not
have conceived the object with which, according to the
hypothesis, an original covenant is concerned ; and could
not have signified in any way an intention which they were
not competent to entertain.

Besides, in many of the negative cases to which. I now
am adverting, the position and deportment of the oi-iginal
sovereign government, and the position and deportment of
the bulk of the original subjects, exclude the supposition
of a tacit orig-inal covenant. For example: "Where the
original government begins in a violent conquest, it scarcely
promises tacitly, by its violences towards the vanquished,
that it will make their weal the paramount end of its rule.
And a tacit promise to render obedience to the intrusive
and hated government, scarcely passes from the reluctant
subjects. They presently v:ill to obey it, or presently consent
to obey it, because they are constrained to obey it, by their
fear of its military sword. But the will or consent to obey
it presently, to which they are thus constrained, is scarcely
a tacit 2)romt'se (or a tacit manifestation of intention) to
render it future obedience. For they intimate pretty sig-
nificantly, by the reluctance with which they obey it, that
they would kick with aU their might against the intrusive
government, if the military sword which it brandishes were
not so long and fearful.

By certain of the later advocates of the hj-pothesis of
the original covenant (chiefly German writers on political
government and society), it is commonly admitted that
original covenants are not historical facts : but thev zeal-
ously maintain, uot'n-ithstandiug this sweeping admission,
that the only sufficient basis of an independent political
society is a fundamental civil pact. I wiU not undertake
to guide the student into the transcendental regions where
this language is supposed to have a meaning,*

* For the notions or language, concerning the original covenant,
of German writers on political government and society, I refer the
curious reader to the following booi<s.— 1. Kant's Metaphysical

140

Province of Jurisprudence.

3. The hypo-
cliesls pro-
ceeds on
a false

assumption as
to the univer-
sal connexion
between
duty and
ronvention.

3. I close my stiicttu^s on the hypothesis of the original
covenant, Avith the following remark :

It would seem that the h^iDothesis was suggested to its
authors, by one or another of these suppositions. 1. "Where
there is no convention, there is no duty. In other words,
whoever is obliged, is obliged thi-ough a promise given and
accepted. 2. Eveiy convention is necessarily followed by
a duty. In other words, wherever a promise is given and
accepted, the promising party is obliged through the pro-
mise, let its object and teudeucy be what they may. It is
assumed, expressly or tacitly, by Hobbes, Kant, and others,
that he who is bound, has necessarily given a promise, and
that he who has given a promise is necessarily bound.

But both suppositions are grossly and obviously false. —
Of religious, legal, and moral duties, some are imposed by
the laws which are their respective som-ces, through or in
consequence of conventions. But others are annexed to
tacts which have no resemblance to a convention, or to
aught that can be deemed a promise. Consequently, a sove-
reign government might lie under duties to its subjects, and
its subjects might lie under duties towards itself, though
neither it nor its subjects were bound thi'ough a pact. —
And as duties are annexed to facts which are not pacts or
conventions, so are there pacts or conventions which are

Principles of Jurisprudence. For the original covenant, see the
head Das Slaatsrecht. — 2. A ■well made Philosophical Dictionary
(in four octavo volumes), by Professor Krug of the University of
Leipzig. For the original covenant, see the article Staatsur sprung.
— 3. An exposition of the Political Sciences {Staatsicissenschafteii),
by Professor Politz of the same University : an elaborate and useful
work in five octavo volumes. For the original covenant, see the
head Staais und Staatenrtcht. — -1. The Historical Journal (for Nov.
1799) of Fr. v. Gentz : a celebrated sen-ant of the Austrian govern-
ment.

For, in Germany, the lucid and coherent doctrine to which I
have adverted in the text, has not been maintained exclusively by
mere metaphj-sical speculators, and mero university-professors, of
polities and jurisprudence. We are gravely assured by Gentz, that
tlie original covenant (meaning this same doctrine touching the
original covenant) is the ver\' basis of the science of politics : tiiat,
■without a correct conception of the original covenant, we cannot
judge soundly on any of the questions or problems which the
science of politics presents. ' Der gesellschaftliche Vertrag (says
he) i?t die Basis der allgemeinen Staatswissenschaft. Fine richtige
Yorstellung von diesem Yertrage ist das erste Erforderniss zu einem
reinen Urtheile Uber alle Fragen und Aufgaben der Politik.' Nay,
iie thinks that this same doctrine touching the original covenant, is
probably the happiest result of the newer German philosophy ; inso-
much that the lairest product of the newer German philosophy is
the conceit of an original covenant which never was made anywhere,
>.ut which is the necessary basis of political government and societ}-.
— Warmly admiring German literature, and profoundly respecting
German scholarship, I cannot but regret the proneness of Germau
philosophy to vague and misty abstraction.

Govermiicnts de jure and dc facto. 141

s
not followed by dutic=-». Conventions are not enforced Ijy
di\-ine or human law,-j without rcierence to their objects and
tendencies. 1'i«rQ,r are mart'- conventions which positive
morality reprobates- • ther«- ai'e many which positive law
will not sustain, and 11. oav which positive law actively an-
nuls : there are many which conflict with the law of God,
inasmuch as their tendencies are generally pernicious. Con-
sequently, although the sovereign and subjects were parties
to an original covenant, neither the sovereign nor subjects
would of necessity be bound b}^ it.

From the oriain or caur-es of political s'overnment and J.''e distinc-

_ ",-,...■'„ ■. tion 01 sove-

eociety, 1 pass to the distmction 01 sovereign governments reign govcm-
into governments dejure and governments de facto. For the go'^vernmsiits
two topics are so connected, that the few brief remarks dejure and
which I shall make on the latter, may be placed aptly at the oe facto-
end of my disquisition on the fonner.

In respect of the distinction now in question, govern-
ments are commonly divided into three kinds : First, govern-
ments which are governments de jure and also de facto ;
secondly, governments which are governments de jure but
not de facto ; thirdly, gOA'ernments which are governments
de facto but not de jure. A government de jure and also
dc facto, is a government deemed lawful, or deemed rightful
or just, which is present or established: that is to say,
which receives presently habitual obedience from the bulk
or generality of the membei's of the independent political
community. A government dejure but not de facto (shortly
expressed by the elliptical phrase ' a govermuent dejure '),
is a government deemed lawful, or deemed rightful or just,
which, nevertheless, has been supplanted or displaced : that
is to say, which receives not presently (although it received
formerly) habitual obedience from the bulk of the com-
munit}-. A govermnent de facto but not dejure (or more
shortly ' a government de facto '), is a gov^ernment deemed
ivnlawful, or deemed wrongful or unjust, which, nevertheless,
receives presently habitual obedience from the bulli of the
community.

In respect of positive laic, a sovereign political govern-
ment which is established or present, is neither lawful nor
unlawful : In respect of positive laiv, it is neither rightful
nor -ssi-ongful, it is neither just nor unjust. It is therefore
neither legal nor illcf/al.

In every society political and independent, the actual po-
sitive law is a creature of the actual sovereign. Law, no
longer enforced by the present supreme government, would
cease to be law in the sense of positive law. To bon-ow the
language of Ilobbes, ' The legislator is he (not by whose
Authority the law was first made, but) by whose authoritj
it continues to be law.'

142 Province of yurispmdcnce.

Consequentlv, an established sov^^'eigu government, in
respect of the positive law tf its own judependent couimu-
uity, is neither la's\-ful nor unharfiil. Fc'^' ^^' ^^ : it '"'ere lavr-
ful or unlawful by some law eithn- of its rv'svn appointment,
or hy the appointment of another -.o'' ereign. The former
alternative is manifestly absurd ; and the latter is contrary
to the hypothesis of its sovereignty.

Tn respect of the positive law of that independent com-
munity wherein it once was sovereign, a so-called gnveru-
ment de jure but not ch facto, is not, and cannot be, a lawful
government: for by the positive law of the community,
which exists by the authority of the government de f<fcto,
the supplanted government is proscribed, and attempts to
restore it are maJe legal wi-ongs. In respect of the positive
law of another independent community, a so-called govern-
ment de jure but not de facto is neither lawful nor unlawful.
For by the hypothesis, the other independent commimity
has no power recognised by habitual obedience, by which it
can interfere. ^

In respectT^then, of positive laic, the distinction of sove-
reign governments into lawfid and imlawful is a distinction
without a meaning. For, as tried by this test, or as mea-
sm-ed bv this standard, a so-called government de jure but
not de 'facto cannot be lawful : and, as tried by the same
test, or measured by the same standard, a govermnent de
facto is neither lawful nor imlawful.

In respect, however, of jjositive morality, the distinction
of sovereign governments into lawful and unlawful, is not
a distinction without a meaning.

A government de facto may be lawful, or a govenunent
de facto may be unlawful, in respect of the positive morality
of that independent commimity wherein it is established.
If the opinions of the bulk of the community favour the
2-overnment de facto, the government de facto is morally
fawful in respect of the positive morality of that particular
society. If the opinions of the bulk of the c»3mmunity be
adverse to the govermnent de facto, it is morally unlawful
in respect of the same standard.

And a govermnent de facto, or a government not de facto,
may be morally lawful, or morally unlawful, in respect of the
positive morality which obtains between nations or states.
Though positive international morality looks mainly at the
possession, every government in possession, or every govern-
ment de facto, is not acknowledged of course by other estal^-
lished govermneuts. In respect, therefore, of positive
international morality, a government f/e/"«c/;o may be unlaw-
ful, whilst a government not de facto may be a government
de jure.

A government, moreover, de facto, or a go-*-emmeut not
de facto, may be lawful or lmla^viul in respect of the law of

posit
law : Or a
general st.'ito-
iiieiit of the
e«seiitml
diffcreiire l>y
wliicli it is
severed from
a law not a

Final Definition of Positive Laxv. 14.3

God. Tried by tlie Divine law, as knowu tlarouglitbe prin- Lkot.
ciple of utility, a sovereign government de facto is lawfully ^ VI^
a aovereign government, if the general liappiuess or weal ' ' '
requires its continuance. Tried by the same law, as known
through the same index, a sovereign government de facto is
not lawfully sovereign, if the general happiness or weal re-
quires its abolition. ^

The definition of a positive law implicitly contained in a penerai
the foregoing lectiu-e?, and which has l)een already stated by a r"o"u'ive °'
anticipation (p. 82 supra), may now be reiterated iu terms
which have been explained with an approach to precision.
The essential difference which severs a positive law from a
law not a positive law is this : — Every positive law (or
every law simply and strictly so called) is set, directlx-QJ-'
circuitously, by a sovereign individual or I'^riy^ tn -a m^^^l^ov positive law
or members ot thejndejieiuleiii^political eoeicJty wherein its
author is supreme, ^u otlier_3Y.Qrd^; Tt is 'pt, divectly-or
c1rcuitousI\', ):)y a'nrSharcTTor so-\i?reigii number, to ajergou
- o¥-pei-son? in a stafe'QF'suTjJectiou to-itg author"

The definition, however, only approaches to a perfectly Tiiis denni-
complete and perfectly exact definition. It is open to cer- ,,'osuhc^
tain coiTectives which I will now briefly suggest. sumed^'ex-

Eveiy law properly so called is set by a superior to an ]ires=iy c^r
inferior or inferiors : it is set by a party armed with might, t?,r',msi,nu
to a party or parties whom that might can reach. Now
(spealring generally) a party who is liable to be reached by
the might of the author of the law is a member of the in-
dependent community wherein the author is sovereign. In
other words, a party who is amenable to a legal sanction is
a subject of the author of the law to which the sanction is
annexed. Although the positive law may aft'ect to oblige
strangers (or parties who are not members of that indepen

theforegjiiig
lectures,
nut it only
apiiroacliesto
a jierfectly
complete and
perfectly
exact deflni-
tioii. And,
conse-
quently, tlie
determina-
tion of tlie

dent community), none but members of that independent province ot
community are virtually or truly bound by it. Besides, if prudence.

the positive law of one independent community bound legally
(and generally) the members of another, the other inde-
pendent community would not be an independent community'',
but merely a subordinate community forming a limb of the
first. ^

Spealring, then, generally, we may say that a positive law
is set or directed exclusively to a subject or subjects of -its-
author : ^|o? that a positive-lawJs set Drjirecled-exclusively^
to a memBer or members of the community wherein itsj
;^thor is sovereign:^ iiut, in many cases, tJie positive law
ofH^give'u iffdelJemTent community imposes a duty on a
straiicfcr : on a parry who is not a member of the given inde-
pendent community, or is only a member to certain limited
purposes. For such, in these cases, is the position of the
stranger, that the imposition of the lejal duty consists with

wlik-li j
attempted in
tlie foregoing
lectures, only
approaclies
to a per;ectly
complete and
perfectly
exact deter-
niinatiou.

144 Province of Juyisprndcncc.

Part T. the sovereio-nty of tlie coTerumeut of -svliicli lie is properly a
§ ^ • subject. For example : A i^arty uot a member of a given
independent community, but living- within its temtoiy and
witliin the jurisdiction of its sovereigrn, is bound or obliged,
to an extent wliieh is limited by its positive law. Living-
witliin the territory, he is liable to be reached by the legal
sanctions by which the law is enforced. And the legal
duties imposed upon him by the law are consistent with the
sovereignty of the foreign government of which he is properly
a subject. For the duties are not imposed upon the foreign
government itself, nor upon the members generally of the
community subject to it, nor are they laid upon the obliged
party as being one of its subjects, but as being a member, tu
certain limited purposes, of the community wherein he re-
sides. Again : If a stranger not residing within the given
community be the owner of land or moveables lying within
its ten-iton', the sanction of the law may reacli him through
the land or goods. For instance, if he be sued on an agree-
ment, and judgment be given for the plaintifl", the tribunal
may execute its judgment by resorting to tlie land or move-
ables, although the defendant's body is beyond tlie reach of
its process. And this consists with the sovereignty of the
government of which tlie stranger is properly a subject. In
all the cases, therefore, whicii I now have noted and ex-
emplified, the positive law of a given independent society
may impose a duty on a stranger. By reason of the obstacles
mentioned in the preceding- paragi-aph, the binding virtue of
the positive law cannot extend generally to members of
foreign communities. But in the cases which I now have
noted and exemplified those obstacles do not intervene.

The definition, therefore, of a positive law, which is as-
sumed expressly or tacitly throughout the foregoing lectures,
is not a perfectly complete and perfectly exact definition.
In the cases noted and exempliiied in the last paragraph,
a positive law obliges legally, or a positive law is set or
directed to, a strnvger or sfraur/ers : that is to say, a person
or persons not of the community wherein the author of the
law is sovereign or supreme. Now, since the cases in ques-
tion aj-e omitted by that definition, the definition is too
uaiTow, or is defective or inadequate : and to a coiTesponding
extent the determination of the pro'S'ince of jurisprudence,
which is attempted in these discom-ses, falls short of being
a complete and exact determination.

But the truth of the positions and inferences contained
in the preceding lectures is not, I believe, materially im-
paired by this omission and defect. And though the defi-
nition is not complete, it approaches nearly to completeness.
Allowing for the omission of the anomalous cases in ques-
tion, it is, I believe, an adequate definition of its subject.
Moifof'""^ I have said that a given society is a society political

and independent, if the bulk or generality of its members

Independent Political Society. 145

habitually obey the commauds of a detevmiuate iudividual,
or body of individuals, not obeyiug habitually the express
or tacit commands of a determinate liumau superior. But
by what characters, or by what distinguishing marks, are fect'i'nfiKf'
the members of a given society severed from persons who ^e^fp^°',"(,^
are not of its members? Or how is a given person deter- nniuonof
mined to a given community ? These questions are not re- potfucai*^*^"'
solved or touched by my definition : and it might seem, society,
therefore, that the definition is not complete or adequate.
But, for the following reasons, I believe that the foregoing-
definition, considered as a general definition, is, notwith-
standing, complete or adequate : that a general definition of
independent political society could hardly resolve the ques-
tions which I have suggested above.

1. It is not through one mode, or it is not through one
cause, that the members of a given society are members of
that community. A person may be determined to a given-
society, by any of numerous modes, or by any of numerous
causes : as, for example, by birth within the territory which
it occupies; by birth without its territoiy, but of 'parents -
being of its members ; by simple residence within its terri-
toiy; or by naturalization.* — Again: a subject member of"
one society may be, at the same time, a subject member of
another. A person, for example, who is naturalized in one
independent societv', may yet be a member completely, or
to certain limited purposes, of that independent society
which he afiects to renounce : or a member of one society
who simply resides in another, may be a member completely
of the former society, and, for limited purposes, a member of
the latter. Nay, a person who is sovereign in one society,
may be, at the same time, a subject member of another.
Before I could have resolved these questions I must have
descended into the detail of jurisprudence; and therefore I
must have wandered from the proper pm'pose or scope of
the foregoing general attempt to determine the province of
the science.

2. By a general definition of independent political society

* The following brief explanation may be placed pertinently
here.

Generallj' speaking, a society political and independent occupies
a determined territory. Consequently, when we imagine an inde-
pendent political society, we commonly imagine it in that plight :
And, according to the definition of independent political societj'
which is assumed expressly or tacitly hj many writers, the occupa-
tion (by the given society) of a determined territory, or seat, is of
the verj' essence of a society of the kind. But tliis is an error.
History' presents us with societies of the kind which have been, as
it were, in transitu. Man}', for example, of the barbarous nations
which invaded and settled in the Koman Empire, were not, for
many years before their final establishment, occupants of detef
mined seats.

H

146

Province of yurisprudence^

Hestrictions
or explana-
tions of the
two fol-
lowing
positions :
namely, that
s sovereign
i; •verninent
aiinot be
bunnd legnlhj,
and that it
cannot have
ligal rights
against its
own subjects.

(or sucli a defiuition as is applicable to eveiy sociei v of tho
kind), I could not have resolved completely the questions
suggested above, although I had discussed the topics touched
in the last paragraph. For the modes through vrhich persons
are members of particular societies (or the causes by which
persons are determined to particular societies) differ in dif-
ferent communities. It therefore is only in relation to a
given particular society that the questions suggested above
can be completely resolved.

I have assiuned expressly or tacitly throughout the fore-
going lectiu'es that a sovereign government of one, or a sove-
reign government of a number in its collective and soveleign
capacity, cannot be bound ler/alb/. This needs a slight ex-
planation, wliich may be placed conveniently at the close of
my present discourse.

It is true universally that, as being the sovereign of the
community wherein it is sovereign, a sovereign government
cannot be bound legally : and this is the sense with which I
have maintained the position throughout the present lecture.
But, as being a subject of a foreign supreme government
(either generally or to certain limited pm'poses), it may be
boimd by laws (simply and strictly so called) of that foreign
supreme government. And if the laws be exclusively laid
upon it as subject in the foreign community, its sovereignty
is not impaia'ed by the obedience which it yields to them,
although the obedience amounts to a habit. The following
case will amply illustrate the meaning which I have stated
in general expressions. — Before the French revolution, the
sovereign government of the Canton of Bern had money in
the English funds : and if the English law empowered it to
hold lands, it might be the owner of lands within the
English ten'itoiy, as well as the owner of money in the
English funds. Now, assmning that the government of
Bern is an owner of lands in England, it also is subject to
the legal duties with which property in land is saddled by
the English law. But by its subjection to those duties, and
its habitual observance of the law through which those duties
are imposed, its sovereignty in its own Canton is not annulled
or impaii-ed. For tlie duties are incumbent upon it (not as
governing there, but) as owning lands here : as being, to
limited purposes^ a member of the British community, and
amenable, through the lands, to the process of the English
tribunals.

I said in an earlie" part of this lecture (p. 115 suprci), that
a sovereign govenuuen. of one, or a sovereign government of
a number in its collective and sovereign capacity, cannot
have lef/al ri(,hts (iu the proper acceptation of the term)
against its own subjects. In the sense with which I have
advanced it, the position will hold universally. But it

General and Particular Jitrlsprudcnce. 147

needs a sliglit explauatiou, wliicli I will now state or Lkct.
sugo'est. ^^-

It is true imiversally, that against a suTsject of its own, as ' ' ^
being- a subject of its own, a sovereign political government
cannot have legal rights : and this is the sense wnth which
I have advanced the position. But against a subject of its
o^vn, as being generally or partially a subject of a foreign
government, a sovereign political government may have legal
rights. For example : Let us suppose that a Russian mer-
chant is resident and domiciled in England : that he agrees
with the Russian emperor, to supply the latter with naval
stores : and that the laws of Eugland, or the Eng-lish tri-
bunals, lend their sanctions to the agreement. Now, accord-
ing to these suppositious, the emperor bears a right, given
by the law of England, against a Russian subject. But the
emperor has not the right through a law of his own, or against
a Russian subject in that capacity or character. He bears
the legal right against a subject of his own, through the
positive law of a foreign independent society ; and he bears
it against his subject (not as being his subject, but) as being
to limited purposes, a subject of a foreign sovereign. And
the relative legal duty lying on the Russian merchant consists
with the emperor's autocrac}^ in all the Russias. For since
it lies upon the merchant as resident and domiciled in Eug-
land, the sovereign British Parliament, by imposing the duty
upon him, does not interfere with the autocrat in his own
independent community.

SeCXION II. — GeITERAL JuKIsrETTDENCE DISTINGTJISHED

PR05I Particular.

LECTURE XL*
On general as dktinfftiislied fro7n 2)(^rttcul(ir Jun'sprudejice,

Having detennined the pro\ance of jm'isprudence, I now Lect
proceed to distinguish general jurisprudence, or the philo- XI.

sophy of positive law, from what may be styled particular ■

iurisprudence, or the science of particular law : that is to afs'trir'ni^hci

say, the science of any such system of positive law as now from pmi-

— prudence.

* The preceding six lectures comprise the substance of the first
ten lectures as actually delivered, being those which were revised
and enlarged by the author himself, and published by him (in 1832)
in the form of six lectures in the volume entitled 'The Province of
Jurisprudence Determined.' — 11. C.
h2

148 General and Particular

actually olbtairis, or once actually obtained, in a specifically
determined political society.

The appropriate subject of jurisprudence, in any of its
different departments, is positive law : meaning by positive
law, law established or ' positum,' in an independent poli-
tical society, by the express or tacit authority of its sove-
reign or supreme government.

Considered as a whole, and as implicated or connected
with one another, the positive laws or rules of a particular
or specified community, are a sj'stem or body of law. And
as limited to any one of such systems, or to anj^ of its com-
ponent parts, jurisprudence is particular or national.

Though every system of law has its specific and cha-
racteristic differences, there are principles notions and
distinctions common to various systems, and forming
analogies or likenesses by w^hich such systems are allied.

Many of these common principles are common to all
systems ; — to tlie scanty and crude S3'stems of rude com-
munities, and the ampler and maturer systems of refined
societies. But the ampler and maturer systems of refined
societies are allied by the numerous analogies which obtain
between all systems, and also by numerous analogies which
obtain exclusively between themselves. Accordingly, the
various principles common to maturer systems are the sub-
ject of an extensive science : which, as contradistinguished
to particular jurisprudence on one side, and on another, to
the science of legislation, has been named general (or com-
parative) jurisprudence, or the philosophy of positive law.
This science is the topic, and measures the scope of the
present course of lectures. Of all the concise expressions
which I have turned in my mind, ' the philosophy of
positive law ' is the most significant to mark it. I have
borrowed the expression from a treatise by Hugo, a cele-
brated professor of jurisprudence in the University of
Gottingen, and the author of an excellent liistory of the
Roman law. Although the treatise in question is entitled
' the law of nature,' it is not concerned with the law of nature
in the usual meaning of the term. In the language of the
author, it is concerned with ' the law of nature as a 2M0-
sophy of positive IcnoJ But though this expression is happily
chosen, the subject and scope of the treatise are conceived
indistinctly. General jurisprudence, or the philosophy of
positive law, is blended and confounded, from the beginning
to the end of the book, with the portion of deontology or
ethics, which is styled the science of legislation : while, as
I shall show immediately, general jurisprudence, or the
philosophy of positive law, is not concerned directly with
the science of legislation.

As principles abstracted from positive systems are the
subject of general jurisprudence, so is the exposition of such

yurisprudciicc.

149

principles its exclusive or appropriate object. With the
goodness or badness of laws, as tried by the test of utility
(or bv any of the various tests which divide the opinions of
mankind), it has no immediate concern. If, in regard to
some of the principles which form its appropriate subject,
it adverts to considerations of utility, it adverts to such con-
siderations for the purpose of explaining such principles,
and not for the pm-pose of determining their worth. And
this distinguishes the science in question from the science
of legislation, which afl'ects to determine the test or standard
(together with the principles subordinate or consonant to
such test) by which positive law ought to be made, or to
which positive law ought to be adjusted.

If the possibility of such a science as that which I have
undertaken to expound appear doubtful, the doubt arises
from this ; that in each particular system, the principles and
distinctions which that system has in coimnon with others,
are complicated with its individual peculiarities, and are
expressed in a technical language peculiar to itself.

It is not meant to be alhrmed that these principles and
distinctions are conceived with equal exactness and ade-
quacy in every particular system. In this respect different
.systems differ. But, in all, they are to be found more or
less nearly conceived ; from the rude conceptions of bar-
barians, to the exact conceptions of the Roman lawyers or
of enlightened modern jurists.

I mean, then, by ' General Jurisprudence,' the science
concerned with the exposition of the principles notions
and distinctions which are common to systems of law :
imderstanding by systems of law the ampler and maturer
systems which, by reason of their amplitude and matiu-ity,
are pre-eminently instructive.

Of the principles notions and distinctions which are
the subjects of general jurisprudence, some maybe esteemed
necessary. For we cannot imagine coherently a system of
law (or a system of law as evolved in a reffned conunimit}),
without conceiving them as constituent parts of it.

Of these necessary principles notions and distinctions,
I will suggest briefly (lay way of anticipation of the more
full analysis to be given hereafter) a few examples.

1. The notions of Duty, Right, Liberty, Injury, Punish-
ment, Redress ; with their various relations to one an-
other, and to Law, Sovereignty, and Independent Political
Society- :

2. The distinction between written and unwritten law,
in the jiu-idical or improper senses attributed to the opposed
expressions ; in other words, between law proceeding im-
mediately from a sovereign or supreme maker, and law
proceeding immediately from a subject or subordinate
malier (with the authority of a sovereign or supreme) :

Some of the
principles
notions and
distinctions
which belong
to general
juris-
prudence are
necessary.

Examples of
these.

I50

General and Particular

Of the
principles
notions and
distinctions
whicli belong
to general
jurls-
lirudence
Eome are not

Examples.

3, The distinction of Rights, into rights availing
against the world at large (as, for example, property or
dominion), and rights availing exclusively against persons
specifically determined (as, for example, rights arising from
contracts) :

4, The distinction of rights availing against the world
at large, into property or dominion, and the variously re-
sti'icted rights which are carved out of property or do-
miuiou :

5. The distinction of Obligations (or of duties corre-
sponding to rights against persons specifically determined^
into obligations which arise from contracts, obligations
which arise from injuries, and obligations which arise
from incidents that are neither contracts nor injuries, but
which are styled analogically obligations ' quasi es con-
tractu : '

6. The distinction of Injuries or Delicts, into cinl in-
juries (or private delicts) and crimes (or public delicts) ; with
the distinction of ci^dl iujmies (or private delicts) into torts,
or delicts (in the strict acceptation of the term), and breaches
of obligations from contracts, or of obligations 'quasi ex
contractu.'

It will, I believe, be found on a little examination and
reflection that every system of law evohed in a refined
community implies the notions and distinctions which I
now have cited as examples ; together with a multitude of
conclusions imported by those notions and distinctions, and
drawn from them by tlie builders of the system thi'ough
inferences nearly' inevitable.

Of the principles notions and distinctions which are
the subjects of General Jurisprudence, othera are not ne-
cessary (in the sense which I have given to the expression).
^^^e may imagine coherently an expanded system of law,
without conceiving them as constituent parts of it. But as
they rest upon grounds of utility which extend through all
communities, and which are palpable or obnous in all re-
fined comniimities, they in fact occur veiy generally in
matured systems of law ; and therefore may be ranked pro-
perly with the general principles which are the subjects of
general jurisprudence.

Such, for example, is the distinction of law into 'jus
personarmn.' and 'jus reruiu': which is the leading prin-
ciple of the scientific arrangement given to the Roman Law
by the authors of the elemeutarj' treatises from which
Justinian's Institutes were copied and compiled. The dis-
tinction, I believe, is an arbitrarily assimied basis for a
scientific arrangement of a body of law. But being a com-
modious basis for an arrangement of a body of law, it has
been very generally adopted by those who have attempted
such arrano;ements in the modern European nations. It

Jurispyudcnce. 1 5 1

has beeu very generally adopted by tlie compilers of the
autlioritative Codes whieli obtain in some of those nations,
and by private authors of expository treatises ou entire
bodies of law. Nay, some who have mistalceu the import
of it, and who have contemptuously rejected it as denoted
by the obscure antithesis of ' jus persouarum et rerum,' have
yet adopted it imder other (and certainly more appropriate)
names as the basis of a natm'al arrangement. Meaning, I
presume, b}' a natural arrangement, an arrangement so
commodious, and so highly and obviously commodious,
that any judicious methodiser of a body of law would
naturally (or of course) adopt it.

But it will be impossible, or useless, to attempt an ex-
position of these principles notions and distinctions, until
by careful analysis we have accuratelj'^ determined the
meaning of certain leading terms which we must necessarily
employ ; terms which recur incessantly in every department
of the science : which, whithersoever we turn ourselves, we
are sure to encounter. Such, for instance, besides Law,
which I havo endeavoured to define in the preceding
lectures, are the following: llight. Obligation, Injury,
Sanction, Person, Thing, Act, Forbearance. Unless the
iiuport of these are determined at the outset, the subsequent
speculations will be a tissue of uncertain talk.

It is not unusual with writers who call and tliink them-
selves ' institutional,^ to take for granted that they know
the meaning of these terms, and that the meaning must be
known by those to whom they address themselves.

These tenus, nevertheless, are beset with numerous
ambiguities : their meaning, instead of being simple, is ex-
tremely complex. They are short marks for long series of
propositions. And what aggravates the difficulty of ex-
plaining their meaning clearly, is the intimate and indis-
soluble connection which subsists between them. To state
the signification of each, and to show the relation in which
it stands to the others, is not a thing to be accomplished
by short and disjointed definitions, but demands a disser-
tation, long, intricate, and coherent.

The proper subject then of General Jurisprudence (as
distinguished from the Science of Legislation) is a descrip-
tion of such subjects and ends of Law as are common to all
systems ; and of those resemblances between different sys-
tems which are bottomed in the common natm-e of man, or
correspond to the resembling points in their several
positions.

And these resemblances will be found to be very close,
and to cover a large part of the field. They are necessarily
confined to the resemblances between the systems of a few
nations ; since it is only a few systems with which it is
possible to become acquainted, even imperfectly. Aad it ie

;

152

General and Particular

Paiit I. ouly tlie systems of two or three nations ■wliicli deserve
§2^ attention ; — the wi'itings of the Roman Jm'ists ; the decisions
of English Judges in modern times ; the provisions of
French and Prussian codes as to an-angement. *

Iiievltabls
land some-
times in-
tentional)
Implication
o( Legisla-
tion with
Juris-
prudence.

It is impossible to consider Jurisprudence quite apart
from Legislation ; since the inducements or cousidei-atious
of expediency which lead to the estahlishment of laws,
must he adverted to in explaining their origin and mechan-
ism. If the causes of laws and of the rights and obligations
which they create be not assigned, the laws themselves are
unintelligible.

Where the subject is the same, but the provisions of
different systems with respect to that subject are different,
it is necessary to assign the causes of the difference : whether
they consist in a necessary diversity of circmnstauces, or in
a diversity of views on the part of their respective authors
with reference to the ends of I;aw. Thus, the rejection or
limited reception of entails in one system, and their exten-
sive reception in another, are owing partly to the different
circumstances in which the communities are placed -y — -
partly to the different views of the aristocratic and demo-
cratic legislators by whom these provisions have been
severally made.

So far as these differences are ine^'itable — are imposed
by force of circumstances — there can be no room for praise
or blame. Where they are the effect of choice, there is
room for praise or blame. I sliall, however, ti-eat them not
as subjects of either, but mereh' as effects of those respective
causes. So of the admission or prohibition of divorce —
ISIarriages vrithin certain degrees, etc.

Wherever an opinion is prouoimced upon the merits and
demei'its of Law, an impartial statement of the conflicting
opinions should be given. The teacher of Jm-isprudeuce
mav have, and probably has, decided opinions of his o^vn ;
and it may be questioned whether earnestness be less favour-
able to impartiality than indifference ; but he ought not to
attempt to insinuate his opinion of merit and demerit under
pretence of assigning causes. In certain cases which do not
try the passions (as rescission of contract for inadequacy of
consideration) he may, with advantage, oiler opinions upon
merits and demerits. These occasional excm'sions into the

* Evidently the author was not acquainted with the works of
the Scotch Institutional writers. The Scotch law is in the main
based upon the Roman. But as expounded by its institutional writers,
and notably by Lord Stair, whose work was a treatise on general
jurisprudence ilhistrated by the law of Scotland in particular, the
law of Scotland holds an important and independent position, both
in regard to general jurisprudence, and as an aid to the historical
study of English law. — R. 0.

jfuHsprudencc.

153

territory of Legislatiou, maj serve to give a specimen of the Li:(;t.
mauuer in which such questious should he treated. This X'-
particularly applies to Coditicatiou: a question which may ~''~

oe agitated -ndth safety, because everybody must admit that
Law ought to be Imowu, whatever he may think of the pro-
visions of which it ought to consist.

Expounding principles and distinctions which are the Manner of

appropriate matter of general Jurisprudence, I shall present the science^

them abstracted from every particular system. But I shall j'^rfs-"''"'

also endeavour to illustrate them by examples from the two iirudence.
particidar systems which I have studied Avith some accuracy,
namely, the Roman Law, and the LaAV of England.

For the following sullicient reason (to which many vaiueoftiie
others might be added), the Roman or Civil Law is, of all Kmuau Law.
particular systems, otlier than the Law of England, the
best of the sources from which such illustrations might be
dra\vn.

In some of the nations of modern Continental Europe
(as, for example, in France), the actual system of law is
mainly of Roman descent; and in others of the same nations
(as, for example, in the States of Germany), the actual sys-
tem of law, though not descended from the Roman, has been
closely assimilated to the Roman by large importations
from it.

Accordingly, in most of the nations of modern Continental
Em-ope, much of the substance of the actual system, and
much of the technical language in Avhich it is clothed, is
derived from the Roman Law, and without some knowledge
of the Roman Law the technical language is unintelligible ;
Avhilst the order or arrangement commonly given to the
system imitates the exemplar of a scientific arrangement
Avhich is presented by the Institutes of Justinian. Even iu
om' own country, a large portion of the Ecclesiastical law,
and some portion of Equity and Common Law, is derived
iimuediately from the Roman Law, or from the Roman
through the Canon.

Nor has the influence of the Roman Law been limited to
the i^ositive laAv of the modern European nations. For the
technical language of this all-reaching system has deeply
tinctured the language of the international law or morality
which those nations affect to observe. Bv drawing, then,
largely for examples on the Roman or CiAil Law, an ex-
positor of General Jurisprudence (whilst illustrating his
appropriate subject) might present an idea of a system Avhich
is a key to the international morality, the diplomacv, and to
much of the positive law, of modern ci\-ilized communities.

It is much to be regretted that the studv of the Romaa

1 54 General and Pa^'ticular

Part I. I^-aw is neglected iu tliis countiy, aud tliat the real merits of
§ 2- its founders aud expositors are so little understood.
' ' ]\Iuch lias been talked of tlie philosophy of the Roman

Institutional v^Titers. Of familiarity -u-ith Grecian philo-
sophy there are few traces in their A\Titings, and the little
that they have, borrowed from that source is the veriest
foolishness : for example, their account of Jus naturalc, iu
which they confound law with animal instincts ; law, ■wdth
all those wants aud necessities of mankind which are causes
of its institution.

Nor is the Roman law to be resorted to as a magazine of

legislative wisdom. The great Roman La-svy-ers are, in

truth, expositors of a positive or technical system. Not

Lord Coke himself is more purely technical. Their real

merits lie in their thorough mastei-y of that system ; in their

command of its principles ; in the readiness vs-ith which

they recall, and the facility and certainty with which they

apply them

Authorities Iu support of my OAVTi opinion of these great writers I

the Tauie of shall quote the authority of two of the most eminent Jurists

this study. Qf modern times.

' The permanent value of the Corpus Juris Civilis,' says
Falck, ' does not lie in the Decrees of the Emperors, but in
the remains of juristical literature which have been preserved
in the Pandects, Nor is it so much the matter of these
juristical wi'itiugs, as the scientific method employed by the
authors in explicating the notions and maxims A^-ith which
they have to deal, that has rendered them models to all suc-
^ ceeding ages, and pre-eminently fitted them to produce and

to develope those qualities of the mind which are requisite
to form a Jurist.'*

And Savigny says, ' It has been shown above, that, in
our science, all results depend on the possession of leading
principles ; aud it is exactly this possession upon wliich the
greatness of the Roman Jurists rests. The notions and
maxims of their science do not appear to them to be the
creatures of their own will ; they are actual beings, with
whose existence and genealogy they have become familiar
from long and intimate intercourse. Hence their whole
method of proceeding has a ceilainty which is found no-
where else except in mathematics : and it may be said with-
out exaggeration, that they calculate with their ideas. If
they have a case to decide, they begin by acquiring the most
vivid and distinct perception of it, and we see before our eyes
the rise and progress of the whole aflair, and all the changes
it undergoes. It is as if this particular case were the germ
whence the whole science was to be developed. Hence,
•with them, theory and practice are not in fact distinct;

• Jurist. Encyc. cap. ii. § 109.

jfurispnidcncc. 155

tlielr theory is so tliorouglily worked out as to be fit fur
immediate application, and tlieir practice is uniformly en-
nobled by scientific treatment. In every principle they see
a case to which it may be applied : in every case, the rule
by which it is determined ; and in the facility Avith which
they pass from the general to the particular and the par-
ticular to the general, their mastery is indisputable.'*

In consequence of this mastery of princijiles, of their per-
fect consistency (' elegantia'), and of the clearness of the
method in which they are arranged, there is no positive
system of law which it is so easy to seize as o, whole. The
smallness of its volume tends to the same end.

The principles themselves, many of them being derived
from barbarous ages, are indeed ill fitted to the ends of law ;
and the conclusions at which they arrive being logical con-
sequences of then- imperfect principles necessarily partake
of the same defect.

A subordinate merit of the Roman la-^'yers is their style,
always simple and clear, comm.only brief and nervous, and
entirely free from 7iitor. Its merits are appropriate and in
perfect taste.

The nimiber of the analogies between the Roman La,w
and many of the Continental systems, and between the
Roman and English Law, is not indeed to be wondered at :
since those Continental systems and also om- own system of
Equity, have been formed more or less extensively on the
Roman I^aw ; chiefly on the Roman, through the Canon.
But the English Law, like the Roman, is for the most part
indigenous, or comparatively little has been imported into
it from the Roman. The coincidences show how numerous
are the principles and distinctions which all systems of law
have in common. The extensive coincidence of particular
systems may be ascertained practically by comparing two
expositions of any twu bodies of law. The coincidence is
pre-eminently remarkable in the Roman Law and the
Common Law of England. ^

The subject and scope of general jurisprudence, as con- sui.ject and '
tradistinguished to particular jm-isprudence, are well ex- generai'juris-
pressed by Hobbes in that department of his Leviathan prudenrewe
which is concerned with civil (or positive) laws. ' By civil ty.Hobbea.
laws,' says he, 'I understand the laws that men are therefore
bound to observe, because they are members, not of this or
that commonwealth in particular, but of a commonwealth.
For the knowledge of particular laws belongeth to them
that profess the study of the laws of their several coimtries :
but the knowledge of civil laws in general, to any man.
The ancient law of Rome was called their " civil law " from

• Vom Beruf unserer Zeit fiir Gezetzgebung und Rpchtswissen-
Bcbaft, cap. iv.

156 Gciicrai and Pariicutar

the word ciciias, wliicli siguifies a commonwealth : And
tliose countries whicli, having been under the Roman
empire, and governed by that law, still retain such part
thereof as they think ht, call that part the " civil law," to
disting-uish it from the rest of their own civil laws. But
that is not it I intend to speak of. My design is to show,
not xvhat is laiv here or there, but lohat is laio: As Plato,
Aristotle, Cicero, and divers others have done, without
taking upon them the profession of the study of the law.'

fi'^d^of''^ Having stated genei-ally the nature of the sciexice of

jurispru- Jurisprudence, and the manner in which I think it ought to
dence. ^g expounded, I proceed to indicate a few of its uses.

I would remark, in the first place, that a well-grounded
study of the principles which form the subject of the science,
would be an advantageous preparative for the study of Eng-
lish Law.

To the student who begins the study of the English Law,
without some previous Imowledge of the rationale of law in
general, it natui'ally appears an assemblage of arbitrary and
unconnected rules. But if he approached it with a well-
gi'ounded knowledge of the general principles of jurispru-
dence, and with the map of a body of law distinctly im-
pressed upon his mind, he might obtain a clear conception of
it (as a system or organic whole) with comparative ease and
rapidity.

With comparative ease and rapidity he might perceive
the various relations of its various parts ; the dependence of
its minuter rules on its general principles ; and the subordi-
nation of such of these principles as are less general or exten-
sive, to such of them as are more general, and run through
the whole of its structm-e.

In short, the preliminary study of the general principles
of jurisprudence, and the mental habits which the study of
them tends to engender, would enable him to acquire the
principles of English jurisprudence in 2>articular, far more
speedily and accurately than he possibly could have acquired
them in case he had begun the study of them without the
preparative discipline.

There is (I believe) a not unprevalent opinion that the
study of the science whose uses I am endeavoui'ing to de-
monstrate, might tend to disqualify the student for the
practice of the law, or to inspire him with an aversion to
the practice of it. That some who have studied this science
have shown themselves incapable of practice, or that some
■who have studied this science have conceived a disgust for
practice, is not improbably a fact. But in spite of this seem-
ing experience in favour of the opinion in question, I deny
that the study itself has the tendency which tlie opinion im-
putes to it.

yurispi ■udencc. 157

A well-groiinded knowledge of the general pi-inciples of Lfxt.
lui-isprudeuce helps, as I have said, to ajvell-groimded XL

Knowledge of the principles of English jTmspnPterw©-; and ~ ' '
a previous well-gi'ounded knowledge of the principles of
English jurisprudence can scarcely incapacitate the student
for the acquisition of practical knowledge in the chamhers
of a conveyancer, pleader, or cbaftsman. Aiiued with that
previous knowledge, he seizes the rationale of the practice
which he there witnesses and partakes in, with comparative
- ease and rapidity ; and his acquisition of practical know-
ledge, and practical dexterity and readiness, is much less
irksome than it would be iu case it Avere merely empirical.
Insomuch that the study of the general principles of juiis-
prudeuce, instead of having any of the tendency which the
opinion in question imputes to it, has a tendency (hy
ultimate consequence) to qualify for practice, and to lessen
the natm-al repugnance with which it is regarded by be-
ginners.

The advantage of the study of common principles and system
distinctions, and of history considered as a preparative for Prussia. "
the study of one's own particular system, is fully appreciated
in Prussia : a country whose administrators, for practical
sldll, are at least on a level with those of any country in
Europe.

In the Prussian Universities, little or no attention is
given by the Law Facidty to the actual law of the country.
Their studies are wholly or almost entirely confined to tne
general principles of law ; to the Roman, Canon, and Feudal
law, as the sources of the actual system : the Government
trusting that those who are acquainted with such general
principles and with the historical basis of the actual system,
will acqiure that actual system more readily, as well as
more gi'oundedly, than if they had been at once set down
to the study of it, or had tried to acquire it empirically.

* In the Prussian states,' says Savigny, ' ever since the
establishment of the Landrecht, no order of study has ever
been prescribed; and this freedom from restraint, sanc-
tioned by the former experience of the German Universi-
ties, has never been infringed upon. Even the nimiber of
professors, formerly reqiiired on accoimt of the Common
Law (Geinei'nes lieclit), has not been reduced, and the
curators of the universities have never led either the profes-
sors or the students to believe, that a part of the lectures,
formerly necessary, were likely to be dispensed -^-ith.
Originally it was thought advisable that, in each Univer-
Bity, one chair at least should be set apart for the Prussian
law, and a considerable prize was offered for the best
manual. But even this Avas subsequently no longer re-
quired ; and, up to the present time, tlie Prussian law has
not been taught at the University of Berlin. The established

158

General and Particular

Authoritiea
111 support of
the value of
this study.

Arguments
in support of
the study as
an aid to
practice.

examinations are formed upon the same principle ; the
first, on the entrance into real matters of business, turn-
ing exclusively ou the common law ; the next period is
set apart for the directly practical education of the juris-
consults ; and the two follo"v\nng examinations are the first
that have the Landrecht for their subject-matter; at the
same time, however, without excluding the common law.
At present, therefore, jiu'idical education is considered to
consist of two halves ; the first half (the university) in-
cluding only the learned groundwork ; the second, ou the
other hand, ha-sdng for its object the Icnowledge of the
Landrecht, the kuoNvledge of the Prussian procedui'e, and
practical skill.' *

The opinion I have expressed was that of Hale, Mans-
field,t and others (as evinced by their practice), and was re-
commended by Sir William Blackstone, more than a century
ago.U:

Backed by such authority, I think I may conclude that
the science in question, if taught and studied skilfully and
effectually, and v^-ith the requisite detail, would be no incon-
siderable help to the acquisition of English Law.

I may also urge the utility of acquiring the talent of
seizing or divining readily the principles and provisions
(through the mist of a strange phraseology) of other
systems of law, were it only in a mere practical point of
view:

1. Witli a view to practice, or to the administration of
justice in those of our foreign dependencies wherein foreign
systems of law more or less obtain. 2. With a view to the
systems of law foimded on the Roman directly, or through
the Canon or the Roman, which even at home have an
application to certain classes of objects. 3. With a view
to questions arising incidentally, even in the Courts ■ndiieh
administer indigenous law. 4. With a ^•iew to the ques-
tions in the way of appeal coming before the PrivT Council :
A Court which is bound to decide questions arising out of
numerous systems, without the possibility of judges or ad-
vocates having any specific knowledge of them : an evil for
which a familiarity vsath the general principles of law on tlie
part of the Coiut and advocates is the only conceivable
palliative.

* Savigny, Vow. Beruf, etc., Ilayward's translation, p. 165.

t ' Lord ilale often said, the true grounds and reasons of law
were so well delivered in the (Roman) Digests, that a man could
never understand law as a science so well as by seeking it there, and
therefore lamented much, that it was so little studied iu England.' —
Burnet's /-(/'«, p. 7.

X Blackstone recommends the study of the Law of Xature, and
of the Roman Law, in connection with the study of the particular
grounds of our own. By Law of Nature, etc. he seems to mean the
very study -which I am now commending.

yurispriidcncc. 1 59

For, cei-tainly, a man familiar with such piinciples, as
detached from any particular systems, and accustomed to
seize analogies, vrill be less puzzled with Mahommedan or
Hindoo institutions than if he knew them only in concreto,
as they are in his ovra system ; nor would he be quite so
inclined to bend eveiy Hindoo institution to the model of his
own.

And (secondly) v.ithout some familiarity with foreign
systems, no laAvyer can or will appreciate accurately the de-
fects or merits of his own.

And as a well-grounded knowledge of the science whose
uses I am eudeavoming to demonstrate, would facilitate to
the student the acquisition of the English Law, so would it
enable him to apprehend, with comparative ease and
rapidity, almost any of the foreign systems to which he
might direct his attention. So munerous, as I have said,
are the principles common to systems of law, that a lawv'er
who has mastered the law which obtains in his own coim-
try, has mastered hnplicitly most of the substance of the
law which obtains in any other community. So that the
difficulty with which a lawyer, versed in the law of his
own country, apprehends the law of another, is rather the
result of dirferences between the tei-ms of the systems, than
of substantial or real dift'erences between their maxims and
rules.

Now the obstacle to the apprehension of foreign systems
which is opposed by their techuical language, might in part
be obviated or lightened to the student of General Jm-ispru-
dence, if the science were expounded to him competently, in
the method which I shall endeavour to observe. If the ex-
position of the science were made agreeably to that method,
it would explain incidentally the leading terms, as well as
the leading principles, of the lioman or Civil Law. And if
the student were possessed of those terms, and were also
grounded thoroughly in the law of his own country, he
would master with little difliculty the substance of the
Roman system, and of any of the modern systems which are
mainly derivatives from the Eoman.

Secxiox III. — Analysis op Pervadixg Xoiiohs.

LECTURE XII.

Analysis of the term RigM — Person, ^-c.

By the analysis contained in the first six lectures deter- Leot.
mining the province of jurisprudence and thereby defining the , .^'
term Imu in its strict sense, I have in part eifected the object

i6o

Pervading Notions analyi

Natural and
Jlorainigrhts,
(ir Rights
wliich are
merely
Banctioned
religiously or
111 orally.

Ideas, the
analysis of
which is

inevitably
Involved in
tiiat of right.

the necessity of wliicli I adverted to in the last lecture,
namely, of determining by careful analysis the meaning of the
tei'ms employed in the science which I am expounding. In
further pursuance of that object, I shall now endeavour to
imfold the essential properties of liights : meaning by Eights,
lecjal rights ; — rights which are creatiu'es of Law strictly or
simply so called.

There are, indeed, Rights which arise from other sources :
namely, from the laws of God or Nature, and from laws
which are sanctioned morally. But these I shall not pause
to examine formally, although I shall advert to tkem in
the com'se of the ensuing Lectures. At present, I dismiss
them with the following remarks. 1st, Like the Obliga-
tions to which they correspond, they are imperfect, in so far
as they are not armed with the legal sanction. 2ndly, The
Eights (if such they can be called) which are conferred by
positive morality, paitake of the nature of the som-ce from
which they emanate. So far as positive morality consists
of laws improper, the rights which are said to arise fi'om it
are rights hy way of analoyy.

For example, rights derived from the Law of Nations
are related to rights derived from positive Law, by a faint
resemblance. They are neither armed with the legal
sanction, nor are they creatures of Law established by de-
terminate superiors. They are not therefore rights strictly
so called. But, according to received language, they are
called rights ; thus, for example, we speak of rights created
by treaty.

In attempting to explain the nature of a legal Eight, I
must advert to the import of the following terms :

1st, Law, Duty, and Sanction. For, though every law
does not create a right, every right is the creature of Law.
And, though every obligation and sanction does not imply
a right, every right implies an obligation and a sanction.

2ndly, Person, Thing, Act and Forbearance. For
rights reside in persons, and relate to persons, things, acts
and forbearances, as the matter about which they are con-
versant.

3rdly, lujmy, Wrong, or Breach of Obligation or Duty
by coHimission or omission. For as rights imply obliga-
tions and sanctions, so do obligations or sanctions imply
possible injm-ies or wrongs.

4thly, Intention and Negligence (including under the
latter of these terms what may be called rashness or teme-
rity). For every injui-y supposes intention or negligence
on the part of the wrongdoer.

6thly, Will and Motive. For the import of the ex-
pressions ' will ' and ' motive ' is implied in the import of the
expressions ' intention ' and ' neyliyence.' And obligations
and sanctions operate upon the u-ill of the obliged, and are

* Rij^/ii ' a fid Implicated Notions.

i6i

thereby distingiiislied from the compulsion, which (for want
of a better name) may be styled merely physical.

I shall also interpose an explanation of Political or Civil
Liberty: — a term not uufi'equently synonymous "with ri<//d ;
but -whicli often denotes siniply exemption from ohlif/ation,
confeiTed hy pennission. For it will be shown in the sequel
that when the law only permits, it as clearly confers a right
as when it commands.

Lect.
XII.

- While attempting to explain the import of the term
* Plight,' and touching upon the import of the several terms
or expressions which I have now enimierated, I shall advert
to the ambiguities by which some of them are obscured.
Each of these expressions is so implicated with the rest, that
the explanation of anyone of them involves allusions to the
others. For this reason, the student, after a careful perusal
of the analysis of pervading notions contained in this section
of the present work, shoidd reperuse in detail every pait of
the section so as to appreciate its bearing upon the whole.

Every Law (properly so called) is a Command.

By eveiy command, an Obi it/at ion is, by virtue of the
corresponding sanction, imposed upon the party to whom it
is addi'essed or intimated.

Every Obligation or Duty (terms which, for the present,
I consider as synonymous) is jwsitive or ner/ative. In other
words, the party upon whom it is incimibeut is commanded
to do or perform, or is commanded to forbear or abstain.

A duty to deliver goods agi'eeably to a contract, to pay
damages in satisfaction of a wrong, or to yield the possession
of land in pursuance of a judicial order, is a positive duty.
A duty to abstain from killing, from taking the goods of
another without his consent, or from entering his laud
without his licence, is a negative duty.

I observe that forbearances have been styled by Mr.
Bentham * nee/eitive services. But the expression seems
hardly authorized by established language. If you abstain
from knocking me on the head, or from taking my purse,
or from blaclcening my reputation, it can scarcely be said
with propriety that ' you render me a ser\ice.' Bentham
seems to have transferred to the object of a duty, an expression
which applies correctly to the duty itself. For we may
properly speak of a negative duty.

Duties may also be distinguished into relative and ab-
solute.

A relative duty is incumbent upon one party, and an-
swers to a right residing in another party. "Where a duty

* Trait^s de Legislation, I. p. 154.

ObligatlonE)
or Duties are
rosittve or
negative.

Forbears lire*
cannot be
styled witli
propriety
negative
services.

Dnties are
relative or
absolate.

i

l62

Pervading Notions analyzed.

Rights imply
■persons,
things, acts,
and forbear-
ances.

Persons
natural or
fictitious.

Meaning of
'physical
person," or
•persou'
Eimply.

Tnis mean-
ing unduly
narrowed
by some
modern
(;ivilians.

is absolute, there is no riglit to wliicli it answers. The
definition of the hitter is thus merely negative, and hence
the full explanation of absolute duties is inevitably post-
poned to the explanation of rights, and the duties which
answer to rights.

Since rights reside in jjersom, and since jyersons, things,
acts, and. forbearances are the subjects or objects of rights, I
must advert to the respective significations of these various
related expressions, before I addi-ess myself to alights, and to
the obligations to which they answer.

Persons are di\dsible into two classes : — physical . or
natural persons, and legal or fictitious persons. The ex-
pression ' physical ' or ' natural ' is here used merely to
distingaiish persons, properly so called, from persons which
are such by a figment. When I speak of ^persons ' simply,
I mean physical or natural persons.

By a physical or natural j^^rson, or, by a person simply,
I mean homo, or a man, in the largest signification of the
term : that is to say, as including every being which can be
deemed human. This is the meaning which is given to the
term person, in familiar discourse. And this, I believe, is
the meaning which is given to it by the Roman Law^-ers
(from whose wiitings it has been borrowed by modern
jurists) when they denote by it a physical or natm-al person,
and not a legal or fictitious one.

Many of the modern Ci\dlians have narrowed this simple
import of the term person.

They define a person thus : ' homo, cum statu suo con-
sideratus : ' * a ' human being, invested wnth a condition or
status.' And, in this definition, they use the term status in
a restricted sense: As including only those conditions
which comprise i'lr/hts ; and as excluding conditions which
are purely onerous or burthensome, or which consist of
duties merely.

Agreeably to this definition, as so understood by them,
a jjerson is a human being invested with, or capable of
iiff/its.

But this I am convinced was not the notion attached to
the term '2)erson' by the Roman Lawyers themselves, when
they denoted by it a physical or natural person.

For not only is status in many passages of the classical
jui'ists ascribed to slaves, but in all their di-^-isions of
persons slaves are considered as persons. The words 'per-
sona ' and ' homo ' are, moreover, used by Gains as well as
in various passages of the Institutes and Digest of Justinian
as synonymous expressions. ' Summa divisio de jnve j^er-
gonarum, h?ec est: quod omnes homines aut libeii sunt aut

Hcineccii Recitationes, lib. I. tit.

* Person^

163

Lect.
XII.

Origin of

their

mUtake.

l^

gervi.^ Again : ' Seqiiitur de jm"e personarum alia divisio.
Nam qufedam i^ersonce siii juris suut ; quiBdam alieno juri
siibjectte. Sed rursus earum 2^crso/uintin qure alieno juri
suLjectse sunt, alia) in potestate, ali-^e in luanu, alice in
mancipio sunt. Yideamus nunc de iis qufe alieno jui'i
subjectse sunt : Ac prius dispiciamus de iis qui in aliena po-
testate simt. In potestate itaque sunt scrci dominorum.' *
Now, down to the time of the Antonines, slaves had no
riff/its; and although under certain constitutions of these
emperor's they enjoyed some degi'ee of protection against
the violence of their masters, there is no trace of that cir-
cumstance ha%-ing been adverted to by the institutional
writers when they classed slaves amongst perso7is. Homo
and persona are in the above passages applied indifferently,
and it is clear that the word persona, as well in these as in
luany other passages which might be cited, is used in the
familiar or vulgar sense, as denoting am/ laanan heiwf.

ITie modern limitation of the term ^person ' to ' lamian
beiiiffs considered as invested icith rights,^ appears to have
arisen thus: 1st, A person was defined by many of the
modern CiA-iliaus (although there is no classical authority
for the definition), as ' a hmuan being bearing a status or
condition.' 2ndly, The authors of the definition used the
term ' status ' in a peculiar and nan'ow sense. They assimied
that every status comprises rights, or, at least, capacities to
acquire or take rights : whereas, as I shall more fully show
in the sequel, status was applied by the Roman lawyers toi
various conditions of persons considered merely with regard!
to their incapacities.

The truth appears to be that the authors of the definition
considered the term 'status' as equivalent to the term
* caput : ' a word denoting conditions of a particular class :
conditions which do comprise rights, and comprise rights
so numerous and important, that the conditions or status of
which those rights are constituent parts, are marked and
distinguished by a name importing pre-eminence.

I am, therefore, justified by authority, as well as by the
convenience which results from it, in imputing to the term
person (as denoting a physical or natm-al person) the familiar
or vulgar meaning ; — namely, as equivalent to /wmo, or ' man '
in the largest signification of the term.

But, instead of denoting a man (or human being'), person
.sometimes denotes the condition or status with which a man
is invested. And taking the term in this signification, eveiT "^'^.'' ''^'■=^^^
human being who has rights and duties bears a number of duiou."'
persons, ' Unus homo sustinet plures personas.' For ex-
ample, every human being who has rights and duties, is
citizen ox foreigner : that is to say, he is either a member of

* Gaii Institutionum Comment., Lib. I. § 9, 48-52.

J

■ Person'

frequently

svnonymoug

kgHlpersciia

1 64 Pii'vading Notions analysed.

a (jiven indopeDdent society, or he is not a member of that
given independent society. He is also a son. Probahly,
he is husband andi father. It may happen, moreover, that he
is guardian or tutor. Ills 2}rofession or calling maj- give him
distinctive rights, or may subject him to distinctive duties.
And wuth the various conditions or status of citizen, son,
husband, father, guardian, or tutor, he may combine the
condition of judge, or of member of the supreme legisla-
tiu'e, and so on to infinity.

The term 'person,^ as denoting a condition or status, is
tlierefore equivalent to character. It signified originally, a
mask worn by a player, to mark the character which he bore
in the piece : and is trausfeiTed by a metaphor to the
character itself. By a further metaphor it is transferred from
dramatic character to legal condition. For men as subjects
of law are distinguished by conditions, just as players b}' the
characters which they present. By the Greek commentators
and translators, the equivalent for jyersona is -pofrwTr&r, which
correctly renders both the original and the metaphorical
meaning.
Fictitious or Fictitious or legal persons are of three kinds : 1st, Some

are collections or aggregates of physical persons: 2ndly,
others are things in the proper signification of the term •
3rdly, others are collections or aggregates of rights and
duties. The collegia of the Roman Law, and the corpora-
tions aggregate of the English, are instances of the fii-st : the
2ir<edium doniinans and seruiens of the Roman Law, is an
instance of the second: the hareditas jacens of the Roman
Law, is an instance of the third.

The nature of legal persons is various, and the ideas for
which they stand extremely complex. They are persons by
a figment, and for the sake of brevity in discom'se. By
ascribing rights and duties to feigned persons, instead of the
physical persons whom thev in truth concern, we are fre-
quently able to abridge our descriptions of them.

To take the easiest instance ; — the prcedium dominans and
Servians of the Roman Law. A servitus or easement over
one pr<xdium resides in every person who occupies another
prcedium : meaning by a prcedium a given piece of land, or
a given building with the laud on which it is erected. The
sen'itude or easement in question (as, for instance, a right
of way) is ascribed, by a fiction, to one of these pradia ; and,
by a similar fiction, a duty to bear the exercise of the servi-
tude is imputed to the other. The first is styled doniinans ;
the latter seriiens. In English Law we should say that the
easement (i.e. the jus servitutis) is appurtenant to lands or
messuages. In truth, the right resides in eveiy physical
person who successively owns or occupies the 2?r(sdiuin
styled dominans : and avails against every physical person
who successively owns or occupies the prcedium styled

'Liberty: 165

serviens. But ty imputing these rights and ohiigations to Lkct.
the prcedia themselves, and hy talking of them as if they XII.
were persons, we express the rights and duties of the persons """ ' '
wlio are really concerned, with greater conciseness.

To take another instance. Hareditas jacens was a tenn
employed in the Roman Law to denote the whole of the
rights and obligations which, at any instant of time during
the period which intervenes between the death of the testator
or intestate, and the heir's acceptance of the inheritance,
would have devolved upon an heir at that instant entering
upon the inheritance. This mass of lights and obligations
was by a fiction styled a person, and this fiction was a con-
venient way of expressing that any benefit accniiug to the
iuheritance during the above period, would enme to the
benefit of the heir.

As intimately concerning persons I shall here interpose 3°^' ""'1
a remark on the meaning of liherty. Liberty.

Freedom, Liberty, are terms denoting the absence of
restraint. Ci^dl, Political, or Legal Liberty, is the absence
of legal restraint, whether such restraint has never been im-
posed, or, ha^dng been imposed, has been withdrawn.

Liberty and Right are synonymous ; since the liberty of
acting according to one's will would be altogether ilhisoiy if
it were not protected fi'om obstruction. There is however
this difference between the tenns. In Libei-ty, the promi-
nent or leading idea is, the absence of legal resti'aint : wliilst
the security or protection for the enjo^iuent of that liberty
is the secondaiy idea. Riglit, on the other hand, r/enotes
the protection and cownotes tlie absence of Restraint.

If the protection afforded by the Law be considered as
afforded against private persons, the word Right is commonly
employed. If against the Government, or rather against
some member of the Government, Liberty is more frequently
used : e.fi. the Liberties of Englishmen. Libei-fv^ and Riglit
are not however always coextensive, since the security for
the enjoyment of the former may in part be left to the moral
and religious sanctions.

{Sed qiKsre.) AYhether Liberty can ever mean anything
but the right to dispose of one's person at pleasure ? Liberty
or Freedom to deal with an external subject seems, how-
ever, to be equivalent to ' Right to deal with it.' In this
sense liberty is included in the tenn ' personal security.'

On the whole. Right and Liberty seem to be synony-
mous:— either of them meaning, 1st, permission on the part
of the Sovereign to dispose of one's person or of any external
subject (subject to restrictions, of course); 2ndlv, security
against others for the exercise of such right and liberty.

Where protection is afforded, Hu/Iit is the proper word.
As against the sovereign, there can be no legal right.

1 66 Pc7'vading Notions analyzed.

Physical freedom is the absence of external ohstaclcj,
i.e. the ahsenee of causes which operate independently
of the ^s'ill. Moral freedom is the absence of motives of
the painful sort.

LECTUEE XIII.

Tliiivji and their relalioii to Hiijhts.

Lect. Hatis^g considered the import of person, I proceed to the

XIII. significations of Thiny, Act and Forbearance.

Thinc/s are s,\xc\\ permanent ohjects, not being jtersons, as

Btricfand "^ are sensible, or perceptible through the senses. Such (for

gense ot tiic example) is a field, a house, a horse, a garment, a piece of

\rord. coined gold. Such is a quantity of coined or imcoined gold,

determined or ascertained by number or •R'eight. Such is a

quantity of cloth, corn, or -wine, determined or ascertained by

measure.

Things are opposed, on the one hand, to persons ; and,
on the other, to the acts of the persons, and to facts or
events.

Things resemble persons in this : That they are perma-
nent objects which are perceptible through the senses. They
differ from persons in this : That I'ersons are invested with
rights and subject to obligations, or, at least, are capable of
both: Things are essentially incapable of rights or obliga-
tions ; although (l^y a fiction) they are sometimes considered
as persons, and rights or obligations are ascribed or imputed
to them accordingly.

They differ from facts or events in this : That things are
permanent external objects ; whilst facts or events are
transient objects. In drawing the line I am far from aspir-
ing to exactness of defiuitiou. If I endeavoured to define
exactly the meaning of ' permanent object,' I should enter
upon the perplexing question of sameness or identity. If
I eudeavoiu'ed to define exactly the meaning of ' sensible
object,' I should enter upon the inter:iiinable question about
the difference between mind and matter, or percipient and
perceived. And, in either case, I should thrust a treatise
upon Intellectual Philosophy into a series of discourses iipon
Jiu-isprudence. I have accordingly indicated rather than
determined the boundary, and nuist leave my hearers to
settle it for themselves, according to their own fashion. The
discretion which prompts my reserve will be understood by
those who have turned a portion of their attention to the
Philosophy of the Human Mind, and "wiU meet with appro-
bation rather than censurou

' Thing! 167

But, to avoid a very perplexing ambigiiitv, I must uote Lkct.
tAvo distinct significations of ' permanent' and ' transient.' XIII.

The expression '■permanent ' when applied to a sensible ~' ' "^
object in tlie sense abeady employed imports that the object
so described is perceptible repeatedb/, and is considered by
tlio^e who repeatedly perceive it, as being one and the same
object. Thus, the horse or the house of to-day is the horse
or house of yesterday ; in spite of the intervening changes
wliich its appearance may have imdergoue.

The transimt sensible objects which rank with facts or
events, are not perceptible repeatedly. They exist for a
moment : disappear : and never recur to the sense, although
they may be recalled by the memory. Taking the terms in
these significations, aU things are 2>ennancnt, and no things
are transient.

But, taking the terms in other significations, things may
be distinguished into 2>ermane7it and transient, or into such
as are more permanent and such as are less permanent. For
some are more enduring ; others are less enduring. Some
retain the forms which give them their actual names for a
longer, others for a shorter period.

The purpose of tliis last distinction -n-ill appear clearly
when I consider the kinds and sorts into which things are
divisible : especially the kind of tilings which have been
styled fungible, and the sort of fimgible things qiuB tisu con-
sumuntur.

Resuming the definition of a thing, I mean by a thing
(as contradistinguished from an event) any permanent ex-
ternal object not a person — meaning by ' permanent,' ' ca-
pable of being perceived repeatedb/.^

From the import of the term thing (in the strict sense of
the word and as opposed to person and event) I proceed to
certain other meanings of the term, which, unless distin-
guished, are apt to perplex the student.

."^d, first, 'res' (or thing) as used by the Pioman xinngsas
Lawyers is fi-equently extended from things strictly so signifyim?
called, to acts anUi forbearances considered as the objects of ijcarances.
duties and of the corresponding rights. For example.
If you are bound by \-irtue of a contract to do or to forbear
from certain acts, the acts or forbearances to which you are
obliged, and to which the opposite party has a corresponding
right, are res or things in this extended sense of the word.

A more remarkable and a more perplexing use of the ^hingg as

term is the following. divided into

Things are divided by the Eoman Lawyers into corporeal i^ncorporeau*'
and incorporeal.

By ' CoiporeaV things {res corporales), they understood,
according to the philosophical jargon which they borrowed
from the Greeks, ' Tangible ' things (i-es qua tangi possunf),
meaning by ' tangible,' sensible cf perceptible through the

1 68 Pervading Notions analysed.

senses. For in the language of the Stoics and also of the
Epicureans the various sensations "vrere considered as modi-
fications of the sensation of touch.*

Under corporeal things are included,

1st, Things strictly so called: that is to say, permanent
external ohjects not persons. 2udly, Persons considered as the
subjects of rif/hts and duties residing in, or incumbent upon
others. 3rdly, Acts and Forbearances, considered as the
objects of rights and obligations. To forbearances indeed
the tenu res corporales "will not apply stiictly, but is ex-
tended to them partly for convenience and partly because
the acts to be forborne are perceptible by the senses.-

By ' incorporeal thinr/s' they understood rights and
obligations themselves : ' Ea quas in jure consistunt : ' velut
\jus hereditatis,' 'jus utendi fruendi/ 'jus servitutis/ ' ohliga-
tiones, quoquo modo coutractise.'

lu the language then of the Roman Lawyers, the term
res has two significations which are widely different. 1st,
It denotes Things, Acts, and Forbearances, and sometimes
Persons, considered as the subjects or objects of rights and
obligations. 2udly, It denotes not only these, but Plights
and Obligations themselves. In this larger sense the word
in fact embraces the whole matter with which laics are con-
versant.

In the English Law, we have this same jargon about
* incorporeal things ' (derived from the Stoical Philosophy
through the Roman Law), applied less extensively. \^'ith
us, all rights and obligations are not incorporeal tJiinr/s ; but
certain rights are styled incorporeal hereditaments, and are
opposed by that name to hereditaments corporeal. That is
to say, ricjhts of certain kinds are absurdly opposed to the
things (strictly so called) which are the objects of rights
of other kinds. A corporeal hereditament is the thing itself
which is the subject of the right ; an incorporeal heredita-
ment is not the subject of the right, but the right itself.
The subject of the right called an incorporeal hereditament
is often corporeal, e.g. the produce which is the subject of
the right of tithe.

I observed, in my last Lectiu-e, that the slave is styled
by the Roman LawT^ers a ' person.' But considered as the
subject of the dominion which resides in the master (a right
\\hich the master can assert against the rest of the world),
he was sometimes styled a thing. For example, If unjustly

* ' Pondus uti saxis, calor ignibus, liquor aquai
Tactus corporibus cunctis, iiuactus Inani.'
'Tactus enim, Tactus, proh Divurn numina sancta !
Corporis est sensus, vel cum res extera sese
lusinuat, vel cum ladit, qute in corpore nata est.

Lucretiu.«, Lib. I. & II

' Thing:

detained by a tliird party, the master miglit recover him by
that peculiar action whicli is staled rei vindicatio. Their
application of the word res in this sense was capricious. For
the action styled rei vindicatio could not be brouo-lit by the
father for the purpose of recovering his son, although the
ludria iwtestas (or right of the father in the son) was closely
analogous to the dominion of the master. If the slave con-
sidered as the object of rights be termed a thing, there is no
reason why any person considered from a similar point of
view should not be so termed.

There are however veiy few cases in which the slave is
styled a thing (even when he is considered as the subject of
the master's dominion). Generally speaking, he is sts'led
/lomo, or servilis jyersona (even when considered under that
aspect): For instance, Avhen he is considered as the subject
of the ancient and formal conveyance called manciimtio
(_Gaius, I. §§ 110, 120).

Having made these general remarks on the import of the
term ' thincj,^ and attempted to explain the distinction be-
tween things corporeal and things incorporeal, I will pass in
review certain other divisions between things, Avhich are
made in the Iloman and English law.

Permanent sensible objects which are not persons are
divided into things moveable and things imnioveable.

Physically, Moveable things are such as can be moved
from the places which they presently occupy, without an
essential change in their actual natures.

Physically, Immoveable things are such as cannot be
moved from their present places ; or cannot be moved from
their present places without an essential change in their
actual natures. A field is an example of the iirst. A house,
a growing tree, or gTowiug corn is an example of the second.

But things which are physically moveable may be con-
sidered in law immoveable by reason of their intrinsic cha-
racter and use, as the key of a door, or any essential part of
a fixed machine.

Sometimes also by reason of a design or intention ex-
trinsic to their proper character or use ; e.g. by the doc-
trines of English Equity, mouej^ directed to be laid out
in laud, wiU, during the subsistence of the trust, descend
like land to the heir.

Another division of sensible permanent things is, into
things determined specifically or individually, and things
which are merely determined by the classes to which they
belong : e.g. The field called Blackacre, or a field. This ov
that horse, or a horse. A bushel of corn, a yard of cloth, a
pound of gold, a given number of guineas ; or the bushel of
corn contained in such a bag, or the yard of cloth or the
pound of gold bearing such a mark, or the ten specific
guineas now in your purse.

I

169

Lect.
XIII.

I

I
I

other dis-
tinctions
among thin pa
inestablisheU
systems of
law.

Movea))le and
immoveable.

Tilings
determined
spedficalhj
and things
determined
by their fciiitJ.

I/O

Pervading Notions analysed.

Fungible and
not fungible.

lu tlie language of the Roman Lawyers, a thing indivi-
dually determined is styled ' sjfecies.' A thing which is
merely determined by the class to which it belongs, is styled
' f/emis,' Sometimes, r/eniis signifies the class of things, and
the indeterminate individual belonging to the determined
class is styled ' qiiantitas : ' though the term quantitas is
often limited to indeterminate things of determinate classes,
such as mevsurd, numero, vel jjondere constant : As, to a
bushel of corn, a pound of gold, and so on. The thing is
determined by mensuration as well as by kind, although it
is not determined specifically or individually.

The terms species and genus, in the language of jm-is-
prudence, have therefore a meaning difierent from that which
they bear in the language of logicians. In the language of
logicians, a (fenus is a larger class, and a species is a nar-
rower class contained by the ffenus. As animals are a </e7ii(.s,
men are a species of animals.

In the language of jurisprudence, f/enns denotes a class
(whether it be af/enus or species in the language of logicians ),
or it denotes an individual or portion not specifically deter-
mined, belonging to a determined class. Hence the ex-
pression, ' specific legacy, specific performance.'

AUied to the distinction between species and f/entis, or
species and quantitas, is the distinction of things into fun-
ffible and not funr/ible.

Where a thing wliich is the subject of an obligation (i.e.
which one man is bound or obliged to deliver to another)
must be delivered in specie, the thing is not fungible : i.e.
that very indi-^ddual tiling, and not another thing of the
same or another class, in lieu of it, must be delivered.

Where the subject of the obligation is a thing of a given
class, the thing is said to be fungible : i.e. the delivery of
any object wliich answers to the generic description %A-ill
satisfy the terms of the obligation. ' In genere suo func-
tiouem recipiuut : ' meaning that the obligation is performed
by the delivery of f/enus or quantitas: — ' Una fuugitur vice
aiterius.' In the language of the German jiu'ists. fungible
things are styled ' vcrtretbar ' — representable ; a thing Avhose
place may be supplied by another.

Things are fungible or not fungible, not in their own
natiu-e, but with reference to the terms of the given obliga-
tion. Fungible things are often confounded with things
qiue tisu consumuntw because these, for obvious reasons, are
usually sold in f/cncre, not in specie. But these things may
be the objects of a specific obligation. I may be bound to
deliver to you, not only so much Avine, but that specific
parcel of it now lying in my cellar, and in such a corner of
it. Again, things which are not consumed by use may be
the object of a generic obligation. A farm, a house, mif/ht
for instance, be devised generically, though m English law

' Thing:

171

the bequest would probably be void for uncertainty. But
in tlie ■writings of the lioman Lawyers there are actual
instances of facts of the land.

This distinction is of considerable importance in practice
■with reference to performance in specie or recovery in specie.
Abuost the only gi'ound for enforcing specific performance
is, that nothing else can completely supply the place of that
very thing for ■which the party contracted. AVhere it can,
there is no reason for enforcing the contract in specie.

In English Equity, a specitic delivery is, generally speak-
ing, not enforced unless the subject of the contract is land :
although contracts to deliver moveable objects have been
specifically enforced, because the objects were of so peculiar
a nature that they coidd not be replaced. Such was the
case of the Pusey horn, an object so specific and so com-
pletely sui f/eneris, that the party never could have replaced
it. Neither is specific delivery enforced by our Common
Law, although by the C. L. P. Act 1854, § 78, a discretion
is given to the judge to enforce specific delivery in an action
for the ■s\Tongful detention of a chattel.

Things were divided in Pioman Law into res mancipi and
res nee mancijn. This distinction turns on forms of con-
■\eyauce. Res mancipi were things which could only be
aliened by a certain mode of conveyance. If they ■sN'ere not
conveyed by the prescribed form, the party could only
acquire them by usucapion, working on his actual possession.
The mere conveyance imparted no interest to him.

Things are again divided into res singulce and univer-
sitates rerum ; things which are themselves individual and
single, and cannot be divided ■without completely destroying
their actual natm-e, and lots or collections of individual
tilings. A sheep belongs to the first class, a flock of sheep
to the second. This is not a distinction without a differ-
ence. If a man conti'acts to deliver so many sheep, and if
lie contracts to deliver a flock consisting of that number of
slieep, his legal position is not the same in the tvro cases.
If some of the sheep die in the interval, he ravist yet, in the
first case, deliver the stipulated number ; in the second, he
need not, because you bought them in the gi-oss. *

Lect.

XIII.

P

Res mancipi
and res
ncc vtanctpi

11(3 singultt
and unirersii
tatea rerum.

* Intermediate between the two cases is a contract such as the
sale of cotton to arrive, according to the usage of the Liverpool
market, at that stage of the transaction where tlie bales have been
invoiced, but not weighed over. It is a sale of specific bales with
an implied engagement to replace any that may be lost or damaged
with others of the quality specified. Tlie precise nature of the
contract becomes important when a question arises as to periculum
rei venditse. In the contract here instanced it appears to be the
understanding of the market that the risk is transferred on the
bales respectively being weighed over or ' passing the scale.' And
this understanding (being proved) has been held to constitxUe a
I 2

172

Pervading Notions analyzed.

Distinction
between jxLra
rerum and
jura ■p^''^-
Hcmanim.
briefly Intro-
duced.

The chief reason for definiug and distinguishing things
in the law, or in the expositions of it, is in order that dis-
positions of things and contracts relating to them may
be facilitated ; and that parties may know the eflect of
using such and such expressions in contracts and convey-
ances. It is important that the meaning of such terms as
messuaffe, for instance, should be practically settled, in order
that the import of the words used in a contract, for example,
may be exactly known. There are several cases in our law
books turning on that very question. What does a party
dispose of, by disposing of his furnitwe, or by disposing of
all his effects ? These are questions which the Isw must
determine : that is, the law must determine the meaning
it ^vill attach to the words if the parties liaAe not explained
clearly the meaning wliich they annex to them ; so that a
person may know what construction the Courts of Justice
will put upon those names.

In om- conveyances, we make up for the iudefiniteness
of the general description, by attaching to the term which
ought to convey the whole meaning a list of as many of the
parts which fall under it as we can think of ; a sort of drag
net, to comprehend everything which happened to be
omitted out of the comprehension of the one general name.
This would be avoided if the exact import of those single
names were specially determined by the legislator.

I take this occasion of recalling to your attention the
double meaning of })er$o)ia in the Eoman law as signify-
ing, sometimes a physical or real person, and sometimes a
status or condition : for tlie purpose of observing that the
last acceptation of 2>ersona, combined with that of res as
denoting in certain cases rights and obligations, throws con-
siderable light on the celebrated distinction between jus
rentm and /us personarum ; phrases which have been trans-
lated so absurdly by Blackstoue and others— r?/77<^s of jier-
suiu and ricjJds of t/nnf/s. Jus personarum did not mean l(nv
of persons or rights of j)erso7\s, but hno of status or condition.
A person is here not a physical or individual person, but the
status or condition with which he is invested. Gains, when
purporting to give the title or heading of this part of the
law, has entitled it thus, ' De conditione liomiuum : ' and
Theophilus, in translating the Institutes of Justinian from
Latin into Greek, has translated jus 2^(^>'sonarum — )} -ir,i'
vpocwTToiv ^taipfnti — Di-^-isio persouarimi : understanding evi-
dently by persona or 7Tp('tr<w-or not an individual or physical
person, but the status, condition, or character borne by phy-
sical persons. The lazv uj 2^orsons, as tJius understood, is
the law of status or condition ; the law of things is the law

valid custom of trade, and to be imported into the contract accord-
ingly,—K, C.

* Event,' ' Act^ 'Forbearance'

of rii^hts aud obligatious, considered iu a o-eueral manner
and as distinguished from those peculiar collections of rights
and obligations which are styled conditions, aud considered
apart.

From the same ambiguity arose the mistake of supposing
that /«/•« in 7-em must have something to do with things ;
whereas the phrase really denotes rights which avail gene-
rally as distinguished from those which avail only against
eome determinate individual.

^73

\

Lect.
XIII.

LECTURE Xn^

Act and Forhearance. Jus in rem — in 2}ersonam.

Ix the two preceding Lectures I entered upon the analysis Lect
of the term ' Right"; ' and considered tlie term * person ' and ^tV.
the term ' thing,' in their primary and strict import, as well ~ ' ^
as in certain secondary meanings which liave been assigned <
to them by writers on jm-isprudence. I also adverted to the
terms ' Act ' and ' Forbearance.' In the present Lecture I
shall further define ' Act ' aud * Forbearance,' and shall con-
sider briefly an important distinction wliich obtains between
rights themselves — a distinction of which we must seize
the general scope or import, before we can understand, and
can express adequately and correctly, that nature or essence
which is common to all rights.

Reverting to the strict import of the terms person and Persons and \i
thing ; persons and things may be distinguished from other ''^•""s^*-
objects, in the following manner: — 1st. Each is an object
perceptible by sense : 2ndly. is capable of being perceived re-
2)eatedhj : and 3rdly. is considered by him who repeatedly
perceives it as bein^, on those several occasions, oiie and
the same object.

Events may be distinguished from persons and things in Events,
the following manner. L Not every event is a sensible
object. Of events, some are perceptible by sense ; but sojne
are determinations of the will, or phases of mental actiAnty
which are not immediately perceptible to the senses of
persons other than the individual whose will or mind is
conceived of as in operation.

2. An event perceptible by sense (like every other event)
is transient. That is to say, not perceptible repeatedly. It
exists for a moment ; then ceases to exist ; and never recurs
to the sense, although the memory may recall it.

Events are simple or complex. A simple event is one Events are
which is considered incapable of analysis. A complex compiex"^
event is a number of simple events, marked (for the sake of
brevity) by a collective name.

I

174

Pervading Notions analysed.

Acts ana For-
bearances.

Fsrbcarance.

The terms ' fact ' and ' incident ' are sometimes syno-
nymous with the term 'event.' But, not unfrequently,
'fact' is restricted to himian acts and forbearances, and
' incident ' employed in a sense to which I shall advert
hereafter, ' Fact ' and ' incident ' are tlierefore ambiguous.
To denote the objects I am now distiuguishino- from 'person'
arid ' thing,' I prefer the term ' event/ which is adequate and
unambiguous.

The class of events to which I particularly ad^■ert at
present, are human acts and forbearances.

Beutham has distinguished acts into internal and ex-
ternal,* meaning by ' internal acts,' determinations of the
ivill. Eejecting this distinction as superfluous, I employ
the term ' determination of the will ' as sufficient to denote
the class of objects called by Bentham ' internal acts,' and
use the word ' acts ' to denote only such motions of the body
as are consequent vpon determinatiotis of the icill.

A Forbearance is the not doing some given external act,
and the not doing it in consequence of a determination of the
irill. The import of the term is, therefore, double. As
denoting the determination of the will, its import ispositivc.
As denoting the inaction which is consequent upon that de-
termination, its import is negative.

This double import should be marked and remembered.
For mere inaction imports much less than forbearance or
abstinence from action.

And here I dismiss for the present the terms 'Act' and
' Forbearance.' It already appears that a complete determi-
nation of their meaning involves a deteiinination of the

* ' In the second place, acts may be distinguished into exlei-nal
and internal. By external are meant corporal acts ; acts of the
body : by internal, mental acts ; acts of the.mind : Tims, to strike
is an external or exterior act: to intend to strilie, an internal or
interior one.' — Bentham, Principles, etc. p. 70.

I have followed the author's final decision in rejectinp; Bcn-
thani's extended use of the term ' acts.' I must, liovvever, remark
that if the author intends to exclude from the category of acts all
processes that do not immediately result in a palpable bodil_v move-
ment, he is inconsistent.

The author elsewhere (p. 222 pos/) implicitly reco^iizes medita-
tion as an act : Further (ibid.), while he regards the conviction pro-
duced by evidence as a case of physical compulsion, he recognizes
that non-belief may be blameable, if the result of insufficient exam-
ination, refusal to examine, &c. The process of examination is
therefore the object of a duty, and hence, according to his own
analysis, it is an act.

It is difficult to see why cogito should not be classed with acts,
just as much as cun-o or haurio. And such a use of the term act
is not at variance with established language. The consilium or
cnpitatio has even been recognized by positive law as a crime, /)/-o-
vided it is evideyiced by an overt act, a term devised, as it appears
to me, not without psychological insight. (See p. 21b post.) — R, C.

Jus in rem — in personam. 175

meaning of 'Will.' I accordingly postpone furtlier con- Lect.

sideratiDn of these terms imtil I have considered the XIV.

meaning of ' Will' and of the inseparably connected term, " > '
' Intention.'

I now proceed to analyze an important distraction which important
obtains between rights, and which, for reasons to be pre- ^eti-een""
sentlv adduced, I mark by the phrases 'rights in rein,^ rights, Jus in

,.,',. ' , J i: o / rem, Jits 171

'rights 111 2'>erS0na7n, personam.

But I must interpose an explanation of certain terms,
which I have already employed and sliall again have occa-
sion to employ, and which have an important bearing on
the distinction to be here analyzed.

I have abeady Cp. 1G7 cmte) spoken of acts and forbear-
ances as the objects 5f duties, and I have spoken of persons
and shall also speak of things as the subjects of rights and
duties. When I style acts and forbearances the objects of
duties, or of the rights (if any) which answer to those
duties, I mean that the duties are imposed upon the persons
obliged in order that they may act or forbear in the manner
specified. When I style persons or things the subjects of
rights, I mean that the acts or forbearances which are tlie
objects of those rights relate to those persons or things ; and
T employ the expression only in regard to those rights which
avail against persons generally ; e.ff. when I speak of the
right of the master in or to his servant, the object of the
right is the forbearance, at the hands of all other persons,
from 80 meddliug v^-ith the servant as to prejudice the
master's enjoyment of his services. Here I call the servant
the subject of the right. It is to be observed, as I shall show
hereafter, that this right is entirely distinct and separate
from the master's right as against the servant — the right,
namely, which answei-s to the duty of the servant to do
and forbear according to his contract. So when I speak of
the right of propeiiy in a horse or in a field, I call that
horse or that field the subject of the right.*

I must also interpose one explanation further. When I
say that a right avails against a person or persons, what I
mean is this. Every right resides in a person or persons,
and has for its object one or more acts or forbearances at
the hands of another or other persons. To express shortly
the last part of this proposition I say that the right avails
against the person or persons last mentioned.

• It may be noted that the author in using the ■word subject in
this sense, advisedly differs from the German jurists, who commonly
call the person in whom the right resides, the subject of the right.
The author elsewhere suggests (p. 7.37 of larger edition) that this
use of the word subject led them into the confusion mentioned in
a former note (p. 118 supra) ; fancying that it was connected with
the use of the term subjective in the Kantian philosophy. — R. C.

I

1 76 Pervading Notions analyzed.

Part I. I proceed to distinguisli ' rights in rem ' from ' rights in

§3^ 2'^^^'sonam,^ which I do shortly as follows : —

Definition, — Hiffhts IN rem cu-e those ivhich avail againal
2iers<y>is generally : rights in personam are those lohich avail
V^ exclusively against certain or determinate perso7is.

This distinction is one which pervades the "writings of
the Roman lawyers ; and is assumed by tlie Roman Institu- .
tional critics as the main groundwork of their arrangement.
Nevertheless, the terms ^ws in rein — jus in personam^jvce not
explicitly adopted by tliese -^Titers to indicate the distinc-
tion. These terms were de\'ised by the Civilians who
wrote subsequently to what has been termed the revival of
the study of Roman Law, and I adopt them as the terms
which most adequately and least ambiguously express the
distinction.* ^ Jus in j^ersonam certain sive determinatam'
is expressive and free from ambiguity. Cut down to ^ jus in
personain ' it is also sufficiently concise. ' Jus in 7'ent,'
standing by itself, is ambiguous and obscure. But when
it is contradistinguished to jus in personaiti, it catches
a borrowed clearness from the expression to which it is
opposed.

And here I must make a remark as to what jus in rem
does not mean. Recurring to the phrase I have ali-eady
used in styling persons and things the subjects of rights ;
that phrase might be varied by saying that the right exists
over, in, or to a thing. And, as I have already indicated, I
employ these expressions only in the case of rights which
avail against persons generally, f The student might be apt
to infer that /ms in rem means a right over, in, or to a thing.
He would be wrong. I do not say that the ideas are his-
yi torically unconnected ; but however that may be, the phrase

in rem as here used, denotes not the subject but the compass

* The terms which were emplo^'ed by the Roman lawj^ers them-
selves, with various other names for the classes of rijjhts in question,
will be found briefly stated in a note at the end of this Lecture. —
R. C.

t I have hero, although Austin does not expUcitli/ so state it,
treated the restriction of the phrase ' right over a person or thing '
to those rights which avail against persons generally, as perfectly
arbitrary. The reason for so restricting the expression appears to be
that it is convenient to divide rights in rem into those which have
and those wliich have not persons or things as subjects, whereas
there is no corresponding convenience in so dividing rights i ■ per-
sonam. But there seems no necessary ground for the roetriction.
Suppose, for instance, I am in possession of a piece of ground with
a merely equitable title. Why should my right against persons
generally to forbear from trespass, be more a right over or in the
land, than m}' right to compel the person having the legal estate to
grant a conveyance ? — R. C.

Jus in rem — Examples.

177

between
jui ill roil
and jus in
perst/nam.

Properly.

/

of tlie right. It denotes that the right iu question avails Lect,
against persons yeneralhj ; aud not that the right iu question XIV.
is a right over a thing. For many of the rights wMch are """ '
rights in rem are either rights over or to persons, or have
no subject (person or thing).

Corollanj to definition. — These two classes of rights are
fiu'ther distinguishable thus. The duties which correlate
with rights in rem, are always negative : that is to say, they
are duties to forbear or abstain.* Of the obligations which
correlate ■ndth rights in personain, some are negative, but
some (and tnost) are positive : that is to say, obligations to
do or perform.

I shall now briefly give a few instances to illustrate the lyustrati )n8
character of the rights comprised in these two great classes tinction
respectively.

Instances of rights in7'e>na.Te 1st, Ownership or p-opertg.
This is a term of such complex or various meaning that I
must defer the full and accurate explanation of it. But, fur
the present purpose, the follo-ndng is a sufficient definition
of Ownership or Property ; ' the right to v^e or deal with
some given subject, in a manner, or to an extent, which,
though not unlimited, is indefinite.'

Now in this description it is necessarily implied, that
the law wiU protect or relieve the owner against every dis-
turbance of his right. That is to say, all other persons are
boimd to forbear from acts which would prevent or hinder
the enjoyment or exercise of the right.

But here the duties which correspond to the right of
property terminate. Every positive duty which may happen
to concern or regard it, and every negative duty regarding
it which binds exclusively certain persons, is not a duty
properly corresponding to the right of property, but to some
right collateral to the right of property, and flowing from
some incident specially binding the person upon whom the
duty'is incumbent : — e.g. from a covenant with the owner ;
or from a breach of one of the negative duties which properly
correspond to the right of property, as a trespass laying the
trespasser under the duty to make reparation.

Ownership or Property is, therefore, a species of jus in
rem. It is a right residing in a person, over or to a person
or thing, and availing against other jyersons universallg or
generallg. The obligations implied by it are also negative
as well as universal.

* This indeed is almost a necessary consequence of the defini-
tion. For if rights of the class jus in rem involved positive duties
every such duty would either set the whole world in motion, or in-
volve universal liahility to punishment ; a result which it would be
absurd to contemplate. — R. C.

1/8 Pervading- Notions aiuxlyzed.

Where the subject of a right in mn happens to be a
person, the position of the party who is invested with the
right wears a double aspect. He has a right (or rights)
ove)' or to the subject as against other persons generally.
He has also riglits (in persomtni) against the subject, or lies
under ohliyations (in the sense of the lloman la^\-yers) to-
wards the subject. But this is a matter to whicJi I shall
revert,
sen-itus. 2ndly. The Servitute^ of the Roman law, and of the

various modern systems which are moditications of the
Roman law, may also be adduced as examples of eights in
rem.

Servitus (for which the English ' Easement ' is hardly an
adequate expression) is a right to use or deal tvith, in a
given and definite manner, a subject oicnexl by another.
Take, for instance, a Right of "Way over another's laud.
According to this definition, the capital difference between
otune7'ship and servitus consists in this, that in the former
case the right of dealing -vriXh. the subject is larger and
indeed indejinite, in the latter case narrower and fZeiJerHuViflfe.
But each is a right in rem. For servitus avails against all
mankind (including the owner of the subject). It implies
an obligation upon all (the owner again included) to forbear
from every act inconsistent with the exercise of the right.

But this negative and universal duty, is the only obliga-
tion which correlates ■v\'ith the jus servitutis. Every special
obligation which happens to regard or concern it is a duty
answering, not to the jus semtutis, but to some right extra-
neous or merely collateral to it; e. (j. the oicner of the subject
may have c/ranted an easement over it and covenanted Tsdth
the grantee for quiet enjoyment. The gi'antor here lies
under tico duties which are completely distinct and disparate,
although the objects of the duties are the same : one of
these duties arises from the grant, and thereby he is bound,
like the rest of the world, to forbear fi'om molesting the
gTantee in exercise of the right created by the orant ; the other
ai'ises from the contract by which he is specially bound.

Examriesof Instances of rights in personam are: —

|','frsonoTO. 1st. A right arising from a cow//-fl'C7'.

1st. Aright Rights, which, properly speaking, arise from contracts,

irising out of avail against the parties who bind themselves by contract,
and also against the parties who are said to represent their
persons : that is to say, who succeed on certain events to
the aggregate or bulk of their rights; and, therefoi-e, to
their ^faculties or means of fulfilling or liquidating their
obligations. But as against all other persons the rights
which properly speaking arise from contracts have no force
or effect : although by a confusion of thought to which I
shall revert, rights in rem are sometimes imagined to pro-

Jus in personam — Examples. 179

ceed from contract. This occurs in the case where the same Lect.
b'ansaction bears the double character of a contract and a XIV.
conveyance. To avoid in the mean time the effect of this '^" ■
confusion, I assume in the following example, that we are
considering the case on the principles of the lioman law or
of some system of law consciously based on the Roman Law.

Suppose you contract with me to deliver some moveable
(a horse, a garment, or what not) ; but, instead of deliverirg
it to ?«?, in pm'suance of the contract, that you sell and
deliver it to another. Xow, here, the lights which I acquire
by virtue of the Contract or Agreement are the following.
I have a right to the moveable in question, as against you
spedalhj (jus AD rem ACQUiEE^'DAjr). So long as the owner-
ship and the possession continue to reside in you, I can
force you to deliver me the thing in specific performance of
yom- agreement, or, at least, to make me satisfaction, in
case you detain it. After the delivery to the buyer, I can
compel you to make me satisfaction for your breach of the
contract with me. But here my rights end. As against
strangers to that contract, I have no right whatever to the
moveable in question. And, by consequence, I can neither
compel the buyer to yield it to me, nor force him to make
me satisfaction as detaining a thing of mine. For ' ohluja-
tionum substantia non in eo consistit ut aliquod nostrum
faciat, sed ut alium nobis obstringat ad dandum aliquid, vel
faciendum, vel praestandum.' (See the admirable Title in
the Digests, ' De Obligationibujj et Actionibus,' xliv. 7.)
But if you deliver the moveable, in pureuance of your agree-
ment with me, my position toicards other 2}ersons yenerally
assumes a different aspect. In consequence of the Delivery
by you and the coucumng Apprehension by me, the thing
becomes mine. I have now jus in rem : — a right to the
thing delivered, as against all manldnd : a right answering
to obligations negative and uniiersal. And, by consec|uence,
I can compel the restitution of the subject from any who
may take and detain it, or can force him to make me satis-
faction as for an injury to my right of o-miership. — ' Ubi'rem
meam invenio, ibi eam vindico ; sive cimi ed persona negotium
mihi fuerit, sive non fuerit. Contra, si a bibliopola librum
emi, isque euni nondum mihi traditum vendiderit iterum
Sempronio, ego sane contra Sempronium agere nequeo ; quia
cum EO nullum mihi unquam intercessit negotium: sed agere
debeo adversus bibliopolam a quo emi ; quia ago ex contractu,
i.e. ex jure AD re?«.' — Heineccii Hecitati-Jiies, lib. ii. tit. I.
§331.

2ndly. Rights of action, with all other rights founded zndiy. a
upon injuries, are also jura in personam. For they answer founded »
to oblig'ations attaching upon the deter?ninate persons, from ^ injury,
whom the injm-ies have proceeded, or from whom they are
apprehended.

i8o

Pervading Notions analyzed,

Rights in
personam are
rights to acts
■lid forbear-
ances and to
iiotliiug
more.

It is true that difficulties have arisen ahout the natui'fl
of Actions in rem ; i.e., those Actions (or, rather, tliosc;
liights of Action) of which the ground is an offence against
a right in rem, and of which the intention (scope, or pur-
pose) is the restitution of the injured party to the exercise
of the ■sdolated right. But these and other difficulties be-
setting the Theory of Actions, appear to have sprung from
this ; that the natiu'e of the right which is affected hy the
injury, and the nature of the remedy which is the pm'pose
of the action, are frequently blended and confounded by
expositors of the Eoman Law. And this confusion of ideas
absolutely disparate and distinct, seems to have arisen from
the abridged shape of the expressions by which rights of
action are commonly denoted. By an ellipsis commodious
and inviting, but leading to confusion and obscurity, a
name or phrase applicable to the violated right is often ex-
tended improperly to the remedy. Thus, the phrase ' in rem '
is extended to certain actions, which, though they are ne-
cessarily directed against determinate persons, are grounded
upon violations of rights availing against all manlrind.
And, thus, certain actions are styled ' ex contractu,^ although
they properly arise from the 7ion-performance of contracts,
and are only remote and incidental consequences of the
contracts themselves. *

All rights in 2}ersonam are rights to acts and forbear-
ances and to nothing more. The species of rights which
have been termed jns ad rem form no exception. AVliat
has been stsled _/hs ad rem is an elliptical expression, and is
more properly rendered jus ad rem acquirendam, or still
more completely, JUS in j^ersonam ad jus in eem acqui-
rendam. That is to say, the person entitled has a right,
availing against a determinate person, to the acquisition of
a right availing against the world at large. And by conse-
quence, his right is a right to an act of conveyance or
transfer on the part of the person obliged.

♦ I have t.iken this passage from the Notes on Tables (p. 9G9 of
former edition), where the author's meaning seems more fully ex-
pressed than in the corresponding passage of the Lectures. But I
think the author here inverts the historical sequence of ideas. He
lias himself observed that the phrase in rem is not applied by the
Roman lawyers themselves to describe a class of rights. But it is
.applied by them to a leading division of actions. The simple and
obvious explanation seems to be that the phrase was suggested by
the circumstance that in the typical and most important of these
ictions, the vindicatin rei, the result was tlie specific restitution of
the thing. The meaning of in rem as denoting generality of a right,
is, I think, a secondary meaning, due in the first place, to the asso-
ciation of the vindicatio rei with dominium — the right which gave
rise to that action — and in the second place, to the extension of the
term dominium to that large sense which includes the whole class of
rights comprehended by the civilians under the term jus in rem. —
JR. C.

I

Rights in personam.

1 uow revert to the confusion created by a class of cases
which obscure the otherwise broad and distinct line of
demarcation between these two great classes of rights,
liights in rem sometimes arise from an instrument which is
called a contract, and are therefore said to arise from a
Contract: the instrument in these cases wears a double
aspect, or has a twofold effect ; to one purpose it gives ^i/s in
personam and is a contract, to another purpose it gives jus
in rem and is a conveyance. When a so-called contract
passes an estate, or, in the language of the civilians, a right
in rem, to the obligor, it is to that extent not a contract but
a conveyance; although it may be a contract to some other
extent and considered from some other aspect.

For example, by the English law the sale of a specific
moveable is a conveyance, and transfers the right in rem,
[But from the exigencies of commerce this right in rem is
shorn of some of the incidents of a full right of property,
for instance, by the operation of the rules both of law and
equity as to the rights of unpaid vendors ; the Bills of Sale
Act ; the 'reputed ownership' clauses of the Bankrupt Acts:
all of which are climisy expedients for obtaining the results
which naturally flow from the simple principle of the
Roman law and the systems consciously based on that law,
namely, ' Traditionibus non nudis pactis dominia rerum
transferuntur.' — R.O.] *

In the French law, a contract for the sale of an im-
moveable is of itself a conveyance ; there is no other ; the
contract, or agi'eement to sell, is registered, and the owner-
ship of the immoveable at once passes to the buyer.

By the provisions of that part of the English law which

i8i

Lect.
XIV.

Confusion
arising from
the cir-
cumstance
that the same
instrument
or transac-
tion is at
once a con-
tract and a
couveyaucv.

I

* It is curious to observe the approximation in practical effect
of the mercantile laws of two countries which start with opposite
theories. The approximatinn has been slightly aided in England
and Scotland by the ]\Iercantile Law Amendment Acts, for the
respective countries (1856).

By the law of Kiigland, the
right of the buyer of a specific
moveable not delivered is jus in
rem. It is available against
everybody except :

1. The unpaid vendor (in se-
curity for his payment).

2. The creditors of the vendor,
where personal chattels not being
goods sold in the ordinary course
of trade, are sold under a bill of
sale not duly registered under
the Bills of Sale Act.

3. The trustee in Bankruptcy
of the vendor in certain cases
falling under the ' reputed owner-
ship ' clause of the Bankrupt Act.

By the law of Scotland, the
right of the buyer is jus in per-
sonam and avails against :

1. The vendor ("subject to the
condition of payment).

2. By the jNIercantile Law-
Amendment Act, it avails to a
sub-vendor against the original
vendor.

3. By the same Act, it avails
against the creditors of tlie
vendor, except in certain cases to
■which the common law of Scot-
land applies the doctrine of re-
puted ownership. R, C.

1 82 Pervading Notions analyzed.

Part I. is called equity, a contract to sell an immoveable at once
§ 3. Tests jus in rem or ownership in the buyer, and the seller
^" ' ' has only jus in re ctliend. But accordiuo: to the conflicting'
provisions of that part of the English system peculiarly
called laii'<, a sale and pm-chase ^-ithout certain formalities
merely gives j».s ad rem or a ri^.-'ht to receive the ownership,
not ownership itself; and for this reason a contract to sell,
though in equity it confers ownership, is yet an imperfect
conveyance in consequence of tlie conflicting pretensions of
law.* To complete the transaction the"buyer has aright in
pei-sonam against the seller, to compel him to pass hia legal
interest.

NOTE.

ON THE DIFFERENT TERMS USED BY JURISTS TO MARK
THE CAPITAL DISTINCTION BETWEEN RIGHTS INTRO-
DUCED IN THE AEOVE LECTURE.

One of the great desiderata in the language of jurisprudence
is this : A pair of opposed expressions denoting Lriefly and un-
ambiguously the two classes of rights •which are the subject of
the present note : namely, Right-s availing against persons gene-
rally or universally, and Eights availing against persons certain
or determinate.

The opposed or contrasted expressions commonly employed

* It should here be observed, however, that the owner of what is
called the equitable estate cannot even in equity recover against a
purchaser for value, having no notice of his equitable title, who has
got the legal estate ; ' legal estate ' in this instance expressing not
merely the estate according to law as distinguished from equity, but
being an expression loosely used to express the fiction more properlj'
denoted by the word seisin (or, in rights not capable of seisin, the
completion of title in a mode analogous to seisin). If seisin were
public in fact as it is in theory, a purchaser of land might rely upon
the register, if the expedient were adopted (as it is in Scotland) of
making registration the only mode of transferring the seisin. The
principle which in England secures ' the purchaser for value, with-
out notice of an adverse title, who has got the leg.al estate,' is the
one piece of solid ground in English title. If registration were
made, by statute, the only mode of transferring the legal estate,
and no notice were allowed to affect a purchaser, other than should
appear on the face of the registered title, or by the actual state of
possession, and if every transfer of the legal estate gave the trans-
feree a power of sale for all the estate and interest of the transferor,
titles would in time become more secure and much more simple.

Tlie above paragraph was in type before I had read the 7th Sec-
tion of the Act passed last session under the innocent title of the
Vendor and Purchaser Act, 1874 : nor can I now guess what wiU be
the practical effect of this curiously enacted fragment of an abortive
Land Titles Bill.— K. C.

Note on Tcnns, j u s in re m 8: c. 183

foi the purpose, are the following : 'jiisf^re' — 'jus ad rem:' Lect.
'jus in rem ' — ' jus in 'personam : ' ' jus reah ' — 'jus 'personah :' XIV.

^dominium' (sensu latiore) — ^ obligation Eut these are liable "^ — ■ '

to the general objection that y«<s in re, jus iti rem, jus reale and
dominium, "will none of them denote, without a degree of am-
biguity, the entire class of rights which avail a^aiust the world
at large. For although they are often employed in that exten-
sive signification, they commonly signify stick of those rights as
are rights to determinate things.

Besides this general objection, each of these pairs of terms is
liable to special objections, which now I will briefly indicate. In
the course of this review, certain terms, synonymous with the
terms in question, will be noticed with the same brevity. At the
close, I will shortly state my reasons for giving a decided prefer-
ence to ^jus in rem' and ^jiis in personam.'

1. 'Jusznre' and 'Jus ad rem.' — Jus ad rem frequently
signifies any right which avails against a person certain. Still
it is often and properly restricted to a species of such rights : to
those which correlate with obligations ' ad dandum aliquid : ' or
is, properly speaking, jus in personam ad jus in rem acquirendum.
It is, therefore, ambiguous.

This double meaning of jus ad rem is closely connected with
a confusion of thouglit, which, as I shall show afterwards, has an
important bearing iipon certain misbikes in the French and Prus-
sian Codes (see Lect. xxxix. post). The confusion arose in this
way. In numerous cases of transactions which have their origin
in contract, the acqiiisition of a^^^s in rem is preceded hy jus ad
rem in the restricted sense of the term above mentioned. The
way in which this occurs is illustrated by the example given on
p. 179 supra. Observing that this sequence took place in certain
transactions which are striking by their frequency and import-
ance, Heineccius and other Civilians by a hasty generalization
fell into the following errors: 1st. They inferred that evay
acqinsition oijus in rem is preceded by J2is ad rewj, and by a
correlating or corresponding obligation. This invariable sequence
(as they siipposed it to be) they marked in the following manner :
■ — To the fact or incident imparting the jus hi nm they gaj'c
the name of ' modus aequinndi,' or ' modus acquis it io7iis.' To
the preceding incident imparting jus ad rem (which they con-
sidered a step or means to the acquisition o{ jus in rem) they
gave the name of ' titulus ad acquirendum,' or briefly ' titidus'
I'or example : According to their language, a contr.ii:t to deliver
a thing is 'tiiidvs ad acquirendum (jus in rem) :' The delivery
or tradition which follows it, or by which itouglitto be followed,
is ^ modus (jus in rem) acquirindi,' or ^ modus acquisitionis).'
2ndly. From this first error they fell into a second. Perceiving
that^i^s ad rem, in the restricted and proper sense above men-
tioned, is the forerunner of the incident liy which ^z/s in rem is
acquired, and ccnfoimding the proper sense of jus ad rem with
the larger sense of the expression as extending to every jus in
personam, they supposed that every incident which imparts y«<s i»
personam, is merely ' titulus ad (jus in rem) acquirendum,' that

1 84 Pervading Notions analysed.

is, merely preparatory to a ' niodus acquis! tiojiln ' or to the inci-
dent imparting tlie^us in rem.

