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THE INSTITUTES OF LAW

ITu? ecTTt vo/jiO'; cvprj^xa [xlv kol Suipov ©ewv.

— Demosthenes.

" Das eine Gesetzbucli des Reclits ist die Gottliche Weltordnung. "

— Krause.

"All human laws are, properly speaking, only declaratory."

— Burke.

Moj/ov yap fjLovLfJiov TO Kar ct^tav icrov, kol to e^ftv to. avToiv.

— Aristotle.

"The unfettered multitude is not dearer to me than the unfettered king."

— ClIANNlNO,

THE INSTITUTES OF LAW

A TREATISE OF THE

PPJXCIPLES OF JUEISPEUDENCE

AS DETERMINED BY

NATURE

JAMES L 0 R I M E R

Al>VOCATE, REGIUS PROFESSOR OF PUBLIC LAW AND OF TUE LAW OF NATURE AND

NATION'S IN THE UNIVERSITY OF EDINBURGH, MEMBER OF THE INSTITUTE

OF INTERNATIONAL LAW, AND CORRESPONDING MEMBER OF THE

ACADEMY OF JURISPRUDENCE OF MADRID, ETC.

SECOMj lllJlTlON, IlKnSEn and ICXLAliCKI)

WILLIAM JiLACKWOOl) AND SONS

KDTNBURGTI AND LONDON

MDCCCLXXX

All tiiaktt rrtrrvril

IKE IKSTITUTF. CF lt;rriAIVAL SlU ^i

IC ELWSLHY PLACE

TORONTO 5, CANADA.

FEB 12

A r^Otf%

TO THE

DEAN AND FACULTY OF ADYOCATES IN SCOTLAND,

AND THROUGH THEM TO THE

WIDE FKATERXITY OF JURISTS IN OTHER LANDS,

THIS ATTEMPT TO

VINDICATE THE NECESSARY CHARACTER OF JURISPRUDENCE

BY EXHIBITING IT AS A BRANCH OF THE

SCIENCE OF NATURE,

IS RESPECTFULLY DEDICATED

BY THEIR LOYAL AND AFFECTIONATE BROTHER,

THE AUTIIOlf.

PREFACE TO THE SECOND EDITION.

It has often been a subject of regret to me that the specula-
tive tendencies of my countrymen were not directed more
definitely to the life of man in Society and in the State.
Had those great thinkers who have rendered the Scottish
School of Philosophy illustrious set before them the task
of placing Politics and Jurisprudence on a scientific basis,
Political Economy might, long ago, have ceased to be the
only practical science for which the world was indebted to
a Scotch professor.

This task I recognized as more immediately incumbent on
the occupant of the Chair which I had been called to fill ;
and the desire of contributing, however luimbly, to its accom-
plishment, has determined the cliaracter botli of my oral
teaching and of this Text -book.

Although tlie present is not a speculative age, in some
respects it has, unquestionaljly, been favouraljle to tlie work
wliicli I had in hand. That miti'^ation of dogmatism whicli

o o

Mr Herbert Spencer has wittily described as the " tlicological
thaw," by ona))ling us to distinguisli Ijctwoen tlie temporary,
local, and relative, and the permanent, universal, and absolute
♦tlemcnts in religious systems, lias '/wom to llic history of

Vlli PREFACE TO THE SECOND EDITION.

religious opinion a value for secular purposes which it did not
formerly possess. I have, consequently, not liesitated to avail
myself of the rich materials with which oriental scholarship
has now furnished us, in order to bring into prominence the
unvarying ethical element which underlies all variations of
d<.)gma and of ritual. This ethical element — clearer, from the
iirst, in the higher than in the lower races of mankind —
becomes clearer and more definite as the conscious life of eacli
race evolves itself, and as its accordance with subjective and
objective revelations of the scheme of the universe is perceived.
As faith becomes more reasonable, reason becomes more faith-
i'ul, and ultimately we must hope that the great • problem of
Scholasticism will be solved by their culmination in a joint
result. It is to the rule of life thus gradually recognized,
that I have given the name of Natural Law, and, in the
concrete realization of which I have sought the line along
which all true Positive Legislation must necessarily travel.

Conformity or non-conformity with Natural Law, in this
sense, is, to my mind, the only conceivable measure of the
value of social activity that is either permanent or uni-
versal ; and it is on this ground that I have adhered to the
academical method which relied on it, in place of adopting
the. method of measuring actions by results, on which the
modern science of Sociology depends. Before we can measure
by results, the results must be measured ; and my difficulty
with reference to utility, when proposed as the ultimate
measure, as I have elsewhere explained, is — quis custodit
custodcm? Utility, in its turn, must be measured by some
end or ol)ject wliich it seeks, and, till we reach a teleological

PREFACE TO THE SECOND EDITION. IX

measure that transcends individual or national tastes and
sentiments, Pilate's question regarding truth will apply to it.
Short of nature there is no science of ends ; and to ascribe
either utility or inutility to means irrespective of ends, is
mere baseless dogmatism. If the results which we declare to
be useful be identified with the objects of nature's legislation,
the whole aspect of the aftair, of course, is changed. Our
results become ends, and not only they, but all the means
that contribute to their attainment may safely be labelled as
useful. But, in that case, Sociology presupposes scientific
jurisprudence.

Utilitarianism, as anything more than a phase of the in-
ductive method, scarcely crossed the Border, and never crossed
the Channel at all. But so firm was the hold which it took
on England in the last generation, that to many of my elderly
and middle-aged readers the possibility of its " utility " being
called in question has probably never presented itself. On
the other hand, it is rare, I believe, even in England, to find
a Benthamite pur sany who is under forty. I do not tliink
one has turned up amongst my students for the last ten years,
though many of them liave been graduates of the English
universities ; and before another decade elapses, tlie preference
for tlie older and grander traditions wliich Grotius inlierited
from Socrates, " the great lawyer of antiquity," as Lord Mans-
field called liiui, through tlie Stoics and the Koman Jurists,
over those which Bentham transmitted to Austin, will, I hope,
be as universal and unequivocal as that for classical and
mediieval architecture over the architecture of the (jleorgian
era has already become.

X TREFACE TO THE SECOND EDITION.

This second edition does not differ essentially from the
first; but in many directions, I trust, it has been rendered
clearer in statement and more consistent in argument,
in consequence of the sincere though generous criticisms
of my colleagues of the Institute of International Law,
and the daily friction of the lecture - room, where, for the
hist seven years, the first edition has been used as a text-
book by the exceptionally advanced and cultivated class of
students whom it has been my privilege to address. As I
have been careful to avail myself of suggestions and indica-
tions of opinion from both sources, whenever they appeared
to me to be of value, the work in its present form may be
regarded as the result of a process of development, rather
tlian of a single effort of composition. To some extent it has
the character of a bill that has not only been read a second
time, but has passed through committee ; and for this reason
I present it to the profession and to the public with fewer
misgivings than I felt in the case of its predecessor. For
many valuable suggestions, and criticisms of a minuter kind,
as well as for the revision of the sheets as they passed througli
the press — an aid whicli my imperfect sight has rendered
more indispensable than formerly — I am indebted to my friend
Mr John Kirkpatrick. As Mr Kirkpatrick is a graduate of
three universities — Cambridge, Heidelberg, and Edinburgh
— and has had much literary experience, both as a writer
and an editor, his kind interposition on this occasion has
been a boon to my readers as well as a favour to me.

Witli all these advantages I must not hope that I have suc-
ceeded ill 111,'ikiiig tliis work even a perfect expression of what

PREFACE TO THE SECOND EDITION. XI

was, no doubt, an imperfect conception. But I have been
mindful that, as all is not gold that glitters, so all is not deep
that is dark ; and I can honestly say that I have left no in-
tentional " secrets " for my readers to puzzle out. The English
language is capable of conveying clearly whatever we have
got clearly into our heads, and the apology which Coleridge
offered to those who accused him of obscurity — intelligibilia
hand intellechtm adfero — is one which must be very sparingly
used. The book is intended not for jurists only, but for
cultivated persons generally, and if it is not generally intelli-
gible, the fault is mine.

CONTENTS.

INTRODUCTION
Preliminauy Definitions and Divisions,

PAGE

BOOK I.
OF THE SOUECES OF NATURAL LAW.

Chapter L— Of the Sources op Natural Law.

I. The Primary Source, or Source of Law itself,
II. The Secondary Sources or Channels of the Revelation of Natural
Law, .....

1st, Direct revelation,

(«) Miraculous revelation to man,
(6) Miraculous revelation through man,
(c) Special revelation through man,
2d, Indirect revelation,

35
35
35
35
36
37

Chapter II. — Of the ScHo<M.^5 ui Jlrihprudence.

l«t, The Theological School, .....

(a) ItA reality, ......

(h) Its aderjuacy, .....
Jd, The Inductive or Observational School (Subjective and Objective),
id. The Subjective, or so-called Philosophical School,
Uh, The Objective, or Sensational School,

39
39
40
45
•10
48

Chaiter III. — Of the Autonomy of Human Nature.

Int, Our nature asw^rts its existence, and vindicates its assertion, . 55

M, Our nature guarantees the veracity of it« testimony with rcfiTencc to

it« qualities, . . 50

COIs'TE^'TS.

iiil, Our nature asserts tliat it is the result of a cause external to itsell",

and independent of its volition, . . ... 57

4th, Our nature accepts itself as a gift, voluntarily given, but necessarily

received, ........ 58

5th, In accepting itself a& necessary, our nature accepts itself as right,
and its fundamental qualities and radical impulses as the
absolute criteria of right and wrong, .... 59

Chapter IV. — Inquiry into the History of Opinion with

REFERENCE TO HUMAN AUTONOMY.

{A) The canon of the limitation of the historical method,

[B) The canon of the application of the historical method,

(6') The regulative canons for the application of the historical method, .

1st, Preference must be given to the best witnesses, .

2d, Even amongst the witnesses whom wc admit, the principle that

testimonia 2Jondcranda sunt, non numeranda must be applied, .

•3d, The abstract value of two witnesses being equal, the value of a

coincidence betAveen their testimony will increase in proportion

to the dissimilarity, and diminish in proportion to the similar

ity, of the circumstances in which it is given, .

(j-l) Of Oriental, or ante-Classical Anthropology generally,

(«) The Shemitic Races, .

(b) The Aryan or Indo-Germanic Races,

Lst, The original Aryan Family,

2d, The Eastern, or Indian Branch,

3d, The Western Asiatic Branch,

4th, Non- Aryan and Mixed Races of Asia,

5th, Buddhism, ....

The Chinese, ....
(//j Of Classical Anthrojjology, .

(a) Greece, .....
(/>) Rome, .....

1. The Roman Law,

2. International Law, .
(r) Alexandria, ....

(C) Sliemitic and Christian Anthropology,
{n) The Bible,
(h) Tlie Fathers,
(/:) The .Schoolmen and Ecclesiastical Jurists,

(d) The Refoiiiiation,

66
66

74
74
77
80
94
102
104
105
119
120
126
126
145
154
157
15P
161
161
162
165
171

CONTENTS. XV

Chapter V. — Human Nature Reveals its own Impotence, . 175

Chapter VI. — How Man becomes Cognizant of the Rule op Life.

(ri) The rule of life is prescribed by our whole nature, . . . 184

{b) Conscience is not a separate faculty, . . , . .186

Chapter YII. — Of the Rights and Duties which Nature Reveals.

1. Nature reveals no rights in relation to the Creator, . , . 205

2. Nature reveals to us duties in relation to the Creator, . . . 207

3. In our relation to creation, animate and inanimate, nature reveals

rights, ........ 212

(rt) The fact of being involves the right to be, . . . 212

(b) The right to be involves the right to continue to be, . . 213

against God, . . . . . . .214

(d) The right to be, and to continue to be, implies a right to the

conditions of existence, ...... 215

(e) The right to be implies a right to develop our being, and to the

conditions of its development, ..... 222

(/) The right to be involves the right to reproduce and multiply our

being, ........ 226

(fj) The right to reproduce and multiply our being involves the right
of transmitting to our offspring the conditions of the existence
which we confer, ...... 229

(h) The right to be involves the right to disi)ost' of the fruits of

being, inter vivos, ...... 230

(ty The right to be involves the right to dispose of the Iruits of

being, mortis cauad, ...... 233

(J) All our subjective rights resolve themselves into the right to

liberty, ........ 235

{k) In the limitations which nature impo.scs on our subjective rights,

we have the first revelation of tlic principle of order, . 23G

{I) Nature reveals to u.s the po.ssibility and the con.scquences of the

tran.sgrcssion of her laws, ..... 237

{in) Nature reveals objective rights which exactly correspond to uni

8ubjectivc rightH, ...... 238

J. Nature revcalB objective duties, or duties by others to us, whicli
exactly corrcMiiond to our subj«'«-tivc duties, or duties Ijy us lo
otherH, . .212

' The cxiMt/ince of «ubje<;tive and objective rights and duties, and of
their mutual dependence, conMtitnte the «ol<; n-vidation wlii<|i
nature niakeH to uh with reference to lium.in k jiilioi;^ , 'i\'i

XVI CONTENTS.

ClIArTKll VIII. — How WK BECOME CoGNIZANT OF LaW IN GENERAL.

1. Natural laws are rational inferences from the facts of nature, . . 244

"2. Natural laws arc necessary inferences from the facts of nature, . 245

3. Natural laws determine the ultimate objects of positive laws, and fix

the principles of jurisprudence as a whole, , . . 247

4. The natural or de facto basis on which positive law rests being

known, the positive law which governs any given human relation

may be discovered, ...... 250

5. Though necessarily existent and discoverable, positive laws never

have been, and probably never will be, perfectly discovered, . 253

Chapter IX.— Of the Laws of Nature, or Principles of Jurispru-
dence WHICH Result from the Human Rights and Duties which
Nature Reveals as Facts.

{a) All human laws are declaratory, ..... 255

{h) Law cannot change the character, or alter the relations of persons, . 259

{(•) Law cannot constitute, extend, or circumscribe a proprietary relation, 259

{d) Law cannot change the price of any commodity, . . . 274

Chapter X. — Of the Relation between Legislation and

Jurisdiction.

The function of the judge, as such, is limited to the interpretation and

application of written or of consuetudinary law, . . . 277

Chapter XL — Of the History of the Distinction between Perfect
and Imperfect Obligations, and its Effect in giving rise to
the Negative School of Jurisprudence.

{a) Rights and duties being throughout reciprocal and co-extensive, there
is no distinction, in principle — i.e., in nature — between one class
of obligations and another, ..... 282

{h) The attempt to distinguish between perfect and imperfect obligations

was not unknown to antiquity, ..... 286

Chapter XIL— Of Justice and Charity.

(a) Tlic principles of justice and charity are identical ; their separate
realization is impossible ; and their common realization necessarily
culminates in the same action, ..... 314

CONTENTS.

xvii

(6) The doctrine of the identity of the principles of justice and charity
was taught b}' Christ's mediatorial sacrifice, and is implied in the
whole scheme of redemption, ..... 334

(c) The doctrine of the identity of justice and charity was not first pro-
mulgated by Christ, and is not exceptionally Christian, . . 339

BOOK 11.

OF THE OBJECTS OF NATURAL LAW AND JURIS-
PRUDENCE IN GENERAL,

Chapter I. — Of the Relation between Jurisprudence and Ethics.

(a) The ultimate object of jurisprudence is the realization of the idea in

the ideal of humanity, ...... 353

{h) The proximate object of jurisprudence, tlio object which it seeks as a

separate science, is liberty, ..... 353

Chapter II. — Of the Relation between Order and Liberty.

Order and liberty, like justice and charity, are in principle identical.
They can be realized only in conjunction, and necessarily cul-
minate together, ....... 368

Chapter III. — Of the History op the Doctrine that the Idea of
Liberty involves the Idea of Absolute Equality.

(a) A.S a protest against authority,

(A) By the Jesuits,

{fl) Spinoza,

U) Kou.sseaii,

(/) Democrats of the Revohitioii,

(g) Ahrcns,

378
378
379
385
388
392
393

(/HAPTEH IV. — Of the Relation of Equality to Liberty continued.

In what sense is equality involved in tlio idea of liberty 'i Tlio iiha of
lilxirty involves the i<lea of e<niiility in one sense only — thnl wliidi
is iK)pularly called " (Mjuality before the law," 102

(a) Analytic ju.Hticc, .... lo5

(/>) Synthetic Jiistie*', . ind

xviii CONTENTS.

Chapter Y. — Of the Limits within which Aggression is a

Natural Right.

{(() Ajjfjrcssion is a natural right, the extent of which is measured by the
1)0 wer which God has bestowed on the aggressor, or permitted him
to develop. Up to this point, the right of conquest, individual,
social, political, and ethnical, is involved in the idea of liberty,
and included in the objects of jurisprudence, . . ,414

(h) An end that is just, justifies the means requisite for its attainment ;
the right of aggression, consequently, justifies the application of
force, and involves the right of war, when, and to the extent to
which, force or war is necessary for its vindication, . . 419

BOOK III.

OF THE SOURCES OF POSITIVE LAW, OR SPECLAL
JURISPRUDENCE.

Chapter L — Of the Ultimate Sources of Positive Law.

(a) The Law of Nature, . . . . . . .425

(b) The conditions of existence under which that law must be realized, . 425

Chapter II. — Of the Proximate Sources of Positive Law.

{((J The primary source of positive law is the real power of the whole
community subject to the law, as exhibited in and measured by
its rational will, . . . . . . .426

(b) The secondary sources of positive law are the means by which the
community vindicates its real as distinguished from its merely
apparent power, . . . . . . .426

Chapter III. — Of the Primary Source of Positive Law.

{(/.) Real positive law, as distinguished from mere enacted law, will exist in
a community, and the community will be practically autonomous,
to the extent to which power and reason exist and coincide in it, . 426

(b) Positive law can originate and subsist in a community only to the
extent to which that community is free, and all true legislation
is thus, in the last analysis, self-legislation, . . . 429

(r) Positive law can spring only from the whole autonomous community

wliirh obeys it, . . . . . . .434

CONTENTS. XIX

{(l) As the presence of positive law is proportioued to the existence and
coincidence of power and reason, the contributions which the in-
dividual members of the community are in a condition to make
to it will be proportioned to the existence and coincidence of
power and reason, or the existence of real power, in each of them, 48(3

Cfeapter IV. — The Doctrine op the Necessary Sovereignty of the
Rational Will of the Whole Community is in accordance
with the Common-sense of Mankind, . . .437

Chapter V. — Of the Secondary Sources of Positive Law.

The secondary sources of positive law are the means by which the com-
munity vindicates its real as distinguished from its merely ap-
parent power, ....... 447

I. The means by which the community forms its rational will, . 447

1. The Church, ....... 448

(1.) It alone seeks to influence the will, not only indirectly,

through the understanding, but directly, . . .450

(2. ) It appeals to the classes that are least within the reach of

other influences, and retains its hold on them during life, 453

2. The School, including the University, in so far as the latter is

regarded merely as a means of instruction and discipline, and

not aa an organ for the advancement of science, . . 459

3. The Press, ....... 469

4. The Polling-booth, ...... 472

II. The means by which the community develops its mtional will, . 476
(a) Conscious effort on the part of individuals and classes, . . 476
(&) Social organisation, ...... 491

exceptional work, ...... 494

III. The means by which the community ascertains its rational will, . 504

(a) The amount of organization requLsite for the ascertainment of the
rational will is in an inverse ratio to the amount of direct per-
sonal contact with each other, on the part of the individuals
whose rational will is to be a.scertaincd, . , r^or,

(h) For purposes of practical legislation it will, in grncnil, be neces-
sary tliat all citizens included in each political class or categoiy
\n: dealt with as contributing an criual amount of rational will, .'".lo

(r) The classincation wlii<;h oxi.sts for economical and social jmr-
poses, for the time being, affords the measure of tlint wliirli is
requisite for legislative purpoHOH, .... f,];}

('/) Thft electoral HyHt^'Ui, f,] j

CONTENTS.

1 V. The means by wliich tlie community declares its rational will, . 515
(«) Legislation, . . • • • • .515

{h) Consuetmle, ....... 51G

Y. The means by which the rational will of the community is ai>plied

to the special case may be either spontaneous or by jurisdiction, . 516

YI. The means by which the community enforces its rational will, . 517

Of the Army, ....... 518

The Police, ........ 519

Public Prosecution of Crime, ..... 520

BOOK IV.

OF THE OBJECTS OF POSITIVE LAW.

Chapter I. — Of the Ultimate and Proximate Objects op Posi-
tive Law, .......

Chapter IL— Of the Primary and Secondary Objects of

Positive Law.
{a) Primary, .......

{b) Secondary, .......

The objects of positive law may be classified with reference either to the
spheres within which they seek their realization, or to the forms
in which they are manifested, ....

L The Roman division into public law and private law.

(1.) Public law within the State, called in England constitutional law,
(2.) Public law without the State, or the^ws inter gentes,
(3.) Private law within the State, or municipal law,
(4.) Private law without the State, or private international law,
II. The second scheme divides positive law into national and interna-
tional ; and these again into public and private, .
1st, National public law ; and national private law,
2d, International public law ; and international private law,
III. Classification of the various branches of positive law, from the
domains which they severally embrace, ....

523

523
524

637
537
537

538
538
538

539
539
539

539

Chapter IIL — Conclusion.

Of the reconciliation which the system of positive law, logically resulting
from the principles of jurisprudence as determined by nature,
tends to establish between the progressive and conservative
.schools of European politics, .....

Index, . . . . . • .

540
555

THE INSTITUTES OF LAW.

INTEODUCTIOK

Preliminary Definitions and Divisions.

I. "PkEFINlTIOXS and divisions are possible only after the
subject of them is known. They must consequently
be the goal, rather than the starting - point, of scientific in-
quiry. But, on the other hand, inasmuch as the sight of the
butt is necessary to the archer, we shall do well to place
Ijefore us at the outset, as clearly as we can, the object at
which we aim. This proceeding is the more necessary in
consequence of the want, in our own system of legal instruc-
tion, of any preliminary course corresponding to wliat, in
Continental Universities, is called Encyclopaedia, in wliich the
skeleton, so to speak, of tlie science upon which the student
is about to enter is exliibited to liim. It has been said with
great truth that the pliilo.sophy of hiw, on tlie ground that it
stands in a general relation to eacli of tlie special l)ranclies of
the science of law, is itself an cncyclopa'dia, but that it is a
]>hilosophir;al encyclopa.'dia.^ Such an (mcyclo])a'(li;i I hope to

' Michelet, Naturrn-lit, j»p. 17 and 18.
A

2 INTRODUCTION.

furnish in the sequel of this work ; but it is a dogmatic
sketch alone which I can attempt at the outset.

With this limited aim, then, the branch of science with
the study of which we shall be here engaged, may be de-
scribed as having for its obj[ect the discovery of that law
which, by the nature of all rational creatures, and independ-
ently of their volition, determines their relations to each other
and to surrounding existences, in so far as this law is medi-
ately or immediately revealed to human reason and realizable
by human will, under the conditions of human existence in
tinie and space. The validity of the law of nature, it is true,
is not, or at any rate cannot be conceived by us to be, limited
to humanity, or to humanity under the conditions of time and
space. Culverwell accordingly defines it as " that law which
is intrinsical and essential to a rational creature ; " ^ and Hegel,
regarding it as the divine conception of Kosmos in human
relations, by wliich the limited or relative w411 of the creature
is harmonized with the unlimited or absolute will of the
Creator, speaks of it as " the reign of liberty realized." Seen
from this latter point of view, we might define it as the Jaw
which determines the conditions of perfect human co-existence,
or, of progress towards the realization of such co-existence.
It is in this light that it specially cpnperus^tlie jurist, as dis-
tinguished from the metaphysician and the moral philosopher ;
for it is when thus regarded that he begins tose£ in it the
permanent element of positive law.

The Kosmic character of existence, or, in other words, its
absolute rectitude, as we shall see hereafter, is an assumption

' IA(j1it of NcUure, p. 57.

IXTRODUCTION. 3

wliich is psychologically inevitable. Eelative will cannot
contend with absolute will, even in thought. In its origin,
law, like existence, is thus involuntary and inexplicable. It
is an objective phenomenon which consciousness presents to
us, not from without but from within : a conception which
is imposed on our cognitive faculties a 'priori: a postulate
necessitated by the fact that we are. Law thus comes out
of mystery, just as it goes out into mystery. The conscious-
ness which brings it within the sphere of finite vision is as
dark as the consciousness which carries it back into the
infinite ; for the one marks its passage into, and the other
its passage out of, the conditions of time and space. Over
its cominfT^ and its Gjoiu": we have no more control than over
a ray of sunshine. But, even at the risk of misapprehension,
I must, for the present, refrain from pursuing the subject
further in this aspect ; and in addressing myself to pro-
fessional students, and having practical rather than theoreti-
cal objects in view, I shall endeavour throughout to avoid all
forms, both of thought and expression, which may not fairly
be assumed to be familiar to cultivated persons generally in
tliis country.

In designating this subject the law of nature, it is obvious
that, wliilst the term law is employed in tlie general sense
of Kosniical arrangement, we use the term nature in a more
restricted sense than that in which it is often identified with
created existence. The law of na.ture, in,_the jural sensCj is"^
not the whole scheme of the universe, but the ])ranch of that
scheme which has reference^ tp__human rehiUons. It does
not deal with the inevitable rcilations in wliicli man stands

4 INTRODUCTION.

to the external world, whether animate or inanimate. The
laws of generation, of growth and decay, of digestion, assimila-
tion, respiration, and the like, lie beyond its sphere, just as
much as the laws of space and number, or the laws of thought.
These are laws which wholly shut out the element of human

^ volition. The natural laws by which human relations are
governed, on the other hand — the^ laws of ethics, politics,

^ and jurisprudence — are, in a limited sense, laws of freedom.
They are laws the violation of which is physically possible,
not only to the individual, but to tlie state, and even to the
community of nations. Whether they can be permanently
and ultimately violated even in this world, is a question ;
which belongs to philosophy and theology rather than to juris- j
prudence. But for the immediate purposes of his science, the
jurist must accept the task of demonstrating the inevitable
character of these laws. He must show that, though natural
laws, in the sense which he attaches to them, may certainly
be broken, for a time at least — nay, though it be inconceiv-
able tliat imperfect beings should ever observe them perfectly
— they are essentially self-aveno;ing. To use a happy Ger-
man distinction, which I fear is hardly translatable, they are
thus SoJl-Gesctze, though not Muss-Gesetze ^ (' ought-laws, not
must-laws '). Their consequences are as inevitable as their
character is unchangeable ; it is their fulfilment or non-fulfil-
ment alone that is dependent on human volition. As natural
laws, it belongs to their conception that the rewards attached
to their fulfilment, and the punishments which attach to their
violation, depend as little on the wills of tliose who fulfil them

* Krause's RcelUs-Philosophie, p. 36.

INTRODUCTION. £>

or violate them as the risinoj and the settiniij of the sun. It
is this character, as we shall presently see, which distinguishes
natural laws from mere human enactments, which may or may
not be in conformity with them, and which, consequently, may
or may not be permanently set at naught.

As illustrating the difficulty of defining natural law in the
jural sense, so as to keep it apart from theology on the one
hand and physiology on the other, I may mention the modes
in which law as a whole has been divided by two of the
greatest minds that ever were brought to bear on its elucida-
tion, — St Thomas Aquinas, and our own not less saintly
Hooker. The first, which was generally followed by the
theologians and schoolmen, was this : —

1 . Eternal^ Law : that of the Divine and general govern-
ment of the universe. Of this law Culverwell has finely said,
that " it was in a msiRHQT jmccrnated in the law of nature.'' ^

2. Xatural Law:^ that of finite creatures endowed with
reason.

3. Human Law : that which has reference to human
relations.

4. Divine Law : the order of salvation specially provided
ioT man.'*^

The second (Hooker's scheme) was this: —

1. Law which God from the beginning set for Himself.

2. Law wliich natural agents observe.
',}. Law which the angels obey.

' Liffhl of Nature, p. 50.

' I>;x naturaliii nihil aliud est, quain imrticipalio lo.;iM icluniii; in iiitionitli
' rcatura.

2 Sum ma Tficolofjirc, J'ri/iui Sccumi/:, (JU'lsHo xci.

6 INTRODUCTION.

4. Law which directs man to the imitation of God}
Witliout entering on the manifest objections which might
be stated to each of these schemes, many of which were
obviated in the rich and varied discussions to which they gave
rise, we may repeat, in a ^vord, that our conception of natural
law is — the law for the general government of the universe,
only in so far as it has reference to the relations of men, or
is " incarnated " in human society.

II. Natural Jaw, when treated as a science, is often called
the philosophy of law.^ But, inasmuch as nature is a more
definite conception than philosophy, the former epithet is
preferable ; and for this reason, probably, recent writers seem
mostly to have reverted to it. I have adopted the terms
" Institutes of Law," and " Principles of Jurisprudence as
determined byNature," in order to indicate the fundamental
relation in which the subject stands to all the departments
of positive law.

III. The science of the law of nature, or the philosophy
of law, professes to furnish us with the doctrines of natural
law in the abstract. The law of nature is thus the subject
with which this science is conversant ; but it is no more
identical with the science than the subject of any other
branch of study is identical with the study itself — than,
e.[/., the laws of the vegetable or animal creation, with the

^ EccleHlaMical Polity, vi. \). 72.

^ See the list of works at the end of the first volume of Ahrens's Coiirs de Droit
Natural, p. 325. Michelet says that it was called Naturrccht by the jurists, and
Kcchtsphilosophie by the later philosophers, p. 1. The names are now synony-
mous, and it is taught both in the faculties of philosophy and of law, both by
philosophers and jurists.

IXTRODUCTION. 7

sciences of botany, zoology, anatomy, or pliysiology. There
are laws of nature which govern the growth and decay of
plants and animals, whether we know and obey, or ignore
and violate them. And just in the same way there is a
law of nature which governs the human life of man, w^hether
we discover it and follow it, or blindly and ignorantly
set it at defiance. " It is," says Ahrens, " with moral order
as with physical order. The law of attraction existed and
governed the relations of natural existences before it was
discovered by Kewton and determined by science." In like
manner Max Miiller tells us how long it was before the
Greeks arrived at a complete nomenclature for the parts of
speech. But there were parts of speech before they were dis-
covered by the Greeks, and, strange as it may seem to us, they
were known to Sanscrit literature. "What is true of the laws
of life and of language, is not less obviously true of the laws
of thouglit, or of their applications. Logic may have been dis- ]
covered by Aristotle, but it was both used and abused in the j
Garden of Eden. To su})pose, then, that because positive laws
existed before the natural laws, of which they were imperfect,
local, and temporary realizations, had been scientifically evolved,
or systematically enunciated, positive law therefore preceded
natural law in point of time — as is done Ijy tliose who identify
natural law with the laws which they imagine to have existed
m the imaginary state of nature — is just as great an absurdity
as to suppose that because liouses were built up and tumbhul
down before the law of attraction was discovered, they did
not stand or fall in accordance with that law; or that, because
men spoke before tliey knew the parts of speech, they did not

8 INTRODUCTION.

make use of nouns and verbs every time they gave utterance
to articulate sounds. And as the law of nature existed before
is was scientifically discovered, it existed equally before it was
divinely revealed. " It was long extant," says Culverwell,
" before Moses was born ; long before Aaron rung his golden
bells ; before there was a prophet or a judge in Israel." ^

IV. The science of jurisprudence differs from the science
of natural law, and from the philosophy of law, in this
respect, that, in addition to the discovery of the doctrines of
natural law and their general and permanent action, it in-
cludes their local and temporal realization — i.e., positive law,
properly so called,^ in all its branches. Jurisprudence thus
embraces legislation, whether the subjects with which it deals
be political, economical, or social, national or international,

* Ut su]). p. 68.

- I find that the expression ** positive hiw," in the sense in whieh I here use it —
viz., of natural law realized in time and place — has occasioned confusion in the
minds of some of my readers, which, even at this early stage of our discussions,
it may Ije desiral)le to remove. Tlie sense attached to positive law in England, I
am told, is " law as it is " — that is to say, law enacted by a recognized authority,
whether in conformity with, or in opposition to, natural law. Law which sets the
principles of human nature and the facts of society at defiance is, in this sense,
positive law just as much as law which recognizes them ; — sense and nonsense, if
formally enacted, stand on a footing of perfect equality. Now the modicum of
truth which this conception contains is sufficiently taken into account when we
recognize the necessary imperfection of all human enactments. It is quite true
that " law as it is " can never quite coincide with "law as it ought to be," or, in
other words, can never quite realize natural law in time and place, and conse-
quently, that if we were to adhere strictly to our definition, we could never have
any positive law at all. But this does not hinder the ** law which is " from being
more or less positive, in proportion to the extent to which it approaches to, or
recedes from, its own ideal ; nor does it prevent this ideal from determining the
only sense in which positive law can be formally or scientifically understood.
The true equivalent for " lawa^j^s '^sthus not " i)ositive law," but * * enacted
1^'," which, without losing its character, may set both the laws and the facts of
nature at defiance. — Infra, p. 10.

INTRODUCTION. 9

civil or ecclesiastical, public or private, general or particular,
as well as jurisdiction and execution ; whilst the sphere of
an academical Faculty of Law extends to the study of the
whole human relations, whether these relations be necessary
and permanent, or accidental and transitory.

V. Positive law may be regarded either as a science or as
an art. The science is tlie result of a process of analysis —
the art is that of a process of synthesis resting on the
previous analysis ; and inasmuch as the existence of the
synthesis without the analysis is impossible, there can be no
art of positive law without a science of positive law.

(A) The science of positive law has for its object the dis- '
covery (Erkenntniss) of the law of nature in special circum- (
stances, and with reference to special relations.

(B) The art of positive law has for its objects the recogni-
tion {Anerhennung) of the law of nature by special enactments,
and its vindication in special circumstances and relations.

Law as an art_ assumes tliree functions : {a) Legislation,
(6) Jurisdiction, (c) Execution, which in the earlier stages of
its development are not sliarply distinguished from each other.

Apart from their realization in positive laws, the rules of
natural law are merely hypothetical and contingent, depending
for their concrete forms on the answers which may Ijc given by
observation and experience to questions of fact which they do
not profess to solve. Natural law thus forms tlie major ^^reniiss
of the HyllogLsm of which tlie legislative , enactment, or l\n\
1 sentence, is the conclusion ; or, to use a ])rofessional
illustration, it draws the issue to which positive law returns
tlic verdict.

:'l

1 0 INTRODUCTION.

Every sound legislative enactment tlius involves the previous
decision of a question of natural law ; and every sound judicial
sentence involves the acceptance of that decision. The three
moments of jurisprudence are thus — natural law, human enact- ^;
ment, and (in case of controversy) judicial decision.

VI. In consequence of the imperfection which clings to
humanity, human enactments never attain to the full character
of positive laws. But they possess the character of positive
laws, more or less, in proportion to the extent to which they
are, or are not, interpretations and realizations of the law of
nature. Enactments, in so far as they fail to realize the law of
nature, must be errors, and may be crimes. Even where there
is no want of good intention on the part of the legislature, laws
formally enacted may faJLsbort of ^the^character of positive laws
from three causes : —

(a) From an erroneous conception of the law of nature to be
realized.

(6) From an erroneous appreciation of the special circum-
stances in which the law of nature is to be realized, and, as a
necessary consequence, of the provisions by which the law of
nature is realizable.

(c) From changes in the special circumstances of the com-
munity, rendering inoperative tliose provisions by which the
law of nature was formerly realized.

Lut, inasmucli as men are liable to err, not only in inter-
preting and realizing the law of nature anew, but in judging
of the manner in which it has already been interpreted and
realized, great caution ought to be exercised in condemning and
altering enacted laws. Moreover, as all human enactments

IXTPvODUCTION. 1 1

must embody some element of error, it does uot follow that an
existing law should be altered the moment that the fact of its
divergence from natural law, or even the direction in which it
diverges, has been discovered. In the latter case, the manner
in which it must ultimately be altered, or developed, will, in a
general way, be known; but the means of its amendment — i.e.,
the special form which the new enactment ought to assume —
may still be undetermined.

VII. Ju^cial sentences may honestly fail to realize the law
of nature in the individual case, from three causes : —

(ft) From failure on the part of the judge to discover, or
to understand, the enactment in which the law of nature has
been more or less perfectly embodied in the wider sphere of
legislation.

Qj) From failure on the part of the litigant, or his represen-
tative, to present the facts of the individual case, or to present
them intelligibly, to the judge.

(cj From failure on the part of the judge to apprehend the
facts of the individual case when intelligibly presented to him.

VIII. Tlie law of nature may furtlier be negatively defined
by distin^niishin^ it from the following subjects with which it
has often been confounded : —

(fi) From a primitive code, or body, of consuetudinary law,
which is supposed to have prevailed in an imaginary " state of
nature." Sucli a code, had it ever existed, would, like all other
codes, have been a body of i)ositive law; and, as the work of
an age destitute of experience, and of minds destitute of cul-
ture, it must have been a very im])erfect one.

(h) From a " piimitivc contiact " hy wjjicli njun arc supposed

1 2 Ix\TRODUCTION.

to Ikuo agreed to observe the principles of justice in their deal-
ings witli each other, — a contract into which they could not
have entered until these principles were known to them, and
the assumption of which consequently involves a pditio
lyrinciini.

(c) From a preliminary department special to the law of
nations, to which natural law stands, as we shall see, scien-
tifically in the same relation as to all the other departments
of positive law.

(d) From those rules of the law of nations which rest on
consuetude, and not on treaty, or which are enforced by
opinion or by war, and not by judicial authority — the manner
of their generation, or of their enforcement, making no differ-
ence as to tlie positive character of these rules.

(c) From the jus naturaU of the Romans, which extended
to tlie lower animals, and included the laws of their physical
generation and life^ — thus embracing, or at any rate mixing
itself up with, another branch of natural law, in the wide
sense in which natural law is identical with the general
scheme of existence.

(/) From the jus fjentiitm of the Romans, which was a
body of equitable rules, possessing, in a general sense, the
character of positive law, and intended to regulate the rela-
tions between those who were and those who were not
Roman citizens. Gaius's conception of the jus gentium, how-
ever, as quod naturalis ratio inter omnes homines constituit,^

^ Quod natura omnia aniinalia docuit, nam jus istud non liumani generis pro-
prium est, sed omnium animalium quae in caelo, quae in terra, quae in marl nas-
cuntur, avium quoqne commune est. — Di'j. ]. 1. ].

^ DiQ. 1.1. {dcjt'M. etjii,rc), 9.

IXTRODUCTION. 1 3

comes very close on tlie modern conception of natural law ;
and a still closer approximation is to be found in the sense
in which Cicero and the Stoics frequently speak of the jus
natii.rale, and in which it occasionally appears in the Digest —
e.g., " Id q2wd semper mqiLuni et honum est Jus diciticr, ut est jus
naturcde!' ^

(g) From equity, in the English, and to a certain extent in
the Eoman sense of a body of positive rules supplementary to
tlie rules of the common law ; and, indeed, from equity in any
other sense, if such there be, in which it is not simply an
equivalent for jitstice.

Even when the Prsetorian law is spoken of as naturcdis
cequitas {Prcctor ncdurcdem cequitatem seqici dicittir) and the
like, it is meant that the Prsetor, in the absence of any
positive law, finds out what the positive law of the case
really is — i.e., discovers the decision which, in the concrete
instance,^ is in accordance with natural law.

IX. The most noteworthy divisions of the science of juris-
[)rudence are the following : ^ —

i. That of Ulpian, into —

(a) Jus naturale : Laws of Animal being ;
(h) Jus Gentium : General Laws of Human wellbeing ;
(n) Jus Civile: lioni;ui ^luiiicijiid Law;
Llie two latter being subordinated to th(i foriiKir.

The folhnviiig o])jectioiis to tliis schciiu! ])n'S('ijt tlicni-
•ilves: —

• JJig. 1. 1. 11. Troplong, tie V Influence du ChrUtianisme .sur Ir Droit Civil
y. 63.
' JH(j. ut mip. ; (Jul. nrotii Knrhrir., p. 11.
' Saviguy, HyHirm dcs llrutitjra Hoiii. litrhts, lJ(ryl:i;^i- T. mjI. i. |i. J 1 .'{.

14 INTRODUCTION.

Isf, Jks naturalc being equivalent to the laws, not of human
wellbeing, but of animal being, includes matter that belongs
to physiology and not to jurisprudence. It consequently
is not exliausted by its subordinate members, the jus gen-
tium and the jus civile, which refer exclusively to human
wellbeing.

2dy The meaning of the jus gentium is indefinite, wavering
between that of the jus naturale in the modern sense, and the
jus inter gentes or international law — e.g., the law adminis-
tered by the Praetor Peregrinus, out of which many of the rules
of private international law have arisen.

3d, N"o other provision is made for the iics inter gentes.
Cosmopolitan conceptions were familiar to the Stoics, and are
traceable to Socrates,-*^ but from the relation in which the
Romans stood to the rest of the w^orld, they did not recognize
international law as a separate branch of jurisprudence. From
the conflicts of jurisprudence, however, that ultimately arose
from differences in the various municijjal systems of the con-
quered nations, which the Piomans did not wholly abolish,
they were led to work out many important questions of
private international law.

ii. That of Gains.

(a) Jus Gentium : General Laws of Human wellbeing, or

Modern Natural Law.
(h) Jus Civile : Roman Municipal Law.

Savigny holds this division not only to be the correct one,
but the one that was generally adopted by the Roman jurists.

^ Zellor, Socrates and the Socraiic Schools, p. 139; and Stoics, E2ncuTeans, and
Sce^ytics, p. .308.

INTRODUCTION. 1 5

It is open, I think, notwithstanding, to the following ob-
jections : —

1st, The Jus gentmm and naturalis ratio are sometimes used
by Gains as equivalent terms {Digest 1. 1. 9), and the concep-
tion which he attached to these terms certainly approaches
very closely to the modern idea of natural law, but it is
scarcely equivalent to it. It varies between the conception
of natural law, as a sort of equity of which the Praetorian
rather than the civil law was the viva voXy and that of the
jus inter gentes.

2d, The jus civile, supposing it to include the municipal law
of other nations, as well as that of Eome in all its branches, is
not equivalent to positive law, because it does not include the
jus inter gentes. It consequently does not exhaust the science
of jurisprudence on its positive side. It would have done so,
however, had the fiction of a universal empire, which the
Romans cherished, become a reality ; because there could in
that case have been no jus inter gentes. This last objection
consequently has no logical validity against the Eoman jurists.

Zd, The Eoman term which most nearly approaches to the
modern conception of positive law in general, is lex. Cicero^
opposes natura to h^c, and explains natura by the term jus
f/rntium, and leges as equivalent to jus civile. Elsewhere he
divides jits into natura and lex. Elsewliere, again, ho uses
it in a sense which would identify it witli tlie modern 'jus
naturale.' Lex est ratio sicmma, insita in naturd, qua: juhct ea
fpue facirnda sunt, jn'ohibctque contraria (De legg. i. 0).

In general, however, tlie word Irx was used in ;i narrower

* I)e off. iii. 5.

1 6 INTRODUCTION.

and wholly technical sense. Lex est quod Popiihts Romanus
scnatorio ma gist ratio intcrrogante, vehcti consule, constittcehat
(Just. 1, 2, 4); or Generate jiissum loopuli aid jplehis, rogante
viagistratit (Capito ; Gell. x. 20). This Cicero speaks of as
the popular use of the word (I)e legg. i. 6).

Jns eivile, again, is no doubt used in a wider or a narrower
sense, according as it does or does not include the jus ponti-
Jicium, or is or is not opposed to the j'lis 'prcetorium or lionor-
arittni. l>ut it is never intended to include in it the jus gen-
tium in the Eoman, and still less in the modern sense, and
consequently it never corresponds to positive law, as a whole,
iii. Modern Division.

(a) Natural Law, or Permanent and Universal Law^s of the

human relations.
(h) Positive Law, or Variable and Particidar Law^s of the
human relations,
l^ositive law being further subdivided into —

(d) International Law : the jus inter gentes, public and
private.

Vindication of the Modern Division.

The modern division proceeds on the hypothesis that the
question, to what extent the limits of positive law shall be
made, for the time and place under consideration, co-extensive
with those of natural law — that is to say, to what extent

^ The division of law into jmLlic and private was known both to the Greeks
(Demosth. in Timocrat. 760, § 192), and to the Romans {Instil. 1. 1. 4).

INTRODUCTION. 17

natural law shall be enforced, or left to vindicate itself indi-
rectly— is a question of wliat is vulgarly called expediency ;
and this hypothesis, as we shall afterwards see, is warranted
by the results of the science of jurisprudence. No portion of
tlie sphere of natural law^ is theoretically, or ex hypothcsi,
excluded from the sphere of positive law. Its realization may
be impossible, or it may be unnecessary and therefore inex-
pedient, but it is never illegitimate ; — and municipal and
international law, which form the sole constituent elements
of positive law, are thus adequate to exhaust the sphere of
natural law in the modern, though not in the ancient sense.

^ As to the relation between natural law and ethics, r. infra, book ii. chap. 1,

BOOK I.

OF THE SOURCES OF NATURAL LAW

CHAPTER I.

OF THE SOURCES OF XATUEAL LAW.

^HE word source, when applied to the science of jurispru-
dence, is frequently used in a double sense. On the one /
liand it is taken to indicate the fountain from which naturg-l
law and all subsequent laws derive their authority ; on the t^
other hand it is used to designate the means by which -^^e
become acguaiiited witli the precepts of law. It is from this
cause that doctrines which are really complementary are so
often regarded as exclusive of each other. With this dis-
tinction, then, ill view, —

The sources of natural law — which, taken in conjunction
with the local and teini)orary relations in which man stands
to surrounding existences, are likewise tlie sources of positive
law — may be divided into Primary and Hrrovdary.

Ist, TheTrviaary Source, or Smfrrr of Jjov Uxdf. — Ood,^
the Creator, the One first Cause of all things, isthe one

' Sonic of my criticH linvc ohjcrkd tlial by making' (lod tlic Soiircn of natu-
ral Inw, I ^ivo in rny a<Ih*'sfon, nt tin; outK(!t, to the tlicolo^^ical hcIiooI. Tlicy
mi^lit jtiMt ai» wf:II liavft haiM tliat a botanint, by making (Jo»l tlir Creator of
plantM, OMMort'd that the wrifncc of lM)tany was directly rovcnl< <l. So fai, siinly,
wc nioy wiy with Clirj'80»toni, " Z^av 8i tlitw i^iv <^v<riv, 6*hv At'^w."

22 OF THE SOURCES OF NATURAL LAW.

Primary Source of naturaOs^^v — tlie inevitable postulate of
jurisprudence, as of all other sciences.

I take it for granted that the necessary character of our
recognition of a single cause, as the starting-point of being,
has already been brought under your ^ notice in the classes
of metaphysics and moral philosophy,^ and that I should be

wasting your time were I to insist on such propositions as

-1, ■ * ' "' ■

that, by the constitution of our minds, we can neither think
of the series of effects and causes as interminable, or as
terminable. We must be contented to begin with a postulate
— that is to say, with an assumption which we do not seek to
explain ; and the narrowest basis of assumption is philosophi-
cally the best. To postulate two causes would be to stop
short of the last step which reason necessitates. Nor shall I
detain you with the testimony from the history of opinion
which might readily be produced in support of this proposi-
tion ; for, as the laws of thought admit of no exceptions, if its
acceptance be a necessity to any mind, it must be a necessity
to every mind. As I shall explain to you more fully here-
after, when we consider the canons which limit and regulate
the application of historical evidence, it is only when the
necessary character of a truth is equivocal that an a 'posteriori
demonstration of its acceptance by mankind becomes important.
The study of the attributes of Deity belongs specially to
the science of theology ; and as the jurist is beholden to the
metaphysician for the primary source of his science, so there

^ Hurc, and occasionally throughout, I have permitted the style of direct ad-
dress to my students to remain unchanged, as I believe it will occasion no incon-
venience to the general reader.

2 Hamilton, Metoph. vol. ii. p. 353 et scq. Krause, Naturrecht^ p. 14.

OF THE SOURCES OF NATURAL LAW. 23

are certain characteristics of that source which he accepts at
the hands of the theologian. The reality of the attributes of
omnipotence and perfection is guaranteed by evidence as
irrefragable as that which assures us of the existence of the
Creator, for —

{a) Creative pojwer and omnipotence are equivalent terms.
We cannot think of a power that is limited as creative, for in
that case what do we make of the power that limits it ? It,
of course, becomes the creative power, and we only go a step
further back. From this difficulty even the hypothesis of
dualism does not save us ; for that is the denial of any
original starting-point. Dualists, consequently, as we shall
see hereafter, either prove untrue to their own system by
giving supremacy to one or other of two different principles,
or take refuge, like the rest of us, in a single postulate. And
if this be true of dualism, it is still more true of polytheism,
which is simply a surrender of the problem of creation
altogether. Whatever may be said for the historical priority
of polytheism, it is a creed which must vanish with the first
streaks of the dawn of speculation even in the savage mind.

Qj) The creature, as such, can have no ultimate measure of
perfection but the Creator. In acknowledging His existence,
we consequently accept His character, and own allegiance to
His law.

These Divine attributes-:-oinmpotence and perfection — the
one of which subsumes relative under absolute freedom, and

the other of which subsumes relative under absolute reason —
are inseparable from the conception of a ])rimar^ source of
law ; ff)r —

24 OF THE SOURCES OF NATUKAL LAW.

{(() " Force," as has been well said, " being the root idea
of law," ^ if God were not potent He could not be a source
of law at all.^

(h) If He were not omnipotent, nature might have another,
anterior, and superior lawgiver. And finally, —

((') If He were not perfect, the laws which nature has
received from Him would not carry their own warrant with
them, and there might be better and wiser laws to which it
would be our duty to conform. The attribute of omnipotence,
2' as we shall find hereafter, is our jvarrant for the assumption
that in the last analysis, ultimately, absolutely, might is right,
and tlie first stone in the edifice of the do facto system of
jurisprudence. The attribute of perfection is, in like manner,
yfi our warrant for the assumption that right is might, and the
first stone in the edifice of tlie dc jwrc s^^tem of jurisprudence.
And these two systems, so often opposed by the narrowness of
human intelligence, are just as inseparable as power and good-
ness in our conception of God. Take away absolute power —

^ llcign of Law, by the Duke of Argyll, p. 70. -»

^ " To set up laws as self-acting," said Dr Carpenter in his presidential address
to the British Association (Aug. 14, 1872), ** and as either excluding or render-
ing unnecessary the power which alone can give them eficct, appears to nie as
arrogant as it is unphilosophical. To speak of any law as * regulating ' or
' governing ' phenomena, is only permissible on the assumption that the law is
the modus operandi of a governing power, I was once in a great city which
for two days was in the hands of a lawless mob. Magisterial authority was sus-
pended by timidity and doubt ; the force at its command was paralysed by want
of resolute direction. The 'laws' were on the statute-book, but there was no
power to enforce them. And so the powers of evil did their terrible work, and
fire and rapine continued to destroy life and property without check, until new
power came in, when the roign of law was restored." The short and terrible
episode of the Commune to which Dr Carpenter here refers, was ajcasc^in which
the .pQ»:M;s,ji£JiQS]W)sjiii(Lid^ good_and_eyil, werg^ fairly pitted against each
other, and in which ih^vis y/ta/or proved to be the former.

OF THE SOURCES OF NATUKAL LAW. 25

oinnipoteuce — and you convert the Creator into a creature, and
frame a system of jurisprudence which you have no means
of realizing — a mere ethical dream. Take away goodness —
absolute perfection — and your God, for anything you can assert
to the contrary, may become a devil, your ethical dream
vanishes^ and you have nothing to realize. This appears to
have been the sad outcome of Mr Mill's philosophy.

Por these reasons it is obvious that a science of natural f»
law can no more be founded on an hypothesis of polytheism ,jtj
dualism, or pessimism, than on the hypothesis of atheism ori
nihilism.

Of the extent to which a natural law may be realizable
under a polytheistic scheme, which, whilst ascribing certain
divine qualities to many separate beings, confines creative
power to a single divinity, I shall have something to say
hereafter. But it may be proper that I should at once explain
that under the epithet "dualism" I include any religious sys- ^^^^' ^^^
tern, wliether professing to be Cliristian or not, which divides
power, ultimately, and as a necessary consequence, e(pially
between_a_^ood, and an evil principle ; and that I characterise
as "pessimism" any system whicliinakcs its supreme God
guilty of what the nature ^^JLlicli.Je has implant fl in us
cliaracterises as^sin, — as, for example, by imputing to iiim /
the condemnation of unbaptizcd infants to everlasting tor-
ments, the creation of a race of beings originally sinful, tlie ^
predestination of beings wliom He made in His own imago ^

to everlasting and olg'ectless damnation, tlic; creation of ^

a world where evil cxistw wliich is not iIk; mysterious
minister of good, or any other transgression of lli^i own

2b OF THK SOURCES OF NATURAL LAW.

laws, as tliese laws are revealed to us tliroiigli nature.
The existence of sucli a being appears to me to involve
contradictions which render it unthinkable. I extremely
regret that, by an expression of opinion involving what I
believe is called " Universalism," I should separate myself
from many theologians, both dead and living, whom I love
and reverence, — nay, that I should run counter to what, if
orthodoxy were to be determined by a show of hands, might
still perhaps claim to be the " teaching of the Church." But
holding as I do that our last appeal is to our own reason, as
at once the representative and the interpreter of the divine
element within each of us, I feel that no amount of authority
could commend to me a doctrine which my reason rejects as '
inconsistent with the goodness, the power, and the wisdom
which she teaches me to attribute to the Source of my being.^
As regards logical consistency, the pessimistic has advantages
over the dualistic hypothesis. On the hypothesis of dualism
a system of jurisprudence which entirely reversed our present
conceptions of right and wrong would be equally legitimate.
Whilst I am teaching here in the name of Ormuzd, a colleague
in the next room might be teaching with equal authority
in the name of Ahriman. On the hypothesis of pessimism,
on the contrary, my colleague would be entitled to turn me
out. Had Mr Mill given supremacy to the devil, he would
have found in his omnipotence a " Source " on which he could
logically build. If he could not bring Might and Eight -
together, he might have brought Might and Wrong together,

^ Tlic opposite view is stated, with great learning and acuteness, in Universal-
ism and Eternal Punishment, by the Rev. John Gibson Cazenove, M. A.

OF THE SOURCES OF NATURAL LAW. 27

and thus have found what his friend Mr Bentham would have
called a " sanction " for evil. But denying as he does the
supremacy of either principle, he fails to set foot on the " rock
of a^es " altoijjether, and builds his house on the sand. He
stops short, indeed, at mere human opinion, or rather at his
oivn opinion, and declares that to be right which he conceives
to be useful to him, and to those whose tastes correspond with
his, and its contrary to be wrong.

To pantheism the jurist stands in a somewhat different
relation, because it is a creed wliicli assumes various forms,
and has received many explanations, some of them probably
not inconsistent with the belief in the existence of a single
beneficent power, the study of which power, in its manifes-
tations, might reveal an absolute law of human life and pro-
gress.^ But whenever pantheism is carried beyond an assertion , /v^*tlL'
of the universal presence of the_ Divine, and consequent pre- \
valence of^Iaw, — an assertion which is not inconsistent with ^«
the Christian conception either of God or man, — the follow-
ing objections seem fatal to it as an Iiypothesis on wliich to ^
base jurisprudence.

I.s7, The identification ot" the universe with CJod — of Be-
coming with lieing — leads to the same result as the identifica-
tion of God with the universe, — of Being witli l>econiing, —
viz., an alternative between atlieism, i.e., the denial of Creativ(5
I'ower altogether, and a postulate of separate creative power,
the character of wliich may be i^oo(J_grevil. So fai' jKintheism
is on all-fours with materialism — it is either incomplete or
illogical. It is inconipleUj if it leaves nature still in want of
' Tlii-t i i [irobahly what GrotiuH iii'niil I'lolcj. ^ \\.

28 OF THE SOURCES OF NATURAL LAW.

a postulate, still unaccounted for, and its character undeter-
mined. It is illogical if it assumes the beneficent Creative
Power independent of nature, which it professes to repudiate.
Materialism, thus arrayed in borrowed feathers, is what is
commonly meant by pantheism, — in this country at all events,
and in France.

2d, The hypothesis of a self-developing God is an anthro-
pomorphic conception which implies imperfection. The qual-
ities or attributes of such a God could never furnish a start-
ing-point to existence, or supply an absolute standard of right
and wrongj.^

^d, Pantheism, by identifying the soul of man with the
soul of the universe, not only sets ultimate limits to human
freedom — as every scheme which recognises Divine Omnipo-
tence must do — but even within these limits it renders
freedom merely apparent.^ By annihilating personal respon-
sibility in man, it thus takes away from the human law-
giver all right to enforce compliance with the conditions of

^ Ahrens, i. p. 75.

2 To what extent Hegelianisin may or may not be open to these or any other
objections against pantheism, is a question on which I offer no opinion. Whether
or not Hegel laid an adequate basis for freedom is a point on which much difl'er-
cnce of opinion prevails. That he intended to do so, on the other hand, is a fact
which cannot, in common fairness, be disputed. The first three sections of
Bunscn's God in History contain what I believe to be a correct statement of
the relation in which the later German schools stand to pantheism ; and I think
that, as regards much of the criticism of them in this country, Bunsen has hit the
nail on the head, when, in speaking of the Chinese, he says afterwards (p. 248),
** It is by no means needful to extort from the Chinese a confession of faith in
*a personal God,' in order to free them from the reproach of holding a completely
materialistic view. For those who talk of a personal God often use expressions
concerning Him which betray a very low and unworthy religious consciousness.
But a conscious God there must be, and this consciousness must correspond to our

OF THE SOURCES OF NATURAL LAW. 29

wellbeing and progress, even supposing these conditions to
be discoverable.

By thu^s_^evBrtin^_jto__fatalism, and rendering results in-
dependent of voluntary action, pantheism takes away all
motive either for ,_complyiug^or enforcing compliance with
these conditions. In tliis respect a curious meeting of prac-
tical consequences is exhibited between the philosophical
system which denies the personality of God, and the re-
ligious system which recognizes monotheism in its extremest
form. "Were any European nation really to adopt pantheism
as its creed, in the sense in which pantheism identifies
itself with materialism, it would probably suffer from the
famines and pestilences which so often overtake Mahometan ^
populations.^

4:tJi, By identifying the creature with the Creator, pan-
theism annihilates the conception not only of i:esponsibil-

consciousness of Him." The same thought is more fully elaborated in other pas-
sages of this great work — e.g., vol. ii. pp. 317-346. The correct view of the matter
probably is, that God is not a person, but the person — personality itself; where-
as man is a person in virtue of hjs_ Ijmijted realization of j^ersojiality. It is to
y personality when seen from the side of its limitations that we give the name of
I individuality. As regards human freedom, again, if all that German speculation
Ims done is to distingnLsh it from mere lawless caprice, and to define it as con-
sisting in an identification of the limited personal with the unlimited universal
will, in what does this differ from the common Christian conception of freedom
in which we have all been brought up? J)o we not say that the ".service" of
iUA is " perfect freedom," and are we not Uiught to pray that our will may bo
blended with His? Had not even the heathen world come to re(!0gnize the fact
that /^co jMrerc libcrtas est J Zelhr's Stoics, Ejiicurcaiui, and Sceplics, pp. 109,
SI.*), notes.

' In the spelling of this word, having no ojiinion «f my own, 1 hnvc followed
Bir Wiliuiin Muir.

* That Gcnnany is not j)mctically pantheistic, whatever she muy be Ihco-
rctirnlly, is demonstrated by her recent history ; for no country in oni limr, or
probably any other time, over tnisteil so little to Kuic.

30 OF THE SOURCES OF NATURAL LAW.

ity, but of separate existence in tlie creature. When unity
is asserted in this exclusive sense, all law of relations dis-
appears ; for if all be God there are no creatures, and con-
sequently there can be no relations between them. Thus,
whether pantheism be true or not ultimately and alisplutely,
it can never form the basis for a science of jurisprudence. A
human science must be contented to accept the phenomenal
as the real, and the separate character of our own existence
is a phenomenon which we at any rate cannot question. On
tlie other hand, however, this separation between Creator and
creature differs essentially from the separation between crea-
ture and creature. Even creatures, it is true, are not separ-
ated in the sense of being entirely independent of each
other ; but their mutual relations resemble that of brancli
to brancli, whereas they are all related to the Creator as
branch to root. The root continues to send its influences —
in this connection, its will — through the whole of them, and
it is tliis continued relation to and identification with the
Divine which renders a direct revelation of Divine will by con-
sciousness conceivable. In revealing; the Divine wiU, human
consciousness reveals its own ultimate will^ and is thus )
within its legitimate sphere. The objection to direct internal
revelation, tliat consciousness can reveal nothing beyond its
own phenomena, thus falls to the ground, for the Divine will
is seen to be a phenomenon of consciousness, both in the
individual and in the race. It does not follow, however, that
it is not a phenomenon, the reality and the character of which
the ef/o will do well to test by observation of the non-ego, — and

^ Infra, p. 60, note.

OF THE SOURCES OF NATURAL LAW. 31

hence, as we shall see hereafter, the importance which attaches
to the historical method.

From these observations it will be apparent that, on the
penalty ofreling^uishing an absolute basis for his science
altogether, the jurist must be a believer in the absolute
supremacy and goodness of one personal, that is to say, con-
scicnis, God; and it is a historical fact of great significance,
that tliis creed lias actually been held by every jurist whose
system rises above mere empiricism, not only in Christian,
but in heathen times. To the extent, then, of vindicating
this simple creed, the science of jurisprudence, in laying its
own foundations, falls together with the sciences of theology,
ethics, and psychology.

As regards the further relation of_juris]3ru donee to these
sciences, — absolutely there is, of course, no philosophical
question \yhich is indifferent to the jurist ; and hence the
necessity of that general scientific training which precedes
his professional studies. But on the principle of the divi-
sion of laV)0ur, which applies to scientific research as to
every other department of activity, he will do well to decline
all discussions which bear on his science only in the wide
sense in which it was regarded by the Jesuits as a branch ;
of theology,^ and in wliich some J'rotestant writers have
identified it witli ethics.

The question, for example, wheth(;r tlu3_law_of nature, or
tliC moral law, originated in an act of Ugd's^ J[ree will, oi'
wliether it^ existed from all^teruity and continues to exist
inde]>en_dently of His \vill, — whethor it Ix* a law of (lod ov u

' A'.f/. , by Suan-Z of (i'tciumIh, in his t'lcnt wuk />i I.njihiis.

32 OF THE SOURCES OF NATUllAL LA^Y.

law to God, — mucli as it has been discussed both by jurists
and moralists,^ may be dismissed, not only as insoluble,
otherwise than by the identification of God and Law, but
as irrelevant, because the science of jurisprudence will rest
with equal security on either of the two alternatives which
it offers. All that is demanded for the foundation of a human
science is a starting-point which transcends humanity.

For similar reasons we may well content ourselves with
humbly recognizing the hitherto impenetrable mystery which
covers the origin of ^vil. As regards the nature of evil, how-
ever, the casejs different ; for if a belief in the absolute charac-
ter of good be indispensable to the attainment of a basis for
our science, this belief will scarcely be gained unless our study
of nature should enable us to assign a relative character to
evil. To make evil absolute, and sin, which God hates, eter-
; nal, is to limit Plis power, and to put Him very nearly on a
I footing of equality with the devil. If not altogether dualism,
it is certainly J\Ianicheism. On this point the lawyer's creed
must he that of Plato and St Augustine,'^ — the creed which
liad been revealed to Job,'^ which Heraclitus had divined,^ and
which, with Bunsen,^ I believe to be the instinctive creed of
mankind.

^ Leibnitz has stated tlic argument for the independence of law with groat
force, Init the solution at which Suarcz arrives, lex — deus ipse, seems to me the true
one. See Trendelenburg's Klcine Schriftcn, and Historische Beitrdge zur PJiilo-
Sophie, where the fullest information regarding Leibnitz's incidental activity as a
jurist will be found.

On the respective views of Cudworth and Descartes, v. Tulloch's national
Theology, vol. ii. p. 289.

2 Emile Saisset's introduction to his translation of the Civitas Dei, p. xxxi.

3 Job i. 6-12. 4 Schwegler's Hist, of Phil. p. 22.

° Ut au'p. i. 23. Bunson has brought out the important fact that the original

OF THE SOURCES OF NATURAL LAW. 33

The necessity of this opinion, for the purposes of our science,
has been strongly felt by the latest school of scientific jurists
in Germany,^ those who agree with Hegel in scarcely anything
else accepting his dictum that evil must be regarded as " a
negative element." ^

Without dwelling further, then, on subjects which belong to
the sphere of theology, permit me, in conclusion, to indi-
cate one very important practical effect which the recognition
of the divine origin of jurisprudence has exercised on the
organization of society.

The place everywhere assigned to the lawyer lies between
that of the priest and the secular layman, — in general consider-
ably nearer to the former than the latter. .

In the East, in theocratic countries, and amongst the Shemitic
races more especially, the offices of the lawyer and the priest
are combined in the same individual. The laws of Moses and
of Mahomet, and in a lesser _degree^ those of^Manu, and even
of Confucius, are religious as well as legal systems. In those
of Zoroaster the former is the prevailing character, though both
are combined. Scribes, Pundits, Muftis, Ulemas, Mollahs,
Kadis, all belong to the sacerdotal class. Nor do tlie races
which trust to indirect, differ much from those which lay claim
to direct inspiration in this respect. The classical nations spoke
of us as " Priests of Justice." You remember the magnificent
passage from Ulpian with which the Digest opens; in whicli,
after deriwin^ jus from justitia, he exclaims : " Cujus merito ([uis ^

Hebrew conception of Satan (Azmcl) was that not of the opponent hikI rival, l»ut '^V"^^ >
of tho Kcrvant of God — God's }t(;tributivc JuMtieo. Ood in Jlinlory, vol. i. p. 102. ^^^c-^^*^
* Kraiw;, pp. 210-220. Ahn;nH, pp. 128, 1 17, 170, 172, kc. . y y /J^

« I'hil. of in Hi, mj, lioliirH tniriH., p. 1«. sL^<^^ A^^

34 OF THE SOURCES OF NATURAL LAW. j

iios sacerdotes appellet. Justitiam namque colimus : et boni et
a^qiii notitiara profitemur : sequum ab iniquo separantes : licitum
ab illicito discernentes : bonos non solum metu poenarum,
verum etiam pniemiorum quoque exliortatione efficere cupientes:
veram, nisi fallor, philosopliiam, non simulatam affectantes."
In Christian times the separation between the priest and the
jurist dates from the period when the universal priesthood of
Christians was acknowledged, and it has been fully accepted
only in those countries in which that recognition has taken
place. In the middle ages the canonists, and not unfrequently
the civilians, were priests ; and in Eome, so far as the papal
authority extends, the same arrangement prevails at the present
hour. The Lord Chancellor of England, till the eve of the
Eeformation, was invariably an ecclesiastic, and there are
instances of the Seals having been held by bishops down to
so late a period as 1625. Even now many of the functions
of tlie Chancellor are connected with the Church, and it is
only yesterday that its ecclesiastical character was laid aside
by an important branch of the legal profession in England.
The judicial character of the House of Lords still (1880)
exists with reference to Scotland, and bishops may sit in I
Scotch Appeals. On the Scotch Bench, as originally consti-
tuted, one - half of the judges, besides the president, were
Cliurchmen, and Churchmen sat upon it even after the Eeforma-
tion. In the academical hierarchy of all European countries,
the Legal ranks next to the Theological Faculty, and by some
Universities it has been regarded as dealing with the same
subjects.^ As civilization advances, and social arrangements be-

^ Suarcz, Be Lc.gibus, lib. iii.

OF THE SOURCES OF NATURAL LAW. 35

come more complicated, a division of labour becomes inevitable,
by which the judicial is separated from the sacerdotal office ;
but their original connection ought never to be forgotten by
the lawyer who would duly appreciate the dignified and sacred
character of the profession which it is his privilege to exercise.

II. The secondary sources or channels of the Eevelation of
Natural Law are of two kinds, — Direct and Indirect.

1st, Direct revelation.

(a) Miraculous revelation to mcin. — All direct revelation
partakes of a supernatural character ; but its miraculous
character is most marked when it assumes the shape of an
external communication from God to man — in other words,
when God, as what we, by analogy, call a Person, manifests \ ^^.^x
liimself to man, and makes him acquainted with His will. J
Of revelation, in this sense, tlie only instances admitted in
Christian countries are those narrated in the Bible. Whether
these interjx)sitions are to be regarded as violations or suspen-
sions of natural law, or as acts in accordance with higher
natural laws than are known to man or traceable by his
present faculties, is one of the many speculative questions
which the jurist, as such, is not called upon to discuss.

(h) Miracidous revelation throv/fh man. — Wlien God makes
choiceof an individual man as a passive instrument for the
conveyance of His will to mankind — though tliat will l)e not
conveyed to him by an external communication — the revela-
tion still possesses not only a sui)ernatural but a miraculous
character. The revelation of wliicli the proj^'ts and the
apostles were the organs was of this kind, in all cases in which
they do not ])rofess to report the w.vy words tliat wen; sjKjken

30 OF THE SOURCES OF NATURAL LAW.

to tliein by God. It is to this kind of revelation also that
Mahomet, for the most part, lays claim in the Koran.

(c) Special revelation through man. — This occurs when God,
by the ordinary influences of His grace, makes His law known
to the individual mind otherwise than through its conscious
processes.

We have here still, apparently, the immediate operation of
the primary, without the intervention of a secondary cause,
which is said, on the high authority of St Thomas Aquinas, as
quoted by Dante, to constitute the character of a miracle.-'-
But it differs from the miracle, in the ordinary sense, in this :
that it is not entirely independent of the will of the recipient,
as manifested either in the relation in which he places him-
self to God, or by direct petition. This revelation, through
j the reason (vov?), assumes a plainly supernatural, and comes
] very close on a miraculous character, when it is granted in
(unusual measure, as, for example, tQ__SDcrates.

Bunsen, in my opinion, spoke quite accurately when he
characterised Socrates as " the Saint of Athens," ^ and I assent
to the expressions which he uses in a letter to a friend, as
reproduced in his life.^ Eeferring to the manner in which
his friend had spoken of the religious aspirations of the great
heathens, Bunsen says : " I should express myself differently
as to the religious aspirations of Homer and Socrates, as not
derived from exterior sources, no more than the philosophical
notions of Deity in Plato, but from that inward revelation of
the Spirit of God to which St Paul alludes." Such I believe

^ De Monarchia, lib. ii. sec. 4.

2 Preface to the Thcologia Germanica, Ivii. •* Vol. ii. p. 424.

OF THE SOURCES OF NATURAL LAW. 37

to have been the character of the revelation of ethical truth
to Socrates. What he said of the ^aiynnv, I take to have been
a mere figurative way of indicating the immediate relation in
which he occasionally felt himself to stand to the Divine, and
of which all sages and poets, seers and makers, are more or
less distinctly conscious. Apart, however, from the loftier
character of the subjects to which these revelations usually
refer, there is, I think, a difficulty in establishing a distinction
in kind between them and those intuitive acts of the mind
by which logical processes, for more ordinary purposes, are
unconsciously performed.^ All " happy thoughts " come from
God, and may, in a wide and loose sense, be called revela-
tions, seeing that the mind in which they arise stands, for the
time being, in an exceptionally close relation to Him.

2cl, iThdiryet revelation.

Indirect revelation is the ordinary means by which the law
of nature, or, in other words, the will of God, with reference
to t<Braporal affairs, is communicated to man.

It is divided into two_braiiches —

(a) Subjectjvc, — The teaching of cftTi S'""^^^ ^^^ ^«« , or the re-
velation derived from the study of tlic Fr/o.

(h) Oljjective, — The teaching of external observation, or
the revelation derived from the study of the Non-Ego^ whether
material or immaterial.

* Duke of Arg}'ir8 Rcvjii <\f Lav), p. 318.

38 OF THE SCHOOLS OF .JUKISPKUDENCE.

CHAPTEK 11.

OF THE SCHOOLS OF JURISPKUDENCE.

The qiiestious whether the various sources of knowledge,
direct or indirect, which we have enumerated, be really
channels of the revelation of the absolute law — and, if so,
to what extent — can be answered only when the character
and scope of their teaching has been investigated. On the
assumption, however, that they are entitled to that character, it M
is obvious that the information which they communicate must
be harmonious and coincident, even where it is not identical ;
and that no one of them can be entitled to repudiate another.
The methods, however, to which they give rise differ so essen-
tially, and commend themselves to temperaments and races
and generations of men so different, as to have originated
various schools of jurisprudence, each of which, in its turn,
has claimed exclusive possession of the key of knowledge.
Of these the most clearly distinguishable are —

1st, The Theological School.

2d, The Inductive or Observational School (Subjective and
Objective).

3cl, The Subjective, or Philosophical School.

4th, The Objective, or Sensational School.

A few observations on the methods on which these schools
severally rely may be serviceable in enabling you to recognise
the co-efficient character wliich, in reality, belongs to them all.

OF THE SCHOOLS OF JURISPRUDENCE. 39

1st, The Theological School ^ professes to discover the law of
nature, not in the study of nature itself, but in the study of
what God has told us of nature. The legitimacy of this
method is implied in what has already been said of direct
revelation. If the law of nature be identical with the Divine
Law, — i.e., with the will of God, — it certainly is possible, and
not inconceivable, that He may have made this law known to
man directly. No prudent or reverent man, however, I think,
will venture on a very sharp definition of the word " directly,"
when used in this connection.

The legitimacy of the theological method being admitted,
the only questions with reference to it which here are logically
open to us are, first, as to its reality ; and, second, as to its
adequacy or exclusive sufficiency.

(a) Its reality. — Tliough it be possible and credible that
God should have revealed His will to man externally as well
as internally, it by no means follows that He has done so
at all, or that He has done so with reference to the matter
in hand. The first of these questions it is not necessary,
and would not be suitable, that we should discuss. A direct
revelation, with reference to the relations in which man
8tand.s to God, is an occun-ence in which all Christians and
Mahometans, and most Heathens, profess to believe. We
sliall here assume its reality, with the remark that, inasmuch
as it does not profess to have been given to all, its reality is
a fact whicli those who have not personally received it, must
always accept from those who have. It is only to the prophet
liimself that the prophecy is directly revealed. His followers

' AhreiiH, pp. 01, CO.

4:0 OF THE SCHOOLS OF JUllISPRUDENCE.

receive it on his word. As regards the facts of consciousness,
on the other hand, each man is his own prophet.^

(h) Its adequacy. — But assuming its reality, does this revela-
tion bear on the secular relations of men ? and, if so, does it
alone furnish us with means adequate to the determination of
these relations ? For this, we must bear in mind, is Jhe thesis
which the theological school, as such, professes to maintain.

The leading doctrines of the moral law are, no doubt, laid
down in the Holy Scriptures, and inasmuch as the law of
nature with reference to the relations of man to man is neither
more nor less than these doctrines traced out into their conse-
quences in special directions, the law of nature may, in this
sense, be said to have been directly revealed. But recent
scholarship has taught us that this assertion must not be
limited to the Christian or Hebrew Scriptures. Whether or not
the starting-point of ethics was thus attained anywhere may
well be questioned, but it is not doubtful ^ that its grand out-
lines have the double sanction of direct and indirect injunction.

^ The remarkable revival wliicli Catholicism has experienced, and the attempts
which liave been made to introduce the confessional into Protestant communions,
alongside of, and no doubt as reactions against, materialism and irreligion in our
own day, have given a practical importance to the doctrines of the theological
school which they did not possess half a century ago. Men knew then, indeed, that
such persons as Molina and Bellarmine had asserted that, if the Pope, as the in-
fallible interpreter of external revelation, should declare virtue to be vice and
vice virtue, all good Catholics were bound to believe him ; but, in a speculative
age, the assertion was rather welcomed as a redudio ad absurdum which rendered
the system innoxious. Now, however, in the absence of philosophy, it is widely
accepted as the only refuge against scepticism, which, beginning with religion, has
extended to morality, and which, in our own department, threatens to deprive
jurisprudence and politics of any basis that is independent of individual caprice.

2 Ncander, Ch. His. i. p. 9. Donaldson's History of Christian Literature, ii.
pp. 167, 183, 198, 225. Ackcnnann's Christian Element in Plato, pp. 19, 53.
Aristot. Mctaph. x. 8.

OF THE SCHOOLS OF JURISPRUDENCE. 41

On the other hand, however, it is important to remark that,
in the vast majority of instances, whilst the information which
is conveyed to us with reference to the relations of man to
God are express, that which has reference to the relations of
man to man only admits of being partially gathered from
incidental expressions, or from the life and conduct of Christ.
What is revealed, primarily at least, " is the ways of God to
man," not of man to man. The previous acquaintance of man-
kind with the law of nature is, manifestly, assumed ; and in
this assumption we cannot but perceive a plain recognition
of, and reference to, other sources of knowledge.-'-

Then, so far from preaching any separate system of positive
law relating to secular affairs, one of the objects of Christ's
mission was to abolish the only system of the kind that ever
was directly revealed to man, and to place the Jews once
more in the same position as the rest of mankind. The
Roman law, under which Christ himself lived, was expressly
founded on indirect revelation interpreted by mere human
reason, and, from the beginning to tlie end of His teaching,
there is not the slightest indication of an opinion that it
either ouglit to have rested, or could have rested, on any
other.

The exclusive pretensions of the tlieological school of juris-
prudence are specially inexcusable in Christian countries,
seeing that Cliristianity, as a learned and ingenious French-
ni;in has observed, is "the first religion which does not
pretend that law is dependent on it." ^ A natural conse-

' Tli«; llOtli rHuliii is ii long i>r.'iy(!r for tin; iii<lin^(.t revelation of natiual law.
' Dc CouiangcH, Cite Anlujiic, p. 518.

42 OF THE SCHOOLS OF JUKISPRUDENCE.

qiience of thus attempting to derive guidance from a source
wliicli was not intended to afford it, has been the most won-
derful diversity in the results arrived at by theological in-
quirers. From absolute monarchy and patriarchal and liier-
arclial despotism, to democracy, communism, and anarchy,
there is no condition of political or social existence which
has not sought to justify itself by an appeal to the theological
method.^ Nor is it wonderful that such should have been
the case, for it is obvious that anything may be proved by
a system which relies on documents compiled for other
purposes, and which, by repudiating reason, has moreover
freed itself from the fetters of an independent organ of
interpretation.

But though the teaching even of Christ was not intended
to supersede the revelation through nature, and from the
identity of their source in the divine, to say nothing of the
human character of Christ himself, cannot possibly have
contradicted it, it does not follow that Christianity did not
correct and supplement the conceptions which mankind had
hitherto entertained, or would otherwise have been in a con-
dition to form, of natural law. To the fact of its having done
so, the vast difference between our conceptions of the rights
and duties of human beings and those entertained by heathen
or Mahometan nations, or even by the classical nations of
antiquity, bears witness. Wherever any secular doctrine is to
be found, then, in the Holy Scriptures, the presumption — inas-
much as God does nothing needlessly — is, that it communi-
cates knowledge beyond what was attainable, or at any rate

^ For ail enumeration of writers, v. Ahrens, p. 64.

OF THE SCHOOLS OF JURISPRUDENCE. 43

Lad, up to that period, beeu attained by the ordinary means
of observation and reasoning, and it is therefore to be studied
by the jurist with reverent diligence and care. When com-
pared with the information which he obtains through the
indirect channels of our knowledge, he will often find that the
greater completeness of its dicta enables him to decide be-
tween conflicting opinions, and even becomes the starting-
point of new scientific investigations.

Let me give a single instance of what I mean. The
school of jurisprudence which sets out with the vindication
of the rights of the individual, very frequently falls into the
error of teaching us to prefer ourselves to our neighbours, and
ends in justifying selfishness, either in the form of unjustifi-
able aggrandisement, or equally unjustifiable non-intervention.
The opposite school, which proposes to itself the inculcation
of the duties of the individual, tells us to prefer our neigh-
bour to ourselves, and often falls into asceticism and fanaticism,
and recommends institutions and enactments by which our
neighbour suffers even more than ourselves. But the Bible
enjoins us to love our neighbour as ourselves ; and in thus
proclaiming the eo:act reciprocity of rights and duties, direct
revelation, whilst it confirms the ethical teaching of the
Socratic school, indicates the direction in whicli scientific
jurisprudence, by supplying a measure at once of rights and
duties, yields, as we sliall see hereafter, its last and most pre-
cious fruits.

Yet liow universally human such a sentiment is, appears
from such a fact as that the Brahmans reproached the Ihul-
dhists with having stolen the precept of universal benevolence

44 OF THE SCHOOLS OF JUHISPRUDENCE.

from the Veda.^ It was consequently a sentiment wLicli
both professed to hold, and at which we can scarcely imagine
that either of them arrived otherwise than by what are com-
monly called human means.

Englishmen generally, including Mr Herbert Spencer,^ as
the latest exponent of national peculiarities, fall into the error
of representing Christianity as exclusively " altruistic," and
heathenism, as exhibited in the Greek and Eoman writers, as
exclusively " egoistic." Both statements possess truth enough
to suit them for popular and declamatory purposes, but, in
any stricter sense, are quite erroneous. As regards Christian-
ity, let the example which I have given above suffice. As
regards Heathenism, I shall take an example far more remote
from Christianity than the Greek and Eoman writers. In the
Chinese classics, the " golden rule " is everywhere to be found.
In the Confucian Analects, for example (Book V. Chap. XI.),
it is written : " Tsze Kung said, ' What I do not wish men to
do to me, I also wish not to do to men.' The master (Con-
fucius) said, ' Tsze, you have not attained to that.' " In a
previous passage the doctrine of the master is thus explained :
" The master went out, and the other disciples asked Tsang,
saying, ' What do his words mean ? ' Tsang said, ' The doctrine
of our master is to be true to the principles of our nature,
and the benevolent exercise of them to others,' — this, and
nothing more.' " ^ Again, in the ' Doctrine of the Mean,'
(p. 258), we find that this view was held not less firm-
ly by the followers of Confucius than by himself. " When

* Max Mullet's History of Ancient Sanscrit Literature, p. 85.

2 Sociology, p. 184. =^ Chinese Classics, vol. i. pp. 33, 34, and 41.

OF THE SCHOOLS OF JURISPRUDENCE. 45

one cultivates to the utmost the principles of his nature,
and exercises them on the principles of reciprocity, he is
not far from the path. What you do not like when done
to yourself, do not do to others." Passages to a similar effect
might be quoted to almost any extent from the religious
literature of the other oriental races with which scholars have
made us acquainted during the last twenty years.

2d. The iiuhcctive or observational school (subjective and ob-
jective).

Apart from such knowledge as is conveyed to us directly,
or which we obtain by efforts of which we are unconscious, all
that we know either of the law of nature, or of anything else,
must be learned by the ordinary processes of conscious obser-
vation and reasoning ; and, consequently, all the actual, or
indeed possible, schools of jurisprudence, except in certain
aspects the theological, belong, strictly speaking, to a single
class — viz., the inductive or observational.

Bacon did not limit the inductive method to physical in-
quiries, but declared it to be the true method of scientific
inquiry universally. Since the time of Descartes, at all events,
its applicaljility to the study of man and his relations has
scarcely been disputed ; and whetlier we prosecute it subject-
ively or objectively, or botli, tlie science of jurisprudence is
an inductive science, just as much as chemistry or psycho-
logy. Ikit the inductive or observational school of juris-
prudence, though its two branches rest on a common founda-
tion, is a house divided against itself, tlie occupants of wliicli
have been in tlie habit of ban-ing their doors against each
other even more dotcrniinedly than against llit; llieologiaiis,

46 OF THE SCHOOLS OF JURISPRUDENCE.

Avitli whom some of tliem ^ have even been willing to claim
kindred.

The inductive school as a whole, then, may be divided into two
sections, — the subjective and the objective, or that which relies
for its starting-point on the observation of internal phenomena,
and that which regards external phenomena as all-sufficient.

By including the sources on which they respectively rest
amongst the sources of our science, we have already recognized
the legitimacy both of the subjective and objective methods,
and entered our protest against the claim of either of them to
exclude the other. In support of this protest, and in illus-
tration of their necessary dependence on each other, one con-
sideration alone would seem to suffice — viz., that the supreme
rule of life ivhich we seek is oieither a doctrine of rights nor a
doctrine of duties, hut a doctrine of the relation betvjeen rights
and duties. But a relation can become intelligible to us only
when we know both of the parties related ; and as rights have
a subjective and duties an objective origin, a knowledge of
the relation in which they stand to each other necessarily
implies a reference both to subjective and objective sources of
knowledge.

These considerations, however, obvious as they seem, have
not prevented men opposed to each other by personal and
national genius from attempting to create two schools, each
resting solely on one avenue of knowledge, and as such mutu-
ally exclusive.

Zd, The subjective, or so-called philosophical school. — The ex-

^ Paley, for example, who occupies the singularly incongruous position of a
theolocrical utilitarian.

OF THE SCHOOLS OF JURISPRUDENCE. 47

elusive claims of the study of our subjective nature (the per-
sonal Ego) to enlighten us with reference to the ultimate law,
rest on metaphysical speculations which have lost their hold
on the country in which they originated, and are so little in
accordance with the habits of thought which prevail amongst
ourselves that, even if I possessed a clear understanding of
them myself, which is far from being the case, I should be
disposed to leave them to the experimental refutation which,
I trust, the use of the double method of inquiry in the sub-
sequent pages will supply.^ One advantage over all other
methods the subjective method (die Ableitung aus der reinen
Vernunft) unquestionably possesses — viz., that to mankind in
general, it alone is or can be direct. Our faculties of self-
o])servation may indeed deceive us, but we cannot be deceived
by another. We take nothing on external testimony, and thus
avoid at least one source of error. But to my mind, the objec-
tion just stated — that a relation cannot be known by a know-
ledge of one of its terms — seems to be fatal to the exclusive
claims of the subjective method, to an extent to which it is not,
theoretically at least, to the objective method. An objective
induction, sufficiently wide and sufficiently accurate, would
yiehl a law of relations wliich miglit be assumed to include
the subject, and thus to possess universal validity ; but inas-
much as we could liave no security tliat tlie individual was not
exceptional, no observation of subjective phenomena, however
exhaustive, could with equal safety be assumed to cover the

* In Raying tlii«, I am far from qucHtioning the necessity of starting from tin-
Ego {infra, p. 63). On the contrary, I fully subscribe to the saying of Knuisc,
that " im Ocdankcn dcs Ich, der (icdanko (Icr Kcchts weH(iitli(h mitrntiiullcn
nnd mitaufg(g(lH;n ist," p. 87.

48 OF THE SCHOOLS OF JURISPRUDENCE.

field of objective existence. Neither method, as we have said,
"woidd be trustworthy, apart from the other ; but in this point
of view, at least, tlie objective method would offer many
chances to one, whereas the subjective method would offer
only one chance to many. The subjective method, on the
other hand, would have the advantage in its starting-point ;
for how could I ever come to know anything of my neighbour's
rights except by contrasting them with my own ? The exclu-
sive claims of the subjective method, however, for the reason I
have mentioned, need scarcely be discussed in this country.

Atli, The objective, or sensational school. — The case is very
different with the claims of objective experience, which for
generations has seemed to the common English mind not only
to supply the sole legitimate method of inquiry into the rule
of life, but, by furnishing a rule of life in itself, to supersede
the necessity of the inquiry altogether.

The utilitarian doctrine thus occupies two positions, from the
one to the other of which it is continually shifting, but which
require to be carefully distinguished, seeing that in the one it is,
and in the other it is not, entitled to take rank as a legitimate
method, and to claim a place in the science of jurisprudence.

1. In the first and most ambitious position which it as-
sumes, the doctrine of utility claims to furnish us with a test
of the quality of our actions, to constitute in itself a rule of
life, and thus to supply the place of the law of nature, the
reality of which it denies. Of the 'confusion of thought in-
volved in this claim we have instantaneous proof if we reply
to it by the question, " Useful for what .? " Actions are means,
not ends, and their quality can be tested only by reference

OF THE SCHOOLS OF JURISPRUDENCE. 49

to some final end or object (TeXo?) which they seek to attain,
the measure of their value being the approach which they
make to its attainment. If the rule be, " follow virtue,"
" follow pleasure," " follow nature," the realization of what-
ever we may choose to characterize as " virtue," or " pleas-
ure," or " nature," is the object of the rule ; and the value
of each particular action will be greater or less in pro-
portion to the extent to which it accomplishes this realiza-
tion. But " follow utility " is a rule which has no object —
a fingerpost that points nowhere I So far, then, from possess-
ing the merit so often claimed for it, of supplying the simplest
of all tests of conduct, the utilitarian system furnishes no test
at all, and lias consequently to accept its test from some one
or other of the systems which it repudiates. It is for this
reason that it is held by persons of the most opposite char-
acter and opinions, who deduce from it the most opposite re-
sults. In ^Ir Bentham's hands, and those of the majority of
liis conscious followers, its object has been " happiness," so
defined as to rise little above animal enjoyment, and utili-
tarianism has thus been equivalent, not to eudtemonism in the
Ari.stotelian sense, but to hedonism in tlie sense of the later
Epicureans. Stung by the reproaches to wliich so ignoble an
object and so degrading a system exposed tlieir adherents, Mr
Mill, in his later writings, has sublimated utilitarianism into
sonietliing that might be called transcendental-eudiemonism.^

* In an interesting poHsago in his Aiitobiognipliy, p. 189, lio oven speaks of the
" higlifst riralizaltle ideal of Iiuiiian life" ns the truo object of huiiuin cndeuvour,
though how this ideal shouM liave posscHsed sueh value in the eyes of one wlio
regarded " the preUmdcd jKirfection of the onler of nature and of the universe *' as
a " unperstition," is not explained. N<itlnr <1<» we Inirn flw iikjuis of its dis-

50 OF THE SCHOOLS OF JURISPRUDENCE.

The improvement as regards the object is great. But he has
not improved the pretensions of utilitarianism to the character
of a self-determining system, or its claim to any higher position
than that of a method of inquiry into the objects of life and
the means of attaining them, or, in other words, into the law
of nature — a position which was never denied to it by any
one, except perhaps a subjective idealist.

Let us consider its merits, then, in this latter aspect.

2. Viewed as a method of inquiry into the law of nature,
utilitarianism is merely a somewhat unphilosopliical application
of the method of external observation, — a method which, in
the hands of scientific inquirers, has assumed two leading forms.

(a) The statistical, or empirical, which is chiefly known in
this country, and of which Mr Herbert Spencer is a brilliant
disciple ; and —

(h) The historical, of which, in its primary phase, Hugo,
Savigny,^ and the late Sir George Cornewall Lewis may be

covery. H nature and the universe were imperfect it could not come from within,
for human nature could have no perfect ideal to reveal. Neither could it come
from ivithout, seeing that direct revelation was repudiated as a still grosser super-
stition. Disbelief in the order of nature is intelligible, if to nature we attach the
lower sense in which the opponents of Stoicism have always taken it. To believe
in nature in this sense, in a world in which there is so much relative sin and
phenomenal misery, would involve a denial of the distinction between right
and wrong. But to disbelieve in the order of the universe, or in nature in the
sense in which it is identified with the oMer of the universe, is the ne plus
ultra of scepticism. Even Strauss, in his last and wildest manifestations of
unbelief, believed in the '* Kosmic conception;" and to abandon Kosnios is
surely to part company with reason altogether — in other words, to go mad.
To talk of " reverence " after that is to use a word which can have no possible
meaning.

1 A statement of the very sound position which Savigny ultimately took up,
and which differs considerably from that which is still popularly ascribed to him,
will be found in the introduction to Mr Guthrie's excellent translation of the

OF THE SCHOOLS OF JUEISPRUDENCE. 51

regarded as the leading representatives, and which the specu-
lative mind of Hegel developed in new directions.

Theoretically, it is difficult to deny the pretensions of ex-
ternal observation, when directed both to contemporaneous and
past events, to the character even of an independent method,
because it is possible to imagine an intelligent being, conver-
sant with human life and action, and yet not human. Such a
being could, of course, have no subjective revelation of human
nature, or of the laws by which that nature is governed ; and
yet he might, to a certain extent, become acquainted with
human nature and its laws by the objective revelation of
events — by external observation of actions and their results.
To an omniscient mind the a posteriori method would, no doubt,
yield conclusions universally valid, and we cannot speak of its
application as impossible. For a human being to exclude his
own nature from his consideration whilst investigating human
nature in general, I believe to be impossible. To him the
subjective is tlie only possible starting-point. And as he is
liim.self tlie mirror in which he beholds the universe, liis aban-
donment of the subjective point of view must always be partial,
and is generally iUusory. J>iit some approximation to such a
one-sided position is perliaps attainable ; and to tlie utilitarian
who lays claim to it, all that 1 can ol)jcct is, that his method
ia needlessly imperfect. If he is a human being, he is wantonly
throwing away the opportunities which the subjective study of
liis own human nature affords him of becoming acquainted willi
human nature in general, and its laws. He is urging, moreover,

'■atis*' on I'rivatc Iiit'TiialinuMl Liw, wliirh fdiiiis tin- .Hlli vnl. of llic Siislrm dis

1 1>' III liir II Hiiiii Isrlir II /!rr/if.s, ji 1 -.

52 OF THE SCHOOLS OF JURISPRUDENCE.

on his own behalf, an exclusive claim which he certainly would
not concede to his opponent, who, with equal truth, might allege
that, as humanity as a whole is present in the nature of each
individual, the study of the Ego is alone sufficient to reveal it.
AVhen the claims of the method of external observation are
not pushed to this length, it has been eminently fruitful in
results ; and those who believed that they were demonstrating
the non-existence of natural law have often been amongst its
best expositors. Still, several very serious practical objections
apply to it, which have been stated with great force by its
opponents in Germany.

A. Supposing our acquaintance with recent events — the
immediate effect of recent enactments, we shall say — to be
accurate in point of fact, it is with difficulty that we appreciate
tliem, or, in other words, determine their " utility " for the
attainment of any given end whatever, for two reasons —

{a) Because their ultimate consequences are still in the
future ; and —

(h) Because we see them through the distorting medium of
our own feelings and interests.

B. As regards events long past, our information is seldom
complete, and even then it is coloured by a triple medium —

(a) That through which the narrator saw it.
{h) That through which he intended that we should see it.
(c) That through which our own passions, prejudices, igno-
rances, and those of our own time, permit us to see it.

C. From diversity of circumstances, it is for the most part
inapplicable as a rule of present conduct.

D. Humanity has not yet culminated, and its absolute laws

OF THE SCHOOLS OF JURISPRUDENCE. 53

cannot therefore be revealed by the study of its previous history.
On the assumption that it is progressive, the experience of the
present must be more instructive than that of any former period ;
and, in this point of view at all events, the facts of statistics
are of greater value than the facts of history. The remark of
Lord Bacon is, however, to be borne in mind, that the most useful
examples are those taken from times most resembling our own,
and that these are not always the times that are nearest to us.-^
E. But the leading objection to external observation in all
its forms, as an exclusive source of knowledge, is that we can-
not begin with it.- In whatever light '' facts " may be viewed
by the historian or statistician,^ to the jurist they are not
ends but means ; and external facts are means which he
cannot use till he has gained a starting-point, and acquired
a standard which they cannot supply. After we know what
our nature craves, and what God wills that it should aspire to,
there is scarcely a fact, however insignificant, of observation or
experience, which may not furnish precious suggestions for the
realization of these objects. Nay, farther, even as regards
these objects themselves, it is most true that " there is a liglit
which sliines on the ways of God out of a better knowledge,
even of man's ways." ^ But the light which man's ways afford
is liglitcd witliin liim, and tlie reflected light which shines from
without has reference far more to the concrete and varial)lc,
than to tlie abstract uikI permanent element of law. Tlie
science of jurisprudence, like charity, must "begin at lioine;"

' J)c JwdUui. IJnivrrHfili, AplioriHm xxiv. ' KraUHo, p, !•!.

A» to the Hcicntific Hij^nificancc of StatiHtic, v. Alircns, vol. i. p. 5, note.
* Ilcupi of hiw^ p, It.

54 OF THE AUTONOMY OF HUMAN NATURE.

and the proper answer to the empiric is that which St Luke ^
tells lis our Lord made to the Pharisees when they asked Him
when the kingdom of God should come. " The kingdom of God
Cometh not with observation : neither shall they say, Lo here !
or, lo there ! for, behold, the kingdom of God is within you

J' 9.

CHAPTEE IIL

OF THE AUTONOMY OF HUMAN NATURE.

The science of the law of nature divides itself substantially
into three inquiries —

1st, Is the nature of man autonomous ; is he a kosmic or
a chaotic creature, or, in other words, is man " a law unto
himself"?

2d, If so, in what manner is this law revealed to him ?

3d, What is the law which man's nature imposes on him,
or binds him to impose on himself ?

Each of these branches admits of being prosecuted, and has
always been prosecuted in point of fact by competent investi-
gators,^ more or less systematically, both by the philosophical
and tlie historical methods. In so far as it seems possible, we
shall not fail to avail ourselves of this double avenue to truth ;
but in seeking a response to the first question, we shall
listen in the first place to what our nature tells us directly.

' xvii. 20, 21.

2 "The master said, * The path is not far from man. When men try to pursue
a course which is far from the common indications of consciousness, this course
cannot be considered Tin: Path.' " — Legge's Chinese Classics, vol. i. p. 257.

^ Guliehiii Grotii Enchiridion, Index, p. 3.

OF THE AUTOXOMY OF HUMAN NATURE. 55

The direct or subjective revelations which our nature makes
to us of its legislative character, appear to be presented in the
following order : —

1st, Our nature asserts its existence, and vindicates its
assertion.

Life being the root at once of our rights and our obligations,
the knowledge that life is a fact must of necessity be the
first step in the science of jurisprudence, as of every other
branch of the science of man. Till we know that we are,
we can neither know how we are, nor inquire how we ought
to be. But our existence is a fact, which each of us must
ascertain for himself ; and the knowledge of which, by another,
we can only assume. If a man tells me that he is not
conscious that he lives, I can no more contradict him than
if he tells me that he is not conscious that he loves. So far,
the primary dictum of consciousness is on a footing of equality
with all the subsequent dicta. But it differs from them in
this respect, that neither its reality nor its veracity can be
denied, or even doubted. If my neighbour tells me that he
is conscious that he does not love, I. am bound to believe him ;
but if he tells me that he is conscious that he does not live,
or tj^iiiks that he does not live, or doubts whether he lives
or not, his assertion disproves itself " The very statement
of doubt," as Dr Adam Fergusson lias said, " is a dogmatic
a.ssumption of personal existence and thought." ^

Nor does the accuracy of tliis assumption admit ol" ([ucstion
any more than tlio fact of tlici asHiim})tion ; for, in so far as
its first dictum is concerned, the fact tliat consciousness truly

' Fcrgiui.soii'8 Principles of Moral and Polilicdl Science, vol. i. [». 7l).

56 OF THE AUTONOMY OF HUMAN NATURE.

testities, is" proof enough that it testifies truly. " To doubt
of the reality of that of which we are conscious," says Sir W.
Hamilton, " is impossible, for as we can only doubt th]:ough
consciousness, to doubt of consciousness is to doubt of con-
sciousness by consciousness. If, on the one hand, we affirm
the reality of the doubt, we thereby explicitly affirm the reality
of consciousness, and contradict our doubt ; if, on the other
hand, we deny the reality of consciousness, we implicitly deny
the reality of our denial itself." ^

2d, Our nature guarantees the veracity of its testimony
with reference to its qualities.

It is true that, without incurring the contradiction which
the denial of the primary assertion of subjective being
implies, we may deny the veracity of every subsequent
assertion of consciousness. But such denial cannot possibly
admit of proof, because the truth of the denial can never rest
on higher testimony than the truth of the assertion. If the
consciousness which tells me that I love be fallacious, the
consciousness which tells me that I doubt or deny that I love
may be fallacious too. It thus appears that if we deny the
truth of any single dictum of consciousness the reality of
which as a plienomenon is admitted, the whole fabric of truth
is shaken. " If our immediate internal experience could
possibly deceive us," said Leibnitz, " there would no longer
be any truth of fact, or any truth of reason."^

Consciousness, or subjective nature, being thus a living,

* Sir W. Hamilton's Led. on Metaph. , vol. i. p. 274 ; Descartes' Second Medi-
tation, and St Augustine's Civitas Dei, 1. xi. c. 26. See also the introduction to
M. Saisset's Translation of the Civitas Dei, pp. lix.-lxi.

2 Hamilton, utsup., p. 265.

OF THE AUTONOMY OF HUMAN NATUKE. 57

truth-telling witness, let us try what we can learn from it
with reference to its legislative character, and the laws
which it acknowledges.

3d, Our nature asserts that it is the result of a cause
external to itself, and independent of its volition.

It has often been said that the sentiment of unconditional
dependence is the essential element of all religion. If the
same assertion can be made with reference" to jurisprudence,
we have the first stone of the edifice of the de facto system.
Is this proposition, then, in accordance with the revelation of
nature ?

We have seen that our first feeling — that with which
consciousness begins — is the feeling of existence, and not of
activity ; of being, and not of doing.^ This circumstance at
once throws the causative act by which we came into exist-
ence out of consciousness. We cannot, therefore, know that
we created ourselves. Any theory ^ which does not ascribe
our being to a cause independent of our volition, either leaves
it unaccounted for, or accounts for it by a gratuitous assump-
tion, at variance with our knowledge so far as it goes.

But from tliis assumption we are shut out by two con-
siderations—

(a) It involves the necessity of conceiving human activity
prior to liuman existence, and Ijy tlius ascribing original
creative power to a second cause, contradicts our primary
p<jstulate of a single first cause.

' That actuality rniwi precede iwUiiiti.ility had alicKly hccomc ni»it!in'iit to
Arintotlc. — Orant'H ArialolU, vol, i. j>. T.'A.
* .Sui h 'XA that iA Miilhr on Siu.

58 OF THE AUTONOMY OF HUMAN NATURE.

(h) It implies the conception of volition which is uncon-
scious— i.e., of will, without the self-directing quality which
is its essence.

4/A, Our nature accepts itself as a gift, voluntarily given,
but necessarily received.

In pronouncing its source to be independent of its own
activity, our nature exhibits itself to itself in the character of
a free gift — the gift, by an external and independent agency,
to every man of himself, with all the powers and faculties
which constitute personality. But it is implied in the idea
of a free gift, that no previous right or title to its possession
existed in the person of the recipient,^ even supposing the
recipient's person to have pre-existed — a supposition which in
the present case is excluded. Whatever rights may result
from our nature, it is obvious that no rights can have pre-
ceded it, because in that case nature, with its inherent rights,
would become a recognition of something which we had
already done in our own behalf; and as doing implies
being, we should again be entangled in the assumption of
self-creation.

Eegarding this as the first step in the process of self-inves-
tigation, in a strictly jural direction, we see that nature reveals
to us not a right, but a possession, the result of no antecedent
right, and the necessary source of all subsequent rights. This
is a fact to which I beg to direct special attention, as it is
one the forgetfulness of which has introduced much confusion
into the study of jurisprudence. Eights, it is true, precede

1 Actus justitiae est reddere debitum, sed Deus nulli est debitor : Ergo, Deo
non competit justitia, Th. Aq. Summa. Pars prim. Quaes, xxi.

OF THE AUTONOMY OF HUMAN NATURE. 5 9

obligations, as we shall see hereafter, because we must exist
before we can come in contact with external existence ; but
existence is the source and the measure of both, because
neither rights nor obligations can spring from, or centre in,
the non-existent. A proclamation of the nature of man must
consequently take precedence of a proclamation either of the
rights or duties of man.-^

But further, the primary possession of existence thus
freely bestowed, must not only be" freely but fully accepted.

(a) "VVe cannot refuse it, for from that course w^e are cut
off by the fact that the act of refusal, in this case, already
implies the possession of the object refused.

Ere the birth of my life,

If I wished it or no ;
No question was asked me,

It could not be so.^

(h) But if we had neither right to demand existence nor
power to refuse it, it follows equally that we had neither
riglit nor power to determine or modify its character. " Shall
the thing formed say to him that formed it, Why hast thou
made me thv^s ? Hath not the potter power over the cLay,
of the same lump to make one vessel unto honour, and
anotlicr unto dishonour ? " ^ Accordingly —

5th, In accepting itself as necessary, our nature accepts
itself as rifjht, and its fundamental qualities and radical

' The remark that the only meariH of getting a Kpcculalive foundation for tin:
idea of right, i« by renting it on an ultimate fact, is as old as Thomas A(|uina.s,
"Nihil conKtat finniter Kccundum rationem Hpoculativam nisi per rcKolutioncm
ail prima princi[>ia ind»monHtrnbilia, vol, vi. p. 200.

' Coleridge's Suicvk'if Ar'juinciU. '' Koni. ix. *J0, 'Jl.

60 OF THE AUTONOMY OF HUMAN NATURE.

impulses — those qualities and propensities which are normal
to it — as absolutely normal, and consequently as the criteria
of right and wrong.-'- Eelatively it must be right — it must
be riiiht to its — because we can have no higher standard than

o o

its necessity by which to measure its rectitude. It may be
wrong ontologically, but we are logically shut out from sup-
posing it to be so. The universal validity of natural law, if
not unquestionable, is undeniable.

At first sight, then, it seems as if this proposition, like the
preceding ones, might be left to rest on subjective evidence.
Still, the subjective evidence here is only negative. We
cannot deny the fundamental rectitude of our nature, but our
affirmation seems to stop with the assertion of its individual
necessity.

This proposition consequently differs in character, very
essentially, from the four preceding ones, and as it is on its
acceptance or rejection that the question of the possibility or
impossibility of the revelation of a law-natural through nature
essentially turns, it is necessary that we should consider it
with scrupulous care.

If we assume the perfect character of the Creator to have
been made known to us by a revelation, not through our
nature, but to it, a science of jurisprudence may then be

^ As to the distinction between our normal qualities and those which, as in-
dividuals, we actually exhibit in time and place, see Krause, p. 85 : —

" Ich unterscheide mich selbst als ganzes Ich, ganz bestimmt von niciner
individuellen Erscheinung des Lebens in der Zeit, Ich finde mich iiber mir selbst,
sofern Ich diese zeitliche Person bin," "I distinguish myself as a whole quite
clearly from my individual manifestation as life in time. I find myself above
myself, in so far as I am a temporal person."

OF THE AUTONOMY OF HUMAN NATURE. 61

arrived at by a synthetic and deductive process, which does
not start from a belief in the rectitude of human nature ; for
the known character of the lawgiver would, in this case, be a
sufficient guarantee for the character of the law. The law
would still be guaranteed to us, no doubt, but the guarantee
would be external. It is on this, the theological hypothesis,
that all theocracies rest ; and if they can scarcely be said to
be scientific, in the sense of resting on nature, they cannot be
reproached with being illogical. But in so far as a know-
ledge of the duties which arise from our relation either to
God or man is to be arrived at through nature, it is plain
that its possibility rests on the reality of the dictum of con-
sciousness which I have mentioned ; because a nature that
was self-condemned, though it might reveal a necessary law,
could neither reveal a self-justifying law, nor afford ground
for the inference of a self-justified lawgiver. It is at this
point that the distinction between fatalism and obedience to
self-accepted, though not self-imposed law, makes itself felt.
The divine element in man — the relatively divine — recog-
nises the validity of the law which the absolutely Divine
imposes.

Tlie ultimate test of the reality of this, as of every other
dictum of consciousness is, of course, a subjective one — do
we or do we not feel tliat our fundamental nature — our nature
in its general and, in tliis sense, normal, as opposed to its
special and exceptional impulses — is self-approving, and that
the acts of whicli we instinctively disapprove are acts by
wliich tliat nature is violated ? Personally I should not
lie.sitate to exclaim with St Augustine — '* In his tribiis nulla

62 OF THE AUTONOMY OF HUMAN NATURE.

nos falsitas verisimilis turbat, — et sumus, et nos esse novimus,
et id (nostrum) esse ac nosse diligimus." ^ Still we are not
compelled on the penalty of contradiction to admit our
qualities, as we are our being. We cannot think that we are
not ; but without violating the laws of thought, we may per-
haps imagine that we were created by the devil, and formed
originally in the image of the father of lies. Disbelief in
Kosmos, or in man's power of discovering it, would bring
us, it is true, very near to the creed of the reformer who,
in 1848, formulated the following project of a constitution :
" Art. 1^^' et unique. // n'y a 'plus rien"^ But Mr Mill has
shown us that, in the form of scepticism at all events, it is an
abyss from which even gifted men are not safe. As the admis-
sion of the dreary creed which it involves would amount to
a denial of the possibility of natural jurisprudence altogether,
the question whether or not it be, in point of fact, the
response of humanity, is for us indeed a critical one. That
it is not new in our day, but has prevailed, or recurred,
under many modifications of irreligion and sensualism on the
one hand, and fanaticism and asceticism on the other, both in
heathen and Christian times,^ is unquestionable ; but the fol-
lowing trains of thought and tracks of inquiry, which I can
only indicate, if duly carried out, I believe will convince you
that the response of the general conscience, and consequently
the central belief of mankind, has always been to the
opposite effect.

* Civilas Dei, lib. xi. cap. xxvi.

2 iievuc de Droit JnterL, 1873, i. and ii. p. 320.

•^ Lecky, History of EiLrop. Morals, vol. i. p. 99.

INQUIRY INTO THE HISTORY OF OPINION. 6

CHAPTEE lY.

INQUIRY INTO THE HISTORY OF OPINION WITH REFERENCE,^
TO HUMAN AUTONOMY.^

For tlie reasons stated at the end of last chapter, it seems
proper that we should, for the present, stop short in our in-
quiry into the direct teaching of nature, and that I should
invite you to test the accuracy of our last dictum, with the
aid which I conceive the historical to be always in a condition
to afford to the philosophical method.

As this is the first occasion on which we have resorted to
tlie historical method, and as its relation to the philosophical
method is frequently misunderstood, it may be well to assign
the limits and indicate the modes of its application. And
first, let me offer for your acceptance what I shall call —

(A) The canon of the limitation of the historical method.

We are not called upon, in the interests of science, to prove
by an appeal to the consciousness of mankind any proposi-
tion whicli is self-evident — i. c, which is guaranteed unequivo-
cally to the individual mind by the laws of thought ; or, in
uUier words, we are scientifically entitled to assume that man-
kind always did believe what we ourselves must believe.

' Tho (liACUAflion in thw chapter presents many analogies with that wliidi
Haron Buns^m has presented, with such wealth of tliought and learning, in liis
fjfxl in IliMlory. Our theses, however, are not id(!nti(;al. His is 1«) j)rove that
there is a moral order in the universe— mine to prove that men feel themselves
capahle of discovering this order in their own relations.

G4 INQUIRY INTO THE HISTORY OF OPINION

No concurrence of objective opinion could give strength to
our subjective opinion that twice two are four.

