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Lectures on jurisprudence, or

The philosophy of positive


law (5e éd. rev.) / by the late
John Austin,... ; 5th ed., rev.
[...]

Source gallica.bnf.fr / Bibliothèque nationale de France


Austin, John (1790-1859). Auteur du texte. Lectures on
jurisprudence, or The philosophy of positive law (5e éd. rev.) / by
the late John Austin,... ; 5th ed., rev. and ed. by Robert
Campbell,.... 1885.

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8° F 8085
I.OlUloi)
1885
Austin, John
Lectures on Jurisprudence, or the
philosophy of positive law
~y ~e-:
_`r yt~ a~
AUSTIN
os

JURISPRUDENCE

VOL. I.
LECTURES
ox

JURISPRUDENCE
OB
THE PHILOSOPHY OF POSITIVE LAW

/liâJtï
By THE LATE JOHN AUSTIN
or rai unn TEMne, BAHmsTenfliflW1"™

FIFTH EDITION, REVISED AND EDITED


By ROBERT CAMPBELL
AOVOCiTE («.OICH B*B), A.VD OF UXCOI_V'a m, »*ltR|srEIt.«-lAW

IX TWO VOUS– VOL. I.

LOXDOX
JOHN ilUEKAY, ALBEMABLE STBEET
1885

Tht right o/tmtutati<m ii rutnvl.


PritltJtr R. & R. Ct-AMt,Eilinburfh.
ADVEBTISEMENT
TO THIS EDITION.

It must be gratifying to ail who value and appreciate the


work of the late JOHN AUSTIN to know that
a new edition
of these Lectures has been urgently called for. The
cir-
cumstance significant not only as a publie recognition
is
of the merit of the lectures themselves, but also
as a proof
of the growing interest which is becoming awakened
in
this country towards the philosophical study
of juris-
prudence.
The present edition has been prepared with the
assist-
ance of notes of the original lectures which have been
preserved by Mr. J. S. Mill, and
were kindly furnished
by him to the late Mrs. Austin for the
purpose of a new
edition which she meditated, but did not live
to com-
plete. These notes have now been collated
with the
lectures as already published, and
are found so accuratc
and full in the parts where the printed lectures
are com-
plete that they may be confidently relied for
on supplying
thé lacun» which, owing to the state of the author's
IIS.,
were in the foimer publication inevitable.
In revising the six lectures which formed the volume
published in the author's lifetime,
care has been taken to
make no material alteration except in accordance
with a
clcnrly expressed intention of the author contained
in his
memoranda preserved by the late editor, and published
in the notes to. tlie former édition. Whete, however,
such intention was cienr upon the face of that text and
notes, the présent editor has chosen rather to venturo on
the attempt to embody it explicitly in the text, than to
lcave the task to eaeh reader of collecting tlutt inten-
tion from the scattered passages and fragments. In tho
instances, confined to thé matter of a few pages, where
any such altération has been made, the nature und extent
of the alteration is explicitly stated in thé foot-notes by
the present editor, distinguished by the initiais R. C7
With regard to the remaining Lwrtures, free use has
been made of the notes above described (hereafter shortly
referred to as 'J. S. M.'s notes '), both for purposes of
arrangement and addition. For the purpose of arrange-
ment, these notes hâve often furnished the due wherc,
for want of such a due, inévitable mispluc«ment of pas-
sages had taken place in the former edition. Of the
additions the most important are in the 39th and 40th
lectures. The latter part of the 39th lecture, on the
important topie of Codification/ fornied au entire lecture
in the course presei-ved in J. S. M.'s notes. The 40th
lecture, which is described in the former édition as miss-
ing, is now restored, and forms the leading chapter of
one of the author's main divisions of his subject.
Neglect could not have efl'aced the impress whieh
John Austin and his work has stamped upon the thought
of posterity. But that so much lias been recorded iu
explieit and substuntive form, is due tu the ability and
diligence of tlie lady whose preface heuds the following
pages. Mrs. died at Weybridge on thé 8th of
August 186", and it may be interesting to tlie reader,
and can scanely be inappropriate hère, to supplément the
ensuing prefac. with a short account of lier uwn lifu. In
doing so the editor takes the liberty of borrowing from
the pen of one entitled to speak from long and iutiiuato
aequaintanee. The Times of the 12th August 1867 con-
tains thé followiug notice
It 1ms already been announced, in nnother part of these
eolunms, that Mrs. Austin, widow of tho late John Austin, well
known as one of thé most eminent professors of the science of
jurisprudence whom this country lias produced, expired on the
8th inst. at lier résidence at Weybridge, after an acute attack
of a uitiliidy of the heurt, with which she had long bewi afllicted.
Althougli the life of Mrs. Austiu was spcnt in thé active dis-
chargc of lier privnte duties, aud nlthough no one was less dis-
posed to court celebrity, winch she might have enjoyed iu a far
larger d^rcu had she cared to seek it, she xmdoubtedly filled so
considérable a place in Society aud in literature that some record
of so remarkabJt: a woman may not uiifitly appear iu this place.
To the attractions of great personal ljeauty in early life, and of
a grâce of manner undinihiislied hy years, Mrs. Austin added a
masculine intellect and a large heart. It was not by the play
of a vivid imagination, or by au habituai displny of what is
termed vit, that she secured the affections and thé friendship
of so many of thé wisest and noblest of her eontemporarif.s.
The power she excreised in society was due to the sterling
qualities of her judgment, her knowled«e, her literary style
which was one of great pvivity and excellence and, abovo ail.
to her cordial reudiness to proniote ail good objects, to maintain
higli principles of action, and to confer heuefits on ail who
claimed her aid.
Mrs. Austin was descended from the Taylors of Xorwich,
a family whieh lias in several générations produced men and
womeu distiujiuished by literary and identifie ability. She
was born in 1793, and she reeeived in her father's house an
éducation of more than comnion range. In 1820 she married
Sir. John Austin, then a barrister on the Xorfolk Circuit, and
came to réside next door to Mr. Beuthani and Mr. James Mill,
in Qucon Square, "Westminster. Althou»h that house could
boast of nono of the attractions of luxury, for the fortune of its
owners was extrenicly small, it soon collected within its walls
as rcmarkablc an assemblage of persons as ever met m a London
drawirig-room. There nii«ht be seeu dint and flitting figure
of thu past Mr. Bentham and his two disciples, James and
John Stuart Mill, the Grotes, the rising lawyers of that day
whose success lias justified the promise of their dawn, Bicker-
steth, Erle, Itomilly, and Senior and ail this wisdom and learn-
ing was énlîveûèd in later yeara by Mie wifc of Charles Bulier,
by {ho he»rfcy sallies of Sydney Smith, by tho polisfced éloquence
of Jeffrey, by the courteous ameuity of Lord Lanadowne, and by
the varied rcsourees of foreigu visitera wiio found a home by
Mrs. Austin's hearth.
1 Mrs. Austin never uspired to original litorary composition.
Except ta some of tho prefaces to her translations, ahe dis-
claimed ail right to address the public in her own person. She,
therefore,devoted thé singwlar power of her pen to reproduce
in English many of tho best contempomry works of German
and French literature. Her translations from the German,
more especially, were of the highest excellence, and among thèse
her version of Eanko's Pojjcs of Home lias been commended by
the best judges as deserving to retain a place in English historical
literature.
1 Much of Mrs. Austin's life was spent abroad, and not a
few of the most eminent persous in continental society enjoyed
her friendship. She had inhabited two German Universities
for thé prosecutionof her husband's stttdics, after he had quitted
the bar for a chair of jurisprudence in thé London University.
She had accorapanied him to Malta when he was sent as a
coninmsioner to that island. She remained for some years in
Paris, where her small salon had an intellectual stamp and
charm not inferior to that of her London circle. The révolution
of 1848 drove the Austins back to England; they established
themselves in the village of Weybridge, and calmly anticipated
the day when they should rest side by side in Weybridge
churchyard. Mrs. Austin, however, survived her hustend for
seveval years, and that interval was employed by her in accom-
plishing a task which to most women would have seemed hope-
less. The greater part of the Lectures delivered by Professer
Austin on the principles of jurisprudence had remained in
manuscript. His ill-health led him constantly to postpone the
task of preparing thom for the press. After his death his
widow, assisted by one or two légal friends on whoso judgment
she could rely, succeeded in completing the imperfect edifice
from the fragments of it that remained and we owe to Mrs.
Austin, already advanced in years, and struggling with a painful
disease, the production of a work on jurisprudence, which is
unquestionably the noblest monument that could be raised to
the memory of her husband.'

In pursuance of a bequest of Mrs. AuHtin's, the books


on jurisprudence (chiefly of German authors), which hâd
been preserved as thoso of her husband's which be had
chiefly valued and atudied, and many of which are filled
with observations and anafytical notes in his htmdwriting,
are now placed in the library of the luner Temple in a
supamte compartment. As these are the volumes whieh

.1
are chiefly denoted by the références in the cnsuing
Lectures, and as they are there sometimes referred to by
their pages, it is important to state the particular editions.

.5
A liât is accordingly here subjoined of the books forming
the collection so plaeed in the Inner Temple Library.

.1 Ko. of

.1
Vols.
Friedrich Carl von Savigny, Geschichte des romischea Rechts im

Bas Recht des Besitzes, Giessen, 1827


Mittelalter, Heidelberg, 1815-29 5

1814
1
System des heutigen romiseben Rechts (first volume only)
Berlin, 1840 1
Vom Boruf unsrer Zeit für Gesetzgebung und Rechtewis-
senscliuft, Heidelberg, 1
Translation of the last, by Abraham Hayward. Printed

1815
by Littlewood & Co., Old Bailcy, London (not for
sale) 1
Karl Friedrich Eichhom, Einleitungin das deutsche Privatrecht,
GûttingcB, 1825 1
Deutsche Staats- und Eechtsgeschichte, Giittingen, 1821-23 4
Gustavus Hugo, Jus Civile Ante Justinianeum, with prefaco,
Berlin, 2

.1
Lehrbuch der Geschichte des roraischen Rechts, Berlin,

.2
1826 1
Lehrbucheines civilistisclies Cursus 4 4 volumesof different
editions, viz. 6*« Band, 2tw Versuch Berlin, 1818; 2tw
Band, 4<* Ausgabe Berlin, 1819 5«' (sonst) Tter Band,
3tte Ausgabe; Berlin, 1820; erster Band, 7'* Ausgabe;
Berlin, 1823 4
Gaii Institutionum Commcntarii IV., ed. J. F. L. Goschen, Berlin,
1823. (Full of analytient notes by Mr. Austin) 1
A. F. J. Thibaut, Theorie der logischen Auslegung des romischen
Rechts, Altona, 1806 1

Rechts, Jena, 1817


Civilûtische Abhandlungcn, Heidelberg, 1814
System des Pandekten-Kcchts, Jena, 1828
..1
A. F. J. Thibaut, Versuche über cinzelne Theile der Theorie des

Dr. Ferdinand Mackeldey, Lehrbuch des heutigen romischen


2
1
2

Rechts, Giessen, 1827, two vols. (bounù in one) 2


.3
.3
.1
Christian Friedrich Miihlenbrech,Beetrina Pandectarum,
1827
August Wilhelra Heffier Institutionem des romischon und
detitscben Civil-Procwises,Bonn, 1825 3
NQ.Of
Halte, VoIVf

.1
D. Christ. Gottlieb Haubold, Institutionum Juris Romani Privati
Mstorico-dogmaticarumLineamenta, Leipzig, 1826 1
Institutionum, et«., Epitome, Leipzig, 1821 1
Ernst Spangenberg, Einleitung in das Râmisch.Justinianiwho [
Bechtsbucb, Hanover, 1817 I
And. W. Cramer, De Verborum significatione Tituli Pandectarum
et Codicis cum variae lectionibus Apparatu, Kiliae, 1811 1
Heinrich Moritz Chalybiius, Historischo Entwickolung der specu-

1839
lativen Philosophie, von Kant bis Hegel, Dresden and
Leipzig,
Immanuel Kant, Kritik der reinen Vermmft, 7th edition, Leipzig,
1 «

1828. c
Prolegomena eu einer jeden kunftigen Metaphysik, die als

.1
Wissensehaft wird auftreten kbnnen, Kiga, 1783 1
Zum ewigen Frieden, Konigsberg, 1790 1

.1
Kritik der practischen Vemunft, 6th edition, Leipzig,
1827

1803
1
Die Metapbysik der Sitten, Kb'nigsberg, lst part, 1798, 2nd
part, 2

1803
F. Schleienmacher,Grundlinien einer Kritik der bisherigen Sitton-

.1
lehre, Berlin, 1
Jeremy Bentham, Introduction to the Principles of Morals and '•
Legislation, London, 1789 1
Constitutional Code for the use of ail Nations and all ~j

Governments professing Libéral Opinions, vol. L, London,


1830 1
j
Fragment on Government, Dublin, 1776
Draught of & New Plan for the Organisation of the Judicial E

Establishment in France, March, 1790 1


Traités de Législation civile et pénalo, publiés en Français

par l'auteur
John James Park, Contre-projet to the Humphreysian Code,
,3
par Et. Dumont, de Genève, d'après les manuscritsconfiés
3

London, 1828 1
Sir James Mackintosh, Dissertation on the Progress of Ethical 31
Philosophy, chiefly during the 17th and 18th centuries,
with Preface by Wm. Whewell, Edinburgh, 1830 1 j
James Mill, Essays on, 1. Govemment; 2. Jurisprudence; 3.
Liberty of the Press; 4. Prisons and Prison Discipline
3
5. Colonies; 6. Law of Nations 7. Education; London,

Oxford Street
printed (not for sale) by J. Innes, 61 Wells Street,
Friedrich List, Das nationale System der politischen Ookonomie,
1

Stuttgart and Tubingen, 1841 1 a


AUgemeines Landrecht für die Preussischen Staaten, Berlin, 1828 5
1827
21 .1
der siimmtiichen kooiglich-Preussischen Lande, 15tb
September, 1783, Berlin, 1783

Staaten, 20th Decembcr, 1783, Berlin, 1784


So.ot
Allgèraeines Crimînal-Recht fur die Preuasisehen Ktaaten, Berlin,

Allgemeine Deposital-Ordnung fiir die Ober. und Untcr-Gerichte

AllgemeinoGerichts-Ordnung für die Preussischen Staaten, Berlin,


1822
AllgemeineHypotheken-Ordnung far die gesammten koniglichen

1820
.2
Instruction fiir die Ober- und Untergerichte xur Ausfiihrung der
konigliehen Verordnung vom 16Un Juni d. J. wegen
Ëinrichtung des Hypotheken-Wesens in dem mit den
Preussischen Staaten vereinigtcn Herzogthum Saclison,
Berlin,
Strafgesctzbuch fiir die horzoglich Holstein Oldenburgiscben
Lande, Oldenburg, 1814

(2nd vol. in two parts)

.1
J. and W. Beck, edition of Corpus Juris Civilis, Leipiâg, 1825-G
Joachim Hoppe, Conwientarii succinta ad Institutiones Justin-
ianeas, Frankfort and Leipzig, 173G
Vol».

2
1

.1
1
Ant. Matthaeus, De Criminibus ad xlvii. et xlviii. Dig. comment.
Vesaliae, 10722 1
J. Gottl. Hcineccius, lieeitntiones in elementa Juris Civilis
secundum ordinem Institutionum, Vratislaviae, 1789 1
Antiquitatum Eoraanarum Jurisprudentiam illustrantium
syntagma, éd. Haubold, Frankfort, 1822 1
John Reddie, Historical Notices of tho Roman Law, Edinburgh,
1826

1819.1

5.1
1
L. A. Warnkunig, Versuch einer Begrtindung des Rechts durch
eino Vernunftidee, Bonn, 1
Johann Wening, Ueber don Geist des Stndiums der Jurispriidcnz,
Landshut, 1814 1
l'Jduanl Puggaeus, édition of Thcodosiani Codicis Fragmenta,
Bonn, 1825.
Angelus Maius, Juris Romani AnteJustinianei Fragmenta Vati-
cana (e codice palimpsestocruta), Rome and Berlin, 1824 1
D. Christoph Martin, Lehrbuch des Teutschengemeinen Criminal-
Proccsses, Gôttingcn, 1820 1
Corpus Juris Fridericanum, erstes Buch. Von der Prozessord-
nung, Berlin, 1781 1
B. G. Niebubr and Eh. A. Brandis, Rhcinisches Musoum fiir
Philologie,Geschichte und griechisclie Philosophie,Bonn,
1827-8 2
F. C. von Savigny, C. F. Eichhorn, and T. F. L. Goschen, Zeit-
schrift fiir geschiehtlichte Rflclitswissenschaft, Berlin,
1815-23 5
€rco. Lnd. Boehmer, Principia Juris Canonici speciatim Juris
Ecclesiastici publici et privati quod per Germaniam
obtinet, Gottingen, 1802 1
Paul
.1
1820.1
Gericht, Liindabut, Ï81Ï
Ko. or
J. Ansolm, Feuerbach, Betrachtiingoniiber das Gesclwottieu-VoU.
Lehrbttch de» geifteînen in Deutschhmd gttltigon peinliehon
t

Kt'chts, Gicssen,

Justiz-Einrichtungcn, Leipzig, 1819 .2.2


M. C F. W. GravelJ, Priifung der Gntnchten der kSnigï. Prouss.
Immediat-Justiz-Conimbsionam Rhoin über die dortigen

Luchvig Heinrich Jordan, Uobor die Billigkoit boy Entschoidung


dei- ReehtsfStle, Güttingen, 1804
1

1819..1
D. VineenaAugustWagner, Zeitsçhrift fQr flsterreichïschoRedite-
gelehrsamkeit und politische Gesetekunde, Wien, 1830

.1
(12thpart) 1
C. F. Rosshirt, Lohrbuch des Çriminalreehts, Heidelberg, 1821 1
C. J. A. Mitterraaier, Uobor die Gnimlfehler der Behandlung des
Criminalrechts in Lehr- und Strafgesetzbucherj), Bonn,
1
Grundriss zu Vorlesungcn iiber dus StrafVeifahren 1
Cesare Beccaria (Marcliese), Dei Delitti e delto Pene, London, 1801 1
A. R. Philippo du Trieu, Manuductio ad Logicam, London, 1 820 1
fcaac Watts, D.D., Logick, 9th edition, London, 1740 1
Arthur Schopenhauer, Die beiden Grundprobleme der Ethik,
Frankfott, 1841 1
Sir William Blackstoao, Commontaries on tho Laws of England,
15th edition, by Edward Christian, London, 1809 4
Anonymous, Remarks on Criminal Law, with a plan for an ira-
proved system, and Observations on tho Prévention of
Crime, London, Hamilton, Adams & Co., 1834 1

.1.3
A volume containing, 1. An article from the Edinburgh Review,'
1817, No. 57, entitled 'lientham on Codification j' 2.
An article from the samo Eeview, 1843, entitled 'Cen-
tralisation,' by Mr. Austin; 3. The pamphlet 'A Plea
for the Constitution,'mentioned in Mrs. Austin's proface
to thèse Lectures; 4. An article from tho Edinburgh

.1
Keview,' October 1863, Austin on Jurisprudence,'under.
stood to be by Mr. J. S. Mill 1
A copy of the former edition (by Mrs. Austin) of thèse Lectures 3
Raako's History of thé Popes,
1866
translated from the German by

.1
Sarah Austin, London, 3
Henry Roscoe, Digest of the Law of Evidence in Criminal Cases,
London, 1835 1
T. Ii Malthus, Essay on Population, 4th edition, London, 1807 2
Additions to the samo, London, 1817 1
The American's Guide, Philadelphie, 1813 1
A volume without a title-page, containing articles from a French
law review, thé first (which has been carefully noted on
the margin by Mr. Austin), being entitled Remarques
sur la définition et sur la classification des choses,' and
being a treatise suggestedby a work of M. Poncet, dated
about 1817 1
- .1
N. Falcfe, Jurf»tlsëh& Eaeyklopiidte,Kfel, 1825
Cari von Kotteck and Cad Welcker, Staats-Jjexiko»,otier Ency-
klopiidie (1er Staatswissenschaften, Aitona, 1842
Kobert Edon, Juiisjmulontia Philologie», Oxford,

>f. Biret, Vocabulaire des cinq Codes, Paris, 1820


1744
..1
J. B. Siroy, Les cinq Code», avec notes et traités, Paris, 1819

..2
M. Camus and M Dupin, Lettres sur la profession d'Avocat et
So. of
VùlS.
1

1
1
1
1

bibliothèque choisie, Paris, 1818

(bound in 4 parts)
AL de Vattel, Droit des Gens, Lyon, 1802
..2
..3
J. A. Rogron, Code do Procédure civile expliqué, Paris, 1(<28

George Frédéric von Martens, Précis du Droit des Gens moderne


2

2
S

de l'Europe, fondé sur les traités et l'usage, Gcittingen,


1821 1
Conrad J. Alex. Baumbach, Einleitung in das Naturrecht, Leipzig,
1823 1

In thé following pages the notes which belonged to


the Author's work publlshed in bis lifetime are dis-
tinguishecl by letters thus w. The notes of the lute editor
ure generally marked by thé initiais S. A.' Those of the
présent editor by the initiais E. C.
3]
CONTENTS
or
THE FIRST VOLUME.

Pbefack (liy Sarah Austin)


OtTMKEOF TUE CoVItSE OF LECTL'IttS
Page 1

THE PROVINCE OF JURISPRUDENCE DETERMINED.


AxALVit» or Levti'he» I.~ VI. 79

LECTURE I.
ThepioywKofthefollowmg attempt to determine the province of jurispm-
douce, itatcd or suggested.– The manntr of thé following attempt to
détermine the province of jurisprudence. Law: what, in moat coniprehen-
sive literal sensé.– Law of God.– Huinan Ijiws. Two classes: Ist. Iaws
set by political superiors 2ndly, Laws sot by men not political ««perfora.
Olijects iniproperly, but by close analogy, termed lawa.– The two last
plaçai in one class under the- name positive morality. Objcets meta-
phorioally termed laws.– Laws or rules, properly so called, arc a Bpecies
ofeommands.– The meaning of the terni tvmtnand. The mcanini; of
tho tenu duiy.~ The ternis command and duty are corrélative. Tlie
meaning of the term sanction.– To the existence of a coinmand,a dut)',
and a sanction, a violait motiro to compilante is not requisite. Rcu-anls
are not scindions. –The meaningof thé term ammand, bricily re-stated.–
Tho inséparable connection of the three tenns, command, duty, and
mnttim.~ The manner of that connection. lavis or rules distinguished
from commands which are oaimonal or jxirlicular.– The fleflnition of a
law or raie, properly so called.– The meaning of the corrélative terms
superior and inftrior.–hw!, (impropvrly so called) which are not corn.
tnandt.– Laws {properly so called) which may stem not imperative.–
Laws which are not commands, enumerated 88
LECTURE II.
The connection of tho second with thé first lecture.– Tlie Divine laws, or the
laws of God. Of the Divine laws, some are rcvealed, and others are uim-
nealed.– Sueh of the Divine laws as are reeeaUd.– Such of the Divine
laws as arc unreitakd. What is the index to such of thé Divine laws as
are unrevealcd 1– The hypothtset or théories which regard the nature of
thaï Indux.– The t»ypothe»t«ortl»eoryof a maml uns», or fnnal? practitxtl
yrfaefjrf*oîaprueliattrauonf oîaeommonmiiK, ote ot«.– Tluïttiêory
or Uypothesiîofntittti/ A briersuniiiiaryof the tbvory <if utility, Tha
following exphuratiou» of tlmt suaiinai-y liriefty inirotliKixf.– Tho trno
kiukucy ofa humau action, anJ the Xxnelt.il of tlmt tendeiicy.– Accord ing
to thé theory of utility, God'» commanda are mostly rules.–lt iloea uot
follow from the theoty of utility, that evcry usefnl action » thé object of
Il Divine injuwition and wiy pernicieux action, the objcct of a Divine
prohibition.– A current amt specious objection to thé thvory of utility,
introduced and stnted.–Thu Iteo apt uuswcrs to thé lbrugoing objection
brieHy introduecd.– lUejtrst aii.wi-r to tho^forcgoing oUjectiu» statcii–
Tlio kcchU uiiswop to M» foregolng objection briofly iiitroituccd If our
comluctwere truly adjustcd to thé principle of puerai utility, our con<luct
would conform, for thé most |nrt, to ruta; rules wliicli einauat« froiu the
lMty, und to whieh the teiidciicics of hunian actions are tlie guide or
index.– Theory and praclke are ins«]>anibl<.s 11" our conduct werc- truly
adjusted to tho principle of general utility, our conduct would U' guided,
for tlie most Jiart, by sentiment) asxwmteil with rules; nilcs which ematmto
from the LMty, and to whieh tho tendenciesof hninan actions are the guide
or index.– If our conduct were truly adjustcd to the principlo of gênerai
utility, our couduct would conform, for thé most part, to Divine ntlt*,
ami would also \m guided, for tlw most part, by sentiments asaociatei.1 with
thoso rules. But, in aaomalous nnd excepted cases (of comparatively
rare occurrence), our comluctwould be fashionedàinctlj/ on thé priiicipk>

l'rielly resumed
of geueral utility, or guid«tl by a conjecture and comparisou of spteific or
parlicular conséquences.–The ««mii answer to the foregolng objection,
Page 103

LECTURE III.
Afology for iatroeiucing the principle of utility.– The connection of the third
with thé second lecture.– A second objwtion to thé theory of utility,
stated.– An auswer to that second objection, introduced.-An objection
to the foregoing answer, stated.-Theforegoing objection to thé foregoing
answer solved or extenuated.– Tlie second objection to thé theory of
utility, together with tho foregoing auswor to that second objection
briefly re-statol 122

LECTURE IV.
The con Motion of tho fourth with the third lecture. Tho second objection to
the theoryof utility, resmned.– A further answer to that xecond objection.
–Tlie hypothesisof a moral Muse, briefly introduced.– 'A moral sensé,"
'a common sensé,' 'a moral instinct,' 'a principe of reflection or con-
science,' 'a practical reason,' innate practical prlndples,' 'conimto
practical principtes,'etc. etc., are various expressionsfor oue sud thé eame
liyjiotliesis. The bypothcsb in question involves two timumptious. The
Krst of thé two assujnptions inrolvcd by thé hypothesis in i|iii'stion
stated in gênerai expressions. –Tlie foregoing statement of the first us-
smnption, exemplified and explained by an imaginary case.– The first uf
the two assumptions inrolved by the by|wtlie.sis in question, brietly
rc- stated in gênerai expressions. –The second of the two assumptions
involvecl by the hypothesû in question, briefly stated. As an index to
God'a commanda, a moral sense were hua fallible than tho principle of
gênerai utility But ia thore nny évidente to sustain the hypothesi* in
<ine3tionî– Tho)»>i)Otlj<!»lsiU(tueâUoUkittspmv(.4 by the négative stato
of our coimiousness. Tba two carrent arguments in fwour of tho
hypothesis lu question, brlclly stated.– TU» fîrst argument in favour of
tlio hypothesi» in question,cxainined.– Thesccoud argumeut tu fuvour of
thii liypotlwsw in question, examlnetL– A brief ststeraent of the fact
wbereon the second argument in favour of tho hypothc-gis in question ii
founded.– Thu fact accord» cxaetly witli the- hypothesisor theory of uttlity.
–A brief statement of tho ititermediatohypothesis whicb U eompounded
of tlio hypotliesis of ntility ornl thu hypotliesis of a moral seuise.– The
divisionof positive law into law mlural and hiw positive,aud the division
of/«* civile Un» jus gtulivM and ju» emte, suppose or involve the intor-

Page
raediutehypothesis which ta compounded of the hyi»thcsisof utility uud
the hypotlicsis of a moral sensé. The foregoiiig ilis.|uisitioiison the index
to God's eominauds, dosed with ail endeavour to clear tho theory of
utility froui two curreut thougli grossi œisconcejrtions.– Tho two miseon-
esptions stetuil– Tho firrt misconception «xatnined.– The second rais-
conceptionexamined 140

LECTURE V.
Laws proper or proporly so called, and laws improper or improperly u> called.
Anulogy mid metaphor as osod in couimon parlance defined.– Law* im-
proper are of two kinds t. Laws elosely analogous to laws proper 2. 2,
Imvs nibtapliorical or figurative.– Division of laws proper, and of such
improper laws ai nre closcly analogous to the proper.– Distribution of
laws proper, and of such improper laws
os are closely analogous to the
proper, under three capital classes: l. The law of Ood, or thé laws of
God; 2. Positive law, or positive laws; 3. Positive morality, rules of
positive morality, or positive moral rules.– Digression to exploin thé
expressions positive Imo and positive moralUy. Explanation of thé
followingexpressions, vte. Kienee of jurisprudtnec and «faut of positive
mvmlily; science of eihies or cUonlology,science of législation and science
of ntorafa.– Meaning of tho epithet good or bad as applied to a human
law.– Mcauingofthecpithetgood as applied ta the law of God.– Tho
expression toi» of nature, or nalural law, bas two disparate meanings.
It signifies the law of Ood, or a i»rtion of positive law and positive
morality.– The connection of thé présent (the flfth) lecture with the first,
second, third, fourth, and sixth.– The essentiels of a law properly
so
called, together with certain conséquences whieh those essentials import
v– The lawsof GoJ, and positive laws, are laws properly called. –The
so
goneric characterof positive moral rules.– Of positive moral rules,
some
are laws proper, but otliers are laws improper. The positive moral rults,
which are laws properly se called, are communes.– lavm set by
men, as
private iieraous, in pursuanec of legal rights.– The positivemoral rules,
which are laws improperly so called, are laws set
or imposai by gemml
opinion.– A law set or imposed by gênerai ojiinion, is mcrely thé opinion
or sentiment of an indeterminatebody of persons in regard to a kind of
condnet.– A brief statement of thé analogy between a law proper and a
law set or iwposed by gênerai opinion.Distinction between determimte
a
and an iiultterminate body of single or individual persons.– Laws set by
'jaicral opinion, or opinions or sentiments of intUtertninale Indien, are the
only opinions or sentiments tliat have gotten thé name of laies. But
an
opinion or sentiment hcld or felt by an imlivMtui!, or by ail the members
of a certain aggregate, niay lie as closcly analogous to a law proper as the
opinion or sentiment of an indetenninato body.– The foregoing distribu-
tivn ofluwiritropcr, and of stieh iiojjtopor tawi os tlto elosely aliolOgotM ti>
the proper, brietty recapUttlatal.– Cho. sanctions,proper omt tmproper, hy
which those laws «m Nspectively eulorecd j tho ilutio.t, nrojicr ami im-
(trojier, which thoso laws itspwtivrfyimpose anil the rlghts, proper ami
improper. which thoso law8 rtspvctivelycouler.– The law of (loti, ixisitive
law, bik! positive moratity, soiiietlmes coinçait, somctlmo» do nof coïncide,
and soinetimcs coujlkl,– 'ïï\a acts aud forbearauues, which, Hcconling to
thé theory of utllity, are objeets gf thé law of Qod.; and otlitr acts and
forbearanees, whieh, according to thé snme theory, ought to ha objects
rcspectiTi'ly of positiva morality imj law.– The foregoiug distribution of
lutes proper. and of such iui{irop«r law» as are dosely anologou* ta tho
l>ro[K'r, tallics, iu the main, with a divisiou of laws which la giveu iucl-
deutally by Locke in 1m Esaay on Human Underatandiug. Iaws meta.
phoricnl or figurative.– Tho commun und negative nature of laws of the
class.–Tho coininon and négative nature of laws nietaplioricalor figura-
tive, «hinvii by exumples.– Laws nietaphorical or tignmtive are often
blended and confouudod with laws impcriitirc und proper.– l'hysical or
uatural sanctions.– In strtetness, devlaratory law, laws repealiug laws,
ami laws of imperfect obligation (in thé senne of the Roman jurists),
ought tu be classed nspectivclywith laws, metaphorical or figurative,and

Page
nlles of positivemorality.– Note ou prevaitiug teudeiicy lst, to confound
positive law with the science of legislation, and positive morality with 4(8,
deontology: Examples from Hlackstune, Paky, the \rriters on iuter.
national lawv 2n<Uy, toeonfoand positivehwwith positive motattty, and
both with legislationnnd dcontology Ëxamples from the Roman jurists
and Lord MansfielJ 107

LECTURE VI.
The connectionof the sixth lecture with the tiret, second, tliird, fourtli, and
fit'tli.– Tho dktinguishing marks of sovereigntyand indépendant political
society.– Tlic relation of sovercignty and subjection.-Strictly speaking,
the sovereign portion of tho society, and not the society itself, is inde.
pendent, sovereign, or suprême– In order that a given society may form
a society political and independent, the two distlnguUhtng marks whieh
are mentioned above must unité.– A society indepondont but natural.–
Society formed by the intercourse of independent political societies. A
society political but subordinate.– A society not political, but forming a
limb or tnember of a societypoliticaland independent– The définition of
thé abatract term independent political socidy(inchuling tho definition of
the corrélative terni sovcrcignUj) cannot be rendered in expressions of
perfectly precise import, and la therefore a fallible test of specifie or
particular cases.– In otder that an independent society may form a
society political, it must not fall short of a numbe,- which cannot be
fixed with precision, but whieh may ho called considérable, or not ex.
tremely minute.– Certain of the définitions of the tenu sovcnii/nty, and
of the Implied or correlative term indtpemUnt poUtieal socùly, which
have been given by writers of celebrity.– Tho ensuiug portion of the
présent lecture is eoncerned with the following topics:– 1. The forms of
supreme government 2. The limita of sovereign power 3. The origin
of government, or tho origin of political socioty.– The forms of suprême
government.– Every supreme government is a monarchy (properly so
called), or an arblotraey(in the generie meauing of tho expression). In
other words, it is a government of «ne, or a government of a ntimljcr.
Of such distinctions between aristocracies as are founded on differences
betweon thé proportions whieli thé immber of the toverefg» My muy
bwtt? M thé uuiulwr of tho cummtmity.– Of mtc-li dfcrtiuctiui» tctwwn
aristocraties as are fomided. «itlifencea betweeu tht modes, «herein,
the sovereign utimber iimy sharn tho sovereigii power* Of siicli arùto-
cracies an are styknl limited monarchies. Variou» incttulligs of thé
t.
following terma:– Tho term '«overeign,' or 'Ht sovereign;' 2. The
term 'republie,' or 'eoroinonwcatth;'S.Thotcrm 'stute/or 'tfcstate;'
4. Tho termnation.' 01' thu exercise ol° sovereign porce» by a inouarch
or sovereign body, through politieul subordiuateg or delegatcsrcpresent-
Ing their sovereign author. Of thé distinction of sovereign, nul other
politieal (wwera iuto such as are leji-ilatim,and snch a» are œtcxtiet or
administrative. The true natures uf the coinniunitics or govcrniueut'i
wliich are styled by writcra on positive international law half tatereiyn
statea. The naturoof a o««/«ït'fc »<«<< or a suprême fédéral govermiwnt;
wtth the nature of a systtm uf eunfideratcd statu, or a ptrmanenl <:<m-
federaey of suprême gotxrntnenti.i:Uo limits of «overt-igu pomr.– The
esseotial differoliceof a positive law.– It followd from the essential dif-
férence of a positive law, and from the nature of sovercignty and
iudependent politieal society, that thé power of a monarch properly so
called, or the power of a sorereign number in its collegiateand sorercign
capacity, Is incapable of Itgal limitation. Attoinpts of sovereigns to
oblige themsclves, or to oblige the successors to their sovereign powers.
–Tho meaniugs of thé epitliet xtuconstitulional, as it is contrailistiii-
guished to the epithet illégal, and as it is applied to conduet of a
monarch, or to coaduct of a sovureign number in its collegiate and
sovereign capacity.– The uieaning of Hobbes's proposition, that 'no law
can be uujvst.Jivit or unjust, justice or injustice, ia a term of relative
and varyiug import.– Considered severally, tue members of a soyereign
body are in a state of subjectioii to the body, and may therefore lx>
legally bound, eveu as members of thé body, by laws of which it is thé
autlior.– Tho nature of politieal or civil liberty, together with the sup-
posed differenco betweeu free and despotic governments.– Why it bas
been doubted, that the power of a sovereign is incapable of legal limita-
tion. Tho proposition is asserted expressly by renowned political writers
of opposite parties or sects. A sovereign gorernmeut of one, or a
sovereign govemment of a number iu its collcgiate and sovereign
cajjacity, lias no légal rights (in thé proper acceptation of the term)
against Us mm sukjeet*. 'llight is might. 'Right' as meaning
'faculty,' and 'right' as meaning 'justice.'Kiglit' as îucaning
'faculty,' and 'right' as ineaniug 'law. From an appeannee of a
sovereign government heforc a tribunal of its own, we cannot Infer that
the governiiient lies under legal duties, or has legal rights against its
own subjects.– Though a sovereign government of one, or a sovereigu
govern nient of a number in its collegiatcand sovereign capacity, cannot
hâve legnl rights against its own subjects, it may have a legal right
against a subject or subjects of another sovereign government.– The
origin or causes of politieal governmentaud society.– The proper purjioso
or end of political governmentand society, or the purposeor end for which
they ought to exist. The position 'that every government continues
through the pcople's consent,' ami the i»sition 'that every government
arises through the people's cousent,' examined and explainml. The
hypothesia of the original comwnt or thé fundamental civil jaet.– The

Page
distinction of sovereign governments into governmeuts de jure and
governments de facto. –General statement of the province of jurispru-
dence as defined in the foregoing lectures 219
ANÀLYSIS OF PERVADLVO NOTIONS.