Heinecciiis furtlier expresses the supposed invariable sequence
by calling the ' titidus' the remote cause, and the 'modus' the
proximate cause of the consequent right (jus in rem). The
authors of the French Code crown this confusion of thought by
speaking oi property as acquired and transmitted (amongst other
ways) 'par feffet dcs obligations.' Art. 711.

2. ' Jus rea„e and ' Jus perso7iale.' — These are used to denote
the distinction in question. But they tend to create confusion ; —

Eirst, because they might lead to confusion of thoiight by
suggesting that the distinction had something to do with the
■\7idely different distinction — jus rerum, jus personarum — which
belongs to a division not of rights, but of the whole corpus juris.

Secondly, because it would be apt to suggest to a student of
English law the entirely different distinction of rights into real
and personal, i.e. heritable and administrable.

Thirdly, because the words real and personal have been ap-
plied to servitudes to mark a widely different distinction, namely
that between servitudes which are appurtenant, and those which
are iw gross.

3. 'Dominium' (sonsu latiore) and ' Obligatio.' — Besides the
general objection which is mentioned above, dominium (as op-
posed to obligatio) differs from doininium (in the strict significa-
tion). As opposed to obligatio, it embraces 'jura in re ' (in the
sense of the Classical Jurists) : that is to say, 'jura in re aliend :'
rights or interests in subjects which are owned hy others. Taken
in the strict signification, it is directh' opposed to these rights ;
being synonymous with ' jyroprietas,' with ' in re jJofestas,' or with
'jus in re propria' The numerous ambiguities which beset the
term obligatio viWihe noted hereafter. In the mean time it may
be observed that in the larger sense of the term, and that in
which it is usually employed by the Roman lawyers, obligatio is
equivalent to jus in fersonam. But it is used in so many
narrower and restricted senses in modern systems of law, as to
have become inconvenient as a technical term to denote the
larger of rights in question.

4. ' Potestas ' and ' Obligatio.' — It has been proposed to
substitute these in the place of dominium and obligatio, jus in
rem and jus in lursonam, etc. But this were a change to the
worse. For, first, potestas, as synonymous with dominium, is
encumbered with all the ambiguities which stick to the latter.
And, secondly, it is liable to an objection from which the latter
is free. For it usually signifies certain species of the rights
which avail against persons determinate : namely, the rights of
the master against the slave ('potestas dominorum in servos');
and the riglits of the paterfamilias against his descendants
(' patria potestas,' or ' potestas parentum in liberos').

5. 'Absolute rights' and 'Relative rights.' — These expres-
sions as thus applied, are flatly absurd. For rights of both

Note on Terms, j u s I n r e m & c. 185

classes are relative : or, in other words, rights of botli classes Lect.
correlate with duties or olligations. The only difference is, that XIV.
the former correlate -vntli duties which are incumbent upon the "'" ■ ^
world at large ; the latter correlate with obligations which are
limited to determined individuals.

6. ' Jura qu?e valent in personas gcneratim! and ' Jura quae
Talent in personas certas sive determinatas.' — These expressions
are sufficienlly clear and precise. But they are rather defini-
tions than names, and are much too long for ordinary use.

7. 'Law 0? Property' and 'Law of Contract.' — These ex-
pressions, as thus opposed, are intended to express the distinc-
tion which is the subject of the present note. But they do tlie
business wretched!}'. Of the numerous objections which imme-
diately present themselves, I will briefly advert to the following.

First, we need contrasted expressions for the two classes of
rights, and not for the laws or rules of which those rights are
the creatures.

Secondly, property is liable to the objection which applies to
dominiinn. In this instance, its meaning is generic. It signifies
rights of every description wliich avail against the world at
large. But, in other instances, it distingv.ishes some species of
those rights from some other species of the same rights. For
example : It signifies oivnership. as opposed to servitude or ease-
ment ; or it signifies ownership indefinite in point of duration, as
opposed to an interest for a definite number of years. In short,
if I travelled through all its meanings and attempted to fix
them with precision, this brief notice would swell to a long
dissertation.

Thirdly, contract is not a name for a class of rights, but for
a class of the facts or titles by which rights are generated.

Fourthly, rights arising from contracts are only a portion of
the rights, which the expression ' law of contract ' is intended
to indicate. For ' law of contract,' as opposed to ' law of pro-
perty,' denotes, or should denote, rights iyi perwnam certam : a
class which embraces rights 7iot arising from contracts, as well
as the species of riglits which emanate from those sources.

8. ' Jus in re)7i ' and ' Jus in 2^crsona?n.' — The phrase ' i)i
rem' is an expression of frequent occurrence in the writings of
the Roman lawyers. And although it is nowhere used by them
for the purpose of signifying briefly and unambiguously riglits
of every description which avail against persons generally, yet
in all the instances in which it occurs, the subject to which it is
applied is a something which avails generally : ' quod gemraiim
in causam aliquam valet.'

The expression jKs in rem was devised by the Glossators, or
by the Commentators who succeeded them. Seeing that the
phrase ' i?i rem' always imported generality, and feeling the
need of a term for ' rights which avail generally' they applied
the former to the purpose of marking the latter, and talked of
' JuHA in rem' And, in this instance, as in many others, they
evince a strength of discrimination, and a compass of thought

1 86

Pervading Notions analyzed.

Part I. which are rarely displayed by the elegant and fastidious scholars
§ 3. who scorn them as scholastic barbarians. In spite of the ignor-

-" — ' ' ance to which their position condemned them, their reason was

sharpened and invigorated by the prevalent study of their age :
by that school logic which the shallow and the flippant despise,
but which all who examine it closely, and are capable of seizing
its purpose, regard with intense admiration.

Now the expression yzfs in rem; in this its analogical meaning,
perfectly supplies the desideratum which is stated above. For
as ' f?i rem' denotes generality, 'Jus in rem' should signify
rights availing against persons generally. Therefore, it should
signify all rights belonging to i\\a.t genus, let their specifii; differ-
ences be what tliey may. And that is the thing which is
wanted.

If it were possible for me to fix the meaning of words, I
should distinguisli the two classes of rights and obligations in
the following manner.

1 '^. Obligations considered universally, I would style, ' Offices
or ' Duties.'

2°. Rights which avail against persons generally or universally
I would stylo ' Rights in rem.'

3°. Eights whicli avail against persons certain or determinate,
I would style ' Rights in personam.'

4°. Obligations which are incumbent upon persons generally
or universally, I would style ' Offices ' or ' Duties'

5°. To tliose which are incumbent upon persons certain or
detrrminate, I would appropriate the term ' Obligations'

AVithout introducing a single new term, and without employ-
ing an old one in a new manner, we should thus be provided
with language passably expressive and distinct : which would
enable the writer or speaker to move onward, without pausing
at every second step to clear his path of ambiguities. AH that
is necessary to this desirable end, is to use established terms in
established meanings, taking good care to use them detcrminattly;
i.e. to restrict each term to its appropriate object.

LECTURE XV.

Jus in rem — in ^icrsonam (continued).

Leot.
XV.

Further
Illustrations
of the dis-
tinction
between jus
in rem and
ius in
ptrtonam.

Tn order that I may further illustrate the import of the
leading distinction Letween riglits introduced in my last
Lecture, I shall direct yom' attention to those rights in rem
•which are rights OA'er j^^rsons, and to certain rights in ^-em,
or availing against the world at large, ichich have no deter-
minate subjects (persons or things).

Of rights existing over persons, and availing against
other persons generally, I may cite the following as ex-

Rights in rem ai'cr persons.

187

ample3 : — The riglit of the father to the custody and edu-
cation of the child: — the right of the guardian to the
custiDdy and education of the ward: — the right of the
master to tlie services of the slave or servant.

Against the child or ward, and against the slave or ser-
vant, these rights are rights in personam : that is to say,
they are rights answering to oblir/ations (in the sense of the
Roman La'nwers) which are iucumheut exclusiveli/ upon
those detenninate individuals. In case the child or ward
desert the father or guardian, or refuse the lessons of the
teachers whom the father or guardian has appointed, the
father or guardian may compel him to return, and may
punish him vnXh. due moderation for his laziness or per-
verseness. If the slave run from his work, the master may
force him back, and di-ive him to his work by chastisement.
If the servant abandon his service before its due expiration,
the master may sue him as for a breach of the contract of
hiring, or as for breach of an obligation (dVASl ex contractu)
implied in the status of servant.

But considered from another aspect, these rights are of
another character, and belong to another class. Considered
from that aspect, they avail against persons generallij, or
against the world at large ; and the duties to which they
correspond, are invariably -nef/ative. As against other per-
sons generally, they are not so much rights to the custody
and education of the child, to the custody and education of
the ward, and to the sernces of the slave or servant, as
rights to the exercise of such riglits u-ithout molestation
by strangers. As against strangers, their substance consists
of duties, iuciuubeut upon strangers, to forbear or abstain
from acts inconsistent with their scope or purpose.

In case the child (or ward) be detained from the father
(or guardian), the latter can recover him from the stranger.
In case the child be beaten, or otherwise harmed injm-iously,
the father has an action against the wrong-doer for tlie
wrong against his interest in the child ; and so on.

And here I may remark conveniently, that where a right
in rern is a right over or to a person, the person is neither
invested v\-ith the right, nor is he bound by the dutv to
which the right corresponds. He is merely the subject of
the real right, and occupies a position analogous to that of
a thing which is the subject of a similar right.

For example. Independently of his rights against the
child, and independently of his obligations towards the
child, the parent has a right in the child availing against
the world at large. — Independently of his rights against the
parent, and independently of his obligations towards the
parent, the child has a right in the parent availing against
the world at large. The murder of the parent by a third
person might not only be treated as a crime, or imblic urong,

Lect.
XV.

Rights in rent
over persons

A person who
is the subject
of jus in rem
is placed ill a
position like
the position
of a thing
■which is the
BUbject of .1
similar right.

1 88 Pervading Notions analyzed.

but miglit also be treated as a civil injiiry against tbat right
in the parent which belongs to the child. By the laws of
modern Eiu'ope, the civil injury merges in the crime; but
in other ages the case was different ; the oflender lay under
a twofold obligation : to suffer punishment on the part of
the society or community, and to satisfy the parties whose
interest in the deceased he had destroyed. Before the
abolition of Appeals in criminal cases,* this was nearly the
case in the law of England. The murderer was obnoxious
to punishment to be inflicted on the part of the State ; and
the wife and the heir of the slain were entitled to vinjiictive
satisfaction, which they exacted or remitted at their pleasure.
And this is the distinction, and the only one, which exists
between a civil injury and a crime.f
And may be Now, Considered as the subject of the real right which

ana'iogv'/a resides in the parent, tlie child is placed in a position ana-
thing. ■ loqous to that of a thinr/, and might be styled (in respect of

that analogy) a thiiu/ ; and so vice versa. In short, whoever
is the subject of a right which resides in another person, and
which avails or obtains against a third person or persons, is
placed in a position analogous to that of a thing, and might
be styled (in respect of that analogy) a thing.

But this analogical application of the term thing has (in
fact) been partial and capricious. So far as I can remember
there are only tAvo instances in which the term thing has
been applied to persons, considered as the subjects of rights.
— By the Roman lawyers, the slave, considered as the subject
of the 7'eal right which resides in the master, was occasion-
ally ranked with things. — By certain modern Civilians
(Ileineccius and others) the filiusfamilias, considered as the
subject of the 7-eal right which resides in the 2^fterfa7mltas,
has been classed Avith things.

It has been coimnonly supposed that the slave was not
considered by the Roman LaAvyers as belonging- to the class
o{ persons. But this is one of those assumptions utterly des-
titute of foundation, which haA^e been successively received
by successive generations, though the means of disproof are
open and obAious to all. Considered as bound by duties
towards his master and others, the slave is ranked by the
Roman LaAvyers AA'ith physical 2)ersons ; and is spoken of

* By the 59 Geo. III. c. 46.

t By the laAv of Scotland the wife and family of the slain have
still the right to bring a civil action for assy theme nt (the ground of
action being not only indemnification for damage, but also solatium
for the bereavement), notv/ithstanding a criminal prosecution insti-
tuted by the Public Prosecutor, unless capital punishment be suf-
fered. It is the Scoti;h action of assythement Avhich suggested to
Lord Campbell the introduction into England of a laAV for compen-
sating the families of persons killed by accidents, by the Act 9 and
10 Vict. c. 93, commonly called Lord Campbell's Act.

Rights in rem having no suhjixt. 189

as bearing, or sustaininp:, a person, status, or condition. LKcr,
Considered as tlie subject of the right residing in his master XV.
and availing (iwt against himself, but against third persons), ' ' '
he is occasionally styled res. But, even as considered from
this aspect, he is usually deemed a person rather than a thing,
and is styled usually sefvilis persoyui. Gains, for instance, in
describing mancipation, "which is a particular form of con-
veyance, and enumerating the subjects which may be con-
veyed by it, says, JSo modo et seniles et liberce peisones man-
cipantur. The right of the master to the services of the
slave is distinguished by a different name from that which
expresses the analogous right in a thing. It is called potestas,
or j)otestas domini in senum, not dominiinn.

As for i\\Q Jiliusfamilias, I am not aware of any passage
in the classical jurists where he is styled a thing. In the
passage of the Digest where the action called rei viixdicatio
is said to be applicable to the recovery of a slave, the same
action is denied to be applicable to a fliusfamilias. Per
hanc autem actionem, liberfs persona; qua sunt juris nostri, tit
puta liheri qui sunt in jmtestate, non petuntur. The right of
the father over his son is never styled dominium or ^yroitrietas,
but patria potestas, or p)otestas p>citris in liberos.

Having cited examples of 7'eal rights which are rights Jus rcaXUcr
over /je/'sows, I wiU cite an example or two of ^-er/^ rights, R1ght"^■,t'
which are not rights over things or persons, but are rights to ^eTernilnate
forbearances merelv. subjects.

1. A man's right or interest in his good-name is a right
which avails against persons, considered generally : they
are bound to forbear from such imputations against him
as would amount to injuries towards his right in his repu-
tation. It is therefore a right in rem. liut there is no
subject, thing or person, over which it can be said to exist.

2. A monopoly, or the right of selling exclusively com-
modities of a given ckss (a patent right for instance), is
also a real right : All persons, other than the party in wbom
the right resides, are bound to forbear from selling com-
modities of the given class or description. But, though the
right is a real right, there is no subject, person or thing, over
which it can be said to exist, imless it be the future profits,
abo^e the average rate, which he may possibly deri\"e from
his exclusive right to sell.

3. Many examples of this class of riglits might be
selected from among franc/iises ;. a law term embracing an
immense variety of rights, having no common property
whatever except their supposed origin, being all of them
considered to have been originally granted by the CroA^ni.
Such, for example, is a right of exclusive jurisdiction in a
given territory, or a right of levying a toll at a certain bridge
or ferry. The rights in personam which concur with the

P
I

1 90 Pervading Notions analyzed.

riglits in question {e.g. tlie riglita answering to tlie obliga-
tions on the persons avIio liappeu to traverse the bridge) are
perfectly distinct from the rights in, rem of which the fran-
chise consists : namely, the obligation not to impede the
exercise of the jurisdiction, the levying of the toll, or the
passage over the bridge ; nor to carry passengers across within
the limits of the ferry, to the detrunent of the exclusive
right of the person entitled.

4. The right of the heir to the heritage. According to
the Roman Law the heir had, as distinguished from the
several rights which devolve upon him from the testator oi
intestate, a right in the aagreciate formed by those several
rights coupled with tlie obligations of the deceased. In this
heritage, so far as it consisted of rights, the heir had by the
Eoman law a right, availing against the world at large,
and which he could maintain against any one who might
gainsay or dispute it by a peculiar judicial proceeding called
petitio' hereditatis, which was an action in rem, i.e. grounded
on an injui-y to a real right, and seeking the restoration of
the injm-ed party to the unmolested exercise of the right in
which he had been disturbed.

o. Lastlv, a right in a Status or Condition (considered
as an aggregate of rights and capacities) is also a real right.
To determine precisely what a Status is, is in my opinion the
most difficult problem in the whole science of jurisprudence.
But for the purpose immediately before me, it may suffice
to sav that it consists of an aggregate of rights, duties, and
capacities, or of one or more of those classes of objects. So
far as a condition consists of rights, and of capacities to
take rights, we may imagine a right in the condition con-
sidered as a complex whole.

According to the Roman Law, as the heir has a right in
the heritage (abstracted from its several parts), so has the
party invested witli a condition, a right or interest in the
condition itself (abstracted from the rights and capacities of
which it is compounded). Ilis right in the condition, con-
sidered as an aggregate or whole, is analof/ous to the right
of ownership in a single or individual t/iinf/.

Consequently, wrongs ag-ainst this right are analogous to
wrongs against ownership ; and, according to the practice of
the Roman Law, -wTongs of botli classes are redressed by
similar remedies. Where the indi-s-idual thing is unlaw-
fully detained from the owner, he may vindicate or recover
the "thing. And where the right in the condition is wrong-
fully disputed, the party may assert his right by an appro-
priate action, wliich is deemed and styled a vindication.

The reason why status or condition makes so little figure
in the English law as compared -wath the Roman, though the
idea mustof course exist in all systems of law, seems to be
this : that the right iu a status may by tha Roman law bo

* Right:

IQI

asserted directly aud explicitly by an action expressly for its
recovery ; while in English law (if we except certain actions
peculiar to the Court for Divorce aud Mati'imouial Causes)*
no such action can be brought, and the right to a status,
though of course it often becomes the subject of a judicial
decision, almost always comes in as an episode, incidental
to an action of which the direct purpose is something else.
Thus a question of legitimacy, which is precisely a question
of stattus, is usually brought in and decided upon incident-
ally, in an action of ejectment. The question whether or
iLot a particular person is a slave, would generally come
before the judge upon a prosecution by the slave of the
person claiming to be his master for doing some act which
would be illegal unless the claim could be established. Tlie
only case in which a question of status is decided directly
in English law, is when a jury is simimoned to try that
precise question as an issue incidental to a siut in another
court.

Lect.
XV.

P

LECTURE XYI.

Rights considered generally.

In the present Lecture, I shall endeavour to settle the
import of the term ' right ' considered as an expression em-
bracing all rights.

XVI.

Pnrpose of

* Declaratory actions negative of status have long been known
in the old Ecclesiastical and modern Divorce Courts in England.
Instances are the action ofNullitr of Marriage, and of Jactitation of
Marriage (more expressively in Scotland called ' I'utting to Silence ').
The comparr.tively recent introduction by ' the Legitimacy Declara-
tion Act, 1858,' of an action to establish a status of Legitimacy is
an anomaly. Tlie Attoraej'-Gtncral is made a i>arty, api)arently in
the character of advocatus dialjuli. One would suppose that the
framers of the statute originally entertained the idea that the decree
pronounced in the action should be conclusive against persons in
general. If so, that intention was abandoned before the bill became
an act. For the statute (as passed) contains the very reasonable
proviso that the judgment or decree in the action shall not prejudice
persons who neither were parties nor claim through others who were
parties to the action. It may be here observed as a principle of
general jurisprudence that a judgment or decree in an action of
status (like every other judgment or decree) is conclusive only
between the parties to the action in which it is pronounced, and
persons in privity with them. The Roman actio in rem was no ex-
ception to this principle, although if the defendant was in possession
(which he probably was) the decree, by enforcing specilic restitu-
tion, gave the plaintiff the advantage of that possession, and conse-
quently gave him the advantage of being the fle/endant in any
action Vluch another claimant might bring. — Iw G.

1Q2

Pervading Notions analyzed.

fART I.

§3.

the present
Lecture.

Common
iiHture of
rights.

4

Tne Import ol

•Riffht'lu

abstract.

To accomplisli this purpose I shall proceed iu the fol-
lowing order :

1st, I shall endeayour to state, in general expressions, the
uature, essence, or properties, common to all rights. 2ndly,
I shall examine certain definitions of the tenn ' right ; ' and
I shall endeavour to elucidate the common nature of rights,
by showing the vices or defects of those definitions.

Every right is a right in rem, or a right in personam.

The essentials of a right in rem are these :

It resides in a determinate person, or in determinate per-'
sous, and avails against other persons tmiversally or generalhf.
Further, the duty ■with "svhich it correlates, or to ■svhicli it
corresponds, is negative : that is to say, a duty to forbear or
abstain. Consequently, all rights in rem reside iu determi-
nate pei-sons, and are rights to forbearances on the part of
persons generollg.

The essentials of a right in jyersonam are these :

It resides in a determinate person or persons and avails
against a person or persons certain or determinate. Fiu-ther,
the obligation with which it correlates is negative or posi-
tive : that is to say, an obligation to forbear or abstain, or
an obligation to do or perform.

It follows from this analysis, first, That all rights reside
in determinate persons. Secondly, That all rights correspond
to duties or obligations incumbent upon other persons : that
is to say, upon persons distinct from those in whom the rights
reside..,. Thirdly, That all rights are rights to forbearances
or acts on the part of the persons who are bound.

These (I believe) are the only properties wherein all
rights resemble or agi'ee.

Consequently, Right considered in abstract (or apart from
the hinds and sorts into which rights are divisible) may be
conceived and described generally in the following manner.

A monarch or sovereign body expressly or tacitly com-
7nands tliat one or more of its subjects shall do or forbear
from acts towards or iu respect of a distinct and determinate
party. The person or persons who are to do or forbear from
these acts are said to be subject to a duty, or to lie under a
duty. The person torcards whom those acts are to be done
or forborne, is said to ha"\e a right, or to be invested with
a right.

Consequently, the term ' right ' and the term ' relative
duty ' (see p. 161 supra) signify the same notion considered
from different aspects. Every right supposes distinct parties :
A party commanded by the sovereign to do or to forbear, and
a party toivards whom he is commanded to do or to forbear.
The party to whom the sovereign expresses or intimates the
command, is said to lie imder a didg : that is to say a i-ela-
tive duty. The party toicai-ds whom he is commanded to

'Right:

193

do or to forbear, is s<iid to laave a r\(jht to the acts or for-
bearances in question.

I now proceed to examine certain definitions wliicli
liaye been given of the term right.

1. A right has l^een defined by certain writers, as that
security for the enjoyment of a good or advantage which
one man derives from a duty imposed upon another or others.

2. It has also been said that rights are powers : powers
over, or powers to deal ■v\"ith, things or persons.

Objections : 1st, all rights are not powers over things or
persons. All (or most) of the rights wliich I style rights
in personam are merely rights to acts or foibearauces. And
many of the rights which I style jura in rem have no sub-
jects (persoos-er things). 2udly. What is meant by saying
that a right is a power ? The party invested with a right
IS mvested with that right by virtue of the corresponding
duty imposed upon another or others. And this duty is en-
forced, not by the power of the party invested with the
right, but by the power of the state.

It mav, indeed, be said, that a man has a power over a
thing or person, when he can deal with it according to his
pleasure, free from obstacles opposed by others. Xow, in
consequence of the duties imposed upon others, he is thus
able. And, in that sense, a right may be styled a power.
But, even in this sense, the definition \riW. only apply to
certain rights to forbearances. In the case of a right to an
act, the party entitled has not always (or often) a power.

3. Facuitasfaciendi (ant nonfaciendi). This detinition is
open to the same objections as the last definition. ' Facultas/
what ?

4. Eight ; — the capacity or power of exacting from
another or others acts or forljearances. Tliis nearly ap-
proaches a true definition. It falls short of it however in
this respect, that the means of exacting the act or forbear-
ances, namely, through the sanction enforced by the state,
is not expressly adverted to.

Mt definition briefly is this : — A party has a right, when \/
another or others are bound or obliged bj" the law, to do or
to forbear, toicards or in regard of him.

But, as I stated at the outset of the analysis, the full
import of the term ' right ' cannot be made to appear till all
the related expressions are examined.

Lect.
XVI.

Certain
definitions of
a right, ex-
amined.

I

I

194

Pervading Notions analyzed.

LECTURE XVn.

Absolute and relative duties.

Lect.
XVII.

Duties are
relative or
absolute.

Absolute
duties
defined by
exhaustive
enumeration.

Four cases in
whlcli duties
are absolute.

Self-regarding
duties, and
duties not
regarding
man, regard
persons
geucrally in
rcsrcct of
tlieir rrmota
purpose.

As I intimated at tlie outset of tlie analysis tlirough
wliicli I am now jom-neying, duties may he distinguished
into relative and absolute. I then ohserved (p. 162), that
the full explanation of the latter and negative term must be
postponed to an explanation of rights, and the duties which
answer to rights. Ha\dng attempted to explain these, I now
proceed to the duties which have no corresponding rights,
or which (in a word) are absolute.

Every legal duty (like every legal right) emanates from
the command of a sovereign. And the party upon whom
it is imposed is said to be legally obliged, because he is
liable to the means of compulsion wielded by that superior.

Every duty is a duty to do or forbear. A duty is rela-
tive, or answers to a right, where tlie sovereigTi commands
that the acts shall be done or forborne towards a determinate
party, other than the obliged. All other duties are absolute.

Consequently, a duty is absolute in any of the following
cases : 1st, where it is cormnanded that the acta shall be
done or forborne towards, or in respect of, the party to
whom the command is du'ected: or where, in other words,
the duty is self-regarding. 2ndly, Where it is commanded
that the acts shall be done or forborne towards or in respect
of parties other than the obliged, but who are not deter-
minate persons, physical or fictitious. For example, towards
the members generally of the given independent society ; or
towards manlrind at large. Srdly, Where the duty imposed
is not a duty towards man ; or where the acts and forbear-
ances commanded by the sovereign, are not to be done or
observed towards a person or persons. 4thly, "VMiere the
duty is merely to be observed towards the sovereign im-
posiogit: i.e. the monarch, or the sovereign nimiber in its
collegiate and sovereign capacity.

I shall consider tliese duties in the order which I have
now annoimced.

But before I endeavour to explain and exemplify the
classes of absolute duties, I will briefly advert to a topic
upon which I may insist hereafter.

In styling some of these duties self-regarding, and in
affirming' of others of these duties ' that they are not duties
towards man,' I look exclusively at their immediate or
voximate scope.

Relative Duties.

195

Lect.

xvir.

Considered with reference to their more remote purposes,
they are absoUite duties regarding persons generally. For,
RssumiDg that they are imposed at the suggestion of general ~~^ ■ '
utility, they regard the members generally of the given
political society.

For example, the duty incumbent upon you to forbear
from suicide, is a self-regarding duty, in respect of its
proximate purpose — to the end of deterring you from
destroying your 0"mi life. But, remotely or indirectly, it is
an absolute duty regarding persons generally. For it is
partly imposed for the pm-poses of preserving a member to
the community, and of deterring its members generally from
the act of suicide.

Again : A duty to forbear from cruelty towards the lower
animals, is not a duty towards man in respect of its proximate
Bcope. Its proximate or direct scope, is to save the lower
animals from needless suffering. But in respect of its remote
purposes, the duty is an absolute duty regarding persons in-
definitely. For, tending to preserve and cherish the senti-
ment of benevolenco or sympathy, it tends to the good of
the community, and to the good of mankind at large.

The same remark applies to relative duties as well as to Relative
absolute duties of the lauds immediately above mentioned, personr^^'^

In numerous instances, riphts are conferred fand their e^neraiiy in

, . , . . n\ • 1 1 T • T respect of

correlating duties imposed) with the direct or immediate tiieir remoto
purpose of promoting the general good ; (as, for example, p"'"'^"^''-
the rights of judges and other political subordinates) : and
rights are conferred indirectly to the same extensive purpose,
although their proximate end be the advantage of tlie parties
entitled, or of otlier determinate parties for whom they are
conferred in trust. For instance, the right of property, —
whether the proprietor is simply owner, or is a trustee for
other determinate persons who have what is called tlie
beneficial interest.

In order that we may conceive correctly many important
distinctions, it is necessary that we should conceive precisely
the truths which I have now stated.

For example, the Roman Lawyers, and most •s\Titers JusPuijiicnn:
upon Jurisprudence, divide Law into Public and Private.
According to the Roman La^v^-ers, Public Law is that,
' quod ad publice utilia spectat.' Private Law is that depart-
ment of tlie whole, ' quod ad sinc/uloriun utilitatem — ad
in-ivafim utilia — spectat.'

But this, it is manifest, is not tlie (/round of the intended
distinction. For since the general interest is an aggregate
of individual interests. Law regarding the former, and Law
regarding tlie latter, regard the same subject. In other
words, the terms ' public ' and ' private ' may be applied
indifferently to all Law.

Briefly stated, the distinction between Public and Private

k2

I

and Crimes.

196 Pervading Notions analyzed.

Part I. Law is tliis. The former regards persons as bearing political
^ § 3. cliaracters. The latter regards persons who have no political

' ' ' characters, and persons also who have them as hearing dif-
ferent characters. I shall endeavour hereafter to analyze the
distinction (see Lect. XLIY.,^^os/;).
lnH''r-l"!!!rJ'^^ Again: Civil Injuries and Crimes are distinguished by
Blackstone and others in the following manner. Civil
Injuries are prhate -nTongs, and concern individuals only.
Crimes are puhlic wi-ougs, and affect the whole community.

If Blackstone had but reflected on his own catalogue of
crimes, he must have seen tliat this is not the basis of the
capital distinction in question. Most crimes are viclations
of duties regarding determinate persons, and therefore afiect
individuals in a direct or proximate manner. Such, for
instance, are offences against life and body : murder,
mayhem, battery, and the like. Such, too, are theft and
other offences against property.

But independently of this, Blackstone's statement of the
distinction i-s utterly untenable.

All offences affect the community, and all offences affect
individuals. But though all affect individuals, some are not
offences against rif/hts, and are therefore, of necessity, pur-
sued directly by the Sovereign, or by some subordinate
representing the Sovereign.

Where the offence is an offence against a right, it vu'f/lit
be pursued (in all cases) either by the injured party, or by
those who represent him. But, for reasons which I shall
explain at large when I arrive at the distinction in question,
it is often thought expedient that the piu'suit of it should
not be left to the discretion of the injured party or his
representatives, but should be assumed by the Sovereign or
bv the subordinates of the Sovereign. In this difference of
procedure, and not in any distinction between the tendencies
of the acts, lies the distinction between Crimes and Civil
Injuries. An offence which is pursued at the discretion of
the injured party or his representative is a Civil Injury.
An offence which is pursued by the Sovereign or by the
subordinates of the Sovereign, is a Crime.*

* It may be here observed tliat in Scotland and other countries
■where there is a Public Prosecutor charged with the investigation
and prosecution of crimes and offences, the distinction between
crimes and offences on the one hand, and civil injuries on the other,
is much more intelligible than in the luiglish system. For the
distinction, such as it is, in English Law, does not arise until com-
mitm.^nt for trial (vide Stephen's Criminal Law, p. 155). lu Scot-
land the duty of investigation and prosecution, as well as the power
of abandoning proceedings, from the time of the co7n7nission of the
crime tintil sentence, lies with Her ^lajesty's Advocate, and his sub-
ordinates for whom he is responsible ; and there is further this
distinction, that all criminal proceedings are either taken in, or are
subject to review by the Court of Justiciary ; a tourt with a juris-

Absolute Duties.

In many cases (as in cases of Libels and Assaults), the
same oft'euce belongs to both classes. That is to say, the
injured has a remedy which he applies or not as he likes,
and the Sovereign reserves the power of visiting the oiiender
with punishment.

197

LiXT.

XVII.

Difference
between
relative and
absolute
duties, etc.

It follows, that in distinguishing relative from absolute
duties, and in distiuguisliiug the kiuds of the latter, we
must not look to the ultimate scope or pm-pose with which
duties are imposed. For, as that is the same in all cases, it
can never enable us to draw the distinctions in question.

A relative duty corresponds, as I have said, to a right :
i.e. it is a duty to be fultilled towards a determinate person
or determinate jjersons, other than the obliged, and other
than the Sovereign imposing the duty. All other duties
are absolute.

All absolute obligations are enforced criminally : they
do not correspond with rights in the Sovereign, the Public,
etc. ; nor ^dth rights at all. But rights to enforce, exist in
persons delegated by the Sovereign. e.[/. In England, otiences
against absolute duties, like all other crimes, are said to be
offences against the King. B3' which is simply meant that
it is part of his ofhce to pm-sue those offences as well as
other crimes.

Absolute duties are distinguishable by their proximate or Distinctions
immediate purposes. absolute

1st. The proximate purpose of some is the advantage of duties,
the party obliged. And these I style self-regarding.

Exam'ples of violaimis of these duties : Drunkenness.*
Suicide.f Breach of chastity, not accompanied Ly violation of a
right residing in another, as hy adidtery, rape, seduction. (Rape
includes injury to the party ravished, and to others who have an
interest, etc.)

2ndly. The proximate pm-pose of others is the advantage
of persons indetinitely : for instance, of the community at
large, or of mankind in general.

Examples. — The duty of military service, in most countries.
Tlie duty of all persons to shut a cattle gate which opens from a
railway, a duty imposed proximately for the safety of the public,
although it indirectly concerns the Eaihvay Company.

Violations : — ^Arson, or wilful lire-raising, which is prohibited

diction quite distinct from that of the Court of Session, which is the
proper tribunal in civil actions. This system has the advantage
(amongst others), that the magistrate, who wields the power of
the state for the protection, primarily, of the general community,
cannot be made a tool and dupe for mere private ends. — K. C

* Blackstone, iv. 64.

t lOld. 189.

I

rgS Pervading Notions analy::cd.

not so much on account of the damage to the individual owner
of the property set fire to — for it is equally a crime if a man
set fire to his own propert}- — but on account of the danger to
the public. Treason, which is properly an oifence against the
Sovereign ; though an offence against a member of the sovereign
body is often so considered.

Srdly. The proximate purpose of others is not the ad-
vantage of any person or persons

Towards God: (Ascetic observances.) (Blackstone, vol. iv.
p. 43.)

Towards tlic lower animals.

The Deity, an infant, or one of the lower animals, as being
the party toirards whom a duty is to be performed, might be said
to have a right. But so, in the same case, might an inanimate
thing. To call the Deity a person, is absurd.*

LECTURE XVm.

Will and Motive.

Lect. Every legal duty is a duty to do (or forbear from) an out-

XVIII. ward act or acts, and flows from the command of the
" ' ' Sovereign.

To fulfil the duty which the command imposes, is just
or right. That is to say, the party does the act, or the
party observes the forbearance, which is jussum or directum
by the author of the commaud.t

To omit (or forbear from) the act which the command
enjoins, or to do the act which the command prohibits, is
a wrong or injury : — A term denoting (when taken in its
largest signification) every act, forbearance, or omission,

* For definition of ' person ' see Lect. XII., ante. — E. C.

f Jiist is that which is jussum ; the past participle oijubeo.

Right is derived from directum; the past participle of dirigo ;
or, rather, right is probably derived from some Anglo-Saxon Verb,
which comes with dirigo from a common root. The German recht,
gerecht, richtig, rechtens (just) is from the obsolete nc/i^en or rechten
(dirigo). Hence Richter, a judge. Latin — Rego, Rex, Regula,
Rectum. (Wrong = Wrung ; the opposite of rectum.)

And as just and right signify that which is commanded, so do
the Latin JEqtium and the Greek Dikaion denote that which con-
forms to a law or rule. Manifestly, a metaphor borrowed from
measures of length. Something equal to, or even Avith, a some-
thing to which it is compared, ^quum =jus gentium.

The ahstracts, justice, or justum, dikaion, equity, etc., denote con-
formity to Command ; as their answering concretes denote a
something which is commanded, or equal (see note p. 118, svpra).

' war and 'Motive: 199

which amounts to disohedieuce of a Law (or of auy other j.y.ct.
command) emanating directly or circuitously from a Mouarcli XVIII.

or Sovereign Number — ' Generaliter iujm-ia dicitur, omne ^- ■ '

quod nonjure fit.'

A party lying under a duty is liable to evil or inconve-
nience (to be inflicted by sovereign authority), if he dis-
. obeys the Command. This conditional evil is the Sanction
■which enforces the duty ; and the party bound or obliged,
is bound or obliged, became he is liable to this evil, if he
disobeys the command. That bond, vinculum, or lignmen,
■which is of the essence of duty, is, simply or merely, liability
to a Sanction.

It follows from these considerations, that, before I can
complete the analysis of legal right and duty, I must ad^-ert
to the nature or essentials of legal Injuries, and of legal or
political Sanctions. As Person, Thing, Act and Forbear-
ance, are inseparably connected with the terms ' Eight ' and
* Duty,' so are Injm-y and Sanction imported by the same
expressions.

But before we can determine the import of ' Iniury' and p'j.i'eatioii,
'Sanction (or can distmgmsh the compulsion or restraint sunrtion
which is implied in Duty or Obligation, from that com- wi'ii"! n.'u'u-^
pulsion or restraint which is merely physical), we must tiy '''"". ^'f'''''"
to settle the meaning of the following perplexing terms : Rashness,
namely, Will, Motive, Intention, and Negligence : — in-
cluding, in the term * Negligence,' those modes of the
corresponding complex notion, which are styled ' Temerity '
or * E,ashness,' and ' Imprudence ' or ' Heedlessness.'

Accordingly, I shall now ende.ivour to state or suggest
the significations of ' Motive ' and ' Will.'

Nor is this incidental excursion into the Philosophy of
Mind a wanton digression from the path which is marked
out by my subject.

For 1st, the party w^ho lies under a duty is bound or
obliged by a sanction. This conditional evil determines or
inclines his nill to the act or forbearance enjoined. In
other language, he wishes to avoid the evil impending from
the Law, although he may be averse from the fidfilment of
the duty which the Law imposes upon him. It is necessary
therefore to clear the expressions ' Motive ' and ' Will '
from the obscurity with which they have been covered by
philosophical and popular jai'gon.

2udly, The objects of duties are acts and forbearances.
But every act, and every forbearance from an act, is the
consequence of a volition, or of a determination of the will.
We must try, therefore, to know the meaning of the term
«Will.'

3rdly, Some injm-ies are intentional. Others are conse-
quences of neyliyence (in the large signification of the term).

I

I

Apology for
inquiry into
' Motive,'
' Will,' etc.

I

■^

200 Pervading Notions analyzed.

We must tiy, tlierefore, to determine tlie meaning of * In-
teut'on ' and ' Negligence.'

It is absolutely necessary tliat tlie import of tlie last'
mentioned expressions should be settled with an approach
to precision. For hoth of them run, in a continued vein,
through the doctrine of injm'ies or wi'ongs ; and of the
rights and obligations -svhich are begotten by injuries or
■wrongs. And one of them (namely, ' Intention '), meets ua
at everxj step, in every department of Jurisprudence.

But, in order that we may settle the import of the term
' Intention,' it is again necessaiy to settle the import of the
term ' Will.' For, although an intention is not a volition,
they are inseparably connected. And, since * Negli-
gence ' implies the ahsence of a due volition and intention,
it is manifest that the explanation of that expression sup-
poses the explanation of these.

Accordingly, I will now attempt to analyze the ex-
pressions ' Will ' and ' Motive.'
The will. Certain parts of the hmnan body obey the will. In

other words, we have the power of moving, in certain ways,
certain parts of oiu* bodies.

These expressions, and others of the same import, merely
signify this :

Certain movements of our bodies follow invariably and
immediately our vrishes or desires for those same move-
ments : Provided, that is, that the bodily organ be sane,
and the desired movement be not prevented by an outward
obstacle or hindrance. If my arm be free from disease,
and from chains or other hindrances, my arm rises, so soon
as I wish that it should. But if my arm be palsied, or
fastened down to my side, my arm will not move al-
though I desire to move it.

These antecedent wishes and these consequent move-
ments, are human volitions and acts (strictly and properly
so called). They are the only objects to which those terms
will strictly and properly apply.

But, besides the antecedent desire (which I style a voli-
tion'), and the consequent movement (which I stj-le an act),
it is commonly supposed that there is a certain ' WilV
which is the cause or author of both. The desire is com-
monly called an act of the icill ; or is supposed to be an
eftect of a jjoicer or faculty of tvilliny, supposed to reside in
the man.

That this same ' ivill ' is simply nothing, has been
proved (in my opinion) beyond controversy by the late Dr.
Brown, who also expelled from the region of entities,
those fancied beings called ' jioicersj' of which this imagi-
nary ' icill ' is one. This author, in his analysis of the
relation of cause and eflect; considered the subject from

VViir and 'Motive.

201

numerous aspects equally new and impoi-tant ; and was (I
believe) tlie first who rijrhtly explained what we mean
when we talk about the Will, and the poicer or faculty of
rmllinrj. "When I speak of willing a movement of my body,
all that I mean (so far as I have an intelligible meaning) is
that I 2cish the movement, that I expect the movement to
follow my wish, and that it does follow accordingly.

For proof that nothing more is really meant, I must refer
to Brown's ' Analysis of Cause and Eflect.' * A detailed ex-
position of the subject would be inconsistent with the
limits by which I am confined, and with the direct or ap-
propriate piurpose of these Lectm-es.

The wishes which are inunediately followed by the bodily
movements wished, are the only wishes immediately folloxced
hy their objects.

In every other instance of wish or desire, the object of
the wish is attained (in case it be attained) through a viean ;
and (generally speaking) through a series of means — each
of the means beiug (in its turn) the object of a distinct wish •,
and each of them being wished (in its turn) as a step to that
object which is the end at which we aim.

For example : If I -w-ish that my arm should rise, the
desired movement of my arm immediately follows my A^-ish.
There is nothing to which I resort, nothing which I -wish, as
a mean or instrument wherewith to attain my pm-pose. But
if I wish to lift the book which is now lying before me, I
■s\'ish certain movements of my bodily organs, and I employ
these as a mean or instriunent for the accomplishment of my
ultimate end.

It will be admitted by all (on the bare statement) that
the dominion of the will is limited or restricted to some of
our bodily organs. The motion of my heart, for instance,
would not be immediately attected, by a ■\^■ish I might
happen to conceive that it should stop or quicken.

That the dominion of the will extends not to the mind,
may appear (at first sight) somewhat disputable. It has,
however, been jyt'ored by the -^Titers to whom I haAe referred.
Nor, indeed, was the proof difiicult, so soon as a definite
meaning had been attached to the term tvill. Here (as in
most cases) the confusion arose from the indefiniteness of
the language by which the subjects of the inquiry were
denoted.

If volitions be nothing but ■gashes iimnediately followed
by their objects, it is manifest that the mind is not obedient
to the will. In other words, it "n*ill not change its actual, for
different states or conditions, as (and so soon as) it is wished

* Brown's Enquiry into the Relation of Cause and Effect. (For
the Will in particular, Part 1, Section 3.) Mill's Analysis of the
phenomena of the Human Mind, cap. 24, 25.

Lect.
XVIJI.

Dominion of
the will
limited to
bodily
organs.

Domtnion of
the will
limited to
some bodily
organs.

Dominion of
the will ex-
tends not to
the mind.

I

202

Pervading Notions analyzed.

i

Volitions,
\^bat.

Acts, what.

Kames of
acts comprise
certain of
their conse-
quences.

Motive and

or desired that it sliould. Try to recall an absent tliouglit,
or to banish a present thought, and you will find that your
desire is not immediately follo-s\-ed by the attainment of its
object. It is, indeed, manifest that the attempt would
imply an absurdity. Unless the thought desired be present
to the mind already, there is no determinate object at which
the desire aims, and which it can attain immediateli/, or
without the intervention of a mean. And to desire the ab-
sence of a thought actually present to the mind, is to con-
ceive the thought of which the absence is desu'ed, and (by
consequence) to perpetuate its presence.

Changes in the state of the mind, or in the state of the
ideas and desires, are not to be attained immediately by
desiring those changes, but through long and complex series
of intervening means, beginning -ndth desu-es which really
are volitions*

Our desires of those bodily movements which immedi-
ately follow om' desires of them, are therefore the only ob-
jects which can be sts'led volitions.

And as these are the only volitions ; so are the bodUy
movements, by which they are immediately followed, the
only acts or actions (properly so called).

The only difficulty with which the subject is beset, arises
from the concise or abridged manner in which (generally
speaking) we express the objects of our discom-se.

Most of the names which seem to be names of acts, are
names of acts coupled with certain of their consequences. For
example : If I kill you with a gim or pistol, I shoot you. And
the long train of incidents which are denoted by that brief
expression, are considered (or spoken of) as if they constitu-
ted an act, perpeti-ated by me. In truth, the only parts of
the train which are my act or acts, are the muscular motions
by which I raise the weapon, point it at your head or body,
and pull the trigger. These I tvill. The contact of the flint
and steel, the ignition of the powder, the flight of the ball
towards your body, the wound and subsequent death, with
the numberless incidents included in these, are consequences
of the act which I ivill. I ^cill not those consequences, al-
though I may intend them. But in common language the
words tcill and intend are often confounded. To this subject
I shall revert in the ensuing Lectm-e.

The desires of those bodily movements which immedi-
ately follow our desires of them, are imputed (as I have said)
to an imaginaiy being, which is styled the Will. They
have been called acts of the will. And this imaginary being
is said to be determined to action, by Motives.

All which (translated into intelligible language) merely

* Examples : Taking up a book to banish an importunate
thought. Looking into a book to recover an absent thought.

Intention!

203

means this : I wish a certain object. Tliat object is not
attainable immediatehj ^ by the wish or desire itself. But it
is attainable by means of bodily movements which "udll im-
mediately follow my desh'e of them. For the pm-pose of
attaining- that which I cannot attain by a wish, I wish the
movements which will immediately follow my wish, and
through which I expect to attain the object which is the end
of my desires (as in the foregoing instance of the book).

A. motive, then, is a wish causing or preceding a voli-
tion— a wish for a something not to be attained by wishing
it, but which the party believes he shall probably or certainly
attain, by inecuis of those wishes which are stvled acts of the
will.

In a certain sense, motives may precede motives as well
as acts of the will. For the desired object which is said to
determine the wiU may itself be desired as a mean to an
ulterior piu-pose. In which case, the desire of the object,
which is the ultimate end, prompts the desire which imme-
diately precedes the volition.

That the will should have attracted great attention, is not
wonderful. For by means of the bodily movements which
are the objects of volitions, the business of our lives is
earned on. That the will should have been thought to com-
tain something extremely mysterious, is equally natural.
For volitions (as we have seen) are the only desires which
consimimate themselves — the only desires which attain their
objects without the intervention of means.

I.KfT.

XVIII.

Motives to \J
voliilons. »

Motives to
motives.

Why the will
lias attracted
so much
attention :
and been
tliouglit
mysterious.

LECTURE XIX.

Intention.

To discard established terms, is seldom possible ; and
where it is possible, is seldom expedient. Instead of rejecting
conventional terms because they are ambiguous and obscm'e,
we shall commonly find it better to explain their meanings,
or (in the language of old Hobbes) ' to snvff them with dis-
tinctions and definitions,' so as to give a better light.

Accordingly, I shall talk of ' willing ; ' of ' determinations
of the will ; ' and of ' motives determining the wiU.' But
all that I mean by those expressions, is this. ' To ttv'Z/,' is
to tvish or desire certain of those bodily movements which
immediately follow our desires of them. A ' determination
of the will,' or a ' volition,^ is a wish or desire of the sort.
A ' motive deterniiuing the will ' is a wish, not a volition, but
suggesting a wish which is. The wish styled a ' motive,' is
not immediately followed by its appropriate object : but the

Lect.
XIX.

204

Pervading Notions analyzed.

Intention as
regarding
rretent acts,
or tlie conse-
quences of
present acts.

Confusion ol
Will and
Intention.

bodily movemeut M'liicli is tlie appropriate object of tlie
volition, seems to the party a certain or probable mean for
attaininpr the sometliiug which is the appropriate object of
the motive. In case that something be ■noshed as a mean to
an ulterior object, the wish of the ulterior object is a motive
to a motive ; as the wish of the intervening mean is a motive
to the volition.

The bodily movements which immediately follow our de-
sires of them, are the only human acts, strictly and properly
so called. For events which are not 7oilled, are not acts ; and
the bodily movements in question are the only evests which
we Kill. They are the only objects which follow our desu-es,
without the intervention of means.

But, as I observed in my last Lecture, most of the names
which seem to be names of acts, are names of acts strictly
and properly so called, coupled u'ith more or feicer of their
consequeyices.

And as the names of acts comprise certain of their conse-
quences, so it is said that those consequences are tcilled, al-
though they are only intended. In the case which I have
just supposed, it would be said that I willed the consequences
of my vokmtary muscular movements, as well as the move-
ments themselves.

Nor is it practicable to discard these fonns of speech,
although they involve the nature of will and intention in
thick obscurity. They are inseparably interwoven with the
rest of established language ; and if I attempted to change
them for new and precise expressions, I should either re-
sort to terms which others would not understand, or to
tedious circumlocutions which others would not endm'e. To
analyze, mark, and remember their complex import, is all
that I can accomplish.

Accordingly, I must often speak of ' acts,^ when I mean
' acts and their consequences ; ' and of those consequences aa
if they were icilled, though, in truth, they are intended.

The bodily movements which immediately follow oui*
desires of them, are acts (properly so called).

But every act is followed by consequences ; and is also
attended by concomitants, which are styled its circumstances.

To desire the act is to tvill it. To expect any of its con-
sequences, is to intend those consequences.

The act itself is intended as well as willed. For every
volition is accompanied by an expectation or belief, that
the bodily movement wished will immediately follow the
Avish.

And hence (no doubt) the frequent confusion of will
and intention. Feeling that will imjjlies intention, numerous
writers upon Jurisprudence (and Mr. Bentham amongst the

Intention.*

205

numter) employ ' vr\W ' and * intention ' as synonymous or
equivalent terms. They forget that intention does not imply
will.

Now the consequence of an act is never imlled. For
none hut acts themselves are the appropriate ohjects of voli-
tions. Nor is it always intended. For the party who wills
the act, may not expect the consequence. If a consequence
of the act be desired, it is probably intended. But (as I
shall show immediately) an intended consequence is not
always desired. Intentions, therefore, regard acts : or they
regard the consequences of acts.

To show that the agent may not intend a consequence of
his act I will give an example :

Shooting ^^^th a pistol at a mark chalked upon a paling,
one of my shots hits and wounds a person passing along a
road at the other side of the fence.

Now, when I aim at the mark, and pull the trigger, I
may not intend to hurt the passenger. For though the hurt
of a passenger be a probable consequence, I may not think of
it, or advert to it, as a consequence. Or, though I may
advert to it as a possible consequence, I may think that the
fence will intercept the shot, and prevent it from passing to
the road. Or the road may be one which is seldom tra-
velled, and I may think the presence of a stranger at that
place and time extremely improbable.

On any of these suppositions, I am clear of intendinf/ the
harm : Though (as I shall show hereafter) I may be guilty
of heedlessness or rashness. Before intention can be defined
exactly, the import of those terms must be taken into con-
sideration.

Where the agent intends a consequence of the act, he
may wish the consequence, or he may not wish it.

And, if he ^cish the consequence, he may -uish it as an
end, or he may -^-ish it as a mean to an end.

Sti'ictly speaking, no external consequence of any act is
desired as an end. For the end or ultimate purpose of
every volition and act is a feeling or seutiment : — pleasure,
direct or positive ; or the pleasure which arises /^directly
from the removal or prevention of pain. But where the
pleasure, which (in strictness) is the end of the act, can only
be attained through a (liven external consequence, that ex-
ternal consequence is inseparable from the end ; and is
stvled (with sufficient precision) the end of the act and the
volition.

Where an intended consequence is wished as an end or
a mean, motive and intention concur. In other words, The
consequence intended is also wished ; and the -wish of that
consequence suggests the volition. This possibly is the
reason why motive is frequently confounded witli intention

An intended
roiiseiiiieiire
of an art may
be wished (ai
an end or
mean) or nol
wished.

Consequence
of an act
wished as an
end.

Cnnrnrrcnce
of M.itive
and Inten-
tion.

Hence ar ifo?
confusion of

206

Pervading Notions analysed.

Motive with
luteution.

Exetnpliflca-
tions of the
three fore-
going sup-
positions.

Of the first
snppositioB.

bv writei-s on jurisprudence. Of tliis coufusion the law of
England affords a flagrant instance when it lays down that
miurder must be committed of malice aforethought ; bv whicli
is only meant that it must 1)6 committed intent-ionally (see
p. 212, infra).

I «ill now exemplify those three varieties of intention
at which I have pointed already.

1st. The agent may intend a consequence ; and that con-
sequence may be the end of his act.

2ndly. He may intend a consequence ; but he mf^ desire
that consequence as a mean to an end.

3rdly. He may intend the consequence, without desir-
ing it.

As examples of these three varieties, I will adduce three
cases of intentional Idlling.

You hate me moi-tally : and, in order that you may ap-
pease that painful and importunate feeling, you shoot me
dead.

Now here you intend my death : and (taking the word
* end ' in the meaning which I have just explained) my
death is the end of the act, and of the volition which pre-
cedes the act. Nothing but that consequence would appease
your hate, or satisfy your malice.

Again :

You shoot me, that you may take my purse. I refuse to
deliver my pui'se when you demand it. I defend my piu-se
to the best of my ability-. And, in order that you may
remove the obstacle which my resistance opposes to your
pm-pose, you pull out a pistol and shoot me dead.

Now here you intend my death, and you also desire my
death. But you desire it as a mean, and not as an end.
Y'oui' desu'e of my death is not the ultimate motive suggest-
ing the volition and the act. Y'oiu: ultimate motive is your
desire of my purse.

Lastly :

Y^ou shoot at Sempronius or Styles, at Titius or Nokes,
desiring and intending to kill him. The death of Styles is
the end of your volition and act. Y^om- desire of his death,
is the ultimate motive to the volition. You contemplate his
death, as the probable consequence of the act.

But when you shoot at St^'les, I am standing close by
him. And you think it not imlikely that you may kill me
in your attempt to kill liim. You fire, and kill me accord-
ingly. Now here you do not desire my death, neither as an
end nor as a inean. But, since you contemplate my death
as a probable consequence of your act, you intend vaj death.

Forbearanres It follows ffom the nature of Volitions, thai forbearances

bu*t not °**'^"*' fi'om acts are not willed, but intended

willed.

Of the second
gupposilion.

Of the third
supposition.

I

* Negligencel ' Heedlessness,' ' Rashness'

"Wlieii I forbear from an act (speaking generally)* I icill.
But I mU an act other than tiiat from -which. I forhear or
ahstain : and, kno-^ing that the act -w-hich I will, excludes
the act forborne, I intend the forbearance.

For example, It is my duty to come hither at seven
o'clock. But, conscious that I ought to come hither, I go
to the Playhouse at that hour, instead. Now, in. this case,
mv absence from this room is intentional. I know that if
my legs brought me to the University, they would not carry
me to the Playhouse.

If I forgot that I ought to come hither, my absence
would not be intentional, but the eflect of negligence.

207

Lect.
XIX.

LECTITRE XX.
Negligence^ Heedlessness, and Sashness.

Forbearanrea
<Iistingulsb«4
from
Omissions.

The motives to forbearances (or, rather, to the acts which
exclude the acts forborne) are different in different cases.

I may forbear from the act because I dislike its conse-
quences : or because I prefer the consequences of the act lorbe^lnce*
which I presently will, and which I could not perform un-
less I forbore from the other. In either case, the act which
I will, and not the forbearance, is the object of the volition
itself. ' To will nothing ' is a flat contradiction in terms.

Forbearances must be distinguished from Omissions.

' To forbear,' is 7iot to do, with an intention of not doiug.

' A forbearance,' is a not doing, with a like intention.

- To omit,' is not to do, but without thought of the act
which is not done.

' An omission," is a not doing ■^ith a similar absence of
consciousness.

These significations are clear and precise, and the terms
are convenient for expressing them. Sometimes, indeed,
* omit ' L3 used with the meaning to omit unlawfiilly, and

* Not every present forbearance from a given act is preceded or
accompanied bv a present volition to do another act ; e.g. I may lie
perfectlv still, intending not to rise.

But it is generally true, that every present forbearance is pre-
ceded or accompanied by a volition. In our ■waking hours, onr
lives are a series (nearly unbroken) of volitions and acts. And,
when we forbear, we commonly do a something inconsistent with
the act forborne, and which we are conscious is inconsistent with it.

Where a forbearance is preceded or accompanied by inaction,
the desire leading to the forbearance is not to be compared to a
volition. The forbearance is not, like the act, the direct and appro-
priate object of the wish.

208

Pervading Notions analyzed.

Negligence.

V

Negligence
and Heed-
lessness
compared.

Uashuess.

' foiLear ' with the meaniug to forhear la'W'fiilly. But
although the terms are sometuues used iu these more re-
stricted senses, I thini: I am justified not only by conveni-
ence, but also by the usage of numerous and good "VNTiters,
in attaching the above large significations to the terms in
question. If you wish to denote ' that a forbearance or omis-
sion is a breach of duty,' you can accomplish that pm-pose
by styling it ' iujimous ' or ' unlawful/ or you may call it
' culpable.'

Injurious or culpable omissions are frequently styled
' negligent.' The party who omits, is said to ' necjlect ' his
duty. The omission is asciibed to his ' negligence.'' The
state of his mind at the time of the omission, is styled
' negligence.' These (I think) are the meanings usually at-
tached to these terms ; although the Eoman lawyers "(as I
shall show immediately) have given them a larger significa-
tion.

' Heedlessness ' differs from negligence, although they are
closely allied.*

The party who is negligent omits an act, and breaks a
2}ositive duty :

The party who is heedless does au act, and breaks a ne-
gative duty.

I endeavoured iu my last Lectiu-e to illustrate my mean-
ing, by an example to which I now refer you.f In the case
supposed, I did not advert to the probable consequence of
my act. And, since it was my duty to advert to it, I am
guilty of heedlessness, although I am clear of intentional
injury.

The states of mind which are styled ' Negligence ' and
'' Heedlessness,' are precisely alike. In either case, the
party is inadvertent. In the first case, he does not an act
which he was bound to do, because he adverts not to it. In
the second case he does an act from which he was bound to
forbear, because he adverts not to certain of its probable
consequences. Absence of a thought which one's duty
would natm-ally suggest, is the main ingredient in each case.

The party who is guilty of Temerity or Eashness, like
the party who is guilty of heedlessness, does an act, and
breaks a positive duty. But the party who is guilty of
heedlessness, thinlvs not of the probable mischief. The
party who is guilty of rashness t/iinJ;s of the probable mis-
chief; but, in consequence of a missupposition begotten by
insufficient advertence, he assumes that the mischief will not
ensue in the given instance or case. Such (I think) is the
meaning invariably attached to the expressions, ' Rashness,'

• Bentham, '-Principles,' etc. pp. 86, 161.
t See p. 205, ante.

' Negligence^ &c.y distinguished from ' Intention^ 209

' Temerity/ ' Foolhardiness,' and tlie like. The radical idea
denoted is always this — The party runs a risk of which he
is conscious : but he thinks (for a reason which he examines
insufficiently) that the mischief will probably be averted in
the given instance. I will illustrate my meaning, by reciu'-
ring to the example already given {nnte^ p. 205).

When I fire at the mark chalked upon the fence, it
occurs to my mind that a shot may pierce the fence,
and may hit a passenger. But Avithout examining care-
fully the ground of my conclusion, I conclude that the
fence is sufficiently thick to prevent a shot from passing
to the road : or that no one is there, the road being seldom
passed. In either case, my confidence is rash ; and,
through my rashness or temerity, I am the author of the
mischief. My assumption is foimded upon evidence which
the event shows to be worthless, and of which I should dis-
cover the worthlessness if I scrutinised it as I ought.

By the Eoman lawyers. Rashness, Heedlessness, or Neg-
ligence, is, in certain cases, considered equivalent to ' dolus : '
that is to say, to intention. ' Dolo comparatur.' ' Vix est
ut a certo noccudi jvoposito discerni possit.' Their meaning
(I believe) was this : —

Judging from the conduct of the party, it is impossible
to determine whether he intended, or whether he was negli-
gent, heedless, or rash. And, such being the case, it shall
be presumed that he intended, and his liability shall be ad-
justed accordingly, ^jrom/efZ that the question arise in a cicil
action. If the question had arisen in the course of a criminal
proceeding, then the presumption would have gone in favoiu'
of the party and not against him.

Such (I think) is the meaning which floated before their
minds : although Ave must infer (if we take their expressions
literally) that they believed in the possibility of a state of
mind lying between consciousness and unconsciousness. If
they believed in such a state of mind, it appears to me that
they were under a mistake.

Intention (it seems to me) is a precise state of the mind,
and cannot coalesce or commingle with a different state of
the mind. 'To intend,' is to believe that a given act will
foUow a given volition or act, or that there is a chance of
its foUoAving his volition or act. Intention, therefore, is a
.state of consciousness.

e.g. : Instead of assuming confidently that the fence will
intercept the ball, or that no passenger is then on the road,
J may surmise that the assumption upon which I act is not
altogether just. I think that a passenger may chance to be
there, though I think the presence of a passenger son;e\vhat
improbable. Or, thougli I judge the fence a stout and thick
paling, I tacitly admit that a brick AvaU would intercept a

Lect.
XX.

What was
meant by the
Roman
lawyers when
they con-
sidered negli-
gence in cer-
tain oases
equivalent to
iutentiun.

210 Pervading Notions analyzed.

pistol-sliot more certainly. Consequently, I intend the hurt
of the passenger who is actually hit and wounded. I think
of tlie mischief, when I ^dll the act ; I believe that my mis-
supposition may be a missupposition ; and I, therefore, be-
lieve there is a chance that the mischief to which I advert
may foUow my volition.

But negligence and heedlessijess suppose iwiconscious-
ness. In the first case, the party does not think of a given
act. In the second case, the party does not think of a given
consequence. Rashness, again, implies that although the
actor has adverted to the consequence, he assumoa that it
wiU not follow in the particular instance. By the hypothe-
sis he at the moment of action does not regard the conse-
quence as a probable result of the act. If he regards the
consequence as probable, though only in a slight degree, he
intends it.

Now either the acting party thinks, or he does not think,
of the act or consequence. And if he thinks of the conse-
quence, he either regards or he does not regard it as pro-
bable. If he thinks of the act and consequence and regards
the consequence as probable, he intends. If otherwise, he is
neglic/ent, heedless, or rash.

It is, therefore, clear to me, that Intention is alway,?
separated from Neghgence, Heedlessness, or Kashness, by a
precise line of demarcation. The state of the party's
mind is always determined, although it may be difficult
(judging fi'om his conduct) to ascertain the state of his mind.

Before I quit this subject, I may observe that hasty in-
tention is frequently styled rasMiess. For instance, an
intentional manslaughter is often styled rash, because the
act is not premeditated, or has not been preceded by delibe-
rate intention. Before we can distinguish hasty from de-
liberate intention, we must determine the nature of intention
as it reyards future acts. But it is easy to see that sudden
or hasty intention is utterly different from rashness. When
the act is done, the party contemplates the consequence,
although he has not jyremeditated the consequence or the act.

I must here also advert to a convenient distinction
suggested by Bentham. ' Direct intention ' may be conveni-
ently used to imply that the consequence is not only intended,
but desired. ' Indirect intention' lias been used to signify that
the consequence, although intended, is not desired.

Having tried to analyze intention (where it is coupled
with will), and to settle the notions of negligence, heedless-
ness, and rashness, I will now trouble you with a few re-
marks upon certain established terms.

Dolus denotes, strictly, fraud : * — ' CaUiditas, fallacia,

* Bentham, Pr. 91.

* Culpa' in Roiuan Lazv. 2 1 1

machinatio, ad circumveuiendiim, decipiendum, fallendum Lect.
alterum, adhibita.' XX.

By a transfereuce of its meaning -wliich is not veiy cxpli- ~ ' ^
cable, it also signifies intention, or intentional ivrong, pro-
vided the intention be of the species which I have above
termed direct intention:*- — 'Injuria qualiscunque scienter
admissa : '■ — ' Injuria quam quis sciens volensque commisit.'

The use of the term dolus for the purpose of signifying
inte^ition, may, perhaps, be explained thus :

Fraud imports intention : For he who contrives or ma-
chinates ad decipiendum alterum, piu'sues a giA-en piu'pose.
For want, therefore, of a name which would denote Inten-
tion, the Roman lawyers expressed it (as well as they
could) by the name of a something which necessarily im-
plied it.

It is an instance of those generalizations which are so
common in language : of the extension of a term denotiag
a species, to the genus which includes that species, [e. g.
Virtue.]

Culpa, as opposed to dolus, imports negligence, heed- Culpa,
lessness, or temerity ; as well as indirect intention : —
' Omnis protervitas, temeritas, iuconsiderantia, desidia, neg-
ligentia, imperitia, quibus citra dolum, cui nocitum est.'
' Generatim, culpa dicitur qusevis injuria ita admissa, ut
jure imputari possit ejus auetori.' In order that a given
mischief may be imputed to another, ' necesse est, ut culpa
ejus id accident.' That is to say, through his intention ;
or through his negligence, heedlessness, or temerity (as I
have explained them above).

Again : the term Culpa is sometimes opposed to negli-
gentia. In which case, these words have a very peculiar
meaning.

Culpa, in this sense — sometimes distinguished as culpa
Aquilia, to mark that a breach of the lex Aquilia is referred
to — is restricted to delicts (stricto sensu).

The injuries done through Culpa (in this sense) '/ffc/eHt/o
semper admittantur.'

The injuries done ' negligentid ' (when opposed to culpa
in this sense) comprise all breaches of obligations, whether
those obligations are positive or negative, and are committed
' faciendo aut non faciendo.'

Here then negligentia includes. Intention, Negligence
(properly so called), Heedlessness, and Temerity.

Origin of this application. Negligentia opposed to Dili-

* The word mahs is often coupled with dolus by the Roman
lawyers. The reason is that there is a dolus bonus, a machinatio,
which is innocent or laudable : artifice for exaniph>, which is made
use of to prevent an impending crime. All other dolus is dolus
tnalus, and this is the only meaning of malus when attached to dolus.

212

Pervading Notions analyzed.

Iiifortuimini.
Dolus aud

Uouian law.

(jentia : i'. e. that care wliicli (ex obligatione) the oUiged
party, e. g. a trustee, bailee, &c., is often obliged to employ
about the interests of another.

I have already remarked upon the extension of Dolus to
Intention generally. In the English law theword * Malice'
is sometimes employed with a similarly extended meaning.
As malice (stricto semii) implies intention, it has been
extended to cases in which there is no malice. The mean-
ing in this case is wider than in the case of dolus, and
extends to indirect intention : e. r/. 1 shoot at A while B
is standing by, and kill B, not desiring to do so, i>ut know-
ing that his death was a probable consequence of my act.
According to English law I am guilty of murdering B, that
is to say, of sla^dng him ^ of malice aforethouglif.''

To smu up in a few words the meaning ot the leading
terms on this subject in the Roman law. Unintentionality,
and innocence of intention, seem both to be included in the
case oiinfortunium, where there is neither fZo/ws nor culpa.
Uuadviseduess coupled with heedlessness, and irisadvised-
ness coupled with rashness, correspond to the culpa sine
(Jolo. Direct intentionality corresponds to dolus. Oblique
iuteutionality is included in culpa. [^Scientia, but ^vathout
the voluntas iiocendi. Prope dolum, but not dolus.'] No-
thing can be more accurate.

LECTURE XXI.

Lkci.
XXI.

Intentions
CDUpled with
volitions
and acts.

Present
intention to
do a future
act, dis-
tinguished
from an act
witli a pre-
sent volition
and inten-
tion.

Present
luteutlun to

Intention further considered.

The intentions which I considei-ed in my last Lecture, are
coupled with present volitions, and with present acts.

But & present intention to do a, future act, is not coupled
with the present performance of the act. For the intention,
though present, regards the future. Nor is it coupled Avith
a present icill to do the act intended. For to will an act is
to do the act, provided that the bodily organ, which is the
instrument of the -solition and the act, be in a soimd or
healthy state.

Co'nsequentlv, to do an act with a present intention, is
widely different from a present intention to do a future act.
In the first case, the act is willed and done. In the second
case, it is neither ^villed nor done, although it is intended.

A present intention to do a future act, may (I thinli) be
resolved into the following elements.

' Ifitciiiion ' to do a future act. 2 1 3

First, The party desires a given object, eitlier as an end, Lect.
or as a mean to an end. XXI.

Secondly, He believes that the object is attainable through ' ■ '
acts of his mvu. art^whaT

Thirdly, He presenfb/ believes that he shall do acts in
future, for the purpose of attaining the object.

The belief ' that the desired object is^attaiuable tlu'ough
acts of our own,' is obviously implied in the belief ' that we
shall do acts hereafter for the purpose of attaining it.'
For I can hardly believe that I shall try to attain an object
Avhich I Imow to be utterly beyond my reach.

Consequently, a present intention to do a future act may y
be defined to be : ' A present desire of an object (either as
an end or a mean), with the present belief by the party
that he will do acts hereafter for the purpose of attain-
ing the object.' It is this belief which distinguishes the
intention from a simple desire of the object, e.r/. : If I
wish for a watch hanging in a watchmaker's window, but
without believing that I shall try to take it from the
o^Tier, I am perfectly clear of infendinr/ to steal the watch,
although (if the wish recur frequently) I am guilty of covet-
ing my neighbour's goods.

It may also be distinguished briefly from a present
volition and intention, in the following manner :

In the latter case, we presently will, and presently act,
expecting a given consequence. In the former case, we
neither presently wdll nor presently act, but we j^i'^sentli/
expect or believe that we s/iall will hereafter.

AVhen we intend a future act, it is commonly said ' that
we resolve or determine to do it ; ' or ' that we make up
our minds to do it.' Frequently, too, a verbal distinction
is taken between a strong and a weak intention ; that is to
say, between a strong or a weak belief that we shall do the
act in future. "Where the belief is strong, we are more
apt to say ' that we inteyid the act.' AVhere the belief is
wealc, we are more apt to say ' that we believe we shall
do it.'

It is clear that such expressions as ' determining,' ' re-
solving,' ' making up one's mind,' can only apply in strictness
to 'volitions": that is to say, to those desires which are
instantly followed by their objects, and by which it may be
said that we are concluded, from the moment at which we
conceive them.

But when such expressions as ' resolving ' and ' deter-
mining ' are applied to a present intention to do a future
act, they simply denote that we desire the object intensehf,
and that we believe (with corresponding confidence) we
shall resort to means of attaining it.

And this perfectly accords witli common apprehension,
although it may sound like a paradox. For every intention

214

Pervading Notions analyzed.

Intending a

future

forbearance.

An intended
consequence
of an in-
tsnded future
act, is not
always
desired.

Intentions to
do future
acts are
revocable.

Are matured
or not.

A eansiXxum,
or compass-
ing.

•whicli regards the future, is ambulatory or revocable , Tlio
present fZesiVe of tlie object may cease; and the belief th-v-t
"we shall resort to the means of attaining the object, will, of
course, cease with the wish for it.

It is clear that we may presently intend a future for-
bearance as well as a future act.

"We may either desire an object inconsistent with the
act to be forborne, or we may positively dislike the probable
consequences of the act. In the first case, we may presently
believe that we shall forbear from the act hereafter, in order
that we may attain the object which we wish or desire.
In the latter case, we may presently believe that we shall
forbear from the act hereafter, in order that we may avoid
the consequences from which we are averse.

AU that can be said (in geuei-als) of intentions to act in
future, may be applied (with slight modifications) to inten-
tions to forbear in future. I confine myself to intentions to
act in future, in order that my expressions may be less com-
plex, and, by consequence, more intelligible.

When we intend a future act, we also intend certain of
its consequences. In other words, we believe that certain
consequences will follow that futiu-e act, which we presently
believe we shall hereafter v-ill.

But we may also intend or expect that the act may be
followed by consequences which we do not desire, or from
which we are averse. For example : I may intend to shoot
at and kill you, so soon as I can find an opportunity. But
Iniowing that you are always accompanied by friends or
other companions, I believe that I may kill or wound one of
these in my intended attempt to kill you ; a consequence to
which I am averse.

The execution of every intention to do a future act, is
necessarily postponed to a future time.

Every intention to do a future act, is also revocable or
ambulatory. That is to say. Before the intention be carried
into execution, the desire which is the ground of the inten-
tion may cease or be extinguished, or, although it continue,
may be outweighed by inconsistent desires.

The intention to do the future act may be precise and
matured or it may not be so. For example, I may intend
to kill you by shooting at a given ^:>/«ee and time. Or,
though 1 intend to kill you, I may neither have determined
the mode nor the time and place for executing the mm-derous
design.

It not unjfrequently happens, that a long and complex
series of acta and means is a necessary condition to the
attainment of the desired object (supposing it can be at-
tained). To determine these means, or to deliberate on the
choice of them, is commonly styled ' a compassing of the
desired object.' Or, when the intended means are thus

Attempts.

215

complicated, the intention is frequently styled consilium. Lect.
Either of the terms denotes the deliberation or pondering, XXI.
which necessarily attends the intention before it becomes ' '

precise.

Such (I think) are the proper meanings of compassing
and consiliutn. But it must be confessed, that the terms are
frequently applied loosely. In the language of the English
Law, you would cojnpass and imagine the death of the King,
although you intended to slay him by the shortest and sim-
plest means.

It frequently happens that the desired object is not ac- Attemrts.*
complished by the intended act. For example, I point a
gun, and pull the trigger, intending to shoot you. But the
gun misses fire, or the sliot misses its mark. In this case,
the act is styled an attempt : an attempt to accomplish the
desired object. It also frequently happens, that several acts
must be done in succession before the desired object can be
accomplished. And the doing any of the acts which precede
the last, is also styled an attempt. For example : To buy
poison for the piu'pose of Idlliug another, or to provide arras
for the piu-pose of attacking the king, are attempts or en-
deavours towards murder or treason. Attempts are evidence
of the party's intention ; and, considered in that light, are
stv'led in tlie English Law, ' overt acts.''

"Where a criminal intention is evidenced by an attempt,
the party is punished in respect of the criminal intention. f
Sometimes lie is punished as severely as if he had accom-
plished the intended object. But more commonly with less
severity.

The reason for requiring an attempt, is probably the
danger of admitting a mere confession.;]: "When coupled
with an overt act. the confession is illustrated and supported
by the latter. When not, it may proceed from insanity, or
may be invented by the witness to it.

I have here considered the import of the term ' Inten- Jon*"dercd
tion,^ in order that I might elucidate the general nature of withontrefcr
Injuries.

ence to lu-
juries.

* ' Delictum consummatum. Conatus clelinquendi.' Consum-
mate Crimes and Criminal Attempts. — Feuerhach, p. 41.

'Eine Handlung, welche die Hervorbringung eines Verbrechena
zum Zwecke hat, ohne den bezweckten verbrecherisclien Thatbestand
wirklich zu machen, ist ein Versuch.' — Rosshirt, p. 85.

t I venture to think, in accordance with my remarks in the
note on p. 174 ante, that the ratio of this punishment is more simple,
nnd that the consilium or cogitatio for which the party is punished
is an act evidenced by the overt act. — R. C.

X Example of a man punished for confessed intention (without
overt act) to kill Henry III. of France.

2i6 Pervading Notions analyzed.

But the word intention is often employed, ■v\ntbout refer-
ence to ^^Tongs. We speak of the intention of the legislator,
in passing a law ; of the intention of testators ; of the in-
tention of parties to contracts, and so ou. In each of these
cases, the notion signified by the term ' Intention ' may be
reduced to one of the notions which I have already endea-
voured to explain : namely, a present volition and act, with
the expectation of a consequence ; or a present belief, ou
the part of the person in question, that he will do au act in
future.

When we speak of the intention of the legislator, we
either advert to the purpose with which he made the law ;
or we advert to the sense which he annexed to his own ex-
pressions, and in wliich he wished and expected that others
would understand them. In either case we mean that he
AviUed and performed a given act, expecting a given con-
sequence : e. (]. — that he made the provision, expecting the
pm-pose would be attained ; or that he used his words ■wath a
certain sense, expectinrj that others would understand them
in the same sense. When we say, that ' the will or intenT
tion of the testator is ambulatory,' we mean that ' he maj'
will and intend anew.'

When we speak of the intention of contracting parties,
we mean the sense in which it is to be inferred from the
words used, or from the transaction, or from both, that the
one party gave and the other received the promise. Paley's
rule * would lead to this : that a mistaken apprehension by
the promisor of the apprehension by the promisee, would
exonerate the promisor. This would be to disappoint the
promisee. If the apprehension of the promisee did not
extend to so much as the promisor apprehends that it did, it
is true that the promisor is not surprised by a more onerous
obligation than he expected ; but then there is no reason for
giving tlie promisee an advantage which he did not expect :
pain of loss being greater than the mere pleasure of gain,
which this advantage would be. But by the hypothesis no
expectation is raised, and there is therefore no engagement.

If, on the other hand, the promisor imderrates the ex-
pectation of the promisee he disappoints an expectation.

* 'Where the terms of a promise admit of more senses than one,
the promise is to be performetl " in that sense Avhich the promiser
apprehended, at the time that the promisee received it."

' It is not the sense in ^vhich the promiser actually intended it,
that always governs the interpretation of an equivocal promise;
because, at that rate, you might excite expectations which you
never meant, nor would be obliged, to satisfy. ]\Iuch less is it the
sense in which the promisee actually received the promise ; for,
according to that rule, you might be drawn into engagements you
never designed to undertake. It must therefore be the sense (for
there is no other remaining) in which the promiser believed that
the promisee accepted his promise.' — Paky, Moral and Polit. Philo-
sophy, vol. i. chap. V.

i^e

' Sauctioji.''

The true rule is the understandiug of hoth parties
the facts in e\'ideace are such as to raise tlie legal inferenc'
that the understanding of the parties differed materially,
there is no consensus and therefore no contract. Biit if the
iustriuuent in -^Titing -n-as understood by both to contain
the terms of their contract, so that it became the medium of
the consensus, then the instrument is the only admissible
evidence of what those terms were. In the example, Paley
seems to confoimd the sense whicli the promisor, in common
Avith all, must have put on his jiromise, with his secret in-
tention of brealdng it.

The sense of the promise, i.e. the meaning which each
party apprehends that the words or transaction must
denote, is a totally different thing from the intention of the
parties : but commonly agrees with their intention. Each
of the parties does a present act, expecting a given conse-
quence.

219

Lect.
XXII.

LECTURE XXII.

Sanction.

The difference between Sanction and Obligation is
simply this.

Sanction is e-vil, incurred, or to be incurred, by disobe-
dience to command.

Obligation is liability to tliat evil, in the event of dis-
obedience.

Obligation regards the future. An obligation to a past
act, or an obligation to a past forbearance, is a contradiction
in terms.

If the party has acted or forborne agreeably to the com-
mand, he has fulfilled the obligation wholly or in part.
And here there is a certain difference between positive and
negative duties. The performance of a positive duty
extinguishes both the duty and the corresponding right : a
negative duty is never extinguished by fulfihuent, thoug-h
if the right be extingaiished by another cause, the duty
ceases.

It is not unfrequently said ' that Sanctions operate upon
the Will,^ and ' that men are obliged to do or forbear
through their ?r(7/.s.'

It were more correct to say ' that Sanctions operate upon
the desires,'' and ' that men are obliged to do or forbear
through their desires.'

Stated plaiuly and precisely, the fact is this. The party

Lect.

xxir.

Sanrtioi] and
Ohiigatiua
distin-
guished.

Obligation
ijgHrds tlie
future.

Sanctions
operate
upon the
desires.

2l6

Pervading Notions analyzed.

Part L Bged is averse from tlie couditioual evil, wliicli he may

§ 3. en.'liance to incur in case lie break the obligation : In other
"~ ' ' -words, he wishes or desires to avoid it. But, in order that he
may avoid the evil, or may avoid the chance of incurring it,
he must fulfil the obligation : He must do that which the
Law enjoins, or must forbear from tliat which the Law
prohibits.

That every sanction operates upon the desires of the
obliged, is true. For he is necessarily averse from the evil
with which he is threatened by the Law, as he is necessarilj'
averse from e^sery evil whatsoever.
V That evenj sanction operates upon the toill of tJie obliged,

is not true. If the duty hejwsitivp, and if he fulfil the duty
out of regard to the sanction, it may be said with propriety
that the sanction operates upon his will. Por his desii'e of
avoiding the evil which impends from the Law, makes him
do, and, therefore, ?«'//, the act which is the object of the
command and the duty. But if the duty be negative, and if
he fulfil the duty out of regard to the sanction, it can
scarcely be said "«-ith propriety that the sanction operates
upon liis u-ill. His desire of avoiding the evil which im-
pends from the Law, makes him forbear from the act which
the Law prohibits. But, though he intends the forbearance,
he does not will the forbearance. He either wills an act
which is inconsistent with the act forborne, or he remains
in a state of inaction which equally excludes it.

The proposition that we are obliged tlu-ough our wills is
therefore only true in the case of a positive duty, and in
this sense, namely, that the Law thi-eatens us with the
sanction, in order that we may act ; and in order that we
may act, we must ^cill. The force of the obligation lies in
An obligation our desire of avoiding the threatened evil. But, in order
that we may avoid that evil by performing the obligation,
we uill the act which is commanded. In the case of a
positive duty, tlierefore, it may be truly said that Ave are
obliged to will, or that we are obliged through our wills.

And this is true. For acts and their consequences are the
objects of positive duties ; and every volition is followed
by the act which is willed, if the appropriate bodily organ
be sound or healthy.

And here I may remark that we cannot be obliged to
desire or not to desire in the sense in which desi)-e is op-
posed to 7nll ; i.e. to desire that which the Law enjoins, or
not to desire that which tlie Law forbids : For although we
desire to a^oid the sanction, we are not therefore averse
from that which the Law forbids, nor do we therefore
incline to that which the Law enjoins.

In spite of our aversion from the evil with which wo
are menaced by the Law, we may still desire that which the
Law forbids, or may desire to evade that which the Law

ill II
iuipossiblc.

An oliligation
to desire uot
poosible.

' Sanction!

2ig

exacts: altliougli oiu* necessary desire of avoidiug tlie
sanction, may be stronger than the opposite desire which
urges us to a breach of our duty. The desire of avoiding
the sanction may control the opposite desire, but cannot
supplant or destroy it, unless in the oblique or indirect
manner to which I shall advert immediately.

It is equally manifest, tliat we are not obliged to our
desire of avoiding the sanction. We are not hound or
obliged to entertain the desire ; but we are boimd or obliged,
becaitse we are threatened with the e^^l, and because we
inevitably desire to avoid the evil.

"When we desire that which the Law forbids, or when
we are averse fi'om that whicli the Law enjoins, we observe
our duty (supposing we do observe it) because our aversion
from the sanction overcomes the conflicting wish.

In these, and in similar cases, it is not unusual to sup-
pose a convict between desire and will. Because we icill a
something from which we are averse, it is imagined that we
will against our desires. The truth, however, is, merely
that we will or forbear in compliance with a stronger desire,
instead of forbearing or willing in compliance wdth a weaker
desire.

It is truly astonishing that this obvious solution of the
difficulty escaped the penetration of Mr. Locke. It is of no
small importance that the difficulty should Le clearly con-
ceived, and the solution distinctly apprehended. For I
believe that the mysterious jargon about tlie nature of the
will has arisen entirely from this purely verbal puzzle.

I have said that we cannot be obliged 7iGt to desire ;
that the desire of avoiding the sanction may master or
control, but cannot extinguish a desire which urges to a
breach of duty.

But this, though true in the main, must be taken with
an important qualification. The desire of avoiding the
sanction, though it cannot destroy directly the conflicting
and sinister desire, may do so f/radualbj or in the vyay of
association. The thought of the act or forbearance which
would amount to a breach of duty, is habitually coupled
with the thought of tlie evil which the Law annexes to
the wrong. If our desire of avoiding the evil, which the
Law annexes to the wrong, be stronger than our desire of
the consequences which might follow the act or forbearance,
we regard the latter as a cause of probable evil, and we
gradually transfer to the cause our aversion from the eflect.
Our stronger desire of avoiding the Sanction, gradually
extinguishes the weaker desire.

This is merely a case of a familiar and indisputable fact.
Objects originally agreeable become disagreeable on account
of their disagTeeable consequences. And objects originally

Lect.
XXII.

Supposed
conflict of
desire and
will.

Effect of
obligation
in estin-
guishinjj
desires
which iirtre
to a breach
of duty.

This an ex-
ample of the
familiar
principle of
association.

220

Pervading Notions analyzed.

Thedlsposl-
tious of men
commonly
termed jitst
and unjust
hence in part
accounted
for.

pleasing become displeasing by reason of painful conseqiienceg
•with ■whicli they are pregnant.

Tliis gradual eflect of sanctions in extinguishing sinister
desires, is a matter of familiar remark, and is expressed
in various ways. Owing to the prevalent misconceptions
regarding the nature of the will, the effect which is really
wrought upon the state of the desii'es is frequently ascribed
to the uilL

We are told, for instance, by Hobbes, in his ' Essay on
Liberty and Necessity,' ' that the habitual fear of punish-
ment maketh men just: ' ' that it frames and moulds their
7t-v7/s to justice.' The plain and simple truth is this: that
it tends to quench wishes which urge to breach of duty, or
are adverse to that whicli is jussmn or ordained.

Where the fear of the evils which impend from the
Law has extinguished the desires which urge to breach of
duty, the man is just. He is not compelled or restrained by
fear of the sanction, but he fulfils his duty spontaneously.
He is moved to right, and is held from wrong by that
habitual aversion from wrong or injury, which the habitual
fear of the sanction has gradually begotten. He comes to
love justice with disinterested love, and to hate injustice
with disinterested hate. vSo far as he fulfils his duties
through these disinterested affections, the man is just.
' Justitia est pei-petua voluntas suum cuique tribuendi.'

The man who fulfils his duty because he fears the
sanctions is an ?<7ijust man, although his conduct is just. If
he were freed from the fear which compels or restrains him.
his conduct would accord with the sinister desires and
aversions, which solicit or urge him to violate his duty.

AVhen I affirm that our fear of the evils by which our
duties are sanctioned is frequently transmuted into a dis-
interested hate of injustice, I am far from intimating that
t/iat fear is the onli/ source of this beneficent disposition.
The love of justice, or the hate of injustice, is partly
generated (no doubt) by a perception of the utility of
justice, and by that love of general utility which is felt by
all or most men more or less strongly. But it is also
generated, in part, by the habitual fear of sanctions. Tho
effect of sanctions is thei'efore of a double character : their
remote or indirect effect — to inspire a disinterested love of
justice; their" proximate and direct effect — to compel us to
right, or restrain us from wi'ong, in case that useful senti-
ment be absent or defective.

"When the desires of tlie man habitually accord with
his duty, we say that the man has a disposition to justice.
And this disposition is a ground for mitigation in measur-
ing out punishment or in measm-ing out censure.

EveiT legal crime shoidd be visited with legal punish-
ment, and eveiy oflence against morals should be visited

/^/' ysical CoiiiMilsion.

221

with reprolxation. The general consequences which would
ensue if the ofleuder passed with impunity, render it ex-
pedient that it should be visited with punislnnent or cen-
sure. But since tliere woukl be few otl'ences if good
dispositions were general, it is also expedient to mitigate
the punishment or censure, having regard to the good dis-
position manifested by the criminal.

And this, accordingly, is the usual habit of the world.
The occasional aberrations of a man who is habitually just
or humane, are treated with less severity, both in regard to
legal and moral sanctions, than the offences of the dishonest
and the cruel.

Where the desires of tlie man are habitually adverse to
his duty, we may properly call the state of his mind a dis-
position to injustice.

Owing to the prevalent misconceptions about the nature
of will, we frequently style the predominance of pernicious
desires, a depraved or wicked will. Sometimes, indeed, we
mean by a depraved or wiclced will a deliberate intention
to do a criminal act. Although it is perfectly manifest,
that badness or goodness cannot be affirmed of the will,
and that a criminal intention may accord with a good dis-
position.

Lect.
XXII.

LECTURE XXIII.
Physical Comjndsion Distinguished from Sanction.

I NOW proceed to distinguish physical compulsion or re- Lect
straint from the restraint which is imposed by duty or XXIl'l.
obligation. " -- — . '

A sanction is a conditional evil. The party obliged is
obliged, because he incurs the risk of this evil in the event
of disobedience, and because he desires to avoid it. Desirinc/
to avoid tlie sanction, or else through a disinterested motive
(probably begotten of the sanction through the process of
association) he desires to fulfil the duty, and in accordance
with this desire he wills the act or intends the forbearance
which is the object of the duty.

Consequently, the compulsion or restraint which is im- /
plied in Duty or Obligation, is hate and fear of an evil »
which we may avoid by desiring: by desiring to fulfil a
something, which we can fulhl if we wish.

Other compulsion or restraint may be styled merely Physical com-
physieal. puisiou or

-c IT • • !• 11 /■ i-i-r restraint dis-

1 or example : 1 am imprisoned in a cell from which I tinguished
am able to escape ; but knowing that I may be pimished in which u^'im-

222

Pervading Notions analy::ed.

case I attempt to escape, tlie fear of the probable punish-
ment detennines or inclines me to stay there. In this case
it may be said I am ohl'ujed to sta}"- in my cell.

But if I am imprisoned in a cell of which the door is
locked, physical restraint is applied to my body, I cannot
move from my cell, although I desire to move from it,
AVhether I shall quit, or whether I shall stay in my cell,
depends not upon my desires.

Again: if the judge sentence me to imprisonment, he
may command that I shall be dragged to prison in case I
refuse to go, or he may command me to go to prison under
peril of an additional punishment. If I go to prison through
dislike of being di-agged there, or fear of the additional
punishment, it may be said that I am obliged to go, or that
I desire to go as a means of avoiding the greater evil. But
if I refuse to go to i>rison, and am cLragged thither by the
oiEcers without a movement of my own, physical coin-
2ndsion is applied to my body. Whether I shall move to
prison, or not, depends not upon my desires.

Physical compulsion may affect the mind as well as the
body.

As I observed in a former Lecture, the dominion of the
will extends not to the mind.* That is to say, no change
in the state of the mind is immediately accomplished by a
mere desire. But changes in the mind may be wrought
through means to which we resort in consequence of such
desires : e.g. acquiring knowledge of a particular science by
reading, writing, and meditation.

But a change in the mind may be wrought or prevented,
whether we desire the change or whether we do not desire
it. And, in all such cases, it may be said that the mind is
affected by physical compulsion or restraint.

The conviction produced b}^ e\'idence, is a case of physi-
cal compulsion. If I perceive that premises are true, and
that the inference is justly drawn, I admit the conclusion,
though I do not wish to admit it, or though the truth be
unwelcome. Accordingly, if I love darkness, and hate the
light, I refuse to examine the proofs w^liich might render
the truth resistless, and dwell with complacency upon
eveiy shadow of proof which tends to confirm my pre-
possession, f
Obligations I observe that certain writers talk of obligations to

nou'ifsuffcnt suffer, and of obligations not to sutler. And, as an instance

* P. 201 ante.

f For this reason, non-belief maybe blameable. Where (e.^.) it
is the result of insufficient examination, refusal to examine, par-
tiality or antipathy indirectly removeable, etc,

X Traite's, etc, vol. i. pp. 239, 2-15.

' Injury; ' Guilt; ' hnputahility: 223

of an obligation to suifer, they cite the supposed obligation Lect.
to suffer punishment, -which is incumbent upon a criminal. XXIII.

But it is clear that we cannot be obliged to suffer or not ' ^

to suffer. For whetlier we shall suffer, or shall not suffer,
does not depend upon our desires ; although by acts or for-
bearances which do depend upon our desires, we may induce
suffering upon om-selves, or we may avert suffering from
ourselves.

The Criminal who is condemned to punishment is never
obliged to suffer, although (e.g. under the rules of prison dis-
cipline) he "may be obliged to acts which facilitate the in-
fliction of the suffering, or may be obliged to forbear from
acts which would prevent or hinder the infliction. But in r'assion or
the last result every obligation is sanctioned by suflering, what, is
that is to say, by some pain which may be inflicted upon ^l|,'^rti",'""f^
the wrong-doer independently of an act or forbearance of every obiiga^
his own. If this were not the case, and if every obligation """'
were sanctioned by a fm-ther obhgation, no obligation could
be effectual.

Either in the first instance, or at some subsequent point,
I must be visited with a sanction which can be inflicted
without my consent.

For example : I am condemned to restore a horse which
I detain from the owner ; to make satisfaction for a
breach of contract ; to pay damages for an assault, to the
injured party ; or to pay a fine for the same offence.

The sanction which attaches upon me, in this the first
stage, is an obligation : An obligation to deliver the horse,
or to pay the damages or fine.

If I refuse to perform this obligation, I may incur a
further obligation : for instance, an obligation to pay a fine
under sanction of imprisonment or of having my goods
seized in execution.

Suffering, therefore, is the ultimate sanction.

But though suffering is the ultimate sanction, we can-
not be obliged to suffer. For that supposes that we can be
obliged to a something which depends not upon om' desires.
The only possible objects of duties or obligations are acts
and forbearances.

LECTUEE XXIV.

Injury or Wrong, Guilt, Iviputahility.

I Kow proceed to consider the import of ' guilt ' or ' impu-
tahility : ' which it is necessary to determine in order that
we may fully apprehend the natme of injury or wrong.

Le<t.
XXIV.

224

Pervading Notions analyzed.

Definition of
' Injury,'
■Guilt,' ' Im-
jinlabilitj-.'
Each =
Broacli of
Duty.

Intpntinn,
negligence,
lieedlessiiess,
or rashness,
is of the es-
sence of in-
jury, guilt,
imimtability,
or lireach of
duty.

But is not
of itself in-
jury, guilt,
ic.

Brief analysis
of negligence
and its
modes ; of
Intention
regarding the
present, and
Intention re-
garding the
future.

Tliat an act or acts may l^e done or forljorne is the
immediate pm'pose of a positive or of a negative duty
respectively. The production of events by -wliich the act
or forbearance may be followed, or the prevention of events
which may happen if the act be not done or forborne, is
the more remote purpose for which the duty is imposed.

Certain forbearances, omissions, and acts, are injuries or
wrongs.

The persons who have in those certain ways forborne,
omitted, or acted, are guilty. Or the persons who have
forborne, omitted, or acted, are in that plight or 'predica-
ment which is styled ' f/uilt.'

Those certain forbearances, omissions, or acts, together
with such of their consequences as it was the purpose of
the duties to avert, are imputahle to the persons who have
forborne, omitted, or acted. Or the plight or predicament
of the persons who have forborne, omitted, or acted, is
styled ' imputobiliti/.'

All these expressions, it appears to me, are equivalent.
They all of them denote this, and nothing but this : ' that
the persons, who have forborne, omitted, or acted, have
thereby violated or broken duties or obligations.' Such
forbearances, omissions, or acts, are wi'ongs or injuries.
The parties so forbearing, omitting, or acting are guilty,
and their plight is styled guilt or imputability.

As I shall show hereafter, intention, negligence, heed-
lessness, or rashness, is an essentially comjwnent j^ciH of
injury or wrong, or of breach or violation of duty or obli-
gation ; and is a necessary comlition j}recede7it to the exist-
ence of the predicament styled guilt or imputability.

But intention, negligence, heedlessness, or rashness, is
not of itself injury or wrong ; is not of itself hveach of duty;
will not of itself place the party in tlie plight or predica-
ment of guilt or imputability. Action, forbearance, or
omission, is as necessaiy an ingTedient in the notion of
injury, guilt, or imputability, as the intention, negligence,
heedlessness, or rashness, by which the action, forbearance,
nr omission, is preceded or accompanied. The notion of
injui-y, guilt, or imputability, does not consist of either
considered alone, but is compounded of both taken iu
conjunction.

This may be made manifest by a short analysis.

If I am neyligent, I advert not to a given act : And, by
reason of that inadvertence, I omit the act.

If I am heedless, I will and do an act, not adverting to
its probable consequences : And, by reason of that inad-
vertence, I will and do the act.

If I am rash, I will and do an act, adverting to its
probable consequences ; but, by reason of a missupposition

' injury,^ * Guilt,'' ' Iiiiputahility!

225

which I examine inadvertenthj, I tliink that those probable Lect.
consequences will not ensue. And, by reason of my iu- .
sufficient advertence to the ground of tlie missupposition,
will and do the act.

Consequently, negligence, heedlessness, or rashness con-
note an omission or act, and denote the inadvertence, from
whicli the omission or act ensues.

If I intend, my intention regards the present, or my
intention regards the future. If my intention regards the
-present, I presently do or forbear from an act, expecting
consequences. These expressions, therefore, nc(jli(jence,
heedlessness, rashness, jnrsent intention, all derive their sig-
nificance from an act or forbearance. That he has done
or omitted is necessarily predicable of him who is negligent,
heedless, rash, or who has formed an intention of the kind
which relates to a present act or forbearance.

If, however, my intention regard the future, I pi'esentli/
expect or believe that I shall act or forbear hereafter.

And, in this single case, it is (I think) jwssible to imagine,
that mere consciousness might be treated as a ivrong : might
be imputed to the party : or might place the party in the
plight or predicament which is styled imputability or guilt.

We might (I incline to think) be obliged to forbear from
intentions which regard futm-e acts, or futm'e forbearances
from action : Or, at least, to forbear from such of those
intentions as are settled, deliberate, or frequently recurring
to tlie mind. The fear of punishment might prevent the
frequent reciuTence ; and might therefore prevent the
pernicious acts or forbearances, to which intentions (when
they recur frequently) certainly or probably lead.

Without, however, staying to inquire, whether we
might be obliged to forbear from naked intentions as regards
the future, I assmne, for the present,* the following conclu-
sion : a conclusion which accords with general or universal
practice.

Intention (in the sense of present intention), negligence,
heedlessness, or rashness, is not of itself wi*ong, or breach of
duty or obligation ; nor does it of itself place the party in
the predicament of guilt or imputability. In order that
the party may be placed in tliat predicament, his intention,
negligence, heedlessness, or rashness, must be referred to
an act, forbearance, or omission, of which it was the cause.

In the language of lawyers, however, and especially of Restription
criminal lawyers, 'guilt' or 'culpa' is frequently restricted orrcui'pa'to
to the state of the party's mind — his intention, negligence, inteniion.

Wliether an
intention,
neither con-
summate nor
followed liy
an attempt,
could be made
tlie object of
a negative
obligation ?
(See p. 215,
supra.)

* The argumeut by which tliis position is established will be
found in the next Lecture. See p. 229, infra.
L 3

226

Pervading Notiois analyzed.

lieedlessuess, or rashness, as the case may he. To show
this, I will transcrihe a few passages from two treatises on
German Criminal Law.

One of them is the work of Feuerbach ; the most cele-
brated Criminal Law^-er now living : * formerly professor
of Roman and German Jm'isprudence, and now president
of a Court of Appeal in the Ivingdom of Bavaria.

The other is by Dr. Rosshirt, professor of Law at Hei-
delberg.

Feuerbach's book is entitled, 'Institutes of the Penal
Law which obtains generally in Germany.'

The title of Dr. Rosshirt's lx)ok may be translated as
follows : ' Institutes of the Criminal Law which obtains
generally in Germany : Including a particular Exposition of
Roman Criminal Law, in so far as the German is derived
from it.'

' The application (says Feuerbach) of a penal Law,
supposes that the will of the party was determined positively
or negatively : that this determination of the will was con-
trary or adverse to the duty imposed by the Law : and that
this determination of the wiU was the cause of the criminal
fact.' ' The reference of the fact as effect to the determina-
tion of the will as cause, constitutes that which is styled
im^jutation. And a party who is placed in such a predica-
ment, that a criminal fact may be imputed to a determina-
tion of his will, is said to be in a state or condition of
iinjndahility.''

* The reference of the fact as effect to the determination
of the will as cause, settles or fixes the legal character of
the latter.

' In consequence of that reference (or by reason of the
imputation of the fact) the determination of the will is
held or adjudged to be guilt: Which guilt is the ground of
the punishment applied to the party.'

He adds, in a note, that the ' culjm ' of the Roman
Lawyers (as taken in its largest signification), and also the
' reatus ' of more recent writers upon jurisprudence, answers
to the ' Schuld^ or 'das Verschulden' of the German
Law.

' Cidpa ' (as taken in its largest signification), reatus,
and ' Sclndd ' (or ' das Verschulden ') may (I apprehend) be
translated by the English ' Guilt.'

The language of Dr. Rosshirt accords with that of
Feuerbach. t ' In order (says he) to the existence of a
Crime, the loill of the party must have been in such a pre-
dicament, that the criminal fact may be imputed : that is to

* He died in 1833. The passage quoted is at pages 78, 79 of hia
work.

t Pages 35-42 {ibid.).

' Injury; ' Guilt; ' Imputability: 227

sav, tliat tlie criminal fact may be imputed as effect to tlie Lbct.
state of his will as caused _ - _ . 1^

' The term " Culpa;^ as used by the Roman Lawyers, is
frequently s^nionymous with Crime or Delict, or with Injury
generally' *Biit,\vhen they employ it in a stricter sense,
it is equivalent to the reatus of modem philosophical jmis-
prudence, to the Verschulden of the German Law. It de-
notes the state of the party's icill, considered as the cause
of the criminal fact. It denotes the dolus, or the negligentia ,
of which the criminal fact is the ascertained consequence
or effect.'

In translating these passages I have tlirown overboard
certain terms bon-owed from tlie Kantian Philosophy. For
the modern German Jurists (like the Classical Jmists of
old) are prone to sliow off their knov/ledge of Philosophy,
though actually occupied with the exposition of municipal
and positive Law.

These impertinent terms being- duly ejected, the meaning
of the passages is clear and simple. /

It merely amounts to this. 'Culpa ' fZeuotes the state v
of the party's mind — his intention, negligence, heedlessness,
or rashness ; although it co?motes (or embraces by implica-
tion) the positive or negative consequence of the state of
his mind.

But I think that the term ' Guilt,' as used by English
lawj-ers, denotes not only the state of the party's mind, but
also' the act, forbearance, or omission, which was the conse-
quence. It imports generally ' that the party has broken a
duty.' It embraces all the ingredients which enter into the
composition of the wrong ; and is not restricted to one of
those necessary ingredients.

And this extended meaning of the word gTiilt is likewise
(I think) the meaning which convenience prescribes. A
general expression for culpable intention, and for the various
modifications of negligence, tends to confusion and obscmity
rather than to order and clearness. I am not aware of a
single instance, in which it can be necessary to talk of them
collectively. But it is often necessary to distinguish them.

Before I conclude this Lectui'e, I wiU remark that the injurr, ptr.,
term ' Injury,' and also the tenn ' Guilt,' is merely the con- trad'^cuiryof
tradictoiy of the term ' Duty ' or ' Obligation.' '^"'i-

If I am bound or obliged to do, I am bound or obliged
not to prnetermit the act intentionally or negligently.

If I am boimd or obliged to forbear, I am bound or
obliged not to do the act intending certain consequences, or
not to do the act heedlessly or rashly.

I am not absolutely obliged to do or forbear, but to do
or forbear v^itJi those various modijications.

D<.U:t!.

2 28 Pervading Notions analyi^cd.

Paut I. If 1 prfetermit au act intentioually or negligently, I

§ 3. Ijieali a positive duty.

"^ ' ' If I do au act intending certain consequences, or if I do

an act heedlessly or raslily, I break a negative duty.

An injuiy, or breach of duty, is therefore the contradic-
tory of thcrt which the Law imposing the duty enjoins cr
forbids : — ' Id quod non jure fit.'

Corpus Corpus delicti (a phrase" introduced by certain modern

civilians) is a collective name for the sum or aggregate of
the various ingredients which make a given fact a breach of
a given Law.* Corpus is used by the Roman lawyers (like
universitas) to express every whole composed of parts, as in
the phrase corpus juris, which with the Roman lawyers stood
for the aggregate of the laws, though by the moderns it is
applied to the particular vohunes which contain Justinian's
collections.

Adopting this expression, ottempts may be thus distin-
guished from consummation of a criminal pui-pose. For
Avant of the consequence there is not the Corjms of the
principal delict. But the intention coupled with an act tend-
in;/ to the consequence constitutes the corpus of the secondary
delict styled an ' attempt.'

Aynhiguity of SclndJncr, Reus, etc.

I stated in a former note (p. 118 supra) one ambiguity ad-
hering to the terms ' jus,' ' reeht,' or ' right.' Each of these
terms is sometimes applied with a third meaning, namely as
denoting tlie duty incumbent on tlie party obliged. ' I have a
r/qki to do it,' meaning ' I am obliged,' is good Saxon English.
The ' Obt iff at io' o{ the Eoman Lawj'ers denotes the jus i?i per-
sonani residing in the party entitled, as well as the obligation
incumbent upon the party obliged.

The German ' Sckuld' (or 'das Yerschulden') hasa similar
ambiguity. ' Schidd' signifies -^TO^evlj ' liaUliti/.' To impute
to a person ' Sckuld,' is to say that he has broken a duty, and
is now liable to the sanction. Accordingly, ' Schiddner ' is sy-
nonymous with the Eoman ' Debitor ; ' which applies to any
person lying under any obligation : that is to say, an obligation
(stricio senszi), or in the sense of the Eoman Lawyers. But it
is remarkable that ' ScJnddncr' (in the older German Law)
applied to the Creditor, as well as to the Debitor.

The Ecus of the Eoman Lawyers is in the same predica-
ment. As opposed to 'Actor' it signifies the defendant in a
civil proceeding, or the party who is the object of accusation iu

* For Corpus Delicti, see Feuerbach, 75, 76 ; Kosshirt, 79.

' Injury ' implies ' tntcjttion ' or ' Negligence^ 22()

a criminal proceediug. And, taken in this sense, it is not Lect.
ambiguous. XXIV.

But reus also signifies a party to a stipulation : that is to *~ ' '
say, a unilateral contract accompanied by peculiar solemnities.
And, taken in this sense, it applies to the promisee or obligee,
as well as to the promisor or obligor. Botli are re/. The party
who makes the promise is styled reus 'promitteoidi: The party
to whom it is made, and by whom it is accepted, is styled reus
gtipulandi. Correi promittcndi are joint promisors: Correi
eiipidandi, joint promisees.

' Creditor' is the correlative of ' Debitor' and applies to any
person who \\a.sjus in jjcrsonam. The 'Fvitncli ' JJebiteur' unci
• Creancier' have precisely the same meanings. The English
' Obliffor' and ' Obligee' ought to bear the same significations.
But, in the technical language of our Law, the term ' obligation '
OT ' bond' ha.s been miserably mutilated. Instead of denoting
cbligafio (as correlating with Jus in j)erso7iam), it is applied
exclusively to the wTiting under seal by which certain unilateral
contracts are evidenced. That is to say, it is not tlie name of
an obligation, but of an instrument evidencing a contract from
which an obligation arises.

In the strict technical import whicii it bears in the English
Law, the meaning of ' debt ' is not less narrow and inconvenient
than the meaning of ^ bond' or ^obligation'

In the Eoman Law, the term ' debituni ' is exactly co-exten-
sive with the related or paronymous expression ' debitor' As
' debitor ' signifies generally a person lying under an obligation,
' f^e^/i'if/?*' denotes (with the same generality) fwry act or for-
bearance to which a person is obliged : ' id quod ex obligatioue
prcestandum est.'

But in the strict technical import which it bears in tiie
Englisli Law, ' debt ' is restricted to a definite sum of money,
due or owing from one party to another party.

LECTURE XXV.

Analysis of Li jury or Wrong continued. — O rounds of
Kon-imputability.

I ASSUMED, in my last Lecture (p. 22*5, supra), that Inten-
tion, Negligence, Heedlessness, or Rashness is a necessary
ingredient in injury cr wrong.

A short analysis will show the truth of the assump-
tion. Reverting to my definition (p. 224), an injury is a
forbearance, omission, or act, whereby a person has violated injury
a duty. Now th#3re can obviously be no breach of duty —
no rupture of the vineulum juris^unless the duty has some
binding force, that is to say, unless the sanction were capable

230

Pervading Notions analyzed.

An absurdity
111 English
Law from in-
attention to
this i)riuci-
I>le.

of operating as a motive to the fulfilment of the duty. But
sanctions operate upon the obliged in a twofold manner :
that is to say, they counteract the motives or desires which
prompt to a hreach of duty, and they tend to excite the
attention which the fulfilment of duty requires. And un-
less the party knew that he was violating his duty, or un-
less he viicjht have known that he was violating his duty,
the sanction could not operate, at the moment of the wi'ong,
to the end of impelling him to the act which the Law
enjoins, or of deterring him from the act which the Law
forbids.