Xenophon tell us ^ that Socrates was wont to say that it
■svas absurd to consult the gods about things that might be
discovered by meditation ; and in like manner, to tlie extent
which this canon indicates, there can, I think, be no question
that, in the pursuit of truth, the philosophical has no claim on
the historical method. Eeason is anterior to history ; and
where the testimony of reason is conclusive, history has noth-
ing further to teach. It is on the ground that they rest on
a deeper foundation than the liistorical, that we have assumed
as facts the existence and independence of the Creator, and
the existence and dependence of the creature.

At first sight it seems as if we might, with equal confi-
dence, dispense with historical proof of human rectitude. If
the necessity of the Divine nature be a sufficient guarantee for
its perfection, why should the same necessity not carry the
same guarantee as regards human nature ? If the testimony of
a single individual be a sufficient guarantee for the fact that
a perfect God made man, why should the testimony of man-
kind, as a whole, be requisite to prove that He made him per-
fectly ? The a priori method entitles us, I think, to dismiss,
without inquiry, such an allegation as that in the Buddhist
system, which is probably the creed of little short of a third
of the human race, " There is not a trace of the idea of God," ^

1 Mem. i. 1-7 ; iii. 9-14.

'2 «< II 11 'y a pas trace de I'idee de Dieu dans le Bouddhismc entiero, ni au debut
ni ail temie." — Le Bouddhct et sa Religion, par J. Barthelemy Saint Hilaire, c.
iv, , 164, &c. See also Dr Goldstucker's article in Chamhersi's Encyclopoedia, voce
"Buddhist."

WITH REFEREXCE TO HUMAN AUTONOMY. 65

as a manifest misinterpretation ; ^ and we do not hesi-
tate, in \drtue of the same method, to cut short all discus-
sion as to our own existence with a summary cogito ergo
821711. Why then should we not, with equal confidence, dis-
miss the notion that a perfect Creator produced an imper-
fect creature ? The distinction arises from the contradictory
phenomena which consciousness presents in the latter case.
Here the mind itself forbids us to obey its own laws. It
is as impossible for us to believe that we are perfect, as to
see how a perfect God could have made us otherwise. Per-
fection and imperfection, good and evil, are irreconcilable
phenomena of our nature, of the reality of each of which it is
equally impossible to doubt, and which, if equally real, would
neutralize each other. Neither can tlms be shut out by the
contradiction which threatens to exclude both, and to leave
the mind void of any guiding principle, either right or wrong.
In these circumstances, a far more delicate psychological in-
vestigation becomes requisite, and one which we can scarcely

* The mi.sinterj»retation seems to consist in an attempt to determine as a nega-
tion what is merely an indefinite acknowledgment of ignorance as to the nature
or charaotcr of God, or of impotence to think a first, or uncaused, cause. All that
the so-called atheism of the Buddhist thus amounts to is a recognition, not,of course
very clearly or accurately expressed, tliat the infinite and uncreated is incogniz-
able ; or, in other words, that cognition is limited to the sphere of cause and efi'cct,
which is surely no great heresy. " The word Atheist," says Mr Alaliaster, speak-
ing of the Siamese, *' is among us a word of reproach, and I do not like to apply
it to those who, so far as I see, do not deny the exLstf^nce of a God, but only
reverentially alwtain from defining that which it is impossible to conjprehend."
— WfurA of tlui Jaiw, Hi. Schlagintweit, Biuldhvim in Thibet, p. 108 ; Hardy,
Manwil of liwUlkiim, pp. 393-398, &c, ; Mux Miiller's Chips, vol. i. p. 231, juid
p. 255, where he says, most tnily, that such a religion as has Iccn ascribed to
Buddha coiild have existed only in a iiijidlioiisc. S<c tliis .H\ilij<(t morn fully dis-
cuMcd, infra, p. 80, 85, et Hrq.

66 INQUIRY INTO THE HISTORY OF OPINION

venture to coniine within the limits of the individual mind.
Admitting the reality of both phenomena, the question comes
to be, whether they do, in our nature, so balance each other
as to exclude the assertion of supremacy by either ? or
whether the one . be not fundamental, involuntary, and de-
termining : the otlier superinduced, and, to a great extent,
voluntary and self-determined ? Should the latter supposi-
tion be the correct one, humanity, though imperfect, will
neither be necessarily anarchical nor heteronomous ; and the
possibility of a law-natural will be saved.

(B) The canon of the application of the historical method
then comes to be this —

An appeal to the history of opinion becomes practically
important in support of any proposition, the opposite of which
the individual conscience is compelled to entertain, even par-
tially. It is not, however, scientifically indispensable, because
the individual mind might determine the preponderance.
But as the general or universal cannot differ fundamentally
from the individual consciousness, its testimony may be
legitimately called in for purposes of exegesis, and as a
means of widening the basis of our induction.

(C) The regulative canons for the application of the his-
torical metliod again are — the laws of evidence applicable to
historical inquiry.^

The investigation of the laws of evidence constitutes a
branch of special jurisprudence which cannot receive adequate
discussion in a treatise on general jurisprudence. All that I

^ On this subject the best work, perhaps, in any language, is Sir G. C. Lewis's
MclJiods of Observation and Jleasonincj in Politics.

WITH REFEPvEXCE TO HUMAN AUTONOMY. 67

shall attempt is to indicate one or two of those laws which
have been most generally violated in dealing with anthro-
pology from a historical point of view.

1st, Preference must be given to the best witnesses.

In virtue of this rule we may, without hesitation, confine
our investigations almost exclusively —

(a) To the higher races of mankind.

(h) To the more vigorous periods of their moral, intellectual,
and political life ; and —

It is from forgetfulness of this rule that so many investi-
gators of this problem have been led into fruitless attempts
to determine tlie primitive beliefs of mankind in point of
time, and the existing opinions of the non-historical races.
Partly, indeed, the problem itself has been mistaken, and a
confusion, similar to that between the law of nature in the
scientific sense and tlie laws of the so-called " state of
nature,"^ lias arisen Ijetween the fundamental, normal, and
permanent beliefs which we seek, and beliefs which, as be-
longing to the earliest stage of social life, even if discoverable,
would probably bo abnormal, exceptional, and evanescent.

^luch difference of opinion j^nivails not only as to the

origin of life, but as to tl«e condition in wliicli mankind, as

such, first appeared on the earth. In l'av<nir of the savage

state wo have the testimony of rvMcut ])hyHiological investi-

1 gation, which, to a certain class ol" minds, is altogether con-

; ' Iiilro.1., \>\t. n, I'J.

68 INQUIRY INTO THE HISTOHY OF OPINION

elusive. On the other hand, the science of comparative
philology ^ has come to the aid of those old traditions of
primitive civilization and subsequent prehistoric degeneracy,
the universal prevalence of which was formerly conceived to
settle the question in the opposite direction. Amongst the
philosophers, too, in our own times, Schelling has appeared as
the advocate of a sort of golden age, on the ground that it is
inconceivable that man, as he now appears, should have been
able of himself to raise hinLself from instinct to consciousness,
from animality to rationality ; ^ and Sir Alexander Grant, the
learned Principal of the University of Edinburgh, in criticising
the Darwinian hypothesis, has expressed his opinion that the
higher races from the first, in addition to the human faculties
which savages now exhibit, must have possessed " an inward
impulse which led to the evolution of civilization." " The
extremely unprogressive character of savage society," he says,
" is an obstacle to believing that the first civilization of the
world — that of the Aryan and Semitic races — can ever have
taken its start from such a society, in primeval ages." ^

Even putting aside all distinction, in kind, between the
different races, there is, as it appears to me, nothing inad-
missible, a 'priori, in the conjecture that barbarism may, for
the first time, have resulted from causes similar to those
which have so often occasioned retrogression in other times.
We are so familiar with the phenomenon of continuous pro-
gress, or what we believe to be such, in modern times, that

* Max Miiller's Oxford Essays, 1856, p. 5, and elsewhere.
- Schwegler, p. 303.

^ Lecture to Edin. University Phil. Soc, April 6, 1871. May there not he
Protoi)lasm and Protoplasm ?

WITH EEFEEENCE TO HUMAN AUTONOMY. 69

we put away from ourselves the thought even of temporary or
partial retrogression almost as an impossibility. But is it
certain that we are warranted in this comfortable conclusion ?
Anarchy is a phenomenon but too familiar to the historian;
and not many generations of anarchy, if continuous, will, at
any time, or in any race, bring about the total loss of civiliza-
tion. Mexico has retrograded to a point below that which
has been now attained by the Sandwich Islands ; and it
has at times seemed questionable whether the Latin civiliza-
tion of Europe, with all the aids of material progress, will
ultimately survive the disorganizing and demoralizing influ-
ences to which it is at present subjected, from democracy and
consequent despotism on the one hand, and superstition and
consequent infidelity on the other. Keactions, no doubt, con-
tinually occur ; but it by no means follows that each reaction
should reach the previous point of departure. Algeria has
improved amazingly under French rule, and India, we trust,
lias done the same under our own. But no portion of the
north coast of Africa has ever regained the point which it had
reached in the days of TertuUian and Augustine ; and the high
tide of Hindu civilization left its mark in an age the remote-
ness of which even comparative philology hesitates to compute.
The same may be said of tlie civilization of China ; and the
monuments discovered by the Spaniards in South America, when
contrasted with the then existing institutions of the people,
Lold a like tale of degeneracy. In 1704 — towards the end of
the " Keign of Terror " — we are told, matters in FiaTice had
come t() the pass that " at Meudon there was a tannery of
human skins, — such of thcj guillotined as seemed worth flay-

70 INQUIRY INTO THE HISTORY OF OPINION

ing, — of wliicli perfectly good wasli- leather was made, for
breeches and other uses ;"^ whilst the scalps of the women of
the higher classes wlio were guillotined — their hair, from the
prej^onderance of Frankish blood, being fairer than that of the
coinmon people — were in great demand as 'perruqioes-blondes.^
A few months later we know that these horrors were at an
end ; and that they were regarded at the time by the vast
majority of French men and women in the same light as by
the rest of civilized mankind cannot be doubted. But just as
a whole private family is apt to suffer a moral degradation
when a foul crime is committed by one of its members, so the
subsequent history of France, and " the recent horrible episode
of the Commune," ^ afford too much reason to fear that she has
not yet recovered from the influences of the " first Keign of
Terror." That by the union of liberty and order during a long
course of years, she may wipe out the blood-stained pages of
her horrible past, must be the hope of all, and, for the present,
is the confident expectation of many.

But the question as to the condition of primitive mankind
loses all real importance for our purpose when we consider
that, just in proportion to the degree in which man at any
period of his career, or from whatever cause, either as an indi-
vidual or a race, approaches the condition of the lower animals,
and recedes from that which is special to humanity, his value
for the anthropologist diminishes, both as a specimen and a
witness. Whatever be the qualities with which we are occu-

^ Carlyle's French Revolution, vol. iii. pp. 209, 210. ^ 75^ p^ 209.

^ See M. Kenan's Reforme Intellectuelle et Monde, p. 56, one of tlie most re-
njarkable political treatises in existence.

WITH EEFEKENCE TO HUMAN AUTONOMY. 71

pied, it is in the highest and not the lowest specimens of the
organism that we seek for their typical manifestation.^ If we
wish to ascertain the characteristics of animal life, we examine
a man or a horse, and not a worm or a snail. And amongst
men and horses, we select European men and Arabian horses,
not Hottentots and Icelandic ponies. Viewed as a specimen,
then, if the primitive man resembled a Bushman or an ape, or
a spoonful of protoplasm, he would throw less light on the
characteristics of humanity than our next-door neighbour.

Then, as to his opinion, consciously emitted ; if w^e do not
apply to savages or monkeys for our knowledge of physiology
or zoology, why should w^e call them in to instruct us in
psychology or anthropology ? The whole nature of man
probably exists in all men at all times, and the "intuition
of Kosmos"^ will, consequently, be wholly absent from none ;
but it is in the highest men at the highest times that nature
exists in the greatest health and vigour, and it is there and
then only that this intuition commonly manifests itself as a
self-revealing power.

Ou the other liand, however, it is true that, as the charac-
teristics of animal Life are sometimes best exhibited by the
phenomena of infancy and disease, so the study of the unde-
veloped and lapsed races of man may sometimes throw light

* "Quid illuJ ? nuin dubitas, quin spocinion naturae rapi dcbeat ex optima
<pi;uiuc natura ? " — Cicero, TilscilI. QwkhI. i.e. 14. Lil h\ aKondu iv ro7s Kara
rpdffiv fx^^<^^ fmWov jh <p6(T«i, Ka\ fiij iu roh Si«pdapfiti>oi^. — Aristot. Polil. i. c. ii.
10, Profr:8»or Ba.stian of Berlin lias ma<lc a wonderful collection of the *'a1)oiiii-
n.itioriH et 1«;h enfantillageH " of savagoH. " RechUiVcrlialtniHHO der vorHcliinlcinen
\ ulk(;r der Erdo."— /(^i'u< tk iJroil IiUcrl., 1873, iii. p. 497. See alao Maclunnau's
Primitive Murrinrjti.

' BunMcn, %U sup. p. 56.

72 INQUIRY INTO THE HISTORY OF OPINION

Oil his nature. Instruction may be derived from comparing
tlioni, not only with the higher phases of civilization, but
with each other. The errors of a Ecd-Indian differ from
those of a Eed-Eepublican very widely ; but they are about
equally great, and the contrast which they offer is not with-
out value for anthropological study. Nor are their analogies
uninstructive. The institutions of property and marriage, for
example, are the two pillars on which civilization rests. The
one supports it on its moral, the other on its material side ;
and to these two institutions they are equally opposed. The
communistic savage has retrograded to the point which the
polyandric savage had failed to pass. " Le litre du contrat de
mariage, est abrog6,'' was M. Emile Acolas's proposed amendment
of the provisions of the Code Civil on that head. A Eed-
Iiidian could go no farther, and probably would not go so far.
Still, as the child or the fool does not teach the man or the
sage to the extent to which the man or the sage teaches the
child and ought to teach the fool, so neither does pathology
throw so much light on physiology or psychology as these
throw on pathology. Our best instructors in anthropology will
therefore be the higher races, and these races not only at the
period of their highest endowment, culture, and organic life, but
as represented by their sanest, most gifted, and most cultivated
members. For our purposes, the single life of Socrates is of
greater value than the whole existence of the negro race.

2d, Even amongst the witnesses whom we admit, the prin-
ciple that testimonia ponderanda sunt, non numeranda must be

* -

applied.

The calling in of historical testimony at all, is an ad-mission

WITH REFERENCE TO HUMAN AUTONOMY. 73

that the case is one in which the value of numbers comes into
play, and in which the rule holds good that, ceteris j^ccrihus, two
witnesses are better than one. At the same time we must re-
member that it is the reality of a fact, and not the mere preva-
lence of an opinion, that is the ultimate object of our inquiry ;
and that a fact can be ascertained only from those that know
it. The vast majority of human beings, even of the higher
races of mankind, would no doubt still be ready to swear that
the sun goes round the earth ; but the fact has been ascer-
tained to be otherwise by the testimony of a mere handful of
witnesses. The fact in question with us here, though perhaps
ascertainable without special culture, is scarcely ascertainable
without special gifts, and is very far from being one with
reference to which all men are equally in a condition to bear
testimony.

3d, The abstract value of two witnesses being equal, the
value of a coincidence between their testimony will increase
in proportion to the dissimilarity, and diminish in proportion
to the similarity, of the circumstances in wliich it is given.
It is on this principle that the value of historical, as compared
with contemporaneous testimony, chiefly rests. Very possibly
our ancestors were no wiser tlian ourselves ; but the circum-
stances in wliicli they tliouglit and acted differed from ours
uiore extensively than those of contemporaries, and hence tlie
greater care with wliich we are willing to discuss their
opinions. The effect is the same where the difference of cir-
cumstances arises from distance in space, in race, in social
j)Osition, education, occupation, and tlie like, as in time. A
coincidence of opinion between a ('liin.iiiian ;iij<l an I'lnglish-

74 INQUniY INTO THE HISTORY OF OPINION

man will do more towards establisliing a fact, and a difference
of opinion will do less towards invalidating it, than a simi-
lar coincidence, or difference, between an Englishman and a
Scotchman.

Having indicated these rules for the application of the his-
torical method to anthropological inquiries generally, our next
duty is to determine whether the central creed of humanity
has hitherto affirmed or denied the fundamental rectitude of
man, and the consequent existence, in his nature, of a law for
its guidance.

To answer this question must, to each of us, be the business
of his life, rather than of any single spasmodic effort. Were
I to profess to deal with it exhaustively within the limits of
such a work as this, I should simply give proof of insensi-
bility to its magnitude and its difficulty. All that I can do
is to indicate its scope, and to signalize a few of the leading
considerations which, to my own mind, notwithstanding all
the sin and folly which we behold, and to which we contri-
bute, appear to warrant an affirmative answer.

(A) Of oriental, or ante-classical anthropology generally. — The
"old colossal religions of Asia," as JSTeander called them,^ fall
mainly into two classes — those of the Shemitic, and those of
the Aryan races.

{a) The Shemitic races. — As the religions of all the Shemitic
races rest on direct revelation, real or pretended, and as they
are not accompanied by independent rational or speculative
systems, their anthropology is necessarily a reflex of their
theology. The value of the former consequently depends on

^ Church History, vol. ii. p. 6, Bohn's translation.

WITH EEFERENCE TO HUMAN AUTONOMY. 75

the authenticity of the latter. But as we admit the authen-
ticity of one direct revelation only, and as all the others, if
genuine, must have agreed with it, it follows that from this
one we shall learn all that the Shemitic religions can teach
us. The only Shemitic anthropological doctrine with which
we need concern ourselves thus comes to be that contained in
the Old Testament. The question whether this doctrine affirms
or denies the radical soundness of humanity is of vital import-
ance, not only in a religious, but in a scientific point of view,
because it furnishes, when rightly understood, and taken in
conjunction with the teaching of Christ and His apostles, the
only external touchstone by which the accuracy of our natural
interpretation of human nature can be tested. But as the
religion of the Hebrews, in so far as it possesses any perma-
nent value for humanity, forms a unum quid with Christi-
anity, we shall defer the consideration of it till we speak of
Christian anthropology.

Baron Bunsen regards the ancient Egyptians as a branch
of the Shemitic race,^ and their monuments as exhibiting the
earliest form of Shemitic consciousness, ethical and religious.
The point is one about wliich Egyptologists and philologists
are not agreed, and on which I can presume to offer no opinion.
As to the substance of their antliropological beliefs, enough
appears to be known to warrant us in affirming that tliey
embraced a direct rehition between the human and divine,
and that tlie character ascribed to tlie divinity Osiris ^ was
beneficent. How they conceived themselves to have arrived at
this creed is another question, the answer to whicli will ])rob-

' God in IlUtory, i. p. 223. '-* P. 226.

76 INQUlliY INTO THE IIISTOIIY OF OPINION

ably very much depend on the race to which ethnologists may
ultimately assign them.

The riioenicians and Carthaoinians have left no traces of

anthropological or ethical speculation, and it is no doubt to
the want of any rational conception of the human relations
amonost them that we must ascribe the limited success which

attended their efforts at political organization, notwithstanding
their great commercial prosperity.

But it may seem that the above dictum requires some
modification in favour of the Arabs, in virtue of the schools of
philosophy which grew up under the Caliphs, and flourished
more especially at Bokhara and Cordova. As regards such
exceptional individuals as Avicenna and Averrhoes, and two or
three others, this may very possibly be the case. In their
study of logic and metaphysics they must have come in con-
tact with spiritual laws, just as in their study of mathematics,
natural history, and medicine, they came in contact with
physical laws ; and that these laws were not revealed in the
Koran was a subject on which they can have harboured no
delusion. It is even said that the two great men whose
names I have mentioned were not by any means the slavish
followers of Aristotle, but that they exhibited a good deal of
mental independence. From the rational study of man in his
relations, whether to God or to his fellow-men, however, they
were shut out by the finality which they ascribed to the pre-
tended revelations of the Prophet; and there is, besides, nothing
in the facts of their external history to show that their eth-
nological genius carried them at all in the direction of that
branch of science. The low conditions of their social and

WITH REFERENCE TO HUMAN AUTONOMY. 7/

political life, even in tlieir best days, the barbarous character
of their law of status, and the entire absence of cosmopolitan
conceptions, are, in their case, just as in the case of the
Phoenicians, conclusive proof of the little aptitude they pos-
sessed for tracing out the ethical laws, of which the life of
the family, of the state, and of the community of nations, is
the realization. As traders the Phcenicians were great, and
of their law of contract, in so far as we know it, we must in
justice speak in very different terms. But there never was,
and there probably never will be, a political community
of indigenous Shemitic growth, entitled to claim international
recognition. The Jews are, of course, by far the ablest of
the Shemitic races ; but it is very doubtful whether a state
capable of discharging international duties could be founded
on the principles of Judaism, as distinguished from those of
Christianity. It would not be so hopeless as a Mahometan
state founded on the principles of the Koran ; but an imperfect
or incomplete external revelation, even if partially true, lias a
tendency to obscure the light of internal revelation, and to
generate those exclusive conceptions by which Shemitic life
haa hitherto cut itself off from the stream of scientific pro-
gress. It is wilhin their own horizon alone that human
autonomy is plain to the Shemitic races, and tliat they
recognize the reciprocity of rights and duties. Within that
horizon, liowever, their ethical creed does not differ essentially
from that of the rest of mankind ; and so iUr as their testi-
mony goes, it is in favour of human autonomy.

(h) The Aryan or Indo-Gcrmanic races. — The pojnilar reli-
gions of the Ar}'an races, like tliost; of tin; Sheiiiites, usually

78 INQUIKY INTO THE HISTORY OF OPINION

lay claim to direct revelation, and consist mainly in traditions
of external manifestations of divinity, and expressions of divine
will. But tliey differ from them in one very important re-
spect— viz., that this mythical and sensuous element does not
stand alone, but appears to have been preceded, and is always
accompanied, by what, if not a speculative, is at any rate a
rational element, in the shape of a body of theological and
ethical doctrines resting on a study, more or less accurate, of
natural phenomena. In India this rational faith is known
not only to have preceded the existing polytheistic mythology,
but to characterize the original Vedic hymns themselves, as
compared with subsequent portions of the Yedic literature
which are represented as directly inspired.^ "In many a
hymn tlie author says plainly that he, or his friends, made it
to please the gods." As regards the sensuous polytheism of
later times, in so far as it proceeded from the Aryan mind at
all, and was not the result of contact with the inferior races,
there is reason to believe that it was addressed entirely to the
populace, and was intended to enforce and illustrate rather
than to express the fundamental national belief. It is certain,
at all events, that the preponderance of the sensuous, or the
rational element, depended, not on their relation to each other
in point of time, but on the stage of civilization at which the
nation stood for the time being. As the Aryans of India
degenerated, sensuism absorbed spiritualism, and the rational
gave way to the mythical element ; '^ as the Aryans of Greece

1 Max Miiller's Ancient Sanscrit Literature, chap. i. 19.

2 See Professor Roth's theory of the supersession of the worship of Varuna by
that of Indra, as stated by T)r Muir — Sanskrit Texts, vol. v. p. 116,

WITH PvEFEREXCE TO HUMAN AUTONOMY. 79

advanced, the process was reversed — spiritualism absorbed
sensuism, and myths and mysticism alike gave way before
the influence of reason.

Great obscurity rests on the relation in which the eastern
and western branches of the Aryan race stood to each other
during the long period^ which elapsed between their separa-
tion and the commencement of tlie history of the classical
nations.^ There was a tradition that Pythagoras visited the
East, and even India. But the existence of any real con-
nection between Eastern and Western thought, previous to
Alexander's expedition, scarcely admits of proof from classical
sources ; and it is to that noble phalanx of oriental scholars,
whose labours form perhaps the most remarkable phenomenon
in the whole annals of learning, that we are indebted for our
knowledge of the fact that the rational creed of Socrates and
Plato had its historical prototype in that of the Veda, the
Zend-Avesta, and the Dhammapada, rather tlian in that of
Homer. It is in these remarkable monuments of the earliest
forms of Aryan meditation, and not in the popular beliefs of
later ages, whether in tlie East or the West, that we must
look for partial anticipations of the ultimate results of Greek
thouglit and Christian teaching. In this rational element,
which as an undercurrent never altogether disappears from
tlie Aryan religions, we have an expression of human con-
sciousness which we miss in the religions of the Shemitic

' Ih. i. pp. 2-4, 2d cd., and v, p. 2.

' l*rofc«8or Iicnf«;y of Oiittirigrjii lias (Milled in fiucstion tljo theory of the Enntorn
home, and haa maintainod the greater antiquity of the Aryans of the nortli of
Koropc ; and TrofesHor Max MuHer, in his Ujrtnre at .StruHHljiirg, Ims rccoj^iii/cd if
Man o|M:n r|Hf.Htion -(JtnttrnipiiriiTij /!fiicv\ .lune 1872.

80 INQUIRY INTO THE HISTORY OF OPINION

races ; and for this reason it is to those who were our own
progenitors in the flesh, and with whom as a nation we have
been so singularly reunited, and not to the kindred of those
who were chosen to be the channel of direct revelation, that
we have to look for the roots, not only of the languages which
we speak, but of the theological and anthropological beliefs
on which our natural religion, our ethics and jurisprudence,
and even the external framework of our social and political
life depends.-^ And if it is to this rationalistic element in the
Aryan mind, as manifested by its Eastern representatives, that
we must look for instruction as to our own past, it is on it
that we must work if we would influence their future. The
missionary who can appeal to it will find no want of that
sympathy, the lack of which impedes the progress of his
brother who seeks to inculcate dogma, or to institute ritual-
istic observances.

1st, The origincd Aryan family. — The Aryan family , hefore
their separation, believed in a Creator ivhose character they
accepted as the standard of rectitude, and they ascribed to
humanity, as represented by themselves, a fundamental nature
in accordance luith tliat character.

I am not myself an oriental scholar, and I must therefore
be contented to establish this proposition by referring you to
a few^ expressions of opinion by those who are. I shall be
careful, however, that these expressions be, as far as possible,

^ A very powerful argument in favour of the views of those who are endeavour-
ing to remove the obstructions with which the pedantry of last century has barri-
caded the approaches to the two classical languages, is furnished by the fact that,
in place of abandoning Greek and Latin, our sons will now have to add Sanscrit
to the studies of a learned education.

WITH REFERENCE TO HUMAN AUTONOMY. 81

both trustworthy and unequivocal. On both grounds it will,
I believe, be admitted that precedence is due to the opinion of
Professor Max Mliller, not as an oriental scholar alone, but as
a man of vast general culture, great depth of sympathetic in-
sight into human character, and whose open and dispassionate
temper enables him to preserve the happy critical medium be-
tween credulity on the one hand and scepticism on the other.

" Dieu," said Mirabeau, " est aussi necessaire que la liberte ; "
and in his History of Ancient Sanscrit Literature (p. 528) Max
Mliller thus expresses himself: —

"We look in vain for the effect produced on the human
mind by the first rising of the idea of God. To the poets of
the Veda that idea is an old and familiar idea : it is under-
stood, never questioned, never denied." In proof of this
" monotheism of the Aryan nations," he adduces many pas-
sages, both in the earlier and the later Vedic hymns. From
tliese passages it is apparent that a monotheistic conception
not only preceded, but all along accompanied, the polytheistic
mythology. " There is," he says, " a monotheism that precedes
the polytlieisra of the Veda, and even in the invocations of
tlieir innumerable gods, the remembrance of a god, one and
infinite, breaks through the mist of idolatrous jjliraseology,
like the blue sky that is hidden l)y passing clouds" (j). 550).
The different divinities were but the various aspects in which
the One self-existent presented Himself, and hoiicc the ascrip-
tion to each of tlicm in succession of tlie whole oi' His attri-
butes. Such, indeed, is the explanation (jf tlicni whi<li is
given expressly in some of Out hymns. "They call (llim)
Iiidni, Mitra, Varuna, Agni ; tin n He is the well - \viii;^M'(l

82 INQUIRY INTO THE HISTORY OF OPINION

heavenly Garutniat ; tliat wliicli is One, the wise call it many
ways — they call it Agni, Yama, Matarisvan" (p. 567). In
another hymn, also falling within the ancient period, the same
belief is even more definitely expressed : " He who gives life,
He who gives strength, whose blessing all the bright gods
desire ; He who is God above all gods." ^

JSTor does this primitive belief appear ever to have been
abandoned. The Puranas are the main source of the existincj
popular creed of the Hindus. They are little better than a
caricature of the ancient theology ; and yet a learned Hindu of
Benares, in a lecture delivered before an English and native
audience, indignantly repudiates the charge of polytheism, on
the ground that there are " thousands of texts in the Puranas,
declaring, in clear and unmistakable terms, that there is but
one God, who manifests Himself as Brahma, Vishnu, and
Rudra (Siva), in His function of creation, preservation, and
destruction. In support of these statements, this eloquent
advocate quotes numerous passages from the sacred literature
of the Brahmans, and he sums up his view of the three mani-
festations of the Deity, in the words of their great poet
Jvalidasa, as translated by Mr Griffith —

** In those Three Persons, the One God was shown,
Each First in place, each Last, — not one alone ;
Of Siva, Vishnu, Brahma, each may be
First, second, third, among the Blessed Three. "^

Nor has this doctrine disappeared from the popular creed,
even at the present day. Mr Hunter tells us, in his Annals

' P. 569. Quoted also by Bunsen, God in History, vol. i. p. 303.
2 Chips, preface, xviii.

WITH REFERENCE TO HUMAN AUTONOMY. 83

of Rural Bengal (p. 116), that ''The modern pundit's reply to
the missionary who accuses him of polytheism is : Oh, these
are only various manifestations of the One God ; the same as,
though the sun be one in the heavens, yet he appears in multi-
form reflections upon the lake. The various sects are only
different entrances to the one city." ^ Whatever an Arian or
a Socinian might say to such a creed, it will scarcely do for
a people who repeat the Athanasian Creed in their churches to
accuse its holders of polytheism !

The charge of dualism, on the ground that it is traceable
in the Persian branch of the Aryan family, seems equally to
melt away before closer inspection. There can, I imagine, be
no doubt that, as Baron Bunsen asserts, the appearance of
this doctrine, to the extent to which it did appear, is to be
regarded simply as an evidence, not of the abandonment of
monotheism, but of the superseding of the worship of external
nature by an ethical faith. " The antagonisms of light and
darkness, of sunshine and storm, became transformed into
antagonisms of good and evil, of powers exerting a beneficent
r corrupting influence on the mind." ^ But the question for
113 is as to the relative position ascribed to these powers —
were they equals ? or, if not, whicli of them exercised suprem-
acy over the other? On these points Bunsen has no liesita-
tion ;^jut lest in his case you sliould imagine, from liis thesis
being substantially ray own, that the wish were father to tin;
fact, I shall call, in preference even to Miiller,'^ another wit-
ness from another nation.

' CVa/^, |i, 116. ^ (iod ill Jliatortf, vol. i. p. '273.

' For who«u' opinion wjc Chips, vol. i. p. 140, l.'i.'i, \1'.\.

84 INQUIRY INTO THE HISTORY OF OPINION

" It is very certain," says the Comte de Gobiiieau,^ " that
from the first period, when the Aryans still inhabited Aryana-
Yaeja, tliey had formed the conception that the cause of all
impurity, of all obscurity, of all evil, lurked in the essence of
a perverse spirit, which it was their duty to combat and resist
at any price. There is nothing to show that that perverse
spirit was then considered as equal in power to the Eternal
Light to which they paid tlieir adorations. The Aryans did *
not profess dualism. No trace of that dogma is to be found
in the Gathas, the most ancient parts of the Avesta : the J
Vedas give no indication of it: the primitive Greeks knew
nothing of it: nothing resembling it has been discovered
either among the ancient Scythians or the later Scandina-
vians. Evil exists, unquestionably, in the form of incess-
ant protest and revolt against the supreme Divinity. But
this Divinity rules alone, secure of final victory, and master
of all things in the immensity of His creations."

I am aware that there is a class of Sanscrit scholars by
whom a belief in the unity of God, in the earliest period, is
contested on the ground that it first appears in the Brah-
manas and Upanishads. To a limited extent this view claims
the sanction of the distinguished name of Dr Muir, who has
treated the subject, in the fifth volume of his Sanskrit Texts^
with his usual caution and moderation; and it has been
maintained in several able articles by Mr Fairbairn in the
Contemporary Revieio. I cannot, of course, discuss either
tlie authenticity or the antiquity of Sanscrit texts with

^ Histoire des Perses, par le Comte de Gobineau, vol i. p. 40.
- Sort. xxi. p. 350.

WITH REFEKEXCE TO HUMAN AUTONOMY. 85

Sanscrit scholars. The fact of the existence of passages in
which the unity of God is directly asserted being confined
to the more recent portions of the Vedic literature may,
or may not, admit of the explanation which Max Miiller
has given of it ^ — viz., that many of the verses in which
such expressions occur, though incorporated in the Upani-
shads, can be traced to their original places in the Eig-Veda
Sanhita.

But there is another ground, which I have already partially
explained,^ on which I believe in the monotheism not of the
Aryan race in particular, but of mankind in general, and
which seems to me to remove the question from the category
of things which are open to historical discussion, and to force
upon us a recurrence to the psychological method. The idea
of unity I hold to be involved in that of causality, and, like it,
to be a necessary idea, the existence of which, in virtue of the
canon of limitation,^ may be taken for granted, at all times and
in all places. But in this connection we are not called upon
to discuss the existence or non-existence of necessary, and as
such, innate ideas ; for wliether original or ac([uired, tlie pres-
ence of the idea of number in the mind of the worshipper is
assumed by the advocate of polytheism. He has i'urther
fissumed the idea of God. We have thus both number and
cau.sality given us — in plurality — many Gods. Man, for
anything I assert, may be incapable of either idea jaior lu
experience. Jiut here ho has them ijolh already given. Now,
whatever be the subject to which the formal idea of nuinl)er
is apjjlied, it is, as I'ythagortis asserted, :iii<l .is II(';^(1 has
' Sfuiscrit LU., i». 607. '^ Jute, \k 0:{. ^ l'l»- ^''i, ^*.

80 INQUIRY INTO THE HISTORY OF OPINION

shown in his logic,-^ manifestly impossible to think tivo — i.e.,
two ones — till we have thought one — i.e., one one. But this
One one, which we must begin with, is the common starting-
point of thought and of existence,^ and as 'such, is necessarily
exclusive of all others. To think of two is always to think
of one twice over ; and as thinking takes place in time, one of
the thoughts must have preceded the other, in which case the
latter loses its assumed significance. A second cause — i.e., a
second first cause — is a contradiction in terms. But a dualist,
or a polytheist (in the sense of a believer in two or more
2)rimary Gods), is supposed to think of two ones, or of many
ones, firsts, or causes, before he thought of one. The idea of
unity is thus at once ascribed to him and denied to him ; or,
in other words, he is credited with thinking twice, or oftener,
what he never thought at all. Dr Muir's error, as it appears
to me, consists in assuming that in thinking of God as one,
we form an abstract conception of Deity.^ But abstraction
implies the existence of that from which w^e abstract, and
cannot, consequently, be the starting-point either of thought or
existence. An abstract conception is a result of reasoning at
which it may be that the Aryan nations, at this stage of their
history, were incapable of arriving. But the idea of unity is
not a result, but a condition of reasoning, an ultimate datum
of consciousness which is inseparable from intelligent exist-
ence, and must have existed in men at the beginning, just as
much as at any subsequent stage of their historical life. And

1 Schwegler's Hist, of Philos. by Stirling, p. 325.

2 " That one breathed calmly, self-supported ; there was nothing different from,
or above it." — Muir, Sanskrit Texts, vol. v. p. 357.

^ lb. p. 351.

WITH REFEEENCE TO HUMAN AUTONOMY. 87

in this case, besides, Dr Muir has assumed it, because he has
taken for granted that mankind not only got the length of it,
but got beyond it.

Professor Max Miiller has adopted this view with one
breath, but he appears to have rejected it with the next in
virtue of a distinction which I cannot see to be more than
verbal. " It is too often forgotten," he says, " by those who
believe that a polytheistic worship was the most natural un-
folding of religious life, that polytheism must everywhere have
been preceded by a more or less conscious theism. In no
language does the plural exist before the singular. ISTo
human mind could have conceived the idea of Gods without
having previously conceived the idea of a God. It would be,
however, quite as great a mistake to imagine, because the
idea of a God must exist previously to that of Gods, that
therefore a belief in one God preceded, everywhere, the
belief in many Gods. A belief in God as exclusively One,
involves a distinct negation of more than one God, and that
negation is possible only after the conception, whether real or
imaginary, of many Gods."

'* The primitive intuition of the Godhead is neither mono-
theistic nor polytlieistic, and it finds its most natural expres-
sion in the simplest and yet most important article of faith
that God is God. This must have been the faith of the
ancestors of mankind previously to any division of rac(i or
confusion of tongues. It might seem, indeed, as if in such a
faith tlie oneness of God, though not expressly asserted, was
implied, and that it existed, though latciit, in the first revela-
tion of God. History, however, proves that llu; (iu<'sti<»n ol"

88 INQUIRY INTO THE HISTORY OF OPINION

oneness was yet undecided in that primitive faith, and that
the intuition of God was not yet secured against the illusions
of a double vision. There are in reality two kinds of oneness
which, when we enter into metaphysical discussions, must be
carefully distinguished, and which for practical purposes are
well kept separate by the definite and indefinite articles.
There is one kind of oneness which does not exclude the
idea of plurality ; there is another which does. When we
say that Cromwell was a Protector of England, we do not
assert that he was the only protector. But if we say that
he was the Protector of England, it is understood that he
was the only man who bore that title. If, therefore, an
expression had been given to that primitive intuition of the
Deity, which is the mainspring of all later religion, it would
have been 'There is a God,' but not yet, 'There is but One
God.' The latter form of faith, the belief in One God, is
properly called monotheism ; whereas the term of henotheism
would best express the faith in a single God." ^

My reply to this train of reasoning and illustration is, that
it is wholly inapplicable to ultimate causality, of which the
essence is priority. One cause excludes all other causes,
whether simultaneous or subsequent. The intuition of a God,
of which Professor Mtiller speaks, is an intuition not of a
secondary cause which is also a result, but of a first cause,
for it is this conception alone which is intuitive, or, in other
words, which is forced on the mind by its own laws. A sec-
ondary cause is always a contingency. There need not be a
secondary cause for a phenomenon, because the primary cause

1 Chips, i, 353-356.

WITH REFEREXCE TO HUMAN AUTONOMY. 89

may have acted directly. But there must be a first cause.
Simultaneity of creation is quite conceivable, the Creator
being there. God could have created two Cromwells at the
same time. The English Commonwealth might have chosen
two Protectors by a single vote, as the Eoman Senate chose
two Consuls. Duality might have belonged to the idea ; but
simultaneity of ultimate creative power (and no power is crea-
tive which is not itself ultimate) is inconceivable. The idea
of it could not have arisen, and we are entitled to assume,
never did dwell in any sane mind, either savage or civilized,
either consciously or unconsciously. There must, then, be a
first cause. Further, inasmuch as two firsts is a contradiction
in terms, the assumption of a God (or one first cause) is, co
ipsOy a negation of any other God (or second-first cause). In
order to make room for the second-first cause, the first-first
cause must be removed. But its removal could take place
only by its own instrumentality. We have thus to take it
for granted in order to get rid of it ; and in getting rid of it
we are still left with it, because the cause which removed
it immediately becomes the first. It may bo quite true that
the idea of one necessitates the idea of two ; but tliat is of no
consequence so long as it is certain that tlie idea of two 2^^'^'-
■fiipposes the idea of one. That tliere is " one kind of oneness
which does not exclude the idea of ])lurality " is, therefore,
nothing to the puq)Ose ; because I am willing to go tlie lengtli
of admitting that every kind of oneness includes tlie idea of
plunility in the sense of necessitating it. r>ut tlie suhseqiLcnt
Jidinission of plurality, whether contingent or necessary, can
Ixj of no avail in tlie question oC priority, after unity has

90 INQUlllY INTO THE HlSTOllY OF OPINION

already been assumed. As regards the precedence, if not the
necessity of its existence, then, the Pythagoreans were unques-
tionably right in placing the One — the Undivided, the Eternal
— in antithesis to all other numerals.-^

It must have been the misleading influence of his philo-
logical illustration which induced so clear-headed a man as
Professor Miiller, on this occasion, to argue himself out of
what, plainly, is his own general view. Probably, too, he
may have felt that, if we carry this mode of reasoning beyond
the point at which it guarantees the existence of a single
cause, it may become, as St Anselm suspected, a temptation
from Satan.^ The cognition of the absolute may be the
" Forbidden Fruit." For my own part, however, I conceive
the intuition of the single starting-point of existence to be the
ultimate, though hidden factor, in the conception of divinity.^

But for our knowledge of the character of the cause of our
being, and, consequently, of our being itself — of the fact that
God is a righteous and beneficent God, and that His creation
is " very good," — we must appeal not to the laws of thought
alone or specially, but to Kosnios as a whole ; and here no
one can accept more gladly than I do the teaching of the
historical school.*

* Bunscn, vol. ii. j). 9.5 ; where will be found an interesting and intelligible
account of the Pythagorean Pentagram.

2 Ncander, vol. viii. p. 123.

^ See the opposite view by the Rev. A. M. Fairbairn, in his Essay on the " Idea
of God," Contemporary Ilcvievj, Oct. 1871. I had not the benefit of hearing
Principal Fairbairn 's " Muir Lectures" delivered in the University of Edin-
burgh this winter, and what I have said here has reference only to his published
writings (1880).

■* It has been said that in using this argument from number, I appeal to a form

WITH REFERENCE TO HUMAN AUTONOMY. 91

The question, then, as we have already seen, which it con-
cerns us to establish historically, is not the number but the
character which man has ascribed to the Single Source of his
being, and as a necessary consequence to his being itself. As
bearing on this point, the absence of dualism, in the sense of
equality of powers, and the preponderance assigned to the
power of light and life over the power of darkness and death,
in the earliest period, is of exceeding interest and importance.

So far as we have any means of judging, it would seem

of reasoning which is applicable only to the exact sciences. But those who speak
of polytheism surely bring the subject into this region more decidedly than those
who speak of monotheism. I don't say whether or not a savage may be capable of
thinking numerically at all. Those who are acquainted with him tell me that he is
able only to ihiukfive. But if he thinks five, he must have thought one first ; and if
he thought one cause first, he excluded all other causes, and thus thought one God.
He came into the sphere of the "exact sciences" of his own accord without my
assistance, and there can be no reasonable question that "to suppose plurality is
to suppose unity already given." This subject is very ably discussed in Terrier's
Institute of Metophysic, p. 88. It is in the sphere of metaphysics, behind and
beyond that which either Miiller or Fairbairn has touched, that the difficulty as
to the starting-point of thought and existence really lies. As Pythagoras pointed
out, unity and plurality, in the absolute sense, are equally inconceivable ; be-
cause unity implies divisibility, and divisibility implies unity. All that this time-
honoured subtilty amounts to, however, is a proof of the limitation of human in-
telligence. We must start with a postulate ; but it is not necessary to start with
two, still less with many. We can refuse them, one after another, till wc reach
the last ; but to rcfu.sc it is to subscribe to the dialectic of Gorgias, and to accept his
demonstration that "nothing exists " — Article l'^'" ct unique — II n'y a plus rien.
ITnity and divisibility go together. But even in this case unity has the best of
it, for as it came first it stays longest. As there could be no division till there was
something to divide, so there can be no division when tliere is nothing to divide.
Divisibility thus rests on the assumption of the undivided, and reduces sub.stanc(5
to unity by a necessity siniihir to timt which we recognized in the case of ciiusa-
tion. What remains to us and defies all analysis, is one cause and one effect —
subject and objcrt, mind and matter. V. Grant's yirist., p. 138, and pp. 290-
828 and 440, That lK)th IMato and Aristotle mganbd the aHsuniption of uiiily
as the only refuge from absulute scepticism is Ix-yoiul ((UCHtion.

92 INQUIRY INTO THE HISTORY OF OPINION

that the original Aryan family believed not only in the purity
of the Source of being, but in the beneficence of its manifes-
tations in the work of creation.^ The most satisfactory evi-
dence on this point consists in the earliest conceptions of
Deity which they exhibit in their new abodes, of which I
shall have occasion to speak presently. But with reference
to the character which they assigned to humanity even in
their original dwelling-place, we derive from the science of
comparative philology direct evidence of a very curious and
satisfactory kind. From this source we have unequivocal
testimony to the fact, that the duties which relatives were
supposed by our earliest progenitors to discharge to each other,
within the domestic circle, very closely resembled those which
we ourselves assign to them.

" The mere fact that the names for father, mother, brother,
sister, daughter, are the same in most of the Aryan languages,
might at first sight seem of immaterial significance, yet even
these words are full of import.^ That the name of father was
coined at that early period, shows that the father acknow-
ledged the offspring of his wife as his own, for thus only had
he a right to claim the title of father. Father is derived from
a root, pa, which means, not to beget, but to protect, to sup-
port, to nourish. The father as genitor, was called in Sanscrit
ganitas ; as protector, or supporter of his offspring, he was
called 'pitdr. Hence, in the Veda, these two names are used
together, in order to express the full idea of father. Thus, the
poet says (i. 168, 33) —

* Miiller's AncAent Sans. Lit., pp. 527, 559, 568, 569, &c.

- Max MuUcr's Efisay on Comimralire MyfJiolorjy. Oxford Essays, 1856.

WITH REFERENCE TO HUMAN AUTONOMY. 93

Dyaus me pita ganita ^
Jupiter mei pater genitor
Zeus ifiov TTOT^p yev€T-f)p.

lu similar manner mdtar, mother, is joined with ganitri, geni-
trb: (Ev. iii. 48, 2), which shows that the word mdtar must
soon have lost its etymological meaning, and have become an
expression of respect and endearment. For among the early
Aryans mdtar had the meaning of maker, from ma, to fashion ;
and in this sense, and with the same accent as the Greek
/xT/TTyp, mdtar, not yet determined by a feminine affix, is used
in the Veda as a masculine. . . . The natural relation between
brother and sister had been hallowed at that early period, and
it had been sanctioned by names which had become traditional
before the Aryan family broke up into different colonies. The
original meaning of hhrdtar seems to have been he who carries
or assists ; of svasar, she who pleases or consoles — svasti mean-
ing, in Sanscrit, joy or happiness. In duhitar, again, we find
a name which must have become traditional long before the
separation took place. It is a name identically the same in
all the dialects, except Latin, and yet Sanscrit alone could
liave preserved a consciousness of its appellative power.
Duhitar, as Professor Lassen has shown, is derived from duh,
a root whicli, in Sanscrit, means to milk. It is, i)erliai)S, the
Latin diuo, and the transition of meaning would be the same
as between tralcere, to draw, and trairc, to milk. Now the
name of milkmaid, given to the daughter of the house, opens
before our eyes a little idyl of tlic poetical and pastoral life
of the early Aryans. One oi' the few things hy wliicli the

' .If»v<', my p;it*'rtnil •^'•iiitor.

94 INQUIRY INTO THE HISTORY OF OPINION

daughter, before she was married, might make herself useful
in a nomadic household, was the milking of the cattle ; and it
discloses a kind of delicacy and humour, even in tlie rudest
state of society, if we imagine a father calling his daughter
his little milkmaid, rather than Suta, his begotten, or filia,
the suckling. This meaning, however, must have been for-
gotten long before the Aryans separated. Ditliitar was then
no longer a nickname, but it had become a technical term, or,
so to say, the proper name for daughter." ^

So much for that " veiled life," before which, as Baron
Bunsen says, when we read the Yeda, " we stand in a similar
position to that which we should occupy with regard to the
unfolding of the Hebrew mind from the age of Abraham to
that of Jeremiah, if we possessed nothing but the Book of
Psalms." ^ Let us now look into that period with reference
to which the testimony of the Veda is direct.

2d J The Eastern, or Indian Branch. — After their separation,
the branch of the Aryan family which migrated towards the
East, carried with them, into their new abodes, their ancient
faith both in God and man.

Wliatever be the date of the earlier hymns of the Veda in
point of time, there can be no doubt that they carry us back
to the earliest settlement of the Aryan race in India, which
probably took place several centuries before the date of
Zoroaster.*"^

Now the character ascribed to the elementary powers whom
the Aryans of India worshipped, or, more correctly speaking,

' P. 17. 2 P. 298. ^ Bunsen, nt sup., vol. i. p. 298.

WITH REFERENCE TO HUMAN AUTONOMY. 95

to the various forms of manifestation under which they wor-
shipped the One Power, is a beneficent character.

* ' 0 God of gods, Thou art to me

A "father, mother, kinsmen, friends ;
I knowledge, riches, find in Thee ;
All good Thy being comprehends." ^

AMiether the special object of adoration, for the time being, be
Indra, or Yaruna, or Agni, or Ushias, the permanent sentiment
is still, that " God is love."

' * Thou, Indra, art a friend, a brother,
A kinsman dear, a father, mother ;
Though thou hast troops of friends, yet we
Can boast no other friend but thee.
"With this our hymn thy skirt we grasp,
As boys their fathers' garments clasp ;
Our ardent prayers thy form embrace.
As women's arms their lords enlace,
They round thee cling with gentle force,
Like saddle-girth around a horse." '^

Even when Indra appears in the character of tlie Thunderer,
it is in behalf of mankind that his terrors are displayed, and
liis bolts are hurled ; and in his conflict with Vitra, the demon
of drought, the victory remains witli tlie life-giving power.^

* Dr Muir's Metrical Translations from Sanscrit Writers, p. 2. This very
intereflting and instructive volume is a collection of translations which Dr Muir
had published in various forms from time to time, and from which the passages
in the former edition of this work were selected. In its present shape it con-
tains prose translations by which the accuracy of the metrical translations may
•: test^^d even by those who cannot refer to the originals, and ample referencr's
to correH|>onding paAsagcs in Greek and Roman writers and in the Holy Scrip-
tures. The work is of great interest and importance, as showing the universally
human charact<;r of much of which we have been accusUjuied to regard as exclu-
iivftly Christian.

«//y. p. 171. '* yiwn'n Sanskrit IWln, p. 174.

9G INQUIRY INTO THE HISTORY OF OPINION

The blue expanse of heaven was apparently the manifesta-
tion of the Divine which first became an object of worship ;
and it is to Varuna " the Surroimder," whom philologists have
identified with the Greek Ovpavos, one of the offspring of
Aditi, the God of Space, that the character of omniscience is
especially ascribed. " jSTo one rules for the twinkling of an
eye apart from him."

* ' Two think they are not overheard,
Who sit and plot as if alone ;
Their fancied secrets all are known —
Unseen, the god is there, a third."

But Varuna is not an object of suspicion — he is a terror only
to evil-doers.

* ' He marks the good and ill within
The hearts of men — the false and true
Discerns with never-erring view ;
He hates deceit, chastises sin.
His viewless bonds, than cords and gyves
More hard to burst, the wicked bend
In vain, within their folds confined.
To cast them off the sinner strives.
And yet the god will not refuse
His grace to one who inly moans,
When, fetter-bound, his errors owns,
And for forgiveness meekly sues." ^

In like manner it is in his beneficent aspects that Agni

(Ignis), the God of Fire, presents himself, as one at the sight

of whose daily return, " both heaven and earth, and gods and

men rejoice."

"In every house thou art a welcome guest,
The household's tutelary lord, a son,
A father, mother, brother, all in one ;
A friend by whom thy faithful friends are blest. " ^

» Pp. IGl, 1G2. P. 184.

WITH r.EFEPvEXCE TO HUMAN AUTONOMY. 97

And Usliias — the Dawn — is represented as a beautiful
bride decked for her husband —

' ' Thou sweetly smilest, goddess fair,
Disclosing all thy youthful gi'ace,
Thy bosom bright, thy radiant face,
And lustre of thy golden hair. ^

*****

' ' Bright goddess, let thy genial rays
To us bring stores of envied wealth
In kine and steeds, and sons, with health.
And joy of heart, and length of days. " ^

After the character ascribed to Deity, the point next in
importance in the Hindu creed is the relation bet\Yeen the
Divine Essence and the human soul. This relation the
r)riental Aryans held to be of the most intimate kind.

" "When Brahma framed the world of men.
He made it all Brahmanic then.
By no distinction marked of class,
They formed one homogeneous mass.

But when in time they showed diverse
And widely varying characters.
Those men whose natures were the same.
Conjoined received a separate name. " •'

The life of liumanity as a whole, like the life of every
individual man, they re^'arded as a starting from, and pro-
gressing towards, the Divine life. " The highest object of
their religion," says Miiller, " was to restore that bond by
which their own self (iltman) was linkccl to Um Kternal Self
(paramatman) ; to recover that unity whidi Imd Ix-cn cloudcMl
and oljscured by the magical illusions of reality by tlu;

' I*. 180. ' I*. 183. =• I*. 00.

98 INQUIRY INTO THP] HISTORY OF OPINION

so-called Maya of creation." ^ And again, " A Hindu speak-
ing of himself, spoke also, though unconsciously, of the soul
of the universe, and to know himself was to him to know both
his own self and the Universal Self, or to know himself in
the Divine Self. The Sanscrit ' atmanam atmana pasya ' — see
(thy) self by (thy) self — had a deeper signification than the
Greek yvdOi o-eavrbv, because it has not only a moral, but also
a metaphysical meaning." ^ I should scarcely be disposed to
say that the Greek yvcodu o-eavrw was destitute of metaphysical
significance even at the first, and ultimately it was discovered
to have no lack of it. But even seen exclusively in its moral
aspect, the recurrence of such a maxim, semper uhique, et ah
omnibus, would alone go far to establish our present thesis.
Of the fact that it is neither a Greek nor a Sanscrit, but a
human maxim, we have a striking indication in its existence
in China.^ And here is a dialogue to the same effect between
a husband and a wife.

Wife. — " What my Lord knoweth (of immortality) may he
tell that to me."

Husband. — " Thou who art truly dear to me, thou speakest
dear words. Sit down, I will explain it to thee, and listen
well to what I say." And he said, '' A husband is loved, not
because you love the husband, but because you love (in him)
the Divine Spirit. A wife is loved, not because we love the
wife, but because we love (in her) the Divine Spirit. Children

^ Sanscrit Lit., p. 19. Sec also some interesting passages from the Bhagavad
Gita, quoted in the Introduction to Dr Muir's Metrical Trans latio7is from San-
scrit Writers, p. xvi, &c.

2 Pp. 21, 22. 3 Bunsen, vol. i. p. 208.

WITH REFERENCE TO HUMAN AUTONOMY. 99

are loved, not because vre love the children, but because we
love the Divine Spirit in them."^

" It was surelv," savs Miiller, " the lodcal result of such
a creed, that the Hindus should recognize law and virtue, as
we see in their sacred poetry, as well as in their codes of
law." 2

A very interesting indication of the Hindu conception of
humanity, to which sufficient importance seems scarcely to
have been attached, is furnished bv a single word, — the name
given to the author of, or, more correctly speaking, the source
assigned to, their most renowned law-book, Manu, we are
now told by all the authorities, does not mean a man, but
]\Ian in the abstract. The '' laws of Manu," consequently,
do not profess to be a code or system of law revealed to a
particular man, like the laws of Moses or Mahomet, but bear
on tlie face of tliem to be the laws of mankind, or, in other
words, the laws which man's nature teaches him.

Sir AVilliam Jones, in the preface to his translation of the
Laivs of Manu, identifies Manu with Adam. Subsequent in-
vestigations do not seem to indicate any linguistic affinity
between the epithets ; but the idea of an earth-born son of
God was certainly common to tliein, and St Paul carries out
the same conception wlien he speaks of Clu'ist as the " second
man ""^ and " tlie last Adam."'*

In Ill's Sanskrit Texts;' and in a ]>a])(M" wliich Ik; coiitri-
])Ut<Ml to the Jonrnid of flic Jloi/dl Asvdic Soriely in 1802,

> SuivirrU Lit., p. 23. " ///. p. 20. ' K'»in. v

* 1 Cor. XV. » Vol. i. p. 101, 2<1 (Mlilioii.

100 INQUIRY INTO THE HISTORY OF OPINION

p. 400, Dr j\Iuir has abundantly shown that the Aryan
Indians, if not tlie whole Aryan race, regarded Manu at once
as their earthly progenitor, and as the link by which their
own nature and the Divine nature were united. That the
use of the word, in the sense thus attached to it, was not
confined to India, but extended, at all events, to the branches
of the Aryan family to which we ourselves belong, is proved
by the statement of Tacitus, that the ancient Germans wor-
shipped Mannus, the son of Tuisco, their primary divinity, as
the human founder of their race.

" It has been remarked," says Dr Muir, " by various authors
(as Kuhn, Zeitschrift, iv. 94 f.), that in analogy with Manu,
or Manush, as the father of mankind, or of the Aryyas, Ger-
man mythology recognizes Mannus as the ancestor of the
Teutons. Tacitus says,^ ' Celebrant carminibus antiquis Tuis-
conem deuni terra editum, et filium Mannum, originem gentis
conditoresque. Manno tres filios adsignant, &c.' "

The English " man " and the German " Mann," appear also
to be akin to the word manu ; and the German " Mensch "
presents a close resemblance to " Manush." ^

The subject seems to merit, if it has not already received,
further investigation at the hands of the learned.

In carrying with them the word, the Teutonic settlers in 'i
our own country did not fail to carry with them the tradition ;i
which it indicated to their ancestors. A very curious instance
of this occurs in one of the earliest of our vernacular poets.
It has been remarked by Dean Milman that the author of K
Piers Ploughman, in the original form of the poem as it l\

^ Germania, 2. ^ Journal of the Asiatic Society, ut sup., p. 430.

WITH EEFEREXCE TO HUMAN AUTONOMY. 101

appears in text A, represents Piers as " merely the highest
type of the honest small farmer, whose practical justice and
Christianity were so approved by Truth (who is the same with
God the Father), that he is intrusted with a Bull of Pardon
of more value than even the Pope's." At this stage of his
development, Piers, it would seem, was little more than the
John Bull, the typical honest man of our own day. " But
towards the conclusion of the B text (or later version) the
poet strikes a higher note, and makes him the type of human
nature in its highest form of excellence — the human flesh
within whom dwelt the divine soul of Christ our Saviour.
By a sort of parody on the text in 1 Cor. x. 4, he asserts
that Petrus est Christus, that Piers is Christ, and he likens
the Saviour to a champion who figlits in Piers' armour — that
is to say, in human flesh, humana nahira!'^ Piers, in short,
was Manu, the ideal man, and, in virtue of the divine nature
present in liis manhood, the Christ of the generation in wliich
lie appeared.

There is scarcely a variety of scepticism, or of speculative
infidelity, known to the modern world which has not its proto-
type amongst the conflicting systems whicli the subtle intellect
<»f Ilindostan ultimately developed. There, as here, thought
lias da.shed itself in its pride against the insoluble problems
»f God's government, and sunk in despair.^ Ihit there too,
.is here, controversy lias at any rate taught the lesson that,
whilst error is miiltiforiu and evanescent, trulli, ev(!ii wlicn

' Skeat'ii rUrs Ploughman, Intro«l., p. xxiv.

' Of thiH aH»ertion, tliOHo who do not wish to ^o any fiirthor, will lind ;il)im-
•I'lnt proof in thfi ^fflrir/d TmiiHlationn ulrfndy ho oflrn nO'in-tl to —c.tf., in

J'thnlCn S'ii>hiHlirnI ItisronrHC and lifimn'H UrpJii, p. 11.

102 INQUIRY INTO THE HISTORY OF OPINION

iucoiiii^lete, is one and abiding ; and the only systems which
have never quitted the field have been those which sought the
image of a perfect God, and the traces of an absolute law, in
the primary characteristics and normal impulses of man. In
our own age, when pessimistic leanings are so prevalent, it is
well to remember that the optimism of Manu with reference
to the present life,^ all along preponderated. Even the pop-
ular religion continued to bear traces of what may be called
the orthodoxy of the speculative systems. When, during the
epic period, Brahma gradually disappears, and Vishnu and
Siva come into the foreground, the first place is assigned
to Vishnu, the good principle ; and in the conception of the
Trimurti, the Hindu Trinity, both Brahma and Vishnu take
precedence of Siva.

Zcl, The Western Asiatic Branch. — The other typical re-
ligion of the Aryan nations in Asia was that of the Iranian
or I^ersian branch, and it too, as we have already seen,^
was not only monotheistic but optimist, — the character of
the creature corresponding to that of the Creator. This
statement is one about which oriental scholars are now
so entirely agreed, and which is so generally accepted,^
that I need scarcely occupy your time in substantiating it
by further references. The most marked characteristic of
the creed of Persia is, that here, for the first time, we find
these fundamentally human dogmas separated from mere
nature - worship, and exhibiting themselves as individual

1 P. 34. 2 ^^^i^^ p 61,

^ Neaudor, Ch. His., vol. ii, p. 6, Hegel's Philos. of HiaLonj, p. 186, IJohu's
translations.

WITH REFERENCE TO HUMAN AUTONOMY. 103

ethical beliefs. Baron Bunsen has said of Zoroaster that
he is the Aryan Abraham and Moses in one ; and if the
Veda be older than the Zendavesta, it is equally certain that
Zoroaster preceded any other known prophet of heathendom
by a vast space of time. Before the time of Buddha we
scarcely hear of any hero -teacher in India of outstanding
magnitude, with the partial exception, perhaps, of the author
or authors of the Laws of Manic ; and between Zoroaster and
Buddha there are about 2500 years. The faith of Zoroaster
is revealed to us in a hymn which Bunsen ^ gives in
translation, and on which Count Gobineau - has commented.
From this document, the authenticity of wliich does not
seem to be contested, we learn that Zoroaster believed in
one primordial divinity, " one all-wise and living God," with
whom the spirit, " the firstling of creation dwells," whom he
called Ahura-Mazda, and whom Gobineau, and Muir though
less confidently,'^ identify with the Varouna of the Veda and
the Ouranos of the Greeks. But in my view of tlie matter,
as I have already said, absolute dualism — i.e., two self-created
and independent existences — is an impossible creed.* Tlie only
point to which I attach importance is the character ascribed
to the divinity to whom precedence is granted. On this point
the name it.self is instructive, for in the old language of Bactra,
we arc told Ahura means tlie spirit, and Mazda the wise, the
wisdom-giving;^ and tlie hynm in question is as explicit as
is conceivable in sucli a composition. " The; ])i()us hearts dost
thou give U) inherit the earth, .-ind dost ])unish those who are

' Vol, i. \t. 206. - Vol. i. |.. JO. •' Trrls, vol. v. \k 72.

* JiU/", p. 81 ci vj. -' ])uiim'ii, tifmi/K, 2M.

104 INQUIRY INTO THE HISTORY OF OPINION

void of truth and false to their promise."^ It is in the same

strain that the disciples of Zoroaster sing in the Gathas —

" I woukl fain inquire of thee, O thou living God ; open

unto me the truth ! How arose the best present life "

I
(their world) ? " By what means are the present things to.

be supported ? Thou Spirit, All - Holy, 0 Mazda, art the
sanctuary of all truth ! " And the hymn concludes thus :
" What I would ask thee, tell me right, 0 thou living God ! I|
Wlio made the gentle light and warmth ? Who made wak-
ing and sleeping ? Who hath made day and night to remind
the wise man continually of his duties ? " A man who could
take such a view as this of God and His kingdom on earth,
was not very far from the kingdom of heaven.

4/A, Non-Aryan and Mixed Races of Asia. — What has been
called the Devil-worship of the hill-tribes, or non- Aryan and
inferior races of India, the "black skins," ^ like the character-
istics of savages generally,^ in no degree invalidates the proof
of the fundamental beliefs of humanity derived from the senti-
ments of the higher races. It does not prove the absence of
such a sentiment even in these races. There is no stronger
proof of the consciousness that right is right, than the con-
sciousness that wrong is wrong ; and the deprecatory rites of
the poor Khond or Santal indicate a mistaken theology rather
than a mistaken antliropology. His recognition of himself as
a sinner is no error at all ; and his conception of God only as
an avenger of sin, though a deplorable error, is not quite so
conclusive a proof even against his theology as is sometimes
imagined. No opponent of Christianity ever maintained that

^ Bunscn, ut .nq)., 280. - yhite, p. 73. ^ Ante, i». 51.

WITH EEFEREXCE TO HUMAN AUTONOMY. 105

it was a worship of the Devil ; and yet there have been
Christian doctrines, if not Christian practices, which were
simply diabolical.^ On such doctrines it is true that no
rational system either of theology or jurisprudence can be
directly built ; but, indirectly, they indicate the presence of
the very sentiments which they professedly exclude, and it
is in this respect tliat their superiority to mere want of
thought and feeling becomes apparent. On the ground that
it is as a being who prays and worships that man is distin-
guishable from the brutes, something may perhaps be said even
for the religious observances of the ancient Mexicans, and for
the " grand custom " of Dahomey. Whether beings that pray
and worship after such fashions be human beings, in the full
sense of the word, is a question wliich I shall leave those who
contend for the equality of races to answer. It is probable
that our knowledge of their real sentiments is very imperfect,
and all that I shall say is, that though I do not recognize
them as breaking that chain of unity, and consequently of
uniform belief, which binds liumanity together, I do not ac-
cept them as other than very imperfect interpreters and
illustrators of the fundamental beliefs and normal impulses
of humanity.

i)tky JjudxlliVini. — A mucli more .serious dilliculty than is
presented by Fetichism, or the lower forms of idolatry,
whether in India or el.sewjiere, ari.scs out of tlie character-
istics usually ascribed to Ihiddhism. iiuddliism is said to
Ik; the prevailing religion of (lie world. Its adherents are
estimated at liom 300,000,000 to 400,000,00(1, and it is

' S4;c IjcxVy, Hi.Hl. of /'iirof). Mornh, pasHi/n.

lOG IXQUIKY INTO THE HISTORY OF OPINION

not likely that tliey fall much, if at all, below a third of the
liuinan race.^ It had its rise, too, amongst the Aryans of
India ; and though its adherents at the present day for the
most part belong to other races, they are races which exhibit
moral and intellectual qualities entitling them to rank im-
mediately after, if not on a par with, men of Indo-Germanic
blood.

Now, though we may get over the difficulty of their so-
called atheism on the ground already stated,^ it does at first
seem very bewildering that such a population as this should
believe that existence is an evil, that human life on the
whole is miserable, a curse and not a blessing, and that tliis
misery is not a mere taint in it, the removal of which would
make it happy, but its very essence. " How," we exclaim,
" can the law of such a nature as this guide us either to
perfection or wellbeing ? " and we seem driven, with Gua-
tama, to sigh for escape from it, and to accept Nirvana in
this, its common acceptation, as the highest object of desire.
But " there is," as Bunsen ^ has said, " no more utter denial
of a divine order of the world, or of the science of its laws,
than the assumption that existence is nothing but a curse,
and that the aim of human effort is its own annihilation, and
that of its motive-spring." If such a creed were really held
by a third of the human race, and if from the other two-
thirds we deduct those who have no appreciable creed at all,

^ Sehlagintweit (i>p, 12-15) makes their numbers exceed those of Christians
by 5,000,000; whilst Max Muller {Chips, vol. i. p. 215) gives the numerical
superiority to Christians. Bunsen's estimate is 300,000,000.

'•* Ante, pp. 47, 65, 85 d scq.

^ Utawp., vol. i. p. 245.

WITH REFEEENCE TO HUMAN AUTONOMY. 107

it would really become a very doubtful point whether man be
an autonomous being.

At first we feel disposed to reject the statement as utterly
erroneous, on the ground of its inconsistency, not only with
our own subjective experience, but also with the character
which is ascribed, even by those by whom it is made, to
the great religious and moral reformer whose name it bears.
By what, if we may use the word without irreverence, can be
best described as a " fluke," Buddha has been canonized, and
by the name of St Josaphat, is now a saint both of the
Eastern and of the Western Church.^ But it is with his
moral character, which even canonization does not always
guarantee, that we are chiefly concerned; and that in his
life and doctrine, as regarded secular duty at all events,
Buddha approached more nearly to the Divine Author of
our own religion than any other historical character, is a
matter of general agreement. There is scarcely a Christian
virtue which he did not preach and practise. But if the
wliole object of his life had been its extinction, it must
surely have been difficult, as Bunsen has said,^ " to escape
tlie conclusion that suicide, or absolute recklessness, would
lead more surely to that end than an arduous and painful
process of sanctification to be reached by a life of incessant
8elf-denial and privation."

The highest autliority for tliis account of Nirvana is
Eugene J^urnouf, whose eaily deatli was an irreparable loss
to science ; but it is and has long been the common opinion.*^

> ChipH, vol. iv. p. 188. « I'. .UJ?.

' IJurtlu'leiny St Ililairr, nt snj,., \)\ CoMstiuk* r (0 in Chrmiljcm'ti Emijr., kc.

108 INQUIRY INTO THE HISTORY OF OPINION

Max Miiller adopts a middle course. He holds Nirvana to
have meant annihilation, " blowing out," and not absorption ;
but he declines to express any positive opinion whether such
was the view of Buddha himself, or only of his disciples.-^
Bunsen adopts the opposite view, and, as concerns Buddha
himself, or any expressions of opinion which, with proba-
bility, can be traced to him, I think he has shown
(chiefly from the Dliammapada'^' — Footprints of the Laiv, or.
Path of Virtue, the oldest of the Pali books, published since
Burnouf s death) that his conception of Nirwana, or Nirvana,
was indeed annihilation, and annihilation of self, — but of self
not in the sense of heing, but oi passion. It was the conquest,
in short, of the lower and exceptional by the higher and
normal, nature of man, — absorption, not of separate existence,
but of separate will,— precisely what all saints and sages
have aimed at, and generally by means very similar to those
whicli Buddha recommended.

" He who should conquer in battle ten times a hundred
thousand," says the Dhammapada, " were indeed a hero ; but
truly a greater hero is he who has but once conquered him-
self." Who is not reminded of Solomon's proverb : " He that
is slow to anger is better than the mighty ; and he that ruleth
his spirit than he that taketh a city " ? ^

" He who lives in lust for a hundred years, ever unquiet in his
heart ; much better a single day of a temperate, thoughtful life."

" The best prayer is patience, ever gentle ; "

^ Chips, vol. i. p. 284.

2 A complete translation of the Dhammaimda was published by Max ]\rullcr in
1870, as an introduction to Captain Rogers's TroMslaMon of the Parables of Bud-
dha(jhoH]ba. '^ Chap. xvi. 32.

WITH REFERENCE TO HUMAN AUTONOMY. 109

" To Buddlias, Xirvana is tlie name of that which is alone
good."

Immortality is frequently mentioned — a fact which in itself
seems a conclusive answer to the charge of absolute anni-
hilation.

" He who lives a hundred years, and does not behold the
path to immortality ; "

" Much better a single day of him who desires that path."

" He who strives not to obtain aught for himself, who
never doubts after he has perceived the truth, he who has
come to know immortality, him alone do I call a Brahmana."

" He wlio is free from disquietude, whose heart and longing
are on the other shore of tlie two worlds,'' &c.

" The evil-doer mourns in this world, and he mourns in the
next ; he mourns in hoth!*

But the most curious passage I have found is this : " Some
people are born again ; evil-doers go to hell ; righteous people
go to lieaven; those who are free from worldly desires enter
Nirvana." ^ Heaven is often spoken of, but the relation in
which it stands to Nirvana is not very obvious, and the prefer-
ence given to holiness in tlie following passage is very remark-
able : " Jietter than sovereignty over the earth, better than
going to heaven, better tlian lordship over all worlds, is the
reward of the first step in l^jliness." Nor is any undue value
attached to ascetic observances. " Not nakedness, not jjlatted
(matted ?) hair, not dirt, not fasting or lying on the eartli, not
rubbing witli dust, not sitting motionless, can purify a mortal
who lias not overcome desires."

• JiiuldlKKjhiishii , iUhu]/., \>. xnv.

110 IXQUIRY INTO TTTK HISTORY OF OPINION

Patience and resignation are the burthen of the song.

*' He who when assailed does not resist, but speaks mildly
to his tormentors " (turns to them the other cheek ?) ;

" He who grudges nothing to him who grudges him all, him
alone I call a Brahmana."

" He who puts from him desire and hatred, pride and hypo-
crisy,"

" As a grain that flies from the point of an arrow ; him do
I call a Brahmana."

" Hatred does not cease by hatred at any time : hatred
ceases by love ; this is an old rule."

If to passages like these we add the account which Buddha
gave of his own state three months before his death,^ we
shall have little hesitation as to his conception of the object
of life.

" I have attained the highest wisdom ; I am without wishes ;
I desire nothing. I am stripped of selfishness, personal feeling,
pride, obstinacy, enmity. Till now I have borne hatred, been
passionate, erring, in bondage, a slave to the conditions of birth,
of age, of sickness, of sorrow, of pain, of suffering, of care, of
misfortune. May many thousands forsake their homes, live
as saints, and after they have devoted their lives to meditation
and renounced all pleasure, be born again to a portion in the
worlds of Brahma, and fill those worlds in countless hosts ! " ^

This, then, was wliat was meant by becoming a Buddha, —
tliis was Nirvana as Buddlia himself conceived it. But the
question for us here is not what an excejjtional person like
Buddha thought or taught, but what liis 300,000,000 fol-

' Rnnspn, uf mp., vol. i. p. 300. 2 p_ 3(39.

WITH REFERENCE TO HUMAN AUTONOMY. Ill

lowers found it possible to believe. Did they accept Nirvana
as it was explained by Buddha, or as it has been explained by
M. Burnouf, M. Barthelemy St Hilaire, and others ? 'Now
the true answer to this, as to many questions with reference
to popular conceptions of doctrine, whether religious or politi-
cal, seems to be, that the original view was not lost, but that
it was confused, exaggerated, and corrupted. The ordinary
man does not differ from the extraordinary man in kind, but
only in degree. The facts of nature on the conscious recog-
nition of which the creed of the latter rests, and as a neces-
sary consequence the truths which that creed embodies, are
imperfectly apprehended by the former ; and then the errors
to which these partial apprehensions give rise are w^orked out
into their logical results by the one-sided tendencies of the
inferior mind. The truth wdiich Buddha had taught, that
bliss and virtue being coincident, the former is attainable only
by the self-mortification — the deatli of tlie lower and excej)-
tional self — demanded by tlie latter, was too wide a concep-
tion for the pedants who professed to be liis interpreters ; and
yet tliere were natural instincts wliich forbade its absolute
rejection. It was accepted, accordingly, in the Abidhedharma,
or rnetai)liysical portion of tlie canon, not in its integrity, as a
rational belief, but partially, as an incomprehensible dogma,
which, wlien applied to jajictice, generated two kinds of error.
I.s7, Tlie exceptional and contradictory elements of indi\i(]u;il
nature, in virtue of which it becomes self-destructive, being
mistaken for, or confonnded with, th(3 fundamental nadirc; of
humanity itself, the condemnation which I'uddha had pro-
nounced on the former was appli<Ml Lo the latt(U- ; and the;

llL^ IXQUTRY INTO THE HISTORY OF OPINION

l\)llo\vers of lUuldlia ^ became ascetics, just as those of Socrates
and of Christ did after them. 2d, Self-abnegation, which
lUiddha intended as a means, was accepted as an end ; and
men mortified themselves not in order that they might live,
but lived in order that they might mortify themselves. Death
thus became tlie object of life. Viewed in this light. Nirvana
— self-annihilation — in place of being an exceptional and
unintelligible phenomenon, becomes merely an illustration of
what I shall have frequent occasion to dwell upon hereafter
as the commonest of all human errors — viz., a wholly false
conclusion logically deduced from premises which are only a
partial misunderstanding of the truth.

It is quite true, as Max Mliller has said,^ that sucli
could never have been the creed of millions of men — that
however it might have been promulgated by pedantic logi-
cians, the great human heart must always have rejected it.
In the deeper sense of faith, or in the conscious sense of
reason, I believe it to have been as impossible a creed for
one man as for 300,000,000. Nobody ever really believed
it. On the other hand, we must remember with what
prodigious tenacity the masses can cling to the errors of
their teachers, even when these errors conflict with the
feelings of nature. For many ages, in Christian Europe,
whilst men daily thanked God for His gifts, scarcely any

^ That an ascetic character was ascribed to Buddha himself is plain from the
custom affixing the word Muni, solitary (Greek fxovos, alone), to his family name,
Sakya, and prefixing Sramana, ascetic, to Guatama — thd epithet of the " Solar "
race from which the family was sprung. Chambers's Encyclop. , v. Buddha.

2 Chips, p. 285. The subject is more fully discussed in the Introduction to
Buddhfifjhoslia, p. xl et acq.

WITH REFERENCE TO HUMAN AUTONOMY. 113

one doubted the merit of rejecting them ; and there is
reason to believe that more than the half of Christendom,
at this moment, holds, with equal tenacity, two views of the
Divine nature which directly contradict each other. God is
believed to be perfectly good and absolutely powerful ; and
yet He is represented not only as incapable of vanquishing
sin in others, but as Himself committing what He has taught
human beings to regard as sin. The explanation of the
phenomenon consists in the rash acceptance of irreconcilable
premises, from which there is no longer any means of escape.
It has been the same with our politics as with our religion.
Buddha, as we shall see, taught that all men are equal before
the law — relatively equal, that is, not absolutely. In this
respect his teaching was in accordance with that of nature,
as interpreted by the daily experience and fundamental con-
sciousness of humanity in all ages ; and over a large portion
of tlie East it seems to have been accepted. But, in Europe
and America, for now more than a century, theoretical
shallowness and dishonesty, coupled with popular passion and
stupidity, have constantly transformed the dogma into an asser-
tion of absolute equality ; and in this shape it has yielded
logical results the very reverse of those which would have
followed from the original maxim — viz., anarchy and des-
potism, in place of liberty and order. Now no honest man,
in his sober senses, knowingly accepts anarchy or despotism
as the ohject of his life as a citizen ; and yet there is too
much re.'ison to believe that a creed which logically offers
no other alternative is, in our own day, (Ik; jirofessed creed
of a large j;rojiOiti(jn of civiliz(*(i niaiikind !

1 1 4 INQUIRY INTO THE HISTORY OF OPINION

Without, then, abandoning our belief in the fundamental
agreement of humanity with reference to the object of its
existence, avc may assume, in accordance with what appears
to be the best evidence, that, to the followers of Buddha
generally, though not to himself, Nirwana or Nirvana meant,
and means, not perhaps absolute annihilation, but at all events
escape from, and the impossibility of return to, existence in
the sense of activity. Thus understood, it differs very widely
from the ideal result — the summttm honum — of European life
either here or hereafter. It is the very opposite of the old
Greek conception of what man was to strive after in the
present life ; and putting it at the highest, it embraces only
the negative side of the Christian conception of the life to
come ; though, if we reflect how difficult it is, when oriental
imagery is laid aside, to ascribe to Heaven, when represented
as a life from which hope is shut out by fruition, any positive
element beyond the ecstasy of divine contemplation — which
Nirwana probably did not exclude — we may hesitate in pro-
nouncing the antithesis here to be quite so absolute. Nor is
the longing for the negation of passion so exceptional a sen-
timent on the Buddhist's part. Have we not the nepenthes
{vrjirevO-q^) of Homcric legend,^ and the apathy (aTrdOeia) of the
Stoics, to say nothing of the various sects of Christian quietists?
We must bear in mind, moreover, tliat the conception which j
man, either as an individual or a race, forms of the objects of
life, or tlie consequences of death, is very much an affair of f
temperament, and of climate, which is one great determiner ;;
of temperament. So far Montesquieu was right ; and there

^ Bnnsen, vol. i. p. 340.

WITH HEFEREXCE TO HUMAN AUTONOMY. 115

was truth in Pascal's saying, that good and evil, truth and
falsehood, differ with a few degrees of latitude. Just as it
is in the highest races, so it is in the most genial climates
alone that we must look for normal human thoughts and
feelings. The enervating and joyless monotony of a tropical
sky takes away the power of endurance and the love of life ;
just as the gloomy and blustering north inures to suffering
and hardens the character. Wlien men of Teutonic or Celtic
blood come to a region where the grape ripens, the Protestant
hell of the north finds, for the fortunate majority of mankind,
a partial substitute in the milder purgatory of the Eoman
Catholic. Even in heathen times, it was only in very
exceptional social circumstances that Europeans ever were
disposed, in any numbers, to lay claim, prematurely, to
" nature's privilege to die." In a precisely similar manner,
it would seem that when the man of tlie south comes under
the influence of the blessed alternations of summer and winter,
seed-time and harvest, presently his longing for the cessation
of positive existence disappears. Sclilagintweit tells us ^ that,
ill Tibet, Kirwana has become a mythical doctrine peculiar
to the priesthood, and that " in general the Tibetans of the
]»resent day do not properly distinguish Ijctween Nirwana and
Siikliavati," the latter l^eing a heaven of positive happiness.^

But whether or not Buddhist conceptions of the consumma-
tion Uj be attained, either in time or in eternity, differ from
our own to the extent that so many seem ;inxious to believe,

' V. 99.

^ Mr AlahoAtPr's account of tlic SiamcBfi \h to tho nnmc ufrccl. 7'/ir JT/irrl of
'fie fyno, xxxviii.

116 INQUIRY INTO THE HISTOKY OF OPINION

what is undeniable, and far more important for our purpose,
is, that both the law — " the path," as they happily charac-
terize it — by which the object of life may be reached, and
the method by which this path is to be discovered, remain
the same. It was part and parcel of the creed of this vast
section of mankind, that Buddha — who was not a god, but
the ideal man — in realizing what was the legitimate object of
existence, as he conceived it, had been guided by a law which
his own nature revealed to him, and which the nature of his
followers would reveal to them. The Buddhist lays claim to
no external revelation whatever. His system is essentially
subjective ;^ the law in which he believes is " within him;" and
his belief, moreover, is that he can find it himself — for every
Buddhist is his own priest. But what, then, is the character
of this law which the nature of the Buddhist reveals to him
for a purpose which is said to be so strange to us ? To our
relief and astonishment we find that it is the very same law
which our nature reveals to us. The Buddhist is to seek an-
nihilation, as we seek life eternal, — by abstaining from murder,
theft, adultery, lying, and drunkenness ; by obeying his parents,
revering the aged, confessing his sins, and saying his prayers
(to whom ?),2 and being charitable to all men. Characteristi-
cally enough, the duties of abstinence, or, as they are called,
" the precepts of aversion," take precedence of the precepts
of action, to which Christianity gives so prominent a place.^

^ Max Miiller, Sanscrit Lit. , p. 32. Alabaster, id sup. , xviii.

2 The existence of the "praying wheel," so much dwelt upon by those whose
effort is to depreciate the religion of the Buddhist, is alone sufficient to refute
their allegations with reference to the Buddhist creed.

^ Ecce Homo, p. 175.

WITH REFERENCE TO HUMAN AUTONOMY. 117

But the precepts, in so far as nature can reveal them, are
identical, and if the Buddhist has no theology, it is plain
that ethics and jurisprudence are not shut out from him by
his creed. In this world, at all events, he believes in God.
The ground, too, on which Buddhism arose, as a protest
against Brahmanism, is instructive, as illustrating the soli-
darity of heathen and Christian ethics. I refer to the
substantial identitv between a movement which was inde-
pendent of Christianity, and which we must therefore ascribe
to what we are in the habit, very erroneously probably, of
designating " unassisted nature," and the tendencies of modern
European life which we trace to Christian influences. Bud-
dhism was a protest against the exclusiveness of caste — a pro-
clamation of Us carrUres ouvertes, of equality before the law, of
universal charity, and, in a word, of the positive jurisprudence
of the nineteenth century. In this respect M. Barthelemy St
Hilaire's recognition of its merits are so ample, as to form a
strange contrast with what I cannot but regard as his preju-
dice against it as a theological doctrine. The phenomenon
of a religious system drifting away from the ethics of nature,
and inculcating doctrines wliich the human heart rejects, is
not unknowTi, indeed, even to Christian times. I5ut it is
diflicult to imagine tliat an ethical system which preaches
universal charity, wliich seeks " to cure not the society of
India but tlic human race," ^ can have come out of, or co-
existed with, a religious system which inculcates pure selfish-
ne.ss.2 Either the on(; (jr the other was jiretty sure to have
given way ; ainl that the ethical system was not only at tlie

' M;ix Miillcr, Sanac.rU Lit., \>. IJ.'.. -' ///., \\. IfiO.

118 I^^QlIlRY ]NTO thp: history of opinion

rout of the religions system in tlie first instance, bnt that it
continued to hold its own, seems to be matter of general
admission.

It may be questioned whether tlie enthusiasm of Buddha's
French expositors for his ethics and politics, as contrasted
with his theology, would have been quite so ardent if they had
reflected on the fact that his conception of " fraternity " by no
means involved the one-sided notion of the human relations
to which they cling with so much tenacity. In preaching
brotherhood, Buddha did not forget that it is to Fatherhood
that precedence is due, and consequently "there is no trace ^
of social levelling, or democratic communism, in any of his
sermons." ^ On the contrary, we find in the Dhammapada —

" He who cherishes reverence in his heart, and ever honours
his superiors,"

" To him shall be ever added these four gifts : Long life,
beauty, joy, power." '^

^ Chijjs, vol, i. p. 343. Alabaster, xxxvi.

2 Bunson, lU suji., vol. i. 347. There is one distinctioii between European ex-
clusiveness, even in its sharpest and hardest form, and the system of castes in
India, which an Indian friend pointed out to me, and which it is important to
bear in mind. In Europe the upward passage from class to class alone is blocked,
whereas in the East the passage is blocked both ways. In old France, e.g.^
the noblesse was shut against the bourgeoisie, but not the bourgeoisie against the
noblesse. The valves, so to speak, opened downwards ; and in the modified
form in which exclusiveness has existed in this country, it has always acted in the
same manner. A millionaire who was deficient in culture or refinement might
have some difficulty in finding his way into the aristocracy, but an aristocrat who
had lost his fortune, or made a marriage below his class, -if there was no other
objection to him, would be well enough received by the class to which he had
chosen to ally himself. But in the East, if a man quits the caste to which he
belongs, he quits all caste — he falls out of caste — i.e., out of the sphere of Hindu
society altogether. He becomes an outcast — a pariah ; and it is this circumstance
more than any other that has opposed the spread of Christianity. The ideal of

WITH REFERENCE TO HUMAN AUTONOMY, 119

(c) Tlie Turanian Races. — In so far as the anthropological
beliefs of the partially civilized Turanian races have been
investigated, apart from their religious dogmas, they do not
differ substantially from those of the Aryan race. On the
principle of selecting the best witnesses, tlie whole of the vast
Turanian family might perhaps be passed over in silence, in
so slight a sketch as we are liere attempting. The character-
istic of the religions of the Mongolian tribes of Asia — to which
the Turks belong — like that of the lower, less developed, and
retrograde races generally, is enthusiasm.^ Their light being
supposed to proceed entirely from external sources, the link
which connects them with the divine is not reason, but senti-
ment, which rises into ecstasy in proportion to the extent to
which reason is silenced by sleep, by disease, by exhaustion,
intoxication, and the like. This tendency diminishes, of course,
as the race rises in importance, till we reach its highest mani-
festation in the Magyars, who exhibit a sanity of character to
which the Celtic branch of the Aryan race can scarcely lay
claim, and whose ancient liberties sufficiently attest their sense
of human autonomy. But it is to tlieir connection, thougli
not, as it seems, their identity, with the Chinese, that these
races owe their chief interest.

social organization is open classification — a classification in which the iiidiv idiial
shall lie free cither to rise or to fall — and to tliis wc certainly come nearer in this
country than anywhere else. Ev<;n in the case of our hereditary nol)ilily, it is
in the case of the eldest son only that we endeavour to prevent a change of class ;
and now that intermarriage between the Royal family and sulijects has been
Kanctioned, there is nothing to prevent a grandson of the Queen from sinking to
any jjosition to which his worthlessness or inca)>acity may degrade him, except,
indeed, thc'contingency of his suf^ceeding to the crown, or to any intciiindlMli'
honotir which might ehanc^ to open to him.
' n>., vol. i. p. ti.'J?.

120 INQUIRY INTO THE HISTORY OF OPINION

The Chinese. — The earliest form of anthropological belief ex-
hibited by the Chinese, and that to which they have constantly
adhered during the whole course of their long national life,
embraces a direct recognition of human autonomy. Whether
or not Baron Bunsen be correct in asserting that " the actual
aboriginal tribe of the primeval home of man has settled itself
in the extreme east of Asia, and maintained itself there up to
the present day," and that the language of China "forms an
irrefragable testimony to the autochthonic character of the
unique position which it occupies," there can, I imagine, be no
doubt of the strictly national character of two out of the three
religions wliich exist, side by side, in that strange country, or
of the great antiquity of that which forms, at the present day,
the basis of the civil life of the State. Confucius was born in
551 B.C., and died in 479 b.c.^ But "Confucius is not the
religious prophet of Ancient China. The Sacred Books (King)
are his work in so far as he saved them from perishing by
making this collection, but they are not his composition.
They are now fragments remaining from a very ancient epoch,
and they were so, no doubt, at that time." ^ This being so, these
documents may probably be held to contain the earliest state-
ment which we possess of an anthropological creed ; and in
this point of view, considering the very wonderful qualities of
the race who held it, we owe a debt of gratitude to those who
have brought it under our notice. Following Bunsen,^ then,
as our most convenient, and, from the vast extent of his

1 Bunsen, p. 259. 2 /^^ p 244.

^ From such further acquaintance with the subject as I have been able to n)ake
through Professor Legge's translation of the Chinese Classics, I am convinced that
the view here presented of Chinese opinion, though slight, is not inaccurate.

WITH PtEFERENCE TO HUMAN AUTONOMY. 121

general as well as special learning, probably most trustworthy
guide, " let us Ksten to one or two of the utterances of these
Sacred Books, wliicli bear most closely on the point which con-
cerns us. This is from the Shi-King. ' The opinion and judg-
ment of Heaven is learned (reveals itself) through the opinion
and judgment of our people. Heaven's approval and disap-
proval (is recognized) through the approval and disapproval
of our people. An intimate relation subsists between the
upper and lower world. Oh, how careful should those be
who govern countries 1 '" -^

Apropos of this remarkable specimen of antediluvian politics,
Bunsen relates an interesting anecdote of our own day. Gutz-
laff told him, he says, that " when after the peace of N'ankin,
in 1845, the Emperor of China felt himself impelled to refuse
his assent to the execution of that article of the treaty by
wliich the Tartar city of Canton was to be opened to foreigners,
he justified his repudiation by this gi'eat maxim of the Sacred
Books. And ' the voice of the people is the voice of God,'
resounded once more through the whole empire. When the
Emperor's edict was published, and everywhere formed the
subject of discus.sion, it was said to Gutzhaff by patriotic
Chinese : ' That maxim of our Sacred Books is well known to
us — it is our watchword ; but this was a new tiling to us, tliat
the Mandshu Emperor shouhl publicly appeal to this sacred
t(;xt of the Scriptures, wliich testifies against himself'.'"^ I'y
what qualifications our primeval ancestors — if such they were
— guarded this profound but perilous maxim against the false
interpretations which it has received, and still receives, amongst

» liun-scn, p. 2r,2. - /A., 1>I». '252, 253.

122 INQUIRY INTO THE HISTORY OF OPINION

ourselves, we are not informed. But it surely is a striking
instance of tlie consensus of mankind in their anthropological
conceptions, that a maxim which embodies so much of the
truth and nearly all the falsehood of modern politics, should
have been familiar to the ears of what there is reason to
believe was the oldest civilized community. There is, indeed,
no lore which brings home to us so forcibly the unity of man-
kind as that" of maxims, proverbs, gnomes, and the like. We
find the yvw^t o-cauroj/, like the golden rule, everywhere ; and
here is another remarkable instance of the fact that Socrates,
like the rest of ns, had his precursors. Lao-tse was more than
half a century^ older than Confucius, and 136 years older
than Socrates, and we are told that he was in the habit of
saying that the wise man is he who "knows that he knows
nothing ! " ^ Yet the Chinese were, and are, far from a
speculative people ; so far from it, indeed, that those who
have made a study of their language tell us that " to express
mind, thought itself — that which predicates — it has absolutely
no term whatever ; " ^ and Bunsen tells us, as the result of his
studies, that but for this very faith in the innateness of the
personal element — of absolute reason — in man, its realism
" would have sunk down into the slime of materialism." ^
In a subsequent passage he thus sums up their wisdom —
" If we sum up the whole, we find one thought continually
recurring in the works of all those sages, as the root-idea of the
ancient system, and we may express it thus : There is a law
which governs the All, in nature and in man, and this One Law
is reasonable. Tims, indeed, it had been said by Meng-Zo, the

1 Bunsen, p. 259. 2 p^ 265. , ^ p. 256. ^^ P. 255.

WITH KEFEKENCE TO HUMAN AUTONOMY. 123

renowned successor of Confucius, in the fourth century before
our era, ' He who knows his ovm nature, and that of all things,
knows what Heaven is; for Heaven is, indeed, the inward essence
and the vital energy of all things.' This thought is the dowry
of the Chinese intellect in the general history of man ; the
conception of a Kosmos in, if not above, the various objects,
which, however, attains personality only in the human mind.
Man's life is to be orderly, like that of nature ; the sphere of
this life in which the Chinese recoonize somethiiiQ; divine, is
that of the family ; the bond between parents and children is
to him the most sacred of all bonds." ^ In these tAvo concep-
tions— of the dignity of the person on the one hand, and the
sacredness of paternal authority and filial obedience on the
other — we have the secret of that marvellous length of days
which, notwithstanding all their faults, has been granted to
this strange people. Had tlie political philosophy of our own
day kept a place for the second of these conceptions, and re-
membered " the first commandment with promise," our pro-
gressive realization of the other would have been effected with-
out tliose outbursts of anarchic fury which make the streets of
Paris periodically run with blood.

Lest it should be supposed that the view wliich I have
here presented rests on a single autliority, it may be proper
that I should mention that to wliatever extent Baron Ihniscn's
view of the autochthonous character of tlic Chinese may be
peculiar, his opinion on the point with which we are concerned
is tlie common opinion. All are agreed that the teaching of
Confuciu.s, " the Master," is the most faithful expression of tlic

' IWuiHcn, pi». 268, 2(39.

124 INQUIRY INTO THE HISTORY OF OPINION

national mind, and that that teaching was based on the revela-
tions of our common nature. " I teach you nothing," he says,
" but wliat you might learn yourselves — viz., the observance of
the three fundamental laws of relation between sovereign and
subject, father and child, husband and wife ; and the five
capital virtues, — universal charity, impartial justice, conform-
ity to ceremonies and established usages, rectitude of heart
and mind, and pure sincerity." ^

To the same effect we have the testimony of Dr Legge.^
" He truly said of himself that he was a transmitter and not
a maker. He held that the rule of life for men in all their
relations was to be found within themselves, and that the
right development of the rule was to be found in the words
and institutions of the ancient sages." ^

That Confucius failed to infer any species of natural
theology from so sound an ethical system is the statement
usually made, and for a criticism of which I refer you to
Bunsen's and Legge's pages. To the extent to which it is
true it shows, of course, the absence of speculative genius.
But it does not invalidate the assertion that, in proclaiming
humanity to be autonomous, his anthropological creed agreed
with that of the rest of mankind in affording a sufficient basis
for a system of natural jurisprudence. In farther proof of
this assertion I shall venture on one additional quotation too

^ Chaiiihcrs's Encyc. , v. Confucius.

- Lecture in Philosophical Institution of Edinburgh, Dec. 14, 1869. Dr Lcggc,
formerly of Hong-Kong, is now the Professor of Chinese in the University of
Oxford ; and his work on the Chinese Classics, already referred to, is the leading
authority on the subject.

' Chinese Classics, vol. i. p. 59,

WITH REFERE^'CE TO HUMAN AUTONOMY. 125

remarkable to be omitted. It is from " the Doctrine of the
Mean." ^

" 1. "WTiat heaven has conferred is called the nature; an
accordance with this nature is called the path of duty ; the
regulation of this path is called instruction."

" 2. The path may not be left for an instant. If it could
be left it would not be the path. On this account the superior
man does not wait till he sees things to be cautious, nor till
he hears things to be apprehensive."

" 3. There is nothing more visible than what is secret, and
nothing more manifest than what is minute. Therefore the
superior man is watchful over himself when he is alone."

" 4. While there are no stirrings of pleasure, anger, sorrow,
or joy, the mind may be said to be in the state of equi-
librium. "When those feelings have been stirred, and they
act in their due degree, there ensues what may be called
the state of harmony. This equilibrium is the great root
frcnn ivhich grow all tlie human actings in the world, and
this HARMONY is the universal path which they all should
pursue."

" 5. Let the states of equilibrium and harmony exist in per-
fection, and a happy order will prevail throughout heaven and
earth, and all things will be nourished and llourish." Further
on, the Master said — " The path is not far from man. When
men try to pursue a course which is far from the common
indications of consciousness, this course cannot be considered
the PATH." 2 liut this is wliat, ill one form or (jIIht, tlie
Ma.ster is saying continually — e.g., in the Analects — "Is

» Chiiuae C7a*rjV.», vol. i. p. '2 JO. * I'. '^'>7.

12G INQUIRY INTO THE HISTORY OF OPINION

virtue a thing remote ? I wish to be virtuous, and lo ! virtue
is at liand."

As our best witnesses, however, we must return to the
Aryan race, and follow it into those seats in which it
attained the highest stage of development that mankind,
apart from Christian influences, so far as we know, had
reached.

{B) Of Classical Antliropology. — When we pass from the
oriental to the occidental branch of the leading family of man-
kind, we find that faith in God and nature still forms the
centre of belief and the mainspring of action.

(a) Greece. — The polytheism of Greece, as of India, was a
sensuous or anthropomorphic embodiment of intuitive concep-
tions of the divine origin and character of nature, the conscious
recognition of which, as a spiritual belief, has always been a
difficulty to the popular mind. This spiritual creed, though
no doubt in a very simple and imperfect form, preceded these
mythical symbols in point of time,-'- accompanied them as a
deeper undertone during the whole period of their existence.

^ "Long prior to any popular myths," says Kant, "there lay extant in the
human mind its primeval substratum of religion, the first rough development of
which uncultivated susceptibility did, during the earlier twilight of dawning
knowledge, tend merely to superstitions or hero-worships, and occasioned for their
behoof just those various mythical revelations ; and thus to those textures,
woven by the plastic energies of depictive fancy, there always has adhered some
unconscious trait, sufficiently indicative of the character of their supersensible
origin." — Theory of Religion, Scmple's translation, p. 142. Plato believed in
the unity of the great final Cause : /a^t' aZ Svo rive 6e^ (ppovovvre eavroTs kuavrla
<7Tp€^€iv avrSv ("nor let it be said that there are two gods, of contrary senti-
ments, causing the universe to turn"). — PoUticus, Bekker, vol. iv. p. 507.
And probably of far greater antiquity is the Orphic verse — Zei/y K€(pa\ri, Z(vs
fifcraa. Aih^ 5' f/c iravra rirvKrai. — Hermann's OrpJdca, p. 457.

WITH IIEFERE>X^E TO HUMAN AUTONOMY. 127

and gradually becoming clearer and more definite as humanity
advanced, ultimately superseded tliem altogether. The ev koI
TTttv of Xenophanes,^ for example, was an anticipation of the
monotheism which Socrates taught more definitely, and of his
polemics against the anthropomorphism of the popular reli-
gion.^ After the time of Socrates the myths were abandoned
by those whom we must regard as the interpreters and expo-
nents of the deeper consciousness of the nation, and by degrees
even the popular mind drifted away from them ; till at last,
as ]\Ir Leckie has said, '' The chiklren and old women ridiculed
Cerberus and the Furies, or treated them as mere metaphors
for conscience." But when the popular creed gave way, it
was only to make place for a reasoned belief in the old Aryan
doctrines which it originally symbolized.

* Schwegler, p. 16.

2 Zeller, Socrates and the Socratic ScJwols, p. 144, refers to Xenoplion, Mc^i.
iv. 3, 13, in proof of his assertion tliat Socrates distinguished the Creator and
Ruler of the Universe from the rest of the gods, and answers Krische's argument
against the genuineness of the passage. The fact tliat such was Socrates' creed
fortunately does not rest on any single passage, but on his habitual use, unless
all his disciples have misrepresented him, of the word Q(6s. AVlion, for example,
lie winds up the magnificent passage in the ylpolor/ia, § 17 in Bekkcr's edition,
on the folly of not preferring death, which, for all that \vc know of it, may bo
good just a.«» well an evil, to neglect of duty which we know to be evil, ]>y telling
the Athenians that, much an he loved them, he would obey God rather than them
rtitrofjiai if fiuWov t^ 6«f ^ vfj^'iv), and that he would teach wisdom and proclaim
Jie sup<iiorily of the .soul to the body, if he should die many deaths, because it
YiM God's will {ravra ykp K(\(6fi i 6(6%), who can doubt that the God of whom
he H|>oko wa« his and our Father in Heaven ? Aristotle invariably, I think, uses
*}ic word in this Hense, Polit., vii. c, iv. Of tlic similarity between his conception
of the divinity, and that to which wc are accustomed, a very remarkabli! instunco
rxTMTH in the PolilicM, vii. e. i., where he speaks of Him as blessed, not in tlio
jKmw.HMioii of ext'.-rnal goixls, Ijut in I Ms own nature, fcf tvhai^iuv fi/r ian Kai
Hax^inoi, Sr oiBiy 8) rwy i^wrtptHwv hyaOwv i-KKh. 8i* avrhy ur'/T^v Kal Ttfi rttm'ts ni

128 INQUIRY INTO THE HISTORY OF OPINION

The difficulties which surround the interpretation of Greek
mythology are so great as, in themselves, to form a strong
argument in favour of the advice of Socrates to his pupils
to look for truth elsewhere ; and the subject is so vast as
to forbid any attempt at independent treatment of it here,
even if I possessed a far more accurate acquaintance with
it than I can at all pretend to. But on the fundamental
point of the original conception of Deity which it exhib-
its, it is necessary that I should mention the opinion which
has been arrived at by the highest authorities ; and the high-
est of all authorities on Greek mythology is Welcker,^ to
whom, as Max Muller has said, the present generation of
German scholars, " a race not quite contemptible in itself,"
looks up, as the Greeks looked up to Nestor. In doing so
I am fortunately enabled to offer the further guarantee which
is implied in Professor Miiller's words.^ "Nowhere," says
Muller, "have we seen the original character of the wor-
ship of Zeus as the God (6 ^cos), or, as he is called in later
times, as the Father of the Gods, as the God of Gods, drawn
-with so sure and powerful a hand as in Welcker's My-
tliology. When we ascend with him to the most distant
heights of Greek history, the idea of God as the Supreme
Being stands before us as a simple fact. Next to this ado-
ration of One God, the Father of Heaven, the Father of men,
we find in Greece a worship of nature (the manifestation of
God). The powers of nature originally worshipped as such,
were afterwards changed into a family of Gods, of which

^ Oriechische Gotteslchre, von F. G. Welcker, 1857.
2 Chips, vol. ii. pp. 151, 152.

WITH PvEFEREXCE TO HUMAN AUTONOMY. 129

Zeus became the king and father.^ This third phase is what
is generally called Greek mythology ; but it was preceded in
time, or at least rendered possible in thought, by the two
prior conceptions — a belief in a Supreme God and a worship
of the powers of nature. The Greek religions, says Welcker,
if they are analyzed and reduced to their original form, are
far more simple than we think. It is so in all great things.
And the better we are acquainted with the variety and com-
plications of all that has grown up around them, the more we
feel surprised at the smallness of the first seeds, the simplicity
of the fundamental ideas. The divine character of Zeus, as
distinct from his mythological character, is more carefully
brought out by Welcker. He avails himself of all the dis-
coveries of comparative philology in order to show more
clearly how the same idea which found expression in the
ancient religion of the Brahmans, the Sclaves, and the Ger-
mans, had been preserved under the same simple, clear, and
sublime name by the original settlers of Hellas."^

It i.s, and probably will continue to be, impossible to con-
nect the creed of the Western with that of the Eastern branch
of the Aryan race by the links of external history. But such
evidence of a common origin as internal coincidences adbrd is
abundant. Stripped of its drapery, the religion of Greece, like
that of India, was simply a worship of creative power, and a
deification of its manifestations. Nature — not in the sense of
mere exi.stence, Ijut of ordered activity, Kosmos — was God ;

' A.s to the proj(Tcs8 from pliyHiolutiy to tin; i.iiihodiiiHMit of rllii<iil i<lr;iH, v.
i'iuiM:ii'ii 6W in Iluiury, vol, ii. c. 2.
' 'JhijtH, ul »up.

130 INQUIRY INTO THE HISTORY OF OPINION

and tlie sun, the brightest and most beneficent manifestation
of nature, the source of heat and light, the fountain of life
in man, and beast, and tree, and plant, was the greatest of the
gods. " Orpheus," says Eratosthenes, quoting the Bassarides
of /Eschylus, " did not honour Dionysus, but believed the sun
to be the greatest of the gods, whom also he called Apollo ;
and, rising up in the night, ascended before dawn to the
mountain called Pangseum, that he might see the sun first,
at which Dionysus, being enraged, sent upon him the Bas-
saridse," ^ &c. In the first part of this beautiful myth, which
will remind many of the sublime passage in Wordsworth's
" Excursion," beginnino- —

" Upon the breast of new-created earth Man walked ; " ^

it is extremely probable that we have the tradition of an
actual custom ; and, if so, its oriental origin can scarcely be
doubted.

" The religion of the sun," it has been said, with much
truth I believe, " is inevitable ; " ^ but it is remarkable that
the primitive beliefs of the classical nations are constantly re-
ferred by themselves, not to natural inspiration, to which we
should have been led to ascribe them, nor yet to external
revelation, like those of Shemitic races, but to tradition for
which they do not profess to account. " The tradition has
come down from very ancient times, being left in a mythical
garb to succeeding generations, that the heavens are gods, and
that the Divine embraces the whole of nature. And round
this idea other mythical statements have been agglomerated,
with a view to influencing the vulgar, and for political and

^ Smith's Did.^ v. Orplious. ^ Book iv. ^ Chips, vol. i. p. 241.

WITH REFERENCE TO HUMAN AUTONOMY. 131

moral expediency ; as, for instance, tliey feign that these gods
have human shape, and are like certain of the animals ; and
other stories of the kind are added on. Xow, if any one will
separate from all this the first point alone — viz., that they
thought the first and deepest grounds of existence to be Gods
(on 6eov^ wovTo tol? r-pwra? ovcrCa^ cti^at), he may consider it a
Divine utterance." ^ It is this utterance which Bunsen has
traced through the epic and lyric poetry of Greece, and which,
with Socrates, he believed to have formed the basis of the
]\Iysteries, and even of the popular cultus.

The first step in the direction of philosophy, or of the dis-
covery of a rational basis of belief, is generally supposed to
liave consisted in the so-called Cosmologies, or physical and
material theories of the universe ; and physical is thus sup-
posed to have preceded ethical and political science. Now,
except in so far as cosmology was identified with theology,
as in the worship of the sun, and confined itself to the
recognition of an unknown power, of which the sun was
refjarded as the manifestation, I cannot subscribe to this
statement ; nor can I concur in tlie view that it was with
Socrates and the sophists that thouglit was first directed to
the rationale of liuman life.^ In so far as tliey had for their
object the discovery of the laws of space and numl)er, I do
not of course deny to the physical investigations of the Greeks
ihe cliaracter of science. But their tlieories as to tlie organ-
ization of external nature were as vague as their conjectures
as to its origin ; and of the hiws which govern growth ami

* Arirtot, Metaphys., xi. vi, x. Grant's AriHlotk, v<.l. i. ]». 'I'M).
' Orant'u Arifdotlr, vol. i. jt. \\.

132 INQUIRY INTO TPIE HISTORY OF OPINION

development, decay and decomposition, chemical combination,
or the like, they had not the faintest conception. When
Thales tells us that the principle of all things is water, or
Anaximenes that it is air, we neither learn anything, nor get
hold of the means by which anything is to be learned. To
tlie merit of aspirants they are no doubt entitled ; but to the
character of discoverers of method they have no more claim
than to that of discoverers of truth. Pythagoras, says
Bunsen, ^ was " the first of all historical men to utter the
great word Kosmos, in the sense which we attach to it."
The Pythagorean principle of harmony, or proportion, was, no
doubt, a very remarkable recognition of the universal preva-
lence of law ; but, beyond the region of mathematics, Pytha-
goras appears to have traced the action of law in the spheres
of social and political rather than of physical life. It is on
this ground that Bunsen contrasts him with the other students
of nature, as " the first to reconduct speculation once more
back to what was human and ethical." ^ But it was the
same with the other cosmologists, in so far as they are en-
titled to the character of scientific inquirers at all. They
were philosophical statesmen and moralists in a far higher
and truer sense than they were physicists. It was on the
ground of his ethico- political wisdom^ that the name of
Thales stood at the head of the seven sages. Heraclitus

1 Vol. ii. p. 92.

2 Vol. ii. p. 337. "Would that we had another Pythagoras ! I have often regretted
the tendency of our Scottish philosophers to prefer logic and metaphysics to
ethics and politics. Had Sir William Hamilton let the " quantification of the
predicate " alone, he might have given Mr Mill much to think of in directions
which lay far nearer to the real interests of humanity.

^ Schwegler, \). 9.

WITH REFERENCE TO HUMAN AUTONOMY. 133

taught that evil is to be regarded as an element that co-
operates to the harmony of the whole, thus attempting, in the
only manner that has yet seemed possible, to remove the
element of contradiction in nature which opposes itself to
the recognition of natural law ; whilst the vovs of Anaxagoras
may be regarded as the first indication of the conscious and
reasoned character of self-lecfislation.