LECTURE XII.
««capitulation. -Suturai and .nom! rights,
or rights wliich uwnly
«uictioued religiously or uiorally.-Idoa.s, the analysu ofarowhich U
inoviUiMy iuvotved in that of right. Obligations
or diities aro positive
or négative.– Forbeaniuces caimot bu atylwl with propriotyncffalh-c ter.
i-i<w. -Obligations are relative or atwoteto.-Kights imply
t/iinga, acts, and forbtarancts.– Pcrsons, imtural permiu,
or iictitious.– Meaniiig
of 'physit-al iierson,1 or 'jiereon' aiiu]«ly. 'l'craon' freijuentlysyiiouy.
mous with 'nttttus' or condition. '–Kietitigm or légal Rirons l'âge 343
LECTURE XIII.
Recapitulatloii.-Meaiiing of 'thing. '-Distinctions between tliings.– TWugs
slguifyiiig acts and tbrbc!iraiK-(fs.-Corpoix'aland incorirorwil tlungs.-
Distinctiou Iwtwecny«ra rermn and jura
ptnouamm brieBy introilucea 367

LECTURE XIV.
Pwons and tliings.– Pewons and tliitigs distinguistosd. Kvants. Events
are simple or compte! Import of 'facf and incident. '-Acts and for.
bcarances.– Act– Fortarancc– Introduction to the distinction between
ju» in «wi and jus in ptrmimn.– Distinction between jm in and
/iw inpersmuuR.– Illustrationsof the distinction betwcon/<Mt«rem and
rem
jus te persmiam.– Property.– Servitus.– Exiimpk-s ofrights mpersonam
lst. A right arising out of a tmtntel; 2ndly. A right foundod ou an
"'JUT 384
LECTURE XV.
Further illustrations of the distinction botween ju in
rem and jus ia j«<
noiiam Jua in rem restrictod by certain writers to ju» in
nin over or lie
Ikings.– Rights in rem over jwrsons.– A person who is thembjecl otjus
in nm is pUceil lie a position like ths position of a thiiig whieh is the
sul.jeet of a similar right. And may be styled (by analogy) ihing.–
a
Jus realiter personale.– Kights ût rem, witliout déterminât» subjects 381

LECTURE XVI.
l.
Purposeand order of the present lecture.– Communnature of rights.– Certain
définitions ofarightexainined 393

Import of • right' in are LECTURE XVII.


relative or absolut»; Absolut»
duties defined by exhaustive «numération. Order in whieh I shall
con-
sider absolute duties in the présent U<Awn.–$ttf.rtgatdiri3 dutie» nnd
duties tut ngarding man, regard pcrsons generally in respect of their
remoto purpono.– Relative tluttes regard persons gencralfy in respect or
fliéîr reiuuia purpoiio. Patk» «owurtl» pontons genereHyare. indlrretïy,
diuties iovmtil» ueteriniuateperstons.Juit publtcuiu et privation.– Civil
injuries ami crimes.– Différence fatwcuu relative uud abvolute Juik-»,
etc.– Distinctiun» betwceii «bsolute Jiiiius l'age 400

LECTURE XVIII.
Hricf rrview of prcceiling lectures.– Obligation, iujury, and sanction imply
motive, will, intention, négligence, end ranima». Apology for iiujuir.y

4Q7
into 'iiiotivc-wiU,'etc.– ïlic will. Pominiou of thc will limited to
lwillly organs. -Dominion of the will limited to tome bodily organs.–
î
Dominion of thé will extemls uot to thé mirnl.– VoJitigus, wlmt Acts,
what I– Naines of act» comprise certain of their eousequencts. –Confusion
of will ami intention. –Motive and will.– Motives to volitions. Motives
to motives.– Why thé will lias attractetl m nmch attention nml been
tliought mysterious

LECTURE XIX.
Volitions and motives.Acta-Iutornai acts.Intentivu as regarding présent
acts, or the conséquences of présent acts. –Confusion of will ami intention.
-A conséquence of an act uwy not be intetulcd. An tntended couse,
quence of an act may be wished or noI.–Xnd if wûhed, it may be wishcd
as an end, or as a mean,– Conscqueuce of an act wished as an «nrf. Con-
currence of motive and intention. Exemplilications of the three foregoing
supi«sitions.– Of the first supposition. ~-Of the second supposition.–
Of tlie third supposition.– Forbearanct-sare intendod, but not willtsl 418

425
LECTURE XX.
Acts nre willeil ami intciuk-dcon<c({ucnces arc inkndcd. Forbcarances are
inUndtil. Motives to forbearauces. Forbearances distinguished froni
omissions. Ambïgaities of thé ternis forbearance and omission
commit and omit. Négligence. Heedle&iucss. Négligence and heej-
lessntss compared.–Rashness.–Négligence, heedlessuess, and rasl>nes.s,
likeiicd and distinguished.– Dolus.– Culpa.– Malice.– Dolus and culi>a.
Komimlaw

etc LECTURE XXI.


Intentions coupled with volitionsand arts. Présent intention to do a future
act, distingui.sliiHl from an act with a présent volition and intention.–
l'resent intention to do a future aot, what Distingnisliwlfrom a tiituplu
désire ut the object Présent intention to do a future act, ro-stated.
Confusion of will and intention.– Intending 11 future foibearanre. Au
intelidetl conse()uenctt of an inteinled future act, is uot always dt-sired.
Intentions to do future acts are certain or uncertain are mutured or
undigi'stcil.–A tmmUuin, or conil>assing.– Attcmpts. Intentionof Icgis-
lator, 435
LECTURE XXII.
Dttty Injaty.– Saiwni,oi>OWi(»»thmis- objwxîonsiicss fà sanction.–
a

Pago«8
Sanction ond obligation distlnguishcil.–Obligation regards the future.–
Sanction» upou
8i1l1ctioll~o¡)erate tlioAatim.~ Au obligationto
operate uvou tJlo~i''e$.-Al1o¡'II/IIItio'' un'»flot
to luili Impossible.
itotIm¡lOS8lblc,
–An obligation to ttesire not possible.– Suppuseu eonilict ofdesiro and
trill.– Elfwit of obligation iu vxtinguUhingttesires wliicli ur«e to a brencli
«'«'y

LECTURE XXIII.
Physlcal compulsion or restraiiit distinguished from tint which in imported
by duty or obligation.– Obligations to siifler and not to suflur.– Passion
or sufEiring, wliat 1 is the ulliuiate sanction of every obligation. Suffer-
ing may bc inQieted withont physical couiimlsioii or rcstraint 452

LECTURE XXIV.
Immédiate and remote abjects of ilutios.– Forbratiinces, omissions,
or acts
which are ineonsistent with thé remote jmrjMiscs of dutii-s.– Iiiijiort of
thé cognate oxpressiot» wrong, gulit, imputability = breach of duty.–
Intention, négligence, heeiilessnew, or rashness, is of thc
vaeuw ol
'•jury, guilt, imputability, or breach of duty.– Bat is not of itself injury,
guilt, ctc-Bricf aualysis of ucgligenca and its mode»; of intention
ganliug thc preseut, and intention reganling tho future.– Wliether
w
intention, neither consuwmatenor followed by an attompt, could be nmde an
the ohjcct of a negative obligationI– Restrictionof 'guilt' 'culjia'
or to
Intention. négligence, hecdk-siiicss, or rashness, as the cause of action,
forbearanec, or omission.– Injury, etc. is tho contradictory of duty.–
Corpus délie ti.– Further remarks on thé import of the word 'dolws.1–
Auibiguityof 'Scliuldncr,"Reus,'ctc 457

LECTURE XXV,
Intentionor inadvertance is of tho essence of iiyury.–An «lisurdity in English
law from inattention to this priiici»le.-J/<>ra.-Rcsume thé principle,
that intention or inadvertance is of thc essence of injury.– Grounds of
exemption from liability, mostly roducibie to the principlo last stated.

faelo laws tletlueiblc- from thé sanieprinciple


1. Casus or accident.– 2. Ignorance or error.– The objection
to ex post
48g

LECTUBK XXVI.
Recapitulation,– Considération of thé exuroptions from liability resumed.– 3.
Infaucy and Insanity.– Digression on tiio dHRireutkinds of ;>r«ai()/i^,oH«
jurû.–4. Dninkenncss(in some Systems oflaw).– 5. Suddcnnud furious
anger (in some systems).-Anillogical distinction in Roman law hetvveen
delicts and iiuasi-dclicts.– Crounds of exemption not depeuding
foregoing principlo. 1. l'hysical compulsion.– 2. Extrême terror.– on the
The
so-called exemptions not proiœrly exemptions, but
cases tu which theidea
of obligation does not apply <gg
LECTURE XXVH.

l'âge
Correction of statemoiii» in last lecture: Angcr, p. 496, cciifo–Stateinontas
|o iu.-<inislttvc! prescription, p. 499, o«fc.– Sanctions civil aiid crimiiwl.–
Public and Private wrongs.– Luws «vinotime»eauctioiml \>y imllitits.–
Vlcnrioiis jmtiishment. Varions mcnnlngs atiit i-tyniolugy of tko word
sanction 499
PREFACE.'
(BY SARAH AUSTIN.)

IT seerns necessary that I should endeavour to justify tlie step


1 havc taken, in bringing before tho public writings of such
et
nature and value as those of my deceased husband. 1 liave also
to explain why 1 have detenniued to publiait them in thu incom-
plète and unfinished state in which lie left them. The latter
décision M'as, indeed, a necessary conséquence of the former
sinco 1 could hardly be guilty of the irreverence and
presump-
tioji of attempting to correct or alter what lie had written.
I respectfully offer thèse explanations to the few to whom
it is fit that any mention of such a man should be niatle and
1 beg them not to think me so careless of lus faîne
as to hâve
lightly and unadvisedly uudertaken to do what might lower the
réputation which (almost in spite of himself) lie has left among
them. To their judgment and candour 1 commend these im-
perfect romains. Whatever defects tiuy may nnd, let them be
assurai he would have found more and greater.
It is well known to ail who are interested in thé science
of Jurisprudence, that the volume of which the présent is a
republication bas for many years been out of print. From thé
time tins was known, camest and ilattering entrcaties that he
wouM publish a second édition reachcd him from various
quarters. They were sufficient to stimulate any vanity but his.
Unfortunatcly they came too late. The public, or that
small portion of it which interests itself in such subjects, did
not discover the deep and clear stream of légal science within
its reach, till its waters had been diverted into other channels,
or had disappeared altogether. In proportion as the dcmand
for the book became urgent, more years and
more occupations
l This iircfncc, enrling with tho divi- What follows tlie division on n, 28 ht-
«on on (i. 26, belonged to thé édition lougi.il to the odition of tho remaining
or tupnut îmblislied in 1801, of "Thu lectures, publbhed in 1803, formiag the-
province of Jurisprudence determined.' sequel to the volume published in 1 SCI.
were interposed between the state of mind in which it was
wrhten, and that in which tbi» demain! fotmd him. Above aH,
the hope, thé fmbufttiou, the nrdoitr with which ho hiuï entered
upon Iiis cureer as n teacher of Jurisprudence, had been blighted
by indiifereuce and ueglect and, in « temper so little sanguine
as his, they could have uo second spring.
It was uot my intention to enter iuto thé particulars of a
life uf which there is little but disappointment and suflering to
relate, and whieh, from choiee as much as from necessity, was
passed in thé shade. Nothiug could be more répugnant to a
man of his proud huniitity and fastidious reserve than the sub-
mitting bis private life to the inspection of the public; nor would
it cousist with my révérence for him to ask for the admiration
(«ven if I were sure of obtaining it) of a world with which he
had so little in common.
But as, influenced by considerations which hâve appeared
to me, and to those of his friends best qualified to advise, con-
clusive, I have determined to republish the following volume,
and to publish the rest of the series of Lectures of which those
herein coutained form a part, it appears necessary to give some
explanation of the state in which he left them to tell why the
work which the Author meditated was never completed why
the portion already in print was so long and so obstinately
withheld from the public; and, lastly, what has determined me
to take upon myself the arduous task of preparing thèse materials
for the press. In order to do this, I must relate those passages
of his life which are immediately connected with thé course of
his studies and also, though with infinite pain, must touch
upon the qualities, cr the events, which paralysed his effoits for
the advancement of légal science and thé diffusion of important
truths.
If I dwell longer upon his personal character than may be
thought absolutely necessary to my purpose, my apology, or my
justification, will be found in the wortls of a writer who under-
stood and appreciated Iiitu
His personal character was, or ought to bave been, more
instructive in these days than his intellectual vigour. He lived
and died a poor man. He was little known and little appre-
ciated, nor did he seek for the rewards which society liod to
give but in ail that he said and did there was a dignity and
rnagnanimitywhich conveyed one of the most impressive lessons
that can be conceived as to the true nature and true sources of
greatness.'
At ft very early âge Mr; Austin enîered the army, in whieh
he served for Itve years; a fact which would have na place
hère, but for the permanent traces it left in his character and
sentiments. Though ho quitted it for u profession for wliich
lii.s talents appeared more peculiarly to fit him, ho rutaiued to
the end of his life a stroug sympathy with, and respect for, the
military churacter, as he conceived it. The liigh and punctilious
sense of honour, the chivalrous tenderness for thé weak, thé
generous ardeur inixed with révérence for authority and dis-
cipline, the fraukiiess and loyalty, whieh were, he thought, thé
distiuguishing characteristics of a true soldier, were also his
own; perhaps even more pre-eminently, than the intellectual
gifts for which lie was so remarkable.
Mr. Austin was called to the Bar in 1818. If confidence
in his powers and prospects could have been given to so sensitive
and fastidious a mind by the testimouy and the predictions of
others, he would have entered on his career with an undoubting
and buoyant spirit; for every one of thé eminent lawyers in
whose several chambers ho studied, spoke of his talents and his
application as unequalled, and confidently predicted for him the
highest lionours of his profession.
But he was never sanguine. Even in thé days when hope
is most flattering, he never took a bright view of thé future
nor (let me hère add) did he ever attempt to excite brilliaut
anticipations in the person whom ho invited to share that future
with hiru. With admirable sincerity, from the very first, he
made her the confidante of his forebodings. Four years before
his marriage, he concluded a letter thus and may God,
above ail, strengtlien us to bear up under those privations and
disappointtnents with whieh it is but too probable we are
destined to contend S' The person to whom such language as
this was addressed lias, therefore, as little right as sbe lias in-
clination to complain of a destiny distinctly put before her and
deliberately acceptée!. Nor has she ever been able to imagine
one so consonant to her ambition, or so gratifying to lier pride,
as that whieh rendered her the sharer in his honuurable poverty.
I must bu permitted to say this, that he niay not be thought
to have disappointed expectations he never mised and that thé
effect of what 1 have to relate may not be cnfeebled by the-
notion that it is the qucrulous expression of personal disappoint-
ment. Whatever there may be of complaint in this brief
narrative, is excited by thé recollection of great qualities un-
appiwciated, great powers which fotuid iio congeroal omploynient,
great ardottf for the good of miiuldurf, ehilfoi by indiflbrenee
ami ueglect by tho recolluctioii of tlie utruggha «ml pawgs of ait
ovcr-scrnputous and over-seiisîtivé spirit, viiiiily tryïng to estab-
lish, nlono ami unsustained, the claims of a science which he
duuined so important to mankind. Nor is the sorrow of an
iinmeasurable private loss so engi-ossiiig as uot to bo enhanced
by livrets at tlie loss sustained by the world.
It beeanie in no long titno «vident to une who watched hiin
with the keetiest anxiety, tlmt lie wuuld uot sueceed at the liai1.
His health was délicate ho was subject to fuvurish attacks whieh
left him in a state of extrême debility and prostration and as
these attacks were brought on by either physiculor moral causes,
nothing could be worse for hiiu than the hurry of practice, or
the close air aiid continuons excitemeiit of a court of law.
And if physically unfitted for the profession he had chosen,
lie was yet more disqualifiée! by the constitution of his mind.
Xervous and sensitive in tlie highest denrée, he was totally
deficient in readiness, in audacity, in self-complacency, and in
reliance un the supeiiority of whfch lie was conscious, but which
oppressed rother than animated him. He felt that the weapons
with which he was armed, though of the highest possible temper,
were inapplicable to the warfare in which he was engaged and
he graduaUy grew more and more self-exacting and self-distrust-
ing. He could do nothing rapidly or imperfectly; he could not
prevail upon liimself to regai-d any portion of his work as insig-
nificant; he employed a degree of thought and care out of ail
proportion to the nature and importanceof the occasion. Thèse
habits of mind were fatal to his success in business.
Indeed, even before his call to tho Bar, he had detected in
himself the germ of the peculiar disposition of mind which
disqualified him for keeping pace with the current of human
affaire. In a letter addressed to his future wife, dated 1817,
wlien he was still in the chambers of an Kquity Draftsman, he
wrote, 1 ahnost apprchend that the habit of drawing will in no
short time give me so exclusive and intolérant a taste (as far, 1
uiean, as relates to my own productions) for perspicuity nnd
précision, that I shall hardly venture on sending a letter of much
purpose,oven to you, uulcss it be laboured with the accuracy and
circumspectionwhich are requisite in a deed of conveyanee.'
Uut the habit of drawing did not create, though it might
develope, this tendency to exact from himself a degree of per-
fection incompatible with promptitude and dispatch. He was,
«s he says, intolérant of iiny imperfection ànct so long as lie
coultt dbscry the sumllest errw or ambiguity ma phrase, lie
recast it ugain and again till his accurate mind eoukl no longer
stiggesfc an objection or a difficulty. This was not thé tempcr
whieh could accoimnodttto itself to tho iinporious demands of
business. After a vain struggle, in which his licaltli and spirits
sufferecl sevorely, lie gave up practice in the year 1825.
In the year 182G, the University of London (now U niversity
Collège) was established. From the charaeter and objecte of
this institution it appeared to hold out a hope, that not only
classes of persons, but branches of science, excluded from tlie
ancient universities, might find admittance and fostering in
this. Among thé sciences which it was proposed to teach, was
Jurisprudence, and Mr. Austin was chosen to fill that Chair.
As soon as he was appointed, he resolved to go to Gemiany, in
order to study on the spot what had been donc, and was doing,
by the great juriste of that country, for whoru he had already
conceived a profound admiration. He immediately set about
learning the language, and had already mado some progresa
before he left England. In the autumn of 1827, after visiting n
Heidelberg, he established hîiuself with his wife and cliild lit
Bonn, M'hich was then the résidence of Niebuhr, Brandis,
Schlegel, Arndt, Welcker, Mackeldey,Heffter, and other eminent
meu, from wliose society he received cqual pleasure and instruc-
tion. Mr. Austin secured thé assistance of a young jurist, who
had just entered on that stage of the professional career in
whieh men are permitted to teach, without holding any appoint-
ment. They are caîled Pritatdocentcn, and are a sort of tutors.
By reading German law-books with this gentleman, Mr. Austin,
while pui-suing his main object, speedily acquired the language
with that precision and conipleteness which lie canied into
everything he studied.
He also, as 1 h'ml from some slight memoranda, took great
pains to infornr himself thoroughly of the discipline and mode
of teaching in the German Universities. He often expressed
his earnest désire to carry home, for thé use of Knglaml, what-
ever were inost worthy of imitation in Genuany. He left Bonn
in the spring of 1828, inaster of the German language and of a
mimbcr of the greatest works which it contains. He always
looked back upon his tesidence there as one of the most agree-
able portions of his life. Ile and those belonging to him, w!io
were then the only English established at Bonn, were recei .ed
with cordiality by this distinguished society, and fourni there
the qtialities most eonsonant to their tastes respect for know-
Iedge, tové of ait, fnieduui of thought, âud siiHpiieJty of habits.
Spite of the hopes, tho projects, ami the acquirameuts with
whicli he entered ujion his uew functious, it
was not without
iiiuch. regret and suiuo forebodings that lie quittée! life
n so fuit
of intervst ami so freu froin care, for the restraint» ami privations
which Lomlon imposes ou poor people, umt for the anxieties of
a laborious and untried career.
i
Yet overjthing promised well, excuptiug always his health,
which had suftered cxtremely from his nnxiety Ijeforu quitting
the Jiar, and was ouly partially rcstorod by the comparative
tranquillity of mtod wliich followetl his appointmeut, ami by
his salutary and agreeable résidence
on the Hhine.
His Lectures opened with a class which exceeded his
expectations. It iiieluded several of the meii who
are now
most enùtient in k\v, poli tics, or philosuphy. He was much
impressed and exdted by thu spectacle of this noble band of e

yoimg men, and lui felt with a sort of awu the responsibility
attaching to his office. He had the highest possible conception
of the importance of clear notions on the foundations of Law
and Morals to the welfare of thé human
race tho thought of
being the médium through which these
were to le conveyed
into so many of the minds destined to exorcise powerful
a
infliience in Englouti, filled him with anlour and euthusiasm.
As might be expected from his susceptible nature and délicate
conscience, these were not unmixed with anxiety too intense for
his bodily health.
Some notes, which 1 find in
a blauk leaf of the First
Lecture delivered at the London University,
are so strongly
imbued with his earnest and ardent dévotion to his work, that,
not without some hésitation, 1 resolve to give them exactly as
they stand. Even the broken sentences are characteristic, and,
to thoso who knew him, inexpressibly touching. To such, they
will vividly recall the man whose passionato love of truth and
c
knowledge is apparent even in thèse hasty woitls.
(
1J
Before wc separatt, 1 wish to
say a fcw wonls.
It U my [mrpfise to hold con vexations at the end of
c-very lecture.
[Mmntawx tu mysulf and to the gentlemen of
of extt-mpore lcctnre«.
my data– Advautmn»
rncowplett-ncsâ of written lectures, in ruipect of the ideax. Waste
of
labour in writinK j extempore lectures
can be aikpted at the moment t.»
the hearer (
Diiluess of written lectures :]
f therefo» winh, of «11 thing?, to fonn habit of lecturin»
a extempore
To thi», 1 am at present not compétent, but by dint of giriiig exphnwtions,
etc., I hope t may neijuire thé reqnisite facilityand composurc.
Auotfier athwatagc whieh will arise tïoin these discussions Errors m
plan (tntV in exécution wili W pointetl tntè ttml correcte»].
1 beg of yuu uot to hu restraiued by fui»; delicacy Fraukness is the
highest compUiueut.
etc.
I never myself acquiesce,
And this is perfectly consistent with admiration for genius Muiwtrous,
etc.
therefore, for a iiiuu,
1 therefore entrait you, as the greatest favour you enn do me, to di-inaud
explanations and ply me with objections turn me inside out. I ottglit
not to stand hère, unless, etc.
Can Ijc-ar eastigation without flitiching, coiuing from a frieruily luind.
From this collision, adviintages to both parties mo« ndvautageous tlmn
any written lecture.
Request them to ask questions relative to étudies.
I» short, juy requestn are, that you will ply me with questions, and
tliat yuu will attend rtgukriy.'
1 find in thé manuscript numerous passages marked v. v. whieh
lie evickmtly menât to expand or analyse externpoitineously.
He now appeared to have attained to a position above ail
others the best suited to him. His peculiar tastes and talents
fitted him for the business of a teacher. His power of
metliodising and expounding vas matchless; and he had a
natural and powerful eloquence (wheu he allowed himself to
give way to it), which was calculated to rivet the attention and
fix itself on the memory. This was far more striking in con-
versation than in his written lectures. As soon as he reduced
anything to writing, the severity of his taste and his habituai
resolution to sacrifice everything to eleanress and precision, led
him to rescind every word or expression that did not, in his
opinion, subserve thèse ends.
Perhaps no man was ever more eminently qualified to mise
extemporaneousdiscourso to the highest excellence, had he but
combined with his other singnlar qualifications that of easy
confidence and self-satisfaction. His voice was clear and Imr-
monious, and his elocution perfeet. Kobody ever heard him
talk without being powerfully struck with the vigour and
originality of his discourse, the variety and extent of his know-
ledge, and the scholarlike accuracy and singular appositeness of
his language, Classical thoughts aud tnrns of expression were
so familiar to him that they seemed innate and spontaneous.
'I think,' writes a friend to whom 1 have shown this poor
attempt to describe him, 'that you have hardly said enough
about his eloquence in conversation. But the truth is, that it
is impossible to describe thé manner in which one was carried
awny and uttorly absorbed by his talk. One had troyelled 'in
un liour over such vast régions, and afc suoh an élévationAnd
then the extraordinary estent and exactness of Iris laeinoryî'
It is tnw that 1 shrink from the attempt to eonvey an idea of
bis éloquence iu commun discourse. It lives in the remem-
branee of a, few. His memory was most extraordinary, and
would hâve been a gift to dwell on with wonder, had it not
been so subordinato to bis higher faculties. He never made ]

any display of it and as it was always under tho coutrol of


his suvere love of trutli, his hearers were certain that he
hazarded uothing, and that his statements might be implicitly
relied on.
But those qualities which, above ail others, smooth thé road s
to success, wero not to be looked for in a character like his. c
l'roud, sensitive, trying everything by thé lofty standard lie f
bore within him, it was only to a very peculiar sort of encour-
agement that ho was accessible. The highest applause or J
admiration of ignorant millions would have failed to givo him c
the smallest satisfaction. The approbation of the few whose
judgment he respected, or the persuasion that his labours
tended to gênerai utility, were thé only stimulants by which ho
could be enabled to rise above his constitutional shyness and
reserve.
It soon became elear that ho was as far as ever from having r
found the modest, but tranquil and seeure position, in whieh lie <
might continue to labour for the advancement of the sublime
science of which he knew hiniself to be so consummate a
master. '1
!l
It was not to bo expected, it is never found, even in the
country where science is most ardently puimied for its own
sake,> that studies which have no direct bearing upon what is
called practical life, can, except under very peculiar circum-
stances, attract numerous audiences. Where, therefore, thore is
any serious intention that the few who addict themselves to such
studies should find compétent instructors, funds are provided for >
tlie maintenance of men who have obviously nothing to expect
from popular resort. Their position is perhaps not brilliant, but c

it is secure and honourable, and afibrds them lcisure for the


prosecution of their science. No such provision was, however, j
made for the Chair to which Mr. Austin had been elected; and
as jurisprudence fornicd no part of the nccessary or ordinary
studies of a barrister, his professorship became nearly an empty
titlc. r
|
| T» sP>tef' s»y» tJw ilhwtïious writer of a notifie of Mr.
Aiistin'a deatb, in tho 'Law Magazine,' 'of the brilliant com-
mencement of his carcer as & Profcssor, it soou beau»» évident
[ that this country would not aftbrd such a succession of students
V of jurisprudence os would suffice to maintain a Chair; and as
'' there was uo other provision for the teachers than tlie students'
fées, it followed uf necessity that no man could continue to hold
that office unless he had a private fortune, or curnbined some
k*
gainful occupation with 1m professorship. Mr. Austin, whu had
no fortune, and who regarded tlie study and exposition of his
science as more than sufficient to occupy lus whole life, and who
knew that it would never be in demand among3t that immense
majority of law students who regarded their profession only as
a ineaus of making money, found himself uuder thé necessity of
resigning his Chair.'2
Such was the and of his exertions in a cause to which he
had devoted himself with an ardour and singleuess of purpose
of which few men are cajjable. This was the real aud in-e-
mediabk calamity of bis life-the blow from which lie never
recovered. His failure at tho Bar was uothing,and would never
have been regretted by himself or those whocared for him.
That was not his vocation, nor had lie any peculiar aptitude for
it; and there was no want of able and successful hamsters.
There was no one to do tlie work he could have donc, as an
expounder of the philosophy of Law.
At the time he wrote his Lectures, constructed the Tables
(hereafter mentioned), and prepared this volume for the press,
1 cau affirm that hc had
no other thought, intention, or désire,
than to push his inquiries and discoveries in the science of law
as far, and to diffuse them as widely, as possible. It was from
no unsteadiness of purposo,no shrinking from labour, no distaste
to a life of comparative poverty and obscurity that he abandoned
the pursuit to which he had hoped to dévote his life. If there
had been found for him some quiet and humble nook in the
wide and rich domains of learning, it is my fini» conviction that
he would have gone on, slowly indeed, as the nature of his study
and his own nature rendered inévitable, and witli occasional
interruptions from illness, but with unbroken tenacity and zeal,
to the end of his life.
In June, 1832, he gave his last lecture. In that year he
pnblished thé volume, of whieh the présent is a reprint. So far
was he from anticipating for it any biïlliant success, that lie was
Law Magazine and Kevicw, for May 1S60.
nstonished itt elle readiness and litaraiity with which the late
Mi'. XTùrroy uudertook tlie publication v£ it and for years
afterwunh bis anxiety was extrême, lest it should hâve entailctl
liws upou that gentleman. When nt length, in auswer to
luy
iuquiries, Mr. Murmy preseuted to me the Inst remntning copy,
as a proof that our fears were groumlless, Mr. Austiu expressed
perfect satisfaction, ami something liko surprise, eveu nt this
very moderato success. Ho was fully aware of the uiipopulnrity
of the studies to which lie lmd devoted himself.
So fcw,' says hv, &tv thé sinec-re in'iuirer* who turn their attentiun to
these sciences, ami eo difflcult is it for the multitude to pereeive the worth
of tlu-ir laljoura, that the rnlvancenicut of tlic sciences thetusolvKS is Coin-
pnrutivetyslow wliilst the most pcrspiciioue of the trutlu with whieh tlit-y
are octusiomilly enriched, are eithur rvjccted by thé imuiy as wortlik-ej» or
pernicious pantdoxos, or win their laborinus way to gênerai assent through
a long and dubious struggle with esUblislicd nnd obstinate errors.'
It must be admitted that the réception given to lus book at
first was not encouraging. îfeither of the Reviews which pro-
fess to guide public opinion on surious subjects took the sliglitest
notice of it. Some eulogistic articles appeared in journals of
less general currency, but on the whole it tnay be said to have
been left to make its way by its own merits. It was only nt n
later period, and by slow degrees, that they were appreciated.
In the year 1833 Mr. Austin was appointed by Lord
Brougham, then Lord Chancellor, member of the Crîiuinal Law
Commission. Though this turned him from the pursuit to which
he had hoped to dedicate his life, and confineil his inquiries to
a narrower and less inviting field than that lie had marked out
for hirnself, lie entered upon it with the same conscieiitious
dévotion, and carried into it the same profound and comprehen-
sive views. But he soon perceived that they would be of small
avail to himself or to the. public. The powers granted to the
Commission did not authorise the fundamental roforms from
which alone he believed any good could corne and his opinions
as to the ground to be marked ont, and thé foundations to be
laid, before any satisfactory structure of criminal law could be
raised, differed widely from those of his colleagues. Ho had
little confidence in the effîeacy of Commissions for constructive
purposes. He said to me, If they would give mo two hundred
a year for two years, I would shut myself up in a garret, and nt
the end of that time I would prodnee a complete map of the
whole field of Crime, nnd a draft of a Criminal Code. Then
let them appoint a Commission to pull it in pièces.' He used
to corne home from every meeting of the Commissiondisheartened
f
j bjuI agitftteil, and to express lus répugnance Ut reewviiig the
f public Jnoney for work ftoni whieh ho thonght the publie «"©uld
7
dérive little or no advantage. Some bltmed and Wotted shwt»
>; which 1 hâve found, bear painful und afïecting marks of Ihe
straggle that was goîng on in bis mind, between his own ïofty
sense of clignity nnd duty, and those more ordinary notions whieh
subordinate public to privnte obligations. 1 have nlso fuund
the commencement of a project of a Criruiiml Code drawn up ut
>
that time.
About tho same time, he had arrived at the conviction that,
as a teacher of Jurisprudence, he had nothing to hope. The
insufficiency of the légal éducation of the country had fur some
time attracted the attention of tho more enlightened part of the
profession; and it was at length detennined, by the Society of
the Inner Temple, that some attempt should be made to teach
the principles and history of jurisprudence. Among the most
oarnest promoters of this scheme was Mr. Austin's friend, Mr.
Biekersteth, afterwards Lord Lan.-dale. In the year 1834, Mr.
Austin was accordingly engaged to deliver a course of lectures
on jurisprudence at the Inner Temple. Had this appointment
been made under différent conditions, it was one whieh he would
have preferred to any other, however distinguished or however
lucrative. Unfortunately, it was not of a kind to give him the
security and confidence he wanted. He was invited to under-
take the discouraging task of trying to establish a new order of
thiugs, without the certain, though distant, prospect which usually
cheers the pioneer in such an enterprise. His appointment coukl
only be regarded as an experiment. This uncertainty weighed
upou him from thé first. He was, as 1 hâve said, disqualified
by nature from ail work of a passing and temporary sort and
in order to labour with courage and unimation, ho needed to see
before him a long period of persistent study, and security from
harassing anxiety. His precarious health and depressed spirits
rcquired every possible support; nnd he was but too easily dis-
heartened at what lie thought the want of confidence in the
scheme, or in him, evinced in a merely tentative appointment.
It was also clear that the same causes which rendered the
appointment to a Chair of Jurisprudence abortive at the London
University, were in operation (perhaps to a still greater extent)
in the Inns of Court. The demand for anything like scientific
lejjal éducation had to he created. The eminent lawyers vho
had adorned the English bar and bench (of whose great faculties
no one had a higlier admiration than Mr. Aiistin) had been
formed by a totally différait process and tho yonng nien
entering on the profession were, for thé most part, profounCIy
indiffèrent to any studies but those which had chabled their
prwlt'cessors to attttin to places of honour and protit. Thus
depressect by fiuluwj unaustnined by syuiputhy in hitt lofty and
beuevolcnt aspirations, or by recognition of his value as a
teneher; agitatcd by conflicting duties, and harassed by anxiety
about tho meaua of subsistence, it is no wonder that his health
became sensibly worse. The severe foverish attacks to which
he luul always been subject, beenrae more and more fréquent and
violent; ami often, after propariug a lecture with great care and
intense application, he was compelled, on the day wlien it should
have been delivered, to send messengers round to the gentlemen
of his clnss, to aimouneo his inability to attend. He soon saw
the iiiutility of struggling agaiust such obstacles. He resolved
to abandon a conflict in whieh ho had met with nothing but
defeat, and to seek an obscure but trunquil retreat on thé
Continent, where he might live upon thu very small means at
his disposai.
He quitted England with a strong feeling of the disadvan-
tage at which a man like hiwself, devoted exclusively to truth
and to the permanent good of mankind, stood, in a country
where worldly success is not only tho reward, but the test of
merit and where, unless hc advances in certain beaten tracks,
he arrives at nothing, except neglect and a sort of contemptuous
wonder. He felt this keenly, and said to the one person to
whom lie ever talked freely of himself, 1 was born out of time
and place. I ought to hâve been a schoolman of the twelfth
century or a Gennan professer.' ïho position of such illustri-
ous and revered teachers as Hugo and Savigny seemed to him
the most enviable in tho world. The pecuniary inferiority of
such a position, compared with the profits attending the practice
of law in this country, was not a considération to which his
rnind could easily descend.
He had been settled at Boulogne about a year and a half,
when a proposai was made to him by the Colonial Office,
through his much esteemed and faithful friend Sir James
Stephen, to go to Malta as Royal Commissioner, to inquire into
the nature and extent of the grievances of which the natives of
that island complained. He acceptée! an appointment for which
he was indeed peculiarly fitted. Justice and humanity were
parts of his nature, and were fosterod by reason and by study.
He had no syrnpathy with the insolence of a dominant race, and
l he W89 not likely to view with indulgence, violations of the
| conditions under which Englund had aecopted Ihe voluntary
f cession of Malta by its hilmbitaiits. On tlie other hand, hn
[ sagaeity, knowledge, and strict sensé of justice renderal him
inaccessible to fiwitastic sehemes or gruuudta» eomplaiiit».
j Aided by his able and acconiplished colleague Air. (now Sir)
George Cornewall Lewis, lie rendered to the island services
which attracted little attention in England, but are remeinberal
i with lively and affectionate gratitude in Malta.
He had the satisfaction of seeing every measure he reeom-
raended adopted by the Colonial Office; and he always looked
back with great satisfaction to his connection with two men for
whom ho entertainud so sincère a respect as Lord Glenelg and
Sir James Stephen. But hère another disappointraent awaited
him. After the refonn of the tariff (which Sir James long after
called, the most successful législative experiment he had
seen
in his time'), and of various parts of the administration of the
island, Mr. Lewis having been recalled to England to préside
't over the Poor Law Board, Mr. Austin was preparing to enter
upon his more peculiar province, légal and judicial refonn.
Lord Gleuelg, however, was no longer in oflice, and the Com-
mission was suddenly brought to a close by his successor. Xo
reason was assigned, nor was Mr. Austin's abrupt disniissal
accompanied with a single word of recognition of his services.
It reniained for thé Maltese to acknowledge them.3
It is indeed but too probable that the state of his health
would have incapacitated him for thé work he prqjeeted. But
he frequently said to me, that if, as he presumed, thé Colonial
Office wished to put an end to the expense of the Commission,
he would have continued to live in thé island in a private and
humble manner, till he had introduced something like order
into the heterogeneous mass of laws bequeathed by the successive
masters of Malta. It was, however, fortunate that lie was not
permitted to attempt a task to whieh his strength was so
inadéquate.
In giving this short account of his troubled life and ljaftled
designs, my object has only beeu to show what were the
3 \Sueh was tlio mail,' says a Malta the iuliaUwiits of tlùs islaml arg greatly
journal, in ail article aimoundtig ltis ailvaiiccd in the st-ali- of civilisation,Ixrtli
d«itli, to wliom tlio Jliiltc-si; must ev«r l»litically and Bodally, ainl rcuilcntl
fi'i'l gratc-l'ul for tlii-irjmproveil coiulitiou more cnentially llritWi in civil jjolity
tltrynow nml andtno;t
as a jn-uple,mjoy for tlio iiwny tlc
privilcj(es
ofsall for and institutions, liy thé meas>un.sadojitwt
they now enjoy j and most of hU for thé on tlic- reconiinunclationof thé CoiuiaU-
lik'rty of tlui press umler whieh y» «ru
now \rriting. t cannot Iw UUputcd that
»ion iirewli.il over |jy Mr. Austiti.'
«ircunistances by which h» was force» l ont of the traek on
whieh he had entered, and in which his whole mîmi and soul
were engaged and why it wws that he seemed to abandon tho
science to which he had devoted his siugulor powers with so
inuth ardour aud inteusity.
It was this very ardour and iuteiisity, this eutire absorption
iu his subject, which rendered it impossible to hiru to résume,
at any given moment, trains of thougkt fi-om whieh his nùnd
had beeu foreibly diverted. It belonged to the nature of his
mind to grapple with a question with ditticulty, alniost witit
reluctance. It seemed as if he had a sort of drend of tho
labour und tension to which, when it had once taken hold on
him, it would inevitably subject him. He was frequently urged
to Write on niatters whieh he had studied with au earuestuess
second only to that which he had devoted tu his owu peculiar
science, such as Philosophy, Politieal Economy, aud Political
Science «jenerally. He usually evadecl these applications but
to the person with whom he had no reserves, he used to say,
'I 1 cannot work so; I can do uothiug in a perfunctory manner.'
He knew perfectly his strength and lus weakness. He could
work out a subject requiring the utmost stretch of the human
faeulties, with a clearness and completeness that have rarely
been equalled. But he had no mental agility. When he gave
himself up to an inquiry, it mastered him like an ovunvhelming
passion. Even as early as the year 1810, he spoke to me, in a
letter, of the difficulty he found in turning his faculties from
any object whereon they hâve been long and intently employed,
to any other object.' And for the same reason, when his mind
had once loosened its grasp of a subject, it could with difficulty
recover its hold.
At the time when a second edition of his book was first
detnanded, he was, as I hâve said, occupied in the business of
the public, to which it was with him a matter of conscience to
consecrate his undivided attention. To this renson for delay
was now added another. His huait h had gradually declined,
under the pressure of labour and anxiety. After his return
from Malta, in 1838, he was so much worse, that in 1840 his
medical friends exhorted him to try the wateis of Carlsbad,
with very small hope, as they afterwards confessed, of seeing
him again. From those wouder-working waters however he
received so much benefit that he determined to return to them,
and the summers of 1841, 1842, and 1843 were spent there.
In the varied and interesting society assembled in that place, he
ronde thé Bequnmfanee of many eininent persons, from whom lie
engerly songht for information on the condition of their soveral
countries. Tho intervening winters were pleusantly and profit-
ably passed at Drcsden and Herliu. fil the latter capital he
fourni diqu emineut in every bnuich of science, to souie of whom
ho had long looked up as the great masters of his own, espeei-
ally Iierr von Savigny. l'olitical questions were then agitated
with great warmth and acrimouy in Prussia. Mr. Austin
studied them with his usunl industry aud impartiality aud
several men who were theuuelves engoged iu the discussions
of the day, were so struck with thc cleamess and justness of
his views, that they urged hiin to write on the affairs of their
couutry. I have found memoranda whieh show that at one
time he contemplated some work of the kind. It was at
Dresden that he wrote, for the Edinburçjh Keview,' his answer
to Dr. List's violent attack on the doctrine of Free Trade.
In 1844 he removed to Paris, attracted thither by the
society and friendship of some of the distinguished men who
were then thé able expositors of science, or the eloquent
advocates of free institutions. Shortly after, he was elected
by the Institute a comsponding uember of the Moral and
Political Class; an honour for whieh he was wholly unpre-
pared, unaccustomed as he was to any public recognition of his
merits. 1 shall borrow the words of an illustrious friend, to
describo the impression he left on some of the highest minds of
Fronce 1 could add many such testimonies, but that of M.
Guizot is sufflcient. C'était un des hommes les plus distingués,
un des esprits les plus rares, et un des cœurs les plus nobles que
j'ai connus. Quel dommage, qu'il n'ait pas su employer tout ce
qu'il avait, et montrer tout ce qu'il valait
In that year another earnest appeal was made to him to
publish a second édition of The Province of Jurisprudence.'
Letters from friends, and even from strangers, amved, lament-
ing the impossibility of getting a copy, and setting forth the
constantly increasing réputation of thé book. But thèse flatter-
ing représentations,whieh perhaps at an earlier period would
hâve spurred him on to fresh exertions, seemed to give him
little pleasure, and he rarely alluded to them. They had now
to encounter thé reluctnnce I hâve spoken of, to résume long-
disused labour, labour too with whieh a crowd of painful
recollections were associated.
To give a more reprint of thé book would hâve been easy
enough, and it is what any one else so encouraged would
probably have don»; but Mr. Austin had discovered dofecta
in it which had eseaped thé criticism of others and with that
fastidious toste and scrupulous conscience which it was impos-
sible to satisfy, he ret'used to repubiish whnt nppeared ta him
imperfection».
Tliat ho had long meditated a book emhrncing a far wider
fiuld, I well knew; but 1 foared that this great work would
îwver be acconiph'sbed, nnd would havo gladly compounded for »
somuthing fat less perfect than his conceptions. But I saw
that nothîng coidd shake his resolution, nnd 1 never wiffingly
adverted to tho subject. Whenever it was mentioned, he said,
that the book must be entirely recast and rewritteu, and that
there must be at least nnothor volume. His opinion of the
:|
necessity of an entiro refonte of his book aro.se, in great measure, ,j
froia the conviction, which had continually been gaining strength h r
in his mind, that until thé ethical notions of men were more
clear and consistent, no considérable improvemeut could bu
hoped for in légal or political science, nor, consequently, in
légal or political institutions.
The subjoined prospectus or ndvertisement sufficiently proves
that he had seriously resolved to execute the great work he had
planned. 1 have found but one copy of it, nor have 1 been able
to hear of the existence of another. 1 cannot h'nd that it
attracted any attention. ,j

The Prinàjilet and Relut iums of Jurispruthme and Ethies. By John


Ausiix, Es* of the Inner Tunqilt, liarrister-at-Lau:.
An Outline of a Course of Lectures un General Jurisprudence,preceded 0
by au uttuinjit to détermine the province of the science, was publishcd by
thé author in 1832. By the sale of the entire édition, and by the cuntuuied
demniul for the book, he is cncounigoil to umlertakc- a work conceniiug the
«âme subject, but going more pru fourni ly iutu tlte reluteil eubject of Ethies.
Tlie matter in so vtvit, and the task of digestin^ and condensingit eo diflicult,
that a considérable timu must nccesstirily ulnp.s<: befurc the intended treatise
will be ready fur publication.
A concise and unequi vocal title fur thé intended treatise is not affordtd >
by established knguago. Positive law (or /«*), positive morality (or «i«s), ?
to^other with the principles whieh form the text of both, are the inseparably- t
conuected parts of a vaet organic whole. To uxpluiu their eevt-rul uutua-s, >'
and présent them with their coiumon rehttions, is tlie purpoïé of thé cssiy un a
which the autlior U employed. But positive tnondity (as conueived in tlie »
whole of its extent) has Imrdly ac'juireil u distinguishtng namc though one
important branch of it lias become the subject of a science, and been styled
by récent writers the poytivu law of nations. For tlie vanouslv conceived
aitd much di.sputed principles which form the measure or test of positive law
ami morality, cstablishcd Iftiiguage luis no naine which will mark them with. tj

out ambiguity. As reluted to punitive law (the appropriatesubject of Juris-


|4
ri prudence),they are etyled thé principes of législation. As teintai positive
to
|
4
mon»WtyjtI»»y«r8«tyle<Jmo«l*oj'etijie*ibutasoitlierof thèse ntuneswilt
sighify positive raorality, as well us thé standard to whîeh it «igLt to
foriu, there. h no curnut expnsiisioufor thé jaiueipk* i» «juwtion which eut. will
j dénote thetn adequately «ml distinctly. He (uuthor) luui tliwight of
| fitiing thé ioteudud esauy, the principe»and relations of law, moral* «nd en-
i etMes meaulug by law, powfw law by moral», yo*««w moral» nnd by
V ethies, the principes which are the test of both. But in
of the
diflkulties whieh he lias just irtated, ho preferred the conséquence
uion.- eoncist- and uot
more wjuivocal tillo whieh stamb ut the head of thé jnufejrt notice
|
•;
J-'or ix-asons to appear hereafter, tlic work will be divided into
two. parts.
The flrst will bo givcu tu Qoneral Jurisprudence ami in )m exposition uf
that scieuw the autlior will descend into thé détail which
was imlieattd by
the above-iuentioned outlinc, as deeply m consist with the liiuits
may
nnigned to an institutional treatise. The second part will be given
Ethics. Nu separate deiiartment will Le giveu to positive raomls but, tu
so
far a* they arc iraplicated with jurisprudence aud ethics, they will be
noticed in the departments allotted to those sutjects.