Consequently, injmy or wrong supposes unlawfid inten-
tion, or unlawful inadvertence. And it appears from the
foregoing analj^sis, that every mode of imlawful inadver-
tence must he one of those which are styled negligence,
heedlessness, or rashness.

The only instance wherein intention or inadvertence is
not an ingi'edient in breach of duty is furnislied by the Law
of England. By that law, in cases of Obligation arising
directly from contract, it frequently happens that the per-
formance of the obligation is due from the very instant at
which the obligation arises. Or (speaking more accurately)
the time for performance is not determined by the con-
ti-act, and performance is due so soon as the obligee shall
desire it.

For example : if a moveable be deposited with me in
order that I may keep it in safety, I am bound, from the
mo7nent of the deposit, to restore it to the bailor.

If I buy goods, and no time be fixed for the pajauent of
the price, I am bound, from the moment of the delivery, to
pay the price to the seller.

Now, in these, and in similar cases, it is impossible that
the obligation should be broken, through intention or inad-
vertence, until the obligee desire performance, and until the
obligor be informed of the desire. For, strictly speaking,
he is bound to perform the given act, so soon as the obligee
shall wish the performance, and so soon as he himself shall
be duly apprised of the wish. But, according to the rule
which obtains in the Courts of Common Law, the creditor
may sue the debtor, as for a breach of the obligation, with-
out a previous demand : The debtor being liable in the action
for damages and costs, just as he would be liable if perform-
ance had been required, and the obligation had then been
broken through his own intention or negligence.

Now as eveiy right of action is founded on an injury,
here is a case of injmy without intention or inadvertence.
For, without a pre-vious demand, or without some notice or
intimation that the creditor desires performance, the debtor

Aiionialons Exception in English Laiv. 231

cauuot linow that lie is breakiug; his ohligation, hy not per- I,ect.
forming the act to which he is oblig-ed. XXV.

This monstrous rule of the Common Law Com'ts is jus- '

tified by a reason which is not less monstrous. For it is
said that a previous demand were superfliicus and needless,
inasmuch as the action is itself a demand.

The reason forgets, that a right of action is founded on
an injury ; that unlawful intention or inadvertence is of the
essence of injury; and that, in all the cases which I am
now considering, there is no room for unlawful intention or
inadvertence, until the creditor desire performance, and until
the debtor be apprised of the desire.

In looking over Evans's Digest of the Statutes for another
pm-pose, I have had great pleasure in observing that so judi-
cious a wi'iter takes the same view of this question which I
have just stated. lie says (vol. iii. p. 289) : ' There is
another Rule in Courts of Equity which may deserve a dif-
ferent consideration, as applied to legal demands, \-iz. that
length of time is no bar in case of a trust. Where a man
deposits money in the hands of another, to be kept for his
use, the possession of the custodee ought to be deemed the
possession of the owner, until an application and refusal, or
other denial of the right ; for, until then, there is nothing
adverse ; and I conceive that upon principle, no action should
be allowed in these cases, without a previous demand ; con-
sequently, that no limitation should be computed fm'ther
back than such demand. And I think it probable that,
under these circumstances, the limitation would not be al-
lowed to attach, though the other part of the observation
would be as probably disallowed. For a sweeping rule has
been by some means introduced into practice, that an action
is a demand ; whereas exerxj action in its nature supposes a
precedine/ default ; where money is improperly received, or
goods are bought without any specific credit, or even where
money is borrowed generally, there is held to be an imme-
diate duty, and it is a perfectly legitimate conclusion that
no demand can be necessary, in addition to the duty itself.
But wherever there is a loan in the natm-e of a deposit, or
any other confidential duty is contracted, the mere creation
of that duty, unaccompanied with the absolute breach of it,
by denial or inconsistent conduct, ought not to be considered
as a ground of action.'

I perfectly agree with this reasoning as applied to the
case of the deposit.

But similar reasoning is also applicable to the case of
goods sold without specific credit; of money lent generally;
and of money paid and received by mistake.

In the case of money paid and received by mistake, it is
necessary to distinguish.

232

Pervading Notions analy::cd.

PartI

The rHiiclple
B|i|i|ieil to
pDssessioii of
res alienee.

If the money was received bondjide, it surely is expeclieut
that a demand should precede the action.* For until the
debtor is apprised of the mistake, it is impossible to say
that he has broken intentionally or by negligence his obliga-
tion to return the money.

If tlie money was received maldjide, the act of receiving
the money was in itself an injury : an injury analor/ous to
unlawful taking. In certain cases of the class I am now
considering, it is indeed expedient that the creditor should
be permitted to sue, although no demand has been made
upon the debtor. But why ? Because the debtor has actually
broken the obligation : or because he intends to break it, and
the delay occasioned by a formal demand might facilitate
the execution of his rmlawful design. For example ; if the
debtor withdraw himself from his home to evade adeinand.\

I shall here remark, generally, a distinction which exists
between obligations arising from the possession of res alienee,
or things which are the property of another person. The
party entitled has always a right to the restitution of the
goods or to satisfaction for their loss, and the party in pos-
session is alwaj'S bound to restore or satisfy.

But the nature of the obligation depends upon the con-
sciousness of the party in possession:! If he possess the
subject maldjide, his possession is itself a wrong. His obli-
gation to restore or satisfy, arises from an injury ; and, in-
asmuch as the right which is violated is jus in rem, the
obligation is ex delicto (strictly speaking).

If he possess the subject Jo?? a j^V/e, his possession is not
a wi'ong. His obligation to restore or satisfy is quasi ex

* And the demand in such a case was thought necessary by
Martin and liramwell, BB , in Freeman v. Jeffries, May G, 1869,
L. li. 4 Exch. 199, 200.

f It mi^ht be added that in the ease of apprehended insolvency,
if some creditors were obliged to make a previous demand while
others could sue without one, tiie former class would be at a dis-
.idvantage in the race for securing their claims. This considera-
tion is some set off against the hardship of the legal rule. But the
reason why the existence of this rule is found tolerable in practice
is this : — The moral sanction which prevents undue advantage being
taken of it is a stru/iy one. 'A respectable attorney will always
make a demand of some sort on behalf of his client before compl}--
ing with his instructions as to issuing the writ.' Broom, Com. Law,
4th ed. p. 114.— U. C.

X In those actions in English law which are deemed to arise
out of tort, the principle maintained in the text is recognized. In
trover (to use the expression properl)' belonging to the period
before the C. L. F. Acts) intention is of the essence of the wrongful
conversion. In detinue, intention or negligence. In both cases the
evidence may and commonly does consist of proof of demand
and refusal. But to ]irove conversion, it must be further shown
that at the time of the demand the goods were in defendant's
custody. — II. C.

I

Roman L aw — M o r a.

233

CDntracU>.: That is to say, It arises from a fact wliicli is Lecp.
neither an injury nor a convention. But so soon as he is XXV.
apprised of the right which resides in the party entitled, " '
the obligation alters its nature. It may either be considered
as arising from a breach of the quasi-contract; or from a
violation of the jus in rem wliich resides in the party en-
titled. And, on either supposition, it arises from an injury.
The allegation in bills in Chancery, * that the plaintiff
has requested the defendant to perform the object of the
suit, but that the defendant has refused or neglected to
comply with that request,' is, in a case where injuiy is other-
wise shown, merely formal : i.e. it is not incumbent on the
plaintiff to prove it. But where notice must be given, be-
fore the defendant can commit an injury, there (I apprehend)
a demand on the part of the plaintiff, with subsequent re-
fusal or neglect on the part of the defendant, is a necessary
preliminary to the institution of the suit. E.g. : If you
are seized in fee in trust for me, you are bound to convey
the legal estate as I shall direct. But if I filed a bill for
the purpose of compelling a conveyance without previous
demand and consequent refusal or neglect, I think that
Equity (who, let men traduce her as they may, is far more
rational than her sister and rival Lmu) would compel me to
pay the costs of the wanton and vexatious suit.

The Roman Law, in regard to the matter in question, is Roman law
perfectly rational and consistent. In all cases, the institu-
tion of an action must be preceded by a notice to the debtor,
provided the debtor can be found. The question is how-
ever sometimes mooted whether a demand must be made by
the creditor, in order that the debtor may be in mora, and
may incur the liabilities which are incident to that predica-
ment. This I will endeavour briefly to explain.

The non-performance of an obligation is in the Roman
Law styled mora* : for the debtor delays performance.

But the predicament in which the debtor is placed in
consequence of his non-performance, is also styled mora.
Debitor qui moram fecit in mora dicitur. Being in mora, he
incurs liabilities from which he were exempt if he were not
in mora.

For example : The debtor in the obligation arising from
the deposit of a moveable for safe keeping is in mora if he
refuses to return it on demand made by the creditor. Thence-
forth he is liable for accidental damage, as well as for da-
mage occasioned by his intention or negligence.

If he owe money payable on demand, and after demand
decline or neglect payment, he is in mora, and is then bound
to pay interest on the money which he detains, though no
interest was previously payable.

iiiaiiuaiiis
the principle
cunsistcntly

Muhlenbruch, i. 325, 339. Mackeldey, ii. 156, 165

234

Pervading Notions analyzed.

Tart I. Speaking generally, if no time be fixed for the perform-

§ 3. ance of the ohligatiou, the dehtor is not in mora, and does
' ^ not inciu" the liabilities incident to that predicament, unless
a demand of performance be made by the creditor, and un-
less the debtor comply not with the demand. The rule ia
' InterjjeUandus est debitor loco et tempore opportuno.'' The
authors of the rule justly considered, that intention or inad-
yertence is of the essence of ■wi'ong ; and that the obligation
could not be broken, either thi'ough intention or inadvertence,
until the creditor required performance.

But if a specific terminus or time be fixed for tie per-
formance, the debtor is in mora, unless he perform at that
time, although no demand be made by the creditor. ' Diea
interpellat pro Jiomine.'' (N.B. Interpellatio signifies making
a demand.) For, here, the debtor brealvs the obligation,
intentionally or by negligence, whether a demand be made
or not by the opposite party.

Breach of Before I dismiss this subject, I may make this general

eTcert[on"to remark. In most cases of breach of contract, tlie intention
tiie principle, or negligence of the debtor is so manifest that the question
is not agitated or eyen adverted to. But on close examina-
tion we perceive that breach of contract, as well as any
other injury, necessarily siipposes intention or negligence.

For instance : the questions whether or not a demand
be an essential preliminary to an action, and whether or not
the debtor be in mora without a demand, entirely depend
upon the presence or absence of intention or negligence.
This sufficiently appears from what has been already said
on the subject. In all cases in which the contract binds
hiui to diligentia (as in cases of baihnent), the question of
' negligence or not,' also frequently arises. In other cases
the question does not arise, merely because the intention or
negligence is manifest and indisputable. I make this re-
marli because, owing to the arrangement adopted b}'' the
Roman institutional writers, one is liable to suppose that
breaches of contract are not similar to other breaches of
obligation, and are not even injuries at all ; not being ranked
with delicts or injuries, nor bearing the same name. In the
arrangement of the Roman law, not only the primary obli-
gations arising from contracts and quasi-contracts, but like-
wise the obligatioiis arising from breaches of these primar}'
obligations are said to be obligations arising ex contractu or
quasi ex contractu. And in our own law Ave talk of actions
ex contractu, and distinguish them from actions ex delicto ;
although the former are clearly just as much foimded on
injury as the latter.

Resume the
firinciple,
that iuteu-

TJnlawful intention or unlawful inadvertence is, there-
fore, of the essence of injury, and for this reason, that the

Grounds of Non-Ii)iputahHi(y.

-^J3

sanction could not have operated upon the party as a motive Lect.

to the fulfihuent of the duty, imless at the moment im- XXV.

mediately preceding- the wrong- he had been conscious that "" ' '

he -was violating his duty, or unless he ivould have heen advertence is

conscious that he -svas violating- his duty, if he had adverted of theessence

or attended as he ought. ° wjurj.

If we examine the grounds of the various exemptions Grouuds of
from liability, we shall iind that most (though not all) of from fiabii-
them are reducible to the principles which I have now ity, mosny
stated. We shall find (generally speaking-) that the party iiie"ame °
is clear of liability, because he is clear of intention or in- i^'icipie.
advertence ; or (what in effect comes to the same thing)
because it \s ^jresumed \h^X he is clear of intention or in-
advertence.

Thus: No one is liable for a mischief resulting- from i. Casus o^
accident or chance (casus). That is to say, from some event
(othe) than act of his own), which he was unable to fore-
see, or, foreseeing-, was unable to prevent. This (I think)
is the meaning of casus or accident in the Roman, of chance
or. accident in om' own Law.

' By the Common Law ' (says Lord Mansfield) ' a carrier
is an insiu'er. It is laid down that he is liable for every
accident,^ except by the act of God or the king's enemies.''
Here, the term accident includes the acts of men : namely, of
the king's enemies. And in the Digest it is expressly
said, ^ fortuitis casibus solet etiam adnimierari aggressura
latronwn.'

In the language of the English Law, an event which
happens without the intervention of man, is styled ' the
Act of God.' The language of the Roman Law is nearly
the same. Mischiefs arising from such events are styled
damna fatalia, or detrtmenta fatalia. They are ascribed
to vis divina, or to a certain personage styled /V/;'i(;«. Or
the casus or accident takes a specific name, and is called
fatalitas.

The language of either system is absurd. For the act of
man is as much the act of God as any event which arises
without the intervention of man. And if we choose to
suppose a certain fate or destiny, we must suppose that she

* Muhlenbruch, i. 179, 326, 331. Mackeldej-, ii. 157. Black-
stone, iv. 26 ; iii. 165. Heineccii Recitationes, 5B8, 539.

t It iniglit have been in this case more correct to say that in
the contract of carriage there is an implied warranty against the
act of man except the King's enemies. Tracing the history of thia
principle to its source in the celebrated edict of the Praetor, ''Xautae
caupones stabularii, quod cujiisque salvum fore receperint nisi re-
s-tituent in cos judicium dabo ' (D. iv. 9), the ol ject, according to the
commentator in the Pandects, was to prevent collusion with thieves
ou the part of the carrier. — R. C.

236 Pervading Notions analyzed.

01' it determines the acts of men, as well as tlie events
which are not acts of men.

Returning- to the legal effect of casus, chance, or accident,
no man is liable, civilly or criminally, for a purely accidental
mischief. For, as he could not foresee the event from which
the mischief arose, or was utterly unable to obviate the event
or its consequences, the mischief is not imputable to his in-
tention or negligence.

For example, If I am in possession of a house, or of ^
moveable belonging to another, and the subject whilst in
my possession is destroyed by an accidental tire, x am not
liable to the owner in respect of the damage. * Damnum
ex casu sentit do minus.'

But when I say, ' that no man is liable in respect of an
accidental mischief,' I mean, 'that he is not liable as for an
injurjf or wrong.'' For, by virtue of an obligation arising
aliunde, he may be liable.

To revert to the instance wliich I have just cited: — I
am liable to the owner for the damage done by the tire, in
case I contracted with him to that etl'ect. I am also liable in
case I am a carrier, and the subject has come into my pos-
session in the com-se of my calling. If the subject was
deposited with me in order that I might keep it safely, I
am also liable (according to the Koman Lawj if I am in
mora : that is to say, if the owner has requested me to re-
tm-n the subject, and I have nevertheless kept possession of it.

But in these and similar cases I am not liable as for an
injury, but by virtue of an obligation ex contractu or ij[uasi
ex contractu. The mischief done by the fire is not the
consequence of an injury done by me ; although I shall be
answerable, as for an injury, in case I perform not my
special obligation to make good the loss arising fi'om the
accident.

i. Ignorance Another ground of exemption is ic/norance or error with

orirrot. regard to matter of fact.

Now, here, although \]iq jn-oxiniate gi'ound is ignorance
or error, the ultimate ground is the absence of unlawful in-
tention or unlawful inadvertence. For unless the ignorance
or error was inevitable or invincible (or, in other words, un-
less it could not have been removed by due attention or
advertence) the act, forbearance, or omission, which was the
consequence of the ignorance or eiTor, is imputable to negli-
gence, heedlessness, or temerity.

I will touch brietly upon a few cases, wherein the party
is exempt from civil and criminal liability, by reason of
ignorance or en-or.

' Si quis ' (says Ulpian) ' hominem liberum ceciderit,
dum putat servum suutn, in ea causa est, ne injiu'iarum
teneatui'.'

Ignorance of Law.

237

Anotlier case, closely resembling the last, is the follow-
ing : — If the party possess bond fide a thing belonging to
another, and if the thing be damaged by his abuse or care-
lessness, he is not liable to the owner for the damage. * Eem
enim quad sumn neglexit.'

The foregoing examples are taken from the Roman : the
following from the English Law.

If I hire your servant, hnoidng that he is your seiTant,
I am guilty of an offence against your right in the servant,
and am liable to an action on the case. But if I hire j'our
seiTant, not knowing that he is your servant, I am not
guilty of a wrong, and am not liable to an action, until I
receive notice of his previous conti'act with you.

If I keep a dog given to wony cattle, and if I aiu
apprised of that his mischievous inclination, I am liable for
damage done by the dog to my neighbour's cow or sheep.
But imless I am apprised of his vicious disposition, I am
not guilty of an injury, and am not liable to make good the
damage.* For the damage is not imputable to d'J intention
or inadvertence.

If, intending to kill a burglar who has broken into my
house, I strike in the dark and kill my own servant, I am
not guilty of murder, nor even of manslaughter. For the
mischief is not imputable to intention or inadvertence, but
to inevitable error.

And so much for ignorance or error, with regard to mat-
ter of fact.

Lf.pt.
XXV.

Before I dismiss the subject, I will briefly advert to
ignorance or error, with regard to the state of the law.

In order that an obligation may be effectual, two con-
ditions must concur. 1st, It is necessary that the party
should know the law by which the Obligation is im-
posed, and to whicli the Sanction is annexed. 2ndly, It
is necessary that he should actually know (or, by due
attention or advertence, might actually know) that ihe
given act, or the given forbearance or omission, would
\-iolate the law, or amount to a breach of the obligation.

Ignoranre of
law.

* The presumption which formerh' existed in England in favour
of the mansueta natura of our dogs has elsewhere been severely
criticized. In a case in Scotland where sheep had been worried
by a foxhound, the late LordCockbuin repudiated the principle that
'e%-ery dog is entitled to have at least mie worry :'' and the Scotch
Court agreed with him in presuming, tliat it a dog worry sheep, the
owner is to blame. The House of Lords (Lords Cranwnrtii and
Brougham) overruled this decision (2 Macqueen, 14). An Act was
subsequently passed (for Scotland), declaring it unnecessary, in an
action against the owner of a dog, to prove a previous propensity
to injure cattle (26 & 27 Vict. c. 100). An Act to a similar purport
was afterwards passed for England (28 & 29 Vict. c. CO).— K.C.

238 Pervading Notions analyzed.

Unless tliese conditions conciu", it is impossible that the
sanction should operate upon his desires.

Accordinirly, inevitable ignorance or eiTor in respect to
matter of fact, is considered, in eveiy system, as a gTound of
exemption.

AVith regard to ignorance or eiTor in respect to the state
of the law, the pro^nsions of dillerent systems appear to differ
considerably ; although they all concm* in assmuing generalhj,
tliat it shall not bo a gTOimd of exemption. ' Begula est,
iiu'is ignorantiam caique nocere,' is the language of the
Pandects. And j^er Manwood, as reported by Plowden, ' It
is to be presumed that no subject of this realm is miscon-
usant of the Law whereby he is goyerned. Ignorance of
the Law excuseth none.'

I haye no doubt that tliis ride is expedient, or, rather, is
absolutely necessary. But the reasons assigned for the rule,
which I haye happened to meet with, are not satisfactor3^

The reason giyen in the Pandects is tliis : ' In omni
parte, eiTor in jure non eodem loco quo facti ignorantia ha-
beri debebit, qumu Iw^Jinifum et possit esse et debeat : facti
intei'pretatio plerumque etiam prudentissimos fallat.' *

Which reasoning may be expressed thus :

' Ignorance or error with regard to matter of fact, is
often inevitable : that is to say, no attention or advertence
coidd prevent it. But ignorance or error with regard to the
state of the law, is never inevitable. For the law both can
be and ought to be definite and knowable. Consequently,
ignorance or error with regard to the law is no ground for
exemption.'

Tlie reasoning involves the small mistake of confounding
' is ' with ' can be ' and ' oug'ht to be.' That Law can be
knowable by all who are bound to ol^ey it, or that Law ought
to be knowable by all who are bound to obey it — 'Jimtum
et possit esse et debeat,' is, I incline to think, true. That
any actual system is so knowable, or that any actual system
has ever been so knowable, is so notoriously and ridiculously
false that I shall not occupy yom* time with proof of the
contrary.

Blackstone produces the same jvetiosa ratio, flavom-ed
with a spice of that circular argumentation wherein he de-
lights. ' j\. mistake (says he) in point of Law, which every
person of discretion, not only mai), but is bound and pre-
sumed to Ivnow, is in criminal cases no sort of defence.'

Now to affirm ' that every person mai/ Icaow the law,' is
to affirm the thing which is not. And to say 'that his
ignorance should not excuse him because he is hound to
know,' is simply to assign the rule as a reason for itself.

The only sufficient reason for the rule in question, seems
to be this: that if ignorance of law were admitted as a

* Digest, xxii. O, 2.

Ignorance of Law. 239

ground of exemption, the Courts would be involved in Lkct.
questions wliicli it were scarcely possible to solve, and which XXV.
would render the administration of justice next to impracti- "~ '
cable.

Ignorance would be allej^'ed in almost every instance.
And it would become iucuuibeut upon the Court to ex-
amine the following questions of fact: 1st, Was the party
ignorant of the law at the time of the alleged wrong ?
2ndly, Assuming that he was ignorant of the la,w at the
time of the wrong alleged, was his ignorance of the law in-
cvitablc ignorance ? Either of these questions would be next
to insoluble. The first is hardly capable of being tested by
evidence: And the second v/ould involve an interminable
inquiry into the circumstances of the man's whole life.

That the party shall be iieremptorily presumed conusant
of the law, is a rule so necessary, that law would become
ineffectual if it were not applied by the Courts generally.
And if due pains were taken to publish the law in a form
cleared from needless complexity, the presumption would
accord with the truth in the vast majority of instances,
The reasoning in the Pandects would then be just. The law
would be mf((ct as ^Jinitum ' and knowabie, as ^ possit esse,
ct dehecit.''

The admission of ignorance of fact as a ground of ex-
emption, is not attended with the inconveniences above
referred to. The inquiry is limited to a given incident, and
to the circumstances attending that incident, and is, there-
fore, not interminable.

I have said that the provisions of different s^'stems seem
TO differ considerably with regard to the principle which I
am now considering.

In our own law, ' ignorantia juris non excusat ' seems to
obtain without exception. I am not aware of a single in-
stance in wliich ignorance of law (considered per se) exempts
or discharges the party, civilly * or criminally.

From an opinion thrown out by Lord Eldon^ in the case
of Stockley v. Stockley,t I inclined to think (at the first
blush) that a party would be relieved, in certain instances,
from a contract into which he had entered in ignorance of
law. The species of transaction referred to is where a per-
son transfers a valuable right, in consideration, as he eiTone-
ously thinks, of getting a valuable right in retm-n. But,
admitting the justness of Lord Eldon's conclusion, the

* In one case, however, ignorance of law is allowed in Eng-
lish law as at least a partial excuse. If I sell land, and it turns out
that I have no title, I am not liable to pay substantial damages for
the loss of the land bargained for, but only the costs occasioned by
tlie abortive transaction. The reason is that the pitfalls in English
title to land are so notorious that no one can be presumed to know
whether he has a good title or not. — R. C.

t 1 Vespy and B. 31.

240 Pervading Notions analyzed.

afn'eement (I conceive) would be void, not because tlie party
was ignorant of the law, but because there is no cousideration
to suppDi-t the promise.*

According to the Roman Law, there are certain classes
of persons, 'quibus permissum est jus ignorare,' e.g. women,
soldiers, &c. They are exempt from liability (at least for
certain purposes), not by reason of their general imbecility,
but because it is presumed that their information does not
extend to a knowledge of the law. Such are women, soldiers,
and persons who haA'e not reached the age of twenty-five.

And this (I apprehend) shows distinctly, that the exclu-
sion of ignorant id juris, as a ground of exemption, irdeducible
from the reason which I have already assigned. In ordinary
cases, the admission oi ignorantia juris as a ground of ex-
emption would lead to interminable inquiiy. But, in these
excepted cases, it is presumed from the se.v, or from the ctge,
or from the jirofession of the party, that the party was
ignorant of the law, and that the ignorance was inevitable.
The inquuy into the matter of fact is limited to a given
point : namely, the sex, age, or profession of the party who
insists upon the exemption.

Before I quit this subject, I will advert to a ciuious dis-
tinction made by the Roman Law.

The persons, quibus jjermissum est jus ignorare, cannot
allege with efiect their ignorance of the law, in case they
have violated those parts of it which are founded upon the
' jus gentium.'' f For the persons in question are not generally
imbecile, and the jus gentium is tnowable naturali ratione.
AVith regard to the ^h-s civile, or to those parts of the Roman
Law which are peculiar to the system, they may allege with
eflect their ignorance of the law.

This coincides with oiu" distinction between malum pro-
liihitum and malum in se ; and the distinction is reasonable.
For some laws are so obviously suggested by utility, that
any person not insane would naturally surmise or guess their
existence ; which they could not be expected to do, where
the utility of the law is not so obvious. And most men's
knowledge of the law, and even that of lawyers in regard to
matters lying outside their own branch of practice, is mostly
of this kind.

* But queere uheiher equity -n-ill not relieve even against an
executed agreement which has proceeded on a mistaken reading of
a grant of doubtful coiistruction. — Beauchamp v. Winn, L. R. 6 II.
of L. Ap. 223, 234. Here, again, the reason given is that no negli-
gence is imputable. If the doubt had been adverted to, there would
be no relief. For here there would be no error. — Stockley v. Stock-
ley, vt supra. Compare Lord Stair's Inst. i. 7, 9. — R. C.

t Xor (per Labeo) can they allege it, if the law might have been
conjectured, or if they had access to good legal advice. Digest,
xxii. 6, 0.

V

Grounds of Non-Iinpuiability — Prcsmnptions.

241

Before I conclude, I must observe tliat the objection to I.rrr.
laws ex imst facto, is deducible from the general principle XXV".

already explained, namely, that intention or inadvertence ' \ ~

is necessary to constitute an injury. The law was not in toe^"p,^jf'^'"

existence at the time of the given act, forbearance, or omis- f^cto laws,

sion : consequently the party did not, and could not know from ti'e

that he was violating a law. The sanction could not operate ^^''"g •^"°"
as a motive to obedience, inasmuch as there was nothing to
obey.

LECTURE XXYI.

Grounds of Xon-Impntahilifi/. — Digression on Presumptions.

TowAEDS the close of the last Lecture, I showed that
the rule, ignorant ia juris non excusat, was, according to the
Roman Law, subject to certain exceptions, and that those
exceptions both consist with the reason of the general
maxim and serve to indicate what that reason is. I also
observed that these exceptions ultimately rest on the prin-
ciple which it was the main purpose of my Lectiu-e to
explain and illustrate : — and showed that wherever ignor-
ance of law exempts from liability, the ignorance is pre-
sunied to be inevitable, and the party, therefore, to be clear
from unlawful intention and inadvertence.

Lect.
XXVI.

\^^hile I am on the subject of legal presumptions, I shall
digress from the main subject of the Lecture, for the purpose
of giving some explanations for which no other occasion
may arise.

It is absurd to style conclusive inferences, 2'>i'esumptions.
For a presmnption, ex vi termini, is an inference or conclu-
sion which may be disproved. Till proof to the contrary be
got, the inference may hold. On proof to the contrary, it
can hold no longer.

But according to the language of the Civilians (language
wliich has been adopted by some of our writers on e\ideucej,
presumptions are divisible in the following manner.

Presumptions oxq imccsumptiones juris, ot prasumptioncs
hominis. Prccsumptiones juris are inferences drawn in pur-
suance of the preappoiutment of the law. Prcesumptiones
hominis, or presumptions simply so called, are drawn from
facts of which the law has left the probative force to the
discretion of the judge.* ' Prcesumptiones juris, are again

Digression on

tlie differei:t
kinds citprio-
sumptiones
juris.

* It is hardlv necessary to observe that the word 'judge ' is here
used as including the jury, where the assistance of a jury is em-

c42

Pervading Notions analyzed.

divisible iuto iir<eMimptiones juris (simply so called) aud
pr<rsumptioncs juris ct de-jure.

There are therefore three classes of presumptions : jyra-
sumptiones Jiominis, prcpsuntptiones juris, and iirccsumptiones
juris ct dejure*

"Where the presumption is a jvtvsumptio hominis, not
only is proof to the contrary admissible, but the presump-
tion is not necessarily conclusive, though no proof to the
contrary be adduced. For instance : I sue you for o-oods
sold and delivered, and I produce a fact leading- to a pre-
smnptiou that the floods u-ere delivered. Not only is it
competent to the judii'e to admit couuter-evideuce, but to
reject the presmuption as insufficient, though no counter-
evidence be adduced.

Where the presumption is jvccsumptio juris simply, proof
to the contrary is admissible, but, till it be produced, the
presumption necessarily holds. For, here, the law has pre-
determined the probative force of the fact, although it per-
mits the judge to receive counter-evidence. The law, or
the maker of the law, says to the Courts, ' Receive counter-
evidence if it be produced, and weigh the eflect of that
evidence against the worth of the presumption. But till
such counter-evidence be produced, draw from the given
fact the inference which I predetermine.'

Disproved.'

• Kot rroved.

' May pre-

6U1UC.'

Sliall pre-

-UiUC'

• Conclusive
lr:)Of.'

ployed as judiros of facts. We are not concerned at present ■with
the division of functions between i\\a judge in tlie popular sense of
the terra and the jury. — R. C.

* The following provisions of ]\Ir. Stephen's Indian Evidence
Act contain a neat statement of the three classes of presumptions as
acted on by Courts administering justice according to the Euglisli
rules of evidence. — E. C.

' 3. In this Act

A fact is said to be proved when after considering the matters
before it, the Court either believes it to exist, or consideia its exist-
ence so probable that a prudent man ought, under the circumstaace3
of the particular case, to act upon the supposition that it exists.

' A fiict is said to be disproved when, after considering the mat-
ters before it, the Court either believes that it does not exist or
considers its non-existence so probable that a prudent man ought,
imder the circumstances of the particular case, to act upon the sup-
position that it does not exist.

'A fact is said not to be proved when it is neither proved nor
disproved.

' 1. Whenever it is pro'vnded by this Act that the Court may pre-
sume a fact, it may either regard such fact as proved, unless and
luitil it is disproved, or may call for proof of it.

' Whenever it is directed by this Act that the Court shall pre-
sume a fact, it shall regard such fact as proved, unless and until it
is disproved.

' When one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of
disjiroving it.'

Digression, on Presumptions. 243

Where the p7'(esnm>)tio juris is juris et dcjare, tlie law Lect.
predetermines the probative force of the fact, and also for- XXVI.
bids the admission of counter-evidence. The inference """^ ' '
(for it is absiu-d to call it a presumption) is conclusive. That
is to say, proof to the contrary is not admissible. For, all
that is meant by a conclusive proof, is a proof which the
law has made so.

[Presumptionsy;</-i5 ct dejure* (as ■vvell as simple presump-
tions juris) are often founded on verisimilitude. Eat in some
cases tiie fact presumed is highly untruthlike. In such a case the
presumption is commonly called a fiction. These fictions have
been resorted to by the Courts as a means of legislating in-
directly. They •were great favourites of the Roman Law.

It is obvious that in order fully to answer the purpose of
indirect legislation, the presumption must be one juris et dejure.
And the Eoman Lawyers, with their usual logical acuteness,
always made them so. A similar object is often compassed by
fictitious presumptions in Englisli Law. But as our Lawyers
have seldom had the hardihood to accept the logical necessity
of making the presumption _;wris et dejure, this end is attained
very imperfectly. fictions are consequently less rigid and
more plastic in the English Law tlian in the Roman.

For example : Acquisitive prescription is unknown to Iha
English Common Law in its direct form. In other words,
length of enjoyment does not, avowedly and directly, constitute
a title. But in land the mere fact of possession affords a prcB-
surnptio jtiris of a title as owner (i.e. the title technically de-
scribed as seizin in fee). In the case of an casement, a profit
a prendre out of the land of another, and those various rights
called franchises, uninterrupted enjoyment for more than a
certain period affords the presumption of a gratit (the only kind
of title appropriate to these rights). But in none of these cases
is the presumption at Common Law conclusive, unless tho
possession extends to what is called tlie period of legal memory,
that is to the commencement of the reign of Richard I. And,
inasmuch as the proof of this is obviously impossible, no such
presumption is (except by aid of the Statute to be presently
mentioned)_7'Mm et dejure.

To take a typical instance : — A. is in the possession of land.
B. brings ejectment; and in order to succeed, must have what
is called a title. A. has the ordinary advant^ige of a defendant
to put the plaintiff to the proof. Therefore B. must prove a title.
Now suppose B. proves that he is heir-at-law to C, who was in
peaceable possession of the land at his dcaih, and who bv his
will de\-ised it to his wife until her death or second marriage,
remainder to his own right heirs, and that A. got into possession
by marrying the Avidow ; the Court are now bound to presume

* The passage here within brackets, though suggested by matter
contained in Austin, is entirely recast ; anil tlic present editor is
alone responsible for the propositions contained in it. — 1!. C.
u2

244 Pervading Notions analyzed.

that C, being in peaceable possession of the land at his death,
was seized in fee, and that B., as his heir-at-law, is the true
owner. Again, suppose A. now produces a counterpart lease,
by which C. took the land from D. for a term of three lirea
(which have expired) at a peppercorn rent, and offers to prove
that he is heir-at-law to D. : B. objects that A. is estopped from
setting up this title by reason that A.'s possession was merely
a continuance of the possession of the widow, who, coming in
under the will, could not dispute the title of her testator. The
Court would probably give effect to B.'s contention ; and in
that case A. could (if the objection is insisted on) only make
good his title by giving up possession and bringing ejectment
as plaintiff. But if the Court should hold that A.'s possession
was not a continuance of the widow's possession, but a new
possession which did not estop him from disputing her testator's
title,- — or if A., instead of getting possession by marrying the
widow, had come into the possession which had been left vacant
by lier, — then, if A. should succeed in proving his heirship to
D., he would overturn the previous presumptions of law, and
succeed in the proof of title.

In the case of title to land, the presumption raised by posses-
sion, although not a j^ro'sumpf to juris ct de jure, is something
more than a mere prtesumptio juris. The party (whether
plaintiff or defendant) against whom the presumiition is once
established must succeed bj/ the strength of his own title, and
not by the weakness of his opponent' s. And if a party establishes
the fact of peaceable possession, the circumstance that such
possession has been acquired by a wrongful act against a third
party, although this appears on the face of his own evidence, is
of no consequence. The presumption afforded by |?ossc5s/o» in
English law is a weapon of vast importance — of far higher
importance than any system of direct acquisitive prescription.
By its xise (and with the aid of a stringent law of liynitation or
negative prescription) the English Law of landed property, not-
withstanding its many and great defects, is in advance of most
other systems. The so-called p>ositive p>rescription in the Law of
Scotland is commonly elusory, and may fail notwithstanding an
adverse possession for centuries.

Suppose the right in question be an easement. B. proves
that he has for the period of twenty years enjoyed, as appur-
tenant to his lands of Y., a right of way over the lands of X.
belonging to A. The Court now presumes a legal title to the
easement. Before the Statute 2 & 3 Will. IV. c. 71 (1832), tliis
was only a jn-cesumptio juris, and might be defeated, amongst
other ways, by showing that the user commenced at a definite
period before the twenty years. In this one respect the pre-
sumption was extended by the Statute, which enacts that the
claim shall not be defeated merelj- by showing that the easement
claimed was first enjoyed at a time prior to the twenty years.
But if B. had proved continued enjoyment for forty j-ears
immediately preceding the action, the presumption is extended
by the Statute into a presumption juris et de jure, except only

Digression on Presmnptions. 245

if it should appear that tlie enjoyment was had tinder Lect.
a deed or agreement in writing. Only in the easement of XXVI.

ancient lights, a similar statutory presumption ^uri's ct de jure is ^ — ■ '

raised by twenty years' enjoy menr.

Again, suppose the right claimed by B. is a 'profit a prendre
out of the laud of A. What is said as to an easement, sucli as a
right of way, applies to this species of right, changing the
periods of twenty and forty years for thirty and sixty years
respectively.

Now a person may fail in the proof of enjoyment for the
statutory period, not Ly reason of the non-existence of the
servitude as between the dominant and servient tenements, but
Ly reason of the suspen&ion of its exercise, e.g. because, for
some part of the time, the same person was seized in fee of one
tenement, and seized as tenant for life of the other — for if the
same person were at any time seized in fee of both, the servi-
tude would be extinguished. The statutory aid to the pre-
sumption then fails, and the parties are thrown back upon the
presumptions as obtaining at Common Law. It has also been
decided, on grounds which it is difficult to understand, that the
Statute does not apply to rights in gross {Shuttleworth v.
Fleming, 19 C. B. N.S. 687 : 34 L. J. C.P. 309). These, there-
fore, remain as before the Statute. Now the only difference at
Common Law between .such rights ajipurienant and similar
rights 171 gross was that the former might be expressly pleaded
as enjoyed from time immemorial, the latter could only be
pleaded as founded on a grant. But, in the absence of an
actual grant, both eciually depend on presumptions. According
to the theory of Law, a right in gross, being itself a tenement
of an incorporeal nature, can only be constituted by a substan-
tive grant of the right. Eights appurte7iant are in one of two
conditions. Either they have been, at some time, granted by
the proprietor of the servient tenement or they have been
enjoyed as appurtenant to the dominant tenement for the time
of legal memory, in which case the presumption {juris et dejure)
arises that they were included in the ' Tenendas ' clause of some
grant or charter of the dominant lands before the time of
Richard I. For instance, the presumption arising from long
enjoyment is rebutted if it is shown that, at some period within
legal memory, the exclusive right to the profit in question
existed as a separate tenement, i.e. as itself the subject of a
Bubstantive grant.

Again, suppose the right claimed to be a franchise, as a
right to levy a toll. Here the presumption is raised by proof
of enjoyment for a period which is indefinitely described as a
' very long time,' and M-hich would probably be not less than
forty to sixty years, according to the species of facts proved.
But the presumption may be rebutted by any circumstance
ehoM'ing that the enjoyment did not in fact extend back to the
time of Richard I., and could not have been acquired by grant
at any time since ; or that the right claimed is such as cannot,
against the defendant, legally exist : e.g. B. claims a toll upon

246

Pervading Notions analyzed.

Considera-
tion of the
exemptions
from liability-
resumed.

3. Infancy
BUd Insanity.

all goods passing through a certain to'wii, and demands it from
A., a railway company acting as carriers of the goods. But tho
company show that every inch of the road along which the
goods are carried is rested in them as 0"wners pursuant to the
Acts of Parliament under which they are constituted. The
company succeed in their defence, it being inconsistent with
the dominium established in them to pay toll for goods carried
by them over their own land (Brecon Markets Cori pany v.
Neath and Brecon Eailway, L. K. 7 0. P. 555; 8 C. P. 157).
Sometimes the franchise arises from a grant, or may, by a
truthlike presumption, be inferred so to arise. In that case it
is, properly speaking, a tenement. But sometimes this pre-
sumption would be' so untruthlike that we say there is a
presumption^not of a grant, but — of a legcd origin prior to the
time of Eichard I. For instances, see the case of a marriage
ie&— Bryant y. Foot, L. E. 'o Q.B. 497. The right to dredge for
oysters — Foreman v. Free Fishers of Whitstable, L. K. 4. H. of L.
Ap. 276.— E. C]

Reverting to the subject from wliicli I liave digTessed,
namely, the exceptions to the principle ignorantia juris non
excusat, I shall touch on a few to which I did not advert
in my last Lecture.

Au infant or insane person is exempted from liability,
because it is inferred from his infancy or insanity that, at the
time of the alleged wrong, he was not capable of unlawful
intention or inadvertence, inasmucb as he neither knew the
law, nor was able to apply the law as a guide to bis conduct.
That this is the ground of the exemption, appears from this
consideration. If the infant was doll ccipax (or was con-
scious that his conduct conflicted with the law), his infancy
does not excuse him. And this capacity may be established
by evidence appropriate to the nature of the case. And if
the alleged wrong was done in a lucid interval, the fact is
imputed to the madman. In the case of an infant under
seven years, the inference of incapacity, according to the
Roman Law, and (semble) according to our own, is a pre-
sumption 7 «r/s ct de jure. This is a presmnption probably
well founded in fact in most cases. And it is made con-
clusive in cdl, on account of the little advantage which
could arise from the legal punishment of a child in any
instance whatever.

Infancy or insanity is therefore a ground of exemption,
partly because the party was ignorant of the law, or is pre-
sumed to have been ignorant of the law. This does not
contradict what I before said, that in English law igno-
rance of the law is not (per se) a ground of exemption. For
in the case of insanity or infancy ignorance of law is only
considered as one ground of the exemption in company with
other grounds from which it is impossible to sever it in the
paiticular cases.

Grounds of Noji-Ivipiitabilily,

247

lu the En^-lisli La^Y, drunlieuuess is not au exemption. Lrc r.
In criminal cases, never : uor in civil cases when the grovmd XXVI.
of the liability is of the nature of a delict : but a party is at ~ ' '
times released from a contract -winch he entered into when f,c5s' "in'some
drunk. In the Roman Law, drunkenness was an exemption systems oi
even in tlie case of a delict ; provided the drunkenness itself
was not the consequence of unlawful intention : if, for in-
stance, I resolve to kill you, and dvinlv in order to g'et pluck,
according- to the vulgar expression, the mischief is ulti-
mately imputable to my intention. lu all other cases, di'unk-
enness was a ground of exemption in the lloman Law.

The idtimate gTound of t'his exemption is the same as
in the case of insanity or infancy. The party is unable to
remember the law if he knew it, or to appreciate distinctly
the feet he is about, so as to apply the law to guide hki
conduct.

"Where drunkenness which is not itself the consequence
of unlawful intention is not a ground of exemption, the
party, it is evident, is liable in respect of heedlessness. He
has heedlessly placed himself in a position, of which the
probable consequence •s\dll be the commission of a wi'ong.

Another ground of exemption is sudden and furious anger.
In English Law, this is never a ground of exemption : in
Roman Law it is (provided it is such as to exclude all con-
sciousness of the unlawfulness of the act), for the same rea-
son as drunkenness and insanity.

Where the party is answerable for au alleged wrong done
in furious auger, the reasoning is the same as in the case of
drunkenness. He is guilty, not in respect of what he has
done in furious anger, but in respect of his having neglected
that self-discipline, which would have prevented such fiu'ious
fits of auger. On similar grounds, imperitia, or want of skill,
is the soiu'ce of a common case of liability, botli in our own
and in the Roman Law^ Pretending to practise as a phy-
sician or as a sm-geon, I do harm to some person : in the
particular case I attend with all my slrill, and the mischief
is not iiuputable to unlawful intention or inadvertence at
that time, but to neglect of the pre-\-ious duty of qualifying
myself by study for the profession I all'ect to exercise.

Liability for injuries done by third parties, is ascribed
justly by Mr, Bentham to the same cause. I am liable for
injm-ies done by persons whom I employ,* because it is

5. Sudden
ar.d furious
anger (in
some sya-
tcius).

* An exception lias, in English and Americnn law, been made
to this liaLility, where the injured person is a servant in the employ
of the same master as the sevvant by whose act the injury ensues.
This is stated to be on the ground of an implied term in the con-
tract of service, that the servant undertakes the risks ^incident to
the employment,^ and contemplates the negligence of a fellow-servant
as one of suchrisks. The Court of Session in Scotland long struggled
against this implication, but their judgment was overruled on ap-

248

Pervading Notions analysed.

AD llToglcal
distinction
In Roman
Law between
delicts and
yaasi-delicts.

Hjounds of
fc*eniption
liOt dereiid-
itt:; on the
Vciegoing
principle.
1. Physical
compulsion.

J Extreme
terror.

generally iu my power not to employ persona of such a cha-
racter, or to form them by discipline and education so as to
be incapable of tlie commission of wrong. Tlie first reason
applies to a man's servants, the last to his childi'en. The
obligation is peculiarly strong in the Roman Law, because
of the great extent of the pcdria potest as : by reason of which
it probably was in the power of the lather not only to form
the character of his child by previous discipline, but in most
cases to prevent the specific mischief by specific care.*

Before I quit the subject, I shall remark on a distinction
which is made by the Eomau Lawyers, and whiclvappears to
me illogical and absm-d : (a rare and surprising thing iu the
Roman Law). I mean the distinction between delicts and
quasi-delicts. From the capricious way in which they ar-
range offences imder these two heads, I cannot discover any
gTOUud for this distinction.

The iinperitia for instance of a physician is a delict ;
but the impriuhntia of a judge, who is liable in cei-tain
cases for erroneous decisions, is a quasi-delict. The ground
of the liability in these two cases is precisely the same.
The guilt of the party in both cases consists iu taking upon
himself the exercise of a function, without duly qualifying
himself by previous preparation. And as the right violated
is in both cases a right in rem, the offence is properly a
delict. This distinction, therefore, appears to me to be
gTOundless ; though I draw such a conclusion with diffi-
dence, when it refers to any distinction drawn by the Roman
Lawyers, whose distinctions I have foimd iu ahnost every
otiier case to rest on a solid foundation.

The party is exempted in some cases in which the sanc-
tion might act on his desires, but in which the fact does not
depend ou his desires.

Such is the case of physical constraint. In this case, he
may be conscious of the obligation, and fear the sanction :
but the sanction would not be eflectual if applied, because
it is impossible for him to perfonn the obligation.

There is still another case which is distinguishable from
this ; in which the sanction might operate ou the desu-es of
the party, might be present to his mind, and the performance
of the duty might not be altogether independent of his de-
sires ; but the party is affected with an opposite desire, of
a strength which no sanction can control, and the sanction
therefore would be ineffectual. Such for instance is the case
in which a party is compelled by menaces of instant death

peal in the Barton's-hill Collierv case, 3 Macq. 266, 300. See also
Feltham v. England, h. R. 2 Q. B. 33 ; AVilson v. Jlerrv, L. R. 1 H.
ofL. Sc. 321 ; Gregorv v. Hill, Court of Session, Dec U, 18G9,
8Macph.282.— II. C.

* ^ee Pothier, ' Traite des Obligations,' Part II. ch. vi. sec. viii.
Art. II. § 5. (-104;.

' Sanction! 249

to commit wliat would otheiTNise be a crime. Tlie reason is Lect.
that 1 am urged to a breach of tlie duty by a motive more XXVI.
proiimate and more imperious thau any sanction which the "~ ' ^
law could hold out: and as the sanction therefore would not
be operative, its iutliction would be gratuitous cruelty.

1 believe that all these exemptions, except the two last ^he so-caiied
mentioned, may be explained on the principle so often re- not properly
ferred to, namely, that the party neither was conscious, nor but'cases'to
could be conscious, that he was violating his duty, and conse- ^^hicu the
qiiently the sanction could not operate on his desires. It would g;rt?on docs
indeed be more con-ect, instead of speaking of exemptions ""t^^ppiy.
from liability, to say, that they are cases in which the parties
are not obliged ; cases to which the notion of obligation,
and therefore of injury, cannot apply, because the sanction
coidd not be operative. The sanction would be iuetlectual,
either as not operating on the desires, as in the five hrt-t-
mentioned cases, or as operating upon them in vain^ as in
the two cases last mentioned.

LECTUEE XXVII.

Different Kinds of Sanctions.

Having endeavoured to explain the essentials of luju- Lkct.

nes and Sanctions, and, therein, to illustrate the natm-e of XXVII.

obligations or duties, I w ill now advert to the more import- ' ■
ant differences by which sanctions are distinguished.

And, first ; Sanctions may be divided into civil and cri- sanctionB
viinal, that is, mto jmvate and jnthlic. criminal.

As I remarked in a former Lecture,* the distinction be-
tween private and public wrongs, or civil injiu'ies and crimes,
does not rest upon any diflerence between the respective ten-
dencies of the two classes of offences : All wrongs being in
their remote consequences (/enerally mischievous : and most
of the wrongs styled public, being i/nmcdiciteli/ detrimental
to detenninate persons.

But in certain cases of wrongs which are breaches of re-
lative duties, the sanction is enforced at the instance or dis-
cretion of the injm'ed party. In these cases, the injmy and
the sanction are styled civil, or private.

In other cases of wi'ongs which are breaches of relative
duties, and in all cases of wrongs which are breaches of ab-
eolute duties, the sanction is enforced at the discretion of the

• Lecture XVII. p 196, ante.

H3 *

250 Pervading Notions analyzed,

Sovoreio-n or State. It is ouly by tlic sovereign or state tliat
the liability incurred by the wrong-doer can be remitted.
And in every case of the kind, the injmy and the sanction
may be styled criminal or jniblic*

The distinction, as I have now stated it, between civil
injuries and crimes, must, however, be taken with the fol-
lowing explanations.

1st. In certain cases of civil injury, it is not competent
to the injured party, either to pursue the offender before the
tribunals, or to remit the liability which the offender has
incurred. For example. An infant who has suffered a wrong-
is not capable of instituting a suit, nor of renouncing the
right which he has acquired by the injury. The suit is in-
stituted on his behalf by a general or special Guardian : who
(as a trustee for the infant) may also be incapable of remit-
ting the offender's liability.

It would, therefore, be more accurate to say, that where
the wi'ong is a civil injmy, the sanction is enforced at the
instance of the injured, or of his representative.

2ndly. AVhen I speak of the discretion of the sovereign
\f or state, I mean the discretion of the sovereign or state as
exercised according to law. For, by a special and arbitrary
command, the sovereign may deprive the injured of the right
arising from the injury, or may exempt the wrong-doer from
his civil liability ; ej/., by issuing letters of protection to
debtors to secm-e them from the pursuit of their creditors.
In cases of this kind the sovereign partially abrogates his
own law to answer some special purpose. This is never
practised by wise governments, whether monarchical or
other. The Great Frederick, in spite of his imperious tem-
per and love of power, always conformed his own conduct
to tis own laws.

Letters of protection were granted in this country by the
King, so late as the reign of William IILf These must
have been illegal. For though the King is empowered by
the Constitution to pursue and pardon criminals at his own
discretion, it is not competent to him to disregard the law
by depriving tlie injured party of a right of civil action.
In an analogous case, this has, however, been done by the
Parliament. A person named Wright sued a number of
clergymen for non-residence : J and though he had been en-
couraged to bring these actions by the invitation of the ex-
isting law, Parliament passed an Act indemnifying tlie
clergymen, and put oft" poor AVright with the expense of
the actions which he had brought.

* See distinction between Civil Injuries and Crimes, in Lecture
XVII., ' On Absolute Duties,' p. 19G, anta.

t See the case of Lord Cutts, 3 Lev. 332.

j Some of these cases are reported in Taunton, vols. v. and vi.
I presume the Act referred to ii 57 Geo. III. c. 99. — K. I\

' Sanction' 251

The distinction between private and public wrongs, is Lkct.
placed by some on another ground : XXVI r.

Where, say they, the injury is a crime, the end or scope ' J "^
of the sanction is ^q 'prevention of future injuries. Where \f
the injury is civil, the end of the sanction is redress to the
injured party.

Now, it is certainly true, that where the injury is treated
as a crime, the end of the sanction is the prevention of
futm'e wrongs. The sanction '\?. pana 0^ pimishment (strictly
so called) : that is to say, an evil inflicted on a given of-
fender by way of example or warning, or, to use the word
commonly used by Latin writers, and more especially by
Tacitus — documentnm. If the evil did not answer this pur-
pose, it would be inflicted to no end.

It is also true, that where the injmyis deemed civil, the
proximate end of the sanction is, generally, redress to the
injured. But, still, the difference between civil injm'ies and
crimes, can hardl}' be found in any difference between the
ends or purposes of the corresponding sanctions.

For, first ; although the proximate end of a cinl sanc-
tion, is, commonly, redress to the injured party; its remote
and paramount end, like that of a criminal sanction, is the
prevention of oflences generally. And, secondly ; an action
is sometimes given to the injured party, in order that the
WTong-doer may be visited with i^unishincnt, and not that
the injured party may be redressed. Actions of this sort
(to which I shall presently revert) are styled jyenal : In
the language of the Eomau Liavf, 2}cencs 2}e)'secutoncc, These
propositions I will endeavour to explain.

It is clear that the necessity of making redress, and of
paying the costs of the proceeding by which redress is com-
pelled, tends to prevent the recurrence of similar injuries.
The immediate effect of the proceeding is the restitution of
the injiu'ed party to the enjoyment of the violated right, or
the compulsory performance of an obligation incumbent
upon the defendant, or satisfaction to the injured party in
the way of equivalent or compensation. But the proceeding-
also operates in tcrrorem.

Accordingly, a promise not to sue, in case the promisee
shall wrong the promisor, is void (generally spealdng) by
the Eomau Law : although it is competent to a party who
has actiudhj sufiered a wrong, to remit the civil liability in-
cm-red by the wrong-doer. And the reason alleged for the
prohibition is this : that such a promise removes the salu-
tary fear which is inspired by prospective liability.

In short, the end for which the action is given is double :
redress to the party directly affected by the injmy, and the
prevention of similar injuries.

Assimiing, then, that the redress of the injured party is
always one object of a civil proceeding, it cannot be said

252

Pervading Notions analyzed.

Laws sonie-
liiiics sanc-
tioned by
nullities.

Vicaifoiis
•::iaiiigiimciit.

lliat civil aud crimiual sanctions are distiuguislied by t-lieir
oiids or piu'poses.

It may, however, be tirged, that tlie prevention of future
iiijimes is the sole end of a criminal proceeding: ; whilst the
end of a proceeding' styled civil, is the prevention of future
injuries and the redress of the injured. But even this will
scarcely hold. For in those civil actions which are styled
jienal, the action is given to. the party, not for his own ad-
■\-antage, hut for the mere pm-pose of punishing the wrong-
doer : e.g., the power of imprisonment reserved under the
Acts of 1860, under which imprisonment for de'^jt was os-
tensibly abolished. The express or ostensible object of the
reservation is to punish the debtor in certain cases, although
it may be, and, doubtless, commonly is, used as an indirect
means of obtaining redress. To the same category may bo
referred the cases where a trustee in banki'uptcy under the
Act of 1869, is ordered to prosecute.

In the Roman Law, actions of this kind are numerous.

For example ; Theft in the Roman Law is not a crime,
but a private delict ; But besides the action for the recovery
of the thing stolen, the thief was liable to a penalty, to be
recovered in a distinct action by the injured party.

So, again, if the heirs of a testator refused to pay a
legacy left to a temple or church, they were not only com-
pelled to yield ' ipsam rem vel pecuniam quae relicta est, sed
aliud, pro pQ'H(f.'

Although by these civil actions a right is conferred upon
the party injured, the end for which the actions are given 13
not to redress the damage which has been suffered by him,
but to punish the wrong-doer, and by that means to prevent
future wrongs. Also popular actions, or actions given
cuivis ex pojndo, which exist both in the Roman and
English Law, evidently have the punishment of the of-
fender for their object.

Besides this principal distinction, there are other species
of sanctions requiring notice. Laws are sometimes sanc-
tioned by nullities. The legislature aunexes rights to cer-
tain transactions ; for example, to contracts, on condition
that these transactions are accompanied by certain circum-
stances. If the condition be not observed, the transaction
is void, that is, no right arises ; or the transaction is void-
able, that is, a right arises, but the transaction is liable to
be rescinded and the right annulled, provided the means of
doing so have not become too complicated, by reason of the
acquisition through the transaction of rights in favour of in-
nocent parties.

In certain cases, sanctions consist in pains to be endured
by others, and are intended to act on us through svmpathy.
These Bentham has styled vicarious punishments. For-

I

Sanction^

253

feitiu'e, in ti'eason, is au instance. As it falls upon a person
•ubo by the supposition is to be lianged, it is evident that
it cannot afiect him, but it affects those in whom he is in-
terested, his children or relations, and may possibly, for that
reason, influence his conduct. Annulling a marriage has in
part the same eilect, since it not only alTects the parties
themselves whose marriage is annulled, but also bastardises
the issue.

Sanctions, in some other cases, consist of the application
'of something not itself aH'ecting us as an evil in itself, but by
way of association. Posthumous dishonour in the manner
of burial in case of suicide is of this nature. This, of course,
can only operate upon the mind of the party by association,
since at the time when he is bmied he is not conscious of the
manner of his burial.

Lect.

xxvir.

I now advert to
sanction.

the various meaninos of the word

Various
meanings
and etyn:o-

As it is at present used, it has the extensive meaning logy of the
which I have attached to it, and denotes any conditional tion.
evil annexed to a law, to produce obedience and conformity
to it. But the tenu sanction is frequently limited to punish-
ments under a criminal proceeding. This is the sense in .
which the word is used by Blackstone, though not con- /
sistently. "With the Roman lawyers, who adopted the
term from the popular language of their own country, sanc-
tion denoted, not the pain annexed to a law to produce
obedience, but the clause of a penal law which detei-mines
and declares the pimishment.

In the Digest the etymology of the word is said to be
this : Sanctum is defined quodab injuria hominiun defensum
est, and is said to be derived from saymina, the name of cer-
tain herbs which the Roman ambassadors bore as marks of
inviolability. The term was transferred, in a manner not
uncommon, from the mark of inviolability, to wliat is fre-
quently a cause of inviolability, namely punishment.

In other cases sanction signifies confirmation by some
legal authority. Thus, we say that a Bill becomes law when
sanctioned by Parliament, or that it receives the Royal sanc-
tion. The term is often used in this sense by the Roman
lawyers.

Sanctio is also used to denote generally a law or legisla-
tive provision, or to denote the law or body of law collec-
tively. Thus, in the beginning of the Digest, tofam Romanam
Sanctionem is used for the whole of tlie Roman law. Sancire
means to enact or establish laws. These last two meanings
are also instances of the transference of a term by way of as-
sociation to a secoudarv sense.

PABT II.

LAW IX EELATIOX TO ITS SOURCES

AND TO THE

MODES IN WHICH IT BEGINS AND EN-OS.

Part II.

Meanings of
tlie phrase
' Sources of
tlie law.'
1. The direct
or immediate
author of the
law.

4

2. Tlieoarliest
doinimonts
by ■wliicli tlie
existence of
law is evi-
Aeuced.

LECTUIIE XXVIII.

On the Various Sources of Laio.

In" mauy legal treatises, and especially iu treatises vrhicb
profess to expound the Roman law, that department or divi-
sion which regards the oric/in of laws, is frequently entitled
' De juris fontibus.' The ex-pi-esaionfontes juris, ov sources o?
law, is of course metaphorical, and is used in two meanings.

In one of its senses, the source of a law is its direct or
immediate author. Now the immediate author may either
he the sovereign (who is the ultimate author of all law) or
a person or body legislating in subordination to the sove-
reign. In the latter case it is an improper use of the
metaphor to describe the immediate author as the source.
Individuals or bodies legislating in subordination to the
sovereign, are more properly reservoirs fed from the source
of all law, the supreme legislature, and again emitting the
borrowed waters which they receive from that Fountain of
Law, For convenience, however, I adopt the expression
sources of law as meaning the authors from whom it emanates
immcdiatehj.

In another acceptation of the term, the fountains or
sources of laws are the origincd or earliest extant monu-
ments or documents by which the existence and purport of
the body of law may be known or conjectured.

Taken iu this acceptation, the foimtaius or sources of
laios are properly sources of the hnoidedge which is cou-
A'ersant about laws : ' fontes e quibus juris notitia hauritur.'

Speaking generally, the extracts from the classical jurists
contained iu Justinian's Digest, the Imperial Constitutions
contained in his Code, and such other relics of antiquity as
regard the Roman law, are the earliest extant evidence for
the several parts of the system to which they respectively
relate. These, therefore, are ' fontes.'

But the works of the Glossators and Commentators who
wi'ote iu the Middle Ages, with the works of Civilians who

I

Written and Umvrittcn Laiv.

255

have written in subser^uent periods, are not foimtaius or
eources of that knowledge of tlie system wliicli may be
gotten at the present horn'. For the countless authors of
those countless volumes derived their own knowledge of the
Roman Law from ancient docmnents or monimieuts w'hich
are still extant and accessible. Their works are accordingly
called by German writers ' literaiura,^ as distinguished from
^ fontcs'' juris.

And so, (in regard to the Enr/lish law,) the statutes, the
reports of judicial decisions, w^ith the old and authoritative
treatises which are equivalent to reports, may be deemed
sources (in the sense last-mentioned) of English jurisprud-
ence ; whilst the treatises on the English law, which merely
expound the matter of those statutes and reports, are not
som-ces of English jurisprudence, but are properly a legal
literatm-e di'awn or derived fi'om the sources.

Law written
and un-
written.
As under-
stood l)y llie
modem
Civilians.

Law considered with reference to its som-ces, is usually
distinguished into law written and unwritten.

The distinction betw^een written and unwi-itten law in
the sense in which the terms are employed by the modern
Civilians, is this : Written law is law which the supreme
leg-islatm-e makes immediately and directly. Unwritten law
is not made directly and immediately by the supreme leois-
latm-e, though it owes its validity, or is law by the authority,
expressly or tacitly given, of the sovereign or state. How
the plebs or the senate came to be held equivalent to the
populus assembled in centuries will be considered in a sub-
sequent part of this Lectm-e.

As I shall show presently, the terms written and tin-
zvritten, as used to mark this distinction, are inappropriate
and misleading. But as they have been accepted in this sense,
not only by the modern Civilians, but in some respects by
Hale and Blackstone, I find it convenient for the present not
entirely to discard them, but I distinguish this their im-
pjropcr meaning from the grammatical one by calling it the
juridical meaning.

By the Roman Lawyers themselves, little importance
was attached to the distinction between wi'itteu and un-
written law. And, in every instance in which they take
the distinction, they understand it in its literal sense. When
they talk of written law, they do not mean law proceeding
directly from the supreme Legislatm'e, but law which was
committed to writing at its origin : quod ah initio Uteris
viandatum est. Law not so committed to "writing, they
call unwritten. When I revert to this meaning of the
terms, I shall call it their grammatical meaning.

The distinction between wiitten and unwritten law, in ^^wriom^
what I have called the imidical meaning of the terms, is law, accord-

Tlils meaning
o£ wriUeii
and un-
written as
applied to
law I call
l\\e juridical
meaning ot
llie terms.

Written and
unwritten
law, as under-
stood by the
Roman
Lawyers.

2S6

Laiv : Sources and Modes.

Part II.

Ingto the ira-
liroper and
juridical
jneaniiig of
the terms, is
an important
distinction.

The distinc-
tion stated in
appropriate
tcrius.

Examples of
laws made di-
rectly by the
sovereign.

1. Acts of the
British Par-
liaiiieut.

2. Ordinances
inadc hy the
Et.-.ts-Gene-
raux in old
France, while
they sub-
sisted, and by
the Kinir
afterwards.

3. The leges,
plebiscita,
and senatus-
cotisiilta lit
the Konians.

important. But, as I have abeady indicated, nothing can
be less significant or more misleading than the terms written
and umvriften as thus applied. For, first, law, though it
originate with the supreme legislature, may be, and in many
nations has been, established and published without writing.
And law flowing from another soiu'ce, though obtaining as
law with the consent of the supreme legislature, may be
committed to writing at its origin. Such, for instance, are
the laws of Provincial and Colonial Legislatm-es. And
such especially (as I shall show hereafter) were the Edicts
of the Prpetors.

Law.?, then, are distinguished, in respect of their imme-
diate authors, into laws made directly and immediately by
the supreme legislatui-e, and laws not made directly and
immediately by the supreme legislature, although they
derive their validity from its express or tacit authority. I
shall now proceed to give examples of these two kinds of
laws.

An example of laws made by the sovereign body directly
and immediately, is that of our own Acts of Parliament,
which are made directly by the supreme legislatiu'e in its
three branches, the King, the House of Lords, and the
House of Commons.

Another example is that of the enactments passed by
the Etats-Generaux in France, while that body continued
to exist and to be recognized as the supreme legislatm'e.
When the Kings of France became constitutionally the
sovereigns, or when the French Government became a
monarchy, the royal ordinances were laws of the same land.

In Rome under the Commonwealth, or libera republica,
laws established by the supreme legislature were of three
kinds : there were three distinct bodies whose decrees were
considered as made by the sovereign or supreme legislature.
These were, 1st— ihe popiil its assembled in curies, according
to the most ancient form, or, according to the manner sub-
sequently introduced, in centuries ; 2ndly, the 2^i6bs, as-
sembled in tribes ; and 3rdly, the senate.

Strictly speaking, the sovereignty resided in the j^opulus ;
which included every Roman invested with political powers,
and therefore included members of the senate, as well as
citizens who were not senators. To laws made by the ^w-
2ndus (whether assembled in curice, according to the more
ancient manner ; or in centuries, according to the more
recent fashion), the term ^ leges ^ or 'statutes' (when used
with technical exactness) was exclusively applied. But
they were commonly styled, for the sake of distinction, 'Legei
curiatcB ' or * Leges centiwiatcs.'

The plels (as distinguished from the senate) included all
citizens of plebeian birth who were not senators.

The senate (as distinguished from the plehs) included all

]Vrittcn and Uiiivrittcn Laiv. 257

citizens of patriciau birth, and also all citizens of plebeian
birth ■«lao iilled or had filled certain of the higher offices,
as the consulship or the office of praetor.

The distinction between ;;fff/7c/fm vin^ phhtian^ and the
distinction between senate and plebs, were therefore disparate.
For, althouph every patrician seems to have been a senator,
many of plebeian birth sat and voted in the senate.

A law passed by the ^jMs was styled in accurate lau-
<:'.iage, aplebiscifuvi. But as e\ery j}lebiscit urn was equiva-
lent to a li'.r, the term * le(/es'vri\s extended improperly from
laws made by the iiopulus to laws made b)^ the ^j^eis.

llo-vf pilehiscita acquired the force of leges it is not very
easy to determine. For Xlie phis was only a portion of the
whole Eoman People, and therefore was not the body where-
in the sovereignty resided. It seems not unlikely, that the
2)lehs (instigated by their Tribimes) assumed the power of
legislating for the whole community : and that the senate
(too feeble to resist) yielded, after a struggle, to the iincon-
stittitional pretension. Gains tells us expressly, that the
senate at tiist refused to recognize p)lebiscita as leges
generally binding ; but that the force of leges was at
length imparted to 2^^<-'i"'s<-ita through a law passed by the
pojndiis.*

Laws passed by the senate (which were styled senatus-
consulta) were also equivalent to leges made by the assem-
bled ^j»o^>w^i(s.

It has often been inferred from a passage in Tacitus,
that consults or acts of the senate first acquired this virtue
under the reign of Tiberius. But they are distinctly placed
by Cicero (writing libera rcpublicd) on a level with leges and
plebiscita. Nor is there here the slightest difficulty. For,
since the tribunes of the plebs sat in the senate, and by
simply uttering their veto might have arrested its proceed-
ings, it follows that a consult of the senate was passed with
the coucuiTeuce of the ^j/eis, assenting to the act by its re-
presentatives.

The result then seems to be this :

Libera republicd, or, during the Commonwealth, the su-
preme legislative power resided in the Eoman People (in-
cluding tlie senate auA pdebs).

This legislative power was sometimes exercised by the
people, as collected in a single assembly. At other times,
it was exercised by the same people as divided into two
bodies: — namely, by ike plebs, with the concm-reuce of the
senate ; or by the senate, witJi the concurrence of the ^j/e6s.
If om- House of Lords and House of Commons sometimes
eat and voted in one assembly, and sometimes separately as
at present, they would affiard an exact parallel to the manner

* Gaii Comm. I. 3.

25S Laiu : Sources and Modes.

Part II. iu wliicli the sovereis'uty Tvas diyided iu the Roman

"~" ' ' Republic. Acts passed by tlie two bodies assembled in one

bouse, would correspond to lege^ curiatcs and centuricrta ;
acts originating in the one House, and adopted by the other,
would be j)lebiseita or senatus-consulta. The only difficulty
in this explanation is, that the equestiian order, although
of com'se members of the jjojndus, were not members either
of the senate or ^jZeJs, Enactments passed by one of those
bodies with the concui'reuce of the other were therefore not,
strictly speaking, acts of the entire populus ; though acta of
the populus, united iu curice or centuries^ were so.

AMiile, then, the Roman Commonwealth yiiluaUy ex-
isted, law created iuuiiediately by the supreme legislatm-e
was established in three modes : — by ler/es, or statutes,
strictly so called ; by iilebiscita, also styled leges ; and by
senatus-consulta.

Lex, it must be observed, is never used as a generic
term for law, but is invariably applied to a particular lata
4. The con- of the species we should term a statute.
the Roman After the destruction of the Commonwealth and the es-

Bmperors. tablishment of the Empire, the supreme legislative power,
though it virtually resided in a monarch, was long exercised
to appearance iu the ancient and constitutional modes.
Laws were stiU made by the populus, 2}lehs, or senate, al-
though those bodies were obedient instnmieuts of the
Emperor, and legislated at his suggestion, or at the sugges-
tion of his creatm-es. As assemblies of the populus or p)lelis
were the less commodious tools, the work of supreme legis-
lation was commonly done to appearance by the smaller and
more manageable body. The laws which really emanated
from the military chief of the Empii-e, were usually voted
by the senate wf the instance of the prince, Q dA orationem
priucipis,') and were published as senatus-consulta.

And here it may be observed that the only constitutional
title of the chief of the state was Princeps, an honorary
title given to the most promiuent member of the senate, and
holding in that body a precedence and pre-audience some-
what lilie that accorded by courtesy to the Lord Chancellor
in om- own House of Lords. The head of the state, though
really despotic, was by fiction nothing more than p)nn(!eps
senaius; he was never called emperor (iniperator), which
was a mere militaiy title and denoted general ; except when
he was considered as chief of the army. Princeps is the
title invariably given by Tacitus.

From the accession of Hadrian, and perhaps fiom an
earlier period, the Emperors openly assumed the supreme
legislative power which they had before exercised coverth'.
Instead of emitting their laws thi-ough the j^opulus, plebs, or
senate, they began to legislate avowedly as monarchs and

IVri^U/i and Univrittcn Lazv.

259

a itocrators, and to notify their commands to tlieir suLjects
iu Imperial Goiwtitutions.

These imperial constitutions Qprincipum placket) were
general or special.

By a General Constitution (cdictum, lex edictalis, epistola
generalis) the emperor or prince, acting in his legislative
capacity, established a law or rule of a universal or general
character, and not regarding specifically a single person or
case. It is necessary to add the latter and negative cha-
racter, because the kind of special constitution called a
jmvilegium, althoug-h it specifically regards a single person,
does sometimes {e.g., where it consists in conferring a mo-
nopoly) lay a command w^on jyersons (jenerallij.

Special constitutions were of various kinds, hut agreed iu
this : that they regarded specifically single persons or cases.
One land of special constitution was called an extraordinaiy
mandate ; and was an order addressed to a civil or military
cflicer, for the regulation of his general conduct in the ex-
ecution of his office, or even for the regulation of his con-
duct on a particular occasion.

By a Special Constitution of another class, the Emperor
conferred on some single person some anomalous or irregu-
lar right, or imposed upon some single person some anoma-
lous or ii'regular obligation, or inflicted on some single
person some anomalous or in-egular punishment. Such
constitutions were styled primleciia. When such jmvilefiia
conferred anomalous rights, they were styled favorable.
When they imposed anomalous obligations, or inflicted
anomalous punishments, they were styled odiom. An act
of the British Parliament giving to the inventor of a ma-
chine an exclusive right of selling it, would be styled in the
language of the Eoman Law ' a favorable pri-s-ilege.' An
Act of Attainder would be styled in the same language ' an
odious privilege.' The word difiers from om' use of the
word 'privilege' in this — that the English word is applied
to the ricjlit conferred instead of to the Ictw imposed, and is
confined io favorable privileges.

A third class of these Special Constitutions, and the
most important and remarkable, consisted of those decretes
and rescripts which were made by the Emperors iu their
quality, not of sovereign legislators, but of sovereign judges ;
a decrete being an order made on a regular appeal from the
judgment of a lower tribunal ; and a rescript being an order
preceding the judgment of the lower tribunal, and instruct-
ing that lower tribunal how to decide the cause. For sove-
reignty includes the judicial as well as the legislative power :
and although in modern Eiu-ope the judicial power resid-
ing in the sovereign is commonly delegated by him to indi-
■\-iduals called j udges, the Eoman emperors were themselves
judges in the last resort

General Con-
sUtutions.

Spcrial Con-
ftitutiniis.
((() Extra-
(irdinary
niaudate.

(6) Privilegia.

V

(c) Decreta
and rescripts.

26o

Laiv : Sources a? id Modes.

Part II.

Examples nt
):iw not made
directly by
the sovereign
or supreme
legislature.

Acta of the
liovevnor-
(Jeiieral o£
India in
Couucil.

Colonial
Legislatures
not merely
subordinate.

(2) Bye-laws
made by

collegia or
corporate
bodies.

(3) La^va
made In tlie
way of direct
legislation by
Courts of
Justice.

Ilaviug now given examples of law made directly and
iinmediately by the sovereign, I proceed to examples of law
voi made directly and immediately by tlie sovereign, al-
tliougb it exists or obtains as Imo by the express or tacit
authority of the supreme legislature.

And, first, laws made by subordinate legislatures, in the
direct or legislative manner, are not established immediateh/
by the supreme legislature, although they derive their force
from the authority of the sovereign.

Such are Acts passed by the Governor-General of India
in Council under the authoritv conferred bv tlie British
Parliament by the Act of 1833 (3 and 4 Wm. IV., c. 85), an
authority which Parliament still permits to be exercised. For
not only is the right of Parliament to legislate for India ex-
pressly reserved by that Act, but it is undoubted that the
authority of the British Parliament is in all respects para-
mount in India, although it is accustomed (with rare excep-
tions) to delegate all the sovereign powers relating to India
to subordinates. The case is different in some of oiu" more
important colonies, for instance in Canada. By an Act in
the year 1840 (3 and 4 Vict. c. 35) the British Parliament
irrevocably conferred full powers of legislation for Canada
(subject only to a veto reserved to Her Slajesty in Council)
on the Legislatm'e of the Dominion constituted by that Act.
And no one supposes that the British Parliament have the
power, even if they had the wish, to resume the initiative
in legislation for Canada. This does not contradict what
has been already said as to the sovereign power being in-
capable of legal limitation (p. 105 supra). For the British
Parliament is not sovereign in Canada, although it retains a
Bhare in the sovereign power. And although the British
Parliament could not of its own authority revoke or re-con-
struct the Constitution of Canada as contained in the Act
of 1840, it might be re-constructed by the concm-rent Act
of the Legislature of the Dominion and the British Parlia-
ment. Even the abolition of the Legislature of Jamaica, as
existing prior to 1866, vvus formalli/ effected by its own Act
jointly with that of the British Parliament. (See 29 and 80
Vict. c. 12.)

Laws made by colleffia, or by corporate bodies, belong
to the same class. They are made immediately by the cor-
porate bodies themselves, but c^e their legal validity to the
authority of the sovereign. There are in England, for in-
stance, a variety of regulations emanating under statutory
authority from various bodies or Boards of Commissioners,
e.c)., Board of Trade Regulations, Schemes of Charity Com-
missioners, ' the Pules of Hyde Park,' &c.

Among laws made by subordinate legislatures in the
direct or legislative mode are those which are made by
Com'ts of Justice or persons holding judicial appointments,
not in their judicial capacity, and in the way of decisions

IVriftiVi and Uuivrittcii Law.

261

on particular cases, but b}' a power of proper legislation
conferred upon them expressly or tacitly by the supreme
legislature.

Such are the rec/iilce praxis published by our own Courts
of Justice, which are distinguished broadly from the laws
established by the same Courts in the indirect mode of
judicial decision.

Such also were the arrets rer/lementaires of the French
parletncnfs, which wore in the nature of general statutes.
Their judicial decisions on specific cases were called arrets
jmliciiiiros.

Such above all were the edicts of the Eoman Praetors
forming the body of law called Jus Prcetoriton. The manner
in which this portion of the Roman Law was made, and the
causes of its being made, are among the most interesting
phenomena in the history of jurisprudence. It consisted
not of judicial decisions, but of general laws made and pub-
lished in the way of direct legislation ; by virtue of a power
assumed at first by the Praetors, with the acquiescence of
the supreme legislatm'e, and subsequently confirmed to them
by its express recognition and authority.

Another species of laws emanating immediately from a
subordinate authority, consists of laws established by judi-
cial decisions of subordinate tribimals. For, as already
observed, laws are occasionally made in this oblique manner
by the sovereign himself.

The term univritten law in the same juridical meaning
is applied by the same Civilians to jus moribus const itutum,
and jus prudoitibus compositiun, tha-t is to say, law supposed
to emanate from opinions emitted by respected, but merely
private, jurisconsults, in responses, in commentaries, or in
systematic treatises. But, as I shall in a subsequent lecture
(Lecture XXX.) endeavour to show, neither laws originating
in customs, nor laws originating in the private opinions of
jurisconsults or institutional writers, are (properly speak-
ing) distinct species of law in respect of their sources.

Another species of laws not made by the supreme legis-
lature are laws (if such they can be called) which are esta-
blished by private persons, and to which the supreme legis-
lature lends its sanction. For example, l>y my will I may
impose certain conditions upon devisees or legatees. As a
father or guardian, I may prescribe to my child or ward
certain conduct, which the Courts of Justice will compel
him to follow.

I mention this because such commands are styled by
some modern writers autonomice-gesetze, which is equivalent
to laics made autonomically, or by paivate aiitliority. This,
however, is incorrect, because a private person cannot be
the author of law ; though he may lie a party to a transac-
tion, whereby, in virtue of a general law made by the legis-
lator, he gives certain riyhts and creates certain obligations.

(ft) The arrets
reglcmen-
taires of tlie
French Par-
lements.

(c) The edirts
of the Roman
Tractors.

(i) Laws
made in the
way of judi-
cial decisions.

Laws origi-
nating in
cuBtoniF, and
in tlie opin-
ions of tlie
jurists, not
disiimruish-
ablefroni
other laws iu
respcrt of
their source.

fS'i Anto-
in>mic laws.

262

Law : Sources and Modes.

LECTUEE XXIX.

Takt II.

Written and
unwritten
law, sensii
juridico.
The same
distinction
sometimes
expressed by
tlie terms
liromulged
Biid unpro-
nuilged.

Law: Written and Unwritten — Statute and Judiciary.

The distinction between ■wi'itten cand unwritten law, in
the jui-idical meaning of the terms, is also denoted in the
writings of the same Civilians, hy the opposed epithets
2'>romulged and unjiromulf/ed. Law made by the' supreme
legislature is called jvonwlf/ed law, and law emanating
immediately from a subordinate source is called xinpro-
m ulf/ed law.

To explain this term it must be recalled to mind that
a law cannot be binding — the sanction cannot act on the
desires so as to be a sanction properly so called — unless the
law be made kno\\'nto the persons whom it concerns to obey
it. And in ever}' system of positive law, a law is presu)nabii/
or in fact known to the parties who are bound by it.

The phrase ' promulf/are legem' originally meant, to
submit a proposed law to the members of the legislatiu-e, in
order that they might know its contents, and consider the
expediency' of passing it. This meaning the phrase retained
in the language of the Eoman jurisprudence during the
Coimuonwealth. Under the Emperors, however, the phrase
acquired its present sense, namely, to publish a law for the
information of the subjects who are bound by it. Now, sup-
posing there is only one person, or a few persons, bound to
obey the law (^e.rj. supposing the law to be a judicial deci-
sion), it may in one sense be said to be published, that is to
say, it is made known sufficiently to answer the jiurpose for
which promulgation is necessary. But the phrase pro~
mulcjare ler/em in this its secondary meaning probably im-
plied that the law was made known generally, or to a
considerable and promiscuous part of the people. And this
seems to be what is meant by '■ promulged' in the distinction
now adA'erted to.

But these
terms
also niisex-
I'ressive.

Now the terms promv.hicd and iinptromulf/cd, as thus
applied, are not less misexpressive than written and un-
written (scn-su juridico) .

For, Jirst, laws established immediately by sovereign
authors are not necessarilj j)ro)nul(/ed.

It is true that, according to the practice which obtained
under the Eoman Emperors, their fjeneral or edictal Consti-
tutions were not binding until they were published for the
information of the people generally. And, hence, it pro-
bably has happened, that modern Civilians have applied tho

Written and Umvrittcn Law. 263

terra ^ promuhjciV to laws proceeding immediately from
soveieigu authors.

But tlie rescripts of the Emperors, with others of their
specicd constitutions, were exclusively addressed (for the
most part) to the particular or determinate persons whom
they specifically regarded. And yet, thi'ough these special
constitutions, Law was estahlished, immediatelij by those
sovereign princes, in their judicial (or legislative) capacity.

And in this country, a Bill which has passed the two
Houses, is a statute, or becomes obligatory, from the moment
at which it receives the Eoyal Assent. No promulgation
is rerj^uisite ; ' Because ' (as Blackstone remarks) ' every mayi
in Enyland is, in juclyment of Law, party to the mailing of an
Act of Parliament, being jiresent thereat hy his representa-
tives.^ It is tr^ue, that Acts of Parliament are printed, and
may be had by those wlio choose to buy them ; but this is
not promulgation ; for, before an Act is printed, and whether
it is printed or not, it is a statute, and is legally binding.
There is a jjrcssumptio juris et de jure that it is kno'^Ti to the
subjects. The reason given by Blackstone for the presump-
tion is highly satisfactory, inasmuch as in his time not one
person out of ten in England had any representatives what-
ever.

And, secondly, as Law made immediately by a sovereign
author is not necessarily published generally, so Law may
be generally published though it emanates from a subordi-
nate source. Such, for example, was the case with the Law
or Equity of the Prtetors ; whose Edicts were published
carefully and conspicuously, in order that all whose interests
they might touch might know their provisions and regulate
their conduct accordingh'.

The distinction between wiitten and unwritten law, written and
talcing the terms in their grammatical meaning, is built not "aw^J]n/(f
upon a difference in the source of laws, but on a difference in Brammatico,
the mode in which they oiiginate. According to the distinc- from the dia-
tion in the grammatical sense of the terms, any law (whether sfHslijtt-
it be statute or judiciaiy, or whether it emanate from a sove- ridico.
reign or a subordinate som-ce) is tcritten law, or (jus quod
script o venit) if it be written, at the time of its origin, by
the authority of its immediate maker. If it be not so writ-
ten, it is umvritten law, or jus quod sine scripto venit.

That this was the only distinction between tcritten and
v.mvritten law recognized by the Roman lawj'ers, appears in
this way : — The prastorian edicts and the responsa jvuden-
tium (as well as Lex, licbiscita, Senatus-consulta, and Prin-
cipinn Placit(i) are entitled by Justinian, jms scriptum (Inst. I,
2. 3). But the Praetorian edicts are clearly unuvitten law
in the juridical sense of the term ; and the responsa priiden-
iiiwi, assmuing that those private jmiscousidts were properly

264

Laiv : Sources and Modes.

Part II. authors of law, are necessarily umcntten law, in tlie jiiri-
' ■ ' dical meaning of tlie expression. It does not appear that

Gaius anywhere adyerts to the distinction between written

and unwritten law.

Customary Law is, according to Justinian, jus von
scrijitum. (Inst. I. 2. 9.) And it is so in the grammatical
sense ; for, assuming that customary law ohtains as j^osifive
law by yirtue of the consensus utentium, it naturally origi-
nates sine script 0.

Law originating in the nsns fori, or made by subordinnta
tribunals through judicial decisions, is not referred" by Jus-
tinian to either class.

But it may belong to cither class (taldug the opposed
terms in their grammatical sense). If the decisions of the
tribunals were committed to writing by autJwrity (in the
manner proposed by Lord Bacon, or as was imperfectly done
in the old Year Books),* law established by such decisions
would be written law. If they are not committed to writ-
ing (or are committed to writing by private and unauthorised
reporters) the law established by them is unwritten.

This sense 0^ jus scriptum and jus non scriptum, which
I haye called their g-rammatical sense, corresponds with the
meaning of those phrases in the old French law : Pays d?-
droit ecrit and Pays de coutumes. Pays de droit ecrit meant
those parts of France where the Eoman law prevailed. It
was written law in the literal or grammatical sense, but
not in the other sense. It was not law made and published
by the supreme legislator : for it obtained not by his direct
enactment, but by his tacit consent, having been established
in those countries before they were conquered by the Franks.
But it was written law in the sense which I have called the
grammatical sense, for it already existed in writing when it
was adopted by the French Com-ts.t

The distinction between wi-itten and unwritten law (as
drawn by modern Civilians) has been adopted by Sir Mat-
thew Hale in his History of the Common Law, and imported

* The judgments delivered hy the Judicial Committee of the
Privy Council are a still more complete instance. The judgment, in
its authenticated form is jointly considered and committed to ■writing
before being published ; an admirable method considering the quasi-
legislative character attaching to judgments by an appellate tribuna'
of the last resort. — R. C.

t Law so adopted has been called jus receptum ; and has some'
times been supposed to obtain independently of sovereign authority
( Foreign positive Law,
It may be fashioned on<; or

(^International jNIoralil}'.
The term 'jus receptum' has even been extended to customary
law.

Written and Unn'rittcn Law. 265

by Sir AViliiam Blackstone into his Commentarie?. By tliese \^p~:
writers on English Law, the terms ' xviitten law' and '«?i- XXIX.^
■written law ' are apparenth' taken in their juridical mean-
ings. Thev Loth of them restrict the expression leges scripta,
or the written laws of this kingdom, to ' statutes, acts, or
edict?, made by the King's Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and Com-
mons, in Parliament assembled.' General and particiUar
customs, together with laws established by the practice or
usage of Courts, they refer to the leges 11011 scriptcc, or un-
written law.

It must, however, be remarlred, that they seem to con- Tiieir conf->
found the distinction sensujuridico and the distinction seiisu two'scuses,
graminatico ; and, by consequence, to amve at a division of
law which is incomplete and perplexed.

Speaking of the unwritten Law, Blackstone says, 'I st^de
these parts of our Law leges von scripfce, because their ori-
ginal institution and authority are not set down in writing,
as Acts of Parliament are, but they receive their bindina-
power, and the force of laws, by long and immemorial
usage, and by their universal reception thi-oughout the
kingdom.'

Now (according to this) the division of Blackstone and
Ilale stands thus.

Acts of the supreme legislature are leges script ce.

But any law (iiot created immediately by the supreme
Legislatiu'e) is non scriptum : Pro^dded, that is, that its ori-
ginal institution be not set down in wiiting.

Now (according to this division in which the two dis-
tinctions are manifestly confounded) what becomes of laws
made immediately by subordinate legislatm'es ?

And what would be the class of the law made by
judicial decisions of subordinate judges authoritatively
recorded ?

It mav be here observed that the terms themselves,
written and nmcritten law, are foreign to the language of
English law, though found in Bracton (who evidently bor-
rowed them from the Eoman lawyers), and in Hale and
Blackstone subsequently. The tenns proper to the English
law are not written and nmcritten law, but statute law and
common law : a classification which seems to exclude the
laws made in the direct or legislative mode by subordinate
legislation. *

* The following passage in Glauville's Preface is worth citing
here, both fur his use of the term scriptum as applied to law, and
also for the light which it throws upon the earh- growth of theconi-
nion law of England. He says : ' Leges namque Anglicanas, licet
non scriptas, leges appellari non videtur absurdum (cum hoc ipsum
!cx sit, quod principi placet, et legis habet vigorem), eas scilicet,
fjuas super dubiis in consilio definiendis, procerum qiiidem consilio,
N

266

Lavo : Sources and Modes.

Pakt ir.

Distinction
between law
established
in the direct
or legislative
mode and law
obtaining
obliquely.

It has beeu sliown in the preceding Lecture tliat the dis-
tinction iDetween law written and wiwntten in the gram-
matical meaning was one to which the Roman wiitere who
suggested it, attached little importance. And it clearly is
unimportant.

But there is another distinction hetween laws, depending
not on their sources, but on the modes in which they
originate, and which is veiy important. This is the dis-
tinction between law made ohliquchj in the way of judicial
decision, and that made directly in the way of legislation.
When a law or rule is established directly, the proper pur-
pose of its immediate author or authors is the establishment
of a law or rule. "When the law or rule is introduced
obliquely, the proper purpose of its immediate author or
authors is the decision of a specific case or of a specific
point or question. Generally the new rule disguised under
the garb of an old one, is applied as law to decide the
specific case, and, that case passing into ajvecedent, the same
rule is applied to subsequent cases.

Now, whether established directly or obliquely, a law or
rule may emanate either from the sovereign or from an in-
ferior or subordinate source. The judicial power, like all
other power, resides in the sovereign, although in most of

ct principis accedente authoritate constat esse promiilgatas. Si enim
ob scripture solummodo defectum leges iiiinime censerentur, majoris
(procul dubio) ai'thoritatis robiir ipsis legibus videretur acconimo-
dare scriptura, quam vel decernentis equitas, vel ratio statuentis.
Leges autem et jura rcgni scripto universaliter conchidinostris tein-
poribus omnino quidem impossibilc est : cum propter scribentium
ignorantiam, tuni [nopter earum multitudinein confusani : verum
sunt quedam in Curia generalia, et frequentius usitata, que scripto
commendare non niiiii videtur presumptuosum, sed et plerisque per-
utile, et ad adjuvandam memoriam adniodum necessariiun. Ha-
rum it;;que particulam quandam in scripta redigere decrevi, stilo
vulgari ct verbis curialibus utens ex industria ad notitiam conipa-
ran<iam eis qui hujusmodi vulgaritate minus sunt exercitati.'

Bracton borrows part of this passage, but, missing the fine irony
of the reference to llie doctrine of the Ifoman fawyers and the ele-
gance of the argument a fortiori, has reduced it to what our author
might well call 'jargon.' " Bracton says : ' Sed absurdum non erit
leges Anglicanas (licet non scriptas) leges appcUare, cum legis
vigorem habeat, quicquid de consilio et de consensu magnatum, et
reipublicffi comniuni s|]on?ione, authoritate regis sive principis prece-
dente, justfe fuerit definiium et approbatum.'

ByGlanville following the lioman lawyers, scriptum as applied
iojii's is understood in iis literal sense. His argument is If imder
the Komau system the pleasure of the Princeps was law, much more
rationally may we call that law which, though uuwritlen, is known
to have been the sentence of the Great Council, with the authority
(if the I\ingto boot, given after solemn deliberation upon doubtful
questions referred to their determination.' To reduce into writing
the laws thus floating in the cognisance and memory of those con-
versant with the practice of the Cnria is the task humbly under-
taken bv that L'reat lawver. — IJ. C.

Statute and Judicatory Law. 26 J

tte <roveniment3 of modern Europe it is committed In tlie Lkct.
sovereign to subject or subordinate tribunals. XXIX. ^

At au earlier period, however, the person or body of " ' "^
persons composing tbe supreme legislatm-e was also the
judce in the last resort, or even in the first instance. The
jmpulus of Rome, which was the supreme legislative body,
was also the judge in capital cases. The ZvIicMe-mote or
Wittenagemote of the Anglo-Saxons was both the Legisla-
ture and a Court of Justice. Even after the Xorman Con-
quest, -the Aula jRer/is was a Court of Justice as well as the
Supreme Legislatm-e, and it is from the Aula lief/is that our
House of Lords, althoug'h only a branch of the Supreme
Legislatm-e, derives the judicial power which it still exercises.
From the time when our Parliament acquired its present
form of Ejiug, Lords, and Commons' House, the judicial
power set>m3 to have been more completely detached from
the legislative in our own country than in any other.

As no short names are afforded by established language,
I shall indicate the distinction in question by peripkvasis or
circumlocution.

For example : Law belonging to one of the kinds in
question, I shall style, ' Law established directly ; ' or
* Law established in the letjislative manner.' That is to say,
established immediately by the sovereign, or by any subor-
dinate author, as properly exercising lec/islative, and not
judicial functions. Or, to use the expression of Thibaut, in
nis admirable work on legishition, as gesetzgebend, and not
as TieJdend.

Laws belonging to the opposite kind, I shall style, ' Law
introduced and obtaining obliqueli/;' ov 'Law established
i Q the way of judicial legislation : ' That is to say, intro-
duced immediate!}' by the sovereig-n, or by any subordinate
author, as properly exercising judicial, and not legislative
functions. (As richtend, and not as gesetzgehend.')

Law of this latter kind (or rather, perhaps, a certain sort
of it) has been styled by TiQTiWmm. '■ Judge-made law:' —
a tei-m pithy and homely, but which I am constrained to
reject, 1st, because it savours of the disrespect entertained
by Bentham to this mode of legislation, in which I do not
concur ; 2ndly, because it tends to confound the sources
frum which law immediately prucceds, with the modes in
which it orijiinates.

KS

268

Lazv : Sources and Modes.

Part II.

/

Customary
Ihws; no-
torious, and
needing

JTOOf.

ClvUand
Canon Lawg,
as recepta,
ranked by

LECTURE XXX.

Certain Supposed Sources of Lmo Examined. — Jus Morlhui
coiistitutum, Jus Prudentihus compiositum, Jus Naturals.

Every Positive Law, obtaining in any community, is a
creature of the Sovereign or State : lla^"ino■ been established
immediatehj by the monarch or supreme body, as exercising
legislative or judicial functions : or having been established
immediately by a suhject individual or body, as exercising
rights or powers of direct or judicial legislation, which
the monarch or supreme body had expressly or tacitly
conferred.

But it is supposed by a multitude of writers on general
and particular jurisprudence, that there are positive laws
which exist as iwsitive laws, independently of a sovereign
authority.

The kinds of positive law to which this independent
existence is most frequently attributed, are these : —

1. Customary law: or, the positive law which is made
by its immediate authors on customs or mores : —

2. The positive law which is made by its immediate
authors on opinions and practices of private lawyers : —

3. The law, which, as forming a part (or as deemed to
form a part) of every system or body of positive law, is
styled natural or universal.

To show the falsity of the supposition in question,
thi'ough a brief examination of the natm'es of these thi-ee.
kinds of law, is the main object of the present Lecture.

The laws or rules styled customary may be divided into
two classes : — Those which are enforced by the tribunals,
without proof of their existence ; and those which must be
proved, before the tribunals will enforce them.

Laws or rules of the former class, are styled notorious.
Or it is said that the tribunals tRke judicial notice of them.
Those of the latter class require proof, like any other fact
on which the decision in the particular ?Hse depends.

This division does not coincide with a division some-
times made of laws into ycneral and particular ; yeneral laws
being those which prevail throughout tlie country, particular
laws prevailing only in portions of the tenitory. General
customary laws are doubtless of the class of those which are
-notorious ; but of particular customary laws, some are also
notorious (e.g., the custom of gavelkind), although many are
of the class of those which used proof, like any other fact.

It is remarkable that the Civil and Canon Laws (as ob-
taining in Eugl.ind) are raaked by Blackstoue and Plale
Viiili particular castomary In^s.

Jus ]\I o 1" i b u s C o n s t i 1 11 1 u ni.

269

The triitli i:?, thev are wli.it would be styled by tbe
Roman Jurists ' siiKjitlar:'' that is to say, uot singular, as
applyino- exclusively to peculiar subjects, or as obtaining in
districts or places, but as uot harmonising or being homo-
geneous with the great bulk of the system.

This want of harmony or consistency with the gi'eat bulk
of the system, the Eomau Lawyers denote by a very odd
expression : ' inelegantia juris.' * Now the Canon and
Civil Laws (as they obtain in England) may be singular or
indef/ant, but they are not less p&rtious of the general law
of the land than Common Law or Equity.

I shall advert for the present to general customary laws,
and to those particular customary laws which tribunals will
enforce without proof of their existence. Those particular
customary laws of which the tribunals are not judicially
informed, I shall consider afterwards. For to them, many
of the remarks immediately following will not apply.

Independently of the position or establishment which it
may receive from the sovereign, the rule which a Custom
implies is merely a rule of positive (or actual) morality, and
derives its obligatory force from the sentiments called public
opinion.

Now a merely moral, or merely customary rule, may take
the quality of a legal nile (or law) in two ways : — it may
be adopted by a sovereign or subordinate legislature, and
turned into a law in the direct mode ; or it may be taken as
the ground of a judicial decision, which afterwards obtains
as a precedent ; and in this case it is converted into a law
after the judicial fashion.

On the first of these suppositions, the legal rule, which
is derived from the customary, is Statute Law : and although
fashioned by its immediate author, on a pre-existing custom,
no one doubts that it derives its force as law from the legis-
lative authority.

On the second of these suppositions, the legal rule which
is derived from the customary, is a rule oi jucliciarj/ la,vi:
But though, as a rule of judiciary law, it is not less positive
law than it would be if it were a statute, it often is deemed
law emanating- from custom, or jus moribus constitutum.
For the judicial legislator naturally abstains from the show
of legislation, and therefore, while really fashioning a new
positive law on an old moral nde, he apparently applies an
old law. And the cause of the moral rule (namely custom)
is not unfrequeutly, by a confusion of thought, supposed to
be the source of the positive law established in accordance
with it.

* ' Sed postea divus Hadrianus iniquitate rei et inelegantia juris
mollis, restituit,' etc.

' Sed et in hac specie divus Vespasianus inelegantia juris motus,
restituit juris gentium regulam,' etc. — Gaii Comm. I. 84,85.

A distoin Is
only a moral
rule until en-
forred tiy tUe
tribuuals.

When turned
into a law, id
is law ema-
nating from
the sove-
reign, or
from a sub-
ordinate
lexislatur or
judge.

270

Laiu : Sources and Modes.

A

PA!ir 11.

&«noration
of Customary
La IB, per,
Citero.

Hypotliesis
of Black-
Btune, etc.,
about Ciiito-
inary Law.

On either supposition, the soiu'ce or fons of the legal
rule, is not consensus utentium, but the legislator or judge
as the case may he. But when clothed with the legal
sanction in the judicial mode, the law commonly is ccdled
customary law.

That a custom becomes law, only when enforced by the
political sanction, was clearly perceived by Cicero, and stated
by him with more of precision than is commonly met with
in his writings. If we reject the talk about nature, and
allow for his habit or trick of sacrificing precision to euphony,
we shall find, in the following passage, a correct statement of
the origin of customary law. ' Justitiaj iuitiimi est a natura
profectum. Deinde qujedam in consuetudinem ex utilitatis
ratione venerunt. Postea res, et a natura profectas, et a
consuetudine probatas, legum metus et religio sanxit.'

Law styled customary then is merely judiciary law
founded on custom, and owes its existence as law, like every
other law, to the sanction of sovereign authority.

But it is commonly supposed by writers on jurisprudence
(Pioman, English, Germafl, and others) that law shaped
upon customs obtains as positive law, independently of the
sanction adjected to the customs hy the State. It is sup-
posed for example by Hale and Blackstoue (and by other
Aviitei's on English j urisprudence) that all the j udiciary law
administered by the Common Law Courts (excepting the
judiciaiy law which they have made upon statutes) is cus-
tomary law : and that since this customary law exists as
positive law by force of immemorial usage, the decisions of
those Courts have not created, but have merely expounded
or declared it.

The following are a few specimens of the numerous
absurdities and inconsistencies with which this hypothesis
is pregnant.

All the customs immemorially current in the nation arc
not legally binding. But all these customs would be legally
binding, (f the positive laws, which have been made upon
some of them, obtained as positive laws by force of imme-
morial usage.

Positive law made upon custom is often abolished by
Parliament or by judicial decisions. Indeed the wiiters in
question admit that the continuance of the rule as law dr.-
pends on the sovereign pleasure. But supposing it existed
as positive law by virtue of the consensus utentium, it could
Bot be abolished, conformably to that supposition, without
the consent and authority of these its imaginary founders.

According to the hypothesis in question, customary laws
are not positive laws until their existence as such is declared
to the people by decisions of the Common Law Courts.
But if they existed as positive laws, because the people had
observed them as merely customary rules, euch decisions

gested to
moderns by
passage in
Paudccts.

Jus IMoribus Constitutum. 271

would not he necessary preliminaries to their existence in Lkct.
the former character. In truth, there is much of the judi- XXX.
ciary law, administered by the Common Law Courts, which ' '

has not been formed upon immemorial custom, or upon any
custom; much of it (such for instance as mercantile law
relating to bills of exchaug-e) having been made in recent
times, on customs of recent origin ; and much of it having
been derived by its authors, the Judges, from their own
conceptions of public policy or expediency.

• Finally the hypothesis seems to be restricted to the rules
of judiciary law which are administered by the Common
Law Court's ; though if all the judiciary law administered
by t/iem must be deemed customary law, the h\T30thesis
ought to be extended to all the judiciary law administered
by the other tribunals.

The conceit that customary law obtains as positive law j^',',t ul^^unn
bv virtue of the couseHsus tttentium, was suggested to its about nature

, , . , , . ' ^^~ T .• ■ • of Customary

numerous modern partisans by certam passages m J ustiman a Law sug-
Pandects, particularly the following passage of Julian: —

' Inveterata consuetudo pro lege non immerito custoditur :
Et hoc est jus, quod dicitur 7norihus constitutum. Nam quum
ipsai leges nulla alia ex causa nos teneant, quam quod ju-
dicio populi receptaj sunt, merito et ea, quse sine uUo scripto
populus probavit, teuebunt omnes. Nam quid interest, po-
pulus suffrayio voluntatem suam declaret, an i-ebus ijjsis et
factis?'*

Without pausing to analyze the passage, I shall briefly
remark on a few of the errors with which it overflows.
First, it confounds an act of the people in its collective and
sovereign capacity vrith the acts of its members considered
severally, and as subjects of the sovereign whole.

Secondly: The position maintained in the passage is \/
this : — -That a customaiy rule which the people actually
observes, is equivalent to a law which the people establishes
formally ; since the people (jchich is the sovereit/ri) is the
inuuediate author of each.

Now, admitting that the position will hold, where the
people is the soverei(/n, how can the position possibly apply
where the people is ruled by an oligarchy, or where it is
subject to a monarch ? During the virtiuil existence of the
lioman Commonicealth, the position maintained in the pas-
Bage might have been plausible. But it is strange that tlie
author of the passage (who lived under Hadrian and the
Antonines, after the Roman AVorld had become virtually a
monarchy) did not perceive its absurdity. He must have
known that the laws formally established by the ^-irtual
monarch, and customs observed spontaneously by the subject

• Digest, i. 3, 32.

2/2 Laiv : Sources and Modes,

Pabt II. I\-omau community, could not be referred (in any sense

' > ' wliatever) to one and the same source.

And here I would remark, by the bye, that the jitriJical
meaning of the terms ' written and ?(/iwritten Law ' aro?e
from a misconstruction, by modern Civilians, of the passage
which I have read and examined ; although it is manifest,
that the term 'jus scripfiiui^ is used by the author of the
passage, in the grammatical or literal sense.
Biackstone'a Blaclvstoue borrows this passage of Julian, enhancing its

to j'uUan." original absurdity by adding nonsense of his own. ' Thus,^
he remarks, (after he has cited the passage,) — ' tlius did they
reason, Y^•hile Home had some remains of her freedom. And,
indeed, it is one of the characteristic marks of English
liherti/, that our common law depends upon custom ; which
carries this internal evidence of freedom along with it, that
it was probably introduced by the voluntari/ consent of the
people.'
^ Now customary law (as positive law) is established by the

sovereign. And, consequently, whether it be introduced (or
not) by the consent of the people, depends upon the form of
the government. If the people are the sovereign, or if they
share the sovereignty with one or a few, customary law
(like other law) is, of course, introduced by their consent
(in the strict acceptation of the term). But if the people
have no share in the sovereignty, they have no part what-
ever in the introduction of positive law, customary or other-
wise ; and can only be said to consent to its introduction in
the remote sense that they acquiesce (whether by reason of
fear or some other motive) in the existence of the govermnent
which establishes the law.

And under monarchies or oligarchies, as well as under
govermnents pm-ely or partially popular, much or most of
the law which obtains in the community is (commonly) ciis-
tomary law. So that customary law cannot be a mark of
freedom, a term which means, if it mean anything, that the
government of the community is purely or partially popular.
Sir WiUiam Blackstone's meaning may have been this : — •
That the antecedent customs, which are the groundu'ork of
customary law, are necessarily introduced by the consent of
the people : Or, in other words, are necessarily consonant to
their interests or wishes.
But even this is false.

If the people be enlightened and strong, custom, like
law, win commonly be consonant to their interests and
wishes.

If they be ignorant and weak, custom, as well as law,
wiU commonly be against them.

During the Middle Ages, the body of the people, through-
out Europe, were in the serf or slavish condition. And this
eJavish condition of the body of the people originated in

Jus Rioribus Constitutum. 273

custom : Although the imperfect rights which custom gave Lect.
to their masters, together with the imperfect obligatioua XXX.
which custom imposed on themselves, were afterwards en- ^ ' ""^
forced by Law of which that custom was the basis. In
various parts of Europe, the people have gradually escaped
from the servile condition through successive acts of the
Legiskture. So that the body of the people in many of
the European nations, have been released, bi/ direct lef/isla-
tion, from the servile and abject thraldom in which they had
been held by custom, and by law framed upon custom. A
notable recent instance is the emancipation of the serfs in
Russia.

In Rome, the absolute dominion of the ^Jrt^er/VH;HV/«s
over his wife and descendants, arose from custom and con-
sequent customary law, and was gradually abridged by direct
legislation : namely, by the edicts of the Prtetors, the laws
of the People, and the edictal constitutions of the Emperors.

Let us turn our ej'es in what direction we may, we shall
find that there is no connection between customary law, and
the well-being of the man3%

[A system of positive law, in the sense 01 tnese Lectm'es,
involves the notion that every important relation and trans-
action of human life is pervaded by the influence of com-
mands or rules resting on the authority of the state as their
ultimate sanction. This pervading influence of positive law,
the ofl'spring of Roman institutions, is one of the chief cha-
racteristics of Em'opean civilization. In rude societies the
influence of custom is all-pervading ; the domain of positive
law being limited to the capricious action of the state punish-
ing what it deems crimes. As a society advances in or-
ganization and refinement, positive law wrests from custom
some part of its domain. The state appoints its police and
tax-gatherers, and prescribes for the tenure of laud rules cal-
culated to secure its own revenue. AMien a society has
attained the elements of good government and freedom (in
the sense of wJiolesome restraint), then it is commonly seen
that positive law has supplanted and transmuted custom
throughout the whole range of human relations. The pro-
cess of transmutation is very striking in the first contact be-
tween British law and native custom in India. The process
is nearly complete in Bengal. Its commencement in Oudh
was comparatively recent •, in the Punjab it may be said to
be in its commencement. It is everywhere the same. Oourra
of law which command the whole machinery of the British
Government and the resources of the Empire for the ultimate
enfoi cement of their decrees, have to decide upon disputes,
which formerly were abandoned to the rule of custom^
customs vague in their conception and scope, and sanctioned
rather by the indefinite opinion or action of society than by

M 3

274

Law : Sources and LI odes.

Vsv.i IF.

y

Jns prudcii-
tibiis com-
positum.
Xaw sup-
;)Osed tu arise
from tlie uu-
autliorized
opinions of
X>rivate
Lawyers.

any systematic interfereuce ou the part of the staite. Even
the liiudoo widow uow ckims and obtains from the state
protection and redress against excessive family oppression.
To any one watchintr on the spot tlie process of transmuta-
tion, it is difficult to resist the impression that here, at least,
cusitom is law. For it appears to he the only law which the
judg-e can apply. The truth is that custom and law are here
alike, because it is linmcn that thejudc/es %cill mould the nascent
lav) upon the exist in r/ customs. So for as is consistent with
general welfare and some regard to elef/antia j>uns, custom
will (according to the known principles of British rule)
he taken as the model on which law is established, by the
indirect mode of judicial decision. — E. 0.]

From Customary Law, I pass to positive law which is
made by its immediate authors on opinions and practices of
private lawj-ers. Law of this kind is named by the Eoman
Lawyers jus jjrudentibus composition ; law constructed by
private jiuisconsults respected for their knowledge and
judgment.