But it is when we abandon those ambitious speculators
who professed to explain the laws of the universe, and turn to
the statesmen and legislators who made it their business to
study mankind with a view to the discovery and practical
vindication of the laws which govern their natural relations,
that we come in contact with what really was science, though
not called by that name. The results attained by these latter
inquirers were exhibited both in deeds and in words : they
were exhibited in deeds, first by the foundation of the free
cities of Ionia, in which the mental as well as the political
life of Greece originated ; and then by the Doric legislation,
which bore the half-mythical names of Minos and Lycurgus,
and which, wliatever its real date may have been, was long
anterior to the cosmologists ; and lastly, in the Constitution of
Solon at Athens and that of Servius Tullius at Rome ; — and
they were exhibited in words by proverbs and maxims, whicli,
like the institutions with which they were probably contem-
poraneous, remount to an unknown anti(|uity. The earliest
hist<^>rical institutions l^oth of the Greeks and liomans were
disfigured by the exclusiveness which maiTed the whole ])<)-
litical life of antiquity, which in the East called fm llu; re-
form of iJuddha, and which, in tlie modem world, has been

134 INQUIRY INTO THE HISTOKY OF OPINION

the parent of so many revolutions. But in other respects — as,
for example, in the recognition of individual inequality as
the source of the organic structure of society — they come
closer to natural law, and, as such, were more scientific than
the Constitutions which find favour in our own day. So far
from being entitled to dismiss them as mere curiosities, as
we do the cosmologies, we find in them those principles of
order and liberty which it will be the duty of the Christian
statesmen of the future to realize amongst the many, as their
authors did amongst the few. ^

As regards the maxims, of which these institutions were
the external realization, they were expressed, it is true, in so
simple a manner as to have exposed them to the reproach
of being " yeoman's morality." ^ But, in addition to the
reflection that simplicity is of the essence of the maxim —
that our own maxims are as simple as those of the Greeks,
and that Aristotle, when he uses them, which he does con-
tinually, is as great a child of nature as Hesiod, — we must
bear in mind, with reference to the maxims in question, more
especially, that if they were yeoman's morality, they were
yeoman's science also. They were results and not guesses,
like the dicta of the cosmologists, or our own " leaps in the
dark ; " and they were results, moreover, of the very same
process of investigation which, in antiquity, culminated in
the philosophy of Plato and the jurisprudence of Justinian,
and which we ourselves must return to if we would go

^ It is in tliis point of view that the ethics and politics of Aristotle are so much
more valuable than his physics.
"^ Grant's Aristotle, vol. i. p. 56.

WITH HEFEREXCE TO HUMAN AUTONOMY. 135

beyond Plato and Justinian — the process, viz., of studying
human nature on the assumption that in revealing itself
it reveals an absolute and permanent law.

We shall more readily see the manner in which this process
was applied, if we attend to the characteristics of the three
eras into which Sir Alexander Grant and others have divided
the ethical history of Greece. We must accept them, how-
ever, as indicating stages of mental progress rather than
chronological epochs ; bearing in mind, moreover, that the
great prophet -minds which have determined the transition
from earlier to later belong invariably to both. First, then,
there is the era of popular or unconscious morals ; second,
the transitional, sceptical, or sophistical era ; and, third, the
philosophical or conscious era.^ Xow it is obvious that if
the first and third of these eras agree in their results, the
second, which was polemical and destructive, and never aimed
at the production of positive results at all, may be discounted,
in any other sense than as an effort of development, a throe
of parturition, or, at most, a receding wave in the advancing
tide. Let us then compare the primitive ethical and political
intuitions with the ultimate beliefs of Greece. The first
phase in which botli theology and antliropology appear in
Greece is, no doul^t, wliolly concrete. Principles are not
Htated ; they are represented in action, and are c(jnnncndcd,
•r condemned, in tlie ])ersons wlio exliihit them by tlie
.Vemesis whose organ the epic or lyric jjuet has Ijcconie.
Xow, in this primitive form of its manifestation, tlie national
mind of Greece exhibits, not disbeli< f or doubt, l»ut perfect

' /6. , vol. i, \>. W).

136 INQUIRY INTO THE HISTORY OF OPINION

confidence, faitli in God and man. The religion of the heroic
age, as exliil)ited by Homer, has in recent years been made the
subject of ehaborate study in Germany ; and of the care with
which it has been investigated amongst ourselves, the works
of Mr Gladstone and Colonel Mure are sufficient monuments.
But without entering on what is almost a shoreless sea, the
schoolboy-reading of most of us, I believe, will offer sufiicient
guarantees for the accuracy of what appears to have been
almost the unanimous verdict — viz., that it consists, as Sir
Alexander Grant has said, " in a celebration of the beauty
of the world, and in a deification of the strong, bright, and
brilliant qualities of human nature;"^ and embraces, as Pro-
fessor Blackie has remarked, a recognition of the fundamental
rectitude of "the whole nature of man."^ To such allegations
as that, " in those early days there seems no trace of a moral
nature in the Greeks,"^ Bunsen's reply is sufficient, that the
whole scope and object of the Epos is ethical — the exhibition
of the Divine Nemesis in the destruction of Troy as a punish-
ment for crime.* " The wrong committed by Paris must be
atoned for ; therefore Troy is doomed to its fate, as Hector
himself knows and believes."^ "The Homeric use of the word
Nemesis," as Bunsen elsewhere remarks,^ " is alone sufficient
to prove its purely moral origin. Neither in the Iliad nor in
the Odyssey is Nemesis a deity, or even a personified moral
quality. The word is there, in the sense in which it lived in
the spontaneous feelings and speech of the Ionic people. It

^ Grant's Aristotle, vol. i. p, 51. ^ Blackie's Homer.

^ Donaldson's History of Christian Literature, vol. ii. , introduction.
* God in History, vol. i. p. 23, and vol. ii. , j^nssim.
5 Ih., vol. ii. p. 101. « lb., vol. ii. p. 63.

AVITH EEFERENCE TO HUMAN AUTONOMY. 137

signifies that moral indignation which we feel at the sight of
sinful presumption setting itself up against gods and men ;
the shrinking, or awe, associated w4th shame ; in other words,
the verdict of the inward judge, and the recognition that the
universal conscience is man's true consciousness of God and
the highest earthly tribunal — the veritable oracle of God."

A very considerable step in advance — though in many
respects a step downwards — is made when we pass from
Homer to Hesiod. The poet tells us that we are already in
the iron age. Contemplation, the child of experience, has
been begotten, and whatever may have been the relation of
the two eras in point of time, about which there was much
difference of opinion even in antiquity, in point of thought it
is plain that we are in the gnomic period. N"ow a gnome
(yv(o/M77 or vTToOrjK'q) is a Statement not only of an intuitive
belief — like that in Nemesis — but of an intuitive feeling of
the method by whicli tliis belief was reached. Of the gnome,
as tlius defined, there are many examples in Hesiod, which
Aristotle was fond of quoting, and with which you arc
probably familiar. But the most famous instance of the
gnome, and that which is most important for our purposes,
is the yvCiOi (TfuvTov, which was inscri])ed on the temple of
Apollo at iJelphi. We found it in India ^ and in ("hina;- and
as it was of unknown aiitir[uity in Greece, and its authorshi])
was unknown, unless we are to regard it Jis the utterance
of an instinct common to mankind, wliicli I believe to be the
true conception of it, it may with considerable probability b(;
viewed, like the language in which it was couched, as an heir-

* Ante, i»i». 08-110. -• .//'/', I«. \'2'2.

138 I^^QUIRY INTO THE HISTORY OF OPINION

loom which the earliest settlers brought from then- former
abodes, arid which the oracle as a pious custodier of patriarchal
wisdom had preserved. If the proverb, " Count not your
chickens before they be hatched," and La Fontaine's fable
of Perrette the milkmaid, have been traced to an Eastern
home,-^ why should not the same process be possible in the
case of a maxim which must have been suggested by the first
dawning of consciousness ? This view of the historical origin
of this and other gnomic sayings derives some confirmation
from the fact that they were transmitted chiefly through the
rural classes — always the most faithful guardians of tradition,
and whose occupations on the slopes of Mount Parnassus
resembled those of their remote forefathers in Upper Asia.
Hesiod himself, in contrast to Homer, has been called " the
poet of the plough ; " and the strong resemblance between his
verses and those of the Pythia — in one instance their absolute
identity — is well known. But be this as it may, the yvC)$L
o-eavTov, as I liave said, was written on the human heart
before it was written on the temple of Apollo ; and the value
of the maxim, as indicating a radical belief in the self-
revealing and self-legislating character of humanity, is equally
great whether we regard it, in the form in which we have
received it, as having thus retained its possession of the
Ayran mind, or as having a second time descended from
heaven, and forced itself on the acceptance of the national
consciousness of Greece.

But the yvo)OL (TcavTov is by no means the only instance of
a gnome which possessed absolute scientific value. The MrjSev

^ Chq)s, vol. iv. p. 145.

WITH REFERENCE TO HUMAN AUTONOMY. 139

ayav of SoloD, and the MeVpov apicTTov of Cleobulus, in their
primary aspects, were neitlier more nor less than exhortations
not to outrage " the modesty of nature," by disturbing the
harmony of her laws. I need not tell you how fruitful
they became in the IsUTpiorr]^ of Plato and the Meo-orr;? of
Aristotle ; ^ nor insist on the manner in which they link
the two periods together. I shall mention only one other
instance of the gnome. It is the saying of Simonides that
justice consists in " paying one's debts." " It is easy," says
Sir Alexander Grant, " to show this definition inadequate, and
yet it was a beginning." To me it seems that it was one
of those beginnings which include the end ; for, fully compre-
hended, it embraces the wdiole theory of justice, and it holds
in gremio the ultimate doctrine of the StKatov, just as the
itiq^kv ayai/ does that of the ix€(T6Tyj<;, and is thus unconsciously
scientific in the highest degree. To the members of my own
profession I need not point out its analogy with the suiom
cuique trihuere of Ulpian ; and one of the objects of tliis work
will be to show how entirely our whole duty, not only to
our neighbours, but to God and to ourselves, is included in
" paying our debts."

It is in these two doctrines, indeed (the /xcfror?/? and the
SiKatov), more than in anytliing else, that tlie allegiance of the
Socratic etliics to the central doctrine of humanity, and, as
we shall see hereafter, their fruitfulness for scientific juris-
prudence, mainly consist. Hut these, again, are the central

* See Sir A. 0 rant's intcrcHting and valuable diHH(!rtation on ** tlio Doctrine of
Ihn Mf;ftn," ArvtlM.f vol. i. p. 201 rt tieq., and noniparo with the (.'onfucian " Doc-
trine of the Mean," translated hy Dr I>'KK''. f^'"' 'ihove referred to, p. I'jl.

140 INQUIRY INTO THE HISTORY OF OPINION

doctrines of the Socratic ethics. Amidst all the divergences
which Plato and Aristotle, the two greatest expositors of
the ethical problem, exhibit in the points of view from
which they regard it, they are at one in regarding that
problem itself as consisting in the realization of the har-
mony which nature demands as the condition of the free
action of her various energies, and the full gratification of
her various impulses ; and in holding that this is to be
accomplished by recognizing the measure of power which
slie herself has meted out to each.

If our previous remarks ^ are well founded, the attempt to
establish a distinction between Plato and Aristotle, and to lay
claim to the Stagyrite as " a judicious utilitarian," ^ on the
ground that he attached greater importance than Plato to
tlie teaching of external observation, is a failure ; for the
distinction, when admitted, proves not different objects of
search, but different methods of searching. Cicero asserts
expressly,^ that, as regards the doctrine here in question,
Aristotle's view of nature did not differ from that of the other
members of the Socratic school ; and that, like Socrates —
execrare eum solcbat qui primus ntilitatcm a naturd sejunxisset. *
It would be easy to cite passages from Aristotle in confirma-
tion of Cicero's view. The leading discussion is contained in
the last four chapters of the Seventh Book of the Nicomacliean
Ethics. Several passages are not free from difficulty, but the
drift of the whole plainly enough is that nature has in it
something divine {-jravTa yap </»va-€t tx^L TL Oelov), and that happi-

1 Ante, p. 49. 2 bill's Liberty, p. 46.

3 De Fin., iv. 24. ^ De Divinationc, L. i. § 31.

WITH PREFERENCE TO HUMAN AUTONOMY. 141

ness consists in activity in accordance with nature. For the
rest I may refer to Ethic. Nic, i. ix. 5, x. ii. 4; and Politic. ^
i. i. 8, where he says expressly, r] Se </)vo-ts reAos Io-tlv; i. ii. 10,
&c. Conformity or nonconformity to nature, throughout the
Politics, is consistently adopted as the test of the qualities
of different forms of government. Take, for example, such
a passage as that at iii. xi. 10. Education he understands in
its literal sense of a drawing out of the natural qualities of
the individual, vii. xv.^

Nor does any substantial divergence arise from the fact of
Aristotle's " being distinguished among the ancients," as Mr
Leckie has said, " for the emphasis with which he dwelt
upon the utility of virtue," ^ for this merely proves the
more hopeful view wliich he took of the affairs of this
world, that he believed not only in the identity of virtue
and happiness in the abstract, but in the possibility of
realizing this identity, in a great measure, in human life.
That Aristotle was an eudsemonist is admitted on all hands,
but so was Socrates before him, and the Christian fathers
and schoolmen ^ after liim ; and it no more follows there-
from that lie was a liedonist like Bentham, tlian tliat, like
Mr Mill, he believed in a method of investigating mental
phenomena wliicli excluded a direct appeal to the ])hcnomeiia
themselves.

' In tlioKc fiuoUtioiiH and rofcrcnncH I Imvo used the Tauclinil/ edition of 1831.

' Ah Xfi AriHtotlo'H conc<;i>tiun of the n.liition betwuon tlie xp^'/'^'A*"*' ""d tho
naX6v there is an inHtructivc pa8«a^o, rolit. iv. i., see also vii. viii. ; and Thonins
A<[iiinnA, Summ/i, rriina fiecundtK, fjuics. xc, art. ii.

' Many excellent ohHorvationH on tliis Huhjcrt will In- foiind in Tntfi'ssor
Hlackiu'M Four riuinat of Afrn-alif.

142 INQUIRY INTO THE HISTORY OF OPINION

More respect is due to Zeller's objection that, in the incom-
plete condition in which Socrates himself left his ethical
theory, it furnished no external test of the character of the
good, and had thus " the appearance of being founded on
utility."^ " Just as his speculative philosophy stopped with the
general requirement that knowledge belonged to conceptions
only, so his practical philosophy stopped with the indefinite
postulate that actions must correspond to their conceptions.
But how, with so vague a principle, can it be determined what
actions are moral ? " ^ The answer, I think, is that human
life was viewed by Socrates as an action, which, like other
actions, must correspond with its conception. The conception
of human life, or, in other words, the idea of humanity, was
thus the Socratic, as it had always been the natural human,
and afterwards became in a conscious manner ^ both the
Aristotelian and the Stoical standard of morality. Between
such a theory, and the doctrine of the identity of the g9od and
the useful, which Xenophon ascribes to Socrates, and which I
believe him to have held, there is, as it -appears to me, no
inconsistency whatever.

In his essay on " the disagreement between the ethical
systems of Kant and Aristotle," ■* Professor Trendelenburg has
discussed, with great acuteness, the relation in which Aris-
totle's system stands to all those systems, whether ancient
or modern, in which happiness, in the sense of immediate
gratification, is made at once the rule and the object of life.
Kant does not mention Aristotle expressly, and Professor

^ Socrates and the Socratic Schools, p. 129. ^ /&., p, 123.

^ Zeller, ut sup., p. 128. ■* Vermischte Abhandhmgen, vol. iii.

WITH REFERENCE TO HUMAN AUTONOMY. 143

Trendelenburg says that he knew him chiefly at second hand ;
but the ground on which he is supposed to have insinuated
the charcre of hedonism was that Aristotle sousjht in human
nature both the source of ethical determination and the object
of ethical endeavour. " Know thyself, in order that thou
mayest become thyself." In answer to this allegation, Tren-
delenbui'g has shown that the absolutely universal moral law,
for which Kant contends {das Allgemeine), suffers no disparage-
ment by being sought by man where alone it is discoverable
by him — viz., in his own nature ; or by being realized, as alone
he can realize it — viz., in the development of that nature itself.
It is the old Aryan postulate of the existence of a divine
element in man — claiming, and from his normal and general
nature obtaining, a willing obedience, and rewarding it with
happiness — which gives its ethical character to Aristotle's
eudsemonism ; whilst, at the same time, it prevents his con-
ception of virtue from assuming that hard and repulsive
character which is common with so many moralists and tlieo-
lo^ians, and which even Kant has communicated to it. Of
the consequences of thus thrusting human feeling aside and
insisting on an absolute separation of the agreeable from tlie
L'ood, Trendelenburf( lias <^aven a remarkable instance in Kant
liimself Driven by the stern necessities of his system, ho
found liimself compelled to limit the idea of duty to acts " un-
willingly ^ performed," thus giving up the possibility of even
an approximation to the realization of that very ethical " good-
will," of which on other grounds he is justly regarded as the

' "Die Pflirht int ♦•inc X''»tlii;<unf< zu i'inf!Jii inufrrn ^<iii»miiii< mn Zwcck."
— Metaphynnrhc AnfaiKiHtp-iinitr ihr TiKiriiillrhrr, ix. p. 'J.'JO.

144 INQUIRY INTO THE HISTORY OF OPINION

apostle. There can be no " goodwill " if evevything that is
good must be done unwillingly.

It is in the integrity, the wholeness, and consequent sanity
of the Socratic and Aristotelian ethics, and not in their exhaus-
tive treatment of special questions, that their enduring value-
one might almost say their novelty even for the modern world
—consists. There and in the Bible alone are we consistently
taught the " solidarity " of the divine and the human, of our
highest and our lowest interests and enjoyments, and the
consequent possibility of making " the best of both worlds,"
or rather the impossibility of taking what God intended for
„s, and what is really our own, out of either " world," apart
from the other. When the distinction between eudtemonism as
the harmonious gratification of our nature as a whole, including
even the much-maligned " flesh," and hedonism as the exces-
sive and disproportionate gratification of a portion of it, is as
clearly maintained as Aristotle has maintained it, it appears
to us that eudcemonism admits of being defended on somewhat
higher grounds than Professor Trendelenburg, or even Professor
Brackie has taken up. The coincidence of happiness and
virtue, wherever happiness and virtue are really positive
quantities, and not mere self-destructive negations, is not only
possible but necessary. Happiness not in accordance with
virtue is more than counterbalanced by its opposite, even in
this world ; and virtue which is not " its own reward "—i. e.,
which is not a source of subjective happiness, whatever its
objective value may be— has no subjective value at all. " The
Lord loveth a cheerful giver;" and the spirit which He
demands in giving a mite must govern the acceptance of the

WITH REFEREXCE TO HUMAN AUTONOMY. 145

martyr's crown. Trendelenburg, who is a consistent Aristote-
lian, has elsewhere shown ^ that vicious gratification consists,
not in the stratification even of individual nature as a whole —
for every sane human being is an epitome of humanity — and
not in the harmonious gratification of all our propensities, in-
cluding the lowest, — but in the rebellion and self-assertion of a
part of our individual nature against the whole of it. It is a
formidable risk to offer any opinion with reference to Aristotle
which appears to be at variance with that presented in any
portion of Professor Trendelenburg's writings, even when one
seems to find encouragement from them elsewhere. But on
this point, if we take the theory of the fiea-orrjq alone, viewed
as a doctrine of harmony and not of limitation, in the light in
which Sir Alexander Grant has presented it,^ and in which it
was understood by Confucius long before Aristotle was born,
it seems sufficient to warrant the conclusion that Aristotle
recognized the necessary coincidence of virtue, not with the
dicta of any exceptional faculty, but with the normal impulses
of individual nature as a wliole.

(h) Rome. — In so far as Stoicism is entitled to the char-
acter of a speculative doctrine, it belongs to Greece. But
wlieu we regard it in tlie aspect in which it was really
important, that, namely, of an active faith — almost of a
it'ligion — our eyes instinctively turn to Kome. Its value
to humanity, in this point of view, has been excellently
brought out by Mr Leckie, and a])pears to have beiMi
strangely overlooked by Bunsen, with whose idealistic liabils
of thought it iHj doubt jarrc'd.

> y.ilurrrrhl Si-c infra, nip, vi. - f^f tnjnn.

146 INQUIRY INTO THE HISTORY OF OPINION

The Stoics were pre-eminently the custodiers and expositors
of the severer ethical teaching of the Socratic school. By
them the doctrine of human autonomy was formulated into
practical rules of life, in the three directions of the Individual,
the Nation, and the Community of Nations.

The more closely the history of ancient society is investi-
gated, the more clearly does it appear that the Stoics were the
Parsons-^ of paganism, as the Cynics have been said to be the
monks of Stoicism. Notwithstanding the popularity of Epi-
cureanism, and the many points of resemblance to Stoicism
which it exhibited,^ its professors never approached to the
influence which the Stoical doctors enjoyed. And the reason
was a very obvious one. So long as the path of life lies
through the green pastures and by the still waters of self-
indulgence, the ordinary instincts even of very ordinary men
will enable them to find it and to follow it. But when the
rugged steeps of self-sacrifice have to be surmounted, or the
rude tempests of passion to be braved, loftier principles of
action become requisite, and those who can call them forth are
eagerly longed for. This task the Stoics undertook. Unlike
the Epicureans, who shrank from the sterner realities of life,
they professed to be friends in need, and pilots in the storm;
and, as a necessary consequence, an unusual veneration at-
tached to their persons, and an unusual importance to their
maxims. It is not wonderful that men so situated should

^ As to the idea of the Parson, or Persona, see Coleridge's Church and State,
c. vi. p. 56, Pickering's ed.

2 Even on tlie point which concerns us here, "the divine origin of the human
race," they were at one with the Stoics. Zeller's Stoics and Epicureans,
pp. 431-477.

WITH REFERE^^CE TO HUMAN AUTONOMY. 147

have been credited with the invention of the doctrines which
they inculcated ; and we find, accordingly, that not only the
general doctrine of the rectitude of the fundamental instincts
of humanity, but still more its embodiment in the famous

precept to " follow nature " (o/xoXoyov/xeVo)? rfj cfyva-et ^yjv} con-

venienter congruenterque naturae vivere), have been popularly
ascribed to the Stoics. To the merit of calling attention to
its practical application in many new directions, and, above all,
in that of positive law, the Stoics are largely entitled ; but to
tlie character of discoverers, either in ethics or in natural law,
tliere is no reason to believe that the Stoics had higher chaims
than the leaders of the Corn Law League might liave set up
to that of discoverers in political economy. Cicero, who was
a direct inheritor of tlieir traditions,^ and was by no means
disposed to be unfair to them, asserts not only that the theo-
retical doctrine in question was common to the whole Socratic
school,'^ but fixes on the individual academic to wliom the
"^toics were indebted for the practical maxim. In the
Academic Questions^ he asserts tliat both Zeno and Arcesilas
had been diligent hearers of Polemo. In the Dc Finihm •'^ lie
repeats the same statement, and, speaking of the Stoics gen-
erally, he adds, qui de rchvji Louis et mails scritircnl, ra qua:

^ Tljo T^ <pviT«t is said to have boon an addition liy Cloanthos to the oii<,'inal
dogrna of Zc-no, If so, not Zcno but Cloantlies would be entitled to the char-
acter of the father of the Stoioal ethics, for eonfonnity must mean conformity with
•omethinj?. The byioKoyovnivws alone would have been no more definito a guide
than our own "utility;" it was the T17 <pv<T(i that ^ave it point. Hiit thn
thought, if not the word, was, as we have sf-on, far old(;r than either of tluMu.

' There is an unbroken list of the Stoical do<tors from Chrysii>i>us to I'osidonius,
and PosidoniiM was master to Cicero. — Grant, p. 273.

' Arrul. Qufta., pfiMtfim ; Nat. Drar, i. 7 ; />'■ Fin., iii. and iv.

* IV)ok I. c. 9. » i'.n'.k IV. c. 22.

148 INQUIRY INTO THE HISTORY OF OPINION

ah hoc rolcmonc Zcno cognoverat, licaving previously ^ asserted
that what they did learn was secundum naturmi vivere. The
only two passages ascribed to Polemo himself, which have
been preserved to us, fully bear out Cicero's statement as to
the nature of his teaching.^

There is only one other point of historical importance in
connection with Cicero's views to which I wish to call the
attention of my readers — viz., the clear conception which he
himself had of the fact that the end of life, and the method
of its attainment, are equally revealed to us by nature ; and
that, consequently, the modified Stoicism which he taught
was entitled to the character of science, both on teleologi-
cal and methodical grounds. In the Academic Questions,^
after mentioning the tripartite division of philosophy into
ethics, physiology, and logic, as common to the Peripatetics
and Academics, and derived by both from Plato, he thus
expresses himself : " Ac primam illam partem, bene vivendi, a
natura petebant, eique parendum esse dicebant (the rule of
life), neque uUa alia in re, nisi in natura, quserendum esse
illud summum bonum, quo omnia ref erentur " (the end).^
Now utility may yield a method, but it can never yield an end.
The unspeculative, and, as a necessary consequence, the

A Book IV. c. 6.

'^ See Smith's Did., voce Polemon, and Madvig's De Finibus, p. 499.

3 L. i. c. 5.

"^ There has been a tendency in Germany to disparage Cicero ; but Hegelianism,
at least in the person of its founder, cannot be charged with it. Hegel was fully
alive to the scientific character of Cicero's method, and the advantage which it
had over that of Grotius, Philosophy of History, Bohn's trans., p. 459. That
Cicero took much of his information at second hand, and that, from the haste
with which his treatises were compiled, he allowed himself to be betrayed into

WITH REFEEEXCE TO HUMAN AUTONOMY. 149

one-sided character of the Stoics, which was so marked as to
point them out as exceptional characters amongst their original
countrymen, and which no doubt recommended them to the
narrower and more practical mind of Eome, has been often
remarked ; but I am not aware that it was ever accounted for
till Sir Alexander Grant pointed out the singular fact that,
from the places of their birth, we may infer, with high prob-
ability, that they were mostly of Shemitic blood.^ They
were wanting in the subtlety which many Jews have exhibited.
We shall seek in vain for a Spinoza or a Neander amongst
them. Like the Sliemites in general, they were intense and
unsparing in the application of a narrow logic ; but, as
their premises did not rest on a sufficient analysis of in-
ternal phenomena, they ultimately fell away from the spirit
of their own rule more egregiously than even their opponents.
A departure from nature is the rej)roach wliich Cicero con-
tinually brings against them ; ^ and there can be little doubt
that the Cynic who lived in a tub, or the Stoic who com-
mitted suicide, outraged nature even more flagrantly than
the Cyrenaic or the Epicurean who sipped nectar on a bed
of roses, and was true at least to his lower instincts.

It is their betrayal of this, tlieir own principle, too, as we

inconsistent expressions, is, I fwir, unquestionable. Tlie expression Prima
ruduTiz (tA irpctfTo Ktxrh. <pvtni^), wlienccsoever it may liave come (Madvig, ut supra,
EmirmJt, iv. p. 815), is certainly unfortunate; and sj)ecially so if wo forget, as
we are apt to do, that Imtli irpwrov and jrrimus often nif-an "first in rank and
imi»ortance," rather than first in a«:tual time. Trohahly uUivm nahirn: would
liavc iKjtter conveyed, to most of us, what was no doubt Cicero's conception of ilm
fundamental, ra/liral impulses, which he accepted as the riil<' of lif<'.

' ArisM., vol. i. p. 246.

' Dc Fin,., iv. c. 11 and U> ; I'r<> Murcna, c. 29, 30, 31.

150 INQUIRY INTO THE HISTORY OF OPINION

sliall sec hereafter (cap. vi.), wliicli gives point to the polemic
which Sir Alexander Grant has directed against Bishop
Butler's famous " apologia " for Stoicism. In so far as Sir
Alexander's attack is directed against the maxim " follow
nature," in itself — i.e., in its wider and Socratic as opposed
to its narrower and Stoical sense — it is an attack on science
itself ; and I Avish that the learned Principal had marked the
two points of view more clearly than he has done. Johnson's
whimsical chapter in Basselas, on " the happiness of a life
led according to nature/' has often been ignorantly regarded
as a reductio ad ahsurdum of the Stoical maxim. But when
the Prince of Abyssinia demanded of the philosopher that he
should tell him what nature was, he only reminded him of
the task w^hich his profession as a philosopher imposed on
him. The vagueness of the philosopher's response proves, it is
true, how small was the advance which moral and political
science had made in England in Dr Johnson's time, or rather
how imperfect was Dr Johnson's own knowledge of it — for
we must not forget that he was the contemporary and per-
sonal friend of Edmund Burke. But what should we think
of a chemist or a physiologist who should decline the chal-
lenge to fight on the field of nature, in our day ? Nature
may be a mistress who is not wooed with equal facility by
all her suitors ; but her wooing, in all departments alike, is
the condition of science, sine qud non.

I shall have occasion to point out hereafter^ the imperfec-
tions of the Socratic doctrine in the aspect in which the Stoics
presented it. But inasmuch as the practical recognition of

^ Cap. vi.

WITH REFERENCE TO HUMAN AUTONOMY. 151

a doctrine by mankind, tlieir acting consistently as if they
believed it, is a more unequivocal proof of tlieir belief than
any expression of opinion, either direct or indirect, it may not
be unimportant to this branch of the discussion that we
should dwell for a little on the vast acceptance which Stoicism
experienced, and the influence which it exercised. With the
single exception of Christianity — from which, in the point we
are considering, it does not differ^ — no form of belief ever
took possession of so great a number of Europeans, or held it
so long ; and though it was not particularly fortunate in its
expositors, or distinguished by the subtilty, or even the sound-
ness, of its analysis of human nature in detail, it moulded
human institutions and affected human destiny to a greater
extent than all the other philosophical systems either of the
ancient or modern world. In Greece the objections which
presented themselves to the physical and metaphysical specu-
lations on which the Stoics pretended to found their ethical
system, seriously affected its influence ; but in Eome these
were not understood, and if they had been understood would
not have been heeded. Accordingly, during the youth and
vigfiur of the Republic, it ruled lioman life unconsciously
before it had any theoretical footing at all ; during the period
of bloom it lield its own against Epicureanism amongst the
lietter spirits ; and when finally, as a rule of citizen life, it
experienced the relaxing and deadening influences of tlic
empire, it kept alive, as the prevalent theoretical opinion, the
idea f>f virtue as the chief good, ;ind tlie aspiration after lil)erty
within the sphere of individuality, nnd the hhvd of universal

' In/ru, \>. K.l .f acq.

152 INQTIUY INTO THE HISTOilY OF OPINION

cluirity and cosmopolitan benevolence, as the means to its
attainment.^ Nor ought it to be forgotten that when social
corruption and degeneracy had reached their culminating point,
and the world of antiquity was about to expire, the last
words which she addressed to her successor, the advice which
guided the spirit of the middle age and moulded its institu-
tions— its asceticism, its chivalry, and even its romance —
consisted in the inculcation of Stoicism. The famous work of
Boethius, like the system which it taught, owed very little
either to the abilities of its author, or to the speculative
value of its subject-matter ; to us, it is a disappointing book ;
and yet, for nearly a thousand years, it enjoyed a reputation
such as perhaps never fell to the lot of any other confessedly
human production. Composed in his prison at Pavia, where he
was confined for the crime of having " hoped for the restoration
of Ptoman liberty," by him whom Gibbon has characterised as
" the last of the Eomans whom Cato or Tully would have
acknowledged for their countryman," ^ it formed one of the
most important connecting links between the classical and the
Christian world ; and, as regards the history of our own Eng-
lish civilization, it is a fact of no insignificant importance that
the task of presenting it to our countrymen in the vernacular
speech was undertaken, successively, by Alfred, by Chaucer,
and Ijy Queen Elizabeth ! Whether Boethius was a Christian
or a pagan is still a subject of dispute. His name, like that
of Buddha,^ was enrolled amongst Catholic saints and martyrs ;

1 How much nobler than tlio idea of the 2>oint d'honneur which M. Pre vest

Paradol said was the only remaining conception of virtue in the mind of a
Frenchman.

- vii. c. xxix. p. 45. a Ante, p. 107.

WITH PtEFEKEXCE TO HUMAX AUTONOMY. 153

but the theological works ascribed to him are probably the
work of another, and there is, at any rate, no evidence of their
authenticity at all sufficient to counterbalance the fact that
Christianity is never once mentioned in the Consolatio Fhilo-
sopliice, the topics discussed being such as to render its acci-
dental omission almost impossible. Like many of the more
serious men of his time, and even like Epictetus and the
Antonines of a former time, Boethius probably hovered on the
confines of both faiths. But, in his relation to the one and to
the other, there would seem to have been this difference, that,
whilst he may have been unconsciously affected by the Chris-
tian elements that pervaded the moral atmosphere which he
breathed, he was a direct and conscious inheritor of the Ethics
of the Porch. But the work of Boethius, and the innumerable
commentaries, translations, and imitations which it produced
— e.g., Chaucer's Testament of Love, and the Kings Com-
plaint— were by no means the only reproductions of degen-
erate Stoicism that fed the spirit of the middle ages. The
meditations of Marcus Aurelius were never forgotten ; and the
Disticlia de Moribus, or Catechism of Morals, ascribed to a
certain Dionysius Cato, of whom nobody has ever been able to
discover anytliing, was extensively used as a scliool-book from
the age of Alcuin downwards. Tt is frequently f[uoted by
Chaucer, and no wonder ; for so popular was it about his time,
that rnorc than tliirty editions were published in the lifteentli
century.^ It was in imitation of these exj^iring efforts of
Stoicism tliat the S^umvia of tlie sclioolmen and casuists began

' S<;c M« rivjiNj'M Iif/7iw, IohI vol.; SUiilcy'H Builcrn Churchy p. *2lI8, and liis
arliili- oil IlorlliiitM ill Sinitir« IHdioii/n i/.

15^ INQUIRY INTO THE HISTORY OF OPINION

to be composed — of wliicli the Summa of Thomas Aquinas
is the noblest specimen ; and they in their turn gave rise to
tlie Spanish Theological Jurists — Dominicans and Jesuits —
who were the predecessors of Grotius, Soto, and Suarez of
Grenada.^

The substantial accordance of the Socratic ethics, even in
the peculiarly exaggerated and one - sided form of Eoman
Stoicism, with the old revelation of nature on the one hand,
and the new revelation of the Gospel on the other, accounts
for the fact of its having survived the marvellous and mirac-
ulous revolution of opinion in which polytheism perished.
Chronologically, as well as philosophically, Socraticism, or
rather that universally human doctrine of which Socrates was
the prophet to the western branch of the Aryan race, forms,
as I have said, the connecting link between the ancient and
the modern world. To trace the various forms in which this
connection manifested itself belongs to, or rather constitutes,
the history of ethics and jurisprudence, and all that we can
here attempt is to indicatr a few additional points of view
wdiich specially claim attc^iition.

1. The Roman Law. — The civil law of Eome, which, during
the abode of our Lord on earth, received His constant tacit
and occasionally His express approval, and which the Christian
accepted from the heathen world, makes no claim to direct
inspiration, but is professedly founded on the revelation
through nature, and the consequent assumption of human
autonomy.

Its general character is post-classical : in many respects it

1 Ivfra, p. 165 ct scq.

WITH EEFEREXCE TO HUMAN xlUTONOMY. 155

is national : and, in the form in Avhicli we know it best, it
comes to us from Christian times ; and yet, in the respect I
liave mentioned, it entirely falls in with the central tendency
of Hellenic and Indo-Germanic thought. The great practical
people of antiquity had the wisdom and happiness to repudiate
the sensationalism and empiricism which constitute the re-
proach of our coimtry and our time, and which hitherto have
prevented the jurisprudence of England from attaining the
character of a science. The foundations of the Eoman law
were laid deep in the study of nature, both in its subjective
and objective manifestations. Like the Christian Apologists
and Fathers, the Eoman jurists accepted the Socratic ethics,
chiefly in the form in which the Stoical doctors presented
them. The two centres around which their whole system of
rights and obligations grouped themselves were the persona — i.e.,
the rational and responsible cffo and non ego on the one hand
— and the res, the irrational and irresponsible non ego, animate
and inanimate, on the other. Of the logical rigour with which
the riglits of the persona were guarded, we have a remarkable
illustration in the fact, that tlie Roman theory of slavery
lested, not on a denial of liberty to the person, but of per-
.sonality to the slave. The slave was regarded not as a
perm/iid, Ijut a.s a res. I>y nature he was admittedly a per-
sona, a free man, and as such incapable of belonging to an-
otlier ; but, by a fiction of law, he was declared a res, in ordei
that, like an ox, or an ass, or a movable chattel, he might bo
ra])ablo of being lield as property. The foregone concluHi')n
in favour of slavery was tlius readied without sacrificing the
logic of the civil law. A false pnaniss was devised which

156 INQUIRY INTO THE HlSTOrvY OF OPINION

contradicted nature, and separated law from fact. It was by
a similar expedient, as we shall see hereafter, that Hobbes
saved the logic of his political system,^ when, with contemp-
tuous cynicism, he threw the fiction of absolute equality, like
an apple of Sodom, into the midst of mankind. The jurist
and the politician were alike accurate in their estimate of
human intelligence. Both of them knew how much commoner
is the gift of reasoning than of reason, that fictions to many
are as good as facts, and that for one man who can discover
a false premiss, there are fifty who can point out a false con-
clusion. The fiction of the one justified slavery for ages to
the Eoman world ; the fiction of the other still justifies
democratic imperialism to many in our own day. In one
respect, however, they differed ; for it was the jurist alone
who, in virtue of his Stoical training, had the grace to
acknowledge his error, and to admit that his doctrine was
contra naturamP' It is wonderful that Aristotle, having got
hold of the principle of relative equality,^ did not apply it
to the subject of slavery, for, as Professor Trendelenburg has
truly remarked, his conclusion in favour of slavery ^ is not
warranted by his assumption that some men are by nature
more suited for servants than for masters.^ That is an assump-
tion which there is every reason to believe is warranted by
nature, and in dealing with inferior races, it might very well
have been held to justify servitude, in the sense of perpetual
pupillarity. Whether Aristotle intended to push it greatly

^ Infra, Book II. chap, iii,

2 Dirj., 1. 1. 1, § 4 {Ulp.) ; 1. 1. 5, pr. ; InsL, 1. 3. 2.

3 Infra, Book II. chap. iv. ^ Naturrecht, i. c. 2. ^ Politic, i. c. 2.

WITH REFERENCE TO HUMAN AUTONOMY. 157

beyond that point is rendered somewhat doubtful by a passage
in the First Book of the (Economics. This Book, at all events,
I believe is acknowledged to be his, and in it he argues that
liberty should be held out to the slave as an ultimate object,
on grounds not only of expediency but of justice.-^

The recognition of the legitimacy of infanticide by Aristotle,^
and in the Twelve Tables, is a stronger instance than even
that of slavery, of want of appreciation by antiquity of the
value of the persona, the sacredness of humanity as such. It
must ever redound to the glory of the Stoics that they were
the first explicitly to proclaim the unity of the human race,
whilst they avoided the sin and folly of laying claim to an
equality which God has denied. It was this latter error which
in the East degraded the natural distinction of classes into the
unnatural distinction of castes ; which, in classical times, and
in the dealings of modern nations with the inferior races, has
aggravated servitude into slavery ; and which, in our own day,
by denying the rights of private property, has invaded the
sanctity of the 'persona in the name of liberty, and threatens
to arrest the progress of God's kingdom by repudiating tlie
meaas which He has appointed.

2. International Law. — International jurviprudence owed its
origin to those vjJio ivere the special expositors of the doctrine of
human autonomy in antiquity^ and has ahvays rested on the
assumption of its truth.

The advantages of the rational and p]iilos()])]ii(al conception

' xM ^* *'*^ t/Aoi itpiaOai iruffiy. AiKatuu yap Kal (Tvyi<p^pov r^v iKtvOipiav
Kt'iaOai i.O\i>v. Bo</AoKra( fiip woytly, Urav tJ iO\oy Kal i xf"^*'"* i)pia^ivo%. — i. c. V.
* Politic., vii. c. 10.

158 INQUIRY INTO THE HISTORY OF OPINION

which the Eomans formed of the sources of jurisprudence were
not confined to the development of a municipal system which,
after the hipse of ages, still illuminates the path of modern
legislation. The idea of the "persona was felt to contain the
germs of that cosmopolitan system, the realization of which
the ancient world was not privileged to behold, and which we
ourselves, even now, have seen but in part. The sentiment
of a brotherhood of mankind is one of those innate conceptions
which belong to humanity as such. Were its absence con-
ceivable from any sane mind, we should be compelled to relin-
quish our doctrine of the necessary recognition of the rights
of the non ego, and to accept Hobbes's dreary conclusion of a
natural state of war.^ It is not surprising, then, that oriental
scholars should have found it in Buddha and Confucius, that
Bunsen should have traced it in Homer,^ or that he should
maintain that it " underlies all the Mosaic superstructure." ^
Like all that was true in Stoicism, moreover, it had its roots
in the more catholic creed of Socrates. Still, in this direction
especially, the Stoics surpassed their master. It is impossible
not to see in Zeno's universal state, and in the cosmopolitan
notions of the Stoics as a school, a clearer presentiment than
any their greater predecessors possessed of the possibility of a
system of international law ; and as regards the Pioman jurists,

^ Infra, Book II. chap. iii. ^ God in Ilist., vol. ii. p. 104.

' Ih.y vol. i. p. 9.5. There can be no doubt that the idea of the unity of mankind
is involved in the doctrine of man's participation in the divinity of one God. But
Bunsen acknowledges that any special hold on it which the Jews may have had
in this direction was lost when the Jewish nation "set itself up, in contradis-
tinction to mankind at large, as the elect people of God," and that it did not
again obtain prominence till the coming of Christ.

WITH REFEPvEXCE TO HUMAN AUTONOMY. 159

it is instructive to remember that it was through them, as
apostles of the doctrine of personality, that the seed which
the Stoics had sown ultimately germinated. Grotius was not
himself specially a civilian, but he was born in a family and
bred in a school saturated to the core with the doctrines of
the civil law ; and in a family and school, moreover, in which
these doctrines were sedulously studied in connection with
Greek philosophy. Of his more eminent successors, including
Lord Stowell, similar assertions might be made. In this
country we have few names that deserve mention, either in
scientific jurisprudence or in international law. But many of
our municipal lawyers have been great ; and the greatest of
them — Lord Mansfield and our own Lord Stair — have freely
acknowledged their obligations to these heathen prophets.
The utterance of Lord Mansfield, with reference to Socrates,
is very memorable. " I will take the liberty to call him the
great lawyer of antiquity, since the first principles of all law
are derived from his philosopliy." ^

(c) Alexandria. — The central doctrine of the Socratic etliics
7iiet witli acceptance at Alexandria, even from persons wlio
were not of pure Aryan blood.

This was a direction in which specidative thought assumed
a .subtler and deeper aspect than iu tlie lioman world. At
Alexandria tlie traditional doctrines of the Socratic school as
to the sources of ethical science, in place of being limited and
rendered more definite by licing viewed exclusively as a reve-
hitifjii in and through humanity, ln;ld by the characteriHtics
to which Plato had given partial recognition, of :i revelation
' \jor^ CamY^haWi^ Lives uf Ihr. Jiisl iccM, vol. ii. |>. I'.'.il.

160 INQUIRY INTO THE HISTORY OF OPINION

to humanity. But though in laying claim to illumination,
Neo-Platonism offered meeting-points not only with the old
Shemitic traditions, but ultimately with Christianity, this side
of its teaching manifested itself in features ^ so exaggerated,
and often so entirely sensuous, as to alienate the professors of
a pure and spiritual faith. It was the common ground on
which their ethical systems rested which enabled the Christian
Fathers to join hands with the saner teachers of the old phil-
osophy, and to perceive the identity of object, and even in
many respects the analogy of method, which bound together
all genuine and honest seekers after truth. Even the learned
Jews, who contributed so characteristic an element to the in-
tellectual life of Alexandria, and formed, as it were, a con-
necting link between Christians and heathens, accepted the
common anthropology of nature, and in them it yielded the
same practical results. Professor Trendelenburg, in his Natiir-
reclit} remarks that Philo had imbibed Stoical notions, and
mentions, as a consequence, that he condemned slavery as
contrary to nature. The same belief in the rectitude of
human nature which led the jurists at Eome to the idea of
the indefeasible and inalienable dignity of the person, tlms
led the typical representative of old Jewish culture at Alex-
andria beyond them, to one of the most important practical
consequences of that idea, and one which, as we have just
seen, the jurists failed to derive from it. In like manner Cle-
ment, though professedly an eclectic, was more of a Stoic than
anything else, as indeed were all those who opposed the dualism

' In extravagances somewhat resembling our table-turning and spirit-rapping.
*-' P. 1.57.

WITH REFEP.EXCE TO HUMAN AUTONOMY. 161

of the orientalized Gnostics on the one hand, and the blind
faith in continued and miraculous interposition, held by
the Montanists and the narrower Christian sects on the
other.

{(J) Shemitic and Christian Anthropology. — The helief in
human autonomy constitiUes the common element of heathen and
Christian faith ; or, in other words, of the revelation with refer-
ence to humanity vShich God has given thro^igh human nature,
and to human nature.

"We liave now reached the point at which Aryan came into
immediate contact with Shemitic thought, and at which the
creed of God-created and God-developed is tested by that of
God-instructed humanity. And the question which we have
here to ask of history is, not whether the anthropological
doctrines of reason and revelation agreed in all respects,
or wherein they differed, but simply whether they coincided
in asserting the autonomous character of humanity. If the
answer be in the affirmative, it is manifest that the adequacy
of the natural sources of jurisprudence is affirmed, and, as a
necessary consequence, the exclusive pretensions of tlie theo-
logical school are shut out.

(fi) The Jjihlc. — Xow, as regards the doctrine in question,
there is no es.sential discrepancy between heathen opinion and
the teaching of the Holy Scriptures. " (Jod created man in
His own image, in the image of (Jod created He him." ^
That is the original statement, and tlu; doctrinal tcacliing ol"
the Old Testament mainly consists of its continnjil reiusser-
tion. Whf-n we turn to the New Ti'stamciiit, in tlic ]):iHMage

• r,vu. i. 27.

1G2 INQUIRY INTO THE HISTORY OF OPINION

in St Luke's gospel ^ which sets forth the human pedigree of
Christ, we are again told that " Adam was the son of God ; "
and St Paul, preaching at Athens, brought the identity of
Christian and heathen belief on this point expressly before
his hearers, by referring to the heathen poets in support of his
assertion, that " we also are His offspring." ^ Nor is this
primary conception of the essential relation between the Divine
and the human, and the consequent autonomous character of
the ^persona, invalidated by the intervention of voluntary trans-
gression. The assertion that this parental image, marred and
defaced but not obliterated, is traceable in himself by every
subsequent member of the family, is consistently maintained.
It was as the Son of Man that the Son of God appeared on
earth, and encouraged the greatest sinner to address His and
Our Father in heaven.

(h) The FatluTS. — It ig not wonderful, then, that the Chris-
tian apologists accepted " the morality of Socrates as healthy
and sound," ^ or that the apostles themselves should have
made use of the very expressions in which the followers of
Socrates had clothed his ethical consciousness. We find,
accordingly, that it was the belief of Justin Martyr, and
Clement of Alexandria, and Origen, and in general of the
orthodox fathers of the Church, just as it had been of Plato
the Greek and Philo the Jew, that the Divine Logos, which
was present at the creation of man, was not alien from the
human Logos. ^ Nor did they hesitate to apply to the latter

1 iii. .38. 2 Acts xvii. 28.

•^ Donaldson, Hist, of Chris. Lit. and Doctrine, vol. ii. p. 26.
4 Neand., Ch. Hist., vol. ii. p. 423.

WITH REFEREXCE TO HUMAN AUTONOMY. 163

the very same epithet (Adyo? aTrepfxariKo^) by which heathen
philosophers had characterized it.^

" The Logos," says Justin Martyr, " was present at the
creation of man," and " the whole race of men partook of
Him." . . . " He is in every one." " The seed of the
Logos is implanted in the whole race of men, and those who
lived with the Logos were Christians, even though they were
reckoned atheists — such as among the Greeks, Socrates,
Heraclitus, and men like them ; and among barbarians, Abra-
ham, and Ananias, and Azarias, and Misael, and Elias, and
many others." ^ In proof of how entirely this view is in
accordance with best modern theological opinion, I might
quote to any extent not only from the writings of the " Broad
Clmrch party," but even from such works as Mr Newman's
Avians, which was published before that party existed.^ I
shall content myself, however, with referring to the second
Book of Bunsen's God in History ; and quoting a couple of
passages from Neander, in which he has expressed, very defi-
nitely, the opinion which pervades all his writings.

"Christianity proceeds on the assumption that all the tenden-
cies wliicli belonged to the original idea of Immanity, and which
liad been distorted and circumscribed by sin, arc to be realized.
This is what is meant by the saying of Christ, tliat He was
come not to destroy the law l)ut to fulfil it, which must not
]>c understood as having reference only to tli(^ law of tlic

' /.tMcTH SUncjf, p. 102. iJunscn, G'od ia Jlistory, vol. ii. \>. ''>^(>.

' DorialdHon, ul Hup., vol, ii. p. 226.

' It woH publiHhod oriKinuUy in 1842, and reprinted, with tho uutlior'H p«>niii«-
hion, ))y tlu; It<;v. 0. II, Forlx-H of liunitisluiid, whoMC much kuniing did not hud
him in the direction of tlic Hroad Church.

1G4 INQUIRY INTO THE HISTORY OF OPINION

Old Testament." In commenting on the miracle at Cana of
Galilee, he thus sums up his conception of its import : " It is
the peculiarity of Christ's spirit and labours, the peculiarity of
the work of Christianity, not to destroy what is natural, but to
ennoble and transfigure it ; to enable it, as the organ of Divine
power, to produce effects beyond its original capacities. To
energize the power of water into that of wine, is, indeed, in
every sense, the peculiar office of Christianity." ^

^ GescMchte dcr christlichen Ethik, p. 17. Nor does there seem any reason why
this process of the gradual realization of the human idea, even as regards its
manifestation in separate individual existence, should be confined to this life.
The strongest argument for the existence of the individual soul after death, has
always seemed to me to consist in the undeveloped possibilities which manifestly
belong to it. Individual peculiarities are not faults in our nature : they belong
to it normally ; they are part of its original conception, of its idea ; they are con-
stituents of the Ego, just as much as those which it possesses in common with
existence in general. Why then should not these constituents of each ideal Ego
survive, and receive more perfect realization, like its other constituents ? If
cessation of existence, in the sense of annihilation, be unthinkable as regards the
whole, why should it be thinkable as regards the part. The pantheists say that
the Ego survives, not as a separate Ego, but as a constituent of universal existence.
But if separation, peculiarity, individuality, belong to the conception of the Ego,
how can the Ego subsist without them ? Or how can humanity subsist only as a
whole, in general, if the very conception of it be that it is something which is
made up of parts possessing special characteristics which must perish when the
individuals of whom they are the characteristics no longer subsist ? The analogy
of a drop returning to the ocean, so often used by pantheists, is nothing to the
puq)ose, because separation into drops forms no necessary part of our conception
of the sea, whereas separations into individuals does form a necessary part of our
conception of humanity. It is separability, not separation, which belongs to the
conception of water. We can think of a bucket of water apart from the drops
into which it might be divided. But separation into individuals belongs to the
conception of humanity. We cannot think of a mob apart from the individ-
uals into which it must be divided. You can have tca-cupfuls of water, table-
spoonfuls of water, &c. — the unity is arbitrary — but you can only have individuals.
When you come to human existence the unity is necessary. You cannot have
half a man, or a mob composed of legs, or arms, or heads, or feet. To annihilate
individuality, therefore, is to annihilate that which consists of individuality;

WITH REFEEENCE TO HUMAN AUTONOMY. 165

(c) The Schoolmen and Ecclesiastical Jurists. — No mistake
could well be greater tliau to set down the ecclesiastical
writers on jurisprudence, previous to the Eeformation, in-
discriminately, as holding the opinions of such men as Bel-
larmine -'• and Molina, and consequently as representatives of
the theological school, in the sense of a school which ignores
any source of knowledge except direct revelation, as inter-
preted by the Church. We think of all these men mostly
as monkish ascetics, who had renounced this world for the
next, and whose prayer was not for " the garish day " ^ of
knowledge, but for guidance in a night of voluntary ignorance.
It is true that the idea which lies at the root of all asceticism
and fanaticism, whether Catholic or Protestant, whether heathen
or Christian, is always the repudiation of the teaching of
nature in its integrity. The hermit in his cave, or the
anchorite on his pillar, was a natural infidel, just as much as
the cynic in his tub ; and it is to be feared that the Protestant

and our choice seems to lie not between separate existence and pantheism, but
between separate existence and "Nirwana," in the popular sense of annihilation

"blowing out." The objection to this argument, of course, is that to some

extent it is applicable to individuality as manifested in the lower animals, or
even in plants. It proves too much.— Sec the end of Sir A. Grant's article on
Grote's Aristotle in the Edinhurtjh Jlcvievj, October 1872.

» Bellannine " used his influence over Pope Clement VIII. to prevent the intro-
duction of the Platonic philosophy into the University of Rome, on the ground
that it was pjniicious ; and held the Pope to bo the supreme authority in morals
a-s well .xs in doctnnc."—Di-'(piit"iio)ics. Sne Chambers's Knnjdoj). v. Jirllarminr.
Molina wrote a commentary on the Summa of Thomas AquinaH, ami an ( liil)orHtc.
treatise on .Justice and Kight, which I do not know. I am conseiiuontly not
entitled to speak of him. Hut if Px-lhirminc said that, "if the Popn (hchm-d
vice virtno, or virtue vice, we were lx>und to believe him," it is < 1. ar tlmt he hft
no ground for natural jurisprudence to stand on.

' Newman's hymn, " L<:ad, kindly Light."

IGG INQUIRY INTO THE HISTORY OF OPINION

ill his pulpit is not always free from the same reproach. But
it is to normal and sane, and not to one-sided and crack-brained
representatives of doctrines that we must look for their exposi-
tion. Saint Anthony and Saint Simeon were no more entitled
to be regarded as exponents of the theology or anthropology
of the Church, than Diogenes was to be regarded as a represen-
tative of the Socratic school, or a Ranter or a Shaker at an
American revival to be taken for a normal Protestant. But
even to the sanest of the ecclesiastical jurists, it will be said,
the Cliurch took the place of nature, just as to ecclesiastical
theologians she took the place of the Bible ; and as the Church,
moreover, was her ow^n interpreter, their jurisprudence must
thus have formed part of a theological, system which excluded
any ultimate appeal to reason or to nature, even in secular
questions. It is tliis view, I am persuaded, that has handed
over to " the moth, the worm, and the spider," ^ more than one
work of genius and learning on the subject of our present
studies, to which the modern literature, even of Germany,
scarcely furnishes parallels. Tlie allegation that the finality
which the Church asserted for her dogma, even as regarded
secular opinion, had the effect of excluding the laity from free
anthropological as well as theological inquiry, is no doubt true ;
and it is this fact which, down even to our own day, seems to
render the existence of Roman Catholicism and political auto-
nomy irreconcilable.^ In Germany they are resisting each
other like oil and water, and in Italy and in Belgium they are

1 Hallam, vol. i. p. 373.

2 M. Rcnan, viewing it chiefly from its political side, speaks of the Reforma-
tion as " la plus belle chose dcs temps moJernes." — La, FJformc Intelleckielle ct
Morale, p. 129.

WITH REFEIlE^X'E TO HUMAN AUTONOMY. 167

anything but reconciled. But in earlier times, except when
it gave rise to political antagonism, the dogma of the Church
did not affect either the methods of inquiiy followed by the
clergy themselves, or the results of these inquiries, to anything
like the extent that is generally supposed ; and this for the
simple reason that the clergy were the Church. Beyond a
certain point, tradition was binding on the clergy themselves,
just as the admitted words of Scripture are binding on modern
theologians. Even Saint Thomas Aquinas could not contradict
Saint Augustin. Before he ventured to differ from him he
must explain him away. But, if the point chanced to be one
on which Saint Augustin neither required to be contradicted
nor explained — if Saint Augustin said that there was a reve-
lation of law through nature as well as to nature,^ — then to
nature Saint Thomas could go. The door of science was open
to him. He could pronounce nature to be an immutable guide
to truth.2 He could seek for a natural law for tlie govern-
ment of the human relations ; he could work out its realization
in time and place; and this he could do by the observation
either of subjective or objective phenomena. Now this was
precisely what took place. Not Saint Augustin alone, l)ut
the whole of the Fathers of the Church, maintained, as wo
liave seen, the continued presence of the divine clement in
humanity. This element it was the function of Christianity
to evoke and potentiate ; and its sul)jective utterances, conse-
quently, whether througli the individual consciousness or tliat
of the race, fonned a portion of the dogma on the strictest

' Hf-n tho iJc liltr.ro nrhU., i. 0, r|uotfMl Sum., I'rim. Sic, qiurs. xci. nil. iii.
' Veritas roruin naturalimii iiiiniuUbilU chI, Prim., qiuca. xvi. art. viii.

108 INQUIRY INTO THE HISTORY OF OPINION

principles of orthodoxy.^ Armed with this authority, and
true to the instincts of the Aryan race, the general problem
which the Schoolmen set before them was the reconciliation
of theology and philosophy, of faith and reason ; a problem,
the mere statement of wdiich amounted to an assertion of
the fundamental rectitude of humanity, and the validity of
indirect or subjective, equally with direct or objective, rev-
elation.

Nor, on the assumption that truth is one, that, as Neander ^
has finely said, " there is no schism in the spirit," was their
position as honest seekers for truth affected by the allegiance
which they owed to the Augustinian maxim that " fides prse-
cedit intellectum," or by the fact that they began their investi-
gations from the theological and not from the philosophical
point of view. It was in the fullest confidence that reason had
nothing to reveal which faith need fear, that Anselm wrote
his Fides queer ens intellectitm ; and that Abelard, bolder still,
pronounced Christianity to be a Reformatio juris naturalis,
composed a work on ethics to which he gave the significant
title, Scito te ipsum, and maintained that " the old philosophers
came very near to apostolical perfection, and were not very
far, if at all, removed from Christianity." ^ Abelard, it is
true, was condemned as a heretic ; but the vast popularity of
his teaching, and the influence which it exercised even on his
opponents, showed to how great an extent his sentiments were
in accordance with the spiritual consciousness of his time.

^ " Catholica fides non solum docet, qnatenus parendum est Deo, siipernatural-
iter praccipienti, sed ctiam f[iiid natura vctct, jubeat, vcl pcrmittat." — Suarez,
de Legibus, ii. c. v. and vi.

^ Vol. viii. p. 19. ^ Ncander, vol. viii. pp. 41, 42.

WITH EEFERENCE TO HUMAN AUTONOMY. 169

We find, accordingly, that the characteristic of the third
period of scholasticism, from Alexander of Hales to Occam,
which included the brilliant era of Thomas Aquinas, was a
complete alliance between the Church and the Aristotelians
— a proclamation of the doctrine that the truth of reason is'
essentially one with divine truth, and that, as Neander, fol-
lowing Thomas Aquinas, has somewhere said, " The Christian
graces of Faith, Hope, and Charity, are but the complement
of the old cardinal virtues of Prudence, Justice, Temperance,
and Fortitude." ^

It is a striking proof at once of the universality of this
belief, and of the influence of philosophical on tlieological
studies, that, in defiance of the exclusive tendencies of
Shemitic thought in the direction of the supernatural, the
Arabian scholars of this period became anxious to discover a
scientific basis for their creed also, and sought to perform for
the Koran the same office that Christians were performing for
the Bible.

Grotius is often credited by his admirers with the merit
of having se})arated jurisprudence from theology, and vin-
dicated for the former the character of a s(;cular science.
The statement is true in tlie sense of his liaving Ijceu tlie
earliest Protestant writer of importance on the subject; and
liaving, as such, contended against the political subordination
of the laity to the clergy, and of the State to the Church, for
which the Spanish Jesuits, who were his immediate prede-
cessors, had argued so keenly.'^ JJut it is anything but true

' Ah to tho relation between thfm, v. Hum., Privi. See., qurrs. Ixi.

' Wlun Siuircz, in orguing for the divine ori^'in of lli<' ( ivil l.nv, lib. iii., huiiih

170 INQUIRY INTO THE HISTORY OF OPINION

in the sense of his having separated the human element in
jurisprudence from the divine, or having discovered, or sought
to discover for it, any other basis than that which these
writers had ascribed to it. The divine character of that law
of nature to which he appealed as his ultimate authority, is
the key-note of Grotius throughout; whilst, on the other
hand, the coincidence of the lex divina with- the lex naturalis,
and of both with the lex liumana, finds no fuller recognition
in any part of the writings of Grotius than in those remark-
able chapters of the Summa in which Thomas Aquinas treats
of laws,-^ in Dominic Soto's treatise De Justitia et Jure, or
in Suarez of Grenada's De Legihus et Deo Legislatore, That
Grotius did much to develop those cosmopolitan conceptions
of justice which we have traced to Socrates and the Stoics,
and with wliich the ecclesiastical writers — Suarez in par-
ticular^— were well acquainted, is beyond all dispute. But
it may be doubted whether the study of jurisprudence, as a
science of nature, gained anything very important, in point
of method, from his labours,^ and the neglect of the true
method is a reproach which may be urged with far greater
justice against those who came after him, than against those

up with the exclamation, " Non immerito, igitur, sub hac saltern ratione, omnium
legum discussio est Theologicse Facultatis," it is impossible, knowing who he
was, not to suspect that he was influenced by considerations which were not ex-
clusively scientific.

1 rrim. Sec, qvxzs. xc.-c. 2 \\ ^._ xvii. and xviii.

^ Grotius's claim to be the discoverer of the inductive method in jurisprudence
is on a par with that of Bacon to be the discoverer of the inductive method itself.
As to the latter, see Sir David Brewster's opinion, stated in a letter so early as
1824 — Life, p. 128 e< seq. — and afterwards repeated in his Life of Newton. It
is surprising for how many good things Grotius and Bacon got credit from the

WITH REFERENCE TO HUMAN AUTONOMY. 171

who went before him. The device of founding jurisprudence
on " contracts " and " conventions " dictated by personal or
national conceptions of "utility," was reserved for the eigh-
teenth century ; and it was the prophets of the nineteenth
century, and of our own country, who first addressed them-
selves to the lofty and enlightened task of " modifying,"
" adapting," and " limiting " the law of nature I ^ Grotius
seized the true spirit of the Baconian teaching, . and there
can be no doubt that it influenced his ow^n very favourably.
But it is difficult to imagine that he derived much help from
the little work which Bacon devoted expressly to the subject.
It is entitled, De Justitia universali sive de fortihus Juris ; but
it does not fulfil the promise of its title. It consists of a
series of aphorisms, exhibiting much shrewdness, of course,
but very slenderly linked together, and making no claim to
tlie character of a system.

{(l) The Reformation. — If the merit of Grotius, like that of
Bacon, consisted, not in the invention of any new or separate
metliod of inquiry, but in giving a wider range of application
to the method from which.no man of real insiglit had ever
departed — the method, namely, of investigating nature as the
only ultimate standard, or possible organ of truth — his posi-'
tion, in this respect, di<l not differ from that of European
thinkers generally since the time of the Iioformation. The
single doctrine of " Ix;s carrieres ouvertes " — let nature have

ignorance of their rcadcrH— cjy., Uift saying tliat " peace i'h tlic ol)jcrt of war," is
gcnprally aflcribc<l to Grotius; but AriHtotlo, at any ratt% liad waid K6\ttiov ^l\v
^f^*^^ X^P^" {Politic., Ivii. 112), and I am pretty 8uro that oriciitjil prodoccHKorH
could be found for both of tluin.
' Iii/ra, cap. ix.

172 INQUIRY INTO THE HISTORY OF OPINION

her way — sums up not only all the truth of the Revolution,
but all the novelty of the Eeformation.

Nature, since the Reformation, in Protestant countries at
all events, has hidden her face from no one. In all directions
the artificial barriers to inquiry were then broken down. All
reapers w^ere welcomed to the harvest of science. Each man
was not only permitted to think and labour for himself, but
was called upon to think and labour for all, each according
to the measure of his powers. But the field on which they
were to labour was the old field of nature, and the tools they
were to use were the old tools of natural reason. The field
was wide enough for all, and no one was so weak that he
might not pick np a straw, or break a clod. But the mis-
chief was, that, as all rushed in indiscriminately, the new-
comers impeded the work nearly as much as they forwarded
it ; and modern cultivation, in politics and jurisprudence
more especially, has consequently resembled the heaving to
and fro of a mob, rather than the onward march of a disci-
plined army. In politics, the autonomy of all has been pro-
claimed ; but its realization has been hindered by the claim
for the equal autonomy of each ; and a fact which the history
of antiquity might well have taught, and which ancient pre-
cept had abundantly inculcated,^ is even now being learned
over again by bitter experience — the fact, I mean, that the
unfettered activity of all is rendered possible only by the
recognition of the natural distribution of gifts and powers.
'Not did theology differ in this respect from secular science.
Luther discovered no new highway to truth. His appeal

^ Livy, i. cap. xlii, § 4.

WITH r.EFEREXCE TO HUMAN AUTONOMY. 173

was not from doo*matism to reason — for all revealed relio'ion
must be dogmatic, and reason is its only possible interpreter.
But he appealed from the dogma of the Church to the dogma
of Scripture, and from the reason of churchmen to the reason
of all men. The barrier between the Church and the laity
was removed. The Bible was thrown open to all. All were
called to read ; and if the layman read deeper than the
churchman, his reading was not, professedly at least, rejected
by the Church. God was thus called upon, as it were, to
select His own interpreters. But even those who were thus
consecrated were rarely set aside to the work. When the
monasteries were destroyed, and the vast provision which our
ancestors had made for the support of the spiritual life of the
community was in a great measure diverted to other purposes,
the only order in the Church which may be said to have been
retained, and even reinforced, was that of Predicant Friars,
liut the activity of the preaching clergy in disseminating
knowledge almost excluded them from its cultivation. Out
of the Universities, the pursuit of theological truth was
everybody's business alike, and what is everybody's business
is nobody's business. The hjss of the common language of
the learned, moreover, was very inadequately compensated by
tran.slations, so that even in the countries wliich adopted tlie
doctrines of the Picforination in common, the theological
teaching of the Churches had to rely mainly on national
Kjsourccs. The doctrine of our universal priesthood was a
bold and emphatic proclamation of tlui divine; element in
humanity. liuL from the other causes which I have men-
tioned, there is reason to doubt whcjther tin; Church of tlie

174 INQUIRY INTO THE HISTORY OF OPINION, ETC.

liofonnation, as a whole, has maiutamed the position which
naturally belongs to what is the spiritualizing institution,
'^ar excellence, in all well-ordered communities. At the very
outset, in asserting the opposition between faith and works,
it exhibited a tendency to forget the fundamental identity of
grace and nature. But, begotten of opposition, this tendency
disappeared with the occasion which had called it forth, and
the minds of men, such as Luther and Melanchthon, were
ultimately reconciled to the philosophy which for a time they
had repudiated.^ With such partial and temporary excep-
tions, ultimate accordance between the dicta of nature and
those of revelation have either been taken for granted, or
stoutly asserted when called in question, from the days of
Wicklift'^ downwards, by all but the narrowest sects. A
scientific basis for ethics and jurisprudence has thus been
maintained by the better class of theologians, of whom the
so-called " Cambridge Platonists " ^ are the most conspicuous
examples in this country. Of course, it is impossible to deny
that clerical teaching has too often been confined within the
limits which each particular sect assigned to " the Word," and
Protestant has merely changed places with Catholic dogma.
That it has failed to occupy, with greater security, a position

^ Melanchthon was the author of several treatises on ethics, and not only
asserted the indispensability of philosophy as an auxiliary to theology, but re-
commended especially that of Aristotle, without contining his praise to his logic ;
whilst, in the sphere of practical activity, Bunsen has stated, as the fourth of the
five propositions in which the Reformer sums up the distinctive characteristics of
Protestantism, that "there is no difference between spiritual or religious acts
(so called * good works ') and secular acts. " — Vol. iii. p. 200.

2 Neander, vol. ix. p. 238.

^ See RatioTial Theology in England in the Seventeenth Century, by Principal
TuUoch.

HUMAN XATUEE REVEALS ITS OWX IMPOTENCE. 175

which is essentially untenable, is proved by the prevalence
of exacrcrerated naturalism in most of the modern schools of
secidar thought. The " casting vote " ^ has been given to
reason, where no casting vote ought to have been called for;
and a heathen character has thus been imparted to secular
science, from which it must be our effort to deliver it, with-
out permitting its free development to be fettered by any
final dogma whatever, either theological or philosophical.

CHAPTEK V.

HUMAN NATURE REVEALS ITS OWN IMPOTENCE.

From the earnestness witli which, in last chapter, I insisted
on the fundamental identity of heathen and Christian an-
thropological beliefs, the reader may possibly be disposed
to ask me why it was, if the theory of antique life was
not at fault, that the practical life of antiquity, wliich was,
or ought to have been, a realization of that theory, broke
down. My reply shall 1)0 comprised in a single sentence
—The want was not tlie want of knowledge, but the want
of faitli — i.e., confidence that God by His grace, or special
presence in our nature, will aid us to realize Ilis hiw ^ —
and of tlie strengtli ^ " to remove mountains " which faitli

' Tenncman, 282.

' Ah to tluj <li«tiiictioii hciwvcu (Jraro and Nature, hcc; Kant, Jtrliijum^ p, 2r»9.

' It i« in the failure of thiii Htretigtli, or power to realize lli'- I'u which nature

17G HUMAN NATURE REVEALS ITS OWN IMPOTENCE.

communicates. The law was not unknown, but it was " weak
through tlie flesh ; " ^ and thus the presence of the Divine was
recomiized rather than realized.

" One is the race of gods and men,
And from one mother are we both descended :
But for the power — there the main difference lies."^

Apart from the doctrine of faith as the source of power, we
have difficulty in pointing to a doctrine that is exclusively
and exceptionally Christian.^ And yet that doctrine, or
rather the fact of which the doctrine is the recognition, did
not originate with Christianity ; but, on the contrary, as has
been grandly said, faith "is an eternal reality, an actual ex-
istence in the spiritual world, as real as the physical forces
revealed by Galileo or Newton ; and which we have natural
faculties capable of discerning, when revealed to us, in the
same way as we have faculties capable of apprehending
physical realities." ^ We can recognize its necessity when
found, but we could not find it ; and it is in revealing it

reveals, that we find the warrant for the jural recognition of the abnormal rela-
tions of war, neutrality, &c. Of this matter I shall treat fully in the Institutes
of the Law of Nations, which I hope soon to publish as a sequel to the present
w^ork, and the introduction to which has already appeared in French under the
title of ProUgomenes (Tun Systhmc Raisonn6 de Droit International, Revue de
Droit International, livr. III., 1878.

^ Matt. xvii. 20 ; 1 Cor. xiii. 2 ; Rom. viii. 3. Augustin, Retractatimies, i. i.
This point has been excellently brought out by Professor Seelej'', Ecce Homo,
pp. 90, 175, 179, &c.

2 Gary's Pindar Nem., vi.

3 "What is now called the Christian religion," says St Augustin, "has
existed among the ancients, and was not absent from the beginning of the
human race, until Christ came in the flesh, from which time true religion, which
existed already, began to be called Christian." — Ut sup., i, 13, Max Miiller's
Chips, pref. xi.

* f>skine's Spiritual Order, p. 92,

HtK

HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 1 / /

that Christianity, of which it is the centre, differs from
heathenism. It is in this sense, I think, rather than as
" ligrhtino: another candle of the Lord," ^ that we must take
the saying " ubi desinit natura, ibi incipit gratia."

The imperfection of man's actual life was as well known, and
almost as deeply deplored in the heathen as in the Christian
world. The freedom of the will, and consequent voluntary
character of transgression, the justice of God, and the in-
separable relation between guilt and misery, were all clearly
recognized and freely acknovrledged. Confession is an exer-
cise which has been familiar to the pious of all ages ; and
supplication, as has often been pointed out, has always been
the special characteristic of humanity. " Seul entre tons les
otres ici-bas I'homme prie." ^ Both confession and prayer
constitute important elements in the religious literature
which the later Stoics have transmitted to us, and oriental
literature is full of them.'^ Even the error of trusting to

1 Culverwell, p. 224. * Guizot, LEglise et la SodiU ChrUiennes, p. 22.

^ By those who desire to give prominence to the exceptional character of Chris-
tianity, as well as Vjy those who dispute the intuitive recognition of the Divine,
this point is often disputed in the case of Confucius, on what appears to me to
be very slender grounds. The most instructive passage I have heen able to find
is in the eighth book of the Confxixian Analects, Legge, vol. i. p. 70, cai». xxiv.
'•'The Mii-ster l>eing very sick, Tsze-loo asked leave to pray for him. He said,
' May such a thing V>edonc?' Tszc-loo reidicd, 'It may.' In the prayers, it
is said, ' prayer has been made to the spirits of the upper and lower worlds, '
The Master said, * My praying has been for a long time.'" On this Dr Legge
has a note with the very doubtful heading, "Confucius declines to bo prayed
for," in which he says, " Tszc-loo must have been referring to some well-known
collection of prayers. Choo-IIe says, ' prayer is the expression of rejientance jind
promise of amendment, to supplicate the help of the sjtirits. If there may not l)e
those things, then there is no need for praying. In the case of the Sago, ho had
committed no errors, and a<lmitted f)f no amendment. In all his eondnet he had
\w*\\ iti hnnnony with the spiritiuil inlelligenee.s, nriTl flunroic he said, My jnay-

178 HUMAN NATURE REVEALS ITS OWN IMPOTENCE.

wisdom,^ of believing in the perfectibility of humanity, and
in the possible realization of the human ideal by human
effort, with which the Stoics were so deeply chargeable,
was an aberration from the central creed of our race ; for
to the extent not only of recognizing the need, but of
cherishing the hope of aid from above, there can be no
question of the accuracy of Tertullian's assertion that the
soul is naturally Christian.^ All of us, I am sure, remember
Horace's charming ode ^ to a country maiden, beginning —

* ' Coelo supinas si tuleris maims,
Nascente Luna, rustica Phidyle ; "

and to some of us M. Guizot's remark will occur—" C'est
sur une foi naturelle au surnaturel, sur un instinct inne du
surnaturel, que toute religion se fonde." ^

" As under the (Mosaic) law," says Neander, " man's sense
of its insufficiency to work out his justification was accom-
panied by the promise of One who should accomplish what
the law could never do, so, in the progress of the pagan
mind under the law of nature, there arose a sense of the

ing has heen for a long time.' We may demur," adds Dr Legge, "to some of
these expressions, but the declining to be prayed for, and concluding remark, do
indicate the satisfaction of Confucius with himself. Here, as in other places, we
wish our information about him were not so stinted and fragmentary." To me
these expressions seem rather to indicate that Confucius prayed habitually, and
regarded his being prayed for by another, on an exceptional occasion, as super-
fluous. Even if they should go the length of indicating his disapproval of prayers
for health, it is by no means clear that his disapproval would have extended to
prayers for grace or for the guidance of the spirits along ** the Path," whether in
health or in sickness.

^ Kant's Theory of Religion — Semple's translation, p. 68.

2 Apologet., c. 17. Neander, vol. i. p, 246. ^ Lib. iii. car. 23.

'' Guizot, ut sup., p. 20.

HUMAN NATUEE REVEALS ITS OWN IMPOTENCE. 179

necessity of a new revelation from heaven, and a longing
desire for a higher order of things. The notion of a Messiah,
canied about by the Jews in their intercourse with different
nations, everywhere found a point of contact with the re-
ligious sense of men, and thus natural and revealed religion
worked into each other, as well as separately, in preparing
the way for the appearance of Christ." ^

Scarcely in accordance with this, which is Neander's 'pre-
vailing \dew, is the passage ^ in which he seeks to confine
the idea of Christian humility to the Platonic system, on the
ground that the word raTretvos,^ generally used in a bad sense,
is to be met with in Plato and the Platonists as the desig-
nation of a pious, virtuous temper ; or that ^ in which he
attacks Thomas Aquinas for adopting Aristotle's doctrine of
the ficyaXoi/a^xta, which Neandcr declares to " belong wholly
to heathen morality, and to be necessarily connected with
tlie etliical self-sufficiency, the self- feeling of antiquity." ^
Xow, so far from being jjeculiar to Platonism, I believe there

1 Ncandcr's Life of Christ, p. 28. 2 Vol. p. i. 26.

' raTTfivdrris - niKpo\^vxia, Ainst. RhcL, 2, 6, 10. Socrates is said to have used
it in a y[^ocn\ sense.

* Vol. viii. p. 242.

^ A clerical friend has kindly furnished me with the following valuable re-
marks : "There is a rvjJd self-assertion which is nowise contrary to sound moral-
ity or to Christianity. 8t Paul is humble in his religious attitude towards God
and man ; but his humility does not stand in the way of a most decided sclf-
Msertion in the presence of Agrippa, of Felix, and above all, towards the magis-
trates of riiilippi, who had dared to wrong a Roman citizen, and then want<'«l to
hash up the matter without ajK^logy (Acts xvi. 37 ; cf. 2 Cor. x. 8). And perhaps
thoM are right who sec a kind of self-assertion in the dignified refusal of Christ
to plead before a court unable Uy appreciate His poHition and chiiniH (Malt, xxvii.
14)." 8<;c also Matth. v. 10, an«l Sir A, (irant'H cxiielb-nt note on AriHtot. AV/acv,
iv. iii. 35-37, vol. ii. p. 78.

180 HUMAN NATURE REVEALS ITS OWN IMPOTENCE.

is no system whatever, either of ethics or religion, which
ever obtained general acceptance with mankind, in which
tlie so-called Christian principle of humility does not appear.
We know, at any rate, that in Buddhism, the most prevalent
of them all, it holds a prominent place, and that it was
strikingly exhibited in the personal character of Confucius,
and strongly insisted on in his teaching.^ I confess to you,
then, that I agree with Thomas Aquinas in thinking that
the genuine and normal opinion of antiquity, whether as
exhibited in the doctrine referred to, or in the central doctrine
of the Socratic ethics, did not exclude the idea of Christian
humility or any other Christian doctrine whatever.

And if subjective observation does not fail to tell us the
unwelcome truth of our own imperfections, objective observa-
tion is still more outspoken with reference to the imperfec-
tions of our neighbours. No. two men's faults of character
are exactly alike ; and each is always fully alive to the exist-
ence, in the other, of the faults which he does not share.
Even the faults which we have in common with others, if
we see them at all, are magnified to us when reflected on
an objective canvas. On the other hand, however, there
is nothing which has so great a tendency to conceal our
own shortcomings from us altogether as finding that they are
shared by vast masses around us. In such circumstances we
cannot see the wood for the trees ; and it is for this reason
that the members of great states or great communities are
always less cosmopolitan than the members of smaller ones,
the stage of individual culture being the same. A French-

^ Legge's Chinese Classics, vol. i. p. 95, prolegomena.

HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 181

man, for example, is a far more prejucliced being than a Swiss
or a Belgian ; and there is no Englishman who is so insensible
to the defects of his own country, or to the merits of any
other, as an Englishman who has been educated at a great
English public school, and who lives in London. We have
only to look into a London newspaper in order to be con-
A'inced that to such a person, not only Paris or Berlin or St
Petersburg, but even Edinburgh, is bewildering and often quite
unintelligible. Everything elsewhere that differs from wdiat
he has been accustomed to in London appears to him absurd;
every opinion that is new to him he declares to be wrong ;
and thus, in later Life at any rate, even travel is of no use to
liim. But if his cosmopolitan vision be narrow, his metro-
politan vision is wide, and it does not follow that the faults
which he sees elsewhere are not often real faults. At all
events there can be no doubt that he believes them to be so,
and that the view which he takes of the wisdom or virtue of
humanity, as a whole, is not an exaggerated one.

Abstractly, doctrinally considered, tlien, there is no reason
to impugn the completeness of nature's teaching. There is no
gap in the premises which consciousness and external observa-
tion place within the reach of reason. A man like Cicero
might, logically, have developed a rule of human relations
identical with that of Christianity, and he did, in fact, come
very close on such a rule, whatever may be said of the man-
ner in wliicli he observed it.^

But the light which nature sheds on the phenomena of tlie
will, though not deceptive, is flickering and intermittent; .ind
* Soc Froudc's Cawar— ^a*»i//i.

182 HUMAN NATUllE REVEALS ITS OWN IMPOTENCE.

either the fact of its freedom, or the fact of its feebleness,
almost always vanishes from the sphere of mere human vision.
The former has been the error of most Asiatics, whose ten-
dency is to lapse into fatalism. The latter was that of the
energetic and self-confident nations of classical antiquity.
The Stoics, it is true, were the Pharisees of natural religion,
as Josephus, who was himself a Pharisee, said of them. But
as the Pharisees were exaggerated rather than exceptional
Jews, so the Stoics were exaggerated rather than exceptional
Gentiles. The pride which peeped through the holes in the
mantle of Antisthenes was the besetting sin of antiquity as a
whole. The belief that, being arrovo/xos, man must also be
avTapKr]<s, rested on a partial reception of the teaching of con-
sciousness, and a consequent failure to recognize the contra-
dictory principles which, however mysterious their union may
be, consciousness does unquestionably reveal. Such a violation
of the law of integrity will be more or less exhibited in pro-
portion to the extent to which men have departed from or
adhered to the central creed of the race. The notion of
avTapKeua (self-sufficiency), so prominent in Aristotle, is less
conspicuous in Plato ; and in the teaching of their great
master it probably appeared in a still more qualified shape.
But it corresponds to the fallen side of humanity. ISTo
system of mere human ethics has ever proved an adequate
safeguard against it, which did not speedily degenerate into
the opposite error. Even if Stoics and Epicureans had never
rent humanity in twain, there is no reason to believe that
Socraticism would have succeeded in preserving the balance
between the deification of tlie will which dishonours God, and

HUMAN NATURE REVEALS ITS OWN IMPOTENCE. 183

the fatalistic distrust of it which dishonours His creature.
Even within the pale of the Christian Church one or other of
these tendencies has been at the root of almost every heresy
that has arisen ; and it may now, I think, be laid down as a
dictum of experience, that they represent the two directions
in which the anthropology of unaided reason tends to conflict
with that of revelation, and in so doing, to diverge from the
actual teaching of nature. In asserting that " man is a law
unto himself," and even in enunciating that law, the revelation
through nature and the revelation to nature are at one ; but it
is the latter alone which consistently couples this fact with
the asseveration that '' strength belongeth unto God." ^ It was
only by the reunion of the human to the divine, by means of
the incarnation of Christ, and the continued communication
of His grace, that humanity could be potentiated to receive the
law which it had never ceased to proclaim.

But here it is, too, that anthropology passes into theology ;
that ethics and jurisprudence, sensible of their own insuffi-
ciency, take refuge in religion ; and that academic students
and teachers touch the boundary line wliicli divides the
Faculty of Law from tlie Faculty of Divinity.

» r.s. Ixii. 11.

18 -J: HOW MAN BECOMES COGNIZANT

CHAPTEE VI.

HOW MAN BECOMES COGNIZANT OF THE KULE OF LIFE.

Having seen reason to conclude tliat, even in the absence of
supernatural revelation, mankind acknowledges, and always
has acknowledged, the presence of an internal rule of life, our
next investigation must have reference to the manner in which
he becomes cognizant of this rule.

(a) The ride of life is prescribed hy our whole nature^ and
consequently, in accepting the maxim, "follow nature," we em-
ploy the word nature, not in a higher and different, hut in a
" wholer" more complete, and more perfect sense than is popularly
attached to it.

The second of the three rules which Sir William Hamilton
has given us ^ for verifying the apparent dicta of our nature —
viz., that " the whole facts of consciousness must be taken
without reserve or hesitation " — is that of which the f or-
getfulness has perhaps most gravely invalidated both the
theories and the practice of men.^ As regards the matter in
hand, at all events, you will find that the distinction between
what is true or false in anthropology turns, almost invariably,
on whether or not this " law of integrity " has been obeyed.

^ Metaphysics, vol. i. p. 268.

'-^ It has always appeared to me that one of the most useful directions in which
concrete logic could be prosecuted would be in the construction of a science of
aberrations. Aristotle has laid the foundation of this, as of so many other in-
quiries, in his doctrines of the Trape/c/Sao-fis. — Toliiic, lib. iv. c. ii.

OF THE RULE OF LIFE. 185

On such a subject total error is scarcely possible for any one
who retains the instincts of a man, and accordingly, there is
no anthropological system of any importance which does not
rest on a modicum of truth. But, on the other hand, from
the extent to which opinion is influenced by temperament and
genius, both national and individual, there is no subject on
which exaggeration and consequent one-sidedness have been so
conspicuously exhibited. It was by failing to accept the teach-
ing of nature in her integrity that the Cynics and the Stoics ^
fell away from the Socratic etliics in the one direction, and
the Cyrenaics and Epicureans in the other, till the one sect
almost forgot that they had bodies, and the other that they
had souls. Their respective merits, it is true, were very dif-
ferent, for the one obeyed an elevating and saving, and the
other a degrading and destroying tendency. But their errors,
if not equally perilous in their practical, were equally extrava-
gant in their theoretical results ; for whilst Epicureanism, like
modern Sensationalism, ended in denying the existence of any
absolute criterion of conduct, and thus proclaiming the impos-
sibility of ethics altogether, Stoicism ended in a rule of life,
the realization of which was impossible, and which, if realized,
would have been fitter for Prometheus on the rock, or Mil-
ton's Satan, than for beings whom God had created to obey in
order tliat they might enjoy. The phenomenon wliicli tliese
divergent sects exhibited, in a manner so prominent as to
render them tlie typical instances of it to otlier ages, is one
which history has repeated in endless phases, and wliich our
own life is continually reproducing. In heathen times it

' A ale, cap. iv.

186 HOW MAN BPXOMES COGNIZANT

was only wlicn so wonderfully complete a manifestation of
humanity as Socrates appeared, that men were recalled for a
time to a sense of the harmonious character of nature as a
whole, and that a stride was made directly upwards, which
crowded more history into a single life than many ordinary
generations exhibit. Under Christian influences, progress, on
the whole, has been less intermittent, because, apart altogether
from its supernatural action on the will, one of the effects of
Christianity has been to keep the harmonious character of
nature, and, as a consequence, the organic character of society,
more steadily before the eyes of men. It is in its sanity
rather than its novelty that the ethical teaching of Christianity
surpasses that of the Socratic School. But Christianity itself
is one thing, and Christianity as interpreted by human teachers
is quite another thing ; and we have had many anthropological
doctrines in Christian times which were not Christian.

(h) Conscience is not a separate faculty ; hut the phase in
ivhich our whole normal nature appears, when manifesting itself
ethically. It may he hriefly defined as moral-consciousness.

The most recent example of the class of errors which
springs out of a violation of the law of integrity ^ consists in
representing our knowledge of right and wrong as imparted
to us by an exceptional organ, which is so far from being in
harmony with our other faculties and senses, that its very
object is to condemn the impulses of our general nature. As
Scotland is still,^ probably, the headquarters of this ethical

^ Hamilton, Metaph., vol. i. p, 268.

2 I am glad to know that the doctrine of conscience is not taught, in this sense,
V^y the present learned occupant of the Chair of Moral Philosophy in Edinburgh.
I hope it now rarely finds utterance in the pulpit. If the harmony of the

OF THE RULE OF LIFE. 187

heresy which she contributed largely to originate, it seems
desirable that we should consider it in somewhat greater de-
tail than is consistent with the oeneral scheme of this work.
It is generally supposed that the device of thus accounting
for our moral emotions belongs altogether to modern times,
and the discovery of the '' moral sense " is ascribed to Lord
Shaftesbury, whilst our own Hutcheson ^ gets credit for
having developed the theory of its action. But this state-
ment, though true in the main, is not altogether true. I do
not attach much importance to the fact pointed out by Pro-
fessor Trendelenburg, 2 that the word conscience (conscientia,
<TvvuS7]<TLs;), even when taken to indicate the ethical information
which our nature conveys to us w^ith reference to itself —
what we may call its ethical self-revelation — is not to be
found in Greek philosophy before the time of the Stoics, and
scarcely anywhere in Scripture except in the Epistles of St
Paul. That fact, as it seems to me, amounts merely to this,
that the language of philosophy, and language itself through
philosophy, were enriched as time went on, and as thinking

teaching of conscience with the fundamental impulses of our nature be admitted,
the c4Uc«tion whether it be or be not a separate faculty may, for practical pur-
po8C8, be relegated to the sphere of ethical psycholop^. It needlessly complicates
our conception of our moral nature, but does not exclude natural law. The as-
sumption of such a faculty is a sin against " the law of parsimony," rather than
against the law of integrity, thougli the statement of its necessity gives to it
something of this latt<^;r character also. If the other faculties and impulses of our
nature are in need of it, they cannot be fundamentally sound. Its assumption
is still a libel on nature in general. — Calderwood, p. 78.

' Hutcheson, Reid, and Stewart held the same o])inion with reference to in-
t^'llccttial OH to moral consciousness ; and the whole of the discussion in Tjecturcs
XI. and XII. of Hamilton's McUijihysica (vol. i. p. 182 et acq.) is applicable to
the snbject of this chapb-r.

» Nalurrcrhl, p. r>.3.

188 now MAN BECOMES COGNIZANT

became more definite and precise. It does not indicate any
change of opinion with reference either to human nature or
the methods of its revelation, and this indeed is very much
Professor Trendelenburg's own view.-^ But it is important
to remark that the sense attached to the word, when it did
come into technical use, whether by the later representatives
of the Socratic school of ethics, or by the orthodox Christian
Church, was not that of a separate faculty, still less of a
sense, resembling, in any degree however remote, our physical
senses. Conscience, as they understood it, was not a part
of our nature sitting in judgment on -the rest of our nature,
and condemning it ; but the phase in which our whole, and
as such, our normal nature appears when manifesting itself
ethically.

The common statement then is correct, in so far as it
affirms, merely, that Lord Shaftesbury's theory had not been
anticipated by St Paul and the Stoics, nor yet by such
writers as Cicero, ^ who uses the word " conscience " in the
sense which has always been attached to it in popular
speecli — the sense, viz., of ethical reflection — a sense to
which Bishop Butler adhered, and which is far more in
accordance with the ancient theory than with the modern
one. But the moralists of the eighteenth century had a
predecessor of another class whom they would have been

* Ahhandlungen, vol. iii. p. 199.

2 E.g., "Conscientia convictus, repente conticuit" {In Cat. 3, 5); ''magna vis
est conscientia3 " {pro Mil. 23, 61), &c. Professor Blackie has pointed out that
avviihriffis, as a popular word, is "as old as Periander and Bias." — Four Phases
of Morals, p. 366. As to the period of its introduction into philosophy, sec
Hamilton's Mdaph., vol, i. p. 197.

OF THE RULE OF LIFE. 189

less willing to acknowledge. The existence of an excep-
tional moral faculty, or moral sense, was a doctrine of our
countryman, if such he was, the heretic Pelagius, in the
fifth century — a doctrine which he opposed to the orthodox
teaching of the Church as represented by Augustin. In
obedience to this hypothesis, Pelagius denied not only the
Socratic doctrine of the fundamental rectitude of humanity,
which the Church held, but the especially, though not ex-
ceptionally, Christian doctrine of the Fall ; for it was un-
necessary to assume that a nature had fallen which was
originally imperfect. It is an instructive instance of the
manner in which every error involves all error, as every
truth involves all truth, that a denial of the original recti-
tude of humanity should, by leading to the denial of sin,
have developed itself into a theory of the perfectibility of
human nature by its own efforts, and thence to the denial
of the necessity of divine grace ! Yet such appears to have
been the outcome of Pelagius's speculations, and still more ex-
plicitly of those of his friend and disciple Coelestius.^ With
this curious glimpse into the experience of the fifth century
to guide us, let us see how the doctrine of the moral sense
originated, and wliat have l^een the consequences that liave
resulted U) our own and other branches of science from its
adoption, in our own age.

In Shaftesbury's mind it arose as a protest against tin;
moral scepticism wliich had resulted from Locke's n^jection
of the theory of innate; id<*as. If sensation and icllection on
sonniljUi ])hcnomena were the only sources of mii kiKiwledge,

> Noarnl«'r, vol. iv. pp. 229, 309.

190 HOW MAN BECOMES COGNIZANT

the existence of a moral sense, or organ of direct moral cog-
nition, seemed necessary to enable our nature to prescribe
rules for its guidance. The merit of the hypothesis consisted
in placing in an intelligible light, not necessarily inconsistent
either with the metaphysics or theology of the time, the
assertion that man could distinguish right from wrong, with-
out denying the sinfulness of his human nature, which its
authors conceived themselves bound to admit. They re-
volted from the moral scepticism of the age, but they were
not bold enough to break loose from the narrow and erron-
eous interpretation of Christianity out of which, in conjunc-
tion with the metaphysics of Locke, this scepticism had
sprung. Their theological guides dwelt on the too obvious
fact that the heart of man is " deceitful above all things, and
desperately wicked," ^ and applied the dictum to the original
and fundamental conception of humanity : their philosophical
guides assured them, not without reason, that if this was so,
man as man could not distinguish right from wrong, and that
natural ethics and jurisprudence, in any other sense than mere
empiricism, were impossible. They were resolved to escape
the conclusion, but they feared to touch either of the pro-
positions on which it rested ; and they attempted to evade
the dilemma in which they found themselves by the assump-
tion of a natural faculty opposed to nature. But the remedy
was still an ineffectual one ; for, as their opponents were not
slow to urge, the moral sense was still but a part of a nature
fundamentally corrupt ; and if the fact of its approval or dis-
approval was the criterion of right and wrong, moral distinc-

^ Jcr, xvii. 9.

OF THE RULE OF LIFE. 191

tions, if not arbitrary, were relative to the individual, and
there was still no absolute rule of life. In order to escape
from this consequence, it was necessary that conscience should
be made, not a legislator, but a judge — not a lawgiver, but
an interpreter of an absolute objective law ; and accordingly
it was declared to be the voice, not of humanity either normal
or abnormal — not God's voice in nature — but God's com-
mands to nature, — each separate dictum thus becoming a
direct revelation. By this means the absolute character of
moral distinctions was saved ; but it was saved at the ex-
pense of presenting a wholly erroneous conception not only
of human nature, but of the Divine nature itself. For whose
work, in this case, was our general nature, and whose voice
spoke in its normal impulse ? Was God's voice raised only
to condemn His own work, or was the whole nature of man,
with the single exception of one alien faculty by which it
was judged and condemned, the work of the devil ? Here
surely was dualism or Manicha:nsm, at the very least of it.
When stated thus broadly, it is plain enough that such a
conception of liumanity is at variance witli all religion, botli
natural and revealed, and conflicts most flagrantly with our
daily experience of God's nature and government; and yet it
is grievous to think that we should, all of us, have lieard it
jjreaclied so often.

Then liow was tlie moral progress, or retrogression, wliich

was visi];le both in individuals and in communities, to l)e

iccounted for, and what has always been one of tin; strongest

irguinents of utilitarianism to be met, if llic ])rcsence of such

m infallible oracle was inscparal)le from \\\r poss(?ssion of ;i

192 now MAN BECOMES COGNIZANT

liuman soul ? No advance in intelligence could render more
audible a voice which all must hear, or make clearer com-
mands wliich none could misunderstand. Knowledge and
virtue were thus dissevered, and the study of nature, in any
other direction than physics, even if possible, was needless.
In order to know his duty, man had only to listen, and the
" reverential study of social and political science," which, we
are told, the Buddhists regard as " the highest religious
duty," ^ was henceforth to be abandoned by Christian nations.
The Empirics were thus left in undisputed possession of the
field of science by those who professed to be their stoutest
opponents. It is true that those who reject the theory of a
special moral faculty do not always refrain from laying upon
consciousness, as a whole, the unnecessary burden of reveal-
ing a ready-made moral law. Kant was no believer in " an
innate sense or guardian nature which whispers into our
ear," ^ and yet he held the moral law, as such, in its com-
pleted form, to be revealed to us as a practical law d. priori.
" If the question be put, . . . how do we arrive at the
consciousness of the moral law ? The answer is the same
as in the case of any other proposition a priori, that we are
conscious of a practical law It priori, as we are conscious of
theoretical ones, by attending to the necessity with which
reason obtrudes them on the mind." ^ Again, " our con-
sciousness of this fundamental law is an ultimate fact of
reason, for it issues from no preceding data — e.g., the con-

^ Alabaster, The Wheel of the Law, p. 22.

'■^ Semple's trans, of tlio Metaph. of Ethics, p, 41. See also j)p. 39, 92, 112, &c.

■' Ih., p. 101.

OF THE RULE OF LIFE. 193

sciousness of freedom — hut is thrust ujjon the mind directly,
as a synthetic a ])riori proposition, and is bottomed on no
intuition whatever, whether a priori or a posteriori. . . .
When it is said that this la\Y is given, I beg it may be under-
stood that it is not known by observation and experience,
but that it is the single isolated fact of practical reason,
announcing itself as originally legislative — sic volo, sic juhco." ^
Kant's objection to utility, as the test of morality, is tlie well-
founded one that it requires extended experience and ac-
quaintance with the world, and thus assumes the knowledge
which it professes to communicate. Now, the very same
objection, as it seems to me, applies to the assumption of
a ready-made moral law. The law which Kant asserts to
be thus revealed, as you are no doubt aware, is his famous
" categorical imperative," or fundamental moral law of reason :
" So act that thy maxims of will might become law in a
system of universal moral legislation." ^ I cannot but think
tliat this law contains a great deal not only of reason, but
of reasoning and observation, that it is far too complicated
a matter for consciousness to reveal by any single act, and,
with all due deference for so great an authDrity, tliat, in
enunciating it, Kant sinned agamst Sir William Hamilton's
" law of parsimony " as egregiously as the Scottish moralists
ill general have sinned against his " law of integrity." How,
fur example, i.s any one to know, with reference to a par-
ticular act, that it is " fit for law universal," any more than
that it is useful or exi)edient ? Is not the question jit issue;
this very "law universal," the knowledge <»(" wliich Kant tlocs

• S^-mi.lft'H trnnHlntir.n of tlur Alrtaj,h. uf Kthir.\ p. lOIJ. " U>., j.. 102.

194 HOW MAN BECOMES COGNIZANT

not explain, bnt gratuitously, needlessly, assumes, just as the
utilitarian assumes our knowledge of what is expedient or
useful ? The difficulty is always with the " what." When I
am told to "follow what is useful," I have still to ask
" what is useful ? " Wlien I am told to follow " what is
according to law universal;' I. must ask " what is according to
law universal ? " But " conscience " and " nature " are both
measures of the "what;" and all I contend for is, that
nature as a whole is a better measure than conscience,
which is only a part of nature.

The only hypothesis, then, which appears to explain our
knowledge of the absolute law, without running us into
anthropological dualism, appears to be that which identifies
conscience with the dicta of our general and normal nature
as a whole, as opposed to our special and exceptional nature,
and which looks for the moral law, the rule of life, as a
gradual manifestation and recognition of this nature, to and

by itself.

The manifestation, I say, will be gradual, as well as the
recoo-nition ; by which I mean that what is actually mani-
fested to the individual will become more definite in its
outline at every stage of our increasing moral stature;
for the more perfect the man is, the more perfect will be
the type of humanity which he manifests to himself, and
the consequent test of the quality of actions with which
his nature supplies him.^ It is the ultimate object of the
manifestation, the ideal in which the human meets the divine,,
which alone is unchangeable. Humanity, like the burningj

1 As to tlic study of savages, vide ante, p. 67.

OF THE RULE OF LIFE. 195

bush, is always divinely illuminated, but it becomes more
capable of gazing on the ineffable light that is within it
as its moral eyesight strengthens. It is in this strengthening
of the moral eyesight that the development of conscience,
or, as I prefer to say, ethical progress, consists. The law
that is within a savage is the self-same law that is within
a civilized man, otherwise tlie savage would not be a man ;
but the savage does not know — is not conscious of the law to
the same extent. Such I believe to be the ethical creed at
which most men who are caDable of formincj one at all are
arriving ; and it is highly noteworthy that the moral con-
sciousness of the modern world, in this as in so many other
instances, seems fast tending to identify itself witli what was,
at bottom, the prevailing consciousness of humanity, even
in heathen times. In order that you may see how complete
tliis identification in some cases has become, let me first refer
you to a passage in Trendelenburg's Natural Law,^ in whicli
he has stated the characteristics and functions of conscience
as he understands them. " The appetites and desires, con-
fined and limited, are separate and particular sides of human
nature, of the human being regarded as a wliole ; and an evil
conscience consists in the reflex action of the whohi man
against a part which has attempted to assert an undivided
supremacy — an action whicli exhibits itself in the fonn of
remonstrances, accompanied with certain i)ainful and pleasur-
able emotions. The ])henomenoii of a good conscience is still
more readily intelligible. It is the assent of llie wlioli; man
U) the action of a part wlii(;h has rcuiaiiH'il i!i liarinony \\'\[\\

19G HOW MAN BECOMES COGNIZANT

liis freneral nature. What is called a warninoj conscience
still rests on the same ground. It consists in remonstrances
which, arising out of the wliole man, forbid the promptings
of the self-asserting part before they have vindicated their
supremacy by action. In this view conscience consists in
the action and retro-action of the whole man against the
parts, by means of remonstrances wdth their attendant feel-
ings, and as such the conscience is the power which ratifies
the decrees of the will. Moreover, as the whole man is
founded in the idea of humanity, and this idea originates
with God, the feelings of conscience necessarily remount,
in their own proper train, to the relation with the divine.
In this sense conscience is the voice of God within us,
which, deeply seated in the recesses of our nature, and
uncorrupted, seeks honour from God and not from man.
In conscience man rests upon himself and his God. It is
he wlio thinks, it is he who feels ; but what he thinks,
and what he feels, he thinks not as the dictate of his dis-
cretion, he feels not as his liking, but as what, for the will,
is a matter of necessity. It is for this reason that man
perceives in conscience the deepest unity of his nature,
and that where conscience is not recognized he becomes a
mere machine." " Language," he continues, " has striking
pictures by which to characterize those acts of self-judgment
which terminate in profound emotions. She speaks of the
conscience being stunned and benumbed ; thereby indicating
tliat condition in which either the old desires and passions,
or some new-born desire or passion, has so absorbed the whole
man as to prevent any association of icjeas from an opposite

OF THE IIULE OF LIFE. 197

point, any thought which represents the whole man from
coming to light, or from gaining the ascendancy. A sleep-
ing conscience, again, is opposed to a w^aking conscience,
the former exhibiting very nearly the phenomena just de-
scribed, whereas the latter indicates the condition in which,
after peace has been established, either the whole man, or
another side of the man from that which dominated him
before, comes into action, and vindicates the ascendancy of
his better impulses."

In the sentences which conclude this remarkable passage,-^
Professor Trendelenburg refers to a subject which I have
just indicated, and which, more or less explicitly, will occupy
us again and again. I mean the development of conscience,
public and private. For the present I shall translate his
words without comment, merely by way of breaking ground.
" When the rise of conscience is correctly stated," he says,
" in its natural connection and mental origin, it becomes
evident that it is no ready-made organ, with a definite and
positive jjurport, but that it develops itself in tlie midst
of the relations of life and the exj^eriences of the individual.
Though the idea of the whole man — the idea of humanity
in tlie individual — which constitutes the last determining
ground of conscience, is the same always and in all, it
depends upon a number of subjective circumstances which
are ever changing in the inner life of the individual to what
extent the whole man is active through means of conscience.
By directing our attention to the manner in which conscience

' Very ha<l that w«; hIiuH liavc no mop- pH88a;^<H fVoiii tliut pi n. yivr, pia
anima ! .hiniiary 1872. <

198 HOW MAN BECOMES COGNIZANT

is developed, we become acquainted witli the means by wliicli
it may be awakened and sharpened, rectified, deepened, called
into action, and guarded, in order that it may become a clear
and pure divine voice. Of itself it is exposed to individual
distortion and deception. Pride and vanity, inseparable
from the natural man, contribute largely to what is called
a good conscience ; and the fear of man is not unfrequently
that which presents itself in the form of an evil conscience.
The constraint and solicitation of the passions assume the
character of ethical necessity and freedom. For these reasons
the judgments which we form of our individual actions
deserve the name of dicta of conscience only in so far as
they arise from a frame of mind which is elevated above
selfish considerations into the region of the good." ^ In
criticising this passage. Professor Calderwood says : "The
ground is solid, but not sufficient. In two respects the
insufficiency appears, ' The whole man does not always
resent the action of the self-seeking part ' — den selhstsuchtigen
Theil, — and what then ? But more especially, we want an
explanation of antagonism or acquiescence. And if we may
progress in our feeling of resentment or approval, we
need knowledge in order to determine the line in which
progress shall be esteemed true moral culture." '^ In
answer to the first of these objections — "that the whole
man does not always resent the action of the self-seeking
part " — I ask if man is to be regarded only at times as a
moral and responsible being ? The contention of Professor
Trendelenburg, in which I concur, of course is that the

^ See, to the same ellect, Krause, p. 38, ^ Handbook^ p. 79.

OF THE RULE OF LIFE. 199

general nature always resents the rebellion of the part,
though its resentment may be ineffectual, — why it should
be so is another question, which would lead into a dis-
cussion of the nature of sin. Then, as to the second ob-
jection— that " we want an explanation of antagonism or
acquiescence " — I reply that the antagonism or acquiescence
of our general nature, as opposed to a part, is not more
inexplicable, and is surely more authoritative, than the an-
tagonism or acquiescence of a part, as opposed to our general
nature.

The other expression of opinion to which I wish to call
attention, though less developed, points clearly in the same
direction. Sir Alexander Grant, in the second essay prefixed
to his Aristotle, says : " The very word ' conscience,' on
which right so much depends, is only another term to express
* consciousness,' and a man differs from a machine in this, that
the one has a law in itself, — is moved, as Aristotle would say,
Kara Xoyov; the Other is movcd /xcTCL Xoyov, lias tlie law both in
and for liimself." ^ The use of tlie word " consciousness " in
'his pa.ssage, as identical with conscience, would alone seem
decisive a.s to which side of tlie controversy Sir Alexander
Orant liad embraced, for " consciousness " surely is not a
separate faculty.

My .special rea.son for insisting that conscience is the reve-
lation of our whole nature, and not of a special faculty, will
Ihj apparent to you when you come to see that it is this view
of the indivisibility of our ninr.d nature which warrants our
Hipudiation of the distinction b(;tween jierfect and imperfect

> Vol. i. p. 19.

200 HOW MAN BECOMES COGNIZANT

obligations, and furnishes tlie foundation for the positive, or
what has been called by its German expositors, the " harmon-
ious " system of jurisprudence.-^ But in connection with the
historical considerations recently submitted to you, it is im-
portant to remark that, in the fact that we appeal to our
whole nature for the rule of life, we have the answer to the
polemic, — not against the peculiarities of Stoicism mdeed,
which, when Stoicism is taken in its separate and special
aspect, I regard as unanswerable, — but against the maxim
" follow nature," itself, a polemic which Sir A. Grant — not
very consistently, as it seems to me, with the passage I have
just quoted to you — has extended to that maxim even in the
form in which it was revived by Bishop Butler in his Sermons
on Human Nature.

Sir Alexander Grant speaks disparagingly of Butler. " Into
the difficulties of the question," he says, '' Butler has not
entered. For instance, while he is perfectly successful in
establishing against the Hobbists the reality of the moral
elements in man's nature, he does not tell us whether or not
he would agree with the Stoics in ultimately giving the entire
supremacy to a man's reason and conscience, so as to supplant
the other instincts, or at what point he would stop." Had
Sir Alexander Grant said that Bishop Butler does not explain
all the phenomena presented by the action of the will ; that
he does not tell us why we do not always will to act in
accordance with the fundamental principles of our nature ; or
why, when we do so will, or seem to ourselves to will, our
willing meets with insuperable internal impediments ; that he

1 Alliens, passim.

OF THE RULE OF LIFE. 201

does not, in short, explain the nature and origin of vohmtary
transgression, — he would have pointed out the direction in
which Butler's, like all other explanations, is inadequate.
But as he puts the objection, Butler's answer, I imagine,
would have been plain enough. He would have told him
that he does not admit the antithesis between " the other
instincts " and " reason and conscience ; " that the supposition
of the other instincts being ranged on one side, and reason
and conscience on the other side, is a supposition not war-
ranted by the phenomena which human nature presents, or
which, on the principles of optimism — on the assumption of
the rectitude of God Himself — any nature created by Him
can present. Butler's view of the matter is substantially in
accordance with that which I have above submitted. Though
he often speaks of " conscience or reflection" as a special faculty,
and assigns to it a pre-eminence over the other faculties, his
whole argument is directed against the supposition that it is
in conflict with all, or indeed with any of them, when normally
manifested. He regards it rather as a certain harmony, balance,
or proportion, which, in their normal condition, they tend to
preserve amongst themselves, and the action of which we must
conceive rather as the result of their joint activity tlian as a
force opposed to or even alien from them.^ That this liarmony
may be destroyed, Butler is, of course, very far from denying ;
but when such destruction takes place, he ascribes it, not to the
action of our general nature against conscience as an opposing
force, but — in exact accordance witli tlic passages (Vom Tren-
delenburg, and from (I rant liiinself, to wliich I referred above
' Str. ii. i». 10 ; Hi;r. iii. i». '24 -cd. 1839.

202 HOW MAN BECOMES COGNIZANT

— to the action of one or more of tlie principles of wliicli
this nature is made up against the general principle which
animates it all. The whole objection of Sir Alexander Grant,
and of the very numerous class of reasoners who join with
him, good old Samuel Johnson included, consists, I think, in
their failure to recognize in nature the power of dictating to
man anything else than the pursuit of immediate pleasure, or
the escape from actual or visibly impending suffering. " Is
the life of the saints and martyrs," Sir Alexander asks, " to
be called a life according to nature ? If not, is it better or
worse ? and if better, is not man to aim at the better ? . . .
There is one mode of representation which describes life as a
progress, a conflict, a good fight ; another which makes it the *
following of nature. On the one hand, there is the spirit of
aspiration and effort, the tendency to asceticism, the victory
of the will ; on the other hand, there are the genial, kindly
human feelings, there is the wise passivity of mind, there is
the breadth of sympathy which counterbalances an over-con-
centrated intensity of aim. To make the formula ^ Live
according to nature ' of any value, we require to have these
conflicting tendencies harmonized with, each other." I entirely
concur with Sir Alexander Grant when he says that the whole
question is one not of mere words, but implying the discussion
of a very important subject — namely, the way in which life
is to be conceived, and, I would add, in which jurisprudence
is to be treated, not only as a science, but, in no small measure,
as a practical art. Here, then, let me sum up what I con-
ceive to be not only the Socratic, but the human, and as sucli
the Christian, answer to the train of reasonini^ which Sir

OF THE KULE OF LIFE. 203

Alexander Graut lias pursued, — and an answer which, if I
am not greatly mistaken, would have had the concurrence of
Bishop Butler. " The spirit of aspiration and effort " is not
opposed to the "genial, kindly human feelings," nor to the
" breadth of sympathy " of which he speaks. " The progress,
the conflict, the good fight," is an effort not by an external
power to drive nature from her course, or even to control her
activity, but by nature herself, as revealed to us internally
and externally, to vindicate her supremacy over the denatu-
ralizing influences, over the rebellious subjects within her own
realm which oppose her free development and harmonious
action. 'Wlien the conflict is peculiarly hard ; when the
external principle of disorder has succeeded in ranging the
animal and sensual against the rational and spiritual pro-
pensities ; and when nature herself, as a wdiole, is in danger
of being degraded from a human nature into something worse
than a brute nature, — she calls — and in the case of saints and
martyrs calls not in vain — for aid from above. But it is
for aid, not for lier destruction, but for lier preservation and
support ; it is tliat she may become not less lierself, but more
herself, in this her liour of trial ; and that, in lier triumph, slic
may save, not tlie higher principles alone from degradation,
but very often also the lower propensities, " the law in the
members," ^ from self-destruction by excess of present grati-

' "Omnia ilia nd qu.'f. horno hahet naturalcni inclinalioncm," says TliomnH
AfpiinaA, " ratio naturalitcr approlitndit ut bona, ot per ronHcqucns ut ojxirc pcr-
Hoquffnda, et contraria ftoninj ut mala <;t viUunla. " And a^ain, "Omncs hujiis-
niodi inclinationoH, quannncmmque partium natur.n humann! (puUi roncnpiKcibili.s
fct iraiw;ibiliH), gccundum quo<l roKfintur ration<', pertinent ad Icgtin naturalcjn."
— rrim. Src, quffi«. xciv. art. 2,

204 OF THE RIGHTS AND DUTIES

lication. The whole effort of the will, when directed to the
realization of the higher life, is an effort not against nature,
but in favour of nature,^ in every sense that can be attached
to that word except the single, and, even if true, surely very
narrow sense of it in which it is taken to mean the tendency
to the unbridled indulgence of one or more of our irrational
appetites. "Man," says Kant, "is unholy enough, but the
humanity inhabiting his person (his proper person) must be
holy." 2

CHAPTER VII.