Ho announced tho same intention in letter to the


a present
Chief Justice of the Coinuion Pleas, the companion of his eorly
studies, the beloved and faithful frieud of every period of his
life. Itwas only the other day that Sir William Erlo found
the following fragment of this letter, which he lias had the
kindness to permit me to print. Uuliappily,the part containing
tho date is lost. It begins with a broken sentence, which
wust
relate to one of the many applications made to him for second
a
édition probably they were preceded by
some such words as-
[ IVhat Mr. Murray tuggtstt m]la mère reprint of it but, if he would
give me sufficient time (two years or so;, I would do
my k-st ta produce
Eometliing bett«r.
I ehall now set to work in good earnest; and if
my unlucky stars
will allow me a little peace, I hope I «hall turn out something «î
considérable utility.
1 1 iutend to show thé relations of positive morality and law
(mis an<l
ju»), and of both, to their eommon standard test to show that thtre
or
are principles and distinctions eommon to ail Systems of law (or that law i*
thé mibject of an abstract science) to show thé possibility and conditions
of coilincation j to uxhibit a short «cheme of bwly of law arnmged in
a a
natural order und tu sliow that thé English Ljiw, in sj.ite of its
great
peculiarities, might be made to conforni to that order nnich
moi-u closelv
than is iiimgined.
The questions involvtd in this sch*me rjv so nunwrous and diffieult,
tliat what I shall produce will be very iinjrerfect. I think, liowcver, that
thé subject is one whieh will neresaarily attract attention beforo
muny years
are over and I believe that my suggestions will Le of considérable* uV- tu
those who, under huppier auspices, will pursuu the iiif|uiry.
'Thcre are points upon which I sliall Mk jimr advice.
Yuun most truly,
· 1 John Ausiix.'
He had ftnally establisheU himself ia Para, wlien thu
Révolution of 1848 once more npnmted bim. Ho had watetwtl
with intense inteest ami anxioty the opproach of tlw storm >
which was tu overthrow all rugular government in France and
it wftï from oarnest observation of what passed in thnfc country,
that he becnme confinned in his opinion of tlie difficulty, if not
the iiajKissibjlity, of reconstructiiig a soeiety which lias ouce been
completely shattered. Tlils opinion, together with his ardont
(ind ilisinterarted love of his country, found utterance in tlte 1

pamphlet which lie published in 1859.


f(
Ho rumnined for some months in l'aris after the Revolution,
watching the course of things. As he became more and more
convinced that permanent tranquillity was not to be looked for
in France, and that life there would be ineessantly trouhled and c

euibittered by uncertainty and nlarra, he resigned himself to a c


serious peeuuiary loss, and returned to England, determined to
seek tranquillity in a small retreat in the country. He took a
cottage at Weybridge, in Surrey, near enough to Loudon for
convenienee, and for occnsional visit» from bis only ehild, and
far enough to euable him tu enjoy the retirement he coveted.
Here he entered upon the last and hnppiest period of hLs
life the only portion during which he was free from carking
cares aud ever- recurring disappointments. The battle of life
was not only over, but had hardly left a scar. He had neither
vanity nor ambition, nor any desires beyond what his small
ineume suilked to satisfy. He had no regrets or repinings at r
lus own poverty and ubscurity, contrasted with the suecesses of
other men. He was insatiable in the pursuit of knowledge and I

truth fur their own sake; and during the long daily vvalks,
which were almost tho sole récréation he coveted or enjoyed,
his mind was constantly kept in a state of serene élévation nnd
harmony by the aspects of nature,– which ho contemplated
with ever-increasing delight, and described in his own félicitons
and pietnresque langiiage, and by méditation on the suhlitnest
thèmes that can occupy the mind of mari. He wanted nu
s
excitementand no audience. Though he welcomed the occa-
sionnl visîts of his friends with affectionate cordiality, and t

delighted them by the vigour and clmnn of his conversation, lie


t
never expressed the smallest desire for society. He was content
to pour out the treasures of his knowledge, wisdom, and genins,
to the companion whose life was (to use the expression of one
who knew him well) 'enfolded in his.'
f
Thus passed twelve years of retirement, rarely interrupted,
ami ivaver uniBterestiug or wearisoma His healtb was greatly
I ittipïaved. The place lie had ehosen and his mode of life suite!
l him, Tho simplicity of his teste» and habit» wouW hâve m*-
;ï lierai a more showy and luxurious way of living disagreeable
il and oppressive to hhn. Yet none of the smnll pleasurc* or
• humble comforts provided for hiin ever escuped his grateful
;' notice. Ha loved to be surroundcd by homely and familial1
i object.% nnd nothiug plusised him su much in his ganlen as tJie
& Aovfuva lie had gatheml iu hi» «hildhoud. ïlrings new or rare
were unattraetive, if not distastuful, to his constant and libéral
] nature. He Imd a dtsinterustcd Imtrcd of oxpeuse, and of pre-
-î tension, and, thougli very gencrous, and (juitu indiflurent to gain,
he was habitually frugal, and xeapected frugality in otlit-rs, as
;| the gunrdian of niany virtues.
One regret mingled with thé deep thankfulness with which
this comparative freedom froru pain and care was ngardcd by
those who loved him he showed no inclination to tlevote thèse
years of improved health and tranquil leisure to thé work he
had so b:ig ago projected. But eve:i this rej^t, poignant as it
wns, gradually subsided under thé tmiiquillising influence of his
serene contentinent. It is no wondur that thé person most
sensible of the immense resources nud powers of his mind, and
; most deeply interested in seeing them appreciated, could not
résolve to urge him to retuvn to long-disused lalwirs. Suflerinji,
from ill-health and from other causes, had pursued him, nlmost
; without interraission, throughout thé early and uiiddle part of
hi.9 Hie nnd now that he had found comparative case of body
and mind, famé, or even usefulness (su long and arduntly eoveted
for him), faded into nothing, compnred to thèse inestimable bless-
in«s. ïhe calm evening that followed on so cloudy and stormy
a day, was too precious to be riskod for the réputation to which
he was so indiffèrent, or for the advantage of a world to which
he owed so lîttle.
But his genutous solicitude for his country diil what nothing
else could, and his last effort was proin]>te<i by Usnuvoleuce and
patriotism.
He was, in his solitude, a deeply -interested oUserver of
political events. Ile viewed with gR-at anxiety and disapproba-
tion thé various schcnies of parliarnentaiy refbrni bronght forward
during the later yoars of his life, and l'elt deeply the sevem bl<>w
they gave to the respect he wished to feel for eiuinent public
men.
l'rofoundly convinced as he was of the scarcity of great
ability, ami of the still greater scareity of a disiuterested love of
trath, it may easity 1)6 imagined that he régarded with sort of
horror aU schemes for ptncing the business of législation in the
liands of large bodies of îaeii. He iiud folluwud step by step p '
the progress of the great minds by which Systems of law had
beeu, through âges, slowly and painfully elaboratud and thu
project of submitting these highest produets of the huiunu iutel-
leet, or the* diiiicult problems they deal with, to the judgment
and thu handling of uneducated masses, seelned to hiui a return
towards barbarism. Ile, least of all men, was likely to be
dazzled or nttractud by wenltli or rank but ho valtmd them on
public grounds, as providing for their possessors the liighest sort
of éducation, and the leisure and opportunity to apply that
éducation to tho geueral culture of the human miucl, espccially 1

to the difficult sciences of législation and govemment. The


idea of popular legislation was to him as alai-ming as it was
absurd and it was precisely on account of the disastrous cou-
séquences which he was certain must rcsult from it to the people
themselves, that lie felt indignant at the uses made of their
ignorance, and the uninanly affectation of déférence to their
wislles, by those whose duty it is to eulighten and guide them.
Long and aceurate observation of other countries, and intercourse
with their publie men, had taught him the full value of tlie
institutions of this country, and the importance of the habit of
obédience to law; and he was too ardent and sincère a patriot
to see these iiupurilled without the deepest émotion. The work
of Lord Grey, which appeared in thé midst of the discussions on
reform, excited his warm and respectful admiration; and when
it was suggested to him that he should revicw it, he iminediately
conscnted. Tho pamphlet publisheâ under the title of A Plea
for the Constitution,' was origiually written for a quarterly
journal but being thought unsuitable, it was published sepa-
rately. Its success far exceeded his very modest expectations,
and gave him the satisfaction of thiuking that he had contributed
something to the defeat of permeious projects. This was the
only reward he desired.
From the time that he abnndoned the struggle with the
world to which lie was at once so unequal and so sttperior, all
the bittemess excited in him by the chilling indifférence with
which his noble and disinterested efforts had been ruueived,
subsided. His estiraate of meu was low, and his solicitude for
their approbation wag consequently small. But while lie kept
aloof from them, his sympathy with their sufferiiigs, and his
1 anxiety for their ùnprovement, never abated. For himself, he
| coveted notlw'ug they l'wd'to give and he avaited the judgœent
| of another tribunal witli Immility,but with, a sereuity which le-
i]
came more perfect in proportion as the time for his appearing
before it drew nigh.
4 If élévation above ail the low desires cuid poor ambitions
i which chain the soûl to eorth, if a life uutainted by a single
1 unjust or ungenerous action or thonght, a single concession to
U worldly or selfish objecta, a single attempt tu stiile or to disguise
;î truth, eould justify a sereue anticipation of thé world into which
nono of thèse things can enter, he might be penuitted to
:j feel it.

Having, as 1 hope, made intelligible to that portion of the


public, capable of syuipathy with a character like îlr. Austin's,
what were the causes which disabled him--or disinclined him-
from entering afresh on the labour of reconstntctingand greatly
enlarging his book, and of knitting up ail the threads which
years and events, care and awkness, had tangled or broken, it
only remains fur ine to say what are the ruaterials he bas left
what the motives that hâve induced me to give them to the
world; and how it is that 1 have found myself in a manner
compelled to undertake the arrangement of them for thé press.
I have sometimes doubted whether it was consistent with
publish.
my obédience to him to publish what he had refused to
1 have questioned myself strictly, whether, in devoting the rest
of my life to an occupation which seems in some degree to con-
tinue my intercourse with him, I was not rather indulging my-
self than fulfilling my duty to him. There have been times,
too, when, in the uittorness of my heart, 1 have determined that
I would bury with me every vestige of his disinterested and un-
regarded labours for the good of mankind. But calmer thoughts
have led me to the conclusion, that 1 ought not to suffer the
fruit of so much toil and of so great a mind to perish that wliat
his own severe and fastidious judgment rejected as imperfect,
has a substantial value which no defect of form or arrangement
can destroy and that the benefits which he would have con-
ferred on his country and on mankind, may yet ilow through
devious and indirect channels. I persuade myself that if bis
noble and benevolent spirit can receive pleasure from anything
ilone on earth, it is from the knowledge that his labours are of
use to those who, under happier auspices, pursue the innuiry
into subjects of such paramount importance to human happiness.
Having tfws eome tu the conclusion tliafc some or the manu-
scripte he left oilglit to bu givt'ii tu ïltê public, the uext question
was in what foriii, ami by whom ?1 My first thought wtts tu
look about for an editor, tu whom 1 might coufidu tho rédaction
of tlie wholo leaving to him entire discrétion as to the watter
and form of the publication. But it did not appuar that any y
such person could be lbund, or was likely to be foiuid. A great
portion of the manuscript wus in so imperfeet and fragmentary
il statc, that it was clear that the whole must Lu recast aud te-
written l>y auy editor who nspirod to produee a readable book,
from whieh lie eoultl dérive réputation or profit. I was alarmed
at the thought of the changes the work might umlergo in this
proeess. It was to be feared that any editor who had not the
self-forgi'tting dévotion of a Dumont, would be more sensible of
his respoiisibility townrds the publie than of that towards his l
author. There are grcat peculiarities in Mr. Austin's style-
not one of which was adopted without mature thouglit. He l

never had the slightest klea of reuderiiig his subject popular or


easy, He cleniandcd from his hearers or readera the full force
of their attention and as he knew how lax and flitting the
attention of most men is apt to be, he adopted every expédient
for fixing or recalling it. He shrnnk from no répétitions that
he thought necessary to keep a subject steadily and distinctly
before the ntind, and he «vailed himself of all typographieal helps
for the sarne purpose. Knowin" this, 1 have disregarded the
advice of some of those to whom I am most bound, and most
disposed, to defer, in retaining thé munerous italics with which
his book is, in their opinion, defurmed. Future editors may, if
they will, remove this eyesore. They will not bc bouud by the
déférence which must govern nie.
It will not be supposai that 1 think it necessary to call in
any testhnony to tlie value of the niaterials I have to producu.
Iîut those whose estitnate of them is the highest, niay very |:1'
justly think they ought to bave bcen put into more compétent
hands.s, This was my own opinion; and it was not without
';J1
umcli anxious delilieration, or without cousulting those of Mr.
Austin's friends \i\xm whose judgnient and solicitude for his
famé he would, I knew, hâve had the greatest rcliance, that 1
determined on the course I hâve pursued The opinion and
the advice which I received from ail was essentially the same
that aU the Lectures should be published, 'with only
such revision as may remove needless répétitions;' and that,
considering the confused nnd fraginentary state of much of
1 the nmiuiseagit, thé safest édite* would he thé perso»
f inost deeply interestecl itt the attthor's réputation, and most
ri likely to bestow patient and reverential cave on uvery relit
left by him.
f 1 need not repeat the terms in whieh Mr. Austin's friends
encouraged me to undertake the task of putting titese prcrious
riittterials in order, nor the cffers of ad vice und assistance which
detenuined me to venture upon it. One of thein, wlio spoke
>• with the autliority of a lifeloug friendship, said, afUrt1 Wkiug
:j
over a mass of detached and half-legible pnpers, It
will be a
great and difflcult laljour but if you do not do it, it will uever
y! be donc.' This decided me.
I have gatliered some courage from the thought that forty
;i year.? of tlie most intiinate communion could not hâve left me
!! èntirely without tlie muons of following trains of thought which
î. constantly occupied the mind whcnco my own drew light and
:i
truth, tis from a living fountain of guessing at half-expressed
meaning3, or of decipheriug words illegiblu to others. Uuring
•» ail thèse yeavs lie had eondeseemletl to aecept such small nssist-
anee as I could render; and even to read and talk to mu on
the
subjeets which engrossed his mind, and which were, for that
; reason, profouudly interesting to me.
Having determined on the course to be pursued, tlie first
':i
thing to lie doue was obviously to republish the volume already

'' in print, which lias been long and uagerly demanded. Thé
Author's Preface explains the matter of which titis volume crm-
sists, and his purpose in publishing it. I have altered nothing,
except the position of thé Outliue, which is now placed at the
beginning, instead of at thé end of thé book. I have inseited
all the scattered memoranda 1 liave been able to nnd, relating to
altérations and additions which he meditated. Some of tliem
are taken from a smnll papcr marked Inserenda.' Ail thèse
>; things are manifestly mère suggestions for his own use- indi-
cations of matter which he intended to introducu or tu work
'' out. They are inserted, chieiiy as proofs of the thought he had
given to a more ample exposition of jurisprudence and the allied
sciences; but also, not without a hope that some of them may
serve as landmarks for the guidance of future explorers of thé
way he intended to follow.
The volume now republished inchules the first ten of the
Lectures read at the London University; which, though
divided into that number for delivery, were (to use tins outhor's
\"u. 1S81. S«c note, li. 1. ami Ailvertiseraentto thts édition.
expression),
by hin> to »fx.
to obédience to the affînity of tho topics,' retlucetl
Therô reniftin, impritited, al] thé rest of the Lectures given
ftt thé Londoii Univéreity. Thèse 1 propose to print exaetly as
he left thein. I shall alter nothing, and shall only make the
omissions suggested above. This course is, 1 think, fully
justified by the opinions already cited. There is also thé short
Course, delivered at the Inner Temple. But as this necessarily
weiit in great measuro over ground which had bcen traversed in
thu earlier Courses, it does not appear to thé friends I hâve
cousulted that it will afford matter for a separate volume. It
is thought that it will be expédient to coUate these with the
earlier and far more uumerous Lectures, and to insort, as notes
or appendix, any matter winch is not found in those. The state
of the rnanuscript seems to show that the author meant to
incorpornto tbem with the former; or rather, to employ both in
the construction of the great work he meditated.
When Mr. Austin was preparing his lectures at the London
University he drew out a set of Tables, which ho had printecl
for distribution to the gentlemen of his class. They
wero never
published nor sold, and were consequently unknown to the
public. Nor were they ever completed. Between Tables L,
IL, and VIII., IX., there is a chasm, never now to be iillecl.
But lamentably incomplète as they are, they are pronounced
by one eminent lawyer to be perhaps the most extraordinary
production of his mind and, by ail who hâve studied thein,
are thought to afford evidence of an astonishing originality of
conception, oxtent of learning and force of reasoning. Each
Table is accompanied by explanatory notes of great length. I
am not without some faint hope that hints for the construction
of some of thé missing Tables may be found among the various
scattered notes which exist.*5
The nature and object of these Tables are described by the
author in his opening Lecture, in thé following words. Alter
stating the causes which reudered an opening Lecture a useless
ceremony in his case, he concludes thus
find it utterly Impossible to give you the faintest notion of my
intendod Course. Xor is it necessary that I should.
1 have been lmsily employed in prcpnring «mail work whieh will
a
luiawcr thu purpose Letter. It consista of a Set of Tables, in which I have
exhibited the Arrangement intended by thé Roman Lawyers in their
11Thèse tables and notes were printed contnined in thé second volumo of the
in the last of the volumes of thèse Lco iiresent édition.– R. C.
tares, j.ublishcd In 18C3, and aru now
ÏNttitutetOtEtemectatyTKatieea.AndthNAtmngementMeompaKd
With varioua othet~ whictt httM <finM b<!e)mdept<id in CmtM, Of pMpo~ct
by WritoK on JMF:!<pM<tene< Tu these Tabte~ 1 have (tppended notes, in
whieh 1 hâve ehdeavouMd h) nhow thé n)<M<«~ of that Arrang<;ment, aud
3 to explain thé import of thé distinction. upon whieh it turn~
From theNi Tables amt from thé Notée which bave been apt~nded
to thent, thuse whu thtty do )Me thé hon'jur of nttending my CiaM, wiH
coHect a better idea ot' my générât subjectand de-ogn than from anything
j that I couM utter heM.
Thèse Tabtes are nettrty, though
not completely, printed o<r. And 1
ho~ they will appear shurtty. 1 have bemt w'~ktng day (Uid ni~ht in
~) urder that 1 m!(;ht hâve them ready tjy thé opetdhg of tny L':<;tur<:s but
1 hâve beeu obliged to stru~e with so MMtty iutncate question!, and to
{1 make refcMxeesto go j~rcat a MU)nb<:r of bau){ft, that I fuuuf! it impo~iMe
to complete them in titue.
'} Thé paiM whieh 1 have taken t'~ !{et thon ready must MrYe as my
j' excuse for thé prefent !a)fM appearanee.
i With au object in view whieh 1 thought important ï eould not afford
to expend my labour and time upon a merc formtttity.'
( Last!y, 1 find a consideraMe mass of papers on CodiSca-
i tion an Essay on Interprétation thé Excursus on Analogy,'
j referrecl to at thé begiouing of Lecture V. in thé present
volutne and thé commencement of a project of a Crinunat
Code, to whieh 1 have already referred.
Such are thé materials hboriousiy brought together and
marvellously wrought, whieh lie broken and scattered before me.
j The noblest designs, the highest faculties, the most unwearied
industry, were employed upou thetn–in vain. What would
have been thé structure reaKd out of them, had the Master
been enabled to exoeuto the plan he had conceived, is now left
to melanchoiy conjecture.
SAHAH AUSTIX.
~<Hy< !Mt.

In thé preface to thé Second Edition of thé 'Province of


Jurisprudence determined,' published two years ago, 1 stated
what were the manuscripts remaining in my possession, in
what condition they were left by Mr. Austin, and what were
my intentions with regard to them. Since that tinie, I have
been constantly occupied in preparing them for thé press, and
1 now give them to thé worM under those conditions of mcom*
pleteness which 1 announced as ine\-itable.
It is unnecessary for me to repeat thé reasons which deter-
mincd me to undertake so arduous a work or to apologise for
the imperfect manner in whieh it is accomplished. 1 am now
more than ever convinced that (however obvious thé objections
tu it) tins was thé ottty Mie twd pmeticttNe mode of preserving
thèse atMittishett but precious m(tteri:ttg in perfeet geuuiheaess
aud ilitogrity,
1 have not attetnpted to a!ter thé form of the Lectures,
nor
to disguisc the breaks and chasms in them.
lu thé Prct'aee to the iirst votutne (p. 24), 1 spoke of rny
intention of coitatutK thc Course delivered Ht thé Inner Temple
with thé ear!ier and more numerous lectures ~iven at thé London
UtuvMity, aMt! inscrtm~ M notes or appendix, any mittter not
i'uuud in thèse.' Fortuttutety, thé task of selection and adapta-
tion was nut left to me. On a ncarer examination, I found that
thé auttior had markod with his own hand the parts of thé Inner
Tetnp!o Course which were to )je added to, or substituted for,
passes in thé earlier lectures, tn seventt places he had even
eut out considérable portions from the latter, leaving a référence
to thé passages in the former which he intended to put in their
place. 1 had therefure only to confonn to plan which, in this
a
case, and 1 helieve iu this a!one, was clearly and precisely marked
out. The Lectures, as now printed, are, in faet, thé two Courses,
consolidated by hhnself.

A few typographical details seem to rcquire notice.


There are sorne passages in thé manuscript through which
thé author had drawn a !ig!tt pencil line; not, 1
am sure,
si~niiyin~ that they were to be entirely rejected (for what he
rneant to be erasures are too complète to admit of a doubt), but
that they were reserved for furttier considération, or were to be
transferred to sotno otiter place. Thèse passages 1 have genera!!y
inserted, distinguishing thon by brackcts.
Thé références to books, which arc extronely numerous, 1
itave verined in every case, with thé rare exception of such
as
were not withi)) rny rcach. In some cases, where 1 hâve seen
ttiat ~fr. Austin h~t entphaticaily rnarkett thé passage referred
tu, or had commented upon it in the tnargin of thé book, I have
quoted it. Perhaps this has been donc rathertooïree!y; but
thé space so occupied is not gréât, thé books at-e not in every-
body's hauds, and 1 thought it might bc convenient to thé readet-
to sco thé précise passage to which the author rcferred. Where-
ever any words in theso quotations arc printed in itahcs, those
wor(h are underHned in the book.
With regard to thé use of italics, capital letters, and other
typographica! distinctions, 1 am fuHy aware that there is
a
want of uniformity and consistency and if, with my présent
cxperbMMe, 1 had to begtn my work «gaitt, thero are severa!
thing!) whick 1 ohoutd do otherwise. But thé tuass of
was so gréât, thé subjects treated of so diuieuît, aud thé tf~k of
arrangiug them so formidable, that it seemed as if a thorough
and minute examination of their contents, and a mature déli-
beration on thé détails of their ammgement, would defer their
publication almost iudciiMitcty. A still mot'e Ut~utit motive
arose fmm t!M cunseiousuess that my owu tilue for work cauHot
be long, and is extre!ne!y precarious and thé thuught that 1
shouM leave these romains tu a very uueertain fute, inade tiie
dotenuiue to secure thé most ituportaut pail: of them from thc
chance of destruction, with as little delay as possible; a, deter-
mination in which 1 was streMgtheued by thuse of My husband's
t'riends who take thé warmest interest iu thé advancement of
thé science, and iu thé famé of thé writer.
Thé duties imposed on the guardians of a gréât reputation
have beeu the sut~jcet of much discussion, and, to myself, of
!nu(;h painfui deUbemtion. The <mly conclusion 1 eould arrive
at is this :–Wherc writer bas attached gréât value to fbnu,
and bas rcgarded his writings as works of art where any con-
sidemble portion of his reputation rests u])on his genius aud
skill as an artist, it seems an act of injustice to his memory to
pubtish anything which had not undergone thé last and highest
polish of his own hand.
But where thé great ahn of a, writer bas been to correct
pernicious errors, to throw Ught upon obscure trutlts, to dis-
seminate new idens which he believed to be of thé highest cun-
cernment to mankind where thé labour he bestowed on style
was bestowed solety with a view of cxpressing his thoughts wit!t
thé greatcst possible clearness and précision; where thé depth,
gravity, and originatity of thé matter have a value far beyond
that of any conceivable perfection of form, thé materials he had
accumulated with purposes so far trauscendingany personal ones,
ought not, however unnuished, to be consigned to oMivion.
In subjecting whnt is most dear and vénérable to me in the
worid to so sévère au ordeal, 1 would not be understood to be
indiSerent to form. But 1 have trustcd conMent!y to qualitics
which no defects of fonn can destroy or greatly disguiso. More-
over, thèse defects do not extend to what, in a seientinc work,
is of suprême importance; namely, <!)Tf<KytmeM<. It will be
apparent to thé reader that, upon whatever new inquiry hc
eutered, Mr. Austin's invariab!e method of proceeding was, first
to détermine precisely its lituits, and then to lay down in thé
!Mf3t ftecurate manner the plan o{ arrangetaeut ta bo pursued
through thcwhotG course of thé investigaMon. And thetsaFe
the clearest indications in thé maxuscripts t!iemsetvcs that this
proliminary portion af his task was, in every case, most carefully
and laboriously exoouted. Unfortunatoty, in many instaHces,
thé execution vas carried uo further he novor filled up thé
outline he had sketched with so masterty a Itand. T!te notes
on CnmiNa! Law aud those of CodincatioH, for exampto, are in
so rough and imperfect a state, that I should net have veutured to
publish them, had 1 Mot been assured that they would, as models
of arrangement, be of the uhnost value to future inquu-ers.
It seeuM hardjy necessary to repeat (yet perttaps 1 caunot
repeat too often), that thb book shows not wbat thé author had
dono, but what he inteHded to do, and (iu some degrec) what he
was capable of doing. 1 have therefbre allowed various indiea.
tiens of his mtentions to reniain. 1 havo also preserved thé
traces of thé qu<Mt!oningswhich continua!!y suggested themselves ')
to lus penetrating and sincère miud and witli which he was
careful to qualiiy and limit his assa-tiom, so long as the shadow t
of a doubt remained. AU these are characteristio of thé spirit
in which ho pursued science. To seem to know, or to leap to
prompt and facile conclusions, was impossible to him. To an'ive
at knowledge by ways thé most laborious, the most mortnying {

to vanity, and thé most irritating to impatience, was the course


which thé rectitude of his nature irresistibly impeMed him to
Mlow.
1 had also a double motive in showing how many passages i,~
s
were reserved for reconsideration. Thèse very marks of doubt, f
while they provo thé caution with which Iec worked, and thé j
process of investigation which was for ever going on in his
nnud, may perhaps suggest similar caution, and excite to similar i
mental contention in those who are to M!ow him. Every one l,
of these doubts, pointing to further research and further reilec-
tion, may lead to thé discovery of new truths or to thé solution
of unsotved proMems. Such resutts would hâve been far more
precious to him than any conceivaMo addition to his fume as
a writer.
In the Preface to thé first volume, 1 venturcd to print a few
disjointed sentences which appeared to me to throw hght on thé
c!iaracter of thé man, and on thé nature and aims of his teaehing.
1 have since found more notes of thé
samc kind and, brokcn
as they are, 1 give them, as showing still more clearly in what
spirit aud with what views lie entered upon the duties of an
offtce so. uew to thé eoMtry and to hintself as that of Professor
ofJufisprud~Mce.
What ï~ctMM* of tbi~ kind M)~tt to Le.
Oreat defects of thosewhieh 1 shatt actually deliver: particutartyasi
tu t)to n~thod and fityte t–havin); thou~ht it bottât to )jMU (M. Eu- tu 1
could) an extensive and aecurate knowtedge of my nubjeet t))an–etc.
The re!ieareh, neee~sary fur thh, extt'emety oxt'')t<iv<'i–tttiuuU htt\'<:
gone on for ever.–New !!M<MMi;f,–(HtM!M )md (tcbiJity).
In the course of a fcH' years, xhoM be aMe to prottucu Koncthinn tu'~h:
worttihem'in~.
j ShaU b<! obtiged to omit tuueh of what 1 had intended to Mtubfact-.
'.j Thereiouoneof thé detnils which will not need as tnueh inustt'itt!o)t a-i
the principal heads. (Lujft Ha!t:'t) iihMtratMt.) And if 1 d<c~)td<;d far
into thé detait, th'i Lecture!! woutd be endiMs. I must themfure eontmt
j myseif with a geueral outline, descendit~ hère aud ti~fM )Kto thc datait, so
J ofteu as it :)! })<!eu)iartytnt';K:stmg and itMpot-hUtt.
i< It M neee.'iiary to r~'cuHcct that thé tenus, circumIoentioMs, etc., used
'{ in theM Lectures (so fm' at new) are merely exp!anatot}'. In apph'ini:
any actual ey~tem, thé tenn:) of that fy~tem )n<Mt be obsen'cd. Su of its
t arru)tt;etue)tts, etc., which are connected w!th ita tern))!.
Thé prittciptes of OettemI JurMprudenee will not coincide with any
j actual syston, but arc Uttended to heitttat<: thé aequi!Htio)t of any, <utd to
"how their defeet'
In thé ordinary bmineM of !ife, thew eyatems tnu!t, of course, bt-
applied as they are.
ReconeiHitti'm of divorce betweett Phitosophy and Practicc.
Wilt thank my heareM to attend at thé conchtsiott of eveiy Lcetutt-,
and to ply me with questions and dcmands for exptanatiot. This witi )t0t
onty enable me to c!eat' up obscurities, but to produce nmch of which 1
hâve read, and upon which 1 have thought, but whieh in sotitary eontpoMtion
escapes the recollection.
A)<o to critieiœ with utMpanng ~verity fur it is on!]' by this that 1
s
can ever team to aeeomtnottate tay future Lectures to thé wants of ."tudents.
¡ Ua-s of this friendty iutereourse, or amtca <-oM«<)'o pat'ticu]arty t"
youn~ men writinf;. Ko titne, that 1 shall not be wi)ii!~ to ~i\'c. ~~y
heart in thé aubject ttor will anythin); be di.agn'eaUe,but thé chi))i))f:
.r indifférence which 1 cannot he)p anticipatiM);'
It will ~asily be understood that
hâve ncvcr entcrtained
1
tite project of rendering such a book acceptable to any but )ttt;n
seriousty intcrestcd in thé gréât questions of Law and Mora!s
which lie at thé fbundation of human soeiety. To thé discrim-
inatiug, and therefore indulgent, judgmGnt of that narrow public
which is constantty tending townt'ds thé ends my husband
pursued, and throu~h wjtctn his labour. (which to him ~eemed
barren) may hereafter be rendered fruitfu!, 1 tutmbty and
earnest!y commend it.
1 nmst add, with gratitude, that my labour hast'eett cheered
by an ever-increasing expression of interest in it, from men
cminent in Jurisprudence, and in thé moral sciences gcnt-rally,
ht thi9 and othor cotmtncs ;–straagers to at! but thé mind aud
chMaotet' oï thé :mthor t~ diapîàyed ill hia puMbhed bock. l
They tmve cxhortcd me n"t to suf!er myself to bu deterred by
want of compteteuess, or by defects of sty!c, from giviHg to the
wor!d (my, thé sHghtest, iMtittMttKMts of Mr. AMStm'a opiniotts
ou thc subjects tu which hc had dovoted hunsetf,' or of ttm
mcthod of iuqtut'y and an'a))ge!nent. Such exhortations comittg
from men whose voica ia authoritativc, it seemed tny duty tu )
obey.
I am indebted to several gentlemen fur encouragenMHt,
couuset, nnd assistance especinlly, 1 hâve to acknowledge thé
nn'atunUe and perseveriu~ aid 1 hâve received from fricnds of
:\l1'. Austin,
~h-. fouiitl
Austin, who fouud titne,
time, in thé
the tnidst their0\11
midst of their own pressin~
pressing
avocations, to attend to my doubts aud diificutties. Their
sanction was pecuUarty important, since they Imd been among t
thé most nssiduous and attentive hearers of Mr. Austin's Lectures,
and were acqnaintcd with his tnodes of thinking and expression. i
Without such a sanction, 1 should hardly have dared to publish
tuatter iu which, irom thé state of the mauuscnpts,sotUM exercisu
of discrétion was inévitable.
It would be impertinent to at!ect to regard thé care they
have bestowed on thé work in its passage through thé press, as
an obligation conferred on me. What they have donc ha'} been
donc out of révérence for thé rnemory of thé author, and xeal
for thé advaneemfnt of his science. Nor should 1 venture to
make any public acknowted~ment of it, did it not appear to me
ueeessary for my own justification, and for tho satisfaction of J
thé reader.
8ARAH AUSTIX. i
W'!I¿rM!I~, ~i7,
f~~y-K~, A(1I"il, 18'¡3.
IS'M. {
OUTUNE OF THE COURSE 0F LECTURES.
'Uum j'otMttm attud aj.funt, jun~onsuiti enutiti, prudentes, ben'-
ttnimati, conférant capita privntim, cfj~iK'Mt'jU': 'te juM coniitituendu, ut
red'tant certius quatu nune pos~t ie hthûr pritrtuttere pfiuciputuituetot'itati.'
–LEtnMTi!.