The remarks which I have applied to the law styled cus-
tomary, will apply (with a few variations) to that imaginary
law, which is supposed to emanate from the Auctoritas pru-
dentium, or from the opinions of private lawyers eminent for
their Imowledge and ability. It will clearly appear by
reasoning similar to the above, that although the opinions
of private lawj-ers are often, like custom, causes of law, by
influencing the judge or legislator, those private lawyers
are not sources of law. Those opinions derive their effect
as law, not from the private lawyers who emitted them, but
immediately from the judge or legislator who interposes his
authority to them.

Such, for example, is the case with those excerpts from
the wi'itiugs of jurists, of which Justinian's Digest is almcst
exclusively composed. As. forming parts of those writings,
they were not law -.but as compiled and published as law by
Justinian, they took the quality of law immediately pro-
ceeding from the sovereign.

' Quicquid ibi scriptum, hoc nostiaim, et ex nostra volun-
tate compositum.' — Such is the language of Justinian liim-
selfwheu speaking of the excei"pts in the Act confirming
the compilation.

According to an obscure story told in the Digest,* the
tribunals were instructed (under Augustus) to take the
Law, in doubtful cases, from certain jurisconsults who were
appointed by the Legislature to expound it. Now, if tnis
Etoiy be true, these jurisconsults (' quibus permissum ei;it
ju7-a condere'') f were, in truth, judges of Law. They formed

• Digest, i. 2, 2, § 17

+ In>t. i. 2, § R

Jus Prudentibus Compos! turn. 275

an extraordinary tribunal to wliicli tlie ordinary jndges were Lect.
bound to defer. -^^-^

And, on that supposition, their responses were judicial ' '

decisions, and not the opinions of merely private juriscon-
sults.

The story, however, is beset with inexplicable difficulties.

It is most probable, that the responses and writings of
Jurisconsults were never sources of Law : although they ac-
quired the influence which the opinions of the instructed,
and expert will naturally obtain.

The jus a prudentibus comjjositum (though not marked,
with us, by a distinct name) is not a stranger to our own law.

For example ; much of the law in Lord Coke's "sviit-
iugs, consists (in the language of ILile) ' of illations made
by the writer upon existing law : ' much of it, of positions
and conclusions founded upon the writer's notions of general
Utility. For (as he says himself over and over again) ' ar-
(jumentum ab inconvenienti 'pluv'imiun valet in lege.' And,
undoubtedly, many of these illations and conclusions of this
most illustrious of our prudenf.es, have served as the basis
of judicial decisions, and have thus been incorporated with
English judiciary Law.

The only dillereuce (in this respect) between our own
and the Roman Law, lies in the different tm-ns given to the
expression.

AVith the IJouiaus, judiciary law, bottomed in such illa-
tions and conclusions, would at once be referred to its re-
mote cause. It would be styled /hs a pii'udentibus conipositum.

With us, the authority of the prudentes is aflectedly
sunk ; and the judicial decisions, really framed upon their
opinions, are considered declarations of Law established by
immemorial custom.

x\gain : Much of the law of real property is notoriously
taken from opinions and practices, which have gTOwn up,
and are daily growing up, amongst conveyancers. And, I
may observe, that the body of eminent conveyancers for tlie
time being, is a partial picture (in little) of that body of
eminent jimscousults who (at any given period) were the
prudentes in ancient Rome. Neither the eminent convey-
ancers, nor the iirudentes, can be considered as sources or
authors of Law. But the opinions of both, as determining
the decisions of the tribunals, may be considered as causes
of that law, which (in spite of the puerile fiction about im-
memorial usage) is notoriously introduced by judges acting
in their judicial capacity. /

When the positions of a legal writer have been frequently ^
and uniformly adopted, he acquires the reputation of an
authoritij. This means, strictly speaking, not that his posi-
tions are laio as emanating from him, but that they probably
will be law if a case should arise in which they are in point.

2'](i

Laiv : Sources ami Modes.

Part II.

6od or nature
not a source
<if positive
law.

ExteDBlon of
* source ' to
every ' re-
mote cause'
of Law, leads
to confusion.

That is to say, tlie liaLitual deference of judges to the
opmion of the writer is such that the judgment of the
Court ou a new point is likely to be in accordance with his
opinion.

The third supposed source of law which I proposed to ex-
amine is that styled natural, or universal.

It will be convenient to postpone the complete examina-
tion of the laws styled natural, and the distinction made
between laws natural and positive, until after I have ex-
plained the jus gentium of the earlier Roman la-^jyers, and
the distinction between jus gentium and civile, as made by
them and by the classical jurists.

In the meantime, I content myself with remarking- tbat
God or nature is not a source of law in the strict sense ;
that is, of law established by the sovereign or state iuune-
diately. God, or nature, is ranked among the sources of
law, thi'ough the same confusion of tlie sources of law with
its remoter causes, which I pointed out in treating of the
law supposed to emanate from custom, and of the law sup-
posed to emanate from private lawyers or jurisconsults.
Taking the principle of general utility as the only index to
tbe will of God, every useful law set by the sovereign ac-
cords with the law set by God, or (adopting the current
and foolish phrase) with the law set by nature ; or, assum-
ing tbe existence of a moral sense, every law which obtains
\n all societies, is made by sovereign legislatures on a Divine
or natural original. But in any case it is a law, strictly so
called, by the establishment it receives from the human
sovereign. The so\-ereign is the author of all law stiictly so
called, although it be fashioned by him on tbe law of God
or nature : just as customary law is established by the sove-
reign, although he foshions it after a pre-existing custom.
God, or nature, is the remote cause of the law, but its
source and proximate cause is the earthly sovereign, by
whom it is jjositum or established.

The 'jus quod natura inter omnes homines constituit,^
the ' jus moribus constitutum,^ and the ' jus a prudentibus
condiium sive compositum,^ are manifestly in the same pre-
dicament. Each derives its distinctive name from its re-
mote cause or one of its remote causes. And deriving its
distinctive nfjue from a cause leading to its establishment,
it is supposed to emanate from that cause as from its foun-
tain or source^ and to exist as Law (strictly so called), in-
dependently of the position or institution which it receives
from the sovereign or state. The absurdity of the supposi-
tion may be shown by a ftimiliar illustration. Not unfre-
queutly a small piece of legislation is associated with the

I

Jus Gen tiu ni. 2"]"]

nniuc of a gi-eat lawjer, at whose instance it was passed by Li:cr.
Parliament (e.^., ' Lord Campbell's Act,' ' Lord Kino-^dowu's XXX.
Act'). Now, although the knowledge, industry, and. reputa- " ' "^
tion of the lawyer in question are, doubtless, amongst the
principal causes of the Act being passed, Parliament, and not
tliat lawyer, was its source or author. To suppose that so-
called customar]! o\ naturolX^ssi derives its binding outhority
from any other source than the sovereign or the subordinate
legislators or judges to whom its authority is delegated is
not a whit more rational than to suppose that the Acts
popularly Imown by the names of their promoters derive
their binding authority from the persons ■^'ith whose names
they are thus labelled.

LECTURE XXXI.

Jus gentium.

T KOAV proceed to consider the jus gentium of the earlier Lkct.
Poman lawj^ers, and the distinction between jus gentium 'S.XXl.
and civile, as understood by them and by tlie classical j mists. "~ '
My chief motive for this inquiry is the intimate connexion
of the Poman jus gentium with equity, meaning a depart-
ment of positive law, and not in any of the other and nu-
merous meanings attached to that slippery expression. The
equity of which I am now speaking includes as well the
Roman jus j^rcstorium, as our own equity ; the oue intro-
duced by the edicts of the Prpetors in the way of direct
legislation : the other by English Chancellors, as judges
exercising their extraordinary jurisdiction ; or by Acts of
Parliament relating to the matters chiefly dealt with by the
Court of Chanceiy. By stating the history of the phrase
equity, I shall be enabled to dispel the darkness in which it
is involved ; but I must first explain the original meaning
o? jus gentium, and the meanings afterwards annexed to
that term and to the partly coiTespoudiug, partly dispa-
rate expression, yH.s naturale. ] shall accordingly deal with
these subjects in the following order.

First ; I shall endeavour to explain the meaning of the Different

term jus gentiunj, as understood by the Roman lawyers, be- "uTgn"um'a

fore they imported into their own s^'stem of positive law atditrerent,

notions or principles borrowed from the philosophv of the TAi'ick'nr

Greeks. " 2'a^"Jcl^'

Secondly ; I shall state its meaning as used by Justinian Jurists.
in the Institutes and Pandects, or rather as used by the

2/8

Laiv : Sources and IiTodcs.

Paut II.

3. Ulpian'3
jus iMturule.

Statement
of the jus
gentium of
the earlier
Roman
Lawyers. '

According to
Itonian Law,
strangers had
no rights.

jurists styled classical, from whose writings the Institutes
and Pandects are extracted and compiled.

Tkird/j/; from tlie jus gentium of the older Roman law,
and from the jus [/entium or naturale of the classical jurists,
I shall advert to s.jus naturale fa minim jus naturale !) which
I take the libertj of styling ' Ulpiau's Law of Xatiu'e.'

And first, I proceed to state the meaning of the jus gen-
tium of strictly Roman origin, or of the Roman lawyers who
preceded the classical jurists.

According to the Roman law, a member of an indepen-
dent nation, not in alliance with the Roman people, had no
rights as against Romans, or as between himself and other
foreigners or aliens. And even a member of an independent
nation, the ally of the Boman People, had no rights (as against
Romans or foreioners), except the rights confeiTcd on mem-
bers of that nation by the provisions of the fadus or alliance.

When I say that the members of an independent nation,
not in alliance with the Homan People, had no lights as
against Romans or foreigners, I understand the proposition
with limitations.

^\'heu a member of any such nation ?fos residing in the
Ponian territory, it is probable that his person was protected
from violence and insult : and, although he was incapable
of acquiring by transfer or succession, or of suing upon any
contract into which he had afiected to enter, goods actually in
his possession were probably his goods, as against all who
could show no title whatever. Unless we understand the
proposition with these limitations, a peregrinus or alien, not
a socius or ally of the Roman People, was liable to murder
and spoliation at every instant, when dwelling on Roman
soil. In short, the proposition must be undei stood with
limitations analogous to tho-^e which restrict the applica-
tion in practice of the rule, broadly stated by writers on
English law, that an alien enemy or an outlaw has no rights.
But, taking the proposition with the limitations which I
have just suggested, the members of an independent nation,
not in positive alliance with the Roman People, had no
rigl'.ts which the Roman Tribunals woidd enforce.

This unsocial maxim (of whicli there are vestiges even in
Modern Em'ope) obtained in the Roman Law from the "^ery
foimdatiou of the city to the age of Justinian. It is laid
down broadly in an excerpt in the Pandects, ' that every
people, not in alliance with ?/.s, keep everything of ouis
which they can contrive to take ; whilst ice, in return, ap-
propriate everything of theirs wliich happens to liiU into
om- hands.' ' Si cum gente aliqua neque amicitiam, nequs
hospitium, neque fadus amiciticc causa factum habemus, hi
hostes quidem non sunt. Quod autem ex nostro ad eos per-
venit, iUoriun fit ; et liber homo noster ab eis captus servus

Jus Gentium. Historical View.

2;9

fit coniin. Idem(pe est, si alj illis ad iios aliquid perve- I-kct

uiat.'

XXXI.

From the pure perenrini or aliens (or from members of Condition of

... 1 • •', 1 •/ .■ N T J i ii 1 e aliens, mem

foreign and independent nations), i tm-n to the members oi bersof
the communities which formerly had been independent, but ^""j'J'ug^'^
■which had been subdued by tlie Eoman arms, and brought
into a state of subjection to the Roman Commonwealth.

The members of an independent community subdued by
the Roman arms were placed in a peculiar position. They
were not admitted to the rights of Roman Citizens, nor
were they reduced to the seiTile condition and stripped of
all rights. Generally speaking, they retained their ancient
government and their ancient laws, so far as the continuance
of those institutions consisted with a state of subjection to
the Roman Commonwealth.

It is clearly laid down in tlie Digests, that, unless the
sovereign legislatm-e has specifically directed the coutraiy,
the judge shall cousidt, in the hrst instance, the law pecu-
liar to the particular region : and that the Law of Rome
itself ('jus quo urbs Roma utitur ') shall not be applied to
the case which awaits decision, imless the law peculiar to
the particular region shall all'ord no solution of the legal
difficulty.

Such being the condition of the conquered and subject
nations, the following difficulties inevitably arose.

Neither the Law of Rome, nor that of the particular nimcuitieg
subject community, afforded to the members of that subject \lle\rlol\.^
community any rights against the citizens of Rome, or against tiou-
the members of any other subject community.

Consequently, whenever a controversy arose between a
Roman and a Provincial, or between a Provincial of one and
a Provincial of another Province, there was no law applicable
to the case, and the party who had suflered the damage was
left without redress.

To meet such cases, there was a manifest necessity for a
system of rules which should embrace all the nations com-
posing the Roman Empire : which should serve as a sujiple-
ment or suhsidium to the Law of Rome itself, njid to each
of the various systems of provincial law prevailing in the
conquered territory.

The obvious and urgent want was supplied in the follow-
ing manner : —

In addition to the ancient Praitor (who judged in civil
questions between Roman Citizens, and agreeably to the
law peculiar to the Urhs Iloniri), a Prsetor was appointed
to determine the civil cases which arose from the relations
between the victorious Republic and the subject or dependent
communities. The inconvenience was inevitably felt in the

Creation of
rroitor
Pcrcgrinu.1,'
to artmiiiistei
justice m
Italij, be-
tween Ro-
mans ami
members of
ItalianSlatet
and between
members of
any of those
States and
members of
any other.

28o

Law : Sources and Modes.

Part II.

frretoT
Drbaiius.

Law ad-
iriiiiistered
liy J'ifetor
Pertgriiius.

early ages of Rome, and tlie remedy was adopted before her
Empire had extended beyond the bounds of Italy.

This new Magistrate (who resided in Home itself, but
who seems to have made periodical circuits through the
conquered States of Italy) exercised ci'S'il jurisdiction in the
following cases : namely — 1st, in all questions or contro-
versies between Roman citizens and members of the Italian
states which were vassals and dependents of the Roman
people ; 2udly, between members of any one of these vassal
states and members of any other ; 3rdly, between members
of subject states when residing in Rome itself: whi-eh might
be considered as a distinct class of questions, because, if the
parties were members of the same community, the dispute
was properly decided by the law of that community.

This new magistrate was styled ' Prcet.or Perefjrinns : '
Xot because his jm'isdiction was restricted to questions be-
tween for ei(jners; but because the questions, over which his
jurisdiction extended, arose more frequently between
foreigners and foreigners than between foreigners and
Roman Citizens: ^ (^vlqA plerumque inter peregrinos jus
dicebat.'

In the strict sense of the term Peregrinus, the parties,
whose causes he commonly determined, were not jjereyrini,
or foreigners, but friends and vassals of Rome. But since
they had been foreigners before theii" subjection to Rome,
and had not been admitted afterwards to the rights of
Romans, they were still called 2><'>'pfi/''i>ti ov foreigners (as
distinguished from C'ives or Roman Citizens).

As I have remarked ab-eady, it is not probable that a
foreigner (in the strict acceptation of the term) could regu-
larly maintain a ciA-il action before any of the Roman Tri-
bunals.

After the appointment of the Prcetor Pereyrinus, the
ancient and ordinary Prsetor was stj^led (by way of distinc-
tion) Praetor Urhanus : Partly because his tribunal was
immoveably fixed at Rome, and partly because he decided
between Romans and Romans, agTseably to the peculiar law
of their own pre-eminent City.

From the appointment of the Prcetor Pereyrinus, and
the causes which led to the creation of his new and extra-
ordinarv' oflice, I proceed to the law which he administered.

In questions between foreigners and Romans, and between
foreigners of different dependent States, the Jirst Praetor
PeregTiuus must have begun with judging arbitrarily. For
neither the law of Rome herself, nor the law obtaining in
any of the vassal nations, afforded a body of rules by which
such questions could be solved.

But a body of subsidiary law, applicable to such ques-
tions, was gradually established by the successive Edicts

Jus G e 11 1 i u m. Ilisiorital Viczu.

281

which he and his successors (imitating tlie Pratores Urbani)
emitted on their accession to ortice. This suhsidiary law,
thus established by the Foreign Prfetors, was probably
framed, in part, upon general considerations of general
utility. But, in tlie main, it seems to have been an abstrac-
tiun (gathered by comparison and induction) from the
peculiar Law of If ome herself, and the various peculiar sys-
tems of the subject or dependent nations.

Perpetually engaged in judging between foreigners and
citizens of Rome, and between foreigners of different de-
pendent States, these magistrates were led to compare the
several systems of law * which prevailed in the several com-
munities composing the Piomau Empire. And, comparing
the several systems prevailing in those several communities,
they naturally extracted from those several systems, a system
of a liberal character ; free from the narrow peculiarities of
each particular system, and meeting the common necessities
of the entire Roman World.

This body of law, thus introduced by successive edicts,
acquired the name oljusc/entium, and this was the meaning
originally annexed to that ambiguous and obscm'e expres-
Bion.

It probably acquired this name for one of the following
reasons : — First, as extending to all communities (including
Rome itself) which formed part of the Roman Empire, it
was properly /Hi yentium ov jus omnium gentium, as opposed
to the law peculiar to Rome and contradistinguished to
the law of a single dependent State. This is the likeliest
origin of the expression. Secondly, it vi&y have meant
law conversant about yent.es or foreigners — namely, those
foreigners who were subjects ot the Roman People, and
with whom it was most concerned. For the term yentes is
frequently used in opposition to does, to mean foreigners, a
distinction similar to that of '"EWjyi'ft; kuI Bap^apoi^ —
' Jews and Gentiles.'

After the dominion of Rome had extended beyond Italy,
the subsidiary Law, introduced into Italy by the Edicts of
the Prcetores ^jcre///^";;/, was adopted and improved by the
Edicts of the various Roman Governors, who (under the
various names of Proconsuls, Prtetors, Propraetors, or Pre-
sidents) represented the Roman People in the outlying
Provinces.

For the governors of these outlying provinces (like the

Lect.
XXXL

Origin of the
term jus gen'
tium.

Extension of
the jus ge>i-
tiuni created
by tlie I'lm-
tores pere-
griiii Xt) tlie
outlying
proviuces.

* The phrase ' systems of law ' seems here used as a short ex-
pression for what might perhaps be more accurately described as a
heterogeneous mass of rules of positive law and positive morality.
The materials for the induction would consist in great measure of
customs hardly yet transmuted into law. To speak here of systems
of law ill the sense we attach to the expression would be to anticipate
the march of L°tin civilization bv some centuries. — R. C.

282

Lazu : Sources and Modes.

Pakt II.

Hesumed
statemeat of
the sub-
sidiary law
obtain in I? lu
Roman Em-
pire, a3 ad-
ministered
both by
iTwtores
reregrini,
»nd by

Prcesides pro-
vinciarum.

Unifnrmity
i>f this sub-
sidiary law
thriiughiiut
the Iloinau
Empire.

Tliis subsi-
diary biw was
styled jfts
ffenfium, and
w.as the jiis
genlitnn of
ihe e:irlier
It'imau
lawyers, and
was a I St)
styled jus
mquum or

Prfctor Peregiiuus, -wliose jurisclictiou was confined to Italy,
and lilve the proper magistrates of the Eoman People) were
tacitly or expressly authorised to legislate, as well as to
judge ; 'jus edicere ' as well as ' dicere.'

As between Provincials of his own province, the gover-
nor of an outlying province regularly administered the law,
and doubtless transmuted into law many customs which
had obtained in the province before its subjection to Eome.
As between Romans and Romans residing within his pro-
vince, he regularly administered the law pecaliar to Rome
herself. But neither the peculiar law of his own'province,
nor the peculiar law of Rome (in its old and unsocial fonn),
would apply to civil cases between Romans and Provincials,
or between Pronncials of diflerent pro"\inces.

In questions, therefore, between Roman Citizens and
Provincials, or between Provincials residing in his province
(hut belonging to different 2»'ovinces), he administered the
subsidiaiy law created by the Prat ores Peregrini, or a similar
subsidiary law created by himself or his predecessors. Con-
sequently, before and offer the dominion of Rome had ex-
tended beyond Italy, a law was administered in Italy (by
the Prcstores Peregrini) in aid of the law peculiar to Rome
herself, or of that peculiar to any of her subject Italian
commimities. After the dominion of Rome had extended
beyond Italy, a similar law was administered in the outlying
provinces (by their respective Presidents or Governors),
in aid of the law peculiar to Rome herself, or of the law
prevailing in any of those pro%'inces before its subjection
to the conquering City. And this subsidiaiy law, thus ad-
ministered in Italy and in the outlying provinces, was applied
to civil questions between citizens of Rome and members of
the nations subject to Rome, or between members of any of
those nations and members of any other.

Since the want which led to the creation of this subsidiary
law was the same in Italy and the outlying Pro^■inces, and
since all its immediate authors were representatives of the
same sovereign, it natiu'ally was nearly uniform throughout
the Roman World, notwithstanding the multiplicity of its
soiu'ces. The Presidents of the outlying provinces uatiu'ally
boiTowed fi'om the Edicts of Pratores Peregrini] and the
Prcetores Peregrini as naturally adopted the improvements
which the Edicts of those Presidents introduced.

As distinguished from the sj-stem of law which was
peculiar to Rome herself, and also from the sj'stems of law
which were respectively 7Jec«//rt;* to the subject or dependent
communities, this subsidiaiy law was styled jus gentium, or
jus omnium gentium : the law of all the nations (including
the conquering and sovereign nation) which composed the
Roman World. As being the law common to these various
nations, or administered equally or universallg to members

Jus G e n t i 11 ni. Historical Vieiv>

283

of these various natious. it was also styled _/«5 aquum^jus
(eqiiahile, ccqiiifas : thouu'h the term ' csquitas ' seems to have
deuoted pro^^erh', not this common or erjual law, but con-
fonnity or consonance to this common or equal law ; as the
more extensive hut ana.log-ous term jus( if ia sig'uities con-
formity or consonance to auy^HS or law of any kind or sort.

As contrasted with the jyroper Rojuau Law, which arose
in an ajre comparatively barbarous and was a product of
narrow experience, the jus f/entium which I have attempted
to describe arose in an age comparatively enlightened, and
was a product of large experience. The^HS r/entiuin, there-
fore, was so conspicuously better than the proper Eomau
Law that naturally it became by degrees incorporated with
the latter. It influenced the legislation of the Populus,
Flebs, and Senate ; it influenced the opinions held and emitted
by the Prudentes ; and (abc^'e all) it served as a pattern to
the Pra-tores TJrhani, in the large and frequent innovations
which they made by their general edicts, upon the old, rude,
and incommodious law peculiar to the Urbs Poma.

So much indeed of they^s (/entiiun passed into the_/i<s
prcetoriuin (or the law which the Prcctores Urban i created
by their general edicts), that one of the names given to the
latter was probablj* transferred to it from the former. It
probably was named cvquitas, (or jus a^quum,') after that
equal or common law, from which it had borrowed the bullc
or a large portion of its provisions.

The law formed by the Edicts of the Pratorcs Urbani
(or the Prtetors who sat immoveably in the Urbs Poma, and
administered justice between Roman Citizens) was com-
monly called jHS^^rrsj'o/vM;^. But having- borrowed largely
from the Jms (jentium, it was also stjded, like ihajus gentium,
' cequitas : ' a name which was extended to it the rather,
for this reason — that a-quitas had become synonymous with
general utility ; and that the Jus jjra'torinni (when contrasted
with the old law, to which it was a corrective and supple-
ment) was distinguished by a spirit of impartiality or fair-
ness, or by its regard for the interests of the weak as well
as for the interests of the strong : e.g., It enlarged the rights
of women ; gave to the Jilius familias rights against tho
father ; to the members of the subject States rights against
lioman citizens.

Now after the incorporation of \hejus gentium with the
proper Law of the Urbs Poma, the latter was distinguish-
able, and was often distinguished, into two portions —
namely, the Jus gentium Avhich had been incorporated with
it, and that remnant of the older law which the.;»s gentium
had not superseded. As being proper or peculiar to the City
of Rome, this remnant of the older law (when contradistin-
guished to the jus gentium) was styled jus civile : that is
to say, the proper or peculiar Law of that C'ivitas or Ind*;-

Lkct.
XXXI,

The tern

Jtis Cifilena
oppo^^ed to
Jus Uiiitiiim
of Kuiuaii
origin.
Near ecinir.i-
lence of tliaC
distinction to
'Jics cicilo it
jus priE-
toriam.'

284

Lazv : Sources and Modes.

Part II.

^uuitas.

Absorption
ofjusge^ttium
liy proper
Imw of Urbs
liuiiia.

pendeut State. Thougli (as I shall show hereafter) j'h.s civile
(taken iu a larger meaniuo) included the ic/iole of the Koman
Law: the jasf/entiiim which it had borrowed, as well as the
jus civile (taking the expression in the narrower meaning)
upon which the jus goitium had heea surperiuduced.

This distinction between /ms civile et f/entium (as denot-
ing different portions of the more recent Roman Law) nearly
tallied Avith the distinction between jns civile et jJrceforiuDi.
For first : Though much of the jus Prcetorium (or the law
introduced by the edicts of the Pratores Urbani) was not
suggested to its authors by the jus (/entiiim, most of it was
naturally formed upon the model or pattern which that jus
cequum presented to imitation.

Secondly ; although the incorporation of the latter -svnth
the Law of the Urbs Iio)nei,-w&s partly accomplished by acts
of the Populus, Plebs, and Senate, still it was principally
effected through the edicts of the UrbanVxpetovs, ; by whom
(as I shall show in a future Lecture) the business of Civil
Legislation was mainly carried on.

Now as most oithe jus prcetorium consisted o? jus f/entium,
and as most of the /«s fienfium (imported into the Roman
Law) was imported by the Edicts of those Praetors, it is not
wonderful or remarkable (considering the clumsy manner in
which language is usually constructed) that jus prcetorium
and /»s (/eufiuni were considered synonymous expressions : —
that the distinction between Jus civile et Jus c/entium, and
the distinction between./;/-? civile etjus prcetorium, were con-
sidered as equivalent distinctions (although, in truth, they
were disparate).

And (for the same reason) the extension of the term
* cequitas ' was restricted to the jus jjrcetoriwm ; though the
term 7ni(//it have been extended to a lex, or a Senatus-consul-
turn which had borrowed its provisions or principle from the
jus c/pntium.

Ihe jus gentium therefore of the earliei Roman Lawyers
was the general law of tlie community composing the Roman
world, as contradistinguished to the particular systems
which were respectively peculiar to those several communi-
ties or gentes.

But in consequence of this incorporation of the jus gen-
tium with the law peculiar to the tirbs Roinci, the jus gen-
tium, a.s a separate system, eventually disappeared. For the
proper Roman Law, ha^-ing adopted and absorbed it, became
applicable to the cases which it had been made to meet .
That is to say, to civil questions between Citizens of Rome
and members of the communities which Rome had subdued,
or between members of any of those communities and mem-
bers of any other. And, by consequence, the office of the
Prcetor Peregrin us fell into disuse ; and the Edict* of the
Presidents in the various provinces became exclusively occu-
pied with pm-ely provincial interests.

Jus Gentium of Digest and Insiitiifcs.

285

The Romau Law liaviiig- absorbed tlie /(^s (jeixtium, and
tending in every direction to universality, had now put ofF
much of its exckisive character. Although that older portion
of it which was marked with the distinctive name of ^vs
civile was still the peculiar law of Roman Citizens, much of
the later law introduced bv the people and Senate, aud more
of the law established by the Urban Prtetors, was adapted to
the common necessities of the entire Roman world. Hence
the Law of the TJrhs Moma (thouph originally the peculiar
law of the dominant City) was applied {in suhsidium) to cases
between Provincials, although the contending parties were
members of the same province, and were actually within the
jurisdiction of its peculiar tribunal. Owing to the character
of universality which it thus acquired, and which was after-
wards heightened by the labours of the Classical Jurists, the
Romau Law (though the law of a single people living in a
remote age) became incorporated iuto the systems of law
obtaining in Modern Europe, as auxiliary to their own pecu-
liar laws.

And here I would remark that a general law or jus
(pqumn, nearly resembling the jus (/entiwn in cpiestiou, has
prevailed in almost every uatiou with which we <ire ac-
quainted.* For every system which is common to a limited
number of nations, or to all the members of a single nation,
is a jus gentium (as the phrase was understood by the
earlier Roman Lawj'ers) when opposed to the particular
systems of those several communities, or to the particular
bodies of law prevailing in that one community.

From t\i&jus gentium of the older Romau Law I pass to
the jus gentium, otherwise jus naturale, of the Institutes
and Pandects.

The^MS gentium or naturale of the Institutes and Pandects

/.F.CT

XXXI.

Causes of
fitness (it
Ruinnii Law
for a Welt-
Jlecht, or mil
versal law.

The }us

gentium or
vaturale of
tlie Insti-
tutes.

* {E.g. Roman Law as stibsidiary law of a limited iiumbpr of
modern nations. General Feudal Law (or ahstractvm contained in
Libri Feudorum) as subsidiary law of a limited number of modern
(or middle age) nations.

Jus commune Gennanicum, since tbe dissolution of the Em j. ire.

ISIercantile Law.

Canon Law.

Jus commune Germanicum, before the dissolution of tlie Empire.

Law contained in the general Prussian Code.

Common Law of United States of America, which is applied by
Federal Coui'ts in cases over which the Constitution has given them
jurisdiction, in default of law made or specified by tlie Constitution
or by Congress.

Common Law of England, as originally understood : though the
original idea is now cut down to Law judii iary, not made on statutes,
administered by Cdurts of Common Law and prevailing as Law
throughout the Realm.

Couip. Falck, § 124. Blackstone, vol. ii. 44 ; vol. iv. 67. Db
Ponceau's Jurisdiction of Federal Courts.

286 Law: Sources and Modes.

Part II. compiled by Justinian lias little or no connexion witli the
'" ■" ' jus gentium explained above. The jus f/enthwi of the Insti-
tutes and Pandects was imported into the Roman law from
the sj'stems of the Grecian philosophers by the jurists styled
classical : that is, the jurists who lived and wi'ote during- the
period intervening between the birth of Cicero, and the
reign or death of the Emperor Alexander Severus, and of
whose writings the Institutes and Pandects are almost en-
tirely composed. Servius .Sulpicius, the friend of Cicero, is
generally, I believe, considered the first of the classical ju-
rists ; Ulpian, who held the post of ' Pr?efectus anuonoe.' and
other otHces under Alexander Severus, closed the series.
They are esteemed classical probably because many of them
lived in the time of Augustus or in the classical ages which
immediately succeeded him, and those who'lived at a later
period retained the classical manner. It is to these jurists
that the Roman law owes the regularity and symmetry of
its form and the matchless consistency of its parts. But iu
spite of their manly sense and admirable logic, they unluckily
introduced into their expositions of their own positive sys-
tem, notions or principles drawn from the Greek philoso-
phers with which shallow declaimers haA'e been vastly taken,
but which have no connexion with the system on which
they are injudiciously stuck, and which must be detached
from the fabric before we can perceive the beauty of its pro-
portions, or feel a due admiration for the scientific cor-
rectness and elegance of its structm-e. Among these notions
I am compelled to raulv the jus r/entium, or, as it is often
teYm.ed,jusnatu]rdc, as understood by the classical jurists,
and as it appears in the Institutes and Pandects.
The (listiiic- It is Said in the Pandects and Institutes of Justinian, and

D'viieiuMjus ^^^0 iu the Institutes of Gains (from which Justinian's Insti-
cu-iie el jus tutcs were principally copied), that every independent nation
Nvhii'h'wiis has a positive law and morality (' leges et mores''), which are
inaiie by die peculiar to itself, of which the o-iven community is the source

riassiral 1, ' in-i i- ^• i.

jurists, and or immediate author, and which, as being peculiar to that

Justinian's givcu Community or civitas, may be styled aptly jus civile :

omnriiaiioiis. ijii^ ^]-^^^ cvciy uatiou, moreover, has a positive law and

ante.) ' ' ' morality which it shares with every other nation ; of which

a natural reason is the source or immediate author; and

which, as being observed by all nations, may be styled aptly

'jus (leniium,^ or 'jus omnium f/entium.^

' Omnes populi, qui legibus et moribus regimtur, partim
suo proprio, paitiiu commuui omnium homiuum jure utun-
tur. Nam quod quisquo populus ipse sibi jus constituit,
id ipsius proprium est, vocaturque jus civile ; quasi jus
proprium ipsius civitatis. Quod vero naturalis ratio inter
omnes homines constituit, id apud omucs populos perteque
custoditur, vocaturque jus gentium ; quasi quo jure omnes
gentes utuntur.'

Jus Gentium of Digest and Institutes. 287

And Die jus gontium described in the foregoiup: passage Lect.
is described in other passages in the Pandects and Institutes XXXI.
as the ' commune omnium hominum (sire civitatum) jus : ' ^~ ' "'
the ' antiquius jus quod cum ipso genere humano proditum
est:' the 'naturale jus quod vocatur jus gentium; quod
divina quadam provideutia constitutura, semper firmmu at-
qae immutabile permanet.'

It is manifest, moreover, from the language of these pas-
sages, that the jus gentiuin occurring in Justinian's com-
pilations is the natural or divinum jixs which occurs in the
writings of Cicero ; and which Cicero himself, as well as
the' Classical Jurists, who prolxibly were intlueuced b}' his
example, borrowed from the (>>vcnKdi' CiKaioy, or uatm-al
rule of right, conceived by Greek speculators on Law and
Morals.

'Nou a duodecim tabulis (says Cicero), neque a Prretoris
edicto, sed peuitus, ex imima philosopliia, haurienda juris
discipliua.'

It seems to follow from the foregoing statement, that the tiio distinr-
distinction between _/«s civile and jus [/entium, wliich occurs E's" '(."^i'^an^
in Justinian's compilations, is speculative ratlier than prac- jus rientunn

■ - - - ^- — '. - -I- - - - _ . 1. which nrciirs

ill Jii?tiiijai!'i
onmpila

acquaintance with the ethical philosophy of the Greeks, spocu'iaiivc
than because it was a fit basis for a superstructure of legal pract[car"
conclusions. Accordingly, a legal inference drawn from the
distinction, is scarcely to be met with in any of Justinian's
compilations ; though, since the distinction is placed at the
beginning of the Pandects and Institutes, and is there
announced to the reader with a deal of formality, one might
naturally think it the forerunner to a host of important
consequences.

The only instance occurring to me, in which a conse-
quence is built upon the distinction between the jus civile
and jus f/entium, is the ditTerence which I have formerly
mentioned between crimes, with reference to the cases in
which iff norantia juris is an excuse. Persons belonging to
tliP classes quihus permissum est jura iffnorctre, and who
are accordingly exempt from certain legal consequences of
that ignorance, are not excused if they have committed an
offence against jus ffentium or naturale ; for jus r/entiuni
being known naturali raiione, or by a moral sense or instinct,
the party must ha^ e known that he was violating the law
of natm'e, and must have sm'uiised that he was violating the
law of the State. The plea of ignorance is therefore in-
ferred to be false and the exemption fails. (See p. 240, aide.)

The distinction indeed between jus civile and jus jyrtc-
iorium, is as penetrating and as pregnant with consequences as
our distinction between law and equity. But, as a legal dis-
tinction, that of jus civile and jus ffentium is nearly barren.

288

La'v : Sources and Modes.

Part II.

Of iui gen-
tium as sig-
nifying in-
ternatlniial
morality.

tripian's jus
naturale.
(See p. 79,
ante.)

Theji'«.s naturale or g-eutium of tlie classical jurists, like
the law natural of tlieir modern imitators, is ambiguous
It soir etimes means that portion of positive law wliicli is a
constituent part of all positive systems. For example,
slavery, in certain passages of the classical jurists, is said to
exist y^re naturali or jure (/entium ; for the institution of
slavery was common to all nations with which the Eomans
were acquainted. But, in other passages, it is asserted that
all men are naturally free, and that the institution of slavery
is repugnant to the law of nature. This can only mean that
it is repugnant to the standard to which, in the waiter's
opinion, law ought to conform.

Before I conclude, I shall advert to certain meanings of
jus gentium difl'erent from those which I have explained. It
sometimes seems to include positive morality, as well as po-
sitive law, especially that part of positive morality which is
styled international law, and which is supposed to be a
constituent portion of all positive morality. As including
all law, and all morality supposed to be general or universal,
the phrase jus gentium necessarily includes that morality
which exists inter gentes. It is not certain that the phrase
is ever used in this sense by the Bomau Jurists, but certainly
Livy and Sallust so employ it. International law is styled
by Gains, as by Grotius and others of the moderns. /«s belli ;
by other Roman jurists it is termed jus feci ale ; and even by
Livy and Salln&t jus gentium is not applied specially to in-
ternational law, though it includes that with many other
objects.

In some modern treatises, almost any system of law
which enters into many positive systems, is styled jus gen-
tium. Spelman, for example, styles the feudal law the jus
gentium or law of iiatiu'e of this western world. The same
notion which the Bomau Jurists expressed by the term is
here applied on a different scale. In the same manner the
name /ms gentium might be given to the Boman Law as
applied in the states of modern Europe, since it forms a
part of ahuost all their systems of law.

Agreeably to the plan which I have sketched in the
outset of this Lecture, I should next examine the /hs ?irt-
t urate, which I style, for the salce of distinction, Ulpians
Law of Nature — a law -« hich, according to him, is coimuou
to man and beast ; and which he distinguishes from thatjws
gentium or naturale, which tallies with the law natural of
modern jurists and moralists.

In two or three excerpts from Ulpian, which are given
in the beginning of the Pandects, and one of which also
occurs at the beginning of Justinian's Institutes, he opposes
to that jus gentium which tallies with the law natural of
the moderns, a certain jus naturale common to man and
beast: — ' Jus quod natura omnia animalia docuit.'

i

Law Natural and Positive.

2S9

This last-moutionedyMS naturale (wliicli accords with au
admired conceit of Hooker and Montesquieu) seems to have
been talien by the good Ulpian from certain inept specula-
tions of certain Stoic philosophers. Since it is peculiar to
Ulpian, and since no attempt to apply it occurs in the Pan-
dects or Institutes, it can scarcely be considered the natural
Law of the Bomam, nor can it be faii'ly imputed to the
body of the Classical Jurists.

Did it not stand at the bcr/inniiir/ of the Institutes and
Tandects, and were it not the source of certain conceits
which have gotten good success, I should have dismissed it
without examination. But since it occupies the foremost
place in Justinian's Institutes and Pandects, and since it is
manifestly the groundwork of more imposing nonsense, it
possesses an extrinsic or accidental importauce which de-
mauds a passing and brief notice.

I,K(T.

XXX J.

LECTURE XXXII.

Laiv Natural and Positive.

Feom the yHS c/entium of the earlier Roman Lawyers I
proceed to the distinction of positive law into natural and
positive, as the distinction is commonly understood by mo-
dern writers on jmisprudence.

The positive laws of any political community are divisible
into two kinds ;

Some it would probably observe as moral or customary
rules, although it were a society not political, and also had
not ascended from the savage state. Otliers it certainly or
probably would not so observe, if it were a uatiu'al society,
and were also in the savage condition. Of the positive
laws, moreover, of any political community, some are pecu-
liar or proper to that single political community ; others are
common to all political communities.

It is probable that some of the laws which obtain as
positive laws in all political communities, would, from
their obvious utility, obtain as moral rules in any political
communitj', although it were a natural society, and living in
the savage condition. Now the positive laws which are
common to all political communities, and wliich, moreover,
are everywhere palpably useful, are apparently the 'natiu-al
laws ' contemplated by modern wi'iters on jurisprudence.

The rationale of the distinction of laws into natural
and positive may be stated thus : —

The positive laws accounted natural are those which are
common to all political societies, in the character of positive

290 Lazu : Sources and Modes,

Tart II. laws ; and being- palpably useful to every society have tbeir
' ' ^ counter]mrt iu the shape of moral rules in eveiy society
(political or natural).

Laws accounted jiositive in the sense in v^'hich the word
is opposed to natural, are not common, as positive laws,
to all political societies ; or though they be common, as
positive laws, to all political societies, the analogous rules
have not their Counterpart iu the moral rules of all societies
(political or natural).

Current The above distinction of laws into natural and positive

for ti'iTdis- appears to be that which modern wiiters intend-when they
tinctiim oE^ ^igg ^he terms. But since the distinction is utterly or nearly
Riidii.orniity useless, (though it rests upon a real difference between
&ni positive. thosB laws and rules,) I will now add to the foregoing state-
ment of it, a short notice of the argument by which it
commonly is maintained.

That cm-rent argument may be put in the following
manner :

There are positive rules of conduct, (legal and moral, or
c.rclusivehj moral,) which obtain uuiversally, or are observed
by all societies. This universal and concm-rent observance
cannot have been the result of induction from utility by
var;s'ing and fallible reason. The human authors, therefore,
of these universal rules, copied them from divine originals :
which divine originals were known to tliose human authors,
not througli fallible reason led by a fallible guide, but through
an instinct or sense, or through immediate consciousness.
These universal rules, therefore, are not so properly rules of
human position or establishment, as rules proceeding imme-
diately i'rom the Deity himself, or the intelligent and rational
Nature which animates and directs the universe.

But there also are positive rules (legal and moral, or ex-
clusively moral), which are not imiversal. And since these
rules are not universal, there is no ground for inferring that
they were copied from divine originals, or from di^dne ori-
ginals as lnio"^ni instinctively and infallibly. Oonsequently,
they certainly or probably are of purely limnan position :
and therefore may aptly be opposed to universal and natm'al
rules, by the epithet of positive or merely positive.

The distinction, therefore, of positive rules into natural

and positive seems to rest on the supposition of a moral

instinct : or, (as this real or imaginary endowment is named

by the Roman LawA'ers and by various modei"n writers,) a

natui'al reason, or a universal and practical reason.

Tiie distinc- The distinction, indeed, is not unmeaning, although the

iiponTreai principle of general utility be the only index to the laws of

difference. Natiu-e or the Deity. For as some of the dictates of general

utility are obvious and nearly the same at all times and

places, there are positive or human rules which are nearly

^ Natural Law'

291

utility, is
rearly use-
less.

uuiversal, and tlie expediency of wliicli must be seen ■v\it]i- Lkct.
out tlie lights of extensive experience and observation. The XX^CII.
distinction is not imaginarv, though it is impossible to draAV ~ ' '
the Hue of demarcation exactly.

But assuming the principle of general utility as the only B"t "ro" "la
index to the laws of the Deity, the distinction, though not general
unmeaning, seems to be utterly or nearly purposeless. For
every human rule (be it universal or particular) which ac-
cords with the principle of utility, must accord with the
Divine Law of which that principle is the exponent. So
that all positive rules, particular as well as imiversal, which
maj' be deemed beneticeut, may also be deemed naturalla,^-s,
or laws of Natm-e or the Deity which men have adopted
and sanctioned.

Besides, rules which are peculiar to particidar countries
may be just as useful as rules which are common to all
countries. For instance : laws imposing taxes necessary to
the maintenance of political government, are not less useful
than the laws which guard property or life : though the
former are merely positive, (as following the existence of
government,) whilst the latter obtain universally (in the
character of moral rules), and therefore are deemed natural.

The distinction of crimes, made by the Roman Law into ^f crimes""
crimes juris (jentium and crimes jure civi'li, tallies with the jnris geutiu:
distinction of crimes made by modern writers into mala in ^"iiies wi'ih
se a-ad viala. ijrohihita. Offences against human rules which j^'j'|"^t'j",j'i,'fto
obtain universally, are (according to these writers) mala,
or oflences, in se, inasmucli as thej' icould be oftences against
the Law of Natm-e or the Deity, although they were not
oflences against rules of human position. But oiiences
against human rules which only obtain partially, are not,
according to those wiiters, oflences against laws of nature.
Or at least, they would not be oftences against laws of the
Deitv if they were not oftences against positive law or
morality. And therefore they are mala, or oflences, quia
proJiihiia, or they take their quality of oftences froin hiuuau
prohibitions and injunctions. I believe that no legal con-
sequence has been built on this last distinction, by any of the
systems of positive law obtaining in modern Em-ope.

moltuin sc
and viala pro-
hibita.

I will here advei-t for a moment to two of the disparate
meanings which are annexed to the ambiguous expression
' ^Natural Law,' by wiiters on jurisprudence and morals.

Taken with the meaning which I have endeavom-ed to
explain, it signifies certain rules of human position ; namely
the human or positive rules which are common to all socie-
ties, in the character of law and morality, or in the character
of morality.

But taken with another meaning, it signifies the laws

O 2

' Natural
Law' as
meaning I'er-
tain rules of
liuuian pnsi-
tion : and
' Xatural
Law ' as
meaning
some stan-
dard to which
liunian rules
should coU'
form.

y

292

Laiv : Sources and Modes.

Part II.

Katunl

Rights.-

wliicli are set to raauliiucl by Nature or the Deity, or more
penerally, it signifies the standard (whether that standard
be the laws of the Deity, or a standard of man's imagining)
to which, in the opinion of tlie writer, human or positive
rules oufiht to conform. And by the confusion of the mean«
ing which I endeavoured to explain, with the meaning which
I now have suggested, the grossest contradiction and non-
sense is frequently engendered.

The ambiguity is the same with that already spoken ot
in the last Lecture with regard to the jus gentium or naturale,
as the terms are employed by the Classical Jm-ists : for ex-
ample, where the institution of slavery is at one time said
to be the creature of the jus naturale or gentium, and at
another to be repugnant to natural law ; and where the jus
civile is said to be the law wo make when we add anything
to, or detract anything fi'om, the Uno of nature *

Before I conclude, I will offer a few remarks upon Natu-
ral Rights.

Natural Rights would be expected to mean the rights
which correspond to Natural Law : Eights which are given
by all or by most positive systems, and which would exist
as moral riglits though government had never arisen.

But by the term ' natural rights ' is frequently meant the
rights and capacities whicli are said to be original or in-
nate ; that is which a man has as simply being a man, or as
simply living under the protection of the state. Such (for
example) is the right which Blackstone styles the right to
personal secimtj', the right to reputation, or the capacity to
acquire rights by conveyance or contract. Natural rights as
thus understood, are totally different from natm-al rights in
the sense of rights corresponding to natiu'al law. The right
to reputation, for instance, could hardly exist in a savage
condition.

All other rights and capacities originate in some parti-
cular incident or mode of acquisition, and are again divided
into those which arise out of some particular status or con-
dition, and those which are said to arise ex speciali titulo,
as by a contract ; the word title, or mode of acquisition, being
confined to those incidents which do not, uno ictu, give a
whole set of rights and capacities, such as constitute a status,

Blackstone has confounded natural rights as taken in the
two distinct senses above indicated ; and because he has
styled natm-al rights (in the sense of rights not acquired by
a pai-ticular incident ) the absolute rights of persons, he has
supposed them to belong to the Law of Persons, although,
as I shall show hereafter, rights of this class belong pre-
mineutlv to the Law^ of Things.

* See p. 288, ante.

t lingo, Xaturreclit. Blackstone, vol. i. p. 123k

Equity^ Various Meanings.

293

LECTURE XXXIIL
Different Meanings of Equity.

As I remarked in the Lecture before the last, the original
jns gentium is the universal and subsidiary law which was
introduced into Italy by the Edicts of the I'rcetores Peregrini,
and was afterwards extended to the outlying Provinces by
the edicts of their Presidents or Governors.

This law, introduced in suhsidium by the edicts of these
Prfetors and Presidents, was styled /hs gentium, or jus om-
tiium gentium, because it was conuiton to the nations com-
posing the Roman world, and was neither peculiar to the
sovereign State, nor to any of the States (formerly foreign
and independent) which her victorious arms had reduced to
dependence or subjection.

It was also styled jus aquum, jus <squabile, or (equitas:
that is to say, Law universal or general, and not particular
or partial. This is the primary sense of the term equity.

Taken, then, in its primary sense, equity, or f7'quity, is
STOonymous with imiversalitg. In which primary sense it
was applied to thej«s gentium of the earlier Roman Law,
because the jus gentium of the earlier Roman Law was
a-quum, or common, and not restricted or particular. The
jus gentium to which it was applied being distinguished by
comparative fairness, equity came to denote (in a secondary
sense) impartiolity. And impartiality being good, equity is
often extended (as a vague name of praise) to any system of
law, or to any principle of direct or judicial legislation,
which, for any reason, is supposed to be worthy of commen-
dation. The applications of the term ' equity ' are extremely
numerous. But, in almost every instance wherein it is ap-
plied, one of the meanings now indicated is the basis of the
complex notion which the term is employed to mark. Of
all the various objects denoted by this slippery expression,
the most interesting, and the most complex, are those por-
tions of the English and Roman Unv, which arose from
the Edicts of the Prcetores Urbani, and from judicial deci-
sions of our own Chancellors, as exercising their extraor-
dinary jurisdiction. And accordingly, those portions of
Roman and of English Law, are the JEquitas, or the Equity,
to which I shall more especially direct your attention.

But before I proceed to 'i'^jtiVy' as meaning a depart-
ment of Late, I will briefly advert to a few of the other
and nimierous meanings which are not unfrequcutly attached
to that most ambiguous term. It is hardly necessary at the
present day (1874) to advert to a supposition which (incre-
dible as it may seem to the student) was not uncommon

Lect.
XXXIII.

Origin of
term Equity
as nieauing
Law.

E.juit.v = uni-
versality.
Ergo, Iiuiiar-
tiality.
Ergo, applic-
alile to any
good law, etc.

Surpositlon
tliat ' Law'
and ' Equity
Is a uuiveriiij

294

Laiv : Sources and Modes,

Equity as
meaning ex
tensive (or
restrictive)
Interpreta-
tion, ex ra-
tione legis.

P.vnx II. among law^-er3 in tlie last generation, namely, that tlie

■ ' ' distinction between ' Law ' and ' Equity ' in the English

»Tid necessary technical sense of the tei'ius, rested on necessary and univer-
sal principles : still less is it necessary to discuss the absiu'd
supposition that the fuuctious of the Chancellor as exercising
his extraordinary jurisdiction, are like the cirhitrium honi
viri, or the functions of an arbiter released from the observ-
ance of rules. I proceed to enumerate certain of the senses
which the term bears, when it does not denote a certain
portion of positive law.

First : There is a species of interpretation or construc-
tion (or rather of judicial leaislation disguised with the
name of interpretation) by which the defective but clear
provisions of a statute are extended to a case which those
provisions have omitted. When the pro\-isions of the sta-
tute are extended to an omitted, case, because that omitted
case falls within its reason, the statute is said to be inter-
preted agreeably to the demands of Equity.

This so-called interpretation is widely different from the
f/enuine extensive interpretation which takes the reason of
the law as its index or guide. In the latter case, the reason
or general design is uualfectedly employed as a vtean for
discovering or ascertaining the specific and doubtful iuteu-
tiou. In the former case the reason or principle of the statute
is itself erected into a law, and is applied to a species or case
which the lawgiver has manifestly overlooked.

Now in this application of the term 'yEquitas,' the radical
idea is,' uniformity'' ox ^universality.'' The law (it is sup-
posed) should be applied uniformly to all the cases which
come within its principle. ' Quod in re pari valet, valeat in
hac qu£e par est. Valeat cequitas : qute paribus in causis
paria jura desiderat.'

By Grotius, the term ' aquitas ' has been applied to a
species of pretended interpretation or construction, whereby
the provisions of the statute are restricted contrary to the
plain meaning of its provisions. Or, according to Grotius,
a law is also interpreted agTeeably to the demands of Equity,
when it is not applied to a case which it actually includes,
but which (looMng at its purpose) its provisions should not
embrace.

By the ancient writers, ' cequitas ' (I believe) is never
applied to restrictive interpretation.. The ' cequitas ' of Cicero
and the Classical Jurists (when they mean hj (equitas,'va.i(i\--
pretation or constniction) is the so-called extensive interpre-
tation ex rationc Icyis of modern writers upon Jurisprudence ;
the ' cequitas, qute paribus in cnusis jtaria jura desiderat.'

It may indeed be doubted (as I shall show iu the proper
place), whether the so-called interpretation, which restricts
the operation of statutes, was pennitted by the Roman Law,
or ought to be permitted by any.

' Ecjuity' Various Meanings.

295

It may seem, at first siglit, tliat tlie pretended interpre-
tation wliicli extends, and the pretended interpretation whicli
restiicts are nearly alike. Their conser|ueuces, however,
might he widely ditlereut. A judge may safely he trusted
with the discretion of extending a law to an omitted ease,
hut to allow a judge not to apply the lav/ in a case plainly
emhraced hy it, would he to leave him to apply the law or
not at his own mere arhitrium : ' Cessante ratioue legis cessat
lex ipsa," is a maxim w'hich sounds well, hut which tends
directly to tjTanny.

Secondly : Equity often signifies judicial imparfialiii/ :
that virtue -^hich is practised hy judges, when they admin-
ister the law, agreeahly to its spirit or purport.

Thirdly : Taken in the significations which I have now
considered, Equity means something determinate and pre-
cise. But, frequently, as defined hy Cicero and others, it
signifies nothing more than the arhitraiy pleasm-e of the
judge (or the arhitrium of the judge as determined hy narrow
considerations of good and evil) disguised h}^ a name which
impoi"ts praise, and which is therefore specious and capti-
vating. A so-called Equity in this sense would he merely
mischievous, hy making the application of the law uncertain
and capricious.

Fom-thlj' : I remarked in a fomrer Lecture that the jus
naturale or gentium of the classical jurists and the Law
Natm'al of modern writers on jm-isprudence, often mean
nothing more than that standard to which, in the opinion
of the speaker, law should conform.

The same may he said of csquitas, or naiuralis cequitas.

In this sense it is said that equitj' is the spirit of laws :
or (as the French have it) ' L'equite est Tesprit de uos lois.'
In this sense of the term, writers often talli of an JEquitas
legislatoria, hy which, if they mean anything distinct, they
must mean general utility. In this sense, JEquitas is
reckoned hy Cicero amongst the som'ces of Law ; which is
obviously ahsurd.

Fifthly and lastly : Equity is often synonymous with the
performance of imperfect obligations.* An equitable or just
man is a man who, though not compelled by the legal sanc-
tion, performs the obligations imposed by the moral and
religious sanctions. In like manner equity is often nsed as
sjTionymous with morality.t Whether with positive mo-
rality, or vrith moralitj^ as it oiight to be, is generally left
undetermined.

Equity as
meaning ju-
dicial impar-
tiality.

Equity as
meaning
arbitrium.

Equity as

meaninij

standard

legislative

(or otlier

etliical)

principles.

Equity as
meaning per-
fiirniance
of imperfect
obligations.

As meaning

Morality

* Miililenbruch, vol. i. p. 76.

t 'Yehit erga Deum religio: lit parentibus et patrioe pareaniuat'
D. i, 1, 2.

Equity ot
Prjetors
called jus
prcetorium ;
aquitas not
being the
Law which he
makes, but
tlie (personi-
11 fd) principle
of legislation
(utility or
iither) which
deterinineg
liim to nialce
it. Eiiglisli
Equity ought
to be called
ratlier Chan-
eery Law,

Taking
equity as not
meaning law,
Courts ot
Equity and
Courts of
Law are
equally con-
cerned with
jt, or equally
strangers to
it.

Equity as a
department
of law : an
historical
and particu-
lar notion.

Law : Sources and Modes.

LECTURE XXXIV.

Equity as a Department of Laio considered Historically.
Jurisdiction of the JPrcetor Urbaniis.

Hatixg examined certain meanings of tlie term 'Equity'
as not denoting law (or a portion of some body of law), I
proceed to those portions of certain bodies of law which are
distinguished by the name of ' equity,' or by the ppithet of
' equitable ; ' or which are said to rest exclusively, or in the
main, upon ' equitable ' grounds or principles.

Of all those portions or departments of bodies or systems
of Law, which have gotten the name of ' Equity,' or the
epithet of 'equitable,' the most remarkable and interesting
are the following : namely, that portion or department of the
Roman Law, which was introduced by Uie Perpetual Edicts
of the Prcstores Urbani; and that portion or department of
the Law of England which was iutroduced by judicial deci-
sions of the English Chancellors as exercising their extra-
ordinary jurisdiction ; and has until now byeu either exclu-
sively or for the most part administered by Courts styled
' Courts of Equity.' The former is commonly styled Jus
jjraitorium. An appropriate name for the latter would be
' Chancery Laxc.''

The application of the term ' Equity ' to the last men-
tioned portion of our Law, and of the phrase ' Couiis of
Equity' to the tribunals by which it is administered, is
gi'ossly improper, and leads to gross misconceptions. Taking
the term ' Equity ' as meaning a species of interpretation ;
or as meaning the impartiality which is incumbent on judges
and arbiters ; or as meaning judicial decision not determined
b}' rules ; or as meaning good principles of direct or judicial
legislation ; or as meaning' the cheerful performance of im-
perfect duties ; or as meaning positive morality, or good
principles of deontology', the Courts styled ' of Equity ' and
the Courts styled ' of Law ' are equally concerned with
Equity, or are equally strangers to Equity.

I shall now endeavour to compare or contrast Proetorian
and Chancery Law ; and for the following two reasons : —

First : It will show that the distinction between Law
and Equity (meaning by equity a portion or department of
law) is not deducible from the universal principles of juris-
prudence, but is accidental and anomalous.

Secondly: By previously comparing or contrasting Praeto-
rian and Chancery Law, I shall be able to state and examine,
with more clearness and efiect, the distinctive properties of
direct and judicial legislation; the respective advantages
and disadvantages of the two species ; with the much agi-

Prcctorian Equity.

297

tdtett iiud iuteresting question, which regards the expediency
nf reducing bodies of Law into formal systems or Codes.

To explain t]iejusj)r(i'torium, I must state the nature of
the jurisdiction exercised by the Prcetores Urbani; and also
tlie nature and causes of the direct lerjidatice power, which
they first exercised with the tacit, and then with the express,
authoiity of the sovereign llomau People.

In the earlier ages of the Roman Republic criminal cases
were regularly tried and determined by the assembled Roman
People : and this doubtless is the reason why the procediu-e
relating to crimes, as well as crimes themselves, acquired
respectively the names \judicia jniblica,^ ' delict a pnblicn:^
which they retained even after the popular government had
been virtually dissolved.

In the same early period, civil jurisdiction (or Juris-
diction properly so called) was exercised by the Consuls.
But as the Consuls were commonly busied with military
command, a magistracy styled ' Prtetura ' was aftei-wards
created : and to the magistrate filling this office was trans-
ferred (with some immaterial exceptions, as, e.g., the duties
of the ^'Ediles) all the civil jurisdiction originally exercised
by the Consuls.

The tribunal of the original Prtetor (namely, of the
Proetor who was appointed as the substitute for the Consuls)
was fixed immoveably in the City of Rome : And (owing to
the cause — explained in a former Lecture — ) his jurisdic-
tion was originally restricted to civil cases arising between
Roman Citizens. Consequently, after the subsequent ap-
pointment of the Prcetor Pereyrinus, and of Presidents or
Governors (^Prasides provineiaruni, sometimes also styled
Prcetors) to the outlying provinces, he was styled, by way
of distinction, Prator Urhanus. When that distinctive
epithet was not needed, he was styled Prcetor simply.

In causes falling within the jurisdiction of the Prtetor,
the ordinary or regular procedure was this: —

The Prcetor cdone heard and determined the cause in the
following events :

First, If the defendant confessed the/ffrfs contained in
the plaintift"s case, without disputing their sufficiency in law
to sustain the demand :

Secondly, If the contending parties were agreed as to the
facts, but came to an issue of law :

Thirdly, If the defendant disputed the truth of the
plaintiff" 's statement, but the statement was supported by
evidence so short, clear, and convincing, that the Prajtor
could decide the issue of fact without an elaborate and nice
inquiry.

But if the parties came to an issue involving a question
of fact, and the evidence produced to the Praetor appeared

Criminal
Jurisdiction
libera repub-
licA, with dis-
tinction of
wronc3 into
public HUd
privata

Civil juris-
diction of
PriEtorea
Urbani.

Order of
■procedure
Ijefore the
Praetor as
exercising
his judicial
functious.

298 Law : Sources and Modes.

Pakt II. doiiLtful, the Prfetor defiued or made up tlie issue, or put
' ■ tlie disputed point into ?i formula or statement, generally in-
volving a question of mixed law and fact thus : — Si imrct
Allium Egerium ajiud Numerium Efjerium on/cntum
cleposuisse, idque die nominato Kumerius Egeriiis Aula Etjcrio
non reddiderit . . . condemncito.

The question embraced in this formula was then sub-
mitted to the decision of a Judex or Arbiter, who not only
inquired into the question of fact, but gave judgment upon
the case submitted to his decision.*

Thefonmda together with the judgment of, the judex
or arbiter, was next remitted to the Prcetor (or to the Coiu't
above).

The judgment oii\e judex or arbiter, was then carried into
execution by or by the coimnand of the Praetor, by whom
(in every cause) the consmnmation, as well as the initiative
of the procedm-e, was superintended or directed.

J'lset I may remark that the proceedings before the Praetor

;i( tcium. veere called proceedings 211 jure ; those before the judex or
arbiter to whom he remitted any part of the case, proceed-
ings injudicio.
^'n'cedure ^ shall also observe, that the original proceedings before

Afterwards the Prretor approached more closely than any other proceed-
aitereci. -j^^.^ -^jj^g]^ J know to what Mr. Bentham calls natural

procedure ; for the whole pleading or process by which
the precise point at issue is elicited, took place viva voce in
the presence of the Prjetor himself. The witnesses were
present and the Prtetor himself decided the cause imme-
diately and on the spot, if the question of fact was not at-
tended with difficulty. Nothing could be more summary or
less dilatory and expensive.

After the judicial constitution was changed, the distinc-
tion between the Prsetor and the Judex was abolished, and
the whole proceeding took place before a single judge. A
similar alteration took place about the same period in the
manner of conducting the pleading. The parties began to
put in their mutual allegations in wiiting, in the modern
form, which has introduced the delay and expense of the
administration of justice in modern tunes.
Procedure on In ceiiain cases, the Praetor at the outset gave provisional

See p. 301"' or conditional judgments, or issued provisional commands

fOSt,

* The proceeding seems to have been not unlike a reference to
arbitration according to the present practice in english common
law cases, only without the absurd waste of time and experise caused
by the preparations for a trial by jury, which is found unsuited to
tiie case. This absurdity will be more or less remedied wlien the
new Judicature Act comes into operation. It is clear that the func-
tions of the judex have hardly an}' analogy, nor have they histo-
rically any relation, to those of Wicjnry. — K. C.

Prcutorian Equity.

299

on an e.v parte statement by tlie PlaiutilF : a process lilve an
luj unction obtained ex parte in Oliaucery or a rule for a
Mandamus at Common Law. TLe party to wlioni tlie pro-
%isional command was addressed might sliow cause against
it ; and if there then appeared doubt as to a question of fact,
this question was treated in the regular manner and remitted
to a judex,

"\\Tiat I have now described was the regular and ordinary
•proceeding. In ceitain cases, which it is not necessary to
detail, the Pnx'tor was said to have not orAj jurisdictio but
cor/nitio. He might enquire into a question of fact, what-
ever might be its difficulties, and dispose of the whole case
without a judex or arbiter. This proceeding was called
judieium extra ordinem. ThePrtetor, too, lihe some modern
com-ts of justice, exercised a volimtaiy jmisdiction in cases
relating to contracts : lending his auspices, not as a judge,
but as sanctioning the proceeding- ; just as the Common
Pleas lent its sanction to the proceeding of a fine or recovery,
or as the Scotch Comts do so to contracts or obligations
recorded b}^ consent iu their books.

The jurisdiction which I have attempted to describe, and
the division of the judicial powers in certain cases between
the Com-t above and an occasional temporaiy tribunal, seems
to have been altered about the end of the third century. It
was iu force in the time of Gains : but in the time of Jus-
tinian the old judicial establishments had been completely
altered. It is for that reason asserted iu the Institutes hodie
omnia judicia sunt extra ordinem. The cognisance of the
suit from its institution to its completion was then whollv
had by a single judge, and the original practice, which seems
to have been generally adopted, of dividing the judicial
power in the manner above mentioned, was dropped.

Cognitio, or
proceeding
extra ordi-
nem.

Ullinmteif
cognitio, or
proceeding
extra ordi-
nem, uni-
rersaU

LEOTUEE XXXV.

Lecjislation of the Prcsiors.

Leot.
XXXY.

Feoji the judicial functicns of the Prcstores Vrbani, I
proceed to that power of direct legislation which thev
exercised at first with the tacit consent, and afterwards with
the express authority of the sovereign Eoman People.

Originally and properly, the Praetor was merely a judge.
It was his business to administer the Law, estalDlished by
the Supreme Legislature, in specific cases falliuo- within his P^fors wa

jm-lSQlCtlOU. oonfined to

But the manner of administration, or the mode of pro- burafter-'
cediu'e, was left, in a gTeat measme, to his own discretion, ■^^'^rds ex-

Tlie direct
legislative
power of tlio

iOO

Laiv : Sources and Modes.

Part II.

Difference
between
preneral and
Bpecial
Edicts.

Accordiuo'ly, eveiy Prfetor, ou liis accession to tlie Proetor*
ship, made aud puUislied Rules of Procedure or Practice to
be observed, during bis continuance in office.

Sucb Tvas tbe direct leaislative power originally exer-
cised by tbe Prfetors. But, in consequence of incessant
changes in the circumstances and opinions of tbe Roman
community, coiTesponding changes in its institutions were
absolutely necessary. And, inasmuch as the demand for
innovation was slowly and imperfectly supplied by the
supreme and regular leaislature, the Prfetors veutiu'ed to
extend their direct legislative power, and to amend or alter
the substantive law wliich properly it was their office to
administer.

As I have used the expression substantive law, I may
here note that this name is applied by Bentham to the
law which the Courts are established to administer, as op-
posed to the rules accoi'ding to which the substantive law is
itself administered. These last, or the rules of procedm-e
or practice, he has termed adjective law.

I adopt, for the present, the distinction between substan-
tive and adjective law, although, as I shall show hereafter,
it cannot be made the basis of a just division.

The Law inti-oduced by the Prtetors was introduced (for
the most part) by their c/eneral Edicts.

The Edicts, Orders, or Precepts, issued by the Praitors,
were of two kinds : general and special.

A general Edict was a statute, or a body of statute law ;
and was made and published by its author as a subordinate
legislator. A special edict was an order, made in a specific
cause ; and was made and issued by its author as a judge.

It appears, then, that the term ' Edict ' was often applied
iudiflerently, to the general rules or orders which were pub-
lished by the Praetors as legislators, and to the special orders
or commands which they made and issued as judges. But
the term ' Edict,' used simphj and without qualification,
nearlv always refers to the r/eneral or legislative Edict. And
80, ' edicere ' or 'jus cdicere,' applied to tbe Prfetor, means to
legislate directbj : The act of judging (or of applying exist-
in? law in specific causes) being denoted by the expression
' jus dicere ' (or 'jus decernere^).

In the orations of Cicero against Verres, ' edicere ' and
' decernere ' are directly aud distinctly opposed in the senses
which I have now referred to. For one of the charges
ao-ainst Yen-es (who, as Governor or President of a province,
was invested with the jus edicendi) is this : quod aliter,
atque ut edixerat, decrevisset : — that in the decrees or orders,
which he issued as judge, he violated the rules, which he
had established in his legislative capacity, by his own
o-eneral edict. In like manner, the general constitutions
issued by the Emperors as legislators (when opposed to

PrcBtorian Equity.

301

the cleci'ee3 which they made as judges in the last resort)
are frequently styled ' edictal.''

Intenlicere (as well as dicere and decernerc) is also op-
posed to edicere. But an interdictum was a special and
judicial order of a particular species. It was a provisional
or conditional order made hy the Prtetor on the ex parte
statement of the applicant : the party to whom it was ad-
dressed havrng the power of showing cause why the order
should not be carried into effect.

Any Prater inight publish a general edict at amj period
during his stay in ollice. But, generally speaking, all the
rules or laws, which were published by any giren Prsetor,
were made public immediately after his accession, and were
comprised in one Edict, or constituted one Edict.

The Edict published by any given Praetor was not legally
binding upon his successor in the Prfetorship, and only ob-
tained as Law till the end of the year during which he
himself continued in office. And, accordingly, the general
edicts of the Praetors, or their edicts simply so called, are
styled by Cicero and others ' Edicta annua,' or ' leyes anniKV.'
They are also styled ^je>7;f/MffZ. "When thus applied, the
epithet ^ i^erpetual' is merely opposed to ^ occasional,' &\i(\.
is used to distinguish ihe general edicts of the Prte tors from
tlie special edicts or orders which they issued in their judi-
cial capacity.

But though the Edict of every foregoing Prtetor was su-
perseded by the Edict of his immediate successor in the
otiice, every succeeding Prajtor inserted in his own edict, all
such rules and provisions, contained in the edict of his pre-
decessor, as had met with the approbation of the public or
of the induential classes of the Public. Eor, as the legis-
lative power of the Prsetors was derived from the tacit con-
sent of the sovereign people, its exercise was inevitably
determined hj general opinion.

Such being the case, the Edict published by every suc-
ceeding Prretor was a simple or modified copy of that pub-
lished by his predecessor. If he simply copied (or trans-
ferred) the Edict of the foregoing Prsetor, his Edict was said
to be translatitious, or tralatitious. This was indeed rarely
the case. If he copied the Edict of his predecessor with
certain modifications, the Edict promulged by himself was
partly Edictum tralafifium, and partly Edictum novum.

It is remarkable that all the edicts of all the successive
Praetors are frequently considered as constituting one Edict.
They are frequently styled (in the singular number) ' t/te
Edict ; ' ' the Prtetorian Edict ; ' or ' the Edict of the Prae-
tors or Prietor.' The process of translation or transference
which I have attempted to describe, explains this form of
expression. "With reference to its jiromult/ation, the general
Edict, which was in force at any given period, was the

Why tlifl
peneral
Edicts of the
Prstors
were stylcii
perpetual.

Edictum
tralatitium,
or the Edict of
the Pr^tiir
of Prsetors

Why Edicts
ciillectivfly
called 'Tlia
Edict;

302

Laiv : Sources and Modes.

Part II.

Tlie'jus
praetoriuni '
was formed
l.j' the Edicts
of the Prae-
tors.

The jus
prcEtorium
a part of the
jus hono-
rarium.

Edict of tlie Pnetor who tlieu occupied tlie Prsetorsliip.
But vritli refereuce to its contents, it consisted of a series of
edicts, the joint vrork of a series of Prastors, forming a con-
tinuous chain and an iudi^-isible whole.

And here I ma}' remark, that, after the Prtetors had
legislated thi-oupdi a lona- tract of time, the general Edict
of the Prfetor for the time being naturally consisted (fo?
the most part) of derivative or trauslatitious rules. For a
the legislative power of the Prfetor was commonly exer-
cised discreetly, the rules introduced originally by the Prfe-
tor for the time being bore a small and insigniiicpjit propor-
tion to those provisions of his predecessors which were also
a part of his Edict, and which had accumulated through a
series of ages.

The agoTegate of rules, which had been introduced by
successive Edicts, and which were embodied in the edict
obtaining for the time being, formed or constituted, at any
given period, the portion of the Roman Law which was
stjded 'Jus Prcstorium.'

A part of the Eoman Law (like much of the Law of
England) was made by judicial decisions on specific or par-
ticular cases. For iu the Eoman Law as in our own,
decided cases exerted by way oi precedent an influence upon
subsequent decisions, provided there was a sufficient train
of nniform decision. This influence was styled ' auctoritas
remm. 2yer2)etno similiter judicatarum.'

Arid as most civil cases fell within the jurisdiction of
the Prtetor, most of the ciA-il law, which was formed by
judicial decisions, ini{/ht have been styled with propriety
"' prtetorian law.' But, nevertheless, the term \jus in-cetc-
rium ' was exclusively applied to the law which the Prastora
made by their general edicts in the way of direct legislation.

This is a fact which I cannot account for satisfactorily ;
but which (perhaps) may be explained by the circumstance
that the portion of the Eoman Law formed by judicial de-
cisions bore an insignificant proportion to the rest of the
system. DerLaud for law of the laud was superseded, iu a
great measure, by the law which the Praetors introduced in
the exercise of tlieir legislative powers.

ThejKS cdicendi (or the power of legislating dii-ectly by
general edicts or statutes) was not confined to the Prcetores
Urhani. It was exercised by every magistrate of a superior
or elevated ranli, with reference to such matters as fell with-
in his jm-isdiction. It was exercised by the high priests or
Fontifices maximi. It was exercised by the Ediles, or the
surveyors and cm-ators of public buildings, roads, and mar-
kets. " With reference to cases arising in Italy, between pro-
vincials and pro^'incials, or between provincials and Eoman
citizens, it was exercised by the Prcetores Perer/rini. In the
outlying provinces, it was exercised by the Proconsuls, and

I

Prcdtorian Equity.

303

other Presidents or Rulers, to wkom the governmeut of
those Provinces was committed by the Roman People.

The rules which were established by the general edicts
of the magistrates who enjoyed iXis, jus ediccndi, were often
considered as constituting a whole, and were styled (when
considered as a whole) the ji«s Jwnoi-arium. The name is de-
rived from the honor cs, or honorable offices lilled by the
persons who enjoyed and exercised the power of promul-
gating general edicts.

Hence it follows, that the jus jvcstorhmi was merely a
portion of the jus honorarium. But as no other portion of
the jus honorarium \f as equal in extent and importance to
the jus 2»'(storium, the term jus honorarium is frequently
restricted to the latter.

The materials out of which the Prretores Urbani con-
structed \hQ jus pratorium appear to have been the follow-
ing :—

First: Those praetors gave the force of Law (through
the medium of their general edicts) to various customary
or merely moral rules which had obtained generally amongst
the Roman people.

Secondly : They imported into the Roman Law (through
the same medium) much of that y?<s gentium, or that sequal
or common Law, which had been formed by the Pratorcs
Ferer/rini, and by the Presidents of the outlying provinces.

Thirdly : So ftxr as the opinion of the Roman public in-
vited or permitted such changes, they supplied the defects of
the _7'hs civile, or proper Roman La v, and even abolished por-
tions of it, agreeably to their own notions of public or gene-
ral utility. — ' Jus Proetorium est ' says Papiniau ' quod pra2-
tores (supplendi vel corrigeudi juris civilis gratia) intro-
duxerunt, jjrojiter ntilitatem puhlicam.''

Inasmuch as the body of law, formed by the Pratores
Urbani, was partly derived from the jus f/entium, and was
partly fashioned upou Utility (as conceived by the Prrators
and the public), it was naturally styled the Equity of the
Praetors, or was said to be founded by the Praetors upon
equitable grounds or principles. Por (as I remarked in a
former Lecture) the jus r/entium was styled jiis ccquum,
whilst general utility (or principles of legislation supposed
to accord with it) was often styled ' iEquitas.' It is said
in a passage of the Digest (referring to a certain rule of the
jus iircetorimii) ' hoc cquitas suggerit etsi jure deficiamur : '
that is to say, the rule was commended by general utility
(or equity), although it was not recognised by that portion
of the Roman Law which was opposed to Wie jus i^rcetorium
by the name of 'jus civile.''

Inasmuch as the jus 2n'cetorium grew gxadually, or was
formed by successive edicts of many successive Prtetorsj it

Materials out
of which the
jasprcEtoriuin,
was formed.

The term
Equity.
^quitas —
Utilitas, or
otlier ap-
proved
principle (>.'
legislatiini.
Jicstitia, as
iiieaniiiij
utilitas, or
other ap-
proved pria«
ciple, etc.

Jus Prw-
torium, r.n
iucoudite

J04

Paut II.

heap of

insulHted

rules.

Iinpllratinn
of substan-
tive law,
and, in par-
ticular, of
BUhstantive
praetorian
law, with
procedure.

Actioncs
Utiles ft III
factum.

Lata : Solinrs and Modes.

was not a formal system or digested body of law, but an iii->
condite collection or heap of single and insulated rules. No
Prfetor thought of legislating sysrematically: nor woiUd his
stay in office have allowed him to legislate systematically,
although the opinion of the public had favoured the at-
tempt, and the supreme or regular legislatitre had inclined
to acquiesce in it.

It is also remarkable, that even the substantive law in-
troduced by the Edicts of the Prsetors was implicated with
procedure.

If the Praetor gave a right unknown to the jus civile, he
did not give that right explicitly and directly. IIe"promised
or declared, through the medium of his General Edict, that,
in case any party should be placed in a certain position, he,
the Prtetor, would give him an action, or would entertain
an action, if he should think fit to bring one. If the Prretor
abolished a rule which was parcel of the jus civile, he did
not abolish or repeal it formally or explicitly. lie promised
or declared, through the medium of his General Edict, that
in case an attempt should be made to enforce the rule by
action, he would empower or permit the defendant to e.r-
eept to the plaintill's action, or to defeat the plaintiff's
action by plea.

The actions (or rights of action) created by the Prtetoriau
Edict, are frequently styled utiles.*

They are also frequently styled ' actiones in factum,' or
' actiones in factum conceptoe.' A form of expression which
seems to have arisen from a peculiarity in the form of pro-
cedure. "Where an action was fouJided on the jus civile, it
would seem that the plaintilf not only stated his case, but
alleged or quoted the law upon which he rested his demand.
"Whence such actions were styled actions in jus, or actions

* The author, apparently following Thibaut, derives the word
' ntili-S' as applied to these actions, from 'iiti' the adverb, because
the action was given by way of analogy to a right of action obtain-
ing according to th^jiis civile. I prefer themore obvious derivation.
The cause moving the Praitor to grant the action was zdiliii/.
'Utile visum est » * » quasi in rem actionem polliceri.' D. xliii.
18. (De superficiebus) I. 1. § 1 : — and the action is, moreover,
■utilis in the sense of being really available in contradistinction to the
often illusory actions of the civil law. It is certainlv hard to find a
passage furnishing the elenchu.t ; and for this reason, that the action
is almost invariably given by way of analogy as well as on
grounds of utilitv. But I think the burden of proof is on the sup-
porters of the more ingenious derivation, and I am not aware that it
is supported even by prima facie evidence which is unequivocal.
StiU less am I aware of any grammatical analogy for it. I should
be surprised by the discovery of an obscure fragment containing the
word 'quasilis.' But to say that nti^quasi is a long step to begia
■with. The idea in titi is not analogy, but similarHy in the narrow
sense of the word : nti — ita, fitted to a ' t.' — II. C.

Prcetorian Equity.

305

in jus conceptcs. But wliere an action was founded on tlie
jus prcetorimn, the plaintiff merely stated the facts without
expressly referring to the Imo which gave him a right to sue.
And since the octor merely detailed the facts, his action was
styled an action in factum, or an action in factum concepta.

Under the virtual sovereignty of the Emperors or Princes,
at least till the reign of Hadrian, the Prcetors continued to
exercise the properly legislative powers which they exercised
liberd repuUicd. But with this diflerence.

Libera 7-epublicd, the Prsetors exercised those legislative
powers by the express or tacit authority of the sovereign
Roman Feople. After the virtual dissolution of the popular
government, the Prtetors exercised those legislative powers
by the express or tacit authority of the Emperors or Princes,
who at first were substantially though covertly, and at length
were substantially and avowedly, monarchs or autocrators
in the Roman World.

In the reign of Hadrian, the Jus Prcetorium, or the PriE-
torian Edict, underwent a considerable change. It was
amended or altered by the jiu'isconsult Julian, and was then
published, by the command of Hadrian, in the form of a
iDody of rules proceeding immediately from the sovereign.
Taking the terms xvritten and unicritten in their juridical and
improper meanings, the jus prcetorium passed from the de-
partment of unicritten, into the department of icritten law.

The Praetorian Edict, as published by the command of
Hadrian, was styled 'perpetual,'' in a new signification of
the epithet. It was now not only perpetual in the sense of
being a general command remaining in force for the Prtetor's
term of office, as distinguished from those occasional com-
mands which he issued judicially in regard to specific cases.
It was also perpetual in the sense of being calculated to
endure in j^erpetuum, or until it should be abrogated by
competent authority.

AVhether the Prsetors after this change under Hadi-ian,
continued to legislate directly (or to legislate by general
edicts), is an agitated and doubtful question. But, however
this may be, it is certain that the Pristors ceased to legislate
directly in the course of the third centuiy.

At or before the close of the third century, the direct
legislation of the Prtetors, and also the legislation of the
Populus, Plebs, and Senate, had yielded to the avowed legis-
lation of the virtual monarchs or autocrators. Thencefor-
ward to the accession of Justinian, the liviny Roman Law
was di'awn exclusively fi'oui the two following som-ces :
namely, the general and special Constitutions of the Empe-
rors or Princes, and the writings of the jurisconsults whose
opinions were deemed authoritative. For since, in the
absence of an Imperial Constitution to meet the case, the

History of
the Praetn-
rian edict
from the end
of the
popular gro-
vernment to
the reign of
Justiuiau.

The Prxto-
rian Legisla-
tion after the
cliange under
Hadrian.

Sources of
tlie law
adniiuistered
by the tri-
liunals, from
Alexander
Severus to
tlie accession
of Justiuiau.

5o6

Law: Sources and Modes.

Part II.

Effect of the
Praetorian
Edict oil
arrangement
of Code and
Pandects.

<

Matter of the
Code and
Pandects.

Arrangement
ot the Code
kudPaudects.

tribunals were guided by tlie exposition of principles and
solutions of cases contained in the wi'itiugs of those juris-
consults, these were in eflect equivalent to statutes and
judicial decisions.

Having sketched the history of the Praetorian Edict to
the accession and reign of Justinian, I will now note the
effect of its structm'e on the arrangement of his Code and
Pandects.

The Roman Law, as it was left by Justinian, lies mainly
in his Code and Pandects : it having been the intention of
theii" imperial projector, that they should comprise the xchole
of the Koman Law which should obtain thereafter in the
Empire.

His Institutes are properly a hornbook for the instruction
or institution of students ; but since its publication was
subsequent to the publications of the Code and Pandects, it
was regarded as a source of Icnc, in so far as it conflicted
with those two compilations, or was concerned with matters
for which those two compilations had not pro\'ided.

The publications of his Code, Pandects, and Institutes,
completed the design of the imperial reformer. His Xovels,
or new Constitutions, were published subsequently ; and are
merely partial supplements, or partial correctives, to the
three compilations embraced by his original project.

His Code is composed partly of cdictal or r/eneral consti-
tutions (i.e. statutes), made and published by the Eoman
Emperors or Princes in their quality of sovereign legislators ;
and partly of special constitutions (i.e. judicial decretes and
orders) issued by Roman Emperors in their quality of sove-
reign administrators.

His Pandects are almost entirely composed of excerpts
from writings by jmiscousults. Some of these excerpts are
didactic expositions, in general or abstract terms, of laws or
principles of law. Others are mere resolutions of specific or
particular questions. As ha"ving been adopted and published
as law by Justinian, (who was sovereign in the Roman
World.) these general expositions and particular resolutions
are properly statutes and judicial decisions ; although those
characters cannot be properly attributed to them as being
the productions of their original authors.

Each, therefore, of these two compilations is a compound
of statute and judiciary law : being partly a collection of
statutes proceeding immediately from a sovereign legislator,
and partly a collection of judicial decisions proceeding im-
mediately from a sovereign judge.

The order or an-angement of each of these two compila-
tions is copied from the order of the Pei"petual Edict : that
is to say, the Prastorian Edict, (or chain of pri:etoriau edicts,)

Praetorian Equity,

Z07

flfi altered hy tLe jurisconsult Julian, and puUislied as Law
by the Emperor Hadi'ian.

This appears from the Commission, (to adopt a modern
expression,) prefixed to the Pandects, and styled ' Da Con-
ceptione Dif/esforum.'' By this Commission, Justinian com-
mands Triboniau and bis associates to arrange the selected
excerpts, ' tam secundum nostri coustitutiouem codicis, quam
edicti perpetui imitationem.'

It is probable that the order of the Code and Pandects
imitated the order of the Perpetual Edict, for the following-
reasons or causes.

In the lirst place : No attempt had been ever made to
collect and arrange the Laws of the Populns or Plehs, nor
the consults of the Senate, nor the constitutions of the
Emperors, nor the judicial decisions of the subordinate tri-
bunals. Consequently, The order of the Prretorian Edict
(which, though a shapeless mass of occasional and insulated
rules, was, at least, a collection of rules), was the only known
model for the arrangement of the projected compilations.
And, Tribonian and his associates being uuinventive and
servile copiers, ordered the matter of their compilations
according to tJie solitary pattern which the Edict presented
to their imitation. In the Institutes indeed they followed
Gaius iu the scientitic or systematic method pursued by
that most eminent Classical Jurist iu his elementary treatise
for the instructiou of students. In this too they were servile
copiers. And as this scientific method had never iu fjxct
been obser-\-ed by any but institutional writers, they never
thought of pursuing it in the composition of those larger
compilations which were destined to embrace the detail of
Justinian's legislation.

In the second place : Many of the writings of the juris-
consults whose opinions were deemed authoritative, were
running amiotations or commentaries on the juspra-torium.
The aiTangement of the Edict was therefore familiar to
practising lawyers, and afforded some convenience on that
account.

Since the contents of the Code and Pandects were ar-
ranged according to the order of the Praetorian Edict, their
arrangement has as little pretension to the name of system-
atic as if it were merely alphabetical.

By many modern writers, it is supposed that the changes,
which the Prpetors wi'ought iu the Pomau Law, were intro-
duced per artes (or smTeptitiously), and were a cheat upon
the sovereign legislatm'e.

It is said, for example, by Heiueccius, in his excellent
Antiquities of the Roman Law :

Lect.
XXXV

Supposition
that the
direct legis-
lative power
exercised by
tlie Pnetors
was usurped
and intro-
duced per
artes.

3o8 Lazv : Sources and Modes.

Part II. 'Qiiamvis vero Prse tores initio magistratus in leges

'^■^ > ' jurarent: revera tamen leges edictis suis evertebant sub

specie pequitatis. Utebantm- banc in rem variis artibus,
yelvAJiJictionihus ; quando, verbi gTatia, fingebant, rem usu-
captam, qure usucapta baud esset, vel contra, etc' *

Now wbeu tbe Prsetor declared by bis Edict, * that, in
certain cases, a tbing acquired by usucapion would be by
bim considered as not baving been so acquired,' be abrogated
a portion of tliQJus civile avowedly and openly. And all
tbe fictions by wbicb tbe Proetors upset t\e jus civile, were
just as palpable as tbat to wbicb I now have adverted.
They commonly consisted in feigning or assuming, ' tbat
something which obviously ivas, was not ; or tbat something
which obviously was not, was.' It is ridiculous to suppose
that such fictions could deceive, or were intended to deceive :
or that the authors of such innovations had the purpose of
introducing them covertly.

The reason of fictions having been employed by the
PrjBtors as subordinate legislators and by subordinate judges
in our own countiy appear to be twofold: — 1st, A respect
for the law which they virtually changed : 2ndly, A wish
to conciliate the lovers of things ancient.

There is another class of fictions for which it is more
difficult to account: e.ff., the fiction of the English Law,
' that the husband and wife are one person : ' or that of the
Roman Law, 'that the wife is the dauf/Jiter of her husband.'
These probably owe their origin to ignorant attempts on
the part of judges or lawj-ers to account for laws originating
in customs belonging to an ancient form of society, but re-
pudiated by modern sentiments.

That the direct legislative power assumed by tbe Praetors
was not usurped and was not assumed covertly, will also
amplv appear from the following obvious considerations.

It was assumed and exercised, from the beginning, with
the tacit approbation, although not by the direct authority
of tbe sovereign Eonian People. For the law made by the
Praetors, in the exercise of this legislative power, was
express statute law made and published conspicuously imder
the eyes of the people, whose interests it concerned, and
who, by an expression of their will, might have abolished
it, and called its makers to account.

Add to this, that it was made and published under the
eyes, and therefore with the approbation, of the Tribunes of
the people : who by their veto might have prevented it from
taking effect, and forced its authors to recall it.

And though the legislative power exercised by the
Prfetors was not assumed in the beginning by the direct
authority of the people, it after-wards was sanctioned

• Antiq. Rom. Syntagma. Ed. HauboW. Lib. I. Tit. 2. c. 24.

Pt'(Xtorian Equity. 309

directly by acts of the sovereign legislature. For nuinlDer- J-^.ct.
less lerjes "of the populus aud plchs^ with numberless consuUs XXXV.
of the senate, assume that the _;'((.? pratorhim is parcel of the ' "*

Roman law, and accommodate their enactments to its pro-
\'isions: just as Acts of our own Parliament are moulded
and fashioned on the judge-made law of the tribunals.

The obvious truth is, that in Eome (as in most other
communities), powers of legislation, direct and judicial,
were assumed aud exercised by subordinate judges ; at first
with the tacit approbation, and in time by the direct au-
thority, of the sovereign legislatm-e.

In ahuost every community, such has been the incapacity,
or such the negligence, of the sovereign legislature, that
unless the work of legislation had been performed mainly
by subordinate judges, it would have been performed most
ineffectually or not at all.

Perceiving this palpable truth, the sovereign legislature,
in almost every community, has permitted and authorised
subordinate judges to perform legislative functions. And
while law made by subordinate judges has thus obtained,
in ahnost every community, on account of its obvious
iitility, i\i% jus jjra-torium was peculiarly acceptable to the
Roman people, because (although judge-made) it was not
judiciaiT law imbedded in a heap of particular decisions, but
was clear and concise statute law, really sening as a guide
of conduct. In the Digests, it is favourably contrasted, for
this very reason, with judiciary law : the certainty of the
one being opposed to the comparative uncertainty and ex
2Jost facto operation of the other.

* Magistratus quoque (says Pompouius) jura reddebaut.
Et ut scirent cives, quod jus de quaque causa quisque dic-
tuiais esset, seque jvccmunirent, edicta magistratus propone-
baut : quae edicta prtetorum jus honorarium constituerunt.'
Lord Coke's redactions (if authorised) would have strongly
resembled Praetorian Edicts, aud been statute law : for law
given in general formulae is statute law.

It is to be regretted, that the legislative power of the j udges
is not exercised directly and avowedly with us, as it was in
Rome; that judge-made law is not made in the fonu of
statute law, but in that of judiciary law ; that our Courts do
not, like the Praetors, express and publish their lawin the form
of general rules, and thus legislate openly instead of covertly.

The incapacity of a sovereign legislature to perform in
detail the business of legislation is inherent in the constitution
of most societies. The incapacity inherent in a hereditary
monarchy is obvious. Legislatures consisting of numerous
bodies have also peculiar incapacities, which obviously are in-
creased in proportion to the number to be convened ; and
which especially affected such legislatures as the assemblies
of the populus aud plebs at Rome.

3IO

Lazv : Sources and Modes.

Part II. The business of legislation ought to be peifonned by

''" ' ' persons at once thoroughly versed in the sciences of juris-
prudence and legislation, and in the particular system of the
given coiuiuunity : The so\"ereigu legislature merely au-
tliorising- and checlriug, and not affecting to legislate
itself. The difliculty in oiu* couutiy in earning- out such
a mode of leg-islating-, as well as of allowing judges to
legislate directly, arises from constitutional jealousy •, a feel-
ing- which is absm'dly capricious in the objects selected for
its aversion.

I may here remark upon a strange inconsistency of
Hugo and other German jurists, who are great enemies of
codes, and admirers of customary law, as being m"ade by the
people themselves, but who yet profess the gxeatest admira-
tion of the Uomau Law.

As lovers of customary law, they depreciate statute
law generally, and especially abhor codes, or compact
and systematic bodies of law. As historians and ad-
mirers of the Roman Law, they insist (andjustlj' insist)
on those excellencies of the _/«s pratorium which I have
briefly stated or suggested. They do not perceive that those
excellencies belong to it as hciny a faint approach to a code:
and that they belong- to a well-made code in a degree in-
comparably higher.

I

LECTURE XXXYI.

Examination
of the opinion
tiiat tlie
distinction
of law into
law and
equity is
necessary or
essential.
Tiie dis-
tinction is
accidental
and histori-
cal.

Is nearly
conflned to
Roman and
English Law.

Jus Prcvtorium and Enalish Eqmtij Compared.

It has been imagined by many, that the distinction
between Law and Equity is necessanj or essential; or, in
other words, that evcri/ system of positive law is distinguished
or distinguishable into Law and Equity. But, in truth,
the distinction is merely historical and confined to the par-
ticular systems of some societies. And the equity obtaining
in any of the systems to which the distinction is confined,
is widely different from the equity obtaining in any of the
rest.

So far is the distinction from being universal and neces-
sary, that I believe it is nearly confined to the Roman and
English Law : comprising in the phrase ' English Law ' the
law of those American states which have borrowed from
the English system a great part of their law and with it the
distinction between Law and Equity in the English sense
of the terms.

' Equity ' of English Courts. 311

]u otlier particular systems there is erjnit}' iu the various
senses before meutioued: — ^judicial impartiality : — impartial
maxims of legislation : — the arhitrium of the judge : — the
parity or analogy vrhich is the ground of the so-called iuter-

{(retatiou ex rationo legis. But there is no body of positive
aw, distinguished by the name of equity, and opposed
under that denomination, to other portions of the legal
system.

In France, for example, the arrets reglemcntaires, issued
by the ancient parliaments, bore a close resemblance to the
edicts of the lioman Praetors. For they were properly
statutes, not concerned exclusively with mere procedure or
practice, and often annulling or modifying laws proceeding
immediately from the sovereign legislatm'e. But the law
so made never acquired the name of Equity ; nor was it, I
believe, distinguished froju the rest cf the legal system, by
any appropriate denomination : nor was there ever in France
any body of law styled Equity iu a sense resembling the
English sense of the word.

The origin and liistoiw of the peculiar Courts iu this
country, styled Courts of Equity, has been given with great
clearness by Blackstone, iu probably the best chapter of his
whole work. From the facts detailed by him, it is obvious
that equity arose from the sulkiness and obstinacy of the
Common Law Courts, which refused to suit themselves to
the changes wdiich took place iu opinion and iu the circum-
stances of society. If the Courts of Common Law had not
refused to introduce certain rules of lavv' or of procedure
which were required by the exigencies of society, the equi-
table or extraordinary jurisdiction of the Chancellor v;ould
not have arisen, and the distiuction between Law and Equity
would never have been heraxl of. If, for instance, the Com-
mon Law Courts would have extorted e^adence from the
parties, plaintiffs would not have had recourse to the Cliau-
ceUor to obtain the power of interrogating the defendant.
If, again, the Common Law Courts would have consented
to enforce certain trusts ; trusts as a subject of the juris-
diction of Courts of Equity would never have been heard
of. There would indeed have been trusts, and suits in rela-
tion to trusts, these being involved iu almost all law, but
those particular classes of trusts which are enforced by
Com-ts of Equity would never have been heard of, as dis-
tinguished from others.

Not only is this verbal distinction peculiar to the Roman
and to the English Law, but it means in each of those svs-
tems, something peculiar to those systems respectively.

From the historical sketcli given in former Lectures, it
has been seen how peculiar was the origin of the Prictorian

12

Laiv : Sources and Modes.

Part II.

V

Differences
I'f [ween
nniiian and
EnBlisli
Eiiiity.

law. The liistory of tlie equitaWe jurisdiction of tlie
English Chancellors may be found in the Commentaries of
Sir William Blackstone, and in a work of Chief Baron
Gilbert.

I shall Contrast the two systems, for the purpose of
showing how dissimilar tliey are^ and of adding a few short
remarks.

The first difference is, that tlie Pnetorian Equity was ad-
ministered by the ordinary civil tribunals ; English Equity,
by an exceptional or extraordinary tribunal.*

A second, and still more important, difierence is, that the
equity administered by the Eoman prsetors was statute law,
or law expressed and published in an abstract 'or general
form : whereas Chancery law is for the most part not statute,
\>\\t judiciary law.

A third distinction is that the subjects with which Prae-
torian Equity and English Equity are conversant are widely
different. I shall merely mention two or three remarkable
cases.

By the ancient law of Rome succession ah intestato was
confined exclusively to ar/nates — males related through males.
The Prfetors, by gradual innovations, altered the whole law on
this subject, by letting in cor/nates or relations in the female
line in preference to remoter annates. The law on this sub-
ject, as laid dcAvu in Justinian's Code and Novels, is entirely
copied from the pra3toriau equity ; and, transmitted through
the medium of the Canon law, forms the foundation of the
law obtaining on this great subject in England and thi'ough-
out Europe.

Under the influence of similar good intentions the Praetors
gradually limited the power of testamentary bequest. By
the Twelve Tables a testator was empowered to dispose of his
property ad lihitum.f

The praetors afterwards took upon themselves to set
aside wills by which a father disinherited his children ; and
aftei-wards gave the children, in spite of the will, a certain
portion. This was the origin of the legitima jwrdo of the
Roman Law, the legitime of French Law. In time this
determinate portion came to be adopted by the sovereign

* This is changed (at least in name) b}^ the Judicature Act of
1873, the operation of which is postponed for the present. As,
however, Courts, which will be practicalh- Courts of Law and Courts
of Equity, will for some years continue to sit at Westminster and
Lincoln's Inn respectively, the' fusion' of Law and Equity which is
imperfectly attempted in that Act will be still more imperfectly
carried out in practice. — R. C.

t A different view, however, of the original intention of this law
of the Twelve Tables will be found in the able and ingenious chapter
on the historv of testanicntary succession in Maine's Ancievt Law.

'

English and Pnctorian Equity. 313

legfislature, and now oLtains as law in probably every country
in Eiu'ope except ]']naland.*

Our Courts of Equity have never meddled with tlie sub-
ject of succession or with that of testamentary disposition.
The maxim, cpqnitas sequitur legem has on these subjects been
strictly adhered to.

On the other hand, one of the principal subjects of the
jurisdiction of our Courts of Equity, is what are called tech-
nically trusts : not that trusts are peculiar to equity, since
they are of the essence of all law whatever ; but that there
are certain trusts which are not enforced by the oi'dinary
tribimals. In the Koman Law there were also what were
ca]le(\. Jideicommissa, equivalent to trusts; but these, it is
remarkable that the tribunals and the pra;tors themselves
would not enforce ; they were first enforced by the Emperors.
Thus, then, one of the chief subjects of the equity jurisdic-
tion of the Chancellor was completely excluded from that of
the Eomau Praetor.

The only resemblances between Eoman and Eno-lisli equity,
are, in ftict, two. First, they both are unsystematic in their
form, and were introduced by gradual innovations. Neither
of them is a system of Law. It is impossible to pive any
idea of either, in general or abstract expressions. In order
to convey any notion of them, it is necessary to enter
into the whole extent of the details. The notion that
there is any essential or necessary distinction is the merest
absurdity.

The other resemblance is, that in both cases the party

* I should think it probable that the legitime of the old I-'rcnch
law as it existed in the Pays de Coutume, had a more homelv, though
not less venerable origin, in the archaic notion of the comnumity of
goods in the family subject to the right of administration of the
husband and father. To a similar origin, and not to a Eomau
source, I think, should be referred that ilivision of the moveable
goods which in the twelfth century was common to England and
Scotland, and which in the latter country remains unchanged to this
day. The division is'tripartite, if wife and children both survive ;
bipartite, if wife only or children onlv. One share is subject to the
disposal of the deceased ; the remaining shares belong to the wife and
chil(h-en respectively. The children's share, in Scotcli law, was
anciently and properly described as the bairns' part ; but when the
study of the civil law became prevalent, it was improperly and by
analogy styled the legitim. The division obviously corresponds
neither to the qtiarta kgitima of the middle lioman law, nor to the
rule adopted by Justinian. It is indeed not unlikely that the prin-
ciple of %/<//« introduced by the Pnetors was part ot" the j!(s_f/en^(M/«
which they observed to prevail as custom in surrounding nations — a
custom which had been virtually abrogated at Rome itself, owing to
the sweeping terms of the law of the Twelve Tables. The shares of
the wife and children appear to have vanished in England owing to
the accident of their having been marked by the ambiguous woni
rationabiles partes (see Blackstone, vol. ii. p. 492). — R. C.
P

314

Laiv : Sources and Modes.

Part II. said to admiuister equity afiects not to alter tlie otlier sys-

"^ ■ ' tern, but to correct or supply its deficiencies. In ostent, or

to appearance, the law wliicli is superseded still continues to
exist ; so that there are two systems existing at the same
time, containing contrary' provisions as to the same matter ;
one of them the shadow of a law which has been superseded
but is feigned still to exist as law, the other the law which
has superseded it.

LECTURE XXXVII.

Meaninfr of
tlie terms.

The princiral
or leading
difference
between

Statute and Judiciary Law,

In the following discourse, I shall call your attention to
a few of the numerous differences which distinguish statute
law (or law made by direct, or proper legislation) howijudi-
ciary law (or law made by judicial, or improper legislation).
And having stated or suggested a few of those numerous
dilierences, I shall remark upon the advantages and disad-
vantages of judicial or imprc^^er legislation, and the possi-
bility of excluding that prevalent mode of legislation, bj^
means of codes, or systems of statute laic.

By the opposed expressions ' statute law' and 'judiciary
law,' I point at a diftereuce, not between the sources from
which law proceeds, but between the modes in v,-hich it
begins. By the term ' statute law,' I mean any law (whether
it proceed from a subordinate, or from a sovereign source)
which is made directly, or in the way of proper legislation.
By the term "judiciary law/ I mean any law (whether it pro-
ceed from a sovereign, or a subordinate source) which is made
indirectly, or iu the way of judicial or improper legislation.

I must here interpose a remarli upon the phrase 'judi-
ciary law.' In using it I have the authority of Bentham,
who styles the law which is made by judges, as properly and
directly exercising their judicial functions, 'judiciary law.'
In the language of the French Code, too, the judicial deci-
sions of judges are opposed under the names 'arrets jw(//-
ciaircs ' to their 'arrets generaux et reglementaires,' i.e. their
statute laws. The -phrase judicial law has been applied by
Sir Samuel Eomilly and others, ard would answer the pur-
pose nearly as well. Unwritten law is inappropriate as well
as ambiguous, as has been already pointed out. ' Common'
law is inadequate, as not comprising the whole of judiciary
law. Judge-made law ^411 not do, because it woiUd include
the statute laAv made by subordinate judges.

The principal or leading diiferencc between those lands of
law which I thus mark by the terms statute and judiciary
law is, I apprehend, the following :

Statute and Judiciary Lata.

iiS

A law made jadicially, is made ou the occasion of a judi-
cial decision. The direct or proper pm'pose of its immediate
author is the decision of the specific case to which the rule
is applied, and not the establishment of the rule. Inasmuch
as the grounds of the decision may serve as grounds of deci-
sion in future and similar cases, its author lejiislates substan-
tially or in effect : and his decision is commonly determined
by a consideration not only of the case before him, but of
the effect which the grounds of his decision may produce as
a general law or rule. But his direct and proper piu-pose is
not the establishment of the rule, but the decision of the
specific case. He legislates as i^roperhj judcjincj, and not as
properhj legislating.

A statute law is made solely and professedly as a law or
rule. It is not the instrument or mean of deciding a specific
case, but is intended solely to serve as a rule of conduct,
and therefore to guide the tribunals in theii" decisions upon
classes of cases.

The principal difference, therefore, between statute and
judiciary law, lies in a difference between the forms in which
they are respectively expressed.

A statute law is expressed in general or abstract terms,
or wears the form or shape of a law or rule.

A law (or rule of law) made by judicial decisions, exists
nowhere in a general or abstract form. It is implicated
with the peculiarities of the specific case or cases, to the
adjudication or decision of which it was applied by the
tribunals ; and in order that its import may be correctly
ascertained, the circumstances of the cases to which it was
applied, as weU as the general propositions which occur in
the decisions, must be observed and considered. The
reasons given for each decision must be construed and
interpreted according to the facts of the case by which
those reasons were elicited ; rejecting as of no autho-
rity any general propositions which may have been stated
by the judge, but were not called for by the facts of the
case, or necessary to the decision. The reasons when so
ascertained must then be abstracted from the detail of cir-
cmnstances with which in the particular case they have been
implicated. Looking at the reasons so interpreted and
abstracted, we arrive at a gi'ound or principle of decision,
which will apply universally to cases of a class, and which,
like a statute law, may serve as a rule of conduct.

Without this process of abstraction, no judicial deci-
sion can serve as a guide of conduct, or can be applied to the
solution of subsequent cases. For as every case has features
of its own, and as every judicial decision is a decision on a
specific case, a judicial decision as a ic/iole, (or as considered
in concreio,) can have no application to another, and, there-
fore, a different case.

statute and
judiciary law.

The principal
difference be-
tween Etatuta
and judiciary
law lies in a
difference
between the
forms in
which they
are respec-
tively ex-
pressed.

i6

Laxv : Soin-ccs and Modes.

PAin II.

An enormous
fault of the

And here I will remark fbefore I proceed £11111161) an
enormous fault of Justinian's Pandects and Code, considered
as a code (in the modern acceptation of the term :) that is to

Pandects and sav, as a hodv of tjeneral rules.

Code, con-
sidered as a
Code.

I showed in a previous Lecture, by a description of the
matter of the Code and Pandects (p. 306 supra), that each
of those two compilations is a compound consisting partly
of statute and partly of judiciary law.

I now proceed to show that the principles of construction
or interpretation of rules of these two classes is essentially
diverse. The primary index to the intention wii-h which a
statute was made, or the primary guide for the interpreta-
tion of a statute, is the literal and grammatical sense of the
words in which it is expressed. It is true that if the literal
meaning is indeterminate or ambiguous, the interpreter may
seek in other indicia, the intention of the legislature ; — for
example, in the reason of the statute, as indicated by the
statute itself; in the reason of the statute, as indicated by
its history — the mischief to be remedied ; or in the clear
enactments of other statutes made by the same legislature
ill 2)ciri v.iaterid.

But if he be able to discover in the literal meaning of
the words any definite and possible pm-pose, he commonly
ought to abide by the literal meaning of the words, though
it vaiy from the other indices to the actual intention of the
legislature. For, the statute being framed for the very pur-
pose of laying down a rule to gaiide the tribunals, it must
be assumed that the terms in which the law is expressed
were carefully measured. If the interpreter might ad lihitum
desert the literal meaning, it would be impossible for the
legislator to express his meaning in terms which would cer-
tainly attain their end.

But the primary index to a rule created by a judicial
decision is not the grammatical sense of the very words or
terms in which the judicial decision was pronounced by the
legislating judge : Still less is it the grammatical sense of
the very words or terms in which the legislating judge ut-
tered his general propositions. As taken apart (or by them-
selves), and as taken with their literal meaning, the terms
of his entire decision (and, a fortiori, the terms of his gene-
ral propositions) are scarcely a clue to the rule which his
decision implies. In order to an induction of the rule which
his decision implies, their literal meaning should be modified
by the other indices to the rule, from the very commence-
ment of the process. From the very beginning of our en-
deavour to extricate the implicated rule, we should construe
or intei-jn-et the terms of his entire decision and discourse,
by the nature of the case which he decided ; and we should
construe or interpret the terms of his general or abstrfict

«

Statute and Judiciary Laiv. 317

propositions, by tlie various specific peculiarities which the
decision and case must comprise. For it is likely that the
terms of his decision were not very scrupulously measoi'ed,
or were far less carefully measiu'ed than those of a statute ;
insomuch that the reasons for his decision, which their literal
meaning may indicate, probably tally imperfectly with the
reasons upon which it was founded. And his peneral pro-
positions are impertinent, and ought to have no authority,
unless they be imported necessarily (and therefore were pro-
voked naturally) by his judicial decision of the very case
before him. It is even unnecessary that the general pTounds
should be expressed by the judge. In which case, the only
index is, the specialities of the decision as construed by (or
recei\-ing light- from "> the nature of the case decided. An
inference ex rei naturd.