OF THE RIGHTS AND DUTIES WHICH NATURE REVEALS.

We now enter on the third of the three branches into which,
as I mentioned at the commencement of Chapter III.,^ an
inquiry into the law of nature, or a treatise on the principles
of law, divides itself.

Having seen that the legislative character of our nature is
guaranteed to us, both by the dicta of subjective consciousness
and by the manifestations of objective consciousness in the
history of opinion, and having further, to a certain extent,
examined the manner in which this revelation takes place, we
must now place ourselves in contact with objective existence,
and inquire whether the nature which we are thus to obey

^ Butler, utsup., ser, ii. p. 19.

2 Meta.ph. of Ethics, p. 137, and Theory of Ileligio7i, p. 69, SeiDi>le's trans.

^ Ante, p, 54.

WHICH NATURE REVEALS. 205

reveals to us risjlits and duties as existing^ in ourselves and
others, and if so, what is their character, and what are their
relations and their limits ?

1. Nature reveals no rights in relation to the Creator.

The necessary truth of this proposition has already, I trust,
been sufficiently established.-^ It places us at once in a dif-
ferent relation to God from that in which we stand to all
created existences. In asserting that it is the result of a
cause external to itself and independent of its volition, and
in joyfully accepting itself as it is, our nature negatives the
conception of rights on the part of the creature, or duties on
the part of the Creator.^ The importance of this assertion in
religion consists in differencing the relations of Creator and
creature from those of creature and creature, not in degree,
but in kind, and indicating the necessity of a different revela-
tion.^ Its moral importance consists in founding jurispru-
dence, not on primary rights, but on primary facts, by which all
subsequent rights are measured, and their respective spheres,
whether subjective or objective, are determined ah extra, and
will Ijecome more and more apparent as we proceed. We shall
find that it is this de facto origin wliicli, by removing our
human rights beyond the reach of liuman volition, communi-
cates to them their divine character ; and, moreover, wliich
gives to positive law, as the rule determining these riglits in
the special instance, the declaratory character whicli clotlies
it also with a similar sanctity.

' Cliap. iii. jwr. 3, 4. " yii'tr, p. r,8.

* Summa, ii. ii., quji-H. Ivii. art. i. vol. viii. |i. 117; ami S<'iiii»l(;',s Kaiit'.s
Throry of Rdiijion, p. iJO.'J, n.

20G OF THE EIGHTS AND DUTIES

There is one sense, indeed, in whicli some have thought
that ridits exist in tlie creature in reLation to the Creator —
viz., that it is impossible, or at least unthinkable, that He
should do them wrong.^ But such an assertion plainly in-
volves a vicious circle ; for it assumes a criterion of right and
wrong which is dependent on the character of the actions to
whicli we seek to apply it. Unless we had a measure of
virtue independent both of nature, which is God's work, and
revelation, which is God's word, the two assertions — first, that
God must do what is right ; and second, that what God does
is right, in so far as His creatures are concerned at all events
— must be absolutely identical. For this reason I never could
see the object of the controversy as to whether morality be
dependent on God's will, or God's will dependent on morality.^
Our conception of goodness, like all our concejjtions, must rest
on a postulate in the last instance — fatalism, in this sense, is
inevitable — and if we assume a standard of morality anterior
to or apart from God's will, we simply assume another god
whose will it is. Nor is any real progress made by the
modification of the theological doctrine originated by Leibnitz,
who has been followed by Krause and Eoder, and, I believe, by
Professor Mansel, which seeks the origin of morals not in the
will, but in the nature of God ; for here the distinction is
either merely verbal, or else it carries us into a region where
consciousness is silent and knowledge impossible. If God's
nature and His will be harmonious, we have merely substi-

^ " Das Fromme ist nicht das Fromme weil die Gotter es lieben ; sondern die
Cotter lieben es, weil es das Fromme ist."
^ Cudworth, preface, p. xxviii. et 2')assi7n.

WHICH NATURE REVEALS. 207

tilted one word for another : if tliey are discordant, the nature
of a being so constituted is no better a measure of virtue than
his will, and neither of them will furnish us with a basis of
morality or a criterion of right and wrong.^

2. Nature reveals to v.s duties in relation to the Creator.

That notwithstanding the absence of all corresponding
rights, we owe to God the religious duties of gratitude, adora-
tion, obedience, and faith — or trust in His beneficence, even
where it is not apparent to our understandings — has never
been substantially questioned by sane men, however rude or
corrujjt.

But the feeling that God is absolutely independent of us,
and that it is only in a figurative sense that we can talk of
serving Him, has led many, even amongst ourselves, to infer
that our secular duties have reference exclusively to our
fellow-creatures — that it is to man and not to God that we
owe them — and this erroneous conception of secular duty has
led to two very unfortunate results.

\st, A cleft has been made between religion and morality,
which has led to the notion that our devotion to one class of
"ur duties must necessarily be in an inverse ratio, wliereas in
reality it is in a direct ratio, to our zeal and inchistry in tlie
other. Not only in mediaeval Ijut in liHxh.'i'ii times, men

* Sec the opiK)sitc view Htated by Shaftesbury {Inquiry concerning Virtue^ vol. i.
pt iii.) and Lcckie (vol. i. p. 55). " The theory," says tlie latter, " which teaches
that the arbitrary will of the Deity '\n the one rule of morals, and the anticipation
of future rewards and piini.shnientw the one reason for conforming to it, consists
of two jMirtit — the first annihilates the goodn(!SS of God, the second the virtue of
man." Tho "two partJ<" appear to me to bo entirely independent; and wliilht
the firMt proposition rests, I Indieve, on a logomachy, Mr Ljckir's dissj-nl rroin
the second has my wormest sympathy.

208 OF THE RIGHTS AND DUTIES

have become " slothful in business," in the belief that they
" were thereby serving the Lord," and in extreme cases have
arrived at the still more objectionable conclusion that it was
possible to be pious without being honest.

2d, A line has been drawn between the subjective and
objective sides of morality, by which the former lias been
robbed of the character of virtue.

From failing to regard our subjective duties, or duties to
ourselves, as duties imposed on us by the constitution of our
nature and the scheme of the universe, our subjective rights
have come to be regarded as destitute of any other sanction
than the reflected one which tliey derive from such duties to
our neighbours as their performance may involve. If tlie
rights which I assert, or the acts which I perform in my own
behalf, can be shown to minister to the interests of another,
to this extent they become not my rights but his. On my
part they are duties which I owe to him, and their perform-
ance by me is admitted to possess the character of virtue
which belongs to all acts of duty. But if, on the other hand,
I alone am interested in them (and this isolation of self-
interest though impossible as a fact, is the only hypothesis to
which we are entitled, so long as we are dealing with the sub-
jective side of morality exclusively), these rights, when viewed
apart from the relation in which I stand to God, assume the
character of assertions of my solitary being as opposed to
being in general.

It is tliis train of thought which, if I am not mistaken, has
led to the identification of virtue with benevolence by Hutche-
son, and still gives vitality to a scheme of ethics amounting

WHICH XATURE EEVEALS. 209

to nothing short of a surrender to the opponents of absolute ^
morality of the common ground on which not only sabjective
but objective duty ultimately rests.-"-

It is quite true that, from the necessary interdependence of
subjective and objective interests, the whole of our subjective
rights are in reality objective duties. In the sequel I hope
to show that there is no right subsisting in any creature the
assertion of which is not a duty owed by that creature to
his fellow-creatures. But though the reality of our subjec-
tive rights thus admits of confirmation from an objective point
of view, it is not thus that they arise ; and it is not from the
objective but the subjective side that we must enter the field
of ethics in search of a natural basis for the science of juris-
prudence. In relation to the creature and to created exist-
ence, we begin not with duties but with rights, just as in the
process of respiration we begin with inspiration and not with
expiration.

My neighbour is but a reflected image of me. I cannot
interrogate his consciousness, or ascertain the revelations that
nature makes to Lim. My knowledge of his rights and duties

* "Men come into the world," says Mr Leckie, "with tlioir benevolent
affections very inferior in power to their selfish, and the function of morals is to
invert this order. The extinction of all selfish feeling is impossible for an in-
dividual, and if it were general, it would result in the dissolution of society. The
qaeiftion of morals must always be a question of proportion or degree." — Leckie 's
Enr(/]t. Af(/rals, vol. i. p. 103 ; sec also p. 4. Now, if the extinction of this feel-
i ing would result in the dissolution of society, how can an ap])n)xiiiiation to this
extinction bo the question of morals ? Is society held together only by a principle
i which morality seeks to extinguish ? The false; antithesis between the 8ubj<!ctivo
I and objective sides of duty, and the representation of the former as vice an<l the
i \AiU:r as virtue, is an error which pervades the wholi- of this learned mid most
i interesting work.

210 OF THE EIGHTS AND DUTIES

is thus only inferential. It is an inference, as we shall see
presently, which my nature compels me to draw. Still it is
an inference derived from self-knowledge; and if I do not
know that my own rights and duties are absolute, I have no
ground for inferring that his are so. An abandonment of the
absolute character of subjective rights is thus an abandon-
ment of the absolute character of objective rights — i.e., of
morality altogether.

The true view of the matter, and that in which the opposing
systems represented in this country by Hobbes and Hutche-
son — who were, however, by no means their originators — find
their meeting-point and their complement, I believe to be this.

Our subjective rights, though not rights exigible by us
against God, are not the less on that account rights exigible
by God against us, and by us against others in God's name,
for the simple reason that they are rights inherent in the
nature which God has formed, and with which, by the act of
its creation, He has identified Himself. To these rights, duties
to God, and through Him to our own nature, correspond, the
fulfilment of which, in His eyes, and with reference to the
whole scheme of His government, are just as imperative as
those which correspond to the objective rights of others.
Moreover, that the performance of these duties on man's
part possesses the character of virtue, not less than the per-
formance of his duties to his neighbour, will, I think, be
apparent from two considerations.

Isty The acts which these duties imply — viz., self-defence,
self-support, self-respect, self-development, and in the end, it
may be, the still harder task of bearing life under intense

WHICH XATUEE REVEALS. 211

bodily and mental sufifering till God in His mercy shall take
it away, — all these are voluntary acts, often neglected, and
when performed at all, performed often at a fearful sacrifice
of present ease, or immediate relief.

2d, Being acts which tend to the realization of the idea
of nature, they are in accordance with that nature as a whole,
and consequently with the will of its Author and the scheme of
His government. But acts voluntarily performed, in opposi-
tion to the abnormal and exceptional impulses of our nature,
with a view to the realization of its central idea, fulfil, as it
seems to me, all the conditions which attach to the idea of virtue.

Another consideration which points at the same conclusion
is this. In popular speech we continually talk of " duties to
ourselves ; " and the existence of such duties is not denied
even by those who refuse to assign to their discharge the
cliaracter of virtue. Self-respect, they say, imposes on every
rnan the duty of supporting himself to the extent of not
becoming a burden on his relatives or the parish. But wliy
should the duty stop there ? Tlie very same principle which
carries him the length of not being an object of self-reproach,
does not cease to appeal to him till lie has availed himself, to
the fullest extent, of the powers which God has bestowed on
him ; and the extent to which, and the circumstances in which,
this duty is jjerformed, are the measure of the virtue which
attaches to the performance. I do not qualify the character
which I a,ssign U) this duty even by saying that its fulfilment
is a virtue "to the fullest extent coiiii)atib]e with the interests
of others," Ixjcausc the interests of all arc; not only reconcil-
able, but inseparable, and the high(!Ht forms of self-intcjrost nnd

212 OF THE EIGHTS AND DUTIES

benevolence are ultimately identical.^ It is from the latent
consciousness of the equal sanctity which attaches to all natu-
ral rights, and the fact of the identity of interests, that the very
same acts which the one class of philosophers lauds as benev-
olent and virtuous, the other, on selfish grounds, commends
as useful, and tliat the practical outcome of the two systems
is far less divergent than their authors believe and intend.
On the other hand, however, the effect of the one-sidedness
which belongs to them both is but too often exhibited in the
tendency of the one to a forgetfulness of our duties to our-
selves, which ends either in morbid self-condemnation or
insincere sentimentalism ; and of the other to a forgetfulness
of our duties to others, which leads to acts of flagrant injustice.
The remedy is the very simple and obvious one of conforming
to the law of integrity^ by remembering that we are God's
creatures ourselves as well as our neighbours, and that His
command to us with reference to others will be fulfilled if we
love them, as He desires and intends that we should love
ourselves.

3. In OUT relation to creation, animate and inanimate, nature
reveals rights.

(a) The faet ofheing involves the right to he. — Law and fact,
like right and might — like truth and existence ^ — in the last

^ "The happiness and welfare of mankinil are evolved much more from our
selfish than from what are termed our virtuous acts," &c. ; and yet he regards the
former as vicious and the latter as virtuous ! — Leckie, vol. 1. p. 38. Does not
such a train of reflection show that what are termed our selfish may be also our
virtuous acts ? Selfishness, as we shall see below, consists of self-assertion pushed
beyond the point at which it begins to be self-contradictory and suicidal — infra,
cap. xii.

'■^ Ante, p. 183. ^ Ferrier's Institutes of Mctaphysic.

WHICH NATURE EE VEALS. 213

analysis, are identical, and therefore it is that Plato has said
that law is the finding out of what really is — rov ovro? ii^vpecn^;}
Though the relation of Creator and creature excludes the
idea of a right to existence on the part of the latter, the
moment existence is conferred that relation bestows on it the
character of a right which neither its possessor nor any other
creature is entitled to dispute.^ In life, as a phenomenon
presented to us by consciousness, we have thus a revelation
not only of the fact of possession, but of the idea of property —
i.e., of possession held on a title, or possession and right. But,
further, the consciousness of life is a feeling of separation from,
and independence of, other created organisms. It is a feeling,
not of abstract and general, but of concrete and special, exist-
ence— not of something is, but of / am, Nor is this feeling
of individuality a consciousness of separation merely, but of
power and energy to resist surrounding influences which tend
to produce dissolution or absorption.^ The Ego consists in,
and is measured by, the power which it possesses to dispense
with the aid, and resist the influences of the non-Ego ; and as
the right corresponds to tlie fact of existence, we thus per-
ceive that the measure of the rigid to he is the ijower of being.
In su))jective morality we thus find the origin, as in objective
morality, rightly understood, I trust we shall find the justifi-
cation, of the recognition of r/c farJo power and possession in
*»very department of jurisprudence.

(h) The right fo he involves the right to continue to he. — The

' ('nlv«!rwi;ll, |), 43. ' Cou«in, P/iihsojiIn'r. Sensunli.slr^ p. 3*22.

* It in in the con8<;iou«ncHH of free energy that the; K'jn prrceivcH and alfirnis its
own cxijttcnco. — Cotutin, lU sup.

214 OF THE RIGHTS AND DUTIES

existence of which we are thus the rightful possessors is an
existence in time. The right to be consequently brings along
with it a right to continue to be, which, in its duration as in
its extent, is limited only by the power of its assertion. In
this natural rioht to continue our existence we behold the
origin of the right of self-defence, and of the laws which we
enact for the security of the person ; whereas in its objective
or reflected aspect, as we shall see hereafter, it imposes the
duty not only of protecting the lives of other human beings,
but of prohibiting, and, as far as we are able, preventing
the wanton destruction of human, animal, or even vegetable
life.

(c) Like the right to he, the right to continue to he has no
validity against God. — The withdrawal of the power to live, by
Him, is a withdrawal of the right to live ; and there is, conse-
quently, no injustice, in any sense which created beings can
attach to that word, in natural death, or in natural decay.
The shrinking which we feel from natural dissolution, in
so far as it is a natural sentiment, is probably an instinct
which is reflected on our finite from our infinite nature.
We are reluctant to leave what consciousness tells us is an
imfinished task ; and if we take the ars longa in its highest
conception as the realization of the idea of humanity in the
individual and in society, it affords the strongest argument in
favour of the belief that the vita hrevis applies to this life
only. It is at variance with our necessary conception of the
Divinity that He should not enable us to complete a work
which He has assigned to us ; to realize an idea that He has i
set up within us ; and the limitation of conscious existence to

WHICH NATURE REVEALS. 215

this life thus seems to involve a contradiction. But, on the
other hand, immortality in this world is manifestly at variance
with the scheme of the universe, as we see it with our own
eyes. When, from the incapacity of a man's existing organ-
ism, spiritual and corporeal, to sustain further development, or
even continued activity, the period of his natural death has
arrived, he has no more right to live than he had to be born
before his time, or to be raised from the dead. His right,
then, is to die ; for it is by that reorganization, that new syn-
thesis which follows on the analysis which we call death, that
alone he can be righted — i.e., kept in harmony with organic
existence as a whole, and enabled to live — in Kosmos. What
is true of individual is probably not less true of national life ;
and as regards both we can thus see, even by the light of
reason, that " to die is gain."

{(T) The right to he, and to continue to he, imiolies a right to
the conditions of existence.

Hitherto we have considered life as consisting only of the
power of repelling aggression, with its corresponding right.
Jjut active qualities of another class belong not less certainly
to its essence, and its continuance is not less obviously dc-
])endent on their exercise. These are the powers which every
living organism possesses of attracting to itself and assimilat-
ing such external agencies as are necessary to its being. As
our natural powers of repulsion furnish the warrant for our
laws of self-protection, so it is in tlic powers of attraction of
which we now speak that our rights of ])r()perty and laws of
exclusive ^ po.ssession originate.

' Tiic iini>ortanco of cxcluHivcncHM aM an el«;iiiciit in viilui^ is dwell upon \\y

216 OF THE RIGHTS AND DUTIES

It is when the idea of property is seen in its inseparable
connection, not only with the life of man, but with organic
existence altogether, that we get hold of the final answer to
that whole phalanx of social, political, and economical errors,
which, under the names of communism, socialism, levelling,
equality, and the like, have so tortured mankind, which still
make up the popular conception of what, abroad, is called
" the revolution," and of what we and the Americans are apt
to include in our conceptions of " progress."

The powers of respiration and digestion, by which animal
life is sustained, exhibit themselves in acts of appropriation ^
which are involuntary even in man ; and it is obvious, con-
sequently, that the amount of appropriation which these
powers warrant, in other words, which nature dictates to
them, is the amount of which they are capable. The lungs
of a man, or of a horse, are capable of decomposing, and their
stomachs of digesting, a vastly greater amount of nutriment
than the lungs or the stomachs of a monkey or a mouse ; and
to precisely the quantity which the animal can appropriate,
the animal, in each case, is entitled, so long as he is entitled
to be an animal at all. Nay, in proportion to the extent to
which the powers of life increase or diminish in the same
animal, does his right to the conditions of life go along with
them. A child is not entitled to a grown man's food, either
in quantity or in quality ; nor a sick man to the food of a

Aristotle, Polit., ii. 1. — ^Kiara yap iirifxeKiias rvyxo-vn rh irXdaTOiv KOivov — a
significant hint for the communists.

^ The act of appropriation supplies the element of labour, which certainly ac-
companies but does not constitute the right of property, seeing that labour pre-
supposes power, and power presupposes life, and life is property.

WHICH XATURE llEVEALS. 217

man in health ; and though the child or the sick man should
possess boundless wealth, we do not hesitate to impose re-
straints on either of them.

Nor is the law that life confers rights to its exercise, cor-
responding in extent to the powers of which it consists, con-
fined to animal life. By analogy it embraces the whole range
of organized being. The life of a tree, we have every reason
to believe, is an unconscious life ; and the tree has therefore
no rights or duties in the human sense, or even in the more
limited form in which they may be ascribed to the higher
animals. But the life of the tree involves, or implies, this
very same power of preserving its separate existence by what,
analogically, may be called acts, not of repulsion merely, but
of aggression and appropriation. So long as it lives, and
in proportion to the life which is in it, it resists the influ-
ences which produce decomposition, and assimilates the sub-
stances which conduce to its support. Farther, the particles
of carbon, oxygen, hydrogen, &c., which the tree takes up
from the circumjacent earth and circumambient air, become,
in a sense, its property — property which it liolds by the
very same tenure by which it holds its life, whereas, up to
the moment of appropriation, no such relation subsisted be-
tween them.

lint the analogy between vegetable life and those acts of
appro];riation by which man vindicates the rights of his lu'ing
is a very limited one. It is not till we reach the higher
animals that we come in contact with volnntary activity, and
l)Cgin to trace, in the germ, that consciousness of the relation
Ixitwcen power and riglit which lies at the root of the hnman

218 OF THE IIIGHTS AND DUTIES

idea of justice. When a stag stands at bay, when a dog barks
on his chain, growls over a bone, or manifests affections which
often place him in favourable contrast with human beings,
they give unequivocal indications of a sense that life, liberty,
external objects, and individual sentiments belong to them,
are theirs, their property ; and we find, moreover, that our
instinctive tendency to recognize the justice or righteousness
of this sentiment is precisely in proportion to the power
which it exhibits. ^ The needless destruction of a worm,
like that of a flower or a shrub, scarcely rises above the
character of malicious mischief. But the needless destruc-
tion of a horse or a dog, the wanton infliction on them of
suffering, or even the unnecessary limitation of their liberty
or their enjoyments, we have no hesitation in regarding as
cruelty, or injustice to them, and, on man's part, as an
unjust violation of their rights. We would not for the
world even hurt their feelings. In the case of the higher
animals, then, it is apparent that life can be justifiably taken
away, or liberty restrained, only on behalf of life or liberty,
with a view, i.e., to the securing more or higher life or liberty
on the whole. We may kill an ox to eat him, and there are
objects for the attainment of which perhaps even human life
may justifiably be taken away ; but if we kill an ox, even if
it be our own ox, from mere wanton love of destruction, we

^ ]>otli Hegel and Fichte deny the rights of animals altogether, and reduce
them to living machines. Fichte said that the cry of an animal means no more
than the creaking of the hinge of a door. The veriest Cockney in England knows
them better, Krause does not go quite so far, but he doubts if animals have
rights, p. 98. Surely even the doubt vanishes if we accept poiver as the source
of right, for of their powers there can be no question.

WHICH NATURE EEVEALS. 219

do a cruel and wicked act ; and if we kill a man in similar
circumstances, we commit murder.

It is to these natural feelings, rather than to any real belief
in a metempsychosis, that the doctrine of the absolute sacred-
ness of life has been indebted for its advocates in historical
circumstances so various. In like manner it is from the pro-
tection which nature herself casts around them that the degree
of safety to life and property attained is the surest test of
the grade of civilization which a community has reached.

Professor Roder, and many other excellent thinkers and
writers of the school of Krause, are of opinion that there are
no circumstances in which the voluntary destruction of human
life is not a violation of natural law. The higher animals,
they say, may destroy the lower, but man being the highest
created existence on earth, his life can be lawfully taken
away by God only. Its destruction by man never can pro-
mote life on the whole, though it may seem to do so in an
individual instance, or at a particular stage of social progress.
Tliis argument, though it does not involve vegetarianism, ap-
pears to carry us the length of an absolute prohibition not
only of capital punishment, but of war. Whether the con-
sciousness of humanity, under tlie guidance of Christian in-
fluences, ]>e not developing itself in directions wliicli may
render the acceptance even of these consequences imperative,
is a question on wliicli it is not desirable that we shouhl
enlarge in this place. A few words, however, I sliall venture
to say, by way of ])lacing the discussion on wliat I conceive
to be its true basis.

The question which has been so often uskcd, whether the

220 OF THE RIGHTS AND DUTIES

right to punish, and, above all, to pnnish capitally, be an
absolute or a relative right, arises, as it seems to me, from a
confusion l}etween natural and positive law. Natural law,
resting on a postulate of the rectitude of nature, is neces-
sarily absolute. As an end in itself, it is to be vindicated
for its own sake. Positive law, on the other hand, as its real-
ization in time and place, is absolute only on condition of
tliis realization, and to the extent to which it is effected. If
positive law realizes absolute law, it partakes of its absolute
character — if I may be permitted the phrase, it is relatively
absolute. ISTow the law which inflicts capital punishment for
murder is a positive law. The natural, absolute law is " Tliou
shalt not kill." That law is imposed on us by our nature,
and, for us at least, it is an end in itself The positive law
which says the killer shall be killed, is absolute only in so
far as it tends to prevent killing, and thus to realize the
natural law. It proceeds on the assumption that he who has
killed once is likely to kill again ; that his example will incite
others to kill; and that killing, on the whole, will be prevented
by killing him. If there be an easier and cheaper mode of
vindicating the absolute law — i. e., a mode in which the
murderer's life can be spared without sacrificing other lives,
then capital punishment is forbidden by the absolute law by
which on the opposite assumption it was justified ; but that
is a question which can be answered only relatively, and to
which the same answer will not be always and everywhere
the true one. The argument against this relative view of
capital punishment is that the absolute law, " Thou shalt not
kill," applies to society as well as to its individual members.

WHICH NATUKE REVEALS. 221

and that capital punisliment is thus a violation of an absolute,
natural law, be the circumstances what they may. To this
the answer is that society stands in God's place as regards its
indi\ddual members, and that God takes life away in accord-
ance with laws which we assume to be riditeous. The final

difficulty for the relative argument seems to be that God
gives life, and society does not. But to admit this as an
argument against capital punishment would be to admit it as
an argument against all punishment. Society can no more
restore time or liberty than it can restore life. Society, or
the general will, it is true, is an imperfect realization of
absolute justice, but it is the only possible realization of it
on earth. The theory of the divine right of sovereignty was
an error, only when sovereignty was centred in a single will ;
for till we remount to an earthly absolute, there is no ultimate
resting-place or starting-point for positive law of any kind.
The fact that one form of punishment attains the object of
the absolute law better than another must be proved ; but
the competence of the legislature to determine the adequacy
of the proof must be assumed as the hypothesis on which all
positive law rests. This relative view of the riglit of society
to punLsh, even capitally, is, of course, at variance with
Kant's famous saying, that tliougli society were on tlie point
of dissolution, the last murderer ought to be put to deatli.
Human punisliment, I think, has always reference to tlie
future, and as here there is fx hypotlicsi, no future, the killing
being justified by no Iiojk; of preventing killing, would fall
\inder the prohibition "Thou shalt not kill." The case would
b<' in God's liands. 'I'he saiiK^ line oi' jirgiimcnl wliicli we

O 9 9

OF THE HIGHTS AND DUTIES

have here indicated with reference to capital punishment,
yields, of course, the same relative result with reference to
another question much agitated in our midst — the question,
viz., of vivisection. I never could see that anything beyond
a relative or hypothetical answer could be given in this case
either. If the suffering and loss of life caused by vivisection
does diminish suffering and save life, and life of a higher
kind, — on the whole, then, to the extent to which it does so,
it is justified, but not otherwise or fartlier. Both end in
questions of fact, not of principle. The former question —
that of capital punishment — seems to admit of the applica-
tion of the ordinary statistical method of inquiry; and the
application of that method has recently led to a revival of
the practice in several countries in which it had been aban-
doned. To get the vivisection question out of the region of
opinion, or perhaps of interested assertion, seems much more
difficult. Even supposing his object to be justifiable, who
but the experimenter can tell how many experiments may be
requisite to attain it ?

(e) The right to he implies a right to develop our being, and
to the conditions of its development. — It is in the consciousness
of the right and duty of self-development that the peculiar
characteristics of humanity ultimately exhibit themselves.
The acts by which the higher members of the brute creation
assert their rights are neither involuntary nor, in a certain
sense, unconscious ; but they have reference either to the con-
tinuance and transmission of existence as it is, or, at most,
to the growth of the physical frame. If there be anything
beyond this, it takes place in accordance with laws of pro-

WHICH NATURE REVEALS. 223

gress Tirhich do not affect the relations between rights and
powers at each stage of the action of these laws. Whatever
may be the answer which shall ultimately be given to the
question as to the relation between apes and men, that
answer will not affect the assertion that there is analogy
enough between physical growth or animal training on the
one hand, and spiritual development on the other, to exhibit
the universality of the law that powers assign the only limits
to rights, and that rights involve the conditions of their own
assertion. The right of development in man exceeds the
right of development in the other creatures, precisely in pro-
portion to the extent to which his capacities of development
surpass theirs. The rights of the man will exceed the rights
of the ape, so long as the one continues to be a man and the
otlier an ape, and the question whether or not the one may
pass into the other is nothing to tlie purpose. And the same
law liolds true in reference to individual members and races
of the human species. It is no more possible to bring natural
inequalities to a level by means of education, than to teach
music to the deaf or painting to the blind ; and what we are
forbidden to accomjilish we are not called upon to attempt.
Moreover, as man, even pliysically considered, is the most
dependent of animals, so it is in this peculiarly human direc-
tion that Ills dependence becomes most conspicuous. Our
])hy8ical growth, like that of any other animal, will attain its
po8.sible limits by the aid of our parents and a very few of
those with whom we arc immediately surrounded. Ihit the
ftpiritual maturity of a single individual, in so far as it is
attainable at all, will l)e tlie result of l\nt jiast and present

224 OF THE RIGHTS AND DUTIES

efforts of the whole human family. So far, then, from search-
ing for the ultimate characteristics of humanity in primitive
man, the chances of finding them, or rather of approximating
them, in individuals or in generations, will always be in
favour of those on whom the widest range of historical influ-
ences has been brought to bear. Unlike the lower creatures,
the alternative of a stationary existence, even within the
limits of his own species, is not offered to man. His choice
lies between progress — which, in so far as his individual
powers permit, knows no limits short of absolute conformity
with the divine nature, which is the true human ideal — and
moral and intellectual retrogression, which ultimately becomes
irreconcilable even with his physical existence, and is merci-
fully cut short by his disappearance from the earth. A non-
historical is usually a decaying race ; and the same is true of
families, for the simple reason that men do not record activity
or indolence of which they are ashamed. It is consequently
not without reason that the presumption of society is in
favour of families having long pedigrees. It is in this pecu-
liarity of our nature that we see the foundation of the right
of the individual to demand such education as he has capa-
city to receive on the one hand, and of the duty of the
parent, and of the State, to communicate it on the other.
Nor is there any other point of view in which the righteous-
ness of the principle of Us carridres ouvertes becomes more
apparent, both in a subjective and an objective direction,
than this. To rob a man of the fruits of such powers of
spiritual development as God may have seen fit to implant
in him, is the last and highest form of injustice ; whereas

WHICH NATURE REVEALS. 225

as regards others, the loss of a single man of genius (supposing
such an event to be possible) would, in most cases, be a far
greater disaster than the loss of a battle even to the community
in which it occurred, whilst it would be one in which man-
kind and futurity would participate far more extensively.

The question of education by the State, like that of charity
by the State, and, indeed, like positive law altogether, is thus
reduced from a question of principle to a question of fact.
In so far as individuals or communities will or can educate
themselves, that is the arrangement which nature approves
in the first instance. If they will not, or cannot, then State
interference assumes the aspect of a subjective right, the
reality of which is guaranteed by the existence of an indis-
putable objective duty. Free State schools are justifiable
only under the same limitations as free State charity ; and
the same principle applies to aided schools, in so far as the
aid exceeds the benefits conferred on the classes from whom
it is derived. Compulsory attendance is a substitute for
voluntary attendance which only necessity can justify, but
which necessity unquestionably does justify. It is an inter-
ference with lower in behalf of higlier freedom of the indi-
vidual. It is the State treatijig tlie parents just as the
])arents treat, or ought to treat, their cliildrcn — imposing on
them the Ijondage of school, that they may be ireed from the
greater bondage of ignorance. All (piestions as to rights thus
resolve theni.selves into (questions as to capacities or powers.
Till the presence of these has been estaljlished, the rights do
not emerge. But their absence must not In; hastily assiinicd ;
and on whatever career any individual wishes to enter, tliat

22G OF THE RIGHTS AND DUTIES

career he or she is clearly entitled to have thrown open to
him or to her. The desire is a prima facie proof of the
power. That the distinctions which nature has established
between the functions of the sexes, and the endowments of
individuals and races of mankind, will speedily make them-
selves apparent, is a subject with reference to which we may
spare ourselves all anxiety. Of the clearness with which
these considerations are everywhere forcing themselves on the
public mind, in our own day, the adoption, and probably the
exaggeration,^ of the system of competitive examinations, is
perhaps the most conspicuous proof.

(/) The right to he involves the right to reproduce and mid-
tijylg our being.

ISTo divine command, directly given, is more obviously in
unison with the promptings of nature as revealed by con-
sciousness, than the command to " be fruitful and multiply."
After the instinct of self-preservation, by far the most power-
ful, in all healthy natures, is that of propagation. The con-
comitant of man's purest and loftiest affections and of his
vilest and most degrading passions, inextricably intertwined
with his moral as with his physical life, the root of the
family, the mainspring of ambition, the incentive to vanity,
it is not wonderful that its due regulation should occupy so
large a space in every code of laws, civil and criminal. The
power of reproducing our species being nature's compensation
for the waste of individual life and the limits which she has
imposed on its duration, is usually manifested in greatest
vigour in the circumstances which appear most to call for its

^ Thoughts u2)on Government, by Arthur Helps, p. 62.

WHICH NATURE REVEALS. 227

exercise. Xew communities grow vastly more rapidly tlian
old ones : colonizing than stay-at-home nations : the ravages
of war and pestilence are suppKed with wonderful rapidity :
and even the high death-rate occasioned by our manufacturing
system and our city life, is compensated by a birth-rate
unknown amono^st the longf- lived inhabitants of our rural
districts. In all this the closest analogy is apparent between
man and " the grass of the field." The command which
nature lays upon the one she fulfils spontaneously in the
other. Again, the contradiction which seems to arise be-
tween the command on the one hand, and the narrow limits
within which obedience to it appears necessarily to be con-
fined, finds its counterpart both in the lower animals and in
the vegetable creation, and thus the action of those legal and
even social impediments to marriage, which sometimes pre-
sent themselves to the mind as the worst of evils, take their
place in the general arrangements of nature. Of the pollen
which is scattered by every summer wind, and even of the
seed which every autumn ripens, the proportion wliich comes
10 maturity as plants and trees is certainly not greater
than that of the human beings that spring from the endless
potentialities which seem to lie in every community and in
each generation. Amongst all animals, again, with the excep-
tion of man, tlie limitations to multiplication wliicli man
feels called upon voluntarily to impose on himself, are
involuntarily enforced, not only by the necessities of the
carnivorous species, but by the power of i)r()pagation being
dependent on physical conditions which recur only at certain
Hi'.'iHons. The ol)ject of nature, thrDUglioiit, H(;onis to ])v. Uic.

228 OF THE RIGHTS AND DUTIES

reproduction of the same ty^^e, not deteriorated, but, if possible,
improved by individual selection ; and the object of all marriage-
laws which obey her behests, will be the production of the
greatest possible amount, not of animal being, but of human
wellbeincr. A man who cannot bestow a human education on

his children has no more natural right to marry than a man
wlio cannot beget them. But how the poor or improvident
man can legally be prohibited from marrying, is a problem
which no legislator has yet succeeded in solving, and which
probably does not belong to legislation. There is yet one
other direction in which the analogy which runs through
the natural laws of reproduction, both in the vegetable and
animal kingdoms, is suggestive. Weeds grow more readily
and multiply more rapidly than grain ; reptiles than animals
suited for domestic purposes ; and worthless, improvident,
and diseased human beings, than those that are virtuous,
frugal, and healthy. Why it should be so is a question which
we must probably be contented to hand over, unanswered, to
that element of apparent contradiction in the government of
the universe, which will for ever defy explanation by us.
But tlie political suggestion which is offered by the undoubted
fact is very obvious — viz., that it is not by positive restric-
tion imposed by our marriage-laws, which would certainly be
inoperative, but by improving the conditions of life physically,
but still more intellectually and morally, of the whole people,
that we must seek for a remedy to the evil of over-population.
If the festering masses which congregate in our great centres
of population could be spread over the land, and raised to the
position of intelligence and wellbeing of the prosperous rural

WHICH NATUEE EEVEALS. 229

population of tins and other countries, tlie problem of over-
population would be solved by those natural laws on the con-
tinued action of which we can safely rely. Let us hope that,
to some extent, this may be effected by those changes in our
land -laws which are now in contemplation. But, at all
events, do not let us delude ourselves by regarding the rapid
multiplication of our town-populations as anything else than
an indication of the low conditions of their average life. Of
the many idola insular which we cherish, few have been so
hurtful to us as that of accepting our birth-rate as a test of
material wellbeing.

{<j) The right to reproduce and midtiijly our being involves
the right of transmitting to our offspring the conditions of the
cjyistence vjhich loe confer.

As regards our children and our direct descendants, the
right of transmitting property springs as obviously from the
right of transmitting life, as the right to possess property
springs from the right to possess life. And inasmuch as the
character of the life which we possess determines the character
of its conditions, so it is of the life which we transmit. We
are entitled not only to live, but to live humanly; and the life
wliich we are entitled to transmit is not Ijare existence in the
abstract, but human existence. Human life, however, involves
the conditions, not only of its continuance, but of its develop-
ment, and in tliis respect also the same privileges cling to
the life wliich we are entitled to transmit. What is commonly
and quite correctly regarded as a duty to our cliildren, is thus
at the same time a right inherent in ourselves, which we are
entitl- d to a«sert a« aj'ainst other created existences; .md our

230 OF THE EIGHTS AND DUTIES

laws of inheritance, as well as our laws of property, have thus
their root in the subjective 'persona, and their validity when
seen simply from the subjective side.

(/i) The right to he involves the right to dispose of the fruits
of being, inter vivos.

The children we beget are fruits which grow on the tree
of life. Up to the period of maturity, the rights of the tree
to its fruits are the same as to its leaves. They are part of
it, and cannot be separated from it without injustice — injury
to it, destruction to them, loss, in short, to organized exist-
ence. But this right terminates when the period arrives at
which the tree no longer draws nourishment from, or com-
municates nourishment to, the fruit. The ripe fruit falls to
the ground, and becomes directly or indirectly a source of
separate organic life. Now, a relation very closely analogous
to this subsists between human beings and the fruits of their
bodies. In the earlier and ruder stages of society, children
are regarded as the property of their parents, and, till they
have attained to maturity, they continue in civilized states to
be more or less closely dependent on the parent stem. In
this principle we see the natural foundation of the laws of
guardianship, and their natural limits, and the answer to all
those fraternal theories of separate and independent individual
rights so prevalent in France and other democratic countries at
the present time, on the one hand, and to the paternal theories
of the old despotic monarchies and aristocratic republics, on
the other.

Nor do the rights of man to the fruits of his labour differ
from those to the fruit of his loins, either in their origin or

WHICH NATURE REVEALS. 231

in the principle which limits them. Property, as we have
seen, is a consequence of life ; ^ like life it is God's gift, and,
absolutely considered, it is God alone who can take it away.
Till this occurs, the rights of the proprietor are limited only
by his capacities of use and enjoyment.^ He may sell it — i.e.,
exchange it for property in another form — or give it away, even
to a stranger, for any object which is not insane or criminal,
— for any object, that is, which is not really at variance with
his own use of it. But the right to property which nature
reveals affords no warrant for waste, or for the exercise of
mere caprice. A blind man, for example, would have no
right to burn a library, or a picture-gallery, w^hich belonged
to him, or even to shut it up,'^ though he might sell it, or
exchange it, or give it away. On the same ground, that
there is no right of mere exclusion, it has become an estab-
lished rule of international law, that an unoccupied country
cannot be acquired, even by the first discoverer, by a proclama-
tion, the setting up of a flag, or the like, but must be actually
taken possession of, and occupied. We know how utterly
futile were all those " proprietary grants " of unoccupied terri-
tory in America to private individuals by the Stuart kings.^
Indeed, it is in the inseparable relation between rights and
powers of use and enjoyment, as we sliall see more fully here-
after,-'^ that the de facto principle, in all its applications, finds

' Ante, p. 215. 2 j^ii^.^ p 210.

^ May a total abHlaincr ])uil(l up Imh cellar, an a diKtinguiHhcd citizen of Kdin-
burgh IM uaid to liavo done? No! If lie in ri^ht in condemninfj tlio uwe of
Htrong drink, lie Ih liound to dejjtroy it ; if he \h wron^', he is not entitled to keep
it from luM friendH.

* Crca«y'8 CunslUuliojut, p. 120. * I^'/rci, IJook ii. wip. iv.

232 OF TliK lUGHTS AND DUTIES

its justilicatiuii. Whether this principle may not be found to
limit tlie rights of private property in directions which have
scarcely been thought of as yet, is a question which the future
alone can answer. History is full of examples in which
principles have been revealed by events ; and the Irish Land
Bill of 1870 (33 & 34 Vict. c. 46) was probably only a com-
mencement, in this country, of that legislation for the con-
version of nominal into real proprietorship, in the direction
of which almost all the progressive countries of Europe seem
to be tending.^ The great practical obstacle to all legislation
affecting rights of exclusive possession, even where these have
been confessedly carried to the exterit of being self-destructive,
arises from the irrational and criminal outcry for equalization
to which it immediately gives rise. It may be possible, as
is often asserted, that, by a redistribution of land, and
readjustment of taxation, which w^ould in nowise affect the
relative importance or essential wellbeing of the propertied
classes, combined with a system of compulsory education
maintained by the State, the evils and dangers both of
pauperism and proletarianism might be in a great measure
removed. But no such arrangement is possible so long as
the ignorant majority claim, and are incited to claim, not only
that they shall be relieved of all the burdens, but that they
shall absorb the whole authority of the State. Graduated
taxation might possiljly be a great benefit, but it might also
be a great evil, to the community ; for it means either a corre-
sponding gi'aduation of political power, or else confiscation of

^ Reports from Her Majesty's Representatives respecting the Tenure of Land
in the several countries of Europe, 1869-70.

WHICH NATURE REVEALS. 233

the property of the few by the many — i.e., public robbery,
public demoralization, and the ultimate loss of civilization,
not spiritual alone, but also material.

{i) The right to he involves the right to dispose of the fruits of
being, mortis causa.

The right of executing mortis causd dispositions would at first
sight seem to be excluded by a doctrine which declares that all
rights originate in life, that they continue to be measured by
life, and terminate with life. But if we analyze the character of
such transactions more closely, we shall find that, to the full ex-
tent to which they are legitimate at all, they originate in the
powers of life, and thus fall fairly within the scope of the de
facto principle. And here the first consideration which presents
itself is that a mmiis causd deed is a transaction, not between
a dead man and a living man, but between two living men, —
tlie man who gives at the moment of giving, and the man who
receives at the moment of receiving, are both in possession of
the powers of life — to the extent, at all events, of being capable
of consent. The only difference between it and what are usually
known as transactions inter vivos arises from the fact that the
one man must have lost his power of giving before the other
can exercise liis power of receiving. But tliis difference loses
its importance when we consider that, substantially, the same
thing takes place in every transference. In the very act of
transferring a pound of tea, we sliall say, the proprietor, qitd
propriet^jr, expires — his proprietorsliip ceases, just as nmch as
if he h'dfl dropt down dead. Now this is precisely what occurs
when, at the moment of death, tlu; ])ro])erty of oik; man l)ecomes
the property of another. T\\(' ]»roj)ii(;tai'y will (jf the testator

234 OF THE RIGHTS AND DUTIES

gives place to the proprietary will of the heir, just as the pro-
prietary will of the seller gives place to the proprietary will
of the buyer. The apparent difficulty arises from the fact
that because a period after death must intervene before the
fact of transference can be ^proved, we imagine that such a
period intervenes before the fact of transference exists, and,
consequently, that it is an act of the dead. But the trans-
ference, in all cases, is instantaneous. The last breath of the
expiring proprietor is immediately followed by the first breath
of his successor, and thus " the king never dies." ^ Again, it
may be said that deeds to take effect after death are, neces-
sarily, future, and that, in this respect at least, they differ from
those which are intended to receive present execution. To
this objection the answer is, that inasmuch as the present, so
to speak, is a mathematical point of time, every transaction
necessarily has reference to the future ; and, further, that
inasmuch as life is uncertain, every transaction, tacitly at
least, contemplates the possibility of its execution after death.
But the only effect of physical death is to mark the point of
dissolution of the proprietary will. Even the impossibility of
predetermining the period of death makes no difference ; for
have we not bills of exchange payable at sight, on presenta-
tion, to order, and even conditionally ? But the heir of the

^ In the case of transference by offer and acceptance conducted by correspond-
ence, a considerable time must elapse between the act of will which constitutes
the offer and that which constitutes the acceptance. The point of transference is
that at which the wills meet, and the intermediate death of the offerer does not
prevent this occurrence. The heir of the offerer cannot repudiate the offer on
the ground that the offerer died before the offer was accepted.

WHICH NATURE REVEALS. 235

testator, it may be said, may repudiate the succession. The
answer to this is that, if one heir repudiates, the next may
take, and that, failing all of them, the will to take is always
present in the Crown. On the part of some heir there is
thus always 'present will to meet that of the testator's at
the moment of death. On one occasion, I remember that an
ingenious objection was made to this train of reasoning by
one of my pupils, to the effect that no man dies willingly, and
that therefore there is no act of volition on the part of the
testator. Supposing the fact to be true, all that the objection
amounts to, I think, is that the act of will is conditional, and
conditioned only by an occurrence which the testator knows
to be inevitable. As regards their origin, there is thus no
difference at all between rights of transmitting the fruits of
life inter vivos and mortis causd,

(j) All our subjective rights resolve themselves into the right to
liberty.

The right to liberty — i.e., to the exercise of our own subjec-
tive powers — not only embraces the rights we have mentioned,
but it transcends them. Passing into tlie sphere of objectivity,
it constitutes a claim on the aid of our fellow-men. Liberty has
tlius a positive as well as a negative side ; it is a claim not only
not to be hindered, but to be helped. This riglit to the positive
conditions of liberty, as we shall see, is tlie correlative to tlie
duties of mutual aid and charity, and forms the basis of tlie
[Kjsitive side of jurispmdence, the claims of wliich form so
prominent an o))ject in the teaching of the hiter scliools of
Gennany.

236 OF THE lUGHTS AND DUTIES

(Z) In the limitations ivhich nature imposes on our subjective
rights, we have the first revelation of the principle of order.

Order is popularly supposed to spring entirely from objec-
tive rights. Let us see how the matter really stands. In
the dicta of our subjective nature we have found a warrant
for that side of jurisprudence by which our liberties are
asserted and vindicated. We have seen that the right to be,
is but a summary expression for the right to the free exer-
cise and development of the powers of our physical and
rational existence. We have seen, moreover, in each par-
ticular instance, that the rights of which we become con-
scious are not absolute and unlimited, but relative to, and
circumscribed by, the powers in which they inhere. Absolute
rights, like absolute powers, belong to God only. He no
more communicates the former to His creatures than the
latter, and it thus appears that our rights are limited, not,
as is generally supposed, by rights which are opposed to
them, but in their own nature. Each individual comes into
existence and continues to exist only to the extent of his
powers. When these powers cease the rights are non-
existent. The great subjective limitation is death. Without
quitting the region of subjectivity, we thus perceive the
error of opposing objective to subjective interests, and of
supposing that our rights to life, liberty, property, and the
like, owe their limitations to the necessity of sharing them
with our fellow-creatures. So far is this from being so, that
whereas the subjective limitations of our rights are real, the
objective limitations, in so far as they are in accordance with
natural law at all, are only apparent. I may appear to

WHICH NATURE REVEALS. 237

abandon, in your behalf, rights which but for you I should
have enjoyed. But the abandonment, in so far as natural
law calls upon me to perform it, is in reality a gain to me
precisely to the same extent to which it is a gain to you.
The recognition of your rights is just as much a condition of
the exercise of mine, as the acts of appropriation which I
make on my own behalf. In myself, however, I am a finite
and limited being, and the subjective limitations of my rights
are realities which consciousness reveals to me, and which do
not admit of being explained away. Now these limitations,
marking off as they do the sphere of subjective from that of
objective activity, are manifestations of the principle of order ;
and thus order takes its proper place, not as an end in itself,
as it has been the custom of despotic governments to main-
tain, but as a means towards the attainment of liberty, which
is the end of jurisprudence, and which, in its turn, as we
shall see hereafter, becomes a means towards the attainment
of tlie ultimate ends of human life.^

(/) Nature reveals to its the loossihility and the consequences of
the transgression of Iter laws.

Taken simply as a plienomenon,^ no revelation of subjec-
tive consciousness is more unequivocal than the freedom of
the will. Though nature tells us neither of powers nor of
riirbts which transcend her limits, she informs us that we are at
perfect liberty to transgress them. V)\\t here a singular anoimily
appears. The consciousness of jiowcr is no long(;r acconi-

' Infra, Book ii, rap. i,

' Am to tlie value of tliin phonomcnon in tho coiitrovciHy between Lib<'rty ami
Noccjwity, ico Hainilton'H hfrUtph., vol. ii. p. r»tJ.

238 OF THE RIGHTS AND DUTIES

pauied by the consciousness of right. In abandoning us to
ourselves and rendering us the authors of our own actions,
nature does not deceive us. On the contrary, as we have
seen, she bestows on us an autonomous character, which she
mercifully places beyond the reach of our volition, and thus
not only enables us to discover, but forces us to feel, that all
transgressions of her laws are acts of subjective as well as
of objective injustice, and that, apart from considerations of
future rewards and punishments altogether, every sin or folly
which we commit is, in principle, an act of self-destruction.
The suicidal character of abnormal and inharmonious action,
is a doctrine which the revelation of nature teaches as un-
equivocally as the revelation of Holy Writ; though it leaves
the remedy against the mysterious propensity which seems
to reside in each of our separate tendencies to assert itself
in isolation, and to claim an exclusive dominion over us, a
hopeless enigma. It is in the limitation which this myste-
rious element of imperfection, the presence of which in our
phenomenal nature we cannot ignore, imposes on the freedom
of our will, that we recognize the necessity of admitting the
abnormal relations of war, neutrality, &c., within the pale of
jurisprudence. It is with a view to their annihilation alone
that they are recognized. Jurisprudence refuses to take
cognizance of them otherwise than as vanishing quantities.

(?7i) Nature reveals objective rights which exactly correspond to
our subjective rights.

The question whether or not objective rights, or, in other
words, the objective side of morality (which, as we have seen,
has often been erroneously regarded as embracing morality

WHICH NATURE REVEALS. 239

altogether),^ rest upon nature or upon convention ; and, con-
sequently, whether a science of jurisprudence, or of equal
justice between man and man, be possible or impossible,
turns wholly on the previous question, whether our recogni-
tion of objective rights springs from the same source, and rests
on the same basis, as that of the subjective rights which we
haye just considered. "VYe have seen that the so-called selfish
system speaks with the voice of nature in what it claims for
the Ego. As regards the relations of creatures to each other,
we have farther seen that rights precede duties.^ We have
adopted the dictum of Spinoza, that " nature, considered in
general, has a sovereign riglit over everything which is within
her power — that is to say, that the rights of nature extend
just as far as her power extends."*^ Must we then follow him
the whole length to which he himself, reluctantly, followed
Hobbes, and concur in rejecting the counter-dictum of Grotius,
that " it is false to say that, by nature, every animal is im-
pelled to seek only its own advantage " ? ^

Now this question appears already to have received its
answer from the subjective revelations with which we liave
Ixjcome acquainted.

In the limitations inherent in our subjective riglits, and in
tlieir dependence for tlieir assertion on our recognition of tlio
objective rights whicli are erroneously supposed to limit tlicm,
we have discovered, as it were, the unappropriated territory
which nature assigns to objective activity. The rights of tlie
Kfjo, 80 far from exliausting existence, are not even self-vindi-

' Ante, pp. 208, 209. " Anir, p. 209.

'■ Vol. i. pp. 204, 205, and vol. ii. p. 251, .SaUsct'H cd. ♦ Prolcy., hvc 0.

240 OF THE RIGHTS AND DUTIES

eating, for tlie voluntary aid of other created existences is one
of tlie conditions which nature has imposed on their exercise.
The principles of the selfish system itself thus furnish us
with the grounds for repudiating its conclusions. The rights
of the Ego are an adequate guarantee for the rights of the
non-Ego.

But objective rights stand, nevertheless, upon a separate
correlative basis of objective powers. If the recognition of
rights be inseparable from the recognition of life in our own
case, and if the objective validity of this subjective assevera-
tion be guaranteed to us by the analogy of organic existence J
as a whole, then surely the recognition of our neighbour's life
involves the necessary and involuntary recognition of his
rights. To recognize human life, and then to deny to it
characteristics or qualities which belong to, and indeed con-
stitute life in general, would be to involve ourselves in
contradiction.

The only question that remains then is. Have we a neigh-
bour ? or, in other words, are there external existences at
all ? Into the metaphysical or physiological discussions as to
the manner in which we became cognizant of the non-Ego,
and the character in which it presents itself to our know-
ledge, whether material and physical, or immaterial and dyna-
mical, or both, the jurist, as such, is not called upon to enter.
That there are other existences than my own is a fact which,
to my mind, is sufficiently proclaimed by the consciousness of
my own existence as separate, for separation involves the exist-
ence of both tlie objects separated. The doctrine that the
simultaneous knowledge of opposites is necessary, appears to

WHICH NATURE REVEALS. 241

me to admit of as little question as that the simultaneous
knowledge of contradictories is impossible ; and to the extent
of holding that consciousness gives us our knowledge of the
object in the same act in which it gives us our knowledo-e of
the subject, I am a " Xatural Eealist/'i But be this as it
may — external existence is a fact, at the practical recognition
of which all minds arrive by some process ; and such being
the case, it is a fact which, in a treatise on jurisprudence, I
shall take the liberty to assume. The assumption of this fact
then, our previous conclusions being sound, is one which, as
I have said, carries the whole of our subjective rights over
to the objective side ; for every right which was inseparable
from my life necessarily clings to the life of my neighbour.
My recognition of objective rights is thus dictated, neither by
a sense of my own interests nor by a voluntary tenderness
for those of others, neither by the hopes and fears of Hobbes,
nor by the benevolence of Hutcheson. It is founded on no
contract, either verbal or tacit, upon no law which man has
made, for its roots are in a nature of which we all were passive
recipients, and over the constitution and pi'imary character-
istics of which none of us has or can have the slightest control.
Lastly, the proportion which we found to subsist between
ubjective rights and powers, necessarily passes over along with
them to the objective side. The equality which my neighbour
' an righteously demand, or wliich i can righteously concede
to him, is an erpiality, not of j)0W('rs and rights, but of ihv.W
recognition.2 I must accept liini as 1 conceive that iUu] Iims

* Ifaniilton'M Afet/tj/h. MiilliT on Sin, vol. i. p. HO.

' Hiri* thiH miVijiTt fully iliwiiMwd, Hook ii. cluipH. iii. rmd iv.

242 OF THE RIGHTS AND BURDENS

made him, and as life has developed him, and not as either
he or I think he ought to be, or ought to have been. It by
no means follows, however, that the estimate which I form of
his qualities is an accurate one. If his nature be deeper and
richer than mine, I am in danger of involuntarily doing him
injustice ; if it be shallower and poorer, I shall probably de-
ceive myself and lavish on him, or her,^ a degree of tenderness
of which he, or she, is not worthy.

4. Natiore reveals objective duties, or ditties hy others to us,
which exactly correspond to our siibjective duties, or duties hy us
to others.

The truth of this proposition follows from the preceding as
a matter of course, for, on the same grounds on which our
riglits become our neighbour's, his rights must become ours.
It is this revelation which constitutes our warrant for the
enforcement of our rights, the necessity of such enforcement
for their vindication having been ascertained, for all unneces-
sary exercise of force is a waste of power, whether it be by
the baton or the sword, and nature abhors waste as she abhors
a vacuum — which, indeed, is a waste of space.

Viewed as efforts for the benefit, direct or indirect, temporal
or spiritual, of those against whom they are apparently directed,
and whose immediate freedom it is their object to constrain,
both the laws of war and criminal laws find their justification
and their measure in the objective rights of which we treated
in the last section.

5. The existence of subjective and objective rights and duties,

^ Adam Bcde, p. 308,

WHICH XATUEE REVEALS. 243

and of their mutual dependence, constitute the sole revelation which
nature makes to us luith reference to human relatio7is.

As the Ugo and non-Ego exhaust the sphere of being, so, in
like manner, the rights and duties of the Ego and non-Ego
exhaust the sphere of justice. And as the Ego and non-Ego
are inseparable ontologically, so likewise are rights and duties
linked together by the necessities of our ethical nature. It is
as this nexus, or necessary interdependence, and not as any
separate and independent principle of our nature, that we
must understand the otKetwo-t? of the Stoics, on which the sys-
tem of Grotius is founded. Viewed as a general principle of
society, it is a mere generalization of the intuitive and in-
voluntary tendency which manifests itself in each individual
mind, to extend to the object the rights of the subject. It is
not a primary or separate fact of nature, but a natural law,
evolved from tlie primary facts of nature by our reasoning
faculties.^ In this respect it very much resembles " con-
science," viewed as the harmonious verdict of our general
nature. Its popular meaning is obvious and important ; but
I fail to see its scientific necessity or value. Kousseau has
seen and stated this view very clearly. " Meditating upon
the first and most simple operations of the human mind, I
believe myself to see there two principles anterior to reason,
of which the one interests us in the liveliest manner in our
own wellbeing and preservation, and the other insj)ires into
us a natural repugnance to see a sensiljle being, above all, a
being of our own race, peri.sh or sulfer. It is from the con-
course and combination which our mind is in a condition to

' Infra, flip. viii.

244 HOW WE BECOME COGNIZANT

make of tliese two principles, without the necessity of intro-
ducing that of sociability, that all the rules of natural law
appear to me to follow." ^

CHAPTEE VIII.

HOW WE BECOME COGNIZANT OF LAW IN GENERAL.

1. Nahtral lavjs are rational inferences from the facts of
nature.

In tlie preceding chapter we have seen that what conscious-
ness directly reveals to us is not laws or principles, but powers
and rights. In this, as in all other instances, our experience ^
of the particular precedes our recognition of the general, and
we shall examine the dicta of nature in vain, not only for the
positive or concrete laws by which separate communities
ought to be governed, but even for those abstract laws which
assign the necessary conditions of human wellbeing and pro-
gress. The sioum cuique of the Romans, for example, is an
abstract or natural law so universal in its application as not

^ Discours sur Vorigine et les fondements de VinSgaUt4, preface, p. 50. It is in
.such occasional utterances that we see what might have come of Rousseau had he
been favoured by education and circumstances. As Cicero said of Socrates that
he was tlie Homer of Philosophers {Tuscul., quajs. i. 32), so we may say of Rous-
seau that he was the Burns of Publicists.

I here and elsewhere use the word '* experience " as implying the recognition
of internal equally with external phenomena. The facts of consciousness are
facts of experience, just as much as the facts of touch or taste.

OF LAW IN GENERAL. 245

to be confined even to human relations. In this respect it
differs widely from any special or positive law by which the
siium is defined and the cuique individualized — from such a
law, we shall say, as that the patria potestas (the suuni) belongs
to the grandfather, if alive (the cuiquc). But the abstract law
is no more revealed to us by consciousness than the concrete
laiu. On the contrary, all that nature teaches us directly is,
first, that we ourselves, and, second, that the other organized
existences of which we are cognizant, possess individual powers,
with correspondent individual rights. From these data, by
the aid of our reasoning faculties, we infer the general law
that " right corresponds to power."

2. Natural laws are necessary inferences from the facts of
nature.

We have seen that the ascription to the object of the rights
of which the subject is conscious is an involuntary act, and
that in each individual case our knowledge of our rights
and our knowledge of our duties rest on tlie same basis of
nature.^ TUit this act is only the first step in a process of
induction, every subsequent step of which possesses the same
involuntary character. The moment that an objective exist-
ence is recognized, the recognition of rights proportioned to
liis powers, more or less clearly apprehended, is forced upon us.
In addition t<j powers and rights, the relation which subsists
between tliem tlius forms part of tlie phenomena presented by
our cognitive to our discursive faculties, and as the latter must
acci'pt the data which they receive, the only iniaginal)le alter-
native lies between reasoning out these separate c(>gnitions

» Ante, i>. 242.

24G HOW WE BECOME COGNIZANT

into corresponding laws, and not reasoning at all. But the
latter alternative, happily, does not lie within our reach, for
the option of reasoning is no more given to man than the
option of being. He may cease to reason, it is true, if he may
cease to be ; but even on the improbable hypothesis of self-
annihilation being possible to him, he can no more avoid
having reasoned than he can avoid having been. To this
extent, and no further, as it seems to me, our knowledge of
natural law may be said to be intuitive. We cannot wholly
ignore our neighbours' rights. A being who could do so would
not be a man. But each man will recognize them more and
more as he becomes more and more of a man, — becomes, as
we say, more " humane." N«iy, further, there will be more to
recognize — for rights and obligations, as we shall see, keep pace
with each other, and the obligations of a civilized man are
greater than those of a barbarian. Whether his power of
recognizing them does more than grow in proportion to the
growth of the rights to be recognized, is a question which I
shall leave for your own consideration.

Our knowledge of the laws of nature, if less immediate, is
thus as inevitable as our knowledge of the facts of nature, and
tlie character of these laws is as independent of our volition
as the character of the facts of which they are generalizations.
And these remarks apply to the laws which govern the ab-
normal as well as to those which govern the normal relations of
human beings, whether as individuals, as citizens, or as politi-
cal communities, — to criminal laws and to the laws of neutral-
ity and war just as much as to the laws of status, of contract,
or of international recognition. Sin and folly, however in-

OF LAW IN GENERAL. 247

explicable may be their origin, are facts of our nature the
existence of which that nature reveals, and for which, in de-
termining their true character, relatively at all events, she
suggests appropriate laws. The only distinction between the
laws which govern normal jural relations and abnormal jural
relations which concerns us here, is that the object of the
former is the protection and perpetuation of the relations
which they govern, whereas the object of the latter is the
annihilation of the relations which thev oovern.

3. Natural lavjs determine tlie ultimate objects of positive laws,
andj ju: the priiiciples of jurisprudence as a luhole.

From our previous discussions it has resulted that nature
assigns the realization of her own ideal in each genus, species,
and individual (which ideal in the case of humanity is the
Divine image which humanity reflects) as the object (t€Xo<;) of
her being. AVliat we call life in time, is the process by
which the idea of that winch lives is revealed to it, and
realized by it. Life, nature, like the divine, of which they
are manifestations, thus embrace their own ends, are ends
to themselves.^ This ideal or object must consequently be
tlie final object of all laws, whether abstract or concrete.
r*ut what we call natural or abstract laws are a statement of
ihe necessary, and, as such, invariable conditions of the attain-
ment of this object.^ These conditions, then, which nature

' '* IJy an idea," »ay« Coleridge, " I mean that fniiciiition of a tliin;,' wliicli is
^ivcn l»y the knowledge of it« ultimate aim." — Church and tStnie, p. 10. If llic,
tiling' )k; fully conm'ioiiH, itM idea and iin ultimate aim will Ix; i(i< ntii al, and tlnir
identification will ])rogroHM an it advanceu in conKciouKnoHH.

' I cannot go along with Cohridg*: {ut sup., p. 12) in identifying lawb with tlio
i<lra, thongh he haii, no donht, Platonic authority for doing ho.

248 HOW WK BECOME COGNIZANT

prescribes to life as a whole, are necessarily binding upon life
in its partial manifestations. The laws of nature thus fix the
permanent conditions, or, as they are popularly but some-
what vaguely called, the principles of positive law, in all its
departments, and assign to it its necessary character.

The principles of jurisprudence, or abstract laws, find their
realization in wider and in narrower spheres : and it is for
this reason, and not from any substantial diversity in the
principles themselves, that they are divided into natural laws,
or principles in the abstract ; principles of legislation {i.e., the
framing of positive laws) ; and principles of jurisdiction {i.e.,
the applying of positive laws to special cases). The first are
the necessary conditions of life in accordance with nature
generally ; the second, the necessary conditions of life in
accordance with nature in a special community, or between
special communities for a special time ; and the third, the
necessary conditions of individual life in accordance with
nature, in the like circumstances of time and place.

As the laws of nature, or general principles of jurisprudence,
hold to legislation or law-giving precisely the same relation
that legislation holds to jurisdiction or the administration of
the law, it will be obvious that for men to arrogate to them-
selves, or others to confide to them, the duties of legislation
whilst they are ignorant of the laws of nature, would be just
as absurd in itself, and would be likely to be productive of
far wider mischief than if men were to be raised to the bench
who had no knowledge of the laws of their country. And
yet the former occurrence is, I fear, far more frequent than
the latter ; for whilst positive law is studied in general with

OF LAW IN GENEEAL. 249

infinite care, and nothing short of long and successful practice
will satisfy us of the efficiency of our judges, almost any man
is considered fit to be a legislator, and all men equally fit to
choose one. In such circumstances, should we find enacted
laws which are at variance with the principles of nature, or
which realize these principles imperfectly, the fact is one
which we may well deplore, but at which we cannot wonder.
That the errors of our legislation do in practice arise from mis-
taken or imperfect conceptions of the ultimate objects which
legislation ought to seek, quite as frequently as of the means
— which in their turn of course become proximate objects — ■
by wliich its ultimate objects are to be attained, is a fact
which will become apparent more and more as we compare
the objects of positive laws with the objects of natural laws ;
and there is, moreover, this very important difference between
these two sources of error, that whereas a law which employs
inadequate means calls only for amendment, a law which aims
at a false oljject demands immediate repeal. The means,
being temporary, may be adapted to the end ; but the end,
being permanent, cannot be adapted to the means. When
the legislative engine is set on the right rails and turned in
the right direction, all that is recjuisite is tliat the greatest
amount of speed that is consistent with safety sliould be
attained, liut if it is on the wrong line, or has run olf the
rails, the journey will never be accom])lis]icMl, and danger to
life and property increases every instant that the engine con-
tinues in motion.^ And tliese remarks apply a furtiuri when

' " If thf! iirinciplu of a luw he wron^," HuyH I>nrk(!, " tlio iiioni perfect tlm
law U iiiailc, the wur»v it Woiiich. " — TtocU on, the J'uprry Ldirtt, cup. iii. part i.

250 HOW WE BECOME COGNIZANT

from the sphere of municipal we pass to that of international
jurisprudence. The question, then, " what are the laws which
nature assigns to our human relations," in addition to its
lofty speculative interest, is the practical question which
must take precedence of every other, because in this depart-
ment of jurisprudence it is often undetermined, and it is on it
that all other practical questions depend for their solution.

4. The nattered or de facto basis on which positive law rests
hcing knoivn, the positive law which governs any given human
relation may he discovered.

From what we have seen of the genesis of our rights and
duties, we are now, I trust, in a condition to accept the three
following propositions.

1st, The laws of nature are logical, and, as such, necessary
inferences, which it belongs to the scientific jurist to make
from tlie facts which consciousness or internal observation,
and experience or external observation, reveal to him as the
necessary conditions of human life.

2d, The laws of the nation, public and private, and the
laws of nations, public and private, are similar inferences,
which it belongs to the legislator or practical jurist to make ;
(a) from the laws of nature, which he accepts as facts ; and (h)
from the local and temporal facts or circumstances of the nation,
or of the nations, which it is his business to ascertain.

?>d, Judicial sentences, or judgments — i.e., the laws of the
individual case — are inferences, equally necessary, which it be-
longs to the judge to make ; {a) from the laws of the nation,
or of the nations, which he accepts as facts in themselves,
and, consequently, as decisive of the law of nature ; and (b)

OF LAW IN GENERAL. 251

from the facts — i.e., the characteristics and circumstances of
the individual — which it is his duty to ascertain.

There is probably no way in which the absolute and neces-
sary character of positive law in all its branches, and the
fact of jurisprudence being a science of nature, even in its
minutest details, can be better illustrated than by remarking
the close analogy which subsists between it and the sciences
of external nature on the one hand, and the wide gulf which, on
the other, separates both it and them from any system of rules
logically deduced from premises which have been arbitrarily
assumed. As an example of the latter, let us take the so-called
science of heraldry. A witty writer, in reviewing a heraldic
book, claimed for the " noble science " a foundation in nature,
on the ground that " man is a blazoning animal." But though
the nature of man may impel him to blazon, it leaves him to
blazon as he chooses, at least in so far as his actions are free
at all. There might be fifty sciences of heraldry, each as
good as the other, and this, not in different circumstances, but
in circumstances absolutely identical. At any time it would
be possible to put a sponge over such a " science," and to
construct another diametrically opposed to it in every par-
ticular, and yet not inferior to it in any respect. The
second would Ije just as true to nature as the first, just
as true absolutely, Ijccausc neither of them would have any
basis in nature, any absolute truth. The premises in both
cases being entirely arljitrary, so ar])itrary that tlu^y miglit
have been determined by the casting of a (li(!, if tlie rules
were adhered Uj and tin; conclusions logically deduced, that
is all that r;ould be demanded in order to placci th(!in on a

252 HOW wp: become cognizant

footing of perfect equality. Both would be systems, neither
would be sciences ; and in place of two such systems coincid-
ing, it would be quite wonderful if they boro the slightest
resemblance to each other, even if the circumstances out of
whicli they arose exhibited the closest analogy. But with
the sciences which have nature for their object, and with
the arts whicli rest upon these sciences, the very reverse is
the case. If the Chinese had a system of heraldry resem-
bling ours, it would be as wonderful as if we were accidentally
to fall on the letters of their alphabet, and the marks on their
tea-chests, or if we were to find them playing our game of
whist. But if the Chinese had a science of geometry different
from ours, it would be no science at all. If they measured
the earth by it, their measurements would be incorrect. If
they built houses in accordance with it, they would tumble
down. And so of their chemistry, of their physiology, and
their psychology, at least to the extent to which the bodies
and souls of Chinamen resemble those of other human beings.
Now it is the same with their jurisprudence. Their positive
law differs from ours, no doubt, very widely in its special pro-
visions ; but these differences arise wholly from two causes —
viz., {a) Error or imperfection in their conceptions of natural
law, or in ours — for though natural law be infallible, all
human interpretations of it are subject to many errors ; and
(h) difference of circumstances, which necessarily varies the
means by which the same principles, or natural laws, are
realizable in different places or at different times. Still,
there are certain invariable conditions of human life, such as
the relations and the limits of power, and, consequently, of

OF LAAY IX GENERAL. 253

riglit, the necessity of mutual aid, the relations of the sexes,
&c., which communicate certain features of resemblance even
to the positive rules by which the laws of nature are realized
in different countries and different ages. Such laws, in short,
differ in proportion to the extent to which they are the result
of difterences of original genius, or of stages of intellectual and
moral development in the people, or of climate and other con-
ditions of inanimate nature ; they approximate in proportion to
the extent to which these circumstances are assimilated. Were
the genius and the circumstances of two nations the same in
all respects, and their laws perfectly adapted to them, these
laws would be identical in their minutest details. It is a
profound saying of Kant,^ though not, as we shall see here-
after, consistent with the distinction between perfect and im-
perfect obligations which he has adopted, that "there can no
more be two decisions in the same case than there can be two
straight lines between the same two points." As we can only
liave a right line, and a crooked one, so we can only have a
ri'^ht decision and a wronj^ one ; whereas, a case which has no
decision is as inconceivable as two points between which no
.straight line can be drawn, or as a circle which has no centre.
It is an elevating thought on entering on tlie practice of
our profession, that tliere is thus no case that can be presented
to us so humble or insignificant that it may not be so decided
as tliat we shall be entitled to say, with Kepler, tiiat we
have " tliought God's tlioughts after Ilini."

n. Ttujwjh 'iicceHS(irily existent aiul discovcrahlr, positive laws
never have been, and jtrohahly never will he, prrfertly disrovnrd.

' .^fr/njihif.Hi'r of fJtfiirM, Si^nplc's tmUH,, p. 222.

254 now WE BECOME COGNIZANT OF LAW IN GENERAL.

The truth of this proposition results only too plainly from
the existence of that disturbing and bewildering element,
which in our moral nature we recognize as sin, and in our
intellectual nature as imperfection. Why we cannot discover
a perfect law, even w^hen we seem to possess all the elements
of knowledge and reason, or obey a perfect law when we seem
to be conscious both of freedom and of will, is as great a mys-
tery as, but not a greater mystery than, why we cannot draw
a perfect line or describe a perfect circle, though w^e know,
and can demonstrate, the conditions of perfection in both.
But the impossibility of discovering, or of obeying, perfect
laws, is no greater argument against making principle the
guide of our practice, and bringing positive as nearly as pos-
sible into conformity with natural law, than the impossibility
of making perfect lines or circles would be an argument
against making our straight lines the shortest distance we
can discover between the points they are intended to unite,
or all the radii of our circles as equal as we can. We cannot
tell how near it may consist with the scheme of the Divine
government that either the individual, or the race, should, in
this life, approximate to completeness, either of knowledge or
of obedience. But our ignorance, in this respect, need cause
no irresolution to beings whose nature does not cease to re-
mind them of the rule of life in its broader aspects, or set
limits to the extent to which they may trace out and conform
to its minuter prescriptions. The law of action and reaction,
of which our extravagant and one-sided tendencies, and our
consequent reformations, and revolutions, and reform -bills,
and party strifes, and party victories, are humiliating and

OF THE LA^YS OF NATURE. 255

clegTacIing manifestations, is, to all appearance, just as in-
separable from national life, as transgression and repentance
are from individual life. History holds out no hope that the
upward progress of humanity will ever be otherwise than in-
termittent and indirect. But if there be any lesson of en-
couragement til at history teaches at all, it seems to be that
the experience wliich men purchase at so fearful a cost is
never wholly lost by them, as a race. The ultimate identity
of knowing and being asserts itself more and more. Though
the tendency to act on half-truths never disappears, the
opposite reasons begin to tell sooner, and reaction takes place
at an earlier period, at each successive stage of the life of a
progressive people ; and even where an individual nation has
run so far into excess as to render its continued advance, or
even existence impossible, its fate is more readily recognized
as a warning, and its story as a contribution to that slowly
accumulating mass of recognized truth and realized knowledge
which is power and progress.

CIIAPTER IX.

op THE LAWS OF NATUKE, OR PRINCIPLES OF JURISPRUDENCE
WHICH RESULT FROM THE HUMAN RIGHTS AND DUTIES
WHICH NATURE REVEALS AS FACTS.

(a) All human laws are declaratory.

The first great principle of jurispriKhincc;, and lliat lo
which it owes at once its sacred Jind its scientilic cliaructer,

25G OF THE LAWS OF NATURE.

is determined by the necessity under wliicli we have seen
that our nature lies to accept itself as right and to seek its
own realization.^ I cannot state it better than in the golden
maxim of the greatest of our own statesmen, which I liave
adopted as a motto to this work.

The passage, as a whole, is so instructive that I shall quote
it at length. " It would be hard," says Burke, " to point out
any error more truly subversive of all the order and beauty,
of all the peace and happiness of human society, than the
position that any body of men have a right to make what
laws tliey please; or that laws can derive any autliority
whatever from their institution merely, and independent of
the quality of their subject-matter. . . . All human lavjs
are, properly speaking, only declaratory. They may alter the ,
mode and application, but have no power over the substance
of original justice." ^ To the same effect, and with almost
equal felicity, Lord Bacon has said, that the rule points to
the law, as the compass points to the pole, but does not make
it. " Regula enim legem (ut acus nautica polos) indicat, non
statuit." — De Justitia Universalis Aphor. Ixxxv.

As laws are inferences from powers and rights,^ existing
in wider or narrower spheres, it is obvious that powers and
rio-hts cannot owe their origin to laws. We have seen that
out of the original powers and rights which God bestows on
His creatures, new powers and consequent rights may be
generated, and new relations evoked, by their free activity.
In this sense there may be new natural laws. These new

1 Ante, p. 60. ^ Tracts on the Popery Laws, cap. iii, part i.

3 Ante, pp. 245-248.

OF THE LAWS OF NATURE. 257

powers and rights may assume the form either of increased
personal capabilities of action, or of increased dominion over
external objects, and the latter more especially may be trans-
mitted and inherited.! On the other hand, a process of retro-
gression may have been in operation, and the individual or
the community may have dwindled,— may have become less
of an individual or less of a community than at a previous
period. The relations which formerly subsisted between them
will be limited, and they will generate less natural law. In
either case, and in all similar cases, it is obvious from the
necessary relation between power and right, that at each step,
whether of progress or retrogression, existing powers are the
sources of existing rights, that they measure their extent, and
assign the limits of their recognition, whether that recogni-
tion be effected internationally by treaty, nationally by statute,
or individually by judicial sentence.

Keeping this fundamental principle in view, you will at
once perceive the absurdity of the popular belief— of the pre-
valence of which even in professional minds 2 too many in-
yiyilr., pp. 230, 233.
-' Wheaton, //^^.n/, pp. 99, 100, 104, 105 ; Philimoro, vol. i. p. 21, and Mani-
festo of Great liritain to Russia in 1780, whicli he (luotes. In sucli cases it is
always difficult to distinguish between loo.se writing and erroneous thinking ; but
the former in the author is too likely to become the latter in the reader. "" Even
Grotius is by no means so careful as could be wished. As an instance, take the
concluding sentence of sect. 40 of the Prolajrynuna to the dc Jure Belli el Tavw.
In that pa>i«age he speaks of a kind of law " Quod ex certis principiis ccrtu argu-
mentatione dcduci non potest, et tamen ubique observatum apparet, sequitur ut ex
Toluntati. lilK^-ra ortum habeat." The only hypothesis on which this passage is
reconcilable with the general principle that all positive law is necessary and d.r-
Claratory, is, that Grotius is here speaking of mere enact.-d law whi.-h has fajlrd
to realize the law of nature. IJut that such is not his menning is ph.in from th.,
fact that he says the law of which he is speaking is of .1 kind that is xibiqw, ub-

258 OF THE LAWS OF NATURE.

Stances might be given — that rights may be "conferred,"
"constituted," "modified," "limited," "adapted," and even
" altered " by law. Formally, or rather nominally, of course,
the thing may be done; because anything however absurd
may be enacted. But the effect of such an enactment is not
to change rights, but to outrage them ; not to declare new
truths, but to proclaim falsehoods. The vo>o> KaXbv vo/xu)

servatum. In stating, then, that there is a species of purely voluntary law, origi-
nating ex voluntate libera, which is tchique ohservatum, and which rests on no cer-
tain principles, and in speaking of this jus voluntarium in other passages— e.gr.,
i. i. ix. 2, and i. i. xiii.-this great man has not only forgotten, for the moment,
the natur'al basis of jurisprudence, but has contradicted his own doctrine, as set
forth in sects. 12, 15, 16, 17, of the Prolegomena and elsewhere. Voluntary law,
in this sense, would not be the "grandchild" (sect 16), but the bastard of
natural law. In the main, fundamentally and substantially, the system of
Grotius is both sound and consistent ; but in studying him we must be actuated
by the sentiment with which he himself approached Aristotle : " Nobis proposi-
tum est Aristotelem magnifacere, sed cum ea libertate quam ipse sibi m suos
magistros, veri studio, indulsit. ^'-Proleg. , sect. 45. A similar charge of inaccuracy
of expression, though not of thought, might be brought against Leibnitz, who
frequently speaks of Jus Voluntarium. There is one sense, indeed, in which, with-
out positive inaccuracy, law may thus be spoken of in a popular way. We have
seen above that new laws may be generated by new facts or circumstances, and these
facts or circumstances may, no doubt, arise from the voluntary activity or inactivity
of mankind. But it is not the laws, but the circumstances which determine the
forms of their manifestation, which are under human control. The circumstances
being given-the relations being formed-a marriage, for example, being con-
tracted-the laws which govern, and when enunciated define the relations, are as
inevitable as the laws of physical nature, of logic, or of numbers. The points
between which the straight line, to which Kant happily likened law, may,
within the limits to which man's free activity extends, be changed indefinitely,
but, whatever position they assume, and whether they be visible or invisible, the
straight line which unites them will always be inevitable. We may draw a
crooked line, of course, or as many crooked lines as we choose ; and in like
manner there is no limit to the number of so-called positive laws which we rna^y
enact. P.ut there can be but one positive law, in the sense of a law which
realizes the natural law of the relation ; and positive law is thus as little volun-
tary as natural law.

OF THE LAWS OF NATURE. 259

KaKov is an aspiration not only after the unjust, but the
impossible.

The inflexible and universal character of the de facto prin-
ciple, as it is called in international law, will be best illus-
trated by bringing it in contact with special relations, and
mentioning a few of the directions in which legislation, by
attempting to set it at defiance, has caused an antagonism
between enacted and true positive law.

(h) Law cannot change the diameter, or alter the relations of
persons.

We cannot advance or retard the progress of human life
or reason by simple enactment— c.^., we cannot make men
majors or minors, or give tliem or deprive them of contract-
ing or legislating power ; all that we can do is to discover
and declare the fact of its existence or non-existence in the
special sphere with which we deal. We cannot resolve all
relationships into fraternity, in order to fit them in with a
predetermined political theory ; neither can we raise relation-
ships of affinity to the rank of relationships of consanguinity,
i.'i order to conform to theological traditions.

Tliat possession is " nine points of the law," or, in other
words, that it constitutes the primd facie title to possess, is a
maxim common to popular sjieech and to every department
of positive law.

The object which tlie thief has stolon is presunuMl lo ],(.
his till previous possession has been established by anothei-.
to whom the presumption of i.ioi)erty is Ukmi transferred.

oj3o of the laws of nature.

The intruder can only be ejected by a previous possessor,
whose title the law declares to be preferable.

The law of prescription, by which questions of previous
title are excluded, is even a stronger illustration of the de
facto origin, and consequent declaratory character, of juris-
prudence, inasmuch as it rests on the presumption, that after
a limited time, no other proof of property can be equal to
actual possession.

In like manner, in public international law, de facto exist-
ence as a state is the ground of de jure recognition, whilst in
unappropriated territories actual possession and use must pre-
cede a claim to exclusive title as against future occupants.
We have seen that paper titles, such as the Papal Bulls of
other times, are now repudiated as violations of natural right,
on the ground that they are destitute of the fundamental
element of fact on which right reposes. Even partial occupa-
tion, such as that of savage and semi-civilized nations, is held
to confer an exclusive right only to such portions of territory
as are actually occupied industrially, and not simply wandered
over, or occasionally resorted to as hunting-ground or pastur-
acre. It is on the same ground that paper blockades have
been repudiated by neutral states.^

Such are a few of the most obvious, though not by any
means the most indisputable instances of the declaratory
character which belongs to all true legislation, and to all real
positive law. It is by a more consistent adherence to, and a
more extensive application of, the de facto principle alone that
legislative progress is possible ; and there are few legislative

1 " Solemn Declaration " of Paris, April 1«, 1856.

OF THE LAWS OF NATURE. 261

difficulties to which we caunot, by its means, perceive the
possibihty at least of a theoretical solution. I have spoken
elsewhere-^ of its applications to international legislation, by
the abandonment of the two errors of permanence and equal-
ity. Let us here^ revert to the most delicate of all questions
of internal legislation — viz., Whether any, and if any, what
limits may justly be set to the accumulation and retention of
private property ?

The principle that there is no right which does not arise
from, and continue to depend upon, power, and consequently
that law cannot carry a proprietary relation beyond the
bounds of its possible exercise, which decides this question in
the case of the savage, is equally sound, though of far more
difficult application, in the case of the civilized man. That
alone can be declared to be his which is his, and that alone is
his which he has made, and continues to make, his. Law deals
witli the actual, not the hypothetical. It has nothing to do
with " may-be's " or " might-have-been's ; " and as law can
neither increase nor diminish the faculties which God has
given to the individual man, or which he has developed, so
neither can it a.ssert or vindicate for liiiu rights which are in
excess of tlie.se faculties, and which he cannot exercise. To
create riglits is as impossible as to create the individual in
whom they inhere, to add a cubit to his stature, or to raise

' TransfictionM of the Royal Society of Edinbiiryh, vol. xxiv, 1807 : "On tho
.•iji|»lication of tlio Principlo of mhitivc or proportionnl Equality to Intrinatioiial
Or;(anization." lUviut dc l^roil Intcmalii/tml, 1871, No. I.: " rropoHitiou (1*1111
Conj^rts international, htmd Hur lo |>rin(;ii)c de facto;" und 1877, No. II,: " Lo
rrobl^mo final du Droit Int^'mationul."

■ AnU, \). 216 ct Hcq.

2G2 OF THE LAWS OF NATURE.

him from tlie dead ; and to declare rights in excess of his
faculties is simply to declare what is not. But the powers
and faculties both of individuals and communities increase as
civilization advances, or rather, civilization consists in the in-
crease which takes place in these powers and faculties by
means of their exercise. A civilized community, or a culti-
vated man, is thus in a condition to use and enjoy objects,
which in the hands of undeveloped communities, or indi-
viduals, are mere useless tools. The powers of action and
capacities of enjoyment and suffering of the latter are mainly
physical ; whereas those of the former, without ceasing to be
physical, are in a still greater degree spiritual, arising from
the intellect, the imagination, and the taste. These additional
powers and capacities are, in reality, new elements of life, and
they become additional sources of rights over external objects,
which it is the function of legislation to ascertain, to declare,
to vindicate. Within the same community, the rights of those
who are more or less gifted by nature and developed by edu-
cation, stand in precisely the same relation to each other, in
kind, as the rights of the superior and inferior, or of the civil-
ized and savage races of mankind. Even if the same means
of culture could be placed within the reach of all, men's
powers of availing themselves of it differ so widely, that,
relatively at least, the barbarian, like "the poor," we shall
" have with us always." It must not be forgotten, however,
that the opportunity of energizing rationally depends, prox-
imately, not on the possession of wealth, but of leisure {(rxo^);
and that if the possession of means in proportion to powers
gives leisure, the possession of means in excess of powers

OF THE LAWS OF NATURE. 263

takes leisure away. A millionaire, unless liis position or
character be very exceptional, is a pdvavo-os in the true Aris-
totelian sense, almost as inevitably as a pauper.^

This, then, being so, whenever the external means and ap-
pliances of energizing in accordance with nature, in the case
of individuals, of classes, or of communities, are at variance
with their powers and capacities of so energizing, they are
wTonged, and legislative action is called for to bring right
into conformity with fact, and positive into harmony with
natural law. And to the extent to which the facts can be
measured, the rights may be defined. The special rights
being dependent on the special — i.e., the local and temporal
facts — and variable with them, can never, of course, find ex-
pression in any general or permanent formula. But when the
general rights of humanity, of which the de facto principle is
the expression, are brought in contact, not with the local and
temporal, but with the general and permanent facts of human-
ity, the following general principles stand out for the guidance
of legi.slation.

(1.) All men being equally men, and as such capable of
energizing Immanly — i.e., of using and enjoying tlie means of
Iiuman existence — are equally entitled to use and enjoy them.

Ikit the means of existing humanly, we liave seen,'^ in-
cbide the means of developing humanly. Tliis principle
consequently brings compulsory taxation for tlie support and
education of the poor witliin the sphere of justice, and to
this extent limits the exclusive riglits of ])ropcrty.

(2.) All men not being equal men, an; not capable of encr-
' rolU., vii. cxiii. " yintc, p. 222.

264 OF THE LAWS OF NATURE.

gizing equally — i.e., of using and enjoying tlie means of human
existence to the same extent ; all men, consequently, are not
entitled to the same means of energizing, and a legislative
enactment which should attempt to bring about an equal dis-
tribution of means would sin against nature by wasting her
gifts in two directions.

(a) It would deprive those whose powers were above the
average of humanity of means which they were capable of
using for the common benefit, and would thus cause a waste
of power.

(b) It would confer on those whose powers were below the
average of humanity means which they were incapable of
using, and would cause a waste of means.

Natural law, then, which is the ideal of economy as well as
of justice, demands that a proportionate relation shall be main-
tained between means and powers.

(3.) No man being more than a man, and man's powers
both of action and enjoyment, even when developed to the
utmost, being confined within very narrow limits, his right to
the means of energizing are necessarily limited both in extent
and in duration.

There can, I think, be no question that this latter principle
warrants legislative interposition to prevent the indefinite
accumulation of property, and more especially landed prop-
erty, in the hands of single individuals. This may be effected
in various ways, e.g. —

1st, By enforcing the partition, though not, as a rule, the
equal partition, of property amongst the children of the family.
The de facto principle by no means forbids either a law of

OF THE LAWS OF NATUKE. 265

primogeniture, or the legal preference of males to females ;
but it brings both within the scope of the principle of pre-
serving the proportion between rights and powers. We can-
not accumulate the whole powers of a family in a single son,
or merge the powers of women in the powers of men ; so
neither can we accumulate or merge their rights. But as the
presumption of fact is in favour of the powers of the eldest
son exceeding those of his younger brothers at the period of
the father's death, and of those of the brothers exceeding
those of their sisters, it is in accordance with the de facto
principle that the law of intestate succession, at all events,
which must proceed on such assumptions, should prefer them.
The extent of the preference is a question of fact for which
natural law offers, of course, no solution ; and its silence seems
to point unmistakably to the admission of some measure of
paternal discretion. That, whether exercised by the parent or
the state, this preference ought to be greater in rude and w^ar-
like than in civilized and peaceful times is obvious ; but rest-
ing, as it does to some extent, on permanent facts of age and
sex, it ought never to be wholly abolished by positive law.

2d, In the absence of children, the creation of unlimited legal
rights may be obviated by a compulsory distribution amongst
collaterals, or l^y tlie adoption of the Crown, or the public, as
joint heir with any individual favoured by tlie deceased, as is
already partially done ]»y our graduated scale of legacy-duties.

The practical difficulties which stand in the way of even an
approximate estimate of the amount of means which may be
really po-sscsscd and eniployed l)y a single individual, for the
puq>08e8 of human life, arc so great as in general to have dis-

2G6 OF THE LAWS OF NATURE.

couraged modern legislators from attempting to realize a prin-
ciple, an inconsiderate application of wliich would lead to many
of tlie evils which in former times attended those sumptuary
laws, the object of which was to prevent waste in the direc-
tion not of accumulation, but of expenditure. If we reflect,
however, on the marvellous rapidity with which wealth accu-
mulates after it has passed the bounds of possible enjoyment,
and the tendency which it has to become a burden and a
snare to its nominal possessor, and a source of corruption to
the society which it ought to fertilize, we shall see the advan-
tage which might arise from the embodiment in actual legis-
lation of the principle of the subjective limitation of rights.-^
That legislation from the subjective side, which should define
the rights of the possessor, would be infinitely less dangerous
than legislation from the objective side, which should declare
the apparent rights or interests of others, is plain enough.
Absolute spoliation could scarcely occur. Still the task of
framing such an enactment is too delicate to render it
probable that it will ever be satisfactorily performed. The
tendency of a democratic legislature unquestionably would
be to take cognizance all but exclusively of mere physical
powers, and thus to bring about an equalization of wealth
which would deprive the spiritual life, first of individuals,
and tlien of the community, of all means of support.^ Ko

^ Aristotle was quite familiar with the notion of wealth being limited from the
subjective side. He points out that aKrjdivhs itXovtos is that only which contrib-
utes to the completeness of human life {ayadrjv C^-f}v). — Polit., i. iii. i, 15,

2 The almost total indifference of the legislature of this country to the interests
of the higher educational institutions, which we owe to our forefathers, is already
an indication of this tendency.

OF THE LAWS OF NATURE. 267

one is more sensible than I am of the danger of " society
becoming top-heavy with unbounded wealth at the top, and
discontent, poverty, and comparative barbarism at the bot-
tom." ^ But I shrink from most of the remedies w^hich are
proposed for what I acknowledge to be an evil. Like so
many principles of natural law, the principle which limits the
accumulation of means to physical and spiritual powers of
enjoyment, though it may be enforced, is one which will be
far more easily and safely realized by men in their individual
and domestic, than in their citizen capacity. In this sense the
task is one which is almost wholly in the hands of the class
whose ultimate interests call manifestly for its performance ;
and private action, even at the sacrifice of a few cherished
traditions, ought not therefore to be hopeless. JSTo substantial
loss of physical enjoyment or social consideration would, I
believe, be demanded by a voluntary redistribution of wealth
wliich would remove all force from the argument that a waste
of means resulted from the accumulation of property ; whilst
by increasing the numbers of the cultivated classes, a really
trustworthy barrier would be erected against those barbarian
influences from within, — that " republic from below," as the
Spaniards call it, — which at the present time endanger the
upward progress of liunianity far more seriously tlian any
barbarian aggression from witliout, and against whicli the
weapons of mere physical warfare offer no protection wliatcver.
I fully admit the difliculties whicli cling to all questions of
degree; but still, if we take a few extreme instances, we shall
sec that even these difriculties, like othnr things, have their

* Ilevicw in Olasyow Herald, July 25, 1871.

268 OF THE LAWS OF NATUEE.

limits. Tliere are bounds beyond wliicli they cease altogether,
and these bounds may be rendered more definite by careful
study of the circumstances in which we seek to impose them.

When Mr Hole, in his beautiful Book about Eoses} says :
" Trop n'est pas assez ; and if I had Nottinghamshire full of
roses, I should desire Derbyshire for a budding-ground," — we
can see that he is speaking as a rose-maniac fully conscious of
his infirmity, and we are as little led astray by him as by
Beau Brummell when he said that, " with strict economy, a
young gentleman might dress himself for a thousand a-year."
But such illustrations prove only that there are limits to what
may be rationally desired, or sanely expended, by reducing the
opposite proposition ad ahsurdwn. Let us try whether we
cannot come somewhat nearer to the point at which use
ceases and waste begins, and thus turn the utilitarian prin-
ciple to its true use — that, namely, of guiding us to the
means by which natural law is realized.

A man, for example, in addition to providing for the require-
ments of his position, as a man and a citizen, may purchase an
estate of moderate dimensions, for the gratification of his taste
and the indulgence of his pleasure. If no vested rights oppose
him, he may even clear it of its inhabitants, and turn it into
a park or a deer-forest, because these are forms in which he,
or his friends, or his heirs, may be presumed to be capable of
really enjoying it and exercising the rights of property over it.
But Nimrod himself would have no claim to depopulate even
so small a country as Scotland or Switzerland for sporting pur-
poses ; and if a modern millionaire were to absorb a single

1 P. 62.

OF THE LAWS OF NATURE. 269

county or a single canton for his pleasure, or indeed under
any plea of occupancy, and attempt to give it permanently
the character of a single possession, he would certainly evoke
feelings, and probably provoke measures of a kind which would
be very prejudicial to the cultivated classes, and ultimately to
civilization. When we pass Kmits which, though they cannot
be absolutely, may be relatively defined, the earth can be no
more appropriated than the air or the sea. It then becomes
a res puhlica, and any attempt to establish rights of property
over it will be scorned as a failure, and resented as an in-
justice. The plea that a valid title has been given, or that a
money value has been paid, will go for nothing, because that
cannot be conveyed which cannot be held, and the commodity
is one the value of which can be measured only by incommut-
able personal services of ownership, which are impossible.
The plea of prescription will be equally unavailing, because
prescription is essentially an allegation of the continuance of
sucli services ; and that cannot be continued which never
began. The imperfection of our knowledge may entitle us
after a time to presume the existence of what may liave been,
but there can be no presumption in favour of wliat certainly
was not. We may jiresume that a man was stronger or
swifter than we can prove him to have been — nay, tlian we
can prove any man to have been ; but we cannot presume that
he wa.s stronger than a horse;, or swifter tlian a l)ir(l. We
may presume that he is alive 100 years after his biitli, l)ut
not that lie is alive 200 yfsirs nl'Utr his biitli.

The de facto prin('ii>lo thus assigns tcnipdr;!!, just as it
assigns local, limits to rights nf property. Afhr ilic Injisc df

270 OF THE LAWS OF NATURE.

a few centuries, or even generations, permanency, when applied
to liuman rights, becomes almost as unmeaning a word as
infinitude. We transmit to our descendants, or to those
whom we adopt in their stead, the conditions of physical and
spiritual life and development on the same title on which we
transmit life itself.-^ But our descendants will be lost in the
crowd of humanity that is to come after us, as our ancestors
have been lost in the crowd of humanity that went before us.
The longest posterity, like the longest pedigree, will have its
limits, and when these limits are reached, the basis of fact,
on which the right of transmission rested, will be lost. The
right, consequently, must be held to be non-existent, or rather
to be transmuted into some new right in harmony with the
new fact which has been generated. In declaring the exist-
ence of this new relation between right and fact, there is
manifestly no interference whatever with the original right of
property, because that right, in its original form, has already
perished. Here, as in the former case of the limitation of rights
in point of extent, questions of fact of the most delicate kind
remain for the solution of the practical legislator ; but the
abstract formula of legislation plainly is this —

So long as, and to the full extent to which, the facts on which
rights of property formerly rested remain unchanged, these rights
are inviolable ; hut no longer, and no farther.

The right which A transferred to B not being an absolute
and unlimited, but a relative, conditional, and limited right,
B's right will cease, or change its character, when the con-
dition fails, or the limit is reached.

^ * Ante, p. 215 et seq.

OF THE LAWS OF NATURE. 271

Of temporal limitations of rights arising out of the de facto
principle, we have numerous examples in positive legislation.

When rights of property are limited or resumed, as is said,
for public purposes — e.g., for the construction of a railway — the
true theory of the transaction is, not that the individual has
been deprived by law of a portion of what belonged to liim,
but that liis right was all along limited or conditioned by the
necessity of enjoying it as a member of the community, and
that it can be so enjoyed now only under the additional
burden, or new condition, wliich the law declares. From the
first it held in gremio, so to speak, a contingent subjective
limitation which has now emerged, and which has its counter-
part in an objective right on the part of the community to
enforce a sale for public purposes.

Precisely on the same principle, charitable and educational
endowments are modified by the Legislature. When they
cease to fulfil tlieir object, the rights which centre in them
have no longer the basis of fact on which they originally
rested. An endowment for the benefit of slaves, or for the
support of an Established Cliurch, becomes inoperative on the
abolition of slavery or the disestablishment of tlic Church.
But in such cases tlie Legislature is by no means entitled
simjily to confiscate the property and apply it to the ordinary
uses of the State. It must look not to tlie immediate, but to
the ultimate object which the testator or benefactor liad in
view, anrl tliis it will en'ect by ascertaining the new facts and
the consequent rights wliich have aris(;n, and vindicating the
latter by new arrangements. The Protestaiit (.'huivli of Ire-
land was established, and many bequests were made to it for

272 OF THE LAWS OF NATURE.

objects which were not found to be attainable by its means.
These bequests were thus in the position of legacies, with
conditions attached to them which had proved to be impos-
sible. That fact being ascertained — if it was ascertained —
and Parliament having declared the Church itself to have
ceased to exist as an Establishment — that being one of the
conditions of its existence, which was henceforth inconsis-
tent with the attainment of its ultimate object — future rights
which would have continued to spring from its existence as
an Establishment were declared to be no longer emergent in
their original forms. The rights of present incumbents, on
the other hand, were sustained, on the ground that the con-
ditions on which they accepted their offices remained unal-
tered. The only respect in which the recent disestablish-
ment of the Protestant Church of Ireland differed from the
dismemberment of the Poman Catholic Church at the
Reformation was, that the establishment of the Irish Church
was held to have been an error, or an act of injustice from
the first, — the facts never having warranted the rights which
had been legislatively affirmed, and the institution having
rested on enacted, and not on natural positive law.^ But

^ Our Edinburgh hospitals, in this respect, were in the same position as the
Established Church of Ireland. Tliey never fulfilled the professed objects of
their founders — that, viz., of bringing up the children of poor parents to be
thrifty, industrious, and self-helping citizens. Had their founders anticipated
that they would be nurseries of future, as well as asylums for present paupers, it
is to be presumed they would not have founded them. To make arrangements
then by which their bequests could otherwise benefit the poor was clearly to carry
out their wills. The case would be different if it were proposed to disestablish the
Church of England, or the Presbyterian Church of Scotland. The plea would
then be that of " tempora mutantur, nos et (those whom they once benefited)
mutamur in illis."

OF THE LAWS OF NATURE. 273

the effect of the two measures on private bequests was pre-
cisely similar. The Eeformation rendered half the founders'
wills in Oxford obsolete, and Christianity must have swept
away those of the pious donors of heathendom still more
extensively. Eights, the validity of which had been recog-
nized for ages, were repudiated on the ground, not that they
were bad originally, but that they would have been bad had
the circumstances of society been what they had become.
The same effect would have been followed had the donors or
the founders lived ; for no endowment by a living man would
now entitle him to have masses said for his soul by the
Fellows of an Oxford college, or a temple of Venus built
alongside of a Free kirk. In saying this, I am far from seek-
ing to justify the spoliation of what Mr Coleridge has called
the "nationality," and the application of this common pro-
perty to the material, in place of the spiritual uses of the com-
munity, wliich took place at the Eeformation.^ That was a
diversion of it not from its immediate but its ultimate object,
that object remaining as valuable and as attainable as ever,
though not precisely by the same means. Men had not ceased
to have souls, nor had their higher secular interests ceased to
demand aid wliich they can never receive from popular sym-
pathy. I am quite of Coleridge's opinion that the civilization
of Europe received a check at the Eeformation from which it
has never recovered. Hut wlien we ccjme to consider, not tli(^
end to Ixj attained, or tlie means of attaining it as a wlntlc^,
but the special application of the means and tlie rights llicnco

* I hojKj it in not Injin^ ro|M'at^<l in Ircliuid now, and will not Im- iciMal<<l in
Belginm, nn thore \n little <lou1it timt it hoH iKM-n in Kmnc*? and Italy and Spain.

274 OF THE LAWS OF NATURE.

arising to individuals or classes, the case comes to be anal-
ogous to that in which a change has taken place in the value
of money. The powers on which the rights were founded
were then measured by the money which the testator willed
should be paid for them. But if the money which was then
a fair price for them no longer measures their value, — if it
has risen, to force the buyer to give it, or, if it has fallen, to
force the present possessors of the commodities, supposing
them to exist, to accept it, would not be to vindicate the rights
of the buyer, but to invade those of the seller, or vice vcrsd.
This remark suggests another illustration of the de facto basis,
and consequently of the declaratory character of law.

(d) Law cannot change the price of any commodity.

Political economy first became a science when it was
acknowledged to be a statement, not of the ingenious devices
of men, but of the laws by which nature, independently of
human contrivance, regulates the relations of trade, or, in other
words, of the acquisition and transference of wealth ; and it is
to the frankness with which political economists have accepted,
and the fidelity with which they have acted on the declaratory
or de facto principle, to which all true scientific inquirers owe
allegiance, that we are indebted for the superiority of the
departments of our practical jurisprudence which fall within
its sphere, over tliose by which the relations of the citizen,
and even the status of the individual are governed. Whilst
we have been " making " political and social laws, we have
been contented to discover the laws of trade, and the conse-
quence has been that, whereas in the one direction the neces-
sity of unmaking what experience had repudiated has absorbed

OF THE LAWS OF NATUEE. 275

more than half our energies, and there is still the widest
divergence between the laws of different communities even
where their circumstances are the same, in the other a system
has been developed which has met with so wide an accept-
ance as to have brouoht mankind almost to the condition of
a single family. But mercantile legislation had not always
the guidance of this monitor ; and in former times nothing
was more common than to fix the prices of commodities,
including labour, by law. The price of a commodity is the
right to the commodity valued in money, or, in other words,
the pecuniary measure of the right. Now it is plain tliat a
law which declares the right of the possessor to be measured
by the jjrice he can get for it, or, in other words, gives him an
action for whatever he can establish to be the value of his
commodity, gives him his due (his suicm), and determines his
natural relation to others with reference to that object. But
if a nominal price be set on it, or a right in it be " consti-
tuted by law," different from its market value, a wrong is
done, either to the possessor and possible seller of the com-
modity, or to the rest of the community. If the price assigned
to it be below its market value, the possessor is rol)bed of the
difference ; if it be above the market value, a monopoly to the
extent of the difference is created in liis favour. Ihit in
neither case is the real value of Hk; cominodity cliaiigiMl, or
the right of its possessor, of wliicli its value is the iiionsure,
affected by the arbitrary price wln'cli has bccMi (ixcd liy llio
law. Such a law, it is true, may l)e cnfoirccl, oi- wliat is
far more Cfisy, the ])arties defraudcMl by it may Ix; jtunislicd
for its cva-sion. I>ut it can no moro bccoMic a law, in llic

27G OF THE LAWS OF NATURE.

genuine sense in which alone positive laws find their warrant
in nature, and take their place in the science of jurisprudence,
than the arbitrary price can become the real price, in accord-
ance with the science of political economy. To put it on a
footing of equality with a law which declares that the seller
shall have the real value of his commodity, on the ground that
it has been enacted by a competent authority from some
fancied motive of expediency, is to separate law from justice
altogether, and to fall back again on the old fallacy of the i^o/xw

KaXoV VO/JL(i) KaKOV.

All legislative errors are not equally absurd, and a law
fixing a price for a commodity at variance with its real value,
or declaring all men to be equal, at variance with the facts
both of nature and society, is not so manifestly ridiculous as
a law declaring that sweet shall be bitter,^ that black shall be
white. But all laws which set the facts of nature and the
arrangements of Providence, with their legitimate consequences,
at defiance, are equally at variance with the principles of the
science of jurisprudence, and for this simple reason that the
object of that science is not to redistribute God's gifts accord-
ing to any principle, either just or unjust, but to discover and
to recognize the distribution which He has made. What I
have here said, of course, does not invalidate the right of tlie
State, in the public interest, to determine the real value of a
commodity — e.g., of land required for public purposes, and to
fix the price which shall be paid for it to its possessor, as the
measure of that value. Moreover, inasmuch as in an or-
ganized community the opinion of the individual must give

^ The u6fxa} y\vKu i/Sfitp iriKpSi/ of Dcmocritus.

RELATION BETWEEN LEGISLATION AND JURISDICTION. 277

way to the opinion of the State, and the will of the individual
must give way to the will of the State, the real value of a
commodity is that which the State, through its constituted
organ, shall ascertain and declare to be the market value for
the time being. Any personal sacrifice of feeling which the
transaction may impose on the individual, is merely the price
which he pays for the privileges of citizenship.

CHAPTER X.

OF THE RELATION BETWEEN LEGISLATION AND JUKISDICTION.

Tlie function of the judgCy as such, is limited to the inter-
pretation and apjplication of ivritten or of consuetudinary law.

Though I have been careful and anxious to bring out the
importance of tlie distinction which, when seen in the light
of the science of jurisprudence, or with a view to legislation,
exists between a positive law and a mere arbitrary enactment,
I hope no one will impute to me any such opinion as that tlie
citizen is entitled to disobey, or that the judge is emancipated
from enforcing an enactment, by what may appear to either of
them to be its imperfection, or even its absurdity. The fact
that it has been enacted, or is recognized by their sovereign,
whether that sovereign be an individual or a connriunity,
renders it a positive law to the one qud citizen, and the other
quA jiulge, bccau.se the citizen existence of the one, antl the
judicial existence of the other, rests on the Ijypothesis tliat
their sovereign is a true interpreter ol' the law of nature in

278 Ob^ THE HELATION BETWEEN

the circumstances of that community. It is tliis hypothesis
which gives validity to the jurisdiction of the judge on the
one hand, and on the other phices every suitor who asks his
judgment virtually in the position of the people of Israel when
they came to Moses " to inquire of God." ^ The law of the
land is the major premiss, so to speak, of every judgment which
is pronounced ; and the judge would not only act illegally but
illogically, if, in defiance of it, he either exercised his private
judgment, or arrogated to himself the functions of the Legislature.
But whilst his duty, as the official representative of the
sovereign will, is clear beyond all dispute, it is needless to
deny that cases may, and do occasionally occur, not only to
the judge, but to the citizen, in which the duty of the
individual gives rise to most painful hesitation. Ought the
judge to administer, or the citizen to obey, a positive law
which the one or the other believes to be at variance with
the law of nature and the will of God ? or ought not rather
each of them to relinquish by anticipation, the one the office,
and the other the allegiance, which he knows may impose on
him such a duty. To all generous minds the affirmative'
answer will at once suggest itself. Clearly, it will be said, no
man ought to obey, far less to administer, a law which he
believes to be wrong. But as a warning against hasty con-
clusions, even in the right direction, just consider what would
be the consequences of such a rule if it were rigorously applied
to the relations of any mere man, however good and wise, and
any actual, or, I fear, any possible community of human beings.
Human judgments, being fallible, are diverse, not accidentally

^ Exod. xviii. 15.

LEGISLATION AXD JURISDICTION. 279

but necessarily. That the citizen or judge should sometimes,
as an individual, dissent from the ruling voice of his country-
men, is therefore ine^dtable ; and if on the occurrence of every
such difference of opinion, however trifling, he thought it
necessary for conscience' sake that he should vindicate his
own views, or even decline to accept theirs, the woolsack
would be converted into a bed of thorns, and human society
would be impossible. We should have but one social pheno-
menon to contemplate, and that a phenomenon with which
we in Scotland are but too well acquainted, — a perpetual
liiving-ofi* of minorities — one never-ending "Disruption."
Now a " Disruption," be it remembered, is in principle a
revolution, and the right of revolution is a right which can
scarcely emerge in a constitutional State, or be asserted by a
Christian citizen. It is his duty to turn his other cheek to
the law that has smitten him, till he can procure its con-
stitutional repeal. He who cannot accept martyrdom in that
form, is at best a " martyr by mistake." He may throw away
his worldly comfort and wellbeing, but he can scarcely claim
to have done it " for conscience' sake." It is clearly of the
nature of every community, whether lay or ecclesiastical, that
it should set certain limits to the riglit of private judgment of
its members ; nor will these limits be so diilicult to assign, in
the particular instance, as may at first appear, if, on tlie one
side and the other, it be kept in mind that their object is not
the restriction, but the greatest possible extension of the
borders of liberty to all. To pur.sue this subject further
would bring u.s on ground which we must tread hereafter,^

' Infra, liook iii. cait, iii.