t! [ïn the orifnnft! cttitinn of Thé Pmvioce of JurxpnKtfnce (tf'tcrmine't,'


puMished in t832, thé foUowing pt~at~ i.< )M<;rted in thé Pret'tn.'e.
In 1831 1 pnblished an Outline of my Course: Which
outline, carefully corrected nud sMucwhat enlarged, 1 appeud to
thé followinc, trcatise. For tho foUowing treatise is a detached
'.j
portion of thé Course Aud uukss thé di.squisitious composing
thé trcatise be vK-wcd with their relations to thé subjeet aud
scope of the Course, and thé arrangement which 1 ~i\ to thé
¡ subject, their pertinence and importance can hard!y be seen
completely. To ligitten te thé reader thé labour of catching thé
1 arrangement, 1 hâve p!aeed, at thé end of thé Outline, an
Abstract of thc Outiine itself.
Ai) thé Outline relates not M<!y tu thf OMtttfr of thé on~inat V<~M)))e,
j! but tu thé entire Cou)~ it hm bct'tt tti~ug)tt iut\-i~Uf tu prcHx, ut.<tca'.) of
)'i aMXindingit.–S.A.]
]

f.j
M
.f PRELIMtXARY EXI'LAXATtOXS.
I. shall detenuine the province of Junsprudcnce.
1
II. Havin~ deten))ined thé pt'uviueû of Jurisprudence, 1
shall distinguish genemi jurisprudence, or thé philosophy of
positive law, frnni what inay he styled particular jurisprudence,
or thé science of partieular law, that is tosay, the science of
any such system of positive law as Mow actually obtains, or once
actually obtained, in a specittcaHy determined nation, or speei-
fically determiued nations.
<
t-~t
'thé
2v<Of ail the totMi~ eit~Mtonit whteh 1 have htmed !h my mind,
thé pMtfMophy of ptMitw !ftw mdic~tet the mott tignifteent!y< ha Mtb}<wt
tttt4 Mope of my Comse. 1 htn'e LorroweJ thé expMMfon &-um u, treatMc
ttud
by Uun«, it œtubmted pt-~eMM' of Jnrtsprudenee m the Utuvemity of Got-
tn'gL'n, tunt the author uf au excellent history of thé Romon Law. AhhoMgh ·
thé treati&i m question M e)ntitt<:tt thé hw uf natute,' !t ta nut concefued
with the bw of nature itt thé ustml meanins of the term. In thé tan~ua~
of thc author, it h <;uuct;nM(! with thu htw of MittMM w (t ~/tt<c~Aj/ of
y<«t'<('M ~«w.* But thùu~h t)tii) hMt exprfiiifiutt M huppity ehosen, thu mbjeet
t
and scope ef thtt trottise are conecived indi~tînctty. Geneml JMrMpfudencc, (
<r thé philosophy of ~itivc hnv, M MfndMd and eonfounded, frum thé t
bfgittniHg tu thM fttd ut' thu book, with the purtiou o[ deoutoto~y or ethies,
which is styled thc science of legistattou. Xttw geMmt jut'isprudunee, or
thc phHosuphy or positive taw, it) twt coucemed 'tireetly with thé science of
legisiatioth It !.< couccrtMd directty with prineiptes M)d distinetiou which
an: common to vurious syateuM of particuhu' aud pwith'e taw attd which [
each ofthoM Vttt-iutM Bystems inevitabty involves, k'tit be ~-orthy ofpmi.
or Mtuuu, or let it accon.t or not witli an aMUM~d meMuro or test. Or
(ehaot~n~ thé phrMf) ijetMrat jurisprMdfnce,or the phitMophy of positive
law, M concerMed with iaw as it )tfce9Mrity «, Nthet than with law a;! it
oK~tt to bc; with htw as it mufit be, << good or M, rather thuu with hnv
)
a-~ it tnust be, t~ << be ;/oof<.
Thé xubject and scupe of général jurisprudence, M contradistingnished
to partieuhrjurMprmtenec,are well expre.e<t hy HohhM in that departtuent
of hi. ~<~('«</K«t which !)! eoncerne<.t with civil (or RMitive) taws. By civit
laws (sftya he), 1 understand thé taw!! that tuen tm therefore bound to
observe, becatMe tliey n)'<: member~, not of thi;' or ttMtt comn)onwe<t!th in
partieutat', but of a commonweatth. For thé knowMge of particular laws
belon~eth to theut that proft: thc stndy of thé )a.ws of their avérât
countrie. but thé km'ivtcd~e of civil laws in ~ncN), to any man. Thé
ancient law of Rome waa cat)ed their "civil !uw from thé word <'t~)'<<M,
which signifies a cotnntonweaith And thosa countriM whieh, having been
under thé RfnMtt empire, attd ~overned by that taw, stiit retain such part
thereof a-i they think fit, cait that part thc <:t'H< iftw," to di.tingui.sh it i
t'rom the Mt of their own civil taw~. But tbat i~ not it 1 inteod to speak
of. My desij;n is tu show, !M< <fAa< M <«? /tere or<A<M, but tt'A«< M~tK~ As
Ptato, At'iiitottc, Cieero, and divers uthem hâve donc, without tuking upon
thetn thé prufes-'iion of thé !itudy of thé !:tW.*
Having distin~uished ~encrai t'rom partieutar jurisprudence,
1 shaM show that thé study of the former is a nocessary or ¡
usefui preparative to thé study of thé science of legistutioH." 1
sliall also endeavour to show, that thé study or général juris-
pt'udeuce m!~ht précède or aeeompany with advantage thé study
of partieuiar Systems of positive law.
tl
?)(<Expoundinst)te principes attd 'tittinction! whieh are thé appro-
priate Matterof~enemt jurisprudence, I shall prewat thon abstracte'I or i'
Ttte nmtttr cohtaitt~t iu thé aLov.: addrcss hitttMtftothé suhject of ;~t<.itt<
section of tho Outline (lots not appe~r jaritipru~teMep. Thé sobjtict hefe r<:t'<:rr<-d
tob':furt!Mr<t<:v<!)ojtettiut)ie<:n!)uin){ to wt)!, howcYer, be found more ettittr~d
tectnre. T'he <)i'!<inct!onuppears to )M upon ))< M essay entitM On thé Stu'ty
<MW)«"), ttud thé <t)tt)t&r, m thé iectare &t' Jut-t!))trM')et)m,' prixted towan)!) thé
marked Xt! itntnettMtety proeeeds to enj or thé secon) vohttne.–K. C.
detaohed &<?) every particular syatem. But when mett a pr!neip!e or dis. t<)
ttaeUon, (M s~ (tbottncted or det«ehe<t, may Ment tf B~ ~emp!Mcstton, 1 ·
shaM also ~n~eavourto preeent it with oae or both of the forma where!n it
respectivaly appe<us un thé two partieutar whieh 1 have etudied
with some accurney: namely, thé Roman Law and the Law of Engtand.

III. Having determined the province of jurisprudeRce, and L;


distinguished gênerai from particular jurisprudence, I shall
analyse certain notions which Meet us at every step, &.<! we
trav<'I through the science of taw. Of these lending notions, or
thèse leading expressions, the most important and rematkabte
are thé following
rerson and Thing. Fact or Event, and Incident. Act,
Forbearance, and Omission.
Legal Duty, relative or absolute. Lcgal Right. Legal
Rights in MM, with their corresponding Cj~cM; and Legal
Rights in ~cr~Kam, with their corresponding Obligations. Legal
Privilège. I'ermission (by the Sovereign or State), and Political
or Civil Liberty.
Detict or Injury, civil or criininal.
C'M~pf< (in thé largest sense of thé tenu), or Thé Grounds

or Causes of /M~M<<i!cM~ a notion invoh'ing the notions of


Wish or Desire, of Wish as Motive, and of Wish as Wil! of
Intention, of Negligence, of Heediessness, aud of T<imerity or
Eashness. Ttie grounds or causes of JVb)t./N~K~<<Mt:
Infancy, Insanity, ~yKo?'aK<«: ~:c~ .~?t<M'<u!<«: ~<o'M, Casus or
c.
Mishap, ~M or CotnpuMon.
Sanction, civil or crimina!.

~e(<Thouj,h every right implies a eorresponding duty, every duty


does not impty a corretiponding riKht. 1 therefore distin~uish duties into
retative nnd absolute. A t'eIativM duty is ituptied by right tf which t!mt
duty utuwer~ Au absolute duty dues not answer, or is not implied by, nu
aMwenug ri~ht.t.
Persons are capable of taking nghh, and are <t!so capaMe of incumng
duties. But a perMn, not unfKquentty, is mcrety the M<<ef< of a right
whieh K~ides in <fM<Ao' penon, and avaiti) anain.-t fAt'f(< peMott)!. And
considered as thé subject of a t'ight, and of thé corMpundiNj.; duty, a person
is neither invested «'t'~ a right, nor mbject fo a duty. Considered its thé
<ubject of a right, and of the corresponding duty, a permn occupiez a posi-
tion anatogotM to that of a thing. Such, for exampte, is thé position of
thé servant or apprentiee, in respect of thé master's right to thé <en'ant or
apprenticc, against thind periione or i-traogw.
Things are <«&)'«<< of tightii, and are abo M~tth of the duties to whieh
those rights correspond. But, setting a~ide a fiction which 1 sha)l <tate and
explain in my !ectures, thinga aM incapableof taking rights, and are also
incapaNe of incurring duties.
Having determined the province of Jurisprudence, dstin'
guiattett générât flom particular Jurisprudence, and analysed
certain notions which porvade the science of taw, 1 shtt!! teave
that merely prefatory, though necessary or inévitable matter,
ttnd s!mU proeeed, in due order, to the various dapartmeats and
sub-departtnents under which 1 armure or distribute tho body
or bulk of my subject.
Now the principle of my main division, aud thé basis of
the main depMtmcuts which result from that main division,
may be found in the fbilowing considerntions.
First Subject to slight correctives, the essontial diSërence
of a positive law (or thé difference that severs it from a law
which is not a positive law) may be put in the following
manner. Every positive law, or every law simply and strictly
so called, is set by a sovereign individual or a sovereign body of
individuals, to a person or persons in a state of subjection to
its author. But some positive laws are set by thé sovereign
tmm~'a<e~ whilst others are set ~M~t'a~/y by subordinate
political superiors, or by privatc persons in pursua.nce of lega!1 j
rights. In consequence of which differences between their
M~M~'<~c authors, laws are said to emanate from different
S<WCM or ~M<K<<K&
SecoucUy: A law may begin or end in different MO~M,
whether it be set irnmediatelyby tho sovereign one or number,
or by a party in a state of subjection to thé sovereign.
Thirdiy Independently of thé différences between their
sources, and between tho modes in which they begin and end,
laws are calculated or intended to accomplish different ~iMyoMS,
and are also convetsant about different M~c~.
Being set or cstablished by different ~MMe<K<:<e N«<AM's,
beginning and ending in different Mo~M, being calculated or
intended to accomplish diffcrcnt ~Kyp<M<s, and being conversant j
about different <K~c~, law may be viewed from two distinct <
aspects, aud may also be aptly distributed under thé two main j
departments which are sketched or indicated botow.
In the first of those main departments, law will be considered
with reference to its ~MM'eM, and with référence to the MOf<M in
which it begins and ends. In the second of those main depart-
ments, law will be considered with reference to its purposes, and )j
with reference to the SM~c<N about which it is conversant.
LAW COKSIBEBEH WITH NE~aESCE TO ÏTS ,N9<MK?~
AX& WtTM REFERËSCK TO THE MOD~ M WHtCH IT
BEGÏN8 A~D E~P8.
L A law or rule m~y b& set tMNMf~c/y by the sovereign,
or by a party in a state of subjection to thé sovereig!t.
r. Hence
the distinction between wW/<cK and K~M~t'~M law, as thé terms
are frequently used in treatises by modem civilians, or by
writers on gcnend jurisprudence. And hence thé equiv~ent
distinction between jK'om«~ and M!!p?-oMMA/~ law,
as the
tcra)8 are frequently used iu thé same treatises. As thé terms
are frequently used in those treatises, <<~<~M law, or promulged
law, is law of which thé sovercign is thé immédiate author
whitst «?nM'«<'K law, or M~cmM~ law, is law which flows
immediately from some subordinate source.
The two distinctions, as taken in that sensé, will be
ex-
pounded m thé lectures: whcMiu I shaU explain thé widely
different sensés which often are annexed to thé terms.
Il. Whether it be set MKmco'M~ by thé sovereign one or
number, or by some politieal superior in a state of subjection to
thé sovereign, a law or rule may be set or established in either
of two modes: uamely, in the ~-opo'/y legislative mode (or m
the way of direct iegislation), or in thé tM~'opc~ Jegislative
mode (or in thé way of~'K~'CM~ législation).
A law established in thé properly legislative mode is set by
its author or maker as a law. The direct or proper
purpose of
its author or maker is the establishment of thé law which is
made.–A rule established in thé improperly législative mode is
assumed by its author or maker as thé ground of
a judicial
décision. Thé direct or proper purpose is thé décision of
a
case, and not thé establishment of the rule whieh is assumed
and applied to thé case. Thé author or maker of thé rule
Icgistates <M~Mf~cWy~/M~,and not <Mp~?'~ ~M/«~.
As 1 have intimated above, thé sovereign one
or number,
or any political superior in a state of subjection to the sovereign
may legislate in either of thèse modes. For example: The
Roman Empeiors or Princes, during the Lower Empire,
were
avowedly, as well as substantiaUy, Mtwc~K in thé Roman
WorM and yet they established laws by thé f/c<M which
they gave judicially, as well as by thé edicial CMM~K~MM whicJ)
they made in their legislative character. And,
on the othor
hand, thé Roman Praetora, who were properly SK~<-<;< judges,
established laws in the way of direct legislation by thé edicts
which they p~Mished ou their accession to office. The M<<« <~
~<te~<w tnatto by thé Engtish Gom'ts, are atao examples of Inw&
eattthlished in the législative mode by <i!<~o!Mta~' poUtical
superiors.
Inasmuch na ita true esaentiitls are frequently tnisconceived;
1 shall endeavour to analyxe aceurately thé distinction which 1
Itave now suggested: namely law made <t'c«y, or in tho
properly legislative manner and law made ~K~'cta~y, or in thé
w&y of tMpfope!' legislation.
Httvin{; stated thé cssential dinerences of thé two kinds of
law, 1 shall briefly compare their respectivefmerits and defects,
aud then briefly consider thé retated question of cofM/tca~'oM.
III. Every positive law, or rule of positive law, exists a~
a!«;A by thé pleasure of thé sovereign. As M«'/t, it is made
immediately by tho sovei-eiga, or by u party in a state of
subjection to thé sovereign, in one of the two modes which are
indicated by thé foregoing article. As MM~, it flows from oue
or another of those sources.
But by thé classieal Kontan jurists, by Sir William Black-
stone, and by numerous other writers on particutar or gênera!
jurisprudence,thé OMfMMK.; of laws, or the Mo<tMs to their estab-
lishment, arc frequentlyconfounded with their NMM'c~ or~bKK<a!'HA
Thé following examples will show thé nature of the error to
which 1 have now adverted.
Thé prevalenco of a custom amongst thé governed, may
determine thé sovereign, or some political superior in a state of
subjection to the sovereign, to transmute thé custom into positive
law. Respect for a law-writer whose works have gotten reputa-
tion, may détermine thé !egislator or judge to adopt his opinions,
or to turu thé spéculative conclusions of a private man into
actually binding rules. Thé prevaleuce of a pmetice amongst
private practitioners of thé law, may détermine thé legistator or
judge to impart tho force of law to tho practice which they
observe spontaneousty.–Xow till thé tegislator or judge impress
them with thé character of law, thé custom is nothing more
than a rule of positive moraHty; tiie conclusions are thé spécu-
lative conclusions of a private or unauthorised writer; and thé
practice is thé spontaneous practice of private practitioners.
But thé classical Roman jurists, Sir William BIackstone, and a
h<Mt of other writers, fancy that a rule of law made by judicial
decision on a pre-existing custom, exists as yc~M~ law, apart
from thé legislator or judge, by thé institution of the private
persons who observed it in its customary state. And thé
classical Roman juriste have the aame or a like conçoit with
regMt! to thé nttes of law whtch are iH~htoned by judicial
décision on thé coaclusions or practiees of private writers or
practitioners. They asuribe their existence <M ~w to the
aothorityof the writers or practitioners, nnd not to thé sovereign,
or the représentatives of the soveroign, who clothed them with
tho légal sanction.
With a view to t!tese conceits, and to otIieM equaHy absurd.
1 aha!! ex&Htine the natures of tho Mtowing kinds of law.
1. Law fashioned by judicial décision upon pre-existing
custom: or (borrowing thé tnngnage of the dassical Roman
q jurists) y<M M«M'~«a eoM~t~MM.
1
2. Law fashioned by judicial décision upon opinions and
¡ practices of private or unauthorised lawyers or (borrowing
thé tanguage of the classical Rotnan jurists) ~M ~i<~cK<t&M
<'M/OM'<M?H.
¡ Examining customary law, or law Mo?'î&!M <-wt~K<MM, 1
shall advert to the essential differencesbetween gencral customary
]awa, and such customary laws as are local or partieu!ar or
¡ (speaking more properly) between thé customary laws which thé
tribunnls know yK~i'n'~y, and thé customary laws which thé
tribunats will not notice, untes!! their existence be ~M~.
1 IV. ~<!<M?<!< &:M', as thé term i;s comntonly understood by
modem writers upon jurisprudence, Ims two disparate meaniNgs.
It signifies thé law of God, or a portion of positive law and
positive moratity.
¡ The law natura], which is parce! of law positive, is analogous
to law N<Mt&!M <XMM<t<M<KNt,and to law ~n<~<:K<<&!M COM~M!'<Mm.
For natural law, considered as a portion of positive, is positive
law fashioned by the tegislator or judge on pre-existing Jaw of
another description namety, on thé law of God truly or errone-
ously apprehended or on rules of positive morauty which are
not pecunar to any nation or âge, but obtain, or are thought to
obtain, in aU nations and ages.
Accordingly, from law Mto~~ e<MM<t<M<MM, and law ~x-
f~~<M coM:pMt'<!MK, 1 shaU pass, by an ohvious and easy
transition, to thé law natural which is parcel of law positive.
Handung tite topic, 1 shall show thé analogy borne by that
natural law to law m<M')'&!M to?M<t<M/!<m and law ~)'M~eN<<&M
Mm~o.!t<KM. Canvassing the same topie, 1 shall show that thé
supposition of a K<:<MM~ law (considered as a portion of positive
law and morality) involves thé intermediate hypothesis which is
compounded of the theory of utility and the hypothesis of a
mond sensé: that, assnming tho pure hypcthesis of a morat
sensé, or assuming thé pure theory of gênerai utility, tho distitte-
tion of human rules into natttraî and positive, were utterly
senseless, or utterly purposetess.
With a view to my subséquent outlinu of the~M ~w<o!t!tN<,
1 shall give an lustorical sketch of the y:M <ycK<M~, as it waa
understood by thé earlier Roman lawyers. Tlie y!<s yeKh'Mm of
thé earlier Koman lawyers, 1 attall distinguish from thé ~M
Ka~<M< or j~<~ ~<'n~tKw, w!nch tunkes so cunspicnous a figure
in thé van of thé Institutes and Paudects. 1 shall show that
the~ ~eM~Mm of the earlier Roman lawyers is peculiar to thé
Hotmm law whikt thé !atter is equh'atent to w<<<~<!< <a«', as
thé term is cotumouly understood by modern writers upon juris-
prudence. 1 sllall show that thé /)M ~M:<tMNt of thé earlier
Roman lawyers was a purely ~'ac~ea~ notion that it arose from
the peculiar t'elations borne by thé C~'&s ~em<t to her dépendent
allies and subject provinces. 1 shaM show that tho lutter is a
purely spM!<~<<tt'< notion: that it was stolen by thé jurists
styled (7«~s!<t~ and by them imported into tho Roman Law,
from certain muddy hypothèses of certain Greek philosopher:
touchiug thé measure or test of positive law and morality.
V. From thé yfM mon&t<s <:MM<<<M<«m, tho ~M ~<~?!<M
com~OM<«m, the tta~tM'o!~ ~c of modem writers upon juris-
prudence, and thé équivalent y<M ~Mt<<MM of tho jurists styled
<(!&Mt-a< 1 shall pass to thé distinction between law of domestic
growth and /<t«' o~/M't't'~ o!)M/: thé so called 'jus <'c<'fp<MKt.'
For hère nlso, the sources or fbuntains of laws are commonly
confounded with their occasions, or with thé motives to their
establishment. As oKatM~ tK </te Ma~'o~ MAerM'n is twetM~,
thé so called y<M tw~KM is not of foreign origina!, but is law
of domestic manufacture or domestic growth. As oKmmK~ in
the nation w7<<M'eM! il is ~'ec<'M'<'<?, it is law fasitioned by thé
tribunats of that nation on law of a (brcign and independent
community. For example Thé Roman Law, as t< obtains in
6'c~naMy, is not hw emanating from Roman tawgivers. It is
law made by German lawgivers, but moutded by its German
authors on a Roman original or mode).
l'assing from tho y!<-s wc<p<M!K, 1 shall advert to ttto positive
law, closety analogous to the ~M )'<'<<!<m, which is iashioned
by judicial décision on positive international moraJity.
VI. jE~M~y sometimes signifies a species of <<t)M. But, as
used in any of thé significations which are oftener and more
properly annexed to it, it is not thé name of a, species of law,
thé latter 9igmncati(Ht9,th<~ which ia most remarkaMc,
Of
X
XXVH!-
and which îshau therefora explain with some particuhrity, 3XXX!X
thus.M~ often signifies the <tK~<
may be stated brio~y
~M~o)'<MK, or ~M< which is thé basis of the spurious inter-
prétation styled e&~oMtM.
As signiiying a specics of law, thé tenu cgM~ is conftDed
exclusively to Roman and English jurisprudence. The law,
moreover, of whic!t it is thé name in the lauguage uf English
jurisprudence, widely differs froin thé law which it signifies in
thé languago of thé Roman. Consequentty, its import is not
involved by thé principles of général jurisprudence, but lies in
thé particular histories of those particu!ar systems. But since
this talk of ~Kt~ has obscured the ?'<!<tOK«~ of law, and since
an attempt should be made to dispe! that thick obscurity, 1
shttU here digress, for a time, from thé région of philosophicat
or gênerai, to thé peculiar and narrower provinces of Roman
and English jurisprudence. Having sketched an historicat
outline of thé y!M ~o~K~ (which is intimately connected
with thé yM ycK<M<M, as this last was understood by the carlier
Roman h\vyers), 1 sliall briefly compare thé <'<~K!<y dispensed Ly
the Roman PtœtoM with thé c~Mt'~ adtuinistered by thé Engnsh
ChanceDors. From which brief comparison it will amply appear,
that the distinction of positive law into ~p and <~M!<~ (or /M
civile and y<M ~K'<if<onKm) arose in thé Roman, and also in thé
English nation, from circumstanees purely anomalous, or peculiar
to tlie particular community. And from whieh brief comparison
it will also amply appear, that thé distinction is utterly sense-
less, when tried by gênera! principles, and is one prolific source
of thé needless and vicions complexness which disgmces the
systems of jurisprudence wherein the distinction obtains.
VII. From the sources of law, and thé modes wherein it
begins, I shall tum to thé modes wherein it is abrogated, or
wherein it otherwise ends.

LAW CONSIDERED WITH REFERENCE TO ITS PU'BM.SRS',


AND WITH REFERENCE TO THE .SM~~CM ABOUT WHICH
IT IS CONVERSANT.
I. There are ceftaiti and ~«<t'M, with certam e~<!et'<K' l.Ecr. X
and incapacities to take rights and incur duties, by which ~'<MM,
as subjects of law, at'e vanousty detenMtned to certain c~<M~
'nte rights, dutics, capacities, or iucapacities, which determme
a given persou to tmy of thèse classés, conatHuta a eo!t<H<M!t or
<t<<t~ which t!te potBpn oceupMs, M- with whieh thé person is
invested.
One and thé same person may belong to mamy of these
classes, or may occupy, or be invested with, many conditions or
~<M. For cxample One and thé Mme person, at one and
the same time, may be son, husband, (ather, gnaKtian, advocate
or trader, member of n sovereign Humber, and taiNister of that
sovel'eign body. And various a<<~M~, or vurious conditions, may
th~ meet or unité, in one aud thé samo person, in infinitely
various ways.
Thé rights, duties, capacities and incapacities, whereof con.
ditions or ~a<<M are respectively constituted or composed, are the
approprinte matter of thé dopartment of law which commonly
u named thé Zf<w <~ T~~MM ~'«.<! ~K0(7 ad T~MOKM ~<tM<*<.
Less ambiguousty and more significantly, that department of
law taight be styled thé Law of ~a<M.' For though thé term
~fMpK<[ is properly syuonymous with thé term ~<<!<<M, such is not
its usual and more.commodioussigttiiic&tion. Taken with ita
usual and more commodious signification, it denotes AoMO or
man (including woman and chiid), or it denotes an aggregate or
collection of men. Taken with its usual and more commodious
signification, it does not denote a s<a<<M with which a man is
invested. j
Thé department, then, of law which is styled thé Law of
Persons, ia conversant about ~«<tM or conditions or (expressing
the same thing in another form) it is conversant about ~'sMM
(meaning men) as bearing or invested with ~ef~MM (meaning
~!M or conditions).
The department of law which is opposed to the Law of
Persons, is commonly named thé Law of ?%tN~ dia gKO~ ad
J!M ~er<:K<<. Thé explanation of whieh name needs a disquisi-
tion too long for thé present outline.7
The Law of Things is conversant about matter which may
be described briefly in the following manner
It is conversant about rights and duties, capacities and
incapacities, as a~Mte~ from the rights and duties, capacities
and incapacities, whereof conditions or a<<t<<M are respectively
constituted or composed: or (ehanging the expression) it is
conversant about rights and duties, capacities and ineapacities,
1
r The explanat3onto be ineerted from Rochts, voi. ü. i. ot aeq. (StS.note
'"rheexphmti<<nt<tbeta<e)rte<tf)'omRecht9,ve).it.p.i.et<eq. (liS. noto t!,
J~tture XL. SeeThihaut, "Vermche bythoAMher.) )'
iiber einzetne Theile der Theorie des
in so fàrastheyaMM~ constituent or component éléments of ï
<~<<wa or conditions. It i<t stso conversant about persons, in s&
far as they are investod with, or in sa far as they are aubjeet
to, thé rights and dutics, capacities and incapacities, with which
it is occupied or concorned.–ït is conversant about acts, for-
bearances, and things, in so far as they are objects and subjects
of rights and duties, and in su far as they are not considered in
thé Law of Peisons for aets, forbearances, and thîugs, are so
far considère in thé Law of Persona, a~ they are o~eets and
sub}ects of thé rights and duties with whieh the Law of Persons
is occupied or concerned. It is also conversant about persons
as sx~ee~ of rights and duties, in so far as they are not con-
sidered front that aspect in thé Law of Persons or <S'<a<M.
II. Considered with référence to its dînèrent purposes, and
with reference to thé different subjects about w!uch it is con-
versant, law may be divided in various ways, But of a!l thé
main divisions which it will admit, thé least inconvénient is the
aucient division, thé import whereof 1 have now attempted to
suggest. Consideted with reference to its purposes and sut~ects,
law will thorefbre be divided, in thé course which 1 intenil,
into Law of ~%t~< and Law of ~'Mif:& In the institutional
or elementary writings of thé classical Roman jurists, who were
thé authors or inventors of this celcbrated division, thé Law of
Persous preceded thé Law of Things. But for varions reasons,
to which 1 shall advert immediately, 1 begin with thé Law of
Things, and conclude with thé Law of Persons.
But before 1 consider thé Law of Things, or thé Law of
Persons, 1 shall state and i!!ustmto the import and uses of this
ancient and celebmted division. And in order to that end, 1
shaU proceed in the following manner :-1. 1 shall try to denne
or deterniine thé notion of s<<!<!M or condition for that essential
or necessary notion is the basis or principle of the division.
2. 1 shall show that the division is merely arbitrary, aithough
it is more commodious than other divisions, and although the
notion which is itt basis or principle, is essential or necessary.
3. 1 shall show thé uses of thé division and shaU contrast it
with other divisions which have been, or might be, adopted. 4.
1 shall state thé import of thé division, as it was conceived by
its authors, thé classical Roman junsts, in their institutional or
elementary writings. 1 shaH show that their arrangement of
the Roman Law oftcn departs from thé notion which is the
basis of the division in question, and on which thé who!e of
their arrangement ultimately rests. Ilore especially, 1 shaU
show that tho matter of~M <M<<omMM,which they ptaced on
!ia<t with jt~wKo'nM~ <wMNt, shouM not be put utto a
department distinct from the two last, but ought to bo dis-
tributcd under both that thé main division of !aw ought to be
twofold only, Law of Things and Law of Persons and that tho
classical Roman jurists therefore Mt into thé entH' of co-M'f~<!«<-
certain .9pecies with thé ~aent of which they are tMCtnbers.
5. The dtvisiott of law into Law of Thiugs and Persons, is
obscured by thé cotteiseness and ambi~uity of thé !an~naga
whereiu it is commotJy expressed. Of that obscurity t shall
endeavour to clear it. 6. 1 shall show that Hackstone and
others, probably misted by that couciseness and ambiguity, have
misapprehended gfossiy thé true import of thé division, and
have turned t!mt elliptical and dubious langttage into arrant
jargon.
From thé attempt which 1 have made above to suggest thé
import of thé division, it may be infen-ed that the Law of Things
is coucerned with principles or rules which commonly are more
gênerai, or more abstract, tlian thé prinoiples or ndes contained
in thé Law of Persons that thé principles or rules with which
thé former is concerned, commonty sin, by reason of that greater
generaîity, through excess or defect: and that thé narrower
princip!es or rules contained in the latter, commonly modify the
larger prineiples or rules about which thé former is conversant.
Xow since a modification is not to be understood, if that which
is modified be not foreknown, thé Law of Things should not
follow, but should procede the Law of Persons. For which
reason, with various other reasons to be stated in thé lectures,
1 consider the two departments in that order.
The division in question, like most attempts at scientinc
arrangement, is far from attaining perfect distinctness. Its two
compartments frequently blend, or frequently run into one
another. Consequentty, as 1 travel through the Law of Things,
1 shall often be compelled to touch, by a somewhat inconvénient
anticipation, upon a portion of the Law of Persons.

A'o<<In hii! AtKttyoM of thé Law,' which aboumts with meute and
jttdiciom remarks, it i;! fitated expre~iy by Sir Matthew Hale, that the Law
of Th!n~ should précède thé Law of PeMons. He Myt that t))e etudeut
shonid ta~tt with the jus <WKBt fur tlie j)M ~MrMnorMttt eonhuns matter
proper for thé study of une that ix well acquainted with thé J<M reruni.'
It is worthy cf temar! that the order rccûtnmendedby Hâte M thé order
of thé PntMian Code. Thé admiraMe Suare~, under whoM 6Ut'e)'iKtendence
the Code was compiled, aMigns thé Mtowi))~ reason for his ptctcfunce of
that order to the method of thé Ch~ieat Jurists
ReNeeting on thé <!epartment~ of law Mhtch «? ~M thé Law <tf Pe~
)ietM and thé L<tW uf Thi<!t!~ wë t.haU Bnd tMt thé two depaetHMata are
n)Mt<t<~ty rehte<t that cach eonhtHM nMMoM whMt !t ()! ttM~eaty wc shauM
ktMW, ~t~K we caft htiow corrtictty tht ttpprMpfinte mb~ct of tim (jthur.
But am;h t~t' thèse p)'a«'ejyHC~<n<t<ttM )n~ coutataed by t!tf I<ttw ~f Thi)~
aM far more KUtnerotM and far more woi~hty th«)t Mteh of thesM ptxXM'
MMc<ttA( us ure contaitMtt by thé L<m' of P~~tM. For whet'e thé ffubject of
either :9 )!np))Mt'!<! with that f'f th~' other, thé fbrtuet' i. (:ot)))ao))!y <:ou-
eerMed with Mute more genend rule, whieh by Kason of it~jp'<iat«r xeneratity,
)tin)t through <:xceNt or 'tet'ect: whiitit thé lutter M commotdy coieeme')
with Mue less HeMemt division, by whieh that rule is prun~t of it~ exe';0ft!,
ot by which its dtteet.'t are suppticd.'

t)A<* t~f illi~iUO.


I. There are facts or events from which rights and duties
anse, which are légat causes or antécédents of rights and duties,
or of which rights and duties are légal effects or conséquences.
There are also facts or events which extinguish rights and duties,
or on which rights and duties terminate or cease.
The events which are causes of rights and duties, may bo
t divideu in thé following manner namely, into acts, forbeamnces,
and omissions, which are violations of rights or duties and events
j which are M«< violations of rights or duties.
1
Acts, forbearances, and omissions, whieh are violations of
rights or duties, are styled <t'<K/t<WM, or o~fMM.
Hights and duties whieh are consequences of delicts, are
~<M<MK<K~ (or préventive) and MN:e~M<~ (or reparative). In
1
other words, thé ends or purposes for which they are conferred
and imposed, are two: to prevent violations of rights and
duties winch are not consequences of delicts ~<'on< to cure
i the cvils, or repair the miscbieis, which such violations engender.
Eiglits and duties not arisiug from delicts, may be distin-
guished from rights and duties which are consequences of delicts,
by thé name of ~'ma~ (or principal). Rights and duties arising
from delicts, may bo distinguished from rights and duties which
are «o< consequences of delicts, by thé name of .s<MM<«HMM~(or
secondary).
My main division of thé matter of thé Law of Things, rests
upou thé basis or principle at which I hâve now pointcd
namely, thé distinction of rights and of duties (relative and
absolute), into ~ma~ and s<M:<:<tOMM: Accordingly, 1 dis-
tribute thé matter of thé I<aw of Things under two capital
departments.-1. Pn~Mt~ rights, with ~NMt'y relative duties.
2. <SHt<;<t'<Htm~ rights, with sattc~'CMtM~ duties (relative and
absoînte): .&&'<:? or t~'Mftes (which are causes or antécédente
~j2.
X~Y
&0; of
Of sanotioning rights <md duties) included.
oi
II. The basis of my main division of t!t8 matter of thé Law
of Things, with tho two capital departments under which I
distribute that matter, 1 hâve now stated or suggested. Many
of tha sub.departments into whieh those capital departments
immediately sever, rest upon a principle of division which 1
shall expound in my preliminary lectures, but which 1 nmy
indicate eotamodiousiy at Ute present point of my outtiHe.
Tlie principle consists of ttn extensive and important dis-
tinction, for w!nclt, cwMeM' ~:<A </<e wAo~ o/' ils extent f<K(/
tm~c~Kce, we are indebted to thé penetmtmg acuteness of tho
classical Roman jurists, and to that ~ood sense, or rectitude of
mind, which commonly guided their acuteness to true aud useful
resuit!}. Every student of law who aspires to master its prin-
ciples, should seize the distinction in question adequately as well
as clearly; and should not be sntisfied with catching it, as it
obtains hère or there. For thé difference whereon it rests, nins
through every deparhnent of every system of jnrispntdence
althou~h, in our own system, thé différence is far from being
o!'MOK% and although it is impossible to express it, sufficiently
and concisely at once, without a resort to terms which are
unknown to thé English Law, and whieh may appear uncouth
and ridiculous to a merely English tawyer.
The distinction in question is a distinction which obtains
between M~/t~ and which therefore obtains, by necessary
implication, between thé ~«<tM ~K<M~ answering to rights. Jt
may be stated thus
Every right, be it primary or sanetioning, resHes in a persou
or persons detenninate or certain meaning by a person deter-
minate, a person determined specifically. And it avails against
a person or persons (or answers to a relative duty incumbent on
a person or persons) other than thé person or persons in whom
it résides.
But though every right )'eM'<An in a person or persons deter-
minate, a right may HM<!7 against a person or persons determinate,
or against the world at large. In other words, thé duty implied
by the right, or to which the right corresponds, may lie exclu-
sively on a person or persons determinate, or it may lie upon
persons generally and indeterminately.
Duties answering to rights which avail agamst the world at
large, are M~tM that is to say, duties to./M- Of duties
answering to rights which avail against persons determinate,
sonie are négative, but others, and most, are ~e~ that ta to
say, (tatie~ to <Jo or ~~N~N!.
A right availing against thé world at large is defined by
Grotiusand others, thus; ,/MCK~<M~o?<ae <'w~<<t!j sine 7'<~c<;t
ad certam~rwKOt~t & right avaihng oxctasivety against a person
or persons determinate, thua /<!<-«/~ ~ef~onae competens in
certam j~MOKaM.
By most of the modern CivUMns, thottgh not by thé Roman
lAwyots, riglita M-aiUMg against tto wortd nt large are named
/«M Mt )'<;?; nghts availing against persons dctprnunate,y!<a
<? ~<'?'~K<îwt, oryKf<t M ~MM«:Mt tM'/sm. And by thèse dtHerent
names of rights <M )'<;Mt and rights <M j9e?'~MMm, 1 distinguish
rights of thé former front rights of thé latter description.–My
reasons for adopting them in préférence to others, I shall assign
in my lectures: wherein 1 shall endeavour to clear them of
obscurity, and shall contrast them with the équivalent names of
thé Roman Lawyers.
Thé relative duties answering to rights w Mm, might be
distinguished con.veaientty from duties of thé opposite e!as9, by
thé appropriate name of offices: thé relative duties answering
to rights irt ~<'MM!c:M, by thé appropriate name of oM~f<<o?M.
?)(<In thf ~Ttting~ of the H'~mn LawyM~, thé t(:mt oMt~ffa M
never oppUed to a Juty whieh uuswcM tu a ri};ht ~t ~m. But, winc~ they
hâve )M UMUte «pptopriatt tu a right o~xfMtxtm, they
u~e thé tenn cK~n'o
to denote a ny/t< of thé chtiH, af! well M to dt-nute thé <!tf<~which the n~ht
imptiM. ~u tx Mm or~KM w fcnt, they style ~mtttt'ttm dominia (with
or
thé hr);er meamaf; of th); t<-r))() attd to ~nn'tX'a (with that
more cxtenwe
meaning), they op~«!j)<M tM ~MMtam, hy thé name of<iMty«i«Mt<

To exemplify thé leading distinction which 1 have stated in


générât expressions, 1 advert (with thé brevity which the limita
of an outline command) to thé right of property or ownership, and
to rights arising from contracts.–T!te proprietor or owner of a
given subject bas a right in MM.' since thé relative duty
answering to his right is a duty incumbent upon persons
~'MM;~ aK~ tw~o-mux! to forbear frotn ait sueh acts as
would hinder !u.! deaung witli thé subject agreeaMy to thé lawful
puriMses for which his right exists. But if 1 sing!y, or 1 and
you jointly, bc obliged by bond or covenant to pay a sum of
money, or not to exercise a caUing within conventional limits,
the right of thé obligée or covenantee is a right in ~<:)'soK<ïM).'
thé relative duty answering to his right being an obligation to
do or to forbear, which lies exclasively on
a person or persons
f~<<rmtK«~
111.With the lielp of what 1 liave ptomisod, 1 can now
indicate tho method or otdet wheteiu î treat ot eonsidor thé
matter of the Law of Things. That method may be sttggested
thus:1.
The matter of the Law of Things, 1 arrange or distribute
Muder two capital departments..
t
Tlie subjects of thé first of those capital departments are
~M'MtMM-~ riglits, witit ~K'tMN~ relative duties wltich 1 arrange
or distribute uuder four sub-departments.–1. Kights in t'e~t as
existiitg~[t- se, or as not combiaed with rights in ~o'~Mam. 2.
Mghts in ~-aMMMt as uxistiug ~f!' ?, or na not combined with
t'ights in fMh 3. Such of thé coM&~<MM~ of righb; w <-<'M aud
rights in ~OK<t?M as are particular and compamtivelysimple.
4. Such ~K~<')'st'<t'<'j of riglits and duties (or sucit complex aggre.
gâtes of rights and duties) as arise by universal succession.
~:M<'<WKM~ riglits (ail of which are rights <? ~(.VMK«M),
MK<'<cKtKy duties (some of which are relative, but others of a

which are absolute), together with <MM~ or <?~:<W<s (whieh are


causes or antécédents of sanctioning rights and duties), are thé
subjects of the second of thé capital departments undor which
1 arrange or distribute thé matter of tl)e Law of Things.
But before 1 proceed to those capital departments, 1 shall
distribute ?7tM: as subjects of rights and duties, uuder their
various classes. And before 1 proceed to those capital depart-
ments, 1 sliall remark generally upon Per~o~, as seibjects of rights r

and duties upo: ~ie~ and ~Mt'~aKCM, as «6/'<'e~ of rights and


duties and upon J~«'<-s or Events, as c«!<&s of rights and duties,
or as &~<tK~)<M/t.<M~ rights and duties.