Now not onlj^ does a large portion of the Code and Pan-
dects consist of judicial decisions or opinions which, having
the sanction of the Imperial Compiler, are tantamount to
judicial decisions, but what is worse, the portion of the
Code and Pandects which consists of such decisions and
opinions, is constructed with so little reflection and so little
skill, that the gp-neral reasons or principles which were the
bases of the decisions and opinions are often extremely un-
certain. For, in order (it may be presumed) to attain con-
ciseness, or to get at propositions ot an abstract or general
form, the facts of the cases contained in the Code and Pan-
dects are often suppressed by the compilers. The general
propositions contained in the special Constitutions, or in the
analogous opinions of the j urisprudential writers, are detached
from the facts to which they were applied, and which are
requisite guides to their exact import.

Consequently, before we can arrive at their exact import,
we must perform a double process. From the remaining
frag-ments of the particular case to which a proposition of
the kind was applied by the judge or jiuisconsidt, we must
gather the residue of that specific case. And having thus
conjectured the subject of the decision or opinion, we must
collect the import of the proposition (as a general piinciple
or i-ule), by the process of abstraction and induction to
which I have already adverted.

It follows from what has preceded, that law made judi- Ji<^tioUgU . /
cially must be found in the ^qhqx&I groumh ox reasons of d'cW«di. ^
judicial decisions, detached or abstracted from the specific
peculiarities of the decided or resolved cases. Since no two
cases are precisely alike, the decision of a specific case may
partly tui-n upon reasons which are suggested to the judge
by its individual peculiarities or differences. And that part
of the decision which tiu-ns on those diflereuces (or that part

i8

Part II.

Bummary of

foregoing

argument.

Law : Sources and Modes.

of tlie decision which consists of those special reasons) can-
not serve as a precedeiixt for subsequent decisions, and cannot
serve as a rule or guide of conduct.

The general reasons or principles of a judicial decision (as
thus abstracted from anj' peculiarities of the case) are com-
monly styled, by writers on jiu'isprudence, the ratio decidendi.
And this ratio decidendi (which is simply the rule of judi-
ciary law ascertained by the process of abstraction and in-
duction from the decision or decisions in which it is con-
tained) must be carefully distinguished from that which is
commonly called ratio legis. The latter is the end or pm'-
pose which moved the legislator to establish a statute law,
or some part of the provisions of a statute. It is not a law;
nor is it the priiuari/ guide to the interpretation of statute
law, although it may be looked on in some cases as an aid
to interpretation.

And here I Avill briefly remark, that, when I speak of a
riile made by a judicial decision, I do not speak of a deci-
sion which is a mere application of previously existing law.
In every judicial decision by which law is made, the ratio
decidendi is a neiv ground or principle, or a ground or prin-
ciple not previously laio,

A statute law, then, is expressed in general or abstract
terms which are i^c'^'cel of the law itself. And, consequently,
the proper end of interpretation is the discovery of the mean-
ing which was actually annexed by the legislator to thoee
very expressions. For if judges could depart ad libitum
from the meaning of those expressions, and collect the pro-
visions of the statute from other indicia, they would de-
sert (generally speaking) a more certain, for a less certain
guide.

But a rule of law established by judicial decision, exists
nowhere in precise expressions, or in expressions which are
parcel of the ratio decidendi. The terms or expressions
emploved by the judicial legislator are rather faint traces
from which the principle may be conjectm-ed, than a guide
to be followed inflexibly in case their obvious meaning be
perfectly certain.

Broad as the distinction is between the interpretation of
statute law and the analogous process of induction by which
a rule is extracted from a judicial decision or decisions, the
two distinct processes have commonly been confounded by
those who have written on the interpretation of the Roman
law.

Most of the modern Civilians who have treated of in-
terpretation have applied to the statute law contained in Jus-
tinian's compilations, and to the decisions and casuistical

I

i

I

Statute and Judiciary Law. 319

solutions wliicli the compilatious also comprise, the smne
rules of interpretation or construction.

For example : They have confounded extensive interpre-
tation of statute law with the application of a decided case
to a resembling- case.

The so-called extensive interpretation of statute law e.r
ratione lec/is, is the extension of the provisions of the law to
a case which they do not comprise, because the case fixlls
within the scope of the law, although the pro\'isions of the
law do not include it. There is truly an extension of the law.
. But the application of a decided case to the solution of a
similar case is the direct (ijyjylication of the judiciary law it-
self, and not the extension of the law agreeably to its reason
or scope. For, here, the law cannot be extended agreeably
to the reason of the decision, inasmuch as the reason of the
decision (or the ground or principle of the decision) is it-
self the law. The application, therefore, of a decided case
to the solution of a resembling case, is the direct sxdjsump-
tion of a case to which the law itself directly applies, and
not the extension of a law ex ratione ejus to a case or species
obveniens which the law does not embrace.

Again : One of their commonest rides of interpretation —
cessante ratione leffis, cessat lex ijisa — applies solely to pre-
cedents, and does not apply to statute law. For in statute
law, the law is one thing, the reason another ; the law, as a
command, may continue to exist, although its reason has
ceased, and the law consequently ought to be abrogated ;
but there it is, the solemn and unchanged will of the legis-
lator, which the judge should not take upon himself to set
aside, though he may think it desirable that it should be
altered. But in the case of judiciary law, if the gi-ouud of
the decision has fallen away or ceased, the ratio decidendi
being gone, there is no law left.

Professor Thibaut of Heidelberg (in his Interpretation of
the Roman Law) was the first (I believe) who saw distinctly,
that the rules of interpretation which will apply to the
Edictal Constitutions contained in Justinian's compilations,
have little or no applicability to those judicial decisions (or
to those solutions of cases that are analogous to judicial
decisions) which the same compilations also embrace.

It is to be regretted that the excellent work of Professor
Thibaut * is on the interpretation of the Roman law only,
not on the interpretation of law in general ; for, conse-
quently, o^Tiig to the strong peculiarities of Justinian's
compilations, it has little to do with the general principles
of construction. But I am scarcely acquainted with any

* Thibaut, Theorie cler logisclieii Auslegung des romischen
Rechts.

320 Law: Sources mid Modes.

Tart II. book whicli, witliin so small a compass, contains so much

' ■ — "^ original thinking. As was said by Gassendi of some work

of Hobbes', parvus est libellus, at medulla scatet.

Comrctition^ I must bere advert to the phrase ' Competition of opposite
paiey and analogies ' in a passage of Palev, which has been controverted
uomiiiy. -jjy gjj, gamuel Romilly in a paper in the ' Edinbm-gh lie-

view ' on Codification.* Paley"s proposition is this: —
' After all the certainty and rest that can be given to points
of law, either by the interposition of the Legislatm-e, or the
authority of precedents, one principal source of disputation,
and into which indeed the gi'eater part of legal coiitroversies
may be resolved, will remain still, namely, the competition
of opposite analogies.' Sir Samuel liomiUy denies that this
' som-ce of disputation,' as Paley calls it, can arise in the
case of statute law, but maintains that it is peculiar to
judiciary law.

Now the ' competition of opposite analogies " (if the phrase
mean anything) cannot apply to the process of the discovery
of a rule of judiciary law by abstraction or induction as
already indicated. If the rule of law has been inferred
from one decided case, it cannot have been founded on
opposite analogies. If it was established by several decided
cases, it was founded on the resembling and not on the
differing properties of those several cases.

Paley probably refers, not to the discovery of the rule,
but to the application of it to the case awaiting solution.
That case may in some points resemble the hypothetical or
abstract case which is the subject of the rule proposed to
be applied. It may in other points resemble a hypothetical
case which forms the subject of a different rule. These are
certainly competing analogies. But they are not peculiar to
judiciary law, and occur where law of any land is to be applied.
[Probably what Sir S. Romilly refers to, is a very dif-
ferent process of applying judiciaiy law, not imfrequently
resorted to, and which one is sometimes in practice com-
pelled to resort to, iu despair of discovering the ratio
decidendi of the cases. Instead of first inferring the rule
of law and then applying it, we compare the circumstances
of the case awaiting solution with those which existed in
one or more cases which have been akeady decided ; and
having ascertained which case it most resembles, assume
that the decision will be similar. This is a method not so
much of judging, as of yuessing what the decision of a
judge or of a Court of Appeal is likely to be. The method
(if it may be called one), although a blind guide, sometuues
answers in the dark as well as another. The student is,
bowever, recommended to endeavour, if possible, to discover

* Edin. Rev. vol. xxix. p. 224.

Statute and Judiciary Law.

',21

the imiiciple of the decisious relied ou before attempting to
apply them. — R. 0.]

As being connected with the subject which I am now
considering, I will advert to a foolish remark of Sir AVilliam
Blackstone concerning the judicial decretes of the Eoman
Emperors.

He tells us that these decretes, ' contrary to all true forms
of reasoning, argue from particulars to generals.'*

The truth is, that an imperial decrete of the Mnd to
which Blackstone alludes, is a judicial decision establishing
a new principle. Consequently, the application of the_ new
principle to the case whereiu it is established, is not the
decision of a general by a particular, but the decision of a
particular by a general. If he had said that the principle
applied is a new principle, and, therefore, an ex post facto law
with reference to that case, he would say truly. But the
same objection (it is quite manifest) applies to om* own
precedents.

AVhat hindered him from seeing this, was the childish
fiction employed by our judges, that judiciary or coumiou
law is not made by them, but is a miraculous something made
by nobody, existing, I suppose, from eternity, and merely
declared from time to time by the judges. This being the
case, of com'se there can be no ex post facto legislation iu
the English judiciaiy law.

The natural or customary order iu which the law of any
country arises, or is founded, seems to be this :

1st. Rules of positive morality.

2ndly. The adoption and enforcement of these rales by
the tribunals.

Srdly. The addition of other rules di'awufrom the former
by consequence or analogy.

4thly. The introduction of new rules by the judges pro-
2)n'o arhitrio ; and illations from these.

5thly. Legislation proper, by the sovereign legislatiu-e,
in the same order.

Gthly. The action and reaction of judicial legislation
and legislation proper.

7thly and lastly : A Code.

The conception of a code, or systematic and complete
body of statute law, intended to supersede all other law
whatever, does not seem to belong to any age less civilized
than our own. It is essentially a modern thought.t

• Vol. i. p. 59.

t Anciently, all collections of laws (or legal rules) promulged by
the legislature, were called Codes. Tbe modern idea of a Code — 'a
complete and exclusive body of law — did not arise till after the mid-
dle of the last century. First examoles of such Codes : in Prussia,
1747; Austria, 17f.3 Prussia 1767 ;" France, 1793 ; Italy, 1866.
pa

Blackstone's
remark con-
cerning the
decretes o(
the Roman
Emperors.

l/

The order in
which law is
naturally
generated.

322

Law : Sources and 3 lodes.

Part II. It does indeed appear from the Pandects, tliat Justinian

" ' ' intended them and the Code to be the only law thereafter
to obtain in the Eonjau Empire ; but we can only marvel at
the conceit. For those compilations were no sooner pro-
mulgated, than he was obliged to set about a new edition
and to add to them a body of Novels as big as themselves.

This, however, is the only example occm-riug, as far as I
am aware, in ancient times, which can be considered as an
approach to the conception of a Code. Cesar's idea does
not seem to have gone beyond a compilation of the leges of
the 2^02mlus and i^lehs ; a digest of the then existing statute
law.

The conceptions entertained of a Code in modem times
have generally been as indistinct as Justinian's. And this
is the chief cause of the imperfections of all recent attempts
at codification, and the cau^e by reason of which the codi-
fiers have left to l:)e covered by judiciary law the wilderness
which they knew not how to deal with.

Lect.

XXXVIII.

Bentham's
objection to
judiciarj-law,
that it is not
Jaw.

LECTURE XXXVin.
Gi'oundless Ohjections to Judicial Legislation.

Hating touched upon a few of the numerous differences
which distinguish statute from judiciary law, I pass to the
advantages and disadvantages of judicial or improper legis-
lation, and the possibility of excluding that prevalent
mode of legislation, by means of codes, or systems of statute
law.

I will first consider some gToundless objections which
are made to judiciary law. I then will remark on some of
the evils with which it really is pregnant. I shall then
proceed to the question of codification.

It seems to be denied b}' Bentham, that judiciaiy law is
properly law. He says it consists, at the most, of quasi-
commands.

This objection I have already partly answered. It sug-
gests, however, in this place the foUoAving remark.

It appears to me that judiciary law, whether made by
the sovereign or by subordinate judges, quadi-ates with
Bentham"s own definition of a genuine but tacit command,
«.<» given in a note to his ' Fragment on Govei-nment.'
Where it is perfectly well Icnown to be the will of the
sovereign that the principles or grounds of judicial decisions
should be observed by the subjects, as rules of conduct to

yudicial Legislation — Groundless Objeetioiis. 323

be euforced by saactions, the intimation of tlie sovereign Lect.
will is as complete as in any other case. XXXYIII.

Another objection to judicial legislation "which is often a Becona
insisted upon, (and which is lU'ged by Sir Samuel Romilly, obj'e«'i'<''"^?o
iu the article abeady referred to,) is also (I think) founded i^gg' ong^'^^*
in mistake. It is objected to judicial legislation, that "where biiity of its
subordinate judges have the power of malring laws, the ^'■^'"*"'
community has little or no control over those who make
the laws by which its conduct must be governed.

Now this objection, it is manifest, is not an objection to
judiciary law, but to law proceeding from authors (judicial
v)r not) who are not sufficiently responsible to the bulk or
mass of the community.

The objection, as aimed particularly at English judiciaiy
law", would apply to s^f/i!H!!e law, made by the English judg-ea
after the manner of the Eomau Praetors.

It would indeed apply to such statute law iu a less
degree. For a legislator going to work in the way of
judicial legislation, has more opportunities of covering a
sinister intent, than a legislator who sets a rule directly and
professedly. A statute law being expressed in an abstract
or general form, its scope or pm-pose is commonly manifest ;
and if its pm-pose is pernicious, its author cannot escape
from general censm'e. But a law made judicially being
implicated with a peculiar case, and its purpose not being
expressed in any determinate shape, its author can, -with
comparative ease, disavow any purpose which has excited
hostile criticism.

It is a remark of Kant, that the expression in abstract
and general terms ' of a given maxim or principle, afibrds a
proof, (or a presumption,) that the maxim or principle, as a
maxim or principle, is consonant to truth aud reason. ' Der
allgemeine Ausdruck einer Maxime zum Beweise dient, sie
sey als Maxime verniinitig.' It certainly affords a proof,
(or a presumption,) that, iu the opinion of the party who so
expresses the maxim, the maxim is consonant to reason, and
may be laid open and bare to the examination of others.

Another current objection to judiciaiy law supposes a third
that judicial legislators legislate arbitrarily : that the body fbj"c"fdn^to
of the law by which the community is ""overned, is, there- t"'"'^'.^'"? '''^'■'

J ^ ^ fj 7 7 TllJlt lUUffCS

fore, varying and uncertain : and that the body of the law legislate
fur the time being, is, therefore, incoherent. arburarUr.

Now this maybe true, to some extent, of supreme judicial
legislation, for the Sovereign iu the character of judge,
(like the Sovereign iu the character of legislator,) is con-
trolled by nothing but the opinions or sentiments of the
community. But in respect of supreme legislation, the
objection is equally applicable to statute law.

324 Lazu : Sources and Modes.

Parf II. To judiciary law made Ly subordiuate judges (which, in

* ' ' almost every community, forms the greater portion of judi-
ciary law), the objection in question will hardly apply at
all. For the arhitrium of subordinate judges (like that of
the sovereign legislatm'e) is controlled by public opinion.
It is controlled, moreover, by the sovereign legislature:
under whose inspection their decisions are made : by whose
authority their decisions may be reversed : and by whom
their misconduct may be punished. It is controlled parti-
cularly by courts of appeal : by whose judgments their de-
cisions may be reversed : and Avho may point them out to
general disapprobation.

And (admitting that the objection will apply to that
judiciary law which is made directly by subordinate judges)
it also will apply, with a few modifications, to all statute
law which is established by subordinate authors.

Another and very important influence controlling the
arbitrium of judges, in legislating whether directly or in-
directly, i.=i the influence of private la^vj-ers, with the au-
thority which is naturally acquired by their professional
opinions and practices. The supervision and censm-e of the
bar, and of other practitionei's of the law, prevent devia-
tions from existing law, unless they be consonant to the
interests of the community, or, at least, to the interests of
the craft. And though the interests of the craft are not
unfrequently opposed to the interests of the community,
the two sets of interests do, in the main, chime.

The judiciary law made by the tribunals, is, in effect,
the joint product of the most experienced and most skilful
part of the legal profession. In the somewhat disrespectful
language of Beutham, it is not the product of Judge
only, but it is the joint product of Judge and Co. So
great is the influence of this professional opinion, that
it frequently forces upon the Courts the adoption of a
rule of law, by a sort of moral necessity. When the
anticipation of lawyers as to what the Courts would pro-
bablv decide if the case came before them, has been often
acted upon, so many interests are adjusted to it, that the
Courts are compelled to make it law. A rule, for instance,
established by the practice of conveyancers being constantly
acted upon, and engaging a vast variety of incidents in its
favour, performs the functions of a law, and will probably
become law as the particular cases arise.

The way in which law is made by private lawyers, is
•well described in the Digests, by an excerpt from Poin^wnius.
' Oonstare non potest jus, nisi sit aliquis jm'isperitus, per
quern possit quotidie in melius produci.' This is almost
inevitably the growth of law. The laity (or non-lawyer
part of the community) are competent to conceive the

1

Judicial L cgislatioji — Disadvantages.

325

more general rules : but none Lut lawyers (or those wliof e
minds are constantly occupied with the rules) can i)rodv.ce.
(or evolve) those numerous consequences which the rules
imply, or can give to the rules themselves the requisite
precision.

Sangny describes modern law as composed of two
elements, the one element being a part of the national life
itself, and the other element being the product of the
lawyers' craft. The first he names the iwlitkal, and the
last the technical element.

Independently of the external checks above mentioned,
there are causes which naturally determine judges to abide
by old rules, or to form new ones by analogy to the old :
namely, 1st ; A regard for the interests and expectations
which have grown up under established rules : 2ndly ; A
perception of consequence and analogy which determines the
imderstanding, independently of any other consideration.

The truth is, that too great a respect for established
rules, and too gi-eat a regard for consequence and analogy,
has generally been shown b\' the authors of judiciaiy law.
Where the introduction of a new rule would interfere with
interests and expectations which have grown out of estab-
lished ones, it is clearly incumbent on the Judge stare
decisis ; since it is not in his power to indemnify the injm'ed
parties. But it is much to be regxetted that Judges of ca-
pacity, expeiience and weight, have not seized eveiy oppor-
tunity of introducing a new and beneficial rule wherever
its introduction would have no such effect. This reproach
may be made ac'ainst Lord Eldou.

7

LECTURE XXXLX. (Part I.)
Disadvantaries of Judicial Legislation.

Ix my last discourse, I directed attention to a few of the
numerous differences which distinguish statute law from
judiciari/la.'w, and I examined certain objections to judiciary
law, which, in my opinion, are founded in misapprehension.
I now shall state a few of the nimierous evils which ju-
diciary law really produces.

Although, as I showed in my last Lecture, judiciaiy law
has more of stability and coherence than might at first'sight
be imagined; every system of judiciary law has all the evils
of a system which is really vague and inconsistent. Eor it
is to t/ie bulk of the community absolutely unknown and
imknowable. And even to the mass of lairyers it is im-
perfectly known and liable to be misconceived. This arises

First ten.aliie
objection to
judiciar)' law
Difficult to
ascertain.

326 Laiv : Sources and Modes.

Part II. from tlie concrete form in "wliicli the law is expressed ; every

■*- — ^ ' rule Ijeiug implicated -with the peculiarities of the case or

cases by the decision or decisions wherever the law was
established. Arid it arises in two ways ; namely, by reason
of the enormous bulk of the documents in which the law
must be sought,, and by reason of the difficulty of extracting
the law (supposing the decisions known and collected for
the immediate purpose) from the particular decided cases in
which it lies imbedded.

This enormous bulli of judiciary law is an obvious con-
sequence of its form, and needs no comment.

The difficulty of extracting the law from the particular
decisions becomes apparent if we advert to the process,
which I described in a previous Lectm-e, of ascertaining the
ratio decidendi, which really constitutes the rule. To arrive
at the ratio decidendi of any decision we must look at the
whole case which it was the business of the judge to decide,
and to the whole of the discomse by which he sig-nified his
decision ; and thence find the rcdio decidendi by a combined
process of inference (or induction) and abstraction. The
reasons of the decision are compared with the facts of the
case ; thence a ratio decidendi is infen-ed, and the process is
completed by abstracting the principle or ratio decidendi
from the peculiarities and details of the case with which it
was implicated — making use of all the decisions (if more
than one) to eliminate the specialties of fact and elicit the
general principle. The process is often a delicate and diffi-
cult one, its difficulty being proportioned to the number
and the intricacy of the cases from which the rule is to be
taken.

Now by reason of its bulk as well as the difficulty of
interpretation above mentioned, a system of judiciary law
(as every candid man will readily admit) is nearly unlmown
to the general community, although they are bound to
adjust their conduct to the rules or principles of which it
consists. And by the great body of the legal profession
(when engaged in advising those who resort to them for
counsel), the law (generally speaking) is divined rather than
asceilained. Whoever has seen opinions even of celebrated
lawyers, must know that they are often worded with a
discreet and studied ambiguity, which, whilst it saves the
credit of the uncertain and perplexed adviser, thickens the
doubts of the party who is seeking instruction and guidance.
As to the bulk of the community — the simple-minded laity
(to whom, by reason of their simplicity, the law is so
benign) — they might as well be subject to the mere arhit-
riv.m of the tribunals, as to a system of law made by
judicial decisions. A few of its rules or principles are ex-
tremely simple, and are also exemplified practically in the
ordinarv course of affairs. Such, for example. f>yi^ tlip 1-:

yudicial L cgislaiioii — Disadvantages.

327

wliicli relate to certain crimes, and to contracts of frequent
occurrence. And of these rules or principles, the bulk of
the community have some notion. But those portions of
the law which are somewhat complex, and are not daily
and houiiy exemplified in practice, are by the mass of the
community uuliuo\\Ti and unlmowable. Of those, for
example, who many, or of those who purchase land, not
one in a hundred (I will ventm'e to affirm) has a distinct
notion of the consequences which the law annexes to the
transaction.

I am far from thinking, that the law ever can lae so con-
densed and simplified, that any considerable portion of the
community may know the whole or much of it.

But I think that it may be so condensed and simplified
that lau-yers may know it : and that, at a moderate expense,
the rest of the community may learn from lawj'ers before-
hand the legal effect of transactions in which they are about
to engage.

The evil upon which I am insisting is certainly not
peculiar to judiciaiy law. Statute law badly expressed, and
made bit by bit, may be just as bulky and just as in-
accessible as law of the opposite kind. But there is this
essential difference between the kinds of law. The e^dl is
inherent in judiciary law, although it be as well constructed
as judiciaiy law can be. But statute law (though it often
is bulky and obscure) may he compact and perspicuous, if
constructed -SAdth care and skill. There is in this respect an
essential difference between statute and judiciary law.

It must fm'ther be recollected, that whether performed
by judges applying the rule to subsequent cases, or by
private persons in the course of extra-judicial business, the
delicate and difficult process of induction and abstraction
from decisions selected out of the enormous mass is com-
monly performed in haste. Insomuch that the persons trying
to ascertain the rule and apply it, must often mistake its
import if they do not in their hasty search miss the particu-
lar decision containing the rule sought for.

And this naturally conducts me to a second objection :
namely, that judiciary law (generally speaking) is not only
applied in haste, but is also made in haste. It is made
(generally speaking) in the hurry of judicial business, iTas^e,
and not with the matm-e deliberation which legislation
requires.

This objection does not necessarily apply to aU judiciary
law ; for when made on appeal, after solemn argument and
deliberation, it may be made with as much care and fore-
sight, perhaps, as any statute law. This was the case with
many of the decretes of the Roman emperors, as the supreme
judicatory of the empire, which were drawn up by the
Frcefectus lyrcetorii, commonly the most eminent lawyer in

Lkct.
XXXIX.

A second l
tenable "

objection to
judiciary law.
Made ni

i28

Laiv : Sources and Modes.

Part II.

J

A third
tenable obicc-
tion to

judiciary law.
It is exyost
facto.

A fourth
tollable
iibjectlon to
judiciary law
No certain
test of Its
validity.

tile empire, or by the eminent jiu-isconsults wliom he
consulted. This is the case to some extent with the Courts
of ultimate Appeal in this country, particularly where, as
hitherto has been the practice in the Judicial Committee of
the Vvivy Council, the judgment is settled in writing as the
joint judgment of the Court, so that its eflect is not weak-
ened by the doubts and dissents of individual judges.

Thirdly : In relation to the decided case by which the
rule is introduced, a rule of judiciaiy law is always (strictly
spealring) and often in its practical effect an ex 2^ost facto
law.

It is not ahvays so in practical effect ; for as I observed
in my last Lectm-e, the decisions of the Courts are often
anticipated by private practitioners. And the law thus
anticipated, though not strictly law, performs the functions
of actual law, and generally becomes such ultimately.
Though not forewarned by the legislature, the parties are in
effect forewarned by the opinion or practice of those whose
opinions and practices the tribunals commonly follow.

The limitation, however, immediately above suggested
is insignificant : and (speaking generally) a rule of judiciary
law, with reference to the case to which it is fii-st applied,
is not only strictly an ex post facto law, but has all the
mischievous consequences oi ex jjost facto legislation.

Fourthly: I am not aware that there is any test by
which the validity of a rule made judicially can be ascer-
tained.

Is it the numher of decisions in which a rule has been
followed, that makes it law binding on future j udges ? Or
is it the elegantia of the rule (to borrow the language of
the Roman lawyers), or its consistency and harmony with
the bullf of the legal system ? Or is it the reputation of the
judge or judges by whom the ease or cases introducing the
rule were decided ?

In fine, we can never be absolutely certain (so far as I
Imow) that any judiciary law is good or valid law, and will
certainly be followed by future judges in cases resembling
the cases by which it has been introduced.

Here then is a cause of uncertainty which seems to be
of the essence oi judiciary law. For I am not aware of any
contrivance by which the inconvenience could be obviated.

It is manifestly not of the essence of statute law. For
assuming that statute law is well constructed, and is also
approved of by the bulk of the community, it is absolutely
certain until it is repealed.

If, indeed, it be obscure, or generally disliked, it is not more
certain than judiciary law. If it be obscure, it is not know-
able. And if it be generally disliked, although it be per-
fectly perspicuous, it probably will be abrogated by the
tribunals at the instance of public opinion. A cm-ious case

Judicial L egislation — Disadvantages. 329

of this lias been mentioned to me by Colonel Miirat,* son of
the late King of Naples, who, cvn-iously enoii<rh, has prac-
tised as an English hamster in the Floridas, and seems to
have a very pretty knowledge of English law. He says that
the Acts of the legislatures of those American States in which
he has resided, are habitually overruled by the judges and
the bar. At the beginning of every term they meet and
settle what of the Acts of the preceding session of the
legislature they will abide by ; and such is the general
com-iction of the incapacity of the State legislature, and of
the comparative capacity and the experience of the judges
and the bar, that the public habitually acquiesce in this
proceeding. Accordingly, if a law, which the profession
have agi'eed not to obey, is cited in judicial proceedings, it
is absolutely rejected and put down by the lawj'ers sans
ceremonie. In such a case as this it is evident that the
statute law is not certainly law, unless it chime in with the
opinion of the judges and of the bar.

An objection is soraotunes made to judiciary law, which An evil nnt
is founded on an accident rather than inherent in its nature : judfc^ry law
that it is not attested by authoritative documents, but
resides in the memory of the judges, or is attested by the
disputable records of private reporters.

In some of the smaller States of Gennany, the decisions
of the Courts are not recorded and circulated among the
public, even by private reporters, in consequence of the
smaUness of ihe State, and the small quantity of business,
which is not sufficient to pay a reporter. In these States
the law must be utterly unknown ! According to Thibaut,t
it in fact is unlinown even to the lawyers. There is an approx-
imation to this in certain cases in our own country : in local
Comls, for instance, such as that of the Duchy of Lancaster.
The peculiar law administered by these Courts dwells

* It may not be impertinent to say, that the ' ^Murat ' here
alluded to is Achille Murat, the eldest son of the somewliile Kin;^
of Naples. After the fall of Iionaparte he settled in America,
where he married a grandniece of Washington and became a prac-
tising advocate at the American bar. In 1831 he and his wife re-
sided for some time in England and frequently visited us. The
conversation between Mr. Austin and 11. Murat almost always
turned on law. It was strange to hear the technical language of
English law familiarly used by a man whose features reminded one
at every moment of his origin, and of the widely different destiny
which iiad seemed to await him. M. Murat afterwards v.-rote a
book in which the institution of slavery w-as represented as indis-
pensable to the highest forms of civilization. He died some yeare
ago. — S. A.

f ' Ueber die Nothwendigkeit eines allgemeinen biirgedichen
Reciits fiir Dentschland ' (in the ' Civilistisclie Abhandlungen,' and
also printed separately, Heidelberg, 4th edit.). This is the book to
uhich Savignv's ' Vom Beruf, etc' was an answer.

330

L azu : Sources and Modes.

Part II.

-I

A fifth tena-
ble objection
to judiciary
law. The
rules are not
coniprelieu-
Bive.

V

A sixth tena-
ble objection
to judiciary
law. The CO'
existent
Etatute law is
bulky and
nusystein-
utic.

eutirely iu tlie memory of the registrar ; that is, it exists
somewhere, hut is eutirely what he chooses to make it in
the particular case. And every one who frequents om* 0om*t3
must have seen that occasionally, when the judge is at a
standstill, he stoops down and whispers to the registrar of
the Oom-t, iu whose JBeicusstseyn, or consciousness, that
poi-tion of the law of the Court does really reside. All this,
however, is not inherent to judiciary law. It is clear that
there migltt be an authentic publication and record of judi-
ciary law. Neither is the objection peculiar to judiciary
law. Statute law is not necessarihi written or necessarily
published or recorded in an authentic form.

Fifthly : In consequence of the implication of the ratio
decidendi vrith. the peculiarities of the decided case, the ratio
or rule is never or rarely comprehensive. It is almost neces-
sarity confined to such futm'e cases as closely resemble the
case actually decided : although other cases, more remotely
resembling, may need the care of the legislator.

And this inconvenience (for a reason which I have
noticed above) is probably of the essence of judiciary law.
So delicate and diificult is the task of legislation, that any
comprehensive rule, made in haste, and under a pressure of
business, would probably be ill adapted to meet the contem-
plated purpose. The most experienced, and the most learned
and able of our judges, have commonly abstained the most
scrupulously from throwing out general propositions not
necessarily called for by the case to be decided ; and con-
versely when a decision is expressed to be based on a jirin-
ciple laid down more broadly than the facts required, it is
often found necessary iu subsequent decisions to narrow the
rule apparently laid down by the iirst decision. This is
commonly done by distinguishing the species of facts in the
new case from those Avhich called for the decision in the
first case.

Sixthly : wherever much of the law is judiciary law,
the statute law which coexists with it, is imperfect, un-
systematic, and bulk}\ The statute law is not of itself an
edifice, but is merely a set of irregular or unsystematic
patches stuck from time to time upon the edifice reared by
judges.

It is true that a body of statute law (though it be not
stuck patchwise on a groundwork of judiciary law) may be
irregular and bulky ; and this is actually the case with that
portion of the Prussian Law made from time to time by the
Prussian Law Commission for the purpose of amending the
Code. But this arises mainly from the original bad con-
struction of the Code, and the neglect of the Government
in not remodelling the Code from time to time and inserting
the amendments which have been found expedient.

And there is this essential difference between a complete

I

I

Codification.

body of statute law, aud a body of statute law stuck patch-
wise ou a grouudwork of judiciary law. The latter must
be irregular ; must be bullrv ; aud therefore ?««si! be dil'icult
of access. The latter mxty be systematic ; may be compact ;
aud therefore may be (in the language of Mr. Bentham)
coynoscible. It would be so if a code were originally well
constructed and from time to time systematically amended.
Wherever, therefore, much of the law consists of judi-
ciary law, the entire legal system, or the entire corpus juris,
is necessarily a monstrous chaos : partly consisting of judi-
ciaiy law, introduced bit by bit, aud imbedded in a mea-
sureless heap of particular j udicial decisions, aud partly of
legislative law stuck by patches ou the judiciai-y law, and
imbedded iu a measureless heap of occasional and supple-
mental statutes.

331

LECTUEE XXXIX. (Paet II.)
The question of Codijication discussed.

The question of codification may be considered in the
abstract or in the concrete.

By the question of codification considered in the abstract
I mean the question whether a good and complete code is
better than a body of law (supposing it to be well expressed
iu its way) consisting in whole or in part of judiciary law.
l?y the question of codification, considered iu the concrete,
I mean the question whether, ha-ving regard to the circum-
stances of a given community, it is expedient to attempt the
reductiou of the law to a code.

In the first place I shall confine myself to the c[uestion
in the abstract. I shall then make a lew and brief remarks,
— not discussing codification in the concrete, for that would
involve a number of particular considerations which do not
fall within my design, but — upon the nature of the con-
siderations ou which the discussion of that question ought
to turn.

And first iu the abstract : —

That codification is practicable appears as follows.

It is possible to extract from particular decisions,
rationes decidendi. Else judiciary law would not be law at all,
but a mere heap of decisions depending, so far as not resting
on statute, on the mere arhitrium of the judge. These
rationes decidendi, if stated in the abstract (and illustrated
by typical instances), would be clearer than when lying in
the concrete implicated with the circumstances of the

332

Law : Sources and Modes.

Part IL particular cases. They would also be more general, abstract,

' ■ ' and adequate. For they would be so expressed as to apply

to all cases of the species, and not limited to the cases
(with their accidents) by which the rcdiones (or rules) were
established. The induction (previous to the application)
of the ratio decidendi of a decided case, is codification pro
tanto of judiciary law. The process is undoubtedly difficult,
and great harm is done to the cause of codification by re-
presenting it as easy. But if judiciaiy law is Law at all,
it is possible to codify it.

That codification of statute law is practicable will not
admit of a doubt. If it is practicable to establish general
rules (in an abstract form) one by one and without sj'stem,
it is practicable to establish a system of such rules. This
is done jtro- tanto when the statute law on a particular
subject ia consolidated. A consolidating statute in effect
very commonly answers to one of the Special Codes de-
sii'ed by Bentham. It is a code of a certain department of
the Law of Persons.

i

That codification (considered in the abstract) is expe-
dient is in my opinion amply demonstrated by a mere
statement of the evils inherent in judiciary law.

I have in the first part of this Lecture enumerated the
principal q\\\s inherent in a body of judiciary law, or in a
body composed of judiciary law and statutes supplementary
to it. There remains nothing pertinent to be said about
the question of codification in the abstract. But it remains
to strip the question of certain impertinent arguments
which have been adduced by the advocates on the two
sides of the so-called question.

Before I advert to those arguments, I would briefly
interpose the follo"v\nng remarks : —

In speaking of the advantages and disadvantages of sta-
tute and judiciary law I advert to the fonn and not to the
matter. It is clear that these considerations are completely
distinct. Judiciary law of which the pm'poses are bene-
ficent, may produce aU the evils on which I have insisted.
Statute law, v,'ell arrange>i and expressed, may aim at
pernicious ends.

In like manner, codification does not involve any innova-
tion on the matter of the existing law. To imagine the
contrary is a mistake often made by the opponents of codi-
fication. They often suppose codification to mean an entire
change of all the law obtaining in the countiy.

First leading The first and most current objection to codification, is

eudm(»tion. the necessary incompleteness of a code. It is said that the

individual cases which may arise in fact or practice, are

Codification. Z})'^

infinite; and that, therefore, they cannot be anticipated,
and provided for, by a body of general rules.

IMy answer to tiiia objection is, that it is equally appli-
cable to all law : and that it implies in the partisans of
judiciary law (who are pleased to insist upon it), a profound
ignorance, or a complete forgetfulness, of the natui'e of the
law which is established by judicial decisions.

For either judiciary law consists of rxdes^ or it is merely
a heap of particular decisions inapplicable to the solution of
futm-e cases. On the last supposition it is not law at all.
On- the first supposition it is clearly impossible that the
rules, being finite in their number and scope, can provide for
the infinite variety of possible cases that may arise in
practice.

Yet this objection is insisted on by many of the redac-
tors of the French Code, whom one might abuost suppose
to be enemies of codification, and desirous to defeat the
pm'pose of the code which they were appointed to make.
In the ' Conferences du Code Napoleon,' a work containing
a report of the discussions in the Council of State upon the
original project of the code, Portalis says that a code can
provide only very imperfectly for the variety of cases which
arise, and that much must be left to le bon sens and requite.
Now if le bon sens and Vequite, that is, the arbitrium of the
judge, are to decide, I cannot see the use of all the pother
about legislation. So far as the judge's arbitrium extends,
there is no law at all.

Hugo's objection* is, that if a body of law affected to second:— \ /
provide for every possible question, its pro\-isions would be uon.° A'orv' '
so numerous that no judge could know them all: and as liaweto
to the cases which it left undecided (which would neces- 'competitm
sarily be numerous) the couilicting analogies presented by |ee p.^320"
those cases would be in exact proportion to the nimiber and supra.
minuteness of its provisions.

The objection proceeds on the mistake of supposing that
a code must provide for eveiy possible concrete case.

To the first part of the objection it may be answered
that either the future case must be provided for by a law 01
it must be left to the mere arbitrium of the judge. And
you do not obviate the incompleteness inherent in statute
law by makinfi no law.

The second part of the objection is founded on the sup-
position that the provisions of a code are more minute and
numerous than the rules embraced by a system of judiciary
law : and it is supposed that therefore the rules are more
likely to conflict.

Now it seems to me that this is the reverse of the truth.

• Cited by Savigny (Vom Beiuf, etc. p. 2t).

334

Part II.

ThUd objec-
tiou to codi-
flration —
failure of the
Kreuch aud
rrussian
codex— ex-
aiuincd.

These codes
liave failed,
not as codes,
but by reason
o£ their

Laiv : Sources and Modes.

As I liave sliown above, a rule made bj^ judicial decision
is almost necessarily narrow : whilst statute laws may be
made comprehensively, and may embrace a whole genus of
cases, instead of embracing only one of the species which it
contains.

And which, I ask, is the most likely to abound in
' competing analogies ' : A system of rules formed together,
and made on a comprehensive survey of the whole field of
law ? or a congeries of decisions made one at a time, and in
the hurry of judicial business ?

I admit that no code can be complete or perfect. But
it may be less incomplete than judge-made law, and (if
well constructed) free from the great defects which I have
pointed out in the latter. It may be brief, compact, syste-
matic, and therefore knowable as far as it goes. And many
devices may be hit upon, which have never yet been thought
of, or which have been neglected, for removing the defects
incident to codes,*

A thii'd objection to codification is founded on the
alleged ill success of the so-called codes which have been
compiled in France, Prussia, aud other countries, by order
of the government, and established as law by its authority.
I now proceed to cousider this objection, aud in doing so I
shall have occasion to advert to a treatise by Saviguy on
the subject of codes (Vom Beruf unserer Zeit fiir Gesetz-
gebung uud Rechtswisseuschaft. Heidelberg, 1814). I
reserve for the concluding part of this Lecture a special
examination of that specious but hollow treatise.

It must be admitted that the codes of France and
Prussia, to which at present I confine my remarks, have
not accomplished the primary ends of a code in the modern
sense of the term, that is, a complete body of law intended
to supersede all the other law obtaining in the country.

In France, the code is buried under a heap of subsequent
euactiuents of the legislature, and of judiciary law subse-
quently introduced by the tribunals. In Prussia, the mass
of new laws and authoritative interpretations which have
been introduced subsequently to the promulgation of the
code, is many times the size of the code itself.

Xow the ill success of particular codes, admitting their
failiu-e to be as complete as is aflirmed, would prove nothing
against codification. Those who woidd make it tell as an
objection to codes in general, must show that the particular

* Amoniist such devices may be instanced the method adopted
in the instahnents of a code for India which were publislied under
the authority of Her Majesty's Commissioners; a method, combining
concise statement of principles with illustration by practical ex-
amples. A similar method has been followed by Mr. Stephen in his
admirable piece of work : — ' The Indian Evidence Act, 1872.' — E. (J.

Codification.

335

codes iu question have failed as being codes, or by -vnrtue of
the qualities belonging to them as codes, not by defects
pecufiar to the codes in question. Accidental and avoidable
causes have rendered the French and Prussian codes unsuc-
cessfid to a considerable extent ; though, after all, the failure
of these codes has been much exaggerated.

I shall briefly advert to these causes, and iu doing so I
shall mainly confine my observations to the French code,
because its failm-e is the most remarkable, and because it is
the best known, or the only one which is knovru, to English
lawyers. Some of its faidts are mentioned by Saviguy ;
others, which are more important, he has not mentioned.

The first glaring deficiency of the French code is the
total want of defijiitions of its technical terms, and expla-
nations of the leading principles and distinctions upon which
it is founded. This grievous defect Savigny has not men-
tioned. "Without definitions of the technical terms and
explanations of the leading principles and distinctions, the
particular provisions of the code must be defective and in-
coherent, and its language dubious. For unless these lead-
ing principles are habitually present to the minds of the
authors, how are they to thread with certainty the labyrinth
of the details ? And unless the leading principles and dis-
tinctions are defined, how are those leading principles and
distinctions to bo constantly present to the minds of the
codifiers in a definite shape? Again, unless both sets of
definitions are contained in the code itself, the judges and
all other persons who have occasion to apply it, must be
perpetually at a loss for the meaning. Unless, therefore,
the code contains a statement of leading principles as weD
as details, the code itself does not furnish the necessary
guides to its own meaning ; if those guides exist at all, they
exist en dehors of the code.

Now, of the necessity of explanations of the leading
principles and distinctions, and of defining the techni-
cal terms, the compilers of the French code had no idea.
The principles and distinctions they tacitly borrowed from
the ancient law, and clothed them in the technical terms
of the same law, without any attempt to determine the
meaning of those terms, but tacitly assuming them to be
known and certain.

And not only did they abandon definition to be supplied
by the old sources of law, but in the details of the code they
display a monstrous ignorance of the principles and distinc-
tions of the lioman law which they tacitly assumed. To give
a flagrant instance ; — Without a distinct conception of the
distinction between dominia and ohligationes (as the terms are
used by the Classical Jurists, meaning the distinction which I
have marked by the expressions jwrrt in rem and/i'v-fi in jjer-
sonam), no clear conception can be formed of the general

Lect.
XXXIZ

faulty con-
struction

First defect
in tlioFreucIl
code : it is
totally
davoid of
definitions
of the tecli-
nical terms,
and exi'lana-
tions of the
leading prin-
ciples of the
French law.

Monstrous
ignorance of
the authors
of the French
code with
regard co the
lioman Law

336 Laiv : Sources and Modes,

Part II. structure of the Roman law, or indeed of wliat must neces-

■"— — " ' sarily be the structure of any system of law. Now, as

Savigny remarks, the authors of the French code never con-
ceived this distinction clearly, and the consequent darkness,
confusion, and incoherency introduced into the code are in-
credible. Among other blunders into which the want
of that conception has led the authors is the following.
Ha^•ing adopted the two-fold error which I mentioned in a
former Lecture (p. 183) ?i\yo\\i titulus and modus acquirendi,
and involving it with a looseness of expression of their
ovm, they apply to the right of property (' la propriete ')
the exquisitely absurd expression that it is acquired and
transferred (amongst other words) ' favYeffetdcs'ohliffations,'
(Art. 711). What is really meant is simply that in certain
cases, namely in sales of immoveables, the same transaction
wears the double aspect of a convention or agreement and
a conveyance. But that these servile copiers of the com-
pilations of Justinian should use the word ' obligation '
(which in the sense of the Eoman lawyers is always con-
trasted "svith and excludes ' dominium ') as that which im-
parts the dominium, betrays an entire ignorance of the
meaning of those writers whose language they blindly
adopted. lu this point the ignorance of these compilers is
unpardonable, because a mistake of the same kind had
already been committed in the Prussian code. By the
authority of the Chancellor Von Ivi'amer, overruling Suarez
(tlie man of real capacity among the framers of the Prussian
code) the head of contracts had been stuck into dominium,
under the erroneous notion that every acquisition of pro-
perty is preceded by a modus acquirendi: that is, ohligcdiones
had been stufted into the opposite department of dominiujii
or property. This blunder had been so much commented
upon by German writers, that the compilers of the French
code ought to have been thoroughly acquainted with the
merits of the controversy. But, knowing nothing about
the matter, instead of avoiding the mistake, they have only
thickened the confusion.
Bo the The Prussian code has also the vice of being devoid of

fodc.^'*" definitions. Being based on the Roman law, it refers

throughout to the principles and distinctions of the Roman
law, and borrows the technical language of that system,
without the requisite explanation of the import of that
lauguage. A kiowledge of the Roman law, and of the
other systems of law previously obtaining in Germany, is
still a necessary preliminary to a study of the code. The
code has not superseded completely the old subsidiary or
common law which it was intended to supplant.

It is remarkable that the authors of Justinian's com-
pilations, in spite of their general incompetence, had some
notion of the necessity of explaining in the code itself,

Codification.

337

its leading principles and distinctions, and defining its
technical terms. The last title but one of the Pandects,
(le verhorum sir/nijicatione, is an attempt, though executed
very imperfectly, to define certain leading terms. The last
title (de divcrsis rcr/ulis juris) is an attempt to collect some
of the legal rules which run through the whole law.
Another means taken to render reference to the pre-vious
law unnecessary was the insertion in tlie Pandects, and in
various places in the Code, of much historical matter ; and
this, having been unskilfully inserted, has often been con-
founded by modern commentators -^-ith the imperative part
of the law.

It may be said that it is impossible to give, in the code.
itself, explanations of the leading principles and distinctions,
and definitions of the technical terms. My answer is, that
though undoubtedly difficult, it is not impossible. The
principles and distinctions \nust exist somewhere, and the
terms must have a determinate meaning, which it must be
possible to find ; and though the principles and distinctions
and the meanings of the terms may be imbedded in much
other matter, they mai/ be extracted and put into an abstract
shape.

Another defect of the French Code is pointed out by
Sa-^-igny. It appears from the Conferences or discussions in
the Council of State upon the project of the Code, that it
was not the design of the compilers to make it a code in
tlie modern sense of the term, that is, a complete body of
statute law. In those discussions, they refer perpetually to
■various suhsidia with which it. is to be eked out. I shall
mention some of them. 1. £quite naturelle, loi naturelle.
2. The Roman law. 3. The ancient customs. 4. Usac/e,
exemple, decisions, jurisprudence. 5. Droit commun. G.
Prineipes generaux, viaximes, doctrine, science. It thus ap-
pears that they intended to leave many of the points which
the Code should have embraced to usaffe and doctrine : that
is, to the tribunals as guided by nscr/e and doctrine, not by
the Code itself. How, then, is it possible for any candid
person to argue that when the veiy authors of the so-called
French Code did not intend it to supersede all other law, its
Hot having done so is a proof that what they did not cit-
tempt cannot be accomplished ?

And here I may remark that the so-called Prussian Code
was not intended by its author, the great Frederic, or by the
persons whom he employed to draw it up, as a code in the
modern acceptation, that is, a complete body of law. In
most of the C4erman States before the introduction of codes,
the state of the law was as follows: — they were partly
governed by their own local laws, and partly by what was
called Gemeines liec/it, or common law of Germany, con-
clsting in part of the Eoman and the Canon law, in part of

Tlie French
Code never
expected liy
its compilers
to super-
sede all other
law; but
meant to be
eked out by
various
stibsidia.

338

Laiv : Sources and Modes.

Part II.

Extreme
li:iste with
which the
French Code
Was drawn
oi>.

rules of domestic or strictly German growth, whicli were
got at Ly comparing the different local systems. This
common law was resorted to in cases for which the local
laws or customs of the different States did not afford a
solution. Now the Pnissian Code was not intended to
codify all the law obtaining in Prussia, hut only this subsi-
diary common law ; lea^•ing the codification of the different
laws obtaining in particular parts of the Prussian dominions
to a future opportunity.

I may also observe that, by virtue of a provision of the
Code, prcpjmlicia or precedents have no authority. The
Courts are expressly forbidden to guide their decisions by
the decisions of their predecessors. AU doubtful points of
law are referred to a Law Comiuission, who emit a declara-
tory law on the occasion of every case so submitted to
them. The supplementary law which I have abeady men-
tioned consists, in consequence, not of decisions on the Code,
but of acts of authoritative interpretation, issued imme-
diately by the government. This at least is the theory of
the Prussian system. In practice I believe that prarjitdicin
or decided cases do influence the decisions of the Com-ts.
For it is certain that reports of decided cases are published
regularly at Berlin ; and they probably have an indetermi-
nate and unaclmowledged influence not unlike that which
the decisions of the English Oom-ts are known to have in
the United States.

Another and a perfectly sufficient reason for the defects
of the French Code is the extreme haste with which it was
drawn up. The original ^j?'o;'e!J was prepared, in little more
than four months, by a commission consisting of Tronchet,
Malleville, Portalis, and Bigot-Preameneu ; it was then
submitted to the Covmcil of State, where it was discussed
article by article. But it is obvious that the examination it
received in the debates of this numerous body, many of
whom were not even lawyers, could have no tendency to
coiTect the vices in the original conception.

Of the profound ignorance of the authors of the Code on
the subject of the Iloman law, on which the then existing'
French law was wholly founded, and of which in truth the
Code itself is little but a recluwffce, Sa-sdguy mentions
numerous instances. They had indeed a superstitious
veneration for the Roman law, but they knew scarcely any-
thing of it : what they knew was derived solely from Jus-
tinian's Institutes, and from the various popular compendia
which for the most part follow the Institutes. And this
accoimts for many of the defects of their Code. It explains
why they passed over many highly important questions of
law, namely because these did not fall within the scope of
that institutional treatise, or of the many popular exposi-
tions founded on it.

Codification.

339

Lect.
XXXIX.

No provisiin
for amonding
the Prussian
and Freiirli
rode?, am]
for keepiiiij
down tlio
grow til of
jurticiHry niid
supplcrneiital
law by work-
ing tliem into
the code
from time to
time

As I remarked, no code can be perfect ; tliere should
therefore be a perpetual pro^-ision for its amendment, on
suggestions from the judges -u-ho are engaged in appMng
it, and who are in the best of all situations for observing
its defects. By this means the growth of judiciary law ex-
planatory of, and supplementary to, a code, cannot indeed,
bo prevented altogether, but it may be kept within a mode-
rate bulk, by being ^^TOught into the code itself fi'om time to
time. In France this has been completely neglected ; a
fact which would of itself suffice to account for the alleged
faiku'e of the Code. An endless quantity of judiciary law
has been introduced ; acts of the legislatiu-e and ordonnances
of the king issued by authority of the legislature, have been
emitted from time to time separately ; but there has been
no attempt to work them into the body of the Code. So
with the Prussian Code. The Xovels or new constitutions,
and the acts of authentic interpretation emanating from the
Law Commission exist in a separate state ; there has been
DO attempt to work them into the Code, or to amend it in
pursuance of them.

The accidental defects which I have now mentioned, as
well as others which I shall advert to hereafter, and many
on which I shall be silent, account for the partial failure of
the Prussian and French Codes. After all, the alleged
iR success of the French and Prussian Codes is greatly ex-
aggerated. They at least give a compendious, though a
defective, view of the old law ; they have cleared it of a
load of inconsistencies and much reduced its bulk, though
they have not superseded it completely. If any Frenchman
or German of the rec[uisite knowledge is asked whether the
Code, even as it is, be preferable or not to the law in its
previous state, he does not hesitate to say that it is gi-eatly
preferable, and that the quantity of litigation arising from
doubt as to the law is very greatly diminished.

I now proceed to notice the objections which have been savi^j's
particularly urged by Saviguy, in his treatise ' Yom Beruf,' codlflcatioi
etc. (on the Vocation of our Age to Legislation and Juris- exaniined.
prudence). The professed purpose of this work is, as I
have already mentioned, to prove the iuexpedieucv, not of
codification in general, but of codification for a' part of
Germany, and especially of a code proposed bv Thibaut.
So far, therefore, as the work is in keeping with its professed
purpose, it does not apply to codification in general or in
the abstract, but to codification, and to a specific scheme of
the codification, at a given place and time. But while
pursuing this ostensible purpose, Saviguy emplovs many
arguments which either directly or obliquely impugn codi-
fication considered generally or in the abstract ; and so far
as this is the case, his work falls within the scope of my

Q 2

Failure of
the Prussian
and Frenrli
codes grossly
exaggerated

340 Laiv : Sources and Modes.

Part II. present examiuation. I advert to these arguments on

' ' ' account of the attention which is due to whatever emanates

from a man of Savigny's genius and learning, and because,
if his objections can be answered completely, those of
other and inferior persons may safely be dismissed without
notice.

Sa-\-igny is himself an advocate for a code, even in Ger-
many, to a certain limited extent : he holds a code to be
expedient, if it could be confined to the codification of the
existing law, without affecting to anticipate future cases.
This is in reality an admission almost of the whole question.
As to the anticipation of cases which have no^ actually
arisen, nor resemble any which have actually arisen, it is
impossible that any code can include them completely ; but
judiciary law is, as I have shown, in a much worse plight
for this purpose than a code.

Savigny himself suggests one of the best arguments for
the possibility of codification, by showing that one of its
greatest difHculties (namely, unit}' of conception in the
plan and execution) is not insurmountable. In arguing
against codification in Germany, he is led to examine the
worth of the law now obtaining which a code would super-
sede. This law is mainly founded on that portion of the
Roman law which was made by the writings or opinions
of jurisconsults, and which is known in Germany by the
distinctive name of Pandect law. Savigny admits and
praises the coherency of this law. Although it was made
in succession by a series of jurisconsults continuing for
more than two centuries, each of these jurisconsults was
so completely possessed of the principles of the Roman law,
and they were all so completely masters of the same mode
of reasoning from and applying those principles, that their
successive works have the coherency commonly belonging
only to the productions of one master mind. Each was
master of the Roman law in its full extent •, each had the
whole of its principles constantly present to his mind, and
coidd arg-ue down from them and apply them with the
greatest certainty. Now, if the production of a succession
of jurisconsults filling two centuries, possesses perfect
cohereuc}', a fortiori it is possible that a body of law may
be equally coherent if produced by a number of persons
w orking in concert, provided they be as fully masters of its
principles, and as capable of arguing from them and apply-
ing them, as the Roman lavryers were. Such a set of
persons would be in a much more favourable position for
producing a homogeneous and consecutive whole than
persons working in a disjointed and unconnected manner.

But in spite of Savigny's admission of the expediency
of codification in a limited sense, and his suggestion of a
ground for believing it to be practicable, many of his argu-

I

Codification.

341

meuts are directly, and still more of them oWiquely, aimed (
at coditication in general. I have already adverted to two
of these : the impossibility of anticipating all future cases,
and the alleged failure of past attempts at coditication.

Another argument is that no determinate leading prin-
ciples -will be followed consistently by the makers of the
code, and therefore its provisions must be defective and
incoherent. This argument is answered by his own testi-
mony as to the qualities possessed by the lioman jurists.
It is' applicable only where these are wanting, as was the
case with the authors of the French Code.

Again: he asserts that in an age capable of producing
a good code, no code could be necessary, the want being
supplied bv private expositors. Xow although good ex-
positions render a code somewhat less necessars', they do
not supply the want of it. The exposition may be just aa
well constructed as the code, but this essential dilierenco
will remain. The one is authorised and the judge is
bound to abide by it : the other is no expression of the
wiU of the sovereign, and the judge is not obliged to follow
it : which makes all the difterence l^etween uncertain and
certain law.

Savigny affirms, contrary to the fact, that during the
times of the classical jurists the want of a code or digest
was not felt. This assertion is directly in the teeth of the
evidence furnished by Suetonius, Livy, and Tacitus.

Another strange objection made by Savigny to codifica-
tion is this : That a code makes the defects of the law more
ob'V'ious, and therefore emboldens knaves. But knaves who
know or talre good ad%"ice upon the pitfalls of the law, have
probablv a larger field open to them in the uncodified than
in a codified state of the law.

Another argument, which none but those who know
the Germans can appreciate, is this : that if a code could
be made mechanically and without any difficulty at aU,
this woidd be a reason for rejecting it.

From the arguments above set forth, it follows that considera.
what I have called the question of codification in the con- w'wch°the
Crete — the expediency of codification in a particular society 1"^^'"",',''
and at any given time — ought to tui-n upon the following
considerations.

Such are the evils of judicial legislation, that the expe-
diency of a code Tor of a complete or exclusive body of
statute law) admits of no doubt ; provided that the chaos
of judiciary law, and of the statute law stuck patchwise on
the judiciary, could be superseded by a cjood code.

AVhoever has considered the difficulty of making a good
statute, will not think lightly of the difficulty of making a
code. To conceive distinctly the general pm-pose of a

in the con
Crete ought
to he dis-
cussed.

i

342 Law : Sources and Modes.

Part II. statute, aud the subordinate provisions tkrough wMcli that

*^ < ' must be accomplished, aud to express both in adequate and

unambiguous kuLruage, is a task of extreme delicacy and
difficulty. It is far easier to conceive justly what would be
useful law, than so to construct that same law that it may
accomplish the design of the lawgiver. Accordingly, statutes
made with great deliberation, and by learned and judicious
lawyers, have been expressed £0 obscurely, or constructed
Eo unaptly, that decisions intei-preting or supplementing
theii* provisions, have been of necessity heaped upon them
by the Oomis of Justice. Such is notably the case with
the celebrated Statute of Frauds.*

It follows that the question of Codification is a question
of time and place. Speaking in abstract (or without
reference to the circumstances of a given communitj') there
can be no doubt that a complete code is better than a body
of judiciary law; or is better than a body of law partly
consisting of judiciaiy law, and partly of statute law stuck
patchwise on a body of judiciary.

But taking the question in concrete (or with a view to
the expediency of codification in this or that community) a
doubt may arise. For here we must contrast the existing
law — not with the beau ideal of possible codes, but — with
that particular code which an attempt to codify would then
and there engender. And that particular and practical
question (as Herr von Savigny has rightly judged) will turn
mainly on the answer that must be given to another :
namely, Are there men, then and there, competent to tlie
difficult task of successful codification ? of producing a code,
which, on the whole, would more than compensate the evil
that must necessarily attend the change ?

The vast difficulty of successful codification, no rational
advocate of codification will deny or doubt. Its impossi-
bility none of its rational opponents will ventm-e to aflii-m.

Before I quit the subject of codification, I shall remark
that one advantage not generally adverted to would flow
from it ; an improvement in the character of the legal pro-
fession. If the law were more simple aud scientific, minds
of a higher order would enter into the profession, and men
in independent circimistances would embrace it^ who are

* 29 Car. II. c. 3. Thc^ Bill on which this statute was framed was
brourht in by Lord Chancellor Nottingham, who claimed the merit
of having been[its originator ; although it received ' some additions
and improvements from the judges and Civilians ' (Lord Campbell's
Lives of the Chancellors, vol. iv. p. 271). Lord Hale is often credited
with having had a hand iu it, but this is hardly probable ; for some
time before the date of the Act, he was in failing health and had
petitioned for relief from his ordinary duties. — K. C.

Codification. 343

now deterred by its disgusting- cliaracter ; for disgusting it
really is. What man of literary education and cultivated
inteUect can bear the ahsm-dity of the books of practice, for
example : and many other parts of the law ? Nothing but
a strong necessity, or a strong determination to get at the
rationale of law through the crust which covers it, could
carry any such person through the labour. But if the law
were properly codified, such minds would study it ; and we
might then look for incomparably better legislation, and a
better administration of justice, than now. The profession
woidd not be merely venal and fee-gatheiing as at present,
but, as in ancient Kome, would be the road, to honom-s and
political importance. Much, no doubt, of the drudgei'y of
the profession woidd still be performed by persons aiming
only at pecuniary reward, but the morality prevailing in the
entire profession would be set, in a great degree, by this
high part of it, which would also comprise the practical
legislators of the community. This would be a highly im-
portant consequence of the simplification of the law : for I
am fully convinced that only from enlightened and expe-
rienced lawyers is any substantial improvement of the law
ever to be hoped for.

'Note. — As the great controrersy ou the expediency of con-
structing a Code of Laws for the whole of Germany is frequently
alluded to in the foregoing Lecture, and constant refercueo made
to the -works of the two great leaders of the conflicting parties,
it may not be superfluous to say a few words concerning them.

After the deliverance of the country from the French yoke,
the minds of patriotic Germans -n'cre anxiously employed in
enquiries into the causes of the feeble and divided resistance
made by their country, and in projects for strengthening the
bonds which might unite the several States into a well-com-
pacted whole.

Among them, -was that of which Thibaut -was the ardent
and eloquent advocate. In his Essay ' On the Necessity of a
general Municipal (or National) Law for Germany,' he treats
the construction of such a body of law, 'clear, precise, and
adapted to the requirements of the time,' — as one of the firat
conditions of a strong and efficient Confederation.

Thibaut was a Hanoverian by birth, and had studied at
Gottingen, Konigsberg, and Kiel, at which latter place he took
liis degree, and was appointed Professor. In 1802 he had a call
to Jena, and in 1805 he was invited to assist in the reorganiza-
tion, of the University of Heidelberg.

Thibaut's works are numerous and of high authority. His
style is homely and familiar, but has great force and animation.
He proposed that a Collegium or Commission should be nomi-
nated bj the several States, and he maintained that by the co-

344 Lazv : Sources and Modes.

Part I. operation of the ablest theoretical jurists (Professors in the
• — ■ — I — — ' different Universities), with practising lawyers, such a Code of
Laws as above described, applicable to all Germany, might be
constructed.

The most illustrious opponent of this scheme was Savigny,
the leader of the so-called Historical School (founded by Hugo
and Schlosser) ; whose great learning and acuteness, combined
with a consummate talent for exposition, rendered him a for-
midable antagonist.

In his youth he had the rare advantage of being able to
travel throughout Germany, France, and Italy, in search of un-
known or neglected sources of Roman Law, and returned laden
■with spoils to Marburg, where he had studied, and was now
appointed Professor. In 1803, he wrote his Treatise on the Law
of Possession. On the creation of the University of Berlin in
1810, Savigny was one of the first teachers appointed. His
lectures, especially those on the Institutes, together with the
history of the Koman Law and the Pandects, drew crowded
audiences, not only by tlie copiousness and importance of the
matter, but by the extraordinary clearness and beauty of the
form.

His celebrated work, ' On the Vocation of our Age for
Legislation,' is known to the English public through Mr. Hay-
ward's translation.

The discussion on the expediency of Codification was carried
on with great asperity ; its partisans complained that they were
unfairly represented by tlie leaders of tlie Historical School, as
advocating the introduction (or rather the imposition) of an
entirely new body of Laws (which they never contemplated) ;
while their adversaries disclaimed the opinion imputed to them
— that Law should have no other source than a historical one.

In one of the Essays contained in the volume which has
been frequently quoted, ' On the Influence of Philosophy on the
Exposition of Positive Law,' Thibaut concludes with the follow-
ing discriminating and impartial statement of the claims of the
contending parties : —

' Nothing is more to be wished than that the philosophical
and the elegant jurists should snon cease to regaixl themselves
as two hostile p.irties. Each side must abate somewhat of its
pretensions, and reciprocally take what is good from the other.
Without plii'.osophy there is no complete history ; without
history, no safe application of pliilosophy. Both must unite as
aids to Interpretation, and must exercise a continual influence
on each other. The jurist who aspires after perfection will
therefore endeavour to combine profound Iiistorical knowledge
■with philosophical views ; for the historical part of Juris-
prudence can never be separated by a sharp line from the philo-
eophical. In each are gaps, which can only be filled by the aid
of the other.' — S. A.

Law of Things — Law of Persons. 34S

PART III.

LAW IN RELATION TO ITS PUBP0SR8

AND TO THE

SUBJECTS WITH WHICH IT IS CONVEESANT.

LECTURE XL.
Lmo of Things and the Lmu of Persons or Status.

From law considered -ndtli reference to its sources, and to
the manner in wliicli it begins and ends, I pass to law con-
sidered with reference to its jmrposes, and to the subjects
about which it is conversant.

The iirst great distinction of Law considered under this
aspect, is the celebrated one into the Law of Persons and
the LaAv of Things ; or (as I thiak it ought to be stated),
the Law of Things and the Law of Persons.

This distinction may be stated generally as follows : —

There are certain rights and duties, with certain capacities
and incapacities to take rights and incur duties, by which
persons, as subjects of law, are variously determined to
certain classes. By a capxtcity I mean this :^A person is
capable of a given right and of a given duty if on the hap-
pening of a given event the law would invest him with that
right, or impose on him that duty.

The rights, duties, capacities, or incapacities, whicn /
determine a given person to any of these classes, constitute
a condition or status with which the person is invested.

One and the same person may belong to many of the
classes, or may occupy, or be invested with, many conditions
or status. For example, one and the same person, at one
and the same time, may be sou, husband, father, guardian,
advocate^ or trader, member of a sovereign nimiber, and
minister of that sovereign body.

The rights, duties, capacities, and incapacities, whereof
conditions or status are respectively constituted or com-
posed, are the appropriate matter of the department of law
which commonly is named the La7v of Persons — Jus quod
(id Personas pertinet : — Jus Pcrsonarum — De conditione
03

346 Laiv : Purposes and Subjects.

Part III. liominum. Less ambiguously, and more siguificantly, that

^^ " — -^ department of laAv might be styled the ' Law of Status.'

For though the term jyersona in one sense of the word is
properly synonymous Avith status, yet in its usual and more
commodious signification, it denotes not status but homo, a
man (including woman and child) ; or it denotes an aggre-
gate or collection of men.

The department, then, of law, which is styled the Law
of Persons, is conversant about status or conditions ; or
(expressing the same thing in another form) it is conversant
about 2^s>'S0>is (meaning vie7i) as bearing or invested with
persons (meaning status or conditions).

The department of law which is opposed to the Law of
Persons, is commonly named the Laiv of Thinys : Jus quod
ad Res i^ertinet : or the department of law ' De rebus.'

How this department of law came to be called the ' Law
of Things ' is somewhat obscm-e ; but referring to what has
been said in Lecture XII. supra, about the various meanings
of this flexible word res, it seems not impossible to catch
the train of ideas. It has been seen that ?'es or ' thing ' in its
widest meaning, embraced the whole matter with which
laws are conversant, p. 168 supra. Having for convenience
singled out a department of law and called it (not without
significance), ' Law of Persons,' it seems natural that the
authors of those institutional treatises — familiar with the
term res as wide enough to embrace all the subject matter
of law — should caU the opposed department the 'Law of
Things.' This would be the more easily suggested to their
minds from the circumstance that res in the narrow and
strict sense of the word was already opposed, as has been
shown (supra, pp. 166, 1 67), to persons.

That such \\ as the general conception of the distinction
by the Roman jurists, is manifest from the order adopted in
the Institutes. The fii'st book of the Institutes of Justinian,
following Gains, treats of the law relative to status or
conditions under the name ' ds jure 2>ersonaruni,'' or ' de
condicione /lominwn.' The second opens with words to
this effect : —

' Having treated of the Persons, let us now treat de
rehus.' It then proceeds to divide res into corporales and
incorporalcs, and then treats of rights and duties under their
variouj subdivisions.

It would be absurd to suppose that the Law of Persons
can peculiarly relate to persons meaning /loinincs or himian
beings ; or the Law of Things to thim/s, in the proper
sense of the term. Many rights and duties treated of in
the Law of Persons relate to things properly so called : as,
for instance, an estate in land belonging to a married
woman : and manv rights and duties treated of -in the Law

Status. 3 47

of Tliiuprs liave uo regard to things proper ; as, for instance, Lect.
the right arising from an obligation to forbear under a XL.

contract. ' '

/

The distinction, therefore, bet-ween the Law of Things
and the Law of Persons rests upon the notion of stains or
condition. The Law of Persons is that part of the law
which relates to status or conditions. The Law of Things
is t/ie law — the corpus juris — minus the law of status or con-
ditions. The Law of Persons is the law of status or con-
ditions, detached for the sake of convenience from the body
of the entire legal system.

The question, therefore, which first arises is this : What wiiat coa.
constitutes a status or condition ? s(a(M''or'

The rights, duties, capacities, or incapacities, which, as condition,
above mentioned, determine a given person to a given class
constitute his status or condition. His condition is trot the
source of his distinctive rights and obligations, for these are
his condition. The source of these rights and obligations
is the fact, event, or incident which invests him with the
condition ; that is to say, which gives him the rights and
capacities, and subjects him to the duties and incapacities
of which the condition is composed. For example, a bar-
rister or an attorney is distinguished from other men, by
peculiar obligations which are imposed on him and by
peculiar rights which he enjoys. These obligations and
these rights are the condition of Barrister or of Attorney.
The source or cause of his condition, or of his distinctive
obligations and rights, is his Call to the Bar, or his Admis-
sion as Attorney.

The notion of status or condition (as understood by the
Roman Lawyers), has been covered ^vith thick darkness by
the vague talk of their successors, and is not entirely free
from difficulty and doubt. But I think that the plain
account of it, which I have given above, will be found to
tally with the truth, or to approach it pretty closely, by
those who will take the trouble (trouble too seldom taken) of
seeking, inspecting, and collating the original and proper
authorities.

See and compare the folloAving places : — Gaii Comm.
i. §§ 8, 9, L3, 67, 80, 81, 128, 159, im.—Inst. i. 3, § 4.— i. 5,
§ 3.— i. IG, § 4.— i. 22, § 4— ii. 11, § 5.— ii. 17, §§ 1, 4, G.
— Dig. i. 5 (De statu hominum), I. 5, pr. U. 9, 21, 2G, sub
^ne. — i. 9 (De Senatoribus), I. 10. — iv. 5 (De capite minu-
tis), /. 3, § 1, I. 11.

To fix the notion of Statts with perfect exactness,
seems to be impossible. For there are certain sets or series
of rights and obligations, which would probably be con-
sidered by one man as forminc" or composing Status, though
another would rather refer them to the Jus licrum — i.e. the
Law (or Doctrine) of Eights and Obligations in general, or

348

Laiv : Purposes and Subjects.

I'AUT III.

No generic
cliaiactcr
(•(iminoii to
all condi-
tions ; l)Ut
they bear tlie
following
marks :—

1. Condition
resides in an
individual as
belonging to
a class,

2. The rights,
&c., which
fiinstitute
the status
specially
regard
persons

ot that class.

J. The class
must be such
;is from its
iiiture can-
liiil include
all or nearly
jiU iiersons.

of Rights aud Obligations abstracted or apart from con-
ditions.

After the hest consideration which I have Leen able to
give to the subject, aud after an extensive examination of
the opinions of others, I still fiud no mark by which a s<«/«s
or condition can be distinyuislied from any other collection
of rights and duties.

Speaking, however, generally, the rights and duties,
capacities and incapacities which constitute status or con-
ditions, bear the following marks : —

First : The condition resides in the individual not as
being that individual person, but as a member of a class.
That is to say, a ^j;'U77e^m?n (in the proper sense of the
word) is not a status.

Secondly : — (Being a coroUary to the above) — The
rights, duties, capacities and incapacities composing the
statics or condition, regard or interest specialhj persons of
that class. For instance, though the rights of a father in his
child regard persons generally, inasmuch as corresponding
duties are laid upon everybody, yet those rights specially
regard the father as such. It seems indeed obvious that the
rights and duties which reside in an indi\adual as a member
of a class cannot be such as extend to persons indiscrimin-
ately. But this notwithstanding Sir Matthew Hale, followed
by Blackstone, places among the Rights of Persons (meaning
the Law of Persons) certain rights which they are pleased
to style absolute, namely, the right to liberty ; the right to
bodily secmity ; the right to reputation, &c. : rights which
reside m every person to whom the sovereign or state extends
a particle of protection, and which, therefore, pre-eminently
belong to the Law of Things or the general law.

Thirdly : The class itself must not be such that it may
comprise any or nearly any person whatever. The meaning
of which I explain as follows : —

Any rights and duties, not singular, or peculiar to a
specific or determinate individual, are properly determined
to a class of persons. For example, tlie rights and duties
arising from a contract, are determined to the class of con-
tractors. The rights and duties arising from a mortgage,
are determined to the class of mortyagors, and to that of
mortgagees.

But classes of persons may be divided into two kinds :
Jirst, classes which might comprise persons of any descrip-
tion, or nearly so ; no persons being necessarily excluded,
except some classes labouring under a special incapacity
which would itself constitute a status : secondly, classes
which can only comprise persons of one given description.
For example, whatever be his other characters, any person,
unless he labours under a special incapacity as an infant, &c.,
may be a contractor. The rights and duties, therefore,

549

Lect.
XL.

Laiv of Things — Lazv of Persons.

Tf bicli concern contractors may concern almost anvbody, and
are therefore properly discussed in the department oi (jeneral
law — the ' Law of Things.'

The classes, therefore, to which persons are determined
hy (or which are conterminous with) conditions, are classes
w-hich can only comprise a part of the community ; as husbands
and wives, masters and servants, parents and children ; any or
all of whom may he promisors or promisees, morto-agors or
mortgagees, contractors, and so on. The iudefiniteness of
the notion of class, creates the whole difficulty of the case.
By taking the word class in its widest sense, we might throw
the whole body of law into the Law of Persons : but that
was not the o'bject of those who have taken the distinc-
tion : they wished to separate the rights and duties specially
afJecting 'portions of the community from rights and duties
of more general interest.

Fourthly : The rights, duties, capacities and incapacities
constituting a status^ or condition are commonly indefinite
in number and kind, and such as to give a conspicuous
character to the individual, or to influence extensively his
social relations. This mark like the rest is of a vague and
indeterminate desciiption. It will not, for instance, exclude
from the description of status the rights, duties and capaci-
ties which constitute a hereditas, i.e. which devolve by
testament or intestacy upon executor, general devisee, ad-
ministrator or heir. Nor. indeed, does there exist any mark
which would distinguish the hereditas from a status. But
by general consent the rights, &c., constituting the hereditas
have been treated in the general department of law — the
Law of Things. And it is convenient so to treat them.*

I now proceed to the uses of the distinction between the Uses of tiie
Law of Things and the Law of Persons. distinction.

The idea of status or condition, although not capable of
precise definition, is essential or necessary-, and must exist

4. Tlie rignts,
&c., are such
as to in-
fluence ex-
tensively tlie
social rela-
tions of the
ludividuaL

* To the marks of a condition I think it should be added that
the notion of status is historically connected with the fact that a
person has little or no control over the circumstances ■which
determine him to the class, and that still less has his consent any
efi'ect upon his rights and obligations when once fixed as a member
of the class. That this was literally the case with most conditions
vith whicli ' Ancient Law ' was conversant, is well pointed out by
Sir H. Maine in his able and suggestive work under that title.
That in modern systems of law this ceases to be a universal mark
of status is a consequence of the progress described by the same
author in the pregnant observation that 'the movement of the
progressive societies has hitherto been a movement from status to
contract.'' But the old connection of status with the idea of jitr-
manence has doubtless an influence upon the line of demarcation
asually adopted in assigning the term status to some sets of rights,
dutiesj &c., and not to other:. — K. C.

350

Laiu : Purposes and Subjects.

Paht III.

1. Repeti-
tion, and con-
Bequciit
voluniinous-
J.ees, avoid-
ed.

2. The por-
tions of law
Bpecially
affecting
peculiar
classes, ren-
dered more
Rccessiljle
and cog-
noscible.

identity of
the division
into Law of
Tilings and
Law of Pcr-
Eoiis with Mr.
Benthfim's
division into
General and
Special
Codes.

iu every body of law. The division of tlie corpus juris into
Jus Personarum and Jus Herum is not essential or inevit-
able. It is adopted as being a convenient basis for the
arranprement of the corpus juris ; and it is easy to conceive
arraua'emeuts founded on principles altogether dissimilar.

The main advantages of this division seem to me to be
these : —

First : iu the Law of Things, or The Laio generally, all
■which can be affirmed of rights and duties considered gene-
rally, or as abstracted from status or condition, is stated
once for all. One advantage, therefore, of the division is
that it is productive of brevity. The general rules and
principles with which the Law of Things is properh^ or
directly concerned, are preserved, detached, and abstracted
from everything peculiarly relating to particular classes or
persons ; they are, therefore, presented more clearly than if
they were interspersed with that more special matter. For
example, the rights and duties which constitute, and are an-
nexed to an estate in fee, or which arise from contracts, or from
delicts, are stated much more briefly and clearly than they
could be if they were presented as modified by the peculiar
rights, or the peculiar incapacities, of married women or of
infants.

Secondly : by distinguishing such parts of the law as
are peculiar to particular classes from the parts which aro
common and of universal application, and by placing tha
former under a separate department, the matter peculiar
to every particular class is rendered easy of reference. The
distinction would be attended, if its principle were steadily
adhered to, with one gi-eat and indisputable advantage ;
namely that every class of persons might know, to a con-
siderable extent, the parts of the law relating to themselves.

The plan of collecting under separate heads such portions
of the law as are peculiar to special or particular classes, is
strongly and jnstly recommended by Bentham. His General
Code, as distinguished from his proposed Special Codes or
bodies of law specially relating to particular classes, is in
fact the jus rerum, or Law of Things, of the classical
Eoman jurists. It is a strong presumption in favour of
the distinction, that Bentham by his unassisted invention
arrived at it ; for he certainly did not derive it from the
Ho man law. The only form in which the distinction made
by the Roman lawyers was familiar to him was the absurd
travesty of it by Sir W. Blackstoue, who (following Sir M.
Hale) actually translates jura j)crsonarum and jura rerum
* the Rights of Persons' and the ' Rights of Things.'

Two other
possible

Instead of this di^-ision, there are many other di\isions
of the corims juris which might be adopted. I shall briefly

OtJicr Possible Methods of Division. 351

ndvert to two of these possible divisions, iDecaiise they may
serve to illustrate that of which I have been ti-eating-.

First : the head jus rerum might be rejected, and the
whole body of the law divided into special codes, heads, or
chapters, appropriate to peculiar classes of persons. The
inconvenience of this would be, that the matter which is
common or imiversal or has no special relation to any
peculiar class, must be inserted under eveiy head. In
effect, each of the special codes would consist of the whole
of the conmion matter, filus the matter specially referring
to the pecidiar class. The repetitions of the g-eueral matter
would be as nimierous as the special classes ; and conse-
quently the bulk of the whole body of law would be truly
immense. By adopting the division into Jus Rerum and
Jus Personarum, the description of the common matter is
disposed of at once. Nor is the difficulty of ascertaining
the law enhanced to persons belonging to any special class :
the only difference is, that they must look for it under two
heads or chapters instead of one ; which is no increase of
the trouble. For example, a person wishes to contract with
an infant. He refers to the chapter on Infants to find in
what manner the status of an infant modifies the general
provisions of the law on the subject of contracts ; and if
this is not intelligible to him he refers to the title ' Con-
tracts' in the General Code.

Xot to exaggerate, however, the effect of this separation
of the body of law into the General Code and a number
of Special Codes, in rendering the law cognoscible, I must
observe that a complete Icnowledge of any of these separate
parts implies a knowledge of the jus rerum of which they
are onlv a modification, and requires therefore a knowledge
of that immense whole which it modifies. In the example
which I have already made use of, that of an infant entering
into a contract, it is obvious that we must know the general
nature of contracts, and the rights and duties annexed to
them, to enable us to know in what manner those rights
and duties are modified by the peculiar status of an infant.

A second possible di-dsion is the following : — -The jus
personarum might be rejected, and the sets of special pro-
visions relating peculiarly to special classes, not collected
under appropriate chapters, but appended to the more
general provisions which they modity and control. But
by this mode brevity and clearness in the exposition of the
general principles would be lost ; for to every principle, all
the modifications it receives from the peculiar position of
eveiy particular class must be appended ; and the peculiar
law of each class being scattered every vrhere through the
code, the persons afiected by the peculiar law would not
find it collected to their hands, but must pick it out bit by
bit.

352

Laiv : Purposes and Subjects.

The distinc-
tion not
correctly and
consistently
followed
oat by its
authors.

Part III. Tlie division into jus j)e)-sonanim and jus rerum com-

bines tlie advantaoes of both these adverse methods. Like
the one, it enables all classes to find easily the law pecu-
liarly affecting themselves ; like the other, it presents in a
connected series those principles of the law which are
common to a,ll classes.

These, however, are not so much the advantages which
the division has produced as those it would produce if its
principles were clearly and strictly pursued. By the Roman
lawyers, as for example in the Institutes, the special law of
particular classes is often placed in the Law of Things : and
the same in Blackstone, in the French Code, and in almost
all the other compilations of lawyers. Hence the question
has been much agitated, whether i\xQ jus personarum of the
Roman lawyers teas properly the law of status (or the de-
scription of the rights and duties, capacities and incapacities
constituting status :) or merely a description of the facts or
events by which status is invested or divested. Whether
for instance, under marriage all the rights and duties pecu-
liarly affecting husbands and wives, were intended to be
inserted, or merely marriage itself, the incident by which
the status arises, with the modes b}-^ which marriage may
be dissolved. The truth is that the authors of the distinc-
tion have not been consistent. Sometimes they inserted in
the jus jiersonarum descriptions of the rights and duties
composing the status, while in other cases they simply de-
scribed the investing and divesting facts, resei-ving the
description of the rights themselves for the Law of Things.

On the whole, the two principal reasons for detaching
sets of rights, etc. from the body of the legal system seem
• to be,
~>| 1st. That the rights, etc. constituting the status, regard

specially a comparatively naiTOW class of the community ;
and that it is convenient to have them got together for the
use of that class.

2dly. That they can be detached from the bulk of the
system witliout breaking the continuity of the exposition.
And that the so detaching them tends to give clearness and
compactness to the exposition of the bulli of the law.

[The line, however, of demarcation between the different
departments, depending as it does on convenience, is inevit-
ably an arbitrary one.

And the convenience of separating the law relating to
certain classes may be different at different periods, and in
different communities. The rights, etc. of Traders would
hardly have been considered a status in Roman Law. But
in modern communities not only do they occupy an impor-
tant and conspicuous position, but the collection ot the
laws with which they are concerned (as traders) into a

Mercantile Codes. 353

separate departmeut, has tliis special advantage, that the
law in this department is the same or nearly so in commu-
nities whose laws in other respects are different. Codes de
Commerce may therefore sometimes be adopted with gi'sat
advantage even where the general law remains uncodified.
This was recently (in 1800) done in Germany, doubtless
not without regard to political considerations, by the
General German Mercantile Code.* — R. C]

* While upon the subject of mercantile codes, I may make the
follo^\'ing observation. It is hardly possible that a code could be so
complete an embodiment of existing law as to avoid sorrie innova-
tion. So far as it innovated, there would inevitably be a proviso
express or implied that the changes made in the law should not
affect past transactions, but only regulate the effect of future ones.
Consequently the existing sources and literature of the law will
remain indispensable to lawyers up to a period when any code that
may be enacted in our own time shall itself have become crusted
with age. But the transactions with which traders are commonly
concerned are commenced and concluded within comparatively
short periods. A code of mercantile law, or a part of it — such as the
law relating to marine insurance — would in a comparatively short
time practically supersede the existing sources and literature of the
law relative to those transactions.

Codes of the nature here spoken of differ in some respects from
any department of the code contemplated by the author as the best
form of a code. For so long as the General Law — the Law of Things
— remains uncodified ; or the General Code unaccomplished ; a
Special Code must either contain much matter which ought properly
to be contained in the General Code, or much must be left to the
operation of the uncodified law. Thus in a code of the Law relating
to Traders, much matter relating to contracts in general, and which
would properly belong to the General Code, must h& inserted, or the
Special Code left incomplete.

This leads me to some further remarks which concern the general
subject of codification discussed in the last Lecture, but which I
could hardly make before the subject of Special Codes had been
introduced. In making these remarks I must refer to a ver^- able
and suggestive paper on the subject of codification in the Edinburgh
Journal of Jurisprudence for June 1874. The author of that article
argues that an absolute and all sufficient code has a necessary ten-
dency to repress and discourage the study of the principles and
reasons of law. This argument is chiefly grounded on the circum-
stance that France since the date of the Code Xapole'on has not
produced a Pothier ; an argument which may be fairly balanced by
the fact that England, though not hampered by a Code, has since
Coke produced no great institutional writer. The remaining argu-
ments of the author of that article against codification concern codi-
fication in the concrete, and with these the present work is hardly
concerned. But he assumes as the only possible approach to codi-
fication, in the absence of an absolute and all suflicient code, that
there should be an Institute of the Law under Parliamentary sanc-
tion, but still possessing only an undefined authority something
likethat possessed by Coke's Institutes. And he argues that such
an Institute being of no use to the general public, but only for the
ponvenience of lawyers, would not be worth the expenditure of
public money required for it. But even admitting that in regard

Law : Purposes and Subjects,

Lect.
XLI.

Certain
erroneoua
definitions
of the idea
of status.
First erro-
neous defl-
nition :
Status an
occult
<iuality
(Modern
Civilians.

LECTURE XLI.

Statues. — Erroneous Definitions examined,

Ijt my last Lectui'e, I endeavoured to explain the import
of the distinction hetween the Law of Persons and the Law
of Things. In doing so I showed that the distinction rests
upon the notion of status ; and I stated the marts or cha-
racters belonging to that notion ; sho^dng at the same time
that the notion is incapable of definition by any detei-minate
or precise description.

I will now examine certain definitions of status, with
certain definitions of the distinction foimded on the idea of
status, which, in my opinion, are thoroughly eiToneous, and
have engendered much of the obscurity wherein the idea
and the distinction are involved.

According to a definition of status, now exploded, but
which was formerly current amongst Oi'vdlians, 'Status
est qualitas, cujus ratione homines diverse jure utuntur.'
'Exempli gi-atia,' (adds Ileineccius,) 'alio jure utitur liber
homo ; alio, servus ; alio, ci\ds ; alio, peregiinus.'

Now a given person bears a given condition, by TOtue
of the rights or duties, the capacities or incapacities, which
are peculiar to persons of that given Iriud or sort. Those
rights or duties, capacities or incapacities, are the condition
or status with which the person is clothed. They are con-
sidered as forming a complex whole : and, as forming a
complex whole, they are said to constitute a status which
the person occupies, or a condition, character, or person,
which the person bears.

But, according to the definition which I am now con-

to the General Law, the Law of Things, a ivork of the nature of an
Institute of the Law is the only practicahle or desirable approach to
codification ; an authoritative Institute of the General Law would at
least impart to the Special Codes a precision and significance which
is at present even in a consolidating statute icnpossible. If it
should become practicable (a school of lawyers being first educated
in tlie sense insisted on by Austin) to produce a good authoritative
Institute of tite General Law, the Law of Things, and Special Codes,
comprising the different departments of the Law of Persons, there
would be at least a vast improvement on the present form of the
law. Neither would such a General Institute, supposing it well
framed to begin with, require any very great expense or labour to
revise and adapt it from time to time to the growing requirements
of the community, and to the judicial and other legislation which
might grow up in the mean time. — II. C.

Status —Erroneous Definitions. 355

Bidering, tlie status is a quality wliicli lies or inlieres iutlie Lect.
given person, and of wliich the rights or duties, capacities ^^^-
or incapacities, are merely products or consequences. ' ' ^

The definition (it is manifest) is merely an instance of
the once cun-ent jargon about occult qualities; the ^same
which I analyzed in a^ former Lecture (p. 200, siqrra) in re-
ference to volitions, and the imagined entity «tyled the
irill supposed to he their cause. Between the fact or event
by which the condition arose and the rights, etc. constitut-
ing the condition, a certain supposed quality was imagined to
intervene in the chain of causation. This supposed quality,
which clearly is a mere iiction, was said to be the status.

Before I dismiss the definition which I am now
considering, I wiU remark that the qualitas in question
(assuming" its existence) will not distinguish a status or
condition from any other set or collection of rig-hts or
duties. The fiction is precisely the same as that which is
■with more consistency expressed by the English word
' estate.' Now the above mentioned definition would apply
to an estate in fee simple just as well as to the estate of
matiimony. But no one ever thought of attaching the
word status to the rights of fee simple proprietors or of
placing the law relating to those proprietors by itself in a
department of the Law of Persons,

The supposition, therefore, that a status is a quality in-
hering in the party who bears it, has every fault which can
possiisly belong to a figment. The supposed quality is
merely fictitious. And, admitting the fiction, it will not
serve to characterize the object, for the purpose of distin-
guishing which the fictitious quality w^as de^'ised.

It is remarkable that Bentham (who has cleared the
moral sciences &om loads of the like rubbish) adopts this
occult quality imder a different name. In the chapter in
the ' Traites de Legislation,' which treats of Etats (or of
status or conditions,) he defines a status thus: ' L'n etat
d'^mestique ou civil n'est qu^une base ideale, autom' de
laquelle se rangent des di'oits et des devoirs, et quelquefois
des incapacites.'

This is the more remarkable, inasmuch as Bentham, in
the next sentence but one, tells us, with perfect con'ectness,
that 'connaitre im etat, c'est connaitre separement les droits
et les devoirs qui y sout reuuis : ' implying that a status or
condition is nothing fictitious or ideal, but a lot of rights
or duties marked by a collective name, and bomid by that
name into a complex aggTegate.

I will remark, before I proceed to the next topic, that
the rights or duties which are constituent elements of a
status, are of two kinds. 1. Those which arise solely fi-om
the very fact or event by which the party was invested with

Secona erro-
neous ileflni-
tion : ' Con-
sequences of
the same
Investitive
lact'
(BentUam).

V

Laiv : Purposes and Subjects,

the conditiou. 2. Tliosewbich arise from the fact or event
coupled with another and a subordinate fact or event. For
example : The right of the husband or wife to the consor-
tium or company of the other (whether against the other, or
against third persons or strangers) is a right which arises
solely from the mere fact of the marriage. But a right or
interest of either in goods or land acquired by the other, is
the joint result of the causa or fact l5y which the goods or
land were acquired, and of the marriage itself. Ffom that
acquisitive fact, the right of the husband or wife in the
goods or laud arises : by virtue of the marriage, that right
or interest is so modified, that a right or interest in the
same subject accrues to the other of the two parties.

Rights or duties which arise solely from the investitive
fact, are said to arise ex statu immediate. Those which
arise from that fact coupled with another and subordinate
fact, are said to arise ex statu mediate.

Rights which arise ex statu immediate, are closely ana-
logous (as I shall show in a subsequent Lecture, p. 365 j'ws^)
to the rights which are styled by Blackstone ' absolute rights,'
and which are styled commonly ' natural or innate rights.'

The only difi'erence between them is this : The former
are rights which arise solely from the investitive fact : the
latter are rights which arise solely from the fact of the
party who bears them being under the protection of the
state. By some writers, accordingly, absolute rights, or
natural or innate rights, are styled, aptly enough, * rights
arising sine speciali titulo.' The only objection to the phrase
is this : that it applies to rights arising ex statu immediatl^
as well as to those more general (and, indeed, imiversal)
rights, which are styled natural or inborn.

In the chapter in Bentham's ' Traites de Legislation ' last
referred to, after (correctly) saying that ' connaitre un etat,
c'est connaitre scparement les droits et les devoirs qui y sont
reunis,' he goes on to ask, ' mais quel est le principe d'uniou
qui les ressemble, pom' en faire la chose factice qu'on appello
un etat ou une condition ? ' And to the question thus sug-
gested he gives the following answer : ' O'est I'identite de
I'evenement investitif, par rapport a la possession de cet
etat.'

It may, I think, be inferred from this answer, that, in
Bentham's opinion, the following are the tests, or distinguish-
ing marks, of a status, condition, or person.

1. A status is a set or collection of various rights or
duties, or of various capacities or incapacities to take or
incur rights or duties. 2. The rights or duties which are
its constituent elements, are legal effects or consequences of
one investitive fact, of one title or mode of acqmsition, or
(in the usual language of the Roman lawyers) of one causa
or antecedent.

Status — Erroneous Definitions. 357

Now it certainly is true, that a status is a sot or collection Lect.
of various riglits or duties. And that the rigJits or duties XLI.
which are its constituent elements, are legal effects or con- " ' ^
sequences, mediately or immediately, of one and the same
title or investitive fact or event. The stat^is, for example,
of husband or wife, is a set or collection of various rights
and duties, and various capacities and incapacities ; all of
which arise, mediately or immediately, from the one fact of
the marriage, or from the one title or causa by which the
status is engendered.

3ut though these two properties belong to every status,
they will not distinguish status or conditions from those
rights and duties which are matter for the Law of Things.

For, first, these properties belong to each of the aggre-
gates which are styled by modern civilians universitates juris :
that is to say, complex sets or collections of rights or duties :
e.r/. the aggregate of rights and duties devolving on the
heir, executor, or administrator by -v-irtue of the testament
or of the intestate decease. Now this aggTegate has never
been deemed a status or condition, but is always considered
under the general law forming the bulk of the legal system.
In the institutional writings of the Roman lavn'ers, in the
French and Prussian codes, and in cA'ery systematic code (or
every systematic exposition of a corjms juris) of which I
liave any knowledge, the rights and duties of heirs (or of
universal successors to deceased persons) are placed in the
jus rerum and not in tha jus 2)ersonarum. And by our own
Hale and Blackstone, (the only systematic expositors of our
own corpus juris) the rights and duties of the executor and
administrator (who are properly the htpres testamentarius
and the hceres lecjitimus of the Eoman Law) are inserted in
the general department which they style the HigJits of Things,
and not in the special and exceptional department which
they style the Higlits of Persons. By Hale, indeed, in his
analysis of the law, the rights and duties of the heir (who,
in some respects, though not in all, is successor universalis)
are placed, inconsistently enough, in the Law of Persons, as
well as in the Law of Things.

And, secondly, the two properties, which, in Ben- y
tham's opinion, characterize a status or condition, are not
even peculiar to those aggregates of rights and duties which
are styled by modern civilians universitates juris. They are
found in most or many of those numerous rights or duties,
which, as contradistinguished to iiniversities of rights and
duties, are deemed 2}ai-ticular or singular. Take, for example,
the right of dominion or property in a specifically deter-
mined thing: as, a horse, a slave, a garment, a house, a
■field, or what not. It is manifest that the right, though
deemed singular, is truly a collection or aggregate of rights
of which an adequate description would occupy a bulify

•s/

Tliird errn-
iieous defini-
tion : Status
fotistituted
by the divisi-
Ijility of tlie
collection of
rights and
duties into
those arising
immediately
from the
title wliich
engenders
tlie aggre-
gate, and
lliose arising
mediately
from tliat
title, tliroush
epecial titles.

Fourth erro-
neous defini-
tion : Slatvs
constituted
by jus in rem
in the com-
rleiion or
aggregate of
xights.

Law: Purposes and Sttbj'ecis.

volume. It consists, for example, of tlie rip-lit of exclusive
user or possession ; of the right of disposing or aliening
totally or partially, of rights of ^andicatiou, and other
rights of action, in the event of a disturbance of any of
those primary rights : and each of these rights, which com-
bine to form the right of dominion, may itself be resolved
into other rights which are less complex. Still more
complicated is the right vested in the mortgagor by means
of a mortgage in the usual English form. Indeed, as I
shall show hereafter, the difierence between a imiversitas of
rights and duties and a right or duty deemed singular is
merely a difference of degree.

I have remarked above, that the rights or duties which
are constituent elements of a status, are commonly ^divisible
into two kinds : 1st, those which arise immediately or
directly from the paramount and more general title which
engenders the status: 2dly, those which arise mediately
from that paramount and more general title, through sub-
ordinate and more special titles.

And, at the first glance, I imagined that this was the
distinguishing mark of a status or condition. But I am not
sure tliat every set of rights or duties, deemed a status or
condition, is divisible in that manner. And it is clear
that universities of rights and duties not deemed condi-
tions, with sets of rights or duties deemed particular or
singular, are divisible in that manner. Some of the rights
or duties composing the aggregate or set, arise immediately
from a paramount and more general title by which the ag-
gregate or set is itself engendered ; e.g. the right of the
owner of a field to walk over it : whilst others arise mediately
from that paramount and more general title, through sub-
ordinate and more special titles ; e.g. the right of the owner
to prosecute a trespasser, arising out of the investitive fact
whereby he obtained the dominium and through the special
title of the injm-y done against that paramount right.

A person clothed with a condition, or bearing a person
or character, \xiisjus in rem (or a right availing against the
world at large) in the aggregate of rights which are con-
stituent elements of the status.

At first I imagined that this might distinguish a status,
from the set of rights or duties which are not status. But
I am convinced that this j«s in rem over the status itself is
not a character or distinguishing mark by which we can
determine what a status is.

For, 1st, in purely onerous conditions, the mark is vot
to be found : a right to a burthen, or to vindicate the enjoy-
ment of a burthen, being an absurdity.

And 2dly, the mark is to be found in universities of

Statu s — Erroneous Dcjlnitioiis.

359

rijr]it<, whicli liave never Leen deemed conditions or status,
but have been placed by common consent in the Law of
Things ; e.c/. the aggregate of rights called hereditas.

3dly, the mark maj be found in many of the sets of rights
which are deemed singular or particular. For instance : —
When the owner vindicates his right as dominus he re-
instates himself in the enjoyment of many separate rights.
And what more is done by an action ex statu, or by any
other action founded on a juris tmiversitas ?

Lect.
XLI.

Lect.

XLir.

Fifth erro-
neous dcdiii-
tioii : Status
a cnpncity or
aiiility
(j'acv.Uas, or
licrhtffiihig-
kcit).

LECTURE XLIL

Statu s. — Erroneous ^ojinitions further considered,

I NOW proceed to a definition of status which, in my
opinion, is not less erroneous than any of the various defini-
tions that I examined in my last Lecture.

According to the definition of a status,* to which I now
advert, a status is a capacity or faculty: for in the language
of modem Ci\*ilians (and of all modern jurists whose terms
are fiishioned on the language of modern Civilians) the
term faculty, though commonly denoting a riyhi, also
signifies a capacity or ability to take or acquire a right, or to
iucm-, or become subject to, a duty. In the language of
the German jurists, who adopt tlie definition of a status to
which I now am adverting, a status is denominated Rechts-
fUhiykeit : literally, or strictly, a capacity or ability to take
or acquire a riyht ; but meaning a capacity or ability to take
or acquire a riyht, or to incur, or become subject to, a duty.
For, amongst the numerous ambiguities by which the
German ' Recht^ (like the Latin 'jus^) is perplexed and
obscured, is this : that, though it signifies a riyht, it occa-
sionally embraces in its comprehension, a duty. For ex-
ample: to succeed 'in omne_y;is defuncti,' is to succeed, by
universal succession, or^jw universitatein, to all the descen-
dible duties, as well as to all the descendible rights, of the
deceased testator or intestate.

According to this definition, a status or condition, or a fnaine-^
person as meaning a status or condition, is a capacity or <^'*i'*<'''^y»f''^'
ability to take rights, or to incur or become subject to duties
which the law confers or imposes upon the person, as meaning
the homo or mar). In Miihlenbruch's i>orfrm« Pandectarum
the definition is given thus :

* Personam (qu£e quidem a personando dicitm*) potesta-
tem juris vocamus : sive facultatem et juiium exercendorum

§207.

* Namely, that coutained in Thibaut's ' System,' vol. i. p. 160,
07.

360 Laii' : Purposes and Subjects.

i'aht III. et ofBcionim subeundorum, liominibus jure accommodatam
^^ ' et velut impositam. Ex quo intelli.tritur, quid sit, quod per-
sona abjudicetur iis, qui aut prorsus nullo aut valde imper-
fecto gaudeant jiu'e, etc' *

According to a definition oi jus persoixnrnm,\i)\\c^ is
equivalent to the aljove definition of persona or status, the
law of persons is concerned with the capacities of persons
(as meaning men) to take rights or inciu* duties ; or it is
concerned with persons (as meaning men) in so far as they
are capable of rights or duties.

This definition of status (with the equivalent definitfon
oijus personaru7n) is liable to the following, amongst other
objections.
w 1st. There are capacities which are common to all per-

sons, who either completely, or to certain limited intents,
are members of the given society political and independent,
or subjects of its sovereign government. Every person, for
example, whether free or slave, citizen or foreigner, adult or
infant, man-ied or unmamed, trader or not trader, has a
capacity (unless he be excluded completely or nearly from
all legal rights) to purchase and acquire property in such
outward things as are necessary to the sustenance of life.
Granting, then, that a condition is a capacity, its being a
capacity will not serve to characterize it ; seeing that there
are capacities which are not conditions. A condition regards
specially persons of a piven class, and cannot consist of
aught which regards indifl'erentlv all or most classes.

2dly. There are many conditions which consist mainly,
not of capacities, but of i)icapacities. The condition, for
example, of the slave consists mainly of incapacities to
take rights : the condition of the infant freeman, of in-
capacities (mainly or wholly imposed upon him for his
own benefit) to take certain rights and incur certain duties.

3dly. As I remarked in my last Lectm-e (p. Soo), and
shall explain a little more fully hereafter, the rights and
duties, which together with capacities and incapacities, are the
constituent elements of most conditions, are divisible into
two kinds : namely, rights or duties which arise from the
status immediate, and rights or duties which arise from the
status mediate.

Now the rights or duties which arise from the status
immediately are rights or duties, and not cajmcities or facul-
ties ^ jurium e.vercendorum et ojficiorum subeundorum.'' —
Wherever, therefore, the constituents of a status are divisible
in the manner which I have now suggested, — and the consti-
tuents of most status are so di%"isible, — the status is not a
capacity, or a bundle of capacities, but an aggregate of
rights and duties with capacities.

* MLilil. vol. ii. p. 1.

Statu s — Erroneous Definitions. 361

I remarked in a former Lecture fp. 1G.3 supra), that tliere Lect.
are certain pre-eminent status •which the Eoman lawyers XLII.
seem to have distiuguished by the name of capita. These "~~ ' ""
are, first, status libciiatis (ov the condition of the freeman, Tria capita.
as opposed to that of the slave) ; §econdly, status civi-
tatis (or the condition of the Eoman citizen, as opposed
to that of the foreigner) ; and, thirdly, status familia' ; that is
to say, the condition of beinp- a member of a given family,
and as sucli enjoying certain rights, or being capable
of certain rights. For example : Unless a person were a
member of a given family, he could not take by succession
ab intestato fi'om any member of that family. And, by
consequence, when a man was adopted by the head of
another family, or when a woman married and thereby
became a member of her husband's family, the status
famili(B (with reference to the family quitted) was lost ;
tliough a new status familice (in reference to the family
entered) was at the same time acquired.

Now a definition of caput (resembling the definition of
afatus which I have just examined) is given by many
German Civilians. They say that a caput is a condition
precedent (Bedhif/unf/) to the acquisition of rights : whicli
merely means (if it mean am-thing) that a cajmt comprises
capacities to acquire rights. The definition, therefore, ia
liable to one of the objections which I made to the defini-
tion of a status that I have just examined. A caput, indeed,
comprises capacities ; and, in so far as it comprises them, is
a condition precedent to the acquisition of rights. But it
comprises rights and duties arising from the status iiinnc-
diate, as well as mere capacities to take and incur rights
and duties on the bappeuing of particular and subordinate
facts.

I also remarked, in the Lecture just referred to, that a
certain absurd definition of the term person arose from a
confusion of caput and status : from a supposition that tlie
Roman lawyers limited the term status to those peculiar
status whicli they called capita.

But that the Roman lawyers limited the term statiis to
these three capita, is utterly and palpably false. They
speak, for example, of the status of a slave who had not,
raid could not have, cajyut : the want of liberty implying a
want of citizenship, and also of relationship to a family of
Roman citizens. They also speak of the status of a jycrc-
f/rinus or foreigner ; of the status oi" a senator ; of the stati(s
lesa e.vistimationis, or of a status consisting of certain in-
capacities consequent on ha\'iug been noted or branded by
the censors.

But there is one consideration which is quite conclusive.
In the fii'st book of Gains' and Justinian's Institutes,

R

362

Lmv : Purposes and Subjects.

Part IIT. pereyrini or foreigners, lihertini or freedmen, masters and
"■ ■ ' slaves, fathers and cliildreu, husbands and wives, guardians
and wards, with other classes of persons, are passed in
re\'iew : and to the whole hook, regarding specially these
various classes of persons, the common title of De 2)ersoim
(and in Gains, the title of De conditione hominum also) ia
prefixed.

LECTUEE XLIII.

The subject of Status and Division of Lmo into Jus Re-
rum and Jus Personarum concluded.

Having endeavoiu'ed to settle the import of the distinc-
tion between jms rerum ani jus 2}crsonanim, and to define
the notion of status or condition, on which that distinction
is founded, I will now add a few remarks, supplementary to
the Lectm'es in which I have discussed this subject.

First then: It has been doubted whether the Roman
lawyers intended to insert in the jus 2'ersonarum the de-
scription of the rights duties capacities and incapacities of
which status or conditions are comprised; or to confine
themselves to the facts or events by which the status are
invested and by which they are divested. The solution of
this doubt is, that neither the Roman law^-ers, nor those
modern Civilians wlio have adopted from them the distinc-
tion of jus rerum and j^ersonanun, conceived with perfect
distinctness its purpose, nor did any of them in the detail
of their writings pursue it consistently.

Both the Roman lawyers and Sir William Blaclcstone
inconsisteuth' inserted in the Law of Things many rights
and duties manifestly arising e.v statu: and the Roman
lawj'ers in many cases inserted in the Law of Persons a
description only of the event which engendered the status,
and the events by which it was destroyed : not of the rights
and duties of which it consisted. For instance, in the
Law of Marriage, they inserted only the manner in which
marriages were contracted, the different conditions of a vcdid
marriage, and the modes in which marriage was dissolved.
In the law of tutelage and guardianship, on the contrary,
they inserted not only the modes in which the status was
acquired or lost, but also the rights and duties which con-
stituted it. They had in truth no distinct conception of
their own purpose, and they therefore pursued it in the
detail inconsistently.

Through blending, as they do, the two methods, they
lose the advantage of the first ; keep the disadvantage of

MctJiods. Roman Lazvycvs and Blacks tone.

363

tlie second; and add a difficulty of their own: i.e. tliat of
obliging the seeker to look for the peculiarities of status,
not only under the descriptions of the several rights and
titles, but also under the (as by them treated) pui'poseless
department o^jura personarum.

The Eoman lawyers di%-ide law, in the first place, into
jus jmhlicum and jus jmvatum ; aud in their institutional
treatises they confine themselves principally to jus jJi'i'vatiun,
This they again di-s-ide into ^hs 2)ersonaru/u,jus rerum, aud
jus actionum, including under this third head the law of civil
procedm'e. This last distinction is also adopted in the
Commentaries of Sir William Blackstone, whose object was
more comprehensive, as he treats not only of what the
lioman lawyers called private law, but also of what they
comprised under the name of public law, namely, the law
of political conditions ; criminal law ; and the law of cri-
minal procedure. Both in the Roman lawyers and in
Blackstone this division is gi-ossly inconsistent ; it deviates
from the object of the distinction between the Law of
Things and the Law of Persons. In order to cany out
that object, all the (/eneralia of theji'MS actionum should be
left in they^s rerum, while those parts which have relatiou
specially to particular classes of persons, and which can be
detached from the bulk of the legal system without brealdng
its continuity, should be placed under the respective heads
of the jus 2)ersonarum to which they belong. For example,
the mode of suing or defending by means of a next friend
or a guardian ad litem in the case of an infant is properly
matter for the jus 2^ersonaru}n under the head of infancy.

The di^i3ion therefore of the corpus juris into jus ^yersona-
rum,jus rerum, an^ jus actionum is a gTOSS logical error.
In Blackstone, the error is a consequence of his original
division. For he does not, like the Koman lawyers, begin
by di\'iding the law mto jus publicum and jus lyrivatum, and
this last into jus 2}ersonarum andyws rerum; but he di\ades
the whole cor2)us juris into law regarding rights and law
regarding wrongs. By law regarding wrongs, he means law
regarding injuries, the rights and duties arising from injmies,
and civil and criminal procedure. Having divided the
cor2ms juris into these two divisions, and having then
divided the first, or law regarding rights, into jus 2}ersonaru'm
find jus rerum, he could not include in either of these heads
the law regarding actions. His di^'ision is illogical, it being-
manifest that the law regarding wTongs does not regard
wrongs only, but rights also, namely, the rights wliich arise
out of wrongs ; as will be sufiiciently evident to anyone
who looks through the third book of his Commentaries, and
obseiTes the matter of which it is composed.
R 2

Lect.
XLIII.