280 RELATION BETWEEN LEGISLATION AND JURISDICTION.

and for the present I shall content myself with referring to
the remarks of Dr Lushington, Dean of the Arches, in the
famous case of Williams v. Bishop of Salisbury.^
• Tlie nearest approach to legislation which is permitted to
the judge consists in the dispensation of what is called
" equity," by which, in its original though scarcely in its later
English technical sense, he is understood to modify the letter
of the law to the extent of enabling him to apply its spirit —
i.e., to administer justice in circumstances which were unfore-
seen when it was enacted. We must guard, however, against
the error of supposing that in dispensing equity the judge
dispenses justice of a different kind from that on which law
reposes. There is but one kind of justice ; and legal justice
and equity, as we shall see hereafter,^ are identical. Some-
thing different from law, in the sense of common or statutory
law, he, no doubt, does dispense. But the whole object of
his departing from law is to enable him to adhere to justice,
and this not justice in any special sense, not justice of a
" higher and finer kind," ^ as Aristotle, or Eudemus, some-
what misleadingly tells us, but the ordinary justice of the
case, which the law as it stands has failed to embrace. He
extemporizes, so to speak, an exceptional law {repentinum
edictum) to meet the exigencies of exceptional circumstances
(jprout res incidit). In the possibility of the occurrence of
cases calling for so irregular a use of the judicial office, or
resulting in a legitimate conflict between enacted law and
the most recent discoveries of physical science or theological

^ Morris, P. C. Cases, 375. ^ Qap^ xi. xii.

3 Grant, AriaL, vol. v. c. 10, note p. 139.

PERFECT AND IMPERFECT OBLIGATIONS. 281

learning and thought, we behold the extreme importance ' of
such a constant revision of our statute-books, lay and ecclesi-
astical, as shall at all times preserve the harmony between
their provisions and the prevailing beliefs of the existing gen-
eration. It is very far, however, from indicating that the
binding force of erroneous law, whilst unrepealed, arises, as
Mr Austin supposed, from some other ultimate source than
natural law. Up to the moment that an enacted law is
repealed, it enjoys the presumption that it is not erroneous,
— in other words, it continues to be the interpretation of the
law of nature which the community has authorized ; and it is
surprising that Mr Austin should not have seen that it was to
this still unbroken link which binds it to the source of all
law, the fountain of all legislation, that its authority is due.^

CHAPTER XI.

6f the niSTORY OF THE DISTINCTION BETWEEN PEllFECT AND
IMI'EKFECT OBLIGATIONS ; AND ITS EFFECT IX GIVING KISE
TO THE NEGATIVE SCHOOL OF JUlilSPllUDENCE.

I do not propose here to enter into any analysis of tlie
idea of duty beyond what 1 formerly said of it, tliat it is a

' Aiwtin, vol. i. p. 234. This is only ono of iimny o})joctionH which I might
urge iti a lK)ok and to a HyHt<jni, whir-h, nion; than any oIImt, have recoiviMl ac-
ceptance; in England. Hut in the cawe of one wIiohc character I CHleeni ho highly
M I do Mr Auiitin'M, I gladly avoid i>olcinicH, and in all caHCH, indeed, I prefer
the coiiMtructivo to the dcMtnictivc proccBH. UnlcHa I can jml another KyHtein

282 Ob' THE llISTOrvY OF THE DISTINCTION

dictum of consciousness wliicli results inevitably from the re-
cognition of an objective existence, similar to that subjective
existence in which we have already recognized rights. The
question with which we are here concerned is simply whether
there be two separate kinds of duty, one of which having cor-
responding rights, admits of being enforced by external means ;
and the other of which, having no corresponding rights, does
not admit of being so enforced.

(a) nights and duties heing throughout reciprocal and co-
extensive, there is no distinction, in principle — i.e., in nature
— hetiveen one class of obligations and another.

Our previous inquiries -^ led us to the result that the duty
of affording mutual aid infers, in every case, a corresponding
right to claim such aid, and that the rights and duties which
bind human beings to each other are throughout reciprocal
and co-extensive.

It will readily be perceived that this doctrine is inconsis-
tent with the distinction by which rights on the one hand,
and duties and obligations on the other, have been divided
into two classes, called perfect and imperfect, of which the
first are said to possess, and the second to want, those in-
herent qualities which warrant the use of force to secure
their fulfilment. Let us inquire into the character of this
distinction, and of the arguments by which it has been
maintained.

in its stead, I am not entitled to pull down Mr Austin's. H I succeed in doing so,
it will give way of its own accord, and I shall be spared the pain of saying words
that might seem disrespectful, and the inconvenience of crowding my pages
with quotations which I believe to have no absolute value.
^ Ante, p. 204 et seq.

BETWEEN PEEEECT AND IMPEllFECT OBLIGATIONS. 283

The distinction, as we shall see immediately, has been,
variously stated by different schools of jurists and moralists,
but under all the modifications of it which do not amount to
entire repudiation, it means essentially what I have stated ;
and of all the stumbling-blocks with which pedantry has en-
cumbered our science, I think it is that which has proved
most fatal to its progress.

It is true that there is a meaning which is sometimes
attached to this distinction by practical lawyers, to which,
as it has no scientific significance, there can be no theoretical
objection, except this, that not being the meaning which was
assigned to it by any of the theoretical writers from whom
the practitioners ignorantly adopted it, its use is perplexing,
and is only a confused and roundabout way of getting at a
distinction which is perfectly plain, if simple men would be
contented with simple words. In the sense to which I refer,
it merely asserts that there is one class of obligations which,
at a given time and place, would, and another which, at the
same time and place, would not, and ought not, to be accepted
us good grounds of action in a court of law, without attempt-
ing to explain the reasons which led to the formation of tlie
two classes. So stated, it amounts to nothing more than the
distinction between positive and natural law, and in that
sense, as I said, my only objection to it is that it is needless.
But I object to it on far higher grounds wlicii 1 licar it in the
mouths of theoretical jurists, wlien I find it iin])()rted int(j
natural law, and wlien oljligations are ranged in virtue of it
into two cla-sses, differing not in degree ])ut in kiml, and that
so essentially, as that one of tlieni falls permanently without.

284 OF THE IIISTOIIY OF THE DISTINCTION

and another permanently witliin, an imaginary line wliicli is
supposed to mark off the sphere of ethics from that of juris-
prudence. To say that some obligations are more important,
or more sacred than others, would be merely to say that all
the transactions of life are not of equal magnitude — a proposi-
tion too obvious to be supported by argument, even by Puf-
fendorf.^ ISTor would it be less of a commonplace to assert
that some of them, on the groimd of their greater importance,
are more frequently enforced, or because they have reference
to external objects, may be enforced more readily than others.
But to say that one half of them rests on a half dictum of
conscience, and the other half on a whole dictum of con-
science, that though the observance of all of them be right,
there is one half of which the violation is not wrong, and
that this half of them falls beyond the domain of justice —
these are propositions which seem to me not only unsound in
theory, but fraught with practical dangers of a more than
ordinarily serious kind. It was of a system in which this
distinction was carried out to its legitimate consequence of
a complete separation between law and ethics, that Hugo

^ But even in this respect obligations continually change places. In general
it is a more sacred obligation that I should pay my debts than that I should go
out to dinner. But suppose the debt is an omnibus-fare, and that the dinner is
a feast of reconciliation. Quid juris .? When Professor Calderwood says that
there is an ethical use of the distinction, to which apparently he does not object,
"that some duties are always binding, others only in certain circumstances," I
dissent on the ground that no duties can be exercised in vacuo, and consequently
that they have no existence till some circumstances arise. Duty is essentially
an objective conception, and could not exist in a solitary subject. The only
conceivable solitary subject is the Creator, and to Him we have seen that the
idea of duty does not apply even after creation, otherwise than as identical with
His free will.

BETWEEN PERFECT AXD IMPERFECT OBLIGATIONS. 285

applied the epithet of a ciit-throat code ^ (eine Todtschlag-
moral), aud I shall point out to you instances of its effects
by-and-by, which will convince you that the expression did
not go beyond the occasion. Yet so far is this error from
being an exploded and innocuous one, that, at a period com-
paratively recent, it formed, even in Germany, the basis of the
prevailing doctrines of scientific jurisprudence, and the only
ones which ever largely influenced the thought of this country;
whilst, with little knowledge of its history, and less percep-
tion of its consequences, it is still adopted and retailed by
our latest writers, and not unfrequently acted on by our
statesmen and legislators. It is in virtue of it that a recent
writer of great ability ^ has asserted that, in passing from the
doctrine of recognition to that of intervention, we betake our-
selves to a " high and summary procedure, which may some-
times snatch a remedy beyond the reach of law," of which
" its essence is its illegality and its justification its success ; "
and it is in obedience to it that, shrinking from " the fluctuat-
ing and trackless depths of policy," in which this writer finds
J 10 guiding principle at all, our newspapers have advocated
and our Government has adopted the cowardly and heartless
doctrine that we may blamelessly withhold our aid from
nations struggling with oppression, even on the assumption
that it is in our power to afford it without counterbalancing
loss, or oven danger, to ourselves.'^

* Tenneinann, p. 361.

* HiMtoricu.H (Sir W. Vcmon-IIarrourt) on Intcrnntionnl Law^ p. 41.

' When these lines were writt<;n (1872), the (lire(;lion in whirh tliis fiilHO dis-
tinction acted on our external policy was generally that of producing an cxaggcr-
ited notion of neutrality. Neutrality was rcganleil as a liiH- of conduct which a

28G OF THE HISTORY OF THE DISTINCTION

(h) The attcm]jt to distinguish between perfect and imperfect
ohligations ivas not unhnoion to antiquity.

I cannot agree with Warnkonig, or with his authorities,
when he states ■*■ that neither amongst the Greeks nor Eomans
are any indications to be found of the distinction in question,
and that it was Thomasius who, in 1705, for the first time
divided ethics into two portions — viz., morals and natural law,
the first embracing those imperfect duties which cannot con-
sistently with justice, and the second those perfect duties
which must consistently with justice, be enforced. On the
contrary, I believe, that like most theoretical distinctions which
admit of many practical applications, and offer many conve-
nient compromises, it was early suggested by foregone conclu-
sions which it served to justify ; and that thus, in substance
at least, it has a place in the history of speculation in every
age and country. As regards classical antiquity, at all events.

State was always morally entitled to adopt, if it chose, whatever the circumstances
of the case might be, and the adoption of which was universally to be commended.
Now (1880) it acts, with equal force, exactly in the opposite direction — viz., as
a defence for intervention confessedly at variance with the ordinary rules of mor-
ality. Punch, at once the wisest and the wittiest of our periodicals, in his number
for January 24, 1880, p. 29, comments, more suo, on an almost incredible specimen
of this latter aberration on the part of the Pall Mall Gazette. Many similar,
though more guarded utterances, might be quoted from other party organs, and
from the Times within the last two years. Now, do people who write such pas-
sages really suppose that there are two distinct codes of morality, one of which
embraces the golden rule, and the other of which does not ; and that the former
ought to govern men in their national, and the latter in their international rela-
tions ? If so, can they wonder if thieves and swindlers should avail themselves
of so convenient a distinction in defining the relations in which they stand to
honest men ? The general election, which has just occurred, will probably con-
vince them that the people of England, at all events, have no intention of separ-
ating either their politics or their patriotism from morality.
^ Delineatin, p. 6.

BETWEEN PERFECT AXD IMPERFECT OBLIGATIONS. 287

it is not only distinctly traceable in tlie later stoical dis-
tinction between the KaOrjKov and the KaTopOoy/xa,^ but we find
that Socrates regarded it as part of the prevalent teaching of
his time, and that it was his strong sense of the evils which
resulted from the sophistical habit of subordinating the virtues
to each other, and thus withdrawing from them severally the
sacred character which could not be refused to them as a whole,
that led him to contend so keenly for their unity, and the
ultimate identification of each with all, and of all with each.
Then look at the middle ages. Asceticism, in so far as it
aimed only at self-discipline on tlie one hand, or at a severer
training for the service of God and man on the other, rested
alike on objective and subjective conceptions of duty ; for
every man is bound, in duty to God and his fellow-creatures,
as well as to himself, to use the talents that have been com-
mitted to him, and he can claim no merit, if, in order to ren-
der them available, he has to fortify by external appliances a
will which he recognizes to be free. But when ascetic prac-
tices came to be regarded as works of supererogation — wlien
it came to be thought that God's favour could be secured by
tliom, just in proportion to the extent to wliich tliey tran-
scended the bounds of duty, — tlicn, as of old, the virtues came
U) be referred to separate principles, and an order of tlicm was
imagined to whicli no riglits corresponded, and tlie obligation

' Omnt's Aristotle^ vol. i, p. 202. Zcllor's Slnkn, p. 271. Sir Aloxandrr
Omnt tniriHlateH KadiiKov, HuiUiblc, and Kar6p0u)fia, right, — and tliis HoniiH to l)o
bomo out by the paiwagos wliich Zellcr gives. Grant roniarks, however, thiit
ttaOriKoy r^mc to hi: tranHlated by the Latin word oj/lcium. It is on this ground,
probably, that Cahlen^ood fp. 38) ban oj>j»f»H('(l KaOriKoi/ to Ha\6i/. It is rather
equal to Ka\iy, and i« tranalat<;<l by officium only when ujficinvi mnHnni is
meant

288 OF THE HISTORY OF THE DISTINCTION

to perform which was imperfect. It was on this distinction
that a large part of the science of casuistry ^ rested, which
differed from jurisprudence in this, that, whilst jurisprudence
dealt with duties which, seen from the opposite point of view,
became rights, casuistry was occupied mainly with tlie apti-
tudes, as they were called, or unilateral duties.^

Lastly, as regards the earlier masters of our own science
in modern Europe : ^ the fact that the distinction is indicated
by Suarez, and had found admission into such works as those
of Grotius and Puffendorf, is proof enough that, though they
had* no thought of pushing it to the negative consequences
which it ultimately yielded, the idea of turning it to account
as a means of defining the province of jurisprudence was not
reserved for Thomasius in 1705, and still less for Mr Philips
in 1864!^

Whether justly or not, the distinction in question, when
viewed as a doctrine defining the limits of the science of
jurisprudence, is generally coupled with the name of Christian
Thomasius, almost in the character of a discovery, a circum-
stance amongst others which proves, though we hear little of
him now, that he was a man of first-rate importance in his

^ It was in virtue of their admission of the a5id(popa that the Stoics became the
founders of casuistry. — Zeller's Stoics, pp. 218, 281. It is a curious coincidence
that Seneca was a Spaniard by birth.

2 Neander.

3 The general position taken up by Thomas Aquinas excludes the distinction,
see infra, cap. xii. ; but see also the doubtful passage, vol. vi. p. 436.

* Gulielmi Grotii, Enchiridion, p. 121, where he no doubt speaks for his great
brother, as well as for himself.

^ Philips on Jurisprudence, Introd. pp. 5-7. Austin has the opposite view,
vol. i. p. 20.

BETWEEN PEEFECT AND IMPERFECT OBLIGATIONS. 289

own day, and renders it desirable tliat I should preface my
criticism of his system with some slight account of his per-
sonal character and position. Descended from a professorial
family in Leipzig, his father was the still more and more
justly celebrated Jacob Thomasius, the author of many val-
uable works on Philology and the History of Ancient and
Scholastic Philosophy. Christian, the son, was born in 1655,
and was educated under the eye of his father, who held a
chair in the university ; Leibnitz, the son of another professor,
who through life expressed the greatest affection and rever-
ence for the elder Thomasius, having been his pupil some
years earlier.^ Being naturally vain, and possessed with a
mania for being thought original, Christian Thomasius early
pushed himself into notice as a leader of the party of innova-
tion, already in the ascendant. Safe in the armour of Bacon
and Descartes, he attacked the scholastic philosophy, and
attempted to turn Aristotle into ridicule by the poor device
of translating selected passages from his writings, word for
word, into German. With more reason, he protested against
the use of Latin in the schools, and professed to deliver, in the
language of common life, a philosophical system which should
be intelligiljle to common imderstandings. It affords a curious
illustration of the difficulty whicli attended the application of
the modern languages to learned pursuits, that almost every
one of Thomasius's graver works was written in Latin. But,
whatever justice there may liavc Ijeen in the claims wliich
Tliomfiflius advanced to the character of an original tliinker,
there can be no doul^t tliat he was a copious writer <tn all

' Li'ibnitz waH honi in 10 10.
T

290 OF THE HISTORY OF THE DISTINCTION

subjects connected with jurisprudence. So varied were liis
labours and acquirements, that Warnkonig goes the length of
speaking of him as a modern Antistius Labeo, though, as regarded
his opinions, one would have thought that of the duo decora
pads, he bore the stronger resemblance to Capito. In 1687
he commenced a monthly journal under the foolish title of
Freimuthige, hostige %tnd ernsthafte, jedoch vernunft- und gcsetz-
mdssige Gedanken oder Monatgesprdche uber allerhand, vornehm-
lich aber neue Bucher (outspoken, merry, sincere, yet rational and
legitimate thoughts, or monthly talk, about all sorts of books,
but especially new ones). The opposition which this publica-
tion excited, together with his adoption of German in his
lectures, rendered him so unacceptable in Leipzig that he
went to Berlin, and thence to Halle, under the patronage of
the Brandenburg Court. He was honourably distinguished
as the opponent of trial for witchcraft and punishment by
torture. His character, though tasteless and shallow, was no
doubt active and progressive. Of his influence in Germany,
the University of Halle, which owes its origin to him, and to
which, as its first rector, he stood in a relation similar to that
in which Leibnitz stood to Berlin, is a sufficient monument.
But in this country it is probable that the title of his work
on natural law commended it to notice more than even the
fame of its author. It is called Fundamenta j\iris natiirce et
gentium ex sensd communi deducta ; and Christian Thomasius,
consequently, is one of the one hundred and six witnesses
whose testimony Sir William Hamilton cites in proof of the
universality of the philosophy of common - sense.-^ But

^ Hamilton's Eeid, p. 785.

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 291

whether it was to this circumstance or to deeper causes
connected with the general tone of thinking^ which then
prevailed that they owed the favour they enjoyed, the doc-
trines of Thomasius and his followers in jurisprudence and
natural law were in high repute amongst our countrymen a
Imndred years ago. There is every reason to believe that it
was from the writers of this school, probably from Thomasius
liimself, that Hutcheson, in particular, adopted the distinc-
tion between natural law and ethics ; and the opinions of
Hutcheson influenced those of his successors, both here and
in England, very extensively. The doctrine, in the form in
which Thomasius presents it, in so far as it had an immediate
historical source, is said by Ahrens,^ I think justly, to have
sprung from a misapplication of the tripartite division of
justice wliich his friend and contemporary Leibnitz had intro-
duced a few years before, in a tract on the " Method of learning
and teaching jurisprudence." ^ It was a juvenile production,
and is not included in some editions of his works ; but it ac-
f[uired importance from the fact that he refers to it, and accepts
the view of justice wliich it advocated, in the celebrated preface
to his Codex Diplomaticus Juris Gentium^ (quemadmodum rem
adolescens olim in libello, de metliodo juris, adumbravi).

Justice, Leibnitz taught, manifested itself in three degrees :

(1) strict justice (jits stricUmi), wliich consists in commutative
justice, and may be resumed in the principle alium non Iccdcre ;

(2) equity (rrquitas), or distributive justice, equivalent to the

' P. 668.

' Nova McthfxluH disc/m/la: (loceiuhrqnr Jitrisjirinhutim.
' PiMtrrtalio, vol. i. Hcct. xii.

292 OF THE HISTOPvY OF THE DISTINCTION

principle suum cuique trihuere ; and (3) piety (pietas), or prob-
ity (prohitas), enunciated in the maxim honestd vivere}

I do not think that the Eoman Juris prcecepta ^ can be
maintained, even as a division of degree, in any absolute sense.
The first and the third branches are simply the second (suum
cuiqiie), exhibited in different points of view ; for not to hurt
our neighbour is neither more nor less than to give him his own,
and the same is, I think, plainly the ultimate meaning of the
honesU vivere also. On the principle, then, that things which
are equal to the same thing are equal to one another, if the first
branch and the third admit of being identified with the second,
they are themselves identical ; and the whole resolves itself into
a series of distinctions without differences. Aristotle has said
that an incapacity to draw nice and subtle distinctions is the
characteristic intellectual defect of the vulgar.^ With equal
truth, perhaps, he might have stated the characteristic defect
of the learned to consist in distinguishing too often and too
much.

But, be this as it may, Leibnitz did not establish, or mean
to establish, any absolute distinction between the strictiim jus
and the others, on ethical grounds. He is not contented with
tracing all of them to an ethical source, as Professor Calder-
wood seems to be ; on the contrary, he indicates, in the pre-
face to the Codex Diplomatieus, a very clear opinion to the
effect that the distinction between them is created by positive
law, by the action of which alone an aptitudo, as he expresses
it, is converted into a facultas. That such was Leibnitz's

^ Ahrens, id sup. ^ Inst. , 1 . ] . 8. ■

•' Ti» Siopi^eiu ovK effTi ru>u TroWwy. — Ethic. Nic, vol. x. 2.

BETWEEN PEEFECT AKD IMPERFECT OBLIGATIOKS. 293

view, is further proved by tlie fact that he elsewhere identifies
justice with the " charity of the wise " (Justitiam igitur, quae
virtus est hujus afifectus rectrix quern (faXavOpiDiria Grseci vocant,
commodissime, ni fallor, definiemus caritatem sapientis, hoc
est, sequentem sapienti^e dictata). As Leibnitz does not assert
that there is a charity of the foolish {caritas stulti), differing
from and transcending the charity of the wise, we may take
the liberty of separating his general dictum that justice may
be defined as charity, from his qualification (sapientis), which
he probably introduced for no other reason than to guard
against the popular abuse of speech, by which the name
of charity is too often given to mere irrational sympathy,
or it may be ostentatious profusion. It is on the ground
of liis thus asserting the absolute identity, in principle, be-
tween justice and charity — a subject of which I shall speak
fully hereafter — that Ahrens, when treating of Leibnitz's
views, says that "justice, according to him, does not concern
the external relations of men alone, but extends as far as
reason and the rational relations of men with all other beings."^
How little sympathy Leibnitz had with any scheme for separ-
ating jurisprudence from etliics, becomes further apparent from
an interesting passage in one of his letters, which is probably
less known than those I have quoted. " Ethica?," he says,
" est docere virtuteui, jurisprudentiic hunc quem dixi usum
ejus ostenderc. . . . Opinio, qua jus natura) ad externa rc-
stringit, nee vcteribus Philosophis, ncc Jurisconsultis olim
gravioribus placuit, donee rufendorlius, vir paniiu .Juiiscun-
sultus et minimi Philosophus, fpiosdam scduxit: Kst ejus non

' 1*. OW.

294 OF THE HISTORY OF THE DISTINCTION

magna apiid me auctoritas ; qiiam fer^ popularia tantum cle
suo adferat, et in cortice lioereat." ^

But if Thomasius cannot claim Leibnitz as a predecessor,
lie had many loyal and illustrious followers in Germany. Of
these, the most devoted were perhaps Gerard and Gundling,^
and certainly by far the most illustrious was Immanuel Kant.
To Kant's influence, more than to any other cause, was prob-
ably due the unhesitating confidence with which, till a
recent period, this distinction was generally maintained and
applied. In Kant's hands, it is true, it assumed a somewhat
different form — a form which admitted of its being more
readily brought to the test of experience, and which, on that
account, has led to its being absolutely rejected by a greater
number of those who came in contact with it in Germany as
expounded by Kant and his followers, than of those who still
know it, as is the case in England, only as his predecessors
had stated it. Like Thomasius, Kant held that there are two
distinct classes of duties — those which may, and those which
may not be enforced consistently with the dictates of natural
law, and, of course, of positive law in its true and proper
sense. The line by which these two classes of duties are
divided, he believed to be absolute and permanent — not a
line indicated by external circumstances, traced by particular
systems of positive law, and varying with time and place; but
a line drawn by the constitution of human nature, and the
necessary relations of human society. So far, indeed, neither

1 Epistolay vii. Leibnitz's position in this and other matters relating to
jurisprudence may now be readily discovered from Professor Trendelenburg's
Kleine Schriften, &c., ante, p. 32, note.

2 Tennemann, p. 352.

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 295

Kant nor Thomasius stated anything that was new, but the
teaching of Thomasius contained the germ of a principle
which Kant worked out and applied, and which may, I
thiak, be regarded as the distinctive feature of the Kantian
school of natural law, as it unquestionably is that which
distinguishes it from the school which is now fast gaining
the ascendant in a speculative, as in so many directions it
has already done in a practical point of view.^ The priaciple
to which I refer, is that which assigns negative rights and
duties alone to justice as their source, whilst it holds all the
positive rights and duties of humanity to be based on the
honestum and decorum. Kant perceived that very little pro-
gress was made towards rendering the old distinction between
perfect and imperfect obligations available for practical purposes,
by asserting that the perfect obligations were enforceable, and
that the imperfect obligations were not. To define a perfect
obligation as one that was enforceable, and then an enforceable
obligation as one that was perfect, was to reason in a circle,
from which it was possible to escape only by the adoption of
an external test by which either the one characteristic or the
other could be positively determined. Now, such a test was
afforded by the principle wliich I have mentioned — the prin-
ciple, viz., of confining the sphere of justice to negative rights
and duties ; and though its application is correctly ascribed to
Kant, there are j)assages in Thomasius which, I tliink, estab-

* The fact of Ahrcns havinpj been selected to write tlic article) on K(clitsi)lii-
losophic in lIoltzendorfTH KnnjchjHJulia, shows that he was regarJod iii 1873
M the leading representative of the subject in (Jeniiany. Trendelenburg', who
agreed with him in this matter, held the same position amongst those who dealt
with the subject from a philosoidiical (Njint of view, as Ahrcns did amongst jurists.

296 OF THE HISTORY OF THE DISTINCTION

lisli liis claim to its discovery. In particular, let me refer
to the passage where he says, " Prtecepta negativa pertinent
ad priDcepta justi, prjBcepta affirmativa autem ad prsecepta
decori," &c.-^

Adopting this principle, then, Kant taught that the obliga-
tion not to interfere with the liberty of our neighbour was the
only perfect and enforceable obligation. All the positive duties
which we owe to our neighbour he held that we owe him
morally only — tliey are imperfect, non-enforceable obligations,
and beyond the sphere of jurisprudence, forbidden to legisla-
tion, not accidentally or generally, but necessarily and invari-
ably. It is not a little remarkable that so stanch an adhe-
rent of what the Utilitarians call the intuitive system as Kant,
in this the almost solitary instance in which he allowed his
opinion to be formed by what seemed the manifest teaching
of experience, should have fallen into what, had he lived to
our day, experience would probably have induced him to
repudiate as an error. The following I believe to be pretty
nearly the history of this occurrence. The curse of Kant's
time was over-legislation. To what extent the philosophical
doctrines, with which the Wolfian school was now opposing
the negative teaching of Thomasius, is chargeable with the
fact may be questioned ; but the fact itself is certain. Trade,
religion, social life and progress in all directions, were regu-
lated and restricted. In Germany, Frederick the Great ^ and

1 P. 213, ed. 1718.

2 In his Anii-Macchiavelli Frederick indicates the points of difference and agree-
ment between himself and the Italian. Unlike Macchiavelli, he puts the interests
of the Prince, as an individual, altogether into the background ; but he sacrifices
his j)ersonal morality also to the interests of the State.

BETWEEN PEPvFECT AND IMPERFECT OBLIGATIONS. 297

Joseph the Second were patriarchal monarchs, who, as Ahrens ^
has said, unhesitatingly put " le salut public audessus du droit
et de la liberte des individus." In his marvellous book on
France before the Eevolution, M. de Tocqueville has shown
us that, in no small measure, it was the interference of the
State, by means of intendants and other ofticials, with the
liberties of the individual that brought about the French
Eevolution ; and in its earlier stages, so long as it could be
regarded as a protest in favour of liberty, Kant, like Burke
and so many others who afterwards shrank in horror from its
excesses, and turned in contempt from its exaggerations, was
a zealous sympathizer with the movement. In corruptissimd
reimUicd plurimce leges, is the saying of one ^ who had lived
through a still darker epoch ; and the whole Liberal party in
Europe, Kant being of the number, were so sensible of the
fact that liberty had suffered before their eyes from the very
science of Government of which it was the true object, more
than from any other cause, that they sought to confine positive
law within the narrowest limits. Their aim was to elaborate
a system in accordance with which the State should become
a mere police, which should never interfere with individual
action except for the purpose of preventing interference ; and
in order to lay a theoretical groundwork for such a system, it
was plainly necessaiy that the sphere of jurisprudence should
be declared to be a purely negative sphere. Kant, as may
readily be imagined, occupied himself chiefly with the tlieo-
retical groundwork, but that he aimed at the same practical
end as his contemporaries, is plain enough ; and il we wish to

* Ahrens, vol. ii. p. 20. ' Tticitua.

298 OF THE HISTORY OF THE DISTINCTION

see the principles of his system worked out, not perhaps to
the full results which they logically yield, but to those which
it is probable Kant contemplated, we have only to turn to
the pages of another illustrious German of the generation
which immediately followed. In his work, entitled TJioitghts
ivith a View to Determine the Limits of the Action of the State}
Wilhelm von Humboldt sought to prove that the community,
as such, was necessarily and permanently incapacitated from
aiding the individual directly, and that the only influence
which it could legitimately exercise over him was confined to
prohibiting him from interfering with other individuals.

" The doctrine of Kant," ^ as Ahrens has said, " completes
the distinction established by Thomasius between morality
and law ; law, however, preserves an intimate relation with
the good, because it exists only for the purpose of assuring
the personality and the moral liberty of man. The school
of Kant has often forgotten this relation in separating legal
liberty, or the liberty which exists of right, both in civil and
political arrangements, from moral liberty. But Kant himself
had the fullest consciousness of the connection which exists
between these two kinds of liberty, though he has not deter-
mined it with sufficient precision." Eeaders of Ahrens's own
discussion ^ may perhaps be permitted to doubt whether the
praise which he has bestowed on Kant in the last sentence be
not pretty nearly all which he himself is entitled to claim.
" Law and morals/' he says finely, " lend each other mutual

^ Ideen zu einem Versiich die Grenzen der Wirksamkeit des Stoats zu bestimmen.

2 P. 44.

^ Distinction et ra^yports entre le droit et la Mo7'ale, vol. i. p. 159.

BETWEEN PERFECT AXD IMPERFECT OBLIGATIONS. 299

support ; separated or confounded, tliey produce social disorder,
but, distinguished and united, they are the two most powerful
levers of all real progress." The sin of separating them, of
which Kant was unintentionally guilty, Ahrens certainly does
not commit. He carries his opposition to the negative school
so far, as, in my opinion, to fall back into the perfice te ipsum
of Wolff, and thus to lose the distinction between natural law
and ethics altogether; but perhaps I had better not accuse
him of confounding them till I have submitted to the reader
my own attempt to distinguish them.^

The difficulty which led Kant to adopt the distinction
between negative and positive, in preference to that between
perfect and imperfect obligations, had pressed itself on the
better class of thinkers in our own country at an earlier
period ; and whilst Eutherford states the old distinction
without the slightest misgiving as to its serving the purpose
of establishing a permanent and workable line of demarcation
between law and ethics, Hutcheson, follower of Thomasius
though he was, was far less confident.^ In his first book (p.
68), indeed, he seems to lean to the Socratic view of justice
by whicli the distinction, as we shall see presently, was ex-
cluded ; and in the second book, though he states it, he quali-
lies it thus : " Yet the boundaries between perfect and imper-
fect obligations are not always easily seen. There is a sort

* In/ra, Book ii. caj». i,

' As in all Mirnilar cohch, the more we look into the (lucstion, the less do we
find it to bo new. Here, for example, is a clear cxprcHHion of opinion on the
part of ThomaA Aquinaa in favour of the poHitive school : " I'Iuh e»t operari
Ixjnurn qiiani vitare malum, Et i«li;o in pricceptis afTlrnmtiviH virtuto includuntur
pr;«f«ptA negativu, " — Suuuaa, SccuiuUi SccuikJUk, (juuh. \\, IJ, 3.

300 OF THE HISTORY OF THE DISTINCTION

of scale, or gradual ascent, tlirough several almost insensible
steps, from the lowest and weakest claims of humanity to
those of higher and more sacred obligation, till we arrive at
some imperfect rights so strong that they can scarce be dis-
tinguished from the perfect, according to the variety of bonds
among mankind, and the various degrees of merit and claims
upon each other. Any innocent person may have some claims
upon us for certain offices of humanity. But our fellow-
citizen, or neighbour, would have a stronger claim in the like
case. A friend, a benefactor, a brother, or a parent, would
have still a stronger claim, even in those things which we
reckon matters of imperfect obligation."

The ground of hesitation which Hutcheson here indicates
has reference, not to the form of the distinction as commonly
stated in his time, but to its substance. He doubts if the
duties of humanity can be identified with those which are
imperfect, and as such non-enforceable ; and hence we may
probably infer that unless, like Kant, he had been carried
away by the spirit of the rising generation, he would have
pronounced the test of negative and positive to be illusory.

The relation in which Dr Eeid stood to the prevailing
doctrine is a still more curious illustration of the gradual
manner in which the truth dawns even upon clear-sighted
men. In the first place,-^ he states the distinction in the
usual way, without any apparent hesitation as to its sound-
ness ; then, on the following page,^ he says " that the two
classes, like the colours in a prismatic image, run into each
other, so that the best eye cannot fix the precise boundary

^ Hamilton's Reid, p. 644. 2 p, 545^

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 301

between them ; " and finally, he returns ^ to the ancient view,
and admits charity, and, as a necessary consequence, all the
other imperfect obligations, within the sphere of justice, — thus
practically repudiating the distinction altogether.

Dugald Stewart, notwithstanding his vigorous and repeated
protests against the manner in which natural law was taught
by the civilians, in which I generally concur, does not seem
to have freed his own mind from what was probably their
greatest error; for we find him admitting that "justice is the
only branch of virtue in which there is always a right on the
one hand, corresponding to an obligation on the other." ^

The first of our countrymen — and, so far as I know, the
only English writer of importance even yet — who has con-
sciously abandoned the distinction, and expressly separated
himself from tlie prevailing doctrine, was Dr Thomas Brown.
As, in doing so, he had the merit of having been one of the
earliest modern thinkers in Europe to assert the universal
character of ethics, and thereby to place the science of juris-
pnidence on what was its ancient, and what I liope before
hjng will be universally recognized as its true basis, I sliall
quote the passage from liis lectures in which he expresses liis
views. It occurs towards the end of Lect. Ol.'*^

" I have treated," he says, " of our moral duties with only
few remarks on wliat are commonly denominated rights ; for
tliis best of reasons, that the terms right and duty are, in the
strictest sense, in morality at least, corresponding and com-
I mensuraljle. Whatever service it is my duty to do to any one,
lie has a moral right to receive from nut. . . . I do not speak
' I 'p. e,:,H, fir.!). » outUnrs, p. 209. ■' r. (;ir».

302 OF THE HISTORY OF THE DISTINCTION

at present, it is to be remembered, of the additional force of
law (that is, positive law) as applied to particular moral duties,
a force which it may be expedient variously to extend or limit,
but of the moral duties alone; and in these, alike in every case,
the moral duty implies a moral right, and a moral right a moral
duty. . . . The laws, indeed, have made a distinction of our
duties, enforcing the performance of some of them, and not
enforcing the performance of others ; but this partial interfer-
ence of law, useful as it is in the highest degree to the happi-
ness of the world, does not alter the nature of the duties
themselves, which, as resulting from the moral nature of man,
preceded every legal institution. . . . On this very simple
distinction of duties which the law enforces, and of those
which for obvious reasons it does not attempt to enforce, and
on this alone, as I conceive, is founded the division of perfect
and imperfect rights, which is so favourite a division with
writers in jurisprudence, and with those ethical writers whose
systems, from the prevailing studies and habits of the time,
were in a great measure vitiated by the technicalities of law.
The very use of these terms, however, has unfortunately led
to the belief that, in the rights themselves, as moral rights,
there is a greater or less degree of perfection or moral incum-
bency, when it is evident that morally there is no such dis-
tinction ; or I may even say that if there were any such dis-
tinction, the rights which were legally perfect would be of less
powerful moral force than rights which are legally said to be
imperfect. There is no one I conceive who would not feel
more remorse, a deeper sense of moral impropriety, in having
suffered his benefactor, to whom he owed his affluence, to per-

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 303

ish in a prison for some petty debt, than if he had failed in
the exact performance of some trifling conditions of a contract
in terms which he knew well that the law would hold to be
definite and of perfect obligation. It is highly important,
therefore, for your clear views in ethics, that you should see
distinctly the nature of this difference to which you must
meet with innumerable allusions, and allusions that evince
an obscurity, which could not have been felt but for the un-
fortunate ambiguity of the phrases employed to distinguish
rights that are easily determinable by law, and therefore en-
forced by it, from rights which are founded on circumstances
less easily determinable, and therefore not attempted to be
enforced by legal authority." And he thus sums up his view :
" All rights are morally perfect ; because wherever there is a
moral duty to another living being, there is a moral right in
that other, and when there is no duty there is no right. There
is as little an imperfect right, in a moral sense, as there is in
logic an imperfect truth or falsehood."

This very clear exposition of the fallacy of the distinction
between perfect and imperfect obligations, in any other sense
than as a distinction between ethics, or natural law, on the
one hand, and positive law on the other, was, as I have said,
one of the earliest in Europe after the revival of what in
antiquity had formed part of tlie teacliing of the Sophists by
Thomasius, and its application by Kant and his followers in
the eighteenth century.

Brown lectured for tlie first time, as JJugald Stewart's
a.ssistant, in 1810; and liis lirilliant career was terminated
by his t^>o early death in 1820. TIk; pa.ssage \vlii( li I have

304 OF THE HISTORY OF THE DISTINCTION

quoted must consequently have been written during the in-
tervening ten years.

In Germany the fame of its original patrons protected the
distinction from question for the better part of another decade.
The first writer who is mentioned by Trendelenburg as pro-
fessing the opposite doctrine is the now recognized father of
the positive school, Karl Chr. Fr. Krause.^ Then there are
his two leading disciples — who have toiled at the dissemina-
tion of his doctrines, " mehr als ein Menschenalter hindurch" -
— Eoder,^ whose Politik appeared in 1837, and Ahrens,^ the
first edition of whose work appeared in 1839. Stahl^ in 1830,
and Schleiermacher,^ as was natural in one who was built on
Plato, in 1835, adhered to the ancient doctrine from different
points of view, though neither of them were of Krause's |
school in other respects. Of later writers, Trendelenburg
classes as adherents of what by that time was becoming the
prevalent doctrine, Wirth in 1841, Chalybseus in 1850, and
the younger Fichte in the same year, the elder Fichte having
in this matter adhered to Kant. To these writers, Hegel,
though differing from most of them very widely in other re-
spects, falls in this respect to be added ; and Trendelenburg
himself, as by no means one of the least important — his work

^ His lectures were published in full by Professor Rbder in 1874 : Das System
der liechtsphilosophie ; Vorlesungen, &c. — Leipzig, Brockhaus. Hitherto
Krause's system had been known only from the Ahriss dcs Systemes der VM-
losophie dcs Rechts, oder des Naturrechts, 1828.

2 Roder's Krause, Vorhericht, p. xii.

3 Naturrecht, odcr Rechtsphilosophie, 1860.

^ Cours de Droit Naturel ou de PMlosojJhie du Droit, 6th edit., 1868.
^ Philosophie des Rechts.
^ Entwurf eines Systems der Sittenlehre.

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 305

on Natural Law,^ which appeared in 1860, having had for its
express object to restore the connection between law and
ethics, which the influence of the Kantian school had so
seriously weakened. Warnkonig, who was an eclectic, and
not very much of a philosopher, can scarcely be said to have
taught a system of his own, but on this point he was a firm
adherent to the same view. Amongjst the various shades of
opinion which he enumerates ^ he mentions that of a writer
called Flatt, who carried his opposition to the limitations of

the negative school so far as to maintain that there are no
perfect obligations. Tennemann mentions more than one
philosopher who rejoiced in this ominous cognomen. I am
not myself acquainted with the work to which Warnkonig
refers ; but if all that the writer in question meant was that
there are no obligations so perfect, morally, as not to require
tliat, in some conditions of society, they should be made the
subjects of positive law, I should be very much disposed to
assent to his proposition, provided he could demonstrate the
possibility of its ijractical application. There is surely no
natural obligation so perfect as " Thou slialt not kill," and yet
murder is forbidden by positive law in every Christian country.
In the other direction there is nothing so trivial as not to be
regulated by positive law of some kind. It is the law of our
dinner- tables to present fish immediately after soup. In
CJermany there is a different law; but in both there is a
positive law. Jf, then, we extend the term positive law, so

* Nalurrechl auf dcm Orundc dcr Etidk, 1 800.

' rhilo8oj/hi<K Juris cUlineatio, ]>. 26. IIIh own vioW8 will l>c f(MHi(l in the
(loi.'triiial iwrtion, p. 79,

306 OF THE HISTORY OF THE DISTINCTION

as to include under it the rules of society and the regulations
of religious bodies, and if we recognize opinion as one of its
so-called sanctions, the number even of subjective obligations
wliicli fall within its scope will probably be found to be very
much greater than we are accustomed to suppose.

But it is the followers of Krause who, not only by their
writings but by their annual congresses and other proceedings,
have made themselves the practical representatives and ex-
positors of tlie positive school ; and for this reason it may be
desirable tliat I should state their views in somewhat greater
detail. Their leading thought, more particularly as repre-
sented by Eoder,^ is guardianship ( Vormundschaft). All legis-
lative action, all government — which the Kantian school
had identified with police — Eoder (reminding one of Plato's
<j>v\aK€^) resolves into guardianship, exercised by those who
are majors over those who are minors, and having for its
object, in the first instance, the benefit of the latter. I say
that they give precedence to the interests of the minors ; for
one cannot but feel that the tendency of the whole class of
writers to which Uoder belongs is, theoretically, to repeat

^ Professor Roder, whose recent death (20th December 1879) is an irreparable
loss to science and to his friends, did me the honour to review this work in the
Tuhinrjcr Zcitsclirift fiir die Gesammte Staatswissenschaft for 1873 (ii. Heft, pp.
213-232) under the title of Neure Rechtsfilosofie in England. His generous and
indulgent criticism finds many exceptions, more particularly, of course, at the
points at which I have adhered to the Kantian system in preference to that of
Krause, But he does not allege that I have misunderstood or misrepresented his
general meaning even there ; and with reference to one matter he pays me the
compliment to say (p. 222) that I belong to the sehr Wenigen who have pene-
trated to the full sense ! I consequently hope that with the slight alterations
I have made on it, the statement of his doctrine in the text will be found to
l)e fairly accurate.

BETWEEN PERFECT AND IMPEKFECT OBLIGATIONS. 307

what I have elsewhere pointed out as the error of the school
of benevolence,-'- and to forget the existence of subjective
rights altogether, whilst practically they would sacrifice the
fraternal to the paternal principle, and fall back on abso-
lutist doctrines of legislation. Xo such objections, however,
necessarily attach to their system ; for the interests of all
being ultimately identical, in consulting the real interests
of their wards the guardians really consult their own inter-
ests also, and vice versd. This thought then Eoder adopts,
quite legitimately, as expressing the principle of the positive
school ; and he follows it out in all possible directions, and
finds for it all possible applications. It determines the true
spheres of action and of passion, and fixes the limits of inter-
ference and non-interference in every department of juris-
prudence ; for interference shall take place when, and only
when, it conduces to the benefit of the minor — i. e., when it
enables him, or tends to enable him, to attain the perfection of
his being and the ends of his human existence. Wisely and
considerately Roder professes to draw no absolute lines, either
03 regards j)ublic or private relations, between those whose
duty it is to aid, and those whose privilege or misfortune it is
to accept aid ; and the spliere of guardiansliip thus always
diminishes just in proportion to the extent to which its
objects are accompli.slied. Tlie minor, who is majoritati
proxi7nii8, is not entitled to the full rights, or bound to
undertake the whole respon.sibilitics of a major; but 1h; is
no longer an infant, and must mainly trust to self-guidance
m\ 8clf-lielp. it is needless that 1 should jtoinl <tu( the

308 OF THE HISTORY OF THE DISTINCTION

manner in which this principle, originating in the relations of
parent and child, is extended to the other domestic relations,
and even determines the conditions and limitations under
which free contracting power must be recognized between
tliird parties. But, in these times, I must not fail to call
attention to the difference between the order of political ideas
resulting from a system which, starting from the relation
of parent and child, embraces the family relations in their
integrity, and the ordinary democratic one, which, taking cog-
nizance of the brotherly relation {fraterniU) alone, degenerates,
in the end, into individual isolation and collective anarchy.
The watchword, or rather the war-cry of the democratic party
is, " L'climination de toutes les tutelles, le d^gagement le plus
complet possible de la personne humaine." ^ " Je ne reconnais
d'autre souverain," exclaims M. Acolas, " pour moi-meme que
moi-meme." ^ But what if I should be able to exercise the
sovereignty only by the help of another ? A sovereign may
be a minor like other people. What if I should be a minor
in age, in intelligence, in natural gifts ? The greater number
of grown men are savages, and are consequently in their
minority ; and there are very few of us, I fear, who are not
more or less in the same position.

Applied to public law, the principle of guardianship not
only binds the community into a single organism, but it sup-
plies a rule for the gradual admission of the whole community
to share the rights and responsibilities of self-government. It
is thus liberal in the fullest and strictest sense. But it mani-
festly shuts out the notion of an equal participation in these

^ Emile Acolas, La R^publique, p. 8. ^ P. 31.

BETWEEN PERFECT AND IMPERFECT OBLIGATIONS. 309

rights and responsibilities, and in this respect is strongly anti-
democratic. Professor Eoder ^ is consequently an advocate for
the principle of political graduation, which I have so long
maintained, and a determined enemy to levelling {GleicJi-
macherei). Even a restricted suffrage, a suffrage which for
the time being should shut out a large proportion of the
community from all participation in government, he holds to
be fully justified by his system, so long as power shall be
thereby placed in the hands of tliose, and of those only, who
can exert it better for the common good — who can act as
guardians. The result is unquestionably legitimate, — at least
I can see no ground on which it can be assailed, even though
greater prominence were given to individual rights than
Roder's system, in this aspect, would seem to allow them.
But by a proper application of the principle of graduation, in
the manner which I have elsewhere explained,^ I think the
limits of total exclusion might be restricted to a greater
extent than Professor Poder and the class of writers to which
he belongs, seem to have contemplated. It is plain, however,
tliat this principle excludes all forms of government which
liave in view the exclusive interests either of an individual or
of a class — absolute monarcliy, oligarchy, and democracy, —
together with tliose forms wliich, though affecting to be con-

* Such, at all events, is his general doctrine ; but, like Ahrens, ho has not
always maintained it consistently, and at vol. ii. p. 141 of his NaluiTccht, you
will find a passage in which he asserts the equivalence of functions. On tlio
other hand, in his Polilik he goes very boldly in th o opposite direction, and in
the review above referred to explains and vindicates this passage in the Nalur-
rcrM on grounds which I confess I do not quite unth'rstand.

' Politirnl Profjrcss wd necessarily Democratic, ISf*?; antf, (JimstHntinnnliavi of
the Future, 18G5.

310 OF THE HISTORY OF THE DISTINCTION

iided equally to all, are in reality exercised by a mere numeri-
cal majority ; and these, on grounds which I shall explain
more fully hereafter, I believe to be the only "forms of govern-
ment the realization of which will ultimately be found to be
irreconcilable with order, progress, or even civilization.

The idea of guardianship has its application also in external
politics, — the jus inter gentes. The principle of graduation
introduces a new element into the doctrine of Eecognition,
and finds an appropriate function in the ranking of states for
purposes of arbitration and intervention,^ whilst it furnishes
the ground, and I believe the only ground, on which the
continued rule over a peaceable but semi-barbarous or retro-
grade nation — our own rule in India, for example — can be
justified.^ Seen fromf the side of the conquered people alone,
however, the true view of the matter is that, so long and so
far as external government by a higher or more advanced race
does really promote the human development of the lower or
retrograde race, that government is just. It is an interference
in favour of liberty on the whole, and thus falls in with the
object of Kant's system, to which we shall ultimately see
grounds to give in our adhesion, though it conflicts with the
negative character of his means, which, I believe, we must
reject.^ The moment that the lower or retrograde race be-
comes capable of attaining tliis end by its own efforts, the

1 P. 261, note.

2 That of tlie French in Al^jeria might perhaps stand on the opposite ground
— viz., that, in suppressing a nest of pirates, they were asserting rights on the
part of the trading nations of Europe not less real than any which the Algerians
had to their guardianship.

■* Infra, Book ii. cap. 1.

BETWEEN PEEFECT AND IMPERFECT OBLIGATIONS. 311

rule of the higher race, unless spontaneously retained, degen-
erates into tyranny.

But it is in the redon of criminal law that Eoder conceives
his principle to be peculiarly fruitful, and he is never weary
of dilating on the benefits of its practical application. The
true object of punishment, he says, is neither vengeance nor
terror, but the amendment of the criminal for his own benefit
and the benefit of others, his resumption of the duties and
restoration to the rights of a free man. It is not to increase
evil in the world by extending to the transgressor the suffering
he has inflicted on others, but to diminish the evil by con-
verting the criminal's will, which, if it be a curse to his fellow-
mortals, is a still greater curse to him. If our object were
simply to torture him, we have only to let him alone. But
it is in the fact that this object is one which we are not
entitled to set before us, that punishment finds at once its
reason and its justification. It is the medicine to the en-
feebled and vitiated will, and the criminal has a right to it,
just as those who are sick in body have to the apothecary's
drauglit or the surgeon's knife, that the starving and impotent
have to the soup, the foul to the soap, or the ignorant to the
instruction that is doled out to them I)y tlie liand of voluntary
or compulsory charity. Tlie compulsion in all such cases, botli
in the case of liiiu who gives and ol' lu'm wlio receives tlie
lienefit, may be hehl to bo illusory ; for, even in the case of
punishment, Koder would agree witli Hegel in holding that by
the conscious commissifjn of crime tin; higher nature of man
con.scnts to punislnnent, and that all tlnit is effected l)y the
jury, or th*- iii(!"o, \h to ascertain the fact of thi.s consent, antl

312 OF THE HISTORY OF THE DISTINCTION

to assign the form and measure of its concrete realization.
But no man is entitled finally to abandon himself, and con-
sequently no man can he held to have consented to punish-
ment which is not for his own ultimate benefit. On this
ground Roder is an opponent of capital punishment, which he
holds — somewhat hastily perhaps even with a view to this
world — to cut the criminal off from the opportunity of amend-
ment ; and to all forms of corporal punishment, which he
believes to degrade him. On the first of these difficult ques-
tions I do not wish to go beyond what I have already said.^
But, as regards the second, it sometimes occurs to me that a
little more experience of criminal courts might probably lead
a good many philanthropists to ask themselves whether there
be not human beings whom no corporal punishment could
degrade, and to whose " sittliche Bildung " it might even con-
tribute.^ Nor is it inconceivable that the last penalty of the
law, carried out after an adequate period for reflection and
repentance, might conduce more to the human perfection of
the criminal than the prolongation of his life ; or that his re-
moval from society would be more beneficial to others than any
future career that would be possible to a nature so degraded.
On the other hand, the theory of guardianship furnishes by far
the most complete answer to the common objection to the
employment of criminals in remunerative labour, on the ground
that it interferes with the labour of honest men. If we regard
the criminal in the light of a pupil, the brush-maker, or mat-

1 Ante, p. 219.

- When acting as a magistrate, I have myself observed the vastly greater im-
pression which a sentence of whipping produced on boys than a sentence of
imprisonment with hard labour.

BETWEEN PEEFECT AXD IMPERFECT OBLIGATIONS. 313

maker -whose earnings are depressed by his enforced com-
petition, has no more reason to complain than he would have
if a neighbouring brush-maker or mat-maker compelled his
idle young varlet of a son to work. The State is simply the
parent who wields the rod; and the interests of the criminal
are no more separated from those of the community than the
interests of the rebellious child. But it is not hujus loci to
discuss these matters farther, or to follow out the theory of
guardianship into all the results which it is supposed by
Professor Eoder to yield within the sphere of positive law,
civil or criminal. As regards the latter, more especially, we
continually encounter his thoughts in every one of his works ;
and he has, besides, set them forth very fully in a separate
treatise on the prevailing doctrines of crime and punishment.^
Having made these preliminary observations on the history
and present position of opinion with reference to the distinc-
tion, the admission or rejection of which is now recognized
a.s the touchstone by which the character of systems of juris-
prudence and their relation to ethics must be tried, I must
now endeavour to enter somewhat more closely into the
grounds on which I hold that on this, as on so many other
points,^ we must return to wliat I believe always to have
be<'n the central creed of humanity, and accept, with tlie added
light which Christianity affords, tlie teaching of tlie great
thinkei-s of the heathen worhl. In doing so T sliall take tlic
subject up in the light in which tlie Greeks loved to discuss

' iJif. hrrr/wfynfl/m OruiuUchrcn von VcrhrccJicn und Stra/c in ilirrn inncrcn
ly'iflnrnpriirJu^n, 1867.
' AnU, r:iy. iv. poMim.

314 OF JUSTICE AND CHARITY.

it, and endeavour to discover the true relations which subsist
between the virtues, and more particularly between justice and
charity — the highest types of the two orders into which the
virtues have been distributed.

CHAPTER XII.

OF JUSTICE AND CHARITY.

The question which the preceding chapter seems to force
upon us is, whether justice covers the whole ethical field from
one point of view, and charity from the other — whether they
be the same principle realized in different circumstances — or,
whether they divide that field between them, and are essen-
tially different principles. My contention will be that —

(a) The ijrinciplcs of justice a7id charity ^ are identical ; thei?'
separate realization is iiiipossihle ; and their common realization
necessarily C2dminates in the same action.

Though it may not hitherto have been found possible to dis-
tinguish obligations either into perfect and imperfect, or into

^ Thomas Aquinas distinguishes between caritas and lihcralitas — the former
being a Christian grace unattainable by the heathen, the latter a moral virtue.
Charity in the sense in which I here use it, which is the popular and common
ethical sense, thus corresponds to liberalitas, not to caritas, which is the dydrrri
of St Paul. In this sense the relation to justice which the great schoolman as-
signs to charity entirely corresponds with that for which I contend, though I do
not admit that absolute justice does not include caritas even in its theological
sense. For charity, the word equity might perhaps be substituted, though to
the English legal mind it would be confusing. — Sumvia, Prim. Sec, quffis. Ixvi.
art. 3 and 4. See also Prim. Sec. , quas. Ixxxviii. art. 2, in which he lays it
down that a ^jcccrtiw?*?, veniale may be converted into a pcccalum morlalc by a
change of circumstances, and vice vcrsd.

OF JUSTICE AND CHARITY. 315

negative and positive, in such a manner as thereby to discover
the basis for a definition of the sphere of jurisprudence, is
that any sufficient reason for concluding that obligations do
not admit of a distinction in principle of any kind, and that
all delimitation of our science in that direction must be aban-
doned as a mistake ? That such a protest against the doctrine
which I have espoused should still arise in the minds of some
of my readers, is all the more conceivable as it has the sup-
port of a writer whose views on the origin of our rights, and
on the idea of property, coincide with those which I previ-
ously submitted, more closely than the views of any other
writer with whom I am acquainted ; T mean M. Cousin.

In his criticism of Smith's doctrine that labour is the origin
of property, M. Cousin raises the question whether the whole
field of human duty falls within the domain of the principle
of justice, and consequently within the limits of natural law.
To this question, which under another aspect is precisely that
witli the discussion of which we are at present occupied, lie
returns a negative answer. " The principle, which is tlic
soul of Smith's book," M. Cousin says, " is the grand principle
of tlie liberty of hdjour. Before this principle Smitli lias
beaten down all obstacles, interior and exterior, which oppose
themselves to liberty, and consequently to the power of pro-
duction, to the development of riches, private and pul)lic, in
each country, and in tlie world at large, liy this means lie
ha.H greatly reduced the function of governments; and, to t(.H
the truth, he luus too much reduced it. It is from Smith's
book that ha.s proceeded the famous maxim, /jfissc: ffdre, rt
ffiKKHcz poJiscr : Hupeniitend cvcrytliing, ami interfere witii

31 G OF JUSTICE AND CHARITY.

nothing, or with scarcely anything. Here Smith's errors
commence, and they are the exaggeration of a trnth, as he
liimself said of the errors of the moral theories which had
preceded his. Yes, justice consists in the respect for and the
maintenance of liberty. It is the grand law of society, and
of the State which represents society ; but is justice the only
moral law ? "We have proved that alongside of that law
there is another which does not simply oblige us to respect
the rights of others, but which makes it a duty for us to
solace their miseries of every kind, to come to the aid of
our fellow-creatures, even to the detriment of our own for-
tune and wellbeing. Examine the principle of the smallest
alms : you cannot reduce it to justice alone, for that trifling
sum of money which you believe it to be a duty to give to
an unfortunate, he has not the smallest right to exact from
you. This duty does not correspond to a right; it has its
principle in a disposition of our nature, and in a particular law
which we have elsewhere analyzed with care,^ and denomin-
ated charity. Strange as it may seem, the same man who
had reduced all morality to sympathy scarcely recognized in
politics any other right than that of justice. This fact may
aid us in conjecturing what would have been the character of
Smith's grand political treatise. Judging by the maxims
scattered over the inquiry into the nature and causes of the
wealth of nations, we may be permitted to conjecture that his
natural jurisprudence reduced the function of laws and of
government to the protection of liberty.^ We ourselves, by

^ Philosophic Sensualiste, Premier Appendice, p, 313, infra, p. 322.

2 It is not improbable that Smitli may have changed his mind on this subject.

OF JUSTICE AND CHARITY. 317

our own reflections and the development of our principles,
have arrived at the conclusion that justice, the protection of
liberty, is the fundamental principle and the special mission
of the State. But we believe that we have established, at
the same time, that it is absolutely impossible not to ascribe
to that great individual whom we call a society, some portion
at least of that duty of charity which speaks so energetically
to every human soul. According to us the State ought, above
all, to vindicate justice ; but it ought also to have a heart and
bowels. It has not fulfilled all its task when it has caused
rights to be respected. Something else remains for it to do —
something grand and noble : it remains for it to exercise a
mission of love and charity at once sublime and perilous ; for
we must not forget that everything has its danger : justice,
whilst respecting the liberty of a man, may, in all good con-
science, leave him to die of hunger ; charity, in saving him
morally and physically, but above all morally, may arrogate
to herself the right to do him violence. Charity has covered
the world with admirable institutions ; but bewildered and
corrupted, it is she also who has raised and authorized and
consecrated many a tyranny. We must restrain charity by
justice, but we must not abolish it, or interdict its exercise to
society. Smith did not compreliend this, and from fear of
one excess he has fallen into another." ^

Now I quite admit that Smith lias committed the error of
which Cousin has accused him, and that lie has so limited the

M hia lectures on juriHprudcnce and natural thcolo^^y wero amongst tho pajxTs
which ho bunied a few days before his death. — Life urefixj-'d to M'Culloch's
edition of the IVoilth of NationH, \\. xviii,
* EcvU EcosnaUe, p. 2J>0 cl sf'i.

318 OF JUSTICE AND CHARITY.

functions of society and of the State, which is the organized
expression of society, as to rob it of many of its most sacred
rights, and to deprive it of many of its most important offices.
In the very mildest view of the matter, Smith has absolved
mankind from a large portion of the duties which God has
laid upon man. But, in so doing, he has simply given in his
adhesion to tlie school of jurisprudence prevalent in his day,
to which Cousin has also unwittingly committed himself. In
excluding charity from the protection of the State, Smith has
only recognized a legitimate consequence of its separation
from justice, for which M. Cousin himself contends so keenly.
The consequence is one which Smith accepts, in common
with all the other adherents of the absolute distinction be-
tween perfect and imperfect obligations, M. Cousin being, so
far as I know, the only writer of note who, whilst throwing
charity beyond the sphere of justice, insists that it shall be
recognized as one of the objects of jurisprudence, and admitted
within the pale of positive law. The theoretical source of
Smith's error, moreover, if I am not greatly deceived, is
altogether different from that which Cousin has indicated.
Smith's mistake consists not in failing to call into action
another principle than justice, but in limiting the action of
justice itself ; and this inadequate view of justice is one
which we shall see presently is common to Smith and his
critic. He has seen only the negative side of justice, and
consequently, like Kant, he has assigned to legislation, which
is built upon it, only the negative duties of restraint. But is
there any reason why justice should not say "do," as well as "do
not ; " " act in behalf of liberty," as well as " do not act against

OF JUSTICE AND CHARITY. 319

it ; " " anticipate the restraints which will be imposed upon it
by poverty, ignorance, brutality, and tyranny, and prevent
the occurrence of crime, as well as its recurrence " ? If liberty
be the object of justice, whatever is antagonistic to liberty it
belongs to justice to remove ; and Smith needed not to travel
beyond his own principle in order to find grounds upon which
to recognize all the duties which Cousin properly assigns to
the State. But if Smith was thus led, by an inadequate con-
ception of the nature of justice, to exclude from its province
a large domain which legitimately belongs to it, was it not
an equally inadequate conception of it which led Cousin to
assign this domain to another principle, which, at bottom, is
neither more nor less than the principle of justice itself, act-
ing in different relations — i.e., under different external circum-
stances ? If it were true that the duties of charity were
duties which, being measured by no corresponding rights, fell
into an independent territory of their own, where the voice of
justice was unheard, they would indeed, as M. Cousin says,
be " perilous duties ; " and I believe it is the popular adhesion
to the doctrine which he advocates with so much zeal which
has gathered around them more than half their perils. But
liave we in reality any ground for reverting to a belief in
this neutral territory ^ between justice and injustice, which
Thomas Aquinas rejected so emphatically in liis day,'^ even
ill deference to such names as Kant and Cousin?

' " If we contemplate actions in tlicir tnie and real connection, wc slmll liinl
that nothing in indifferent, liecaiwc every action is either one corresponding', «>r
one not correiiiwndin^ t^) the order of reason {ordo ralirmui), and nothing' ciiii l»f
conceived u holdin;{ a nii<ldio place," — Nennder, vol. viii. p. *2liiK

* Sumjna Thcologitz^ Prima 8ccund<i\ i\\\ivn. xviii. ml. 1».

320 OF JUSTICE AND CHARITY,

Justice and injustice are not, like pleasure and pain, con-
traries merely, but contradictories ; ^ for not only does the
affirmation of the one imply the negation of the other, but
the negation of the one implies the affirmation of the other.
Between pleasure and pain there is a border-land of indif-
ference, though even this is debateable ground ; but justice
and injustice, right and wrong, both reach the watershed on
the mountain-top ; and that charity which does not flow down
the valley of life like a fertilizing stream, will speedily find
its way to join those headlong torrents which roar down the
valley of the shadow of death. Omne ffiinus honum hdbet
rationem mali ^ seems true, at least to the extent to which
it hands over to the dominion of darkness whatever does not
belong to the kingdom of light ; though it is not true as
excluding degrees of virtue and vice,^ and a consequent pro-
gress in perfection or degradation. Viewed in this aspect, the
question of the limits of justice belongs to the subject of
theology rather than of jurisprudence ; and it is to the theo-
logians and schoolmen of the middle ages, to their modern in-
terpreters in Germany, and to the " Cambridge Platonists," as

1 Hamilton's Led., vol. ii. p. 436.

2 "Malum enim est privatio boni." — St Augustin quoted by T. Aquinas,
Prima Sficundoe, quaes, xviii. sect. viii. Miiller on Sin, vol. i. p. 61.

*'* Tlie inability of the Stoics to maintain the distinction between obligations
which they had partially recognized was probably the cause of most of their " con-
tradictions." For example, they violated it by maintaining that there is no mean
between virtue and vice, and that virtue admits neither of increase nor diminution,
the latter maxim being again contradicted by the whole object of their system,
which was increase in virtue, the natural implantation of which in all men was
the very root of their doctrine. — Zeller's Stoics, p. 249. As regards the identity
of justice and charity in particular, they seem to have been consistently incon-
sistent, Seneca being specially explicit. — Zeller, 298.

OF JUSTICE AND CHARITY. 321

they are called in this country,^ that I must consequently
refer for its exhaustive discussion. It is necessary that we
should bear in mind, however, as I have said already, that
the whole doctrine of the Eoman Catholic Church on the
subject of works of supererogation ^ {opera sujpererogationis) —
works, that is to say, which profess to transcend the law — rests
on the same limited and imperfect conception of justice which
in jurisprudence has led to the distinction between perfect
and imperfect obligations. They were regarded not as duties,
but as good works beyond the sphere of duty, and independent
of it ; just as work? of charity, in which in no small measure
they consisted, are regarded by M. Cousin as beyond the sphere
and independent of the principle of justice. The fallacy in-
volved in the train of reasoning by which these works were
inculcated, and of the consequent distinction in principle be-
tween consilia and prcecepta, of which we find traces even in
Thomas Aquinas,'^ is excellently exposed by Mliller on Sin.^
But our present object will be better attained by examining
for ourselves the far clearer, if less subtle, exposition which

* Rational Theology and Christian Philosophy in England in the Seventeenth
Century, by Principal Tulloch. Mr Maurice has some excellent remarks on the
sabject in his Lectures on Christian Ethics, Lcct. xiii. p. 201.

* A modem English writer maintains that to do away with the belief in the
(>OHi(ibility of works which transcend the sphere of duty was one of tlie special

I functions of Christianity. " f^xtraordinary services to humanity become ordi-
nary and imiKjrative in the Christian commonwealth." — Eccc Iloino, p. 299.

* rrim. Sec., qua*s, cviii. art. 4,

* Vol. i, p. &0. This important but somewhat abstruse; woik is now very fairly
transiaU-d into English. Considering the; poverty of our native literature, it is
Rur]»riHing that the industry of translators does not oftfan^r take the direction of
jiiriipnulcncc. A well-sfdected series of works, or portions f)f works, beginning

Iwiih the fudiolastic jurist, an<l en<ling, say, with Leibnitz, would make a juecious
tddition to mont law-librarieH, and might be prufiUibh; i.'Vcn to the booksellurs.

322 OF JUSTICE AND CHARITY.

M. Cousin has presented of what essentially is the very same
arcjument against which Mliller contends. Let us examine
his statement, then, that there are duties which have no
reciprocal rights in the light of the illustrations which he
has adduced ; and for this purpose let us turn to that portion
of his writings to which he refers in the passage I have
just quoted. It is the appendix to his work on the Sen- J
sualist Philosophy ; ^ and in it will be found an elaborate
discussion of the mutual relations and limits of justice and
charity. Almost at the very outset of this discussion the
following pointed sentence seems to concede the whole matter
in dispute : " Duty and right are brothers ; their common
mother is liberty. They are born the same day, they grow
up, they develop, and they perish together." We cannot be
so unjust to M. Cousin as to set down this pithy dictum as
a mere rhetorical embellishment ; and if we are to attach to
it a serious meaning, we can regard it as nothing short of an
unqualified recognition of the fact that rights and duties are
reciprocal and co-extensive. Yet this same dictum, in terms
which, if not identical, are equally unequivocal, might be
quoted from the writings of moralists and jurists without
number, who, like M. Cousin, repudiate the results to which
it leads,^ and who, with him, would indignantly reject the
notion of confining the sphere of duties within the limits

1 P. 313 et srq.

2 A curious illustration of the consequences of separating the justum from the
decorum is given by Barbeyrac. "When commenting on Grotius (vol. i. p. Q^),
he says that according to his author, though it may be honest and commendable
to content oneself with one wife, one cannot be said to do wrong in taking two.
Such was no doubt the logical consequence of what Grotius had said, but it was
heartless in Barbeyrac to point it out.

OF JUSTICE AND CHAEITY. 323

\N'liicli they themselves had assigned to that of rights. If
the truth be, as we contend, that the two spheres are abso-
lutely co-extensive, and that as regards human relations the
reciprocity of rights and duties has neither limits nor excep-
tions (for in relation to the divinity, as I have already ex-
plained, we are debtors only, and not creditors), the circum-
stance of this fact being propounded thus unawares, and as
it were involuntarily, furnishes a striking illustration of the
greater trustworthiness which often belongs to the instinctive
perceptions of the reason than to the results of our conscious
mental processes. Let us test it, then, by the instance whicli
M. Cousin regards as most clearly fatal. The poor, he tells
us, have no rights — none at all events which constitute claims
on our justice — and consequently our duties to them, if they
exist at all, must be founded on another principle. If the fact
be as stated, the inference is indisputable ; and our concern
is consequently with the question of fact. With a view to
its solution let us recall for a moment what we have formerly
said of the origin of our rights. We found them to originate
in the power of life, or, in other words, in the distribution
which God had made of His gifts to His creatures, it being
true, without exception, that every gift which we receive from
Him comes to us accompanied by the consciousness of a right
to its retention, its exercise, and the results of its exercise.
In this view we have the fullest concurrence of M. Cousin
liimself. " Property is sacred," he says, " because it repre-
sents the right of personality itself. The first act of free
and personal thought is an act of a])])ropriatinii. Our first
proj)erty is ourselves, is <>\iv (yo, is our liberty, is our j tower

324 OF JUSTICE AND CHARITY.

of tliouglit ; all other properties are derived from this, and
reflect it." ^

Now, if this be so, the question whether a pauper has rights
resolves itself into the question whether he has possessions, or
rather, whether he has that original possession of personality,
of human life, in which, as M. Cousin says, all other posses-
sions originate. If the answer to this question be negative,
if we are dealing not with a persona but a res, we postulate
the condition, not of pauperism, but of slavery, which even
the Eoman jurists pronounced to be an institution contra
naturani, and which, in our view of the matter, cannot claim
to exist eitlier ethically or legally. The theory of slavery,
moreover, annihilates duties as well as rights, for we can
have no duties, in the human sense, towards things. It thus
carries us beyond the pale of charity, as M. Cousin defines it,
as well as that of justice. On the other hand, the moment
we depart from tliis theory, in its absolute rigour, we just in
so far assume tlie existence of a persona more or less perfect,
and answer the question in the affirmative. But M. Cousin
is not dealing with slavery, and the existence of the persona is
inseparable from freedom. The answer then, in the pauper's
case, must be affirmative. But if the answer be affirmative
— if the existence of the j)f'f^sona and its consequences be ad-
mitted— then it is clear that the rights w^hich accompany this
primary possession and its adjuncts exist in the humblest
specimen of humanity, just as fully as do tlie rights that
accompany the more multifarious possessions which have
sprung from the self-same source in others. Now, tliough M.

^ Philoscyphie Sensualiste, p. 319.

:>■

.*«♦
■^

OF JUSTICE AXD CHARITY. 325

Cousin maintains that there may be duties to which no rights
correspond, he does not hold the converse of the proposition,
and maintain that there are rights without corresponding
duties — though he maintains that I may have duties towards
you which confer on you no rights, he does not maintain that
you may have rights against me which impose on me no duties.
If the pauper has rights then, on M. Cousin's own showing,
I have duties towards him corresponding to his rights, what-
ever tliey may be ; and as it is only duties which do not
spring from rights that fall beyond the sphere of justice, my
duties to the pauper not being of that description, necessarily
fall within the sphere of justice.

It is no answer to this argument to allege that, by parallel
reasoning, it would be easy so to extend the domain of charity
as to make it include that of justice ; because what I am
contending for is that the principles which lie at the root of
justice and charity are identical, though seen from different
points of view. The principle which, in tlie case of justice,
we see in the light of a right to claim, in that of charity pre-
sents itself in the light of a duty to give.

But however conclusive this argument may seem, docs it
not, by limiting the legitimate action of tlie principle of jus-
tice, lead at lea.st to partial injustice ? In imposing on mv
the duty of preserving liis life, does not tlie pauper, to tlnit
extent, make an inroad on my possessions, and rob me, so to
R[)eak, of gifu which were a consequence of tlie original gift
•f life to me? My answer must be to remind you tliat sub-
jective rights are self-limited,^ tlieir exercise being dependent

' Ante, cap. vii., juissim.

32 G OF JUSTICE AND CHARITY.

on the recognition of objective rights.^ So far from adding to
my gifts, my rights, or my liberties, by refusing to recognize
those of my neighbour, I should diminish them, or, in other
words, render their exercise impossible, to that extent. There i
is no duty, however painful it may be, and however great may
be the amount of immediate self-sacrifice involved in its per-
formance, which, when fully understood, is not also a privi-
lege, the exercise of which may be claimed as a right. Nay,
on tlie principle of that profound maxim that " it is more
blessed to give than to receive," it would seem that the bal-
ance of gain is necessarily in favour of him who performs the
sacrifice, not of him for whom it is performed. If, with a
view to this gain, he seeks for an occasion of self-sacrifice
which the rights of his neighbour do not impose on him, he
performs a work of supererogation, to which no reward is
attached in the order of the universe. He has been guilty of
an act of mistaken selfishness, which, like all selfishness, is a
loss precisely to the extent to which it oversteps the line of
duty. Our duties to others and to ourselves, our own rights
and interests, thus fit in exactly. There is no vacant space
over, which we can crop with charity and reap for our own
private ends. We can no more be selfishly-unselfish than we
can be unselfishly-selfish. To the fullest extent, therefore, to
which charity is a duty founded on the rights of others, it is
thus a duty founded on our own rights. As mankind is con-
stituted, the interests of the subject and the object — my rights
and thy rights — are inseparable ; and it is only when I carry
the exercise of charity beyond the sphere of justice, when I

1 Ante, \). 236.

OF JUSTICE AKD CHARITY. 327

pass the point at which liberty degenerates into licence, that
I begin to squander my means, to abridge my powers, and, in
the mistaken belief that I am adding to the means and the
powers of my neighbour, commit an act of injustice from which
we mutually and equally suffer. Just as we shall see presently
that the highest liberty implies the most perfect order, so here
the widest charity is identical with the strictest justice. The
two culminate in the same point. Beyond this point each
sinks into its own opposite, by the weight of the self-contra-
diction which all further attempt at its realization involves.
Up to this point all is mutual gain, and all sacrifice on either
side is merely apparent ; beyond this point all is common
loss.-^

But it will be objected that, according to this view, self-
denial and self-interest practically become synonymous. Such
unquestionably is the case ; the only difference between the
self-interest of which we here speak and that which commonly
exhibits itself in the form of selfishness, being that the former
is an enlightened self-interest, such as perfect intelligence
would prescribe ; whereas the other, always in reality, though
not always demonstrably, is unenlightened, and such as only
folly or knavery would commend.^

* My late gifted colleague, Dr Robert Lee, tilking of this subject to mc, suitl,
v»rry tnily, that, "when argued out, natural law assumes the precision of matlic-
maticM," Would that the same could be said of the concrete factor of positive
law ! But it i» somfithing surely to be protedcd against error, even on one side.

' Thin concei)tion of the solidariU of interests, and the poKwibility of reducing
vice to ignorance, a« well as virtue to knowledge, on which so mmk h of tlic! argu-
ment in favour of compulHory education rcstw in modern states, though not acted
upon to the Hame extent, was a« familiar to the bettor minds of heathendom ns of
(Jhriittcndom. — See Plato, I'roLnfj., c. 37, H<-r, 38, it juisn.

328 OF JUSTICE AND CHAllITY.

On the very same principle on wliicli " honesty is the best
policy," chanty, in so far as it is an act of justice, nay, to the
full extent to which it is not an act of injustice to others, is
self-interest. Nor need we be scared from these conclusions
by the consideration that, as mankind is constituted, policy
would, in general, be a very unsafe ground on which to preach
charity, or even honesty. It is the shortness of our vision
which makes the ground unsafe. If we saw through the
whole vista of policy as God sees through it, the ground
would be sufficient ; and we should not only, with Kepler,
" think God's thoughts," but do God's deeds after Him.

But though, in preventing the poor of our own neighbour-
hood, or our children and near relatives, from diminishing what
may be regarded as the common stock of human life and
liberty by sacrificing the gifts which God has bestowed on
them, we may be fulfilling the requirements of that principle
of justice of which life and liberty are tlie objects, what shall
we say when we come to other virtuous acts, to deeds of
general philanthropy, or to those special acts of heroic self-
devotion by whicli the rights, the interests, and the liberties
of the individual, nay, the individual himself, are freely sacri-
ficed for the interests of others ? M. Cousin, following Cicero,^
adduces the instance of Publius Decius and his descendants.
The positive laws of most modern states have made charity
compulsory, and the laws of all civilized states have enforced
the mutual obligations of parents and children ; but no code
of laws ever decreed, or could decree, that, for the sake of his
country, a man should court deatli with greater eagerness than

^ DeFin., lib. ii. c. 19.

OF JLTSTICE AND CHAKITY. 329

ever Epicurean courted pleasure, still less that three members
of the same family in succession should do so. Was the self-
devotion of the Decii then, or the martyr-death of Eegulus,
we shall say, an act of justice ? We answer the question by
another. Was it an act of injustice ? or must we again take
refuge in a neutral territory between the just and the unjust ?
Or some may perhaps be disposed to say that, though an act
of the highest virtue to others, it was an act of injustice to
himself. Decius, I reply, was God's creature as much as any
other Roman, and God cannot have so ordered the world as
that an act of virtue to one should be an act of injustice to
another. If it was an act of virtue at all, it certainly was an
act of justice also — the fulfilment of a duty, if not .of the kind
which men can impose upon men, at all events of the kind
which God imposes on heroes and on saints. And yet this
error is one which is constantly committed, as, for example, in
defending capital punishment, intervention, &c., on the ground
of expediency, whilst admitting their injustice. If they can-
not be brought within the range of justice they cannot be
justified — they are unjust. To suppose the same action to
Ixj at once virtuous and unjust would be to justify injustice,
to confound virtue and vice.

The mention of Cicero will recall to many the discussion
in the Dc Finihus, in wliich llegulus is maintained to have
been actually happier in tlie midst of tortures than Thorius,
stretclied on a Ijod of ro.ses sipping the choicest wines. In
identifying virtue with utility and self-interest, even in tliis
present world, I of course accept this urguniunt to the. iuHest
extent, though T do not deny the ten<lency which it has to

O O

30 OF JUSTICE AND CHARITY.

degenerate into a mere logomachy, turning on two distinct
meanings of the word " happiness." But what I wish to point
out as important for our present purpose, is, that in consulting
his real as opposed to his apparent interest in circumstances
so painful, Eegulus is represented by Cicero, not as having
exceeded, but as having nobly fulfilled his duty. The great
philosophic jurist knew nothing of works of supererogation,
and the great juristic philosopher knew as little. " It is a
mistake," says Kant, not very consistently with his own
system, " to suppose that anything a good man may do can
surpass his duty." ^

Not satisfied with the few classical instances of the union
of self-devotion and duty, of w^hich I had reminded him, my
learned friend and colleague, M. Brocher, has invited me to
enter with him still further on the field of casuistry, and I
cannot decline the challenge of so distinguished and so con-
siderate a critic.^

Heroes and saints are exceptionally endowed and sustained,
and their responsibilities are exceptional in proportion to their
gifts. They are, as it were, official representatives of human-
ity ; and to say that it was the duty of Piegulus to die for his
country, is only like saying that in a shipwreck, if the last
man cannot be saved, it is the captain's duty to see that he is
that man. Where the question is between death and dishon-
our, we do not require to stretch self-interest very far in order
to reconcile it with self-sacrifice. But M. Brocher rightly

' Theory of Religion^ Semple's trans. , p. 58.

'^ In addition to being professor of law in the University, M. Brocher is presi-
dent of the Cour de Cassation at Geneva, and it would be difficult to name any
living jurist who combines science with experience in so eminent a degree.

OF JUSTICE AXD CHAKITY. 331

insists that if the identification of justice and charity, of duty
and devotion, of might and right be complete, we ought to
find in it a rule of conduct of universal applicability ; and, in
order to demonstrate its inadequacy for this purpose, he falls
back on the old device of the plank : " If two individuals are
thrown by shipwreck on a plank which can save only one, and
they mutually endeavour to plunge each other into the abyss,
they act on a brutal instinct of self-preservation against which
it is vain to inveigh. Impunity is conceivable, but we cannot
go the length of commendation. If one of these individuals
sacrificed himself to the other, it is he most certainly who
should receive our sympathies." Now, to say that, in cir-
cumstances so inimical to the exercise of reason, an ordinary
human being might be entitled to escape human punishment
for yielding to an irrational impulse, no more touches the ques-
tion of the ultimate identification of justice and charity, or
of might and right, than to say that a madman is entitled to
impunity for murdering his keeper. The ground on which
impunity would be extended to either case would not be the
rigliteousness of the actor, but the impossibility of ascertaining
the presence or measuring the extent of liis responsibility.
And if in employing the word commendation (louange), M.
Brocher supposes tliat my principle carries me the length of
commending the stronger man for pusliing tlie weaker man
into the sea, he certainly, as he himself indulgently suggests,
has gravely mistaken my meaning. This would be to con-
found the spasmodic exercise of ephemeral force with force
exercised in accordance with reason ; or, in otlicr words, the
fundamental and general with the superficial and exceptional

332 OF JUSTICE AND CHARITY.

impulses of our nature, to the former of which I have been
careful to limit the epithets of might and power. The
stronger man, in tlie circumstances M. Brocher has imagined,
would be in one or other of these three positions : (a) He
would be self-possessed, as is popularly but not inaccurately
said, to the extent of having- his exceptional and ephemeral
impulses under the control of his general and permanent will
— his physical force would be subject to his rational power.
In such circumstances it is conceivable that his knowledge
of the relative value of his own life and that of his fellow-
sufferer, from an absolute point of view, might be such as to
enable him to decide the question of life and death between
them. It is conceivable that the other man might be a mur-
derer under sentence of death, or that he might just have
committed a murder, or have been mortally wounded and be
already at the very point of death. But it is far more likely
that the case would be one in which, in justice and in charity
alike to his neighbour and to himself, he ought to commit his
own soul to God rather than run the risk of a false decision ;
and that his real power, in place of enabling him to push the
other from the plank, w^ould give him strength of will to plunge
himself into the sea. (6) He would be wholly bereft of rational
power, in which case the instinct on which he acted would
have no more moral significance than if he had accidentally
killed his neighbour or himself. It would be one of those
physical occurrences which are outside of the sphere of ethics
and jurisprudence, just as much as the storm that caused the
shipwreck, (c) He might be partially responsible and partially
irresponsible. In this case, w^hether he drowned his comrade

OF JUSTICE AND CHAEITY. 333

or himself, his act would have that mixed character which
belongs to most human actions. But it would fail in justice
and in duty, on the one side and the other, precisely to the
same extent to which it failed in charity and in devotion ; and
if he himself were the survivor, his own after-life would tell
him how inseparable were the principles.^

^ No mistake could be greater than to suppose that the phenomenon of the in-
stinct of self-preservation giving place to loftier motives is one rarely exhibited
by ordinary persons. It is rare, on the contrary, to find a soldier or a sailor who
does not exhibit it, or who would not be ashamed to regard it as transcending
his duty. If it be responsibility that shows the man, as Aristotle tells us, on
the authority of Bias (cS SokcI ex^"' ''"^ ''"^^ ^iayros, on apxa rhu &udpa Sei^ei, Ethic.
Nic, V. 1. 15.), it is danger that tests his fundamental characteristics; and I
cannot bring home to my readers more impressively the fact that these character-
istics are as I have represented them in the text, than by quoting a few touching
lines commemorative of an actual occurrence, which I adduced for a similar pur-
pose many years ago. — Inaugural Lecture, 1863, p. 30. A young private in one
of our infantry regiments was taken prisoner by the Chinese, and commanded to
perform the KoiUou, on pain of instant death. He unhesitatingly preferred the
latter alternative. The simple story was told by Sir Francis Doyle, in verses
which I hope will preserve a permanent place in our literature : —

" Last nUjht, among his fellow-roughs,

He jesteJ, quaffed, and swore,
A drunken private of the Buffs,

Who never looked before.
To-d;iy, beneath the fociiian's frown.

He stands in Klein's place,
Anibaiibadur from UriUiin's crown,

▲nd type of uU her race.

Poor, roeklcss, ni<hj, low-born, untmght,

IJ«,'wil.lered and alone ;
A heart with Fn/lish instinet fraught

lie yet enn call his own.
Ay, tear his Ixxly limb f.om limb,

Urin;,' cord, or axe, or flame ;
lie only knows that not through him

Hliall KnglanJ come to shami;.

Far Kentish hop-llelds )ound him seetn'd

Like drrams to come and go ;
Bright leagues of clierry-blossom gb-aiuM

One Hhcct of living snow.
The 4mrjkc atxive his fatht-r's door,

In grey tMift «;<ldyinxH hung ;
Hunt lie, then, wat<h It rise no more-

booui'd by hiniHcIf HO yoinig?

334 OF JUSTICE AND CHARITY.

(b) The doctrine of the identity of the principles of justice
and charity loas taught hy Christ's mediatorial sacrifice, and is
implied in the whole scheme of redemption,

Tlie reader will only be giving utterance to a sentiment
^Yhicll lias received mucli prominence from the teaching, not
of Christianity, I think, but of Christians, if he should meet
the doctrine which I have been enunciating by the question,
whether Divine justice be not transcended by Divine mercy ?
The act of our creation as fallible beings may fall beyond the
sphere of our ethical contemplation, and revelation may have
done nothing to bring it within our ken. But have we not
been told expressly that the act of our redemption from the
just consequences of our sins was a work of supererogation ?
The very highest view that has ever been taken by Christians
of the merit of good works, the most extreme construction that
ever has been put on the Epistle of St James, falls far short
of bringing the goodness of God within the limits of justice.

Yes, honour calls !— with strength like steel

He put the vision by ;
Let dusky Indians whine and kneel ;

An English lad must die.
And thus, with eyes that would not shrink,

With knee to man unbent,
Unfaltering on its dreadful brink.

To his red grave he went. *■

Vain, mightiest fleets of iron fram'd.

Vain, those all-shattering guns, '

Unless proud England keep untam'd

The strong heart of her sons.
So let his deed through Europe ring :

A man of mean estate,
Who died as firm as Sparta's king.

Because his soul was gi'cat."

Once for all, then, it is might of the kind that yiis poor young fellow exhibited,
and not the might that enables one man to push another off a plank, that is iden-
tical with right. It is this kind of might which made the colonial empire of
England, which, I contend, governs the world, and which I claim as the basis of
the de facto system of jurisprudence.

OF JUSTICE AND CHARITY. 335

According to the theology of all the Churches of the Eefor-
mation, it is to God's free grace alone, and not to our right-
eousnesses— '' that are as filthy rags " ^ — that we are indebted
for His bounty. Here, then, is surely an instance in point,
for the charity of God, in transcending the limits of justice,
cannot possibly pass over into the opposite region of injustice.
Since God cannot possibly be unjust, there must be some other
principle, reconcilable but not identical with justice, on which
He acts : some neutral territory between justice and injustice
on which His mercy displays itself. But what, in this view,
do we make of the merits of Christ which are imputed to us ?
of His vicarious suffering for sin, and of our faith in this
suffering which is " counted to its for righteousness " ? ^ An
argument derived from God's forgiveness of sin, so long as it
was viewed by the light of natural religion alone, might have
been maintained in support of M. Cousin's doctrine; and it
was in this view, that in treating of creation, and of the con-
sequent relation of Creator to creature in general, we admitted
that tlie correspondence between rights and duties which
governs human relations is there inconceivable. By the
light of natural reason we can no more understand why a just
God should forgive sin than why a perfect God should permit
it ; and if we maintain even the relative character of sin, we
are compelled either to despair of forgiveness altogether, or
else to take refuge in a merciful God who is willing to sacri-
fice ju.stice. Ihit when taken in connection witli the scheme
if redemption, tlie iJivine^clemency, so far from supporting the
notion of a ])0S3ible separation between charity and justice,

' Ina. Ixiv. 0. ^ (Jul. iii. 0.

33 G OF JUSTICE AND CHARITY.

seems absolutely fatal to it ; for the whole end and object of
that scheme was to bring the mercy and long-suffering of God
within the sphere of His justice — to reconcile it with justice,
or to prevent it, unmerited as it w^as by mere man, from
being unjust.-^ If even God himself cannot, consistently with
justice, extend to His creatures a mercy beyond their merits,
without falling back on an expedient which is at variance
with the ordinary arrangements of His providence, much more
must such a proceeding be impossible to creatures who are
absolutely bound by these arrangements. In tliis case, most
emphatically, the rule is proved by the exception ; since even
tlie exception is removed by the miraculous interposition of
Him who " of God is made unto us righteousness." ^ If justi-
fication by free grace on God's part be a mystery, on man's
part it is an impossibility ; and human pardon, mercy, charity,
and, to sum up all, virtue in every form, must be contented
to keep within the pale of the most rigid justice.

Nor is the case altered if, in place of the ordinary view^ of
redemption as a mysterious buying-off from merited punish-
ment, we adopt the deeper, and probably far truer view of
it, as progressive deliverance from sin by a growing conscious-
ness of the filial relation in which we stand to God, and con-
sequent acceptance of His will. For, if mercy be dependent
on, and proportioned to, the extent to which man is thus
purified from sin by reunion with the Divine, then is mercy
plainly coincident witli justice, and this equally by whatever
means this reunion may have been effected. The regenerated
creature, the new man in Christ, in so far as the original

^ Matt. V. 17, ]8 ; Luke xvi. 16, 17; Rom. iii. 31. ^ j Cor. i. 30.

OF JUSTICE AND CHAHITY. 337

image in which he was formed is restored to him, has become
entitled to mercv, or, iu other words, the mercy which is ex-
tended tOghim has become justice. The act of grace, like the
origin of sin, " passeth all understanding," and remains unex-
plained. But its reality, which to a certain extent may be
tested even by objective evidence, being admitted, it lays a
logical foundation for what is technically called " absolution."
The new-TddiVi can claim absolution on the de facto principle.
God has given him a right to it, in place of giving it to him
witliout right, or contrary to right.

Xor was the doctrine of the unity of justice and mercy
peculiar to the Xew Testament. " Those who conceive of
justice as opposed to mercy," says Mr Erskine,-^ " must regard
the Psalmist's utterance, 'Also unto Thee, 0 Lord, belongeth
mercy, for Thou renderest to every man according to his
works,' 2 as a complete subversion of the meaning of words ;
and I have sometimes thought they must be tempted to con-
jecture that the copyist has, by mistake, substituted the word
mercy for jicstice. They have been accustomed to suppose
tliat nothing worse could befall them than that God should
render unto them according to their works, and their hope in
His mercy has just been tlie hope that He would not so deal
with tlieiii ; tlie idea, tlierefore, that mercy itself will render
unto them according to their works, seems to be the ainiiliila-
tion of all liope."

" I believe," he continues, " tliat all this is founded on mis-
appreliension, and that iu God mercy and justice are one and
the same thing, — that His justice never demands ])unishnicnt

* Spiritual (hrdrr, ji. 71. ''' rMiiliii Ixii. VI.

338 OF JUSTICE AND CHARITY.

for its own sake, and can be satisfied with nothing but right-
eousness, and that His mercy seeks the highest good of man,
which certainly is righteousness, and will therefore use any
means, however painful, to produce it in him. If men could
understand that God's purpose, in rendering to them according
to their works, is to instruct them in the true nature and
character of their works, that so they may apprehend the
eternal connection between sin and misery, between right-
eousness and blessedness, and thus be led to flee from sin
and take hold of righteousness, they would also understand
that it is in mercy that He deals thus with them-, and that,
in fact, the purposes of mercy can in no other way be ac-
complished."

" I know that I should be a minister of good to many if I
could help them to apprehend that this is the meaning of
God's justice, and therefore that it is to be as much trusted as
His mercy. They have been accustomed to look upon Christ
as their Saviour, because He has delivered them from justice
by suffering the penalty which it denounced against them,
whilst, in truth. He is their Saviour, by revealing to them that
justice is their friend, being only the enemy of their enemy."

It is in the direction of separating justice from mercy, as
here indicated, rather than of separating mercy from justice,
tliat tlie ordinary teaching of Christianity has gone most
widely astray. That God could not be merciful without being
just seems always somehow to have been admitted, however
irrationally it might be explained ; but that He might be just
without being merciful was, and is still, strenuously contended
for. Of all the fruits of this unhappy severance of the Divine

OF JUSTICE AND CHARITY. 339

attributes, the bitterest surely has been the belief in a region
of final reprobation from which mercy is for ever shut out,
and to which those who are impenitent in this world are
condemned for ever, not for their good or for any good — not,
indeed, with any object at all, except simply the satisfaction
of what is called " God's justice." I say "beUef ;" for as we
cannot penetrate into each others' minds, I am bound to accept
as the beliefs of others what they tell me they believe, however
little they may be in accordance with their conduct. But
often and earnestly as I have heard this doctrine preached, I
should be guilty of great dishonesty if I were to say that I
ever believed it. And the longer I live the less consistent
does it seem to me with the teaching of Him who said that
" His yoke was easy and His burden light." I have been ac-
cused of being " one of those who are terribly at ease in Zion."
But I cannot but think that much of the uneasiness which
many suffer, with reference both to this world and the next,
1 arises from their believing too little in God and too much in
I the Devil.

(c) The doctrine of the identity of justice and cliarity was not
first 'proraulfjated hy Christy and is not exceptionally Christian.

Truth is one and eternal. No truth, then, no portion or
aspect of truth, no doctrine that is true, can be either excep-
tional or new. Moreover, to ascribe eitlier the revelation of
truth to mankind, or its recognition by mankind, to a ])artic-
, ular epoch, is to cut of!" Immanity of the previous time from
; the Divine element wliich constitutes tlie human cliarac-
\^ teristic, and to interrupt tlio current of Imman identity.
Mon; definite and consistent i(;velation lioni wilhin and

40 OF JUSTICE AND CHARITY.

from without, clearer recognition and fuller acceptance of
the truth, and not the discovery of novelties, are the pheno-
mena of progress in all those departments of science which
have man for their object. I altogether repudiate the division
of the history of mankind into epochs in which man was and
was not conscious. Man, as such, is a conscious being. An
unconscious man is a contradiction in terms ; and — inasmuch
as the doctrine in question is a revelation of consciousness,
as well as of external observation, and of the word — I no
more agree with those who maintain that Christ first taught
that charity was a duty, than with those who date frate7iiit4
from the French Eevolution, or with Hegel when he says
that " the mandate knoiv thyself was first given to the
Greeks." ^

But if this was so, the doctrine in question must have a
place in the history of opinion. We find, accordingly, that
it was pre-eminently the doctrine of that ethical school which
I regard as representative of what, more or less definitely,
have always been the central beliefs of mankind. Nor is
there any doctrine in their adhesion to which the disciples
of Socrates followed his leading more unswervingly, or with
■ reference to which they were more unanimous. I am aware
that in this, as in so many other directions, an attempt has
been made to separate Aristotle ^ from the other members of the
Socratic school ; and his divergence in so important a matter,
if real, would, in so far as ethics are concerned, no doubt place

^ Phil, of Hist., p. 230. That it was given to those from whom the Greeks
sprang is, at any rate, a historical fact. — Ante, pp. 98, 116, 122.

^ Zeller's Socrates and the Socratic Schools, Eng. trans., p. 120 ; Grant's Aris-
totle, vol. i. p. 163.

OF JUSTICE AND CHARITY. 341

him amongst the imperfect Socratics. The case is one in which
it is difficifit to reconcile the various expressions ascribed to
him, so as to discover what Aristotle's opinion really was. My
own impression is, that his objection to the manner in which
Plato states the prevailing opinion arose merely from his
sense of the danger which there was of the analytical ex-
amination of the virtues, as separate manifestations, being
abandoned in consequence of their fundamental identification ;
and that, on this, as on all other occasions, he stepped
forward as the champion of the analytical method. This
view is strongly supported by the remarkable passage in the
Nicoin. Ethics (v. i. 15), in which he speaks of hLKaioavvq as
TtA-eia fxaXLara aperrj, and as comprehending the others,-^ a pas-
sage which, to the mind of Thomas Aquinas, seemed not
only to settle the opinion of Aristotle, but which greatly
influenced his own view as to the inseparable character of
the virtues.^

As Sir Alexander Grant disputes the genuineness of the
fifth Book, his argument is not wholly invalidated by this
passage, though it is seriously weakened by it in consequence
of his admission that even the Eudemian Ethics are not an
independent work, but merely Eudemus's " exposition of tlie
theory of Aristotle, sliglitly modified by liis own views."
That Eudemus should liave mis understood Aristotle, or that
he wholly dissented from liis views and silently and int(ui-

' ACttj fi«y oZv rj hiKmo(Tvyr\ ov fn'poi i.pfT^%, aAAci 2Atj apfrij iffrXv. uvS' v ivavjla
iBixla, fiipos Ktutiai, AAA* 2a»j Kanla. — Nia/m. Ethics, v, i. 10.

' *' Virlut«» moralf^M pcTf<.cta« ncccssc est a<l invic(!in comu'xas ohbo, ut allrra
•inc tiht'.rh cHua non yahfat"— Prim. Sec, qtin-H. Ixv, int. 1. And an to their
rcUtion to juntic^, v. Sec. Sfx., <|U2i:h. Iviii. art. G hikI \'Z.

342 OF JUSTICE AND CHARITY.

tionally misrepresented them on a subject so often discussed
in the school, are neither of them probable solutions of the
difliculty. But be this as it may, if there be any single
opinion that is traceable to Socrates personally, it would seem
to be that of the unity of the virtues ; and this instance,
tliough by no means the only one, is perhaps one of the most
remarkable, of the extent to which the views ascribed to
liim by tradition were anticipations of the teaching of Christ.
I might refer to many passages in Xenophon, and also in the
Eepublic and the Laws ; but I shall select one which, be-
longing to the earlier Dialogues, is more unquestionably So-
cratic, and which has the farther advantage of taking up
the discussion more directly in the aspect in which I have
presented it.

The main point at issue between Socrates and Protagoras,
in the dialogue which bears the arch-sophist's name, is almost
identical with that which we have just been discussing with
M. Cousin, and the solution which Socrates forced on his
reluctant antagonist is precisely that at which M. Cousin
miglit have arrived by a surer way than any that was open
to Protagoras. The earlier portions of the dialogue contain
perhaps the most vivid picture of the intellectual life of
Athens to be found in the whole range even of these
marvellous productions. The gayest banter is rfiixed with
the deepest wisdom ; whilst the sharpest satire that ever
perhaps was turned against human pretentiousness and self-
sufficiency is tempered, as it always is by Socrates, not only
by an urbanity which would have done no discredit to the
best days of chivalry, but by a forbearance and charity which

OF JUSTICE AND CHARITY. 343

would have done great honour to the milder times in which
we live. At last the point is reached at which Socrates, in
a manner the least likely to alarm him, and, as it were by
the way, places the Sophist face to face with the main
difficulty. " But still, Protagoras, I am a little at fault in
a small matter, which I must ask you to clear up for me,
if you would have me complete. You say that virtue
admits of being taught ; and if I could be persuaded of
it by any man, I should be persuaded of it by you. But,
whilst you have been discoursing, there is a matter which
has puzzled me, and regarding which I beg that you will
set my soul at rest. You say that Zeus sent justice and
modesty to men ; and frequently, in the course of the
discussion, you have spoken of justice, and temperance, and
piety, and the like, as if taken together they were one —
namely, virtue. Tell me then plainly whether virtue is a
unity (iv), of which justice, temperance, and piety form
component parts {jxopia), or whether tliese are all but differ-
ent names for that same unity, which bears also the name
» 01 virtue. It is this which I miss in your discourse hith-
erto." " Nothing is more easy, my good Socrates, than to
answer that question ; for, virtu«3 being one, those qualities
of which you speak arc clearly parts of it." " But whether,"
1 said, " are they parts of it in the sense in wliicli the
features of tlie face, tlic mouth, tlie nose, the eyes, tlie cars,
arc parts of the face; or, in the sense in which portions of
gold wljicli differ neither from each otlier, nor from tlie
wliolc, except in size, are parts of the mass of gold which
they compose ? " " As the features are parts of the face,

344 OF JUSTICE AND CHARITY.

Socrates, so it appears to me." " Do some men, then," I
asked, " possess one, and others another, of these parts of
virtue, or must he who has one have all ? " " By no means,"
he replied ; " since many are brave without being just, and
just without being wise." " Are wisdom and courage, then,
also parts of virtue ? " " Above all," he said, " wisdom more
especially, seeing that it is the greatest of all the parts."
" Each of them is different from the other ? " " Certainly ! "
" And each of them has a special function, like the features
of the face ; for the eye is not like the nose, nor is its
function the same ; neither of the others is one like another,
either in the function which belongs to it or any other
respect. Is it so, also, with the parts of virtue ? Is no one
like another, either in its function or in any other respect ?
Plainly it must be so, if our example holds." " It is so,
Socrates," he replied. " And," I continued, " then none of
the other parts of virtue resemble knowledge, or justice, or
courage, or temperance, or piety ? " " None of them." " Come
along, then, and let us inquire together what each of them is
like ; and, first, after this fashion : Is justice anything or
nothing ? I hold it to be something ; what say you ? " "I
agree with you." " How, then, if any one were to say to us,
Tell me, Protagoras and Socrates, is this thing which you
call justice a just thing or an unjust thing ? I would answer,
a just thing. What vote would you give ? the same, or a
different one ? " " The same," he said.

A similar inquiry is instituted regarding piety — it, too, is
a thing, and a holy thing ; and Protagoras, on the principle
that things which are equal to the same thing are equal to

OF JUSTICE AND CHARITY. 345

one another, is dragged into the admission, first, of the
similarity, and, at last, of th-e identity of virtue and its
component parts. The dialogue exhibits, at many of its
turns, that almost oriental subtilty, which proves how
entirely the great opponent of the Sophists was master
of their weapons. For a time, in common with Protagoras,
we almost lose the direction of the current ; but, again, a
little further on, the way we have made shows plainly
enough how the stream has been running. " What then,
Protagoras, should we reply to our interrogator if he were
to ask us, Is piety then not a just thing, nor justice a
holy thing ? " Protagoras is painfully alive to the turn
of affairs, but he rallies wonderfully. Even opposites, he
alleges, have a certain resemblance ; and so the virtues, though
neither identical nor like, are not without certain elements of
resemblance. " And have justice and piety," I exclaimed, in
amazement, " according to your view of the matter, only a
slight resemblance to each other ? " Protagoras exhibits an
unmistakable desire to change tlie subject, and Socrates
gi'atifies liim, or rather seems to do so. Nearly half of the
dialogue passes ; and when the subject is resumed (in the
33d cliapter) Protagoras takes his stand on courage. All
the virtues resemble each otlier pretty closely, it must be
allowed, except courage ; but nothing is more common than
for the bravest man to outrage justice in the most flagrant
manner. The exceptional instance is chos(;n witli infinite
skill, and seems far more likely to carry liini throngh than
that which M. Cousin selected. Uut tlu; rchintless and
insatiable dialectic of liis opponent was not to \ni robljcd of

34G OF JUSTICE AND CHARITY.

its prey. Courage is distinguislied from rashness, the foi'iner
being resolved into knowledge, the latter into ignorance, of
what is truly terrible ; and, in this respect, having the very
same origin as cowardice. But evil alone, it had already
been admitted by all, is truly terrible ; and, farther, that no
man chooses evil except from ignorance. JSTo man therefore
knowingly chooses the truly terrible. In choosing what
seems to the ignorant to be terrible, therefore, the brave man
simply chooses what he knows to be good. But to choose
the good knowing it to be such, is to exercise wisdom.
Courage is thus only another name for wisdom ; and the
Sophist, who has declared again and again that wisdom is
the chief of all the virtues, handsomely owns himself beaten,
and ends by telling Socrates that he always maintained that
he was a promising youth, with whom he gladly conversed,
and that he would not be greatly surprised if he were one
day to acquire some reputation for wisdom.

The views entertained by Socrates on the relation of virtue
to what are commonly regarded as its component parts,
as exhibited in this and other parts of Plato's dialogues,
may be thus summed up : Virtue is not an aggregate of
separate elements, neither is it a generic term for objects
resembling each other only in their common participation
in one single element, however important ; and when we
speak of the virtues, distinguishing them into courage, tem-
perance, piety, and the like, we do not mention the parts of
a divisible whole {e.g., of a lump of gold), but the different
phases in which an indivisible whole (the quality of gold)
exhibits itself.

OF JUSTICE AND CHARITY. 347

The Aristotelian doctrine that the soul is all in the whole,
and all in every part,-^ finds its precise analogue in the case
of virtue : it is all in the sum and all in each of the virtues.
There can be no justice without temperance, nor temperance
without justice, nor piety without both justice and temperance,
&c. Each virtue involves every other and all the others ; and
in exhibiting itself, it exhibits not itself alone, but virtue, the
good (to ayaOov), the idea, one and indivisible, and it is thus
that we arrive at a philosophical explanation of the dictum
that " he who hath sinned against one part hath broken the
whole law," ^ which, as Thomas Aquinas has remarked, finds
its counterpart in Cicero's saying in the Tusculan questions,
" Si unam virtutem confessus es te non habere, nullam necesse
est te liabiturum." ^ It was on the same principle that the
Gnostics maintained that each of the Divine attributes pre-
sents tlie whole essence of Divinity under one particular aspect,
and may thus appropriately be called God.^ Thua, then, we
perceive the ground on wliich, according to Plato, charity
and mercy fall witliin the spliere of justice, and, following
out his views, when we speak of justice as embracing the whole
field of etliics, we regard it as corresponding to tliat phase of
the good in which it exliibits itself as a harmony in human
relations. Even when we quit tin's phas(^, the essential whole-
ness of the good necessitates the presence of justice in the
other pha.ses of its manifestation. Adoration is nothing more
than a just rec^>gnition of tlie Divine perfections, for whatever
indulgence our lielplessncss may require of God, lie can re-

' Hamilton's Ixrlurrji^ vol. ii. p. 9. ' Rom. xiii, 8 ; Ciil. vi. 2.

* I'rim. Sec., <{\x:m%. Ixv, art 1. * Nranil<r, vol. ii. ]i. 11.

348 OF JUSTICE AND CHAKITY.

quire none from us. If we could satisfy His justice, He
would be satisfied. Even the sphere of the intellect by no
means excludes the good or its manifestations in the form of
justice. Not only the speech of philosophers, but the lan-
guage of Greece itself coupled the beautiful and the good.
In our own country. Price and Wollaston and others have
identified truth with justice, and we have the highest of all
authority for joining truth to righteousness. Truth is to
knowing what righteousness is to doing. If righteousness
consist in acting or suffering, truth consists in knowing or
thinking, in accordance with justice.^ Even popular speech
marks the coincidence. When a Frenchman wishes to say
that a thing is true, he says, C'est juste. And in like manner
beauty — art — which is truth presented to the senses, " the
divine made visible," as Hegel finely said — resolves itself
into justice in proportion and colour. Moreover, truth resem-
bles virtue in this, that it is not a mere aggregate of separate
and unconnected truths, a vast and ever -swelling mass of
inorganic fact, falling now within and now without the pale
of what may be called intellectual justice. On the con-
trary, it is one and the same quality of rectitude, exhibiting
itself in numberless instances, unveiling itself in manifold
aspects. Every fresh discovery is simply an additional
revelation of the cosmic relations of the special depart-
ment of the universe to which it belongs : it is a revela-
tion, not of truth which differs from, but of truth which
harmonizes with, nay, the moment it is discovered, is felt

^ The one is tlic riQiKr] d.peT-^, the other the SiavorjTiKr] dperr} of Aristotle.

OF JUSTICE AXD CHARITY. 349

to be inseparably and indissolubly allied to all that was
known to be truth before. If it were not felt and seen to
be so, we should have in that single fact a certain proof either
that the new truth was no truth, but rather a contradiction
of truth, or that the old truth must be dismissed as an
exploded error.

Were I to attempt to enumerate all the errors, theoretical
and practical, into which mankind have been led by the nar-
row and unworthy view of justice in its relation to the other
virtues, and the consequent distinction between perfect and
imperfect obligations, against which I have here contended,
I should have to travel through every department of science
which is occupied with the relations either of man to man,
or of man to God. To point out the effect of these errors on
the development of jurisprudence as a science will form one
of my chief objects in tlie concluding chapters of this treatise ;
and in our studies of positive law there is no department in
which we shall not come upon numberless illustrations either
of the practical repudiation of the negative doctrine, or of the
disastrous consequences of its application. As illustrations
of the former, I have mentioned the laws which, in all
municipal codes, impo.se duties on tlie potent towards the
impotent members of the community, whether that impotence
arises from age, from imljccility, or from poverty ; and as an
illustration of the latter, tlie unworthy conception of interna-
tional duty which so often leads neighbouring states in the pres-
ence of war, which they might have prevented or which they
might terminate, to accept neutrality as their normal attitude.

350 OF JUSTICE AND CHARITY.

Another illustration, which will readily occur to Scotch law-
yers, is to be seen in tlie false distinction between law and
equity, which, for many generations, has given so confused
and unscientific a character to the municipal jurisprudence
of our English fellow-countrymen.

BOOK 11.

OF THE OBJECTS OF NATURAL LAW, AND
JURISPEUDENCE IN GENERAL

CHAPTER T.

OF THE DELATION BETWEEN JURISPRUDENCE AND ETHICS.

A SSUMIXG, for the present, that the inseparable relation
between jurisprudence and ethics has been sufficiently
demonstrated, let us now inquire somewhat more closely into
the character of that relation.

The relation ivhich subsists between jurisprudence and, as a
necessary consequence, betiveen naticral law and ethics, is deter-
mined by the definition of the objects of jurisprudence and of
cultural Una, ultiraate and proximate.

(a) TJte ultimate object of jicrispnidence is the realization of
the idea in the ideal ^ of humanity, the attainment of human
perfection (Vollko^nmenheit), and this object is identical with the
object of ethics vjhen regarded exclusively as a human science.

{b) The proximate object of jurisprudence, the object which it
seelcs as a separate science, is liberty. But liberty, being the
perfect relation between human beings, becomes a means towards
the realization of their perfection as human beings. Hence juris-
jrnuUnce, in realizing its special or proximate object, becomes a

* The itlen Im the conception {Urhegriff)^ ami the ideal the thiiif( conceived
f^rbilfl); the fonncr in al>Htroct, the latt<T concrete.

354 OF THE RELATION BETWEEN

means toivards the realization of the ultimate ohjeet which it has
in eommon with ethics.