~'t/MfM'y .A~, !<<A ~~MM~ )'~t!<<pe J9t<<-&


Kights <? as existing ~o' se, or as not
)'<:m,
combined with rights in ~w?tKM.
Thé following is thé matter of this sub-department, and
tlie following is thé order in which that matter will be treated.
I. As thé reader may infer from a foregoing part of my
outline, and as 1 shall show completely in my preliminary
lectures, thé expression in MM, when annexcd to thé term ~/<<,
does not denote that thé right in question is <! ~< <w<')' «
<A!'?)~. Instead of indicating thé nature of thé subject, it points
at the compass of thé conrelating duty. It denotes that thé
relative duty lies upon persons generally, and is not excluaively
incumbent upon a person or persons (leterriiinate. In other Il
words, it dénotes that thé right in question aM~a a~M~ thé
tc<M'Ma<&t~<e.
Accordingly, some rights w <'e~ are rigbts over ~<~
others are rights over ~M!< whiist othurs have KC subjects
(posons or things) over or t~ which we can say they exist, or
in which we can say they adhere.-For example Property in
a horse, property in a quantity of corn, or property iu, or a right
of way through a field, is a right w ~M over or tf a ~~y,
a right w ~Mt inhering in a </tM: or a right Mt MMt w!iereuf
the subject is a ~<Thé right of thé master, against third
parties, to his slave, servant, or apprentice, is a right in MM over
or to a jp<~MW. It is a right residing in one person, and inhering
in another person as its subject.–Thé right styled a monopoly,
is a right in )'ea~ which bas no subject. There is no spécifie
subject (person or thing) over or to which the right exista, or in
which the right inheres. Thé o~ctMm or common duty to which
the right corresponds, is a duty lying on thé worM at latge, to
forbear from selling commodities of a given description or class
but it is not a duty lying on the world at large, to forbear &oui
acts regarding determinately a specifically determined subject.
A man's right or interest in his reputation or good name, with
a multitude of rights which 1 am compelled to pass in silence,
would also be found, on analysis, to avail against thé world at
large, and yet to be wanting in persons and things which it were
possible to style t))eir subjects.
1 shall therefore distinguish rights w )'tm (their answerhig
relative duties being implied) with refereuce to dinerences be-
tween their subjects, or hetween thé aspects of the forbearances
which may be styled their objects. As distinguished with référ-
ence to those dinerences, tlioy will fall (as 1 have intinMted
already) into three classes.–1. Rights in Mm of which thé
subjects are things, or of which thé abjects are such forbearances
as determinately regard specifically determined things. 2. Rights
Mt yent of which the subjects are persons, or of which thé objects

are such forbearances as determinately regard specifically deter-


nnned persons. 3. Rights in rem without specifie subjects, or
of which thé objects are such forbearances as have no specifie
regard to specitic things or persons.
II. By différent rights in )'eMt over things or persons, thé
different persons in whom they respectivelyréside are empowered
to derive from their respective subjects different quantities of
uses or services. Or (changing the expression) the different
persons in whom they respectively reside, are empowered to use
or deat with their respeotivtt subjects ht <!iNefoh<: degrees or to
digèrent extents. Or (changing thé expression aga,m) ttMd!8br- i:

ent persons in whom they respectively reside, are empowered to


turn or apply their respective subjects to ends or purposes mole ]
or less numeroua.–Aud such différences obta.in betweeu Mck
rigttts, independentty of differences between their respective
durations, or thé respective quantities of time during which
they are calculated to last.
Of such diHerences between such rights, thé principal or
leading one is this.–1. By virtue of some of such rights, thé
eutitted persous, or thé persons m whom they reside, may use
or deal witti thé subjects of thé rights to an extent which is
incapable of exact circumscriptioB,although it is not unMmited.
Or (changing thé expression) thé entitled persous may apply
thé subjects to purposes, thé number and classes of which cannot
be dcnued precisely,although such purposes are uot unrestricted.
For exampte Thé proprietor or owner is empowered to tuni or
apply thé subject of his property or ownership, to uses or pur-
poses which are not absolutely uniimited, but which arc incapable
of exact circumscription with regard to class or number. The j
right of thé owner, in respect of thé purposes to which ho may J
turn t!~o subject, is only limited, generally and vaguely, by au
thé rights of ail other persons, and by aU thé duties (absolute
as well as relative) incumbent on himself. He may not use
his own so that he injure another, or so that hc violate a duty
(relative or absolute) to which ho himself is subject. But he
may tum or apply his own to every use or purpose which is
not iuconsistent wit!i that gênerai and vague restriction.-2.
By virtue of other of such rights thé entitled persons, or thé
persons in whom they réside, may lnerely use or deat with their
subjeets, to an oxtent exactly circumscribed (at least in one
direction). Or (changing thé expression) they may meroly tum
them to purposes denned in respect of number, or, at least, in
respect of class. For example: Ho who has a right of way 1

through !aud owned by another, may merely turn thé land to


purposes of a certain class, or to purposes of dctermined classes.
,1

He may cross it in thé iashions settled by thé graut or pncscrip-


tion, but those are the only purposes to which he may turn it
tawfuUy.
A right belonging to the first-mentioned kind, may be styled
<&mMM'<Mt, jp~<y, or oM'!Mt' with thé sense wherein ~<M)MMtOM
is opposed to ~fp:'<<M or e<MeM<:K<. As contradistinguistied to a
right belonging to thé Ërst-mentioned kind, a right belonging to
the last-mentioned kind may be noted by one on another of the
tast-mehtiôned namcs.–Z~mMuoM, ~'cpt! or ~)Mt< ? a
name liable to objection. For, first, it !nay import that the
right in question is a right of unmeasured duratiox, as well as
ind!eate thé indoSuite extent of thé purposes to which thé
entiticd person may tum the su~Lject. SecoutUy: It ofteu
signifies ~'ope~, witli thé meaning wheMin ~-<~f~y n distin-
guished from thé << <~ ~oss~~MOK to wiuch 1 shall advert
betow. Thii'dty .Z~wtt'M:, with one of its meanings, is exactly
coextensive with y!M m<t, and applies to ev~ry t'ight which
is not~M Mt~wHam.–For varions reasons whioh 1 shaïï pro-
ducG iu my lectures, a right belonging to thé last-mentioned
kind is not denoted adequately by thé '~?'<tM' of thé Homan,
or by thé casèrent of thé English law.–But in spite of thé
numerous ambiguities which encumber these several terms, 1
think them less iaeomModious than the newly devised names
by whieh it were possible to distinguish thé rights of thé two
kinds. For newly devised namcs, however sigtUMeaut aud
determinate, commouly need as frequent cxpl&uation as thé
ambiguous but established expressions which they were intended
to supptant. And newly devised names are opeu to a great
inconvenieuce from whieh established though atubiguous expias-
sions are completely exempt. They arc open to that undisceraing,
yet overwhetmhtg ridicule, which is poured upou innovations
in speecit by tite formidnHe coufedemcy of fools: who being
incapable of clear and discriminating appréhension, cannot per-
ceive thé difficulties whieh tite names were devised to obviatc,
though they know that their ears are tingliug with novel and
grating sounds.
With thé help of what I imvc prenused, 1 can now indicate
thé principal umtters which 1 shall pass in review at this point
of my Course.–1. 1 shall consider in a général manner such
distinctions between nghts </t <'t~ as are founded on dinerences
between the degrees wherein tlie entitled persons may use or
deal with thé subjects. 2. 1 shall consider particuhuly that
leading distinction of thé kind, which may Le tnarked wit)) thé
opposed expressions ~c'MMMWK t~ ~t/'i'i/iM, or ûM'<<c/< f</i~ c~<-
M!M< understanding the expression <~)<t!MM, or o~t«-.i/n~, as
indicating merely thé indefinite extent of thé purposes to which
thé eutitted person may turn thé subject of thé right. 3. 1
shah consider thé varions Mw~ of dominion or ownurship, and
shall advort to the varions <MM of servitude or ea~emeats.
4. AIthough t!tey are incapable of exact circumscription, thé
purposea to whiett tho owner may tnm thc snbject of his owner-
shtp, tu'~ Rot M~tttpt ffotu restrtcHuus. Thé ubiiqho tunmicr
wh~roin thé t't'strictioni! arc st't, 1 ahaM attcutpt to exphin au
ttttcutpt which will h'ad tue tu consider gfneraUy, the actuat
ttttd pufstbto tttodeit of </t;/Ktt'<t</ ri.i{hts aud duties, with tÎM
i~proaeh tu comptetcuMs :uid corrcctncss whereof thé proccss
admits.
111. Whethcr t!tHy be t-i~hts to spfeitic subj~ets, or rights
without such sut'jects nud witHtcvcr tje thc purpu~s t" which
ttie cutitled perdus mny turn thch' sut'jt'cts t'i~hts ~t M//f tire
distm~uhhaUu by dif)'et'ent;s )jctw~ti the quautities ot' time
dut'in~ which t!n'y arc catculated te )u.st.
As distii~uishaUc t'y din'erencc.t betweeti theit' respective
dumttons, t'i~hts </t nw will bu cuttsidercd i)t thc foMowiug
ot'dft-Hights i'M /<< <u'c ri~hts oi' unihnitcd, or rights of
!i)ttit';d dumtiou. Hvury ri};ht ut' un!itt)it~t dm'itti'jn, is at~u a
rt~ht ")' mmtbit.~m'fd dm-atiun t!tat i.s to sny, a rigttt fjf witich
thé duratiou is nut <-xa(;tty deiinGd. Hnt uf n~hts of lituited
dutftttott, some :n'c ti~)tts ut' utnueasurcd 'turatton, whitst othet'
are ri~hts <jf a duratiun exaetty d~tined or mmsured. For
cxatapk Ait c.<tatG in feu .simple, or property i)t a pcr.s"nat
chfttt~t, i.<! n right ot' uniinutcd, and thuretorc of mnnMtStu-ed
dumii'))). Au ('.statu fur )ii'e, is a ri~ht of un«teasured, but
Hnutcd duration. T)~ interest cn-atcd by :( kasu f'jr a ~in'n
mmtbt.-r uf ye:n'.<, i.-j a right ut' a dunttioa ~nitcd aud nn-asurud.
–Acc')t'din.~h', 1 shall distntgui-h rights f<f untnnitfd, front
ri~hts oi' Ihoitcd dumno)t and 1 shall distin~ui~h rights uf
linutcd, into ri~ht-i of unmeasurcd, and rights f~f tneasurcd
durât iou.
t~itt'~rcnf-c~ butw';e)t thu du~'t-n. wh'ci]) tiM Gutiticd persons
tnay ust; or dt'id with the su)'jcct.-i, aru rctated tu difK'rtjnœs
bctwc<;n t)~ 'hu'atiuns "f thc rt~hts. 'i')tc sevo-a] rciations
bctw<;cn thosc rcspo'tive dif~-r<;nM:s i shaU cndeavuur to cxptai)).
IV. Wtictht;r thuy be ri:))ts tu .«pûeific subj<;cts, or ri~hts
without sueh subj'j';t.s; w)mtcv(;r h~ th' porposcstttwhif'hthe
t-ntitttj't persun.s may turn thfir subjcct.s and w)tatuver bt; thé
quantitics 'f nmu dnrin~ whh;h th''y arf (:a!<:u)!tt(:d tu Jast;
ri~ht-; << )''w are di'itin~uishabjfj ).y thu t'fUowin~ ditturcnccs.
Of rights )M /«, s"me arc prest-nt or Y(.ted otin.'rs arc
future, conti)tt;<;nt,or tut-r~Iy i)t<i')at<V~.st.udt'mh~ e.'i.s~ntiath'
(tiffur t'rom ~nu another, a.-i Wt:tl as from ri~hts whieit are cou-
tin~nt. For in sf'me cases of Yf'stfd ri~ht.s, ttie party entiticd.
or thc patty in whout it rcsidcs, may cx~rcisu thé ri.~ht prtifiGntiy.
But in other cases of vestcd right, tho exercise ol' thé right is
preseatty suspotuled by thu pr~~i~nee <tf au tn~tMM- and preier-
abî~ right.–And whethcr a right le vested or conttuge<it,it
tnay lie liable to end, ou thé happening of a givcn event, heibre
the Ittpse of its possibk dumtton.
Upon thèse diÛM'mtCti- !md thc distinctions t'csnitu)~ f~ni
theso dif!freuce9, 1 shaU tuuctt bn~tïy iu this .sub-d(!p:mtm<nt:
po.stponin~ a tfu'ger exphmttti~n to that subsMtjuent point uf my
CouM~, at which. 1 shiUi c~usHkr thc trust-substtmH'jns tmd
cutaits of the .Homa!i und English Law.
V." 1 shttU considur thé various events front which ngJtts
<? t-fM nrise, with thc varions events by wtuch they are ex-
tit~tusttcd: l'Gsm'viti~.howcvet-, im exact accMtttt oi'~w~~<t'oM,
uutil 1 shaU hâve du!y anatyscd thé /A< fj/Mf-'M~M.
VI. If ott(; persou exercise n right r~.si'U!)~ iu a'Mthcr
pfrson, but without auth'jt-ity ûtjm thé luttct-, nnd without
fmthot-ity ftout tl~
thruugh whom thé tattet- is cntitifd, t)K'
ionutit' ac~uit-G.s, )<y his UHauthorised or «</<-<$< exurcisc, thé
fmomduus right which M stylcd th<i <-)'(< o/o~&sMit.
T)tis genGtfd description of thé t-ight ot' possession must,
however, be taken with thé foltowing Junitation.Thc pers'm
who posscsses ad\'ersc)y, M' who exurciscs thu rigilt of auothcr
withuut thu rc'piisitc authority, df'us not acquirn thcreby tiic
right ftf possession, in cas'; his adverse possession h~an t<, or
arose througit any of thé ttteans which i'aU withitt the name uf
Ct'O/OtM'.
Thé i~/<< f/~MM-MM~ must bc dtstinguished ft'om thé <<<

ffr thé )'


<MHMtM~, or (changinj.fthe piu'a.e) from t!te )'<y/;< ~M'M;
'j/Mf.Mt'/fy, or thé /'t~/<~ ~«<M<.M, is a propet'ty or
intégrant part of the <'<<< ~o.Mi~M itse!f, and atso of
nutnerous rights wliieh widdy difler from thé tatter. In other
words, thc right of possessing, considered gencraHy, may arise
irom any of varions tittes or causes but the peculiar ri~ht of
possessing which is styled the ri}.)t of possession, i.-i a rii;ht of
posscssing that arises exclusivety from the tact of an adverse
possession.
AIthough it ari~< fmm actual possession, thé ri~ht f~ /-<Mt
which is styled thé right <;f possession, tnust a!so be distinguished
fmm thé rights t~ M~ which arise frotn of;L'upation or occ-upaney.
Fot thé fact of possessing which is styted occupation or occu-

It i.t ih thé course of thu dt~'etojt- hreak o)! &'f LM-ture t.VUt, on't thc
xxnt <jf thi.s tit'th hca~ of thé .sub-d'p.ut. o)j~<;[v<ttMtts therc pia.).–ti. C.
)n<:nt hcM treattd of, that thf tM.-turt.-i
pancy, consista in the possession of a something that 13 t'M
?«?«& Bu~ tho fact of possessiug which givcs tho right of
possession, consists m thé adverse exercise, by thé person who
acquires thé ri~ht, of a right residing in another.
Consettuently, thé ioUowing description of thé right of
possession ha& all the exactnes;; which accords with extrême ]
brevity.–It is that right to possess (or to use or exorcise a
right) which springs from thé tact of an adverse possession not ]

begintung through violence. <

As against ail but the person whose right is oxercised


adversely, thé person who aequires the right of possession is
clothed with thé very right which lie affects to exercise. And
as against thé person whose right is exercised adversety, he may
acquire thé very right which he affects to exercise through thé
title, or mode of acquisition, styled ~o'~i'o~. Or (adopting
a current but inadequate phrase) thé right of possession ripens,
by prescription, iuto thé right of dominion or property.
y«~Thé right of possession iitrictty attd properly so cu))e<t, or the
right of p<MStMf!tt)M considett:d tts a <K&~aM<tt-< right, is a right that arises
exctusivety frotn the filet of an advera' po~fMion. But the tenn nyAt of
~oMf~'oM i!i o'~t unfrequ<!))t)yemptoycd with un extremely large eigoiHeation.
Takinf; tiM tcrm with this very extensive <nMniMK, thé riijht of possession
arises from an actuel poMfMiun, wh'ithcr thé aetu:d poMMMon be attveMe or
not. Fur example It is said that thé ~omt'HM in netuni posession, has «
right f'f pos~Miou which «nses ffom that ttetuat poMe~ion, and which is
comptetety indepen'tent nf his ri~ht of dominion. But (M I shall xhow in t
my lectures) thc right of poM<sMun cunsidered a3 a fM~axfiM right, is a
right that arises exduxh'ety front thc faet of an adv~'Me poMt~ion thé M
called right of poMessioh which ariMs fï'ont an aetuat posseMinn not adverse,
being <t ~rop~rty of <tMoi/t<)' right, or Lcing a)t M~araMt pa)'< </ NHof/M)' ny/t~.
For exnt))p!e It if abourd to a.cribe to thé ~eM)('«M in pOMeMio)), a right of
pos.MMion indepettdent of his right of dominion for if thf 'h))n'M)MaetuaUy
poMCM, it M M <~Mt)'M)M that he actually poMt-~ea. As 1 shall show in my
tectar); thé t<'mt r)~/t< <)~/<eM<~teM acquired thé large Mgninattion to whith
I have adverted above, in conscqnenct: of an f-xtensif'n of such ~o<'«M!or~
r<t)t<~t'< as in their origin were appropriât''to parties inve~ted with thé Hght
of poMession strictly and properly M called. Ti~se po.<«:sory remédies,
though originally appropriate to such parties, wcre aftenvatth extended to
any pos~esfOMwho had been wrongfu))ydisturbed in their aetuat posee~ion~.
In thé Rouan Law, for emntph',a certain t'Mftf~M'f (<;h).]y Matogous to an t
tx'tt'Mt <i/t;«'<HKM~) WM originatty appropriate to partie. itn'Mted with thé
right of po.Me.MiMi strictly and properly so called. Hnt it was extended to
the <f<tM)'Mtu who had !'een wrot)ght))yevicted from hi? act'Mtl posse.ion. '1

For by reMfting to an interdict grounded on his actuul po<MeMion, iniitcad


of resorting to an action grounded on hi.< right of dotninion,he avoided thé
inconvénient neeeMity of proving his riglit of donunion, and had tnercty to ~f

demonatrate hit actuat po:session at thé tinie of thé wrongfu! éviction just
as a party who ii! !.t:i.'ed or <-ntit)ed in fée, recovet". through un action of
ejectment, from an éjecter without title, by merely proviog his actuat
p<MMMhm at thé time of the wrongfut e}eetmeot. And <inee thé <!emMHM
fMowfe<t by th~ intefdiet, 6tt Ktctety p~vtt)!! Mt aeM«t pM'x'Miott, h~ ?.
eoveted, Mt a certain œnse, throngh his right of posiesiHonmerety. But yet
it were tb~urd t&aCt'm that ho hmt a~y M~ht ut ~<i«;M!M~ M)d<tpMtd<*)Hty
of hh right of dotnHuon or to liken thé n~ht of p'M.'eMit~ wbtch h purcel
or the right of JMuuuon, to thé aMbtittmth'e n);ht ff pM~Ming w)ti<;i< Grises
solely or exctmMvetyfront thé fnct of ttn adverix* poM~Miox.–Thé above-
ntMMtiu(te<t extension ~t' jMS!!t's'~t'y retnedit", ha!) rendered the right of
posiieMtoti one of the darkejtt ofthc topics whieh thé )!cie))ee ~fjm'ispt'udettee
présenta. But there is not intrimieatty any Kmarhabte dHneutty in thé
right of poMeMion which M strictly utid ptoperly fu cMtted that if to My,
which anifes sotety or exclusively from thé f«et of utt nd\'eri:e possession,
and which is the hMta of acquisition by «MCH~'oM, and oi' other acquisition
by ~<'<c)-ty<<oM.
At this point of my Course, 1 shall therefore proceed in thé
foUowing manner.
1 shall analyse the anomalous and perplexed right which
is styled the right of possession. Performing the analysis, 1

~'bM t~
shttU happily be ttbie to borrow from a eetebrated treatise by
entitled 2)M ~c/<< f~ ~M~ or De Jure Po~f~-
«OKM: of aH books upon law, thé most consummate and
tnasterly; and of all books which 1 pretend to know accurate!y,
thé least alloyed with error and itnperi'ection.
Having analyscd thé right of possession, 1 sliall turn to thé
title, or thé mode of acquisition, whcrein the right of possession
is a necessary ingrédient namely, «~«'f~ and other ~'a.M'Mp.
<t'(~t. 1 shaU consider generally the nature of thé title and
shall advert to thé respective peculiarities of thé Hmnan and
EngUsh Law, in regard to the terrns or conditions whereon thé
title is attowed.–If 1 find it possible or prudent to touch that
extensive subject, 1 shall proceed from title by pnescription to
thé connected subject of !'<M~'<!<iOM.
Rights in as existing ~<~ se, or as not
~K'MOtM~
combined with rights Mt MM.
Rights ~MMMMNt, including thé obligations which answer
to rights in ~)'MH</Nt, arise from faets or events of three distinct
natures namely, from tM)<)'«t' from gM~t-eûM~o! and from
dclicts,
The only rights in ~?'MKCM: whieh bclong to this sub-
department, are such as anse from contraets and quasi-contracts.
Such as arise from delicts, helong to thé second of the capital
departtnents under whieh 1 arrange or distribute the matter of
the Law of Things.
~'etf.–Perceiv!)~ that rit;hta ex ff~f~o were generally rights Oty<)'<t)M<tBt,
but not adverting to thé importance of marking their <f!!tc<t'cH)'))y charaeter,
thé cït)mM Roh)!t)t jtu'i<t: iu the!r {nstituttomi or clementary wrtthtg~
atNms~t them wtttt t'!i;ht9 t~ cMttmctM Mtd ~<«M M <:«M<n«;<tt.' wMt t'~ht~
whMt i~fo !t! t'<hti) My~-KHtftMt,but af not hottomptt, lîke n~ht. ex fMtefo,
in inMn!Ttcnt'! of other ri~hts. Au<t ht-iicM xmch uf the ob<etu'!ty whhh
itmig~ uvcr thu ImtitHtt.'ft uf <h';ir i)t)!ti)t"t, th'; Etu}'t'r'«.'Ju'-titUim.
Thé mitttor uf t!u.s suL-partnicnt wi!t Le trcatcd in t]ie
Mlowin~ ordcr.
1. 1 shall (te)iM or dftcnutHe thé :ncauin~s of certain !ead-
ing expres-~iona vix. l'mntisc l'oitieitatiou Convcuti'n or
Agi-cement Pact C'ontract (~uasi-Cotitraet.
II. Httvin~ 'kftMt'd themfaui))~ of those Icading cxpres-
siotM, 1 shall consider particutaHy tho unturo of ''M<«< I
shall distingnish coutract.s pwpct'Iy su called i'rMu certain facts
or fVftits whieh tire stytcd cotttracts, httt w!)ich virtuany are
nlieuations or cuuvcyances. 1 shall distritjuto contracts under
their varmus cta.sscs expoundin~ thé distinctions (with tnauy
other distinction.) betweett unilatéral and bUat~rat, prmcipal and
aeccssoty, nounnatë itnd htuominntc contracts. Kxpotmdit)~ ttns
last distinction, 1 shaU show wltat is !Hf:mt hy thé ''ASfKcf, and
what by thtj a<v;Wc/<~ of a ccntract. 1 s!taH notice thc suictu-
nities or ibnuatitiM which are essentiat to thc vatidity of certain
contracts aud, thereupon, I shalt analyse thé ?'(f<M«:/t' ot' thc
doctrine of c««.;iWt/'<f<<M<.i). I''inal!y, 1 shall tt'rn to thé (.t-nt.'s
whereon, ur to tlle tHodes wherein, tlie ri~hts and oUigations
arisi))~ froru contracts, csase or are extin~ui.shed.
111. Front contracts, 1 shfd! procMed tu ~«~-<-t'M</)'f«- that
is to say, facts or ovent:! winch arc ncither coutracti; uor delicts
but which, inasmuch as they cngender ri~hts u< ~<.i'M)<«« aud
oMigations, ttre, in that respect, M/iM/o~M t" contracts. 1 shaH
notice thé fréquent confusion of merely quasi-contracts with con-
tracts which propcrty are such, althf'u.th they are tacit or intp!ied.
1 shaH show t))at qnasi-eontraet. are anaio~ous to thc faneied
contracts from whieh sp~culators on ~overmnent hâve derived
thé duties of thé govemcd and 1 sliall show thé causes ot' thé
tendcney to imagine or fei~n contracts, for thé purpose of ex-
plainin~ thé ori~in of duties w!ticti ematiat'j inon othcr sources.
1 sha)l advert to! the classes of quasi-contracts and to thé events
whereo!), or thé modes wherein, thé ri~hts and oUigationswhich
they gcnerate, cease or are extiuguis)ted.
Such of tite <'6M(&«)«<t'c/<~of rights Ht tYM and rights
itt ~<:)'M<()/t as are particular and comparativety
simple.
Though ~M M t'fM, ot'y<M Mt ~~OK«M, may exist separatcly,
or uncombmcd with thc ot!ter, both iuay vest «Mf ««' iu one
and th<t Mmtf party: <~ (c)(atH!n ~hf <'x)HfssMM) au ttv'mt
which mveats a party with M ri~ht </< t'<< '-tf <« ~<?'.«'M«i'M, «)ay
invst thc satue pnrty with a ri~ht M ~<?'.wy<MM "r <'< r<7~. As
exmupte'} of such events, t moy mMtHou tttM M~wi~ MtHMcIy,
a eottveyauee with a covcnftut f'-n' tttiu l6 /«//?</«''« ur )uwt~tt~e,
(iX))i'Ms or tacit ft sak cotn~Iet-ed by d~livury, with a wananty,
express or tacit, for title or scmtdness. ~nd, as ï shaU s)tuw iu
my lectures, niimy a titct or cY'cat whidt i~ stykd simply n <n-
tttK't, is prop~rty H cuutptex cvut cotupoundcd of a cfjuvcynnce
and a contract, ttud iinpat'tit~ !'?t'~ ~<<« a ri~ht M MM and ~(
~<')'<0!i<<).
Such of thu eotnbinationsoi'ri~hts i'M )'~M and '</t ~fM!«M
as are partieular and touiparativetysimple, are thé tnatter uf this
sub-departUMttt. W)tat 1 Htmu by their ~«)-/K'Af< or mther
ti~ir ~<~i</«~ eotnbination. as di.sth~uishMt fr~m t)te !<M<'i'()~
a~'egates which are thc tnatter ~f t))'- uext sutt-departnieut,
would scarc-ely admit (<f t/xphmittMU within ttie thnits of au 'jut-
tine. ïh wdbi' m au expitmatifu of my meaninK, i inu~t cxplaiti
thé distinction Letweot sin~uhu' aud uuiver.<<tl .-iucces<(~rs, «r suc-
ces.'<ion /'<(' s:M.«/ and succession ~fi' MM~ ~<7f<~</< ncariy thé
must pcrptexcd of thc ntany intricatf ktn'ts with witie!) thc
sc~ucc fjf )a.w tt-ies the p~ti~cf 'jf its stud~ut.

Such«M''t'e?'~<<.«jf ri~hts and dutiu.'i('uc)t coni-


pkx a~M-nates of rights an<) dutie~ as arise by
univtit'sut sueecssi'n.
Thc matter ui' this sub-dt-partuiL'nt will bc treated in thc
M)"wi))K 'jrdcr.
I. Titc comph'x n~re~atfii of }'<< and ~)~<'<.<, whieh (;~n)-
nMn!y arc !):uucd by modern Civiiiaus,'u))i\'cr.<itatf.s~M,' will
be distin~ti.shed from thé a~rc~atcs or eot!t.'L-ti")tsuf //< «t~, whtL'h
cot)t)Mon]y are nnmed t'y thn ~autt; Civitian~. tnnvt.-r.-itates.<«<
sivu ~'<c<t.They will a!so bc disti)~uisht:d fr"ta thf- eomplex
and fictitious ~«-<M (m- the t:o!!cctivc budic.-i of individua! <a'
p!)ysi(;al pursona~, whieh arc nanMd by thé Jtoman LitwyeM,
KMH'f!'&<7t<<! or <'<<~M, n:td by thc Kn~hsh Lawyf). t.<«~i.!
~-t-~(<<Thé u))ivt;rsiti'~s of ri~hts and duti~ whieh are thc
tttattfr "f this su)j.departjnent, will at!«.' be distin~uished fron)
~M or conditions. For thf a~gr~.ttM of ri~hts aud dutx;
capacities and incapacitics, which arc stytcd .<~M or eMtditioHs,
arc, for thé tnost part,y«)'M KM!r<M!<
IL Since aU thé universities of )-i"hts and dutit:.s, whieh arc
the matter of this sHMepartmcnt, ar!sa by ~niveraal succession,
thé distinction betweea siuguhr and ùnîvwsal wccesso~, or
succession rei M'K~M/w aud succession ~o' M~fM'M'~m, wi]I be
stated and exphuned. As t have already remarked, that knotty
distinction wouU scarcely admit of exptanatiun wit!nn thé limits
of an outline, But thé following examptea Ut~y suggest to tho
reHecting reader, thé chameter of suecessors t(M<MM!'M<;M,
witti thé nature of tho «Mttw~<<M to which such successors
succeed.–Tite executor or admhustmtorof a te~tator or intestate,
with thé gonemt assignée of a bankrupt or insolvent, are universul
successors. And, iu respect of specialty debts due fMM the
ancestor 01' devisor, thé heir or devisee, gênera! or particular,
succceds ~t?' )<M~'<'M:7<!<<;M.–Tite aggregato of rights aud obtiga-
tious w!ue)i devolves from thé testator or intestate to thé exécuter
or administrator, with that whieh passes from thé bankrupt or
insolvent to thé général assignée of his estato and effects, are
universities of rights and duties. And sincc «// thé obligations
of a given class, which were due from thé ancestor or deviser,
attach ai OHM upon thé heir or devisec, that mass of obligationa
fulls within thé notion ofa~<~M ~MtM~<f<
foi' every~<?'M <fKMM'<fM bears one or both of thé following
characters. Fh-st Where a MKti'<TM'<<MywMarises by universal
succession, rights residing in, or obligations incumbent upon, a
person or persons, pass «Kc «'~M to another persun or persons,
and paas <M ~'Mt!'c and not ~T <~<'c!tM. In other words, they
pass or devolve f<< o/:<;f or ~f/Af)', and they pass or devo!ve as
belonging to their ~'tKf~ or and not as determinett by their
.!pcc<<' or tM~t!;iW<M<natures. Second!y Wimtever be its origin,
a xK!<<a y«)'M, so far as it consists of rights, is of itself (or
considered as abstracted from its component partieuJars), thé
subject of a right in <-<'?. The party invested with a «K~w~'<M
y«?'M, bas a right in thé aggregate availing against thé world at
large, even though ail thé rights which are constituent éléments
of thé aggregate, be merely rights <'M ~cMMMM,or avaiting against
persons determinate.–1 shaU show in my lectures, that every
~<<)M or condition which is not purely bnrthensome, bears thé
last of thèse marks, and therefore is ~«-M «Kt~j'o' 1 shaU
also explain in my lectures, why thé right )'<M over a y«<'M
<~MMM!'<fM (considered as abstracted from its component partieu-
!ars) stands out conspicuous!y in thé Roman Law, and is far
less obvions in thé Engtish.
Thé legatee of a specifie thing, the aliénée of a specifie
thing by transfer t!t<<:r ~t't'os, or thé assignée of a given bond
or other contmct, ara stK~M/ar successors, or sueeessom
MK~K~
HI. From t!;o generic uatut'e of «~tM~<ft<M ~'K! <md thé
peculinr nature of such of them as arise by universa! succession,
t shaH proceed to sttch of thèse last as are thé matter of this
su~department. Now «Mtt'c~<«<M y~~ which devoh'e to
universal successors, and which are thé matter of this sub-
department, are of two Mnds: 1. ~«t-<'M~«~yKn'<! devoh'ing
ftom thé (/<!<K~ as such 2. MtMW~<<«<(~ ~M~ ()evo!vtH~ from
thé ~'MK~, or devolving from thé dead, but not from thé dead as
such. And those two kinds 1 shall consider in that order.
Universal successors succeeding to thé dead as such, take f<&
<K<M<a<o or M' <M~Mw<<o. Accordingty, 1 shall explain universal
succession f<& !'K<c.!<<t/c, and uoiv<rs:d suceessiou ex ~amc~f.
And to exemplify my explanation of thé distinction, 1 shall
compare thé characters of thé Roman /<
/<<<Nt!M, of thé
English a<<Mi:'?tM<~M' and M&~ o/' A-i'M, and of thé English /«t!
of thé Eotnan A<f.s <<am<'K~«~M~, of thé Engiish M<'c!<<or and
t'e~MOtt'~ /~<<<;e, and of thé Engtish </<:pMce général or particaia)'.