Jus adionum
co-ordinated
by the
Roman law-
yers with ju3
rerum and

arum. Thia
is a logical
blunder.

liOgfcal In-
accuracy of
Blaclc?tune'3
division of
the corpus
juris into law
regarding
rights and
law regard-
ing wrongs.

The law nt
things should
prerede the
law iif per-
go.is ill the
corpus juris.

Law: Purposes and Subjects.

Tlie nature of tlie distinction between public and private
law I sliall advert to in my next Lecture ; when I shall
show that it is as en-oneous as this distinction of Black-
stone's ; and tliat public law is not one main half of the
corpus juris which oujiht to be opposed to the other half,
but a verj' small portion of it, which ought to be included
in the Law of Persons as a subordinate member: and
Blackstoue, in imitation of Sir Matthew Hale, has so
included it. I am now speaMug of public law in its nar-
rower acceptation, for in its larger, the whole of criminal
law is included in it. Criminal law as a part of public law
(latius arceptuiix) is excluded by the Eoman jurists from
Law of Persons and Law of Things. But it ought to be
distributed under those two departments.

The next topic to which I shall advert is the order in
which the Law of Things and the Law of Persons should
stand relatively to each other. The Law of Things is the
law, minus the Law of Persons, while the Law of Persons
contains such portions of the law as relate to specific and
narrow classes of persons, and can be detached fi-om the
body of the law without brealdng its continuity. Conse-
quently the General Code should come first, and the compara-
tively miscellaneous matters, which are properly a sort of
appendix, should come last. Accordingly, Sir Matthew
liale suggested, and Sir "William Blackstone practically
adopted, this order. It is, however, impossible to sever
completely the y«s ;jerso?mr?n?i and the ^ms re/-M?« from one
another. Even the jus personarum, though consisting mainly
of the narrower positions and rules which modify the more
general matter comprising theji'ws rerum, yet contains many
positions which must be anticipated before it is possible to
explain the Law of Things. But the number of the j^rce-
coi/noscenda in the Tiaw of Things is incomparably greater
than in the Law of Persons. Although the two departments
cannot be completely disengaged from one another, the
student must begin somewhere: and he should begin
where he will require fewest references to what is to come
afterwards.

Natural or
inborn rights,
whatt

I may immediately explain in this place the nature of
certain rights, which have been confounded by mysterious
jargon ; namely, those which are called natural or inborn,
and by Blackstoue absolute rights. For his ' Law regarding
the Rights of Persons ' is not the jus 2)ersonaru}n of the
Koman jm'ists ; t/ieir jus pei'sonaru7n is only one species
of his Law regarding the Rights of Persons, a species which
he calls ' law regarding the relative rights of persons ' ; as
contra distinguished to another species, namely ' law re-

Natural or Inborn Rights.

gardiug the absolute ng-lit3 of persous," that is, these natural
or inboru riglits.

I have ah-eady observed (p. 355, suprci), that the rights
or duties coustitueut of status arise in two ways : they arise
ex statu immediate, either directly from the general or para-
mount title which engenders status; or from that general
title through some subordinate title. The distinction be-
tween natural or inborn rights and any other rights is
analogous to this.

Natural or inborn rights are those which reside in a
party merely as living under the protection of the State, or
as being within the jiu-isdiction of the State ; if the party
have any rights whatever, which the Roman slave had not.
Now these are exactly what Blackstone called absoluto
rights. Such, for instance, is tlie right of personal security.
Such also is the right to reputation, Avhich Blackstone
includes under the riirht of personal security, but which is
distinct from, and ought to have been co-ordinated with, it.
These rights have been called natural or inborn merelv
because they arise sine speciali titulo ; that is, reside in a
party, merely as living- under the protection or Avithin the
jmisdictionof the State. It is manifest, however, that they
are not, properly speaking, natural or inborn ; for thev are
as much the creatures of the law as any other legal rights.

Blackstone * here runs into a signal confusion of ideas,
for: 1st. lie opposes these rights, by the name of absolute
rights, to what he calls the relative rights of persons. But
ail rights are relative ; they suppose duties incumbent on
others. 2udly. lie defines these absolute rights to be
rights appertaining to them merely as individuals or single
persons. But I cannot conceive how they can be distinguished
by that. AU or most rights mtist belong to particidar
persons, and must belong to them as particular persons.
Dominium, for instance, and all rights arising from contracts,
come under this description. Srdly. He further defines them,
rights which would belong to persons in a state of nature ;
rights which they woidd be entitled to enjoy either in or
out of societ)'. But considered as moral riglif s, manv others,
such as rights arising from conveiition, are in the same pre-
dicament. And as to legal rights, with which alone Black-
stone was properly concerned, they, it is obvious, can only
belong to a man in society.

Ajmongst others of "these absm-dities, Blackstone in-
stances, as an absolute right, the right of private property !
A right which, it is quite obvious, cannot exist out of a
state of society. What he meant by the right of private
property in this passage I could not for a long time make

Lect.
XLIII.

J

Gross ab-
Euniilies of
Blarkstone
on this
subject.

See Table Till. j»osf.

.^66

Law : Purposes and Subjects.

Pap.t hi. out ; but it is cleared up by comparing tlie passage witli a

' ' ' corresponding passage in his third vohime, and it appears

to be merely a collective name for all those rights which,
either as properly in the strict sense, or as rights derived
from contracts or quasi-contracts, are the subject of his
whole commentaries. He also instances the right of per-
sonal liberty. But as I have shown (p. 165, siqva), either
this is properly included in the teiTa personal security, or else
it is coextensive with rif/7ti, and ought not to be treated
as a species of right.

Another en-or of Blackstone is that of putting those
- absolute rights of persons under the head Rights of-Persons
at all. As residing in all persons, these rights are not
matter for the Law of Persons, but for the Law of Things ;
and by the Roman lawyers are so treated. The cause why
this was overlooked by Blackstone seems to be that in this,
as in other instances, the rights are not explained by the
Roman lawyers directly, but only by implication under the
head of delicts ; and the explanation nowhere else occurs.

V

Lect.
XLIV.

Jus Pub-
licum : Two
senses.

Narrower
Bonse. The
]aw of

political con-
diliuns.

Two didl-
cuUies in
giving an
account of
public law in
strict sense.

]st difficulty ;
An account

LECTURE XLIV.

Laic, Public and Private.

Hatxs'G discussed the distinction between Law of Things
and Law of Persons, I proceed to the connected distinction
between Public Law and Private Law.

The term '^jmZ»Z/c law ' has two principal significations :
one large and vague ; the other, stiict and definite.

Taken with ita strict and definite signification (to which
I will advert in the first instance), the term public law is
confined to that portion of law which is concerned with
political conditions : that is to say, with the powers rights
duties capacities and incapacities which are peculiar to
political superiors, supreme and subordinate. Taken in this
meaning, public law ought not (I think) to be opposed to
all the rest of the law, but ought to be inserted in the
Law of Persons, as one of the limbs or members of that
supplemental department.

But before I proceed to the jijZace which public law (as
thus understood) ought to occupy in an an-angement of a
corpus juris, I will touch briefiy on two difiiculties, which,
it appears to me, are the only difiiculties that the subject
really presents.

I have said that public law is confined to that portion

Public and Private Lazv.

367

Lect.
XLIV.

of public law
in tills sense
must com-
prise some of
tlie rules of
positive
morality

of law vrliicli is coucerued with political conclitiong. So far
as public law relates to the Sovereign, it is clear that much
of it is not law, but is merely positive morality, or ethical
maxims. As against the monarch properly so called, or as
against the sovereign body in its collective and sovereign
capacity, the so-called laws which determine the constitu-
tion of the State — the ends or modes to and in which the
sovereign powers shall be exercised — are not properly posi-
tive laws, but are laws set by general opinion, or merely
ethical maxims which the Sovereign spontaneously ob-
serves.

But though, in logical rigoiu", much of the so-called law
which relates to the Sovereign, ought to be banished from
the corjnis juris, it ought to be inseited in the corpus juris
for reasons of convenience which are paramount to logical
symmetry. For though, in strictness, it belongs to positive
morality or to ethics, a knowledge of it is absolutely neces-
sary in order to a knowledge of the positive law with which
the corpus juris is properly concerned. The law of Eng-
land, for example, cannot be understood, without a know-
ledge of the constitution of Parliament, and of the various
rules by which that sovereign body conducts the business
of legislation.

And, since the law regarding the Sovereign ought to be
inserted in the Law of Persons, we may say, by way of
analogy, that the Sovereign has a status or condition;
although a status, properly so called, is composed of letjal
rights and leffcil duties, or of capacities or incapacities to
take or incur legal rights and duties.

Public law (in its strict and definite meaning) is not
uufrequently divided into two portions : constitutional law,
and administrative law : {Staats-recht or Constitutions-recht,
and lie fjierunr/s-r edit). The first comprises the law which
determines the comtitution of the sovereign government:
the second comprises the law which relates to the exercise
of the sovereign powers, either by the sovereign or by
political subordinates.

The second of the two difficulties to which I have ad- 2nd dira-

verted, is the difficulty of drawing the line of demarcation, o" dLtin- *

by which the conditions of private persons are severed from ^"|f^'jj,Ijff

the conditions of political subordinates. private cou-

ditiona.

The rights and duties of political subordinates, and the
rights and duties of private persons, are creatures of a
common author (the Sovereign or State), and often sub-
serve and are intended by their sovereign author to sub-
serve the same general ends ; for instance, the prevention of
crime. Accordingly, the conditions of parent and guardian
(with the answering conditions of child and ward) are not

368

Law: Purposes and Subjects.

Part III.

^

Public law, or
the law of
political ccn-
ditiuii?,
should not be
opposed to
the rest of
the legal
system, but
should form
one nienilicr
or head of
the Law of
Persons.

unfrequeutly treated by writers on jurispru deuce, as portious
of /)i<W/c law. For example: The pafjia j^otestas and the
tutela of the Roman Law, are treated thus, in his masterly
* System des Pandekten-Rechts,' by Thibaut of Heidelberg- :
who, for penetrating acuteness, rectitude of judgment,
depth of learning, and ^^gour and elegance of exposition,
may be placed by tlie side of Savigny, at the head of aU
living CiA'ilians. (See note, p. ^43 siipra.)

The powers of punishment which the Roman law origi-
nally entrusted to the j)atcrfamilias were so extensive, that
this accounts for the very small space occupied "by criminal
law in the early Roman law. The place of criminal law
was mostly supplied by the powers vested in those private
persons, who being the proprietaiy and respectable class,
were little tempted to commit crimes, while the remainder
of the community were subject to these powers residing in
them, and were thereby prevented from committing crimes ;
or, if they did commit crimes, were punished by, and at
the discretion of those in vrhose 2>otestas they were.

The only difference that I can assign between political
and private conditions is this : that when the condition is
private, the powers vested in tlie person who bears it 7)iore
2}eculiarh/ regard persons determined specifically ; when
public, those powers more peculiarly regard the public con-
sidered indeterminately.

Having touched on these difficulties, I now proceed tc
give my reasons for the proposition which I laid down
at the outset of this Lecture, namely, that public law, in its
strict and definite meaning, as the law of political conditions,
should not be opposed to the rest of the law, but should be
inserted in the Law of Persons, as one member or head of
that department of the corpus jwis.

Of the various reasons which might be given for this
aiTangement, the following reason, I think, will amply
suffice.

In explaining the nature of the distinction between Law
of Things and Law of Persons, I said that there are two
reasons for detaching the rights and duties of certain classes
from the body of the legal system, namely : 1st. Convenience
for reference ; 2udly, Coherence of the general body of the
legal system, which is attained by omission of the special
matter.

Now both these reasons apply in an eminent degree to
the powers rights and duties of political superiors. With
the exception of the powers and duties of judges and other
ministers of justice (whicli perhaps it is expedient to prefix
to the general law of procedure), there are no cksses of
persons whose peculiar rights and duties may be detached

Public and Private Lazv. 369

more commodioiisly from the bulk of tlie legal system tliar Lect.
those of puhlic or political persons. And if the po"wers XLIV.
rights and duties of political persons ought to be detached ' ' ~^
from the bulk of the legal system, it is clear that they ouglit
not to be opposed to all the rest of the system ; but ouglit
to form a limb of the miscellaneous and supplemental de-
partment which is marked with the common name of the
Law of Persons. For the law which regards specially the
powers and duties of political persons, is not of itself a
complete whole, but is indissolubly connected, like the law
of any otlier status, with that more general matter which is
contained in the Law of Things, and also with the law
regarding other conditions.

Take, for example, the case of our own King. It is
clear that a knowledge of his peculiar powers rights and
exemptions presupposes a knowledge of the Law of Things,
and also of many of the status which are styled private.
"Without a knowledge of the general rules of property, his
peculiar proprietary rights, as king, are not intelligible.
Without a knowledge of the law of desceuts, the peculiari-
ties of his title to the crown are not to be understood.
Without a knowledge of the law of man-iage, his peculiar
relations to his royal consort are not explicable.

And the same may be said of the powers and duties of
any political person whatever. Considered by themselves,
they are merely a fragment. Before they can be fully un-
derstood, they must be taken with their various relations
to the rest of the legal system.

The opposed terms imhlie and jty-ivafe law tend more-
over, in my opinion, to generate a complete misconception
of the real ends and purposes of law. Every part of the
law is in a certain sense public, and every part of it is in a
certain sense private also. There is scarcely a single provi-
sion of the law which does not interest the public, and
there is not one which does not interest, singly and indi-
\iduaUy, the persons of whom that public is composed.

Agreeably to the view which I now have taken of the
subject, Sir Matthew Hale, in his ' Analysis of the Law,'
and Sir William Blackstone, follo^^nng Sir M. Hale, have
placed the law of political persons fsovereign or subordi-
nate) in the Law of Persons : instead of opposing it, as one
great half of the law, to the rest of the legal system.*
Blackstone divides what he calls law regarding the relative
rights of persons into law regarding public relations, and
law regarding private relations. Under the first of these
he places constitutional law and the powers rights and
duties of subordinate magistrates, of the clergy, and of

5eeTableVIIr.;)os^
B3

370

Law : Purposes and Subjects.

Part III.

Public law in
Us large and
vague sigui-
flcation origi-
nating with
tlie use made
of the term
by the
. Roman
lawyers.
Logical
mistake of
the distinc-
tions built
upon it.
Even taken
in this sense
there is
no intelli-
gible basis
for the dis-
tinction
between
rublic and
private law
as co-ordi-
nate depart-
ments.

persoiis employed by laud or sea in the military defence of
the State.

This placing the law of political persons in the Law of
Persons as one of its limljs or memhers, instead of opposing
it to the rest of the corpus juris, is uea.rly peculiar to Hale
and Blaclistone ; and originated with Hale. The German
jiu'ists treat this arrangement as a great ahsurdity, import-
ing great Verioirrung, or confusion of ideas, though the
direct contrary appears to me to he the truth. And the
adoption of this arrangement by Sir Matthew Hale, appears
to me a strildng indication of his originality anrl depth of
thought, since if he had been a mere copyist, he would have
adopted the arrangement which was ah'eady familiar to
him in the writings of the Civilians.

From public law with its strict and definite meaning,
I pass to public law vAih. its large and vague signification.

The Roman lawyers divide the corpus juris into two
opposed departments : — the one including the law of poli-
tical conditions, and the law relating to crimes and criminal
procedure : the other including the rest of the law. The
lu'st they style jus publicum, the second they style jus 2)ri~
vatmn. This division is the model or pattern upon which
all the modern distinctions into public and private law
have been formed.

In former Lectm'es* I explained the origin of the term
' public wi'ongs,' as applied to crimes, and observed that
they acquired this name from a mere accident, from the
fact that crimes were originally tried by the sovereign
Roman People. The original reason ceased when the
jm-isdiction in criminal causes was removed from tha
people, and vested in subordinate judges. But the name
remaining, it was supposed afterwards by the Roiuau
jurists, that crimes were called public wi'ongs, because thej'
aflected more immediately the interests of the whole com-
munity. I have already exposed this fallacy, and shown
that the distinction between civil injuries and crimes rests
not upon any diflerence, in their consequences and efl'ectg,
but upon the ditlerent way in which they are pursue:!.
The distinction, although grounded on expediency, is arbi-
trary in its scope ; that is a civil injury in one system of
law which is a crime in another.

Inasmuch as crimes were, however, supposed to affect
more directly the interests of the whole community, ausl
inasmuch as the law of political status does really in a
peculiar manner regard the whole community, crimiuil
law and the law of political conditions were placed by tha

Sec pp. 195, 2J;9, 297, supra.

I

Public and Private Law. 371

classical jurists togetlier, aud were opposed to all tlie rest Lect.
of the corpus juris, XLIV.

They style criminal law aud the law of political coudi- ' '

tions jus jncblicuin : for, say they, ' ad statum rei EomaDte,
ad publice utilia spectat.'

They style the opposed department of the corpus juris
jus privatum : for, say they, ' ad singulorum utilitatem, ad
privatum utilia spectat.'

This explains the order of Justinian's Institutes. It is
merely a treatise upon private law. By consequence, cri-
minal law, with the law of political status, is not comprised
by it ; the classical jiu-ists, fi-om whose elementary works
the Institutes were copied, having thought (it would be
hard to say why) that public law was not a fit subject for
an institutional or elementary treatise. The Institutes
close with a very short title, ' De publicis judiciis,' aud
this is the only part of this treatise which relates to
crimes.

Blackstone's Commentaries are not confined to private
law, but are intended to serve as an institutional treatise
on the whole Law of England : though he touches upou
certain parts (as upou equity and ecclesiastical law) in a
comparatively brief and superficial manner. As I have
already observed, he places the lav/ regarding political con-
ditions in the Law of Persons, and the only trace of the
distinction between public and private law to be found in
his Commentaries is that he styles the department which
relates to crimes and to punishments and criminal proce-
diu'e ' Public Wrongs.' * Hale retains no trace of the dis-
tinction : for, in his analysis, he throws out criminal law
altogether. In his 'pleas of the Crown,' he does not
designate crimes by the name of public wrongs, but calls
them, more appropriately, ' Pleas of the Crown,' that is,
offences of which the Crown or State retains the prosecu-
tion in its own hands.

With reference to its ultimate purpose, the law of
political status, and criminal law, is not to be distinguished
from the so-called jyrivate Icnv. Each tends to the security
of the public : meaning by the imhlic the several individuals
who compose the society, as considered collectively or
without disciimiuation.

Another reason against the distinction is this. That
the matter of the law of things is just as much implicated
with public law, in the large sense, as with the law of
private conditions.

In short, whether ' public law ' be taken in its large or
iu its narrower sense, the distinction between public law

• See Table VIII. posf.

^7^

Lata: Purposes and Subjects.

Part III. and private law (considered as co-ordinate departments)
" 1 ' rests upon no intelligible basis and is inconvenient.

In fact nothing can be more various than the views
taken by some modern writers of the distinction between
public and private law. Some include in public law,
besides the law of political conditions and of crimes and
criminal procedure, the whole law also of civil procedure.
Others, in despair of finding a stable basis for the division,
exclude criminal law. They see that a multitude of crimes
afl'ect indi^dduals as directly as the delicts styled civil.

But the greatest logical error of all is that j;ommitted
by many continental jurists, who include in public law, not
only the law of political conditions, of crimes, and of civil
and criminal procedure, but also international law ; which
is not positive- law at all, but a branch of positive morality.
It is sometimes expedient to include in the corpus juris a
part of what is really positive morality, because positive
law is not intelligible without it : but there is no such
reason for so including international law, except those
parts of it which have changed their nature, and become
positive law by adoption as a part of the positive law
obtaining in the particular country. If not parts only, but
the whole of international law is to be included in the
'jorpus juris, there is the same reason for including in it the
whole of the positive morality of the particular country ;
for on this, as well as on international morality, positive
law is in a sreat measure founded.

Vsrious
otiicr mean-
ings of the
phrase
'I'Uljlic law.'

The phrase public laio has at least four or five totally
different meanings. 1 st ; it has either of the two mean-
ings above adverted to : its strict or definite, and its large
or vague sense. 2ndly ; it sometimes means the laAv which
jiroceeds either from the Supreme Legislature, or from sub-
ordinate political superiors, as distinguished from what
have been termed laws autonomic, that is, laws set by
private persons in pursuance of legal rights with which
they are invested. Srdly ; public laws are sometimes op-
posed to laws creating privilef/ia. Laws of this kind are
sometimes called jus sincjulare ; and jus publicum, as op-
posed to them, is called j/;s commune. 4thly; under public
law are sometimes classed definite and obligatory modes of
performing certain transactions. ' Testamenti factio uon
privati sed publici juris est.' 5thly ; by public laws are
sometimes meant the laws called prohibitive or absoluteli/
binding, as opposed to the laws called dispositive or pro-
visional. The legislator in certain instances determines
absolutely what shall be the effect of a given transaction,
that is, he determines what effect the transaction shall have,
if the parties do not pro\'ide otherwise. Now, when the
legislature determines absolutely the effect of a transaction,

Laiv of Things — Its Main Divisions. 373

the law is called public : -when he leaves a certain latitude i^ect.
to the parties, it is called dispositive or pro-visioual ; heing XLIV.
to take effect only in case no disposition is made by the ~~" ' '
parties themselves. In France, this is the case with the
law of marriage. The Code lays down two or three dif-
ferent sets of rights and duties, which may be the conse-
quences of marriage at the option of the parties ; merely de-
termining what legal effect the marriage shall have if the
parties do not alter the disposition of the law. This use
of terms accounts for the meaning of several principles
of law which appear to have a <jreat sense in them, but
which are merely identical propositions. Jus publiciwi jm-
vatorum pactis mutari non j^otcst : privata conventio jun
publico niliil derogat. Now, as jus j^Micum in these sen-
tences only means the law which cannot be modified by con-
ventions, the propositions are simple truisms.

I may conclude this Lectiu'e with the observation that
the logical error of opposing a small bit of the law to the re-
mainder of the body, is not confined to the distinction
between the Law of Things and the Law of Persons, or
between public and private law. Many writers, for ex-
ample, detach criminal law from the whole legal system,
calling the rest of the law civil. Others detach ecclesias-
tical law, and oppose all the remainder to it, by the name \j
of civil. Others distinguish the law into military and civil.
The word civil has about twelve different meanings ; it is
applied to all manner of objects, which are perfectly dis-
parate. As opposed to criminal, it means all law not cri-
minal. As opposed to ecclesiastical, it means all law not
ecclesiastical : as opposed to military, it means aU law not
military, and so on. Even jus ]))'ivntdun is sometimes also
called jus civile.

LECTURE XLV.
Laio of Thiru/s. — Its Main Divisions.

There are facts or events from which rights and duties
arise, which are legal causes or antecedents of rights and
duties, or of which rights and duties are legal effects or
consequences. There are also facts or events which extin-
guish rights and duties, or in which rights and duties ter-
minate or cease. The events which are causes of rights and
duties may be divided in the following' manner : namely, ^^ ^^^ _^^
into acts, forbeai'ances, and omissions, which are violations primary and
of rights or duties, and events which are not violations of r'i'ghts°etc.'^
rights or duties.

374

Lazv : Purposes and Subjects.

Part III.

V

Substantive
and adjective
law. The
teims sugges-
tive of ainis-
tonceptioii.

Acts, foi'l)earances, and omissions, which are violations
of rights or duties, are styled delicts, injuries, or offences.

Rights and duties which are consequences of delicts, are
sanctioning (or preventive) and remedial (or reparative).
In other words the ends or purposes for which they are
conferred and imposed, are two : Urst to prevent \iolatiou3
of lights and duties which are not consequences of delicts :
secondly to ciu-e the evils or repair the mischiefs which
such \'iolation3 engender.

Eights and duties not arising from delicts, may he dis-
tinguished from rights and duties which are consequences
of delicts, by the name of ' primary ' (or principal)' Rights
and duties arising from delicts, may he distinguished from
rights and duties which are not consequences of delicts hy
the name of ' sanctioning ' (or ' secondary '). I call them
* sanctioning ' because their proper pm-pose is to prevent
delicts or offences.

My main division of the matter of the Law of Things,
rests upon the basis or principle at which I have now
pointed : namely, the distinction of rights and of duties
(relative and absolute) into primary and sanctioning. Ac-
cordingly, I distribute the matter of the Law of Things
under two capital departments — 1. Primary rights, witli
jvimary relative duties. 2. Sanctioning rights with sanc-
fioninrj duties (relative and absolute), delicts or iujm-ies
(which are causes or antecedents of sanctioning rights and
duties) included.

If I adopted the language of Beutham, and of certain
German ^vriters, I shoidd style the law of primary rights
and duties, substantive law ; and the law of sanctioning or
secondary rights and duties, adjective or instrumental law.
In other words, I should divide the Law of Things, or the
bulk of the legal system, into law conversant about rights
and duties which are not means or instruments for render-
ing others available ; and law conversant about rights and
duties which are merely means or instruments for rendering
others available. Substantive law as thus understood is
conversant about the rights and duties which I style pri-
mary : adjective law, about the rights and duties which I
style secondary.

But it will appear, on a moment's reflection, that the
terms substantive and adjective law tend to suggest a com-
plete misconception of the nature of the basis on which the
division rests.

These terms suggest the division of rights and duties
into two classes under the follovsdng descriptions :

1st. Those which exist in and ^^er sex which are, as it
were, the ends for which law exists : or which subserve
immediately the ends or purposes of law.

Primary mid Sanctioning Rights and Duties.

375

2ndly. Those -wliicli imply tlie existence of other rights
and duties, and which are merely conferred, for the hetter
protection and enforcement of those other rights and duties
whose existence they so suppose.

Now although sanctioning rignts and duties (or rights
and duties arising out of iniuries) are of this last character,
many rights and duties which are primary or principal (or
which do not arise out of injuries) are also of the same na-
ture. The di\"ision therefore of Law into law regarding pri-
mary rights and duties, and law regarding sanctioning or
secondary rights and duties, cannot he referred to a dif-
ference between the purposes for which those rights and
duties are respectively given hy the State. And I object to
the names, ' Substantive and Adjective Law/ ijs tending to
suggest that such is the basis of the di-\-isiou. It appears
to me that the true principle of division rests exclusively
upon a difference between the events from which the rights
and duties respectively arise. Those which I call primary
do not arise from injiu-ies, or from violations of other rights
and duties. Those which I call secondary or sanctioning
(I style them sanctioning because their proper purpose is to
pi'event delicts or oflences) arise from violations of other
rights and duties, or from injm-ies, delicts, or oflences.

My main division, then, of the Law of Things is
this : 1st. LaAV regarding rights and duties which do not
arise from injuries or wrongs, or do not arise from injm-ies
or wi'ongs directly or immediately ; 2ndly. Law regarding
rights and duties which arise du-ectly and exclusively from
injuries or wrongs. Or, Law enforced directly by the
Tribunals or Oom-ts of Justice ; and Law which they only
enforce indirectly or by consequence. For it is only by
enforcing rights and duties which grow out of inimnes, that
they enforce those rights and duties which arise from events
or titles of other and different natures.

Under the department of the law which relates to
sanctioning rights and duties I include procediu-e, civil
and criminal. For it is manifest that much of procedure
consists of rights and duties, and that all of it relates to the
manner in which sanctioning rights and duties are exercised
or enforced.

And here Benthams arrangement seems to me to be
defective, as is also that of several German writers who
have adopted the same views. In the Traites de Legislation
]^ntham severs from droit sicbstrnitif or ike law, droit
adjectif or the law of procedure. This, as it appears to me,
involves a double logical error. For in droit substantifhe
includes droit civil (as opposed to droit i^^nfd) and droit
penal ; including under droit penal, the law relating to civil
injmies and to crimes with their punishments, together with

Lect.
XLV.

•

3[ain divi-
sion of Law
of Tilings.

1. Law re-
garding
primary
rights and
duties : —

2. Law-
regarding
sanctioning
rights and
duties.
The second
department
includes
■procedure.

3/6

Laiv : Purposes and Subjects.

Part III.

Distinction
between an
nctioii con-
sidered as a
vigil t, and an
ftctioii con-
sidered 39 an
instrument
for enforcing
lliat right.

the rights and duties growing out of those delicts and of
those punishments. But first, as I have already remarked
of substantive law as thus understood, much is adjective or
instrumental. For all rights of action arising out of civil
injuries are purely instrumental or adjective ; as well as the
whole of criminal law and the whole law relating to punish-
ments. And 2ndly, if he calls the law of procedure droit
adjectif, he ought to extend that term to the law relating to
the rights and duties arising from ci-vil iujiu-ies and from
crimes and punishments.

I must here advert to the distinction which is st/metimes
made between an action considered as a right, and an action
considered as an instrimient by Avhich the right of action is
itself enforced.

It is said by Ileineccius, 'actio non est jus, sed mediu7n ^iis
persequendi.' But it is impossible to distinguish completely
a fiffht of action from the action or procedure which en-
forces it. For much of the right of action consists of rights
to take those very steps by which the end of the action is
accomplished.

It is perfectly true, that the scope or purpose of the
right of action is distinct from the procedure resorted to
when the right is enforced. Much of the procedure con-
sists of rights which avail against the ministers of justice
rather than against the defendant. And the parts of it
which consist of rights against the defendant himself, are
totally distinct from the end which it is the object of the
process to accomplish. But still it is impossible to ex-
tricate the right of action itself from those subsidiary
rights by Avhich it is enforced. And it is manifestly absurd
to deny that the process involves rigJds, Ijecause the rights
which it involves are instruments for the attainment of
another right.

While I am upon this subject, I will observe that a posi-
tion of mine in a former part of my com-se, that every right
of action arises from an iujmy, or violation of some other
rights, has been objected to.

But it seems to me that the only cases in which a right
of action does not presuppose an injury, arise from that ano-
maly in the English Law which I endeavoured to explain
in a preceding Lecture (pp. 230-233 supra) ; i. e. cases in
which a right of action is given, although there has been no
wrong, on accoimt of the want of wi'ongful consciousness
on the part of the defendant.

No Court of Justice {acting as such) would decide on a
question of law or fact without a suggestion, on the part of
the plaintiff, of a wrong, actual or impending.* In exer-

Tlie power to Courts of Justice to decide a question upon a

Primary and Sanctioning' Rights and Duties. 377

cising voluntary jurisdiction, tliey are rather lending Lect,
bolemnities to certain contracts. They are rather acting XLV.
as registration offices than as courts of justice. AVhat is ^^ ' ^
called voluntary, and what is called contentious jm-isdiction
are only linlied up together under one name, because the
judges, who, as such, have to do with the latter alone,
sometimes comhiue with it the former, as they do various
other functions.

In most systems of law, a vast number of primary rights
and duties are not separated from the secondary. That is
to say ; the primary right and duty is not described in a
distinct and substantive manner ; but it is created or im-
posed by a declaration on the part of the Legislatm-e, that
such or such an act, or such and such a forbearance or
omission, shall amount to an injury ; and that the party
sustaining the injury shall have such or such a remedy against
the party injuring, or that the party injuring shall be
punished in a certain manner.

Nay, in some cases, the law which confers or imposes
the primary right or duty, and which defines the nature of
the iniuiy, is contained by implication in the law which
gives the remedy, or which determines the punishment.
This is generally the case in regard to the duties which I
have called absolute, namely the duties owed to the State.
These are hardly ever described separately, but are generally
involved in the description of the acts or omissions which
are violations of them, or of the procedure by which these
violations are to be pm-sued. Tlie same was the case, as I
have previously shown (p. 304 ante), with the Proctor's
Edict, which virtually enacted laws by declaring that in
certain circumstances an action would be given or an exception
allowed.

And it is perfectly clear that the law which gives the
remedv, or which determines the punishment, is the only
one that is absolutely necessary. For the remedy or pimish-
ment implies a foregone injury, and a foregone injury im-
plies that a primary right or duty has been \'iolated. And,
further, the primary right or duty owes its existence as
such to the injunction or prohibition of certain acts, and to
the remedy or punishment to be applied in the event of dis-
obedience.

The essential part of every imperative law is the im-
perative part of it : i. e. the injunction or prohibition of

special case (introduced by statute 13 & 14 Vict. c. So) ; and tlie
power given to the Court of Chancery in England to give advice
to trustees (22 & 23 Vict. c. 85, s. 30), are hardly exceptions to
this statement. In both cases there is an implied suggestion of
an impending wrong. — K. C.

378 Laiv : Purposes and Subjects.

Patit III. some giveu act; aud tlie menace of an evil in case of non-
"■ ■ compliance.

lu strictness, my own terms, ' primary and secondary
rigLts and duties,' do not represent a logical distinction.
For a primary right or duty is not of itself a riglit or duty,
without the secondary right or duty hy which it is sus-
tained ; and e converso.

The reason for describing the primary right and duty
apart, for describing the injm-y apart, and for describing the
remedy or punishment apart, is the clearness aud compact-
ness which result ii'om the separation. For the same
remedial process is often applicable to a variety of classes ®f
rights, and repetition is consequently avoided. Another
reason is that many iujm'ies are complex ; being violations
of several distinct rights.

To show how little logic is to be found in the very best
attempts yet made to distribute the corpus juris into parts,
I will observe that the description of the injury and of the
remedy is sometimes annexed immediately to the primary
right or duty ; in other cases, removed to a totally distinct
department. An example of this is the order of the Insti-
tutes in respect to rights and duties which arise from the
infidugement of rights ex contractu and quasi ex contractu.
By obiigationes ex delicto, they meant what we mean by the
same phrase in English law, namely, duties arising from
violations of rights which avail against the world at large.
Now the authors of the Institutes oppose to these, obliga-
tiones ex contractu, and quasi ex contractu : but rights and
duties arising from contracts and quasi-contracts are rights
aud duties existing for their own sake, as the Germans ex-
jjress it : they belong to the class of primary or principal
rights and duties. Consequently there is no place for the
obligations arising from the breach of obligations ex con-
tractu and quasi ex contractu ; these are consequently at-
tached to the description of those obligations themselves.
By this rule, however, ohligationcs ex delicto (by which the
authors of the Institutes meant obligations which arise from
Aiolations of jura in rent) ought, in consistency, to be at-
tached to that part of the law which is concerned with
dominia ov jura in rem ; or, if banished to a separate head,
obligations arising by offences against the rights founded on
contracts and quasi-contracts ought to be placed there along
with them. Such, for instance, are rights of action arising
from a contract ; for it is e\ideut that there can be no action
upon a contract until it is braken.

Blackstone's method, though in general greatly inferior
to that of the Roman Lawyers, is here superior to it.
Under the head of personal property he treats of those
obligations arising fi-om contracts and quasi-contracts which
are ivimnry : in his third volume, when treating of wrongs,

Subdivision of Primary Rig Jits, &c. 379

he adverts to tliose obligations gi-owing out of contracts or i.kct.

quasi-contracts wliicli arise from Lreaclies of those primary XLV.

ones. ' ' '

LECTUHE XLVI.
Method of subdivision of Pmnary Rights, etc.

After distinguishing- primary or principal from secon-
dary or sanctioning rights and duties, I next proceed to suh-
divide the former division, or that of primary rights.

The fii-st great distinction among primary rights has
been very fully explained in a preceding part of this course
(p. 175, etc.). I allude to the distinction between dominia j;ifjj[
and oblit/ationcs, as they vs'ere called by the classical j mists ; remauain
between jtira in rem and jura in jiersonam, as they have personam.
been styled by modern Ci\dlians, For this distinction, as
conceived tvith the ivhole of its extent and importance, we
are indebted to the penetrating acuteuess of the classical
Roman jmists, and to that good sense, or rectitude of mind,
which commonly guided their acuteness to true and useful
results. Every student of law who aspires to master its
principles, should seize the distinction in question adequately
as well as clearly ; and should not be satisfied with catching-
it, as it obtains here or there. For the difl'erence whereon
it rests, runs through every department of every system of
jm-ispi-udence: although, in om- own system, the difl'erence
is far from being obvious, and cannot be expressed at once
sufficiently and concisely without a resort to terms nnknown
to the English law, and which may appear uncouth and
ridiculous to a merely English lawyer.

With the help of the explanations given in previous
Lectm-es T can now indicate the method or order w^hcrein I
treat or consider the matter of the Law of Things. That
method may be suggested thus :

The matter of the Law of Things, I arrange or distribute
under two capital departments.

The subjects of the fu'st of those capital depai-tments Distribution
are primary^ rights, with immary relative duties ; which I °\ghts!&c.
arrange or distribute under fom' sub-departments. — 1. Eights under four
in rem as existing jier se, or as not combined with rights in meiitsf ^'^''
personam, 2. Rights in personam as existing p)er se, or as
not combined with rights in rem. 3. Such of the combina-
tions of rights in rem and rights in jycrsonam as are par-
ticular and comparatively simple. 4. Such universities of
rights and duties (or such complex aggregates of rights and
duties) as arise by universal succession,

380 Lazv : Ptirposes and Subjects.

Part III. Tlie sulDJects of the second of those capital departments

~— — ■ ' are sanctioning rights (all of -which are rights in j)ersonam) ;

and sanctioning duties (some of which are relative, but others
of which are absolute), together with delicts or injuries
(which are causes or antecedents of sanctioning rights and
duties).

riiis division, This order is somewhat different fi'om tliat of the insti-

ai!io u>\h.At tutional treatises of the Eoman lawyers, and from that of

'ron'ian thosc moderu Civilians who have followed the method of

lawyers. those treatises. By them, the matter of the law of things

is dinded into dominia (in the largest sense of that term),

or jura in rem — and obligationes, ovjura in peisonam. And

dominia (in the large sense) are again divided into dominium

rei singul(S,jura in re aliend, and universitates juris.

This di^'i3iou appears to me very incorrect. A man's
inheritance or paliimony, for instance (which is a universitas
juris), includes both jura in rem and jura in jjersonam,
because rights of both sorts devolve on universal successors.
It is more convenient, as well as more correct, to dis-
tinguish primary rights into jura in rem, jura in j^ersonam,
and aggregates more or less complex of rights of both
kinds. There are combinations of both kinds of rights
which are hardly included in the expression ' universitas
jmis.' For example, the right conferred by a mortgage, is
a combination of rights in rem and rights in jjersonam. So
is the right conferred by a sale, completed by delivery, undei"
some cii'cumstances ; for instance, if accompanied by a
waiTanty.

Even by my own method the distinction between the
classes of rights is not complete, and they cannot by any
method be kept quite separate. Under the head of univer-
sitates juris, -we cannot avoid referring fonvard to obligations
arising from iujui'ies: for many rights arising from injuries
often devolve from Testators, Intestates, or Insolvents, to
those who tak-^ 2^-'' universitatem.

LECTURE XLVn.

JRiglds in rem as existing per se — Different meanings of
'Dominium' or ' Property. '

Ix treating of rights in rem as existing simply (or as
not combined with rights in jyersonam), 1 will first touch
upon them briefly, with reference to differences between
their subjects, or between the aspects of the forbearances
which may be styled their objects.

Rights in rem Domlnlurfi. 381

And here I sLall furllier explain a ^losition stated in a
previous Lecture (see p. 170 supra).

The expression in 7-em, when annexed to the term rif/Jd,
does not denote that the right in question, is a ri(/ht over a
thinff. Instead of indicating the nature of the suhject, it
points at the compass of the correlating duty. It denotes
that tlie relative duty lies upon persons generally, and is not
exclusively incumhent upon a person or persons determinate.
In other words, it denotes that the right in question avails
against the world at large.

Accordingly, some rights in rem are riglits over t/tin^s:
others are rights over persons : whilst others have iw sub-
jects (persons or things) over or to which we can say they
exist, or in which we can say they inhere. — For example :
Property in a horse, property in a quantity of corn, or pro-
perty in, or a right of way through a field, is a right in rem
over or to a iking, a right in rem inhering in a thing, or a
right in rem whereof the subject is a thing. — The right of
the master, against third parties, to his slave, servant, or
apprentice, is a right in rem o\ex ov to a jmrson. It is a
right residing in one person, and inhering in another per-
son as its subject. — The rig'ht styled a monopoly, is a right
in rem which has no subject. There is no specific subject
(person or thing) over or to which the riglit exists, or in
which the right inheres. The officium or common duty to
which the right con-esponds, is a duty lying on the world at
large, to forbear from selling commodities of a given de-
scription or class : but it is not a duty lying on the world at
large, to forbear from acts regarding determinately a speci-
fically detenuiued subject. A man's right or interest in his
reputation or good name, with a multitude of other rights,
would also be found, on analysis, to avail against the world
at large, and yet to be wanting in persons and things which
could be styled their subjects.

I shall therefore distinguish rights in rem (their answer-
ing relative duties being implied) with reference to diiler-
ences between their subjects, or between the aspects of the
forbearances which may lie styled their ohjects. As distin-
guished with reference to those difi'erences, they will fall ,
into three classes. — 1. Rights in rem of which the subjects \J
are things, or of which the objects are such forbearances as
determinately regard specifically determined things. 2.
Eights in rem of which the subjects are persons, or of
which the objects are such forbearances as determinately
regard specificallj' determined persons. 8. Eights in retn
without specific subjects, or of which the objects are such
forbearances as have no specific regard to specific things or
persons.

382

Law : Purposes and Subjects.

Tart III.

Rights in
rem over
things, the
only rights
*hirh I
Ehall treat
directly.

Distinction
between rro
pertj- or
donnnintn^
and ease-
ment or
tcrviUis.

lu expiaiuiug, in my earlier Lectiu'es, tlie nature of tha
distinction between jus in rem and in jjosojiam, I cited
numerous examples of rights in tlie former class ■which have
no specific subjects (persons or things, p. 188 supra). And
it wiU, therefore, not be necessaiy to adduce examples
here.

With regard to jura in rein, which are rights over
persons, I wovdd observe that all (or nearly all of them) are
matter for the Law of Persons and the Law of Status.
Such, for example, is the case with the right of the master
to the slave ; the right of the master in the servant ; the
right or interest of the parent or husband in the child or
"udfe ; and the right or iuterest of the child or wife in the
parent or husband. In these, and various other cases, the
right IS, jus in rem (or a right availing against the world at
large) of which the subject is a person. But in each of
these cases, the right is a constituent element of a status or
condition, and therefore is appropriate matter for that
appendix or supplement which is styled the Law of Persons.

The only light in or over a person which seems appro-
priate matter for the Law of Things, is what may be called
a man's right in his own person or body : that is to say, a
man's rioht to enjoy and dispose of (free from hindrance by
others) his bodily organs and powers, in so far as such en-
joyment and disposition consist with the rights of othei-s, or
(generally) with any of the duties incmnbent on himself.

This right (which, as I shaU show hereafter, may be
likened to property or dominion in a thing, strictly so called)
is properly matter for the Law of Things, or for the I^aw
exclusive of the law of status. Instead of being parcel of
a status or condition, it resides in every person (wlio has
anv rights at all) by the mere fact of his living under the
Stat-e, or within the protection which it yields to those who
ai'e living imder its jiu-isdiction.

In treating of rights in rem as existing simply (or as not
combined with rights in imsonam), the only rights which 1
shall consider directly are, rights over things, in the strict
acceptation of the term: that is to say, such permanent
external objects as are not persons. Rights in rem in or
over persons, and rights m rem which have no subjects, I
shall touch incidentally (in so far as I may lind it necessary
to advert to them), as I treat of rights of the class in or
over things.

Of the various distinctions between rights in rem over
tbino's, the fii'st to which I address myself, is the distinction
which I must mark, for the present, by the ambiguous and
iuaderjuate names of dominium and servitus. The rationale
of this distinction is the following : —

By different rights in rem over things, the different per-

Dominium— Servitus. 383

eons in wliom tbey respectively reside are empowered to use
or deal with their respective subjects in diflerent deprees or
to different extents. And such differences obtain between
such rights, independently of differences between tlieir
respective dm-ations, or the respective quantities of time
diu'ing which they are calculated to last.

Of such differences between such rights, the principal or
leading one is this. — 1. By -sirtue of 'some of such rights,
the entitled persons may use or deal with the subjects of
the rights to an extent which is incapable of exact circum-
scj-iption, although it is not unlimited. For example : Tho
proprietor or owner is empowered to tm-n or apply the sub-
ject of his property or ownership, to uses or pm'poses
which are not absolutely imlimited, but which are incapable
of exact circumscription with regard to class or number.
The right of the owner, in respect of the purposes to which
he may turn the subject, is only limited, generally and
vaguely, by all the rights of all other persons, and by all the
duties (absolute as well as relative) incumbent on himself.
He may not use his own so that he injure another, or so that
he -violate a duty (relative or absolute) to which he himself
is subject. But he may turn or apply his own to every use
or pm-pose which is not inconsistent with that general and
vague restriction. And to an extent which is likewise in-
delinite he may exclude others from the use of the subject.
2. By virtue of other of such rights, the entitled persons,
or the persons in whom they reside, may merely use or deal
with their subjects, to an extent exactly circumscribed (at
least, in one direction). For example : he who has a right
of way through land owned by another, may merelj' tm-n the
land to pm-poses of a certain class, or to pm'pcses of deter-
mined classes. He may cross it in the fashions settled by
the grant or prescription, but those are the only purposes
to which he may turn it la-vN-fully.

A riglit belonging to the first-mentioned Idud, may be
styled dominium, or properiy, with the sense wherein
dominium is opposed to servitus. As contradisting-uished
to a right belonging to the tu-st-mentioned kind, a right of
the last-mentioned kind may be called servitus. Dominium
or property is a name liable to objection, on account of the
nimierous meanings (to which I shall presently advert) in
which the word has been used. Servitus is also liable to
objection as not adequately expressing the class of rights
which I have denoted by it. But notwithstanding the
ambiguities which encmnber the terms, I prefer them, as
being known and established terms, to newly devised names ;
and this for reasons which I have repeatedly hinted at in
the course of these Lectures.

Before I close the present Lectiu-e, I will make a few

Various
meaDinpc

3H

Laze : Purposes and Subjects.

4

Part HI.

• property '
or 'domi-
nium,' etc.

remarks upon the various meanings of tlie veiy amtiguoua
word ' Property ' or ' Dominium.'

1. Taken witli its stiict sense, it denotes a riplit — inde-
finite in point of user — unrestncted in point of disposition
—and not restricted by regard to riglits of others whose
enjoyment is postponed — over a determinate thing. In this
sense, it does not include scn-itus, nor any right limited Ijy
regard to an indefeasible remainder or reversion in another
person. Sometimes it is taken in a loose and vulgar accep-
tation, to denote not the right of property or dominion, but
the suhject of such a right ; as when a horse or piece of laud
is called my property.

2. Sometimes it is applied to a right indefinite in point
of user, but limited by regard to riglits of persons entitled
in remainder or reversion : for instance, in common parlance,
a life interest in an immoveable is a property.

3. Sometimes the temi 'right of property' or 'domin-
ium ' is opposed to a right of possession ; in this sense the
term ' right of property ' e^en includes sn-ritns.

4i. In the language of the classical Roman jurists, the
ievm. jyroprietas, or in re potestns or dominium^ has two priu-
cipal meanings. It is cither a right, indefinite in point of
user, over a determinate thing : or, generally, jus in 7-cni.
In the first sense, it is opposed to servittis; and these form
the two divisions of rights availing generally against the
world. In the second or large and vague sense, it includes
all to which in the first sense it is opposed ; all rights not
coming within the description of ohligatio.

5. In English law, unless used vaguely and popularly,
the term properfy is not applied to rights in immovcib'-es.
"We talk of properf]) in a moveable thing ; and by this we
mean what the Eoman lawyers called dominium (in the
narrower sense of the term) or proprietm, fbey having no
distinction between real and personal property. But in the
strict language of English law, when we refer to a right or
interest in immoveables, we speak of an estate in fee simple,
an estate in tail, an estate for life and so on, but never a
property. An estate in fee simple corresponds as nearly as
may be to absolute property in a personal chattel.

6. Another strange caprice of language is the following.
The term ' property ' is applied to some rights in rem over
or in persons but not to others. Eor example, the right of
the master in the slave is called dominium in tne Eoman law
and property in the Enghsh. The former word seems to
have originally been applied exclusively to that right ; to
have been co-extensive with dominns, and to have extended
onlv bv analogy to tilings strictly so called. But in neither
the Eoman nor the English law is the analogous right of
the father in his son iucluded under the same name. So a
man's right in his own person has been called a right

Domini u ni as distiugiiisJicd from S c r v i t u s.

JOJ

of personal security, but never a property in his ov/n person. Leot.
This is analoo:ous to the capricious application of the term XLVII.
thinir, which I mentioned in aprevious Lectm-e (p. 308,siyj;Y/). "^ '

7. Another meaning of the word property is the ag-gTe-
gate of a man's faculties, rights, or means. It is tantamount
to the term estnte and effects, or perhaps to the term assets.
In this sense it implies rights in ^lersonam, or obligations, as
well as rights of every other class.

8. A stiU more remarkable acceptation is the following.
In the largest possible meaning, property means legal rights
or faculties of any kind ; as when we taUi of the institution
of property : or of security to propei-ty as arising from
such and such a form of Govemment, or the like. It is
commonly said that Government exists or should exist to
institute and protect property. I have demonstrated in a
note to my published Lectm'es, the absurdity of this doc-
trine.* But the ^^ro/je?-^// here spoken of must mean legal
rights in the largest sense. It cannot be meant that Go-
vernment exists or ought to exist for the pm'pose of creating
and protecting rights of dominion in the naiTOwer sense,
else it would be implied that it ouglit not to exist for the
purpose of protecting rights arising from contracts and quasi'
contracts.

nistinction

LECTURE XLVIII.
Dominium as opposed to Servitus.

PrESurxG my examination of the distinction, which, for
want of better names, I marked Avith the opposed expres-
sions dominium (or property) and servitus, 1 proceed to
remark that Avhoever has a right of property may apply the between"
subject of his right to any purpose or use which does not ppTpm""' ^'"'
amount to a violation of any right in another, or to a breach and servUus.
of any duty lying on himself. And it is only in that nega-
tive manner that the extent of the power of user imported
by the right of property can possibly be determined.

But in the case of a right of servitude, the purposes or
uses to which the person invested with the right may apply
the subject, are not only limited generally by the duties
incumbent upon him, but are determined or may be deter-
mined by a positive and comprehensive description.

In a word, servitus gives to the entitled party, a power
or liberty of apphnng the subject to exactly determined
purposes. Property or dominium gives to the entitled party
the power or liberty of applying it to all purposes, save such

* See note, p. 300, supra.
S

386

Laiv : Purposes and Subjects.

Part IT. purposes as are uot consistent witli liis relative or absolute
' ^ ' duties.

I would briefly remark (l^efore I proceed) that in treat-
ing of the distinction now in question, I suppose that the
right of the party is present or vested, and is also accom-
panied with a right to the present enjoyment of the right,
or to the present exercise of it. To the nature of contingent
rights, and of sucli vested rights as are not coupled with a
right to present enjojTuent or exercise, I shall advert here-
after.

Property is
gnscei'tible
of vari jus
sjodes.

Property or dominium (used ^s-ith the laeaniug which I
am now annexing to the term) is applicable to any right
which gives to the entitled party an indefinite power or
liberty of using or dealing with the subject. But property
(as thus understood) is susceptible of various modes : that
is to say, the limitations or restrictions to that power or
liberty may vary to inlinity ; according to the purpose or
intention of the State in granting or conceding the right,
and the consequent duties laid on the owner, either abso-
lutely or having regard to rights conferred on others in the
same subject.

For example : An estate in fee-simple in land, or abso-
lute property in a personal chattel, and an estate for life or
years in land or a personal chattel, are equally in'opertij (in
the present sense of the expression) : for, in either case, the
power or liberty of user which resides in the entitled party,
is not susceptible of positive and exact cii'cmuscnption.

But the limitations or restiictions to that indefinite
right of user, are, in the different cases, widely diflerent.

In the case of the estate in fee, or the absolute property
m the personal chattel, the owner may waste or destroy the
subject, in so far as such waste or destruction may not be
injurious to other persons considered generally.

In the case of the estate for life, or of the estate for
years, this power or liberty is restrained, not only by the
rights of others considered generally, but by the rights in
the same subject of those entitled in remainder or reversion :
that is to say, who have rights in the same subject, calcu-
lated to confer an enjoyment subsequent to that of the owner
for life or the owner for years. For if the tenant for life
•or for years had the same power of user which resides in
the absolute owner, it is clear that the rights of those
entitled in remainder or reversion would be merely illusory.
In respect of their rights, he, at least, must be subject to
the duty of not destronng the subject, or of so dealing with
it as would render it absolutely worthless.

But the restrictions to tlie right of the limited owner,
which arise from the riglits of the remainderman or rever-

Dominium as distinguisJicd from Scrvltus, 387

liioner, may also Ije fixed difrereutly Ijv llio absolute dispo- Lect.
sitious of the law, or by private dispositions wliicli the law XLVIII.
allows aud protects. We may suppose, for example, that ~ '
the owBer for life of land may be empowered to divest it
completely of timber and buildiuss, to exhaust the valuable
.ninerals, and even to carry away the surface soil : or that
nis power of takino" minerals and timber, aud demolishing-
buildings, may be luore or less restricted.

But thoup-h the possible modes of property are infinite, Property
nud though the indefinite power of user is always restricted jy so'rai'ie". '
more or less, there is in every system of law, some one mode
of property in which the restrictions to the power of user
are fewer — the power of indefinite user more extensive —
than in others. And to this mode of property, the term
dominion, property, or ownership is pre-eminently and em-
phatically applied.

Such, for example, in the Eoman law, is dominium (in
the strict sense) : such, in the French law, is propriete (in
the same sense) : such, in our own law, is absolute property
in a moveable. Such, too, in our own law, is an estate in
fee-simple in laud: but which (although it is closely analo-
gous to absolute property in a moveable) is not commonly
called property or ownership.

But even the right of property pre-eminently so called rrnporty pre-
is not unlimited in respect of the power of user which so"can'i','i',"\s
resides in the proprietor. The right of user (with the nntuniiinited
implied or coiTcspondiug right of excluding others from thepij'werof
iiser) is restricted to such a user as shall be consistent with
the rights of others generally, aud with the duties incumbent
on the owner.

For example : I may exclude others generally from my
own land or house ; but I cannot exclude oflicers of justice,
who, authorised by a warrant or other due authority, come
to my house to search for stolen goods. If I am the ab-
solute owner of my house, I may destroy it if I will. But
I must not destroy it so as to cause damage to any of my
neighbours. If, for example, I live in a town, I 'may not
destroy it by fire, or blow it up by gunpowder.

I have a right in my own person which is analogous to
the right of property in a determinate thing. And, as a
consequence of that right, I may (generally spealdng) move
from place to place. But this my liberty and right of loco-
motion, does not empower me to enter the land or house of
another, unless I am specially authorised by the owner's
license, by a right of way through his house or land, or by
Bomo other cause specially empowering me to enter it.

And the power of user which is implied by the right of

user.

;S8

Laiv : Purposes and Subjects.

Pakt hi.

.'roperty pre-
eminently
to called, or
any of its
modes, can-
not lie de-
fined tin
reepect of tbo
power of
user) exactly.

property, may also be limited by duties which are incumbent
on the owner specially and accidentally.

For example : The power of user may be restricted by
duties or incapacities which attach upon the owner in con-
sequence of his occupying- some status or condition. For
example, an infant proprietor is restricted in his user by
reason of the powers of management vested in his guardians
or committee.

Or the power of user may be restricted by reason of a
concurrent right of property residing in another over the
same subject, a species of right called condominium in the
Roman law, joint property and property in common in our
own.

Or the power of user may be restricted by virtue of a
right of servitude residing concurrently over the same sub-
ject in another person. For example: I have (speaking
generally) a right of excluding others from my own field.
But I have not a right of excluding you (exercising your
servitude or easement), if you have a right of way (by
grant or prescription) over the subject of my right of pro-
perty. 1 have (speaking generally) a right to the produce
of the field : but that right is limited by a right in the par-
son to a tithe, unless my land bo tithe free.

It follows from what has preceded, that neither that
right of property which imports the largest power of user,
nor any of the rights of property which are modes or modi-
fications of that, can be defined exactly. For property or
dominion, e.v vi termini, is jus in I'em importing an indefinite
power of user. The definition, therefore, of the right of
property lies throughout the corpus juris, and imports a
definition of every right or duty which the corpus juris
contains.

The modes of
property are
distlnguisU-
Bble from
one another
liy precise
lines of de-
uiHrcation.

But though neither absolute property, nor any of its
modes, is capable of exact circumscription, the various
modes are distinguishable from one another by precise lines
of demarcation.

For example : The right of a limited owner such as a
tenant for life or for years, may be distinguished from the
right of the absolute owner, by an enumeration of the
powers of user (belonging to the absolute owner) from
which the limited owner is excluded.

And this (I apprehend) is the ^\'ay in which these modes
of property are distinguished from absolute property and
from one another. Such or such a use, for example, which
the absolute owner may lawfully derive from tlie subject,
■would at the hands of "the limited owner be an injury to
the remainderman or reversioner.

What I have said with regard to the definition of abso-

S e r V i t u s as distiugitisJicd from Dominium.

389

Tliedeflnl-
tiiins (or no

lute propeny quadrates with tlie practice of law writers or
makers of codes.

In the Institutes of Gaius and Justinian, the right of
property or dominium is not defined at all. Things are
described ; the modes of acquiring property in them are detiniuoMs)
described ; ser^dtudes are described ; but of the right of in various
property or dominium no direct description is given. The gysfematic
nature of the right (in respect of the power of user) is left treatises.
to be inferred from the treatise generally. In the codes
or treatises which attempt a definition of it, merely a few of
its properties or qualities are given : and those properties or
qualities are given with restrictions which lie throughout
the body of the law. Thus, in the <j44th article of the
French Code, property is declared to be the absolute right
of using or dealing with a thing as we -tt-ill, provided we
do not use it in any manner which is prohibited by laws or
re<jlemens.

Such maxims of law as these, Sic utere tuo ut alienuni
lion Icedas ; Qui jure sua utitur neminem Icedit, and the like,
arise from this impossibility of exactly defining and circum-
scribing the right of o'SNmership or property, and are really
almost identical propositions.

The distinction between legal and equitable property (or
dominium ex jure Quiritium and dominium bonitarium) is a
mere accident, arising from the existence of the accidental
distinction between Icnu and equity, or jus civile and jm
preetoriimi.

LECTUEE XLIX.

Servitus as distinguished from Dominium.

In my last Lecture I considered particularly property or
dominium as opposed to servitus. In my present Lecture I
shall consider particularly servitus as opposed to property or
dojninium.

Lect.
XLIX.

Before I consider particularly the natm-e and kinds of
servitudes, I must interpose the following remarks.

1st. Speaking generally, the subject of a right of servi- Speakin<r

tude is also at the same time the subject of property residing figirt"" '"'

in another or others. For example, if I have a right of way servitude is

over a field, the field is yours solely, or is yours jointly or in a rit-iit of "

common with others, or is yours for life or years (solely or [p^id'ing in

jointly with others) subject to rights in others calculated to an"tiier
confer future enjoyment.

otlicrs. But

Difficulties
encumbering
the terms
' property,'
• servitus,'
»nd ' ease-
ment.*

Laiv : Purposes ajtd Subjects.

For this reason, riglits of servitude are styled by tLe
Roman lawyers ;»/•« in re aliend: tliat is to say, rights over
subjects of wliicb. tbe property or dominion resides in
another or others. Though (as I shall show hereafter)
rights of servitude are not the only rights to which
the expression jus in re cilicnd (or, briefly, jus in re) is
applied. For the same reason, a right of servitude is
styled by Beutham a fractional right ; and by Savigny (in
his matchless treatise on the Plight of Possession) a single
or particular exception (accruing to the l:>enefit of the party
in whom the right resides) from the general power of user
and exclusion residing in the owner of the thir^-.* For the
same reason, rights of servitude are styled by French
vraters, ' demembremens du droit de proprieto : ' that is to
say, detached bits or fractious of the iudetinite right of user
which resides in the person or persons who own the subject
of the servitude.

A right in tlie nature of servitus may however exist
over a thing, which, spealring with precision, has no owner.
We may conceive, for example, that the Sovereign or
State reserves to itself a portion of the national territoiy ;
but that it grants to one of its subjects, over a portion of
the territory so reserved, a right which quadrates exactly
with the notion of a right of servitude : that is to say, a
right to use or apply the subject in a definite manner.

Now, in the case imagined, there is not, properly speak-
ing, any right of property in the thing which is subjected
to the servitude. For, it is only by analogy that we can
ascribe to the Sovereign a legal right. Strictly spealring,
the party has a right of servitude, while the indefinite
power of using the thing has been reserved by the Sovereign
or State to itself.

But since most rights of servitude imply rights of owner-
ship, and cannot .be explained without reference to those
rights of ov,mership, I shall assume for the present, that
every right of ser\'itude is jus in re aliend — a definite
fraction, or demembrement, of property or dominion in the
given subject, which resides in another or others.

2ndly, I showed in my last Lecture, that the modes of
property (as I understand the expression) are infinite : and
that to some of those modes we cannot apply the texm
' property ' without a departure from established usage. For
example : The right of a tenant for years of land, is hardly,
in English law, termed a right of propertj'. Various other
difficulties, which encumber the term ' property,' I stated in
the Lecture before the last. I will merely add at present,
that I mean by the term liropertxj (as contradistinguished

Eecht des Besitzes, § 46.

Different Kinds of Servitudes.

39^

to servitiis) any riglit ni rem wliicli gives to the entitl'id
party au indojinite power of user. For I am not considering
riglits of property witli reference to tlie modiiicatious im-
posed in regard to tlie rights of the remainderman or rever-
sioner. These I shall deal with in a suhsequent Lecture.

The term servitus \^ not less enciunhered with difficulties
than the term property. For there are many rights (as I
shall show presently) which, in the language of the Roman
law and of the modern systems derived from it, are styled
servitudes : hut which, in the language of the English,
would he styled rigJds of property. And justly: for they
are rights importing an indefinite power of user. To theae
improper servitudes I shall advert more fully hereafter.
And I now merely add, that I mean, for the present, by
a right of servitude (as opposed to a riylit of propertij) any
such right in a subject owned by another or others as gives
to the party a definite power of using it.

The term easement is not less objectionable than the
tenn servitus. For though it is never extended to any such
rights in rem as fall properly within the category oi property,
it is not applied to certain rights in rem which fall properly
within the categoiy of servitudes. For example : A right of
way over another's field is styled an easement. A right of
common is also sometimes loosely styled an easement, though
it consists of rights strictly and technically called profits
a prendre. But a right to predial tithes (or to a definite
portion in the produce of another's land) is never styled au
easement; although it is called a servitude (or by a name of
similar import) in the language of the legal systems which
have borrowed largely from the Roman.*

Lkct.
XLIX.

ordly. For the sake of simplicity, I have assumed that
every right of servitude is a right of iisiny a subject owned
by another or others. But, as I shall show immediately,
there are certain servitudes, which, in the language of
modem Civilians, are called negative ; and which, in the
language of the Roman lawyers, are said to consist non
faciendo; that is to say, not to consist of a right to use
positively the given subject, but in a right to a forbearance
(on the part of the ov^Tier or occupier) from putting the
given subject to a given use.

In describing and distine'uishina- the kinds of servitudes, Order wiioro

•T- -t -.1 . ^ K. 'in r.hp liafnrft

1 snail examine : —

Qusere,
Whether a

negative
servitude be
a right of
using the
suliject ?
And whether
it be not
merely jus
personam
agRinst thf
owner or
occupant

in the nature

* For instance, Teind (or tithe in Scotland) is ranked by Stair
and other Scotch legal authorities amongst servitudes. Another
right in the law of Scotland, invariabh- classed amongst servitudes,
is that of thirlage, or the obligation upon all the tenants of the lands
within the thirl (or servient district) to bring their grain to be
ground at the dominant mill. — K. C.

392

Laiv : Purposes and Subjects,

Part III.

and kinds of
servitudes
will lie con-
sidered.

1. Distinction
between
offimialivt
or positive
and negative
Bervitudes.

Every ser-
Tltude Is jus
ill rem.

1st. The distinction between tlie servitudes which are
respectively styled by modem civilians affirmative or positive
and negative servitudes.

2ndly, the celebrated position, that no right of servitude
is a right to an act on the part of the owner.

3rdly, the distinction between real ser\atudes B,ixdL personal
servitudes.

4thly, certain rights of property or dominion (meaning'
hj property or dominion, any right in rem importing an in-
definite power of user) which, in the Roman law, are ranked
improperly, as I conceive, with rights of servitude. The
principal amongst these are Ususfructus, iisus^ hahitatio,
superficies, and emphyteusis.

In pursuance of the order which I have now indicated,
I begin with the established division of rights of ser\'itude
into positive or affirmative servitudes, and negative servitudes.

The right of property or dominium (in so far as the right
of user is concerned) may be resolved into two elements : 1st,
the power of using indefinitely the subject of the right:
2ndly, a power of excluding others (a power which is also
indefinite) from using the same subject. For a power of
indefinite user would be utterly nugatory, unless it were
coupled with a coiTesponding power of excluding others
generally from any participation in the use. The power of
user and the power of exclusion are equally rights to forbear-
ances on the part of other persons generally. By \'irtue of
the right or power of indefinitely using the subject, other
persons generally are bound to forbear from disturbing
the owner in acts of user. By virtue of the right or power
of excluding other persons generally, other persons generally
are bound to forbear from using or meddling with the
subject. The rights of user and exclusion, however extensive,
are never absolute or complete. They are always restricted
by the absolute duties to which the proprietor is subject.
Frequently, they are restricted by rights over the same
subject, residing specially in determinate parties : as by the
rights of a joint or co-proprietor, or by the rights of a re-
mainderman, or reversioner.

"Where a determinate party has a right (as against the
owner and the rest of the world) to put the thing to uses
of a definite class, the party has a right over the thing,
which is commonly called a servitude. Where a determi-
nate party has a right to a forbearance (on the part of the
owner and everybody else) from putting the thing to uses
of a definite class, that party has also a right over the
thing which also is styled a ser^-itude. It is necessary (I
apprehend) in order to the existence of a servitude, that
the right of the party should be jus in rem, or a right
against the world at large. If it merely availed against

Different Kinds of Servitudes. 393

the o-wner (or against the other occupaut for the time beiug)
it would not completely answer to the notion of servitus.
Thi3 will be further considered uuder the next head.
It is also necessary (I apprehend) in order to the exist-
ence of a servitude, that the party entitled should have a gufsiied from
right to use the subject in the manner specified, an indefi-
nite number of times, and for a period not determinable at
any instant at the will of the proprietor. ]f, for instance,
a proprietor gives me a day's salmon-fishing in the Tweed,
or a day's trout-fishing in the Wandle, it is a mere licence,
and does not confer a right in the nature of a servitude.
It would be a mere licence even if he were, in an unguarded
moment, to confer the benefit of a choice of days, or the
liberty to fish at any time until he should recall the per-
mission.

"Where the party entitled to the servitude has a right P^^stu-eor
to use the subject, his right is styled, by modern Ci'S'ilians, servitudes
' a positive or affirmative servitude.' "Where he has a right patfeiido
to &, forbearance (on the part of the owner and everybody consistunn.
else) from using the subject, the right is styled by the same gervuud'es'^*
Civilians, a nenative servitude. </"'? '5 '""'

±>y th3 iioman Lawyers, a positive ser\-itude (m respect consutuiif).
of the owner) is said to consist in jyatieiuh : i.e. in his duty
to forbear from molesting the other in the given user of the
subject, A negative servitude (in respect of the owner) is
said to consist in non faciendo : i.e. in his duty to forbear
from using the subject in the given manner or mode. In
either case, the duty lying upon the owner (and others) in
respect of the servitude is to forbear. It is a negative
duty. The words ^JosiVu-e and negative are therefore applied
to the different servitudes not as they affect the owner of
the subject, but as they affect the person entitled to the
servitude. The so-called positive servitude gives him a
right to do acts over the given subject, as well as a right to
a forbearance on the part of the owner (and others) from
molesting him in the performance of those acts. But a
negative servitude merely gives him a right to fortearauces.

Cases of positive servitudes are rights of way or of
common. These are rights of dealing positively with the
subject — of putting the subject to certain positive uses.
Cases of negative ser^itude are the servitus altins non
toUendi, and the servitus ne luminibus and ne jn'ospectui
officiatur. Generally speaking, the owner has a right of
building on any part of his own land ; cu/jus e^t solum ejus
est usque ad caelum. But, by a right of servitude residing
in another person, I may be prevented from building so as
to prevent his looking over my land fi-om his house ; I mav
be prevented from building so as to obstruct his ancient
lights, or to prevent his enjoying a look out which he had
accLuired by a special title. Another example is the servitus
8 3

394

Part III.

Doubtful

wliether

therfl is any

scientific

foundation

for this dis-

tiuctiou.

2. No right of
servitude can
consist in
facieiido.

Wliethera
negative
servitude
be jua ill
rem

Lazv : Purposes and Subjects.

stillicidii recipiemU : a rip-lit to compel yoiu' ueijjliboiir td
receive the water -nliieli drops from yom" roof. An analo-
gous riglit -which often leads to contest in cities, the right
of compelling your ueighhom- to receive through his house
the di-aiuage running from your ow-n, would also be deemed
a negative ser-^dtude. It is not a right of putting his laud
or house to any positive use, but a right to prevent him
from dealing with his land or house in certain ways in
which, but for yoiu' right, he would be at liberty to deal
with it.

I have eudeavom-ed to state the distinction, because it is
found in the Eoman law and other legal systems ; but I
doubt whether there is anj-thing in it. It seems to tiu-n on
the extent you give to the word iiser. In a right of way
or of common you are said to use the thing which is the
subject of yom- right of servitude. But in case of a duty
to receive the di'ainage from yoiu* house, or to permit light
and air to jjass fi'eely over the neighbouring tenement ta
yom* ancient windows, you may also be said with propriety
to put the servient tenement to certain uses.*

No right of servitude can consist in faciendo : t i.e. can
consist in a right to an act or acts on the part of the owner
or other occupant. This follows from the very nature of
a servitude, to which it is essential that it should be jus in
rem, or a right availing- against persons generally ; for if it
consisted in a right to an act to be done by the owner or
other occupant, it would be merely jus in personam against
that determinate party.

In the case of a servitude, the jus in rem may happen to
be combined with_y«.s in iiersonam against the owner : and
so may happen to be combined with a right to an act,
against the owner : e.g. a right to have a way repaired by
the owner.

When it is said that servitus is jus in rem, this must
be taken subject to the following explanation. Every
servitus is jus in personam against the owner or other oc-
cupant, and ji'i« in rem against the rest of the world.

An affirmative servitude may clearly avail against «???/,
and may be violated by any. e.f;. A stranger to the soil
may violate a commonable right, by putting his cattle on
the common, J And iu the case of a negative servitude,

* The distinction made in English law between an easement and
a jsrofit a prendre is really a more intelligible one. Where tlie
right consists in taking awaj' something corporeal and tangible
from the land of another, it is called a prnjit a prendre, such as a
right of fishing, a right of common of pasture, &c. — R. C.

f Mackeldey, vol. ii. pp. 78, 88. Thibaut, Versuche, vol, i. p,

27.

X Blackstone, vol. iii. p. 237.

Real and Personal Servitudes.

395

it is possible for a stranger {e.g. a trespasser) to do tlie act
which would prevent the enjoyment of the servitude : e.g.
to build up, or otherwise obstmct, ancient liorhts. In the
case, however, of a negative ser\itude, it is less likely that
a stranger should distiu-b.

I apprehend that a negative servitude is usually assigned to
the category of jura in rem on the gi'ound that it avails ad-
versusquemcumquepossessorem: ?.e.v\dth orA^'ithout title from
the actual or preceding owner. But since a right of servi-
tude, positive or negative, may be violated by third parties
(being mere trespassers, not even in actual possession of the
subject), it implies a duty to forbear from distm-bing, which
lies upon persons generally, although it also lies in a special
manner upon the 0A\Tier or other occupant of the thing.

The distinction between an occupant without title, and
a mere trespasser or other stranger, is, that the former is
exercising over the subject a right of property residing in
another ; while the latter does not affect to exercise any
euch right. To explain this, we must analyze the right of
possession.

Lect.
XLIX.

LECTURE L.

Heal and Personal Servitudes,

SERvrrrDivS are distinguished by the Eomau Law ijnto
two kinds : 1 . Predial or real serritudes (' servitutes pras-
diorum sive rerum'): 2. Personal ser\itudes ('servitutes
personarum sive hominum'). The distinction is an essen-
tial one, and is similar to the distinction in English
law between rights (of easement or profit ii prendre') appur-
tenant and in gross.

Now ' reaV and '^jersoHoZ,' as distinguishing the Muds
of servitudes, must not be confounded with ' reaV and
' 2^ersonal,' as api^lied to rights and as synonymous vrith ' in
rem ' and ' in personam.'

In a certain sense, all servitudes are real. For all ser-
vitudes are rights in rem, and belong to that genus of rights
in rem which subsist in re aliend. And, in a certain sense,
all servitudes are personal. For servitudes, like other rights,
reside in persons, or are enjoyed or exercised hy persons.

The distinction Ijetween ' 7'eal' and 'personal,^ as applied
and restricted to sei-vitudes, is this : A real servitude re-
sides in a given person, as the owner or occupier, for the
time being, of a given prcedium : i.e. a given field, or other
parcel of land ; or a given building, with the land whereon
it is erected. A personal servitude resides in a given person ;
without respect to the ownership or occupation of a

.3. Real and
Personal
servitudes.
Nature of tlio
dislinction.

396 Law : Purposes ami Subjects.

Part III. jyrcsiUum. To borrow the tecliuical language of the English

~"- — ■ Law, real servitudes are appurtenant to lands or messuages:

2)ersonal servitudes are servitudes iti gross, or are annexed
to the persons of the parties in whom they reside. Every
i-eal servitude (like every imaginable right) resides in a
jjerson or persons. But since it resides in the person as
occupier of the given prcedium, and devolves upon every
person who successively occupies the same, the right is
ascribed (Idv a natural and convenient ellipsis) to the jyrce-
diuni itself. Vesting in every person who happens to
occupy the jn-cediian, and vesting in every occupier as the
occi;pier thereof, the right is spoken of as if it resided in
the prcsdimn, and as if it existed for the advantage of that
senseless, or inanimate subject. The prcedium is erected
into a legal or fictitious person, and is styled ' prsedium
dominans.' On the other hand, the 2}^'(sdium, against whose
occupiers the right is enjoyed or exercised, is spoken of (by
a like ellipsis) as if it were subject to a duty. The duty
attaching to the successive occupiers of the prcedium, is
ascribed to the 2^f'^clium itself: which, like the related
jyrcedium, is erected into a ijerson, and contrasted with
the other by the name of ' prtedium serviens.' Hence
the use of the expressions ' real ' and ' 2)ersonal/ for the
purpose of distinguishing servitudes.

The rights of servitude which are inseparable from the
occupation of ^jr^fZ/rr, are said to reside in those given or
determinate things, and not in the physical persons who
successively occupy or enjoy them. And, by virtue of this
ellipsis and of the fiction which grows out of it, servitudes
of the kind are styled ' servitutes rerum ' or ' ser^itutes
reales ; ' i.e. rights of senitude annexed or belonging to
things.

The rights of servitude which are not conjoined with
such occupation, cannot be spoken of as if they resided in
things. And since it is necessary to distinguish them from
real or predial servitudes, they are styled ' ser\dtutes ^e;--
sonarian^ or ' servitutes ^persoirtZes : ' i.e. rights of servitude
annexed or belonging to persons.

The expression ' personal ' (as here used) is, like a multi-
tude of other expressions wearing a positive form, a merely
negative term. It means that the servitude to which it is
applied, is not a real sendtude (in the sense which I have
just explained) : that it does not reside in the party entitled
to it, as being the owner or occupier of a given or determi-
nate thing other than the determinate thing over which the
right exists.

A real semtude can hardly exist over a moveable. It
is essential to the being of a real servitude that there should
be a '2}>'(edium serviens/ and a '^j/wr/no?; dominans.'

Real ami Personal Servitudes.

397

lu fact and practice, all the real servitudes of the ilomali
Law are servitudes over immoveables.

The division of servitudes iuto affirmative and negative
and iuto real and personal, are manifestly cross divisions.
A right of way and a right of common are both of them
affirmative servitudes, being rights to use or deal positively
with the subject : and they may be either ajijmi'tenant or
in f/ross ; that is, eitlier real or personal.

Negative servitudes, perhaps, are nearly universally real.
They generally avail only to the advantage of the owner or
occupant of the one prcrditon, as being such owner or occu-
pant, against the owner or occupant of an adjoining
2}rcech'i(j)i.

There is a distinction of real servitudes into sei-vitiites
prcedionim urbnnorum, and servitufes prcedioru7n rtisticorum.
The distinction is peculiar to the Roman Law, and has no
scientific precision.

An urban servitude is a real servitude appurtenant to a
building (including the land whereon it is erected) : and its
principal scope is, speaking generally, the commodious en-
joyment of a dwelling-house to which it is annexed. The
principal scope of a rustic servitude is, speaking generally,
the commodious cultivation of a parcel of land to which the
servitude is appurtenant. Consequently urban seiwitudes
occur most frequently in a city or town : rustic servitudes
cccm* most frequently in the countiy. Hence the respective
names. But an urban servitude may be annexed to a
building situate in the country, and a rustic servitude may
be appm'tenant to land within the boundary of a city or
town.

Examples : A right to a forbearance from an obstruction
to one's ancient lights, is an urban servitude : i.e. annexed
to a building : A right to pasture one's oxen on land be-
longing to another, is, speaking generally, a rustic ser\-i-
tude : i.e. annexed to a farm, and not to any of the farm
buildings. *

In the English Law, we have no adequate names to
mark the distinction between real and personal servitudes,
any more than we have an adequate name for ser^-itudes.
The names approaching to the Roman, would be, rights,
(whether easements, or ivofits a prendre) appendant, or
appm'tenant, and in gross. I may here remark that the only

* The inapprnpriateness of the names to mark the (list'mcti')n
might be exeniplilied by the right of common called common
of tarbiirt/, or the right cf taking turves for burning in the, house
on the dominant tenement. The right is annexed to the enjoyment
of the dwelling-house. But it would be odd to call it an urban servi-
tude.—K. C.

Lkct.
L.

Servitufes
prwdiornm
urbanorum
et rusticorum.

Rfglits
appurtenant
and in pross
in English
Law.

398

Tart III,

Examples of
real and per-
Eonal servi-
tudes.

Kulli res sua
gen-it.

' Servitus
means tlie
omts, or the
fns ill re.

Ari«litof

L aiv : Purposes and Subjects.

difference between appendant aud appurtenant relates to the
feudal notion of tenure ; and is merely this, that a right ap-
pendant is one presumably, (i.e. by reason of long enjoyment),
or in fact {i.e. by gi-ant, which, if made by a subject, must
have been before the statute of Quia Emptores), constituted
simultaneously, and uno icta with the creation of the domi-
nant tenement. A right appiu'tenant may be annexed to an
ah-eady existing tenement, by subsequent gi'ant or by such
enjoyment as affords a legal presimiptiou of such subsequent
gi-ant.

IIa\-ing explained these two classes of servitudes in
general terms, I shall advert to some examples of each kind.

A right of way appurtenant is an obvious example of a
real servitude ; and a right of way, in gross, of a pereoual
servitude.

Commonable rights, e.g. common of pastm'e, commou of
turbary, tS:c., appendant or appurtenant, as opposed to similaj
rights in gross, are equally familiar examples of real servi-
tudes.

Another instance of a servitude is a right to a pew in
chui'ch. In some cases, there is a right to a pew by pre-
scription as appurtenant to a messuage ; in other cases, a
pew is granted to a person by the Ordinary, and then it
is an easement in gross. It is clearly an easement ; being
a right to go into and use a particular part of the chm-ch
as against the parson in whom the freehold of the church
resides, and everybody else.

This seems a convenient place for the following obser-
vations : —

Inasmuch as every servitude is a definite subtraction oi
exception (accruing to the party having the right of servi-
tude) from the indefinite rights of user or exclusion which
reside in the proprietor of the thing, it follows that no man
has a right of servitude in a thing of which he is the
owner: Kidli res sua servit. Consequently, if the party
having a right of ser\-itude acquires the property of the
thing, the right of ser\'itude is lost in the more extensive
right, or at least is suspended, so long as the right of
property continues to reside in him. This is veiy important
in regard to the acquisition of rights of servitude by pre-
scription.

The term ' Servitus ' has two meanings. It means,
originally, the metaphorical servitude or duty of the thing :
i.e. the duty really incumbent on any proprietor of the thing,
or on any occupant of the thing exercising rights of property
over it. But it means also the jus servitutis, or the right
which corresponds to that duty: theji'MS in re aliend.

It is clear that a right of servitude may exist in a sub-

Real ami Personal Servitudes,

ject, altliougli tlie proprietary rights it- the same subject
are dittributed amongst ditl'ereut persons, aud whatever be
the mode of distribution. Aud the right of servitude will
remain unchanged, although the subject is possessed by a
person not the owner, and adversely to the owner.

A servitude (considered as a duty) must correspond
with a right residing in a determinate party. The duty
cannot be imposed with reference to the interests of persons
generally. There are certain duties incimibent on proprietors
which are confounded with servitudes, but which are not
properly such : e.g. the duty not to let my house (being
situate in a town) go to ruin so as to endanger persons
passing in the street (an absolute negative duty) ; or the duty
to keep a certain public road in repair (an absolute positive
duty).

From the distinction between real and personal servi-
tudes, I proceed to certain rights, which, in the language of
the Roman Law, aud of the modern systems which borrow
its terms aud classifications, are improperly (as I conceive)
styled servitudes. For in all these cases, the party entitled
to the so-called servitude has an indefinite power or liberty
of using or dealing with the object. The right, therefore, is
not a definite subtraction from the indefinite power of user
or exclusion residing in the owner of the subject. It is not
a ser-vitude properly so called, but a mode of property or
dominion.

Unless, at least, these so-called ' servitudes be modes of
property, I cannot perceive that there is any intelligible dis-
tinction between dominia and servitutes, or account for the
terms wherein the latter are commonly distinguished from
the former. All the rights in question are, it seems to me,
rights of property for life.

1. The first is nsusfnictus : a right of completely enjoy-
ing the whole subject for life merely under certain restric-
tions. The entitled party cannot cede his usufruct so as to
put the alienee in his own place, though he may let it out,
reserving a reversion to himself.

2. The next is usus : which in practice is a mere mode of
usufruct, that is, the same right with some additional limi-
tations in point of user.

3. The next is hahitatio : also a mode of usufruct. This
is a right of residiug in the house which is the subject of
the right ; and a power of dealing with it, not positively
defined or circimiscribed, but still more restricted than in
the case of usus. The party must use it for his own habi-
tation ; he cannot alienate it ; but still his power of user is
indefinite: it is an estate for life restricted in point of
.user.

4. The next is o]}er<s serwrum : a so-called servitude

399

servitude
may co-eiist
■Willi any
mode o£
property
{e.g. owned
liy tenanta In
common, or
by one as
tenant tor
life and
another as
owner in fee
in reversion)
etc.

Absolute
duties (posi-
tive or nega-
tive) annexed
to property
are not ser-
vitudes.

4. The modes
of ■property,
whicli, in the
language of
the Roman
Law, and of
the modern
systems
borrowing iti
terms and
classilica-
tions, are
improperly
styled ' ser-
vitudes."

400 Law: Purposes and Siibjccts.

Part III. over a person ; not, however, a servitude, tut a letting of a

' - — ■ — ^ slave, for tlie life either of the slave or of the party to whom

he is let, with a reversion to the party who lets.

All these various rights of ususfnictus, itsus, and hahitatio,
would be deemed (I think) by English lawyers, rights of
property (for the life of the owner) variously restricted in
respect of the power of user. In our own law, we have
various anodes of property, variously distinguished from one
another by similarly varying limitations to the power of
user: for example, tenancy for life, with or without im-
peachment of waste, tenancy by the courtesy, tenancy in
dower, etc. : In each of which cases, the indefinite power of
user is restricted somewhat difi'erently. *

The distinction between cJomimum and servitus above
explained, althougli suggested by the Roman law, and more
or less formulated by modern Civilians, is nowhere laid down
in terms by the Roman laAvyers themselves. In the language
of the Roman law the word servitus appears strictly and
properly to have denoted one of the sei-vitutes 2^}'(sdiorum,
\urbanorum et rusticoruni). It was occasionally extended by
way of analogy to ususfructus and the other rights of a simi-
lar character above mentioned, and in one passage these are
distinguished under the name servitutes i)ersonarum from the
predial servitudes which are termed servitutes rerum (Dig.
viii. 1. 1). This extension of the term servitude was
arbitraiy ; the term might equally well have been extended
to the rights called emphijteusis and superjicies. The truth

* On the nature of ususfructus and of the residuary rights in tlie
proprietarius I should suggest as an exercise for the student to study
the original authorities in the Digest, and consider particularly the
following passages: — Dig. vii. 1 (De usufructu, &c. 1. 12 [13] pr.
]. 13 [15] § 5. 1. 19 [23] § 1 : Dig. xliii. 26 (De precario) 1. 6, § 2.
Dig. xliii. 17 (Uti possidetis) 1. 4. Dig. xliii. 24 (Quod vi autclara) 1.
16, 18 : Dig. xliii. 19 (De iiinere, &c.) 1. 3, § 6, and Vat. Frag. 45,
47, 75-77.

The liferent of the Scotch law is conceived on the pattern of the
Roman usufruct, being only somewhat less extensive in regard to
minerals. It differs in some respects from the life-estates of the Eng-
lish law. B}- Stair and Erskine it is classed with personal servitudes.

Upon the whole I agree with the autlior that it is more con-
venient to treat all these rights as modes of property than as servi-
tudes. But I cannot concur in accusing those who have called
ususfructus a servitude, with inconsistency. The line must be more
or less arbitrary. The author, for instance, classes a right < f
common as a servitude. And yet rights of common (particularly,
for instance, the species called common of estovers) imply a user
•which it is practically very difficult to deline. It would be hard to
assign a limit to the variety of species of acts which might Ije
justified under these rights. And where tlie common rights are
strong (and supposing there are no minerals of value), the rights
of the lord mav be reduced to a mere shadow. — K. C.

L iniited OiviicrsJiip — J ii r a i n r e A 1 1 e n a. 40 1

is, the Romau lawyers did not u?e the word servitus to mark
a philosophical distinction of rights into classes. When
they washed to refer these rights to a class or genus, they
included them (amongst other rights) in the class of rights
called jura in re aliend, jura in re, or (more briefly and
elliptically still) jura. In one instance only, is a practical
effect apparently given to the circumstance of ususfructus and
tisus being deemed servitudes : namely, where it is said that
such a subject as ususfructus itineris cannot be bequeathed
by way of legacy ' quia servitus servitutis esse non potest^
D. xxxiii. 2 {I)e itsu. Sec.) 1. 1. But another sufficient
reason is at the same time assigned for the rule ; which,
after all, was merely a technicality, and evaded in practice, as
the passage itself points out.

In the lustitutes of Justinian (II. 2, .3), apparently
following Gains, though the parallel passage in the latter is
nearly illegible, the term servitus is limited to real servitudes ;
ususfructus, Jisus, and hahitatio are not deemed servitudes ;
and personal servitudes properly so called (such for instance
as what would in English law be called a right of way in
gross) are passed over without notice.

The same method is followed in the French Code. In
the second title of the second book, property or dominium
is treated of. In the third title usufruct, usage, and habita-
tion (which are not called servitudes), are handled seriatim.
And the fourth title is devoted to servitudes or services
fonder s : i.e. real or predial servitiules.

LECTURES LI. and LII.

nights limited by regard to successive pm-iods of enjoyment —
The Jura in Re Aliena of the Roman laic.

{^Kote. — As, in these two and the following Lecture (LIII.), I Lkct
have in some measure departed in substance as well as in fonn lj_ jj'i_
from the text of the Lectures, I here cease to speak in the first »— — r— — '
person in the name of the author. For the complete record of the
author's work, so far as it is extant, I refer to the larger edition.
I am bound, however, to say that I think the matter of some
of these later Lectures, and particularly Lectures LI. and LIIL,
is not equally matured with the former ones : and I think it not
improbable that they would have \indergone great modification
at the hands of the author had he completed and revised his own
work.— K. e.]

Domlnlnm

It was pointed out in a recent Lecture (p. 3S6 supra) jjommmm
that a right of property as distinguished from servitus (that or jus in re
is to say importing an indefinite power of user) is susceptible Keaaons/o-

402

Lazv : Purposes and Stihjects.

Part III.

Relation of
the State to
the private
proprietor.

of vaiious modes, the powers implied in tlae riglit being
variously restrained in pursuance of the purpose of the con-
cession made by the State. Amongst the distinctions hence
arising a veiy important one relates to the restrictions im-
posed by the State on the owner, for the pui'pose of gi^■ing
or reserving to some other person or persons a future enjoy-
ment. But the nature of these restrictions, and the corre-
sponding rights conferred on the expectant beneficiary, will
be most conveniently handled after adverting to the meaning
of jus in re aliend in the Roman law^ and the situation of
the State in regard to divided rights of property.

It is now convenient to explain a distinction-Tvhich has
been already referred to in these Lectures ; namely, the dis-
tinction made by the Roman lawyers and by the modern
expositors of the Roman law between dominium strictly so
called, or proprietas (jus in re praprid), and that class of
rights which thej^ oppose to dominium in the strict sense by
the name oijura in re aliend. jura in re, or (more briefly and
elliptically still) jura.* This is necessary for the full
understanding and history of the distinction already con-
sidered between rights which import an indefinite and rights
which import a definite power of user or exclusion, and also
of the distinction between rights considered as parcelled out
with regard to successive periods of enjoyment by different
persons.

In order fully to explain the meaning oi p?'operti/, it is
also necessary to advert to the relations which the Sovereign
or State has assumed or may assume towards the individual
members of the community, with regard to their respective
enjoyment of the material wealth within its territory.
Those societies only are here spoken of which can be truly
said to have a system of positive law ; for in these alone
can 2^>'opert>/, considered as a legal right, be said to exist.
It is manifest that in those communities where the sovereign
power as such does not systematically intervene to regulate
as between individual members their enjoyment of material
w^ealth (that is to say where custom has never been trans-
muted into law), there can be no rights of propertj/ properly
so called. It will be convenient in considering these rela-
tions to use the terms employed by Roman law-yers, whose
language in regard to them has been adopted into that of
all civilized communities.

It has been already shown that the Sovereign as such is
under no legal duties "to, nor can it have legal rights against
the individual members of the society. But as the Sovereign
has the power of dealing with all things within its tenitory
at its own pleasure or discretion imrestraiued by positive

Thibant, Versuche, vul. ii. pp. 84, 91.

The State in its Relation to Property. 403

law, and has a very large power of so dealing without being
restrained even by moral sanctions, it may be said (for the
sake of brevity and because established language furnishes
us \A\h. no better expressions) that the Sovereign or State
has a riijht to all things -v\athiu its territory, or is absolutely
the -proprietor or domimis thereof.

Now of the things which are the property of the State f,^^P;'*^^
in the sense immediately above mentioned, there are some vat(E.
which it reserves to itself, and some the use or enjoyment
'of which it leaves or concedes to determinate private persons.
To those which it reserves to itself the term res publicce is
commonly applied: those the enjoyment or use of which it
leaves or concedes to determinate private persons are com-
monly called res prioatce. From what has been said above
it is manifest that in a certain sense all things within the
territory are res jmhliccs. For the cpiasi-dominion of the
State (i.e. its dominion in the sense mentioned in the pre-
ceding paragraph) remains, notwithstanding the concession
to the indi\adual.

Of res 2}iMic(S (taking tlie expression in the ordinary ^f* cons-
sense of the word) there are some which the State permits
its subjects generally to use or deal with in certain limited
and evanescent modes. Such, for example, are public ways,
public rivers, the sliores of the sea (in so far as they are not
appropriated by private persons), the sea itself (in so far as
it forms a part of the territory of the State) and so on.
Those, the use of which the Sovereign thus permits to oil
its subjects, are often termed res com7nimes, a term which
is objectionable, inasmuch as it implies the fallacy of sup-
posing that the subject members of the community have
the use by a title anterior to any that the State can im-
part.

Again : of res publicce there are some of which the State
retains the control and management by the hands of its im-
mediate servants or ministers, and some which it concedes
to public persons (individual or complex) as trustees for
itself, or for purposes expressly having for their scope the
good of the conununity in general, or some considerable
section of it. The former are sometimes styled the ' patri-
mony ' or ' domain ' of the State, or are said to belong to
ihejisc. Such, for example, is the money which it raises
by taxes on its subjects, the land which it reserves especi-
ally for the purposes of supreme government, or the res
privates which revert to it by forfeitm'e or escheat as being
the ultimus hares of all its subjects. Those which it con-
cedes to public persons as trustees for itself, are styled by
the Roman lawyers 7-es imiversitatis, things in the patrimony
of corporate bodies. For these public persons were and
are commonly corporate bodies, as for example the corporate

/fc-v 7.1
silatii

404

Laid : Purposes and Subjects.

Part III.

Property
vested In
bodies incor-

^governments of cities. Instances in this country are tlie
Corporation of London, tlie Metropolitan Board of Works,
the Conservators of the Thames, etc. We might conceive
indeed that a res jtublica should reside in an indi-vidual or
single person. But even then it would prohably reside in
him as ha%'ing a legal persona distinct from his ^jeisona as
being that individual. In this way, for instance, the fabric
of the church is vested in the parson.

The expression res universitatis, however, is inappropriate
to mark the public nature of the purpose for which the
body is constituted. For a corporate body inaji be (and
often is) constituted for the purpose primarily of profit to
individuals. In that case a thing belonging to the corpora-
tion is res privata, not res publica. Take for instances (in
this countn-) a Banking or Insurance Company incorporated
by Charter or Act of Parliament ; or one of the innimierable
Companies to which the State has thought fit (in this coimtiy)
to concede the privilege of incorporation on condition of
being registered under the Act of 1862.

Here must be mentioned an important class of things

which partake of the character both of 7-es jmhlicce and of

porated for ^.^ privates, the propertv, uamelv, which the State concedes
jiuIjUc under- -' '.. / ,^ ^^l^ -i !-, • ■ , i _c

takings. to or permits to be held by Companies incorporated lor

public undertakings, and who for the encom-agement of

those undertakings are permitted to \eyj from those using

them tolls or fares (within certain limits as to amount), and

to share the prolits among the individuals contributing the

capital. Such is the case with Canal and Eailway Companies.

And there seems no difference on principle whether by the

terms of tliose concessions they are to enjoy the property

for a limited (as in most countries in Europe), or for an

unlimited period (as in this countiy) : nor whether they are

empowered to divide the profits eo nomine or only to raise

money on the security of their revenue and to pay interest

upon it to the debenture (obligation) or mortgage holders.

The last is the situation of the Mersey Docks and Harbour

Board Trustees, who are bound to apply all surplus income

in the reduction of the dues leviable. In a certain sense

indeed there may be said to be private property wherever a

public body not being the Supreme Government is entrusted

with property mortgaged or subject to a legal liability in

favour of private indi\-iduals, as road trustees, school boards,

or even 'the Secretary of State in Council ' (of India).

The distinctions above adverted to blend at various

points. For example : Of the res juiblicce of which the

State retains the immediate management, it may concede

some to private persons for periods of longer or shorter

duration. For instance, it may, in order to obtain revenue,

let a part of its domain to a private person in farm. The

only difference between the property so acquire! by private

Res Privata;.

405

persons, aud that in res privaicc jiroperly so called, is that
the latter are conceded to private persons rather ■with a view
to their own advantage than to that of the State. And of
res universitdtis some fall under the species of res jmblic(e
which are styled res coDDiuaies. Such, for instance, are
those parts of the Thames and its banks which are vested in
the Conservators and are used and enjoyed by the public.
Such also are certain open spaces, as Wimbledon Common
and Ilampstead Heath, which under recent Acts have been
vested in corporations for the use and recreation of the
public.

One class of things whicli occurs in Eoman law and is
there distinguished from res jmhlicce consists of things said
to be res clivini juris.- But these are really a class of res
publico;. They are things specially reserved by the State
or gi'anted in trust to public persons, aud destined to certain
uses.

To revert to res privaicp. lies privatcp, properh' so called,
are those of which the State Twhich is in the sense above
mentioned the ultimate owner) leaves or concedes to deter-
minate private persons rather for their own advantage than
for tlie immediate benefit of its own patrimony.

In respect of user the right gi'anted by the State may
amount to a mere (quasi) servitude, or to property (in any
of its various modes) : and in the latter case the property
may ba burdened with a (quasi) servitude reserved by the
State to itself. I say yiir/.si-servitude in the first case,
because the State cannot have lee/al propevfij, but only a
quasi-dominium in the thing, and the right which is a restric-
tion of or deduction of that quasi-clominium is only a servi-
tude quasi or by analogy : and in the second case, because
the right reserved by tlie State is not a legal right, and is
therefore only by analor/y a ri(/Jit of servitude. An instance
of a quasi-servitude of the first sort is a public right of way
over a private farm, or a right of way appertaining to a farm
in the jjatrimouy ef the State over a neighbouring private
farm. An instance of the second sort woidd be a right of
way appertaining to a private farm over a farm in the patri-
monA-^ of the State ; or a right of common (supposing such
to be reserved) over the waste of a manor which has been
purchased by the State and dedicated to the use and recrea-
tion of the public.

Bes divini

juris.

Qicasi-servi-
tus over a
thin); in tlie
ratrlmony
of the state.

Qnasi-servi-
tus rcserv('(l
by tlie State
over a res
privata.

Again, rights of property are susceptible of various
modes having regard to the duration and period of enjoy-
ment which it is the scope and purpose of the right to
confer.

When we speak of a right we can only (using language
accurately) refer to the present moment. A future nght
IB a contradiction in terms. All the terms above used

Various
modes of
property,
determined
Ijy regard to
tlie purpo?e8
(having re-
gard to pre-
sent and
future enjoj"
meut) for

4o6

Laiv : Purposes and Subjects.

Pakt III,

which the
right of
property ia
fonceded by
the State.

in the analysis of right — command, (lufij, sanction, mil,
intentioyi (meaning present intention and not mere expecta-
tion)— refer to an instant contemplated as present. A
future right, if it means anything, means a viere expec~
tation of a right. But the jmrpose of the concession by
the State may regard the future, and so far as that pur-
pose regards ih.Q future, the State may confer a present ri(jht :
e.ri. to protect the expected enjoyment or the expectation of
a right which the State desires to confer upon him, the
State gives the remainderman a right to a forbearance fi-on?.
waste on the part of the tenant for life. Tliis is properly
a right because enforced by a present command and
sanction.

In order to attain clear notions upon the nature of the
distinction of rights now under discussion it is uecessaiT to
fix the attention upon a given point of tune, and consider
what at that (jiven epoch are the purposes which the rights
and duties enibrceable by law are calculated to accomplish.
These (by an inevitable inference) are the ends designed by
the Sovereign or State in conceding and enforcing those
various rights and duties. By the word ' concession ' which
I have just employed and shall have further occasion to
employ, I mean the entire sum and scope of the acts, inten-
tions, purposes, and desires of the State as declared or
intimated atthe r/iven epoch in relation to the use and enjoy-
ment, present and future, of the thing (the subject of the
concession) and to the interests of the various members of
the community therein. I shall also call the person to
whom the immediate enjopueut at the given epoch is con-
ceded ' the owner,' inasmuch as lie is the person to whom
are given (generally speaking) rights which are iudetinite in
their extent.

Now the concession may be calculated to confer enjoy-
ment upon one or more persons, either for a limited period
or for an unlimited period ; that is for a period which may
last beyond any assignable term. For instance the con-
cession may be calculated to confer the enjoyment upon A.
for a certain tenn of years if he shall so long live ; or upon
A. and his heirs for a certain term of years ; or upon A. for
life ; or upon A. and his heirs during the life of B. In all
these cases tlie period of enjoyment would be limited, and
in the first two cases may be said to be measured as well as
limited. Or lastly, it may be intended to confer the enjoy-
ment upon A. and his heirs for ever. What is meant by
heirs* cannot be fully explained without the explanation

* It may be here mentioned that according to most systems of
law an express grant or concession (whether by the State, or a pri-
vate individual in exercise of the power conceded to him by the
State) to A. commonly implies the intention that the property, so

Rights of Limited Owners.

407

CwLich belongs to a later part of the course) of the devolu-
tiou of a umversitas juris from the dead (a^ such) to the
living. In the mean time it is enough to say that hy heirs
are meant a series of persons pointed out by their relation to
A., according to the general rules of the municipal or par-
ticular law, and being such as may continue beyond any
epoch of time that can be assigned. To iuti'oduce here
another term, the full explanation of which must like^vise
be postponed), /leirs of A. are persons capable of talcing, by
way of descent fvoni the prcsposif us (immeiy A.) ; the word
descent implying tliat tlie relation on which heirship is
founded is commonly based (either in fact or by a fiction)
on physical imity of origin. Now in the case last supposed
the period of enjoyment contemplated by the concession is
unlimited ; that is to say, provided the subject of the con-
cession remains in existence, and the concession is not in
the meantime revoked, no term can be assigned within
which the enjo^iuent under the concession must necessarily
cease, or in other words, within which the subject of the
concession will revert to the State. This is of course only
one mode out of many in which the State may be conceived
to concede a right with the intention of conferring enjoy-
ment in a thing for an unlimited period. But it is in
practice incomparably the most important. The only other
case of importance is when the State concedes the enjoyment
in perpetuity to a corporation — a person or body of persons
on whom it at the same time confers the power or capacity
(or on whom it has previously conferred the power or
capacity) of perpetually maintaining its 2}e''sona; i.e. of de-
volving the universitas of its rights upon a succession of
individuals of unlimited duration, and who are determined
by some means pointed out by law, but not by way of
descent.

Lect.
LI. LI I.

Again, the purpose of the concession may be that the
right shall be alienable, or that it shall not be alienable.
By the right being alienahle is meant, that the person imme-
diately entitled under the concession shall have power to
assign, convey, or dispone the estate (or aggi'egate of rights

Modes of
j>roperty d©-
tennined by
tlie intentioa
of the State
as to power
of alienation
by the owner.

far as it remains in Ln?i!s at A.'s death or at the time when a con-
veyance or assignment by him takes etfect, shall be enjoyed by his
heirs or assignees. And this implication is so familiar, that it is
often considered an eccentricity of English real property law that
by a gi-ant to A. shall be understood onh' a grant for life. With
the arguments for altering this implication of law (and which are
partially recognised by the policy of the Wills Act, 1 Vict. '2tj),
I am not here concerned. I5ut I must here remark that the lan-
guage of an English conveyance ' to A., his heirs and assigns for
ever,' expresses the real intention of the grant as nearly as is con-
sistent with brevity. — R. C.

4o8 Law : Purposes and Siibjtxts.

Part III. in tlie subject) to another, aud that iu case of such assign-

~ • — -' ment or disposition, the State will continue the concession

in favour of the assignee, (say B.) or in favour of B. and his
heirs or assignees, as the case may be. It is obvious this
power of alienation might take different forms; for example,
suppose the concession was in the first instance to A. and
his heirs, but with power of alienation to A. Then if A.
assig-ned to B. and his heirs, the State might concede the
enjoyment to B. and his heirs only so long as there shall be
an heir to A. in existence. Or again, although the original
concession was only for the enjoyment of A. diuing his life,
it might be intended that A. should have the power of alien-
ating so that his assignee should get an estate to him and
his heirs. Speaking generally, however, where the purpose
of the concession is in the fii'st instance to confer an enjoy-
ment of limited duration, aud this is to be coupled with a
power of alienation, the enjoyment is conceded to the as-
signee and his heirs and assignees only during the term of
the original concession ; but where the purpose is, in the
first instance, to confer upon the first taker and his heirs an
enjoyment of unlimited duration, aud that enjoyment is to
be coupled with a power of alienation, then if the power is
exercised by an out and out assignment or disposition in
favour of B. and his heirs, the propertj' becomes assignable
by B. or his heii's, just as it was by A. ; the concession of
enjoyment is continued so long as there remains a person
capable of taking the property by descent from the last
assignee or disponee, and then the property reverts to tlie
State, whether there is or is not an heir iu existence of the
original grantee, or of any mesne assignee or disponee.
And here it may be remarked generally that where a power
of alienation is conceded by the State, it is often competent
for the owner to dispose of or limit the estate (or siun of
rights) in such a way as to give the successive enjoyment to
different persons, and (as it were) to carve out of the whole
estate, smaller estates, keeping a reversion to himself, and
generally to imitate the mode of grant or concession made
by the State itself. But this within certain restrictions. For
instance, a private owner cannot, in England, imitate the
State in creating a relation by way of tenure under himself
in fee simple. A power of alienation, it must be observed,
viay be given to persons who have not an estate or right of
enjoyment. The State might concede a power of this kind ;
and by private dispositions, such a power (without any right
giving a claim to possession, present or future) is in English
settlements of land frequently given to trustees, to be exer-
cised Avith consent (if sni juris) of the limited owner. An
advowson is indeed a jwicer delegated by the State, aud
ti'ansferable by the party invested "vvith it.

Here it may be remarked that a poiccr delegated by the

Modes of Property under express grants. 409

State implies a promise tliat ou the poAver being exercised by
the party entitled, the State will give a rujht. The power
itself is a species of right in rem implying by a short train
of consequences duties on persons generally.

Again the pm-pose of the State in making the concession
might be that the thing may be enjoyed by A. for his life
(with power to him to alienate in any manner he chose, but
so that the enjoyment shall only be conceded to the as-
signees and their heii-s dm-ing the life of A.), and that after
the deatli of A. [the subject shall be enjoyed by ]>. and his
heirs heinr/ issue of his hodij, with power to B. or the heir of
B., being issue of his body, who shall have succeeded him
to alienate, but only by a deed executed with certain
formalities, and if executed during the lifetime of A., only
s\-ith A.'s consent, testified by his executing the deed, and
with tlie further intention that in case of a deed of alienation
being so executed (with consent of A. if alive), the enjoy-
ment shall be conceded to the assignee, his heirs and assigns
for ever ; and that if B. or his heir shall attempt to alienate,
but without those formalities, or in the lifetime of A.
without A.'s consent (expressed in the deed and testified by
liis execution of it), then the enjoyment shall be conceded
to the assignee and his heirs only so long as B. or issue of B.
are alive ; and that if the subject shall not have been con-
veyed by B., or any heir of his, in a manner to satisfy the
above requirements, then that after the death of B. and
failure of issue of the bod}- of B.], * the thing shall be enjoyed
by C. and his heirs for ever, witli power to 0. or any heir of
C.'s who would but for the previous limitations have been
the person designed for the immediate enjoyment, to alienate
so that his assignees shall (subject to the prior limitations)
have an estate to him and his heirs and assignees for ever.
This nearly expresses the intention as construed by English
law of a grant to A. [remainder to B. and the heirs of hia
body],* remainder to 0. and his heirs.'

The above is a veiy simple instance of the many varieties
of intention and purposes which the State may entertain in
regard to the successive use and enjoyment; and in order to
simplify the case as much as possible, 1 take the intention
or purpose above described without the passage in brackets.
It is nearly a description of the intention or purpose (a3
construed by English law) of a grant or concession to A. as
tenant for life, remainder to 0. and his heirs in fee. If I
Avere to add the purpose that 0. should have a power of" entry
during the life of A. to look after his own interests, and
should further have a power to fell and take away timber,

* Tlie stiulent may in the first instance leave out the wort
within brackets if he tinds the sentence too complicated to follow
T

410

Law : Purposes and Subjects.