In conformity with the limited scheme which the character
of this work imposes on me, I terminated, in last chapter, the
consideration of the sources of jurisprudence — of the teaching
of nature with reference to human relations, — and, in their
primary aspect, of the laws or principles of jurisprudence
which result from this teaching. My chief object in the
discussions into which this portion of our subject has led
us, has been to exhibit the inseparable relation, not only be-
tween natural law and positive human law in all its branches,
but between the science of jurisprudence as a whole, embrac-
ing both natural and positive law, and that still wider and
more general science which comprehends all the other human
sciences, and assigns to them one final end — I mean the
science of ethics ^ in its widest human sense — that is to say,
in the sense of the science of human life and of human pro-
gress, social and individual.

It now becomes my duty to point out, if possible more ex-
plicitly than I have done hitherto, the characteristics which '
distinguish that particular human science with which we are
occupied from this all-embracing science, and from the cognate
branches which grow with it on the same parent-tree. In
addressing myself to this task, I pass from the sources and '
genesis to the sphere and objects of the science of jurisprudence.

From the whole view which we have taken of the nature of

^ I have here attached to ethics the sense advocated by Krause, p, 40, Ahrens,
pp. 123 and 136, and which is generally attached to it by later German writers.
— See Warnkonig, Encyc. , p. 7.

JURISPRUDENCE AND ETHICS. 355

our rights, and of the manner in -svhich our duties arise, the
reader is of course prepared for the announcement that, in my
view of the matter, the object of jurisprudence, in so far as it
is a science separate from the great science of human life, may
be embraced in a sincrle word — a word dear and venerable to
all men, but of all men most dear and venerable to us —
Liberty. Jurisprudence, in its special capacity, does not profess
to give us strength, knowledge, happiness, or virtue ; but it
professes to supply, or rather to vindicate, a condition^ which
is inseparable from the attainment of them all, and in which
all the other conditions of their attainment are summed up —
tlie free exercise of the powers which God has bestowed on us.

The root of all subsequent individual rights, liberty is the
end and object of all citizen- duties.^

The relation in which jurisprudence stands to ethics is thus
a subordinate one, the relation of species to genus ; ^ whilst
under the species again, as we shall see hereafter, are ranged
as individuals the various departments of positive law. But
though jurisprudence, embracing of course both natural and
positive law, be subordinated to ethics on the ground tliat it
profes.?es to contriljute to tlie perfection of humanity only in
one direction, the contribution whicli it offers partakes of the
full ethical cliaracter, so far as it goes. Liberty, the i)roxi-
mato oliject of jurisprud(;nce, is perfection, absolute perfection,

' KrauHC, p, 47. — Da« Rechtsoll die I>c<liii;,'uiig(;n dcs VcniuiiftU-bt'iiH horstclU'ii,

' "There w," nayn Kant, "but one congenital right — Freedom" (Einleilumj^

p. xlv.) " La fin de lY-tat," says Spinoza, "est done veritablenient, hi lihiutij"

(i. p. 218). "JuHtice," says Ilegcl, "in the ndgii of lilwily n-ulizc*!."— Alncns,

pp. 77-79, pojufiia.

' KraUNc, p. 40.

35 G OF THE RELATION BETWEEN

ideal perfection, not in the beings or objects related, it is true,
but in their relations to each other.^

Whether an absolutely perfect relation be realizable be-
tween imperfect beings may indeed be questioned, because
one of the consequences of their imperfections will obviously
be to hinder the realization of the relation, or to disturb it
when realized. But a perfect relation, apart from the char-
acter of the objects related, is at any rate conceivable in the
abstract, and with its attainment the ideal of jurisprudence,
its object as a separate branch of science, is exhausted ;
whilst the function of positive law, or of jurisprudence as a
practical art, consists in approximating to this perfect or ideal
relation. If one man be a saint and another man a sinner, if
one man be a sage and another man a simpleton, jurispru-
dence accepts them just as mathematics accepts numbers and
spaces, and declares the relations in which they stand to each
other ; whilst positive law, taking the conditions of time and
place into account, assigns to them the specific rights and re-
sponsibilities which relatively belong to them, prefers them and
subordinates them, rewards them and punishes them, ranks
them, in short, just as the engineer determines the greater
weight which shall be laid on the stronger beam, or the ac-
countant measures pecuniary relations by pounds and pence.

But though to jurisprudence, as such, the character of the
objects with tlie relations of which it deals, is thus, formally

^ Kraiise points out that law in general {das Recht) is not a thing in itself
( JVesen), but a quality (Eigenschaft) ; and not an absolute quality, like virtue
(qualitas ahsohUa), but a relative quality {qualitas relativa). Viewed as an
adminicle of virtue, however, it assumes an absolute character, and becomes, in a
subordinate sense, an Eigcnschaft, as opposed to a Verhdltniss. — Krause, pp. 29, 30,

JURISPEUDENCE AND ETHICS. 357

SO to speak, a matter of indifference, it is not less clear, on the
other hand, that by perfecting their relations, jurisprudence
tends, in a most important manner, to perfect the objects or
persons related,^ and that it thus acts as a means towards the
attainment of the ultimate object of human existence — the
end which it has in common with ethics. It is from failing
to distinguish between the relation and the objects related,
more, I believe, than from any other cause, that the difficulty
of distinguishing between jurisprudence, and as a necessary
consequence natural law, and ethics has arisen ; whilst it is
from failing to perceive the identity of their ultimate ends,
that those who have distinguished them have so often fallen
into the opposite and still more fatal error of separating them
altogether, and almost of opposing them to each other.

But is liberty an object peculiar to the science of juris-
prudence, and, above all, does it constitute a distinction be-
tween it and the science of ethics ? Ethics too, it may be
said, has liberty for its object ; and this not as a means to
some final and ultimate end, but as its own special end. Now
there is a narrower sense than that in wliich I liave used the
term ethics — as identical with the science of human life as a

' Take, for example, the case of landlord and tenant. Is it not obvious that
whilst the immediate object which law contemplates with reference to them is to
perfect the relations in which they stand to each other, by giving free scope to
the energies of each, this object, if attained, would have the effect of improv-
ing them as men and as citizens, and would thus contribut(! to the ultimate
object in which law and ethics come together ? This consideration furnishes, in
my opinion, a suflicicnt answer to Professor KiJder's allegation {Ncure licdds-
flofuifir. in Kiujlaml, p. 224) that, in retaining libraty as the objc^ct of jurispru-
dent, I separated law from ethics, and returned to tin* negative school of Kant
It was not in its end, but in its means that Kant's was a negative school. — Infra ^
p. 366, note.

358 OF THE DELATION BETWEEN

whole — a sense in which the term has no doubt been vised,
both in the ancient and the modern world, and which unques-
tionably justifies this remark. To deliver the true, general, or
normal nature of the individual from the restraints which his
false, exceptional, or abnormal nature imposes upon it, was
the professed object of the ancient moralists. Liberty, in this
sense, is expressly stated by Epictetus to have been the end
of his ethical system ; and this end, variously understood, has
been sought, more or less exclusively, by every subsequent
moralist whose system had any practical drift at all. Recog-
nizing this fact, it has been common with many ^ who have
attempted to draw a line of demarcation between jurispru-
dence and ethics, to say that the one is concerned with ex-
ternal liberty and the other with internal liberty ; or, in
other words, that the object of jurisprudence is to deliver us
from the restraints imposed on us by others, and the object
of ethics to deliver us from the restraints which we impose
u2:)on ourselves.

Further, as the subjective impediments to liberty being-
self-imposed must be self-removed, ethics as a system, it has
been said, consists of the rules by which each individual seeks
to effect this object for himself — the " private ethics " of Ben-
tham ; whereas jurisprudence consists of the rules by which
he protects himself, or is protected by others, from impedi-
ments from without. In this view of the matter ethics
stands to jurisprudence pretty much in the relation in which
municipal law stands to international law. As municipal law
governs the internal, and international law the external re-

^ Kant, Scniplc, p. 175.

JUEISPKUDENCE AND ETHICS. 359

lations of the state, so ethics governs the internal, and juris-
prudence the external relations of the individual. But, viewed
in this light, it is plain that ethics, in place of being a wider
and more general science with an ulterior end of its own,
becomes neither more nor less than a branch of the science of
jurisprudence, and a branch which, the moment that it is
embraced as part of the teaching of a particular sect, whether
philosophical or religious, assumes the character of positive
law. It is a system of law differing from other systems in
the domain which it governs and the tribunals by which it is
enforced, but having essentially the same objects — the attain-
ment not of perfection directly, not of the final end of life in
itself, but of freedom as a means to that end, or of order,
which, as we shall see presently, is a means to freedom.
Systems of rules of this description have often been devised,
their object being to give freedom to the normal impulses of
humanity within the subjective domain ; and to these systems
the character of positive law has been recognized as belonging,
not by implication merely, but expressly. It was of such a
system that Ej^ictetus said, " Whatever directions are given
you, look upon them as so many laws, which have binding
j>ower, and such as you cannot without impiety depart from." ^
Now, if there Ije anything to be gained by confining to
systems of this particular class the term ethics, and inventing
another tenn for the general science under which all systems
for the government of human action fall, and which assign to
them their common end, 1 liave no olijection to that proceed-
ing. lUit I ()l»ject to the ethical character, however we may

' .SUiii}ioi»c'h Irani*.

360 OF THE RELATION BETWEEN

choose to designate it, being arrogated to themselves by these
subjective systems, whilst the other co-ordinate systems, which
deal more prominently with external liberty, are handed over
to the science of jurisprudence, as if these two sciences were re-
ciprocally exclusive, and covered territories the confines of one
of which commenced only where those of the other terminated.
The laws which govern the relation of citizen to citizen, of
state to citizen, and of state to state, are ethical laws, because
their ultimate end is perfection, just as much as the avixov koI
a7r€;(ov, the sustiuc ct ahsHnc, or any other rule for the guidance
of individual conduct.

And as ethics embraces the whole field of jurisprudence, so
there is no portion of the domain of ethics from which the
ministration of jurisprudence, by its own special means — the
attainment of liberty through the instrumentality of order —
is necessarily or scientifically excluded. It may be that the
state can give little aid to the individual in applying or en-
forcing the rules by which his own liberty demands that his
conduct should be regulated. In the higher races of mankind,
at all events, personal activity and industry, whether bodily
or mental, can be but little stimulated by social appliances ;
and these, in the normal conditions of life, are called forth most
effectually by the compulsitors of necessity, and the induce-
ments of wellbeing. But, even in free states, labour is made
a condition wherever public charity is bestowed on the able-
bodied; and education, the search after and dissemination of
truth, as opposed to the acceptance of dogma, is enforced by
the policy of the most advanced states in Europe. Then take
the negative virtue of temperance. It may be impossible to

JURISPKUDENCE AXD ETHICS. 361

enforce it by positive law. That is a question of fact relative
to which there is much difference of opinion ; and according
as we decide it affirmatively or negatively, will be our view
as to the expediency or inexpediency of enactments having
the enforcement of temperance for their object. To interfere
with the use of God's gifts is an interference with liberty, and
the question as to the limits of use and abuse is one which
the community may possibly be incompetent to solve by any
general rule. But suppose those limits passed, interference to
prevent a repetition of tlie offence, assuming prevention to be
possible, would be an interference in favour of the liberty of
the victim of intemperance, and consequently in accordance
with the principles of jurisprudence. Nay, very possibly it
might be an interference in accordance with his wishes, for
there seem to be cases where men (individually or collectively)
say, " I am weak and wish to be protected against my own
weakness. I should be glad of a law wliich made it more
difficult for me than is now the case, to gratify my inclina-
tions in tlie direction of wrongful indulgence." Or, again,
tlie reformation of the individual offender may or may not
be attainable by means of punishment ; but nobody doubts
that it may be legitimately souglit by that means, and that
liere too, even positive law may come, if it can, to the aid of
those ethicfd rules by which the sul^jective domain is more
ordinarily governed. Tlie oliject of our study of natural law
i.s wholly mistaken when it is said to be to define tlie s])here
of jurisprudence, meaning thereby positive law. That sy)liero
can be defined only by a study of th(3 conditions of (iuic, and
place ill which its definition is sought. It belongs to national

3G2 OF THE KELATION BETWEEN

politics. But natural law gives the direction, though it does
not assign the limits of positive law.

There is another ground, analogous to tliat I have just
mentioned, on which an attempt has been made to distin-
guish the sphere of jurisprudence from that of ethics. It
is said that it takes cognizance of actions alone, not of
thoughts, opinions, or intentions : that it will neither vindi-
cate for me the power of thinking freely, nor protect you
against such evil and malicious thoughts as I may harbour
against you. But here, just as in the case of the subjective
domain generally, the exclusion of jurisprudence arises from
practical rather than theoretical considerations. On the one
hand it is scarcely possible to imagine circumstances which
would call for its interposition, for, inasmuch as there is, and
can be, no restraint on internal liberty, interference with mere
thought and opinion can consequently never be requisite on
the ground of removing such restraint. On the other hand it
is equally difficult to imagine circumstances in which inter-
ference would be possible. So long as thought or opinion
remains within the breast — so long, that is to say, as it is
mere thought or mere opinion — neither its character nor its
existence can be ascertained, and consequently it cannot be
put into the crucible of human judgment. But the limits
of jurisprudence in this direction are fixed, not by principle,
but by necessity ; for the moment that its interference be-
comes possible, it is conceivable (though still perhaps very
unlikely) that it may be justified in the name of liberty.
That indirectly such interference not only may, but must
take place, unless the State is to abdicate its highest func-

JUmSPKUDENCE AND ETHICS. 363

tions, is obvious.^ The existence of tlie Church and the
School are sufficient examples ; and it is remarkable that Dis-
senters who are most zealous for the separation of Church
and State are precisely those who are most zealous for the
union of Church and School. Nor is the principle that the
quality of thoughts, as good or evil, or of opinions, as true or
false, is indifferent to jurisprudence, that on which its inter-
ference for the most part is withheld till the thought finds
expression in an act, or the opinion is propagated in the form
of a doctrine which the Church or the State conceives to be
dangerous to wellbeing. So far from repudiating all ethical
considerations, the ground on which jurisprudence declines to
interfere is that, being bound to interfere on ethical considera-
tions alone, it possesses, and in the circumstances can possess,
no ethical information. Jurisprudence does not say that it
will take no cognizance of the quality of intentions, for it is
on the judgment which it forms of the motives of the agents
that the whole doctrines of responsibility and non-responsi-
bility rests. The moment that the intention of the agent is
made manifest (as, for example, by an attempt to commit a
crime, by the writing of a tlireatcning letter, the equipment
of a ship of war by a neutral, a cliarter-party binding a sliip
to run a blockade, or the like) jurisprudence will anticipate
the encroachment on external liberty whicli tlic actual per-
petration of crime would occasion, and not only constrain the
will of the intending criminal, l)ut punish him for his evil
purpose.'^

' Kniu.v!, i». Gi.

^ When Kuiit obtfcrvcM, then, Dial " tlic coiiiculvnco uf an actioii wiih llic law,

364 OF THE KELATION BETWEEN

From these observations, I think,, you will perceive the re-
lations in which the science of jurisprudence, as a whole,
stands to the science of ethics, in the wider sense. It is, as
I said at the outset, that of a special to a general science, of
a means to an end ; for if the end of jurisprudence be liberty,
liberty itself is manifestly desirable only with a view to the
attainment of other objects, of which the sum is the realization
of that perfect hitman development, and consequent happiness,
which is the end of the science of human life as a whole, the
human end in itself. The two sciences, as I have all along
said, are co-extensive ; their final ends are the same, for
natural ^ law seeks perfection by the fulfilment of the duties
of charity, benevolence, and the other so-called imperfect obli-
gations, just as it does by the vindication of the so-called
perfect obligation of justice — the question of how far its dicta
may be enforced by positive law, — its " sphere," in Austin's
sense — being a question of facts and circumstances of tem-
porary expediency.

But jurisprudence is not the only special science which

abstracted from any regard had to the motive whence it sprang, is its legality ;
but such coincidence — when the idea of duty, founded on the law, is at the same
time the inward spring — forms its morality " I deny the validity of the opposi-
tion. The motive, so far from being "abstracted from," is often the very essence
of the legality or illegality of an act. Shooting, in the abstract, is legal. Shoot-
ing with intent to kill a man, unless it be in self-defence, or for the protection of
our country, is illegal. Enlisting is legal and commendable; enlisting "with
the intent to serve against the Queen's allies" is a violation of the Foreign En-
listment Act. Whether it be wise to frame enactments, the enforcement of which
depends on a proof of " intention," is a practical question with which we have
here, happily, nothing to do.

^ As to the limited sense in which the word " natural" is used with reference
to juiisprudence, see Introduction, ante, p. 2.

JURISPRUDENCE AND ETHICS. 365

seeks the final end of life ; nor does it stand to the other
sciences which seek it by different means, in any other than
a co-ordinate relation. Neither from the common science of
ethics then, which has for its function to assign their common
end to all the human sciences, nor from these sciences speci-
ally considered, each of which, though employing partial means,
seeks the attainment of perfection not partially but completely,
is the science of jurisprudence distinguishable as regards its
domain. Each science, by its own special means, seeks the
realization of all the virtues. The science of instruction, for
example, seeks the attainment of the good by the inculcation
of the so-called imperfect obligation of charity, just as of the
perfect obligation of honesty, or of the duty of cultivating the
reason, which is its more special end. The sciences of w^ar
and of diplomacy seek to maintain our honour,^ and to fulfil
our human destiny, as well as to protect our more immediate
interests as a nation. And so of eacli of the others. Each
seeks, in so far as its means permit, to cover, so to speak, the
whole ethical field, to fulfil the whole law. I>ut each is dis-
tinguishable, first, from the general science of ethics, inasmuch
as being special and practical sciences they employ special
and practical means for tlie attainment of the common object ;
and, second, from each other, inasmuch as the means which
they employ are different. Now it is the means employed by
the science of jurisprudence f(jr the attainment of the common
end which constitutes its object considered as a separate
science ; and the means which jurisprudence su])plies for this
purpose is liberty, just as the means which education suj)plies is

' •' IVarc witli lionoiu ! "

GG IIELATION BETWEEN JURISPRUDENCE AND ETHICS.

knowledge, or the means whicli medicine supplies is health, or
the means which war supplies, or professes to supply is peace.^
In further illustration of the relation in which the various
sciences stand to the central science of ethics, and to each
other, let me recall the results of our recent inquiry into the
antique conception of virtue. After endeavouring to prove
the groundlessness, in point of principle, of the distinction
w^liich it had been attempted to draw between justice and
charity, I referred to the famous argument in the Protagoras
of Plato, by which the unity of the virtues is established.
According to Plato's view, we found that virtue, the good,
when considered as a whole, is not an aggregate of separate
elements, neither is it a generic term for specific objects re-
sembling each other only in their common participation in one
single element, and that when we speak of the separate virtues
of courage, temperance, justice, and the like, we do not mention
tlie parts of a whole — e.g., of a lump of gold — but the different
phases in which an indivisible whole — the quality gold in the
abstract — exhibits itself. As Aristotle said of the soul, " that
it is all in the whole, and all in every part ; " and as Hamil-
ton, adopting his view, held that it is the same individual
mind that operates in sense, in imagination, in memory, in

^ The relation in which the position here taken up places us to the Kantian
school, may be thus stated : —

1st, In accordance with the Kantian School, we adopt —
{a) Liberty as the object or end (reAos) of jurisprudence, and
{b) Order {infra, cap, ii. p. 3G7) as the means, sine qua non, to the attainment
of liberty.

2d, In opposition to the Kantian school we reject (Book I. cap. xi. p. 281,
passim, ; see specially 294 et seq.) the negative character which it imposes on the
means by which jurisprudence seeks the attainment of its end, following, in this
latter respect, the teaching of the positive school. — Ante, pp. 355, 357.

RELATION BETWEEN ORDER AND LIBERTY. 367

reasoning, &c. — differently indeed, but differently only because
operating in different directions ; so of virtue we conclude it
is all in the sum, and all in each of its parts. But, like the
mental faculties, the impulses which correspond to the various
virtues operate in different directions ; they seek a common
end by different means. ISTow it is to the means employed
by the virtues, thus separately regarded, that the various
branches of human endeavour, with a view to the realization
of the good, correspond ; and these branches, when systema-
tized and reduced to rule, constitute the various human
sciences. But the various human sciences when applied to
practice — that is to say, when brought in contact with external
existence — become arts and professions, all bound together by
one ultimate and general object — the realization of the good,
or of the human idea, which is the good in its human aspect,
— and all held apart by their various proximate and special
objects, the realization of which they seek as separate pro-
f'e.ssions.

CHAPTER ir.

OK THK KKLATIOX IJETWEKN OliDER AND LIDKllTV.

Ifaving accepted liberty as tlie object of juris])rudence as
I separate science, we must now endeavour to dcjterniine the
lianicter of liberty. Willi this view, two inquiries seem
pecially tu press tliem.selve.s on <»ur .'ilLtintioii : 1st, In what

368 OF THE PvELATION BETWEEN

relation does liberty stand to order, to which it is often
opposed ? 2d, In what relation does it stand to equality,
w^ith which it is often identified ? It is the first of these
inquiries which will occupy us in the present chapter.

Order and liberty, like justice and charity, are hi principle
identical. They can he realized only in conjunction, and neces-
sarily ctdminate together.

It was not without reason that our own ancestors, in word
and deed, coupled liberty with law ; that the sacred writers
spoke of the " perfect law of liberty " as the law prescribed by
Him whose " service is perfect freedom ; " or that Cicero said,
as Plato had said before him, " legum idcirco omnes se^^vi
sumus ut liberi esse possimus." ^

But the conditions under which our rights are realized,
rather than the origin of these rights, or the final end of their
exercise, being the subjects with which jurisprudence, when
seen not as a science but as an art, is mainly conversant, —
the realization of order, and not the attainment of liberty,
came very generally to be regarded as the final and exclusive
object of jurisprudence. The error, like most errors, was a
half-truth; for the condition — the means which was thus
mistaken for the end — being not one of many conditions or
means, but the condition sine qud non, the exclusive and
infallible means — the means without which the end was, in
all cases, unattainable, and with which its attainment was
inevitable — this means, if not identical with the end, was
involved in it, and in the last analysis implied in it. If you
analyse liberty you will find order, just as if you analyse order

1 Pro. CL, 5, 3.

ORDER AXD LIBERTY. 3G9

you will find liberty. Perfect order is liberty ; perfect liberty
is order. But the practical results of the error have not been
on this account less fatal ; for it has been by considering order
as an end in itself, and by forgetting that its value ceases the
moment that it fails to fulfil the function of a means towards
the attainment of liberty, that authority has been hardened into
despotism, that obedience has degenerated into slavery, that
nation has been separated from nation, class from class, and
man from man, till humanity itself has groaned under the
burden whicli was bound on its back by honest and upright,
but ignorant hands. The principle that the perfection of
legislative, as of all other machinery, consists in its simplicity,
and that so soon as a law becomes needless it becomes in-
jurious,— a stumbling-stone in the way to liberty, an impedi-
ment in our progress towards the realization of the final end
of life, — was the great discovery of the eighteenth century.

As usual, this principle received a one-sided application.
Tlieoretically, as we have seen, it led even men like Kant so
to limit the sphere of legislation as to lose sight of its positive
side ; and this error speedily opened tlje door to tlie still more
formidable conclusion that the ne^^ative side of it must be
repudiated al.so. Order, which feudalism and despotism liad
adopted and discredited as an end, under the reaction wliich
arose against tliem, lost its liold as a means, and its opposite
— license — no longer stigmatized as the irreconcilable foe of
liberty, was tolerated as its excess, aiid hailed as a rougher
and more perilous, but shorter road to Iho i^oal of jniinan life.
Now, if licen.se and liberty diller oidy in degree, and if oider,
as the opposite of license, be thus separatc^l from liberty, it

2 A

370 OF THE RELATION BETWEEN

will at once be apparent that there is an end to compulsory
legislation altogether. The " police " of the negative shares the
fate of the " guardianship " of the positive school ; for order
having confessedly no separate standing-ground, no indepen-
dent warrant of its own, it is in the name of liberty alone,
his own included, that the greatest criminal can be punished
for the greatest crime. The only answer, then, to a train of
reasoning which has led to far graver results than even the
substitution of order for liberty, consists in the denial that
license ever is liberty in excess, or can, in any circumstances,
stand to it in the relation even of a condition. License, on
the contrary, is the condition of despotism, and the condition
of despotism sine qud non ; for it is over a licentious com-
munity alone that a despot can rule : and when a community
becomes licentious, the despot will not be far to seek.

We often hear, in popular speech, of the exaggeration of a
truth, or of a virtue ; but as Cousin ^ and many other reasoners
have pointed out, no such exaggeration is possible. Liberty,
like truth and virtue, never can be carried too far. What
really takes place, in the circumstances which these phrases
describe, is not an exaggeration but a transition ; and a tran-
sition very often to error or vice of the gravest kind, though
on the principle that extremes meet — to error or vice which
lies on tlie very borders of truth and virtue.^ That license,
then, stands to liberty in the relation, if not directly of an

1 Ecol. Ecoss., p. 297.

2 The doctrine of the /teo-t^Tijs is explained by Sir Alex. Grant in such a way as
to free Aristotle from the reproach which Kant and Grotius, and so many others,
have brought against him, of making the distinction between virtue and vice
merely quantitive.— Grant's Aristotle, vol. i. p. 201.

ORDER AND LIBERTY. 371

opposite, at least of the necessary condition of the presence
of its opposite, and is practically equivalent, not to its more
perfect, but to its less perfect realization on the ivhole, or, as
Kant would say, ''as an universal law," will, I think, be
apparent if we consider that, in every imaginable instance,
it is resolvable into a pushing of the meiim into the domain
of the timm, or the reverse. There can be thus no general or
absolute gain; for, assuming the subject to be a gainer, in
direct proportion to what the subject gains the object loses.
But why, it may be said, should there be an absolute loss ?
Now the answer to this question will be found in recalling
the fact that man is a dependent being, the full possession
and enjoyment of whose gifts, powers, and faculties is pos-.
sible only by the aid of the higliest possible realization of
o])jective means. Subjective liberty is something more than
the mere negation of objective restraint. It is only by the
help, the active aid and co-operation, of the object that tlie
subject can be free ; and were I to succeed, not only in rob-
bing you of your liberty, but in annihilating the whole objec-
tive world, I should be more limited hy my own impotence,
more en.slaved Uy myself, than I could possibly be by its
encroachments. The fraternal relations of humanity, as real-
ized in association, co-operation, coml)ination, and the like,
are favourite themes at present, chiefly witli tliose by whom
the deeper principle of mntuid ;.id in the paternal direction of
guardiansiiip as a means to the attainment of ]i]>erty has been
forgotten. But the successful, or even the safe ai)pli(;{iti()n of
the fraternal ]»rinciple, must depend on our nicognition of the
fact that, so far from being at variance with th.- piiiKUjih! of

372 OF THE RELATION BETWEEN

order which lias been falsely associated with the paternal
principle exclusively, true fraternity is only order in another
aspect. Seen in this light, and recognized, like order on the
whole, not as an end but as a means, fraternity, like guardian-
ship, rests on the great truth that, as God has made nothing
in vain, and that there is no creature, however insignificant
or comparatively unimportant, the free and perfect exercise
of whose faculties is not demanded for the realization of the
freedom of every other ; whilst the converse of the proposition
is likewise true — viz., that there is no created being, or col-
lection of beings, so self-supporting as to dispense, without loss
of liberty, with the aid of any being that God has made. It
is, then, the maximum, and not the minimum, of objective,
which is the condition of the attainment of the highest subjec-
tive liberty. But a maximum of objective liberty, combined
with a maximum of subjective liberty, is possible only in the
case in which neither oversteps its legitimate boundaries.
There must be no debateable ground of anarchy between
them, else one or both will fall below the maximum. But
the arrangement by which their respective borders are defined,
as it were, by an ideal line, which robs neither of its territory,
is the arrangement to which I give the name of order ; and
I think, therefore, that the conclusion is warranted that the
highest liberty involves the most perfect order, and, recipro-
cally, the highest order the most perfect liberty.

One of the most important consequences of the interdepen-
dence of order and liberty, is the impossibility of either pro-
gress or retrogression taking place in the one apart from the
other. Nothing can be more misleading than to talk of order

ORDER AND LIBERTY. 373

as the permanent, and liberty as the progressive element in
society, as if order resembled the mechanical arrangement of
bricks in a wall, and liberty the organic development of a
plant or an animal, whereas they are, in truth, the comple-
mentary functions of one single organism, the cells and the
sap of one living body. So dependent, indeed, are they on
each other, that the exclusive triumph or failure of either
would be the annihilation of both. Nor is this relation in any
degree affected by the fact that, in progressive societies, order,
as we have said, becomes more and more spontaneous, and
less and less dependent for its maintenance on positive law ;
for it is in voluntary obedience, in free acceptance of law, and
not in compulsion, however perfect, that order culminates.
A self-acting machine is not the negation, but the perfection
of mechanism ; and so an autonomous community is not a
community set free from order, but a community which freely
orders itself. For this reason, paradoxical as it may seem, it
nevertheless admits of demonstration, that if a perfect republic
were realized, it would })e more anti-democratic, in the popular
sense of democracy, tlian the most despotic government that
ever existed — nay, than any government that ever existed, or
rould possibly exist, on the face of the earth.

The inseparaljle connection l^ctwecn order and liberty did
not escape Socrates, as few things did. Pluto represents him
jwj illustrating it, in a p.'issagc in tlie Oorgias, in jl very
ingenious and characteristic manner. "Order, syst(im, n^gii-
larity," he says,^ "are the oidy conditions of wcUbcing in a
house, and in a shijt. To this same order and regularity in

' Cup. r.y.

3/ -4 KELATIO.N BETWEEN ORDER AND LIBERTY.

the body we give the name of health. But health is the con-
dition of liberty in the body ; for even the physicians allow
the healthy body the fullest gratification of its desires, whereas
the moment it becomes sick, the only mode in which it can
be cured is by restraining it and interfering with its liberty.
But to the order and regularity of the soul, that which corre-
sjDonds to bodily health, we give the name of law (vofxos), which
is righteousness and temperance (StKatocrwT/ re koI crivtjjpoa-vvy],
which he elsewhere ^ combines under k6(T[xo<s). And in the soul,
precisely as in the body, whilst the healthy soul fulfils its
longings without injury, the diseased soul — that is to say, the
soul that is irrational, and intemperate, and unjust, and unholy
— in order to its own restoration to health, must be restrained
in its desires." " Nor, even if present gratification be regarded
as the end, is it attainable through license ; for what gratifica-
tion does an unhealthy body derive from the fulfilment of its
desires ? " ^ and the case of the soul is again analogous. It is
in this latter point of view that the analogies derived from our
bodily functions present to us, in the strongest light, the
universal antagonism between license and liberty, and the self-
destructive character of the former. Even before the physician
can interpose, the limitations which he would have suggested
are but too often effected by the unimpeded action of the
indulgence itself ; and, without the slightest external inter-
ference, the point is reached at which it is appointed by the
constitution of our nature that '' the grasshopper shall become
a burden, and desire shall cease." ^

» Ca]). 63. 2 Cap. 59. 3 Eccles. xii. 5.

THE IDEA OF ABSOLUTE EQUALITY. 375

CHAPTEE III.

OF THE IIISTOKY OF THE DOCTRINE THAT THE IDEA OF LIBERTY
INVOLVES THE IDEA OF ABSOLUTE EQUALITY.

Before we quit the consideration of liberty as tlie object of
law, there is one question in particular which demands our
attention, because the notion which we form both of liberty
itself, and of those special and proximate objects which are
in reality means towards its attainment, will largely depend
on the answer which we give to it. The question to which I
refer is whether Equality, which common sentiment and vulgar
speech have now, for nearly a century, so frequently connected
and even identified with liberty, be really implied in it ; and
if so, in what sense ?

In addition to the scientific importance which must always
]'>elong to it, this question is, moreover, that of all others which
has perhaps the most important bearing on the practical life
of our time, both social and political. However much the
better sort of Englishmen may be satisfied of the practical
impediments which stand, for the present, in tlie way of the
attainment of social and political equality, in the popular
sense, cither in England or anywhere else — nay, however lully
they may ])C convinced of the impropriety of its admission
imongst the immediate objects of any scheme of legislation, or
Hystem of ])ositive law, in any stage of development which
nankind has yet reached, there arc, in many lionest minds,

376 THE IDEA OF ABSOLUTE EQUALITY.

hazy notions about its absolute justice and ultimate expedi-,
ency, which cause them to hesitate in dismissing it from the
objects of jurisprudence on absolute grounds. They shrink
from the consequences which it has involved hitherto, and
which apparently it must always involve ; and yet, as they
can see no logical or scientific escape from it, they arrive at
the untenable, irrational, and absurd conclusion, that though
wrong in practice it must be right in theory. And it so
chances that, if in some degree protected by their national
temperament against the extremest practical consequences of
the doctrine of equality, Englishmen stand to it, logically, in
a peculiarly helpless position. The historical metliod is the
only one with which the vast majority even of educated men
in this country are acquainted, or in which they have any
confidence, and here the inadequacy of the historical method,
either as a refuge against error or as a basis for truth, has
become specially apparent. It is true that history repudiates
equality ; that the life of man, hitherto, has failed to realize
it ; and that these facts are good arguments, so far, against its
claim both to scientific and practical recognition. But they
only go a certain length. They are grounds of hesitation, not
of decision. The life of man is not ended ; history lias not
closed ; and the verdict of history is thus neither final nor
infallible. It may be that the future will turn its back on
the past — nay, it is possible that a contemporaneous history
may be growing up, in America or elsewhere, even now,
which sliall reverse the previous history of mankind. On
these and similar grounds, the logical and formal validity of
which it is impossible to deny, and the material truth of

THE IDEA OF ABSOLUTE EQUALITY. 377

which we may question but cannot absolutely refute, the
historical method has been repudiated by speculative politi-
cians, from the days of Hobbes to our own, The enemies of
historical society have appealed from tradition to nature, from
empiiicism to science. The appeal is legitimate ; and those
of us who undertake the defence of society must be contented
to follow them into this court of last resort. My own accept-
ance of the challenge is the more imperative, because the
method on which political scepticism here relies is that which
I have all along invoked as the only means of reconciling
liberty and order, and placing society on an immovable basis
of reason. Nor is it the acceptance of the philosophical
method as at least co-ordinate with the historical which alone
imposes on me this duty. To many the acceptance of the
de facto principle, as the result of this method, and the basis
of its practical application, has seemed to create a conflict
between my speculative premises and my practical conclusions.
I have been told that whilst my principles led me to be a
Radical, my instincts made me a Conservative, and that, in the
long-niji, I iollow my instincts and not my principles. I am
Tuyselt" persuaded that, liowever often tliey may luive led to
otJier conclusions, tlic truest and f)iily true conservatism results
from tlie study of nature, and from tlie j)Ositions wliich that
study logically yields.

Without withdrawing, then, from the position which we
have hitherto occupied, I shall endeavour to develop a theory
of equality in accordance with nature, which, however much
it may dilfer fifjni the i»*»pular i(l(;al, will, I tiust, satisfy the
utnioHt longings of scientilic liberalism. liut befoie I ]»rcsent

378 THE IDEA OF ABSOLUTE EQUALITY.

the doctrine which seems to nie, logically and necessarily, to
I'esiilt from the principles of nature which we have already
recognized, it may be proper that I should endeavour to indi-
cate, historically, the origin and development of the opposite
view. " To trace an error to its fountain-head," said Lord
Coke, " is to refute it ; " and Mr Bentham shrewdly remarked
that, " with many understandings it is the only refutation that
has any weight." ^

(a) As a i^rotest against aiithoriiy.

As a mere protest against authority, the doctrine of absolute
equality is as old as mankind. It is the contre-coup with
which vanity and envy respond to insolence and oppression,
and by which one class of vices counteracts another. In this
sense it has found expression in every servile war, in every
agrarian outrage, in every act of insubordination which ex-
ceeded the bounds of a legitimate protest against tyranny or
exclusiveness. But it is not in the spirit in which it was
acted upon on these occasions that the principle is vindicated
by its advocates. It is viewed not as a watchword of tem-
porary dissatisfaction, whether justifiable or unjustifiable, but
as the permanent goal of social and political effort.

(h) By the Jesicits.

As advocates of the supremacy of the clerical order, and
defenders of tyrannicide, several of the Jesuits of the sixteenth
century ,2 following in the footsteps of Hildebrand in the

^ Stewart's Works, vol. i, p. 192.

2 Hallam, Literature, vol. ii. p. 33 et seq. Ranke's History of the Popes,
vol. ii. p. 7 et seq. See Suarcz's theory, as stated by Hallam ut sup., p. 524,
He was disputing, however, against the patriarchal theory, and not for de-
mocracy.

THE IDEA OF ABSOLUTE EQUALITY. 379

eleventh,^ came so close on the development of a theory of
political equality as to justify the assertion of Bunsen ^ that
" Jesuitism and radicalism are two several masks of the same
destroying spirit." Of the alliance between ultramontanism
and revolution, the black and the red international, the his-
tory of our own day, and even of our own country, furnishes
many examples. But the alliance is essentially dishonest,
as is apparent from the fact that within the Church itself the
strictest system of subordination was maintained,^ and it has
never produced any consistent theory of mutual aspiration.*
The same may be said of the Protestant aspirations after
equality which sprang out of Luther's teaching, misunderstood,
and found expression in the sayings and doings of Thomas
Munzer and John of Leyden, and realization in the Bauern-
kreig. Henry Marten, in Cromwell's time, unlike Sidney,
Vane, &c., was a communist and a republican.^

The earliest systematic statement of the doctrine that can
be said to influence existing opinion is that of Hobbes.
Hobbes brings equality within the sphere of justice, by bring-

' Xcandcr, vii. p. 119. - Life, ii. p. 149. ^ Ncandcr, vii. p. 120,

^ The rolations bt-twecn Calvinism and democracy are excellently brought out
in " Le« FranraiH en Amerique pendant la Guerre de I'lndepondancc (p. 29 ct
acq.), par Thoina« Balcli," an Anieriran gentleman, who for many years resided
)n France, and was a careful student of political philosophy. That these re-
lations hare been, practically, of the most important kind, cannot be doubted.
Hut I am not aware that any doetrine of absolute efjuality, as the ideal ntlution
of human l)eings, waa ever enunciated by any leading Calvinist, Ecjuality, even
amongst the clergy, was no part of the original scheme of Knox ; and Calvin's
system was borrowed from, not the cause of, the republican constitution wliic h,
in inntntion of the rest of Switzerland, fJeneva had already adopted.
''Life (f Al'jrrnon Siilnrtj, by Kwald, p. 189,

380 THE IDEA OF ABSOLUTE EQUALITY.

ing it first witliin tlie sphere of fact. He does not argue that
all men ought to be equal, or to be made equal, by social or
political arrangements, in obedience to any law either human
or divine ; but he boldly asserts that all men are equal ab-
solutely, in strength, wisdom, and virtue ; and this not at
birth alone, but throughout life, not by their own arrange-
ment, but by the providence of God.^ In perfect accordance
with the principles which we have recognized throughout, it
w^ould follow from this single assertion, if true, that every
distinction which has ever been established amongst men was
an invasion of liberty, an act of injustice, and that the vindi-
cation of absolute equality, and its consequences, belongs to
the science of jurisprudence, quite as inalienably as the vindi-
cation of liberty, with which it would indeed become identi-
cal. Mr Hallam has said that Hobbes adopted the " strange
and indefensible paradox of the natural equality of mankind,
rather in opposition to Aristotle's notion of a natural right in
some men to govern, founded on their superior qualities, than
because it was at all requisite for his own theory." '^ I can-
not agree with Mr Hallam in that opinion. To me, on the
contrary, it appears that the doctrine of equality formed the
very corner-stone of Hobbes's whole political, and even of his
ethical system ; and that he was correct in supposing that his
difference from Aristotle was necessitated by the conclusions
which he had determined to reach. Essentially I regard it,
of course, as an unstable foundation, because I believe the
assertion to be false ; but formally it was sufficient for its

^ Dc Coriwre Politico, cap. iv. sect. 1; Leviathan, cap. xiii. sect. 1, and cap. xv.
- Lit. of Europe, vol. ii. p. 538..

THE IDEA OF ABSOLUTE EQUALITY. 381

purpose as no other fouuclatiou could have been, and if the
reader will permit me to assume its truth for a moment, I
think I can show how Hobbes's whole political system, wliich
was what he had most at heart, flowed from it.

The first effect of all men being equal in powers, was that all
men were equal in rights ; for Hobbes, be it remembered, was
fully alive to the necessity of founding jurisprudence in nature,
and correctly held that rights are proportioned to powers.^

All men thus possessed an equal right to all things. There
was no reason, eitlier in fact or in law, why one man should
give way to another. The earth, and the fulness thereof, was
equally the inheritance of each, and each was as able as the
other to hold his own. God had made no distribution of His
gifts; but had tossed them, so to speak, into the arena, to be
scrambled for by combatants whom, in order that the fight
might be interminable, He liad endowed with equal powers.
Here was surely a sufficient foundation for the doctrine of
a state of iwtural war, and this, as is well known, formed the
second stage in Hobbes's political structure. That tlie attain-
ment of this second stage was the object with which Hobbes
enunciated the doctrine of equality is a fact, of the reality of
which a single glance at the beginning of tlie l.'Jtli chapter of
the Leviathan will convince us, for he there lays it down
expre.s.sly that " from equality proceeds diffidence — i.e., mutual
di.strust — and from diffidence, war." But the very equality
which rendered war inevitable and interminable, rendered its
prosecution ditrimcntul to every single individual. JJeason
and experience concurred in teaching that the only condition

' I^i\ jHiHH. ninl Jh- f'nr. /'<//., jKirt i. <'fii>. iv. sect. 14.

382 THE IDEA OF ABSOLUTE EQUALITY.

on wliicli each could take exclusive possession of the fraction
which fell to him when the sum of possessions was divided
by the sum of possessors, was that he should renounce his
claim to all the other fractions. In order to carry out this
arrangement, to enforce this " covenant," as Hobbes and his
followers were in the habit of calling it, government was
necessary. But for government, as he terribly put it, the
life of man would be "solitary, poor, nasty, brutish, .and short." ^
It was for the common interest, moreover, that this arrange-
ment should be carried out, not approximately, but absolutely,
— the government must be absolute — i.e., it must absorb the
whole powers of the whole community, leaving no individuals,
or society of individuals, in a condition to deal with it on better
terms than the rest. In this way Hobbes arrived at the con-
clusion that, whatever the form of government might be, it
must be absolute, — altogether uncontrolled in the exercise of
its powers — despotic. The Leviathan, or mortal God, must
share in the omnipotence of the immortal God whom he re-
presented on earth. Non est potestas super terram quw com-
paretur ei^ is the motto of his book, and he will not hear of a
'practical objection to this doctrine. His observations on the
relative value of experience and reasoning are strangely at
variance with the prevailing sentiment of our own day ; but
they are so characteristic of his vigorous way of tliinking that
I cannot resist the temptation of q^uoting a single sentence.
" The greatest objection," he says, " is that of the practice."

^ Cap. xiii. ^

- .Job xli. 33. Lot every one who would have a conception of the political as-
jiirations of the first ^'eat and onlj^ logical apostle of equality, read and consider
this tremendous chapter.

THE IDEA OF ABSOLUTE EQUALITY. 383

. . . "Howsoever, an argument from the practice of men that
have not sifted to the bottom, and with exact reason weighed
the causes and nature of commonwealths, and suffer daily the
miseries which proceed from the ignorance thereof, is invalid.
For though, in all places of the world, men should lay the founda-
tion of their houses on the sand, it could not thence be inferred
that so it ouoht to be. The skill of makinsj and maintaininsf
commonwealths consisteth in certain rules, as doth arithmetic
and geometry ; not as tennis-play, on practice only."

But though a despotic government be possible under any
one of the three simple forms of government enumerated by
the ancients — monarchy, aristocracy, or democracy — the doc-
trine of equality pointed clearly to the first. For if all the
radii of the circle being equal, each will reach the centre ;
wliy, all the citizens of the state, being equal, should not all
reach the throne ; and, conversely, the influences of the throne
penetrate to each ? ^ The interposition of an assembly, coun-
cil of responsible ministers, or the like, would, of course, have
prevented this result. Moreover, as there were no natural
differences amongst men, there could be no natural foundations
for the various orders of society. Subordination of any kind
was an evil, an injustice, to which free and equal citizens
submitted only to the extent to which self-interest rendered
it indispensabh; to eacli. The object of ])olitical science must
be U) reduce this evil to its niinimuni, by liaving the smallest
possible number of su])('riors. Tli(i ideal government of TToltbes,

' Dante hM a Mimilar nr|;uiiiciit in favour of IiIh *' Moium^li," who in ollur
rfH\ntciH (linV'TH from the L<;vi!ithan pn-tty iniuli hh Orimizd didi rs from Alirimaii,
and to whom tlic only objection h<<'iiih to !)•• tli<- imiiossiliilil}- of rmiliiiti him.
— I)e Afimarchid, lib. i. Hort. xiii.

384 THE IDEA OF ABSOLUTE EQUALITY.

consequently, was pure and absolute monarchy, and ahsohcte cen-
tralization. It was unquestionably tlie logical result of the
arbitrary assumption of equality, on which he based his sys-
tem ; and as this result is known to have been a foregone
conclusion with him, I am surprised that he did not press it
home even more unhesitatingly than he has done, and on
more absolute grounds, in the last instance. The only in-
consistent part of his reasoning is, that he rests his argu-
ment in favour of absolute monarchy, as opposed to absolute
aristocracy or democracy, on grounds of expediency, which,
when speaking of the absolute character of governments
generally, he had contemptuously repudiated. But it is
very interesting and important, as illustrating tlie logic of
facts, to observe that the experience of mankind has affirmed
the conclusion of the shrewd old cynic of Malmesbury
more emphatically than even he himself had ventured to
do, differing, as that conclusion does, from those of almost
all subsequent speculators who started from his premises.
If there be one fact that history teaches more consistently
and unequivocally than another it is this, that wherever an
attempt has been made to realize the doctrine of equality,
the result has been not democracy and local government,
but first anarchy — that is to say, Hobbes's state of war —
and then despotism and centralization. The crop which so
often has been rashly sown by the democrat has invariably
been reaped by the despot ; and surely the despot has some
claim to it, seeing that it was first introduced into the field
of modern politics, not by the speculative republicans of the
commonwealth, wliose theories were opposed to it, nor by the

THE IDEA OF ABSOLUTE EQUALITY. 385

levellers of the commonwealth, who had no theories at all,
and, like the communists of our own day, were merely crimi-
nals under another name, but by the grave and orderly tutor
of Charles II., and the theoretical vindicator of the divine
rioht of kinsjs !

{cT) Sioinoza.

In tracing the history of this doctrine, the next great name
we encounter is that of Spinoza. The mind of Spinoza was
a very much finer one than that of Hobbes, and his meta-
physical system, accordingly, is far subtler and more pro-
found. Hobbes could never, by any possibility, have been
the father of German pantheism. But in the matter with
which we are concerned at present, there is reason to believe
that Spinoza deceived both himself and his followers, which
cannot be alleged against Hobbes.

Spinoza, too, was a believer in the doctrine of natural
equality ; but he differed from Hobbes in supposing that, in
enunciating that belief, and insisting on its consequences,
1)8 was laying the foundation of free government. Though
not without reluctance and occasional recalcitration, Spinoza,
in so far as his political system was concerned, made the
whole philosophical journey, up to the last stage, in company
with Hobbes. Having accepted the doctrine of equality, lie
recognized in it, coupled with the facts of human de])i'avity,
the foundations of a state of natural war ; and the i(k;as of
ju.stice, projicrty, and the like, came thus to be dependent
on the mutual agreement and consequent government l)y
which alone thi.s war was terminated. l»ut Spinoza slnaiik
from recognizing, with Holjbes, the unlimited and incMpon-

2 u

386 THE IDEA OF ABSOLUTE EQUALITY.

sible power of tlie Leviatlian. " If the State be the source
of property," says M. Saisset, tlie latest and best editor of
Spinoza ; — '' if the State be the source of property, as it is
the source of justice ; if it makes the oneitm and the ttmm
as it makes the just and the unjust, the good and the evil,
where is the limit to its omnipotence, where is the guarantee
to the individual ? Must we proclaim the State to be in-
fallible, impeccable, and put into its hand, as Hobbes has
done, not only the fortune and the life of the citizens,
but their conscience, their thoughts, their soul in short ?
Spinoza made the greatest efforts to shake himself free
from these consequences." ^ ISTor did Spinoza's ingenuity
desert him at this pinch. He carried the discussion a step
backwards, and disposed of the justice by denying the
possibility of despotism. " Those," he says, " who believe
it to be possible for a single man to possess supreme right
in the State are in a strange error. For right is propor-
tioned to power. But the power of a single man is, and
must be, insufficient for such a weight." Here apparently
Spinoza forgot the source from which the powers of the
Leviathan are derived by Hobbes — viz., the consent of the
governed. Neither according to his system nor that of
Hobbes had these powers any foundation in nature, for by
nature no man was stronger or better than another. The
consent was, ex h/pothesi, a subversion of nature ; and if
that consent was absolute, there was no longer any diffi-
culty about the absolute character either of the powers or
the rights of the Leviathan. Apart from that consent there

i Vol. i. p. 209.

THE IDEA OF ABSOLUTE EQUALITY. 387

could, as I have said, be no government either dc fait or cle
droit, because both Hobbes and Spinoza had assumed that
all men were equally able and equally entitled to govern
themselves. All government, so to speak, was thus a wrong
which men inflicted on themselves, and Hobbes had con-
tended for monarchy only on the ground that it was the
form in which government was least ^vrong — the form, viz.,
in which it was possible to vindicate order at the smallest
sacrifice of equality. Spinoza, as I have said, declined to
accept this conclusion — with which, under the titles of
Democratic-Imperialism, CaBsarism, and the like, we have
recently been so familiar — " and his manner of solving the
problem," as M. Saisset has remarked, " did more honour
to his practical wisdom than to his philosophical sagacity."
xVccording to him, there are no durable governments but such
as are reasonable, and there are no reasonable governments
but such as are temperate. " We are surprised and charmed,"
adds M. Saisset, " to see this theorizer, who, by the rigid
character of liis mind, and the narrow logic of his system,
soemed devoted to the idea of a simple democratic-despotism
])rought back by his natural sagacity, and liis honest ob-
son-ation of facts, to comprehend and advocate a system
of mixed government.^ lUit a moment ago we liad didlculty
in distinguishing him from IFobljcs, and now we soem to
li.'ivc to do with Montesquieu." ^

' I r.ithftr think, with Mr II:illaiij, tli;it no itcr.sonal jticfercncf for any form of
j^fovemmcnt can l)o infcrrwl from the writin^H of Sjjinoza ; tliou^h, like nil tlicoricH
of equality, tlie loj^iral xhhwc, of hiw, unqtu-Htionahly, iH (l«H|>otiHni.— Hallani, vol.
iii. p. 437.

» S.iiwMt, vol. i. p. '2i:i.

388 THE IDEA OF ABSOLUTE EQUALITY.

((') Bousscait.

Tliougli sects of " levellers/' in tlie sense of mere rebels
against authority, and religious fanatics like the old Ana-
baptists of Mtinster, were rather conspicuous in the days of
Hobbes and Spinoza, both in Germany and England, neither
Hobbes nor Spinoza lived to see the doctrine of equality
brought to the test of experience by being actually adopted
as the fundamental principle of government. Nor does any
writer of decided mark appear to have undertaken the theo-
retical vindication of the principle of equality from the period
when these philosophers quitted the stage ^ till the appear-
ance of Eousseau's ^ celebrated Discours sur Vorigine et les
fondements de VindgaliU parmi les hommes (1755), and his
still more celebrated Contrat social (1762).

Montesquieu, it is true, treats of the subject of equality
from various points of view, and often speaks of it in a
strain that may well have paved the way for the senti-
ments which gained ascendancy in the next generation.^ But
how far he himself was from sharing those sentiments may
be gathered from the distinction which he draws between
the equality which he commended and the equality which

^ I regard them as contemporaries. Hobbes was forty-five when Spinoza was
born in 1633, but he outlived him by a couple of years, dying only in 1679, at
the great age of ninety-one. All his works, moreover, were written in advanced
life.

^ Rousseau may be regarded either from a social or a political point of view,
but the weapon which he employed for his double purpose was the same, and we
have to do with it here in itself rather than in its applications.

' E.g., " Dans I'etat de nature, les hommes naissent bien dans I'egalite ; mais
ils n'y S9auroient rester. La societe la leur fait pcrdre, and ils ne redeviennent
egaux que par les loix. " — Livre viii. chap, iii.

THE IDEA OF ABSOLUTE EQUALITY. 389

lie condemned. " Autant que le ciel est eloigne de la terre,
autant le veritable esprit d'egalite I'est-il de I'esprit d'egalite
extreme ; " and he explains that true equality consists, not
in everybody commanding and nobody obeying, but in those
who are equally citizens of the State commanding and obey-
ing each other. '•' Telle est la difference entre la democratie
reglee and celle qui ne Test pas ; que, dans la premiere, on
n'est egal que comme citoyen ; et que, dans Fautre, on est
encore egal comme magistrat, comme senateur, comme juge,
comme pere, comme mari, comme maitre."

" La place naturelle de la vertu est aupres de la liberte ;
mais elle ne se trouve pas plus aupres de la liberte extreme,
qu'aupres de la servitude." ^

There is here, indeed, no express enunciation of the
necessary relation between rights and powers ; but it is
plainly on that relation that Montesquieu believed that
liberty must be based, and it was the restoration of that
relation, when disturbed, which he regarded as the function
of positive law.

Iiou.sseau's system, liowever, as regards the basis on which
it rests, is the very reverse of those of Ilobbes and Spinoza.
Like tliem, it is true, lie liolds absolute equality to be tlie
true foundation of society. But to liim it is an object to be
attained, not a fact to Ijc recognized, and thus he builds his
hou.se, as it were, from tlir; roof downwards. TJousscmu n(;ver
ventures to assert that men ant ically (^qnal, (ivcn at l)irlb.-
He does not allege tliat they treated each other as e(iual,
otlierwise than in so far as thcii- c'lMality was r(!al, v.ww

' UnU. ' JUscours, ]>]*. W, 100.

390 THE IDEA OF ABSOLUTE EQUALITY.

in the so-called "state of nature." His wliole allegation,
in point of fact, is that " the difference between man and
man is less in the state of nature than in that of society,
and that natural inequality in the human race is augmented
by artificial inequality," ^ — in other words, that it increases
as civilization advances. From this statement, which I
believe to be quite correct, he deduces conclusions which
it does not seem to warrant in the slightest degree. Had
Hobbes been right in asserting that God had made men
equal, he would have been right in asserting that they were
entitled to vindicate their equality. The fact, had it been
a fact, would have supported the right ; and Hobbes did not
allege that the right ought to go beyond the fact ; on the
contrary, it was one of his favourite maxims, and one in
which Spinoza followed him, that notwithstanding the mys-
teries connected with the presence of powers of wrong as
well as of powers of right, rights, in the main, are measured
by powers. But Eousseau laid no such substratum of fact.
God had not made men equal, and the result of the exercise
of the powers which He had bestowed on them was, that they
had become unequal more and more. But Eousseau, like Mr
Mill, gave it as his unhesitating opinion that God was wrong ;
that they ought to have been equal to begin with ; or, at any
rate, that they ought to be made equal now as fast as possible.
Man must be decivilized. Though nature was not quite perfect,
Btousseau, unlike Mill, tliought her workmanship superior to
that of mankind, his own, of course, excepted. Neither
had he so bad an opinion of her as Hobbes. He did not

^ Dlscuurn, p. lUO.

THE IDEA OF ABSOLUTE EQUALITY. 391

believe in a natural state of war ; on the contrary, the
pictures which he drew of what he supposed to have been
man's original condition in the woods, taken together with
one of the most charming styles tliat ever was written,
were the main causes of the marvellous popularity of his
works. It is civilization and reason — which he strangely
considers to have nothing to do with nature — that are the
hetes noires of Rousseau. " Llioinme qui medite est un animal
d^prai'4. C'est la philosophic qui I'isole ; c'est par elle qu'il
dit en secret, a I'aspect d'un homme souffrant : peris, si tu
veux ; je suis en surete ; " and he proceeds to give a charm-
ing picture of a philosopher lying snugly in bed, whilst his
neighbour's throat is being cut under his window. " He has
only to put his fingers into his ears," he says, " and reason
with himself a little, in order to prevent the sentiments of
his nature from identifying him with the man who is being
assassinated."

It was liis declaration against nature as it is, in favour of
nature as he conceived that it ouglit to be (for lie says ex-
pressly in his preface that he doubts if it ever were so), which
gave its peculiarly dangerous cliaracter to the philosopliy of
Itousseau and his foHowers. If liis premises were not suffi-
cient to support rights of equality, they were fully sufficient
to support rights of revolution, both social and political.
When right was once divorced from fact, it was at everybody's
taking; there was no longer any external measure to it; there
wa.s no Leviathan to enforce it, if it had Ix-cn nicismcd ; and
80 "ought" meant what every man tliougbl it ought to mean.
As nothing could be proved, nothing could be denied — one

392 THE IDEA OF ABSOLUTE EQUALITY.

man's assertion was as good as another's, — more especially as
all men were equal, or onglit to be so. Accordingly, in
Rousseau's own case, one of tlie very first conclusions lie
arrived at was, that of all the discoveries of human reason,
of all the devices of civilization, the most fatal was the insti-
tution of property.^

(/) .Democrats of the Revolution.

When this stage was reached the theoretical deluge was
come ; and the French, unlike us, being a logical people, the
practical deluge proved to be at no great distance. We need
not pursue the subject further in this direction, nor waste our
time over the shallow platitudes of that school of atheists,
blasphemers, and libertines, — Diderot and his encylopsedists,
Helve tins, the Abbe Raynal, Volney, and otliers, with whom
unfortunately the really distinguished name of D'Alembert
must be associated, — who inherited the errors and the vices
without the genius of Eousseau. Assuming, with scarcely
even the affectation of proof, the doctrines which they advo-
cate with so much vehemence, the works of these men are
totally destitute of scientific value, and must long ago have
sunk into the oblivion which they deserve, had it not been
for the practical recognition which, contrary to the intention
of such men as Washington and Hamilton, this central prin-
ciple of disorder obtained in America in 177G,^ and its still
more reckless assertion in France in 1789.

^ Proudhon, however, is, I believe, entitled to the credit of the famous maxim
that " property is robbery " (la propriete c'est le vol).

2 The unf^uarded and unqualified assertion "that all men are created equal, "
with which the celebrated " Declaration of Independence " sets out, was due to
Jefferson, to whom, though Adams was associated with him in tlie work, it is now

THE IDEA OF ABSOLUTE EQUALITY. 393

No attempt to strengthen its theoretical groundwork has
been made by the many democrats and demagogues who
have since reiterated it in America and on the continent of
Europe ; ^ and, strangely enough, the only fresh al^gument in
its favour with which I am acquainted that merits notice, even
for its ingenuity, proceeds from one who is neither an Ameri-
can nor a Frenchman, neither a democrat nor a demagogue.

(g) Ahrens.

Ahrens, in strange inconsistency with his chapter on re-
presentation,^ and his assertion that " I'egalite ne doit etre
con(^ue que comme la liberte egalement garantie a tous," ^ has
an elaborate vindication of equality, not merely as a conse-
quence, but as the very basis of liberty — as the sine qicd non
of personal freedom. It is not a defence of equality before
the law in municipal affairs, nor of political or social equality

believed that the merit or demerit of the preparation of this famous document
mainly belongs. Jefferson, as a born democrat (I use the word in its European
and not in its American sense), was probably sincere in the statement ; but there
is no reason to believe that Washington, or Jay, or Hamilton was led astray by
it, and it is grievously to be deplored that they consented to its publication. If
Adams at first inadvertently assented to the adoption of such a priu(ai)le as the
basis of the con.stitution of his country, there can be no doubt that he was
thoroughly awakened from his delusion by the scenes which, shortly after, were
iia^.ted with a view to its vindication in France. — Works of John Adains, Second
Prr.Hiihnt of the United Slates^ Ijy his grandson, Charles Francis Adams, vol. i.
p. 462. Some additional information on this subject will be found in a note to
Mr Halch's work, Les Fran^ais en Amdriqiic, pp. 37, 38.

* Even M. Emile Acollas, whom I regard as one of the ablest writers of the
extreme i>olitir:al school, and who, if it were possible to separate his method from
the lis*; which he makes of it, wouM be entitled to rank high as a scientilic jurist,
docs little more in this matter than nc<;ept the teaching of liousseau. — V hh'e
'la Droit, 1871, p. 40.

* Cours ik, Droit Nnlurrl, Gth rd., p. l>\ 1.

* 5th ed., p. 43. In th«: 6th cd., \>. 43, it runs, " regnlitt- n'cst i\\\v la lib<ilr
.'ir.'ititif d'un<; miifiii'ii' i<l<'iiti>|tt(> ,'i tmiH." T dn mil h<-f ibnf ilu- Kcnse is altered.

394 THE IDEA OF ABSOLUTE EQUALJTY.

ill the sense in which that doctrine repudiates the existence
of castes in the East, or of exclusive classes, such as was the
noble class in France previous to the Eevolution. As a protest
against tlie impassability of any line either of social or politi-
cal demarcation, we have always to a certain extent adopted
the principle of equality in this country, where from the earliest
times any man who began life at the bottom was permitted to
end it at the top of the constitutional ladder, with the single
exception of its last step into the Eoyal Family (and this even,
with her characteristic liberality, her Majesty has recently
rendered accessible), provided he had ability and energy, and
bodily strength to climb so long and so high. But the sense
in which the principle is advocated by M. Ahrens appears to be
that of absolute social and political equality de jure, and in as
far as is humanly possible de facto, of free citizens of the State.
And the peculiarity of his position is, that he attempts to rest
this claim on assumptions in point of fact, though of a less
substantial kind than those which Hobbes thought necessary.

" The first quality," he says,-"- " which belongs to personal
humanity, whether we consider it in itself or in its relations
to other similar personalities, is eqiialiiyy .^

Equality, he goes on to say, has a triple source — iihysiccd,
psychologiccd, meta'pliysical.

1. In its physical relations equality is the result of the
unity of the human race. There is but one human nature,
and consequently there is the same nature in all men. The
different races are not different species of men as there are
different species in the animal kingdom. The animal kingdom

^ Cour6 dc Droit Naiurel, p. 229 et scq., 5tli cd.

THE IDEA OF ABSOLUTE EQUALITY. 395

is divided into genera and species, which form so many steps
on the ladder of ascending organization. In the animal king-
dom nature begins her organization with the most imx^erfect
beings, and runs through many stages before arriving at the
superior animals — those, that is to say, which exhibit the
functions of vitality in a more perfect form. Here it is not
equality, but difference of organization that we remark ; there
is a progression from the less perfect to the more perfect, and
all the steps of the series are constituted by beings in whom
are developed differently, but in a predominant manner, a par-
ticular organic system, at the expense of the other portions of
the organism. The whole animal kingdom is thus created on
the type of a progressive variety, or of an evolution, successive
and always preponderating, of one or other systems of organi-
zation. The human race, on the contrary, is formed on a type
of harmonious unity of all the systems and of all the functions
of organic existence. The human organization, the most per-
fect of all, is the synthesis, the r^sumd of the whole creation ;
it j)ossesses m mqiulihrio all the parts, all the organs, dissemi-
nated througli the different classes of the animal kingdom. In

onsequen^ of this type of unity and harmony, so visible in
the whole human form, man is functionally distinct from the
animal. The human race is not a continuation or transforma-
liuu from the animal kingdom ; it is organized on a su})erior
])rinciple and constitutes a king(h)m apart — tlic Iniman king-
<loiii. This unity (jf the liuman race is tlie pliysiological

•f.'ujon of equality.

-. In a psycliological point of view th(; same fundamental
Ci^uality of all men is observable ; and it is worthy of reniaik

39 C THE IDEA OF ABSOLUTE EQUALITY.

that the principle of harmony, which is the constituent ele-
ment in tlie physical organization, dominates equally all the
faculties and all the manifestations of mind. Man — the
superior unity of creation — can raise himself by his intelli-
gence to the ideas of the unity, the order, the harmony of
the world ; he can love them, take them as the models for
his actions, realize them in his life. " Ce caracUre de lliomme
se resume dans la raison."

To the same effect under the third head.

3. From the metaphysical point of view_, " equality is
founded on the grand principle that man is humanity " —
that is to say, that human nature, as a wJiole, exists in each
man.

Now the first thing that strikes one, on perusing this
argument, is that it confounds the characteristics of genus and
species. Supposing all that M. Alirens has said to be true,
physiologically, psychologically, and metaphysically, it is as
true, mutatis mutandis, of each species of the lower animals
as it is of the so-called genus man. The whole nature of the
whole animal kingdom, it is true, does not exist in any other
species as it exists in the higher species, just as all the steps
of the ladder will be under the feet only of him who is at the
top of the ladder. But the whole nature of the animal horse
exists in each horse, the whole nature of the animal dog in
each dog. Whether it be possible so to arrange the animal
kingdom as that each species, as we ascend, shall contain the
qualities of all the lower ones, and hold to them the relation
which man is said by M. Ahrens to hold to tlie whole, or
whether there be co-ordinate species which, in virtue of their

THE IDEA OF ABSOLUTE EQUALITY. 397

specific qualities, naturally exclude each other, are questions
of comparative physiology with which we need not occupy
ourselves here. Even granting to Ahrens the two positions
for which he contends — first, that man is a distinct genus ;
and, second, that the genus man is not, like the genus animal,
distinguishable into species — all that he is entitled to conclude
is, that the different races of men do not constitute an ascend-
ing scale, but that each possesses the qualities common to the
whole genus. But the same conclusion w^ould follow from
the ordinary hypothesis that man is not a genus by himself,
but a species of the genus animal ; for the same thing is true
of every species loithin itself, whether we suppose them to
be subordinated or co-ordinated to each other. The with-
drawal of man from the genus animal, therefore, whether
warranted or not in point of fact, seems to do nothing for the
argument.

But fundamental unity, whether of genus or of species, does
not exclude family, still less individual differences. Thougli
all horses are equally horses, all horses are not equal horses.
A turnspit is as much a dog as a mastiff, but he is not as much
of a dog. The difference between them, moreover, is not the
result of education, diet, climate, or any other external or
accidental cause. It is a natural difference, as much as the
difference between a dug and a cat. It is a difference wliich
nature — i.e., God — has imposed for reasons wliich, wliethcr
we apprehend them or not, are no douljt good aiid sufHcimit
rea.sons ; and, what is even more to tlui ])Uipose, it is a dilVcr-
ence which Ood will maintain, on tin; wliole, and th(i partial
ibliteration of which, to the extent 1(j which II (; pcrnjits it,

398 THE IDEA OF ABSOLUTE EQUALITY.

He appears to punish by the degradation of the more perfect
family type. Now it is to the family distinctions within the
same species that the distinction of races in the human species,
or genus — whichever we choose to call it — is supposed by
physiologists to correspond. Whether they exist to the same
extent, and are equally the result of nature, or whether they
are more attributable to circumstances within human con-
trol, are points on which it is not necessary that I should
offer an opinion. That they exist at present to as great an
extent as in any other species of animal, and that the history
of mankind has not hitherto afforded the slightest indication
of their ultimate obliteration, are the only points in the con-
troversy which, as yet, can be regarded as settled. But even
giving up the distinction of races altogether, which is more
than M. Ahrens contends for (for even he goes the length of
saying expressly that " the white race possesses faculties more
highly cidtivated than the black," ^ whilst he makes no attempt
to account for this cultivation on any other ground than that
of higher natural gifts), all that is important for the support
of the opposite conclusion to that at which he has arrived
remains. It is not on distinctions of race, whether delible or
indelible, that social and political inequality rests in European
society generally, and least of all within the same state.
Amongst persons of pure Caucasian blood no such distinctions
are admitted, or even contended for. Even family distinctions,
in the narrower sense of the family, are not placed on this
basis. If you were to take ten men from the benches of the
House of Lords, and ten men from the hulks, it would be a

' P. 230.

THE IDEA OF ABSOLUTE EQUALITY. 399

mere accident if you found the slightest difference between
them in point of race ; and it woukl be the same if you took
men promoted to the highest station on personal grounds —
the bench of bishops or of judges we shall say — and con-
trasted them with an equal number of crossing -sweepers.
The whole fabric of inequality, of social and official pre-emin-
ence and subordination, hereditary and acquired — w^hich is in
reality the whole fabric of society, in so far as society is an
organic body and not a mere inorganic and chaotic mob —
rests on individual differences and their consequences. Under
tlieir consequences, we include, of course, the transmission to
others of the results of individual power or weakness, energy
or indolence, virtue or vice, whether in the form of wealth
and poverty, knowledge and ignorance, or sound and unsound
moral training, and the like. Now Ahrens admits the exist-
ence of individual inequalities (Hobbes and Spinoza being, I
fancy, the only speculators who were bold enough to deny
them) ; Ijut, what I confess seems to me scarcely less strange
than if lie had denied them, he does not admit tliat they are
natural^ — the result of God's arrangements — but ascribes
them to human arrangements, interfering with God and nature,
which it is the mission of Christianity to rectify. Ilis posi-
tion is consequently the same as that of lioiisseau, with tlie
di(rerence that, for the present at least, he seems to liesitnte
jii ])rononncing social inequalities to be evils.

• Rinlcr ilonieH tlii« {Neuere JlcrJUsfilosoJir. in Eiujlnmly Tiihiiiffr.r Zritsrhrifl,
1873, i», 226), but I can attAch no oth<;r meaning to AhrenH'H wokIh. " \,rs iii-
^liU-M," he iiay«, " naiHHent, d'lin cAu'-, <lc laculturnfuio Ioh fiiculU'Hrcvoiventcly/
leu divers in<livi<liiH, nt, d'un nntn* rAt<% <lo rapiilirjilion <liir«'r('n1<'(|u'oii ItMiidumif
dann In vie sf»ri;il<' " <\nu\ ii. |» 'M , <•(! ISfrS'i ; riii<l mmli fo flu- s.iiih- rll'ccf.

400 THE IDEA OF ABSOLUTE EQUALITY.

We must remark, he says, that the equality which exists is
equality only as regards fundamental dispositions and faculties,
and that on that basis spring up inequalities deriving their
origin on the one side from the culture which the faculties
receive in different individuals, and on the other side from the
different applications which are made of them in social life —
" Tons les hommes sont egaux en tant qu'hommes, mais ils
sont inegaux, en tant qu'individus," — an indisputable pro-
position certainly ! But he proceeds thus : " Inequalities are
therefore inevitable ; for, on the one hand, the development
of each depends on his proper activity " (which one would
imagine depended in some degree on his natural gifts) ; " on
the other hand, the objects of human life are so vast that a
single man can only embrace one of them as his special
vocation if he would attain to anything like perfection.
Inequality is thus an effect of individual spontaneity and
liberty. Human nature is so rich that all the generations
and all the nations are insufficient to exhaust its development.
These inequalities are, moreover, useful ; for equality of culture
and application would cause the whole human race to die of
ennui and idiotisme" Strange that the special function of
Christianity should be to bring about so sad a result. One
would imagine from these last phrases that a basis broad
enough to support organic society was being laid after all,
however false might be M. Ahrens's reading of nature.^ But

1 Ahrens grasps at everything that has the slightest resemblance to an argu-
ment in favour of this doctrine, with the desperation of a man supporting a mono-
mania. " In the organization of the human body all the parts stand to each
other in a conditional relation, and all are equally important ; in like manner in
a good social organism," &c. — (6th ed., vol, ii. p. 40.) One would think tliat it

THE IDEA OF ABSOLUTE EQUALITY. 401

the very next sentence undeceives us : " All the objects which
mankind can pursue are equally important and necessary ;
because they are all human objects, and hence the social
eqitality of all men — that is to say, the equal dignity of the
different occupations or professions of men living in society." -^
One can scarcely believe one's eyes when one reads such
words as these, knowing by whom they were written and how
little they are in accordance with the general strain of his
teaching. But after thus letting in the w^aters of anarchy it
was needless to deplore their ravages, as M. Ahrens does in
his section on Democracy in the 6 th edition.^ To pursue
the discussion through the many pages in wdiich these views
are expanded and illustrated, and to trace the manner in
which the argument is continually shifted from the assumption
of individual equality to the assumption of equality of race
— what is denied in one sentence being conceded in the next
— would be an unwarrantable encroachment on the reader's
time and patience. Enough has been said to indicate the
character of a doctrine which, if logically carried out, would,
by tlie tacit acknowledgment even of its author, tend to
justify those schemes of socialism and communism which have
since borne such fearful fruits, and which he ventures to con-
demn only as " exaggerations ; " ^ and tu warrant me in taking
some pains to prove that tlie opposite doctrine, on which the
whole of our .social and political structun; practically re])oses,
rests upon a sound theoretical Ijasis.

might have oocurrod to him that a man's licad could scarcely bo dispoiisctl wilh,
but that he might get on very fairly without a fin;^'<;r or a too.

» P. 23L ' V. 392. •« r. 210.

2 C

402 OF THE RELATION OF

CHAPTEK IV.

OF THE RELATION OF EQUALITY TO LIBERTY CONTINUED.

In lohat sense is equality involved in the idea of liberty ?

The idea of liberty involves the idea of equality in one sense
only — that ivhich is popularly called " equality before the law!'

Before stating what is certainly the far older, and what
I believe to be the far sounder opinion on the subject of
equality, it may be well to recall the position in which the
doctrines which we ourselves have evolved place us with
reference to the theories which we have reviewed.

The view of human nature in point of fact — the diagnosis,
so to speak — on which we have founded our belief in the
rectitude of the existing organization of society in the main,
and of the distribution of the gifts of Providence which
actually takes place amongst mankind, is the very reverse of
that on which Hobbes rested his political system. We have
readily admitted the adequacy of Hobbes's premises to support
his conclusions. If it were true, as he alleges, that " all
men among themselves are by nature equal ; the inequality
we now discern hath its spring from the civil law," ^ and that
it is " a law of nature that every man acknowledge the other
for his equal," ^ I should be far from disputing Hobbes's second
proposition that it is " another law of nature " that men allow
cequalia cequalibus, or from denying the legitimacy of his infer-

^ Lev., voL ii. p. 7, Molesworth's cd.
2 De Corpore Pol., vol. iv. p. 103.

EQUALITY TO LIBERTY. 403

ence that the recognition of social and political equality of
the most absolute kind would have been inseparable from the
vindication of justice. But Hobbes's system, and Spinoza's,
in so far as he followed Hobbes, were the only ones in favour
of which I felt compelled to acknowledge the merit even of
logical consistency. In shrinking from the bold assumption
with which Hobbes started, his followers rendered their own
foundations insecure; and their arguments became more or
less sound just in proportion to the extent to which they
reverted to that assumption. Between all these systems then,
and that which I have maintained, the question at issue, like
so many so-called questions of principle, really resolves itself,
in the last instance, into a question of fact ; for, if we admit
the adequacy of Hobbes's premises to support his conclusions,
I think we may assume that Hobbes himself would not have
disputed the sufficiency of premises the very opposite to sup-
port conclusions the very reverse. His recognition of the

niMlia cequalibus would, in that case, have carried him back
the Aio5 /cpiW of Plato and to the Aristotelian doctrine,

ach, as we shall presently see, was known to the scholastic

jurists as the proportio. For the determination of this fact,

of all other facts of our nature, 1 must refer the reader to

• tribunal of subjective and objective experience. If, like
Hobbes, he shall receive from consciousness, external observa-

11, and history, as the three great exponents of nature, a

rdict to the eflect tliat all men are born and continue to
equal in fact, then, accepting the premises, he will also

';ept the conclusion of Holjl^es's system, and recognize the

' ial and political equality of all men as an ubjc-ct wjjicli

404 OF THE RELATION OF

tlie science of jurisprudence is bound to seek ; and tliis
although it should appear to him, as it appeared to Hobbes,
that in order to attain it, even approximately, we must be
contented to sacrifice liberty altogether, and resort to the
desperate expedients of absolute despotism and complete cen-
tralization. But if, on the other hand, the verdict which he
receives should coincide with that which has been vouchsafed
to me ; if he should see it, or feel it, to be beyond all rational
question that, for reasons which may possibly be hidden from
us for ever, but which we are not the less bound to believe
are in accordance with the scheme of absolute justice, God
has distributed His gifts to His creatures very unequally, then
this distribution being, as I have said, that which it is the
object of the science of jurisprudence to carry into its minutest
consequences, liberty will be saved— the fullest and freest
exercise of his faculties, such as they are, will have been
secured to every man — but the attainment of equality, in the
absolute sense, will be finally and for ever excluded from the
objects of jurisprudence. On the latter hypothesis, a legisla-
tive enactment which should have equality in this sense for
its object would not possess the characteristics which I have
pointed out as inseparable even from positive law, — it would
be simply a legislative miscarriage.

But what then do we mean by " equality before the law " ?

for that is an object which jurisprudence surely does not

repudiate, which is inseparable from liberty, and which, appar-
ently, involves the recognition of the most perfect equality.

The distinction between "equality before the law," and
equality in the sense of the recognition of a right existing in

EQUALITY TO LIBEKTY. 405

individuals to equal shares of God's gifts, or their conse-
quences, admits of a very simple explanation. The method
pursued by the science of jurisprudence in order to discover
the truths ^'hich it seeks, like that pursued by every other
science, necessarily embraces two functions — the one ana-
lytical, the other synthetical.-^

{a) Analytic justice.

Equality before the law is neither more nor less than ana-
lytic justice. As such, it demands that legislative or judicial
investigations shall be conducted with the same impartiality
towards the subjects with which they deal, and towards the
results which they may yield, as all other investigations that
have truth for their object. When the legislator who is about
to enact, or the judge who is about to apply a positive law,
proceeds to inquire into the facts of the case with which he
has to deal, the value of the claimants, or the suitors, as
individuals, are considerations just as irrelevant to him as
would be the market price of lead or silver to the chemist
who was about to inquire into the presence or the absence of
lef'.d or silver, or the proportions in whicli they existed, in a
piece of ore. The individuals, or classes, or nations, whose
rights and relations are under investigation, are entitled at
the hands of tlie jurist, of tlie arbiter, or, ii' no litigation has
arisen, of each other, to the same " equality " which the
chemist accords to the substances wliich lie puts into liis
retorta and his crucibles. If tliis equality be denied in either

* *' Both are abw>ItiU-ly necessary to ithiloHophy, and })oth aro, in pJiilosopliy,
M much [>arts of the Maine method a«, in tlie uninial hody, inspiration and ex-
I»iration are of tlie Kame vitiil functions." — Sir W. li.niiilton'H JjrLurcsou Mela-
ph'jsics, vol, i. i», \>^J.

406 OF THE RELATION OF

case, tlie result of the inquiry will be vitiated, — the parties
will be ^T.'onged. The chemist will produce a false report ;
the legislator will enact a law which does not fulfil the condi-
tions of true positive law ; the judge or the arbiter will pro-
nounce a false judgment or an unfair award. Viewed in its
analytical function, then, as an inquiry into what lawyers call
the "merits," justice — and liberty, as the object of justice — do
unquestionably demand absolute equality ; and this it is, and
this only, that is meant by " equality before the law." That
all men are equal, to this extent, is the first maxim of the
science of jurisprudence. Jew and Gentile, white skin and
black skin, the wise man and the fool, the slave and his
master, the prosecutor and the criminal, all stand on the
same level.

Nor does this species of equality stop even with the human
race. When the Society for the Suppression of Cruelty to
Animals brings a question between a horse and a man before
the judge, it is his duty to place the horse and the man on a
footing of absolute equality ; ^ and we have seen that some-
thing analogous takes place when a question arises between
the exercise of mere human caprice and the interests even of
a plant or a tree. " The last rose of summer " is entitled to
" equality before the law."

(b) Synthetic justice.

But the absolute equality which governs the inquiry does

^ On this ground, as well as on the ground of its greater scientific value,
if we must have vivisection, its proper subjects seem to be human criminals.
In their case, of course, as in the case of the lower animals, all needless suffering
ought to be avoided, and the apportionment of needful suffering amongst indi-
vidual criminals ought to be relative to the atrocity of their crimes.

EQUALITY TO LIBERTY, • 407

not necessarily belong to the result, for in that case the result
would be already determined. If we recur to the physical
illustration of which we have just made use, it will be at
once apparent that the claim for equality, in the sense of
equal shares of whatever may be the object in controversy —
wages or labour, power, or honour, or responsibility, or punish-
ment— is a begging of the question which it belongs to ana-
lytic justice to determine, or a repudiation of the result at
which analytic justice has arrived. For what should we
think of telling a chemist, beforehand, what the result of his
analysis must be — that it must result in the discovery of
equal quantities, or equal values, of silver and of lead — and
that we will accept it and make use of it on no other condi-
tion ? Would he not tell us, in return, that the result was
independent both of him and of us, but that, if we would
wait for it patiently, he would declare it loyally ; that if
nature herself had established the equality on which our
heart was set, he would not fail to proclaim it ; but that, on
the contrary, if, for reasons with wliich he liad nothing to
do, nature liad arranged it otherwise, in that case equally he
would toll us the truth. Now, precisely in the same manner,
it is neither equality jior inequality, ])ut fact, which the
analytic jurist being bound to discover and proclaim, the syn-
thetic jurist is bound to accept, and to vindicate deductively.
Whether the relation, in point of fact, be that of equality, of
superiority, or of inferiority, the just award, the true result
pi the joint action of the two inseparable elements of all
scientific method, will be proportioned to tliat relation. hi
other words, the duty of the practical jurist, whether legis-

408 OF THE RELATION OF

lator or judge, will be to see, not that all men are equal, but
that those who are equal shall have equal shares, and that
those who are unequal shall have unequal shares proportioned
to their inequality} His function will be to assign to the
inccqualcs the incequalia which the previous investigation, the
analysis, has shown to be theirs.

As regards the relation between equality and liberty, then,
the conclusion at which we arrive is this : The principle of
analytic justice is equality — the principle of synthetic justice
is proportion, the terms of which are determined by the previ-
ous analysis. When these two principles are vindicated, the
sphere of jurisprudence is exhausted, and liberty, as its object,
is realized.

There can be no doubt that the political teaching of Socrates
embraced the distinction between what I have here called
analytic and synthetic justice. Plato states it quite clearly,
as will be seen from the subjoined passage from the Laws,
which I am now able to give in Dr Jowett's classical trans-
lation ; 2 and Aristotle worked it out, in greater detail, first in
the Ethics and then in the Politics,

^ T<^ fxkv yap /xel^oui ttAcico, t^ 5' iXdrTovi (rixiKp6Tcpa vefiei, K.r.\. — Plato, Laws,
Ivi. c. V, nr] '[(Toi ovK X(Ta €^ovai, et vice versa. — Aristot. Eth. Nic., v. c, iii. et seq.

2 The old saying that ** equality makes friendship," is witty and also true ;
but there is obscurity and confusion as to what sort of equality is meant. For
there are two equalities which are called by the same name, but aie in reality in
many ways almost the opposite of one another ; one of them may be introduced
without difficulty, by any state or any legislator in the distribution of honours :
this is the rule of measure, weight, and number, which regulates and apportions
them. But there is another equality, of a better and higher kind, which is not
at once recognized. This is the judgment of Zeus, which has little place in
human things ; that little, however, is the source of the greatest good to indi-
viduals and states. For it gives to the greater more, and to the inferior less,

EQUALITY TO LIBERTY. 409

But the learning and ingenuity of two thousand years,
culminating in that of modern Germany, appears to have
failed to evolve a consistent and exhaustive theory of justice
from Aristotle's discussions, in the form in which they have
come down to us.^ And yet all men recur to them for in-
struction, and recur to them not in vain, because they proclaim
the great principle that all applied justice is necessarily pro-
portional justice, and that the equality which it measures out
is not absolute equality, but equality which shall bear an
absolutely accurate relation to the facts of nature, and to their
consequences. In Eome, during the earlier and better portion
of her history, the distinction secured practical if not theo-
retical recognition ; and the best minds of the middle ages
preserved a perfectly clear conception of the " proportioj'

always and in proportion to the nature of each ; and, above all, greater honour
to the greater virtue, and to the less less ; and to either in proportion to their
respective measure of virtue and education. And this is justice, and is ever the
true principle of politics, at which we ought to aim, and according to this rule
onler the new city which we are founding, and any other city which may bo
hereafter founded.

' I u.scd to think that this would be possible l)y identifying diorthotic justice
(d'lKaiov iiop6wTtK6v) with what I have here called analytic, and dianciiu'tic justice
'iiKaiov Siav(nririK6v) with synthetic justice, and that order might thus be brought
out of the confuMion into which the 5th Rook of the Nicoin. Ethics confessedly
ha« fallen. On a rc-exaniination of the text, with the light which Professor
Trendelenburg's leanied dissertations {Zur Aruilotcliarhni Eihik. Ilhsloriaclic
Ikilrdge zur Philonophic, vol. iii. p. 399, Berlin 1867) throw on it, I am con-
vinced that no such identification is warranted. Aristotle unquestionably in-
t«'n«led both oh subdivihions of applied, or synthetic justice ; and in this sense,
■AH I have explained above, I cannot subscribe to tlie absolute distinction by which
the one in ronfined to public, and the oIImt to private; law, wliirh I'lofcssor
Trendelenburg nppcorH to accept. I think they involve each olh< r, mik! th.if,
l>oth mUMt conic into play in every department of jurisprudence l<'or the

' ' •!< distinction l)otween rommutativc and distributive justice, sec Thoniii.s
, Su7n. SfC. Srf.^ f|UMH. Ixi. ait. 1.

410 OF THE RELATION OF

" Jus," says Dante, " est realis et personalis liominis ad
liomincm proportio, qute servata servat societatem, et cor-
riipta corrumpit ; " ^ and Thomas Aquinas, " Materia justiti?e
est exterior operatio, secundum quod ipsa operatio vel res
cujus est usus, debitam proportionem liabet ad alteram per-
sonam ; et ideo medium justitiae consistit in quadam pro-
portionis ?equalitate rei exterioris ad personam exteriorem." ^
And still more definitely, in speaking of distributive justice,
he says, " Et ideo in justitia distributiva non accipitur medium
secundum ?equalitatem rei ad rem, sed secundum proportionem
rerum ad personas, ut scilicet una persona excedit aliam, ita
res quae datur uni personse, excedat rem quae datur alii."
And he applies it thus, " Tanto plus alicui de bonis communi-
bus datur, quanto ilia persona niajorem liabet principalitatem
in communitate." ^

In like manner the principle of proportion appears to have
been recognized by the great lights of our own jurisprudence.
"Justice," says Lord Stair, in a little book which is gener-
ally ascribed to him, " implies proportion. . . . Though all
the damned be eternally punished, yet not equally ; because
there is not equal strength to bear, and more atrocious guilt
to punish, — it shall be more tolerable for Sodom and Gomor-
rah tlum for Capernaum." — Divine Perfection, pp. 181, 182.
If there is to be proportion in intensity, why not in duration ?
One w^ould fancy that here Lord Stair's reason could scarcely
have failed to conflict rather rudely with his orthodoxy.

^ De Monarchid, lib. ii. sect. 5.

- Sec. Sec., qu?es. Iviii. art. 10. Rodcr's A^aturrccJd, vol. i. p. 115.

Sec. Sec, quais. Ixi. art. 2.

EQUALITY TO LIBERTY. 411

It would be interesting to inquire, more carefully than we
have clone, when the vulgar conception of equality, which
since the French Eevolution has made such insane havoc in
European politics and economics, first assumed the aspect of a
speculative doctrine. It is certainly older than Hobbes, and
is, as I have said,^ traceable as far back, at any rate, as the
attempts of the Jesuits to found a theocracy by levelling
down all secular distinctions before the Church. Whether or
not we can recognize it in the demands of the leaders of
Wat Tyler's insurrection in 1381, of which I shall speak
by-and-by, might be questioned ; and I doubt whether the
theories even of the extremest republicans of the Common-
wealth embraced it. But there is, as I have said, no trace
of it in the chief of the schoolmen, though the times in which
lie lived — those of Simon de Montfort — were such as might
naturally have raised such questions ; and whencesoever it
may have come, it most assuredly did not come from Aris-
totle, for he unmistakably extends the proportio (to Kar a^tai'
laov) not only to justice in every form in which it is known
to jurisprudence, but to justice in forms in which jurispru-
dence can scarcely approach it.^ " Even friendships," he
.^ays, " which appear unequal, are C(|ualized and saved by
proportion (to at'oAoyoi'), just as tanners, shoemakers, and
weavers exchange their commodities in ])roportion to their
value." 3

This great principle of proportion, before which the spirits
of misrule tremble as if it were holy water, being once
secured, it i.s doubtful whether much is gained for science by

' y/;i//;, \i. 378. ' Ticuclclcubury, lUaujt., 108. ' Wtc. J'Jl/i., ix. 1.

412 OF TPIE RELATION OF

dividing applied justice under different heads, as Aristotle
did, or as Eudemus did for him. Such absolute distinctions
as those which would confine dianemetic or distributive jus-
tice to public, and diorthotic or corrective justice to private
affairs and the righting of wrongs, whether criminally or
civilly, cannot be maintained.^ If we take the familiar in-
stance of the distribution of a bankrupt estate, we shall see
distributive justice acting as unmistakably as when the State
distributes its honours, rewards, and responsibilities, and with
more mathematical precision. Suppose one man has invested
£50, and another has invested £500, in the concern, and that
the dividend is Is. per £. The one man will get £2, 10s.,
whilst the other gets £25. The proportion is preserved, and
the whole proceeding is dianemetic, though it takes place
within the sphere of private law. Then, as regards the other,
the diortliotic principle, which is said to be confined to private
law, and to act by simple addition and subtraction. Is it not
obvious that it may be called into action in public, just as the
dianemetic principle may be called into action in private law,
and that it may there act in the same manner ? For suppose
the State hitherto has wronged a particular class of persons,
we shall say, by giving them less political power than corre-
sponded to their real weight or value in the State, will not
the remedy in this case be effected diorthotically (correctively)
by giving to them, and in giving to them by taking away
from other classes, such an amount of power as shall restore
the true political balance (the fwportio) between them ? And
is not this remedy just the dianemetic result, the distributive

^ Aiitc^ p. 109, note. Lord SUir gives it universal application, ut sup., 18i.

EQUALITY TO LIBERTY. 413

justice, which in this case is worked out in the form of correc-
tive justice ? These two principles, then, resolve themselves
into each other, or, at most, they are two different forms of
synthetic justice, the application of the one or of the other of
which depends on the circumstances of the case, and not on
the department of law — public or private, national or inter-
national— in which it is called into play. The same remarks
apply to retributive justice (to avTiTreirovOo^s, retaliatio, jits tali-
onis), the action of which Aristotle is also careful to limit to
the Kar avaXoyiav koI /xt] kut laoTrjra} and I think to every other
kind of justice — if other kinds there be — in whatever rela-
tions they may be called into play.

If the distinction between diorthotic and dianemetic justice,
in the form in which it is usually stated, be Aristotle's at all,
which may well be doubted, it is perhaps to be accounted for
on the ground that, being a politician and not a lawyer, he
felt the necessity of the limitation which the proportional
element seemed to impose more forcibly in public than in
private law. That, unlike the modern world, Aristotle was
deeply impressed witli the necessity of excluding absolute
equality from the spliere of politics cannot be doubted. On
this subject his dicta are consistent and unequivocal. But his
position, even in this respect, would liave been strengtliened,
and his object more effectually attained, had he, or his inter-
preter, perceived that equality is the ])rinciple of analytic
justice exclusively, that there it is absolute, and docs nut
come into action in synthetic justice at all, in any depart-
ment, either public or private, otherwise; than accidentally —
• Trendelenburg, utsup., ]k JO J.

414 OF THE RELATION OF EQUALITY TO LIBERTY.

i.e., as a result of the antecedent analysis. From tins source
— from nature as interpreted by science — it is true that its
appearance on the political horizon remains formally possible.
If nature should repent her of what so many seem to regard
as her previous wrongs, and for the future should send men
into the world equally endowed ; if further, by their own
efforts, by mutual aid, or any other means, they should de-
velop themselves equally, and keep abreast of each other —
if all workmen, for example, should possess the same skill
and industry, and produce the same quantity and quality
of work, then the economist and the politician, like the
judge, must take them as he finds them, and recognize their
equality. Till these occurrences take place, absolute equality
and liberty are irreconcilable conceptions, — aspirations which
mutually exclude each other, — and the apparent reconciliation
of which, even for a time, can be purchased only at the sacri-
fice of justice.

CHAPTER V.

OF THE LIMITS WITHIN WHICH AGGRESSION IS A NATURAL RIGHT.

(a) Aggression is a natural rigid, the extent of wliich is
measured hy the 'power which God has bestowed on the aggressor,
or permitted him to develop. Up to this point, the right of
conquest, individual, social, political, and ethnical, is involved in
the idea of liberty, and included in the objects of jurisprudence.

LIMITS OF AGGRESSION AS A NATURAL RIGHT. 415

To those who have accepted our doctrine with reference to
the sources of jurisprudence, and the consequent rectitude of
the de facto principle, when seen at once from the subjective
and objective side, the soundness of this proposition, startling
as in its practical aspect it at first sight appears, in so far as
logic is concerned, will be even more obvious than that for
which we have just been contending. If God be the source
of life, and life be the source of rights, life in every form
warrants the amount of aggression that is requisite for its
preservation and development, and the higher the life the
greater the amount of aggression which it warrants.-^ Man
is the aggressive animal, par excellence ; and the most prolific,
the most highly endowed and developed men, and races of
men, are the most aggressive. The process is one which we
contemplate with approval every day, in the individual, the
family, the state, the race ; — the able, the active, the industri-
ous, the frugal, the instructed, the earnest, supplant the weak,
the indolent, the idle, the ignorant, the frivolous. The rule
is one to which there are no real and ultimate exceptions at
all. But there are many hidden sources both of power and
weakness, and there are many successes and failures which
are only apparent ; and it is by omitting to notice the former,
and by dwelling on the latter — Ijy watching the wave wliilst
we fail to observe the tide — that, to our eyes, it seems as if
** the race were not to the swift, nor the battle to tlie strong."
The region in the liistory of human affairs which we assign to
chance is merely a territory of mystery to wliich tlie under-
standing does not penetrate. It is neither lawless, nor governed

» Ante, p. 170.

416 OF THE LIMITS WITHIN WPIICH

by any other laws tlian those with which we are familiar.
Providcntia, fatum, natura, casus, fortitna, sunt ejusdem Dei
varia nomina} But there are directions in which the under-
standing is led astray by partial or intermittent light. In a
calculation of chances otherwise accurate, the moral element
in the combatants or their leaders, or the influences of the
good and the bad cause, escape our observation, or count for
less than their due, and we are startled by what seem to
be results without causes. And yet there is nothing more
exceptional in the case of a handful of conquerors overrun-
ning a corrupted and degraded people than when nerve con-
quers muscle, or the invalid survives the illness of which the
strong man dies. Again, the exertion of a single faculty, or
a spasmodic effort of the system, often produces immediate
success, just as the gratification of a single passion produces
immediate pleasure. But the partial character of the success,
and the ephemeral nature of the pleasure, taken along with
the cost at which they are purchased, deprive them of all
absolute reality. They are comparable only to the joys of
intoxication, or the triumphs of the lunatic or the fever-
patient over his keeper or his nurse.^

Moreover, the limits of the right of aggression are deter-

1 Seneca, De Beneficiis, iv. 8 ; Culverwell, p. 38. Sec also Hume, Essay II.
" Liberty and Necessity ; " and Caldcrwood, p. 176,

'^ To this category the conq^uests of the first Napoleon, and the consequent
intoxication of his countrymen, emphatically belonged. They were no more
instances of real success than the hallucinations of insanity are proofs of fact.
The same may be said of the conquest of Alsace by Louis XIV., and would no
doubt have come true of that of Rhenish Prussia and Bavaria, had France proved
successful in the late war. The inroads of the so-called barbarians on the effete
Roman Empire, on tlie other hand, were true, and have been enduring conquests ;

AGGRESSION IS A NATURAL RIGHT. 417

mined for us by the same principles by which its reality is
guaranteed ; for we have seen that, from the necessary inter-
dependence of rights and duties, there can be no aggression
wliich is either rightful or real on the part of the aggressor,
by which the object of the aggression is not an equal gainer.
All aggression which is really and ultimately destructive
either of life or liberty on the whole, is excluded from the
objects of jurisprudence by the de facto principle, on the
ground that it is self - contradictory and suicidal, — that it
counteracts its professed action, — that it ceases, in short, to
be what it calls itself. You thus perceive once more that if
mifijht be r'vAit, it is not less true that ri^jht is miojht : and
for this simple reason tliat, in the last analysis, they are
necessarily coincident. It is man's weakness and wickedness
alone which puts asunder, for a time, what in God is ulti-
mately united; for "there is no power but of God."^ When
applied to international relations, these principles suggest the
conditions of tlie exercise of the riglit of national and ethnical
development and expansion. They reconcile us to the course
of the world's history, as they do to that of our country, our
county, our parish, our profession, our family, or to our own.
That the Anglo-Saxon race should supplant the Eed Indian
in America, or the Celtic in Scotland, in Ireland, and in Wales,
are occurrences which, if brought about by natural means,
are as fully in accordance with natural law, — as much in tlie

wherca» the corKpuiHUj of the Turks wore the result of temporary (lisscnsionH
between the ChriMtinn races, in wliosu lianda the real i»o\ver always was, and are
DOW Wing f^radually rcvcnied.
' Rom. xiii. 1.

2 i>

418 OF THE LIMITS WITHIN WHICH

interests of the supplanted, — as that B, who had made a
fortune, should purchase an estate for a price which, otherwise
invested, will yield more than its rental, from A, who has lost
a fortune and is in want of a living ; or that D should be
appointed to an office for which C has become incapable, and
his retention of which could only cover him with disgrace.
Mr Froude has, with great truth as it seems to me, traced the
woes of the Irish mainly to the fact of their refusing to accept
a conquest the reality of which they were unable to disprove,
and attempting by murder and iire-raising to supply the place
of legitimate warfare.^

^ The English in Ireland in the Eighteenth Century. — " The difficulties of Ireland
are sometimes dismissed as an insoluble problem ; but it is at the least worth
while to acquaint ourselves thoroughly with the historical circumstances out of
which those difficulties have grown. The examination of this history seems to
load irresistibly to the conclusion that the wretchedness of Ireland is the result
of a fallacy which has taken fatal hold of a large section of the Irish people.
That fallacy lies in the notion of an absolute right, inhering in each people, to
local and independent self-government. In the author's belief, no such absolute
right exists. The title to this privilege must be contingent on the power of a
nation to defend itself, and the power of a nation to defend itself must depend
generally on the ability of a nation to govern itself, and to present a steady and
compact front to all assailants from without. In short, the right to resist depends'
on the power of open resistance ; and there are certain courses to which a nation
is not justified in resorting when that power fails them."

"This truth is brought out with singular clearness by a comparison of the his-
tory of Ireland with that of Wales and Scotland. The premature violence of
Edward I. hardened Scotland irrecoverably into a separate nationality, and thus
the union, when it came about at last, was effected on equal terms. The Welsh
resisted with desperate bravery until resistance became obviously hopeless ; and
then, loyally and wisely accepting their fate, they were received on equal terms
as joint inheritors of a magnificent empire. The people of Ireland might have
resisted like Scotland, or, failing this, might, like the Welsh, have retained their
language, their customs, and religion. They chose to adopt a third course.
Leaving always an unguarded side open to attack from without, their contending
factions never failed to supply men ready to do the enemy's work for the further-

AGGRESSION IS A NATURAL RIGHT. 419

But what are natural means ? Does the natural right of
conquest justify the use of force ? and if so, when ? and to
what extent ?

(h) An end tlmt is just, justifies the means requisite for its
attainment ; the right of aggression^ consequently, justifies the
application of force, and involves the right of war, ivJien, and to
the content to ivhich, force or war is necessary for its vindication.

An art is more or less perfect in proportion not only to
the completeness with which it accomplishes its object, hut
to the smallness of the means which it employs, the friction
which it causes, or the force which it expends. The law of
parsimony has practical as well as theoretical validity. If
aggression then be, as we have seen, one of the objects of
natural law, and if force be indispensable to the attainment
of that object, the use of force to this extent is justified by
natural law, and its application falls within tlie sphere of
jurisprudence as an art ; but the perfection of this art will be
greater or less in proportion to tlie smallness of the amount of
force with which it realizes just and necessary aggression.
Neither in this nor in any other respect is there the slightest
difference in the principles which govern public and private
relations. In Ijoth, the legitimate amount of aggression is
that whicli corresponds to the real power of tlie aggressor, and
the legitimate amount of energy or force is that absolutely
rciiuisite for its realization. Here, as everywhere, tlie end

•nee of their private wlvantago ; and wluni tlic victory of the cnomy was thus
inffiircd, the alternative of chfcrful BubiniHHion, rewarded ])y ((luiil imrtncrHliip,
WM rejected for dif(eont«;nt, and for a war of asHasHi nation HyHteniati/ed l>y secret
tribnnalM." It i>i precisely on the Harno jtriii' ipN- tlmt, in priviitf life, men nre
ratitled to fi;dit hut not to qniirnl.

420 OF THE LIMITS WITHIN WHICH

justifies the means only to the extent to which the value of
the end exceeds the value of the means.

If states \V^ere reasonable beings, living under a rational
system of international law, the richer and more populous
country would flow over gently into the other by voluntary
arrangement, and this to tlieir mutual benefit. The fact of
conquest, like the fact of purchase, would, if necessary, be
ascertained judicially, and its recognition would be enforced
executively. Such a process in minimis, may sometimes be
seen where both states are members of the same confederation,
and where no international jealousies hinder this natural pro-
cess of adjustment, as, for example, in the Swiss cantons, or
in our own counties ; and this fact, if it stood alone, would
furnish a powerful argument in favour either of very small
states or of universal empire, or of the two in conjunction.
But whilst men continue to be men, the objections to such
schemes are obvious, even if their realization were not im-
possible ; and as the great independent nations, and separate
races of mankind, have not yet become reasonable entities, or
developed a rational system of international adjustment, it'
is plain that natural rights of aggression, when they arise
in point of fact, will in general have to seek realization by
means of force. N"or is it less obvious that if the question
be between the non-realization of this right, and its realiza-
tion by tlie application of force, even in the terrible form of
war, the latter may often be the preferable alternative ; for
the former, even if it were possible, which it is not, would
involve the abandonment of the end, whereas the latter
secures its attainment, thougli at a terrible, and perliaps need-

AGGEESSION IS A NATURAL RIGHT. 421

less expenditure of means. Let us strive then for tlie
abolition of war by the development of a self- vindicating
system of international jurisprudence; but let us not waste
our time and our energies in futile efforts for its direct
abolition, before we have succeeded in supplying its place,
and providing, by peaceable means, for the vindication of the
natural ricrht of ac^frression.

The most terrible responsibility that can fall to the lot of
man is that of determining the point at which a casus belli
has arisen ; and this responsibility is heightened by the fact
that there is scarcely any cause that is wholly just and pure.
But as a counterpoise to scruples which may paralyze the
arm of duty as well as restrain the hand of violence, it is
well on such occasions to remember, that as there are central
truths to which we must hold, notwithstanding the adndxture
of error which we detect in the forms in which they are pre-
sented to us, so there is a central right — a " right side " — in
every question which, if we can but find it, we are entitled to
embrace, and for wliich, if need be, we are bound to fight if
we are able, notwithstanding the wrongful manner in which
it may have been hitherto, or may still be, maintained. A
cause, a party, ^ or a state wliich is mainly in the right,
though partially wrong, merits not our symi)athy alone, but
our support, against one wliich is mainly wn^iig, though par-
tially right. Virtue and knowledge may or may not be

* The tendency of all particM, however, to be driven into extrcnie8 by the «i»irit
of oppoHition which (iniiiiutcH them, iH ho great that iiii)>Iicit faith in them IniH
alwayM been reganied an an indication of mentiil imbecility. " The Hiiperior
man," Maid Confuciiu, "in catholic and no parti/an. The mean man in a par-
tizan and not catholic"— Lcggo'M Ckincnc Cltumuji, vol. i. p. 11.

422 LIMITS OF AGGEESSION AS A NATURAL RIGHT.

identical ; but imperfection is a characteristic which clings, in
this world, to the realization of both. There are, it is true,
no imperfect obligations, and therefore we must make no
compromise even with little sins. But nations, like indi-
viduals, obey as they know, only in part ; and from both the
most scrupulous of us must be satisfied with that partial
obedience which, as sinners ourselves, we hope may be
accepted by Him who " hates sin with a perfect hatred."

BOOK III.

OF THE SOURCES OF POSITIVE LAW, Oil
SPECIAL JUEISPEUDENCE

CHAPTER I.

OF THE ULTIMATE SOURCES OF POSITIVE LAW.

rpHE ultimate sources of positive law are —
{a) The Laio of Nature.

(b) The conditions of existence under which that law must he
recdized.

But the perfect realization of the law of nature, even in the
relative sense of its perfect adaptation to the circumstances
of imperfect beings, is impossible to such beings from four
causes : —

\sty The imperfection of their knowledge of the law to be
realized.

2d, The imperfection of their knowledge of the conditions
of its realization.

'6d, The imperfection of their power to realize it as known
to them.

4ith, The imperfection of tlicir will to realize it as known
and possible to them.

Though human autonomy, in the abstract, be demonstrable
beyond dispute, human autonomy, in the concrete, thus suffers
serious limitations; and in our search for tlie limits within

426 OF THE PKOXIMATE SOUllCES OF POSITIVE LAW.

which and the means by which it is practically attainable, we
have to look, not to the ultimate, but to the proximate sources
of positive law.

CHAPTEE 11.

OF THE PKOXIMATE SOUKCES OF POSITIVE LAW.

Tlie proximate sources of positive law, or the sources of posi-
tive law as such, like the sources of natural law, may be divided
into (ci) Primary, and (h) Secondary.

(«) The 'primary sotorce of positive law is the real power of
the whole community suhject to the laio, as exhibited in and
measured by its rational will.

(b) The secondary sources of positive law are the means by
vjhieh the community vindicates its real as distinguished from
its merely apjmrent power, or, in other luord^s, asserts its rational
vnll.

CHAPTEE III.

OF THE PKIMAliY SOUPCE OF POSITIVE LAW.

The definition which I have given of the primary source of
positive law involves the following propositions : —

(a) That real j^ositive lavj, as distinguished from mere enacted

OF THE PIUMAKY SOUECE OF POSITIVE LAW. 427

lavj, loill exist in a community, that the community luill he 'prac-
tically autonomous, to the extent to which povjer and reason exist
and coincide in it, or, in other ivords, to the extent to ivhich its
power is real and iwt merely phenomenal.

In our previous discussions we have seen that the fact that
power is the root of law, is guaranteed to us by the necessary
coincidence, to our minds, of the two conceptions. Absolute
power and absolute law differ only as different manifestations
of the same divine influence. If " might makes right," it is
equally true that ''right makes might." As a whole, the
universe must be a perfect Kosmos ; at all events, we who
are part of it, and have no higher or other measure of Kosmos —
of Order — than its laws, cannot think of it otherwise. To us
the relative and the absolute are necessarily coincident, so that
in accepting God's will as our law, we do not sacrifice the
absolute character of morality. But this world is a part of this
perfect Kosmos, equally subject with every other part of it
to the same power and the same law. It would thus appear
that the coincidence of power and law, which we must predi-
cate of the whole, we must equally predicate of the part — in
other words, that " might and right " are ultimately coincident,
even in this present world. But though we are impelled by
our reason to accept this result as ultimately irrefragable by
us, we are shut out fn)in it, proximately, by experience, the
reality of which is guaranteed both by inl(;rnal and external
evidence. The presence in the actual life of man — our own
and that of others — of those mysterious and contradictory
elemont« which exhibit themselves as imbecility, ignorance,
and uii evil will, not only limit in man the manifestations

428 OF THE PRIMARY SOURCE

both of power and of law, but rehder their coincidence neces-
sarily partial. As there is law which does not generate power,
so there is power which does not generate law — nay, which,
for the time being, destroys it. By what test, then, shall
we distinguish power which is, from power which is not,
legislative ? Now with this test we are already familiar. It
is the test of that ultimate reality which arises from harmony
with nature as a whole, as opposed to partial nature. If
nature be true, all power which manifests itself as opposition
to nature must be false, contradictory, and ultimately suicidal
— not real and ultimate power, but only phenomenal and
evanescent power. But reason is the recognition by man of
truth, or, in this relation, of the harmonious teaching of nature.
Eeason is nature — ultimate nature — revealing herself in the con-
sciousness of the individual and the race. Eeal power is thus
the power which reason tells us is coincident with nature, not
in part, but in whole ; and as it is this power which alone can
be ultimately legislative, I think the conclusion is warranted
that the extent to which a given community is autonomous, or
self-governing, will be measured by its real power. It is the
vicious habit of breaking nature into two — a good nature and
a bad nature — in place of regarding what is called "bad
nature " as unnatural, false, the antagonistic element to nature
as ultimately manifested even in time and space, that has led
some to imagine that in invoking reason as a source of positive
law, I am calling in some Deiis ex machind to help out a specu-
lative system which had proved inadequate for practical pur-
poses. So far from regarding reason, " the spirit of truth," as
something antagonistic to, or even different from, nature, I

OF POSITIVE LAW. 429

regard it, as those who have followed my previous reasoning
with any degree of completeness cannot fail to know, as
neither more nor less than the divine element of nature as a
whole, making its voice heard above the distracting and self-
contradicting outbursts of our separate impulses. Eeason, in
this sense, is nature not only revealing truth, but revealing
power, telling us the condition of its ultimate efficiency, its
reality. Reason is thus the necessary concomitant of power,
the condition of effective legislation sine qtcd non. But we
are shut out from making reason or right, as distinguished from
power or miglit, the source of legislation by two considera-
tions : 1st, We should thereby invert the order in which the
two phenomena — power and reason — present themselves,
ontologically ; for the primary postulate of existence is power,
not reason. 2d, We should reduce legislation, and, conse-
quently, jurisprudence, to the condition of a formal science,
and deprive it of the means of enforcing its decrees. On the
other hand, the distinction between real and apparent reason
is frequently more obvious than that between real and a])pa-
rent power, and reason thus becomes the safer starting-])oint.
What we must, above all, bear in mind, liowever, is their in-
8epara])ility. There never was a reasonable — wise — man or
nation that w<as not ultimately powerful also ; tliere never
was an unreasonal)le — foolish — man or nation that did not
come to material grief.

(h) Positive Ifun can oriyinale and subsist in a community
only to tlie en-tent to vjhich that community is free, and. all true
Ugvilatifm is thus, in the last analysU, sdf-h'ffUlation.