A'o<<By thé English ]awytM, fM< rights (property in thi!Jf.< real, or


t'<*a! property) are dii-tinguished from ~t)-j<M)«< ri~hts (property in thin~
ye!-<Mtf<<, or ~MOM<!< prop~rty). ThMe two ct:t.Me9 of rii;hta Ltcn't at M
many points, that thé diMerence between thon cannnt he deStriLed correctty
in ~neriK a)nt cuneife exprei'siuui!. A correct ttûscription t)f t): ttif!re'nc<;
between thé two da.MM of ri~i)t' wouM involve a t~tupttM def-cription of
thé e~'eMt or Mrioui! rights whicit bctong to those (;!as~.< K'specth-f-)y. Of
thé generic and concise descriptions whictt thé diOeroMe in quMtiott will
take, thé foHowing, 1 inc!it)<! to beneve, is thé Jeitst Ktnote ft-oni thé truth.
Reat t'ights (property in thing:! rea), or rea! property) are rights which are
tn/«n<«Me.' which (w)teK' they are tm)Mtni!<iUc to reprcseatative~) devoh'e
no tM~«<o to /«(')-<. PeMooul n~ht-'i (property in thinga pcrfonat, or per-
<ona! property) are nghts whieh are Mot tH7ttf)'<((th.' which (where they are
transtmssibtc to repretentatives) devoh'e ab <!t<<~a<<) to (<(!mMM<)'o<oM (or
MM< of Mx). Thé difterence, therefore, between rea! and pt~onat rights,
mainty consists in this. According to the English law, succeMiott n~
t)t<<~<!<o i4 of two deMt'iptiuns namcly, succession by ~M (strictly and
technicatty M ea)ted), and suece~ion by o<!mt'M~<M!to)'.< (or HM< <~ /;m).
Rights devo!in}{ a& )'))<M<a(o to sueceMors of thé fermer deecriptiott, are
!'<«< rights devoh'ing ;<& to suecessors of the latter description,
t)!<<~(a<o
are pfMMta~It wcre eMy to demoMtratf, that thé divieMn of rights into
fM< and p<)-~ta< (or thé division of property into t-f«< and ~ttwM<) does
not qnadrate with thé division of thittg. into thi))~s oxt'Mt'MMeand thinjM
tM<M;<at~<: It wcre also easy to denmnstMte, that it does not quattrate with
o
the division of thin~ into thing~ tf/t<~ <t)'< «f~t! t<nK)'< and thin~
«-AM/t <t)-<: )tof. As 1 have renMr!<ed atready, thé diviMon of property into
r«<< and ~M0))«f, is not susceptible of précise generic description. He
who woutd know precifiety thc meanin)! of thé division ia <tUMtion, mu'-t
ntaster aU thé detaib whieh each of its compartments embrace$. Or
(chsng!ng' the expre~ion)the vtu'iuus 'tetïtik whM) cahh "f iheompiuttnnit.
cmb!<ce!t,<t«'nutcf')tne<:tëdby!K'ntntnoneharnet<')'or property.tmt form
il h<tp, mÈtH~Uy !hcnthtito, "f
itctt-n'~t-ucuHtt p)iHn:M!<M-.<Tht-i m-t!ttt':)'.<
<t!.<tnn-ttun )x'tWM')t ntt) m') ;'<*t'j'M);tt pt~pffty, whi'h ia tn'«r)y thc !aT).!e"t
ut' thc 'ti"tin':ti'w< that t)M Lnv of Hu~taud cf~ntain", i;! 0))<; priJifit: fuMt'ct'
~t' thé Utuividkd tMtncmy ut' ttui ny.~tct)), <tt«t 'tf it:t ttMttotth'iit t-uuftMo))
amt obscnrity. T" thc tAscnee nf t)ti'! <)i<ti)n;tioit (it c:)U"<' "f cutn~tcxttc'-s,
'ti~rdet', au') dat'ktK. whict) mm~ht );ut thc cxth'pitti")t ut' thf <ti!.ti)t<:tiuu
< au tht'rou~hty cur'-), thf ~t'Mttt-r cump.tetttt.-s'i uf th' Hoomn .y~m, with
it-! ~tf:!(tff "ytttntutn' :w) <;)MH')t'<, itr~ muinh- hu;)tttMb)u. ThMc i' not,
))t'tf<;<), itt ttM Huma!i juri~rudcnct:, tlie br'ity umt hat'ttiuuy uf )mrûi,
witft thé cuuN.~ucnt hn;h)ity tmd cft'tttiuty, which are M.~cntiat tu u f-Vt-t'-Hi
<jf htw th:tt WGt'M wurthy of th'; i)r'~titut<l muttt- n ."ystfm of )aw that
wcrM tmty a ~ni~t: ui' comhn:t, «tut xot a -naff iu thé way «f thé )):u'ti<;f
tjuun') tu obset-vu it') ~tvi~i~h- But, thi< )totwith)!tan')it)~, the Hutxau
Law (toain)y <h)'ot)~h thc ab'-encc of th'; <ti'-ti)t<'ti'~)t bt'Hv'-<')t n-at nm)
pcM~tiat ;)t'uperty) i.') it~otty atid ptdpabty .<u~<;t'i')r. cun.sidt-red a-i a tty.itttu
ot' whu! tu thé Law ~t' Knn):mJ. TMrnin~ h'~n thé .'ttnty of thc Et)~)).<h
to th'; ."ttu)y of thc Munta)t J.:tw, ynu escape tr'~o thf f)))['h'c of chao< au't
()arktiL"<, tu a wurtd whi';)t .~etuii bv t'umpan.i'.tn, thé M~ion ut' Mtter aud
ti~ht.
Titë tli.-tim.ti'.m uf thé Ht~ti.-h tawyt't~, Lt-:wn-n }-Ht< ao't ~f~Ka' rit:ht'
i< p)-utia)- tu thf .y'.tcttH of positive )aw whi<:h ar~ )nait)h' bottoncd in
t'ctt'Mit~titmiot~. A.<t!n'L-tate~a)t'('a(ty, ttn-M )~t in th'' R")nan
f.aw th<- faitttMt trace of it. A'or')i)<g t" t)~' H'~man Law, n~ht'i dcv'h'e
<t~ <'«;<-<«<« M~ea~ty tu o unif~t'm funt fotu-t'cnt -ch'')u' It i.< true that
ri~:ht< !H' t)i'ti))~ui.<hf) )jy tau~t ';t' thc MoJfttt Ch'itiaxs, htt') ~t<)'<t )va!m
Mnd~M)'«/o'«")a~«; «))'tth!tt t)m '(i~inctioti ot )'i~ht< intujK'ït t'm~tft «nd
~'Kn< ~«'t'fft'o, "))tai)t'i incvery .y.tou uf pKrtt'uhu' au't positive taw, which
is an uthct ur derivativc ut' thc K'~tUim. Hut thc t)i.<ti)tctiun ot' ttie motk-m
L'h'itiani-, bcm't'cnJ<t )-['«?< an't ~')ti'f< ~t)'0f«t~«, i." c~tth'a!ent t'~ th<:
'H'-tit~ttutt, )tMn)c )<y thc NttfM Civitian. bctM'ccn J«)'« t'M f'(M nud Jfi'ft ut
~'t<««M; and it i~a)'-on)uh'a)'-t<ttu t)tc dMtihcti~n,ttta'tc Ly thc Hutnatt
Jjwyct'9, betWc'-tt <~)iti'MM< (M'it!) t))c )a)-ct' «K-attit~ ")' thc tcrtn; aUtt
«Mt'f<<t'<~tA ~<«< rt~ht~- .'in th~ )-cn<c of thc Kn~ti.'h J~awyct-') '.ompri.')-
t'i~ht." whieh at'c ~t'~it«; ~< wct) a'! ] i~'hts which urc rca~ (in thé "n.sc bf
thc tmxtct-h (,'i\-i)iax.~ MtJ ~t~')«;f< ri~hta (in thc .u.-c ut thc f"t'ttK-t')
C!;nipt'i*<: ri,;ht< whicff att:)' a'! Wc)) a.< ri~ht~- which arc ~<'<'j)«<~ (in thc
fc)). ut' thc htttc)' Th<:()!tfcrcn''<: hctM'ccn ;«< an') ~tM'!)!«i t-i};ht.< ~M thc
tcnn.' !H'<- un(tct.<tuu't hy thf ttxntcrn CiYi)i!t<t.~ ii) c-sentia) or nt-cc.ary.
tt i-n)).< throt~h th': E))'j)h)t Law,just a- it pct-vadcsthc ]<"hM)t: atthott~h
tt i< oL-cm'f-') m thc EM~H.'h, Ly thc txuttitu'h: "f want'jtt 'ti-tiuctiun'i
wtuch ttarkcu an') 'tct~m thc '-y.tctn. But thc 'Httcr'-nc': ))ctw;cn ftu<
Lri~ un'h.'r.-t') hythc Hu~)i.-h Lawvt'ra)
a)t<)~t~K<t<ri~))t<(a.th<tcr)n-:ar''
i" purcty a':<;i')cnta).
An't .iMc thi.< ttifr~Mtce is purc)y Kt'ch~nta), it i'' nut inv'twt by
KOtcl-id jtu-Hpnutcncc ~]n-t-:d JMt-i.-pnt'tcncc, or ti)'; phit'K'~phy of
f.)t-
po.-Hive taw, i.~ conccrmd with pt-incipic-t and di.'tinctioni! whith arc
c.'sctttiat or ne~ry. A~c"r~])t~]y, 1 .-ha)) ton';)) )tp"t< t))c ~if)ch-ncc in a
m''rc)y i)tei<)cnta) ntunncr,Mm) tncrcty t" Htu.-tntt'- pritr'ip!cs au't ']i.-i!iuctiun.<
which thc scfjjM "t'~OK-r.djuri.pru'tcncc pr"pe!-)y t-tnbMCt-f.
Succussion to thé subjcct of a .~(')/t'c, or other ~~«.'<~«'
tcgacy, is succession f<t ~t'H~/<t' and it theretort! bctougs lo~icaHy
to eue or anothor of thé tht'ee fot'egoing sub-dcpprtHteats. But
smee auch succession, ttithou~h it Le singttiar, < succession <'x-
<M<<tMMt<«, it cou!d uot b(t cotMidet'ed, under any of tttose sub-
departtueut.?,without an inconvénient anticipation of thé doctrine
of testaments. Aceordin~ty, suceessioM to thé suliject of a
specifie, or other pttrtieuhtr !egacy, wiM Le eonsidered at t)ns
point of tins sub-departmeut.–Fora .suuihu' rhason, thé c?<<«;7-
and ~'iM~K~t<t~t'<'M of thé Kn~tish aud Roonu !:tW, wi!) be
post{~o)ted to thé santé ~int. Aecofti)~ to th~ ]<otn~H htw, tttM
persou w)to takM virtuatly by a trust-substitution, is iitways. in
effeet, ~icK'~oy' ~<<~<7'M.' but thé ~Mt/cc< of a trust-substitution
is either n y«<'t.<! «Mtvo't7<M or a M-t M'/<~«/«. AeeottHng to thé
same systctn, tivery trust-substitution is created by tGstatnentary
disposition. Attd, accorfUn~ to thc Law or Enginnd, an entait
is created by testament or will, as well n< by act </f~<' yo'o~. 1
therctbre shaiï fixd it expédient to postpone substitutions aud
entaits, nntil J shaH I]ave passed in review thé nature of aytn'M
«K<MT.!i'<fM,and of succession, unive~al and sin~ular, &<; ~«/«!
/< H~MMec~, and undo' th'' eartier EMpfrors, evet'y dis-
position suspendin~ thé vestinn of its subject, and attuo.st every
disposition restrainin~ ttte power of' aliénation, was prohibited
by thé Hotnan Law :u)d sueh dispositions of thé kind as it
aftcrwards allowed, were created exc!usivc!y by testament or
codi' and in thé eh'cuitous and absurd manner uf a ~</)/<-
)/«'w«M. Con.uquenUy, ns succession M' ~<<H<tM~ witt tead nte
to entai!s, so will entait. comtHet me to thé nature «f ~'<f.~
titat i.s to say, tu thé nature of trusts in ~'m'ra!, as we!I as tu
the~/«/ti'-f<~<;M«Kf< which arc pecutiar to thé Ifoman Law, and to
thé uses and trusts (an offset of those j'Mtt-<'oMM<&y<)which are
pecunar to the Law of Kn~and.
Havin~ treated of universal suceessors succeedin~ to the
<A'M/ as sueh, 1 shall treat of universai sm'cessors sueceedin~ tu
tho ~< «r suceeedin~ to thé dead, Lut not to thé (letit as
suc]). And treatin~ f't' universat suceessors of tit"se ~neric
chamcters, 1 shall consider partieuhu'ty t)~' sueee-ion
«K!M~-('<f~<Mt ~Y)tich obtains in cases of ~M'j/i'~fy and of thc
conséquent cM~t'e ~H<<M.
A't.<c.–In this !!ub-d<-ptu-t)))ent f.f thé Latv ut' T)ti)),;=, 1 .haU cftn.idc-
uxh'Mt's.d !Su'c<)un!M it '<btain'<~)'<n;My. Jn f<th(:rwf<nb,1 ~ta)! co)t!-i')(-r
H))i\'(;r"at succt'.Mt")) a)<:<t<t':t<jd h~tn pcrson-, iu .-c iar as ptra.'n. :trf: iuve-itcd
with etatit-q
witli t'onditiu)).
(tf eüliditi~)IIg.
~<«<M.! tir
In eothe ei~e! "f uuit'cfid succM-~i~)), th<- Mecc~wn i.< thé Mos~u~hce
ofcct'titiu <h<<tu <r conditions, <'r M])))f<sei' tlie ~rc-t-xi!.tt-n''<;uf'rtain ~a<s
or cooditions Ht~) in f'ther <-)Mc.< of uxivcMa) eu<;<:(-shj)), e'-ttah) jmtties
tire investetl With conditions, in conséquente of the saece.tftion itw~ At)
~xamptee ôfutMverMtt MecemoM, thé eftect or cause of eonditioht, ï tKtdttef
thé M!owin~ easeit from thé Ronum and Ën~Mh Law ti~nety, UtUvettat
«uece&don, ab ttt<<!<<<t<eor M: <«<<MMM<«,to thé t'ighta tHMt oMijpttioM!* of a
/T«~m«M.' tmivermt succeMion, by thé adopting futher, to thé rights and
oMigatiùM uf au Htra~<<<'<< Ma tuuvermt tiuccesMon, by tha geneMt
assignées or trustées, to the rigbts and oM)~(tio))!) of ait tn'Mh'fnt <a~.
For t)tt-ou~' a distinction built on a't CMential diffMrcMce, but carried to
nMtUfsft tenj~h and breediug nMMUess comptexneM, the hw of En~taud,
a)Kt of othor modern nations, severs the insolvency of tmdeM front othtr
insolvency, and rnuke:) it the subject of a pceutiar syst(:m of rules.
New where univeMid succession h the eff~t or cause of conditions, it
ou~tt to be exc!ud<i(t from thé Law of Thin~, and truated with thé con-
ditions from which it etnanatM, or of which it is thé fountain or iipring.
But in spito of that exclusion, thé consideration of thé univeMat auc-
cession whieh is matter for thé Lttw of Thit)gs, itivolves large anticipations
from thé Law of Persons. For exampte Succession «4 t'M<M<M<ocannot be
expiained compktely, without an exptanation of consanguinity, or of cog-
nation (~)m f«<t'<M'<) whitat coneansuittity cannot bt; exptained compietety,
without a targe anticipation from thé law of marrittj.{< or a lonj} référence
forward to thé <<«<«< of husband and wife. Wearini; thé pfcuUar fomi
which it takes in thé Roman I~aw, succe.'i.Mon ab t'!)<«(t)<" eannot be exp!ained
completely, without an exp!anation of cognation (~MM ~(t'orf), of thé
relation styled it~ation, and also of that cognatiun whieh u contradistin-
Sui.Aed to agnation, and which therefore diirers front eognation (in thé
iarger meaning of the term). But Hnce thé relation styled agnation results
from thé patria poff~M, the considération of thé Hotnan itucces.'iion at
tM<<t<o<o, involves a double référence to thé Law of PeMons namety, a
référence to thé ~a<M or conditions of ~xf<f)- et /Mt'M /<tnt<<)'M, ai) well as to
thé ~<t<<M or conditions of ttusband and wife.
As 1 sltall show in my lectures, that portion of the Law of Things
which is concerned wittt univer~at succession, is more impticated than any
other with thé Law of Persons or Statua. If, indeed, it were cto~ty
anatysed, tlie wtK.te of titat portion of thé Law of Things might he found to
consist of matter beion~inx to~cally to the Law of Persons, but interpolated
in thé Law of Things, for thé saké of comtnndious exposition.
As 1 treat of universat succeMion to intestates, testatoM, and inaolvents,
another implication of thé parts of my subject will compel me to draw
ttpon thé second of those two capital departments under which 1 arrange
or distribute thé matter of thé Law of Things. For rights and obtigations
arising from delicts devolve or pass, in company with others, to thé universat
succeMors, or gf:"erat représentatives, of intestates, testators, and insolvents.

~MC~'OK!'?~ JB~/t~, <M'<A MUC~'MH~ Z)«~'M ()'t/<!<(t'C f<Kfj! N&M<M~)


J~~M~S or .~i/t<n'< (icAM/t «M <'f<«~t~ M' «M~n~K~ of ~<K('<M?t-
ing ~A~ and </K<t<'&) tKC/!«M.
This is thé second of thé capital depMtments under which
1 arrange or distribute thé matter of thé Law of Things.
liefore 1 proceed to thé sub-departments under which 1
distribute thé subjects of this second capital department, 1 shall
distinguish delicts into civil Mt/K)'M and cnM~ or (what is thé
same pMcesa stated m dinerent expressions) 1 sha!I distinguis!t
therigMsouddutî~wMchKreeSectaof ctMY<Mi<;ts,frMM thé
duties, and other conséquences, which are effects of cttNtt'Ka~.
Having expounded thé nature of thé distinction between
civil and. onnuaal delicts, 1 shall distribute thé sub)eets of
thia second capital department. under twosub.departments.–
1. Rights and duties arising from civil ~t/'<{n't& 2. Duties, and
other consequences, arisittg from eWMtta.

JUghts and duties arismg from c:M7 :<M'M.


The matter of this sub-department will be treated in thé
following order.
L Civil injuries will be classed and described with refer-
ence to thé rights and duties whereof they are respectively
infringements.
II. Hights arising from civil delicts are genernlly hghts
~t ~r~KHM! that is to say, rights availing against persons
certain, or rigitts answering to duties incumbent on determinate
persons.
T)te rights arising from civil delicts, including thé relative
duties answering to those rights, 1 distribute under two depart-
ments each of which two departments iinmediately severs into
various sub-departments.
Ttte division of those into those two departments,
rests upon a principle of division which may be stated thus
namely, thé difterence between thé natures of thé rights and
duties whereof civil delicts are respectively infrittgonents.
Aceordingly, rights arising from civil delicts whieh are infringe-
ments of rights )'eM, are the subjects of thé first department.
Hights arising from civil delicts whieh are infring~ments of
rights tM ~<:?-~(M!K)~, are the subjects of the second department.
Thé varions sub-departmcnts into which those two depart-
ments inunediately sever, rest upon a principle of division
which may be stated thus namely, thé respective differ-
cnces between thé immédiate purposes which thé rights and
duties arising from civil delicts are respective!y calculated to
accomplis!).
A'eff.–In thé tanguage of thé Roman Ltw, thé term <~<x- as applied

Rlul arc
fmd not co)<))nM)!y lit
to civil iti}ttrtt:.<, ij cùttUMû!t!y HtuitcJ te civil utjurie.'i which arc ini'ringe-
ments uf rights t')t y<Mt. Violations of rights t)t ~MMmm, or breachc~ <.tf
contracti! and quasi-contractt,ntc not co))t)H't)Iy sty)~ ~t'<'< ~r tMjxft'af,
are iicit COIIIIIIOIII)'c'Mtsi))fret! asa aliectilizir
peculiur or aPIJruprintl!
apprupriatu 'tf~artMent.
In thc Institutes of Gaïua, as weti M in tho~e of Ju~tmian, they are con-
.lel'artmcnt.
sMcrett wKh tontmeta tm<t qttaot-contMtcM, N' w!th thé p~Mttfy H~hta
ji«!<'Mt)htMttttwhMhdMy<u~utft'iat!f)ttttttb.
lu fh'- fang'tt~' "f < K"th t~nt' (hcfe mitMitf-'tty boot~'itig th"
hu~ut~t; uf the Huttiatt), tht: tt:rm '<<<:< fo faï m th<: tft'ttt i< t)M~oy<d
t'y HttMtt'')' Lttwyt-r.") wat.<u thnitf't tuMivil ihjMrifs whi<h. arc hthitt~fttt'int)
ofri~hti't'MrnM. HMtnc'ti'iitt'yttctiut) at\- n"t ut'f~'quf-ntty tti.~tiu~ui'.hMtt
iatu tt<:tiuu.< M A'<fe~ im.t netion.-i M <«ff«c;K. Thtt htmer i(t' t'<'nM<ti'd ut'
!njuric< w))i';)t iU'f inft'iu~nn'ntsof fi,,ttt.< <« ft-xt thé tattt;r ttK rctuediat of
brt.'uchfi <f <htM<;t' :tm) ut' Ltt'aehc~ ~t' 'jua.st-cotttn'ct'). Sm;h, at )t'Mt, i.<
thé tMtMn; of th(i di~tiuction tH <:oM<:civf4att~ stattid ~fuernUy. Th<i VtttMU')
'/):Ma. uf :tiut)< ))iH'inn )~u jnm'h (;o!)f~un<)';<), t)~' fur')))~ ~nfMt state-
nn:nt ut' thf nittur'' "r fu<t'w«~t uf UtM Ji-.tmcUu)), )'nt"t LM tf~n with
tnttu'-t'uus ~na)iti':ntiun<. Fm' t-xmn~h-: l)i <Y~<, ).tneUy .-u cuttu), t)t~
~y, au') tht' ~'unn-t ut' thé
i;MUt:t':t) i~uc ).i M'~ M<;ti"t) )!) propt'rty M fo~
that i< tu i.;ty, thé );rmm't i$ p~~jo-ly a <~<'c< (i)t thé nfUTowcr
uf th'- iH;tiuu
tii~niti<;ati"tt ut' th': h-t'))) t" which 1 hâve îtow adverted). But, thi.< not-
with.<t!UKtin~, th<; actiutt i'i f)'e<tuent)y brou~ht f'u hreaches of contratt-,
tm't ou )jtf:n'ht"' «f <;tmsi-e~ntr:n;t.<TttM <art(ne)tt uf thc I'!tt{;ti.<h Law
whidt rctittL-s tu n~ht-'i «f actiott, i.<! sigoaUy irnpre.~cd with thé di.~mchfu)
chiu~cter of thf ~<t<;)n n:tnn;ty, a want uf Lt~ad tUt't prM';ij;'i pnuciptM
aud '~f )a~ '-h-ar, aud cotnpicnuu') di~titK-t)~)~.
lu thc )a)~ttMt; of t)tK Mutuan Law, th<: t<-tm (Mt'cf ha." anothcr and a
Inl"I'nmattitt~
larg~r lJcÎllg
II1callill;)j<:inn co.cxtcnsive
co.extl!usive witft thetenu
with tttc tCrltl <'<«fj/, audsit;uifyh)}!
tR~iir~, tttttl 8i~l1if}'illg
«My vi"t«ti"tt et' ««~ ti~ht CE Uttty. Thi~ i< thé Mtefunn~ with which
1 <;))t[))'y thé tcrm, untf.~ 1 ouptuy H cxpt'cMity with it.< nat't~Wt:t
i't~uiticatiun.
Aj.trecaHy to thc principics of division which 1 ])ave stated
or su~<tcd abovf, thf t-i~ht.s arisin~ f't'otn civil delicts, including
thc t~tativf dutim answcrit)~ to those rights, wiH t'e di.stributed
uudGt- tifu two depat't)tK')tt.s, nud thé van'jus sub-duparttncnts,
whieh aru skctchcd 'jr indicatud betow.
1. Hi.t;hts iUtsi)~ frofn civil dcticts \vhieh nre infnnKentpnts
uf ri~hts <;t <'< are thc snbjticts of thc fn-st dc'pat'tnMttt whieh
til-it dcparttt~ut i)tnn<jdiittt;ty st-vcfs into thc four t'uUowing
sub-dcpartrncttts.
if thf usul- of a ri~ht <? )'tf bc pruvfutcd ur hindcred
~'tjit: and thé préventive can.-u 0)' hindmnce can he remov~d
f.'r abat<-d, the party injui~d by the prcvcntiou or
hindratu-e,
rnay Lu ~t~<-<~ to thc abiiity of excreisin.u: thé right freely.
Jti~hts tu su'h rc-~turation arc of two kinds. S<j)ne, nnd tunst,
arc ti~ht.s ot' ft'<«~M but othets arf ext;rci.-cd exim-judiciaUv,
aud arc matt~r for ~M~<«<<uM. A ri~ht of action to obtain
possession of a house, or to procure thc abatoaent of a nuisance
which hinder;! the user of thu house, is a ri~ht of thé former
kind. A ri~ht of reeapturimj: without resortin~ t'~ action, is it
ri~)tt of thé tatter kind. liights tu sue)) re.stomtion, whieh
mi~ht be sty)cd si~nifieuntty aud shorth', ri~ht.-i of <;ui~ttt<<««f.'
are ttte su)'jeets of thé tir.st sub-department.
If a vMftte~ ng!tt in rem ho vtrhM!!y antuhHatcd Ly Utc
injury, ttte ouïy MtUcdy uf wîuctt thc cas~ wi!! ad~H M ~<M.
7<Tc~'oK to ttM injure' party. Whern a p)-e\'entto)t or JundraHCtj
oj~posed thé user of a ri~ht, hus t~~n withdrawu,
or bas
othenvisu cea.wd, s~tisfuctiMi to thé htjured ~i-ty f~r t<M
pnst
p~veutiM) or hindnmec ia thé apt or t~ipropuatc ~-tnefty.
And, ~cncmny, tt~ «pt or appropnate rouedy for ~M< dt;!ict
n
is i~tisMMt or eotuponsatiMt to thu injm'bd party for the
damage or itteonvenience witich th~ party has sunc~d tlirungh
or in MnsequMtM ot' t)te on~nc'I{!ghts to s«~M,
pecuniary M- other, are thé subj~cts of thé MCMid .sub.depart-
tuent.
If the us'T of a ri~iit «< ~M Le pi-cvented or itindercd
~-t.<< tttc party iujm'ud hy th~ preventiott, or hindrancu, lias
eommuuly & ri~lit to 6«<«c<oM for dama.~ or iuu~nvt-uicncc,
as well as a ri~ht of !'M<<Y<«~ to thé ahi)ity ot' ft'ce cxcrti.-c._
Hights of HH~<c«<t'c/ f.'f<;))Li:i<d with rigitts to A«~;«- aru
thu sut)j<et~ ot' th~ t!nrd su)j.dcparHnem.
W!tfM un oHuncu is n~rMiy incipicut or hupeudu~, tli&
oft'fuce Hmy be stayed or prcvcntfd. For examp~: FoKiMu
di.spo-cs.siott is prGVcnmd, nud wast<: is preventcd
f.r stuyûti, hy
an intenJiet or iujuuctiott: ur if 1 bf threatt-ned with an ittsttttft
a.ssautt, 1 hmy prt-vcnt thc approactun~ injury Ly Mp~Hit~ ttic
as.sai!ant.–Hi~))t" of pr~-cntu~ <.r .stayi))K, judic-iaUy or
uxtm.
judit;iaHy,imp~udit~ or indpiuttt o~-ne~ a~uost ri:Jtts ;?
fi~ ~f,
~'tïlt,
are thé subjcets of thu fourth sub-d~partmeut.
2. Ifi~hta arMh)~ fron civil ')e]i<:ts wJtich
arc infrin~tat-nt.s
of ri~ht~ «; /~<~<<, arc thesul-jt-c-ts of thé .-M-ond d'part)t~nt
whicii secotitl dcparttm'nt ihnnt-diat(;!y severs into thé thruc
M!owin~! snb-departtf)t:nt.s.–Fir.-t Hi~hts uf compt-ltin~ judiei-

as arisc from contracts aud ttua-'i-onUttcts: t.


a'!y or '-xtm-judiciath-, thé A~t/f~(«'f<;<« ot' .su~h obligations
A ii"ht f<f

or <i.
co)npcnin~p(.rfM-)i)anct;Ly«~i'~<<r stti! Ari~ht t'~
jor t)f(.'
an <f'c<
pur;)ost- of pr~vcntin~ the obti~.r or dd.tur
from evadinK thc futtihm.-nt "f thc o)')i~tion A ri~ht of
<<')«:t' or </</tM<~);, by thc n-ditor 0- oh)i~(-, nf a thi))-
or
pf-r.-ion which Lt-lot~s to thé oL)i:r or dft.tor, hut on whidi th~
")'Hg<f or cr-ditor bas .:xp~ndc-d mon'-y
or labour.–Sccondh'
l!i~hts of "htainin~ .~<<t'.<t'<'w. in !ieu of s])c<;iin- pM-fonnan~
wttc)'t; "Hi.u'cs ur ch;dnor.- are content with contj'cn.satioti,
or
whcrc sp(;(;i))c pL-rforman<;c i. not pos.-iibk-, or wh~rc specinc
performanet; would not Le advanta.cou.s to crcditoM,
or woujd
t)c MlowMd by prépondérant h~ûnvenicnL-~
to oUigo~ or
l'
debtom.–ThhtHy Bight~ of obtainmg specinc performance in
pM'~withsatisEitctionoreotïipeumfîonforttieMsidae.
A't)<e.IheMa!taH<umlyaetheprincipte~wheK'm6p<:<;iOep<!rforamMe
i!) rntionnllycotupetkd.
ffpMMiCe performance, und
Thc caprices of tlie EngHah Law with r<f;<tr<t to
with rej.jfn'd to thé cuaoccted tnatter of reewty
w fpKt'f, 1 <h:dl try tu fxphtiu hbtot'iMtty.
TraveHing through thé rights which arise from civil injuries,
1 shaU uote thé respective appUcabitity of those various remédies
to thé various case!} of injury pMviousty c!assed aud described.
III. Having elassed and described civil injuries, and treated
of thé rights and duties whicit civil injuries engender, 1 ahaU
considerthé MOf~ wherein thosc rights are exercised,and wherein
those dutics are enforced. In other words, 1 shall consider civil
~OK(<KM'.
Now thé pursuit of rigllts of a'c<oM, with thé conduct of thé
incidental ~'HfM, are thé principal !natter of that department
of jurisprudence. The consideraticn of which matter will
involve a considération of thé foUowing principal, and of many
subordintite, topics
Thé functions of judges and other ministers of justice.
,[
The )'<!<<otM/<: of thé process styled ~cM(h't<y, with thé con-
nected ~«MM/c of judicial cM'~fKce.
Judicial decisioas, with their necessary or more usual con-
comitants uamely, Thé ~~<e<f<~<o~ or t'cM~fKc~i'o~ of statute
law, or law establislied in thé properly législative mode Thé
~)MK/)'<u' ~'OKM c/' Mxi'Xf/~M (not unfrequently confounded witli
thé interprétation of statute law) tlu'ougit which a rule toade by
judicial législation, is gathered from thé décision or décisions
whereby it was established TIiG f<«'n<<o!t of thé law, be it
statute law or a rule made judiciaUy, to the fact, case, or .~tcn~
'~MMM/M, which a.waits the solution of thé tribunal.
The judgments, decrees, or judicial commands, whieh are con-
sequent on judicial décisions. Appeals. Execution of judgtnents.
Judgments considered as Mtc~s o/' (tf~<t'Mt: tliat is to
sav, not merely as instruments by which rights of action are
enforced, but as causes of ulteri'jr rights: f.
as causes of liens,
r
c
c

l'.

,1

jt

«r tacit mortgages, given to plaintif!'s on lands or moveables of .f


défendants. M
Such judgmeuts or decrees as virtually are mère solemnities
adjected to conveyances or coutracts. The expianation of which
sotemnities will involve au cxptanation of thé distinction between
t'«~«M~~ and f«H<<'M<«'Mjurisdictton.
~'o'<A right whieh arisM fn))u a judgntent i< often distinct fmn) the )j
Hght of MtMon which M pusned to jttdgment and exeeutfou. ArMng
ttttMetty &ont th~ ~x~mrnt, it artxea not from tha ~(r~ whieh ta thé
M thé right of action, as ftom oM<& (~ «c~tMtYtmt. Co~eqtMMty, rights cause
of thc.ttmd oHght :? ttrietn~ to tw eta.Med with rights whieh 1 style
~-MtM~ that h to My, with rights which do Mt ariM fMtt deHets
ft~nee~, But thé ehMHKg them with ptittMMy rights or
w-ere followed by this
tneonMnietKe that the writer were unaMe to expiait) titem m Mtiiitaetary
&
tnanner, un]') ho antiopotMft thu doctrine of injuries, of rights ariMog from
tojune~ aud of civil pMeeduM.
Aa eeMain rights arMug from jument shouM ih stnctneM b<: placed
under a foregoing )tM(), to should 'thc fuuetton.! of judges Mut other
n):nMt<!K of justice' bc placed under
a Mtowing natut;)y, thé Law of
Periion*. But if this matter, w~ich lopeaHy Monf;9 to that Mtowi)~ head,
were not antieiptttcd und~r the p~Ott, thé expoHtiott of civil procédure
would be ineotMptete.
Whoever read~ nnd Kneets on thé arrangement of
a <MpM ~(rM, must
perçoive that it cannot be constructed with logical D~our. The memLeM
or parts of thé arrangement being extremety ntnaerouo, and their eommou
matter tjeitt~ an orgattic whote, they can hautty Le opposed completely. In
other words, the arrangement of a oM-p)Mj'Kt-Mcan hardty be conatrueted,
that none of ib metubern shall eontain tnatter which lopcaHy m
betongs to
another. If the principles of thé ~-arious dmsiûM conceived and
were
expreMed clearly, if thé dupartment! resulting front the divMiun-!
«MttngMMhedbrondly, and if thé were
neeeMiti'y departure. front thé prinoplea
were marked conspicuousty,the arrangement w&utd tuake thé appfooc/t to
!og:<a.t compteteneM and eorrectnes~ whieh M all that its stubboru and
reluctant matter will pennit us to aKOMplhh.

Duties, and other conséquences, arising from


M'tNtM.
This is thé second sub-department of thé second of thé
capital departments under which 1 arrange or distribute the
matter of thé Law of Things.
Thé matter of this sub-department will be treated in the
following order.
I. Duties are relative or ab.so!ute. A relative duty is
implied by a right to whieh that duty answers. An absolute
duty does not answer, or is not implied by, an answering right.
As an example of an absolute duty, 1 may tnention duty
a
to forbear from cruetty to any of thé lower 'animais. For a
necessary élément of a ri~ht (implying or answfrmg thé duty)
is wanting. There is no ~<'MOK, iudividual or eomplox, towards
or in respect of whom thé duty is to be observed.
1 have adduced thé foregoing example of
an absolute duty,
on account of its extMne shupticity, and of thé brevity with
which it may be suggested. But, as 1 shaU show in
my
preliminary lectures, absotute duties are very numerous, and
many of them are very important. As I sliall also show in tny
ptetinuamy lecture~ titere are threa cases wherein a duty ia
absolute, or whœem it aasweïeth Mt to att aasweriag right;i
wnerein it answers to nothiag which we could call a )~K, un!ess
wc gave to the term sa large and vague a meaning, that thé terni
would dénote, in effect just nothing at ail. The three casea
may be stated briefly, in thé following manner.–Thé duty is
absolute, m case tliere te no person, individual or complex,
towards or in respect of whom the duty is to be observed. The
duty !s absolute, in case the persons, towards or in respect of
whom thé duty is to be observed, be MKce~Mt or Mt<&<<~MMa<e.
The duty is absolute, in case the only person, towards or in
respect of whom thé duty is to be observed, be the mMtftyeA, or
~M'ere~Tt M?<m~?', ruling thé given community.
Now absolute duties, like relative duties, are primary or
aanctioaing that is to say, not arising from inj)iries, or arising
from injuries. Again Primary rights, with the primary ~<t<M
duties which respectively answer to those rights, are thé only
subjects of thé capital department to which 1 havM given the
title of '~nma?'yrights and duties.' But primary HMK<< duties
ought to be placcd somewhero. And though thé present sub-
department be a member of thé capital department to which 1
have given the title of *MKc<!<MtîMjy rights and duties,' primary
absolute duties may be placed commodiouslyhère. For infringe-
ments of duties primary and absolute, belong to the class of
delicts which are styled e~M«M.
Aceordingly, 1 shall hère interpolate a -description of thé
primary absolute duties whieh are not appropriate subjects for
thé Law of Persons. As 1 have already remarked, such inter-
polations of foreign matter cannot bo avoided aiways.
II. Having interpolated a brief description of primary
absolute duties, 1 shaiï class and describe <vtM:M (be they
breaches of primary absolute, or of primary relative duties), with
référence to the rights aud duties whereof they are respectively
infringements.
III. Having classed and described crimes, 1 shall briefly
touch upon t!~e duties (ail such duties being absolute) which
arise from crimes. 1 shall also notice briefly those consequences
of crimes which are styled, strictly and properly, p«?!MAm<'H<&
IV. 1 shall advert to CM'mtKa/ procedure, with what may bc
called, by a strict application of thé name, ~M< In other
words, 1 shall advert to thé modes wheroin crimes are pursued
to punishment, with the precautions which may be taken to
prevent them.
LAWOFPEBSONS.
Having made ail. attempt at a previous point of
my Course,
to détermine the notion of ~<
or condition, 1 shall enter the
dapattment of t&w whieh is styled the Law of Persons, with
an
attempt to distributo ~a<<M or conditions under certain principal
and suboi'dinate dasses.
Accordingly, 1 shall divide conditions into ~w<!<e and
Fo~'<;a<I shall divide private conditions into ~<~M (or
~CMtOMtM~) and ~/eM:o?M/Certain conditions nearly related
to the domestic, 1 shall place with thé latter styling thé
former, by reason of the analogy through which they
are so
related, gMa~oM~M conditions.-Certain conditions which
will not bend to my arrangemeat, 1 shall place
on a line with
private and political conditions, and shall style anoNM/o!~
or
MtMC<~<MK'PM&
My arrangement, therefore, of ~<M or conditions will stand
thus
1 shall distributo conditions under three principal classes:
1. ~<t'<!<e conditions: 2. ~~M'~ conditions: 3. ~M<MM/MMor
M~Mce~MMMconditions. And 1 shall distribute private condi-
tions uuder two subordinate classes: 1..DoM~t'e (or~<-o?MM!'<-a~
and gMH~H<M conditions 2. A-<~<Mt«~ conditions.
JVo«.–A<:eorttmgto the jurists of ancient Rome, and the juriste
thé modem nations whose law M Maoned on thé Roman,tothe eaMtttI of
leading division of the entirM c~tMjMn~ is thé division of~M into ~xM~MM or
and yrK-a<«M. In other words, positive hw (considered with référence to
its dtifeKnt purpoaM and .utjj<~) M divided Ly those jurists, at thé
of the division, into p«M<e axd ~-t't-<!<< out~t
Now thé namc yKMt'e lato haf! two prittei~t M~iSeationii of which
Mgntïicattons M hu-ge aud Vitgue the other, strict and deBnite.one
Taken with it.< large and vague ~i~itication, thé wilt ap]Jy indif.
ferentty (as 1 shall show in my lectures) to hw of oame
evf-rv d~artment. Thé
VMiott! writ<;K, therefot-e, who take it with t)mt signification, détermine
the province of public law in various and inconsi-nt
wavs. Accordinr
to sotue, thé province of puUic law comprises potitica! conditions, to"ether
with civil procédure, acd thé law which i.' iityied crimitt.d that i.<
thé depiu'tntent of hw whieh is eoucerned with emuM; with thé to Mv,
dutie-s
arising fron) crimes with thé pttni~hmenta annexcd to crimM and with
cnnunal procédure and préventive pulice. Acconting tu otherf, thé
vince of pubtic htw embracca crintinal law, but exdudes civil pt-ocedure pru.
Aeeordtng to otheK, its province rejects both. Whiht otheK (conf~ndin~
postttve law and positive m'jratity) ext<nd its province the M-ealled ]aw
of nations, M well as to civil pracedm-e and tu thé Jaw to
wbieh is 6tv)ed
cnmma). But in one thing nll of them A)! of thent di~tribute
agrée.
thé enttte e<~MM~<n't under two principal and contMdistinguMhed depart-
ments namety, j)M yxMttMBt and J)M ~nM<M)x. And, conMquenth-,ail of
thcm contMdhtinguMt thf!f M.ca!ted ~MMtf f«!f to the two p)'{he!pa! and
opp0!!ed dcpttrtment.t of thefr Bn.<-a)!edpttM<f< f<tw.' naoMty~ Thë Law of
PeMoMt M)d Thé Law of Tttht~ New, tM t tihtdi <)MW !)< my teetur<
tbit <Mt<tM<* tttviMon and «frangetnent of the fwptMjKfH ia erMMOM and
pre~tant with error: springin~ front n perptexed apprehetmion of the end<
or purpow-t ut htw,<md tendiug to genetate tt like apptahenHon in the
hetpteM and bewitdered stlulelrt. As 1 ahaU sitow ataf, every departtnent
uf )aw, viewe(t'fMm a certain Mpoct, may lie styted private whit~t evory
d'rtm<'nt of ttw, vicwed ft'o<u attothet- aspect, May be t!ty!fd puMic. As
1 shitU show htrthcr, ptfMt'c h«p and ~ncat<; f«)c are tMUMM whiett fhoutd be
bamthtid thé Kten<;e for since <i<n:h will appty iudtit'erentt): to every
dfportment of law, tMtthet' can be used convettietttty to the purpo'iM of
s)t;"ify!"t{ any. As 1 shaU tthow, taoreovfr, the entire ce~MM ~MrM ought
to )M dividett, at thé ouffet, tuto Litw of Things aud Law of Pet-~ns
whibt ttM only portion of law that eau be styicd yttMt'c ~<c with a eertnm
or detennitutte meanin}!, ought oot to be MnttadMtingtu.'ihedto thé Law
of Thin~ and Persons, but ought to be iM<;rttd ita thé Law of PerMns, as
one of its tuab~ or nK'tub<;M.
Tahcn ~tth its strict and detinitc B)g)u<tMtiou, the Mme yM6<t'c ~M is
eonttMd to that portion of taw which ).t cottMerned with political condi-
tions. Aceordin~h', 1 tuku thu nantM with that its dct<:ntnHatc tncanin,
aud 1 dt'em that portion of !aw, a rnember of thé Law of Pfrsoni!. But,
to obviate a CMM of miseonception, 1 style that portion of taw, Thé Law
of PuHtica! .S'f«<tM, or th'i Litw of Pot!tiea! CotiditioM !'uppMi!i)iuj.; t!n.-
ambi~Mous nat))M of yKMfc and ynt'«<< law, a)un~ with that grmmdie~
division of thé co~<M j'K)'« whieh tho."<' opposod names are commonty
emptoyed to si~ttity. For, as 1 hâve iothnated aboyé, thé Law of PoHticat
&'<a<tH, like every other portion of the entire c~iM ~Kr~, tnij;ht be ftyled
with perfect propricty, public or private public, when viewed fro!u a
certain Mpoet private, witeh viewed from anothcr.
In rejecting thc dm!ion of !aw into public und private, iu rejcMtin~
the MtnM by which thé division if si~nified, and in c)a.<sing politicnl
tonditions with condition. of other natures, 1 am justified by thé gréât
authonty of our own adtni)ab!<i Haie, as well aa by the co~tnt reasons
wherMon 1 shatt in'ii'-t in rny tecture; In his Anatyi.i< of th<; Law of

condition)! (or r<:)ation.<') whieh he )-tyl<:sNor


Hu~!and (or Mther of thé Law of En~hmd, exeepti))~ thé eritninal part of
it), he c)a:<it) potitical conditions (or 'potiticat rotations') with the privait!
(;an 1 discover
in any noot: of his treatise thé stightest tntce of thé perp!exed appréhension
whieh i:i thé source or thé division of )aw itttf~ public and private. Even
in advertin~ to crinfina! delicts, wherc it wa.~ most )ike)y tttat he wouM
faH into thc error, lie avoids it. UnHke his imitator, IMackiitune, who
caHi! them ~«Mt'; wr<m~, he i-ty!es thon fn'M«'Mt<< wron~, or M)o<t(T /w)'
~fM the Crox'H.' hittite preciseiy by thé ta.-it expr'&.ion thé ba.-ii) of thé
divMon wr'~ng:! into civil injurier and crime; We ecafcety can e.<ti)nate
of
cotnptcteiy thé "ri~ina!ity and depth of his Anatyi-i.s, uide. we c&mpurt:
it e!(Kt!y with thé institutes of Ouius or Justinian, and unte!) we took
vigilnutly for thé in~trnetive but brief hint< whieh abound in every part
of it. Thé otdy i.'rM'i Mii-tnkea that 1 hâve found in hi. ntMterty uuttine
are hiii Kh'rin~ and stniM~h mi.<tmn.ationof 'JtM ptMwofKMt<< ftrM))),' und
his piacinf; under thé departtoent a~.<i,;ned to thé t<a<)M of per'=o)M, certain
rights of per?ont whieh lie styles their «~~t!~ rights, Seein~ that «H
right.~ are rights of peKon. and Meinj.; that thin~ are tnerety ~«<«:<< of
h dear that thé geMuine meaningof 'j<M peMonarum et renun'
rjght!), it
h Mt very happtty Mndeted by 'n~~ of p&rsons and thtnge.' And M (o
(t<w<x<e (co)Mtnonty denominated <Mt«f«< or tKtt~e) rights, they are not
matter for the Law nf .atm, hnt belong pre.emtnenttyand confspicKOttsty