Part III. provided he did uot interfere with A.'s enjoyment, and also

* ■ ' a proviso that A. should not be able to assign away his

entu'e interest without leaving a reversion in himself, it
would be nearly a description of the piu'pose of the State (as
consti-ued by Roman law) when it permits A. to have the
usufruct and B. the j^^'oprictas. But even then the expression
of the purpose is so brief and elliptical as hardly to afford
a clue to the rights and duties of the several persons in-
terested in the concession. For generally spealdng, it is not
m the nature of things that the identical subject of the con-
cession should remain to be enjoyed by the successive con-
cessionaires. And accordingly the Roman lawyers defined
usufruct as the riglit of using and enjoying the thing pro-
\'ided the substance be liept entire, jus utendi fruendi salvd
rei substantia. But what is the substance of the thing?
And what in detail are the species of acts on the part of
the life tenant that fulfil this condition ? These questions
will be difiereutly answered in diflferent systems of law, and
the detail in each would fill a volume. And little light
can be thrown upon them by general definitions. The
Roman law likened the administration to which the usu-
fructuarius was bound, to that of a 2»'>!dens pcderfamilias.
The position of the English tenant for life might sometimes
1)6 likened to that of the dog in the manger. In fact, the
rights and duties in detail are settled by a train of decisions
in the way of judiciary law, iounded on custom.
Bubstitntion. According to English law, if you make a grant ' to A. and
his heirs, and if A. shall die intestate or without alienating
the estate, then to B.,' the last clause would be construed as
repugnant to the first gift, and would go for nothing. A
grant in similar terms, according to Scotch law, would mean
that A. shall be the owner Avith full power of alienation,
and that if such power is not exercised, then at his deatli
the estate or what is left of it shall go not to A.'s heir
general, but to B. and his heirs and assig-nees. This inten-
tion (or destination) is, according to Scotch usage, more
briefly and properly expressed by a disposition 'to A., ic/iom
failing to B.' Such a destination is called a substittdion.
According to English law this intention would be most
nearly expressed by a grant or devise ' to A. and his heirs,
to hold to such uses as A. shall by deed or will appoint,
and in default of such appointment, and so far as such
appointment shall not extend, to the use of B., his heirs
and assigns for ever.' The only difterence between the
effect of such a grant and a destination such as I have
mentioned according to the Scotch law would be that if
A., subsequently to January 1, 1838, made or republished
a will containing a general de-vise of real estate without
refercing to the particular property or to the power so
given to liim, it would be a good exercise of the power of

Ultimate Reversion to tJie State inevitable. 41 1

nppomtinent. lu Scotland a general disposition of property
not expressly referring to the particular land would not be
construed as intended to comprise laud preTiously disponed
to a substitute ; and in England, before the Wills Act, a
devise -svhicb did not expressly refer to the power was not
construed as intended to exercise a general power of appoint-
ment.

In a destination of tlie kind refeired to in the last flonu"^'^^
paragraph, however the intention may be expressed, the
expectation of B. is entirely defeasible by A. An expecta-
tion of this nature, as well as that of the heir (or the person
destined to the succession according to the general rules of
law) is called a spes succcssiom's in the strict and technical
eense of the phrase. Inasmuch as every right having future
enjoyment lor its scope, is, so far as relates to the indi-
vidual entitled, nothing more than the right to a chance of
enjoyment, the interest of every person ha%'ing such right
might be literally called a .'pcs sitccessiom's. But this phrase
is technically and conveniently limited to those expectations
which are (generally speaking) defeasible in the particular
manner above pointed out. It may be observed that desti -
nations which, according to their general character, would
create a defeasible interest of the kind above pointed at, may,
in certain circumstances, create an indefeasible interest: as
where the proprietor, being an infant or lunatic, is laid
under restraint primarily conceived for his own benefit,
but which indirectly benefits the person pointed out by law
as his successor (whether per universitatem or in re singulare^
in default of exercise of the suspended powers.

Here it may be remarked that in whatever terms or in -me
whatever mode the destination in the "Taut or concession sovereign
may be conceived or expressed, the series ol persons capable hieres.
of taking under it maij come to an end. And then the principle of
thing (the subject of the concession), or what is left of it, gfnerai juris
reverts of coiu'se to the State : for since the Sovereign or '"^^ '^"^^
State (speaking by analogy) is the ultimate owner, it is also
(spealring by a similar analogy) the ultimus hares. On the
expiration of all the rights over the thing, which merely
subsist therein by its own pleasure, it natiu'ally retakes the
thing into its own possession. In some countries, indeed,
the State, in such circumstances, leaves the thing to the first
occupant, who by virtue of his occupancy takes from the
State a fresh right. In that case the occupant in efiect
acquires from the Sovereign or State a new concession.

What has been said applies equally, whatever be the
nature of the subject of the concession, and to whatever
categoiy of property it may be referred in the systems which
distinguish between ' real and personal ' — ' heritable and
moveable ' propertv'. For a chattel may be capable of

412

Lazv : Purposes and Subjects.

Part HI. successive ownership not less than laud; a diamond, for
" ' ' instance, is even more capable of being enjoyed while pre-
serving the substance in its entirety than most things com-
monly assigned to the category of ' real ' or ' heritable ' estate.
The only difference lies in this. If the concession from
the State, or the disposition by a private individual within
the powers conceded by the State, is in express tenus, being
(for instance) contained in a written instnmaent (a deed of
grant or will), the piurpose or 'intention' is differently con-
strued according to the nature of the subject. In the systems
which adopt the division of property I am here adverting
to, the distinction is commonly based upon the notion that
the property descending to heirs is of a more permanent
character, or such as ought to be preserved for the benefit of
the family. That which goes to administrators (originally
officers of the Church) is supposed to be of a more transient
character (being ' moveable ' as not being fixed to any spot,
and being therefore ' personal ' as conceived to follow the
person) and to be the fund properly applicable for paying
the fimeral expenses and duly providing for the soul of the
deceased. In systems of law in which this di'vision is
adopted, the intention to limit the estate to a series of
persons is more readily presumed in heritable than in
administrahle property. Sometimes in property of both
kinds; and especially in property' of the latter kind, the State
refuses to enforce an attempt on the part of an owner to lay
restraints in respect of alienation upon others who take
imder will or assignment from him.

Absolute
IToperty
yJKs in re)
dcOned.

With what lias been now premised it is possible to state
with an approach to accuracy the nature of absolute pro-
perty : of dominiuin strictly so called : or of jus in re
jH'opria.

It is a right imparting to the owner a power of indefinite
user, capable of being transmitted to universal successors by
way of descent, and imparting to the owner the power of
disiiosition * (from himself and his successois^^er universita-

• Strictly speaking, and to make the definition apply to every
system of law, tl!sposifin7i here must be confined to an alienation to
take eflfcct in the lifetime of the party entitled. The powers of
alienation in extrimis are in most systems of law subject to peculiar
restraints (see p. 313 st/pra and note there). These restraints com-
monly apply to the -uiiiversitas of a man's rights. But if in the
particular subject, the part)- entitled has (the other criteria above
mentioned being satisfied) the largest power of alienation which is
allowed by law in regard to his rights in general, this may be said
to be sufficient to constitute the particular right a right of absolute
property. Even in life and health, the powers of alienation were,
in some particular systems of law, generally restrained, as for
instance, in the case of the English tenant in fee according to the

Jura in I'e all en a. 413

tern aud from all other persons ■who have a spes successiom's
under any existiuq: coiS^essiou or disposition), in favour of
such person or series of persons as he may choose, vfith the
like capacities aud powers as he had himself, and under
such conditions as tlie municipal or particular law allows to
he annexed to the dispositions of private persons.

Ila-sing thus endeavoured to determine the notion of Jura in re
ahsolute property (jus in re jn-opn'd), I am in a position to aaTd. ^'
, explain the nature oijura in re iiliend.

Every ji'ms in re aliend is a fraction or particle (residing
in one party) of dominion, strictly so called, residing in
another determinate party.

Jura in re aliend have no other common property than nifferent
that which I have now stated. Different lights of the class o"i>nd are
are composed of different fractions of that right of absolute J'fferant
property from which they are respectively detached. Some tne various
are definite subtractions from the right of user and exclusion clmsutu'e"^''
residing in the owner. Others are indefinite subtractions thedomimum
from his power of user and exclusion calculated to confer the"' are
enjoyment for a limited time ; and so on. dftacUed **'

The jura in re aliend, which commonly are marked by
modern expositors of the Roman law, are, servitus, emphy-
teusis, superficies, and the jus in rem which is taken by a
creditor under a pledge or hypot1ieca.\

Servitudes properly so called (whether affirmative or servUns con-
negative, real or personal) were esteemed y(«7-« in re aliend, gptdesofj^n
because they gave a right of definite user over a subject v^riaiUvA.
owned by another, or of subtracting a definite fraction from
the owner's right of user or exclusion.

Servitudes improperly so called {usufructus, usus, and
hahitatio) were modes of property, that is to say forms of
property modified by regard to the rights of the person
entitled to the enjoyment in expectancy, who in these cases
is the owner or dominus. As I have already stated, how-
ever, the dominus was in those cases not excluded fi-om tlie
enjoyment of such rights (if any) as he could exercise with-
out injury to the enjoyment of the other. The rights of
improper servitude here spoken of were commonly rights to
the enjoyment for life, but they might be constituted so as

old law. This, as it would occur by general provision of law, would
not cut down the right to less than 'absolute ownership.' 15ut
where the restraint is laid on by the particular title, as in the case
of a tenant for life under a strict settlement in English law, or of a
Scotch strict entail (in the old formof which the restraints or fetters,
as they were termed, were elaborately set forth), we should hardly
call the right one of absolute property.

• Thibaut, Versuche, vol. ii. p. 85. System, vol. il. p. 8.

t Macke\dey vol. ii. p. 6.

414 Laiv : Purposes and Subjects.

Part III. to confer tlie enjoyment upon a person for a period of

^ ' measured duration, as a term of years certain, if he should

so long live, or until the happening of an event, or from the
happening of an event, or on alternate days, or in an indefi-
nite variety of ways. The right of the dominus when
expressly refeiTed to as biu'dened with a usufruct is com-
monly called not dominium, but proprietas.

Emphyteusis. Emphyteusis, under the Roman law, meant originally

land of which some corporate body (as for instance a muui-
cipium) had the absolute property and which was let out to
a person and his heirs (that is, for an unlimited duTation) in
consideration that he would cultivate it (and hence the
origin of the term, which was analogous to the original
meaning of the word colonists), and would bring to the
owner a given rent. Now this vrasjus in re aliend, because,
although ot unlimited dm-ation, accompanied with power in
the emphyteuta of unlimited user, and alienable by him from
his own heirs, it was nevertheless a right or estate carved
out of another estate, or having a reversion expectant upon
it. It reverted to the author or grantor or his representa-
tives. It was not absolute property, because there was no
power of aliening from all successors. There is a reversion
or spes successionis in the corporate body (imder the conces-
sion of the State) which the emphyteuta cannot defeat.

The later history of emphyteusis has had such an impor-
tant influence upon the system of landed property prevailing
in Em-ope, and in the formation of the notion familiar to
most modern systems of law under the name of tenure, that
I must revert to the subject presently. In the mean time I
proceed to advert, in their order, to the other species of jus
in re aliend above mentioned.

StiptrficUa The next case otjus in re aliend is the right styled super-

Jicies. This right originated in a contract of the nature of
locatio conductio or sale of the superjicies ; a contract made
for pm'poses not unlike those of a modern building lease.
The notion implied Avas the following : — The maxim cujus
est solum ejus est usque ad caium was very unbending ;
being indeed based upon the obnous physical fact that
the actual possession of the solum carries with it (generally
speaking) the immediate power to raze to the ground any
superstructure that may exist, and to erect any other super-
structure. But by contract whether of demise or sale, the
owner might carve out, as it were, of the subject of his
OAATiership a superjicies, th.at is to say a solid space hounded
by one or more supojicies (in the mathematical sense of the
word) extending laterally. Under such a contract the
lessee or pm'chaser originally acquired only a rifjht of action
in pc-rsonain against the lessor or vendor, and could rnly

I

Jura in re aliena. 415

sue third parties through the latter. But the Pra3tor, for
the better _protection of the superjicianus, allowed him a
quasi in iV/n actio, aud also for the same purpose introduced
a special interdict after the aualogy of the interdict uti j^os-
sidetis, by which possessimi of the solum was protected. By
these remedies the enjoyment was protected secundum legem
locationis, aud against eveiybody except a person who had
a better title thau the possessor of the solum himself, and
who therefore could evict both. Thus the superjicies became
in effect a, jus in rem, aud being conceived of as a fragment
of the dominium residing in the pi'oprietors of the solum
was &, jus in re aliena.

Here may be a convenient place to note the distinction
made by the Roman lawj'ers between possessio7i and quasi-
possession. Possession, simply aud strictly so called, was a
legal relation based ou the fact of exercising acts of owner-
ship, and protected by the interdicts against everybody except
au owner Aviiose rights the possessor exercised by way of
trespass or as a tenant ou sufferance. Now a person ha\'ing
or exercising jHS in re «Z/e??rt did not jjossess the res. But
the person actually exercising the jus i\i re aliena had reme-
dies (interdicts) for the protection of that exercise analogous
to the i-emedies Avhich the possessor of the res or subject of
the right had for the protection of his possession. Hence
the person actually exercising they;(s in re cdiend was said
to have g'W'^'S'-possession of that right. For instance, the
usufrtictuarius (or the persou for the time being exercising
his rights) had quasi-'possession of the usufruct ; the super-
ficiarius quasi-possession oi\\\QJv^ superjiciei, aud so on.

The last of these rights is the right of a creditor bv TiiejKs iu rem

• " of tll6

virtue of a pledge or hypothec. The creditor has a double creditor in a
right : he has jus in personam in respect of the rights o'j.'n,^,r't!*^^''''
secm'ed to him by the pledge ; jus in rem in the subject gaged,
pledged or mortgaged as a security. For against any
possible possessor, whether by alienation from the pledgor
cr mortgagor, or as adverse possessor, the pledgee or mort-
gagee may make his right over the subject good or available.
The obliged thing might itself be jus in re aliena : as, for
example, a personal servitude granted out of the dominion
of another may itself be the subject of a mortgage, and thus
the jus in rem of the mortgagee would be /its in re aliena
over a subject which is itself ji'hs in re aliena.

In Roman law, the right of the pledgee or hypothecarius
was merely a right to sell the obliged thing in case his
debt is not duly satisfied, and to repay from the proceeds of
the sale his debt with the interest and all incidental costs.
It was much like the right which would be acquired in Fng-
lish law by a mortgage with a power of sale, provided the
mortgagee could not foreclose: or like the right of a

4l6

Laiu : Purposes and Subjects.

Part III. judgment creditor wlio, liaviug sued out a writ of elegit and

" ' ' got possession, is entitled to proceed to a sale iu the manner

pointed out by 27 and 28 Yfct. c. 112. In Roman law the
creditor could not acquire property in the subject of the
pledge or hypothec.

Tenure. Haying explained the notion of jus in re aliend in the

Eoman Law, it is now possible to explain the complex and
pui'ely historical notio'u of tenure, without which it is
hardly possible to understand any of the yarious systems of
law relating to land in the countries of Eiu'cpe whose
laws haye not been recast through reyolution. Eyen iu
England the system of lauded property is based upon tenure,
modified indeed as will be after mentioned.

Amongst those innumerable semi-independent commu-
Dities which existed in Northern Em-ope from the time of
the yirtual dissolution of the Roman Empire, it was not
uncommon for the seyeral soyereigns or those haying more
or less power oyer those seyeral communities to become
mutually bound by engagements, of which the details
might yaiT indefinitely, but of which the leading features
were of "the following character. A prince who had
reduced a proyiuce or district to temporaiy obedience
by force of arms, would find it conyeuient to giye the
possession to another, who, by reason of his ha^-ing the
inhabitants of the conquered district, or their immediate
neighbours, already in the /uibit of obedience to him, was
capable of exerting and enforcing a permanent authority.
The latter would acknowledge that he held the territory
as a loan in trust, and promise fidelity and allegiance.
Thus the Saxon Chronicle relates (in the year 945) that
' this year K. Edmund oyerran all Cmnberland, and let it
all to Malcolm, King of the Scots, on the condition that he
became his ally both by sea and land,' a magnificent loan
(of a proyince extending from the Tyne to the Forth), made
in considei-ation of an indefinite promise of assistance, in
which doubtless originated the celebrated claim of feudal
superiority of which so much was heard two and a half
centm'ies later. Nor were relations of this Irind peculiar to
the middle ages of Europe. Something of the kind is apt
to occur whereyer the elements of political society are in a
state of transition and imperfect fusion. The GhaticaUee
chiefs among the hill tribes of India for instance, pre^yiously
to the settlement of those regions under British authority,
held their lands of the JIuzoor (or Goyernment) on condi-
tion of guarding the passes and generally of performing
services the nature of which has aftbrded much scope for
controyersy, and which were probably neyer capable of
accm-ate definition. The indefinite relation I haye been
ottempting to indicate between the acknowledged superior

Tenure. 4 1 7

potentate and the person who received such possession at
his hands, and ■who promised fidelity, seems to have been
marked in the north of Italy and the adjacent countries by
the word^^o or feu, a word which in the beginning of the
eleventh century, or possibly still earlier, made its appear-
ance in legal documents, latinised into feudinii.

The formulation into -wTitten documents of the in-
definite relations above described, marks a critical stage in
the history of the relations themselves : and the form of the
document had doubtless a most important influence upon
tlie character of the tenure. The documents of this nature
which are preserved to us from the eighth and ninth cen-
turies, relate chiefly to tenures at the hands of ecclesiastical
persons, and are modelled on the preccm'ian, a tenancy
revocable (in name at least) at the will of the grantor, and
ceasing at the death of the grantee. The graut was made
upon the petition of the tenant, and gave him jwssession at
the will (in name at least) of the grantor, and availing
against all except the grantor. But it had the inconvenience
(if it was wished to continue the right beyond the lifetime
of the immediate tenant) that it imparted to his heir not
even the right of possession.

A device was however invented, probably by Longobard
lawyers about the end of the tenth century, of engrafting
upon the jvecariutn the terms of the emphyteusis ; a device
by which the right of possession was conferred upon the
heirs of the grantee, and scope was found for inserting
various express conditions. For this purpose the emphy-
teusis was conveniently elastic. ' Talis contractus quia
inter veteres dubitabatur, et a quibusdam locatio, a qui-
busdam venditio existimabatur, lex Zenoniaua lata est, qufe
emphyteuseos contractus propriam statuitnatm'am, nequead
locationem neque ad venditionem inclinantem, sed suis pac-
tionibus fulnendam.' (Inst. iii. 24, § 3.) Into this com-
posite document accordingly were commonly incorporated
the various customaiy obligations already Imown under the
name of^o or feu, and the tenure so created became known as
feudum. Gradually the form ol i\ie jwecarium was dropped,
and emphyteusis remained the model, as to legal form, of tenure.

A remarkable example belonging to the transition period
is the following. In a notable charter of the year 1033,
printed in Muratori's collection, and the draft of which was
apparently settled by two lawyers, one learned in the laws
of the Longobards, and the other in the Roman civil law,
certain lands are conveyed ' habendum precaria atque EX-
FIOthecaria nomine,' thus combining the precarium, the
emphyteusis, and the domestic^o.

The tenures so created by the great potentates were
copied by the smaller lords in their grants to their vassals,

4i!

Lmv : Purposes and S^ihjccts.

Part III. and within a century from the time when the emphy-

^~ — ' — -" teusis was launched ou its new career, a system of feudal

tenm-es had been elahorated, incorporating and formulating

the floating usages of that rude period. The chains forged

hy custom were riveted by contract and law.

Tenure ana
tenancy o£
land in
England.

In England the creation of new subordinate tenures was
prohibited by the statute of ' Quia emptores,' 18 Edward I.,
and most of the peculiar and inconvenient incidents of the
old tenm-es were swept away in the time of the Common-
wealth, and their abolition was confc-med in the year of the
Restoration by the Act 12 Car. II. c. 24. The change
iu the value of money has still fm-ther lightened to the
vassal the bm'den of his obligations to the lord, and the
only incidents of subordinate tenure which practically
remain are a quit rent of small amount, doubled ou the
death of each tenant, and the escheat or reverter to the
mesne lord in case of failure of heirs to the tenant. For-
feiture by attainder was abolished by o3 and 34 Yict. c. 23.

What has been said above in regard to tenure, does not
apply to English copyhold tenancy, which has altogether a
peculiar histoiy. The copyholders were originally the
slaves of the manorial estate, and occupied their holdings
in fact, as they still do in name, at the will of the lord.

Sti'ictly speaking, therefore, where lands in England are
held of a mesne lord, the right of the tenant is what would
be called by the Roman lawj'ers jus in re aliend. The
dominion of the tenant does not amount to absolute pro-
perty, inasmuch as the lord has a reversion which the
tenant cannot defeat.

The right of a tenant in an English lease for lives or a
term of years is also what the Roman lawj'ers would have
called jus in re aliend. The historical antecedent of the
modern lease is not emphyteusis, but simple locatio conductio.
Now although, as we have seen, in the case of a superjicies
let for building purposes for a considerable term, the tenant
acquired a jhs in re (aliend), it does not appear that in the
case of cultivated land the tenant acquired under a contract
of locatio conductio any 7-eal right. Probably it was not
usual to create such a tenancy for any considerable term,
unless it amounted to an emphyteusis. If a person wanted to
acquire the enjoyment of cidtivated land for a measured
term, or for life, he would probably purchase the iisitfrucf.
The tenant, howe^ser, under an English lease acquired a real
right ; the Courts of Common Law having, so early as the
time of Edward IV., given to the lessee who had been
ousted from possession, specific restitution to his term iu
the land. This remedy the Roman law;s'er3 would have
termed a quasi in rem actio, and the rigat of the English
tenant for years would have been termed by them jus in re

Vested and Cojitiiisrent Rights.

419

aliend. The difference, indeed, between tlie modern English
tenancy and the feudal tenures consists merely in the history
and peculiar iucidenta of the latter, and in the fact that an
English proprietor has been unable, since the statute of
Quia Emptores, to create a tenm-e in fee simple to be held
imder himself.

I

LECTURE LIII.

On Complete and Inchoate — Vested and Continymt — JRif/Itts.

TiTE purpose intimated by the State at a given epoch
(see p. 406 supra), and considered in regard to the respective
persons interested in the specifically determined thing (the
subject of the concession), may be to confer

(a) Present enjoyment, or

(b) Future enjoyment.

When the intention of the concession is to confer
present enjoyment, the person interested may have the en- plated,
joyment in actual possession; or may have the right, by
aid of the State, immediately to get possession, i.e. a right
of action in the nature of vindicatio rei.

When the intention is to confer future enjoyment, the
enjoyment may be destined by the express terms of the
grant or concession, either

(c) To a person or persons individually ascertained,
i.e. determined by events which have happened, or

(d) To a person or persons not individually ascer-
tained.

Blv.strution. — Grant of real estate, according to English law,
to A. for life, remainder to B. for life, remainder to C. and his
heirs. B. and 0. arc eacli said to have vested remainders, B. for
a life estate, and C. for an estate in fee.

And in the case last mentioned, one or other of the
following alternatives must exist, viz. :

(e) There is a certain person or there are certain
persons in existence who, or one or more of whom,
(according to the piu*pose intimated by the State) will,
on the happening of a specified event, become either
determined to the then present enjoyment, or destined
to the enjoyment in like manner with the person or
persons in case (c) above mentioned.

' Illustration. — Grant to A. for life, remainder to B. and his
heirs, if B. shall attain twenty-one. WhenB. attains twenty-one,

420 Lazv : Purposes and Subjects.

I'art III. :f A.'s estate lias then come to an end, B. -n-illbe entitled in pos-
"" ' ' session. If not, then B. -vrill hare become entitled to a rested
remainder.

Or lastly :

(f) There is no person in existence to -vrhom tLe
purpose of the State relates as last mentioned.

Kiusiration. — To A. for life, remainder to B. for life, remainder
to first and other sons of B. in tail respectirely (B. haring as yet
no son).

In all the al^ore cases except (a) it is ohviouslr uncer-
tain -^-hether any giren person ■srill ever hare the destined
enjoyment.* For even in the case (c) the pei-son pointed
out by the concession may not live imtil the period of
enjoyment so destined to him. In this case indeed, most
systems of positive law annex to the interest a power of
alienation and a capacity of transmission to heirs, or uni-
rersal successors by way of descent. But it is clear that
as regards the inch'n'dual to whom the future enjoyment is
destined, his interest is no more than a chance, of future
enjo^Tuent. And supposing that the enjoyment destined to
him is merely an interest for his life, he can neither hare
nor transmit any interest unless the enjoyment fall into
possessicn in his lifetime. In the last case (f) no existing
person can be said to hare ereu the spes succesmonis.

But in all the cases, with the exception immediately to
be mentioned, the State, in order to carry out its purpose,
lars some duties on the propiietor or other party in posses-
sion. An exception may obnously occm- whererer the
destined interest is a mere spes successionis in the nai'row
sense of the word, whether that of a presumptiret heir or
unirersal successor by way of descent to the proprietor, or

* This uncertainty indeed exemplifies the very arbitrary nature
of the distinction. So far as relates to the expectation of enjoj-ment
by anv particular individual, the distinction appears to depend on
the accidental circumstance whether the contingency of his being
alive is left to the impjlied condition of all human affairs, or whether
by some express term of the concession or of a private disposition
made pursuant to a conceded power, the contingency is explicitly
made a condition precedent to the enjoyment. What amounts to a con-
dition precedent, as Mr. Hawkins justly says, the cases only can.
determine (see p. 42.5 post).

t It may here be observed that no person can, in regard to the
universal succession by way of descent to a living person, have any
higher interest than that of a presumptive heir, jyenw est hares
viventis. The presumptive heir commonly called the heir apparent,
is onlv a person in whose case the presumption is stronger than in
the case of the person commonly called an heir presumptive. The
heirship of the fonner is only defeasible in the event of his death in
the lifetime of the prccpositus. That of the latter may be defeated
also by the birth of a nearer heir.

Vcsfcd and Contiiis;cnt Rights.

421

of a substitute or person destined to take iu default of ap- Lect.
poiutiueut, as mentioned on p. 411 supra. LIII.

In all the cases above enumerated, by letters (a) (b) &c., ' ■ ~^
except the last (f), the duties laid upon the proprietor or
possessor, so far as relates to the specifically determined
persons destined to the enjoyment, are rehtice duties, and
to the same extent corresponding- ri(/Jits reside in those
specifically determined persons.

But iu the last ease (f) there is no existing person Anomalous
whom those duties specially regard. The State enjoins the dut^ej^ji'i'f.
possessor to do, or more commonly to forbear from, acts ; rosed in
but not toiuards or in }-espect of a distinct ami deten)iinate wuh^he"^"
party. Strictly speaking, therefore, according to the fore- tJle^gtat'e in'
going analysis (p. 19-4 siq)ra) those duties are absolute casecf).
duties, and belong to the fourth category of absolute duties
there mentioned, namely, 'Ayhere the duty is merely to
be observed towards the Sovereign imposing it.' The
State or Sovereign reserves to itself a qiiasi-n'^ht. But in
this they diti'er from most other absolute duties ; that the
quasi-right reserved by the State to itself is reserved not
directly for the benefit of the community iu general or any
large part of it, but directly for the benefit of the narrow
class of beneficiaries pointed out by the concession or the
private gi-ant made in pursuance of the power conceded by
the State. The State in reserving this quasi-right is a
trustee for the limited class of possible beneficiaries. The
case is anomalous, and it seems more in accordance with
ordinary language to place these duties in the categoiy of
relative duties. And this would be consonant to the practice
usually adopted by the State iu those particular systems of
positive law which recognise such duties, namely the systems
which admit of entails or limitations of the estate in strict
.settlement (I speak of what would be called in English law
leqal limitations, and not limitations by way of trusts, for iu
these the trustees have rights, strictly so called, by which
the interests of future beneficiaries can be protected). For
I think it is not the practice of the State to enforce these
duties, like other absolute duties, by action or suit at the
instance of itself or its officers. The Sovereign merely in-
timates that when the beneficiaries in question come into .
existence, it will give a remedy by action or suit at their
instance against the coutraveners or their estates,* including

* This appears to be according to English law the predicament
of a legal contingent remainder in favour of persons unborn. The
leading case of Garth v. Cotton ( 1 Yesey sen. 524, 546) is thus stated in
Fearne's Contingent; Remainders, ed. J. W. Smitli, p. 5G6. A. being
tenant for 99 years determinable on his life without impeachment
of waste except voluntary, remainder to trustees to support contin-
gent uses, remainder to the first and other sons of A. successively in

422

Laiv : Purposes and Subjects.

Part III,

The terms
'inchoate
nnd ' com-
plete' ae ap-
plied to
rights.

Interests
under the
concession
of the
Btate dis-
tinguished
into two
c asses under
the names of
' Complete
rights' and
• Inchoate
rights.'

tliose who by getting into possession or otherwise hare
gained advantage by the illegal acts.

Inasmucli as a pei-son in the predicament (e) will in case
of the happening of an event acquire a right of the nature
mentioned in one of the cases (a) or (e), such last mentioned
right may be said to be inchoate in a person who is in the
predicament (e). And conversely the right of the person
who is in the predicament (a) or (c) may as distinguished
from the incJwate right of the person in predicament (e) be
called a complete or completed right. AVhat is here called
an inchoate ricjhi is not a right, but the pomhility of a riciht ;
and from the foregoing analysis it appears that the person
in whom it resides may or may not have a right properly so
called. If he has a right, it is a right of a different Mn'd to
the right which is here said to be inchoate.

If it is considered desirable to make the distinction
between inchoate and complete rights co-extensive with all
possible interests, we may call the possibihty of a right in
the possible persons in the predicament (f) an inchoate right.
But the expression inchoate right is somewhat less appropri-
ate than in the other cases, inasmuch as there is no iierson
in whom it can be said presently to reside.

The interests whicli arise under the concession or declared
purpose of the State (whether having for their scope present
or future enjoyment) may therefore be divided into two
classes, and these may, not without significance, be desig-
nated by the terms complete rights and inchocde rights. These
may be defined as follows : —

Complete rights are those of persons in the actual enjoy-
ment pm-suant to the concession of the State ; of persons
having right to be immediately placed in possession or per-
mitted to exercise the enjoyment; and of persons incliriclu-
ally ascertained on whom by the express terms of the con-

tail, remainder to B. in fee ; A., having no son then born, agreed
with B. to fell timber and divide the profits ; a son was aftervvards
born, and Lord Hardwicke decreed that the son should recover
against the representatives of B. In this case, doubtless, the trus-
tees to support contingent uses nvgltt have interfered bj- injunction
to prevent the waste. So long therefore as the principle of English
law remained that a contingent remainder could not be indefeasibiy
created withou ithc interposition of trustees to preserve it, there
was usually somebody invested with a present right to protect the
future interest. But since the necessity of interposing these trus-
tees for certain technical purposes was abolished, it has become a
usual practice among conveyancers to omit them. Consequently,
under a modem settlement, it often happens that a legal estate is
indefeasibiy destined to unborn persons, without any person having
any right to interfere at the time when waste may be committed.

Vested and Contiitzcnt Riohts.

423

cession the State has uncouditioually dech^red its purpose of
couferriug the enjoyment at a future time.

All other interests under the concession are inchoate
riijhts ; and according to the ahove analysis they inaxj reside
in persons wlio have rifjhis, properly so called — rights
which (as distinguished from riglits to the enjoyment pre-
sent or future) may be called rights to the chance of enjoy-
ment ; or they may reside in persons who have no rights,
but a bare spes successionis ; or, lastly, they may be destined
to persons of a certain description, but not in existence.

The only part of the above distinction which is necessary
consists in this. Every right must be constituted by reason
of one or more facts or events which have happened. When
one or more, but not all of these events liave happened, the
predicament may be termed an inchoate rir/ht. But the
particular division of objects above made is arbitrary. For
as the rights of the actual possessor dilier from those of a
person out of possession, but who is entitled to be immedi-
ately placed in possession (i.e. permitted to exercise the
enjoyment), and these again difler from the rights of the
remainderman or reversioner in the predicament (c), we
mi(jht have coniiued the phrase complete ri(jht to that of
the person having right to tiie present enjoyment, or even
to that of the owner in actual possession. Again, a riyht
to the chance of future enjoyment might have laeen called a
complete right (in rem). For it is a right in rem, having
also for its subject a specifically determined thing ; and the
right, such as it is, is perfect and needs no other event to
consummate it.

But the division, as the line of demarcation has been
above di-a^wn, is important ; because it tallies in the main
wnth an important distinction made by some of the more
important modern systems of law : the distinction, namely,
between what are called vested rights and other objects
distinguished according to the particular systems by various
names, but which are often confounded together under the
loose and misexpressive name contingent rights.

In the older Roman law there is scarcely anything to be
met with about contingent rights. There is scarcely any
instance of a disposition suspending the exercise of any
right, or by which a right is carried over on a contingency,
or is to commence on a contingency. Every disposition oD
which depends a right to tahe effect at a future time, seems
to have been forbidden absolutely. It was the prsetorian
law which aftei-wards introduced substitutions or entails.

The notion conveyed by the word * vested ' is altogether
histoi-ical — a circumstance suggested to me, or of which I
am reminded, by the chapter on ' Vesting ' in Mr. Hawldns's
admirable book on Wills — and belongs to general

LncT.
LIII.

This distinc-
tion how far
necessary.

Thedlstino
tion is im-
portant tie-
cause it is
made in the
more im-
portant
modern
systems.

424 Laiv : Purposes and Subjects.

Part III. jurisprudeuce merely for tlie reason that it belongs to most
' ~^ modern systems of particular jiu-isprudence. It originates
in the all-pervading feudal tenures. In the language of
feudal lawyers the notorious and conspicuous fact of the
person entitled being placed in possession was called the
investiture. Thereby as by the putting on of a palpable
and substantial garment Avere imagined to be clothed one or
other of the following objects (for the metaphor is some-
what loosely conceived and applied) : — viz. the naked in-
tention of the conceding Sovereign or private grantor ; the
bare right of the person entitled ; or that person himself.

Originally therefore ' vesting ' meant the comj^sleting of
the owner's right by actual possession. By analogy tlie
meaning has been extended to rights other than that of the
owner seized in actual possession ; and the fact or event
which (either alone or as the last and crowning event with
others) completes the predicament to whicli the law annexes
the right, is said to 'vest' the right. Thus 'vested' as
applied to a right is nearly synonymous witli ' completed.'
The fact which vests the right is called the 'investitive
fact,' an expression which, for convenience, has been already
used in these Lectures.

That some riglits are termed 'vested,' and others are not
termed ' vested,' although the facts or events to which the
law annexes the right have all happened, is a circumstance
which cannot be assigned to any necessary reason ; nor are
the rights or facts to which the term is applied the same in
all particular systems of law, nor even in different branches
of the same system. For instance, as Mr. Ilawldns points
out, the term ' vested ' has a different signification in English
law when applied to a legal remainder in real estate, from
■what it has when applied to a legac}'.

The use of the tenn ' vested rights ' in particular systems
of law is in fact arbitraiw, and the arbitrary manner in which
the term is applied fails to be transparent only because the
word ' vest,' through its metaphorical origin, has acquired
an air of mystery.

To pursue the account of ' vesting ' into the particular
systems of law would lead into details not appropriate to
the subject of the course. When the student approaches
the subject in the particular system of law to which he
may devote himself, I should recommend him to keep these
two questions clearly and distinctly before him : 1st, What
are the juridical effects which the particular law or thehranch
of it which he vj siiidi/inr/ attaches to the circumstance of
^vestim/,^ — or, in other words, "What is the nature of the
respective rights to which the law applies tlie expression, and
in what do they differ from rights to which the law does
not apply the word ? Wherein, for instance, in English law
consists the practical difference, or is there any, betw-een a
legacy to A. ' if he shall attain twenty-one ' and a legacy to A.

Vested and Contingent Rights. 425

with a gift over on liis death under twenty-one ? Or does it Lect.
make any difference if for 'A.' you read 'a person unhorn' LIll.
and for ' twenty-one ' read ' twenty-five ? ' 2ndly. What "^ ' "^
are the species of the facts, or the expression of intention, EngMsu'iaw!
which the hiw construes as creating a vested right ?

For the student of English law, as an introduction to
the thorny path which this subject opens up, I shall select
one or two of the principles which have heeu laid dowTi.

And first I shall select the criterion of what, in English
law, is called a vested remainder as distinguished from a
continr/ent remainder. But I shall first remark that the
principal juridical effect of a vested as distinguished from a
contingent remainder is that it is indefeasible except by the
expiration of the term assigned for its continuance. A con-
tingent remainder was formerly defeasible in a variety of
ways, but cannot now be defeated (as formerly) by the act
of the tenant in possession. The test of the species of
events which constitute a vested remainder is given by Fearne
as follows : —

' It is not the uncertainty of ever taldng effect in posses-
sion that makes a remainder contingent ; for to that, every
remainder in life or in tail is and must be liable ; as tho
remainderman may die, or die without issue before the death
of the tenant for life. T/ie 2}i'esent capacity of taking effect
in possession, if the j}ossessio7i ivere to become vacant, and not
the certainty iJiat tJte possession 2cill become vacant before the
estate limited in remainder determines, universally distinguishes
a vested remainder from one that is contingent.'' *

For example : If land be given to A. for life, remainder
to B. for life, B. has a vested remainder. But if land be given
to A. for life, and in case B. survive A., to B. and his heirs, B.
has a contingent remainder. For, in the latter case, if A, in
his lifetime left the possession vacant, there is no person
who by the terms of the gi-ant is entitled to fill it.

It will be observed that a vested remainder, according to
English law, is in the predicament (c) p. 419 supra, subject
to the further condition that the enjoyment must not, by the
express terms of the concession, or private disposition made
pursuant to the conceded power, be postponed to a period
"which may outlast the estate on the determination of which
the remainder is expectant.

Vested estates (other than remainders), according to the
English law of real property, appear to correspond to the
above predicament (c) without the further condition just
mentioned, and this I think comes to the same thmg as the
following remark of Mr. Hawkins : — ' The only deiinition
that can be given of the word " vested " in English law as
applied to future interests, other than remainders, is, that it
means " not subject to a condition precedent ; " what amounts

• Feai-ne on Contingent Eemainders, 10th ed. vol. i. p. 216.

426

Law : Purposes and Subjecfi.

Part III.

* Personal '
estate vested
In the civil
law equiva-
lent to un-
conditional
or transmis-
sible.

Civil law

onse of

' vested" not
applicable to
English law.'

to a coudition precedent, tlie cases only can determine.
This remark applies both to real and personal estate ; hut the
rules as to what expressions are construed to create a vested
interest differ widely according to "whether * real ' or ' per-
sonal ' estate is in question.

I foi'ther quote the following remarks of Mr. Hawkins
as appropriate not only to explain the meaning of ' vested '
as applied, in English law, to personal estate, hut also to
show the source in the civil law from which many of the
distinctions as to vesting, both in English law relating to
' personal ' estate, and in other systems of law, are derived.

' The rules and expressions relative to the "resting oi
pei-sonal estate have been derived in a great measure from
the civil law. In that system (see Domat. L. iv. Tit. 2,
sec. 9) legacies not immediately payable are di\aded into
two classes : — (1) legacies payable at a future time certain
to arrive (as to which, dies lec/ati was said cessisse, though
not ve)iisse.) : and (2) conditional legacies, or legacies pay-
able on an event which might never happen. The former
class were transmissible to the representatives of the legatee,
if he died before the time of pa^^niieut : the latter were not.

' In speaking of the civil rules, it is natm'al to use the
term " vested " to denote the former class of legacies, and
" contingent " to denote the latter. In the civil law, there-
foi-e, *' vested " is equiA-alent to unconditional and to trans-
missible : '•' contingent " is equivalent to conditional and to
non-transniissible.

' But it is obvious that this division is wholly inapplic-
able to the English law of legacies, which allows future
conditional interests to be transmitted to the representatives
of the legatee, and which considers some kinds of conditional
gifts as " vested subject to be divested," i.e. subject to a
condition subsequent and not precedent. By English law
contingent legacies may be transmissible (as a legacy to A.,
if B. returns from Rome), and vested legacies may be con-
ditional (as a legacy to A., with a gift over on his death
under twenty-one). To retain, therefore, the ci\-il law
definitions of " vested " and " contingent " as equivalent
respectively to " transmissible " and " non-transmissible," as
is done byRoper (Rop. Leg. vol. i. p. 550, 4th ed.), appears
to be fallacious.'*

The distinction above made between complete and in-
choate— vested and contingent — rights, will apply, with some
modification, to rights in perso)iam and to rights in rem
generally, as well as to rights in rem having a determinate
thing for their subject. But for simplicity as well as because
the terms ' vested ' and ' contingent ' are more commonly
applied in relation to the enjoyment of a specific thing (or

Hawkins on Wills, p. 222.

' Vested Rights'' in questions of legislation.

427

to a univer situs, in regard to wliicli rights are precisely
similar to those over a specifically determined thing), the
distinction properly belongs to the present part of the coiuse.

Lect.
LIII.

Here may be adverted to a meaning frequently annexed 'Vested _
to the expression ' vested rights,' which is mentioned in a phrase is'ap^^
treatise 'On the Use and Abuse of Political Terms,' by the ?," nVo" fegl*
late Sir G. C. Lewis. lation.

When it is said that the Legislatm-e ought not to de-
prive parties of their ' vested rights,' all that is meant is that
the rights styled ' vested ' are sacred or inviolable, or are such
as the parties ought not to be deprived of by the Legisla-
ture. The phi-ase is either pm'ely an identical proposition
or begs the question at issue.

If it mean that there are no cases in which the parties
are not to yield to considerations of expediency, the propo-
sition is manifestly false, and conflicts with the practice of
eveiy Legislature on earth. For almost every public under-
taking on a considerable scale, there must be some sacrifice
of private convenience. Parties have to give up a portion of
their powers of user or exclusion, receiving compensation
according to the provisions of the act of expropriation.

The expression ' vested right,' when used in the above
connection, 7nai/ mean that, in interfering with rights, the
Legislature ought to tread with the gi-eatest possible caution,
and ought not to abolish them without a great and manifest
preponderance of general utility. But in the proposition as
thus understood, it is clear that ' vested ' has a sense differ-
ent from that in which it is used in positive law. ^Mierever
expectations have been raised in accordance "v\'ith the declared
purpose and concession of the State, to disappoint those
expectations by recall of the concession without a manifest
preponderance of general utility is equally pernicious,
whether the expectation amounts, or does not amount, to
that which according to the particular system of positive
law is a ' vested right.'

Still I apprehend there is a difference in this point of
view between expectations which are ri(/hts properly so
called, and those which consist of a mere sjjcs successionis in
the sti'ict sense of the term. For as such an expectation is
defeasible by the act of a private person, the expectant seems
to have no reason to complain if he is deprived of it bv the
act of the State. So that an Act altering the haw of suc-
cession, such as that which in England declared that in
case of death after the date of the Act the succession in
real estate should go to the heir of the last purchaser instead
of the heir of the last person seized — or that which in
Scotland (1868) converted heritable debts (as regards the
creditor) into moveable (or p.ei-sonal) estate, — seems not to
have infringed on any sound principles of morals.

428 Lazv : Purposes and Subjects.

Part III. The Act of 1848 (called tlie Eullierford Act), which

■ ' ' desti-oyed the perpetuity of Scotch entails hy enahling the

heir in possession, witli certain consents, to bar the entail,
stands on a somewhat different footing. Many of the
persons Tvliose expectations it defeated had rights strictly
spealdug — rights to the chance of future enjoyment — and
those rights were recognised by law, inasmuch as those
persons were necessary parties to any suit to affect the en-
tailed estate. But these expectations Avere so exceedingly
remote, that the public purpose of doing away with the
interminable series of interests w^as doubtless sufficient
justification for this change of purpose ou the part of tho
Sovereign Legislature.*

Lect.
LIV.

LECTURE LIV.

Introducing the subject of Titles, Modes of Acquisition,
or Investitive and Divestitive Facts.

I PROCEED to consider rights in rem in respect of their
titles : meaning by their titles, the facts or events of which
"~ ' " they are legal consequences (or on which, by the dispositions
ro7he^con-"" of the kw, they arise or come into being), and also the facts
Tt^fcT'nr'of * .Or evcnts ou which, by the dispositions of the law, they
imeAitive terminate or are extinguished.

?/!'e Facts!'" In order to connect what goes before wdth the subject of

titles, it is convenient to explain further what is meant by
the expression previously employed, ' Concession of the State
at a given epoch.' It has been supposed (p. 406 supra) that the
State at a given epoch intimates its entire purpose in relation
to the enjovmeut, present and future, of the determinate
thing which is the subject of the right in question.

We might imagine the State to designate individually,
and by specific marks, certain individuals to the enjoyment
present and future. Or we might imagine the Legislature
to enact a statute ; expressly reciting in its preamble the

* When, in discussing questions relating to legislation, the term
•vested' is applied to rights which the State concedes to persons or
corporations for purposes specially directed to the general -welfare
and not to the benefit of individuals, the use of the term is merely
begging the question at issue; or else is made with the Avrong-
headed, if not consciously misleading, intention of suggesting that
the rifjhts in question arc on the same footing as those which
directly and specially concern individual expectations ; and that
a change on the part "of the State in regard to the purposes of its
concession inevitably conduces to the totally dissimilar end of inter-
ference with what, for shortness, and to employ a popular and not
entirely inappropriate phrase, may be termed the institution of
property. — K. C.

Titles. 429

provisious of a previous enactment (if any) relating to Lect.
the enjoyment, the state of existing facts relevant to the LIV.

provisions of tliat previous and of the present enactment, ' ' '

and the general principles of law relative to that state of
circumstances, having regard to the provisions of the pre-
vious enactment ; — that such statute should then pro-
ceed to declare who are the persons (hy specific and indi-
vidual description) presently having riglit to enjoyment ; —
that it should describe the future facts or events (either
certain or uncertain) whereby that enjoyment is to termi-
nate, and point out (either by specific and individual
marks, or by general description, liaving regard to facts or
events yet uncertain, or partly by both modes) the persons
who are to have the enjoyment on the determination of
the enjoyment of the persons presently entitled thereto,
and so on.

Nor is the supposition mereh' imaginary. An act of
the hrst kind really takes place (so far as relates to the
persons immediately taliing under it) at the instant when
a right is constituted by direct gi'ant, charter, or letters
patent by the Sovereign or its officers in that behalf duly
authorised. An enactment of the second kind is really
made (according to English practice) at the instant of the
confirmation by statute of an award by Enclosure Commis-
sioners : or, in the case of an Indian Settlement, by the
final order of the Revenue Authority relating to a specific
piece of land.

And wliat is in these cases done by explicit enactment
is what virtuxilly occurs at every moment by reason of the
implied pm-pose of the State as intimated b}' a combination
of the following indices, viz. — the previous enactments (if
any), the existing facts and circumstances, and the general
principles of law. And that pm'pose is capable of being
made clear — constat, 'potentialhj — by evidence, that is to say
by documents which a Court of law permits or orders to be
produced and oral statements which it permits to be made.

Now, so far as any such enactment, simply and explicitly,
designates persons individually, and \)y specific marks, to tlie
enjoyment present or future, these persons may be said to
acquire riglit immediately from the law. In all other cases
persons to be benefited may be said to acquire rights by a title.
Now although for simplicity and clearness the conces-
sion of the State has been considered as relating specially
to the enjoyment of a specific thing, it is obvious that a
great deal of what has been said in that relation applies to
rights in rem having no specific subject (person or thing),
and also to rights in personam. And although the observa-
tions made at this part of the course are specially du-ected
to titles as engendering and extinguishin"' ri^rhts in rem.

4.^,0

Lcnv : Purposes and Subjects.

Paist III.

Ori3er in
which the
Buhject of
tiiles is to be
treated.

considered iwr se, it is convenient to preface tliem "by certain
remarlcs whicli apply to titles generally.

Having made those prefatoiy remarks, I shall proceed,
having regard specially to rights in rem, to the leading
distinctions between titles ; and conclude the subject of
titles by a consideration seriatim of certain titles which,
being, in some shape or other, found in every system, are
appropriate matter for General Jurisprudence.

Of the titles thus to be considered simply and senatim,
the follovring are the principal :

1st. The acquisition oijus in rem by occupancy : i.e. by
the apprehension or occupation of a thing which has no
owner, with the purpose of acquiring it as one's own. (We
might take a thing ha\ing abeady an owner, with the pur-
pose of acquuing it as our o's\ti. But in that case the right
which we acquii'e is a different right 5 that which is called a
right of possession, a right availiug against all the world
except "the owner of the subject.)

2ndly. The acquisition of jus in rem by labour : i.e. by
labom- expended on a subject which has no previous owner,
or even on a subject which has. For there are various cases
in which a party acquires a right in a thing belonging to
another, by labour employed upon it ; for instance, in the
Roman Law by sjjeci/ication, that is, by gi'ving it a new form.

3rdly. The acquisition oijus in rem by accession : that
is to say, through the medium of a thing of which the
party is owner akeady; as in the case of land washed
away and joined to one's own land, or the fruits arising
from one's own land.

4thly. The acquisition of jus in rem by occupancy or
labom", combined with accession.

Sthly. The various modes of acquiring yjts in rein which
fall under tlie generic name of title bij alienation : meaning
by alienation, the intentional and voluntary transfer of a
right (or of a fraction of a right) by the party in whom the
right resides, to another party.

6thly. The acquisition of jus in rem by jyescription :
the consideration of which will involve a previous considei'-
ation of the so-called rijilit of iJossession.

7thly and lastly. Such modes of losing rights as aro
not involved by implication in modes of acquiring them.
For as everi/ mode of acquisition is not derived from a pro-
existing title, so may a title end without engendering another.
Occupancy, for example, is not a title derived from a pre-
vious title. And so, where absolute property terminates by
the annihilation of its subject, or by reverter to the State,
not considered as a trustee for a private person or persons,
the mode by which the owner loses his right is not at the
same time a title to a right in another.

Titles. 43 1

In considering the titles to which I have now adverted, I.i--:?;
I shall commonly assmue that the right which is the subject LIV.
of the acquisition or loss, is absolute property, or dominion ' '
strictly so called, over a singular or particular thiiKj iu the
proper acceptation of the name : noting- from time to time,
as I may see occasion, the effect of any title in engen-
dering or extinguishing riglits which are not rights of that
class or description.

LECTURE LV.

Titles.

h-ftu 11111110'
diaii.

Considered with reference to the modes wherein they
respectively begin, or wherein the entitled persons are
respectively invested with them, Rights may be divided into
two kinds.

1. Some are conferred by the laAv, upon the persons in-
vested with them, through intervening facts to Avhich it
annexes them as cousequeuces.

2. Others ai*e conferred by tlie law upon the persons
iu'S'ested AAath them, immediately or directly : that is to say,
not through the medium of any foct distinguishable from
the law or command Avhich confers or imparts the right.

The only rights which arise from laws immediately are nights cj;
of the class of rights which are strictly personal privileges.

And here it is to be observed, that exQvy privilege pro-
perly so called is a strictly personal privilege : that is to
say, an anomalous right (or an anomalous immunity from
duty) conferred by a law (also called a privilege) on a
specifically determined person (individual or conjplex), as
being that very person. For exa,mple : A monopoly granted
to Styles, as being the individual Styles, is a strictly per-
sonal privilege : it is given to the very individual, as being
the very individual, and therefore is not assignable or trans-
missible to _ his representatives. A monopoly granted to a
corporate body, as being that very body, is also a personal
privilege. For it is not exercisable by any but the com-
plex person to whom it is granted specifically.

Certain so-called privileges indeed are pricilef/ia rei, or
privileges conferred on a j^rfpcliiou, meaning thereby a privi-
lege conferred on its successive owners or occupants as being-
such owners or occupants. And of privileges conferred
upon persons not as being owners or occupants of specifically
determined 2)r(sdia, some are transmissible and assignable
to the heirs and alienees of the grantees, and are not ex-
clusively exercisable by the A'ery grantees themselves.

But, strictly speaking, a privilegium rei (or a pri\ilege

432 Lazu : Purposes and Subjects.

Part III. granted to the occupants of a ^\\e\i. prcBcliuni) is not a privi-

-,^-y.,—^ lege. It is not granted to the parties as heing those very

parties, h\xt as being persons of a given class, or as being'

ijersons ^•lio answer to a given generic description ; — as
)eing owners or occupants oi the jyrcedium or parcel of land,
whereon, by an ellipsis, the privilege is said to be conferred.

Thoufrh the class of persons entitled in succession is
comparatively narrow, the right may be likened to those
anomalous ri^rhts which are occasionally granted to exten-
sive classes of persons : as, for example, to soldiers, to in-
fants, or to married women.

A so-called personal privilege transmissible to heirs or
assigns, is, in so far as it is so transmissible, in the same
predicament with a jirivilecjium rei. In respect of the per-
son to wliom it is first granted, it may be deemed a privi-
lege, being: granted to a party specifically determined as
bearing his individual or speciiic character. But, in respect
of the heirs of that person, -or in respect of the persons to
whom he may assign it, it is not a privilege projwrly so
called. The law confers it upon them, not as being speci-
fically determined persons, but as being persons of generic
descriptions or classes ; that is to say, as being the persons
Avho answer to the description of his heirs, or alienees.
And, accordingly, although the first grantee may acquire by
the law directly, it is impossible (as I shall show imme-
diately) that his heirs or alienees should take from the law
without the intervention of a title.

The essence of a privilege properly so called, is this :
that the eccentric or anomalous right is conferred on a
specific person, not as belonging to a class of persons, but as
bearing the specific character peculiar to him or it.

Now a pri'S'ilege properly so called may be conferred by
the law (priAilegium) which confers it directly: that is to
say, without the intervention of a fact distinguishable from
the law itself Or it may be conferred through a title. For
example : The law may grant a privilege to a person now an
infant in case he shall come of age, on which supposition,
the privilege will not vest unless the infant come of age ;
and the fact of his coming of age, is therefore a title, or
investitive fact, necessary to the consummation of the right.

But Avhere a right is not properly a pri^-ilege, (or is not
confen'ed on a specific person as being that specific person.)
the right arises of necessity through a title: through a fact
distinguishable from the law conferring the right, and to
which the law annexes the right as a consequence or eftect.
For example : If you acquire by occupancy, or by alien-
ation, or by prescription, you do not acquire as being the
individual you, but because you have occupied the subject,
or have received it from the alienor, or liave enjoyed it ad-
versely for a given time, agreeably to the provision of the

Titles.

An

well as rights
may arise
from tlie law
immfiiati.

rule of law which annexes the right to a fact of that de-
scription.

And the same may be said of the privileges improperly
80 called, which are either prixilegia rei (or privileges an-
nexed to pradia), or are so-styled personal privileges passing
to heirs or alienees. It is as being the occupant of the thing,
and not as being the verj' person who then happens to oc-
cupy it, that the occupant of the thing acquires the so-called
privilege. And it is as being the heir or the alienee of the
first grantee, and not as being the very person who is heir
or alienee, that the heir or alienee of the first grantee takes
ihe privilege mis-styled personal.

In short, wherever the law confers a right, not on a spe-
cific person as being such, the law of necessity confers the
right through the intervention of a title. For, by the sup-
position, the person entitled is not deterynined by the law
through any mark specifically peculiar to himself.

It is manifest that duties, as well as rights, may ai^ise Duties as
from the law immediate, or may arise from the law through
the intervention of facts to which the law annexes them.

Where the duty is relative, it arises from the very fact
which engenders the corresponding right. Consequently,
If the right be a privilege properly so called, the relative
duty, as well as the right, may arise from the law immedi-
ately. If the right arise from a title, the relative duty as
well as the right must arise from a title also.

In the case of absolute duties, the duty may either be
imposed on a specified person as such, or may be imposed
ou a person through an intervening fact. In the first of
those cases, the duty may be imposed by the law immedi-
ately or directly. In the latter of those cases, the fact
through which the law imposes the duty may also be styled
a title. I apply the term title to every fact whatever,
through which the law confers or extinguishes a right, or
imposes or exonerates from a duty.

What has been said of rights and duties in respect of
their commencement, will apply to rights and duties in re-
spect of their termination. For a right or a duty may ter-
minate by a specific provision of the law exclusively appli-
cable to the specific instance : ou which supposition, it
may be said to terminate by the mere operation of law.
Or the right, or the duty, may terminate through, or in con-
sequence of, a fact to which the law has imparted that
extinctive efl'ect. On which supposition, the right or dutv
may be sad to terminate through, or in consequence of, a
title.

I will now briefly advert to the functions of Titles : and Functions of

tuiei.
V

434

Law : Ptirposes and Subjects.

Part III. to the reasons why facts of some kinds are selected to servo
^ • ' as titles, in preference to facts of other kinds.

It is impossible that every right and duty should he
conferred and imposed by the law immediately. For, on
that supposition, there must be as many systems of law as
there are indi\'iduals in the community.

It is only in comparatively few, and comparatively un-
important cases that rights or duties can be created or ex-
tinguished by the mere operation of the law. Generally
speaking, rights must be conferred and extinguished, and
duties imposed or "withdrawn, through titles.

Titles are necessary, because the law, in conferring and
imposing rights and duties, and in divesting them, neces-
sarily proceeds on general principles or maxims. It confers
and imposes on, or divests from, pei-sons, not as being spe-
cifically determined, but as belonging to certain classes.
And the title determines the person to the class.

But though the facts which serve as titles mark the
beginnings and endings of rights and duties, it is not (gene-
rally speaking) for that reason only that the law imparts to
those facts their creative and extinctive effects.

Independently of a given title ser\ing as such a mark,
there is generally another reason why it is selected as a
title : a reason founded on utility, partial or general, well or
ill imderstood. It is deemed expedient that the given fact
should perform the functions of a title, in preference to
other facts, which, as mere marks, might perhaps perform the
functions equally well.

For example : Considering a title as a mere mark deter-
mining the cormnencement of a right, it would be utterly
indifferent whether a man's lands and goods passed on his
decease to his children or to his remoter relations. But for
certain reasons, founded on ob\'ious utility, his lands and
goods generally pass to his children in preference to his
remoter relations.

Bentham's
criticism on
the word
titie.

Bentham, in the Traites de Legislation, objects to the
word ' title,' that though it denotes the facts to which the
law annexes rights, it does not commonly denote the facts
through which the law puts an end to rights.

Another objection to the word ' title ' is, that it is not
applicable to facts considered as engendering or extinguish-
ing duties, relative or absolute. Where the duty is relative,
perhaps a term is scarcely necessary, as the relative duty
arises necessarily from the fact which engenders the corre-
sponding right. But where the duty is absolute there is
need of some generic expression for facts which engender or
extinguish duties. The word ' title ' does not serve the puT"
pose : we hardly speak of- a title to a bmihen or duty.

The same objections apply to the term modus acquirend*

Titles.

435

or mode of acquisition which is employed by the modern
Ci^-ilians, and by all the legal systems -which are mainly
derivatives of the Roman law. We cannot talk of acquinng
a duttj.

Beutham, to obviate the inconvenience of this defective
nomenclature, suggests the follo'n'ing terms. He proposes
to call every fact whatever, by which a right or a duty is
engendered or extinguished, a dispositive fact. These disjiO"
titive facts he divides into investitive and divestitive, mean-
ing by investitive, facts which give commencement to rights
and duties : by divestitive, facts which put an end to rights
or duties. Investitive fects, again, he divides into collative
and impositive, collative being such as confer rights, imposi-
tive such as impose duties. Divestitive facts he distin-
guishes into destructive or privative, and exonerative, meaning
by the former, facts Avhich put an end to rights; by the
latter, those which extinguish or relieve from duties.

These arranged in a tabular form are as follows : —

Dispositive
I

Lect.
-LV.

Investitive

Divestitive

Collative. Impositive.

Destitutive. Exonerative.
Privative.

It may be doubted whether this multitude of expres-
sions is of much use, and there are some objections even to
these terms. It appears convenient to use the common
tei-m title in the large sense annexed to it in these Lectures,
as meaning any fact, by the inteiTention of which the law
invests or divests a right, or imposes or •wathdraws a duty.

Blackstone himself often seems to use title to designate
a fact which ends a right as well as one which begins it, so
that the large import here given to the term would not to a
great extent shock established usage.

It is remarkable that the Roman lawyers have scarcely
any settled generic name for investitive or divestitive facts.
They generally employ some kind of circumlocution. Even
the phrase modus acqiiirendi was not theirs, but devised by
the modem Ci^'ilians.

The word titidus in Roman law, is not at all equivalent
lo title in the English. It is not a mode of acquisition,
but a part only of a complex mode of acquisition ; and even
in that narrower sense it is only applied in a few cases,
namely certain cases in which rights are acqiured by tra-
dition and by prescription.

A title may often be separated into two distinct facts or
sets of facts — an antecedent and a consequent ; and then
us

f-roposed Vfc
of title with
extended
meaning.

436

Law : Purposes and Subjects.

Pabt III. titultLS is the name given to the antecedent part, modus

- — > — ^ acquirendi to the residue or consequent part. The word

titre in the French law is always understood in the same

sense as titulus in the Roman law. It never means, as with

us, mode of acquisition.

Ciraponent
ccsenti of a

LECTURE LVI.

Titles continued.

Titles (or the facts through which the law confers and di-
vests rights, or, through which the law imposes and with-
draws duties) are divisible into simple and complex.

A title may consist of a fact whicli is deemed one and
indivisible, and is said to be simple. Or a title may consist
of a fact which is not deemed one and indivisible, but is es-
teemed a number of single and indivisible facts compacted
into a collective whole, and may then be called complex.*

Every title is really complex. In the case, for example,
of acquisition by occupancy, (which perhaps is the least
complex of all titles), the title consists, at the least, of
three distinguishable facts : namely, tlie negative fact that
the subject occupied has no previous owner ; the positive
fact of the apprehension or taking possession of the subject :
and the intention, on the part of the occupant, of appro-
priating the subject to himself — animus rem sihi habendi.

Nay, each of the simpler facts into which a title deemed
simple is immediatelj' resolvable, may itself be resolved into
facts which are still more simple or elementary. The nega-
tive fact, for example, that the thing acquired by occupancy
is res nullius, is the absence or negation of that multitude
of facts which ?re imported by the positive fact of a thing
being owned already. And the fact of taking possession,
or the animus rem sibi habendi, is also resolvable into a
number of facts which it would take a long treatise to dis-
tinguish and describe.

The terms simple and complex, as applied to titles, are,
therefore, merely relative. A so-called simple title is a title
consisting of parts, which, for the purpose contemplated by
the speaker, it is not necessary to distinguish : whilst a so-
called complex title is a title consisting of parts, which, for
the same purpose, it is necessaiy to consider separately.

According to Bentham, in his * Vue generale d'un Corps

* Bentham, Traites, vol. i. p. 273.

Titles. 437

de Droit^ tho distinguishable facts wliicli constitute a com- Lkct.
plex title, are divisible, in some cases, into ^ priyicipar Hwd LVI.
' accessory.^ Looking at the rationole of the distinction * • '
•which he seems to have in view, (and which is a distinc- p"r™cipai"and
tion of great practical moment), the terms essential or in- ncceesory.
trinsic, and accidental or adventitious, would be more sig-
nificant than principal and accessor}-.

The rationale of the distinction appears to be this :

As it was remarked in the preceding Lectiu-e, there are
generally certain reasons, derived from the nature of the
fact which serv'es as a title, why such or such a right or
duty should be annexed to that fact rather than another, or
why that fact rather than another should divest such or
such a right or duty.

Now it may happen, that, looking at the reasons or pur-
poses for which a given right is annexed to a given title, all
the facts of which the title is constituted are of its very es-
sence. Or it may happen that some of those facts are not
of the essence of the title : that is to say, it would be con-
sistent with those reasons or purposes for the right to arise
through the supposed title, although the facts in question
were not constituent parts of it.

For example : Looking at the reasons for which a con-
vention is made legally obligatory, or for which legal rights
and duties are conferred and imposed on the parties to the
agreement, a promise by the one party, and an acceptance
of the promise by the other party, are of the essence of the
title.

But in certain cases, a convention is not legally binding,
unless the promise be reduced to writing, and the writing
be signed by the promissor: or unless the promise be
couched in a writing of a given fonn : or (generally) unless
the contracting parties observe some solemnity which has
no necessarj' connexion with the promise and acceptance.

Now, though the given solemnity, let it be what it mav,
is, in all such cases, a constituent part of the title, it is not
of the essence of the title. The right and duty might arise,
(consistently with the reasons for which conventions ge-
nerally, or conventions of the particular class, are made
obligatory), although the solemnity were no portion of the
title. The solemnity may be convenient evidence of that
which is essential to the title, but, though it is a part of
the title, it is not necessarily such. "Where this is the case,
the several facts into which the title is resolvable may be
divided into essential and accidental, intrinsic and adventi-
tious, or (in the language of Bentham) pnncijml and acces-
sory. The facts which are essential or principal are parts
of the title, because they are absolutely necessary to the
accomplishment of the purposes for which the right is
annexed to the title by the lawgiver.

433 Law : Purposes and Subjects.

Part III. But tlie facts wliicli are accidental or accessory, ara

' ■ ' constituent parts of the title, not because they are ticcesmt'y

to the accomplishment of those purposes, biit for some
reason collateral or subsidiary to those purposes.

For the sake of simplicity, let us confine ourselves to
titles considered as investing vnih. rights.

Where some of the elements of a title are accidental or
accessory, they (generally speaking) are merely subservient
-to the essential or principal parts of it. For example:
They serve as evidence, preappointed by the law, that that
■which is substantially the title has happened. This is the
case, wherever tradition or delivery of the subject, c-r a writ-
ing with or without seal, or an entry or minute of the fact
in a register, or any other solemnity of the like nature, is a
constituent part of a valid alienation of a thing of a given
class.

The invalidity or nuUity of the title, in case the evi-
dentiary fact be not a constituent part of it, is the sanction
of the rule of law by which the evidence is required. But
it is clear that the rule of law might be sanctioned otherwise.
For example : The absence of the given solemnity, instead
of nullifying the title (or being made a presumption, juris et
de jure, that the title had not accrued), might be made a
presumption priind facie : that is to say, a presumption
which the party insisting on the title might be at liberty to
rebut, by explaining the reason why the prescribed solem-
nity had not been observed, and by producing evidence,
other than the pre-appointed solemnity, that the title had
accrued.

Or the absence of the given solemnity might be visited
on the party bound to observe it, not by nullifying his title,
but by punishing him with a pecimiary fine.

And, on either of these suppositions, the prescribed so-
lemnity, though still prescribed or exacted, would not be
indispensable endence of the substance of the title, or (what
is the same thing) would not be a constituent part of the
title. For it is manifest, that, wherever an e\ideutiary fact
ia indispensable evidence of a given title, that evidentiary
fact is a component part of the title, although it is not an
essential part, but is merely an accidental or adventitiom
one.

Now the elements of a title which are non-essential or
accidental, although (generally speaking) merely subservient
to the essential parts of it, are sometimes merely collateral,
and in no respect subser\ient to its essential or principal
parts. They are entirely foreign to the reasons or purposes
for which the right in question is annexed by the law to
the title.

-This, for example, is the case, wherever a deed or other
writing is indispensable evidence of the title, and where

Titles.

439

moreover tlie writing is not admissible e\ndence, in case a
Btamp was not alHxed to it when tlie alleged title arose.
Such is the case with a policy of insurance. In this instance,
the stamp is made a part of the title, not because it has any
connection with the essentials or substance of the title, but
to secure the due payment of a given tax.

And here, again, the distinction between the essentials
and the accidentals of the title is glaring and manifest.

The nullity or invalidity of the title, in case the stamp
be not affixed when the alleged title arises, is the sanction
of the law which imposes the tax. But it is clear, that the
law imposing the tax might be sanctioned otherwise : as,
by a fine. In some cases the law imposing a tax on a deed
or evidentiary instrument is sanctioned in the manner which
is now suggested. Although the duty ought to have been
paid, and the stamp affixed to the evidentiary instrument,
when, or immediately after, the alleged title arose, still the
instrument is admissible evidence of the title, if a tax and
penalty be paid, and a stamp be affixed to the instrimient,
subsequently tp the time prescribed for those pm-poses.
And, in this case, the payment of the tax, though stiU
requisite, is no imrt of the title.

In the preceding Lecture, it was observed that wherever
a right or duty commences or is ended through a law icithout
the intervention of n fact distinct from the laiv itself, the
right or duty may be said to arise or be extinguished by the
law, immediately or directly ; or ipso jure. But in the
language of our o^m law, and of other particidar systems
of positive law, these and the like expressions are not used
■with this meaning, but in senses totally different, and which
may be called improper applications of the expressions.

These improper applications may be reduced, I think,
to two.

First, in some cases of title, the title, or one or more of
the several facts constituting the title, is some act done by
the person entitled. But in other cases of title, neither the
title, nor any of the several facts constituting the title, is an
act done by that person. Now where the title is in this
latter predicament, the right or duty has been said to arise,
or to be divested or withdrawn, ' lege immediate ; ' ' ipso
jure ; ' 'by act or operation of law ;' and so on : These and
the like expressions really denoting (not that the right or
duty is invested or divested without the intervention of any
title, but) that the title, by which the right or duty is in-
vested or divested, does not consist of or comprise any act
of the invested or divestej person.

For example : According to the Roman law, heirs of cer-
tain classes, whether they be heirs ex testamento, or heirs ab
inteitato, are not neirs completely, unless they accept the

Lect.
LVI.

Improper ap
plications of
the expres-
sions ex lege
immediati.

1st. Their u=e
to indicate
whether or
not an act of
the^iarty en
titled is part
ot the title.

4^0 Lazv : Purposes and Subjects.

Paut III. heritage. And, accordingly, such heirs are styled voluntary,

> — — ' or are said to acquire by their own act. But on heira of

other classes, the inheritance devolves, whether they wish
it or not, on the decease of the testator or intestate, without
an act of their own. And, accordingly, such heirs are styled
necessary (or heirs necessitated or obliged to take), and are
said to take the heritage ipso jure, or, as we should say, hy
inere operation of laic.

Again Blackstoue says,* that purchase or perquisitio is
distinguished from acquisition by right of blood, and is made
to include all modes of acquisition except inlieritance ;
because in this last case the title is vested in the party, not
by his own act or agreement, but by simple operation of law.
This is clearly a mistake : for according to the law in Black-
stone's time (and still according to the strict theory of law)
the estate where it consisted of land in possession did
not vest until entry. The principle has been of little prac-
tical importance since the change in the law of intestate
succession (3 & 4 W. IV. c. 106 ; 22 & 23 Vict. c. 35, sees.
19 & 20) which makes seizin of the heir unnecessary in
order to the transmission of the right to his own heirs ab
intestato. By the law of Scotland a new seizin (or infeft-
ment) by the heir is necessary in order completely to vest
the succession in him to the effect of rendering his estate
liable to succession duty: Lord Advocate v. Stevenson, House
of Lords, February 1869.

In English laAv by the operation of the 17th section of
the Statute of Frauds acceptance of the goods sold is in
some cases part of the title to the various rights and duties
consequent upon sale. The acceptance is a determination
of the will on the part of the purchaser, with the intention
of keeping the goods as his own.

^^1'ingu?8h Secondly. Another improper application of the expres-

c.riain well sions in question seems to be this :

town es; Certain classes of titles, or of modes of acquisition, have
concise names : as, for example, * occupancy,' ' alienation,'
' prescription,' and so on.

But other classes having no concise names, and not being
expressible without long circimilocutions, they are commonly
lumped up together, and opposed to the classes which have
such names, by the expression ' ex lege.' This is one of the
meanings sometimes annexed to the term by the Roman
law}-ers and by modern Civilians.

These improper applications mostly arise from not con-
sidering that eve?-)/ right and duty must arise and be deter-
mined by law. They are all consequences of law ; but some

• ' Bv inheritance the title is vested in a person, not by his own
act or agreement, but by the single operation of law.'— BlackBton«,

vol. ii. p. 241.

Titles.

441

arise or are divested thi-ougli a title, otliers without the
intervention of any title, and these last can alone l)e said
vdth correctness to arise from the law immediately.

Lect.
LVI.

LECTURE LVII.

Titlei variously classified.

Ox the subject of titles it remains, according to the
purpose sketched out on p. 430 supra, to mark out certain
leading divisions of the titles which properly belong tothe
department of the Law of Things now under consideration :
namely, the titles by which nghts in rem, considered as
existing ;jer se, are acquired or lost, or invested and divested.
Even in considering these titles, it will be necessary to advert
occasionally to titles of other classes.

These various divisions are disparate and cross. They
are various attempts to find a basis for a classification or
arrangement of the various genera and species of titles. It
may indeed be doubted whether any scientific principle of
di-\-ision is practicable or useful : — whether it be not better
to select the principal titles, and then to add a miscellany —
ex lege, in the sense of the modern Civilians adverted to on
p. 440 supra. This is done by Blackstone, the compilers
of the French Code, Ulpian, Bentham. None of them
attempt to reduce in the first instance the whole mass of
titles into a small number of very extensive genera, and then
refer the various subordinate genera and species to them.
They begin by placing on a line a considerable nimiber of
genera which are comparatively narrow ; and some of them
eke out these by a miscellaneous head.

The great difficulty is the mixed character of most of
the titles which occur in every system.

Titlei ex Jure Gentium and ex Jure Civili.

The arrangement of titles in Gains and the Institutes,
mainly founded on this di\"ision. But it is liable to the
objection that modes of acquisition jure civili commonly
consist of facts which are not of the essence of the right,
but are merely accidental : peculiar formalities prescribed by
the law as necessary to the acquisition.

The Institutes absurdly interpose servitudes, which are
ex jure civili, between these two sorts of titles. And the
anomaly is that acquisitions per universitateni are not in-
cluded under either department.

Lect.
LVII.

Titles br
which rlRhtt
in rem are
acquired or
loit.

Tarlous at-
tempt* at
rlasslflcatlon
Doubtful
whether any
■accegsfuL

442 Law : Purposes and Subjects.

> , '- Oitginal and De)tvative Titles.

Investitive events are original or derivative ; i.e. acquired
from the State directly, as in cases of occupancy ; or from or
through a person in whom a right or its subject formerly
resided.

The distinction appears to be confined by some to rights
ex jure gentiuin.

By others it is confined to acquisitions of dominium or

property, preeminently so called, and other jura in rem.

But it is just as applicable to jus in iwrsonam : e.g. assignee

of a contract : succession by heir to rights in 2}erixma7n of

deceased.

^ ''•;__ The distinction appears to be useless, except for this

purpose : that in many cases of derivative titles, the party is

. ^ subject to duties passing from the party from whom his

. right is derived.

Title by descent and title hy purchase.

This is a convenient division in the Law of English Real

..y ■-,- Property, for reasons given by Christian and Blackstone.

(Blackstone, vol. ii. pp. 200, 241-3.) But a di\-ision only

. _ of one class of rights: rights in rebus singulis falling

■- - under the law of real (i.e. in/ieritable) ■pro'pevty.

It would not be a convenient basis for a general division :
And, accordingly, modes of acquiring personal property are
not divided in that manner.

It is not complete, even with reference to real property.

Outline of remainder of Course. 443

OUTLINi: OP REHAIJs'TNG PART OF THE IXTENBED CoiTRSJS,
WHICH, FOR REASONS MENTIOXED ES' THE IXTEOBTJC-
TIOI^", WAS KEVER AC003£PLI9HED,

[Having suggested certain of the leading divisions of the
titles by which jwrrt in rem per se are invested and divested,
the next point in order according to the purpose sketched out
by the author on p. 430 sujyra would be to consider seriatim
certain classes of titles (being especially titles to rights in
reni) which are found in most systems of positive law.
But here the Lectures abruptly break oiF. The last was
delivered on June 20, 1832, after which Mr. Austin was
compelled by ill-health to go abroad. The record indeed
of this last Lecture consists only of notes prepared by the
author for oral discourse, and part of these form the sub-
stance of what is above printed as Lecture LVII. The rest
are too fragmentary to be usefully placed before the student
in the present elementary work. "What here follows, is re-
printed from the * Outline,' published by Mr. Austin in the
original voliune containing ' The ProA'ince of Jurisprudence
Determined.'— R. C]

Law : Purposes and Subjects.

The Right of Possession.

If one person exercise a right residing in another person,
but without authority from the latter, and without authority
from those through whom the latter is entitled, the former
acquires, hy his unauthorized or adverse exercise, the anoma-
lous right which is styled the right of jiossession.

This general description of the right of possession must,
however, be taken with the following limitation. — The
person who possesses adversely, or who exercises the right
of another without the requisite authority, does not acquire
thereby the right of possession, in case his adverse posses-
sion began vi, or arose through any of the means which fall
within the name of violence.

The right of possession must be distinguished from the
right of possessing, or (changing the phrase) from the 7-ight
to possess : for the }-ight of possessing, or the right to possess,
is a property or integi-ant part of' the j-ight of possession
itself, and also of numerous rights which widely differ from
the latter. In other words, the right of possessing, con-
sidered generally, may arise from any of various titles or
causes : but the peculiar right of possessing which is styled
the right of possession, is a right of possessing that arises
exclusively irom the fact of an adverse possession.

Although it arises from actual possession, the right in
rem which is styled the right of possession, must also be
distinguished from the rights in ran which arise from occu-
pation or occupancy. Tor the fact of possessing which is
fctyled occupation or occupancy, consists in the possession of
a something that is res nulling. But the fact of possessing
which gives the right of possession, consists in the adverse
exercise, by the person who acquires the right, of a right
residing in another.

Consequently, the following description of the right of
possession has all the exactness which accords with extreme
brevity. — It is that right to possess (or to use or exercise a
right) which springs from the fact of an adverse possession
not beginning through violence.

As against all but the person whose right is exercised
adversely, the person who acquires the right of possession
is clothed, with the very right which he affects to exercise.
And as against the person whose right is exercised ad-
versely, he may acquire the very right which he affects to
exercise through the title, or mode of acquisition, styled
yrescription. Or (adopting a current but inadequate phrase)

Outline of remainder of Course. 445

the right of possession ripeiis, by prescription, into the
right of dominion or property.

l^ote. — The right of possession strictly and properiy so called,
or the right of possession considered as a substantive right, is a
right that arises exclusively from the fact of an adverse posses-
sion. But the term right of possession is not unfrequently em-
ployed with an extremely large eignificiition. Taking the term
with this very extensive meaning, the right of possession arises
from an actual possession, whether the actual possession he
adverse or not. For example : It is said that the domimts in
actual possession, has a right of possession which arises from
that actual possession, and which is completely independent
of his right of dominion. But (as I shall show in my Lectures)
the right of possession considered as a substantive right, is a
right that arises exclusively from the fact of an adverse posses-
sion: the so called right of possession which arises from an
actual possession not adverse, being a property of another right,
or being an integrant part of another right. For example : It is
absurd to ascribe to the dominus in possession, a right of posses-
sion independent of his right of dominion: for if the dominus
actually possess, it is as dominus that he actually possesses. As
I shall show in my Lectures, the term right of possession a.c(\\\\TeA.
the large signification to which I have adverted above, in conse-
quence of an extension of such possessory remedies as in their
origin were appropriate to parties invested with the right of
possession strictly and properly so called. These possessory
remedies, though originally appropriate to such parties, were
afterwards extended to any possessors who had been wrongfully
disturbed in their actual possessions. In the Eoman Law, for
example, a certain interdict (closely analogous to an actiem of
ejectment) was originally appropriate to parties invested with the
right of possession strictly and properly so called. But it was
extended to the dominus wlio had been wrongfully evicted from
his actual possession. For by resorting to an interdict grounded
on his actual possession, instead of resorting to an action grounded
on his right of dominion, he avoided the inconvenient necessity
of proving his right of dominion, and had merely to demonstrate
his actual possession at the time of the wrongful eviction : just
as a party who is seised or entitled in fee, recovers through an
action of ejectment, from an ejector without title, by merely
proving his actual possession at the time of the wron^ul eject-
ment. And since the dominus recovered by the interdict, on
merely proving his actual possession, he recovered in a certain
sense, through his right of possession merely. But yet it were
absurd to affirm that he had any right of possessing indepen-
dently of his right of dominion ; or to liken the right of possess-
ing which is parcel of the right of dominion, to the substantive
right of possessing which arises solely or exclusively from the
fact of an adverse possession. — The above-mentioned extension
of possessory remedies, has rendered the right of possession one
of the darkest of the topics which the science of jurisprudence

446 La7v : Purposes and Subjects .

Part III. presents. But there is not intrinsically any remarkable diffi-

^■^ 1 — — ' culty in the right of possession ■which is strictly and properly so

called : that is to say, which arises solely or exclusively from
the fact of an adverse possession, and which is the basis of ac-
quisition by usucapion, and of other acquisition by prescription.

At this point of my Course^ I shall therefore proceed in
the following manner.

I shall. analyze the anomalous and perplexed right whicli
is styled the right of possession. Performing the analysis,
I shall happily be able to borrow from a celebrated treatise
by Von Savigny, entitled DasItecM dcs JBesitzes, or De Jure
JPossessionis : of all books upon law, the most consummate
and masterly ; and of all boolvs which I pretend to know
accurately, the least alloyed witb error and imperfection.

Ha\ing analyzed the right of possession, I shall turn to
the title, or the mode of acquisition, wherein the right of
possession is a necessary ingredient : namely, usucapion and
other prescription, I shall consider generally the natm'o of
the title ; and shall advert to the respective peculiarities of
the Roman and English Law, in regard to tbe terms or
conditions whereon the title is allowed. If I find it possi-
ble or prudent to touch that extensive subject, I shall pro-
ceed from title by prescription to the connected subject of
registration.

Eights in personam as existing per se, or as
not combined with rights in rein,*

Rights in personam, including the obligations which an-
swer to rights in j^ersonam, arise from facts or events of
three distinct natures : namely, from contracts, from quasi-
contracts, and from delicts.

The only rights in personam which belong to this sub-
department, are such as arise from contracts and quasi-
contracts. Such as arise from delicts, belong to the second
of the capital departments under which I aiTange or distri-
bute the matter of the Law of Things.

Note. — Perceiving that rights ex delicto ■were generally rights
in personam, but not adverting to the importance of marking
their sanctioning character, the classical Roman jurists, in their
institutional or elementary ■WTitings, arranged them ■with rights
ex contractu and qitasi ex contractu : ■with rights "which also are
rights in personam, but are not bottomed, like rights ex delicto,
in infringements of other rights. And hence much of the
obscurity -which hangs over the Institutes of their imitator, the
Emperor Justinian.

• Ses method of division sketched out in Lect. XLVI. p. 379 supra.

Outline of remainder of Course. 447

The matter of this sub-department will be treated in the
following order.

I. I shall define or determine the meanings of certain
leading expressions : viz. Promise : Pollicitation : Conven-
tion or Agreement : Pact : Contract : Quasi-Contract.

II. Ha^dng defined the meanings of those leading ex-
pressions, I shall consider particularly the nature 01 con-
tracts, t shall distinguish contracts properly so called^
from certain facts or events which are styled contracts, but
which virtually are alienations or conveyances. I shall
distribute contracts under theu* various cksses : expounding
the distinctions (with many other distinctions) between
unilateral and bilateral, principal and accessory, nominate
and innominate contracts. Expounding this last distinc-
tion, I shall show what is meant by the essence, and what
by the accidents of a contract. I shall notice the solemnities
or formalities which are essential to the validity of certain
contracts : and, thereupon, I shall analyze the rationale of
the doctrine of considerations. Finally, I shall turn to the
events whereon, or to the modes wherein, the rights and
obligations arising from contracts, cease or are extinguished.

ill. From contracts, I shall proceed to quasi-contracts :
that is to say, facts or events which are neither contracts
nor delicts ; but which, inasmuch as they engender rights
171 2>ersona77i and obligations, are, in that respect, analoi/ous
to contracts. I shall notice the frequent confusion of merely
quasi-contracts with contracts which properly are such,
although they are tacit or implied. I shall show that
quasi-contracts are analogous to the fancied contracts from
which speculators on government have derived the duties
of the governed: and I shall show the causes of the
tendency to imagine or feign conti'acts, for the purpose of
explaining the origin of duties which emanate from other
sources. I shall advert to the classes of quasi-contracts ;
and to the events whereon, or the modes wherein, the rights
and obligations which they generate, cease or are extin-
guished.

Such of the co7nb{natio77s of rights in rem and
rights in perso77a77i as are pai-ticular and
comparatively simple.*

Though jiLS in re?w, or jus in pe)-sona7n, may exist
separately, or uncombined with the other, both may vest
uno ictu in one and the same party : or (changing the ex-
pression) an event which invests a party with a right in
rem or in 2}e7-sona7n, may invest the same pai-ty with a right
in personam or in re7n. As examples of such events, I may

• See method of division sketched out Lect. XLVL, p. 379 n^pm.

448 Laiv : Purposes and Siibjeds.

Part III. mention the following: namely, a conveyance •with a cove-

*^ 1 nant for title : a hypotheca or mortgage, express or tacit :

a sale completed by delivery, with a warranty, express or
tacit, for title or soundness. And, as I shall show in my
Lectures, many a fact or event which is styled simply a
contract, is properly a complex event compounded of a con-
veyance and a contract, and imparting uno jlatu a right in
rem and in personam.

Such of the combinations of rights in rem and in per-
sonam as are particular and comparatively simple, are the
matter of this sub-department. What I mean by their
particular, or rather their singular, combinationsj as distin-
guished from the universal aggregates which are the matter
of the next sub-department, would scarcely admit of ex-
planation -within the limits of an outline. In order to an
explanation of my meaning, I must explain the distinction
between singular and universal successors, or succession rei
singulce and succession per universitatem : nearly the most
perplexed of the many intricate knots with Avhich tho
science of law tries the patience of its students.

Such universities of rights and duties (or such
complex aggregates of rights and duties) as
arise by universal succession.*

The matter of this sub-department will be treated in the
following order.

I, The complex aggregates of rights and duties, which
commonly are named by modern Civilians, ' universitates
j'uris,^ will be distinguished from the aggregates or collec-
tions of things, which commonly are named by the same
Ci\ilian3^ ' universitates rerum sive facti.^ They ■vs'ill also
be distinguished from the complex and fictitious persons
(or the collective bodies of indi\idual or physical persons),
which are named by the Roman liawyers, universitates or
collegia, and by the "English Lawyers, corporations aggregate.
— The universities of rights and duties, which are the
matter of this sub-department, wiU also be distinguished
from status or conditions. For the aggregates of rights and
duties, capacities and incapacities, which are styled status
or conditions, are, for the most part, ju7-is universitates.

II. Since aU the universities of rights and duties, which
are the matter of this sub-department, arise by universal
succession, the distinction between singular and universal
successors, or succession ?•«' singuke and succession ^^f/'
universitatem, vnM be stated and explained. As I have
already remarked, that knotty distinction would scarcely
admit of explanation within the limits of an outline. But

* See method of division sketched out Lect, XL VI., p. 379 supra.

Oiittine of remainder of Course. 44^

tlie followiug examples may suggest to the reflecting reader,
the character of successors 'per wiiversitatem, "\nth the nature
of the universitates to which such successors succeed. — The
executor or administrator of a testator or intestate, with the
general assignee of a bankrupt or insolvent, are universal
successors. And, in respect of specialty debts due from the
ancestor or de^-isor, the heir or devisee, general or particular,
succeeds per universitatem. The aggregate of rights and
obligations which devolves from the testator or intestate to
the executor or administrator, with that which passes from
the bankrupt or insolvent to the general assignee of his
estate and effects, are universities of rights and duties. And
since all the obligations of a given class, which were due
from the ancestor or devisor, attach at once upon the heir
or devisee, that mass of obligations falls within the notion
of & juris universitas.

For every juris universitas bears one or both of the fol-
lowing characters. First : Where a universitas juris arises
by universal succession, rights residing in, or obligations
incumbent upon, a person or persons, pass uno ictu to
another pereon or persons, and pass in genere and not per
speciem. In other words, they pass or devolve at once or
together, and they pass or devolve as belonging to their
k'lids or sorts, and not as determined by their specifc or
■individual natures. Secondly : Whatever be its origin, a
universitas juris, so far as it consists of rights, is of itself (or
considered as abstracted from its component particulars),
the subject of a right m 7-e)n. The party invested with a
universitas ju?'is, has a right in the aggregate availing
against the world at large, even though all the rights
which are constituent elements of the aggregate, be merely
rights in 2}ersonam, or availing against persons determinate.
— I shall show in my Lectures, that every status or condition
which is not piu-ely bm'theusome, bears the last of these
marks, and therefore is jui-is universitas. I shall also explain
in my Lectures, why the right in rem over & juris universitas
(considered as abstracted from its component particulars)
stands out conspicuously in the Roman Law, and is far
less obvious in the English.

The legatee of a specific thing, the alienee of a specific
thing by transfer inter vivos, or the assignee of a given bond
or other contract, are singular successors, or successors ret
singula,

III. From the generic nature of universitates jwis, and
the peculiar nature of such of them as arise by universal
Buccession, I shall proceed to such of these last as are the
matter of this sub-department. Now univeisitates juris
which devolve to universal successors, and which are
the matter of this sub-department, are cf two kinds :
]. Untvei'sitates juris devolving from the dead as such:

450 Law : Pici'poses and Subjects.

Part III. 2. Universitates jwis devolving from the living, or devolv-

^— — • ' ing from the dead, but not from the dead as such. And

those tTvo kinds I shall consider in that order.

Universal successors succeeding to the dead as such, take
ah intestato or ex testamento. Accordingly, I shall explain
universal succession ah intestato, and imiversal succession
ex testamento. And to exemplify my explanation of the
distinction, I shall compare the characters of the Roman
hcBves legitimus, of the English administrator and next of kin,
and of the English heir: of the Roman ^«;-es testamentarius,
of the English executor and residuary legatee, and of the
English devisee general or particular.

Note. — By the English lawyers, rea^ rights (property in things
real, or real property) are distinguished from personal rights
(property in things fersonal, or personal property). These two
classes of rights blend at so many points, that the difference be-
tween them cannot be described correctly in generic and concise
expressions. A correct description of the difference between the
two classes of rights, would involve a complete description of the
several or various rights which belong to those classes respec-
tively. Of the generic and concise descriptions which the differ-
ence in question will take, the following, I incline to believe, is
the least remote from the truth. Keal rights (property in things
real, or real property) are rights which are inheritable : which
(where they are transmissible to representatives) devolve ab
intestato to heirs. Personal rights (property in things personal,
or personal property) are rights which are 7iot inheritable : which
(where they are transmissible to representatives) devolve ab
intestato to administrators (or next of kin). The difference,
therefore, between real and personal rights, mainly consists in
this. According to the English law, succession ab intestato is of
two descriptions : namely, succession by heirs (strictly and
technically so called), and succession by administrators (or next
0/ kin). Eights devolving ab intestato to successors of the former
description, are real : rights devolving ab intestato to successors
of the latter description, are -personal. It were easy to demon-
strate, that the division of rights into real and personal (or the
division of property into real and personal) does not quadrate
■with the division of things into things immoveable and things
moveable : It were also easy to demonstrate, that it does not
quadrate with the division of things into things which are subjects
of tenure and tilings which are not. As I have remarked already,
the division of property into real and personal, is not susceptible
of a precise generic description. He who would know precisely
the meaning of the division in question, must m;ister all the
details which each of its compartments embraces. Or (changing
the expression) the various details which each of its compart-
ments embraces, are not connected by a common character or
property, but form a heap, inevitably incondite, of heterogeneous
particulars. This needless distinction between real and personal
property, which is nearly the largest of the distinctions that the
Law of England contains, is one prolific source of the unrivalled

Outline of remainder of Course. 45 1

intricacy of the system, and of its matchless confusion and
obscurity. To the absence of this distinction (a cause of eom-
plexness, disorder, and darkness, -which naught but the extirpa-
tion of the distinction can thorougldy cure), the greater compact-
ness of the Eoman sj-stem, y;\\\\ its greater symmetry and clear-
ness, are mainly imputable. There is not, indeed, iu the Roman
jurisprudence, the brevity and harmony of parts, with the con-
sequent lucidity and certainty, which are essential to a system of
law that were worthy of the prostituted name : a system of law
that were truly a guide of conduct, and not a snare in the way of
the parties bound to observe its provisions. But, this notwith-
standing, the Roman Law (mainly through the absence of the
distinction between real and personal property) is greatly and
palpably superior, considered as a system or whole, to the Law
of England. Turning from the study of the English to the
study of. the Roman Law, you escape from the empire of chaos
and darkness, to a world which seems by comparison, the region
of order and light.

The distinction of the English Lawyers, between real and
personal riglits, is peculiar to the systems of positive law which
are mainly bottomed in feudal institutions. As I have stated
already, there is not in the Roman Law the faintest trace of it.
According to the Roman Law, rights devolve ah intcstato agree-
ably to a iiniform and coherent scheme. It is true that rights
are distinguished by most of the modern Civilians, into jura
realia and jura personcJia: and that this distinction of rights
int.0 jura realia and jtir a iKrsotialia, obtains in every system of
particular and positive law, which is an offsefor derivative of
the Eoman. But the distinction of the modern Civilians, be-
tween jura realia and jura personalia, is equivalent to the dis-
tinction made by the same Civilians, between jura in rem and
jura in personam ; and it is also equivalent to the distinction,
made by the Roman Lawj-ers, between dominia (with the larger
meaning of the term) and obligationes. Real rights (in the sense
of the English lawj'ers) comprise rights which are personal as
well as rights which are real (in the sense of the modern
Civilians) : and personal rights (in the sense of the former) com-
prise rights which are real as well as rights which are personal
(in the sense of the latter). The difference between real and
personal rights (as tlie terms are understood by the modern
Civilians) is essential or necessarj'. It runs through the Eng-
lish Law, just as it pervades the Roman : although it is obscured
in the English, by the multitude of wanton distinctions which
darken and deform the system. But the diflFerence between real
and perso7ial rights (as the terms are understood by the English
Lawyers) is purely accidental.

And since this difference is purely accidental, it is not in-
volved by general jurisprudence: for general jurisprudence, or
the philosophy of positive law, is concerned with principles and
distinctions which are essential or necessary. Accordingly, I
shall touch upon the difference in a merely incidental manner,
and merely to illustrate principles and distinctions which the
ecope of general jurisprudence properly embraces.

452 Laiv : Purposes and Subjects.

P VRT 111. Succession to the subject of a specific, or other particular

'—• — » — -' legacy, is succession rei singulce : and it therefore belongs
logically to one or another of the three foregoing sub-de-
partments. But since such succession, although it be
singular, is succession ex testamento, it could not be con-
sidered, under any of those sub-departments, -vs-ithout an
inconvenient anticipation of the doctrine of testaments.
Accordingly, succession to the subject of a specific, or other
particular legacy, will be considered at this point of this
sub-department. For a similar reason, the entnils and ti^st-
substitutions of the English and Eomau Law, -wall be post-
poned to the same point. According to the Eoman law, the
person who takes ^•i^tuaUy by a trust-substitution is always,
in effect, successor sincfularis : but the subject of a trust-
substitution is either a juris universitas or a res singula.
According to the same system, every trust-substitution is
created by testamentary disposition. And, according to the
Law of England, an entail is created by testament or will,
as well as by act inter vivos. I therefore shall find it expe-
dient to postpone substitutions and entails, until I shall have
passed in review the nature of a juris universitas, and of
succession, universal and singular, ex testamento. In libera
republicd, and under the earlier Emperors, every disposition
suspending the vesting of its subject, and almost eveiy dispo-
sition restraining the power of alienation, was prohibited by
the Roman Law ; and such dispositions of the kind as it
afterguards allowed, were created exclusively by testament or
codicil, and in the circuitous and absurd manner of a Jidei-
commissum. Consequently, as succession ex testatnento will
lead me to entails, so will entails conduct me to the nature
of trusts : that is to say, to the nature of trusts in general,
as well as to the Jiclei-commissa which are peculiar to the
Roman Law, and to the uses and trusts (an ofi'set of those
Jidei-commissa^ which are peculiar to the liaw of England.

Having treated of universal successors succeeding to the
dead as such, I shall treat of univei'sal successors succeeding
to the living, or succeeding to the dead, but not to the dead
as such. And treating of universal successors of those
generic characters, I shall consider particularly the succes-
sion jaer universitatein which obtains in cases of insolvency
and of the consequent cessio bonorutn.

Note. — In this sub-department of the Law of Things, I shall
consider imiversal succession as it obtains generallj/. In other
words, I shall consider universal succession abstracted from
persons, in so far as persons are invested with status or conditions.

In some cases of universal succession, the succession is the
consequence of certain status or conditions, or supposes the pre-
existence of certain status or conditions : and in other cases of
universal succession, certain parties are invested with conditions

Outline of remainder of Course. 453

in consequence of the succession itself.' As examples of universal
succession, the effect or cause of conditions, I adduce the follow-
ing cases from the Eoman and English Law: namely, universal
succession ah intestate or ex testavtxnto, to the rights and obliga-
tions of a frecdmaii : universal succession, by the adopting
father, to the rights and obligations f an adrogated son ; uni-
versal succession by the general assignees or trustees, to the
rights and obligations of an insolvent trader. For through a
distinction built on an essential difference, but earned to need-
less length and breeding needless complexness, the Law of
England, find of other modern nations, severs the insolvency of
traders from other insolvency, and makes it the subject of a
peculiar system of rules.

Now where universal succession is the effect or cause of con-
ditions, it ou";ht to be excluded from the Law of Things, and
treated with the conditions from which it emanates, or of which
it is the fountain or spring.

But in spite of that exclusion, the consideration of the
universal succession which is matter for the Law of Things,
involves large anticipations from the Law of Persons. For
example : Succession ab intestato cannot be explained completely,
without an explanation of consanguinity, or of cognaCion {sensu
latiore) : whilst consanguinity cannot be explained completely,
without a large anticipation from the law of marriage, or a long
reference forward to the status of husband and wife. Wearing
the peculiar form which it takes in the Eoman Law, succession ab
intestato cannot be explained completely, without an explanation
of cognation {sensu latiore), of the relation styled agnation, and
also of that cognation which is contradistinguished to agnation,
and which therefore differs from cognation (in the larger meaning
of the term). But since the relation styled agnation results from
the patria potestas, the consideration of the Roman succession ab
intestato, involves a double reference to the Law of Persons :
namely, a reference to the status or conditions of pater etfilius
familias, as well as to the status or conditions of husband and wife.

As I shall show in my Lectures, that portion of the Law of
Things which is concerned with universal succession, is more
implicated than any other with the Law of Persons or Status.
If, indeed, it were closely analyzed, the whole of that portion of
the Law of Tilings might be found to consist of matter belonging
logically to the Law of Persons, but interpolated in the Law of
Things, for the sake of commodious exposition.

As I treat of universal succession to intestates, testators, and
insolvents, another implication of the parts of my subject will
compel me to draw upon the second of those two capital depart-
ments under which I arrange or distribute the matter of the Law
of Things. For rights and obligations arising from delicts
devolve or pass, in company with others, to the universal suc-
ces^ors, or general representatives, of intestates, testators, and
insolTents.

454 Law : Purposes and Subjects.

Part III.

^^ ■ "' Sanctioning Rights, with . sctnctionmg Duties (relative and
absolute) : Delicts or Injuries (which are causes or ante'
cedents of sanctioning rights and duties) included.*

This is the second of the capital departments under
•which I arrange or distribute the matter of the Law of
Things.

Before I proceed to the sub-departments under which I
distribute the subjects of this second capital department, I
shall distinguish delicts into civil injuries and crimes: or
(what is the same process stated in different expiessions) I
shall distinguish the rights and duties which are effects of
civil delicts, from the duties, and other consequences, which
are effects of criminal.

Having expounded the nature of tlie distinction between
civil and criminal delicts, I shall distribute the subjects of
this second capital department under two sub-departments.
— 1. Rights and duties arising from civil injunes. 2.
Duties, and other consequences, arising from crimes.

Rights and duties arising from civil injuries.

The matter of this sub-department wiU be treated in the
following order.

I. Ci^il injuries wiU be classed and described with
reference to the rights and duties whereof they are respec-
tively infringements.

II. Rights arising from civil delicts are generally rights
in personam : that is to say, rights availing against persons
certain, or rights answering to duties incmubent on deter-
minate persons.

The rights arising from civil delicts, including the rela-
tive duties answering to those rights, I distribute under two
departments : each of Avhich two departments immediately
severs into various sub-departments.

The division of those rights into those two departments,
rests upon a principle of division which may be stated thus :
namelj', the differej^ce between the natures of the rights and
duties whereof civil delicts are respectively infringements.
Accordingly, rights arising from ci^^'il delicts whicli are in-
fringements of rights in ran, are the subjects of the first
department. Rights arising from civil delicts which are in-
fringements of rights in 2Jcrsonam, are the subjects of the
second department.

The various sub-departments into whicli those two de-
partments immediately sever, rest upon a principle of
division which may be stated thus : namely, the respective

* See p. 374, supra.

Outline of remainder of Course. 455

differences betTS'een the immediate purposes ■which the
rights and duties arising from civil delicts are respectively
c-idculated to accomplish.

Note. — In the language of the Roman La-w, the term delict,
as applied to civil injm-ies, is commonly limited to civil injuries
which are infringements of rights in rem. Violations of rights
ill! personam, or breaches of contracts and quasi-contracts, are
not commonly styled delicts or injuries, and are not commonly
considered in a peculiar or appropriate department. In the In-
stitutes of Gains, as -well as in those of Justinian, they are con-
sidered -with contracts and quasi-contracts, or with the primary
rights in personam of which they are infringements.

In the language of the English Law (here manifestly borrow-
ing the language of the Eoman), the term delict (in so far as the
term is employed by English Lawyers) is also limited to civil
injuries which are infringements of rights in rem. Remedies by
action are not unfrequently distinguished into actions ex delicto
and actions ex contractu. The former are remedial of injuries
which are infringements of rights in rem : the latter are reme-
dial of breaches of contracts, and of breaches of quasi-contracts.
Such, at least, is the nature of the distinction as conceived and
stated generally. The various classes of actions having been
much confounded, the foregoing general statement of the nature
or rationale of the distinction, must be taken with mimeroua
qualifications. For example : In case, strictly so called, tlie
general issue is not guilty, and the ground of the action is pro-
perly a tort : that is to saj-, the ground of the action is properly
a delict (in the narrower signification of the term to which I
have now adverted). But, this notwithstiinding, the action is
frequently brought on breaches of contracts, and on breaches of
quasi-contracts. The department of the English Law which re-
lates to rights of action, is signally impressed with tlie disgrace-
ful character of the system : namely, a want of broad and
precise principles ; and of large, clear, and conspicuous
distinctions.

In the language of the Roman Law, the term delict has
another and a larger meaning : being co-extensive with the term
injury, and signifying any violation of any right or duty. This
is the meaning with which I employ the term, unless I employ
it expressly with its narrower signification.

Agreeably to the principles of dinsion which I have
stated or suggested above, the rights arising from civil
delicts, including the relative duties answering to those
rights, "vs"ill be distributed under the two departments, and
the various sub-departments, which are sketched or indi-
cated below.

1. Rights arising from civil delicts which are infringe-
ments of rights in rem, are the subjects of the first depart-
ment : which first department immediately severs into the
four folio-wing sub-departments.

i. If the user of a right in rem be prevented or hindered

456 Law : Purposes and Subjects.

Part III. presently, and the preventive caiise or hindrance can be re-

' > — -' moved or abated, the party injured by the prevention or

hindrance, may be restored to the ability of exercising the
right freely. Rights to such restoration are of two kinds.
Some, and most, are rights of action : but others are exer-
cised extra-judiciaUy, and are matter for justification. A
right of action to obtain possession of a house, or to pro-
cure the abatement of a nuisance which hinders the user
of the house, is a right of the former liiud. A riglit of
recapturing -without resorting to action, is a right of the
latter kind. — Rights to such restoration, which might be
styled significantly and shortly, ' rights of vindicr.tion,' are
the subjects of the first sub-department.

ii. If a violated right in rem be virtually annihilated by
the injury, the only remedy of which the case will ad;uit is
satisfaction to the injured party. "Wliere a prevention or
liindrance opposed to the user of a right, has been with-
drawn, or has otherwise ceased, satisfaction to the injured
party for the past prevention or hindrance is the apt or
appropriate remedy. And, generally, the apt or appropriate
remedy for a 2}(ist delict is satisfaction or compensation to
the injured party for the damage or inconvenience which
the party has suffered through or in consequence of the
oftence. — Rights to satisfaction, pecuniary or other, are the
subjects of the second sub-department.

iii. If the user of a right in rem be prevented or hindered
presently, the party injured by the prevention, or hindrance,
has commonly a right to satisfaction for damage or incon-
venience, as weU as a right of restoration to the ability of
free exercise. — Rights of vindication combined with rights to
satisfaction, are the subjects of the third sub-department.

iv. AVhere an offence is merely incipient or impending,
the offence may be stayed or prevented. For example : For-
cible dispossession is prevented, and waste is prevented or
stayed, by an interdict or injunction : or if I be threatened
with an instant assault, I may prevent the approaching in-
jury by repelling the assailant. — Rights of preventing or
Btapng, judicially or extra-judiciaUy, impending or incipient
offences against rights in 7-em, are the subjects of the fourth
sub-department.

2. Rights arising from ci\il delicts which are infringe-
ments of rights in personam, are the subjects of the second
department : which second department immediat/ily severs
into the three following sub-departments. — First : Rights of
compelling, judicially or extra-iudicially,the specijic perform-
ance of such obligations as arise from contracts and quasi-
contracts : e.y. A right of compelling performance by action
or suit : A right to an interdict or injunction, for the purpose
of preventing the obligor or debtor from evading the fulfil-
ment of the obligation : A right of retainer or detention, by

Ouilijie of remainder of Course. 457

the creditor or obligee, of a thing or person which belongs
to the obligor or debtor, but on which the obligee or creditor
has expended money or labour. — Secondly : Rights of ob-
taining satisfaction, in lieu of specific performance, wher<^
obligees or creditors are content with compensation, or
where specific performance is not possible, or Avhere specific
performance would not be advantageous to creditors, or
would be followed by preponderant inconvenience to obli-
gors or debtors. — Thirdly : Ilights of obtaining specific
performance in part, with satisfaction or compensation for
the residue.

Note. — I here shall analyze the principles whereon specific
performance is rationally compelled. The caprices of the
English Law with regard to specific performance, and with
regard to the connected matter of recovery in specie, I shall try
to explain historically.

Travelling through the rights which arise from ci\dl
injuries, I shall note the respective applicability of those
various remedies to the various cases of injury previously
classed and described.

III. Having classed and described civil injuries, and
treated of the rights and duties which civil injuries engender,
I shall consider the modes wherein those rights are exercised,
and wherein those duties are enforced. In other words, I
shall consider civil procedure.

Now the pursuit of rights of action, with the conduct of
the incidental defences, are the principal matter of that de-
partment of jurisprudence. The consideration of which
matter will involve a consideration of the following prin-
cipal, and of many subordinate, topics :

The functions of judges and other ministers of justice.

The rationale of the process styled pleading, with the
connected rationale of judicial evidence.

Judicial decisions, witli tlieir necessary or more usual
concomitants : namely. The interpretation or construction of
statute law, or law established in the properly legislative
mode: The peetdiar jn'ocess of induction (not unfrequently
confounded with the interpretation of statute law) through
which a rule made by judicial legislation, is gathered from
the decision or decisions whereby it was established : The
application of the law, be it statute law or a rule made judi-
cially, to the fact, case, or sjjecies obveniens, which awaits
the solution of the tribunal.

The judgments, decrees, or judicial commands, which
are consequent on judicial decisions. Appeals. Execution
of judgments.

Judgments considered as modes of acquisition : that is to
sav, not merely as instruments by which rights of action are

458 Law : Purposes and Subjects.

Pakt III. enforced, but as causes of iJterior rights : e.g. as causes of
'' liens, or tacit mortgages, given to plaintiffs on lands or move-

ables of defendants.

Sucb judgments or decrees as virtually are mere solem-
nities adjected to conveyances or contracts. The explana-
tion of whicb solemnities will involve an explanation of tlio
distinction between voluntary and contentious juiisdiction.

Note. — A right -H-hich arises from a jiulgment is often distinct,
from the right of action 'wliich is pursued to judgment and
execution. Arising directly from the judcfincnt, it arises not
from the injury -which is the cause of the right of action, as from
a mode of acquisition. Consequently, rights of tlro kind ought
in strictness to be classed "v\i:h rights which I style 'primary:
that is to say, with rights which do not arise from delicts or
offences. But the classing them with primary rights were
followed Ly this inconvenience : that the -wTiter were unable to
explain them in a satisfactory manner, unless he anticipated the
doctrine of injuries, of rights arising from injuries, and of civil
procedure.