Freedom and power, for our present i»iir|MKi'^ nmy be ro-

430 OF THE PRIMARY SOURCE

garded as convertible terms. The Creator, who is omnipotent,
alone is absolutely free. The freedom of created beings, like
their power, is limited ; but this limitation does not prevent
the one from corresponding accurately to the other. Nor is
there any exception to this rule in the case of what we call
latent power. The strong man in fetters is popularly re-
garded as one whose power is unimpaired, though his liberty
be gone ; but a moment's reflection suffices to convince us
that his liberty is latent like his power, and precisely to the
same extent. The correspondence of power to freedom then,
and of freedom to power, may be stated as absolute ; and of
communities, as of individuals, we may say that they are
free to the extent to which they are powerful, and powerful
to the extent to which they are free. " A law is founded,"
says Culverwell, " in intellectuals, in the reason, — not in
the sensitive principle. It supposes a noble and free-born
creature, for where there is no liberty there is no law\"^ The
coincidence between freedom and law results, moreover, not
only from our acceptance of power as the source and measure
of both, but of freedom as the object of law,^ and the obvious
consequence that they can be realized only in common.

In opposition to this train of reasoning, however, it may
occur to the reader that a definition which, by identifying
legislation with self-legislation, denies the character of positive
law to all law imposed by external human authority, con-
flicts, or may conflict, with the dc facto basis which we have
assigned to jurisprudence. If power, you may say, be the
source of all law, if tlie fact of the reality of power be the

1 P. G2. 2 jir^te, p. 355 ct scq.

OF POSITIVE LAW. 431

warrant for its exercise, — why should not the power of a
conqueror, or of a conquering race, be the source of legitimate
positive law ? The power of Eussia over Poland, and of Ger-
many over the recently conquered French provinces, as a
phenomenon, is for the present unquestionable ; and inasmuch
as it is not impossible that it produces a higher degree of
individual freedom of action than any which either Poland or
France ever succeeded, or would have succeeded, in attaining
by their unaided efforts, it is not inconceivable that it may
be real permanent power — the result, not of any ephemeral
spasmodic and self- counteracting effort, but of the normal
exercise of the right of aggression by autonomous on anar-
chical races, which we have admitted within the sphere of
natural law.^ Is there, then, any ground on which the char-
acter of positive law can be withheld from the law of Eussia as
administered in Poland, or that of Germany as administered
in Alsace ? My answer is, that the law of the conqueror, as
the only means of attaining or approximating to the attain-
ment of the object of all law, may be good positive law to the
conquered state for the time being, or even permanently ;
though, in its primary aspect, it is not the positive law of the
conquered state. Take, as an example, our government of
the anarchical native states of India. The source of the law
whicli we adiniiiister to them — its positive source — is else-
where— viz., in the overbalancing weight of the coiKpiering
power, occasioned by the higher reason which for tin; lime
being resides in tliat power, from its ])eing more real. A
conquered provin(;e or nation is, in the coniiniiiiil y of iiiilions,

432 OF THE PRIMARY SOURCE

in the position of the party that is out-voted, or of the in-
dividual wlio is not sici juris in the civil community. Both
obey a law to which, directly at least, they have not con-
sented ; but which, inasmuch as by vindicating Kosmos it
ministers to the attainment of liberty on the whole, their
own included, is not on that account the less entitled to the
character of positive law, even to them.

Such is the direct aspect of the matter, and it is in this
consideration that all compulsory legislation and jurisdiction .
find their immediate justification. If the concurrence of the
convicted criminal, or the unsuccessful litigant, in the sen-
tence of the judge, were the condition, si7ie qud non, of its
execution, positive law would be an idle name.

But this is only the primary aspect of the matter. It by
no means follows that, even in what thus appear to be ex-
ceptional instances, volition is not present as a source of law.
There is such a thing as normal and general, as opposed to
special and exceptional, assent, just as there are normal or gen-
eral, as opposed to exceptional and special impulses. It can
scarcely be said that the patient assents to the actual wrench
by which the dentist quenches rebellion, and gives victory to
law. And yet the justification of the dentist for the appli-
cation of vis major from without rests not only on tlie fact
that he has vindicated order and realized liberty, but that he
has done so with full concurrence of their recipient, and even
by his positive instructions. And precisely in the same way,
thougli the infant, the imbecile, the criminal, or the politician
who is out-voted at the poll, does not consent to the applica-
tion of the law which takes place in his own case on the par-

OF POSITIVE LAW. 433

ticular occasion, it is nevertheless fairly presumable that that
law is in accordance with the rational will which governs his
whole being, so far as his being is governed by a rational
will, and, as such, is autonomous at all. There are few
lunatic asylums wliich do not contain patients who have been
placed in them, and are even forcibly retained in them, by
their own normal, as opposed to their abnormal will ; and
many men have been punished, and some even hanged, in
accordance with their own wishes. But we have seen that
legitimate conquest can take place only on tlie ground of the
conquered exhibiting characteristics analogous to those of in-
fancy, imbecility, and criminality, or, at all events, being, as
it were, fairly and on rational grounds out-voted by the con-
quering power ; and as there is a general assent which the
citizen of the world, who is sici juris, gives to its laws, just
like that by which the citizen of the state binds himself to
accept the laws of his national legislature, or the judgments
of his national tribunals, even against himself, so there is a
constructive assent on the part of the conquered province,
which takes from the law imposed on it from without the in-
voluntary and exceptional character whicli at fast seems to
belong to it. Directly viewed, it is law to the conquered
state ; but when we consider it indirectly and fundamentally,
we perceive that it is also the law of the con(|uered state. It
is to this consideration, in addition to the inherent absurdity
of plebiscites as a means of ascertaining the volition of a
people, tliat tlie answer of Germany to the claims of the
conquered provinces of France to be consulted as to lluir
nationality, if good at all, owes its force. These provinces,

2 10

434 OF THE PRIMARY SOURCE

in the frame of mind in which, as part of the French nation,
they then were, were not autonomous communities ; and their
own 'positive laiv, their normal, and as such their real will,
was more likely to be realized by attending to their race,
their past history, and their geographical position, than by
listening to anything they might say directly. Their real
will was to be governed well — i.e., with a view to the ulti-
mate ends of all government ; their apparent will was to be
governed by France — whether well or ill. I offer, of course,
no opinion on the fact ; but I think it will be apparent that
the possibility of their having gained, in place of lost, their
autonomy by their conquest, is not formally excluded by the
circumstance of their being made subject, in the first instance,
to law that flows, apparently at least, from an external source.
The allegation that they have been made free against their
will, and powerful by being placed under subjection, is not
formally absurd, and can be refuted only by an appeal to fact.

(e) Positive laiu can spring only from the whole antonomons
community which obeys it.

Just as we have seen that natural law is the enactment of
our whole normal nature, and not of any special or excep-
tional faculty called conscience,^ so positive law must be the
enactment of the whole autonomous community which obeys
it, and not of any special or exceptional class, high, low, or
intermediate.

Theoretically this proposition scarcely requires illustration,
for if all law miist be voluntary, it is plain that law which
a portion of the community has not willed, either proximately

^ Ante, p. 186 c^ seq^.

OF POSITIVE LAW. 435

or ultimately, either directly or indirectly, is no more binding
on it than if it were the law of a community with which it
had no local connection. The only legitimate ground, then,
of exclusion from the rights, and exemption from the duties
and responsibilities, of legislation, is want of power, which in
this connection is convertible with want of reason, or, as we
more commonly say, incapacity. It is for this reason that
tests of incapacity, rather than of capacity, have hitherto been
the battle-fields of politicians. Capacity is presumed till
incapacity be proved. The questions which arise thus have
reference not to principles but to facts, which necessarily
vary not only with every community, but within every com-
munity at different periods; and their consideration, conse-
quently, does not belong to our present subject.

But in addition to this theoretical consideration, there is
a practical consideration which very strongly illustrates the
necessity of positive law springing from the whole autonomous
society. Partial legislation affords no measure of the power
and reason of the portions of the community which it puts
to silence, and consequently it offers no guarantee for its
accordance with the stage of development to which the
community lias attained. It is thus not the disfranchised
class alone that is a loser by its disfranchisement. The com-
munity is deprived of its means of self-measurement. If
legislation i>roceeds from the more enlightened classes, it
will be above the reason ol' the community, as a whole, and
beyond it; if it proceeds from the less enlightened classes, it
will be below the reason of Hk; coiiiniiiiiity as a wlioh;, and
sbiml it. 11 it proceeds from the so-called mi.Idh; class, it

43G OF THE PRIMARY SOURCE OF POSITIVE LAW.

may, no doubt, correspond to tlie whole community. ^ But
tlien what is the middle class ? where does it begin, and
where does it end ? To discover tests of incapacity which
relegate its subjects to the position of pupils, may be difficult ;
but to discover tests which shall guarantee one class to possess
the capacity of interpreting and representing all classes is,
I believe, impossible. If the community is to be governed
by its own will, that will must actually be uttered by it,
as an organic whole. Theoretically there is no ultimate
answer to the claim for universal suffrage; and as the
separation of sound practice from sound theory is impos-
sible, it must be a subject of abiding regret that the prac-
tical recognition of this claim has been rendered incompatible
with order and freedom by the insane outcry for equality
with which, even in this country, it has been, and, I fear,
may again be combined.

(d) As the presence of positive law is proportioned ^ to the
existence and coincidence of power and reason — or, in other uvrds,
to the existence of real as opposed to apparent power, in the ivhole
community — the contributions which the individual members of
the community are in a condition to make to it will be p)ro-
portioncd to the existence and coincidence of power and reason,
or the existence of real power, in each of them.

That it does not fall within the province of jurisprudence ^

^ And what is true of legislation intellectually is equally true of it morally.
Who can be so unjust to the Ameiican nation as to suppose that, though resting
on a r^^iw<? of democratic suffrage, it is fairly represented either by the fools who
impose a protection tariff, or by the scoundrels and paltry jobbers who recently
plundered its exchequer, and would fain have repudiated its obligations ?

2 As to the respective functions of equality and proportion in jurisprudence
generally, sec ante, p. 402 et scq.

THE RATIONAL WILL. 437

to reverse the fact of natural inequality amongst men, lias
already, I trust, been sufficiently established.^ So long, then,
as men continue to be unequally endowed with power and
reason, whether such inequality proceeds from inequality of
gifts or inequality of culture, positive law must not demand
that they shall contribute equally to its formation, or intrust
to them equal rights and impose on them equal responsi-
bilities, in interpreting and enforcing it. In this, as in all
other directions, it holds true that " unto whomsoever much is
given, of him shall be much required," and vice versd. Just as
we saw that the proposition that all men are equally men did
not involve the proposition that all men are equal men, so now
we see that the proposition that all citizens are equally citizens
does not involve the proposition that all citizens are equal
citizens, or that because all citizens ought to be voters, all
voters ought to be equal voters. The ''judgment of Zeus "
was not reversed by the French Revolution. •

CIIAPTEK IV.

THE DOCTKLNE OF THE NECESSARY SOVEREIGNTY OF illF RATIONAL
WILL OF IJIL WHOLE COMMUNITY IS IN ACCORDANCE WITH
THE COMMON-SENSE OF MANKIND.

That tnu; doctrines with reference to hiiniaii aniiiis, at the
stagc of hi.sUjrical development which we have reached, can
never be new doctrines — that in this dci)artnient (»f iiM|uiry,

438 THE RATIONAL WILL.

at till events, no " scienza nuova " is to be looked for, — is a
remark wliicli we have often had occasion to make, and
which, I trnst, we have often verified. In the present
instance the reader may consequently feel entitled to call
on me to prove the soundness of my assertion that the
rational will of the community, as I have explained it, is
the necessary source of positive law, by showing that,
more or less definitely, that opinion has received the assent
of mankind. To say that legislation has ever conformed
to it, would be to claim for human enactments a character
which their results have too plainly belied. But if we re-
call to memory the most progressive periods in the history
of those nations which are emphatically called historical,
I tliink we shall have little difficulty in perceiving that it is
then and there, pre-eminently, that this principle lias been
accepted as the basis of legislation ; whilst in our own
political practice, following more immediately that of Hol-
land, it has been consciously and professedly, though not
consistently, acted on for nearly two centuries. Even in
countries and at periods of history in which the practical
supremacy of the rational will has not been recognized, so

strong has been the feeling that by means of it alone re-

form was to be sought, or progress hoped for, that there
is perhaps no condition of external circumstances, no form
of government, under which its validity has not been con-
sciously or unconsciously maintained. Lieber, in his in-
genious and interesting work on Political Ethics} has given
a curious enumeration of writers of every shade of creed, posi-

^ Manual of Political Ethics, by Francis Lieber, p. 297 ct seq.

THE RATIONAL WILL. 439

tion, and opinion, from Father Persons the Jesuit to Frederick
the Great, who have distinctly recognized the sovereignty of
the general will. It is Sir "William Hamilton's " Cloud of
"Witnesses " to the universality of the Philosophy of Common-
sense, recalled and examined regarding their political creed.
Singularly enough, Lieber has omitted from his list the names
of two of the very greatest of his own countrymen, Kant and
Savigny ; and I tliink we cannot do better than select them
ourselves, not on account of his omission or of their pre-
eminence in their respective departments alone, but from the
importance which belongs to the fact of their having arrived
at the same result by methods directly the opposite of each
other. Guided by a method independent, and with the
single exception which I have already indicated,^ almost
defiant of experience, Kant thus fixes the necessary centre
of sovereignty. " The legislative power," he says, " can
belong only to the united will of the people. Thus it is
that, as all justice proceeds from this will, it is impossible
that it can do injustice to any one by the laws which it may
establish. So long as one enacts for another, it is always
possible that he may do him injustice, but never so where he
enacts only for liimself (for, volenti non fit injuria).'' '^ And
again : ^ " Tlie sovereign (legislator) cannot be, at the same
time, the governor (regent), because the latter is subject to
the law, and consequently lies under obligations to another
— i.e., the sovereign. The sovereign can take fioni the
governor liis power, can depose him, and reform his ad-
mini.stration, l)ut cannot punish liim." The same doctrine

' AnU, \K 296. '^ Jicchlslchrc, pttrt ii. 8cct, 40. =* JO., Hcct. 4l>.

440 THE RATIONAL WILL.

pervades the whole of that portion of Kant's work in which
he treats of the sources of positive law.

Nor is tlie necessary sovereignty of the rational will less
clearly or unreservedly acknowledged by Savigny as the result
of the historical method of tracing out political and legal prin-
ciples, of which he may be regarded as the most eminent
representative. " In the common consciousness of the people,"
he says, " lives positive law." ^ . . . " It is the spirit of the
people, living and working in each individual, which generates
positive law ; and which, consequently, for the consciousness of
each, is one and the same law, not accidentally but necessarily."

Savigny by no means confines this doctrine to the genera-
tion of those laws by which the private relations of individuals
are governed, and which come more directly within the scope
of his treatise. He tells us, on the contrary, that the source
of private and of public law — of law in the sense in which it
deals with the relations which subsist between the individual
members of the community, and that which assigns to the
citizen his position with reference to the state — is the same.
" Do we inquire into the origin of the state ? we must seek
it in a higher necessity, in a power which acts from within,
just as in the origin of law in general ; and this holds true,
not as regards the existence of the state in the abstract, but
with reference to tlie particular form which the state assumes
amongst each particular people ; for the generation of the state
is, in a sense, the generation of the law — indeed, the highest
form of the generation of the law." According to this view,

^ **In dem gemeinsamen Bewusstseyn dcs Volkes lebt das positive Reclit. " —
System^ vol. i. p, 14.

THE RATION x^L WILL. 441

the rules by which public relations are governed, and the
institutions in T\'liich they find expression, and by which they
are upheld, are as much the result of a pre-existent common
feeling of what is right in the abstract, and expedient with a
view to the vindication of right in the particular instance, as
are the laws by which it is sought to maintain for each
indi\ddual what common consent or judicial sentence has pro-
nounced to be his private rights ; and thus it is that this doc-
trine, as I have said, directs us to the source alike of private,
of public, and, I will add, of international law, Nay, farther,
it indicates very clearly the means by which their development
can alone be attained ; for, legislation being the result of the
spirit of the community which it governs, to endeavour to
regulate this spirit by legislation is to mistake an effect for a
cause.

In saying this, it is far from my intention to question a
fact so frequently and unequivocally established by experience
as that the character, even of an independent nation, may be
modified by influences from wutliout. The political world is as
sensitive as the Stock Exchange. When a monarchical revolu-
tion takes place republics become " a dull inquiry," and vice
vrrsd. So intimate is tlie relation, and so close the inter-
dependence of the civilized nations of the world, that it is
scarcely possible for a revolution of opinion, even though it
should not be accompanied Ijy a change in the form of govern-
ment, to take place in one of them, by which the others shall
not be more or less affected.^ Their thoughts are so linked

' Of tliin wo 8CC iiit<;rf!Htin;{ illuHtrutioiiH in the eirecla i)ioilii' • .1 (in ('i»iitiii< nlal
opinion hy our own general cleetiona.

442 THE RATIONAL WILL.

together, that if tlie change has been in the direction of truth
— by bringing positive law more closely to correspond to the
dictates of our normal humanity — a step in advance will have
been made by the whole civilized world ; whilst, on the other
hand, if it has been in the direction of error — by the estab-
lishment of a positive law which runs counter to nature —
mankind, as a whole, will have gone backwards. If, as is too
commonly the case with such movements, the change has
exhibited both truth and error, there will have been a gain in
one direction and a loss in the other which may possibly for
a time leave the question of progress or retrogression a subject
of dispute. But as regards external influences, there is a
wide difference between the cases in which they appeal to the
spirit of a people, even by means of the most violent and
noisy propagandism, and those in which they directly attack
their institutions. Where the latter occurrence takes place,
the links which connect the positive laws of a people with
their national spirit are broken ; their legislation is transferred
from a native to a foreign source ; and w^hatever may be the
effect of the change on the liberty of the individual citizens
for the time being, or even on the ultimate liberty of the
nation, its separate political life, so far, is at an end. Nothing
of all this occurs in the case of an appeal, however urgent, to
the national spirit ; for our convictions are our own, however
we may have formed them, and the laws in which we embody
them are our own laws. But though it is by appealing to
the national convictions, and thus moulding the national will,
and not by attacking national institutions directly, that the
positive laws of a people can alone be legitimately affected

THE RATIONAL WILL. 443

either by external or internal influences, it is needless to deny
that the process has often been practically reversed, and that
a change in the national will — nay, even the renunciation of a
separate national will altogether — has resulted from a direct
attack on national institutions. The effects of such an attack
will be permanent only when, and in so far as, they realize
a higher liberty than that whicli they sacrifice. But even
where there is no reason to credit them with this ground
of permanence, that they may be very enduring requires to be
established by no more recondite fact than that no small
portion of Europe, after having been Protestant, was, during
tlie course of tlie seventeenth century, dragged back by ex-
ternal influences into the Eoman Catholicism in which much
of it has since remained. But the general assertion is not
affected, that for the spirit of a people to folloiv their institu-
tions is at variance with the natural course of events, and that
witliout a sacrifice of independence such an occurrence is next
to impossible. In free states positive law is possible only to
the extent to wliich it is an expression of tlie social influences
wliich lie within the community, — of the moral forces which
are at work in it.

We must not suppose that in all cases those writers who
have enunciated, or those legislators who more ov less fully
have recognized, the supremacy of the general will, have
formed X/y themselves clear conceptions of its constituent
' lemcnts. There is, on the contrary, no sul)ject of scicntilic
politics witli reference to which so much confusion of thought
ind inconsequence of action h.%s ])revailed. Still, when tin-.
"pinions of such men as Kant and Savigny, and the higher

•4-44 THE RATIONAL WILL.

class of political thinkers are in question, we must positively
understand that by the expressions " rational will," " spirit of
the people," "common consciousness," "state -conscience," and
the like, they are very far from meaning the will or even
the conception of right and wrong of the numerical majority,
or even of the whole inhabitants of the state as an inorganic
mass of equal individual units. From Savigny's words, which
I have quoted, it will be readily gathered, even by those who
know less of his position than I may presume most of my
readers do, that he was no democrat ; and Kant, it is well
known, regarded democracy — which he was careful to distin-
guish from republicanism — as the only form of political exist-
ence by means of which the realization of the aspirations of
the general will is impossible. Hegel is equally emphatic to
the same effect.^ It was on this ground that he expressed his
distrust of our legislation in 1832; and had he lived to 1867,
there can be little doubt that his disapproval of a second
recognition of the supremacy of mere numbers would have
been still more emphatic.^ The substitution of household
suffrage for a simple lowering of the money franchise was no
doubt a very clever cutting of the democratic cards. It even

1 rhilos. of History, pp. 265, 266, 274, 463, 468.

'^ "Was the provision tliat the members of the Reichstag should be chosen by
universal suffrage and ballot introduced into the constitution, first of the North
German Confederation, and then of the Empire, in the interests of liberty or in
the interests of the Leviathan ? The subsequent provision that the Chancellor
and other officers of the Executive shall not be responsible for their actions, either
to the Federal Council or to the Diet of the realm, but only to the Emj^eror, seems
to render the answer very doubtful ; and one cannot but regret that the old Teu-
tonic system of the double vote and graduation, by proportioning the number of
voters to the amount of taxes paid, which is followed in the constitution of
Prussia, was not retained in that of the Empire.

THE RATIONAL WILL. 445

introduced an element of permanence which, when taken
along with the indirect influences of an historical and highly-
organized society, may perhaps protect us long against anarchy,
and render progress possible in everything excerpt politics. But
it introduced no principle which can bring us nearer to
the solution of the ultimate problem of politics — viz., the
supremacy of the reason of the whole community. The error
of equality remains untouched ; and it is only to the indirect
influences exerted by intelligence and wealth that we can
look for ultimate perfection against anarchy or Cicsarism.
We have thrown oil on the waters in place of mending our
ship, and are consequently far too dependent on fair weather.
It is no doubt very encouraging to find that, hitherto, the
numerical majority in this country has shown no disposition
to throw off the leadership of the cultivated classes, and it is
possible that a stage of political development may be reached
by the whole people at which inequalities will be voluntarily
recognized more accurately than they could be measured by
positive legislation.

Even French writers have not been wanting to warn their
countrymen against tlie delusion of absolute equality which
has cost them so dear. " The national will," says Sismondi ^ —
" that is, the sum of all tlie wills, of all the intelligence, of all
the virtue of the nation, a sum in which each (ju.'intity counts
for what it is, and negations count for nothing — is almost
iilways absolutely opposcid to the doctrine of uni\('isiil (.ind
equal) suffrage;, wliicli makes those who have no will jncvuil

' It in wiarrx-ly acciiraU; to cull SiHinondi a riiiicli wiii' i Imi h. was, at any
rate, n writ«T in Yvn\t\\ wIiohc worJcH were wi<lrly ivad.

446 THE EATIONAL WILL.

over those who have, those who know iiotliing of what they
are deciding npon, over those who know it." ^ It is quite
consistent witli this definition of sovereignty, and is indeed
contemplated by it, that the sum of rational influence, the
aggregate of real will of which sovereignty consists, instead of
coinciding with, should stand over against the sum of individual
opinions ; that the minority should outweigh the majority, and
that the institutions of the state, the positive law of the land
for the time being, should be in accordance with the opinions
of the former, and at variance with those of the latter. As
regards the individual, whatever may be the amount of
influence — cvvhich, for practical purposes, we must assume to
be the measure of reason — which he possesses amongst his
fellow-citizens generally, whether it be greater - or less than
that of the average social unit, it is to the exercise of that in-
fluence in determining the public and private laws by which
he himself is to be governed, and to nothing more, that he is
entitled. If, then, the rational utterance of one man be ten
times as definite and powerful as that of another, the fact that
he contributes ten times as much to swell that r^eneral voice
of which positive law is the expression must in some way be
recognized.^ And what is true of the privileges is equally true
of the responsibilities of the individual. He is bound to share
in the duties to the same extent to which he shares in the

^ Essays, English trans., p. 291.

2 The fault of all the schemes for improving representation from a democratic
point of view — a fault from which even Mr Hare's, by far the most ingenious of
tliem, does not seem to be free — is that they aim at giving equal value to reason
and unreason, to sense and nonsense. Even so rude a measure of intelligence,
and, I will add, of character, as is offered l)y the payment of direct taxes, would
probably be better than no measure at all.

THE SECONDARY SOURCES OF POSITIVE LAW. 447

rights of sovereignty. He must contribute according to his
means, not only to the material but to the spiritual wealth of
the state ; and one of the most direct forms in which the latter
duty behoves to be performed is by striving, with such might
as may be in him, to bring its positive laws into conformity
with the dictates of normal humanity, — with natural law.

CHAPTER V.

OF TUE SECONDARY SOURCES OF POSITIVE LAW.

The secondary scnirces of positive la^v, as already said} are
the means hy which the community vindicates its reed as dis-
tirujuished from its merely ajyparent poiver, or, in other words,
asserts its rational icill.

Anything approaching to an exhaustive treatment of the
secondaiy sources of positive law would manifestly lead us
into the discussion of subjects which, thougli belonging legit-
imately to puljlic law, lie beyond the scope of a treatise on
the principles of jurisprudence. We sliall consequently con-
tent ourselves witli little more than an enumer.ition.

T. The means hy whieh the community frrnis its rational irill.

liy the formation of the rational will, as o])posed to its
development, I mean the bringing it, on tho ]);iiL of tin; cum-
niunity generally, sufficiently near to the point wliich it lias
reached in the exceptionally cultivated classes, to enable the

' Anlc, |». vid.

448 OF THE SECONDARY SOURCES

community, as a whole, to take part in legislation. This
function, in the modern world, is chiefly performed by four
great institutions — viz., the Church, the school, the press, and
the polling-booth.

1. The Church.

By the Church is here meant, not the whole body of the
faithful, nor yet any particular ecclesiastical institution, but
the whole organization by which popular oral instruction on
religion and morality is communicated, and by which divine
influences are invoked. The great obstacle to the activity of
the Church as an instrument for the farther discovery of truth,
and that which keeps it down to the level of an organ for the
dissemination of truth already known, is the necessity for its
dogma being fixed by some definite symbol. This necessity
— which, though greatly exaggerated, is to some extent real
— exists equally in established and endowed, and in dises-
tablished and disendowed Churches ; whereas the latter are
depressed, in addition, by the dependence of the clergy on the
poeple — the teachers on the taught. An endowed Church is
conceivable in which the clergy, like the professors in the Theo-
logical Faculty of an endowed University, should be permitted
to seek for divine truth as freely as the lay ^ professors of en-

^ It may not be generally supposed that the freedom of lay teaching is depen-
dent on endowments, but such unquestionably is the case, and this not in uni-
versities only, but in schools. All teaching that depends on popular support
must court popular sympathy by conforming to the "rage" of the time, as is
done in " adventure schools." Were it not for tlie protection afforded to learn-
ing and philosophy by permanent endowments and traditional examinations,
we should have little teaching of anything at present except physical science.
The vast amount of intellectual activity that is expended on histoiy and com-
parative philology is not the spontaneous product of this generation ; and its

OF POSITIVE LAW. 449

dowed Universities are permitted to seek for secular truth ;
and the only objection to such a Church seems to be that its
teaching, by becoming individual, would lose the weight which
belongs to it as the result of the consent of many minds. But
an unendowed Church, or even conoTeofation, in which the
clergy enjoyed this amount of freedom could never exist as a
permanent institution. A few exceptional individuals might, at
times, contrive to impose their own opinions on their hearers ;
but if these differed at all widely from prevailing beliefs, their
positions would always be insecure, and it would be too hard
a trial for the sincerity or the activity of most men to tell
them that they might seek truth, but that if they found more
of it than other people, other people would deprive them of
the means of living. Creeds are positive laws — i.e., they are
liuman interpretations of divine revelations.^ The remedy,
as in the case of other positive laws, seems to consist, not in
tlie total abandonment of ecclesiastical symbols, but in their
respectful criticism and frequent though cautious revision, so as
always to maintain the dogma of the Church, as nearly as pos-
sible, on a level with the scientific theology of the period. But
the functions of criticism and revision call into play opposite
mental tendencies, and will seldom be satisfactorily discharged
by the same individuals, or even by the same generations.

full value will he appreciated only i^y the generations of jdiilosophcrs and poets
who, wc must hope, will brin^ thought and imagination to bear on the preeioua
inheritance of knowledge that will descend to them. It is only by means of
endowmcntH, the immediate " utility" of which is rarely appreciated, that the
continuity of the intellectual or religious life of a j)eople can be preserved, and
it is only by br-ing thus liistorical that it can be progressive.

* 8oe some excellent observations on this Hubject in Mr Herbert Spencer's
8iud]i of Sociology^ p. 309.

2 F

450 OF THE SECONDARY SOURCES

Notwithstanding tlie difficulties which thus impede its free-
dom, it must be remembered that the pre-eminence of the
Churcli, as a means of forming the rational will, rests on
various considerations by which it is distinguished from all
other teaching institutions.

(1.) The Church alone seeks to influence the will, not only
indirectly, through the understanding, but directly, and this in
two ways —

(a) By supernatural, though not on that account preter-
natural, means, which are commonly spoken of as " means of
grace."

The efficacy of the sacraments in restoring the union
between the divine and human elements of our nature,
partially destroyed by voluntary transgression, is a subject
on which it would not be becoming that we should here
enlarge. But as jurists and politicians, it is proper that
we should remember that prayers for the coming of God's
kingdom are neither more nor less than prayers for the
union of power and reason in His creatures ; and that the
extent of their influence will be proportioned to the sincerity
with which they are offered. When such prayers degenerate
into formalities, their influence will sink to almost nothing.
On the other hand, it is quite conceivable that they should
be animated by a faith so strong and general, as to bring a
whole nation into relations to the Divinity of so close a kind
as would almost counteract the influences of human wicked-
ness and folly. " Knock, and it shall be opened to you,"
is a promise not limited to individual supplications, nor is
it individual faith alone that may ''remove mountains."

OF POSITIVE LAW. 451

" More things are wrought by prayer
Than this world dreams of. "Wherefore let thy voice
Rise like a fountain both by night and day.
For what are men better than sheep or goats
That nourish a blind life within the brain,
If, knowing God, they lift not hands of prayer
Both for themselves and those who call them friends ?
For so the whole round earth is every way
Bound by gold chains about the feet of God." ^

But it is the divine element in liiimanity alone which
can approach the Divinity, and the divine element is the
rational element by which, more or less perfectly, we ap-
prehend the conditions of our existence. In our prayers
we must consequently be guided by the reason which God
has bestowed on us, and tlie experience which He has
permitted us to acquire. To pray for the alteration, modi-
fication, or even the temporary suspension of what we know
to be His laws, would not be reasonable prayer : first,
because reason forbids the supposition that He will change
what, being in accordance with His perfect will, is already
perfect ; and, .second, because experience, though its teaching
never rises above probabilities, does, in this case, certainly
render it in the highest degi-ee improbable that He will
80 act. But there are laws wliich, thougli immutable, are
not inviolable ; and it does not follow from their immuta-
bility tliat the deepest wisdom may not lie in praying
that wo, and others whose knowledge and wills arc con-
fessedly imperfect, should Ijo cnaljled to know these; laws
more perfectly, and to conform to them more comi)letely.
To tik(; an exain[>h! in jjoint : though (;v(!ry democrat

' Thr Holy nrnil, p. \:/.k

452 OF THE SECONDARY SOURCES

now in existence — nay, though the whole human family
till the end of time — were to pray that all men should
be made equal, there would be no more chance of that
prayer being heard than if they were to pray that they
should be made immortal. But if one righteous man were
to pray that he and others might be led to accept the
inequalities which God has ordained, and to employ them
for social and political purposes, there is no saying to what
extent that prayer might avail. Nor, accepting the perfec-
tion, notwithstanding the mystery which surrounds the deal-
ing of God with His creatures, is it difi&cult to see that
it is this form of prayer alone which, for our own sakes,
we can logically present. To pray for the alteration of
laws which we assume to be perfect, is to pray for evil ;
whereas to pray for power and will to conform to such laws,
is to pray for that which alone is w^anting to our good ; and
the act of offering such a prayer is, in itself, no unimportant
step towards its fulfilment. To pray that sin, whether past or
present, may be no longer sin, and that we may be pardoned,
in that sense is to throw breath away ; but to pray that we
may be pardoned in the sense of ceasing to be sinners, is
already to be sinless so far ; and the frequent repetition of
such prayer may end in the formation of habits of compara-
tive sinlessness, or, in other words, of voluntary conformity
with God's laws.

(h) By natural means. The method of touching the will
by appealing to the heart belongs especially, though by no
means exclusively, to the Church.

The function of the Church is not only, or even so much,

iSf

OF POSITIVE LAW. 453

to disseminate truth, as to prepare the soil for its reception,
— to teach tractableness. Of the necessity of this pre-
paratory process any one may convince himself by observ-
ing the very slight effect Tvhich a reductio ad dbsurdum
of their opinions produces on the vast majority even of
educated men. Political and social hallucinations, having
their roots in selfishness and vanity quite as much as in
stupidity and ignorance, present, in a conspicuous manner,
the pitiful spectacle of the will bidding defiance to the
reason. As regards them, above all, it is true that — •

" A man convinced against his will
Is of the same opinion still,"

Here, then, we must approach the reason by the will, and
not the will by the reason, and the proceeding is one which
belongs to the ecclesiastical rather than to the scholastic or
academical instructor. It is in place in the Pulpit ; but
it would be wholly out of place in the Chair.

(2.) The Church appeals to the classes that are least
within the reach of other influences, and retains its hold on
them during life.

It is with the spiritual interests of tlie working classes,
more especially, that the Churcli is concerned. To tlic
classes whose position and occupations enable tlicm to
command leisure, even Christian iiifhiences come from many
other quarters, and their spiritual life is fed l)y a tliousand
rill.s. I*ut to the chihh'cn of toil, tlie Churcli and its
mini.sters offer almost the only incentives to reflection. Of
the small measure of leisure which is th(Mrs, a very largo
portion is spent in immediate contact with (he inlluences

454 OF THE SECONDARY SOURCES

which she wields, and, for good or for evil, these exercise
a very important effect on their characters and lives. Any
one who considers how different is the role which the Sun-
day plays in the life of the man of labour and the man of
leisure, and who knows how much more exclusively the views
and opinions of the former are the result of pulpit teaching
than those of the latter, will have a practical illustration
of what we mean. Now, that such teaching should deal
directly with political interests, even when these are seen
from the most all-embracing point of view, is, of course,
neither possible nor desirable. Still, so to expound Divine
law as to set the current of popular thinking in the direc-
tion in which sound human laws are to be found, does
seem to be entirely within the Church's province, and we
see no reason why this should not, at times, be done a little
more explicitly than merely by dwelling on the general fact
that moral and religious principles form the basis of citizen
life.

There are phases and habits of rational secular thought
and feeling, to the formation of which the clergy, even in
their strictly clerical capacity, may very well contribute,
which will set limits at once to arrogance and insolence,
and out of which just conceptions both of the active and
the passive duties of citizensliip will spring almost inevit-
ably. There are necessary relations — such, for example, as
that between rights and duties — which, even as abstract
doctrines, may be popularly expounded from the pulpit,
and which, if once apprehended, without any special ap-
plication to existing circumstances at all, will very soon and

OF POSITIVE LAW. 455

very surely bear practical fruits. The political effects of
the social relations of parent and child, husband and wife,
and the like, may be pointed out, and the political necessity
of accepting the teaching of nature in its integrity may
be insisted on.

In many passages of our own history we have examples of
the happiest and most important secular results which are
referable directly to the pulpit exhortations, and to the more
private influences, of the ministers of religion. I shall have
occasion presently to speak of the suggestive character of
Wickliffe's teaching and that of the later Eeformers, in secular
directions. To come nearer to our own times ; it was the
teaching of their pastors (narrow and ungenial as it now
appears to us) which supported Independents and Presby-
terians in their political as well as in their religious struggles,
and which, by the hands of the Puritan Fathers of New
England, laid the foundation of the most fruitful colonial life
that the world has ever seen. Looking in another direction,
it is impossible to say to how great an extent tliat reverence
for existing^ institutions, wliich, breathing tlirough tlic whole
of the liturgy of tlie Church of England, reminds one con-
tinually of Queen Elizabeth's days, may have tended to fos-
ter in the English people those conservative instincts wliicli
characterize them even as contrasted with the Scotch, and
wliich, in tlic aUscnce of conscious reason, have so often ))cen
llie safeguards l)oth of order and lil)erty.^ In Ifomnn ('atliolic,

' <')f tlif; infliifiKO of rf'li^ioiiH fpcliii;^' in srctilnr (lircctioTiH wo liad n iininomltle
iuhtancc in tin; cfri;ct of the National ThankH^iving for the rec<)veiy of the Piinrc.
•f Wale» in putting to Hilencc the dcnmgogic outcry again«t monarchy.

456 OF THE SECONDARY SOURCES

countries the iiiflueuces of the Church have unhappily been
too often placed in antagonism with those of the State. But
however much we may deplore the use which has been made
of them, it is impossible to question their efficiency, and we
should be strangely unjust if, in dwelling on the reactionary
and retrograde tendencies which they at present exhibit, or
the disbelief and disobedience which they indirectly engender,
we failed to remember how often they have formed the only
check on despotism, or the only mitigation of anarchy. Still
in identifying political and ecclesiastical, secular and religious
interests, the advantages of Protestantism must always be
very great ; ^ and whereas the political, like the religious
atheism which has overtaken so large a portion of the Koman
Catholic world is in no small measure traceable to the abuse
of clerical influences, I doubt whether, at this moment, sound
doctrine in politics and jurisprudence finds anywhere more
efficient supporters than in the Protestant clergy of Europe
and America. But their aid might, without difficulty, be
rendered still more efficient ; and in the present crisis of the
history of mankind, I believe the Church could find no nobler
function than to trace out and exhibit the secular applications
of the Sermon on the Mount, and to insist on its universally
human character.

But, in order thus practically to influence the general will,
there is one principle which it is, above all, indispensable to
keep in view. Christianity must be regarded as inculcating
not what is negative merely, but still more prominently what

^ Le Protestantisme et le Catholicisms dans leurs lla.p'porls avcc la liberie ct la
prosxterit6 des FcujjUs, par M. de Laveleye, 1876.

OF POSITIVE LAW. 457

is positive in human conduct. The womanish view so often
presented of Christianity by those who profess to expound it,
and the disposition to regard it as a mere string of prohibitions,
not only tends to enfeeble the characters of those who accept
this as the true exposition, but has the farther and greater
evil of driving the manlier characters who reject it to seek
their exemplars and rules of conduct elsew^here.^ And this
effect is more than ever to be apprehended now that Chris-
tianity has been brought in contact not only with philosophy,
but with the older and less perfect, though in many funda-
mental respects identical religions of Asia, and more particu-
larly of the Aryan races. We are only at the beginning of a
movement, in itself I believe eminently religious, but of which
the effect must be to weaken the hold of Christianity on those
who regard it as consisting either of exceptional dogmas or
ritualistic observances. And this unhappy result, not unknown
in Protestant countries, is most of all conspicuous where, as
in France, the worship of the Virgin has all but supplanted
the worship of God. It is this feeble and limited conception
of Christianity which in Roman Catholic countries has so often
ranged the manhood of the nation in opposition to the Church.
If the doing of important and noble duties, rather tlian the
abstaining from petty and ignoble vices, were insisted on, even
the latter object would be attained far more effectually ; and

' Tfi% ii.p*rri% yap fiaWou rh (Z iroi(7v fj rh «li irdaxnv^ koX ri KaKb. irpamiv
^tM.XXov, ^ -rhi ounxp^ M "'rpdrrtiv, Aristot. Ethic. , lib. iv. c. 1, Xeiioplion bills
U.H that oin; of tlio fiicts alleged })y the accusfFH of Socmtcs was that lie was in
the habit of quoting this line l^oni HcHiod, "Y.pyov V ovSiu 6y«iSos, a«py*iri 8« r*
iytiSot. SocratcH wa« far from repudiating the iinputiition ; and no one who feolw,
like him, the higher <lignity which belongH to a teacher of active virtun, will
Hhritik from iKfirinj/ it aloii(/ with liiiii.

■^oS OF THE SECONDARY SOURCES

if the motive were made not the hope of escaping punishment,
but the certainty of attaining the love and favour of the Most
High, Christianity would be placed in a truer and far more attrac-
tive light. In place of limping after us like a senile monitor,
in w^hose eyes the small and the formal is of greater import-
ance than the great and the substantial, Christianity would
become, as it was intended to be, a fresh and ever-youthful
leader wherever our effort was to do God's will on the greatest
scale, and our abiding support and consolation, when, in order
to do so, the tangled maze of circumstances imposed on us the
necessity of violating the immediate dictates of humanity or
the promptings of instinct. Nowhere more than in their
citizen capacity, so long as there is sin in the world, must
men stand in need of this positive view of Christian duty.
Not only to those who guide, but to those who execute the
volitions of a whole people, the place of Providence on a
limited field is assigned ; and he who, with merely passive
Christianity to support him, is called upon to draw the sword,
to erect the scaffold, or to perform any of the sterner duties
of citizenship, must do so either without reference to Chris-
tianity at all, or, what is worse, in violation of what alone he
has been taught to regard as its dictates. The moment we
are called to deal actively with public relations, our Christian-
ity must be of such a kind as to raise us above all minor
anxieties, and in the most trying circumstances to give victory
to law. Where the voice of duty pronounces unmistakably
for vigorous and unsparing action, he who represents the Word
of God as prescribing childish inactivity or feminine submis-
sion, however harmless may be his intentions, will in his

OF POSITIVP] LAW. 459

deeds be at once a traitor and a false prophet. Nor, on the
other hand, will he be a truer interpreter who, recognizing
the paramount claims of duty, represents these as incapable
of any genuine recognition which is not accompanied by a
perpetual austerity, and in constant conflict with all that is
humane and genial in the ordinary relations of life. Whilst
our Divine Master has told us that He brought into the world
" not peace, but the sword," we know that the very first object
for which He interrupted the ordinary laws of nature was to
provide more abundantly, not for the wants, but for the con-
vivial enjoyments of those who, for the time, were His com-
panions in mirth. Had notliing else to the same effect been
recorded of Him (and there is much), in tliis one saying and
this one act we should have had abundant proof that His
notions of Christian duty were neither sickly nor sour. It is
in the more wholesome and encouraging conception of the
human relations which, when truly interpreted, Christianity
presents, more tlian in anything else, that it surpasses the
older religions of mankind.

2. The S(Jiool, includinrj the University, in so far as the
latter Vi regarded merely as a means of instruction and dis-
cipline, and not as an oryan for the advancement of science.

Education Ijeiug tlie development of man as a rational
being, that the autonomous cliaractcr of a community will, on
the wliole, keep pace witli its educational advancement, is a
propcsition the acceptance of which I shall take for granted.
ft is true tiiat education alone is neither the only source nor
tlic only measure of autonomy. There nnist be something
to educate ; and as coinmuniticH, like men, <lo not all start

460 OF THE SECONDARY SOURCES

with the same aptitudes, the same amount of instruction, or
even of experience, will not bring them all up to the same
point. England, in the days of Simon de Montfort, was a
more autonomous country than France is perhaps even now,
or at all events was till very recently ; and yet it cannot be
doubted that France has long had a far wider range of instruc-
tion to guide her than England had then, and a far wider
range of experience than England has yet, or, it is to be hoped,
ever will have. Such differences are usually ascribed to race.
That race in general contributes to them very largely is a
conclusion which is placed beyond question by a comparison
of the historical with the non- historical races of mankind ;
and that the difference between France and England may
arise from the preponderance of Celtic ^ blood in the one, and
of Teutonic blood in the other, is a conjecture which is forced
upon us by the history of the different portions of our own
population ; and the same remark is applicable to the northern
as compared with the southern provinces of France. Though
there are some intellectual and even moral qualities which
appear to be possessed by the Celtic in a higher degree than
by the Teutonic race, their religious conceptions are always
marked by that tendency to ecstatic delirium which character-
izes the religions of the lower races ; ^ whilst, secularly re-
garded, there is no historical example of a Celtic population
which, by its own efforts, has thrown off the restraints of

^ Bunsen holds the Celtic or Keltic tribes to be "the lower grades of the Aryan
stock in Europe and Asia. " — God in History, vol. i. p. 239.

2 What are called "revivals" are very common in the west and north of
Scotland, where the population is Celtic, but cannot be got up in the east and
south, where it is Teutonic.

OF POSITIVE LAW. 461

patriarchal government without falling into anarchy. Even
on the limited scale on which republics have been found to
work well with other races, they have hitherto been impossible
where Celtic blood preponderated. There never was a Celtic
"Free-town" or "Hansa;" and if M. Eenan should be correct
in his view that the Celtic element in England is superseding
the Teutonic element, there might cease to be a free England,
as when he wrote there had ceased to be a free France. The
prospect is a very sad one, but its political aspect ceases to
alarm us when we remark how freely the Celtic mixes itself
with, and loses itself in, other races, and how valuable it is
as an ingredient in the composite stock. Of the subordinate
position which it takes when brought in contact with other
ethnological elements, the invariable disappearance of its lan-
guage seems an infallible indication.

o o

But even in the same country, and where the race has
remained substantially unchanged, the relation between the
advance of knowledge and autonomous power does not always
hold good. It is true that Spain has by no means kept pace
with the North of Europe in the race of knowledge. But
even Spain can scarcely liave failed to learn something — to
make some advance on her own position in tliis respect —
during the last 400 years; and yet it is certain that Spain
ha.s been a less autonomous nation — less orderly and less free
— during the last half-century, than during an}^ similar ])ortion
ot the long period which elapsed between the victory over the
Moors in 1212, and the union of the crowns of Castile and
Arragon under Ferdinand and Isabelln in llV'J. It would l»e
(litlicult, perhap.s impossible, to obtain direct data as to the edu-

462 OF THE SECONDARY SOURCES

catioiial condition of Spain at the one period, and at the other ;
but I think it may be taken for granted that the elements of
instruction are now more widely disseminated, and if material
prosperity be any guarantee for general intelligence, Spain has
made great advances within the last fifty years.^ The same
may be said of France during the reign of Napoleon III., when
she certainly was more prosperous and popularly instructed,
but less autonomous than during that of Louis Philippe.

Now the explanation of the failure of the general relation
between education and autonomy, in these and other in-
stances in which it cannot be ascribed to difference of race,
will be found, I believe, in the fact that it is not all educa-
tion which tells in the direction of autonomy, but only such
education as results in the discipline of the individual char-
acter, and, through the individual, of the national character.
By discipline I mean, not only formal compliance with the
■ arrangements of nature with reference to human relations, for
that may be enforced from without, but voluntary acceptance
of these arranojements as the true measures both of rights and
duties. A man or a community that is disciplined, in this
sense, is autonomous, because his or its will coincides with
the necessary conditions of existence. He obeys no master
except Him whose " service is perfect freedom," and whose
will it is that he should be free, and, consequently, it may
be said of him in the deepest sense. Volenti non Jit injtcria.
And if we take the matter up historically, either as regards
the nations I have mentioned, or any other nations, I think

^ Ls Spain now really becoming an autonomous nation ? If so, the pheno-
menon will be one of the most interesting in political history.

OF POSITIVE LAW. 463

we shall find that experience has not belied the conclusion
that the men and nations that have most freely and fully
accepted the laws of nature, whether revealed through nature
or to nature — the most disciplined men and nations, the
most moral and religious men and nations, — have been the
freest men and nations.

This voluntary acceptance of the laws of nature may be
either spontaneous and unconscious, or it may be the result
of reason consciously exercised. In the former case, in so
far as it is not dependent on special temperament, its source
will be found in the organization of the family and of society,
which to a certain extent is inevitable. In its rudimentary
stages organization is thus the cause of that discipline of
which, in its higher and more perfect manifestations, it is the
result. The simplest instance of spontaneous discipline is
the necessary relation of parent and child. Every child
must stand in a position of dependence and subordination to
its mother, or to the nurse wlio takes its mother's place.
That is a lesson of discipline which no one can escape, and
which no one resists ; and it is the first step on the ladder
of organic social life. Filial dependence, indeed, is the
school of discipline which nature has provided, attendance
on wliich she has rendered compulsory, and whicli she
continues longer in man than in the lower animals, in conse-
'[uence of the greater amount of teaching of whicli lie stands
in need. The same is true of relative iid'eriority in all its
stages and forms. As lias been said of j)ln'Ios()])hy we may
say of discipline: Man is disciplined as lie lives; he may bo
disciplined much or little, well or ill, but (lisciplincd he must

4G4 OF THE SECONDARY SOURCES

be. Life, in short, altogether is an educational institution,
and this is true of it, not only in its ideal conception, but in
its humblest manifestations.

But though the rudiments of discipline, as of philosophy,
be thus taught by the inevitable conditions of human life,
and will be learned better or worse in proportion as that life
is higher or lower either in the individual or in the race,
like philosophy, also, it may be taught, and in its higher
forms can be taught, only by an appeal to that conscious
reason, which is the characteristic peculiarity of man. And
if this be so, the question with reference to the educational
institutions of a country, viewed as sources of positive law,
comes to be this, — is there any special kind of direct in-
struction by which this discipline can be attained, and if so,
what is that kind ?

Now here there need, I think, be no difference of opinion.
The school, like the Church, must take this matter in hand
openly and directly, as it does other matters. If you wish to
teach a man to avail himself of the powers, or to conform to
the laws of physical nature, you teach him the laws by which
these powers act and react. If you wish to enable him to
combine an acid with an alkali, we shall say, you teach him
chemistry — the laws which govern the relations between
material substances — and not jurisprudence — the laws which
ffovern the relations between man and man. Just reverse
this process, then, and when you wish to develop a social or
political aptitude in him, give him social or political in-
struction. If you wish self-governing men, teach them how
they are to govern themselves ; but do not hope that they will

OF POSITIVE LAW. 465

know how to govern themselves — and govern you too, for
it has come to that — without teaching of any kind, or in
consequence of your ha\'ing only taught them to combine
acids with alkalies, to make railways, or to spin cotton.

The objections which are made to this pretty obvious view
of the question are, I think, mainly two : 1st, The natural
laws of the human relations, it is said, do not admit of any
precise statement, and consequently cannot be taught. I
hope that I have already answered this objection in the pre-
ceding pages — if not, I cannot answer it. 2d, It is said that,
at all events, they cannot be taught in a popular manner, and
that all attempts so to teach them only stir questions of prin-
ciple which cannot be adequately solved, and with which it
is wiser and safer that men in general should not concern
tliemselves. Now all popular teaching is necessarily imper-
fect ; the knowledge which it communicates is incomplete ;
and no community which is led by it ever can be as safe, either
from internal disorder or external disaster, as a community
so organized as to take advantage of the best and highest
light which political science has brought within its reach.
A community which subordinates its higher to its lower
reason imperils its stability as well as its progress, and I am
far from contending that a considerable amount of danger
will not always attend tlie practical application of sucli
political knowledge as can alone be communicated to the
numerical majority. But tliis argument loses all meaning
in the moutlis of those who advocate tlic; dominion of tlie
numerical majority, and all practical application to com-
munities in whicli that dominion is already recognized.

2 c;

•^C){j OB^ THE SECONDARY SOURCES

Edged-tools will always be dangerous in unskilled hands ; but
if men are resolved that edged-tools shall be put into un-
skilled hands, or if edged-tools have been put into unskilled
hands already, the more skilful those hands can be made the
less w^ill be the danf]jer. Petroleum and c'un - cotton will
never be safe commodities in all men's keeping. But if all
men must keep them, and keep them too in equal quantities,
the sooner such information with reference to the mode of
handling them as all men are capable of receiving can be
disseminated the better.

Nor do I see any reason to believe that popular teaching
should necessarily be more imperfect or incomplete when it
has reference to moral and social, than to physical laws, or
indeed to any other branch of knowledge by which the higher
faculties are called into exercise. The political education of
all classes can no more be equalized than their education
in other respects. But in a well-organized community the
political education of all classes might be proportioned to
their requirements — that is to say, to their rights and re-
sponsibilities ; and with this view the obvious rule sug-
gests itself, that in proportion as the political influence of
the individual rises, ought his citizen training to become
wider in its range, and more scientific in its character ; or,
reversing the proposition, that his political influence should
be made dependent on the measure of his citizen training. .
The only difficulty which seems to stand in the way of
such education being made compulsory on all classes ^ arises

^ The old Scotch statute, 5 James IV. c. 54 (1494), which enacted that barons
and freeholders should send their sons and heirs to the grammar-schools till

OF POSITIVE LAW. 467

from the want of any legal recognition of classification
in modern states. The objection to such recognition, which
to many minds seems fatal, is the tendency which classes
when so recoGjnized would have to deojenerate into castes.
To me it appears that this objection would be obviated if
this classification were recognized only for political purposes,
and if the principle of la carrUre ouverte were expressly
maintained in it ; as, for instance, by the adoption of a
graduated suffrage, one of the conditions of admission to,
and advance in v'liicli, should be education. Whether such
organization as would lay the basis of a consistent system
of compulsory political education has been rendered impos-
sible by the democratic legislation which has already taken
place in tliis and other countries, is a question which I can-
not here discuss.

In the absence of an arrangement by which so many of
uur hardest problems would have been solved, the only means
of enforcing political education of the higher kind seems to
consist in rendering it imperative for admission to all Gov-
ernment appointments, raising its character in proportion to

"they be competent! ic founded and have pcrfitc Latino," and thereafter to re-
main three years at " the sclmles of art and jure, sva tlmt they may liave know-
ledge and understanding of the lawes," has always seemed to me a very enlight-
ened provision ; and as the opportunity of imposing an educational test on electors
has \nien lost by the apathy and irresolution of the educated classes, it might per-
haps still be |>o8sible in some measure to sup]>ly the place of it by imi)osiiig some
•uch test on the elected. At all events the opportunity of prosecuting i»f)litiriil
education in a more systematic manner than is at present possible in this country,
ought to be offered to our young politicians, and this run be best done, ns it
•ecms to me, by developing our " sehules of jure "—that is to say, the faculiies of
law in our Universities — on the poUtirnl ami legislative, as opjiosed to the pro-
fensionnl and judicial side.

4G8 OF THE SECONDARY SOUECES

tlicir importance. For admission to all the professions, and
more particularly to the law, it ought unquestionably to be
demanded ; and this is a measure in the hands of bodies so
obviously interested in it, that its adoption is not improbable.
In Germany — a country from which we have still much to
learn — the degree of Doctor of Laws, or some equivalent test,
is required for admission to all the higher offices of the civil
service of the State ; and these tests imply instruction and
examinations in scientific jurisprudence or natural law,^ in
politics, and in political economy.

But, even on the assumption that it was to be entirely
voluntary — if direct political instruction of every kind, from
the highest and most exhaustive which the Universities could
communicate, down to the simplest and most obvious which
need be no burden on a parish or even a ragged school, were
to be sown broadcast over the land, I cannot doubt that it
would speedily yield a rich harvest, not only of progress and
safety, but of peace and goodwill. Great advantages have
already resulted from the extent to which a knowledge of
political economy has been disseminated in this country,
partly by popular lectures, but chiefly by the newspapers.
It is this knowledge, more than anything else, that has
protected our lower classes, beyond those of other countries,

1 In consequence of the ascendancy of the military and materialistic spirit,
Germany, during the last twenty years, and more especially since the French
war, has exhibited very little activity in the philosophy of law, or, indeed, in
any branch of philosophy. In some of the Universities, I believe, the exami-
nations in Ilechtsphilosophie have been omitted, probably from the difficulty of
finding competent examiners. For the present the philosophical mantle, which
Germany wore so proudly in the beginning of the century, appears to have fallen
on tlio shoulders of Italy.

OF POSITIVE LAW. 469

from the delusions of commimism, socialism, and other forms
of political and economical error. Bnt such benefits would
be infinitely deepened if men in general could be taught in
their youth not only that such schemes are unprofitable, or
even that they are wicked, but that they are impossible ;
for the simple reason that they violate natural laws which
are as unchangeable as those which govern the revolutions of
tlie seasons, the flow of the tides, or the alternations of day
and night. If the politician could expound the two words
" necessary " and " impossible " in their political acceptation,
as the economist has expounded the words " profitable " and
" unprofitable " in their economical acceptation, our " reigns
of terror" would be over. Such teaching would no doubt
demand some philosophical, and more especially ethical,
training, as well as a considerable acquaintance with his-
tory, on the part of the teacher. But, by any one so fur-
nished, I am convinced that it could be communicated in a
manner that would be perfectly intelligible and convincing,
not only to every reasonable man and woman, but to
every ordinarily intelligent child of ten or twelve years of
age.

3. The Press.

When we speak of the press, in this relati(jn, it is necessary
to distinguish between the art of i)rinting and publishing,
wlien used for the purpose of developing or disseminating
truth or error, and the act of printing and puljlisliing when
carried on as a mercantile speculation. Tn the former capa-
city the press is an instrum(!iit, tin; effect of wliich, for i^ood
or evil, will be proportioned to tin; i>o\ver of liiin wlio wiehls

470 OF THE SECONDARY SOURCES

it. Its function is to represent new opinions, and its ten-
dency will always be to go beyond the community in some
direction ; whilst in point of ability it will generally either
rise above or sink below the general standard of thought and
knowledo'e. Even the error which it teaches will not be alto-
gether common error ; and where it exercises any influence
at all, that influence will be in the direction of developing or
exaggerating existing opinions rather than of disseminating
them. What may be called the mercantile press, on the
other hand, which alone properly falls to be spoken of in this
section, is the most efficacious means which the modern world
possesses of popularizing and diffusing thought and know-
ledge; but its function scarcely rises higher. The question
with its conductors, necessarily, is not " what is true ? " but
" what will pay ? " and nothing will pay immediately which
rises very much above, or pay at all which sinks very much
below, the point at which the general intelligence stands for
the time being. Publishers by profession, and those who seek
their favour, are thus of necessity teachers, and not cultivators
of science ; and inasmuch as the mercantile value of a book
is the best possible test of its value as an organ of instruction,
jjublishers and booksellers, whilst consulting their own in-
terests, are at the same time the most efficient managers of
the press for mere teaching purposes. Where public taste
is good, the books which they select, in point of form often
leave little to be desired ; they frequently contain new facts ;
and they exhibit familiar opinions, and even sparkling para-
doxes, in brilliant language. But new, and as such, recondite
thought, is necessarily excluded from them. Even thought

OF POSITIVE LAW. 471

which is familiar in one country is scarcely ever introduced
into another by the mercantile press, for the simple reason
that the works in which it is embodied, even when translated,
do not pay till, by academic teaching, or otherwise, they have
become familiar. In addition to popular books, the mercan-
tile press includes magazines, reviews, and other periodicals
which are the property of publishers, even when conducted
by " able editors " — with the partial exception of those which
publish the names of their contributors — together with the
vast majority of newspapers. From the immediate and mar-
vellous increase in the quantity, and deterioration in the
quality of its newspapers that takes place the moment that a
nation sinks into anarchy,^ it would almost seem as if auton-
omous reason were in an inverse proportion to the time and
energy consumed in the production and perusal of this species
of literature. And yet there is no other secular means of
developing the popular reason which possesses half the effi-
cacy of the newspaper press ; and there is none which is, on
tlie whole, more worthily used, in this country.

The other evils which to some extent counterbalance the
many benefits which the mercantile press confers on tlie
cause of civilization seem to be mainly these —

{a) From the zeal and energy witli whicli ])opular works are
pressed on the attention of the public, tlie success and to some
extent the production of recondite and original works is in-
terfered with. 'I'hc greater activity of the learned ine.ss in
Germany than in Kngland, i.s in sonic degree to be accounted

' Thi« i>1icnoiiicnon, I .'im toM, i^ invariably cxliilHtc«l in llii; .Soulh Aiucru an
BUUm the nioinunt tliut n ruvolutioii occiiih.

472 OF THE SECONDARY SOURCES

for by the greater activity of the popular press in England
than in Germany.

(h) The multiplication of secondary sources of thought and
knowledge draws attention away from the primary sources,
and induces men to follow inferior guides. In place of read-
ing a little of standard works, most of us read a great deal
about standard works.

(c) The amount of time and energy devoted to trivial and
indolent reading, limits that which most men have at their
command for meditation and reflection. The most common-
place persons are very often those who read most ; and prob-
ably the dead level of character of which we all complain,
and which most of us exhibit, is in no small measure due
to the efforts requisite to keep up with what is called " the
current literature of the day."

4. TJie Polling-looth.

The mere exercise of the electoral suffrage is by many
regarded as sufficient to confer the measure of rational will
which its rational exercise demands. The proverb that
" office makes the man," here above all, it is said, is true. I
am far from denying either the truth of the proverb, or its
bearing on the matter in hand. Practice is the best of school-
masters, and the polling-booth is a very precious school of
political instruction. It is in recognition of this fact that I
mention it here amongst the means by which the rational will
of the community is formed, though I regard its direct and
primary function as being, not to form that will, but to
measure it and declare it.

But granting its title to take rank as an educational in-

OF POSITIVE LAW. 473

stitution, it is an error to suppose that, by tlie suffrage, or any
other office or function, we can supply gifts by merely calling
for their exercise. It is precisely the same error that is made
in supposing that by multiplying examinations ^Ye supply the
place of teaching. The Bench of Judges and the Bench of
Bishops are both of them very sharp and efficient schools of
instruction ; but did any sane man ever propose to appoint a
judge or a bishop in the hope that he would thereby be in-
structed in the duties of his calling ? Even supposing the
ultimate instruction of the individual to be an adequate
return for the injury to himself and others which must arise
from his inevitable failures in the first instance, this object
would not be attained; for experience will no more supply
the place of knowledge than sunshine will supply the place of
seed. You can no more convert a mob into disciplined citizens
by giving them the suffrage, than you can convert them into
a disciplined army by giving them muskets ; and we do not
require to travel into the history of former times to convince
ourselves, either that the dangers attendant on the two ex-
periments are on a par, or tliat the one experiment has a
tendency to lead to the other.

The rea.son wliy men fail to see, in the case of the suffrage,
what is so obvious with reference to every other function, is
that its exercise is regarded only in the character of a right.
Men, it is said, have no right to be judges, or Ijishops, or
soldiers, but all men have a riglit to be citizens, and to all
the advantages which may arise from the exercise of citizen-
ship. The error, like the opposite one; of denying that it is
:i right altogether, arises fr<jni forgetfuhies.s oi' the relation,

474 OF THE SECONDAKY SOUllCES

which we formerly discovered, of the inevitable reciprocity of
rio'hts and duties. We then saw ^ that there are no absolute
rights at all, in the sense of rights, to which corresponding
duties do not attach ; and that if there be a failure of reciproc-
ity as regards duties, it can only be in the case of the duties
which we owe to the Author of our being. The two prevalent
theories of the suffrage are thus equally erroneous, and from
the same cause. Like all other functions that are legitimate
at all, the function of citizenship is hoth a right and a duty,
inherent in all who are capable of its exercise. It is inherent
in them as a riglit in proportion to the extent to which it is
a duty, but it emerges neither in the one character nor in the
other till, nor beyond the extent to which, it emerges in both.
On precisely the same principle lawyers and clergymen are
entitled to preferment — men who are able and willing to
defend the community are entitled to pow^ler and shot ; but
in each case the right brings its corresponding duty, and con-
tinues dependent on, and measured by, its performance.

But these considerations, though they deprive the suffrage
of the character of an educational institution, except for those
who are already capable of its exercise, do not invalidate it,
for those who are, as a potent instrument for the formation
and development, as well as for the expression, of rational
will. It has taught much in England ; we must hope that it
is at last beginning to teach something in France ; and if
graduated in proportion to capacity, it would have the farther
advantage of acting as a very powerful stimulant to the use
of the other means of progress.

^ Ante, Ijook I. cap. vii., xi., xii.

OF POSITIVE LAW. 475

But there is another ground on which we must limit our
recognition of the suffrage as, in any exceptional manner,
entitled to the character of an educational institution. In a
manner closely analogous to that in which it belongs to the
electoral or representative system, an educational character
might be ascribed to every other institution of the social
organism. The Legislature which enacts positive law, the
court which administers it, the executive which enforces it in
civil, and, above all, in criminal cases, like the laws which
they enact and administer and enforce, are all of them
"schoolmasters to bring us unto Christ." ^ The State, as a
whole, like the life of man in its highest and widest concep-
tion, is a teaching institution,^ and is thus the source of that
positive law, of which it is likewise the fullest and most per-
fect expression. The apparent pctitio principii of which we
are guilty in thus viewing positive law, or the State which is
its embodiment, as its own source, arises only when we lose
sight of the distinction which we formerly made between
jurisprudence as a special science, and jurisprudence as a
Ijianch of the science of life. Viewed as a special science,
law does not teacli, but only gives freedom to learn. It is
thus only mediately, through its participation in tlie wider
objects of life as a wliole, tliat positive law contributes to its
own formation, and, as we have likewise seen, to its own

' (Jal iii. 24.

- That OcxI'h dc-alingH with man, not in time only, Itut in eternity, arc wholly
edacational, waa a favourite thou/^ht with the latn Mr Krhkinc of Linlallieii, and
he ha« worked it out in many direetionH in the jirofounrl and clotiuunt iiaperH
which he ha« left l)ehind him. — "The Spiritual Order, imd other pajMrM, helected
from th' MS of tin l;ii. Tlionjaa Ernkine nf I,iiil;ifli< n."

47 G OF THE SECONDARY SOUKCES

gradual and approximate, though not in this world, probably,
to its ultimate annihilation.-^

II. The means hy lohich the community develops its rational
ivill.

(a) Conscious effort on the part of individuals and classes. —
Under this head a question deeply affecting the duties both of
individuals and of classes forces itself on our consideration.
In quiet and uneventful times we are much in the habit of
consolino- ourselves for the lack of individuals of unusual

insight or strength of character, and possibly of justifying our
own inactivity, by the notion that though government may still
demand some sort of conscious and organized superintendence,
progress, for the future, may be intrusted to a certain divine,
though blind, instinct which inspires the masses. Our doctrines
of social evolution and development fail to take cognizance of
the fact that society is only a congeries of individuals, and
accepting the theory that " the individual withers, and the
world is more and more," not statesmen and politicians only,
but the educated classes, as a whole, have recently exhibited
a tendency to abdicate their traditional leadership, and to
make a merit of " drifting," as it is called, or indolently float-
ing on the current which they had formerly striven to direct.
Sensible that the impious denial of the universality of reason
must be abandoned — recognizing tlie fact that the rule of an
exclusive oligarchy was unjust and is for the future impossible,
and dazzled by the attraction of extreme opinions now in the
direction of democracy and now of imperialism, — they have
seen no resting-place between the untenable position which

^ Ante, Book II. cap. i.

OF POSITIVE LAW. 477

they quitted, and a fatalistic acceptance of the dictation, and,
as a practical consequence, of the dictatorship, of the numerical
majority, or of its leaders for the time being. Vox po^uli vox
Dei has been accepted, not as a recognition of the fundamental
rectitude of mankind, or of the presence of rational will in a
particular community, but of the infallibility of the portion of
mankind, or of the community, which has always been, and
must always continue to be, the most fallible. It is the same
error which I pointed out,-^ in another connection, as having
been committed by those anthropologists who seek to derive
their knowledge of humanity from a study of the imperfectly
organized, the partially developed, or the lapsed races of man-
kind, with this difference — that the proposal here is to ascer-
tain the opinions of those most likely to be mistaken, not
with a view to their possible rectification, or even to the
gratification of our curiosity, but in order that we may adopt
them for the guidance of our conduct and of theirs.

But this theory, some may perhaps still be tempted to
allege, is involved in the doctrine, that though man be fallible,
and race sink before race, mankind, as a whole, is divinely
guided to the goal of existence, and the final object of crea-
tion is secure. For this reason it seems necessary that I
should analyze it willi wliat, to some, may appear sujjcrlluous
care.

The theoretical answer to the belief in the loudest cry of
the hour as the true expression of the rational will of a
j)eoplc, or rather the theoretical means of sifting the trull i
from the error which that belief contains, is not far to seek.

' Ante, Il<>f»k I, <:ai». iv.

478 OF THE SECONDARY SOURCES

It is furnished by a fact on which I have already dwelt
sufficiently — viz., that though God has endowed all men
alike with reason, He has not endowed them all with
like reason ; and that, as duties and gifts are reciprocal.
He cannot have intended to absolve the recipients of His
greater bounty from corresponding responsibilities. The
promise of divine guidance, which the instincts of our nature
afford us, is not a promise of guidance without human means ;
and the human means which God has appointed for this end
are — leadership proportioned to power and reason, and obedi-
ence proportioned to immaturity, imbecility, mediocrity, and
irrationality.-^ Effort and self-restraint must go hand in hand,
and it is hard to say whether the failure of the one or the
other be most fatal to progress.

Neglect of the means, it is true, will not arrest the laws of
nature, or prevent the attainment of general or final ends.
Winds will blow, and tides will run ; ships, as a rule, will
reach their ports, and mankind will " rejoice on the shore."
But individual ships will perish, and individual men and
nations will weep ; and this equally whether their officers
neglect to issue the requisite orders, or their crews refuse to
obey them. No providential guidance of wind or tide, no
Ijlind inspiration of the crew, will supply the place of honest
conscious effort, or loyal obedience, as his duty may be, on
the part of any single member of the crew. But the con-
sequences of negligence will not be equal, either in all or to
all. On the contrary, it will increase and diminish in exact

1 "The fountain-head of all life, and the only possible human cause of any
development, is conscious personality." — Bunsen's God in History, vol. i. p. .'jO.

OF POSITIVE LAW. 479

proportion to the importance or insignificance of the indi-
vidual, from the captain to the cabin-boy. Power and reason
will be the measure of responsibility — a measure which will
certainly be applied to it here or hereafter.

The cle facto principle, properly understood, is thus our
answer to the fatalism which has been ignorantly urged
against it ; and this just as much whether fatalism springs
from democratic or despotic roots. The exclusive rule of the
many gains no more by it than the exclusive rule of the few ;
but it surrounds the proportional rule of all with the halo of
divine authority.

Such, then, I take to be the theoretical response which it
behoves us to return to the claim of the body politic to
march, like St Denis, with its head in its teeth. Let us
now see to what extent experience warrants the experiment.
Thucydides said of the Athenian state, in the days of Pericles,
that, tliough nominally a democracy, it was in reality a
government administered by the first man. I believe he
would have uttered no paradox, had he said that on this
account alone did it enjoy its short and precarious existence
as a democracy, even in name. But tliough the appearance
of such a leader as Pericles doc8 not often occur, and even
such an approach to democracy as Thucydides commemorates
ha.s rarely been recorded by historians, there never has been a
generation of civilized men, particularly if it was at all a pro-
gres.sivc generation, to which a body of persons, few in com-
parison with the whole community, did not fill the place
which Pericles did to the Athenians at the commencement of
the Peloponnesian war. if any particular iiciiod of history

480 OF THE SECONDARY SOURCES

be mentioned, we can, for the most part, tell the names and
count the numbers of those who, in any individual state,
directed the current of thought and action. True it is that
to those of whom history takes note there would fall to be
added, in order to sum up the leaders of a whole generation,
a still greater number of persons — women, for example, and
mothers more especially — whose activity was not less pre-
cious, but w^ho, partly from accident and partly from choice,
have been covered by a privacy which history endeavours to
penetrate in vain. As civilization advances and knowledge
is disseminated, the influence of this silent class increases.
It is its increase amongst ourselves which renders it increas-
ingly difficult to calculate the results of a general election.
But this silent class too has its silent leaders, more numerous
it may be than those who in the general community come
ostensibly to the front. Still, if both classes were reckoned
together, the tale would be inconsiderable,^ not only as com-
pared with the whole community, but with those who hold
public offices, or who sit in the Legislature. The number of
names in Smith's Dictionary of Biography probably does not
exceed the number of officials in the Koman Empire at any
one time from the age of Augustus to that of Constantine,
and certainly does not equal the number of inhabitants of a
very moderately-sized city ; and yet it contains the name of
every person who is known to have influenced thought and
opinion in the ancient world, together with the names of
many who certainly did not. If the latter be put against
the great names that have perished, perhaps the whole

^ Coleridge's Statesman'' s Manual, pp. 214, 215, Pickering's eel.

OF POSITIVE LAW. 481

number of names which it contains may pretty nearly corre-
spond to the whole number of really influential men and
women who lived during the whole period of history which
the work embraces.^ These remarks may seem to conflict with
Mr Herbert Spencer's strictures on what he calls " the great
man theory " of history, and to a limited extent they certainly
do so, for these strictures seem to me to involve a palpable
fallacy. He enumerates the great men of history, and he
asks, " Could they have done the works they performed apart
from the social and intellectual conditions in which they
lived ? Could Shakespeare have written his dramas, or Watt
invented the steam-engine?" I reply, Most certainly not.
But the men might have been equally exceptional, and have

^ One of ray pupils did me the favour to test this assertion by counting and
classifying the names in the Dictionary of Biography and Mythology, and also
in that of Geography, including the whole period from Homer to Justinian. He
tells me that they contain : —

1st, Persons of little importance, who are mentioned simply from
their connection with some event, or from allusions to them

hy classical writers, 2005

2d, Persons of whom a brief sketch is given —

Males, 1322

Females, 118

3d, Persons of whom an account is given, varying in length from
I page to 3 pages. This class includes all the names that a
IKirson having received an ordinary classical education could
be expected to know —

Males, ........ 32G

Females, ........ IG

ToUil, 3787

If the 2005, comprising the first of those classes, bo taken to represent the
forgotU.-n namoH of tho.ne whom I have called " HJlont leaders," the total, 3787,
may |M>rhapH give an approximation to tlicj number of pcrHons wlio cxcrciHCil cx-
oeiitional influence over their fellow-men during lliiM long [x-riod of liintory.

2 II

482 OF THE SECONDARY SOURCES

done works, relatively to their surroundings and opportunities
and the requirements of their age, equally remarkable. His
observations are true and valuable to the extent of showing
that we cannot understand the course of history by studying
individual characters apart from their surroundings, but not
to the extent of showing that these surroundings were not
influenced by the conscious efforts of the few far more than
by the unconscious tendencies of the many.

But granted, it will be said, that the few have led the
many in times past, does that fact afford any proof either
that they will continue to lead them, or that they have led
them forward ? I answer that it affords a good deal of proof
both ways, because, first, there is always much reason to
believe that what has continued long, and been often repeated,
depends on laws which are permanent ; and, second, perman-
ent laws, being God's laws, the result of their action, by what-
ever means, will be progress ultimately and on the whole.

But there is another consideration than that of the number
of actors by which we may perhaps come nearer to a solution
of this question. Though the history of the world presents
to us the phenomenon of a flowing tide, it is a tide in which
the receding alternates with the advancing wave. Let us take
such of the advancing waves as are historically known to ,
us, and try whether we can so analyze them as to discover
whether the influences which moved them onwards have been
supplied by conscious individual effort, or by unconscious
general impulses.

The greatest of all onward movements, and the most pop-
ular in the sense of being that by which the people were the

OF POSITIVE LAW. 483

greatest gainers, surely was Christianity. Did Christianity,
then, spring up as a spontaneous popular growth, or was it
laboriously sown and watered with the blood and tears of a
single Founder ? We are often told that great men are mere
exponents of a spirit which is struggling for utterance, that
they light a train wliich is laid. But such expressions are in
general only acknowledgments of our ignorance of how the
spirit was infused, or the train was laid. In the case of this
greatest of all men, and of all popular leaders, we know, at all
events, that He struck no chord that was ready strung. On
the contrary, the many of all ranks " rejected and despised "
Him ; and after His marvellous work was ended and His
teaching was complete. His whole adherents assembled " in
an upper room."

But the origin of Christianity, it may be urged, was mirac-
ulous, and affords no analogy by which we may judge of the
action of human causes. That the character of its Founder
can be measured by no human standard I fully admit, though
I believe that much of the benefit of Christianity is lost by
HLs activity being treated as an exception to, in place of an
ideal instance of, the general action of Divine grace. But I
am quite willing to peril this argument on wliat are usually
regarded as natural occurrences. By Protestants, to whom 1
mainly address myself, the Beformation, notwithstanding the
inconveniences attending it, to whicli I have already referred,^
will be admitted to have been the most unequivocal step in
advance that mankind has made since the 8i)read of Chris-
tianity. Now, whatever jjhase or ])eriud (jf th<^ Kcformation

• I 'p. ^7^^, '27 :i.

484 OF THE SECONDARY SOURCES

we select, in whatever country we study it, I think we shall
find tliat it was traceable to individuals. In England, in the
fourteenth century, it received its first impulse from Wickliffe
and Chaucer, and it was favoured by the King and John of
Gaunt. In their own way, possibly, Occam and Greathead
(Gros-tete) did even more. In many places, no doubt, " the
common people heard it gladly ; " but it was preached to them
by a few who were not only specially gifted, but had been
specially instructed. It was not for a couple of centuries
later that it fully took hold of the masses, and even then
by no means spontaneously. In Bohemia, it was Wickliffe's
writings and example that inspired, not the masses, but
John Huss and Jerome of Prague, both of whom were univer-
sity men. With them the movement was born, and with
them, substantially, it died. In the sixteenth and seventeenth
centuries the Keformation became a popular movement, if ever
there was one ; but it did not even then begin with the people.
Its cradle was the University of Wittenberg ; and, in so far as
it was an advance in thought, it scarcely made the slightest
progress after it passed out of the hands of the learned class.
In Germany, in Switzerland, in Scotland, it remained stationary
at the points at which Luther and Calvin and Knox left it, or
it went back. Even Melville's teaching was narrow and retro-
grade compared with Knox's; and during the periods when,
and in the directions in which, it passed into popular hands,
it strikingly degenerated. German Anabaptists, English
Puritans, and even Scottish Covenanters, though more than
justified in what they did by the illiberality of their opponents,
did nothing but exaggerate the errors to which Protestantism

OF POSITIVE LAW. 485

was prone, and occasion those schisms, dissents, and disruptions
by which both religious and civil life have been rent asunder.
It is the popular conception of Christianity which grew up
amongst the ignorant at this particular period of our history
which, more than anything else, feeds the infidelity of the
present time. Even Mr Mill's scepticism is distinctly trace-
able to it, and was indeed the logical result which his father
had already worked out of it.

Again, take the political reformation, the movement in
favour of universal liberty. Like the religious reformation,
it began in this country in the fourteenth century, and sprang
from the very same roots — it was the secular side of "VVick-
liffe's teaching, — and Wickliffe, and Chaucer, and John of
Gaunt, and Piers Ploughman or Plowman (who was no plough-
man at all) were its first apostles. In the earlier transaction
at Eunymede, it is true, no single name is very conspicuous.
More than almost any otlier Iiistorical event, it possessed the
character of common action ; but then it was tlie action of
the few, not of the many, and it stands out as a conspicuous
example of a gift of liberty by an oligarchy to a whole people.
It was otherwise with the next great step in the development
of our political liberties. The more closely the reign of
Henry III. lias been studied in recent years, the more has it
appeared that the representation of the commons is traceable
to the personal insight and activity of Simon do Montfort.^

]>ut Jack Cade's insurrection, you will say, centres in liis
name, as unmistakably as the rising in Henry lll.'s day
does in that of Simon de Montfort ; and if the latter be
' Pauli, (Jc9chiclUc vun Enghtml, vol. iii. p. 488 ct scq.

486 OF THE SECONDARY SOURCES

called the father of the commons, the former with equal
reason may be called the father of communism, unless, in-
deed, his distinguished predecessor, Wat Tyler, have a better
claim to it.^ I am far from desiring to rob either of them
of that honour. Mobs have their leaders as well as armies ;
error has its apostles as well as truth ; weeds may be sown
as well as. grain ; the demagogue and the fanatic are indi-
viduals, as well as the sage and the saint. What I maintain
is that weeds will sow themselves, but grain will not — at least
not to any useful purpose ; and that in like manner, though
error may be planted and cultivated, and retrogression may
thus be precipitated by individual effort, it is not dependent
on it, whereas truth and progress without it are impossible.

Of this we find a conspicuous example in that remarkable
movement which has so deeply affected the life of our own
time, and which may in some respects be traced to the free
institutions of our own country, and the liberal aspirations of
our race — I mean " the Eevolution."

Towards the end of last century this movement was ushered
in and welcomed by a galaxy of talent and of virtue as great
as is to be found in most periods of history. Washington
and Lafayette and ISTecker do not perhaps rank very high

^ The best claim of all is probably that of John Ball, the vagabond priest, whom
the people took out of the archbishop's prison, and put forward as their spokes-
man in Wat Tyler's insurrection, in 1381. From his sermon, as sketched by Dr
Pauli, it would seem that he laid claim, on behalf of his constituents, to absolute
equality — Freiheit tend Gleichheit — in the sense of 1789. His cry was JEqua,
Uhertas, cadem nobilitas, par dignitas, similisque potestas —
Whan Adam delfte and Eve span,
Who was then a ^^cntleman ?

— Pauli, ut 8up.^ iv. 527.

OF POSITIVE LAW. 487

amongst the intellectual heroes of hTimanity, but their char-
acters were an entire guarantee for the purity of their inten-
tions ; and when we remember the circumstances in which
they acted, and recall the doctrines which they desired to
teach, we have no difficulty in accounting for the undiscrimi-
nating sympathy which they experienced even from men like
Edmund Burke and Immanuel Kant. In America, down to
the presidency of Jefferson, and in France, till the meeting
of the National Assembly, the Eevolution is chargeable with
no serious error. Its doctrines, as understood and acted on
by its promoters, amount to nothing more than a recognition
of truths which we ourselves have found to rest firmly on the
basis of nature, and which, in this country, had been recog-
nized more than a century before by the Eevolution of 1688.
But these doctrines, unhappily, even in the state documents
which were issued, were not stated with such perspicacity ^
a,s to guard them against the errors which the writings of
EoiLSseau and others had sown in the public mind ; and no
sooner did the Revohition pass out of the hands of its origin-
ators, and become a merely popular movement, than this very
remarkable plienomenon was exhibited. The truth was
received with comparative indifference, and has often since
been entirely lost sight of; the error was hailed with shrieks
of enthusiasm, and clung to with fanatical devotion. TIk;
reason, of course, was that the on-or appealed to tliu .su})cr-
ficial and immodiato, the truth to llio deeper and fimrlninontal
instincts of humanity. Liberty really meant la carritrc ouvcrtc
fiXLx talents, "the tools to bini that can handlo llicni," and

' A)Ue, \K 392,

^88 OF THE SECONDARY SOURCES

SO it was preached at Urst. But what was that in compari-
son with the glad tidings that came afterwards, that men for
the future were to handle no tools at all ? Equality again
was equality before the law. But that w\as no very dazzling
boon ; for, though the law might give no heed to who a man
was, it was much to be apprehended that it might take
cognizance of what he did, and failed to do. Equality before
the tax-gatherer was another phase of equality before the law ;
but that the tax-gatherer should knock at all doors alike, was
a mere mockery to him who had got hold of the higher
doctrine that he should knock at all doors but his. Even
fraternity was a principle that cut both ways, and re-
quired to be defined in a liberal sense. But absolute equality
— meaning thereby a levelling-down to the leveller's own
level, and a fair division for the future, not of work but of
wages — that was what was wanted. And such accordingly
was the construction which the inspiration of the many, as
expressed in the " Declaration of the Eights of Man," put on
the equivocal words with which Washington and Adams, to
the great regret of the latter,^ had permitted Jefferson to
head his " Declaration of Independence." It is now ninety-
one years since the revolutionary doctrine received this pop-
ular exposition from nameless, or at least unmentionable
individuals.^ During that long period the Eevolution has

^ Ante, p. 392.

2 The miserable fate which overtook most of these wretches is well known.
The following, though I have it merely on newspaper authority, is probably a
pretty accurate account of what is known of them : "'No less than fifty-eight
were guillotined, including Carrier (to be remembered for his Loire marriages),
Couthon, Danton, Camille Desmoulins, Robespierre, St Just, Philippe Egalite,

OF POSITIVE LAW. 489

liad no single leader who rose above, and very lew who
reached, the average intelligence of an educated man. The
learned class has kept aloof from it, and the consequence has
been that, as a political doctrine, it has remained absolutely
stationary. Like the dynasty which it superseded, it can
neither learn nor forget. In 1880 it is still muttering the
shibboleths of 1789, and Eussia is threatened with the
experiences of France. The only approach to a new idea
which has come out of it, even indirectly, is the idea of
Ccesarism, by which it has twice been overthrown ; and in
striking confirmation of my thesis, that idea did not originate

&c. Two were shot. Eight were assassinated — Andrein, Constitutional bishop
and representative of Morbihan ; Marat, stabbed in his bath by Charlotte Corday,
kc. Fourteen committed suicide, including Kuhl, who broke the bottle of sacred
oil at Rheims, and Romme, who drew up the republican calendar, with its
Thennidor, Fructidor, its sans-culottides, its decades, &c. Five died of grief,
and one of liquor. Four ended their days in a madhouse ; and six, including
the Marr^uis de Fonvielle, perished in abject misery. Three more were found
•lead, the bodies of two half devoured by dogs. Two died more nobly in the
ranks of the army — Gilet, who fell whilst serving under Jourdan ; and Albite,
frozen to death during the retreat from Moscow, The ex-deputy of the Sarthc
was carried off by the Prussians in 1815, and died at Berlin. The cure Bassab,
v.ho represented the Seine-et-Oise Department, died in prison wlien about to bo
tried before a court-martial at Milan for robbery. One deputy perished from joy ;
his name was the same as that of the deputy who fell on the barricades in Paris
on the 2d December — Baudin. "What sudden and fatal delight he cxperi(;ncod
is not clironided. The member of the Gironde, Jai-dc-Sainte-Croix, was burned
in effigy at Philadelphia for liaving signed a treaty of commerce with Lord
Granville, between England and America. It is probable that, only burned in
proxy, Citizen Jai-de-Saint<^;-Croix died a natural dcjatli. Three other deputies
died suddenly. One hundred and thirty-eight were transported or exiled, and
most of these died abroad. Sixty-five disappeared, and left no trace behind them
except their crimes. Such was the ultimate fate of the members of tlie National
Convention." I cannot regard it as a good omen for France that the walls of tho
Salon should still be annually <Towd<d willi pictures ruiiresenting them and tluir
deodft.

490 OF THE SECONDARY SOURCES

with the people, but was the old idea of the latter Empire,
revived by two very remarkable individuals whom the insup-
portable anarchy under which the nation groaned, or with
which it was continually threatened, called into activity.

I shall mention but one other instance of a progressive, and
with us now happily a popular doctrine, the origin of which
was not popular — the doctrine of Free Trade. The honour
of its discovery and scientific enunciation, as a legitimate
inference from the facts of nature, belongs prominently to the
occupant of a university chair in this country, and exclusively
to the learned class. Even its popular triumph in England
was effected mainly by the personal efforts of two individuals
of unusual energy and oratorical power. In France its
partial adoption was due to one whom " the Eevolution "
cannot mention without execration ; and " the Revolution "
has always opposed it. In America it is opposed by the
extreme representatives of popular opinion. The only novel
and fruitful application of the principle of fraternity, has thus
been everywhere condemned by the most boisterous advocates
of that principle. Even in the cases in which proposals to
revive protection under the guise of reciprocity, or otherwise,
have proceeded from professedly Conservative sources, their
object has invariably been to catch the democratic vote for
despotic purposes.

Greater than even the impetus of free trade has been that
which material progress has derived from mechanical inven-
tion, and no one, I fancy, will question that invention is the
work of individual effort. We did not " drift " into a know-
ledge of the uses of steam or electricity.

OF POSITIVE LAW. 491

But I must not multiply instances, or dwell longer on
a theme which manifestly admits of indefinite expansion.
Enough, I hope, has been said to convince my readers, that
whilst experience and reason concur in assuring us that the
voice of man is the voice of his Maker, and thus, in one sense,
vox populi vox Dei is the deepest as it is the oldest of all polit-
ical truths, there is another sense, and a far commoner one, in
which, as rational politicians and scientific jurists, we are bound
to dismiss it as the shallowest and most pernicious of errors.

" Vox populi vox Dei," do they say ?
Alas, quite otherwise ! — and he who first
Mouthed the crude sophism sowed a seed accurst,
To choke the growth of Truth, and bar man's way
To Freedom with rank jungle — fruitful but
Of rottenness. All history proves this true :
God speaks not by the Many, but the Few.
And in all ages, — since "The People " shut
With the blank seal of death the inspirM lips
Of Socrates, — since that yet darker hour
"When blood-stained Calvary owned their "sovereign power,"
And nature groaned in eartliquake and eclipse —
Has that fierce Voice, at some loud babbler's nod,
Been lifted in blind rage against the voice of God.^

(b) Social Organization.

In studying the objects of natural law, w^e have seen ^ that
order, thougli not indeed the object in itself, is tlie means,
sine qxiA mm, to the attainment of tliat object, wliich is liberty.
We now encounter a special illustration of this general relation
in the fact that the development of the rational will, in virtue
of which a community is autonomous, is dependent on, and
proportioned to, the perfection of its organization. In llio
last section I endeavoured to show that the, formation ;ind

* Spiiulrift, by Sir .1. Notl I'uton. ' AnU, y. 'Ml.

492 OF THE SECONDARY SOURCES

development of the rational will is the work of conscious
effort, and not a spontaneous growth of unconscious and self-
directing influences. It is obvious, then, that, like other works,
this work will have the best chance of being performed well
when it is portioned out to the special labourers, or classes of
labourers, who can best perform it, according to their respec-
tive capabilities, and not when, capable and incapable alike,
they all set about it indiscriminately without order or method.
Now, wdth rare exceptions, of which I shall speak presently,
such portioning out is effected spontaneously by the natural
division of society into what are called classes or orders, which,
for purposes of social and political work, exactly correspond
to its division into professions and handicrafts for the per-
formance of its other functions. If castes, by which men are
deprived of each other's aid, be an impediment to progress,
classes, by means of which they are enabled to avail them-
selves of each other's qualities, and supply each other's defects,
are in both respects precisely the reverse ; and the cry for the
abolition of class distinctions must be numbered with the other
hallucinations of false liberalism —

' * Take but degree away, untune that string,
And, hark, what discord follows ! " ^

The class to which a man belongs is merely the more
immediate sphere in which he is called to work, for the time
being. So far from its being requisite that he should remain
stationary in one class, the very highest test of the usefulness

^ Troilus and Crcssida, Act i. scene iii. In Mr Herbert Spencer's Study of
Sociology (p. 60) some interesting illustrations will be found of the action of the
law of " Diifurentiation."

OF POSITIVE LAW. 493

of a citizen, just as of a soldier, will often consist in liis having
passed successively upwards, tlirougli every class from the
lowest to the highest ; whilst, conversely, his progress down-
wards will be the surest sign of uselessness. But at each stage
of his progress, in the one direction as in the other, his value
will in no small measure be proportioned to the completeness
with which he enjoys the privileges and shares the responsi-
bilities of the class to which he belongs, for the time being.
The best colonel will be he who was the best captain, in his
day. The only natural limit to social promotion, either in
extent or rapidity, consists in the inability of any but the
dite of mankind adequately to perform the duties of any class
except that in which they were born, or for which they have
been educated, or to perform them without long practice.
Each step, whether upwards or downwards, demands a new
education, a process both of learning and unlearning, of which
few men are capable ; and unless this new education be com-
plete, or at least as complete as the former one, it is obvious
that both the community and the individual will be losers
by the change. The point of transition is always a period of
peculiar danger. The notion prevalent in free countries that
every man who is born below the highest level ought to rise,
is thus an error ; thougli it is not nearly so fatal an error as
the notion prevalent in democratic countries that every man
wlio is above the average level ouglit to fall. To tlie " levelling
down " process, in addition to the consideration that it is a
retrograde step on the part of tin; soci(;ty wliicli performs it,
by means of whicli it loses ground botli al)Solutely and lela-
tivoly to surrounding nations, tlierc is tliis fartlior objection as

494 OF THE SECONDARY SOURCES

regards the individual, that men adapt themselves far better to
the duties of the class above them than to those of the class
below them. Even where the descent can be ascribed neither
to the fault of the individual nor to the injustice of others, it
is always a misfortune over wliich few men can triumph.

Though the classification of society which naturally results
from the unequal distribution of individual gifts, if not artifi-
cially interfered with, will effect such an amount of division
of labour as to supply the conditions of orderly, and as such,
to a certain extent, progressive existence, it does not exhaust
the means of organization which every society has at its dis-
posal. More or less every man has his speciality, in the sense
of a kind of work for which he is more suited than for any
other. But the difference between normal and exceptional
men, in addition to a difference of power, lies also in this, that
the specialities of the normal man belong to many, whereas
the specialities of the exceptional man belong to few. It
is obvious, then, that the community, whilst it suffers but
slightly from the mal-selection or neglect of labour in the one
case, will suffer very seriously from the same causes in the
other ; and hence the necessity for its active interference to
secure its extraordinary resources. It is true that men who
have strongly marked specialities will, in general, not only
manifest them, but insist on following them ; and thus their
selection may be said to be spontaneous. But men often
deceive themselves, and it is therefore not surprising that they
should deceive others, particularly with reference to subjects

OF POSITIVE LAW. 495

which, ex hypothcsi, can be familiar to few. Hence the neces-
sity for the community adopting every available test of
capacity before appointing individuals to the discharge of its
less usual duties. The necessity, when such men are selected,
of setting them apart and purchasing their services, for the
most part for life, arises from two facts : 1st, that the work
which we require of them usually demands long-continued
training as well as special gifts ; and 2d, that we cannot
trust to their being maintained by the direct and immediate
sympathy of the community. The mercantile press, we have
seen, can render them no aid ; and it is impossible that they
can be popular teachers of what must, necessarily, be unpop-
ular subjects.

The Professoriate. — The institution by means of which ex-
ceptional work of this kind has usually been secured is the
University, viewed not as a means of disseminating, but of
advancing knowledge ; and the office by which this is effected
is the Professoriate.

It is impossible to imagine any error more fatal to the life
of the State, and, as such, more discreditable to a statesman,
than the error of regarding the University as a mere teaching
institution — excei>t, indeed, the error of regarding it as a mere
examining board, and making no provision for tlie acquisition
of the knowledge which it is to measure. Tlie life of the com-
munity, like the life of tlie individual — nay, like life itself —
exhibits but the two phenomena of progress and retrogression.
Stationary existence is the antithesis of existence altogether,
as we know it. A state, then, which, whilst disseminating and
testing, makes no provision for advancing knowledge, accepts

496 OF THE SECONDARY SOURCES

— not permanence, not even continuous prosperity — but retro-
gression ; the loss first of spiritual and then of physical life,
for the spirit is the salt that keeps the body from rotting.
Now the University is the State in the attitude of a seeker
after truth, of an aspirant to new and higher life, of a claimant
for more reason and more power ; and the organ in virtue of
which the University seeks to gratify these aspirations of the
State, as I have said, is the Professoriate.

The theological faculty of the University, acting by means
of the professoriate as an organ of scientific investigation,
stands to the Church precisely in the same relation in which
the legal faculty, and indeed all the secular departments of
the University stand to the State. It is the organ by which
the Church seeks the truth. The recognition of dogma, which
we have indicated as inseparable from the Church as a teach-
ing institution, here becomes altogether out of place. The
function of an academical faculty of theology,^ like that of
all the other academical faculties, when seen on their scientific
side, is simply to discover the truth ; and thus the faculty of
theology differs from the other faculties, not in its object, but
in the means which it employs.

Of the dependence of the life both of Church and State on
the vigour and activity of a scientific professoriate, the exist-
ing condition of the two leading nations of continental Europe
furnishes striking examples.

During the last half-century, the progress, both absolute
and relative, of the States of North Germany has been pro-

^ As to the function of an academical faculty of theology, see Preface to
Kant's Theory of Religion, pp. 7, 8 ; Semple's trans.

OF POSITIVE LAW. 497

digious. First their intellectual and then their material
supremacy has been reluctantly acknowledged ; and the
centre of power has been shifted from Paris to Berlin.
And simultaneously with this accession of life, the activity
and vigour of the German professoriate has been beyond all
parallel, not only in any other country, but in any other
period of history. In Italy, in Switzerland, and even in
Spain, it has rendered, and I believe is rendering, important
services to progress ; and the same, I hope, may be said of
Scotland. But in no country in the world was such an army
ever equipped and sent forth for the simple conquest of truth
as in modern Germany, and in no country have such victories
ever been gained over error, or has knowledge been so speedily
converted into power. In France, on the other hand, after the
ancient Universities had been swept into the vortex of cen-
tralization, and the State had become a vast examining board,
the Faculties, once the nurseries of science, degenerated into
mere cramming schools, and the scientific professoriate ceased
to exist, — the very name of the office becoming synonymous
with sclioolmaster. The new system has been in operation for
sixty-eight years, — a longer period of probation than lias been
accorded to any other institution of modern France. And now
we find that it is to its degrading and enervating inlhicnces
that the most clear-sighted of French ])oliticians unite in
aficribing the moral, intellectual, and, ultimately, the material
decadence of their country. " The success of Germany," cries
Claire Devillo, " is due to the liberal organization of tlu^
German Universities. Jt in aciencc that his vanfjuishrd us.'*
In farther illustration of this very im])ortant Huhjoct I shall

2 I

"498 OF THE SECONDARY SOURCES

quote two or three sentences from a lecture "On Teaching
Universities and Examining Boards," delivered in 1872 by
I)r Lyon PLayfair — himself a high authority — to the Philo-
sophical Institution of Edinburgh.

" Recent events," he says,^ " have strengthened the convic-
tion which De Tocqueville expressed twenty years ago, that
there is a continually increasing poverty of eminent men in
France. I will cite the evidence only of men of the highest
eminence, members of the Institute, or professors in the Uni-
versity itself. Their opinions may be taken as answers to the
question which forms the title of Pasteur's pamphlet : ' Pour-
quoi la France n'a pas trouve d'hommes superieurs au moment
du peril ? ' That is a grave question for France, and its best
sons are trying to answer it ; but it is melancholy to see the
assaults that they are obliged to make on a University which,
in its days of independence, used to be hailed as the ' fountain
of knowledge,' the ' tree of life,' and the ' candlestick of the
Lord' — terms which were accorded by the enthusiastic ad-
miration of all countries. First, let Pasteur, whose eminence
I need not advert to in an academic assembly, answer for
himself. ' While Germany was multiplying its Universities,
and establishing among them a most salutary emulation ;
while it was surrounding their masters and doctors with
honour and consideration ; while it was creating vast labora-
tories furnished with the best instruments, France, enervated
by revolutions, always occupied with sterile aims at a better
form of government, gave only a heedless attention to its
establishments of higher education. The unanimity is sur-

1 P. 8 c^ scq.

OF POSITIVE LAW. 499

prising with which eminent men ascribe the intellectual
paralysis of the nation to the centralization of administration
and examination by the University of France." ^ Dr Play fair
then cites the passage from Claire Devil] e quoted above, and
thus proceeds : '' Dumas, one of those eminent men in France,
formerly a minister, and for years actively engaged as one of
the eight inspectors of superior instruction in the University,
gives his testimony as follows : ' If the causes of our maras-
mus appear complex and manifold, they are still reducible to
one principle — administrative centralization — which, applied
to the University, has enervated superior instruction.' He
proceeds to show that municipalities and provinces lose all
interest in theu^ colleges and schools when these are deprived
of their powers of self-government ; and when their instruction
and their examinations are regulated from the centre ; and he
contrasts the French system with that of other countries."

" Dumas then indicates wliat is necessary for the restoration
of France to her position among nations — ' Eestorc to our
Universities under the surveillance of the State, wlien con-
nected with State grants, the independence which they enjoyed
before the Eevolution. The great men of tliose times are
,'lorious historical witnesses of tlie vigour of the studies and
^f the discipline effected by tlie liberty of education enjoyed
jy our fathers. ... I plead for the autonomy and liberty
)f our irniversities.' Quatrefages, General Morin, and others,

* Mr Glmlfjtonc \h Haid to have ori^natcJ tlio proposal fur an inquiry as to tlio
xpedicncy of founding a now "National University for Scotland" (21 k 22
let v.. 83, 8ec. 15, § 10) ; but tlio Commissioners report«*d against such a
WMnre, and Mr Gladstone is believed to have since expressed himself in favour
ftho maintenance; of the existing Univ< rMif if <<.

500 OF THE SECONDARY SOURCES

express themselves in nearly similar terms. Lorain, Professor
in the Faculty of Medicine, gives testimony, if possible, still
more emphatic. ... He tells us tliat a central university
professing to direct everything, really directs nothing, but
trammels all efforts in the provinces. ' Originality in the
provinces is destroyed by this unity.' "

"After quoting the opinions of the Commissioners of 1870,
as to the want of unity of degrees in France notwithstanding
the unity of examination, he sums up the demands of reformers
in the following words : ' What we demand is not new ; it
is simply the return to the ancient system — to the tradition
of the ancient Universities. We demand the destruction of
the University of France, and the creation of separate Uni-
versities. That is our programme.' "

" I have hitherto quoted the opinions of men of science, but
I might add to them those of a long list of politicians and
men of literature, from Talleyrand, Turgot, De Tocqueville,
Prevost-Paradol, down to the present day ; but to economize
time I must content myself with two more quotations. In
a letter to myself, Michel Chevalier, after stating that the f
liberalization of the University frequently engaged the atten-
tion of the Senate during the last Empire, sums up his opin-
ion of the necessary reforms as follows : ' Much more of
autonomy in our Faculties than they have at present, even
for those which are supported by the State ; a large vote for
their maintenance in the budget ; liberty for individuals and
associations to found rival faculties ; reservation to the State
under equitable guarantees of the right of granting degrees,
as Ions as there are degrees.' And, finally, to quote a dis-

OF POSITIVE LAW. 501

tinguislied clerical opinion (I give the words of Eenan) : ' The
system of examinations and competitions, on the great scale,
is illustrated in China, where it has produced a general and
incurable senility. In France we have already gone far in
the same direction, and that is not one of the least causes of
our abasement. The paltry Faculties created by the first
Empire in no way replace the great and beautiful system of
rival Universities, with their separate autonomies — a system
which all Europe borrowed from France, and which all
countries but France have preserved. We must create in the
provinces five or six Universities, each independent of the
other.' " Would that, in the moments of tranquillity which they
at present enjoy. Frenchmen would remember the cries for
intellectual guidance which they thus uttered in their agony,
only eight years ago !

One of the greatest political evils resulting from the absence
of a secular learned class in France, has been that the priest
and the demagogue have come face to face, and that popular
reason has by no means been advanced by their altercations.
" Hitherto," says M. Ednan, " France has known but two poles
— Catholicism and democracy. Oscillating unceasingly be-
tween the one and the other, she is never at rest. In order
to do penance for lier demagogic excesses, France abandons
herself to tlie narrowest Catholicism ; and in order to react
against lier narrow Catliolicisni, she throws lierself intu tlie
arms of a false democracy. She ought to du penance fur buLh
of them at once." ^

Tlie dispassionate character engendered Ijy a lite <»f con-

' La lUfonnr, y. 107.

502 OF THE SECONDARY SOUECES

templation is peculiarly favourable for the observation and
appreciation of social phenomena, and the discovery of the
natural laws by which the State is ultimately governed. The
professor may thus be actively lielpful to the practical poli-
tician in determining the objects which legislation must have
in vicAv. But the experience of Germany reminds us that the
political action of the learned class, as such, must be indirect.
Direct legislation does not belong to those who, as a rule,
dwell much apart ; and hence the failure of the " Frankfort
Parliament of Professors," in 1848. Its members were not
sufficiently acquainted with the concrete elements in the
problems presented to them.

The external requirements of an efficient professoriate, in
so far as the community can secure them, seem to be these —

(a) Careful selection of its members. This raises, at once, I
the difficult and as yet unsolved question of the best form of
patronage — the only clear point being that the selection can-
not be by examination, the requisite qualities being of a kind
tliat cannot be thus tested. Probably the " Testimonial " system,
with all its objections, combined with the patronage either
of the Crown, or of a jury in which impartiality is more
important than knowledge, is all that can be made of it, as
the professoriate exists in this country. To a certain extent
the examination test might be used as a starting-point, were
we to adopt the German system of a graduated professoriate,
commencing with the Privatdocejit, passing on to the extra-
ordinary, and lastly, to the ordinary professor. And it is by
the adoption of this system alone, as it seems to me, that we
can hope ever to attain to the formation of a learned class.

OF POSITIVE LAW. 503

What keeps learning down with ns is the want of a career,
upon which a man may enter in early life, with the reasonable
hope of attaining to a comfortable position in middle age.^
The ultimate stages in this career, however, cannot be tested
by examination, for the simple reason that the examinee by
that time is, ex hypotliesi, a representative of scientific views
beyond those with w^hich the examiners could be credited.

(h) Leisure {crxokrj) combined with public teaching, to the
extent of bringing and keeping its members in contact with
the best minds of the rising generation.

(c) Such dignity and independence of position as to protect
its members from impertinent intrusion or popular dictation.'^

(d) Such publicity as to expose them to criticism.

(c) Such competence of external means as to free the
electors from the necessity of choosing those who are other-
wise provided for, and those who are chosen from the temp-
tation of accepting other literary, scientific, or professional
occupations merely for the sake of remuneration ; to enable
them to associate on easy terms with tlie representatives of
tlieir respective departments in other schools of learning, at
home and abroad ; and lastly, to diminisli tlie temptation,
always great, to seclude themselves from the general society
of the places in which they reside.

(/) Such moderation of external means, and modesty of

* I often wish our munificent benefactors wonld keep tliis consideration in
view. No faciliticH they can offer at the Htartin^-poHt, in the shape of hursarics,
•cholafMhipH, fellowships, and the like, will tempt "canny" Scotchni< n to run
a rawj that promises nothing at the goal but starvation, or celibacy, or both.

* As a remarkable example of tluH evil may be mentioned the dependent
relation in whi<;h the Professor of Pcditiciil Economy in the University of Kdin-
bargh stands to the Merchant Company.

504 OF THE SECONDARY SOURCES

position, as to take away the inducement, and free them from
the duty, of taking a prominent part either in general society
or in public life.

I venture on these remarks in the hope that the knowledge
of the subject, which I cannot fail to possess, may counter-
balance the prejudices which I very possibly entertain.

III. The means hy whieli the community ascertains its
rational will.

In this momentous problem of the science of positive law,
it can scarcely be said that we have, as yet, got beyond the
region of negative results. Our analysis of the rational will
of the community, as the primary source of positive law, has
shown us : 1st, That, inasmuch as that will resides, to a
greater or less extent, in every sane member of a civilized
community, it cannot be ascertained except by an appeal to
them all. 2d, That, inasmuch as that will does not reside
in each member of the community in an equal degree, it can-
not be ascertained by an appeal to them all as equals.

The first of these propositions negatives the principle of
exclusiveness, on which despotic and oligarchic theories of
legislation are founded ; the second negatives the principle of
equality, on which democratic theories of legislation are founded.
We have thus two danger-signals — beacons placed by nature
herself on the opposing rocks between which our course must
lie. But they afford little indication of the manner in which
we must steer through the shifting currents of irrationality
and passion by which so many individual states have been
swept along to destruction, and civilization itself has so often
seemed in danger. Mainly, of course, the problem belongs to

OF POSITIVE LAW. 505

the objects of positive law, depends on circumstances of time
and place, and does not admit of any permanent or general
solution. But let us try whether, by looking into the phe-
nomena which all society presents, we may not, from the
side of nature, succeed in fixing, if not another lighthouse, at
least another permanent buoy.

{a) The amount of organization requisite for the ascertaioi-
ment of the rational vnll is in an inverse ratio to the amount
of direct personal contact loith each other, on the i^art of the
incliviclucds ichose rcdioncd ivdl is to he ascertained.

Where individuals are brought into direct personal contact,
theii' qualities necessarily assert themselves. The stronger im-
pose their laws on the weaker ; and as strength and reason ulti-
mately coincide, the wise and virtuous prevail over the foolish
and the wicked. "A fair field and no favour" is all that Eeason
demands to make her voice heard, and continuous personal con-
tact will supply that field. Xow, in the family, in a profes-
sion, or in a community so small as to resemble these, such
contact is inevitable ; and the amount of rational will which
tliey contain will, in general, be ascertained and vindicated
without any organization beyond that which contact supplies.
In the smaller of the Swiss cantons,^ for example, the per-
sonal character and weight of every individual is known and
felt by every other, and little artificial classification is re-
quisite to give tlie community the benefit of the wisdom of
its wisest.^ The same, in no small measure, was the case in

* Even Algernon Syflnoy, Ki.'i»ubli(-an thoiif^h lio was, prcforred CoiiHtitutioiml
Monarchy in all except very «inall Htak-H.

' Ht-A-. a v<;ry int<rcHtin^ ami able njKjrt on tin; itoliticul and induMtrlal r<)M<li-
tioii of Switzerland by Mi (;<»iil<l. FinlhirJliinnlsfitmi ll.M.':^ /hjilomafic aiuf

506 OF THE SECONDARY SOURCES

the small states of Greece, and even in Eome in the earlier
days of the Eepiiblic; though the legislators of antiquity wisely
supplemented this advantage by a constitutional graduation
of ranks. In colonies, during the earlier and ruder stages
of their existence, the necessity for artificial classification is
limited by additional considerations: 1st, The circumstances
of the case being such as to render equality of condition
and intelligence very much more of a reality than in old
countries, there is less to classify, and the supremacy of
reason will, consequently, be less endangered by the absence
of classification ; and, 2d, Families and individuals are there
so widely separated as to render them in a great measure
independent of each other — they can neither aid nor injure
each other to the same extent, — and the miscarriage of com-
munal reason, even should it occur, becomes a matter of com-
parative indifference. There is a vast difference between
being separated from a " free and independent " neighbour
by a couple of bricks and a range of mountains. In the
latter case, the problem of ascertaining the rational will of
the community has scarcely arisen, because the community
itself has scarcely been formed. But as its formation pro-
gresses, the problem of the ascertainment of its rational will
increases at once in importance and in complexity, and the
law which I have enunciated comes into operation. The
natural agents of direct personal contact and individual
rivalry, by which its solution in small and simple commun-
ities is spontaneously effected, gradually disappear, and the
necessity for artificial organization emerges.

Consular Agents abroad, on the Condition of the Industrial Classes, tt-c, in
Foreign Countries, 1871, p. 609.

OF POSITIVE LAW. 507

But is not the effect of progress the very reverse of what
we have represented it ? Does it not tend to equahze in-
dividuals— thus limiting the sphere of exceptional reason;
and does it not promote rivalry — thus supplying the spon-
taneous means of its ascertainment ? Both I know to be
prevalent ; but both, I think, are erroneous impressions.

As to the first, there is a single consideration, which, apart
from all others, is, to my mind, decisive.