Hubiitantiftt. Un!)ke the itoitator HtaekfftMie, with )'


to tho eontradiiitin~uitfheddepartfnent. But, in justice tf thi;* (;reat nnd
ex<:f lient. pMton, 1 mtMt add that thé tonner mistake M verbat rather tban
his of persons
o))(t things,' Hith: stii~es, for the most part, the ~cnutna meaning of thé
distinction, thcugh he thickens t))<! fb~eunty of the obKure phr!H('< ty
whieh the tncduMi Ch'HiatM ustMUy tixpMM it.–tu rejecting the divi~iou
of huv mto pubtie tuid private, md m c)<MiHnt! pfttttiMtL w!th other condi-
tiu)M, Hâte, 1 betieve, ).< orisina], an't neat-iy sin~ular. In un <'M~(~<f<«
hy Mck, :t profc.Mt'r «f law at KM, it ia MiJ that thé authbM of thu
Danhh Code, with those of thé nimi-'h writer~ who tr'at )aw tfy'itoxatieuny,
obsen't, in this ruspeet, the at')-a)tj~'ment ob<erve<i by Haie. But in a)t thu
treatiiM by Cûntincntal Juri.tt.t which hav<! Mt~tt ttn'ter my inspectiott,
taw is <)ivi<)ed into pubUe and private, though the province of pnbtic taw
is variouiity 'tetenumed and deMribcd.
It is true that Sir Wi])iam mackftùne a)'o !t-ject~ that divi.<i«)), and
ab" CMtMdcM thé taw which b cuncerned with political conditions u
Momber of the Law of PersoM. But the m<;th'jd obscrved by mackstom'
in hiii far too cetebmted ConnMntariMf),is n etavii-h and btunderin}; cupy
of thé very itnperfect method which Haie detineatM roughJy in hii! fsh~t-t
nnd untini~hed Anatysis. Front thc out~et tu thé end of!)). Con)nn:ntarie.<,
hc btindty adt'pt'i thf mi.<tak<i of hii! rude and compendious mode!, miMin,;
!nvariab!y, with a nice and mrpn'm)~ infetieity, the pre~nant but obscure
su~ef!tion.< whn:h it proffered to hi'! atk-ntion, and which woutd hav''
ftHided a difternin;: and inventive writer to an arran~emtnt compamtivdy
just. Xeither in the {{encra! conception, nor in the détail of his book, ii)
there a sinute particte 'jf ori~infd nnd di.-cri)ninatin}; thounht. He had
t'fad ):omewhat (thou~h far !c.~ than if. cot)tm"nly bciievt-d) but he had
swatiowtd tht; tnattcr of his r.-adin; without choicû and withc'nt rumina-
tion. He owcd thé poputarity of his book to a pattry but tnectuat artifice,
and to a poor, fiUperneiat ment. Hf tmekied to thé fini-stcr intere.cts and
to the mischievous prejudi~'sof power and Le Hattered thé ov<:rwecnins
coneeit "f thtir national or peeuiiar institutions, which then was devoutty
entertained by thc body of the En~)i.'=h ptf'pte, thouf:h now it is happi!y
Yani~hiuf; befure thé advancementof reaMn. And to thif! pidtry but effect-
uât artince he addcd thé aHnrenKnt of a <ty!e which M ntted to tiekte thé
eevere and tnafeulinf t:Mte. For
car, though it never or rarely satisuc. :t
that rhetoneat aud pmttting maBne:' of his is nut thé manm-r whieh ~uited
the mattcr in hand. It M not thé tnanney of tito~c ~a.Mie)d Roman jurist.
who are atways models of exprt'Mion, though their nteanin~ be never M
fautty. It ditfer!! from their nnaffeeted, yet apt and nervoui! style, as the
tawdry and <!t)M9y drets of a n)iHiner'< dot), from the gracefu! and imp<<!in~
nakednM!! of a Grecian statue.
Having distributed ~«<)M or conditions under thé principal
and subordinate classes mentioned above, 1 shall consider them
particutarly in the foUowing order and manner.
I. 1 shaM review domestic and quasi-domestio conditions
describing thé righta and dutics, capacities and incapacities, of
which they are constituted or composed and aiso describing thé
éventa by which persons are invested with thêta, or are divested
oî thetN.Of these conditiotts the foHowing are thé priacipftî
namely.The conditiûMs of Husband and Wife of Parent and
Child of Master and Slave of Master and Servant ofPersoas
who by reason of their age, or by reason of their sex, or by
reason of infirmity arising from disease, requira, or are thought
to require, an extraordinary measuro of protection and restraint.
Having reviewed domestic and quasi-domestio conditions,
in the manner which 1 have now suggested, 1 shaU review
pwfessional conditions (thc other leading class of private
conditions), in a sinalar manner. 1',
II. Having reviewed private conditions, in thé manner
suggcsted above, 1 shaU review, in a similar manner, political
conditions: that is to say, thé ~«<!M or conditions of subor-
dinate political superiors. Of thé classes of persons bearing
political conditions, thc following are thé most remarkable.
1. Judges and other ministers of justice. 2. Persons whose
principal and appropriate duty is the défonce of the community
against foreign enemies. 3. Persons invested with rights to col-
lect and distribute thé revenue of the state. 4. Persous com'
missioned by thé state to instruct its subjects in religion,science,
or art. 5. Persons commissioned by thé state to minister
to thé relief of calamity t.y. overseers of thé poor. C. Persons
connnissioned by thé state to construct or uphold works which
require, or are thought to require, its special attention and in-
terference f.roads, canals, aqueducts, sewers, embankments.
A~<<Btifore 1 dismiss the matter of the present article, 1 will f~uest
the attention of thé reade'' to thé Mtowing explanatory Mtg~Mtions.
t. The monurch property M called, or thé Mvereign nmntjer in ib) col.
tegiate an't sovereign ca~city, is not investeft with a <(<t<M (in thé ptoper
acceptationûf thé term). A tfa<)u i~ composed or eonetihtted of ~<i< rights
and duth;9, and of capaciticsand iu'apacitits tu take and incur them. Xow,
sinee they are merety ct-eatuKS of thé positive law of thé community, and
since that positive law M mere!y a tMature of thé eeverei~t, ive cannot
aseribe euch rights and duties to thé monarch or sovereign body. We may
say that tho eoyerei~n haa poM'<M. Wu may say that thé Mvereign i)a<
righta conferted by thé Law of Gud that thé sot-eteigti hafi rights conferred
by positive moratity that thé soverei~t h subject to duties eet by thé
Law of God that thé covereign is Sttbjett to duties whieh positive morality
imposer Xay, a eovereif~ government may have a tegal ri~ht against a
6ubje';t or aubjech of anotiter Mverei~t government. But it cannot bu
bound by te~al duties, and cannot have lega! rights agaiMt its own subjects.
Con%qu(:nt!y, a Mvcreign government of one, or a eovereign govemment
of a num)x!t' in its coUegiate and sovereign eapaeity, is not inve~ted with a
~«<)M (in tlie proper acceptation of thé term): or it is not inveated with a
<t<!<tM (in thé proper acceptation of the term) derived from the positive taw
of it.') own political community.
For thé mt% howover, of shortness, but net w!<ihoat impMpriety, we
my thttt the MteN~ttbeau & <f«t)M eompo~d Mn~tiMted ot ~tMf&
And, by reetson of thé intintate eonneetion of thttt improper <M<<M with thé
tMtM (properly so called) of tmbordinate potiHcat supenoM, 1 stMtU consHer
tko powera of the monarch, or thé powers of the suvereign number in its
cottegiate and sovereign capacity, with thé rights and duties of thé sub-
orduMte potitieat superiom to whom portions of those powers are delegated
or committed in trust. Or, mther, 1 shall eoneMer thé powers of thé
sovereign, at thé present point of my CouMe, in M far M tho eMentiab of
the matter may not have been treated adequatelyin my preUnMna)-)'lecture
on aovcreignty and independentpotiticat society.
Z. The law of political conditions, or public law (with thé strict and
detiNite me<uuug), is frequently divided into <OM~«)t<wM<(< and <«!mwM<fa<tt'<
In a country governed by H monarch, eonetitutional law M extremely
simple for it merely determinM thé por~n who shaU bear the (MvereiHnty.
In a country governed by a number, constitutionat law is more compter
for it determines the persons, or thé dMses of thé persons who shaU bear
the Mvereign powers and it determinea, ntOMover, thé mode wherein those
peMom shall share those powers.–In a country govemed by a monareh,
eonstitutional law M positive moraJtty merely In a country govemed by
a number, it may eoMiet of positive moNtity, or of a compound of positive
morality and positive law.
Administrativelaw detemines the ends and modes to and in whieh the
Mvetei!~ poweM shati be exereieed attaU be exercited directly by thé
monareh or sovereign number, or ohaH be exercised directly by the aub-
ordinate politica! superiors to whom portions of those powers are delegated
orcommitted in trust.
Thé two departments, therefore, of conetitational and administrative
law, do Mot quadrate exactly with the two departmentsof law which regard
respectively thé <<<t<~ of thé sovereign, and the varions<<a<tMof subordinate
ponticat superion. Though thé nghts and dutiM of the latter are corn.
prised by administrative law, and are not comprised by constitutionat law,
administrative !aw comprises the powef! of the Mvereign, in so far as they
are exercised direetty by the monarch or Mvereign number.
In so far as the powers of the sovereign are detegated to poHtieat
sobordinates, administrative law is positive law, whether thé country be
govenred by a monarch, or by a sovereign number. In so far as thé
severeign powers are exercised by the sovereipt directly, administrativec
law, in a country governed by a monatch, is positive motatity mereiy In
a country govcrned by a nnmber, it may consist of positive moratity, or of
a compoond of positive moratity and positive law.
3. It is somewhat dimcult to describe thé boundary by whieh thé
conditions of poUtieat subordinates are severed fMm thé conditions of
private persons. The rights and duties of political subordinates, and thé
rights and duties of private persons, are créatures of a common author
Mtnety, thé tioveKiKn or state. And if we examine the purposes to which
their rigbts and duties are conferred and imposed by thé soveMign, we shidt
nttd that thé pur[)oses of thé rights and duties which thé sovereign confers
and imposes on pnvate jM-rsons, often coincide with the putposes of those
which the soverei~ confers and imposes on subordinatepolitical mperiors.
AMorttingty, the conditions of parent and guardian (with thé aMwering
conditions of child and ward) are not unfrequentty tKated by wtiters on
jorisprmtenee, as portions of public law. For exampte The patria ~<«<<M
aad the Mef<t oftne Ronmn L<nv are trotted thn~ in h" mMtwty
(~ .P<m<!<~e<t-~e&(<by Thibaut Heidetiberg who, for tjeaetMtins
aeuteneM, Kttitode ofjmtRtnent,depth of teamin~, and vijMHr and eteganee
of exposition, may be ptaee.t, by thé sMe or Von Savignv, at thé head of
:tU nvinx CiviHitM.
At the eurtiest p(n-t of my Cou~e that will admit thé subject con-
venient!y, 1 shall try to diittin~UMh pnHtMttt front privatu tMnditiot)!), to
detenuitM the p~viuef of public ~w (with tho .'triet M)'t fMnite mMning):
or
un ttttetupt whieh wiU t(i:nt tue to exiuuiM thé (.-urtent Jh'Mon iftw into
~ttMt'otat )tt)d jus prt't-a<MBt; and which will kaf) me to exptuiM thé
mutMMU<nmdttM}MMtMM'K)t)'!t)(tt<MhMt to thé two exp~mion! 1 wonM
brxtty retMark lit pre~nt, that 1 met-ety tucatt by prn'H«'
pcMMM, peMons
tiot politi<;nt that is ta say, po-~uf! not invMttJ with political cuM'Utions
or ptMons bcat-h)K putiticat ~)ntitiuM, but u'A eunoidered in thoie (.-har.
aeter. or Mt vh'wed front that fMpeet. 1 iutcnd not to intimatt; by thé
tenM pi't't-«~, that private or not political, am) puMie or political persons,
are ttietinguMhabte by (tinertneoi! between thé uttitnate pM~MM fur which
their rights an'! <)uti<;s atf re<pettiv<y conferred and itnpo.ed.
111. Havin~ reviewed privute and political conditions, in
thé manner suggested aLove, 1 shalt Mview nnonmious or
tuiscellaneous conditions in a similar !nannt:r.–As examples of
suoh conditions, 1 adduee thé Mtowing: name!y, the conditions
of Alicns thé conditionsof Persons incapable of rights by
i-eason
of their reli~ious opinions thé conditions of Persons incapable of
rights by reason of their crimes.
A"e<<In any department of thé Law of Persoos a.~i~ed to a gt\-en
condition, thé ri~hti) a)td duties composing thé given cunditibn, wouM
naturatty be arranged (in a <wpMjt«-f<') agreeabty to the orJer or meth~)
obsen'ej in thé Law of Things. For CMmpte AMfeeabty to the onler nr
method which 1 hâve tMineated above, thé rights and duties composins
thé given condition, wonM naturaUy be divide.1 at thé outeet, into primary
and fanctionin); those printar)' riglits am! duties being divided again, into
ri~hb t'tt <-<nt, ri~ht~ t'a personam, tonbinations of riglits w
f<M and ri){hts
in jMMMMMt, and m on. And in any department of thé Law of Personi!
a&*i~ed to a given condition, thé cuustitaent éléments of thé given
con-
dition would natutatlybe treated with perpétuai référence to thé principles
and rules expounded in the Law of Thing.

To thé series of lectures Lrieny delineated above, I shall add


a concise summary of thé positive moral rutes which are sty!ed
hy recent writers, thé positive law of nations, or positive inter-
national law eonehtding therewith my review of positive /«?,
as conceived with ib relations to ~oM<M'e M~~y, and to that
f~MM /«M which is thé ultimate test of Loth.

1have dmwn and puUished thé foregoing explanatory


Outline with two purposes with thé purpose of su~gestiag to
stnmgem the subject and scopeof myCoome, and with the
purposë of eHabtittg my Ctass to Mtow my Course eaaUy.
To the members of my Ctass thé outlihe, 1 thiuk, will be
usefut. Many of the numerous topics upon which tt touches
will be troated m dm Com'se s!i};htly aud <Mectivdy. ~ut,
having t!tose tapies before thern in tt connected aud orclerly
series, they may easily fill th« chasjns which 1 shall iuevitab!y
leave, with apt conclusions of their own. And every demand
for explanatiott that thé outline may suggest tu any of them,
1 shall ghdly answer and sat~fy to thé best of my knowledge
aad abihty.
For thé numerous faults of my intcuded Course, 1 shall
not apologisG.
Such au exposition of my subject as would satisfy my own
wishes, would fill, at thu !cast, a hundred aud twenty lectures.
It would fill, at thé least, a hundred and twenty lectures, thongh
every lecture of thé sénés occupied an hour in thé delivery, and
were packed as closely as possible with strictly pertinent matter.
Aiid, as compétent and candid judges will readily perceive
and admit, a good exposition of the subject which 1 have under-
taken to treat, were scarcely thé forced product of a violent aud
short effort. It were rather thé tardy fruit of large and careful
research, and of obstinate and sustained méditation. After a
few répétitions, my Course may satisfy my hearers, and may
abnost satisfy mysetf. But, until 1 shaU have traversed my
ground again and again, it will abound with fautts which 1 fairly
style inévitable, and for which 1 conudentiy claim a large and
liberal construction.
Jonx Au:STtX.
AN ABSTRACT OF THE FOREGOING OUTLINE.

PRELIMINARY EXPIRATIONS.
LEcr.I-Y! Tho province of Jurisprudence determined.
1
Gênera! jurisprudence distinguished from particular.
~~y.
XXVII
Analyses of certain notions which pervade the science of law.
J

LAW CONSIDERED WITH REFERENCE TO ITS .SOC~CJM, '1


~1
AND WITH REFERENCE TO THE ~OJMN IN WHICH IT
BEGINS AND ENDS.
~i~«~, or promulged law and M~cn~eM, or Nnpromulged
law.
Law made directly, or in thé properly legislative manner;
and law made judicially, or in the way of improper législation.
––Codification.
Law, the occasions of which, or the motives to the establish-
ment of which, are frequently mistaken or confounded for or
with its sources viz.
</<M m<M~&M~ <'o?M<t<M<K)!t;or law fashioned by judicial
decision upon pre'existing custom:
</<M ~«~eK<t&)M coNtpo~MM
or law fashioned by judicial
decision upon opinions and practices of private or un-
authorised lawyers
The )M<:M'<~ /<!? of modem writers upon jurisprudence,
with the equivalent ~M naturale, yM ~MMM, or jus
naturale et y~MMH, of the classical Koman jurists
<7<M y<ee~<MMt; or law fashioned by judicial décision
upon
law of a foreign and independent nation
Law fashioned by judicial décision upon positive inter-
national morality.
Distinction of positive law into <<c and equity, or~M civile
and ~!M jM'O~MttKM.
Modes in which law is abrogated, or in which it otherwise «
ends.
LAW CON8ÏDEBE& WITK REFERENCE TO 1TS F~~ONS~
AND WïTH BEFERENCB TO THE ~MMECïS ABOUT
WHIOS ET IS CONVERSANT.
Division of Law into Law of Things and Law of Persons.
Principle or basis of that Division, and of thé two départ'
ments which result from it.

LAW OF THING8.
Division of rights, and of duties (relative and absolute) into
primary and sanctioaiog.
Principle or basis of that division, and of thé two départ.
ment.') which result from it.
Principle or basis of many of the sub-departments into
which those two departments immcdiateJysever: namely.The
distinction of rights and of relative duties, into rights in )'<-?!
with their answering <~M'M, and rights w ~c~oMa~ with their
answering oM~a<MM~
Method or order wherem the matter of the Law of Thinga
will be treated in the intended lectures.
Preliminary remarks on things and persons, as subjects of
rights and duties on acts and forbearances, as objects of rights
and duties: and on facts and events, as causes of rights and
duties, or as extinguishing rights and duties.
J°nN:< .Rty~, Wi!<A ~n~M~ M~<M'<! 2)«<MS.
Rights in MM as existing ~e!' & or as not combined with o
rights tM ~MMMMm. °'
Rights w p~wM~ as existing ~Mr se, or as not combined
with rights tK. yoK. S'
Such of thé <'<MKMM«<M?M of rights w MM and rights in m
~wnaM as are particular and comparativeiy simple.
Such !<tMWM'<tM of rights and duties (or such complex a!
aggregatcs of rights and duties) as arise by universal succession.
fS~M'<MMMM~ Jï~A<% !M'<A M!M:<MMt: ~K<t~ (f~M'e
at~xife).
(M~
Delicts distinguished into civil injuries and crimes: or
rights and duties which are enects of civil delicts, distinguished
from duties, and other conséquences,which are effects of cnminal.
Rights and duties arising ~'om civil injuries.
Duties, and other consequences arising from crimes.
[j'<t<crp0<0:<<'a' f<<MM'Jp<MM ~JM~MM!~ <Me ~&S.]
Ï~AW OFPERSOm
Distribution of ~«<M or conditions undcr certain principal
aud subordinate classes.
Diviitioti of taw into ~M~x' nttd yn<'a<<.

Eeview of privtttc coudittOHa.


Ecview of pulitical coHditMns.
The <!<«<)M ur c'juJitmu (itt)prut)et'ty ~û called) of the monareh or
fuv<'t<'i~tt nutxber.
Division uf thc htw which KgNrdi! political contUttoni!, intu tMt-
~t<M<tCt«!~ and a<!))HKt~M<tt'<.
Bouudat-y which MveM p'~itied fMtn pt-ivttte conditions.

Ecview of anomatous or misceHaneous conditions.


The K~peetiv arritn~ementi! of th"M Bets of right~ and duties
which t').-sp<!ctive)y compose or constitutu the «:vemt etatus or
conditions.
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ZFCTM~ES <W t/ZSPBPDEYC'S.

PROVINCE OF JURISPRUDENCE
DETERMINED*

4.
LAW8 proper, or properly so called, are commands; laws whieh
are not commands, are laws improper or improperly so called.
Laws properly so called, with laws improperly so called, may be
aptly divided into the fonr following kinds.
1. Thé divine laws, or thé laws of God: that is to say, thé
laws which are set by God to bis human creatures.
2. Positive laws that is to say, laws which are simply and
strictly so called, and whieh form the appropnate matter of
general and particular jurisprudence.
3. Positive morality, rules of positive morality, or positive
tnoral ruies.
4. Laws mctaphorical or figurative, or merely metaphoncal
or ngnrative.
Thé divine laws and positive laws are !aws properly so
called.-Of positive moral rules, some arc laws properly so
called, but others are laws improper. Thé positive moral rules
which are laws improperly so called, may be styled laws or rules
set or imposed by opinion: for they are merely opinions or
sentiments held or feit by men in regard to human conduct.
A law set by opinion and a law imperative and proper are allied
by analogy merely; although thé analog~' by which they are
Thé <tuthor'< pt-efaec to thé origine! tfterwarthpuMisheJ by him in a treettis':
utitiot) of the wor)< undef thi:! titte states under the tttte of' Thé Provinceof Jnris.
that ont of thé lectures onpi)M)ty de. ))ntdence dettrminej;' «ud thé ttMttixe
Ih'ered by Mf. Austin, at thé UtfiveMity so paMif!he<t being divMcd accordiae to
of ïtondon, the firiit ten werc direeted to[«M, ond not by thé bours of re<dmg,
towards disttngttuhing positive law (thé was comprised in six lectures. TheM
npproprixte matter of jurispntdenee), pub)i<hM! tecturM, with alterations eon'
front vanotM objecta with which it is tined to a few Mge~, chieny made in
connectcti by ttatmbhmee, and front Mcorttitnce with hter memomndm of the
vano<MotheroHe<;tstowhich it is allied autttor, are tho six )cctH)'ei< whieh im-
by a)Mtogy. ThMe ten lectures were MedMtety hère M!ow.–R.C.
allied is strong 01' elpss.–I~ws motophorieat or ngurative, or
merely metaphonetti or ngumtivo, are !ftws impMperïy so caUed.
A law ntctapitorical or ngurative ami a law imperative and
which
proper are allied by analogy meroly and thé analogy by
tbey are alliett ia stendeE or ïemote.
Consequeutly,positive laws (the appropriate matter of juris-
prudence) are related in the way of resemblance, or by close or
remote analogies, to thé following abjects. 1. In the wa.y of
ïesemblimce,they are relatod to the laws of God. 2. In tha
rules of positive
way of resemblance, they are related to thoso
morality which are laws properly so called And by a close
of positive
or strong analogy, they are related to thoso rules
morality which are laws set by opimou. 3. By a remote or
slender analogy, they are related to laws metaphorica!, or laws
merely tnetaphoncat. t
The principal purpose or scope of the six ensuing lectures,
is to distinguish positive laws (the appropriait! matter of juris-
prudence) from thé objects now enumetated objects with which
they are connected by tics of resembhmce and anatogy with
which they are further connected by the common naine of
laws and with which, thereibre, they often are blended and
confounded. Ajtd, since such is the principal purposo of thé
six ensuing lectures, 1 style them, eonsidered as a whole, thé
province of jurisprudence detennined.' For, since such is their c

principal purpose, they affect to describe thé boundary which


the régions lying on
severs tlie province of jurisprudence from
its confines. 1
Thé way which 1 take in order to the accomplishment of
that purpose, may be stated shortly thus.
I. 1 detennino the essence or nature which is common to
ail laws that are laws properly so called In other words, 1
détermine thé essence or nature of a law imperative and proper.
II. 1 détermine thé respective chamcters of thé four several
kinds into which laws may be aptly divided Or (changing thé
phrase) 1 deterntine the appropriate marks by which laws of
each kind are distinguished from laws of thé others.
And here 1 remark, by the by, that, cxaminmg thé respect-
ive chamcters of those four sevcral kinds, t found thé following
the order wherein 1 could explain thon bcst First, thé char-
God; secondiy.thc
acters or distinguisinng marks of thé laws of
characters or distinguishing marks of positive moral rules;
thirdly, thé characters or distinguishing marks of laws meta- 2

phorical or figurative; fourthly and lastly, the characters or c


distinguishingmarks of positive law, M* Iftwa simpty and atrictîy A
so cftited.
By determining the essence or nature of a law imperativf
and proper, and by determining the respectivu characters of
those four severnl kinds, 1 detennine positively and negatively
the appropriate matter of jurisprudence. 1 determine positively
what that tuatter M and 1 distinguish it frotn various objects
which nro vanousty rclated tu it, and with winch it uot uu-
frequently is Uendcd M)d cottfoMH'tMt. 1 show moreover its
aNmties wit!i those various related objects a0)t)itics that ought
to bc conceived as preci~ely and cleurly as may be, inasmuch as
there are numerous portions of the )'a/<'o):a/<: of positive law to
which they are the only or principal key.

Having suggested the principal purpose of the following


treatise, 1 now will indicate the topics with whieh it is citieny
concerned, and also thé order wherein it presents them to the
reader.

I. In thé ~M< of the six lectures which immediate!y follow,


1 state the essentials of a law or rule (taken with the targest
signification that can be given to the term properly). In other
words, 1 détermine the essence or nature which is common to
ail Jaws that are !aws properly so called.
Determiningthe essence or nature of a law imperativo and
proper, 1 détermineimplicitly thé essence or nature of a command;
and 1 distinguish such commands as are laws or ndes from such
commanda as are merely occasional or partieiiliir. Determining
the nature of a command, 1 fix thé meanings of thé terms which
the term command impties name!y, sanction' or enforee-
ment of obedience duty or obHgation superior and
inferior.'
II. (a) In thé beginning of thé ~coH~ lecture, 1 brieuy
detemine thé charaeters or marks by which thé laws of God are
distinguished from other taws.
In the beginning of thé same lecture, 1 brieny divide the
laws, and thé other commands of the Deity, into two kinds
the revealed or express, and thé unrevealed or tacit.
Having brieHy distinguishedhis reveated from his unrevealed
commands, 1 pass to thc nature of thé signs or index through
which thé latter are manifested to Man. Now, eonceming the
nature of the index to the tacit commands of thé Deity. there
are thtee thwries or thrce hypothèses First, the pure hypothesis
or theoryof gênera! uti!ity; seeondty.the pure hypothesis or
tucury of & moi'tti sensc; thirdiy.n hypotttesis or theory «uxed
or eompounded of t!te others. And with tt statemenf nnd
exp!anation of thé three hypothèses or théories, thé greater
purtitMt of the a<'f:OK~ lecture, and thé whoto of th<~ ~M<! and
~K?'~t lectures, are exelusively or ehieny oeeupied.
That exposition of thé three hypothèses or théories, mav
seein sotaewhat impft'tmeut tu thc suhject and seope of tny
I
(.'uursf. But in a chaiu of systutuatical Icetuma concerued with
the <'«<«M«/t' ot' jurisprudence, such nu exposition is nccessory
liuk.
Of thé principles au'l distinctions invo!vcd by t!te t'H<<oH<<:
of jurisprudence, or of thc principles and distinctions oecurring
in t)m writin~s of jurists, there arc Mimy w))ielt could not be
cxpounded eorroctty and ciGarly, if the thrue hypothèses or
théories had uot beeu cxpouttded previousty. For example
l'ositive law and rnomlity arc distin~ui.shed by tuodurn jurists
iuto law natuNt and law positive that is to say, into positive
law and tuorality fa.stnoned on thc law of God, nnd positive I~w
and niorality of purely human origin. And this distinction of
!aw aud momlity into law natural and law positive, nearly
tallies with a distinction which runs through the Pandects and
Institutes, and which was takcn by the compilers from thé
jurists who are styted ctassieal.' Hy thé jurists w)to are styled
classical (and of excerpts from w!iosu writings tlie l'andects
are mainly contposed), yf« c«-<7~ is distinguished from yt<s ~M<i'«//<,
orytM <Mtiftt«)« ~tM<('MM<. l''or (say they) a portion of thé positive
hw which obtains in a particular nation, is peculiar to that
community Aud, bein~ pecuHar tu that community, it nmy bu
styled ~<M ett'<7<, or yM< ~t'MM <~t' cn'<~<M. But, besides
suc!) portions of positive law as are respeetively poeuliar to
particular nations or states, there are rules of positive law which
obtain in fdt nations, and rules of positive tnorahty which aH
mankind observe: And since thèse légal ruies obtain in aH
nations, and since thèse moral rules arc observed by aU man-
kind, they may be styled the y«~ MHKtKNt ~<n<tMM, or the coH:-
M!<M<! MMH!<)« /<M)!t'MMM; /!M. New thèse universat ru!es, being Il

uttiversal rules, cnnnot lie purc!y or shnpiy of ituman invention


and position. They rather are made by men on !aws comin~
from God, or from the intelligent and rntional Xatui~ which
is thé soul and thé j~uide of the universe. They are not so
properly laws of human device and institution, as divine or t
uatural Ia.w3 elothed with humau sanctions. But the légal and i
moral ruies whictt are pecutiar tu particHiM nattot~, are pore!y
or simply of human invention amt position, Inasmtteh they
as
(U.'(t partml Mut ttansie~ and not uni versa! and enduring, they
hanUy are fashioncd by their Imman authors
on divine or
natural modets;–New, without a previous knowledgeofthe three
hy~)otheses in question, the worth of tho two distinctions to
which 1 have briefly alluded, cannot be known corMettv, and
cannot bc estimated truly. Assutning tlie pure hypothcsh of a
moral Muse, ot- assuming thé put'<' hypothèse ci' gpnpKt! utHity,
those distinctions are absurd, or are purposelcss and idie subtiities.
But, assuming thé itypothesis compounded of thé others, those
distinctions are signincant, and arc also of considerab!e moment.
Besides, thé divine law is tiie measure or test of positive
law and momlity or (changing thé phrase) law and tnorality,
in so far as they arc what they o~ to be, conform, or are not
répugnant, to the law of God. Consequentty, an an-important
object of the science of ethics (or, borrowin~ thé language of
Benthatn, thé science of deontology') is to détermine thé nature
of the index to the tacit contmands of the Deity, or the nature
of thé signs or proofs through which those commands may be
known.–1 mean by thé science of ethics' (or by thé science
of deontology'),the science of law and morality as they respect-
ively OM~/<< to be or (changing the phrase), the science of law
and morality as they respectively a<M.!< be if <~< M~i/o?'?M tu
~<'u' MM~o't or test. T])at department of thé science of ethics,
which is concerned especially with positive law as it ought to
be, is styled the science of législation that department of the
science of ethics, which is concerned especiaUy with positive
mondity as it ought tu be, has hardiy gotten a name periectiy
appropriate and distinctive.–Now, though thé science of légis-
lation (or of positive law as it omy~ to be) is not the science of
jurisprudence (or of positive law as it M), still thé sciences
are
connected by numerous and indissoluble ties. Since, then, thé
nature of the index to the tacit command of thé Deity is an
ail-important object of thé science of législation, it is a fit and
important object of the hindred science of jurisprudence.
Thero are certain current and important misconeeptions of
the theory of général utility: Therc are certain objections resting
on those misconceptions, whicli frequently arc urged against it
Thete arc also considérable difficulties witli which it really is
embanassed. Labouring to rectify those misconceptions, to
answer those objections, and to solve or extenuate tliose difil-
culties, 1 probably dwell upon thé theor~' somewhat longer than
1 oaght. De&pty convineed of its truth and importance, and
thereforc earnestty intent on commendiag it to thé mîmb of
others, ï probably wander into ethicat dis~uisitions whieh are
not precisely iu keeping with the subject and scope of tny
Course. If 1 nut guilty of this doparturc irout tho subject and
scope of my Course, the absorbing interest of tha purpose wluch
Ifad!) me ft'om my proper path, will excuse, to induigent readei's,
my oiftince against ri~uMus logic.
II. (b) At the begiMMiHg of the ~/<'A lecture, 1 distribute
laws or rules under two classes First, laws properly so caUed,
with such improper laws as are closely anatogous to thé proper;
secondiy, those improper laws which are romotely anatogous to
the proper, aud which 1 style, therefore, laws metaphoricnl or
iigurative.–1 also distribute hws proper, with such improper
laws as are closely aaalogous to the proper, undm' threc classes
uamely, the laws properly so called wluch 1 style the laws of
God; tho laws properly so called which 1 style positive )aws
and t!te laws properly so called, with the laws improperly so
called, which 1 style positive morality or positive moral rules.-
1 assign moreover my reasons for marMng thoso several classes
with those respective names.
Having determined, in preceding lectures, the charaeters or
distinguishiug marks of the divine laws, 1 determine, in thé fifth
lecture, the characters or distinguishing marks of positive moral
rules that is to say, such of thé !aws or ru!es set by men to
men as are nut armed with legtd sauctious or such of those
laws or rules as are not positive laws, or are aot appropriate
matter for genernl or particular jurisprudence.Havingdeter-
mined thé distinguishing marks of positive moral rules, 1
détermine thé respective charaeters of their two dissimitar kinds
uamely, thé positive moral ru!es which are laws imperative and
proper, and the positive moral rules which are laws set by
opinion.
The divine law, positive law, and positive morality, are
mutually rclated in various ways. To iHustrate their nmtual
relations, 1 advert, in thé nfth lecture, to tlie cases wherein thev
agrée, wherein they disagree without conflicting, and wlierein
they disagree and conflict.
1 show, in thé same lecture, that my distribution of laws
pmper, and of such improper laws as are closely analogous to
thé proper, tallies, in the main, with a division of laws which
is giveu incidentully by Locke in his Essay on Human
Uuderstanding.
II. At the end of the sama lecture, 1 détermine the
(<t)
chatKcteta or distingtusMNg marks of laws metaphoncat or
figurative. And I shuw that laws which aïe merely laws
through metaphors, are blended and confouHded, by writers of
celebrity, with laws imperative and proper.
II. (d) în the ~'<e<A and /<M< lecture, 1 determine the
characters of laws positive: that is to say, laws which are
simply and strictly so called, and which form the appropriate
matter of gênerai and particutat' jurisprudence.
Determiuing thé charactera of positive laws, 1 détermine
implicitly the notion of sovereignty, with the implied or cor-
relative notion of independent political society. For the
essential difference of a positive law (or tho diHerence that
severs it from a law which is not a positive law) may be stated
generally in thé following manner. Every positive law or
every law simply and strictly so called, is set by a sovereigu
person, or a sovereign body of persons, to a member or members
of thé independent political society wherein that person or body
is sovereign or suprême. Or (changing thé phrase) it is set by
a monarch, or sovereign number, to a persoa or persons in a
state of subjection to its author.
To elucidate thé nature of sovereignty, and of thé independ-
ent political society that sovereignty implies, 1 examine various
topics which I an-ange under the following heads. First, thé
possible forms or shapes of supreme political government;
secondiy, tho limits, real or imaginary, of suprême political
power; thirdly, the origin or causes of political government
and society. Examining those varions topics, 1 complète my
description of the limit or boundary by which positive law is
severed from positive morality. For 1 distinguish them at
certain points whereat they secmingly blend, or whereat thé
line which divHes them is not easily perceptible.
The essential difference of a positive law (or the difference
that severs it from a law which is not a positive law) may be
stated generally as 1 have stated it above. But thé foregoing
général statement of that essential difference is open to certain
correctives. And with n. brief allusion to those correctives, 1
close the sixth and last lecture.
LECTURKÏ.
THE Mtfttter of jurisprudence is positive !aw law, simply and
strietly ao caited: or law set by political superiora to po!iticat
)
inibriurs. But positive law (or !aw, simply and strictly so
ca!!ed) is often confounded with objects to which it is related
by )'<~cwM«?!c< and with ob)eets to which it is M!atcd in the
way of aK«~;y with ubjects whick ate «~ sigHiHed,
and ~M~ff~tT/y, by the large and vague expression
p)-<
To
obviate tiie diUtcuJties spriHging front that confusion, I be~in
my projeeted Course with determining ttte province of juris-
prudence, or with distinguishiug the matter of jurisprudence
from those various retated objects tryiug to define the subject
of which t mteud to treat, before 1 endeavour to analyse its
uumerous and couplieated parts.
A !aw, in the most gênera! and comprehensive acceptation
in which the term, in its liteml !ueaning, is eMployed, may be
said to bu a rule laid dowtt for the guidance of an intelligent
being by an inteUigent being having power over hi)n. Under
this definition are included, and withuut itupropriety, several
species. It is nHeessary to denne accurately tite line of démarc-
ation which séparâtes these species front one another, as !nuc!t
tnistiness and intricacy bas been infused intu the science of
jurisprudence by their being confounded or not elearly distin-
gttisiied. In thc contprehensive sense above indicated, or in
thé largest meaning whieh it has, without extension by jnetaphor
or anatogy, the term /<:? embraces the following objeets:–
Laws set by God to his human créatures, and laws set by men
to mon.
Tite who!e or a portion of thé laws set by God to men is
freouently styled the law of nature, or natural law being, in
truth, the only natural law of which it is possiMe to speak
without a metaphor, or without a Mending of objects which
ought to bo distinguishe(t broadly. But, rejecting the appellation
Law of Nature as ambiguous and misleading, 1 name those laws
or n~es, as considered collectively or in a mass, thc JKnM<: ~w,
or t!~e /f<!p n/' God.
I~aws set by men to men are of two !eading or principal
classes: classes which are often blended, aithough thoy dinër
extremely and which, for that reason, should bo severed
precisely, aud opposed distinctly and conspicuously.
Of thé laws or rules set by men to men, some are established
by ~t<M<~ superiors, suvereigu and 8ub}ect by persot~ exer-
cising supretnc and subordinatft yaraitMe~ ht independent
nutiotts, or independejtt political soeieties. The aggregute of
thé rules thus ettablished, or sotne nggregate iorming a portion
of that nggregate, is the appropriate matter of jurisprudence,
général or particu!ar. To the aggregate of the rules thus
established, or to some aggregate furming a portion of that
aggregatu, tho term /««', as used shuply and strict!)', is exclu-
Mvely applied. But, as contFadiaUH~oished to Mft<«M<< law, or
to thé law of M«~<?-< (meauing, hy thosc expressions, thé law of
God), the aggre~ate of the ru!es, estaUi.shed by political
SHperiors, is frequently styied ~M<7<M law, or ]aw exi.stin~
~i'<MM. As contradistinK'ushed to the rules which 1 style
~M!7<<: mo?v< and ou whie]t 1 shaH toueh immediatety, the
aggregate of the rules, established by political superiors, May
also be marked coutmodiousiy with thé name of ~Mt~'t'e /«)'
For the saké, then, of getting n name brief and distinctive at
onep, and agreeably to fréquent usage, 1 style that aggregate of
ruies, or auy portion of that ag~re~ate, ~)M!< ~«c: though
rules, whieh are K~< established by politietd superiors, are also
~<M, or exist ~<M!'<OM, if they be rules or laws, in the
proper signification of thé tenu.
Though Msx' of thé !aws or ruies, which are set by nien to
men, are estabUsIted by political superiors, ~/«'/A are )«/' estab-
Iis))ed by political superiors, or are ?!o< estabtished by poHticat
superiors, in that capacity or character.
Ctosely ana!ogous to humau laws of this second class, are
a set of objects frcquentty but 't~)'~<y tenned /p.s, being
rtues set and enforecd by MfM (/p<K<Mt, that is, by thé opinions
or sentiments held or felt by an indeterminate body of men in
regard to human conduet. Instances of such a use of tlie term
~<w are thé expressions–' Thé !aw of honour Thé law set
by fashion and rntes of this species constitute much of what
is usually termed International law.'
Thé aggregate of human laws properly so called belonging
to the second of thé classes above mentioned,with thé aggre~ate
of objectstH!)< but by ~ow '<H<f~ tcrmed laws, 1 p!ace
together in a common class, and dénote them by thé tenn
~<:M MO!V!<y. Thé name M)o~<y severs then) from ~o.<<'e
/<c, while thé epithet yo~fn' disjf'ins them from the /<!tc c/'
CoA And to the end of obviating confusion, it is nccessary
"r expedient that they ~oxM be disjoined from the latter by
that distinguishing epithet. For thé name MOMtMy (or mo<'f!<!),
whon atMMMag unquatified or atone, denotea mdMbrmtt~ either
of tha following oh)ect9t aatncly, posMv~ momHty<t«<M, or
without regant to its nierits and t~ositive morality CM wc«M
if it eoufohned to the !aw of Gôd, and were, tborefbre, deserv-
ing of <M'<~<!<tW.
Besides the various sorts of ruks which are ineluded in the
literal acceptation of the tenn law, and those which are by a
close and striking analogy, though improperly, termed laws,
there are nuruerous applications of tho tertu law, which l'est
upou a sieuder anniogy and are taerety metap!torical or itguitt-
tive. Suoh i.'i the case wheu we talk of ~!M observed by thé
lower nuimals; of AtiM regulatittg thé growth or decay of
vegetables; of laws determiuiHg tlie movemonts of inanimate
bodies or masses. for whcre <H<t~<'M<- is not, or where it is
too bouuded to take the name of w~pK, and, therefore, is too
bouuded to conceive the purpose of a law, there M not thé w!
which law can work on, or which duty can incite or restrain.
Yet through thcse nusapplications of a name, flagrant as thé
metaphor is, bas thé field of jurisprudence and morals been
delu~ed with muddy spéculation.
Having suggestcd thé ~o~oM of my attempt to determine
the province of jurisprudence to distinguish positive law, thé
appropriate matter of jurisprudence, from the various objecta to
which it M related by resemblance,and to which it is related,
nearly or rcmoteîy, by a strong or siender analogy 1 shaM now
state thé essentials of s ~op or )'M/e (taken with the largest signi-
fication which can be givcn to thé terni ~?'~).
Every ~f or )'K/c (taken with tho largcst signification which
can be given to the terrn ~o~y) is a MMMaM~. Or, rather,
laws or rules, properly so called, are a ~<;<< of commauds.
Now, since the tenn comMO'K~ comprises the terni ~M', thé
first is thé snnpter as well as thé larger of thé two. But, simple
as it is, it admits of explanation. And, since it is thé /'<y to
thé sciences of jurisprudence and morals, its meaning should
be anatysed with précision.
Accordingly, 1 shall endeavour, in thé first instance, to
analyze the meaning of 'fOMtM«K~ an analysis which, 1 fear,
will task the patience of my hearers, but which they will bear
with cheerfulness, or, at least, with résignation, if they consider
the difficulty of performing it. The éléments of a science are
precisely thé parts of it which are explained least easi!y. Terms
that are the largest, and, therefore, the simplest of a series, are
without équivalent expressions into which we can resolve them
<'<MM'M~. And when we endeavour to <~Ke them, or to trans-
late them into ferma which we suppose ara bettet' understood, we
are ibrced upon awkward and tedious ch'cmniocutions.
If you express or intimate a wish that 1 shall do or forbear
froni some act, and if you will visitL tae with au evil iu case 1
comply not with your wish, the f.<~MVM!'<~t or M~'m<!<MK of your
\vish is a c(/M<m«!M/. A commaud is distinguished from other
significations of désire, uot by the style in whicit the desiM is
signiHed, but by the power aud the purpose of the party cont.
maudin~ to intiict an evil or pain in case thu desire be disre-
~arded. If you cannot or will not hami me in case 1 comply
not with your wisb, thé expression of your wish is not a corn-
mand, although you utter your wish in imperative phrase. Ii'
you are able and willing to harta me iu case 1 comply not with
your wish, the expression of your wish amounts to a command,
although you are prompted by a spirit of courtesy to utter it in
the shape of a request. P/cs erant, sed ~<M <'<M:<r<~Mt no?t
~c~<'< Sucit is thé language of Tacitus, wiien spcaking of a
petition by thé soldiery to a son and lieutenant of Vespasian.
A eonnnand, then, is a si~))ification of désire. But a cotn-
mand is distinguistied from other significations of desire by this
peculiarity that thé party to whom it is directed is liable to
e~dl from the other, in case he comply not with thé desire.
Being liable to evil from you if 1 comply not with a wish i
whieh you signify, 1 am &f!<M<< or oM~/KJ! by your command,or 1 i
lie under a f~<<.y to obey it. If, in spite of t!tat evil in prospect,
1 comply not with the wish which you signify, 1 am said to
disobey your command, or to violate thé duty which it imposes.
C'ummand and duty are, therefore, corrélative terms the
meaning denoted by each being implied or supposed by thé â
other. Or (changing the expression) wherever a duty lies, a
command bas been signined and whenever a command is
signified, a duty is imposed.
Concisely expressed, the meaning of thé corrélative expres-
sions is this. He who will intlict an evil in case his desire be
disregarded, utters a command by expressing or intimating his
desire He who is liable to thé evil in case he disregard the
désire, is bound or oMiged by thé command.
The evil which will probably be incurred in case a command i
be disobeyed or (to use an équivalentexpression) in case a duty be
<
broken, is frequently called a .MK<'<«Mt, or an <:K/bfMM~ o&~t- c~
MMe. Or (varying the phrase) the command or the duty is said
to be MMc<MK< or CK/WM~ by the chance of incurring thé evil.
Considored as thua abst~cted from thé eommMtd and the
duty which it ehforce~r thé evit to be tncurfed hy disubedienea
is frequeutly sty!ed a y«MM?/«H~. But, as pmushments, strietjy
«o caued, are ollly a f/fM! of sanction. the tcnn is too narrow to
cxpMM the Mteaning ade'tH(ttety.. J
t
1 observe that Dr. Ptdoy, ill his anatysis of the tenn oMM/f<-
~i, hty.? tuuch strass upon the Wu/t~M oi' the ntottvc to corn- )
ptiauce. in so far nii 1 ettn ~athct' ft meaning from tus tocse
t
aud iucomijtcat statement, his til~nh~ appears to Le this:
that uule'is tlie motive to cotnpiiimce bc ~<~K< or Mt~Mw, t)M
expression or iuthmttion ot' it wish is not <'MMMM/«~,nor does tho
party to wi~m it is dimcted lie under ft ~M<~ to regard it.
If he tncftns, by a i'M/(< motive, a motive opemting with (
t
certainty, lus propositiou i.s mauifestty i'aisc. Thé greater thé
evil to be incurred in case tlie wisti Le dMrc~artted, and thé 1