As certain rights arising from judgment should in strictness
be placed under a foregoing head, so should ' the functions of
judges and other ministers of justice' be placed under a follow-
ing : namely, the Law of Persons. But if this matter, which
logically belongs to that following head, were not anticipated
under the present, the exposition of civil procedure would bo
incomplete.

Whoever reads and reflects on the arrangement of a corpus
Juris, must perceive that it cannot be constructed with logical
rigour. The members or parts of the arrangement being ex-
tremely numerous, and their common matter being an organic
whole, they can hardly be ojjposcd completely. In other words,
the arrangement of a corpus Juris can hardly be so constructed,
that none of its members shall contain matter which logically
belongs to another. If the principles of the various divisions
were conceived and expressed clearly, if the departments result-
ing from the divisions were distinguished broadly, and if the
necessary departures from the principles were marked conspicu-
ously, the arran4,'ement would make the approach to logical com-
pleteness and correctness, which is all that its stubborn and
reluctant matter ^vill permit us to accomplish.

Duties, and other consequences, arising from
oimes.

This is the second sub-department of the second of the
capital departments under which I arrange or distribute the
matter of the I^aw of Things.

The matter of this sub-department will be treated in the
following order.

I. Duties are relative or absolute. A relative duty is
implied Ijy a right to which that duty answers. An abso-
lute duty does not ans^ver, or is not implied by, an aiiswer-
insr right.

Outline of rcinaiiider of Course. 450

As an example of an absolute duty, I may meution a
duty to forbear. Ijom cruelty to any of the lower animals.
For a necessary element of a right (implying' or answering
the duty) is wanting. There is no person, individual or
complex, towards or in respect of whom the duty is to he
observed.

I have adduced the foregoing example of an absolute
duty, on account of its extreme simplicity, and of the bre-
vity with which it may be suggested. But, as I shall show
in my prelinaiuary Lectures, absolute duties are very numer-
ous, and many of them are very important. As I shaU also
show in my preliminaiy Lectures, there are three cases
wherein a duty is absolute, or wherein it answereth not to
an answering right ; wherein it answers to nothing which
we could call a right, unless we gave to the term so large
and vague a meaning, that the term would denote, in effect,
just nothing at all. The three cases may be stated briefly,
in the following manner. — The duty is absolute, in case there
be no person, indi-sidual or complex, towards or in respect
of whom the duty is to be observed. The dut}- is absolute,
in case the persons, towards or in respect of whom the duty
is to be observed, be uncertain or indeterminate. The duty is
absolute, in case the only person, towards or in respect of
whom the duty is to be observed, be the vwnarch, or
sovereirpi number, riding the given community.

Now absolute duties, like relative duties, are primaiy or
sanctioning: that is to say, not arising fi-om injuries, or
arising from injiu'ies. Again : Primary rights, A^-ith the
primary relative duties which respectively answer to those
rights, are the only subjects of the capital department to
which I have given the title of ^primary rights and duties.'
But primary absolute duties ought to be placed somewhere.
And though the present sub-department be a member of the
capital department to which I have given the title of ' sanc-
tioning rights and duties,' primaiy absolute duties may be
placed commodiously here. For infringements of duties
primary and absolute, belong to the class of delicts which
are stv'led crimen.

Accordingly I shall here interpolate a description of the
primary absolute duties which are not appropriate subjects
for the Law of Persons. As I have already remarked, such
interpolations of foreign matter cannot be avoided always.

II. Ha-\-ing interpolated a brief description of primary
absolute duties, I shall class and describe crimes (be they
breaches of primary absolute, or of primary relative duties),
vriih reference to the rights and duties whereof they are
respectively infringements.

III. Having classed and described crimes, I shall briefly
touch upon the duties (all such duties being absolute)
which arise from crimes, I shall also notice briefly those

X2

A6o Lata: Purposes and Siibjccts.

Part III. consequences of crimes wliicli are styled, strictly and pro-

""^ * ' perly, punishmejits.

TV. I shall advert to criminal procedure, with what may
be called, by a strict application of the name, police. In
other words, I shall advert to the modes wherein crimes
are pm-sued to punishment, with the precautions which may
1)0 taken to prevent them.

LAW OF PERSONS.

Having made an attempt, at a previous point of my
Ooiu-se,* to determine the notion of status or condition,
I shall enter the department of law which is styled the Law
of Persons, with an attempt to distribute status or condi-
tions under certain principal and subordinate classes.

Accordingly, I shall divide conditions into p)-ivate and
political. — I shall divide private conditions into domestic (or
oecmiomical) and iirofessional. — Certain conditions nearly re-
lated to the domestic, I shall place with the latter : styling
the former, by reason of the analogy through which they are
so related, quasi-domestic conditions. — Certain conditions
which will not bend to my arrangement, I shall place on a
line -v^nth private and political conditions, and shall style
anomalous or miscellaneous.

My arrangement, therefore, of status or conditions wUl
stand thus :

I shall distribute conditions under three principal classes :
L lVu-(7^e conditions : 2. Political conditions : 3. Anomalous
or viiscellancous conditions. And I shall distribute private
conditions under two subordinate classes: 1. Domestic (or
iBconomical) and quasi-domestic conditions : 2. Professional
conditions.

I^otc. — According to the jurists of ancient Eome, and to tlie
jurists of the modern nations whose law is fashioned on tlie
Eoman, the capital or leading division of the entire corpus Juris
is the division of jus into puUicum and j)rivatv.m. In other
words, positive law (considered with reference to its different
purposes and subjects) is divided by those jurists, at the outset
of the division, into ]}iihUc and private.

Now the name pubHc law has two principal significations :
one of which significations is large and vague ; the other, strict
and definite.

Taken with its large and vague signification, the name will
apply indifferently (as I shall show in my Lectures) to law of

• See Lecture XL. svpra, and following Lectures.

Oulliiic of remainder of Course. 461

every department. The various ■nriters, therefore, who t<ike it
with that signification, determine the province of public law in
various and inconsistent ways. According to some, the province
of public law comprises political conditions, together with civil
procedure, and the law which is styled criminal : that is to say,
the department of law which is concerned with crimes ; with the
duties arising from crimes ; with the punishments annexed to
crimes ; and with criminal procedure and preventive police.
According to others, the province of public law embraces criminal
law, but excludes civil procedure. According to others, its pro-
vince rejects both. Whilst others (confounding positive law and
positive morality) extend its province to the so-called law of
nations, as well as to civil procedure and to the law which is
styled criminal. But in one thing all of them agree. All of
them distribute the entire corpus juris under two principal and
contradistinguished departments: name]y, jus publicum and jus
privatum. And, consequently, all of them contradistinguish
their so-called public law to the two principal and opposed de-
partments of their so-called private law : namely. The Law of
Persons and The Law of Tilings. Now, as I shall show in my
Lectures, this notable division and arrangement of the corpus
juris is erroneous and pregnant with error: springing from a
perplexed apprehension of the ends or purposes of law, and
tending to generate a likw apprehension in the helpless and
bewildered student. As I shall show also, every department of
law, viewed from a certain aspect, may be styled private ; whilst
every department of law, viewed from another aspect, may be
styled public. As I shall show furtiier, public law and private
law are names which should be banished the science ; for since
each will apply indifferently to every department of law, neither
can be used conveniently to the purpose of signifying any. As
I shall show, moreover, the entire corpus juris ought to be
divided, at tke outset, into Law of Things and Law of Persons ;
whilst the only portion of law that can be slyled public law with
a certain or determinate meaning, ought not to be contradistin-
guished to the Law of Things and Persons, but ought to be
inserted in the Law of Persons, as one of its limbs or members.

Taken with its strict and definite signification, the name
public law is confined to that portion of law which is concerned
with political conditions. Accordingly, I take the name with
that its determinate meaning, and I deem that portion of law, a
member of the Law of Persons. But, to obviate a cause of mis-
conception, I style that portion of law. The Law of Political
Status, or the Law of Political Conditions : suppressing the
ambiguous names of public and private law along with that
groundless division of the corpus juris which those opposed
names are commonly employed to signify. For, as I have
intimated above, the Law of Political Status, like every other
portion of the entire corpus juris, might be styled with perfect
propriety, public or private: public, when viewed from a certain
aspect ; private, when A-iewed from another.

In rejecting the division of law into public and private, in
rejecting the names by which the division is signified, and in
classing political conditions with conditions of other natures, I

462 Laiv : Purposes and Subjects.

Part III. am justified by the groat authority of our own admirable Hale,
*"— — ■ — -^ as well as by the cogent reasons whereon I shall insist in my
Lectures. In his Analysis of the Law of England (or rather of
the Law of England, excepting the criminal part of it), he classes
political conditions (or ' political relations ') with the private
conditions (or ' relations ') which he styles ceconomical. Nor can
I discover in any nook of his treatise the slightest trace of the
perplexed apprehension which is the source of the division of
law into public and private. Even in adverting to criminal
delicts, where it was most likely that he would fall into the error,
he avoids it. Unlike his imitator, Blackstone, who calls them
public wrongs, he styles them criminal wrongs, or matter for
Pleas of the Crown : hitting precisely by the last expression the
basis of the division of wrongs into civil injuries and crimes.
We scarcely can estimate completely the originality and depth
of his Analysis, unless we compare it closely with the Institutes
of Gains or Justinian, and unless we look vigilantly for the
instructive but brief hints which abound in every part of it.
The only gross mistakes that I have found in his masterly out-
line are his glaring and strange mistranslation of ^jus personaruvi
et reriun,' and his placing under tlie department assigned to the
status of persons, certain rights of persons which he styles their
absolute rights. Seeing that all rights are rights of persons, and
seeing that things are merely sv.hjccts of rights, it is clear that
the genuine meaning of 'jus personarum et rerum ' is not very
happily rendered by ' rights of persons and things.' And as to
absolute (commonly denominated natural or innate) rights, they
are not matter for the Law of Status, but belong preeminently
and conspicuously to the contradistinguished department. Eut,
in justice to this great and excellent person, I must add that
the former mistake is verbal rather than substantial. Unlike
the imitator Blackstone, with his ^rights of persons and things,'
Hale seizes, for the most part, the genuine meaning of the dis-
tinction, though he thickens the obscurity of the obscure phrases
by whicli the modern Civilians usually express it. — In rejecting
the division of law into public and private, and in classing
political with other conditions, Hale, 1 believe, is original and
nearly singular. In an Encyclopedia by Falck, a professor of law
at Kiel, it is said that the authors of the Danisli code, with those
of the Danish writers who treat law systematically, observe, in
this respect, the arrangement observed by Hale. But in all the
treatises by Continental Jurists which liaA-e fallen nnder my
inspection, law is divided into public and private, though tht
province of public law is variously determined and described.

It is true that Sir William Blackstone also rejects that
diAnsion, and also considers the law which is concerned with
political conditions a member of the Law of Persons. But the
method observed by Blackstone in his far too celebrated Com-
mentaries, is a slavish and blundering copy of the very imperfect
method which Hale delineates roughly in his short and un-
finished Analysis. From the outset to the end of his Comment-
aries he blindly adopts the mistakes of his rude and compendious
model, missing invariably, with a nice nnd surprising infelicity,
the pregnant but obscure suggestions which it proffered to his

Outline of remainder of Course. 4^3

attention, and which m-ouIcI have guided a discerning and
inventive WTiter to an arrangement comparativelyjust. Neither
in the general conception, nor in the dettiil of his book, is there
a single particle of original and discriminating thought. He
had read somewhat (though far less than is commonly believed) ;
but he had swallowed the matter of his reading, without choice
and without rumination. lie owed the popularity of his book to
a paltry but effectual artifice, and to a poor, superficial merit.
He truckled to the sinister interests and to the mischievous pre-
judices of power ; and he flattered the overweening conceit of
their national or peculiar institutions, which then was devoutly
entertained by the body of the English people, though now it is
happily vanishing before the advancement of reason. And to
this paltry but effectual artifice lie added the allurement of a
style which is fitted to tickle the ear, though it never or rarely
satisfies a severe and masculine taste. I'or that rhetorical and
prattling manner of his is not the manner which suited the
matter in hand. It is not the manner of those classical Eoman
jurists who are always models of expression, though their mean-
ing be never so faulty. It differs from their unaffected, yet apt
and nervous style, as the tawdry and flimsy dress of a miUiuers
doll, from the gracefid and imposing nakedness of a Grecian
statue.

Having distributed status or conditions under the prin-
cipal and subordinate classes mentioned above, I shall
consider tbem particularly in the following order and
manner.

I. I sball review domestic and quasi-domestic conditions :
describing the rights and duties, capacities and incapacities,
of wbicb they are constituted or composed : and also de-
scribing the events by wbicb persons are invested witli
them, or are divested of tbem. — Of these conditions the
following are tbe principal : namely, The conditions of
Husband and Wife : of Parent and Child : of Master and
Slave : of Master and Servant : of Persons wbo by reason
of tbeir age, or by reason of their sex, or by reason of
infirmity arising from disease, require, or are tbougbt to
require, an extraordinary measure of protection and restraint.

Having reviewed domestic and quasi-domestic condi-
tions, in the manner wbicb I have now suggested, I sball
review professional conditions (tbe other leading class of
private conditions), in a similar manner.

II. Having reviewed private conditions, in the manner
suggested above, I sball review, in a similar manner, poli-
tical conditions : that is to say, tbe status or conditions of
subordinate political superiors. Of tbe classes of persons
bearing political conditions, tbe following are tbe most
remarkable. 1. Judges and other ministers of justice. 2.
Persons whose principal and app^-opriate duty is the defence
of tbe community against foreign enemies. 3. Persona

464 Latv : Purposes and Subjects.

Part III invested with rights to collect and distribute the revenue of

*~ — > — —' the State. 4. Persons commissioned by the State to instruct
its subjects in religion, science, or art. 5. Persons com-
missioned by the State to minister to the relief of calamity :
e.g. overseers of the poor. 6. Persons commissioned by the
State to construct or uphold works which require, or are
thought to require, its special attention and interference : e.g.
roads, canals, laqueducts, sewers, embankments.

Note. — Before I dismiss the matter of the present article, I
•Nrill request the attention of the reader to the folk-^ving explana-
tory suggestions.

1. The monarch properly so called, or the sovereign number
in its collegiate and sovereign capacity, is not invested with a
status (in the proper acceptation of the term). A status is com-
posed or constituted of legal rights and duties, and of capacities
and incapacities to take and incur them. Now, since they are
merely creatures of the positive law of the commimity, and
since that positive law is merely a creature of the sovereign, we
cannot ascribe such rights and duties to the monarch or sovereign
body. We may say that tlie sovereign has powers. We may
Bay that the sovereign has rights conferred by the Law of God;
that the sovereign has rights conferred by positive morality ;
that the sovereign is subject to duties set by the Law of God ;
that the sovereign is subject to duties which positive morality
imposes. Nay, a sovereign government may have a legal right
against a subject or subjects of another sovereign government.
But it cannot be bound by legal duties, and cannot have legal
rights against its own subjects. Consequently, a sovereign
government of one, or a sovereign government of a number in its
collegiate and sovereign capacity, is not invested with a status
(in the proper acceptation of the term) ; or it is not invested
with a status (in the proper acceptation of the term) derived
from the positive law of its own political community.

For the sake, however, of shortness, but not without im-
propriety, we may say that the sovereign bears a status com-
posed or constituted of powers. And, by reason of the intimate
connexion of that improper status with the status (properly so
called) of subordinate political superiors, I shall consider the
powers of the monarch, or the powers of the sovereign mmiber
in its collegiate and soA'ereign capacity, with the rights and
duties of the subordinate political superiors to whom portions of
those powers are delegated or committed in trust. Or, rather, I
shall consider the powers of the sovereign, at the present point
of my Course, in so for as the essentials of the matter may not
have been treated adequately in my preliminary Lecture on sove-
reignty and independent political society.

2. The law of political conditions, or public law (mth the
Strict and definite meaning), is frequently divided into constitu-
tional and administrative.

In a country governed by a monarch, constitutional law is
extremely simple : for it merely determines the person who
shall bear the sovereignty. In a country governed by a number,

Outline of rcmaimUr of Com'sc. 465

constitutional law is more complex : for it determines the per-
sons, or the classes of the persons who shall bear the sovereign
powers ; and it determines, moreover, the mode wherein tliose
persons shall share those powers. — In .1 country governed by a
monarch, constitutional law is positive morality merely : In a
country governed by a number, it may consist of positive moral-
ity, or of a compound of positive morality and positive law.

Administrative law determines the ends and modes to and in
which the sovereign powers shall be exercised : shall be exercised
directly by the )nonarch or sovereign number, or shall be
exercised directly by the subordinate political superiors to whom
portions of those powers are delegated or committed in trust.

The two departments, therefore, of constitutional and ad-
ministrative law, do not quadrate exactly with the two depart-
ments of law wliich regard respectively the status of the sove-
reign, and the various status of subordinate political superiors.
Though the rights and duties of the latter are comprised by
administrative law, and are not comprised by constitutional law,
administrative law comprises the powers of the sovereign, in so
far as they are exercised directly by the monarch or sovereign
nimiber.

In so far as the powers of the sovereign are delegated to
political subordinates, administrative law is positive law, whether
the country be governed by a monarch or by a sovereign number.
In so far as the sovereign powers are exercised by the sovereign
directly, administrative law, in a country governed by a monarch,
is positive morality merely : In a country governed by a number,
it may consist of positive morality, or of a compound of positive
morality and positive law.

3. It is somewhat difficult to describe the boundary by whicli
the conditions of political subordinates are severed from the con-
ditions of private persons. The rights and duties of political
subordinates, and the rights and duties of private persons, are
creatures of a common author : namely, the sovereign or sfcito.
And if we examine the purposes to which their rights and duties
are conferred and imposed by the sovereign, we shall find that
the purposes of the rights and duties which the sovereign confers
and imposes on private persons, often coincide with the purposes
of those which the sovereign confers and imposes on subordinate
political superiors. Accordingly, the conditions of parent and
guardian (with the answering conditions of child and ward) are
not unfrequently treated by writers on jurisprudence, as portions
of public law. For example : The patria j)ofesfas and the tuteta
of the Roman Law are treated thus, in his masterly Si/stcm des
Pandekten-Btchts, by Thibaut of Heidelberg: who, for pene-
trating acuteness, rectitude of judgment, depth of learning, and
vigour and elegance of exposition, may be placed, by the side of
Von Savigny, at the liead of all living Civilians.

At the earliest part of my Course that will admit the subject
conveniently, I shall try to distinguish political . from priv;ite
conditions, or to determine the province of public law (with the
strict and definite meaning) : an attempt which will lead me to
examine the current division of law into jus publicum and ju^
privatum ; and which will lead me to explain the numerous and
X3

466 Laiu : Purposes atid Subjects.

Pa::t III. disparate senses attached to the two expressions. I Would
" %•" * briefly remark at present, tliat I merely mean by private persons,
persons not political : that is to say, persons not invested with
political conditions ; or persons bearing political conditions, but
not considered in those characters, or not viewed from that aspect.
I intend not to intimate by the term pru«<c, that private or not
political, and public or political persons, are distinguishable by
differences between the ultimate 'purposes for which their rights
and duties are respectively conferred and imposed,

III. Ha-ving reviewed private aud political conditions,
in the manner suggested above, I shall review anc-eialous or
miscellaneous conditions in a similar manner. — As examples
of such conditions, I adduce the follo'udng : namely, the
conditions of Aliens : the conditions of Persons incapable of
rights by reason of their religious opinions : the conditions
of Persons incapable of rights by reason of their crimes.

2sote. — In any department of the Law of Persons assigned to
a given condition, the rights and duties composing the given
condition, would natm-ally be arranged (in a coifiis juris) agree-
ably to the order or method observed in the Law of Things.
For example : Agreeably to the order or method which I have
delineated above, the rights and duties composing the given con-
dition, would naturally bo divided at the outset, into primary
and sanctioning : those primary rights and duties being divided
again, into rights in rem, rights in ])c^'sonam, combinations of
rights 1)1 rem and rights in 'personam, and so on. And in any
department of the Law of Persons assigned to a given condition,
the constituent elements of the given condition would naturally
be treated with perpetual reference to the principles and rules
expounded in the Law of Things.

To the series of Lectures briefly delineated above, I shall
add a concise summary of the positive moral rules which
are styled by recent writers, the positive law of nations, or
positiAe international law : concluding therewith my review
ot positive lair, as conceived -w-ith its relations to positive
morality, and to that divine law which is the ultimate test
of both.

TABLES.

Or tLe Tables •wliicli Mr. Austin drew out and distributed to
the members of his cLnss, and wliicli with explauatoiy
notes accompanying tliem were cousti'ucted witb great care,
tbe late editor (Mrs. Austin) was only able to find a few.
Their purpose was to collate and explain tbe system of
arrangement adopted by eminent writers on jurisprudence,
commencing with the Roman Jurists of the classical period
and ending with Bentham. The following tables are
abridged from tbe few which remain, and which were pub-
lished by the late editor in the original edition of this work.
To append at any -length the notes which accompany these
tibles would be hardly consistent with the purpose of the
present abridgment. To present them as detached notes
in an abridged form would be useless to the student. In
the body of the present work, however, I have kept these
iDtea in visv7, and in some instances bon'owed largely from

R.a

►

468

jurisprudence.

TABLE

The Arrangement wliich seems to have beea in-

Jrs (law) PfBMcujr :
(' Quod ad Sfatnm liei Rnmaiia — ad publire utilia — special .
Quod in sacris, in sacerdotibus, in magistratibus consistiL ').

Jus (law) qund ad Persoxas
pertinet : (otherwise, De Persoxis — De
J URE PE R SON AR UM— i?e Coxdicioxe
HOMINUM).

Jus (law) quod ad Res
pertinet : (otherwise 1)4
Rebus).

Dominium (in the large signifioation) :
A class of Rights (their corresponding duties being im-
plied) which contains the following genera ; viz. — i

Dominium rei singulse:
(or Duniinium, in the
strict sense; Pko-
PKiETAS ; or In Rk

POTKSTAS)

Jura, sive Jura in
Re aliena: velut
Servitiis, Jus Pigno-
ris, etc.

The exercise of such rights by a
person not entitled being termed
respectively

PossEssio Quasi Possessio

V ^ '

and imparting corresponding rights
against all persons except the owner,
and except persons in respect of
whom the right is exercised n^
clam, aut precario

Dominium Rerum per

UNIVEUSITATE.M OC-
qnisUarum : velut

Haredilatis, DotU,
FecuUi, etc.

Tables.

469

tended by the Roman Institulional Writers.

Jfs (law) Privatum :
(' Quod ad iinguhrum utilitatem — ad privatim utilia — spectat ').
Containing — r

Jus (law) qvod ad Actiones
pertinet : (otherwise Z>e Ac-

TIONIEUS.)

A department exclusively conversant (accora-
ing to the intended arrangement) with Civil Pro-
cedure ; but (as given by Gains, and by his imitator
Justinian) including the description of a few sub-
stantive rights and obligations.

Obmgatio (in the correct signification).
A class of Rights and Obligations which contains the
following genera, viz. : — j

Obligatioxes ex Contractu
et quasi ex Contractu, viz. :

1. Arising immediately
from contracts and quasi-
contracts ( — Primary Obliga-
tions).

2. Injuries consisting in
the non-performance, or in
the undue performance, of
primary obligations.

3. bbligatinns arising im-
mediately from those injuries,
though mediately from the
violated primary obligations :
e.g. the rights and liabilities
with which an Action ex con-
tractu is concerned.

Okligatioxes ex De- Obligatioxes
licto, vie. : quasi ex delicto.

1. Delicts, in the
strict signification of
the term : i.e.. Damage,
intentional or by neg-
ligence (' dnlo aut culpa ') to jura in rem
(in the largest import of the phrase), such
as Assault, Slander, Theft, considered as a
civilinjury. Forcible Dispossession : Deten-
tion maid fide from the owner : trespass on
another's land : Damage, wilful or negli-
gent, to his moveables.

_ 2. The Obligations, incumbent upon the
injuring parties, to restore, satisfy, etc. ;
with the corresponding Rights of Action,
etc. which reside in the injured parties.

Whether the Law of Crimes, of Punish-
ments, and of Criminal Procedure, fell
within the plan of the Roman Institutional
writer.?, seems to be doubtful.

470

Jurisprudmce.

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yurisprudencc.

TABLE

Exhibiting tlie Cor])iis Juris (' Corps compleit de

been conceived

National, Municipal, or Internal Law [i.e. Jus Civile, in one of its
numerous senses] :

Containing —

Deoit politique [i.e. Jus Publicum] :
Containing — i

Droit Constltiitionnel :
Eelating to

1. The Powers of the Sovereiijn, in the large and correct signification. —
i.e. of the One, the Few, or the Many, in whom the Sovereignti/ — the
supreme, unlimited, and legally irresponsible Command — resides.

2. 'Ihe Distribution of the Sovfircign powers, where not united in a single
person.

3. The Duties of the Government (subjects or citizens') towards the
Sovereign.

A large portion of Constitutional Law is, strictly a branch of Morals.
See ' Traites, etc.,' vol. i. pp. 167, 326.

Droit Civil (as opposed to Droit penal) [i.e. Law
regarding pr/jnarv Rights and Obligations] :
Eclating to —

Rights In Reji, with their
corresponding Duties :

I
Piights In Personam, or Obliga-
tions stricio sensji :

In which Department of rights and
obligations are comprised the following
genera : viz. —

Obligations arising from Facte
oil Convention (i.e. ex CoN-
TBACTu) :

Obligations arising from Besoin superiettr
Service antirieur, Respotisabilite pour
line personne tierce, etc.) i.e. Quasi ex
Contractu),

Tables.

475

IX.

Droit ') arranged in tbe order which seems to have
bj Bentham.

Interxatioxal, or External Law [i.e. Jus Integrarum Gentium] ;
Eelatinp: to the Rights and Obligations of Independent Political Societies

towards one another.
Thus considered, it is, strictly, a branch of Morals. See ' Traites, etc.^ vol. i.

pp. 168, 328. But, as enforced in any given Society by the Sovereign, or

Supreme Power, it properly constitutes a portion of (national or internal)

Law.

Droit civil (as opposed to Droit politique) [i.e. Jus Pkivatuji]

Containing —

Law regarding
The Rights and Obligations of Per-
sons clothed with Political Powers in
subordination to the Sovereign. See
' Traites, etc. ; ' vol. i. pp. 3.S.5, 339,340,
etc. : Organisation judiciaire, Code
Militaire, Code de Finance, Code eccle-
siastique, etc.

Code General, ou Lois gexekales
[i.e. Jus Reruji] :

Containing — /

Codes particuliers, ou Recueils
de Lois Particuliers [i.e.
Jus Persoxarum].

Droit substantif [or The Law]
Containing —

Droit adjectif [or Law of
Procedure^ :
Containing —

Law of Cii-il Procedure :

I .
Law of Criminal
Procedure.

Droit pex^\l [i.e. Laiv regarding Injuries; with the Rights and
Obligations {secondary or sanctioning) which arise from in-
juries] :

Relating to— j

Civil Injuries ; with the Bights
of the injured parties or tlieir re-
presentatives, and the correlating
Obligations,

Crimes and Punishments; together
with the Satisfaction to the injured
parties or their representatives, which
(in the opinion of Bentham) it
would be expedient to exact from
the crimmals.

INDEX.

ABS

PAGE

k BSO1.UTE rights, the term
A. ambiguous . .184

— duties enumerated , 194 et seq.

— and relative duties, differ-

ence between . . . 197

— rights, meaning of the tenn,

as used by Blackstone 292, 3G5

— property defined . . .410
Abstract of Outline to the

lectures .... 1

— in a tabular fonn . . 4
Accession, title by . . 430
Accident, a ground of exemp-
tion from liability . . 235

Act, implied in the term

right' . . . . IfiO

— and forbearance . . . 174

— Bentham's ' internal ' and

'exteiTial ' acts . . ibid.

— strict meaning of the term . 20 1

— consequences of, never willed 205

— sometimes not even intended ibid.

— if intended, may or may not

be wished . . . ibid.

— forbearances from, are not

willed but intended . . 20G

— intended consequence of an

intended future act not
always desired . 214

— in relation to injury . . 224

— of God, a ground of exemp-

tion from liability . 235

— of Parliament. {SeeFarlia-

tnent')

Action, right of, is jus in per-
sonam . . . .179

-apparent exception of

actions styled tn rem . 180 i

— as a right and as an in-

strument .... 876
Action Ks, utiles et in factum . 304
Actions, the tendency of

human . . . 23,27

— in rem . 1 80

ANA

PAGB

174
ibid

160

Acts, Bentham's division of,
into ' internal ' and ' ex-
ternal,' and n. .

— this division rejected by

author ....
Acts and forbearances,

account of, necessary to

the explanation of right '
the objects of rights and

duties . . . 167,175
Adjective and substantive

law, the terms explained

SOO, 374

— the terms objected to by

the author . . 374, 375
Administration of personalty 412
Administrative and Execu-
tive, distinction of poli-
tical powers into

— and constitutional law
jEcjuitas. (See Equity)

— original meaning of the

term ....
uEqucm, meaning of the temi,

97
367

283

198

Aliens. (See Foreigners^

— their position in Kome
Altius non tollendi, servi-

tus

America, constitution of
United States of

— authority of certain State

Legislatures not respected

by judges
Alienation, power of .
Analogies, competition of

opposite . . 320, 333
Analogy, objects improperly,

but by close analogj',

styled laws . . 6

— meaning of the term • . 58

— between a law proper and a

law imposed by general
opinion . . .66

278
393

103

329

407

4;8

Index.

AXC

PAGE

Anciknt lights, servitude

not to obstruct . . 397

Anisials, lower, in "what sense

irrational, n. . . .77

• — are not governed bylaws, n. ibid.

Anger, sudden, as an excuse 247

Anti-social motives, not
necessarily leading to evil,
though likely to do so . 55

Appeals, statute abolishing,

in criminal cases . . 187

Appendant and appurtenant,
use of the terms in Eng-
lish law . . . 397,398

AniUTRiUM, Equity as mean-
ing . . . . . 295

— as an objection against judi-

ciary law . 323

AiiisTOCEACY, properly so

caUed 92

— difl'erent forms of . 93

— limited monarchy a form of 94
\ristotle, disinterested male-
volence admitted or as-
sumed by, n. . . 57

A krangement of Corpus Juris
facilitated by division
between law of persons
and law of things . . 350

Arrets jcdiciaires of the

French Code . . .314

Arrets reglementaires of
the French parlements

201,311,314

Assythement, a gi-ound of
action in the law of Scot-
land, n 187

Attemi'TS to commit crimes,

nature of. . . . 215

— are evidence of intention . ibid.

— or rather of a criminal con-

silium or cogitatio, n. . ibid.

— and as such are called (in

English law) 'overt acts' ibid.

— whether intention without,

ought to render the party
liable to punishment .' . 225

Aula Regis was both a legis-
lature and a court o*^
justice . . . , 267

Autonomic laws, what they

are 2G1

sometimes opposed to

Public Law . . . 372

B

ACOX, Lord, his proposal
as to authentic records of
judicial decisions 264

PAQI

Bad law. (See Law^

— motive. (See Motive)
Bailee, nature of obligation

Avhich is incurred by 230 H seq.

Bairns' part, in Scotch law,
antiquity of the principle
of division, n. . . . 343

Benevolence, Hartley's

hypothesis regarding, not
necessary to the theory
of utility, n. . .50

— but important in regj'.rd to

a sound system of educa-
tion, n 58

Bentham classes rewards
under the name of sanc-
tions .... 13

— imputes disinterested male-

volence to human nature, n. bl

— his mistake in blaming

judges for legislating . 76

— the class of sanctions

which he terms * phy-
sical ' or ' natural ' . .80

— his definition of the term

' sovereignty ' defective . 90

— his error in styling forbear-

ances ' negative services ' 161

— his division of acts into ' in-

ternal ' and ' external,'

and n 174

— this division rejected by

Austin .... ibid

— certain punishments styled

by him 'vicarious ' . . 255

— what is styled 'judiciary

law' by him . . . 314

— his statement that judi-

ciary law consists at most

of quasi-commands . . 322

— his division of General and

Special Codes . . . 350

— his inconsistency in adopt-

ing the ' occult property "
theory of status . . 355

— his criterion of status, ' con-

sequences of the same
investitive fiict ' . . 356

— his division of ' substantive

and adjective law ' . . 374

— a right of servitude styled by

him a ' fractional right ' . 390

— his criticism on the word

'title' .... 434

— terms suggested bj' him in-

stead .... 435

— his terms too complicated

for the purpose . . ibid.

Index.

479

BEN

CAP

437

441
136

15

80

Bekthasi, his division of the
component elements of a
title info 'pnucipal ' and.
' accessory ' facts

— his miscellaneous head of

titles ....

Bilateral conventions
Llackstoxe, his distinction
between law and parti-
cular command

— his remark on the bind-

ing force of the Divine
laws ....

— his argument that a master

cannot have a right to
the labour of a slave

— his confusion between laws

proper and metaphorical
laws ....

— his distinction bctveen le-

gislative sovereign powers
and executive sovereign
powers .... 97

— he erroneously translates '/as

personarum et rerum as
' rights of persons and
things,' 118 »i., 172, 3.50, 4G2

— - he recommends the study of

jurisprudence .

— his erroneous distinction of

civil injuries and crimes .

— his statement that ' every

person may know the
law,' untrue .

— the sense in which he uses

tlie word ' sanction '

— his use of the terms ' writ-

ten ' and ' unwritten ' 2.").5, 265

— his account of the promul-

gation of statutes .

— civil and canon laws ranked

by him with particular
customary laws

— his hypothesis about custo-

mary law

— his notion that the depen-

dence of law upon custom
is a mark of liberty .

— conjecture as to his meaning ibid,

— the remark false in any

sense ....

— his confusion about natural

rights ....

— liis admirable historical

chapter upon EngUsh
Courts of Equity

— Lis criticism on the decretes

of the Koman Emperors .

158
196

238
253

263

268

270

272

273
292

311
321

Blackstone, his mixing up
status with the Law of
Things .... 352

— his division of the corpus

juris into law regarding
rights and law regarding
icrongs rests on a false
principle .... 363

— nature of the rights called

by him ' absolute rights ' 365

— correctly follows Hale in

placing the law of politi-
cal conditions in the Law
of Persons . . . 369

— his method superior to that

of the IJonian lawyers, in
so far as (in regard to
contracts) he keeps the
primary obligation dis-
tinct from the secondary
or sanctioning obligation
which arises from the
breach of contract . . 378

— applies ' title ' to a fact end-

ing, as well as to one be-
ginning a right . . 435

— faults of his Commentaries . 46 1
Bond, narrow meaning of, in

English Law . . .229
Bractox, his error as to the
terms ' written ' and ' un-
written ' . . 265 and n., 266
Browx, Dr., his theory of

'wiU' . . . .200
Butler, argument of his
'Analogy' applicable to
theory of utility . . 43

— advocates the hypothesis of

a moral sense ... 48

— but sometimes appears to

embrace the compound
hypothesis ... 50

— disinterested malevolence

admitted or assumed by
him, n 57

pANON LAW ranked by
v^ Hale and Blackstone with

particular customary laws 268

but is properly general . 269

CArAciTiES (with rights, &c.),

constitute a status . 345-349
Capita tria, not sta<;/s . . 361
Capital, accumulation of,
advantageous to the work-
ing classes ... 36
Caput, definition of 1C5, 361

48o

Index.

CAS

COB

PAGE

Casus or accident . . . 235
Cause or origin of political

government . . .122
Chanceuy LA-\r, an appro-
priate name for English
Equity . . . 296

— — contrasted with Prx-

torian law . . . ihkl.
Child, rights of father over,

are rights ira /)erso«a7)i . 186

— but rights of father to cus-

tody of, &c., are rights

in rem .... xbid.

— liability of parent for acts

of his . . . . 248

— quare whether these rights

belong to public or politi-
cal conditions or not . 367
Cicero, his perception of the
true source of customarv
law. . , . '. 270

— his birth dates the com-

mencement of the series

of classical jurists . . 286

CiVES and pentes used as oppo-
site terms . . . 281

Civil, various uses of the word
as opposed to criminal,
military, ecclesiastical,
&c. ..... 373

Civil and canon laws
ranked by Blackstone and
Hale with particular cus-
tomarj^ laws . . . 268

— but are properly general . 269
Civil action in Scotland, the

right to, against criminal
exists although he had
already been subject to a
criminal action . .187

Civil injuries and crimes,
the distinction consi-
dered . . . 187, 196

Civil liberty, Paley's defi-
nition of . . . .74

— true nature of . . .111

— implied in the term ' right' 161

— is the absence of legal re-

straint .... 165
Civil laws, use of the term

by Hobbes . . . 155
Civil procedure, nature of

Roman . . . 297, 298
Classical Jurists, their dis-
tinction between jus gen-
tium &nA civile . . 8,9,51

their false philosophy 75, 286

— — true merits of their writings ibid.

(See Divi-

PAGU

59

331
ibid.
332

ibid.

Classification
sioti)

— of natural objects, the cri-

teria of, involved in the
full definition of the words
* analogy ' and ' meta-
phor' ....
Code and Pandects of Jus-
tinian, matter and ar-
rangement of 306, 316, 336

— enormous fault of these

compilations considered
as a code in the modem
sense of the word . . 316

— what understood by, in mod-

ern times .' . . 321

— the question of codification

discusse 1 , . 331 et seq.

— codification considered in

the abstract, and in tlie
concrete, meaning at-
tached to these expres-
sions ....

— in the abstract, practicable

— and expedient .

— the question concerns the

form, and not the matter,
of law ....

— objections to codification in

the abstract, and an-
swers . . . 332 et seq.

— objection of incompleteness 332

— objection of Hugo . . 333

— objection of ill success of

French and Prussian . 334

— defects of these codes . 335 et seq.

— French and Prussian, not

codes in the medem sense

— Prussian, is founded on the

common law of Germany

— supplement to that code

— extreme haste with which

the French Code was
drawn up . . .

— failure of these codes ex-

aggerated

— Savignj-'s objections ex-

amined . . . 339 et seq.

— considerations upon which

the question of codifica-
tion ought to be dis-
cussed

— advantages whicli would

ensue from a good code .

— dispute of Savigny and Thi-

baut upon the subject of
codification

— German mercantile code

337

337
338

ibid.

339

341
342

343
353

Index.

481

COD

PAGE

Code, past transactions com-
monly exempted from
operation of a code, n. . 353

— mercantile, would be little

affected by this circum-
stance, n. . . . ibid.
ConiFicATiox. (See Code)

— considered in the abstract

is practicable . . .331

— and expedient . . . 332

— objections to, examined 332-311

— considerations on which the

question of, at a parti-
cular time and place,
ought to turn . . .341
CoGNiTio, in Roman law . 299
Collegia, laws made by . 260
Colonial Legislatures,

laws made by . . . 260
Command, duty implied by . 8
— • meaning of the term . . 13

— duty and sanction insepa-

rably connected . . 13

— laws or rules distinguished

from particular com-
mands . . .8, 13-15

— revocations of commands are

not laws .... 17

— of a sovereign. (See Sove-

reign)

Common Law Procedure
Act (1854), § 78, dis-
cretion of judge to en-
force specific delivery . 171

Common Sense, (one of the
terms = moral sense), em-
ployed to express a theory'
of the index to the Divine
commands . . 22, 44

Commons, House of, possesses
a portion of the sove-
reignty .... 96

— powers are delegated abso-

lutely by the constituents

to the members . . ihid.

— but subject to an implied

trust .... 97

— the performance of that

trust enforced by moral
sanctions only . . . ihid.
CoJiMONWEALTH or republic,

meaning of the terms, n. . 94
Compassing, meaning of . 214
Competition of opposite
analogies, Paley's re-
mark on . . . . 320

— — made an objection against

codification by Hugo . 333

CON

I'ACiP

CoMPOSiTE State distin-
guished from a confedera-
tion of States . . 101, 103

Compulsion, physical, distin-
guished from sanction 221-22 i

— a ground of non-imputation 21s
Condition. (See Status)
Condition i-kecedent, cri-
terion of, is arbitrary 420, j;.,

425
Condominium, or concurrent

right of property . . 388
Conduct, human, is guided

by rules ... 26, 28

— and by authority . . 33

— utility is not the test of it . 62

— but the index to the Divine

commands regarding it . ibid.
Confederated states, svs-

temof . . . " . 101
how it differs from a

federal government . . 103
Conscience another name

for moral sense . . 44

— an expression founded upon

hypothesis as to the index

of Divine Commands . 45

Consent of the i'eople, in
what sense governments
exist by . . . .156

in what sen^e govern-
ments originate by . .127

Consilium, or compas>ing . 214

Constitution, theory of
British, as to represen-
tation .... 97

Constitutional Jealousy,

its unequal application . 311

Constitutional law, mean-
ing of . . . .106

distinguished from ad-
ministrative law . . 367

Constitutions, edictal, of the
Roman emperors in their
legislative character . 2,j8

— decretal, in their capacity

of sovereign judges . . 259
Contingent rights, the dis-
tinction between, and
vested rights 419-428
Contract, false assumption
that government is based
on 128

— rights arising from, are

jura in personam . . 178

— and conveyance iuhj' be

contained in one instru-
ment 181

482

Index.

CON

PAGE

Contract, intention of parties

to, what it means . . 216

— rule of evidence, when me-

dium of the consensus is a
writing . . . .217

— in cases of breach of, the

culpable intention gene-
rally manifest . . 234

— its place in Outline of

Course of Lectures . . 446
Convention, nature of . . 135
CoNVEYANCK and contract,

when effected by the same

instrument . . . 181
Conveyancers, practice of, not

a source of law . . 275

— but their practice adopted

as law by judges . . 324

Copyholders, originally the
slaves of the manorial
estate . . . .418

Corporate bodies, laws made

by 260

Corpus Delicti . . . 228

Corpus juris, best arrange-
ment of, founded on the
distinction between the
Law of Things and the
Law of Persons . . 349

other possible divisions

of 350

inconsistency of the

method of division adopted
by the Roman lawyers
and hy Blackstone . . 362

logical defects in all ar-
rangements of, hitherto
made .... 378

Courts of Justice, their

decrees are laws . . 98

their powers of legislation

properly so-called . .260

Covenant or pact, as the
foundation of govern-
ment, the hypothesis dis-
cussed . . . 128-140

Crime, poverty an incentive

to 37

— punishment for, in Scotland

does not supersede right
to civil action against the
criminal, n. . . . 188

Crimes and Civil Injuries, the

distinction between . 196

— juris gentium, and jure civili 291

Criminal Jurisdiction, in

whom it resided at Rome 297

Criminal i,aw, place of . 370

DEB

FAOB

Criminal law not within the
scope of Justinian's In-
stitutes .... 371

Crown, servants of, legal re-
medies against, n. . 121, 122

Cruelty, duty to refrain from 195

Cujus est solum ejus est

usque ad ccelum . 414

Culpa, meanings of . 211, 212

— restricted application of the

term, especially by crimi-
nal lawyers . , . . 225

— Feuerbach's analysis of the

term . . . .226

— Rosshirt's analysis of the

term , . . .226
Custom, origin and transmuta-
tion into law . . .19

— is only a moral rule until

established as law by the
sovereign, either judici-
ally or bydirect legislation 269

— this clearly perceived by

Cicero . . . .270

— does not necessarily origi-

nate or continue through

the consent of the people 272

Customary law is positive
law fashioned by judicial
legislation on pre-existing
custom • . . .72

is unwritten law, accord-
ing to Modern Civilians . 261

and according to Justi-
nian .... 264

division of, into two

classes .... 268

the hypothesis that cus-
tomary law obtains as
positive law without the
sanction of the sovereign
power .... 270

absurdity of the hypo-
thesis .... ibid.

this hypothesis suggested

by a passage ia the
Pandects . . .271

— Blackstone's attempt to con-

nect customarj' law with
the notion of political
liberty . . . .272
Customs, laws originating in,
not distinguishable from
others in respect of their
source .... 261

DEBT, narrow meaning of in
English law . . .229

Index.

483

BEC

PAGE

Decisions, process of extract-
ing la-w from . . .815

Deci-aratory laws are often

imperative . . • . f^

are not laws proper . ibid.

ought to be classed

with metaphorical

laws .... 81

Decree of a Court of Jus-

tice,a law proper . . 98

Decretes of the Koman Em-
perors . . . . 259

— Blackstone's remark con-

cerning them . . . 321
Definitions of leading terms,
importance of their being
given distinctly . . 151

— absence of, in the French

and Prussian codes 335, 336

Delay (jnora) . . . 233
Delegation of political

POWER to subordinates . 95

to representatives . . 96

Delicts and ^uasj-delicts . 218

— as causes of rights and duties 453
Demand, doctrine of English

law that the action is a . 231

— the moral sanction which

prevents this advantage
being used unjustlj', n. . 232

— consistency of Roman law

in requiring, before action 233

— without, a person is not in

mora .... ibid.
Democracy is one form of

aristocracy ... 93

— how the sovereign powers

are exercised in . .96

— what is meant wlien called

a /ree government . . 112

— Hobbes' remarks on . .114
Deontology (See Ethics)
Descent .... 407
Desire. {See Act, Will)

— an obligation to desire not

possible .... 218

— explanation of the supposed

confl ict between, and w iU 219
Despotic and free govern-
ments, difference between 112
Determinate body of persons67-70
Digest, Roman, materials on

which founded . . 306

— arrangement of, unscientific ibid.

— enormous fault in Digest and

Code if togetlier viewed
as a code in the modern
sense 316

DiKAiON, meaning of the term.

198

Direct Legislation distin-
guished from oblique
method ....

Disinterested jl4.levo-
lence imputed to human
nature by Bentham

admitted or assumed by

Aristotle and Butler

Disposition, power of .

Divestitive facts .

Divine law, what it is

— its resemblance to positive

law ....

— partly revealed and partly

unrevealed

— is the test of positive law

and morality ... 9

— hypothesis regarding the

index to it, so far as un-
revealed . . . 21-58

Divine right of a sovereign
against his subjects .

Division, tripartite, of move-
able goods

— between Law of Things and

Law of Persons

— of corpus juris into Law of

Things and Law of Per-
sons identified with Ben-
tham's division into Gene-
ral and Special Codes

— inconsistency of method of,

by Roman lawyers and
Blackstone
Divisions, main, of Law of
Things ....

— of Law of Persons
Divorce, action for, an action

affecting status, n. .
Documentum, meaning warn-
ing

Dolus . . . .209-212
DoMiNiUMjthe term ambiguous 184

— and obligatio, the distinction

made by the Roman
Lawyers misunderstood
by authors of the French
Code

— and servitus . . 385-389

— considered as opposed to

jura in re aliend

— the strict meaning of the

term defined .
Droit ecrit ....
Drunkenness, no excuse in

English law . . .247

266

57

ibid.

412

428

5

8, 21

118

313

345

350.

362

371

459

190
251

335

402

412
264

484

Index.

DTJT

PAGE

Duties. (See ObUgatwn)

— are correlative to commands 12

— are relative or absolute . 161
■ — relative, in respect of their

remote purposes are abso-
lute duties . . . 195

— difference between relative

and absolute duties . 197

— absolute duties divided into

three classes . . . ibid.

— legal duties flow from com-

mands of the sovereign . 1 98

— objects of . . . .199

— difference between positive

and negative duties . 217

— immediate and remote

objects of duties . . 224

— and rights may arise as

legal consequences of in-
tervening facts . . 431

— ;nay arise ex lege imme-

diate .... 433, 439
--arising from crimes . . 458
Duty (see Obligation), meaning

of the tenn . . . 8, 12

— implied bj^ the tei-m ' right ' 160

— the terms ' injury ' and

' guilt ' contradictory to

the tei-m ' duty ' . .227

EASEMENT, application of
the term . . . ,391

— incidents of . . .178

— the term, is not applied to

all servitudes . . . 391
• — distinction between, and

profit a prendre . . 394
Edict, Prwtorian, historv

of . . . 261, 263, 305

— Pei-petual . . . .301

— change made by Hadrian . 305
Edictal, Constitutions of

Roman Emperors in their

legislative character . 258
Edicts (pratorian), general

and special . . . 300
Eldon, Lord, his judgment in

Stockley v. Stockley . 239

— his reluctance to extend a

rule 325

Elegantia, meaning of the

tenn as applied to law . 328
Emperors, Boman, legislated

directly by constitutions 258

— and indirectly by decrefa

and rescripta . . . 259
lliiPHYTEUsis 401, 413, 414, 417

FAC

PAST

' Enemy has no right,'

meaning of the phrase . 278

Equity, meaning of the term
as applied to jus praeto-
rium .... 283

— various meanings of the

term:— . . 293-295

— as a department of law . 296

— History of English Courts of,

well given by Blackstone 311

— difference between Roman

and English . ' .312
Ekror as an excuse . . 236
Estate (^status), consistently
applied in the English
language to any bundle
of rights, &c. . . . 355

— the proper expression, ac-

cording to English law, for
certain rights in land 384, 386

Etat (^status), Bentham's de-
finition .... 355

Ethics, why the science makes

slow progress ... 34

— leading principles of, might

be attained by the multi-
tude .... 38

— importance of wide-spread

knowledge of . . .39

— might be made to rank with

sciences capable of de-
monstration . . .41

— Locke's opinion to that effect ibid.

— objects of the science . . 61
Evans' Digest, his remarks on

the nile of English law
which allows the action to
take ])lace without pre-
vious demand . . .231
Events are simple or complex 173

— ' fact ' and ' incident ' some-

times sj-nonymous with
'event' .... 174
Evidence (Indian Act), ?j. . 242

— a part of title . . . 429
Ex CONTRACTU and ex delicto,

obligations and actions 236, 445
Ex lege, titles .... 440
Executive functions . . 25, 97
Exemption from liabilitv,

grounds of . . 235-249
Extensive interpretation,

equity as meaning . . 294

FACT, meaning of . .174
Facti, ignorantia, an
excuse .... 234

Index.

485

of

Facultas, used to define
'right' . . . .

Faculty, the terra ' right ' as
meaning ' faculty ' ex-
plained, n.

— erroneous use of the term

to define status
Fashion, laws of, improperly
so termed

— laws set by, are rules

positive morality
Fatalia (damna) .
Father, his right in as well as

against the child
Fkar of punishment as an in

centive to duty

— of death a ground of exemp-

tion

Federal government, na
ture of .

— how it differs from a con

federation of states .
Feudal tenure
Feuduji, origin of the word
Fictions, reasons for their in

troduetion
Fictitious or legal persons,

(See Persons^
Figurative laws. (See

Laws, Metaphorical laws)
FiLius familias, not, like the

slave, called a thing
Foolhardiness. (See Hash-

ness)
Forbearances wrongly stj-led

negative services

— included in the term res

— meaning of the term

— rights to

— are not willed, but

tended

— what are motives to
• — how distinguished

omissions

— in relation to injuries
Foreign Sovereigns may

sue in their sovereign ca-
pacity in the English
Courts of Law and
Equity, n. . • .
Foreigners. (See Peregrini)

— amenable to the law of the

country in which they re-
side ....

— property of, law may be

executed against

— their peculiar position in

ancient Kome .

193

118
358

65
235

187

219

248

101

103
416
417

308

188

161
. 167
. 174

189, 193

in-
. 206
. 207

from

207
224

122

144
ibid.

278

GEN

PAGB

FoRJiULA, Roman proceciure

by 297

Fountains, or sources of law,

meaning of the phrase . 254

France, the occupation of,
in 1815, by the allied so-
vereigns did not consti-
tute a sovereignty . . 83

Franchise is a right in rem
not exercised over a de-
terminate subject . . 189

Frederic the Great, of
Prussia, his position in
the German Empire . 101

Free Government, nature

of 112

French Code. (See Code)

French Law, sale of an im-
moveable in . . .181

French revolution, changes
wrought bj', in state of
Europe .... 100

Fungible things . . . 170

Future rights in rem distin-
guished by nature of the
contingency on which
they will take effect in
possession . . 419 et seq

GAIUS, he uses the terms
* persona' and '^omo' as
sj'nonymous expressions 162

— his title de condicione ho-

minum .... 172

General and Special

Codes .... 350

General customary laws . 268

General Constitutions
were laws of a universal
character made by the
Roman Emperors . . 259

General good an aggregate

of individual good . . 63

individual good not to be

neglected for the . . 63, 54

General opinion. (See Qpi'
nion')

General utility (See
Utility)

Gens, meaning of the term, n. 95

Gentes and Gives used as

opposite terms . . 281

Gentium jus. (See Jus gen-
tium)

Gentz, F. von, his mistaken
views of the origin of
government, n. . .140

486

Index,

GEN

PAGE

Gem s, how the term has been

applied in jurisprudence . 170

German Bund, steps of trans-
formation into Empire . 104

Gersianico-Roman Empire,
states composing, how
far independent . 100, 104

German jurists, misapplica-
tion by certain, of Kant's
language as to subject
and object, n. . . . 118

GERMi\j^ PHILOSOPHERS, Cer-
tain, their false views as
to origin of government . 139

German Mercantile Code . 353

Gilbert, C. B., his historical

account of Equity . . 312

Glanville, his use of the
terms ' written ' and ' un-
written,' n. . . . 265

God, law of. (See Divine law,
Laiv)

— act of, a ground of exemp-

tion from liability . . 235

— not a source of positive

law 276

GoDAViN, his inquii-y concern-
ing political justice, n. . 56
Good. (See General Good,
Public Good)

— and bad motives ... 54

— and bad laws ... 61

— name, right to, is a right in

rem 188

Government, duty of obedi-
ence to established . . 29

— when resistance to, justified ibid.

— succession to supreme go-

vernment having stability
must be by a generic
mode .... 70

— forms of supi-eme . . 92

— federal . . 95,101

— nature of free . . .111

— views of Hobbes on, niisde-

scribed as an apology for
tyranny, n. . . .114

— compared with views of

French CEconomists, n. . IIG

— a sovereign government has

no legal rights against its
own members . . .115

^ of India, not a supreme go-
vernment, n. . . . 121

•— o/igin or causes of political

government . . .122

•— ends and purposes of politi-
cal government, n. . 123

HAL

PAOB

Government, permanence of
political government,
cause of . . . 125, 127

— the position ' that every

government arises and
continues through the
people's consent' exam-
ined . . 126 e< seq.

— this hj'pothesis is a fiction

approaching to an impos-
sibility . . ^ . 135

— false views of certain'Ger-

man philosophers on . 139

— division of sovereign govern-

ments into governments
de jure and governments
de facto . . , ; 141
Grotius, his confusion of posi-
tive morality with what
morality ought to be . 71

— his definition of the term

' sovereignty ' defective . 90
Guardian, rights of, over
ward are rights in per-
sonam .... 186

— but rights of, to custody, &c.

of ward, are rights in rem ibid.
Guilt. (See Injury)

— analysis of . . . . 224

— restricted application of the

term, especially by cri-
minal lawyers . . . 225

— Feuerbach's analysis of the

term . . . .226

— Eosshirt's analysis of the

term . . . ibid.

HABIT, the term wanting in
precision. ... 86
Habitatio is a modified usu-
fruct . . . .400
Habitual obedience to a
determinate common su-
perior a distinguishing
mark of sovereignty 82, 83

— cause of ... . 122

— cause of, in an enlightened

society . . .124

H.sreditas jacens . . 165

Hale, Sir M., erroneously
translates ^jus person-
arum et rerum ' as ' rights
of persons and things,' n. 118

— his use of the terms ' writ-

ten ' and ' unwritten ' 255, 265

— civil and canon laws ranked

by him with particular
customary laws 268

Index.

487

HAL

Hale, his hypothesis about cus-
tomary law

— his reputed share in di"aw-
ing the Statute of Frauds,

270

342

— his correct arrangement in

regard to public law

— his coiTect designation,

' Pleas of the Crown '

— his analysis of English Law
. Half-sovereign states

Hartley, his hypothesis as to

benevolence
Heedlessness, why ueces-

saiy to analyze

— how it differs from negli-

gence ....

— how from intention .

— a component part of injury

— but is not of itself injury 224, 225
Heineccius, his notion that

the legislative power of
the Prsetors was usurped

— his eiToneous definition of

status ....
Heirs, meaning of the term .

— some classes of, in Roman

law, not fully invested
without acceptance

Historical School of law-
yers in Germany .

Hereditaments .

Hobbes, his definition of the
term ' sovereignty ' defec-
tive

— his position that no law

can be unjust, n,

— he asserts that sovereign

power is incapable of legal
limitation

— the main design of his writ-

ings misunderstood, n. .

— his doctrine compared with

that of the (Economists, n.

— his definition of ' legislator '

— his dictum that the habitual

fear of punishment makes
men just ....
Honour, laws of, improperly
termed laws .

— they belong to the positive

moral rules which are set
by general opinion

Hooker, his confusion of laws
proper with laws meta-
phorical ....

HuusE OF Lords as a Court of
Appeal .

3G9

371
462
100

56

199

208
209
224

07

354
407

439

344
1C8

90
108

114
114

116
141

220

05

80
99

INA

PAGE

House of Lords, its judicial
power derived from the
Aula Regis . . . 3C7

Hugo, his expression, * the
philosophy of positive
law,' borrowed by author 148

— his inconsistency in object-

ing to a code . . . 310

— his objection to a code criti-

cised . . . 333

Human actions, the tendency

of 23

Hume's ' Principles of
Morals,' he appears to
admit that some of our
moral sentiments are in-
capable of analysis . 47

Hypotueca, a species of jus

hi re aliend . . .415

Hypothesis of utility. (Seo
Utility)

— of moral sense. (See 3Ioral

Sense)

— of original contract as a

basis of government. (See
Government)

— compound or intermediate . 50

TGNORANCE as an excuse 2;JG
-1- Ignorantia juris, not
generally admitted as an
excuse . . . 237 et seq.

— reasons commonly assigned

for the rule . . . 23S

— this ignorance inevitable iu

regard to judiciary law . 326

— the same evil may exist in

regard to Statute law if
bulky and made by bits . 327

Illegal distinguished from

'unconstitutional' . . 106

Immoveable, sale of, accord-
ing to French law . .181

Impartiality, hitherto a

rare virtue ... 39

Imperfect laws, nature of . 18

Imperfect obligation.

Equity as meaning the
performance of . . 295

Imperial Constitutions
were laws made by the
Roman Emperors in their
sovereign capacity . . 258

Ijiperitia, liability for . . 248

Impijudentia . . . ibid.

Imputability. (Sec Injur I/) 224

Inadvertence . . 230

488

Index.

IXC

PAGE

IsciDEXT sometimes, but not
always, synonymous with
'event' '. . . . 174

IxcORPOREAL, and corporeal,

division of Things into . 167

Inxorporeai, heredita-
ments in English law . 168

Independence necessaiy to

sovereignty . . .82

Independent Natural So-
ciety .... 85

Independent political so-
ciety implied in the
term ' sovereignty ' . 82

a habit of obedience to a

certain and common su-
perior and the indepen-
dence of that superior, the
distinguishing marks of . 83

• considerable number es-
sential to ... 88

notwithstanding vague-
ness, the definition is ade-
quate as a general defini-
tion .... 144

Indeterminate and determi-
nate bodies, distinction
between . . . . C7

Index to tlie interpretation of
law. (See Interpretatioii)

Indi:.\: to the Divine com-
?rANDS. (See Interme-
diate Hypothesii, 3Ioral
Sense, Utility^

— nature of . . . 8 ei seq.
India, examples of transmu-
tation of custom into law

in xi

— Acts passed by G. G. of,

in Council . . . 260

— feudal customs in . . 416
Indian Evidence Act cited

in illustration of the three
classes of presumptions, B. 242

as an example of codifi-
cation, n. . . . 334

Indifferency a desideratum
in pursuit of ethical
science .... 39

Induction of the ratio deci-
dendi of decisions some-
times confounded with
{he rules for the inter-
pretation of statute law . 31 G

]NEI.EGANTIAJttr(S . . 269

Infancy, a ground of exemp-
tion from liability . . 246
Inferior, superior, &c., im-

PAGE

plied in the terra 'com-
mand' .... 17

INFORTUNIUM. . . . 212

Injunction analogous to Ro-
man interdict . . . 298

Injuries, civil, distinguished

from crimes . . . 196

Injury implied in the term

'right' . . . .160

— right arising from, is al-

ways a right in personam 179

— what expressions are in-

volved with the term . 199

— meaning of . . 223 et seq.

— and guilt, these terms are

the contradictory of the
terms ' duty ' and ' obli-
gation' .... 227

— intention or culpable inad-

vertence is of the essence

of 229

— without intention or inad-

vertence, example of, in
English law . . .230

— breach of contract is, . . 234

— every right of action is

founded on . . . 376

Injustice, analysis of the

term, n 108

Innate PKAcrricAL prin-
ciples, an expression
founded on h^-pothesis as
to the index of Divine
commands ... 44

In kem, meaning of the ex-
pression (See Jus in rem) 185

In rem — in personam, rights
(See Rights')

Insanity, a gix>und of exemp-
tion from liability . . 246

Instinct, moral, an expres-
sion founded on hj'po-
thesis as to the index of
Divine commands . . 44

— the word merely expresses

a negation ... 45
Instincts of animals, Ulpian's
mistake in classing them
with laws . . 79, 288
Institutes of Justinian, il-
logical arrangement in • 378

— limit the temi sertiitus to

real serritudes . .401
Insulated, acts are not, . 23
Intention implied in the term

'right' . . . .160

— ' motive ' implied in the

term .... ibid.

Index.

489

tJfT

PAGE

Intention, analysis of, neces-
sary in a treatise on juris-
prudenre. . . . 199

— considered . . . 203-207

— distinguished by clear line

from negligence, &c. • 210

— the term ' dolus ' as meaning

• intention ' . . . ibid.

— in regard to future acts ex-

amined . . . 212-2U
■i— of legislators, testators, and

contracting parties . 215-217

— is a component element of

injury .... 224

— but is not of itself injury 224, 225

— this applies equally in case

of breach of contract . 234
IsTKRDioT, procedure on . 298
Intkrmediate hypothesis
between theory of utility
and hypothesis of a moral
sense . • . 50

Interkatioxal LA'\v,confused
notions of (See Positive
International Murality') . 74
Interpretation, statutes
passed for purpose of, are
not strictly laws . . 17

— spurious kind of, called ex-

tensive . . . 294, 319

— of statute law, principle of . 31G

— difiFers from induction of

judiciary law . . .318
Investitive' facts . . . 428
Ipso J cre, rights arising, . 439

TACTITATIOX of mar-
0 eiage, action of, is an

action affecting iS<a<««, ?!. 190
Judex, his office and duty . 208

— his functions like those of a

referee in English proce-
dure, n 298

JUDOK-MADE LAW. . . 76

— the sovereign is the author

of, 99

— the phrase objectionable,

although Bentham's . 2G7
Ji'DGES, their legislative power
(See Judiciary Law)

— Roman emperors exercised

the functions of, directly 258
Judicial decisions, laws

made by, . . . 260, 315
Judicial LEoisLATioNjground-

less objections to, , . 322

— disadvantages of, ♦ , 325

PAGB

Judicial notice of certain

customs . . . .268

Judicial powers may be re-
served by sovereign to
himself . . . 259, 266

— but are commonly dele-

gated , . . .259

JuDiciAP.Y LAW injudiciously
spoken of with disrespect
by lienthnni . . 76, 267

considered as contrasted

with statute law 314 et seq.

the form or mode of its

expression . . . 314

mode of extracting it

from the decisions . ,315

how the i)rocess of ex-
tracting, difl'ers from in-
terpretation of statute
law 316

aljsurd fiction of its

being merely declared by

the judges ' . . .321

Bentham's objection to,

answered . . . 322

Sir S. Romilly's objec-
tion to, answered . . 323

another current objec-
tion to, answered . . ibid.

influence of private

lawj-ers upon, . . . 324

cheeks upon judges in

construction of, . . 325

tenable objections to, 325 et seq.

first tenable objection,

it is implicated with the
specialties of the parti-
cular case . . . 325

second tenable objection,

made in haste . . 327

third tenable objection

it is e J j)ost facto . . 328

fourth tenable objection,

no fixed test of its va-
lidity .... ibid.

an evil not inherent in

judiciary law, it is not
attested by authoritative
documents . . . 329

fifth tenable objection,

its rules wanting in com-
prehensiveness . . ibid.

sixth tenable objection,

the statute law founded

on it is unsystematic . ibid,

evils of, might be reme-
died by a code . . 331

— — its rales are the rationed

T3

490

Index,

JTTR

331
413

ibid.

ibid.

414

ibid.

415

decidendi of tlie cases,
and these it is possible to
extract ....
Jura in ee aliexa, the term
defined ....

— — -what classes are marked

by expositors of the
Koman law

1. ServiUis

2. £mphyt.eiisis
o. Superficies
4. Jus pignoris et hijpo-

IheccB ....

Juris igxoraktia considered
with reference to the
grounds of non-imputa-
tion . . . 238 et seq.

Jurisdiction voluntary and

contentious . . . 377

Jurisprudence, its province

determined . . 1-147

— positive law is the appro-

priate matter of, 6, 7, 61

— absurd definition of, by

Ulpian in the Digest

— general distinguished from

particular

— often implicated with science

of legislation .

— importance of its study
Jurists, classical. (See Clas-
sical Jurists^

Jus (See Law), ambiguity of
the word, n. . . .

Jus ACTioNUM, should be dis-
tributed between the Law
of Things and the Law of
Persons ....

Jus AD REM, the phrase am-
biguous ....

Jus Gentium and civile, dis-
tinction by the classical
jurists equivalent to that
made by modern writers
into Law natural and
positive ....

— — of the older Roman

Law . . . 277-285

— — of the Institutes and Pan-

dects . . . 285-287
as meaning positive inter-
national morality . . 288
Jcs in PERSONAM distin-
guished from j;/s m rem . 176

— — illustrations of .\18 et seq.

— — a right founded on a

contract is . . 178

*- — a right of action is 179

148

147

152
156

118

363
183

51

JTJS

PAQfi

Jus IN PERSONA Ji, cver}', is a
right to acts and forbear-
ances and to nothing more 180

right of father, guardian,

or master against child,
ward, or serv^ant, is .186

Jus IN REsr, a right availing

against persons generally 176

meaning of the term

ibid., 381

the duties which corre-
late with, are a-hvays
negative . . . .177

illustrations of . 177, 178

sometimes arises from an

incident which is styled
a contract, but which is
also (or in fact) a con-
veyance . . . .181

right of father, guardian,

or master over child,
ward, or servant is . . 186

— - — may exist without de-

tenninate subject . 188, S81

e.g. rights to reputation,

monopoly, franchise,
status . . . 188 et seq,

division of rights in rem 381

over persons belongs to

the law of statiis . . 382

distinction of rights in

rem over things into d(>-
minium and servitus ibid, etseq.

distinction of such rights

having regard to the
period of enjojinent 401 et seq.

distinction of such rights

as vested or contin-
gent . . . 419 e< seq.

Jus IN REM — IN PERSONAM,

meaning of the distinction 1 76
origin of the terms ex-
plained . . . .185

meaning of the phrase in

rem 381

Jus IN RE, the phrase am-
biguous . . . . 18S

Jus IN RE ALIENA . . 401,413

Jus MORIBUS CONSTITUTUM,

jus prudentibus com-
positum. . . 268,274

Jus NATUEALE, Ulpian's mis-
taken notion of . 78, 288

double meaning of . . 288

Jus PERSONARUM ET RERUM,

the principle of the scien-
tific arrangement of the
Koman law . 150"

Index.

491

JTTS

PAGE
Jus PKKSOXAIiUM ET RERUM

■wrongly translated by
Blackstoue . . . 172

— — a main division in a scien-

tific system of jurispru-
dence . . . .315

Jus PIGNORIS ET HYPOTIlECiE

considered as a species of
jura in re attend . .415

Jus I'R^TORiUM, what it con-
sisted of . . . .290

origin of. . . .207

formed by the edict of

the praetors . . . 302

was a part of the Jus

honorariuvi . . . ibid.

the materials of which it

was composed . . . 303

changes under Hadrian . 305

— — compared with English

equity . . . .310

Jus Publicum et Pkiva-

lUM . . 195, 3CG e< se<7.

Jus keale et personaee,
the tei-ms sometimes used
instead of jus in rem — in
personam , . .184

objections attaching to

these terms . . . ibid.

Jus receptum may be fash-
ioned on foreign positive
law or international mo-
rality, n 264

Just, notes on meaning and
derivation of the word,
n. . . . 108, 118, 198

Justice is a disinterested in-
clination to duty gene-
rated b}' the sanction of
the law by way of asso-
ciation .... 220

Justinian, matter of his Code

and Pandects . . . 30G

— enormous fault in these,

considered as a code 316 et seq.

— intention of his compila-

tions to be a perpetual
code . . . .322

— the term servitus limited by

him to real servitudes . 401

KANT, his confusion upon
the term « right,' ?!. . 118

King cau do no wrong, the

phrase explained . .110
Kramer, Herr vox, his in-
fluence in framing the
Prussian Code 33G

lldd.

G

6,77

6

G,77

LATV

PAQB

LAW, positive, is the matter
of jurisprudence . . 5

— definition of, in the literal

and proper sense of the
word .... ihid.

— as set by God to man . ibid.

— as set by men to men . ibid.

— Divine, meaning of the

term. (See Divine Law.) ibid.

— as set by political superiors

or otherwise .

— objects metaphorically

termed laws

— laws observed liy lower

animals .

— laws of vegetation

— laws of motion .

— proper with improjier laws

divided into four kinds :
Divine law, positive law,
positivj morality, and
laws metaphorically eo
termed ....

— imperative and proper,

essence of . . .

— marks of Divine Law .

— nature of index to Divine

Law ....

— why necessary to pursue

enquiry as to the nature
of that index

— marks of laws consisting of

positive moral rules

— marks of laws, metaphori-

cally so called .

— character of laws positive .

— every, is a command .

— distinguished from par-

ticular command . 13-15

— proceeds from superiors

and binds infei-iors . . 10

— declaratory and permissive

laws . . . 17, 20

— imperfect laws . . 18, 20, 81

— customary laws are im-

perative . . 19, 20, 264, 2G8

— natural and positive laws

of some modern jurists
correspond to jus gentium
and civile of classical ju-
rists .... 51

— nature of laws which are

analogous to laws pro-
per ..... 59

— ' good ' or ' bad,' meaning of

the terms as applied to a
human law ... CI

— set by general opinion, not

7,8
8

ibid.

ibid.

10

ibid.

ibid.

11

492

Index.

LAW

PAGE

law proper. (See Opinion,
Positive 3Iorality) . . 65
Law of this kind includes what

is called internntional law ibid.

— metaphorical or figu-

rative .... 76

— de(!4aratory, laws repeal-

ing laws, and laws of im-
perfect obligation ought
to be classed with meta-
phorical laws . . . 81

— judiciarj-, proceeds from

the sovereign ... 99

— constitutional, nature of . 107

— Hobbes' dictum that law

cannot be unjust, n. . 108

— ' right,' the term as sig-

nifying 'law' explained,

71.' 118

— positive, essential difference

of 143

— Roman, value of the study

of, 153

— ignorance of, not a ground

of excuse . . 238 et seq.

— implied in term right . . 160

— ' of property ' and ' of con-

tract,' the terms am-
biguous .... 184

— ex post facto . . . 241

— sometimes sanctioned by

nullities .... 252

— sources of . . . . 254

— written and unwritten 255 et seq.

— made directly by covereign,

examples of . . . 256

— not made directly by sove-

reign, examples of . . 260

— autonomic laws . . . 261

— made directly and ob-

liquely .... 266

— judge-made, objection to

the term . . . .267

— customary, has its source in

the judge or legislator,
like other law . . 268 et seq.

— Koman, as developed from

the jus gentium . . Ill

— nature of the distinction

between jus gentium and
jus civile .... 283

— natural and positive . . 289

— End equity, supposition that

the distinction is neces-
sary^ . . . .310

— statute and judiciarj', the

differences considered 314 et seq.
- order of its generation . 321

LIG

FAdB
Law of Persons and Law of

Things .... 345

— uses of the distinction . . 349

— public and private 366 et seq., 460
of political conditions,

place of . . . . 370

— substantive and adjective . 374

— of Things, main divisions

of 375

— imperative part of, the

essential part . . . 377

— of persons, subdivisions-of . 459
Lawyers, opinions of, not a

source of law . . 261,274

— their influence over judi

ciary law . . . 324
Legal, 'educatton should
commence with the study
of jurisprudence . . 156

— system adopted in Prussia . 157
Legal rights distinguished

from natural and moral
rights . . . _ . 160
Leges, strictly speaking, in-
cluded only those laws
passed by the populus . 25G

— also extended to plebiscita . 2bl
Legislation, connexion of the

science of, with jurispru-
dence . . . 9, 152

— tendency to confound posi-

tive law with this science 73
Legislative and Executive

functions ... 95, 97
Legislator, definition of the

term bv Ilobbes . . 141

— intention of . . 216,316
Legislature, incapacity of,

to perform the detail of
legislation . . .309

Legitima Portio . . .312

Legitimacy Declaration

Acr (1858), n. . .190

Legitime of French lav; . 312

Lewis (Sir G. C), his use of
the expression ' vested
rights ' . . . . 427

Lex, the term always used to

denote a particular statute 258

Liability, grounds of exemp-
tion from, . . 235 e' seq.

Liberty, civil, erroneous defi-
nition by Paley • . 74

— true nature of . . 111,165
Licence distinguished from

servitude .... 393
Light, servitude not to ob-
struct . . r .397

Index.

493

titt

PAGE

LIMITED Monarchy. (See
Monarchy)

• the term involves a con-
tradiction . . . Oi

Locke, his use of the term

'sanction' ... 3

— Iiis opinion on the ad-

v.incement of the science

of ethics . . 39

— division of laws given in-

cidentalh' in his ' Essay ' 71
LoKDS, House of, as a Court of

Appeal . . . .99

LlMINIBUS OFFICIATUE, SEP.-

viTus XE ... 397

MAINE (Sir II. S.), his
work on Ancient Law, ii. . 312

Mala in se and mala pro-

Aiiito, distinction of, . 51

the distinction tallies with

that into juris gentium

and jure civili . . .291

Malevolence, disixter-
KSTED, imputed to human
nature bj' Bentham, n. . 57

admitted or assumed by

Aristotle and Butler, n. . 57

Malice 212

Malthvs, his theory of popu-
lation .... 36

Mansfield, Lord, his ten-
dency to arbitraiy
notions of ' Equity ' . 76

— his statement that a carrier

is an insurer . . . 235
Martens, Von, his correct
views as to the nature of
international law . 61, 75

— his definition of sovereignty

defective .... 91
Master, rights of, over ser-
vant, are rights in per-
sonam . . . .186

— but rights of, to services

are rights in rem . . ibid.

— his liability for acts of his

servants .... 247
Mercantile Codes, n. . . 355
Mercantile Law, English

and Scotch, n. . . 181

Metaphor, meaning of the

term .... 59
Metaphorical Laws, nature

of ... . 38,76

— — often blended and con-

founded with laws proi>er 78

PAGE

Metaphorical Laws, error of

Blackstone in this respect 80

declaratory laws, laws

repealing laws, and laws
of imperfect obligation
should be classed with . 81

Mickle-mote was both a
legislature and a court of
justice .... 267

'Might is Right'. . .117

Mill (J. S.), his rationale of

natural classification, n. . 59

Mishap (casus) an excuse . 235

Mistake, paj-ment by, accord-
ing to English law, gives
rise to an immediate dutv
to refund . . ". 23t

— this rule irrational . . 232
Monarch. (See Sovereign)

— strictly so called . . .92

— limited .... 93
Monopoly a right in rem with-
out a determinate sub-
ject 189

Montesquieu, Ids use of the

term law ... 80

— his dictum, that political

power necessarily compre-
hends a number . . 88

Mora 233

Moral Instinct, or Moral

Sense, hypothesis of . 8, 21

— the supposition implies im-

mediate consciousness of
our duties . . 26, 44

— its existence must be as-

sumed if we reject the
principle of utilit}^ . . 44

— meaning of the various

equivalent expressions . ibid.

— the hypothesis involves two

assumptions ... 45

— the hypothesis partly em-

braced by Hume . . 47

— Butler its ablest advocate . 48

— compound hypothesis of ex-

istence of moral sense to-
gether with principle of
utility . . . .50

— the compound hypothesis

apparently adopted by
Butler .' . . '. ibid.

— the same is the foundation

of the division of law by
tlie classical jurists into
jus gentium and civile, and
by modern jurists into
law natural and positive 61

494

Index.

MOR

PAGE

Moral Rules, positive . 63, 64
Moral SA^•CTION ... 71

in international law . 85

iloRALiTY. (See Positive JIo-
rality')

— Eqaity as meaning . . 295
JIoRTGAGE in English law,

cliflFerence between, and
htfpoiheca of the Roman

law 415

Motive should not be con-
founded ■with utility con-
sidered as the test of
conduct .... 52

— goodness and badness of

motives .... 54

— in what sense all motives

are selfish, n. . . . 57

— existence of benevolent and

anti-social motives . ibid.

— theory of utUity not di-

rectly concerned with

motives . . . . .^8

— implied in the term ' right ' 160

— and in the term 'intention' ibid.

— necessity for analysis of • 199

— ' determining the will ' . 203

— when it concurs with inten-

tion. ... 205

MuHLENRRUCH, his crror in
supposing that status is a
capacity or faculty . 359

MuRAT, his description of cer-
tain American State
Legislatures . . . 3-29

VATIOX, conquered. (See
x\ Peregrini)

— meaning of term, n. . . 95
Nat c RE, law of ... 5

— the phrase a source of con-

fusion .... 6

— not a source of positive law 276
Natiral or physical sanc-
tions . ' . . .80

Natural law ... 5

■ distinction of natural

and positive law . 51, 289

Ulpian's mistake in ex-
tending the term, to in-
stincts of auimab . 78, 288

uselessness of the distinc-
tion between natui-al and
positive law . . . 290

■ disparate meanings at-
tached to the term . . 291

Natural Procedure, ap-

OBL

PACK

proaehed by Roman Sj's-

tem 298

Natural Rights, meaning

of the teiTn . . 292, 3C4
Xeghgexce involved with the

term 'right' . . .160

— analysis of the term . 199,208

— ' culpa,' the term as applied

to negligence examined . 211

— an essential component part

of injury . ._ . 224

— but is not of itself injury 224, 225
Nox-imputatiox, grounds or

causes of . . 235 et seq.
Notions pervading the science

of law, analysis of . 154-253
Nullities as sanctions . . 252

ABEDIENCE, habitual (See
^ Sovereignty), causes of .
Objects of rights and duties,
the teiTu ' res ' applied to
acts and forbearances con-
sidered as . . .

— what meant by, in this con-

text ....
Obligatio may be combined
with right in rem .

— the term ambiguous .

— meaning of, in Roman Law

— misunderstood by authors of

French Code ".
Obligatiox. (See Duty,
Duties)

— Paley's analysis of the term

— imperfect ....

— legal and moral, distin-

guished ....

— is positive or negative

— is relative or absolute

— what is implied in the term

— distinguished from 'sanc-

tion ' . . . .

— to will possible .

— but to desire or to suffer im-

possible . . . ibid,, 222

— how distinguished from

physical restraint . 221 et seq.

— is sanctioned by suffering . 223

— the terms 'injury' and

'guUt' contradictor}' to
the term ' obligation '
Obligations, divisions of, be-
long to general jurispru-
dence . *

— upon person? generally

124

167

178
184
228

336

12

18

63

161

ibid.

199

217
218

227

150

Index.

495

obl

PAGE

styled by author ' offices '
or 'duties' . . . 18G
Obligations upon determi-
nate persons styled ' obli-
gations ' . . . . ih\d.

— aiising from the possession

of res uliena . , . 232
Occult Qualities, the scho-
lastic notion of . . 35.5
Occupancy, title by . . 430
Economists (French), doc-
trines of, on govemment,7j. 1 16
Offences. (See Crimes)
Oligarchy, a form of aristo-
cracy .... 93
Omission . . . 207,224
Oper.e servorum . 400

Opinion, law set by general
(See Law, Positive
Morality') . 10, 65, et seq.

— analogy between a law pro-

per and a law set by
general opinion . . CG

— law set by opinion of a de-

terminate body analogous

to law proper ... 68

— ofprivate lawyers, influence

of ... . 261, 274

Origin or cause of political

government . . . 122

Original Contract, false
hypothesis of, as basis of
government . 127 et seq.

'Outlaw has no rights,'

meaning of the phrase . 278

Overt Acts, evidence of con-
silium or compassing, n. 174, 215

Ownership, preliminary de-
finition of the term . 177

— and servitus, the difference

between . , . 178, £85
.— limited, defined . . 401 et seq.

— (or dominium proper) defined 4 1 2

PACT, fundamental, theory of 128
Paley, his analysis of
obligation . . .12

— his views on Revelation . 21

— criticism of his ' Moral Philo-

sophy ' . . . .40

— his ' solitary savage ' . .45

— his mistake as to the theory

of utility . . .56, 57

— his definition of Civil Liberty 74

— wavers between the two

dissimilar meanings of
'right,' n. . . .118

PAGl

Paley, his rules for the inter-
pretation of contracts 216 and n

— his statement of the diffi-

culty arising from the
competition of opposite
analogies . . . 320
Pandects, nature of materials

from which composed . 306

— aiTangement of, purely un-

scientific . . . ibid.

— enormous fault of, if (with

Code) considered as a code

in the modem sense 316 e( seq.

Parent, why liable for acts of

his children . . .248

Parliament (British) is a
determinate body of the
'generic' description . 68

— holds its powers virtuallv in

trust . . . " . 97

— the ancient, was the ulti-

mate court of appeal . 98

— Act of, is a law set bj' the

sovereign body directly

and immediately . . 256

— is sovereign in India . . 260

— but not in Canada . . ibid.
Parliament (Scottish), the

ancient, was a Court of
ultimate appeal . . 99

Parliamentary Elections

Act (1868) . . . ibid.

Particular Jurisprudence,
distinguished from gene-
ral 147

Patent Rights are rights in

rem ..... 188

— are rights to forbearances

merely .... ibid.

Patria potestas, its large

extent in Roman Law 248, 368

was placed by Thibaut

under ' piiblic law ' . . 3G8

Pay's de droit ecrit and
pays de coutzimes, mean-
ing of the phrases . . 264

Penal actions . . . 251

Peregrini, difficulties arising

from their position . . 278

— how those difficulties were

overcome . . . 279

Permissive Laws . . 17
Person, implied in the term

'right' . . . .160

— in its proper meaning =

hn7no . . . .162

— this meaning adopted by

author . ■, . 163

496

Indix.

HISS,

PAGE

163
166

17o

172

164
166

i;

240
404

Pkksos sometimes used to
denote condition or status

— distinguished from ' thing '

— and from 'fact ' or 'event'
Pkksonam, rights in. (See Jus

in personam')
Pkrsonarum Jus. (See Jus

personarum et rerum)
Persons, natural, and legal or

iictitious . • .162

— fictitious or legal persons

are of three kinds .

— distinguished from things .

— and things distinguished

from events

— may be considered as things

where they are the sub-
ject of rights .

— under the age of twenty-five

were, by the Roman sys-
tem, presumed to be
ignorant of law
. — corporate bodies are legal
persons ....

— Law of Persons, its subdivi-

sions . . . 459 et seq.

Pkp.soxs and things, how
distinguished from
'events' .... 173

law of . . . 345 et seq.

the distinction identical

with Bentham's division
into ' general and special
codes' ....

uses of the distinction .

the distinction not con-
sistently followed by its
authors ....

Petitions of right 120 and note

pHILOSOniY OF POSITIVE

I, AW, an appropriate
name for the subject of
these lectures .

Physical or natural sanctions

Physical Cosi pulsion, dis-
tinguished from 'sanc-
tion ' . . . .

may affect the mind as

well as the body

not necessary to the in-
fliction of suffering

as a ground of exemp-
tion ....

Pjgnl'S or PLEDGE a.JHS in re
aliend according to the
Koman law

Plebiscitum ....

Political government. (See

350
349

352

148
80

221
222

223
248

41

255

PAOt

Government, Political
Societi/, Sovereignty)

Political and private condi-
tions, difficulty in distin-
guishing .... 367

Political economy, illustra-
tion from, to encourage a
hope of the advancement
of ethics .... 35

Political liberty, true

meaning of . . , . Ill

implied in the word ' right ' 161

is the absence of legal re-
straint . . . .165

Political society, Indepen-
dent. (See Independent
Political Society)

, the test of numbers not

an essential property of
subordinate . . . S9

origin or causes of, . 122

absolute end of, diflfer-

ently conceived . .131

habitation of a determi-
nate territory not an
essential property of, n. . 145

Political subordinates,
sovereign power exer-
cised through . . .95

Politics, importance of apply-
ing principle of utility "to 30

Pollicitation, when the term

is used . . . .130

Popular Prejudices extii--

pated bj' education . 37

Popular Government, mean-
ing of the term, . .112

— comparative merits of popu-

lar and monarchical
government, in a well
instructed community, n. 110

— in a community ill-instruc-

ted, the only means of
improvement, n. . .117

Population, Malthus' theorv

of . . . . '. 36

PopuLUS, legislative power of

Koman, .... 256

PoRTALis, his statement as to
the necessary imperfec-
tion of a code . . 333

— his share in constructing

the French code . . 338
Positive International
Morality (commonly
called International Law)
is a branch of the science
of positive morality , 61

Index.

497

POS

PACK

Positive I.VTERXATioxAr. Mo-
ra lity is not law proper 65, 80

what i« international mo-

ralityfrequentlyconfound-
edwith what ought to be . 7-1

this confusion avoided by

Von Martens ... 75

concerns the intercourse

of independent political
societies .... 85

— — according to, a govern-

ment de facto not neces-
sarily dejure . . . 142

sometimes styled jus

gentium .... 288

erroneously treated, by

some continental jurists
under the head of ' public
law' .... 372

Positive L\w is the appro-
priate matter of jurispru-
dence .... 5

resembles the Divine

Law .... 7

and certain moral rules ibid.

division of, into law natu-
ral una positive . . 51

reasons for use of the

term .... 60

• conflict between, and

positive morality . . 72

tendency to confound,

with positive morality
and other objects . . 73

• essential difference of, 82, 143

international law is not, 85

is the creature of the

sovereign or state . . 268

Positive Morality, defini-
tion of . . . . 6, 60

laws imposed bj' general

opinion are rules of, . 65

l»ws of honour . . ibid.

laws set by fashion . ibid.

confusion of positive

morality with what
morality ought to be and
with positive law . . 74

declaratory laws, laws

repealing laws, and laws
of imperfect obligation
ought to be classed with 81

— — distinction of sovereign

governments into 'law-
ful' and 'unlawful' is
not meaningless when
measured bv the standard
of , , ' . . . 142

PRE

PAGH

Possession and quasi-posses-
sion, the distinction made
by Roman lawj-ers . . 415

— the right of, explained . 443
PoTESTAs and obligatio . . 184
Power, sovereign. (See

Sovereign)
Practice, inseparable from

theory .... 28

— of private lawyers, influence

of, in making laws

261, 274, 324

Pr^cogno(5Cenda, more,
contained in the law of
things than in the law of
persons .... 364

Pr^DiUM dominans and ser-

viens . . . 164, 397

Pr^diorum urbaxorum et

RUSTICORUM, servitutes . 398

Pr^fectus Pr^torii, his
function in drawing up
decreta .... 327

Pr,ejudicia, or precedents, 266

— denied authority by Prus-

sian Code . . . 338

PR.ETOR Peregrixus, Origin

of his appointment . 279

the law administered bv

him . . . ". 280

Pr.etor Urbaxus, origin of

the office . . . 280, 297

his original jurisdiction

was confined to the ad-
ministration of law . 299

edicts of, difference be-
tween ' general ' and
' special ' ... 300

why the general edicts

were styled ' perpetual ' . 301

Pr.etorian" edict. (See

Edict of Prcetor) 300 et seq.

Pr.etoriax law, origin of . 282

sometimes identified with

jus gentium . . . ibid.

is founded on jus gen-
tium . . . .284

contrasted with Chancery

law .... 29G

formed by the Edict of

the Pr£etors . . . S02

was part of the jus

honorarium . . , ibid.

materials out of which

it was composed . . 303

changes under Hadrian . 305

Precaricm . . . .417

Precedents, effect of . . 266

498

Index.

PAGE

Precedexts denied authority

by Prussian Code . . 338

Prescription, title by . . 430

Presujiptioxs . . 241 et seq.

Peoiary eights distin-
guished from sanctioning
rights .... 375

method of theii* subdivi-
sion . . . 379

Princeps the onlj' constitu-
tional title of a Roman
Emperor .... 258

Private and public wrongs,

distinction between . 251

— or unauthorised lawyers, in-

fluence of their opinions

261, 274, 324

— and public law . 366 et seq.
Pria'ilege, its meaning in

Koman Law . . 16, 259

— and in common English

parlance . . .259

— properly so called (or per-

sonal privilege) distin-
guished from privilegium
rei 431

Privy Council, the judg-
ments of the Judicial
Committee of, as examples
of written law, n. . . 264

Proceeding in jure . . 298

— injudicio .... ibid.
• — judicium extra ordinem , 299
Procedure, civil and cri-
minal . . . 456, 459

Promise, intention of party to,

n 216

— not to sue void in Roman

law 251

Pp.oPERTY, preliminary defini-
tion of the term . . 177

— • various meanings of the

word .... 384

— distinguished from servitus

385 et seq.

— variously modified . • 406

— in the strict sense defined . 412
PROPRiETASused in distinction

to usufruct . . .414
Prussian sj'stem of law

studies . . . 157

Prussian Code. (See Code)

mistakes in conception

and arrangement of

334, 336 et seq.
Prussian Law-cojuiissiox,
their function in supple-
menting the code . 330, 837

KKL

PAGE

Public good an aggregate of

individual good . . 53

Public law% two principal

significations . . . 366

in strict sense, what . ibid.

place which it ought to

occupy .... 368

in large or vague sense . 370

various other meanings of 372

Pdffendorf, his confusion of
positive morality ■\vith
what morality ought' to
be 74

PuNiSHJfEXT, its purpose . 251

— what Bentham calls ' vicari-
ous punishment ' . . 252

Purchase, title by, in English

law 440

Potting to silence, a terra
of Scotch law for an ac-
tion declaring negatively
regarding the status of
marriage, n. . . . 191

QUASI-POSSESSION. . 415

Quasi-servitus . . 405

QuESNAi, his poUtical views, n. 1 17
Qui JURE suo utitur nemi-

NEM L^EDIT, almost iU

identical proposition . 389
Quia emptores. Statute of,
prohibited the creation of
new subordinate tenures 418

pASHNESS, defined 199, 205, 208

i\> — (alternatively, with in-
tention, &e.) an essential
component part of injury 224

— but is not of itself in-
jury .... 224, 225

Ratio decidendi, process of
extracting, from a judi-
cial decision . . . 318

Real right. (See jus in rem)

Real servitude . 396 et seq.

Reason, practical, an expres-
sion involving hj^po-
thesis as to the index of
Divine Commands . . 44

Reasonable, necessary

vagueness of this and
similar expressions . 88

Recht, ambiguity of the word,

n 118

Regul^ praxis . . . 261

Relative duties in respect

Index.

499

EEL

PAGE

of their remote purpose

are absolute duties . .195

Relative duties, difference

between and absolute duties 197

Relative rights, the term

ambiguous . . .184

Reji, right in. (See Jus in
rem)

Remorse, is it an innate feel-
ing? .... 45

Repealing laws . . .81

Represextatiox, theory of,

of people in Parliament . 96

— delegation of authority may

be absolute or subject to

a trust .... ibid.

— in this countrj', it is subject

to a trust ... 97

— the performance of the trust

can only be enforced
morally .... ibid.
Republic, meaning of . .94
Reputation, love of, as a mo-
tive . . . .65

— right to, is a right in rem . 189
Rescripta . . . 259, 'J63
Res, meaning of the word . 1G7
Res divini juris . . . 405
Res maxcipi .... 171
Res publico, private, com-
munes .... 403

Resemblance, the term de-
fined .... 58

Responsa prudentium, sup-
posed source of their au-
thority in the lawyers
who emitted them . . 274

— their source as law really

in the judge who gave
eifect to them . . . ibid.

— whether the prudentes who

emitted the responses had
ever any authority com-
mitted to them . . 275
Reus, meaning of . . . 228
Revealed. (Jiee. Divine Laxo)
Rewards, as motives of obe-
dience .... 13
Right, divine right of sove-
reign government against
its subjects . . .118
■ — ambiguities of the word, n. ibid.

— ideas implied in the tenn

' right ' considered 160 et seq.

— certain definitions of the

term, examined . .193

— cannot, properly spealdng,

be future, . . ". 405

EOM

PAGB

Right of possession . . 444
Rights in rem. (See Jus in
rem)

— in personam. (See Jus in

personam)

— created by treaty are not

legal rights . . .160

— of Persons and Things . 172

— arising out of a contract 178, 181

— of action . . . .179

— founded on an injur}' . . ibid.

— ' absolute ' and ' relative,'

the terms ambiguous . 184

— natural or inborn . 292, 3C4

— and duties divided into ' pri-

maiy ' and ' sanctioning '

or ' secondary ' . . 374

— division of primarj' rights

into rights * in rem ' and

' in personam ' . . 379

— appurtenant and in gross

396, 398

— limited by regard to succes-

sive enjoyment . 401, et seq.

— vested and contingent 419, et seq.

— and duties, sanctioning, how

classified .... 453

RojiAN Comjionwealth,

legislative power under . 256

RojiAx Law, advantage of the

study of, . . . .153

RojLAX Emperors were them-
selves judges in the last
resort .... 259

Roman Lawyers, true merits

of their writings . . 75

— — meaning attached by

them to the word ' person' 102
the term ' thing ' extend-
ed by them to acts and
forbearances . . .167

slaves sometimes stj-led

♦things' by them .' . 168

— — their division of things

iuto 'corporeal' and 'in-
corporeal' . . .169

— consistency of their writings

an argument for a code
being practicable . . 310

— did not limit the term status

to the tria capita . . 361

— errors of their system of

division of the corpus
juris .... 303

— the distinction between ' ser-

vitus' and 'dominium'
not laid down by them . 400
RojULLY, Sir Samuel, bid

500

Index.

EOM

PAGE

remarks upon interpreta-
tion. .• . . . 320

RoMiLLY, Sir Samuel his ob-
jections tojudicial legisla-
tion .... 323

RossHiRT, his analysis of

culpa, or guilt . . 226

Rules ok practice of the
English Courts are not
written law in the juri-
dical sense . . . 261

SALE of an immoveable in
French law is a convey-
ance as well as a contract 181
Sanction, meaning of . 8, 12, 13

— religious, moral and legal 70, 71

— distinguished from ' Jbliga-

tion' . . . .217

— its direct effect is to compel

to right . . . .218

— its remote effect to inspire a

disinterested love of jus-
tice 219

— how distinguished from

physical compulsion . 221

— two classes of sanctions,

' civil or private ' and

' criminal or public '. . 249

— in a civil injury the sanction

is enforced at the instance
of the injured person or
his representative . . ibid.

— in a criminal injury the

sanction is enforced by

the State. . . .250

— various meanings and ety-

mology of the word . 253

Sanctioning rights as dis-
tinguished from primary
rights, a main division of
rights .... 375
Savigny, his account of legal

education in Prussia . 157

— his description of law as

composed of two elements
which he names the
' political ' and the ' tech-
nical' element . . 325

— his treatise on the call for a

code in Germany . . 334

— his objections to codifica-

tion examined . . 339

— his controversy with Thi-

baut on the subject (note
by Mrs. Austin) . . 343
Sciiuu>NEi(, meaning of . 228

BJEV

pagr

Scotland has a well defined

sj'stem of criminal law, ii. 19G

Scottish Parliament, the
ancient, was a court of
ultimate appeal . . 99

Security, classed by Black-
stone with ' absolute
rights' . . . .365

Selfish system, the theory of

motives so called . . 56

Self-regarding duties,, one

kind of absolute duties 194

SENATDS-coNSULTA,laws made
by the Roman Emperors
were pubhshed as Senatus-
Consiilta .... 258

Servant. (See Master}

Servitude. (See Servitus)

— styled by Roman lawyers

JUS in re aliend . . 390

— the order in which servitudes

are considered . . .391

— every ser\'itude is a jus in

rem 392

— distinguished from licence 393

— the distinction of real servi-

tudes into ' urban ' and

' rustic ' . . . . 397

— absolute duties are not ser-

vitudes .... 399

— the so-called personal servi-

tudes .... ibid.

1. ususfructus . . . ibid.

2. usus .... ibid.

3. habitatio . . . ibid.

4. ope.rcB servorum . . ibid.
Servitus.

— difference between 'owner-

ship'and ' seryiias' . 178

— is a right in rem . . ibid.

— distinguished from do-

minium .... 383

— the distinction between ' ser-

vitus' and 'dominium' not
laid down by the Roman
lawyers .... 400

— the meaning of the term, as

used b^' them . . . 401

— limited to ' real servitudes '

by Justinian . . . ibid.

— his method followed by the

French Code . . . ibid.

— what is quasi-servitus . , 405

— considered as a species of

jus in re aliend . . 413

Sevkkus, Alexander, dates
the conclusion of the
series of Classical Jurists 286

Index.

501

BIC

PAGE
Sic UTERZ TUO UT ALlErNUSI

NON L^PAS . . . 389

Sidney asserts that sove-
reign power is incapable
of legal limitation . .113

Skill, want of, Avhy a ground

of liability . . .2-17

Slave, according to Roman

law, was a person 1C"2, 168, 188

— what was meant by his

being called a thing or
chattel . . . 108, 187
Society, independent political.
(^See Independent Political
Socieii/)

— natural .... 87

— political, origin of . 91, 122
Soldiers, under lioman sys-
tem were presumed to be
ignorant of law . . 2-10

Sources OF law, meanings of

the phrase . . 254 et seq.

Sovereign. (See Government,
Sovereignty^

— various meanings of the

term, n. . . . .94

— powers, delegation of . .95

— half-sovereiga states, nature

of 100

— power incapable of legal

limitation . , . 105

— attempts of sovereigns to

oblige themselves or their
successors . • . ibid,

— ' unconstitutional,' the term

as applied to the conduct

of a sovereign . . .107

— by English law the king is

not, although by an acci-
dent of the British consti-
tution, he is in fact free
from legal obligation

110, 120, n.

— government cannot have

legal rights against its
own subjects . . .116

— but may have divine and

mora/ rights . . 118,119

— foreign, may sue in their

sovereign capacity in the
English Courts of law and
equity, n. , . . 122

— governments, division of,

into governments de jure
and governments de facto 141
•— legal duties flow from the

command of the . . I[t8

— laws made directly by the

8TA

FAGI

sovereign, exampits of

256 et seq.
Sovereign, laws not made
directlj' by the sovereign,
examples of . . 260 it seq,

— status of . . . 367, 464
SoAEREiGNTY. (See Govern-
ment, Sovereign") , , 11

— implies an independent poli-

tical society ... 82

— distinguishing marks of,

1. a habit of obedience to
a common determinate
superior .... ibid.

2. independence on the
part of the monarch or
sovereign number . . ibid.

— and subjection, their relation ibid,
— the two distinguishing marks

must be united to consti-
tute, .... 83

— the habit of obedience illus-

trated by the state of
France in 1815 and in
1871 .... 83

— to constitute, there must be

a habit of obedience by
the generality to one and
the same determinate per-
son or body ... 84

— definition of, by Bentham . 90

— by Hobbes .... thid,

— by Grotius .... ibid.

— by von Martens ... 91

— various forms of . . 92 et seq.
Special Constitutions were

laws made by the Roman
Emperors regarding per-
sons or cases . . . 259
Species and ^en«s . . . 170
Specific pertbrmance of con-
tract .... 171
Spes Successionis . . 411,420
State, meaning of, n. . . 94

— concession by . . 406, 428

— as a proprietor . . .403

— ultimus hceres , . .411
Status, right to, jus in rem . 189

— action affecting status un-

congenial to English laAv

191, and note

— the notion of, is the basis of

the distinction between
the Law of Persons and
the Law of Things 345 et seq.

— what constitutes . . 347

— the rights, &c., constituting

status bear certain marks 348

502

Index,

STA

PAGE

1. the condition resides in

an individual as a
member of a class . 348

2. the rights which con-
stitute status specially
regard persons of that
class .... ibid.

3. the class must be of
such a nature that it
cannot include all
persons . . • ibid.

4. the rights, &c., must be
such as to be a con-
spicuous character to

the individual . . 349
Status, erroneous definitions of

354, 356, 358, 359

— distinct from caput . . 361

— classification and subdivi-

sions of . . . . 460
Statute law, principles of

construction . . . 316

— advantages and disadvan-

tages of statute and judi-
ciary law, so far as re-
lates to forni . . 332 et seq.
Stephen's Indian Evidence
Act cited to describe
the three classes of pre-
sumptions, n. . . . 242

— as an example of codifica-

tion, 7i 334

Stillicidii servitus . . 394
Stuangers. (See Peregrini')

— amenable to the law of the

country in which they re-
side 143

— property of, law may be

executed against . . 144

— under Roman law had no

rights . . . .278

Suarez (the ablest of the
authors of the Prussian
Code) overruled by Von
Kramer in the arrange-
ment as to contracts . 336

Subjection — the relation of

sovereignty and . . 82

Subjects when justified in re-
sisting established govern-
ment .... 29

Subordinate, supreme and,
division of political
powers into . . . 100

— legislatures, laws made by
Substantive and Adjec-
tive Law, explanation

of the terms . . 300,374

THl

PAQB

Substantive and Adjective
Law, objections to the
terms . . . 374,375

Substitution of heirs . . 410

Succession to sovereignty.
(See Government^

— per universitatem, et rei sin-
gula . . . 448, 451

Successive o'v\Tiership . 406 et seq.

Suicide, reason of duty to ab-
stain from . . .195

SuLPicius, Servius, the f^end
of Cicero, and first of the
classical jurists . . 286

Superiority, here signifies

' might ' . . . . 16

Superficies, a species of jus

in re aliend . . 401,414

Superior, involved in the

notion of command . . 8, 17

Superioritt, the term ana-
lyzed .... 16

Supreme, and subordinate, di-
vision of political powers
into 99

Supreme Federal Govern-
ment .... 102

Supreme Government (See
Government, Sovereign,
Sovereignty^

Swiss Confederation . .104

Sympathy, theory as to . 56

TANGIBLE and intangible,
the use of these terms in
the philosoph}' of the
Epicureans and the Stoics 167
Temerity. (See Hashness')
Tenure, the term explained . 416
Terror as a ground of ex-
emption .... 248
Testamentary power, legis-
lation of Pr£etors regard-
ing 312

Testators, what is meant by

intention of . . . 216
Theophilus translates Jus
personarum — ij twv jrpo<r-
aiTiiav 5iatp€tri! . . , 172

Theory and practice, ima-
gined opposition of 27, 28

Thibaut, his work on the
intei-pretation of the Ro-
man law .... 319

— his definition of status . 359

— places patria potestas and

tutela under public law . 868

Index.

503

PAGE

Thing implied in the term

'right' . . . .160

— Proper meaning of . . 166

— other meanings of the

term . . . 167 et seq.
Things, division of things
into ' corporeal ' and ' in-
corporeal ' . . . 167

— slaves sometimes styled

' things' .... 168
— moveable and immoveable . 169

— specifically and generically

determined . . . ibid.

— fungible and not fungible . 170
•^ mancipi and nee mancipi . 171

— Law of, as distinguished

from Law of Persons 345 et seq.
Titles, the subject introduced 428

— considered generally . . 431
— functions of. . . . 433

— Bentham's criticism of the

term .... 434

— extended meaning . . 435

— simple and complex . . 436

— essential and accidental

facts of . . . . 437

— various classifications of . 441
— jure gentium and civili . ibid.

— original and derivative . 442

— by descent and purchase . ibid.
Tkeatt, rights created by,

not legal rights . .160
Trespass, nature of right

arising out of . . . 177
Trusts, subject of Equityjuris-

diction .... 313

— belong to all systems . . ibid.
TuTELA, considered by Thibaut

under Public Law . . 368
Tteaxnicide, the result of

misguided benevolence . 55

CLPIAN, his attempt to de-
fine jurisprudence . . 75

— bis jus naturale . . 79, 288

— was the last of the ' classi-

cal ' jurists . . . 286
UxcoNSTiTUTioNAL, the epithet
as applied to the conduct
of a sovereign . . .107

— does not imply ' illegal ' . ibid.
Unilateral, when the term

is used .... 13G
United States of America,

form of government . 1 03
Univeesitates juris . 357, 447

PAGB

Universitates reeum . . 171
Unjust, analysis of the term,

n 108

Unwritten Law. (See

fVritteii Lau})
UsuFRUcrus . . 399,401,410
Usus .... 399,401
Utilis, derivation of the word,

n 304

Utility, hypothesis of, as the
index to the unrevealed
Divine commands,referred
to in preliminaiy analysis 8

— brief summary of the theory 22

— infers Divine commands

from general tendency of
human actions . . 23

— first objection to the theory,

a dangerous guide . . 25

— first answer to this objection 2(5

— second answer . . . ibi-J.

— the hypothesis admits the

play of moral sentiments
as the immediate motives
of action .... 28

— but in anomalous cases our

conduct must be guided
immediately by the prin-
ciple of utility through
calculation of the specific
consequences of the act
contemplated ... 29

— importance of applying the

principle of, to political
questions ... 30

— second objection, difficulty

of mastering tlie princi-
ples of the tiieoiy so as to
ascertaii'. the Divine com-
mands .... 32

— how the difficulty is solved

or extenuated . . 33 e/ seq,

— the suggested inconveni-

ence applies to all the
arts and sciences . . 33

— but, it must be admitted,

applies in a peculiar de-
gi'ee to th« science of
ethics .... 34

— this evU, it is to be hoped,

will gradually be re-
moved by the operation of
two agencies : 1st, the
diffusion of the leading
principles of the science
among the masses ; and
2adly, the advancemeni
of the science itself b»

504

Index.

vn

PAGE

the work of numerous
impartial enquirers 35 et seq.
Utility, the second of these
agencies itself promoted
by the operation of the first 89

— the imperfection of utility

as an index no proof that

it is not the index . . 43

— the argument similar to

that of Butler's ' Analog3' ' ibid.

— misconceptions regarding

the theory . . o2 et seq,

— theory of utility has no

necessary connection with
any hypothesis concerning
the nature or origin of
motives .... 57

yESTED, meaning of the
V word, as applied to rights

423, 426, 427

— meaning of, as applied to a

remainder in English Law 425
Volition, a wish antecedent

to an act . . . . 200

— strictly applies only to

those wishes which are
immediately accomplished
in a bodily movement . 202
Voluntary and contentious

jurisdiction . . .377

WARD, rights of guardian
over, are rights iri per-
sonam .... 186

— but rights of guardian to

custody of, are rights in
rem ..... ibid.

WEO

rAoa
Will implied in the term

♦ right' . . . .160

— why necessary to analyze

the term . . . ' . 199

— what is really meant by it 200

— dominion of, restricted to

certain bodily organs . 201

— differs from motive . . 202

— and from intention . . 204

— an obligation to will not

impossible . . .218

— supposed conflict of, with

desire . . . .219

WiTTENAGEMOTE, was both a
legislature and a court of
justice .... 267

Wish. (See Act, Will)

Women under the Roman
system presumed to be
ignorant of law . . 240

Written and unwhitten

LAW . . . 254 et seq.

the juridical meaning of

the terms, or meaning as
understood by modem
Civilians .... 255

also called ' promulgated '

and ' unpromulgated ' law 262

this meaning adopted by

Hale and Blackstone . 264

the grammatical mean-
ing of the terms, or mean-
ing as understood by the
Roman lawj'ers . . 263

use of the terms bv Glan-

ville, n. . . ' . .265

Wkong. (See Injury')

Wrongs, public and private

196, 249 et geq., 370

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