Almost every form of natural disparity may be summed
up in the disparity of power which men exhibit of availing
themselves of experience, — subjective and objective. It is
out of this disparity, on a great scale, that the distinction
between the historical and non-historical — the civilized and
the uncivilized races of mankind — has arisen ; it is to this
disparity, on a smaller scale, that the distinction between
educated and uneducated classes and individuals is traceable.
Again, the difference between a cultivated and an unculti-
vated community consists mainly in the fact that the former,
beyond the latter, offers to tlie individual the opportunity
of developing this power by exercise, and availing himself of
its consequences. Surely it is obvious, then, that the com-
munity which offers the greatest opportunities will carry the
fortunate possessors of exceptional power farthest ahead of
those to whom such exceptional ])ower has l)een denied —
f in other words, that education, if carried beyond the merest
I elements of knowledge, will increase rather th;iii diiuinish
natural disparities and their consequences. Of the reality of
this fact civilized states exhibit ample proofs witliin their
own borders. Mental gifts certainly, and pi()l»a])ly even
physical gifts of nature, tell morcr amongst the (:(bicat('d than

508 OF THE SECONDARY SOURCES

the uneducated classes. The difference between the fortunes
of a clever ploughman and a stupid ploughman is measured
by two or three pounds of wages ; but the difference between a
clever farmer and a stupid farmer is that between wealth and
bankruptcy, and between a clever and a stupid barrister that
between penury and a peerage. As occupations rise in diffi-
culty, this principle makes itself more and more felt ; and the
object of the examination system, the latest device of civiliza-
tion, is to give it full play. In doing so, however, examina-
tions, if successfully carried out, which they can be only in a
very modified sense, would only anticipate the verdict of time,
and prevent inevitable failure in after-life ; because success in
most of the careers to which they are applied is impossible
except to the able both in mind and body. Though the
organs called into exercise are not the same, there can, I
imagine, be no question that the continued strain through
life, even on the physical power of a barrister,^ is far greater
than on those of a blacksmith. Literature is more trying
work than even law, as is seen by the higher proportion of
men who break down under it ; and politics, worthily pur-
sued, probably is the hardest of all. Kousseau's assertion that
civilization is the cause of inequality was one of the most
egregious, and has been one of the most pestilent, of his
errors. But that civilization brings out the consequences of
inequality, as of every other fact of nature, I conceive to be
quite unquestionable.

But civilization — progress — not only increases differences :

^ The old age to which men live on the bench, and in other dignified social
positions, is often remarked. It would not seem so remarkable if men would
take into account the amount of bodily strength and health which is requisite to
get there.

OF POSITIVE LAW. 509

it causes separation, and limits contact. In a rude and
primitive condition there is but one occupation — that, viz.,
of procuring the necessaries of existence. In this occupation,
consequently, all men must engage ; all thus come into
competition, and their recognition of each other's capabilities
is immediate and spontaneous. But civilization confers
leisure, and specializes labour ; and in so doing it confines
competition within narrower limits. Moreover, as occupations
rise in difficulty and importance, those who discharge them
diminish in number, and mark themselves off more sharply
from the community at large. Of the truth of this statement
we have a striking proof in the very small number of can-
didates for higher as compared with lower appointments.
As the community advances, it thus loses, more and more,
the spontaneous guidance of its most gifted and cultivated
members. The " silent class," of which I have already
spoken,^ increases both in numbers and in importance. Their
retirement into special and, to a certain extent, exclusive
circles is no fault of theirs, or of the community from which
tliey separate themselves. It is an inevitable, and, as such,
a legitimate result ; nay, as we have seen already, it is the
condition of progress.^ But its occurrence proves that, if
such persons are to be called into general activity at all, it
must be in relation, not to the community as a whole, but to
the classes in which they have ranged tliemselves. It is in
and througli the class alone tliat the individual can Ixi
measured and utilized. " Individuals," as Savigny has said,
"must be understood to constitute the State, not as such, but
in their constitutional divisions." Kvcn supposing cxcop-

' /fn//-, \\ 480. '■' //////•, i», GOO.

510 OF THE SECONDARY SOURCES

tional individuals to quit the position whicli the natural
organization of advanced society Las assigned to tliem, and
for political purposes to take their place in the ranks, the
community would he thereby not only robbed of the special
services which they would otherwise have rendered it, but
misled in its calculation of the amount of reason which it
contained. An army would form a very inaccurate concep-
tion of its force which counted its officers as common sol-
diers, and would give very great proof of its folly if it
insisted on their acting as such. And yet that is precisely
what advanced communities do, when, in endeavouring to
ascertain the general will, they count all wills as equal, or
in endeavouring to consult the general interest, they assign
equal duties to all men.

(h) For purposes of 'practical legislation it will, in general,
he necessary that all citizens included in each political class or
category he dealt with as contributing an equal amount of
rational vnll.

Inasmuch as no two human beings ever were wholly alike,
ideal justice knows nothing of classification. " God sees each
human being different from every other, and His thought and
acting towards them are righteous, because He has respect to
this difference."-^ The adoption of the principle of classifica-
tion, then, is a confession of the necessary imperfection of all
human government ; for the equality which is thus declared
for political purposes to exist between the individual mem-
bers of each class, is by no means a perfect equality in point
of fact. All that can be said for the justice that classification

^ The Spiritual Order, d-c. , by T, Erskine of Linlathen, p. 235.

OF POSITIVE LAW. 511

does, is that it is preferable to the injustice which it prevents.
It is never, therefore, to be resorted to as good in itself, or
maintained beyond the point of necessity. A well-governed
family may be regarded as the model of a well -governed
state ; and the prudens 'paterfamilias does not classify his
children, but, in direct imitation of the Heavenly Father,
measures out to each his individual rights and responsibilities.
That even he does more perfect justice by the latter method
than the best government can ever hope to do by the former,
is unquestionable.

But the method which is founded on the appreciation of
individual merits, is applicable, in human hands, only to a
very limited community. It could scarcely be applied to two
families, and its inapplicability to the government of a school
is notorious and confessed. As a rule, then, this method is
applicable only where the governing power really knows, and
can actually appreciate, every single member of the com-
munity which it governs. Now a state of any considerable
size is not, and cannot be, thus omniscient within its own
borders — a large community cannot measure itself witli this
degree of accuracy. The defence for the principle of classifi-
cation, then, is not that a government founded upon it attains,
but that it approximates to a recognition of the individual
qualities of the governed more nearly than one that rejects it ;
for the latter form of government, however honest may Ijo its
intention.s, is forced by its ignorance of individual qualities to
treat fill men as if tliey were alike, and thus violates their
rights to a greater extent than a government which treats
some men as if they were alike by classifying them in accord-

512 OF THE SECONDARY SOURCES

ance with characteristics by which, though they do not exhaust
their difl\3rences, each class is really distinguished from the rest
of the community.^ Suppose, by way of illustration, that all
students of law were classed together, and equal privileges
and burdens were assigned to them, some degree of injustice
would be done to many — perhaps to most of the individual
students — for it would be only in rare and exceptional cases
that the real importance of the individual would correspond
exactly to that which was assigned to the class. But a
smaller amount of injustice would be done to them than if
their privileges had been declared to be the same with those
of chimney-sweeps, and their fiscal liabilities the same as
those of merchant princes, or leading seniors at the bar. If
a cry could be raised for a poll-tax in place of an income-tax,
the advantages of classification would soon become as apparent
to those at the bottom, as they are now to those at the top, of
the social ladder.

It may seem that, as the most perfect form of government,
viewed as a mechanism for ascertaining the rational will,
would admittedly be one which took cognizance of the quali-
ties of individuals directly, we shall approximate more or less
closely to such a government as we diminish the classes of
which it professes to take cognizance in extent, and multiply
them in number; for the nearest approach to dealing with

^ It is scarcely possible to conceive more contradictory claims than those of the
extreme Liberal party for entire individual independence on the one hand, and
absolute individual equality on the other. If all men are to be independent
individuals, and each to rest on his own merits solely, even class equality must
be abandoned : if all are to be equal, there can be no individual independence
at all, because all must be swept into one class.

OF POSITIVE LAW. 513

the individual himself, is to deal with a very small number of
individuals whose personal characteristics and external circum-
stances precisely, or very closely, resemble his. It is on this
ground that Sir James Mackintosh has remarked, with great
truth, that " of the two faults " of excess or defect of simplicity,
" the excess of simplicity would certainly be the greatest ; for
laws more complex than are necessary would only produce
embarrassment, whereas laws more simple than the affairs
which they regulate would occasion a defect of justice."^

But there is a practical limit to perfectibility in this direc-
tion, for it is obvious that classification might very easily be
so extended that we should lose the benefit of it altogether.
A very extended and complicated classification comes to be
no classification at all. The necessity for simplification, then,
wliich led to the admission of the principle of classification at
first, limits its application in this direction. How far it ought
to be carried is a question whicli every community must deter-
mine for itself, and the true answer to wliich, even in the
same community, will vary witli circumstances. All that can
be said abstractly will, I think, be embraced in the following
proposition.

{c) The classification which ecrists for economical and social
jnirposes, for the time hcing, affords the measure of that vjhich is
requinte for legislative purposes.

Tlic truth of this proposition rests on the declaratory char-
acter wliich we have seen to liclong to jurisprudence as a
whole. To positive law tlu; facts of society, for tli(! tiiin^
being, l)ear the same relation that tli(; permanent facts of

* Ducourse, \k fil.
2 K

514 OF THE SECONDAEY SOURCES

nature bear to natural law. With reference to both, the
object of legislation is to recognize and vindicate, not to over-
turn and reconstruct. And this is, above all, true of the
electoral machinery, by means of which the community
measures its rational will. Its function is to reflect the
nation in the legislative mirror, not as wiser or foolisher,
better or worse, than it is, but simply as it is ; and this it
can do only by recognizing the stage of complexity which it
has really attained for the time being. To constitutional
law, more especially, is that other saying of Sir James Mack-
intosh applicable : " Laws ought to be neither more simple
nor more complex than the state of society which they govern,
but ought exactly to correspond to it." ^

(d) The electoral system.

Tlie very difficult and important questions which, for every
advanced community, must arise out of the adjustment of its
electoral system, depending for their solution on the circum-
stances of each particular case, do not fall within the range of
the present work. All that remains constant is the fact that,
if the rational will of any community is to be measured with
sufficient accuracy to enable it to be autonomous, and as such
autarchous, this must be effected by taking cognizance of the
differences of individual reason, natural and acquired — for in
politics these correspond to the different measures of weight
and capacity in arithmetic — and that this can be done only
by means of constitutional arrangements which will grow in
complexity as the society advances in civilization. In the
absence of such constitutional safeguards, there will always

^ Ut sup., p. 415.

OF POSITIVE LAW. 515

be danger of the indirect action of social forces, not necessarily
nnder the guidance of reason — mere wealth on the one hand,
or mere numbers on the other. The devotees of pleasure and
the slaves of fashion at the top of the social ladder are as
shallow and as liable to be imposed on as the victims of
ignorance and penury at the bottom of it ; and the history
of advanced communities could furnish many examples of
impostors who have not hesitated to take advantage of the
frailties of both classes, separately and in conjunction. It is
in these two classes that party- spirit runs riot, that the war-
fever is most readily kindled, and that fanaticism and mate-
rialism— blind faith and still blinder infidelity — are in per-
petual conflict. The classes that come in contact with the
realities and responsibilities of existence, and that neither
waste nor want, neither scoff nor cant, are those wliich we
must seek to lure from their social hiding-places into the
political arena.

IV. The means hy v:hich the community declares its rational
luill.

The rational will of the community may be declared either
expressly, by legislation, or tacitly, by consuetude.

(a) Ler/islation. — Legislation may be effected eitlier directly
or indirectly. The former takes pLicc when the autonomous
community speaks in its own person ; the latter when it speaks
tlirougli its representatives.

The comparative advantages of tlie one system or the otlicr
;irc dependent entirely on the practical (piestion, — which of
the two, in the special circumstances of the case, will give the
most perfect expression to tlie rational Mill ' Thai, in great

516 OF THE SECONDAnY SOURCES

communities, direct legislation is shut out by practical con-
siderations is obvious.

(h) Consuetude. — Custom is the earliest form of legislation,
and a form in which it may be quite as widely and perma-
nently efficacious as in any other — witness the Consolato
del Mare, the Eolles of Oleron, and the other maritime
codes of the middle ages ; and indeed the whole system
of international law, both public and private, in so far as
it does not rest upon treaty or convention.^ But it would
be an error to suppose that custom ceases to act when, or
where, direct legislation comes into play. On the contrary,
custom, as the expression of will which has been of some
permanence, and on that account may be assumed to be
rational, precedes, or ought to precede, every special enact-
ment, just as it preceded enactments in general ; and it modi-
fies and repeals enactments and treaties to as great an extent
as it dictates them. It is in this indirect action, indeed, on
positive law, that consuetude assumes a legislative character
in advanced communities, and between separate states.^

V. TJie means hy which the rational v'ill of the community
is a])plied to the special case may he cither spontaneous or hy
jurisdiction.

When the will of an autonomous community is unambig-
uously declared, either by legislation or by consuetude, it is

^ See Freeman's Groiuth of the English Constitution, p. 105, &c, , wliere he
shows that our constitutional arrangements for the conduct of business in Parlia-
ment, and the like, rest mostly on unwritten law.

2 In opposition to the English view, it has always been held that the ancient
statute law of Scotland may be repealed by desuetude (Stair, 1>, 1. tit, 1. 25,
note a, Brodio's ed. ; Ersk. 1. tit. 1. 45, notes 12, 13, Ivory's ed.)

OF POSITIVE LAW. 517

scarcely disputed except by lunatics and criminals, and in
their cases it is enforced. But numerous cases occur in which
it is not unambiguous, and these are met by jurisdiction.
The relation between jurisdiction and legislation has been al-
ready explained.-'^ As the means of ascertaining the general
will is the least advanced, that of applying it is, in organized
communities, the most advanced department of positive law.

VI. The means hy ivhich the community enforces its rational
wilL

The community can govern itself only as an organism; and the
more highly it is organized, the better ivill it enforce its own laws.

The same principles which apply to the formation, the
development, the ascertainment, and the expression of the
rational will, apply to its enforcement. The community can
be self-governing only on the same condition on which it
is self-legislating — viz., its acceptance of the organic struc-
ture which springs from the natural disparities of individual
power and wisdom. A state which proclaims an artificial
equality of citizens loosens the bonds of obedience, enfeebles
the voice of command, and turns its arms against its own
life. It reduces its character, in short, from that of an army
to that of a mob, — and how incapable of self-control the
best of mobs are is a matter of common observation. Even
as regards external defence, where there can be no separa-
tion of interests, tlie recent exaiii])le of France and Germany
ought to convince the most incredulous of the impotence of
Chaos to struggle with Kosmos. Shouhl Kussia come into
conflict either with Germany or Kngland, the same phenonio-

• AiUc, i>. 277 ct «c//.

518 ON THE SECONDARY SOURCES

noil will probably be exhibited, in consequence of tbo absence
or the impotence of the cultivated middle class. So closely,
indeed, are the legislative and executive functions bound up
together, that I believe there is no historical exception to the
rule that the State which makes the best laws administers
them best ; and that every State ceases to be autarchous just
in proportion as it ceases to be autonomous.

Of the Army. — The question of the relative advantages
of citizen and standing armies is one which depends on
special circumstances, and does not, therefore, admit of any
general solution. This, however, may be said absolutely, that
a citizen army will be trustworthy only where the social
organization is very high, and where the national character is
constitutionally dispassionate. It is plain, moreover, that if
it is to execute the law, it can do so only on condition of its
being entirely guided by, and mainly composed of, those who
recognize it as their interest to obey the law. Order can be
enforced only by those by whom it is accepted ; and it is vain to
hope that anarchical armies will protect order against anarchy,
either in democratic or despotic states. On the other hand,
however, it must not be forgotten that there is no better
school of citizen discipline than the ranks of a disciplined
army ; and that, in states in which the national temperament
warrants the experiment, ochlocratic evils may perhaps be
mitigated by a judicious application of a means by which
they cannot be suppressed. With this view it is obvi-
ous that the first requisite of citizen armies is that the
educated classes should accept the burden of serving, not
as officers only, but as privates. The spectacle of obedience

OF POSITIVE LAW. 519

voluntarily rendered by their social superiors, combined with
the necessity of rendering it themselves, will impress on the
lower orders the first lessons of citizenship far more deeply
than the discipline of the best mercenary army ; and yet we
have few anarchists amongst our own soldiers or sailors. In
countries in which there is great disparity of wealth, it is by
personal services as soldiers and politicians, on terms that
are almost gratuitous, that a hereditary aristocracy can best
justify its position ; and the favour with which our great
landowners and capitalists continue to be regarded, is no
doubt owing to the exceptional zeal and efficiency with which
these services are rendered by them in this country.

The Police. — The police is the branch of the Executive
through which an organized State maintains internal order ;
and there seems no reason why its officers should not be
regarded with the same consideration, and enjoy the same
self-respect, as those of the department by means of which
the State acts, when disorganized by rebellion, or when brought
in contact with external force. I consequently rejoice at the
tendency which the aristocratic class has recently exhibited
to charge itself with the duties of the police as well as of tlio
army. Tlie police acts on a class that is beyond the reach
either of the clergyman or of the schoolmaster; and the elli-
ciency of the magistrate is wliolly dependent on the efficiency
of the police. The certainty of conviction is of more im-
portance with a view to tlie prevention of crime than tlio
severity of punishment; and inasmuch as a syllogism wliicli
lias no major j)rcmiss can have no conclusion, th(!re can bo
no conviction till there has been detection. The detection of

520 OF THE SECONDARY SOURCES OF POSIT EVE LAW.

crime, moreover, calls for an amount of resource and ingenuity
that confers on it the character of an intellectual calling
and almost raises it to the level of a fine art. It consequently
offers a worthier, more useful, and, as it appears to me, a more
interesting field for the display of ingenuity and subtlety, than
either playing whist at the clubs or making books on the
race-course ; and the same gifts which insure success in the
one class of pursuits would be very likely to insure it in the
other. An expert thief, too, is cunninger than any fox, and
the pursuit of him might thus furnish, in some respects, no
inadequate substitute for the chase. I have no belief in the
superiority of scoundrels over gentlemen, even in cunning ;
and their inferiority in strength and courage to sporting
squires need not be doubted. There are few kinds of crime
that could not be prevented if honest, intelligent, and brave
men would take the trouble to prevent them.

PuUic Prosecution of Crime. — The Eomans classed criminal
law with the jus ^uUicum ; and a State can scarcely be said
to be self-governing which leaves the prosecution of crime in
the hands of its private citizens. The very imperfect char-
acter of the system of public prosecution recently 'ntroduced
into England,-^ when contrasted with that which Scotland and
the Continental countries which followed the Eoman law^ have
enjoyed for centuries, is a conspicuous example of the many
evils which have resulted from the separation of the jurispru-
dence of England from that of the rest of the civilized world.

1 42&43 Vict., c. 22.

2 Such information as we possess on tlic subject of public prosecution amoujcj
the Romans will be found in the 4th edition of Lord Mackenzie's Studies in
lioman Law, and in Mr Kirkpatrick's notes to pp. 386, 388, 392, &c.

BOOK IV.

OF THI<: OBJECTS OF POSITIVE LAW

CHAPTER I.

or THE ULTIMATE AND PEOXIMATE OBJECTS OF POSITIVE LAW.

rPHE ultimate object of positive law is identical with the
proximate object of natural law — viz., liberty.
But liberty being realizable only by means of order, order
is the proximate object of positive law.

CHArXER II.

OF THE PPJMiUlY AND SECONDARY OBJECTS OF POSITIVE LAW.

{(t) Primary. — Order, as we have just seen, is tlie proxi-
mate, or immediate object of positive law — the o])jcct in
virtue of which it is distinguished from, and subordinated to,
natural law, just as natural law was distinguished from, and
iibordinated to, ethics, in virtue of its narrower or proximate
object — viz., liberty — when contrasted with the wider object of
[ ethics — viz., human perfection. Ihit on turning from natural
law in its relation to ethics, and regarding it in itself, we found
that it sought the realization of its object, not directly, but by

524 OF THE OBJECTS OF POSITIVE LAW.

means which became to it, as it were, a secondary object, and
that this means was order.

Now, in like manner, when we contemplate positive Law no
longer in its relations to natural law, but as a separate subject,
having a special object of its own, we find that it seeks tliis
object not directly, but by means, which means thus become
its secondary object, or objects.

(h) Secondary.

The secondary objects of positive law are the specific rules
for the realisation of order in the various relations in which
human beings stand to each other in a particular community,
or in which states stand to each other in the community of
nations at a given time. The question which we have now
to consider is, whether, or to what extent, these rules, though
specific in their object, are general or universal in their action,
and admit of exhaustive and permanent definition.

My readers are no doubt aware that, in working out
systems of natural law, it has been usual to attempt to
determine the general rules which nature, or expediency, is
supposed to point out for the guidance of legislation, with '
reference to the various relations in which human beings
necessarily stand to each other, whether as members of the
family, the State, or what has been called the federal union of
civilized nations. The cultivation of natural law in this positive
direction, proceeds on the assumption that, as there are certain
fixed principles of action which nature and reason indicate, so
there are certain fixed, or necessarily recurring, circumstances
and relations in which mankind will always be called upon to
act ; and that, by applying invariable principles to invariable

OF THE OBJECTS OF POSITIVE LAW. 525

conditions, a body of invariable rules applicable to tlie life of
the family and of society, both within and without the State,
may be evolved. Hooker said truly, that " although no laws
but positive are mutable, yet all are not mutable which are
positive ; " and in all the older writers, and in many of the
moderns, we accordingly find what is called " a special part
of natural law," in which is included the natural law of
marriage, guardianship, succession, contracts, sale, and the
like. "Wolff's system, which Warnkonig has characterized
as ingens universi Juris naturalis corpus} extended to nine
vols, quarto ; and we all know what a ponderous mass of
ponderous matter Puffendorf accumulated. IS^ow I am far
from denying the truth of the assumption that there are in-
variable social relations, and to a limited extent other external
circumstances, which are very little affected by changes of time
and place ; nor do I call in question the soundness of the rules
which, on this assumption, have been evolved by many indus-
trious, and by some gifted men. The relations of the family,
to a very great extent, are fixed points. The idea of property,
inseparable from the consciousness of subjective existence,
involves proprietary relations ; and from property result rights
of gift, sale, and succession testate and intestate. Human
intercourse can be carried on, and the necessities of mutual
aid can be satisfied, only Ijy means of mutual obligations,
which involve multifarious relations dependent on good faith.
It is possible, in all tliesc cases, l)y a study of c()iu])arativo
juri.sprudence, and a car(;ful ;i])plication of the ])rocess of
abstraction, to separate the necessary and iiivarial)le coiidi-

' DdiimUlii, p. 22.

526 OF THE OBJECTS OF POSITIVE LAW.

tions of all society, or rather the general conditions of his-
torical society, from the accidental and variable conditions of
a particular society, and to resolve the questions arising out
of the former in accordance with the principles of natural
law, apart from the latter. It is possible, by bringing our
normal humanity face to face with these invariable conditions,
to discover the general line of conduct which nature indicates ;
and thus a body of universal and unchangeable positive law,
applicable to human society in so far as its conditions are
universal and unchangeable, may be built up. But though
I do not question the possibility of such a work, or its scien-
tific legitimacy, I do exceedingly question its value, whether
for practical or speculative purposes, when applied to positive
law as a whole. And I do so for this reason : In so far as
the relations thus evolved are invariable, they must recur in
every branch of positive law. If they are the relations of the
family, or of the citizens of the State to each other, they will
recur in every municipal system. If they are the relations of
the citizen to the sovereign power, they will recur in every
system of public law, properly so called. If they are the
relations of State to State, they will recur in international
law. In each of these cases, then, we shall have an oppor-
tunity of studying them in their proper places, sometimes as
jurists in the narrower sense of that term, sometimes as
politicians, and sometimes as political economists. It is
impossible that we should fail to encounter them, because,
ex hypothesi, their recurrence is inevitable.

Nor can I see any advantage which their study, when
isolated, presents over tlieir study in connection with con-

OF THE OBJECTS OF POSITIVE LAW. 527

ditions which may be accidental — that is to say, which may
be confined to one or more states, and one or more periods
of history or stages of development. The co- existence of
accidental and ephemeral with necessary and permanent re-
lations in real life is inevitable, because there must always
be peculiarities belonging to every country, to every race,
and to every stage of development. A system of positive
law, then, which applied the principles of natural law only
to the relations of human life which are invariable, could
scarcely admit of any direct application to human affairs.
It would be an ideal, the vagueness of which rendered it
necessarily unrealizable. And as a guide to legislation for
any actual living people, its utility would be very limited,
even supposing it to be the result of a sufficiently wide
induction to entitle it to the universal character to which
it laid claim. Such a supposition, moreover, can scarcely
be entertained. The construction of a system of the kind
in question, though not, as I have said, a theoretical absurd-
ity, I hold to be pretty nearly a practical impossibility. Is
it not one of the first lessons which history teaches, that
what is confidently believed to be necessary by one genera-
tion, the experience of the next shows to be accidental ?
There are certain rehitions, as I have said, to whicli this
remark does not apply. But even these admittedly })er-
manent relations are modilied, in the forms which they
assume, by the accidental conditions which acconi])any them,
and which consequently determine the character of the
positive laws y)y which they arc governed. Children must
be born lielplcss ; and th(;ir 8U])port and education lie, in

528 OF THE OBJECTS OF POSITIVE LAW.

tlie first instance, at the door of those who bring them into
the world. To this general rule of conduct, the general rule
that we should follow nature, and the promptings of that
natural affection which the Greeks called a-Topyri, taken along
with the invariable circumstances of birth and helplessness,
no doubt guide us. But a general rule of this kind does
little more, practically, than to refer us back to the neces-
sities and instincts of our nature ; and a knowledge of cir-
cumstances which are not invariable is requisite to help us
to any rule of a more special kind. The kind of nourish-
ment or education to be given, the length of time either is
to be continued, whether and to what extent the duties of
education and protection on the one hand, and obedience and
docility on the other, ought to be enforced — all the details,
in short, of the relation — can be learned only when the
special circumstances of country, climate, stage of civiliza-
tion, age, social rank of the parties, and other so - called
accidents are considered. If these are not taken into ac-
count, natural law will be violated by the very provisions
which were devised for carrying it out. Accordingly we
find that, whenever it has been attempted to develop a
specific system of natural law, it has invariably run into
the municipal law of some particular country, or has bor-
rowed accidental provisions from the municipal laws of several
countries. If the writer was a Dutch civilian, his system
was worked out in accordance with the legal definitions of the
municipal systems of Holland and of Eome — a separation of
the accidental from the necessary being scarcely even at-
tempted. If lie was an Englishman, the influence of the very

OF THE OBJECTS OF POSITIVE LAW. 529

special conditions of English Hfe, and the very peculiar insular
system of positive law which had gro^vn out of these conditions,
was largely perceptible. In place of being a system universally
applicable to mankind in all times and places, we had, in
either case, a system for which the most that could be said
was that, if it had gone still more into detail, it might have
been applicable, for the time being, to Holland or to England.
It would have been an English or a Dutch code, but it could
never have been an universal code.

These considerations explain to us, I think, in no small
degree, the disrepute into which the study of natural law
ultimately fell, and may serve as a warning against the
repetition of attempts which, even in able hands, were so
barren of results. I entirely agree with Dugald Stewart
when he says that "an abstract code of laws is a thino-
equally unphilosophical in design and useless in execution." i
Whetlier the principles on which such systems profess to be
'mstructed were adhered to or violated, the failure was
almost equally inevitable. If they were adhered to— if no
relations were considered except those which really were
universal, and these were taken apart from the specialities
which always accompany them in real life, nothing was
produced except a string of the commonplaces of municipal
l.iw, so obvious as to render their repetition tedious and un-
profitable in the last degree. If, on the other hand, they
• ere departed from, and the inquiry canit;(I out into spoci-
■ditics which might give it some value for a ])arti(;iilar society
^ a particul.'ir time, then a jjositivo error was committed, for

' (JolUrtrA Wm-kn, vol. i. p. 187.

2 r,

530 OF THE OBJECTS OF POSITIVE LAW.

relations which were peculiar and accidental were represented
as universal and permanent ; and there was no small danger
of the rules really applicable to one set of circumstances being
thus imported into another to which they had no proper
application. A limited ideal, in place of being a guide to
truth, thus became a lure to error.

Influenced by these considerations, when I treated of the
objects of natural law, I contented myself, for the most part,
with presenting them in their widest generality, without
reference, otherwise than for purposes of illustration, to the
special relations in which they seek their realization. In all
the relations in which human beings can be placed, liberty,
and order as the condition of liberty, are the objects which
nature assigns to the science of jurisprudence, and these ob-
jects she seeks as much and as constantly when the condi-
tions which she offers are the most ephemeral and accidental,
as when they are the most permaneirt and inevitable.' This
latter consideration, more especially, seems to me to furnish a
practical reason of a very cogent kind, when we pass to the
objects of positive law, for dealing with each department in
its integrity, and refraining from any attempt to separate
its provisions which are permanent from those which are
variable. What is called the special part of natural law, is
likewise the general part of positive law. The two subjects
are not only intimately related — they are identical ; as may
be seen by comparing the first sentences of the chapters of
any municipal treatise in which the general maxims relating
to such subjects as marriage, guardianship, contracts, and the
like, are set forth, with the chapters on the same subjects in

OF THE OBJECTS OF POSITIVE LAW. 531

•
such works as those of Piiffendorf or Eutherford, or even in

the works of such modern T\Titers as Alirens, Eoder, or Tren-
delenburg. Xow the practical effect of exhibiting the rules
which govern the general and permanent relations of human-
ity as a portion of the system of natural law, whilst the rules
which govern the special and transitory relations of humanity
are not exhibited in any direct connection with natural law at
all, is to lead to the inference that these latter relations are
governed either by no principles whatever, or by other prin-
ciples than those of natural law. And such is the inference
which is actually drawn by the vast majority of practical
lawyers.-^ The general and unchangeable relations of human
society, they say, are governed by the principles of natural
law ; the special and variable relations of society are governed
by the principles of utility. But utility, as I have shown,^
has no [jrinciples of its own apart from the principles of na-
ture. Either it is an organ for the discovery of nature's laws,
in which case it takes its place as one of the secondary
sources of natural law ; or else it is merely another name for
the indications afforded by reason and experience, as to the
special means best calculated, in special circumstances, to
attain the objects of jurisprudence, in wliich case it takes its
place amongst the sources of positive law. Now the rule
wliich reason and experience play is the same in principle,
whether the rules which they suggest liavc reference to rela-
tions and conditions which are permanent, or to those which

' Ami iiol by lawyr;rH only, but by philoKOplicrs, as may be Hccn from Oanz*H
{preface to Hc^jd'H J'hilo80j)hij of Jlislory, liohii'H tiaiiHlatioii, p. xiv.

532 OF THE OBJECTS OF POSITIVE LAW.

are transitory. The object of the special rules is the very
same as the object of the general rules — namely, to give
free scope to the normal impulses of our nature, under the
conditions in which it is brought in contact with the actual
world.

I think I can illustrate this by a very simple example.
The object of the law of marriage is the gratification of those
impulses, physical, moral, intellectual, and religious, which
lead to the cohabitation of persons of opposite sexes. JSTow,
for the attainment of this object, expediency — that is to say,
reason and experience — prescribe certain rules which are
general, because they are applicable to circumstances which
are permanent and universal ; and other rules, which are
special, because they are applicable to circumstances which
are transitory, and very frequently local. As examples of
the general rules, I may mention those which prescribe that
the matrimonial contract shall be entered into only by persons
capable of consent — a rule common to all contracts ; only
between persons who have attained to the age of puberty ;
only between one male and one female at the same time ;
which limits it to persons not related to each other within
certain degrees, and the like. The special rules are those
which define the patrimonial relations of the parties ; their
respective obligations to the offspring of the marriage ; which
prescribe the modes of celebration — that is to say, the manner
in which the existence of the contract may be proved in ac-
cordance with the social arrangements of the country where
it is alleged to have been entered into ; &c. To the latter
class of rules obviously belong those which prevail amongst

OF THE OBJECTS OF POSITIVE LAW. 533

ourselves, to the effect that " habit and repute/' " promise,
suh. cop.'' &c., prove marriage, whereas in England they are
held to prove concubinage ; and quite rightly, perhaps, in
both countries, because the meaning of a fact not unfre-
Quently depends on, and consequently varies with, the cus-
toms of different countries. Now the first class of rules is
often incapable of receiving any definite interpretation with-
out the aid of the second. The age of puberty, for example,
varies according to climate ; and a very absurd anomaly
exists in our own law, from a rule specially adapted to the
circumstances of southern climates having been regarded
as a rule general to mankind. Intermarriage of cousins,
again, might very properly be forbidden, either permanently
or for a time, in a community which suffered specially from
any form of hereditary disease : goitre and cretinism, scrofula,
consumption, &c. ; whereas in communities free from these
specialities, it may be better left to the judgment of individ-
uals and families. Even where rules are not dependent on
physical peculiarities resulting from climate, or the like, it is
often difficult to say whether the rules which are in reality
of the most general application are altogether independent of
the circumstances in wliicli tliey generally come into opera-
tion. The rule whicli forbids polygamy is a rule of tliis
class. Though not its only, one of its chief reasons unques-
tionably is the equality of tlie sexes in point of nuniljers.
Now, it is possible to imagine circumstances in wliich, for a
I time, that reason sliould fail altogether. Would tlic other
reasons in favour of this jmjhibition still exclude oi)positc
reasons against it which niiglit possibly arise ? Suppose one

534 OF THE OBJECTS OF POSITIVE LAW.

man and twenty women of full age, one of whom, who was
his wife, was known to be barren, cast on an island, without
hope of ever being restored to society — quid juris t Would
the original command, to " be fruitful and multiply and replen-
ish the earth," modify the prohibition of polygamy, or justify
divorce ? • j

Now, if what we have been in the habit of regarding not I
only as general, but as universal rules, may lose their hold on
nature when, by a change of conditions, they cease to minister
to her objects ; and if, ^ converso, rules which are exceptional
at the highest, and when adopted generally, would violate her
behests, are entitled to claim her temporary sanction the
moment it can be shown that they really vindicate her objects,
is it not obvious that the establishment of any permanent line
of demarcation between these two classes of rules is a futile
effort ; and that if, whilst we connect the general rules of j
positive law with the principles of natural law, we separate
the special rules of positive law from these principles, we tend
to confirm the popular error by which the latter are held not
only to be variable, but arbitrary ? So greatly do I deprecate
a result which, by relinquishing the necessary character, would
destroy the sanctity of positive law, that I should regard the
possibility of its occurrence, apart from all risk of speculative
errors, as a sufficient ground for adhering to the bipartite
division of the science of jurisprudence which we adopted in
the outset, and maintaining, in its integrity, the distinction
between natural and positive law.

But it may seem that a third choice remains. Why, it
may be said, should we not have a complete positive system

OF THE OBJECTS OF POSITIVE LAW. 535

of natural law, in the sense of a system which continuously
takes cognizance of the special as well as the general rela-
tions of humanity, and this, not inadvertently, or from imper-
fection of execution, but consciously and expressly ? Now,
this idea — which seems to have been that which Puffendorf
attempted to realize — resolves itself obviously into a proposal
for perpetual and universal codification. Such a system,
embracing, as it must do, public and private law, both
municipal and international, even if satisfactorily executed
for humanity for the time being, would be like the catalogue
of a library to which not only were new books being added,
but from which old books were being dismissed. It would
stand to a permanent science of jurisprudence, absolutely con-
sidered, in about the same relation in which the catalogue of
a bookseller's shop, where a rapid sale was going on, might be
supposed to bear to the literature of the past, the present, and
the future. Even with reference to a particular time — if we
except the law of nations, which has no local limits — it would
be requisite, in order to secure the universality of sucli a sys-
tem, that it should be a collection of all the positive laws
existing in the world, — a work, the irrationality and inutility
of wliich render the impossibility of its performance a subject
of rejoicing.

In .so far as sucli a work coiiUl have any uses at all, tliey
arc attained by a braiicli of study mucli cultivated abroad
under the name of comparative legislation, — a study wliich
has been chiefly carried out in the directions of criminal and
mercantile law, but whicli admits of general application.

If a general science of applied natural law is t<j be at-

536 OF THE OBJECTS OF POSITIVE LAW.

tempted, then, there is no alternative but to draw the best
line we can between relations and conditions of human life
which are universal and permanent, and those whicli are local
and transitory. It is not a course, as I have said, which we
are bound to reject on absolute grounds, similar to those which
forbid us to cut natural law through the middle by dividing-
rights and obligations into perfect and imperfect ; but the
practical reasons which I have stated appear to me sufficient
to warrant us in breaking with the tradition by which it has
been sanctioned. As I presented the objects of natural law
— the ultimate objects of jurisprudence as a special science
— without reference to the different character of the relations
in which these objects are realized, so, in enumerating the
objects of positive law — the proximate objects of juris-
prudence— I shall abstain, in this work, from attempting to
select any of them as more closely connected with natural
law than the others. General and special, permanent and
transitory, universal and local, I regard them as all, and all
equally, seeking to give free scope to the normal impulses
of humanity, within the spheres which they respectively
embrace. Within each of these spheres it is for the practical
legislator to bring his system, as nearly as possible, up to the
character of a concrete realization of natural law ; and it is
for the scientific jurist who labours within the same sphere
to indicate to him how this may best be effected. But, if
anything serious is to be accomplished, there must be division
of labour ; the rule must be quisquis in suam artem ; and
such slender contributions as I may be in a condition to offer
must be reserved for the subject of international law.

OF THE OBJECTS OF POSITIVE LAW. 537

The objects of positive law may be classified with reference
either to the spheres within which they seek their realization,
or to the forms in which they are manifested.

From the former point of view two schemes of division
have been proposed, either of which is capable of being-
rendered exhaustive.

I. The first is the Eoman division — which still prevails
generally in Europe — into public law and private law. As
the Eomans had formed no distinct conception of law without
the State as a separate branch of science, these two divisions
had reference to national law alone. Public law {jus 'publi-
cum) was, quod ad statum rei Boinancc spectat. Private law
{jus privatum) was, quod ad singulorum utilitatevi pertinet.

Adhering to the principle of this scheme, and embracing
under it the modern subject of international law, we should
have —

(1.) Fuhlic lavj within the State, the Staatsrccht of the
Germans, — what we often loosely and inaccurately call con-
stitutional law.

The object of public law, in this sense, is to regulate the
relations of the State to the citizen, and of the citizen to the
State, political, x^ersonal, and economical.

(«) The first and most important branch ol" pubb'c law
witliin the State, is that which has for its ol)ject to measure
the autonomous i)Ower of the community, by ascertaining its
rational will. It is tliis branch whirh determines tlic form of
government, — wliicli fixes tlie political relation in which tlic,
variou.s classes of citizens shall stand to the whole organism
— that is, to the State an»i to each other. Under this branch

538 OF THE OBJECTS OF POSITIVE LAW.

fall also the relations of the different members of a federal
government to the central power, and to each other — except
in cases in which these relations are so loose as to entitle the
various states to be regarded as independent communities, —
and the relations of dependencies and colonies to the dominant
State, or to the mother-country.

(h) The second branch of public law within the State, is
that which regulates the individual relations of the citizens to
the State. Under it fall the regulation of the public service,
criminal law, poor-law, the government of the imbecile and
insane, the rules of litigation, and ecclesiastical law.

(c) The third branch of public law within the State fixes
and apportions taxation and other pecuniary burdens, general
and local.

(2.) Puhlic law without the State, or i\\Q jus inter gentes.

(a) Normal and stationary relations of states to each other.

(b) Abnormal and transitory relations of states to each
other.

(3.) Private lata ivithin the State, or municipal law — i.e.,
the relations of the citizen to the citizen.

(a) The domestic relations, or relations of life in the family,
as exhibited by marriage, guardianship, &c., generally included
under the law of status.

(h) The social relations, or relations of life in society, as
exhibited in sale, partnership, letting and hiring, &c., generally
included under the law of contract.

(4.) Private law loithout the State, or private international
law — i.e., the relations of the citizens of different states to each
other. The object of this branch is to determine the occasions

OF THE OBJECTS OF POSITIVE LAW. 539

on which justice requires that the municipal law of one State
should be recognized by the municipal law of another.

II. The second scheme, which is more consistent with
modern forms of thought, divides positive law into national
and international ; and these again into public and private,
thus : —

1st, (a) National public law ; and —
(h) Xational private law.
2d, (a) International public law ; and —
(h) International private law.

III. In addition to this classification of the various branches
of positive law, arising from the domains which they severally
embrace, there is another, derived from the various forms in
which the rational will — the source of all positive law — ex-
presses itself. Seen from this point of view, positive law is —

(«) Common, or consuetudinary law (jus non scriptum).

(b) Statute law (jus scriphi.m).

(d) Treaty law.

(e) The received, or politically orthodox, interpretation of
revealed law.

540 CONCLUSION.

CHAPTER III.

CONCLUSION.

Of the reconciliation which the system of j^ositive law, logically
resulting from the 'principles of jurisprudence as determined hy
nature, tends to establish between the progressive and conservative
schools of European politics.

Knowing how widely I differ from revolutionary politicians
in the results at which they arrive, both in this country and
abroad, it may possibly seem surprising that I should not
have differed from them more decidedly in the objects which
they profess to seek, and that I should have permitted our
discussions to lead us into the train of thought which gave
rise to that historical watchword of disorder — Libert^, 4galit6,
fraternity ! The coincidence, however, has neither been in-
voluntary nor insensible on my part ; for, far from wishing to
stigmatize this much-abused and justly-dreaded formula as
necessarily the war-cry of anarchy, and, as such, the justifi-
cation of despotism, I am ready to accept it, when urged in
accordance with nature's teaching, as the symbol of order and
progress. It is for this reason that I have not only assented
to the doctrines w^iich it inculcates severally, to the fullest
extent of their possible realization, but that I venture, in con-
clusion, to recognize them in their ominous conjunction.

Liberty, we have seen, is the special object of our science ;
and inasmuch as the highest manifestations of liberty, so far

CONCLUSIOX. 541

from conflictino' with, involve and necessitate the hig^hest
manifestations of order, it is in the capacity of an apostle of
order, and as coming, so to speak, from the opposite camp,
that I have avowed myself a claimant for the maximum of
liberty. " La politique radicale," says M. Jules Simon,
" aspire a la pleine et entiere possession de la liberte.-'- Had
M. Jules Simon been en pleine et entidre possession de la science,
he might, with equal confidence, as it seems to me, have
ascribed the same aspiration to the opposite school, in so far
as that school has any aspiration at all beyond the realization
of order for order's sake, and the impossible retention of the
status quo. In so far as liberty is concerned, then, I am a
radical as uncompromising as M. Jules Simon himself.

But liberty not only implies and necessitates, but abso-
lutely identifies itself with equality in the only sense in
which equality is anything else than a longing for the im-
possible, begotten of a sinful and ignoble " envying and griev-
ing at the good of our neighbours." Here, then, is the second
aspiration of " the Revolution " which, without being a revolu-
tionLst, I have adopted, in what I believe I have demonstrated
to be the only sense in which it is not at once a folly and a
crime.

Third and lastly, as regards fraternity. In repudiating the
distinction between perfect and imperfect obligations, in as-
serting the identity in principle between justice and charity,
and in proclaiming the entire reciprocity of rights and duties,
I liave recognized fraternity to the fullest extent to which it
does not conflict with the other two iniiHiplcs of liberty and

' Im PolitvilU lUuli'tilr, p. (5.

542 CONCLUSION.

equality — i.e., in wliicli its realization is not forbidden by its
encroachment either on subjective or objective rights, — in
which it would not be unjust even if it were not unreal. In
identifying the principle of fraternity with that of guardian-
ship, I have vindicated more specifically its relation to order,
and restored their just importance to the long-forgotten duties
of paternal authority and filial obedience. The principle of
fraternity in this its wider and loftier conception — the ergdn-
zende Gemeinschaft of the Germans, the societatis appetikcs of
the older writers — is the instrument of progress in which all
our hopes must centre. Its proclamation was the secret of
the marvellous success of Stoicism in Greece and Eome, and
of Buddhism in the East ; and though I am persuaded that at
no period of history or stage of development was it, or any
other fundamental law of human co-existence, wholly absent
from human consciousness, I entirely concur wdth an eloquent
writer of our own day in regarding its fuller recognition as
the characteristic peculiarity of the Christian, as opposed to
the heathen conception of the human relations.-^ To recog-
nize our dependence on, and our obligations to, our fellow-
beings, is indeed only another form of recognizing our depend-
ence on God, and acknowledging the vanity and impiety of
that spirit of self-sufficiency which we have indicated as the
most prominent blot on heathen ethics.

Any separate discussion of the principle of fraternity,
similar to that which we devoted to equality, would have been
wholly superfluous in a work of which, from first to last, it
has thus been the key-note ; and one of the express objects

* Ecce Homo, pp. 175, 179.

CONCLUSIOX. 543

of which has been to vindicate the pretensions of the positive
or active, as opposed to those of the negative or passive school
of jurisprudence. If guardianship (Vormwidschaft) , in its
widest sense — embracing, that is to say, every expedient by
which human beings, either by acting or abstaining from
action, by commanding or obeying, by leading or following, by
teaching or learning, can aid each other, whether in their indi-
vidual or corporate capacity, in attaining the objects for which
life was given them — be, as is maintained by the writers whose
views in this respect I have adopted, the whole end and
object of positive law, then positive law in all its branches,
in all the manifestations of order or of liberty wliich it calls
forth, is neither more nor less than a realization of the prin-
ciple of fraternity.

So entirely, indeed, does each of the three principles in
question involve the other two, that a system of jurisprudence
which adopted fraternity or equality for its object — if logi-
cally deduced from the facts of nature — would arrive at re-
sults wholly identical with those of a system which set liberty
before it as its goal.

Then as to the practical means, the legislative mechanism,
by which these great objects may be attained. It does not
belong to abstract science to investigate the positive provi-
sions, either for the internal organization of separate states,
or for their external organization as a family of nations ; and
I have, consequently, declined Lo enter on partial discussions
of these and the other oljjects of positive law. But as a
principle of nature, and, as such, common to legislation as a
whole, I liave, in what will l)e regarded as llu; lilicral direc-

544 CONCLUSION.

tion,^ recognised — not on grounds of expediency, but on the
ground of right — the inalienable sovereignty of the rational
will ; whilst, with a view to the ascertainment of that will
and its enforcement when ascertained, without expressing a
preference for any one of the forms of legislation or govern-
ment by which these objects can be shown to be attainable,
I have not hesitated to repudiate democracy when based on
absolute equality, as the negation of government altogether,
and a^ a form of existence in which it is impossible that the

rational will of any community should be either ascertained

or acted on.

Like many other words, democracy is a word to which
several meanings have been attached, and I regret to observe
the loose and indefinite manner in which it is beginning to be
used by our own newspapers. It is a dangerous word, which
no prudent or cautious politician ought to employ without
qualification ; for in the only sense in which it does not iden-
tify itself with, or at any rate constitute an element in,^ some
of the other, or rather, I ought to say, some of the possible,
forms of government, it may — to parody Hegel's celebrated
definition of law — be defined as " the reign of absolute equal-
ity realized." It is in this sense that it hovers before the

1 If politics sliould ever become a science, one of the greatest benefits will be
that we shall get rid of party politics. Party politics are often defended as a
necessity ; but it is instructive to remark that it is only the politics of the party
to which the politician belongs that he regards as necessary. The politics of the
opposite party are always made a subject of reproach to it ; its leaders are con-
demned as "party men," and their measures as " party measures ; " and very
justly, for the most part, from the exaggerations which they exhibit. The only
rational and honest " opposition " would be one which conviction might happen
to raise against each measure in turn, by whomsoever proposed.

2 Freeman's Growth of the Ewjlish ConstittUion, p. 10 et seq.

CONCLUSION. 545

imaginations of its Continental worshippers, and in this sense
I have not hesitated to declare its realization to be forbidden
by nature, and excluded from the objects of jurisprudence.
Implying, in this sense, as we have seen, an entire reversal
of natural law, democracy identifies itself with that condition
of lawlessness or disorganization, that non-political condition
which is known as anarchy ; and we shall approach to it more
and more nearly only as the State approaches its dissolu-
tion. Democracy, or absolute equality realized, is the anti-
thesis of political life — it is political death — and a death,
moreover, from wliich history, so far as I know, tells of no
resurrection.

It is true that, in the State, as in the individual, death does
not mean annihilation. To us annihilation is inconceivable.
Whether or not it be possible for the Author of being to bring
being to a close, is a question we shall never answer. But
that such an occurrence is unthinkable to us, we know experi-
mentally ; ^ and, unless where thought is hedged in by rival
impossibilities, and where a dictum of consciousness, in so far
as we are concerned, settles tlie question for practical purposes
in favour of one of them (as in tlie case of free-will),^ we must
accept the limits of thought as tlie measure of reality. What
we cannot tliink of as possible we must assume to be impos-
filjhi. There is, then, no anniliihation. The State, like other
entities, both spiritual find material, in its ultimate elements
must continue to be. But that it shall continue to be, by no
means implies that it shall continue t(j In^, or return to bcin^x,
^is the same coml^ination oi the same individual atoms, il"

' Hamilton, Mdaph., ii. 405. ■ If>., Ai»p(n<Iix, i». 542.

2 M

546 CONCLUSION.

atoms there be. Under other conditions of existence, we must
believe that the idea of the community, like the idea of each
individual member of it, will ultimately receive that perfect
realization which is and ever will be unattainable here. God
will leave no idea finally unfulfilled. When we shall be
capable of performing perfectly that " service which is perfect
freedom," we shall be free, as He whom we serve is free. The
perfect relation of separate existences will then be realized ;
but the Christian revelation expressly shuts out the hope that
equality, in the sense in which fools contend for it on earth,
shall exist even in Heaven.^ Not in time only, but in eternity
we must believe that one star will differ from another in
glory.2 But perfection, even in relation, does not belong to
this world any more than perfection in the objects related ;
and "here," consequently, "we have no continuing city." ^
The continued existence of a state that has been subjected to
the solvent of anarchy will be no longer an organic existence.
Its elements, like those of our own mortal bodies, alone will
remain. The spirit which animated it — its idea or conception
of perfection in relation — will form a contribution to the,
political traditions of humanity. Its body will subsist in the
inheritors of its physical life, in the children's children of
those who were its citizens, though their blood should be as
unrecognizable as the dust of their fathers. The spirit of
Phoenicia, for example, lives in the mercantile law and colo-
nial system of the modern world. The body of Phoenicia
lives in the maritime populations of both sides of the Medi-

1 Matt. V. 19, XI. 11 ; Luke vii. 28 ; 1 Cor. xv. 41 ; Ephcs. i. 21, iii. 10, &c.

2 1 Cor. XV. 41. ^ Heb. xiii. 14.

CONCLUSION. 547

terranean, and probably constitutes the most energetic part
of them. The spirit of Greece lives in the spiritual life of
mankind. "VYhat has become of the material life of Greece
we scarcely know. But this we know, that Phoenicia, and
her daughter Carthage after her, as politicial organisms, are
as dead as Hannibal ; that Greece is as dead as Socrates ; and
that it is as unlikely that either of them will come to life
again as that Hannibal or Socrates will rise from the dead.

It is true that the induction which seems to warrant our
belief in political mortality, though greatly widened by the
archaeological and philological researches of our own day, is
so much narrower than that on which we assert the mortality
of individuals, as scarcely to justify more than a probable con-
clusion. But it is equally consistent, so far as it goes ; for,
whether or not there be an autochthonous race, there is no
more an autochthonous state than there is an autochthonous
man.

Admitting, then, tlie mortality of the body politic and the
impossibility of its resuscitation, and recognizing democracy
as we have here defined it, as a violation of the law of its life,
and consequently as a process by which, if permitted to act, its
dissolution will be inevitably accomplislied, the question still
remain.^, Is this process, the action of tliis jxjlitical solvent,
inevitable ? If the cycle must be accomplislied, is this neces-
."i.irily its final stage and its new point of departure? If the
State mu.st die, must it necessarily (li<; inomatnrcly of lliis
terrible disease? Must it, in tlic (ulncss ol' ni;ilcri;il well-
being and progress, ])e torn in i)ieces by such hideous ])ar-
xysms of sin and suflering ? or may not its i)hysical life be

548 CONCLUSION.

indefinitely prolonged till, like the healthy individual body, it
gently and almost imperceptibly gives place to younger and
more vigorous organisms through which its spiritual develop-
ment is continued ?

It is at this point that my political creed separates itself
from the democratic-fatalism which cast so deep a shadow over
the life, and finally clouded the intellect of my dear and gifted
friend M. Prevost-Paradol, and which then^ depressed so many
of the best and bravest of his countrymen. That a physician
in the midst of an epidemic which sets at defiance the utmost
resources of the healing art, should feel as if all men were not
only doomed to die, but to die of that particular plague, till at
last he comes almost to persuade himself that it is no plague
at all, but the natural termination to human life, is a perfectly

1 "With the suhstitution of the past for the present tense, I gladly retain these
concluding sentences as a memento of the sentiments of 1872. Had M. Prevost-
Paradol consented to live, the eight or nine years of tranquillity which his much-
loved country has since enjoyed, would have renewed his spirit and refreshed his
heart. But they have brought, I fear, no adequate constitutional guarantee that
the spectre of egaliU may not again stride over the fair iields of France, when the
external conditions of her present existence are changed. The process of de-
centralisation, to which the more enlightened statesmen of France have always
looked for the indirect action of those moral and intellectual forces which were
to counteract the theoretical errors of their political system, has scarcely com-
menced. It is generally supposed that the temper of London is less volatile than
that of Paris. Yet in the confidence with which London opinion recently asserted
itself, in the extent to which it proved to be at variance with the general opinion
of this country, and in the facility with which it turned round, we have had a
memorable example of the tendency of great and crowded centres of life to give
way to exceptional and ephemeral emotions. Mental are as contagious as
physical epidemics, and no form of mental epidemic is more contagious than
jjolitical passion. So long as the political life of France is concentrated in Paris,
it is to be feared that periodical outbreaks of Imperialistic and Socialistic fever
are inevitable, and that the Franco-German war of 1870 may not be the last
occasion on which France will act in haste and repent at leisure.

CONCLUSION. 549

intelligible state of feeling. And such was very mucli M.
Prevost-Paradol's case. But does it follow that his belief
commends itself to other men, or that it would have com-
mended itself to him in happier circumstances ? It may be
that disease is as inevitable as death, and most diseases in
their ultimate form will produce death, but there are very few
diseases which, in their earlier stages, are not more or less
under human control, and none certainly which a rational
being ought, h 'priori, to accept as his doom. It is true that
in accepting democratic-fatalism as his ultimate political creed,
M. Prevost-Paradol's patriotism lost nothing of its fiery zeal.
To the last he wore himself out in contending against what
he regarded as inevitable, in attempting to reconcile what he
knew to be irreconcilable. Anarchy or despotism were the
horns of his acknowledged dilemma ; and that foreign conquest
must be the result of either alternative was a subject on which
he cherished no delusions ; for from delusions of all kinds the
intense honesty of his nature recoiled with a furious antipathy
which I scarcely ever saw in the nature of any other man.
And yet his position was essentially a false one ; for the
honesty with wliicli he accepted liis premises shut him out
from the foregone conclusion which liis patriotism imposed on
him, and he worked on a problem confessedly insoluble. " On
nc saurait done trop le redire : la Kcvolution fran(;;-aise a fondo
une socidte, ellc cherclie encore son gouvcrnemeiit." ^ Tlicsc,
and such as these, were liis words. Now, to seek a govern-
ment for a democratic society, on liis own showing, was like
seeking a doctor Ibr a (hiarl mnn. II' the doctor is to be. of

* Z/< France NottvcUc, y. '.iUO.

550 CONCLUSION.

any use, we must try to keep a spark of life in the man till
the doctor comes to him ; and before M. Prevost-Paradol went
to seek for a government for France, he was bound to show in
the society of France some slumbering embers of reverence,
order, and obedience, which had survived the Eevolution, on
which a government could be based — to prove, in fact, that, far
as she had gone in that fatal direction, France was not yet
finally and hopelessly democratic. It is in this respect that
M. Eenan, as it seems to me, has become wiser than his friend,
and wiser in his later than in his earlier writings, from the
terrible teaching of events.^

A state may no doubt play with a false political theory, as
a man may play with a guillotine. It is a dangerous sport,
and one in which I grieve to think that even my own country,
with so few safeguards, should have indulged so long. But
sport, however objectionable, is one thing, and reality is an-
other. So long as a madman's head is on his shoulders, the
doctor, with his strait-jacket, may do something, if not to
cure him, at least to keep him in life. But once his head is
off, it is the gravedigger that must be sent for ; and the
gravedigger, in the guise of the foreign conqueror, will come

^ " II y a cercle vicieux," he says, "arever qu'on peut reformer les erreurs
d'une opinion inconvertissable en prenant son seul point d'appui dans I'opinion "
{La Rtfonne, p. 26) ; and farther on he asks, " Quel est pour la France ce defaut
favori, dont il import avant tout qu'elle se corrige ? C'est le gout de la demo-
cratie super ficielle. La democratic fait notre faiblesse militaire et politique ;
elle fait notre ignorance, notre sotte vanite . . . Corrigeons-nous de la demo-
cratic" (pp. 64, 65). To M. Renan it had at last become plain that the option
for France lies between democracy and life ; but the earlier essays which he
republished show that his recognition of this fact came many months after M.
Prevost-Paradol's death.

CONCLUSION. 551

sooner or later to the dead state, and hide, by the imposition of
external will, the ghastly process of political decomposition.

N'ow, though it may be impossible to reverse the law of
political mortality, or to bring states to life again after they
are dead, it appears to me that by accepting as fixed points
the facts of nature in so far as they are known, those states
which still live and breathe through the various organs of
the body politic may do much to promote their indefinite
longevity. If reason is to have any influence in human
affairs at all, the " search for a government," or, taking the
matter from our point of view, the gradual development of
the government which is rooted in their past, ought not for
such states to be a hopeless task.

For its accomplishment two requisites — the one social and
the other political — seem alone to result from our inquiries.

1 . The social requisite is : The simultaneous abandonment
of the claim for exclusiveness on the one hand, and equality on
the other ; and the fullest and freest acceptance of the duties
of mutual aid in the three directions pointed out by the
natural relations of individuals — those, viz., of parents, chil-
dren, and brethren.

2. The political requisite — which, ii folloioiiuf on the social
one, it would probaljly not be difficult to attain — is : Tlie
discovery, or development, of a self-adjusting representative
system, as universal as is consistent witli order at tlie stage
of progress which tlie community has reached as an auton-
omous society, and so graduated as to correspond to the sub-
stratum of fact in relation to which alone equality can be
justly claimed, or permanently asserted.

552 CONCLUSION.

There is a last consideration on which my rejection of
democratic -fatalism, in favour of a belief in the ultimate
prevalence of political reason, is founded, and which our
unlimited but not undiscriminating acceptance of the three
famous doctrines popularly ascribed to the Ee volution has
enforced, — I mean the fundamental rectitude of human
nature. In the persistent advocacy and partial triumph of
these doctrines, we have had a memorable confirmation of
the fact that the great human heart, even when it goes
fatally astray, is not wholly in error. More than ever, in-
deed, it has been proved to us that the vulgar intelligence
is incapable of distinction, impatient of analysis, one-sided,
and prone to exaggeration. More clearly than ever we
have seen that the vulgar conscience, groping in the dark
without light, " and staggering like a drunken man," ^ is
readily led captive by vain hopes and still vainer fears.
Where the political organization of a community unhappily
is such that the purifying and moderating influences of its
better spirits are excluded or neutralized, its best impulses
frequently serve only to mislead it. But its errors, even
then, however fatal they may prove to it as a separate state,'^
are only distortions of the truth, and of that side of the truth,
moreover, which for the time being had fallen out of sight.
The maxim, " follow nature," which our earlier investigations
seemed to warrant, and which the history of opinion sanc-

1 Job. xii. 25.

2 " La France," says M. Renan, "expic aujourd'lmi la Revolution; elle en
rccueillera peut-etrc un jour les fruits dans le souvenir reeonnaissant des peuples
emancipes." — La Reforme, pref. xiii. Would that the prospect may prove as
accurate as the retrospect !

CONCLUSION. 553

tioned, derives additional confirmation from the fundamental
righteousness which, amidst all their aberrations, has cliarac-
terized popular aspirations during the last eighty or a hundred
years. Often as she has been betrayed by her apostles,
liberty has generally been victorious over despotism, and
promises to maintain with anarchy a more than equal fight.
The reflection is a consolatory one at all times, and from all
points of \4ew, for in it rests our only rational hope, if not of
the permanence of individual states, at least of the political
progress of humanity. Ultimately nature, whether right or
wrong, will certainly prevail, for of her, with far greater truth
than Hobbes said of his Leviathan, we may say, non est
potestas super terram qicm comparctur ei. But if nature, not
uprooted, but purified, potentiated, and explained to herself,
be not a trustworthy guide — if the wx populi, in the sense of
the whole voice of a whole people organically uttered, be not
at bottom also the Vox Dei, then there are but these alterna-
tives : either we must take refuge in dualism and content
ourselves witli tlie prospect of perpetual war ; or else give
way to pessimism, in which case the future of God's worhl,
bein*^ abandoned to Satan, even war will become a dream.

INDEX.

Abelard, 168.

Aberrations, theory of ethical and
political, 184.

Abraham and Moses, 103.

Abstract conception of Deity, 85 et
scq.

Acofleniic Questions, 147, 148.

Academics, their relation to the Stoics,
147, 148.

Ackermann, 40.

Acollas, Emile, accepts Eousseau's doc-
trine of equality, 393.

Actions, none of them indifferent, 319,
320.

Adam and Eve, social arrangements in
their time, 486.

Adams, Charles Francis, edits his grand-
father's works, 392, 393.

Adams, John, did not hold doctrine of
equality, 392.

'AJ<a4»opa, adnii.ssion of, in casuistry,
288.

Aditi, 96.

Aggression, natural right of, 414 ; con-
demned by de facto principle when
self- contradictory, 416; unjust if
really d<;.structive of life or liberty
on the whole, ih. ; Irish resistance
of, irrational, 418 ; right of, how far
it justifies force, 419 ; peaceable, be-
tween umall states, 420.

Agiii, 81 ; = Ignis, 96.

Ahrens, list of works on natural law, 6 ;
on Hegel, 28 ; on charact'T of evil,
33 ; on theological .school, 39 ; writers
of theological school, 41 ; on statis-
tirs, ii3 ; criticism of Kant, 298 ;
following Kr.'iusc, rejects distinrtion
Ijftwecn p'-rffct and inip<;rfe<;t o}»liga-
tions, 304 ; his <loctrine of equality,
893 ; position with rffcrcne*! tocrpial-
ity identical with that of KousHrau,
399 ; alive to the evils of democracy,
401.

Ahura-Mazda, 103.

Alabaster, 65; JVhecl of the Laiv, 115.

Alcuin, 153.

Alexander of Hales, 169.

Alexander's expedition to India, 79.

Alexandria, Stoicism in, 159 ; Jews of,

160.
Alfred, king, 152.

Algeria, 69 ; rule of French in, 310.
Alsace, 431. See Aggression.
Altruism, 44.

American " Declaration of Independ-
ence," 392, 393 ; politics, their errors

began with presidency of Jefferson,

487, 488.
American Ranters, 166.
Analysis and synthesis, 9. See Analytic

justice.
Analysis and synthesis both necessary

to philosophy, 405.
Analytic justice demands absolute

equality, 405 ; is etpiality before the

law, ib.
Anarchy, cause of barbarism, 68. Seo

Democracy.
Anaxagoras, 133.
Anaxiniencs, 132.
Animals, rights of, 218.
Annihilation, how far implied in Nir-

wana, 114 ; absolute, unthinkable,

645.
An.selin, St, 90, 168.
Anthon}', St, 166.
Anthropology, 71 ; oriental, 71 ; She-

mitic, ill. ; classical, 126 ; Shemitic

and Christ i;in, 161.
Anthrop«)ni()r[»hisni, 28.
Apathy, 114.
Apollo, worship of, 130.
Apprf»priation, 21<»,
yljtfitudo tin(\ fnruff(t,s, what, 292.
Aqiiina.s. See 'I'liftnias.
Arabian Keholars, 76, 169.
Arabs under tho Caliphs, 70.

556

INDEX.

Arcesilas, 147.

Arnjyll, Duke of, 24, 37, 53.

Arian creed, 83.

Aristotle, 42, 71, 131 ; quotes Tro-
verbs, 137; not a "judicious utili-
tarian," 140, 142 ; an eudiximonist,
141 ; on slavery, 156, 157 ; (Econo-
mics, 157 ; ai/ToipKeia, doctrine of,
less prominent in Plato than in
Aristotle, 182; does not differ from
Socrates in identifying justice and
charity, 340, 380 ; theory of justice
has fallen into confusion, 403 ; did
not confine proportion to public
law, 411 ; prefers positive to nega-
tive duties, 457.

Army, the, 518.

Art of positive law, 9.

Aryan, or Indo-Germanic races, 77 ;
where first found, 79; rationalistic
tendency,79, 80; of Greece, *6.; origin-
al family, 80 ; their special interest
for Englishmen, ib. ; believed in bene-
ficence of God, 92 ; Eastern or Indian
branch, 94 ; Western Asiatic, 102.

Asceticism and fanaticism, 128 ; rested
on distinction of obligations, 287 ;
not in accordance with Christianity,
458, 459.

Assent, general and special, 432.

Athanasian Creed, 83.

Augustin, 61, 167, 320 ; Christianity
existed before Christ, 176.

Austerity no part of Christianity, 458.

Austin, 281.

AuToipKda, 175, 182.

AvTovofxia. See Autonomy.

Autonomy of human nature, 55 ; spec-
ulative ground for believing in,
59 ; history of opinion regarding,
63 et seq.; realization of, hindered
by democracy, 173, see equality and
centralisation ; human, limitations
of, 175, 425.

Averrhoes, 76.

Avicenna, 76.

Azazel, or Satan, not the rival, but the
servant of God, 32.

Bacon, 45 ; gets credit for originality
which did not belong him, 170 ; true
spirit of his teaching seized by Gro-
tius, 171 ; his treatise De Justitia
univcrsali, ib. ; Brewster on, 256.

Bactra, 103.

Balch on Calvinism, 379 ; on American
Declaration of Independence, 393.

Ball, .John, first preached "freedom and
equality," 486.

Barbarian influences from within, 69,
267.

Barbarians, conquest of, justified by
principles of positive school, 310.
See Savages.

Barbarism, 68.

Barbeyrac, undutiful to Grotius, 322.

Barrister requires more physical power
than blacksmith, 508.

Barthelemy St Hilaire, 64, 111, 117.

Being and becoming, 27.

Bellarmine, 165.

Bench, Scotch, 34.

Benfey, Prof., questions the theory of
the Eastern Aryan home, 79.

Bentham, 49 ; a hedonist, 141.

Bequests, objects of, may be changed,
271.

Bible, 161.

Black skin, 104.

Blackie, 136, 141, 144, 188.

Blockade, law of, rests on de facto prin-
ciple, 260.

Boethius, 152.

Brahma, 82.

Brahma, Vishnu, apd Siva, 102.

Brahraana, a, what, 110.

Brahmanas and Upanishads, 84.

Brewster, Sir David, holds that Bacon
was not the discoverer of the induc-
tive method, 170.

Brocher, his criticism of the first ed.,
330 et seq.

Brown, Dr Thomas, first rejects dis-
tinction between perfect and imper-
fect obligations, 301 et seq.

Buddha's own creed, 107, 110 ; an as-
cetic, 112, but see 109 ; no leveller,
118; protests against exclusiveness,
133 ; had the conception of cosmo-
politanism, 158.

Buddhism, 105.

Buddhists not atheists, 65, 66 ; their
creed, 105, 106 ; numbers of, 105,
106 et seq. ; Buddhism and Chris-
tianity, 112.

Bunsen on pantheism, 28 ; on Chinese,
28, 120 ; his conception of Socrates,
36 ; his Ood m History, 63 ; regards
Egyptians as Shemitic, 75, 103 ; on
Greek mysteries, 131 ; on Nemesis,
137 ; on information, 174.

Burdens, public, 270.

Burke, 150, 249 ; holds all law to be
declaratory, 256 ; at first favours the
Revolution, 297, 487.

Burnouf, Eugene, 107.

Butler, Bishop, 150, 188; theory of
conscience, 200 et seq.

INDEX.

557

Calderwood, his theory of conscience,
186 ; his criticism of Trendelenburg's
theory, 198, 284, 292.

Calvin, 484.

Calvinism, its influence in promoting
democracy, 379 ; led to Mill's scep-
ticism, 485.

Candidates, few, for high appointments,
509.

Canon of limitation of the historical
method, ^3 ; of application of his-
torical method, 66 ; regulative of ap-
plication of historical method, ih.

Capito, 290.

Carlyle, Revolution, 70.

Carthaginians, 76. See Phoenicians.

Castes more exclusive than classes, 118.

Casuistrj' dealt with imperfect obliga-
tions, 288 ; founded by the Stoics,
ib.

Ciisus belli, what, 421,

Causation, necessity of believing in,
implies monotheism, 85 et seq.

Cazenove, 26.

Celtic race, what, 460 ; never had a
free town, 461 ; when pure, incapable
of self-government, ib.

Centralisation, narrowing influences of,
illustrated by life in great cities, 181,
548 ; in University of France has
caused intellectual paralysis, 499.

Cerberus, 127.

Chalybaeus rejects distinction between
perfect and imperfect obligations,
304.

Chance is mystery, 415. See Fate.

f'hancellor, Lord, 34.

Charity of tlic wise, Leibnitz identifies
witlj justice, 293. Sec Justice.

Charles II. pupil of Hobbes, 385.

Chaucer, 152, 485.

<:hevali.r, Michel, 500.

Child, rights of, 216, 227.

Chinese, 28, 120 ; held gulden rule, 44 ;
doctrine of the mean, 44, 125; pol-
itics, 121 ; wisdom summed up by
IjunH«n, 123 ; their reverence fur tlie
family, ib. ; (JIclsslch translaled i»y
Leggf, 124; tlieir scif-nces identical
with tlioso of Kuropeans, 252 ; their
sy.steniH dilferent from those of Euro-
peans, ib.

Christ aecepts Roman law, 41, 154.
Soo f'hristian and Christianity.

' I anthrofjology, 161.

' 1 Futlwrs, 62 el ncq.; eudfc-

nioni-.tH, 141 ; anthropology, 162 ;
teaching liaa separated justice fnmi
mercy, not mercy from justice, 338.

Christianity, 42 ; not exclusively altru-
istic, 44 ; contradictory expositions
of, 112 ; evokes nature, 167 et seq.;
natural, 176 ; necessary, ib.; must
be manly, not austere, 458 ; not the
work of the man}'', 483 et seq.; holds
out no hope of equality, either on
earth or in heaven, 546.

Christians, numbers of, as compared
with Buddhists, 106.

Church, its relation to science in the mid-
dle ages, 166 ; and to Aristotelians,
168 ; since Reformation has not main-
tained its position, 173,448; alone in-
fluences will directly, 450 ; supernatu-
ral means by which it influences the
will, ib.; natural means by which it
influences the will, 452 ; appeals to
lower classes, 453 ; extent to which
it may teach politics, 454 ; must in-
culcate positive duties, 456, 457.

Church of Ireland, disestablishment of,
272.

Church, Protestant, advantages of, for
political purposes, 456.

Church, Koman Catholic, its political
influence, 456,

Churches endowed and unendowed, 448,
449 ; both must have creeds, ib.

Cicero, 13, 71 ; on Aristotle, 140 ; in-
herited Stoical traditions, 147; as-
serts that the doctrine "follow na-
ture " was common to the whole
Socratic school, ib. ; on method, 148,
181 ; reproaches Stoics with dei)art-
ing from nature in practice, 149 ;
Cicero's use of the word conscientia,
188 ; called Socrates the Homer of
philosophers, 244 ; recognizes iden-
tity of justice and charity, 328; holds
the unity of the virtues, 347, 368,

Civil law. See Roman law.

Civilization, effects of, in increasing
rights and powers, 262 ; Rousseau's
error in supjtosing it to be cause of
ineijuality, 508 ; causes separation of
classes, 509.

Class, middle, 435, 436 ; silent, 480, 509;
the sphere of aeti(»n of tlicj individual
for tno time being, 493; each de-
mands a separate education, ih. ;
li^arned, political action of, nuist be
indirect, 502; all citizens containi'd
ill each, niunt be politically dealt
with as erjual, 510.

ClisHCs as opposed to castes, tlieir ob-
je(!t, 492, see Castes; individuals
pass from ono t<i anotli(!r, 493,

Classical anthropology, 120 rt nnj.

558

INDEX.

Classification has limits in both direc-
tions, 394 ; Shakespeare recognizes
importance of, 492 ; adoption of the
principle of, a confession of necessary
imperfection of government, 510 ;
does less injustice than the want of
it, 511; political corresponds to eco-
nomical and social, 513.

Cleanthes and Zeno, 147.

Clement of Alexandria, a Stoic, 160 ;
identity of divine and human Logos,
162.

Clergy, since Reformation, correspond
to Predicant Friars, 173 ; hampered
by symbols, 449, see Creeds ; ex-
amples of teaching politics by, 455.

Code, primitive, 11 ; universal, no pos-
sibility of forming, 535.

Codification, perpetual and universal,
unattainable, 535.

Codified law, 539.

Coleridge, 59, 146, 273.

Commercial codes, 516.

Common law, 539.

Commonplace persons produced by
popular books, 472.

Common-sense of mankind, recognized
by Thomasius as basis of natural
law, 290 ; recognizes necessary sov-
ereignty of the rational will, 437 ;
philosophy of common -sense in its
political aspect, 438, 439.

Commune, 70.

Comparative philology, 92. See Max
Miiller.

Conclusion, 540 et seq.

Confession, 177.

Confucius, taught golden rule, 44, 120;
a compiler of ancient literature, 120;
his creed self-revelation, 122 ; and
transmitter, 124 ; his doctrine of the
mean, 125 ; one of harmony, not of
limitation, 145 ; did he decline to be
prayed for ? 177.

Conquering nation, law of, how it may
become law of conquered, 433.

Conquest, right of, see Aggression ; of
Roman Empire by barbarians a real
success, 416; may give freedom and
power, 434.

Conscience, is moral consciousness,
186 ; modern theory of, in Scotland,
ib. ; not a separate faculty, ib.,
199 ; in what sense a direct reve-
lation, 191 ; development of, 195 ;
Trendelenburg's theory of, ib., 197;
Grant's strictures on Hutler's theory
of, 199 et seq.; judge must not con-
sult, in trifles, 279.

Consent, constructive, by concpiered
nation, 431 ; by patient, infant, im-
becile, and criminal, 432.

Consolatio Philosophicc, 153.

Consolato del Ma7'e, an instance of con-
suetudinary legislation, 516.

Consuetude, 11; how it effects direct
legislation, 516 ; means of declaring
rational will, ib. See Freeman.

Continental Universities, 1. See Uni-
versity.

Contract, primitive, 11 ; law of, 538.

Corn-law league, 147.

Cosmology, 131.

Cosmopolitanism, 158. See Socrates,
Stoics, Buddhists.

Cosmos. See Kosmos.

Coulanges, M. de, 41.

Cousin, 213 ; exaggeration of truth and
virtue impossible, 270 ; criticism of
Smith's doctrine of property, 315 et
seq.; distinguishes between justice
and charity, 317 ; sensualist philo-
sophy quoted, 321 ; maintains duties
without rights, not rights without
duties, 325.

Creator, character of, is creature's mea-
sure of perfection, 22 ; no rights in
relation to, 205 ; duties in relation
to, 207.

Creed, central, of humanity, 74, see
Autonomy ; necessity in Church, 448,
449 ; are positive laws, 449 ; their
frequent revision necessary, ib.

Criminal laws, 242 ; law, theory of,
according to principles of positive
school, 311 ; higher nature consents
to punishment, 312 ; constructive
assent to punishment, 312, 520 ;
criminals may be emi)loyed in remu-
nerative labour, 312, 313.

Cromwell, 89.

Custom, earliest form of legislation.
See Consuetude.

Cynics, 149.

Cyrenaics, 149, 185.

Aaifxcou, 37.

D'Alembert, 392.

Dante, 36; "Monarch," 383; held

doctrine of proportion, 410.
Darwin, 68.
Daughter, 93.
Death, do Buddhists regard it as the

ol)ject of life? 112; aright, 214, 215;

the great subjective limitation, 236 ;

of state, no resurrection from, 545 ; of

state, does not mean annihilation, ib.
De1)ts, justice consists in paying, 139.

IXDEX.

559

Decisions, cannot be two in same case,
253.

Declaratory character of all human
law, 255.

Deer forests, 268.

De facto principle, 231, 250, 259 ; the
answer to political fatalism, 479.

De Finibus. See Cicero.

Definitions and Divisions, 1.

Degeneracy, prehistoric, 67.

Democracy causes retrogression, 69 ;
plays into the hands of despotism,
384 ; in Athens, meant obedience to
Pericles, 479 ; definition of, 544 ; re-
pudiated as identical with anarchy,
545 ; is it the necessary death of the
state? 547; no constitutional guar-
antee against it in France, 548 ; dan-
gers of, increased by centralisation,
ib.; states may play with, 550.

Democratic-fatalism rejected as a politi-
cal creed, 548.

Democrats of the Revolution, 392 ;
miserable fate which overtook them,
488.

Descartes, 45.

Despotism, the logical result of Hob-
bes's system, 384 ; results from de-
mocracy, 549.

Detection of crime a fine art, 520.

De Tocqueville, France before the Rev-
olution, 297, 498, 500.

Development, of conscience, 195; right
to conditions of, 222,

Deville, Claire, 499.

Dhammapada, 108.

Dirbrot, 392.

Difference of ability, effects of, on a
farmer and a ploughman, 508.

Digest, 13.

AiKaloy, 157.

AiKulov ZiayffjLr}TiK6v, SiKalou iiopOu)TiK6u,
409.

Diogfiies, 1G6.

£ith% Kpl<ris, the judgment of Zeus was
t\n: j/rop(/riio, 403.

Direct revelation, 35.

Discipline, means voluntary acceptincc
of law, 463 ; taught by urruiige-
ments of nature, ib. ; first lesson of
j>olitic8, 464.
'■ I)i«niption," 279.

iMstinctionH, learned make too many,
vulgar make t^K) few, 292 ; iwx.ial,
rcHt on individual «liirereneeH, 399.

Division, Ulpian'H, 13 ; (Jaiiis'H, 14 ;
modem, 16; of ethical liiHtory of
Greece, 134; of objectH of jioiitivc
law, 537.

Dog, rights of, 218, 222.

Domestic relations, 538.

Donaldson, 40, 136, 163.

Doric legislation, 133.

" Drifting," tendency of higher classes
towards, 476.

Dualism, 25, 84, 553.

Duhitar, 93.

Dumas ascribes intellectual and moral
decadence in France to loss of ancient
universities, 499.

Duties, subjective, correspond to rights,
211 ; subjective and objective, not
opposed, 236 ; objective, revealed by
nature, corresponding to subjective
duties, 242 ; unilateral, Stoics incon-
sistent in their doctrines regarding
them, 320 ; Roman Catholic Church
held them, 321.

Duty to ourselves, what it involves, 211.

Eastern, or Indian Aryans, 94.

Economy, natural law ideal of, 264 ;
political, a science of nature, 274 ;
advantages derived from teaching of,
468.

Editors in pay of booksellers, 470.

Education, right to, 224 : compulsory,
225 ; higher, disregarded in demo-
cratic countries, 266 ; political in-
fluence of, 460 ; and autonomous
power do not always correspond, 461 ;
resulting in discipline alone has
political value, 462 ; obedience, first
lesson of political, 463 ; political,
cannot now be made comj)ul.sory in
this country as condition of suffrage,
466 ; political, ought to correspond
to responsil)ilities, ih. ; increases
rather than diminishes natural dis-
parities, 607.

Ego, source of rights, 26 ; measured by
power of sey)arate existence, 168.

Egyptians, are they Shemitic ? 75.

F.k'Ctoral system must take cognizance
of differences, 514.

Elizabeth, Queen, 152, 455.

Kmpirical method — Utilitarianism, 50.

Knactm<'nt, human, 10 ; causes of its
imperfection, ih., 425.

P!ncyclo|>tt;diu in Continental I'niver-
sities, 1.

Knd, when it justific'S the means, 419,
420.

Endowed ('hurch, advantage of, in pro-
moting in'lepi.ndunco of teaching,
448, 419.

KndowmcntH, Hpcciul ohjectfl of, may
1)6 changed no ah to attain general

560

INDEX.

objects, 272 ; freedom of lay teaching
dependent on, 448; scientific teacliinp;
in Universities dependent on, 303, 496,

England has had great municipal
lawyers, 159 ; has had no scientific
jurists, ib.

English, their shallow conceptions of
jurisprudence, 171 ; false distinction
between law and equity, 349 ; why
more Conservative than Scotch, 455.

English jurists contrast unfavourably
with schoolmen, 171.

Enthusiasm characteristic of Turanian
religions, 119.

Epictetus, liberty the object of his
ethical system, 357.

E[)icureans, 146, 185.

Equality and inequality, what rights
and responsibilities they imply, 263 ;
absolute, history of the doctrine of,
375 ; absolute, as a protest against
authority, 378 ; absolute doctrine of,
by the Jesuits, ib.; doctrine of,
corner-stone of Hobbes's system, 379 ;
Spinoza's doctrine of, 385 ; Saisset's
criticism of, 386 ; Montesquieu's
opinions regarding, 388, 389 ; Rous-
seau's doctrine of, ib.; nothing done
by Frenchmen to strengthen argu-
ment for, since Rousseau's time, 392 ;
Ahrens's doctrine of, 393 ; physical,
])sychological, and metaphysical,
394 ; Ahrens's argument for, con-
founds genus and species, 396 ; as-
sertion of, in American "Declaration
of Independence," 398, 399; of
functions held by Ahrens, 400 ; be-
fore the law, only sense in which
equality is involved in liberty, 402
et seq.; before the law is analytic
justice, 405 ; before the law is syn-
thetic justice, 406 ; Plato's doctrine
of, 408 ; Aristotle's doctrine of, 409 ;
just in law, only when true in fact,
illustrated, 412 ; how understood by
the leaders and followers of the Re-
volution, 487, 488 ; will not exist in
heaven, 546.

Eipialization, outcry for, hinders econo-
mical reforms, 232.

Equity, English, 13 ; prajtorian, ib.;
dispensation of, by judge, 279 ; false
distinction between, and law, 350,

Errors arising from erroneous concep-
tions of justice, 349 ; refuted by
being traced to their fountain-head,
378. See Aberrations.

JErskine, of Lirdathen, 176 ; faith an
eternal reality ; identifies mercy and

justice, 337 ; God's dealings with
man are educational, 475.

Ethical and political preceded physical
science, 131 ; systems worked out
into rules of conduct, 359 ; ethical
knowledge necessary for legal inter-
ference, 363.

Ethics and jurisprudence, relation be-
tween, 353 et scq.; in what sense
co-extensive, 360, 364 ; opposed to
legality by Kant, 363, 364.

Ethics, Nicomachean, see Aristotle ;
sense in which used, 254 ; sense in
which its object is liberty, 357 ;
teaches proportion, 409.

Eudsemonism, 49 ; what, 144.

Events reveal principles, 232,

Evidence, laws of, 66. See Canon.

Evil, 33.

Examinations, 226.

Exceptional workmen, their function in
the community, 494 ; derive no aid
from mercantile press, 500 ; must be
set apart, ib.

Exclusiveness amongst classical na-
tions, 133, 487; Buddhism protests
against, 117 ; and equality must be
simultaneously abandoned, 551.

Existence must precede activity, 57.

Fact of being involves right to be,
212 ; and all subsequent rights, 213
et seq.

Facultas, what, 292.

Faculty of law, 9.

Fairbairn, on monotheism, 90.

Faith, 176.

Families can dispense with classifica-
tion, 511.

Fatalism, 28, 29 ; distinction between,
and necessary obedience, 61 ; demo-
cratic, 548, 552.

Fate, action of, undiscovered law, 416.

Father, mother, &c., Sanscrit meaning
of, 92 et seq.

Fathers, The, 162.

Fergusson, Adam, 55.

Ferrier, Institutes of Metajjhy sic, 91.

Few always lead many, proved by
small number of names in Smith's
Classical Dictionary, 480, 481 ; al-
ways guide advancing waves, 482.

Fichto, the younger rejects distinction
b(!tween perfect and imperfect obli-
gations, 304 ; the elder adheres to
Kant, ib.

Filial obedience, 542.

Flatt, no perfect obligations, 305,

"Flesh," 144,

INDEX.

561

"Follow nature," 49; doctrine com-
mon to mankind, 59 ; consequences
of its repudiation by Mr Mill, 62 ;
Stoics had no claim to originating
maxim, 147, 184. See Tvudi aeauTov.

Forbes, the Rev. G. H., 163.

Force, the root of law, 24, = life = ego,
213 ; or power, real and apparent, 428.

France, 70, 431 ; and Germany, their
relative jjositions the result of the
presence and absence of a scientific
professoriate, 497 ; vanquished by
science, ib.; poverty of emiuent men
in, 498; oscillates between Catholicism
and democracv, 501 ; France nouvelle,
549.

Frankfort parliament of professors,
502.

Fraternity inseparable from principle
of paternity as exhibited in guardi-
anship, 371, 543 ; a doctrine which
cuts both ways, 488 ; separate dis-
cu.ssions of, needless, 542.

Frederick the Great, 233.

Free trade, doctrine of, not of popular
origin, 490.

Freedom, the object of jurisprudence,
see liberty ; the condition of positive
law, 429 ; and power may come from
subjection, 432.

Freeman on the action of consuetude
on the English Constitution, 516.

Froude on irrational resistance of the
Irish, 418.

G.MUS, divi.'don oflaw, 14.

Giirutmat, 82.

Gutlias, 104.

Gaunt, John of, 485.

Gerard, follower of Thomasius, 294.

Germany, schools of ]thiloHOpliy, 28 ;
Ir-iiiTied j»ress in, 471 ; and France,
their relative position, 497. See Ag-
gression, and Alsace.

Gibbon, 152.

Glailstone, 130, 499.

'inome, 137; in China, 122.

• ino.stics lield identity of the virtues,
347.

VyuOi (Ttavrhu, in Sanscrit, 98 ; in China,
122; hintorical origin of, in Grcecf-,
137; Hiiid by H<g«l to have been lir.st
given to the (Jncrks, 340.

Fi/w/iTj. See Gnome.

Cobineau, Count, 84, 103.

(WhI, = priniary 8ourc»" of natural law,
21 ; cons^ionii, 31 ; i<b'a of, 81 ; unity
of, ih.; is a neef-Hsary <:onc<'j>tion, 84
rX Hcq.; Gcxi's will and morality iden-

tical, 206 ; rights have no validity
against, 214 ; leaves no idea unful-
filled, 546.

Golden rule, 222.

Gould, ]\Ir, report on industrial classes
in Switzerland, 505.

Government, search for, in vain in dem-
ocratic society, 448.

Grace and nature, 174, 175.

Grant, Sir Alexander's, Aristotle, 57 ;
on savages, 68, 131 ; three eras of
ethical history of Greece, 131 ; " doc-
trine of the mean," 139 ; on "follow
nature," 149; theory of conscience,
199 ; criticism of Butler, 200 ct seq.

Greece, 126 ; as an organism, is dead,
547.

Grenada. See Snarez.

Gros-tete, or Greathead, 484.

Grotii, Gul., brother of Hugo, Encheir.,
13, 54, 288.

Grotius, Hugo, 154, 159, 239 ; his merits,
real and pretended, 170; inaccurate
writing gives rise to apparent con-
tradictions in his system, 257.

Guardianship, natural foundation and
limits of, 230; central idea of Posi-
tive School, 306 ; its application to
external ])olitics, 310 ; embraces fra-
ternity, 542.

Guillotine, 70, 550.

Gundling, follower of Thomasius, 294.

Guthrie's Savigny, 50.

Hallam on ecclesiastical jurists, 166.

Hamilton, Sir William, 56, 132, 184;
laws of parsimony and integrity, 193 ;
liberty and necessity, 237 ; natural
reali-sm, 241.

Hap]»iness, 49.

Harmonious system of jiirisitrudcnc «•,
200.

Harmony, Pytliagoreaii, 125, 132 ;
347. See Justice and Me^xf^TTjy.

Hedonism and Kutlanidnism, 49 ; Aris-
totle no hedonist, 141.

Hegel, definition of niitural law, 2,
28, 33, 51, 102 ; rejects distinction
between ])erfect and imperfect obli-
gations, 304 ; opposed to «Mjuality,
414.

H<-gelianism, 28.

Hell, IJuddliist belief in, 109; and
purgatory, belief in, depen<lH on cli-
mate, 114, 115 ; inconsistent with
justice, 339.

IlelvetiuH, 392

Henry III.. 485.

HeraclituH, 132.

2 N

5C2

INDEX,

Horaldry, a system, not a science, 252.

Heresies, their source, 183.

Herniits and anchorites, 1G5.

llesiod, 138.

Hindu trinity, 102.

Historical method, 50 ; objections to,
51 ; canon of limitation of, 63 ; ap-
})lication of, 66 ; regulative canons
for ai)plication of, ib.; impotent
against doctrine of absolute equality,
376.

Historicus, false doctrine of interven-
tion how accounted for, 285.

History of opinion with reference to
autonomy, 63 ; of mankind not di-
visible into conscious and unconsci-
ous epochs, 340 ; repudiates doctrine
of absolute equality, 376. See His-
torical method.

Hobbes, 156, 239 ; takes ei^uality for
granted, 379 et seq. ; repudiates his-
torical method, 380 ; founds juris-
prudence in nature, ih. ; political
doctrine of, 382 ; why government
was introduced, ih. ; system logical,
384 ; ideal of government, ih. ;
only logical advocate of equality,
402 et seq.

Hole, Mr, his Book about Roses, 268.

Homer, 36, 79 ; religion of, 136.

Honesty the best policy, 327.

Hooker, division of law, 5.

Horace, 178.

Hospitals, 272.

Hottentots, not valuable as specimens
of humanity or teachers of anthro-
pology, 71.

Hugo, representative of historical school,
50.

Human nature, autonomy of, 54 ; re-
veals its own impotence, 175 e^ seq.

Humboldt, Wilhelm von, 298.

Hunter, Annals of Rural Bengal, 82.

Husband and wife, 98.

Huss, 484.

Hutcheson, develo])S theory of n)oral
sense, 187; identifies virtue and bene-
volence, 208 ; his opinion as to dis-
tinction between obligations, 291 ;
his doctrine of obligations, 299 ; hesi-
tates as to distinction between perfect
and imperfect obligations, 300.

Idea — and ideal, distinction between,
353 ; of humanity, object of ethics,
and ultimate object of jurisprudence,
353, of state as of individual will be
ultimately released, 546.

Ignorance the source of vice, 327.

Immortality, Buddhist belief in, 109 ;
grounds for believing in, 164, 215 ;
unattainable in states, 547.

Imperfection, 177.

Incapacity, only legitimate ground of
exclusion from rights, 435 ; tests of,
ib.

India, 51, 94 ; rule of British in, 310.

Indirect revelation, 37.

Individual and class ellbrt, 476.

Individuals contribute to positive law
in proportion to their real power,
436.

Indra, worship of, supersedes that of
Varuna, 78, 81, 95.

Inductive school, 45.

Inequality. See Equality.

Inheritance, laws of, rest on subjective
rights, 229, 230.

International law, idea of, originated
with the Stoics, though Buddha had
preached brotherhood, 117, 118,
157 ; treatise on, in preparation by
author, 176 ; its function as a sub-
stitute for war, 419 ; public and
private, 539 ; rests on recognition of
existence de facto, 260.

Introduction, 1.

Ionia, free cities of, 133.

Ireland, Church of, 272.

Irish. See Froude.

Jack Cade's insurrection, 485.

Jefferson, a born democrat, 392; author
of American "Declaration of Inde-
pendence," 393.

Jerome of Prague, 484.

Jesuits, their doctrine of absolute
equality, 378.

Jews, 41 ; ablest of Shemitic races, 77 ;
at Alexandria, 160.

Job, 26, 382.

Johnson's Rassclas, 150, 202.

Judaism, state could not be founded
on principles of, 77.

Judge, function of the, 277 ; bound by
positive law, 278 ; analyzes case as
chemist analyzes substance, 405.

Judgment, private, limits to, in com-
munities, 279 ; private, in Churches
both endowed and unendowed, 449 ;
See Creed.

Judgments, causes of failure of, 11 ;
necessary inferences from national or
international law, and from local and
temporal circumstances, 250, see De-
cisions ; human, necessarily diverse,
278.

Jurisdiction, 248 ; function of, 277.

INDEX.

563

Jurisprudence, its relation to theology,
30 ; analogy of, 'n'itli sciences of ex-
ternal nature, 251 ; ditierence be-
tween, and heraldry, ib. ; relations
between, and ethics, 353; ultimate
object of, perfection, ib. ; proxi-
mate object of, liberty, ib. ; stands
to etliics in relation of species to
.genus, 355 ; and ethics, why con-
fused with each other, 356 ; defines
relations, not objects related, 356,
357 ; ministers to perfection by per-
fecting relations, ib.; does not take
cognizance of actions alone, 362 ;
cannot ignore motives, 363 ; science
of, embraces legislation, ib.; special,
423.

Jus civile, 13, 14,

Jos (jcntium, Roman, 12, 13.

J lis inter gentes^ 14 ; divisions of, 538.

Jus naturale, Roman, 13.

./u8 strictum, 292.

Jiis Volunturiura, 258. See Grotius.

Justice, Leibnitz's theory of, 291 ; dis-
tinctions of, cannot be maintained,
292 ; the charity of the wise, 293 ;
and charity identical in principle,
314 ; and injustice, contradictories,
not contraries, 320 ; and charity mu-
tually include and exhaust each other,
325 ; and charity culminate in the
same point, 327 ct seq.; M. I^iocher's
objections considered, 330 ; doctrine
tested by its extreme results, 333 ;
and charity, identity of, taught by
scheme of redemption, 334 ; and
charity, identity of, taught e([ually
b}' dee[>er view of redem[)tion, 336 ;
and charity, identification of, not
first promulgated l)y Christ, 337 ;
and is not exceptionally Christian,
339 ; Socratic view of the relation
illustrated from Protagoras of Plato,
342 ; liannony in human relations,
347, see Harmony ; in what 8en.s<!
identical with Ix-auty and trutli, 348;
analytic, 40.'5 ; and synthetic, 406 ;
commutative and distributive, 4o9.

JtiHtiniaii, 134.

Justin Maityr, 1G2, 163.

Kaiiih, 33,

i: ila.sa,82.

i. lit, ditwigrecmcnt between liis system

. and that of Aristotle, 109, 142;

theory of consciener, 192 el it/7.;

"Categorical imi»«nitive," 193; thrre

rannot be two right «leelHionH, 253 ;

followed Thomasius in dihtinguishing

between perfect and imperfect obli-
gations, 294 ; distinguishes between
negative and positive rights and
duties, 295 ; approves of the revolu-
tion at first, 296, 487 ; over-legisla-
tion in his time, 297 ; wishes to re-
duce state interference, 298; holds
freedom the one congenital right,
355 ; opposes legality to morality,
363, 364 ; relation in which the sys-
tem here taught stands to his school,
366 ; recognizes necessary sovereignty
of rational will, 439 ; does not advo-
cate ei^uality, 444.

KaQriKov and KaropdwfMa, distinction be-
tween, 287.

Kei»ler, 253.

Khonds and Santals, 104. See Hot-
tentots.

King never dies, 234.

King, or sacred books of Chinese, 120.

King's Coinjjlaint, 153.

Kirkpatrick on i)ublic prosecution
amongst the Romans, 520,

Knowledge of opposites simultaneous,
140.

Knox, 484 ; no advocate for equalitv,
379.

Koran, 36, 169 ; no state can be founded
on principles of, 76, 77.

Kosmos, Strauss retained conception
of, 50 ; intuition of, 71 ; word first
used by Pythagoras, 132 ; universe
must be perfect, 427 ; chaos cannot
struggle with, 517.

Krause, n^'ects distinction between jn-r-
fect and imperfect obligations, 304 ;
and his followers, 306 ; founder of
positive school, ib., 354.

Labeo, Antihtius, 290.

Lafayette, 486.

Laity called into spiritual life by Ke-
forniation, 173.

Land, how much, may be held, 268 ; in-
dividual property in, has necessary
limits, ib.

Landowners and capitalists onglit to
officer both army and police, 518,
519.

Lau-tse, 122; antieijiates Socrates, ih.

Lassen, Professor, 93.

I^atin (tivili/atioii. will it survive? 09.

Latin langua^^e, Iohh of, 173.

Law, natural, delinitions and divisitins,
1 ft Hrtj.; in Nshat heiiHti term useil,
3 ; obeyeil beftno (liMt;oven*d, 7 ;
faculty of, 9; of naliins cironeou*
eunccptiiiUH with reference to, 10 cl

504:

INDEX.

scq.; of nature deliued negatively,
11 ; of iuteijrity, 184 ; never volun-
tary, 257 ; confusion between volun-
tary character of, and the conditions
in which it is realised, by eminent
jurists, ib.; cannot constitute a
ju'oprietary relation, 259 ; cannot
change a price, 274 ; and ethics,
separation between, produces a cut-
throat code, illustrated from recent
politics, 284, 285 ; and equity,
severance of, arising from imperfect
conception of justice, 349 ; positive,
sources of, 425 ; of nature, perfect
realization of, why impossible, 425 ;
German, in Alsace, 431, 433, 434 ;
to the state and of the state, 433 ; of
marriage, illustration from, to show
that general rules are not unchange-
able, 532 ; public, 537, 538 ; public,
within the state, 537 ; positive,
division of, into national and inter-
national, public and private, 538,
539 ; private international, ih.; pri-
vate, within the state, 538 ; private,

' without the state, ih.; public inter-
national, ib.; public, without the
state, ib.; codified, 539 ; positive,
unwritten, common, or consuetudi-
nary, ib., see Positive law ; revealed,
politically orthodox, ib.; treaty, ib.;
written statute, ih. See Positive law.

Law, See Natural, Positive, Roman, kc.

Laws, "ought" and"must,"4; ofManu,
99, see Manu ; of war, 242 ; are
rational inferences from facts of na-
ture, 244 ; of nature necessary infer-
ences from facts, 245, 250; of nature
are realized in wider and narrower
spheres, 248 ; of nature determine
the objects of positive laws, 247 ;
always declaratory, 255 ; too many in
corru[)t states, 297 ; natural, cannot
be altered by prayer, 452 ; natural,
may be taught to children, 465, 466.

Lawyer and priest, 33.

Leading and following the conditions
of progress, 478.

"Leaps in the dark," English confi-
dence in, 134.

Leckie, 62, 207, 209.

Legal faculty, 34.

Legge, Dr, on Chinese religion, 120,
124 ; says that Confucius declined to
be jjrayed for, 177.

Legislation, 8, 9 ; principles of, 248 ;
impossible without knowleilge of na-
tural law, 248; and jurisdiction,
relation between, 277; partial, affords

no measure of power or reason of com-
munity, 435 ; means of declaring
rational will, 515.

Leibnitz, his connection with elder
Thomasius, 289 ; misunderstood by
Christian Thomasius, 291 ; nova vic-
thodus, ih.; divisions of justice, t'i.;
did not separate perfect and imper-
fect obligations, 292 ; doctrine of
obligations, ib.; identifies justice
and charity, 293 ; indisposition to
separate law from ethics further
manifested in his epistles, 294.

Levelling down, effects of, 492. See
Equality.

Leviathan, Hobbes's, 382, 553.

Lewis, Sir G, C, 50, 48, note.

Liberie, eyalite, fraternite, not neces-
sarily symbol of disorder, 540.

Liberty, positive side of, 235, 371 ;
right to, embraces all our subjective
rights, 235 ; proximate object of
jurisprudence, 353 et seq. ; the per-
fect relation between human beings,
355, 356 ; not license, cannot run
into excess, 370 ; maximum of ob-
jective, condition of attainment of
highest subjective liberty, 371 ; pro-
gresses and retrogrades with order,
373 ; Socrates illustrates, in Gorgias,
ib. ; relation between, and equality,
378, see Equality ; ultimate object
of positive law, 523 ; equality and
fraternity, each involves the other
two, 540 ; promises to vanquish an-
archy, 553.

License not liberty in excess, 370.

Lieber's political ethies, 438.

Life, the root of rights and obligations,
55, 212 et seq.; rights proportioned
to, 216 ; spiritual, provision for, ne-
glected in democratic countries, 266 ;
an educational institution, 464 ; of
nations, 545 et seq.

Light, eternal, object of Aryan worship,
84. ^

Limitation of historical method, canon
of, 63.

Limitations of human autonomy, 175,
425 et seq.; imposed by nature on
subjective rights, the source of order,
236 ; objective, are apparent, ib. ;
subjective, are real, ib.; natural, of
right of war, 419.

Literature harder work than law, 508.

Livy, 172.

Locke, 190.

Logic used and abused before dis-
covered, 7.

INDEX.

565

Logos, 163.

Loudon, effects of residence in, 181 ;

less volatile than Paris, 548.
Luther, 172 et seq.
Lycurgus, 133.

Mackenzie, Loud, Studies in Roman
Law, 520.

Magua Chai'ta, gift of liberty by oli-
garch}^, 485.

^lagyars, 119.

Mahomet, 33. See Koran.

^Mahometan fatalism, 29.

Mahometan free state impossible, 77.

Majority, what they believe, 84 ; nu-
merical, blind trust in, 476 ; intelli-
gence of, must always be below aver-
age intelligence, 477 ; never can be
source of progress, 482 ; Christianity
did not spring from, 483 ; does not
lead even mobs, 485. See Democ-
racy.

Man, an unconscious, a contradiction
in terms, 340.

ManichjBism, 191.

3Iansfield, Lord, 159.

Manu, 33 : — man, 99 ; identified
with Adam, ih. ; identified with the
Mannus of Tacitus and German Mann
and English man, 100.

Many always led by the few, 481. See
Majority.

MarciL"? Aurelius, 153.

^Materialism, 28.

Maurice, 254.

Ma.x Miiller, 7, 44, 6.^, 68, 78 ; im-
jiortance of his opinions, 81 ; on
the origin of irionothcism, 87 et
seq.

Maxims, 134. See Gnome.

]^Iechanical inventions not of popular
origin, 490.

V[i]i(v dyav, 139.

M«7oAo)^i;X*o, 179.

l^Ielanrlithon, 174.

M.lville, 484.

Merivalf, 153.

MtfToTTjT, a-s held by Confucins, Aris-
totle, ami Grant, iloctrine (>f liariiiuny,
not of limit.ition, 145.

Mtthffd, historical, 03.

MfTpitWrji, 139.

Mtrpov ipiTToy, 105, 139.

Mttxico inferior in <:ivilization to S.tiid-
wieh InlandM, 69.

Middle claHH, 436.

.Mill, hiM high ideal, 49; clriimM AHh-
totlcofla "judiciouH utilitarian," 140;
Lin ftcejiticinni ultimat«ly exceeded

I that of Strauss, 49, 50, 62 ; logical
result of Calvinism, 485 ; father's
influence in working it out, ib.

Milton's Satan, 185.

Minos, 133.

Mirabeau, 81.

Miraculous revelation to man, 35 ;
through man, ib .

Mischief, wanton, right of property
does not Avarrant, 218.

Mitra, 81.

Mob, the, its undue influence since the
lleformatiou, 172. See Majority.

]\Iobs have their leaders, 486.

Molina, 165.

Mollahs, 33.

Mongolian tribes, 119.

Montesquieu, 114 ; on equality, 388.

Montfort, Simon de, 485.

Moral actions, must they be ''unwill-
ingly" performed ? 143 ; sense, 187.
See Ethics.

Morals, three eras of, 135.

Mosaic law, 178.

Moses, 33.

Muftis, 33.

Muir, Dr, 78 ; his opinion with refer-
ence to monotheism, 88 ; translations
of Vedic hymns, 95 et seq.

Miiller. See Max.

Miiller on Sin, 57, 321.

Mure on Homer, 136.

Mysteries, 131.

Mysticism, 79.

Napoleon's conquests were not real
successes, 416.

National thanksgiving, its political
influence, 455.

Natural law described, 1 ; science of,
6; when known, the positive law of
a given relation may always be dis-
covered, 250 ; right of agression,
414 ; sjtecial part of, in all the older
system.s, [>2irtsfq.; special part of,
iilenlical with positive law, 530 ;
stands in same relation to general
and special rules of ]>(»sitive law,
530, 531 ; objections to universal
code of, applied, 535.

Natural realism, 241.

Nature, limited Hense in which term
used, 3 ; nsserts its exintence, 55;
hum:in, autonomy of, I'h. : giiaranlecM
itH veracity, 56 ; the renult of an ex-
ternal cauw, 57 ; a gift, 5H ; aw nreeH-
nary, in right, 59; CliineMe .onceptmn
of, 125; rovealn iln inipotencc, 175;
n-vealn no righln in relation to Crm.

5G6

INDEX.

tor, 205 ; reveals duties to Creator,
207 ; subsetiuent revelations of, 212,
see Right ; reveals possibility aiul
consequences of transgression, 287 ;
reveals objective corresj)onding to
subjective rights, 238 ; reveals only
subjective and objective rights, 242;
reveals objective duties which ex-
actly correspond to subjective duties,
ib.

Neander, 40; Christlichen Ethik, 164;
on fx^ya\o\\/vxi-o,, 179.

Necker, 486.

Negative and positive schools of juris-
prudence, 281 et seq.

Neighbour, have I one ? 240.

Nemesis, 135; signifies moral indigna-
tion, 136.

Nepenthes, 114,

Newman's Arians, 163, 165.

Newspapers, their value, 471.

Newton, 7.

Nic. Ethic. See Aristotle.

Nirvana or Nirwana, what, 106 et seq.:
popular conception of, 111.

No/j-Cf) KaXhu vdfMot} KaKbv impossible,
258.

Non-Aryan races of Asia, 104.

Nous of Anaxagoras, 133.

Obedience, a forgotten duty, 542. See
Guardianship.

Objective, or sensational school, 48.

Objects of positive law, primary, 523;
secondary, 524 ; classified with refer-
ence to spheres and forms, 536 ; di-
visions of, 537 et seq.

Objects of natural law, 353; of juris-
prudence, ultimate and proximate,
ih.

Obligations, history of distinction be-
tween perfect and imperfect, 282;
no distinction in principle between
them, ib.; history of attempted dis-
tinction between, ib. ; change their
importance according to circum-
stances, 284 ; attempts to distinguish,
not unknown to antiquity, 286 ; dis-
tinguished by Suarez, Grotius, and
Pulfendorf, 288 ; distinction generally
ascribed to Thomasius, 288 ; repudi-
ated by Thomas Aquinas, ib.; Kant,
doctrine of, 296; Hutcheson, views
regarding, 299; Reid's, 300; Stew-
art's, 301 ; Brown's, ib. et seq. ; list
of modern writers who reject distinc-
tion, 304.

Observational school, 45.

Occam, 169, 484.

OiKetooa-is of the Stoics, 189.

Old Testament, 75.

Oleron, Holies of, 516.

Omnipotence, 24.

One precedes two, 86.

Oneness, kinds of, 88.

O^Jcra supererogationifi, belief in, rests
on distinction between perfect and
imperfect obligations, 287, 321.

Order, its source in limitations of sub-
jective rights, 236; means to attain-
ment of liberty, 237 ; exaggerated
notions of, protested against by Kant,
296; led to the Revolution, 297; and
liberty culminate together, 368 ; and
liberty identical in principle, ib.; re-
garded as the object of jurisprudence,
369; what, 372; can be enforced only
by those by whom it is accepted,
518 ; proximate object of positive
law, 523.

Oriental, or ante - classical anthropol-
ogy, 74.

Orpheus, 130.

^Ovpavos =Varuna, 96.

Paley, 46.

Pantheism, 27 et seq.

Uap€K^d<r€Ls. See Aberrations.

Parson means Persona, 146, See Per-
sona.

Party spirit, contempt of Chinese for,
421.

Pascal, 115.

Pasteur, pam])hlet by, 498.

Paternal authority, 542.

Paternity embraced in guardianship,
371,

Path, of virtue, see Dhnmmapada,
108, 116; Chinese conception of,
125,

Paton, Sir Noel, verses by, 491.

Paul, St, 188.

Paul!, Dr, 486.

Pelagius, 189.

Pentagram, Bunsen's explanation of,
90.

Perfect and imperfect obligations, dis-
tinction between, 281 et seq. See
01)ligations,

Perfection, 23 ; ultimate object of juris-
])rudence, 353,

Pericles, 479.

Periodicals published for profit dis-
seminate, but do not advance know-
ledge, 471.

Perruques-blondes, 70.

Persian dualism, 83.

Persona, Roman doctrine of, 155 etseq.;

INDEX.

507

primary possession, 324 ; source of
rights, ih.

Personal contact renders ascertainment
of rational will more easy, 505.

Pessimism, 25, 553.

Pharisees, 182.

Philips on jurisprudence, 288.

Phillimore, 201.

Philo, 160, 162.

Philology, comparative. See Max Miil-
ler, 92.

Philosophical school, 46.

Philosophy of law, 6.

Phoenicia, as an organism, is dead, 546.

Phoenicians, no speculative genius, 76 ;
no success in political organisation,
ib. ; law of status barbarous, 77; law
of contract refined, ib.

^vKaKis, 306.

Physics in Greece, 132.

Purs Ploufjhinany compared with Manu,
100, 101.

Pietv, 292.

Pindar, 176.

Plato, 366 ; Protagoras, 342 et seq. ;
and Aristotle, attempt to distinguish
between their views, 140 ; Gorgias,
373.

Playfair, Dr Lyon, 498, 499.

Poland, 431.

Polemo, the teacher of Zeno, 147.

Police, Humboldt resolves state action
into, 298 ; begins to be officered by
gtiutlemen, 519.

Political economy, why a science, 274 ;
political graduation, results from,
principles of positive .school, 309 ;
political .science may be taught in
schools, 468 ; mortality, iiarrowness
of, induction on wliich it rests, 546 ;
organisms die, 547.

Politics. See Aristotle.

Politics, European, imped«»d by the
mob, 172; must be taught directly,
404 ; hardest of all work, 508 ; pro-
gressive and conservative seliools of,
logically reconcilable, 540 H sr«/, ; '
science of, would put an end to party
politics, 544,

I''»lling-bof»ih, liow far a school of poli-
tics, 472.

Polytheism, 23, 25.

Pr.or, have they rights? 323, 324.

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Full text of "The institutes of law; a treatise of the principles of jurisprudence as determined by nature"

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