greater ttte chance of incun-m~ it on timt same event, thé greater,


no doubt, is thu <7<ftM<'f t)t:tt thu wish will Mo< be disi-egarded.
])ut uo conceivabie motive will e«-<<ti'K/y détermine to compliancc,
or no couceivabie ntotive will reuder obedieuce iuevitable. If
Pa!ey's proposition ho true, in thé sensé which 1 hâve now
ascribed to it, commands and duties are simply impossibte. Or,
redncing his proposition to absurdity by a conséquence as mani-
festly i'a)se, commands and duties are possible, but arc never
disobeyed or brokcn.
If he nicans by a )'i'o<'eK< motive, an evil which inspires fear,
his meaning is simply this that the party bound by a command
is bound by the prospect of an evil. For that which is not
teared is not apprehended as an evil; or (changing the stmpe
uf the expression) is uot an evil in prospect.
Thé truth is, that the magnitude of the eventual evil, and
the magnitude of the chance of incurring it, are forcign to the
matter in question. The greater thé eventual evil, and tha
greater the chance of incurring it, the greater is thé efncacy of
the command, and the greater is the strength of tho obligation c

Or (substituting expressions exactiy équivalent), thé greater is


i
the cAftMCf. that the command will be obeycd, and that the duty
will not be broken. Hut where there is the smaUest chance of
incurring the smaUest evil, tlie expression of a wish amounts to
a eommand, and, therefore, imposes a duty. Tho sanction, if you
wiU, is feeble or insufncient but still there is a sanction, and,
therefore, a duty and a command.
Hy some celebrated writers (hy Locke, Bentham, and, 1 think,
Paley), thé term «<Me<MM, or <;K/M'c<:M<:M< (if «M~Kf, is applied
ta conditionat good a~ wd! tf eotKHUonat evil: to
reward as
well as to punishtnent. But, with s!t my habituât vcttpratîon.
for the names of Lockn and BenthMH, t thiuk thatr thi% ex~nsion
of the term is prenant with confusion and pcrpicxity.
Hewards are, indisputaMy, Mf~'M to comp!y wir!< thé wishes
of uthors. But to talk of commands and dnties as .M/it'o?!t'(/ or
c/t/ct'ee~ by rewards, or to talk of rewards as 't;<~ or t'oK.s'f<K-
ing to obedience, is surety a wide depftrture from the c~taHishcd
tHeaniug of the tfnMa.
If ~OK cxpressed a <tesu'e that 7 should render a service, and
if you proHëred a reward as the motive or inducement to renderl'
it, yo!f would scarcely Le said to <-MKm<M~ the service, nor should
I, in ordiMary language, be oM~/t~ to render it. Ix or'Hnnry
language, ~«M woutd ~'oM<s<: me a reward, on condition of my
rendering thé service, whiist 7 might bo ut«<«< or ~tMKf«~«/ to
render it by the hope of obtaining the reward.

some act, an eventual t'


Again If te law hold ont a ?'<'M'<u'~ as an induceMeut to do
is cortferred, and not an t/M<~«/K
imposed, upon those who shall aet nceortti)t~!y Thc ~Kp~vf~'r''
part of tlie law being addressed or direeted to thé party whom
it requires to !'t'K~c~' the rewat~t.
In short, 1 aru dctcnuined or inelined to comp!y witit the
wish of another, by the fear of disadvantage or evil. 1 am a!so
dctermined or inclined tu comply with thé wi.sh of another, by
the hope of advantage or good.1. But it is on]y by the chance
of incurring f! that 1 am &«:<?!<< or oM~M~ t" compHanee. Itt
is only by conditiona! c! that duties are .M?<c<i'</Mf<~ or f~/b<'M<
It is the power and the purpose of inOieting eventual ci-il, and
not the power and the purpose of imparting eventual .~<'<~ wilieh
gives to the expression of a wish thé name of a c</MMf<H<
If we put )'c«'o?'~ into the import of thé terni MKc()' we
must engage in a. toitsome stmggle with the enrrent of ordinary
speech and shall often s!ide unconsciousiy, notwithstandingour
efforts to the contrary, into the narmwer and customary meaning.
It appears, then, front what bas been premised, ti~at thé ideas T
or notions comprehended by thé term f~tM'~?;~ are thé fol!nwing.
1. A wish or desire conceived by a rational being, that anotjier m
rational beins shall do or forbear. 2. An evit to proeeed from
thé former, and to be incurred by the latter, in case the latter
comply not with thé wish. 3. An expression or intimation of
the wish by words or other signs.
It also appears from what bas been premised, that <MHM!«M' T)
~«~, and MM/t'OK arc inseparably eonneeted terms thnt eaeh
embrace9 thé sameMeas aa tho others, though each dénotes those
Meaa in a pecùtiar enter or seriez
A wish conceived by
one, and cxpressed or intimated to
another, with an evil to be inttieted and incurred in tho
wish be disrega~ed,' Mo signified directiy aad indirecttycase
by each
of the three expressions. Each M the name of tho
same complex
notion.
But whon 1 am talking (H)'<'<-</y of the expression intima-
or
tion ut' the wish, 1 cmploy the t~rm comMtNKd' The expression
or intimation of thé wish being presented ~'otKmcK~ to my
hearer; whi!st the evil to be incurred, with tho chance of
incurring it, are kept (if 1 may so express tayself) in the back-
ground of my pieture.
When 1 am tatking (~-ft-<~ of the chance of incurring the
evil, or (cimnging the expression) of the liability obnoxiousness
or
to the evil, 1 employ thé term (/«~, or the terni oM~a<;M~ The
tmbiHty or obnoxiousness to thé evil being put foremost, and the
rest of the complex notion being signified implicitly.
When 1 am taïking ~i!M~M<t~ of thé evil itself, 1 emplov
the term MKe<<oK, or a term of the like import Tho evil be
to
incurred bein~ signitied directiy; whilst thé obnoxiousness
to
that evil, with the expression or intimation of the wish,
indicated indircct!y or oMiqudy. are
To those who are familiar with thé language of logicians
(!angt)age unriva:!ed for brevity, distinctness, and prcciJon), 1
can express my meaning accurately in a hreath.–Eadt of thé
three terms <t~</?< thé same notion; but each ~Ko<< dinbrent
a
part of that notion, and cMMo~ thé residue.
Commands are of two species. Some aro ~w.!
others have not acquired an appropriate
~<
or The
name, nor does language
afford an expression which will mark them brieny and precisely.
1 must, therefore, note them
as well as 1 can by thé ambiguous
and inexpressive name of'eccfMiMM!~ or~WMM/<!t' comman~s.'
Tho tenn ~M or f!</M being not unfrequentty applied
to
Dccasionat or particular commands, it is hardiy possible to describe
t line of separation which shall consist in every respect with
MtabHshed forma of speech. But the distinction between laws
tnd particular commands may, 1 think, be stated in the follow-
ing manner.
By every command, thé party to whota it is directed is
)Migcd to do or to forbear.
Now where it obliges ~MM~y to acts or forbearances of
~<Ms, a command is
a
a law or rule. But where it obliges to a
t ~e~eact or iorboarance, or to .acts or forbearancM wMeh it
determmës~M~aZ~otM~~M~~eoMmandMoeeasi~
or partnutar. In other wprds, a daso or descriptum of acts is
determined by a Ittw or rule, and nets of that da.~ or description
are onjoined or iorbidden gênera! )y. But where command is
occasional or particular, the act or acts, winch thé conmtand
enjoins or forbids, aro assigned or determined by their spécifie
or individual natures as well as by t!)c class or description to
which they bclong.
statcmeut which 1 hâve givell in abstract expressiuns
1 wiU uow endeavour to illustrate by apt exaBiptes.
If you cotmnand your servaut to go on a given errand,
or
Mo< to lcave your house ou a givcn evenin~, to me such
or at
an hour on such a morning, or tu rise at thttt hour durin~ thé
next week or tuonth, the command is occasioMtt or particular.
For th(i aet or nets enjoined or forbiddeu are speeially det~rmined
or assigned.
But if you command him <M!~ to rise at that hour,
or to
rise at that hour «~M~, or to rise at that huur <~ /<H-~)- M-tA;M,
it may be said, with propriety, that you !ay down a rK/e for thé
guidance of your servant's conduct. l'or
nu spécifie act i.
assigned by the connnand, but the command obliges him geneMlIy
to acts of a detcrmined class.
If a régiment be ordered to attack or défend a post, to
or
quel! a riot, or to march from their présent quarteM, titc eomnmnd
is occasional or particutar. But an order to exercise daih' till
further o~ers shall be given would be caUed a y<'K< order, and
M~/t< be called a <'«~<
If rarliament prohibited simply the exportation of
con),
either for a given period or indefinitely, it would estab!i.si) law
a
or rute a ~mf/ or .?)'< of acts being detcrmined by thé comMand
and acts of that kind or sort being ~<y forbidden. But an
order issued by ParJiament to meet an impending scarcity, and
stopping the exportation of corn ~(~~ <!M<~Mt~-<, woutd
not abe law or rule, though issued by thé sovercign tegislature.
Thé oi-der regarding exclusively a specineft quantity of
corn, thé
négative acts or furbearances, enjoined by thé commaud, would
be determined specincaHy or indh-idually by the dctenninate
nature of their subject.
As issued by a sovereign législature, and
as wearing the
form of a law, thé order which 1 have
now hnagined wou!d
probably be called a law. And hence thé dimeulty of dmwing
a distinct boundary betweeu laws and occasional commands.
Agftht An net whiett is not an on~nco, according to the
ëxbtmg htw, movës ttie aovel'eign to dispicasuro: a&d, t!nmgh
thé ttuthors ot' the aet are legatiy innocent or unof!ending, the
sovt'reign commauds that t)tey shatt be punished. As eujoining
M spécifie punishment m
that spécifie ca~u, and a& uot eujoining
gettcndty ucts or torbeat'ances ot' a class, the oïder uttered by
the sovereign is not a law or rule.
Whethcr such ~n ot~or woutd bu M/</ a law, seems to
dépend upf'n cit'emnsta)tce~ whieh m'o purely imintttenal: im-
matet-iat, that is, wittt ruftifence to thé ptfsent purposu, t)toug)i
nmtel'iat with référence to others. If made by a sovereign
ttSMtnbly deliberatcly, aud with thé fonns ot' législation, it wouîd
pt'obabh' be catled a law. If uttered by an ttbsotute tnonarch,
without délibération or ceremony, it wouîd scarcely be con-
foundedwith «ets of !pgis!ation, and wouîd bo stylcd an arbitifu'y
command. Yet, on eitber of these suppositions, its nature wouid
be thé s.tme. It wouîd not be a law or rule, but an occasional
or particutar command of tite soverei~n One or Xumber.
To eonctude with an example whieh best illustrâtes thé dis-
tinction, and whieh showi! thé importance of the distinction
most coMspicuousty,y«~<cM/ cfM?<tHK<~ are connnonly occasional
or particular, although thé commands winch thcy are catculated
to enforce are commonly laws or rutes.
For instance, thé tawgiver cotnmands that thieves shall be
han~d. A specifie theft and a speciM thief being given, thé
jud~e counnands that the thief shall lie hanged, agreeaMy to
the comatand of thé tawgiver.
Now the lawgiver détermines a class or description of acts i
prohibitsacts of the class generally and indcnnitdy; and com-
mands, with the like generality, that punishment shall follow
transgression. TJte command of thé iawgiver is, therefore, a law
or rule. But thé eommand of thé judge is occasional or parti-
cular. For ite orders a spécifie punishment, as the conséquence
of a spécifie onenee.

According to the line of séparation whieh 1 have now


attemptcd to 'tescribe, a law and a particular command are dis-
tinguished thus.–Acts or forbearances of a <«? are enjoiued
~t?M!'(!</ by the former. Acts ~frMi'MCt~ sp<ct~ca//y, are enjoined
or forbidden by the latter.
A difterent line of séparation bas been drawn by HIackstone
and others. According to BIackstone and others, a law anct a
particular command are distinguished in the following manner.–
A !aw obtige9 ~c~ctf!~ thé Miembers uf thé given cottmuuMty,
taw (tbitges ~oM!'a~ pet'SMts of & gtv~t da~. À particuIttF
w
s.
command obliges ft 6w<~c person, or persous whjom it
detei'minM
<y«~~«a~.
That Iawi< and part.icuhn' conuattnds are not to be distin-
guishcd titus, will appeai' on a tfioment's t-cfteetiutt.
l'or,~<, cominfUtds which oblige ~tMt-HHy thé meuibers of
the ~ivMi comtBUMty, M- eo!HMj(t)t<)s wiftch obi~e geucratJv
persutis
of giveu dusses, aM ttot alw~ys hws 01- ruie.f.
Thus, iu the case airefnty supposcd; thnt in whieh tlie
sovereigu commands that aU corn actually shipped for expurtn-
tion bt} stoppa attd detfuned thé comnMnd i.3 obligatory
upon
the wholo conttttunity, but as it oUiges them o'dy to set <ji'
a
act.s itidividuitHy assigned, it is not a iaw. Ag:tin,
suppose thé
soverciga to issue M)t order, enforeed by pcnahies, for
a gene-
rai mourning, on occasion of a pubHc ea)amity. Xow, though
it is addressed to thé connnmuty ut large, the order is searejly
a rule, in the usual acceptation of the tenu. For, though it
oUigea gcHcraJIy thé m~mbers of thé CHtire eomBMUMtv, it
obliges to acts w!)ich it assigns speci(iea!!y, instead of oMiging
generally to acts or forbearances of a class. If the soverei~
commauded that Mf~- shuuM bc thé dress of his subjcct.s, his
comtnand would amount to a law. But if lie couunanded them
to wear it on a specified occasion, his command would bc tuerely
particntar.
And, .w<M<f/, a command whieh obliges exclusively
person.
individually detenuined, may atnouut, notwithstanding, to law
a
or rule.
For exatnpio, A father may set a )-!</<; to his c))i)d chUdr~
or
a guardian, to his u'ard a master, to his siave or ser\'ant. And
certain of God's /«it'~ werc as binding on thé tirst
man, as they
are binding at this hom- on thé miltions who hâve sprung from
his loins.
Most, indeed, of thé laws which are established by poiitica!
superiors, or most of the ]aws which are simpty and strictly
so
called, oblige generalty tlie monbers of the political connnunity,
or ob!ige genemny persons of a class. To frame a systeni of
duties for every iudividual of the eommuuity, were situply im-
possible and if it were possible, it were utterJy useless. J~ost
of thé laws established by political superiors are, thereibre,
ytM~ in a twoMd tnanner as cnjoiniug or iorbidding generatly
acts of kinds or sorts; and as binding the whote community, or,
at teast, whote classes of its members.
But if we suppose that Paruantent créâtes and gmnts sut
oMee, and that Paruament Mnds thé grantce tu services of a
given description, wc suppose a taw estaMished by political1
superiors, and yet exchtsivcty Muding a speciM or detenninate
peMon.
Laws estabhshed by political superiors, and exclusively
binding specified or dctet-minatG persons, are styled, in thé
lan~ua~e of the Homan jurists, ~<'t'<!<7<<yK<. TItough that, indeed,
is a nanM which will hardty dénote them distiuct)y for, Hka
most of thc Icading tft'm!} in actuat systons of law, it i.
not the name of a definito class of objecta, but of a heap of
hetero~eueous objucts.~
It appears, from what bas been premis~d, that a law,
properly 83 called, may ho defined in tho following tnanner.
A law is a command which obliges a person or persons.
But, as contmdistinguished or opposed to fut occasional or
particular eomttmnd, a taw is a command which obliges a person
or persons, aud obliges ~<'Kn'«/ to nets or forbearauces of a class.
In language more poputar but less distinct and précise, a
law is a command which obliges n person or persons to a <?«!'?
of conduct.
Laws and other commands are said to proceed frotn ~<:)'tû?'s,
and to bind or oMige ~t/)'«'M. 1 will, therefore, analyzc thé
meaning of those correlative expressions and will try to strip
them of a certain ntystery, by whieh that simple meaning r
appears to be obscured.
<S'i<po'o< is often synonymous with ~w~fKce or Mct~-
A'Kft'. We talk of superiors in rank of superiors in weaith
of superiors in virtue: eontparing certain persons with certain
other persons; and meaning that tite tonner précède or exect
tite latter in rank, in weaith, or in virtue.
But, taken with thé meaning wherein 1 hère undcrstand
it, t))e terni ~<:< signities M!y/i< the power of afiecting
others with evil or pain, and of forcing them, through fear of
that ovi!, to fashion their conduct to onc's wishes,
For example, God is emphaticatty tlie -M~'iM' of ~tan.
m ~f~-t't'Kht )H~rf]y i'n'
(') Whcro Mt].th<'rt'foM,)!!Y~'t't't7<MM. [nrMpect
))o<tf! a <)uty, it exchtitivtyaHi~s <t
'tc- ofth''()Mtyitu)").t'~tMrrc!~<))tdin{{
t<:rmi))!)t''tjMr.<on<;r]wr"M< Hntwh<-r<: tot)t<')-i);ht<'uHf';rrt:~),th<'hwn't!:u\k
a;ti-'t't7<<tM<'ot)f<'r!!ari!;)'t.tth<' (~x'mtty the )MOu))):r~ uf <h<: ~tirc coM-
fiift't conten'ct «M<7< w<at'tH< </« t~fM munit;
«< /'<~<, thé law is ~ftrt/'T/utmas YK'wctt Thut!ihttn''x[)tfti)t)KtrtiMhr)y<tttt
from !t CMrtain iMpcet, but M tho « y; Il
sub.'i<(uent p'ftMt of tny Courut*, when
f«< /OM' M VMwett from tmothtr ftsp<t. t<;ot))<id<:rt)"it)<'t;uliatf))attnreofiio-
tu re'iMct nf thé r)!;ht cooffrre~,thé )aweaUrnt ~/fH;tY<yMt, or «f so'catM ~m~
tiettuivety regard.') a determinate person, ~t)<
For his power of af~t'nt; us with pain, !Utd «f fot'd)~ us t'.
comply witH tus wH!, h Mut~tmk'd and r~istip~;
To ft !it)):tt-d GxtfHt, thé "o~rci~t Ou~
ut- Xutubsr t. th'
snpurior of thc subjcct or citixcn thu urn~r, ut' thf .~tav~
o
.~t-vaut: thf MM)-, of thf (.'hHd.
lu short, whocv~' eim «M~ nHott~r to .ot))}<)\- with hi?
wishc. i.s thé ~«~-< ut' t)int «th<ir, so ta!- M th~ n)~i)tn- n.-a<Jt<
Thé party who is obttoxi~ns tu th<' impctuiiug evil, tjcit)~. tfnt
tu
stmx' cxtent, thc ~(/t'<-w<
Tftu tni~ht or supt-n-jnty oi' (:o.), is Mitnptc absout-
ot-
But i)t nH ur tutjst casM of hmnfn) sttpt.-riority, thf; rt'hui'jn
u)
'iup<-yi<tr an.) hticrior, and ti)c t-t-httiftn of ittffrior and
.<up<-n<'r.
are ru(.-ipr.je!t). <Jr (dm))~n~ thc cxj<t-ession) thé j~n-ty \ho ).-
tho supet'i.jt- liS viewud frotu ouc aspect, M thc intmior
as vicwff)
t't'Mtt a))')t))(.'t'.
F'u' fxampie, To au indefinitt. thougti Hmit~d
extcnt, t!tt-
monat'<:)t is thé supt-t'io)' of thf ~ov.-rncd: iiis
powcr );<;m~
cotntuouiy sufticicut to cnforee eo)ttp!iattce with iiis will. ]{u:
th~ ~ovH-ttMt, coliccth'ciy 01- in mass,
in'<- &t.~< thé ~<)Dewt- f)
thc monarch: who i-! ch'-c);ed in thé ahu.t; of hi.s tui~ht ).]n<
t<'ar ofexf-itin:{ thpir au~-t-, aud ot')-ousi))K to activa- rc-si<tam.
thc tui~ht witic)i shuaLt-t-s iu th(; ntuttitud~
A menther of a .sovo-ci~u assetnhty is t))e .-upct-io)- of thf'
.judge t!K' ju.).i.;e buin~ bound by thc !a\ which ].r.~eds
from
that soverei~u body. But, in his chamctL-r of c-itixcti subjcct.
ot-
hc M thé infct-ior of thf jud.w: thc jud.~ 'it~ tiM t))i)tistM' ~i
thé )aw, and annfd with thf {mwcr of t'nforen).~ it.
.<t7y
~M<</
It appears, th~n, that thé term
and ~/«-/<~) i.% impli~d by th)' to-tn '«/
(like tir.. t<-)i]]-.

.sttpenority is thé po\t.r of enfbrcin! c..tnp)ianc" wit]) wi.sh


a
Fot
aud thc expression ot- iuth.iatiou of a wi.sh, with tite
powcr and
thc purposc of euforcii)~ it, an.- t)~ con.stitm'ut (.-Icnx.nts of
a
eom)uand.
'Titat ~«Mouanatu froM.<K~t< i.i.thM-fibn.a)) identicat
proposition. For the t.tcauing which it afTect.s to impart i.s
containcd itt its .subj~:t.
If 1 tnark th(j pceu!iar .sûturf of a ;iv<)) !aw, or if f toark
thf pcL-utiar source of !aw~ of a ~ivcn (_a< it i-; po~ibfc that ï
a)n sayhtK soMethin-~ whic-h may instmet thc. ht-a:-r. ]:ut to
aitu-m of iaws univcrsaHy titai th.'y tiow fr.,t.)
at!t)-t)t of !aws univfrsa]!y that <~)-<
.!M~. ,< or to
are bound tu obc\
thcnt,' i.s th'; )n<'t'Mt tauto].~y and trifting.
Likc most of thu !cadin.j; tur).)- ill thb .<:ciMMus of hui-
I
prndfttco ftnd moFab, the term ~<~ M extreB!9!y amMgMOHtt.
Tahen wHh the hrgpst signMt'ation which mn t'c givcn to thc
term properly, ~;M ntf speeies of ''CMN'~K~. Hnt thé term
is itnpropct'iy appiicd to varions objets which Jmvu nothin~ of
t!m imperati\'eeh:u'!K:ter: toobjectswhi~h. arcx~ commauds;
(
and which, thctftm-p, arf Mo< Jaws, pr~pei-ty so cnHed.
AccartUngty, thc propositiott 'th~t ht\vs a)'ut:"mt))tt)~)' must
))t.' taken with tituitatiou;
various tncttnhtgs ut' thc tcrnt /f'
Or, mther, we must (H~tut~ui.tt thu
atld tnnst n'stnct thu
proposttton to that ciass of ubjccts whictt is unjbmeed by titc 1

tar~st si~tnftMttiun thitt ctUt bc ~iv~tt to thé tM'))i property.


t hâve ah'ca'tv iudieatfft, and shati ]ter<;aftcr tnM'o fully
dcscribc, the ubjeets itnpfopcrty tcnned laws, which are /«~
wHhm tiie provincM of jurisprudence (bcing either rules uaforcud
by opinion au'.t doscty anaiogous to taws propurly so caUed, or
bcinn laws so caH<;d by a metaphorical application of thc terni r

mm'dy). Thcrc an' 'jthcr objcets imprfjpcr!y tcntte't laws (not


c
being commauds) which yet may properly bu inctuded witinn
thc pruvjnec of jurisprudence. Thes~ 1 shall enduavour tu
particularise
1. Aets ou the part of tc~istatures to f.!y/f«'M positive !aw,
can scarcely be caHed laws, ill the proper si~nificatiun of thé
temt. Working no change i~~ the actunt duties of the governed,
but sitnpiy dcfiann; wi'at thoso duties «)' thuy pr';p<-r!y are t

acts of <<<t/y~f</<t by h'~i.siative authority. Or, to bun'ow an


-1

expression from thé writers on t))e Homan Law, they are act.-i of
~<(~< interprétation. r

j}ut, tliis notwithstandin~, they are frequently styled laws


tM<«'y laws, or dedaratory statuttis. They !ttu.st, therefore,
be noted a.s t'orntin}! an exception tu thu proposition that taws
am a f-pecies of counnand.s.'
R often, indecd, happons (as 1 shaU show in tlie proper
place), that kws dectaratory in xame arc hxpemtive in effuct
Le~i"!ativc, like judiciat interprétation, bein~ frcquent!y deecp-
ti\-c and establishin~ new law, under ~ui.se of expouudin~ t)tu
old.
2. Laws to rcpeal !aw.s, and to relcasc ffom cxistit~ duties,
must a)so bc exeepted fron thé pro]<osition that laws are a
1

spcf-i' of command. in so far as they reteasc from duties


imposed by f-xistin~ laws, titey ate n'~t conmand.s, but r<j\-oca-
tion~ of cotnnmnds. Th';y authofixe or perout thé parties, to
whont tho rftpeat extends. to do or to forbear front act:) which
thev werc cotamanded to forbear frotn or to d~. Aiid, considered
with t'f~art! t<~ ~< theh' !)nm<<te or direct pnrp~c, they
ar~
often !mnMft~<'?w~t't' ~i" or, uium bt-~fty audm~-M
p~p~ty,
/'f?'m<.MMM.
Ï:tn~ttjty and itt.tii-L-cdy, iud~d. p<t)))i.~iv.' !aw< :u-< otu.-n
or aiways itup~rativM. Fur th~ piatics i-~a~d i'rutt) ttuUcs <ov
restM'(.'d t~ tibcrtie.s 'u' rixhts and (huit; ausweriu~ thu. ri~!tts
.Uf, thctt.'t'~rf, (.'rcat~'t o)- t't.-vh't't).
J~t [)t: is a tunttur whK-.h 1 .h:t!I (.-ximmu.' wit)t <<f-U)~
witcu tau.dyxc t)~ Mprc-i«ns't~d ri~ht,' 'j~tmi~io)t Ly Uic
suvcrcinn <'t- st!(tc,' and
ch-it f.r p~ijucat litjfttv.'
ht~fH't~t. htw.s, or htw.~ ut' imp~et oblination, tnust
aiso bf <;xcGptt:d fr-jto thc pt~p<j::itiuft that htws
arc a spfcit.
of cmmnattds.'
Ah ituj~rfuct !aw (with t~ .nse wltct~in tim tM-m is n-d
by thé J:'j)nan jm-ists) is a Jaw whk-h wants a MiK-ti'j)), and
whi(.-h, then'i'or~, is nut Liuditt~. A taw du<)at'i))~ that .(.-rt:tih
a'ts arc critnM, but amtcxt!). u~ pu)ti.huK-)tt t'; thé eù))n))i..<ifjft
ot' a':ts o)' th" c]a.M, is thc .shupkst. and ntust aLviuus Mam;
Th"ugh thé auth'jf of au iuq~'r~t law .si~ttifiM.s dcsiru, lui
a
ntanit).-st..i )t" p'u~osc of enforcit)~ L-u))))'!iat)(.'M with thc d.-sh'e.
J:ut where tht-re js not a ].ur]"jsc ui' (.-nfurcin~ cottq'Hauc' with
thc désire, thc (..xprcssioti ')' a dfsit~ is n<.t a cotumaud. <;ot)S(;-
~ucutty, au intperibet !aw is uut so ~r'.}~-r!y a law, a< couusc),
'jr ('xhortati'.tt, addt-s<?ed by n -upfrif'r t~ infc-tiors.
Kxatupt~ of hitj~rf~ct ]aw.< art- cit~ hy t]~ ];u)nau juri-its.
Hut with us in Ku~taud, htws p!-<jf~.s.sed)y itupc~tive a~' aiwav.
(I htiHevu) pt;rt't.et or oUi~ttory. 'h'-)-f thc En~Iish it.~i.~atu'r.-
aii'ucts to conntmnd, thf Kn~ish trit.antfd.s nut uurcas~naLh'
pr~smuf that t)n.' k~i.statart; nxaet. ob(.-di<-)iC-G. And, if hf)
.spt-dfie saneti'j)) bu annûxed t<j a ~i\-t;n taw, .sauftiun is .snj.jth'd
a
by thu courts of justice, t~rL-eab!y tu a ~t~nd tuaxint whi'~
"btaius in cases of thf )<ind.
Thc impm-t'cct Jaw: of whicit 1 am h'.w speakin~,
an' !aw-
whic)) art; in)),rfcet; in thé -icn~ "f ~« 7.~M"«; ~K<-< that li
t" .say, !aw.s which spt.-ak t]tc dt;ih". <.f p.'HtiHd sup~ri~r.s, but
wilif-it thcir autitu! (by '.v<'r.i~]~
~r d(-i~)) )ta\-).- n.t provi.h.-d

~<<,
with sattetiox. ~lauy '~f thc writt-r-. on
raUt-d
M"and (m tht- <.u
hav- anucxud adittt-n.-ittmt.-anin~tf. t)~
tc'tia t'h~f~/i~. S)x;akii)~uf imperf't.'t ~bti~atiuus, th<'y CtjmnK)h]v
meaudmiL-iwhi'ban; «~/t.f/; dtttL- intpf~-d bye~mhtahd.-
"f t!"d, ur (h)tics i)ap~t;<) by p~iti\ )n~)-atity, a.s f.'outri)di.<-
tiu~ui.stted tu duti~-i itupo-tjd by positive )aw. An itttpof'-ct
ùb!~ati(.n, in thc ~nse <f thc liutuan jnri.<ts,i. .xaetl\ (.-tjui\'a!<-))t
t~ !t" oMi~ttiutt ttt fd!. t'or thé ttit'm <M~e< deuMtcs simple
tltttt ttn' Ittw Wtthtt th') fMm'ti~n Mppt-~prittt~t'~ hnvs of the kmd.
An impctfuct uUigatiou, in tlie other ittcauu's t-I'c nxprcssimt,
is :t n'U~uus or it tttON) obligation. t'hu tcnn <M/~<y:f-/ does
uot dcnote that thc htw impntin~ thé dttty want~ thé approprhttf
smtction. Tt <)~!tot~ t)Mt thé tow im~sitt~ thé duty M 7«~ ft
!)tw estab!i.tht;d Ly a pu))t.i''td .<u}~n~r tttitt it Wtntts t)iat ~.</c<7,
(U- that snrcr or more (;og<*nt sanction, which is hnpai'ted by t)n-
sovct'ei~n ùr sttHo.
t )jftM\'c' that 1 hn\'c u'.)W Mview'd att tttc ctasst's of ohjfct~,
to whieh thu tfna /<)«'< is impru~crty app)icd. The taws
(itn))t'<j{)t'r!y caUctt) wJtie); hâve hen' !a.~tty enun)cmtcd, iu'p
(1 think) thé only J~ws which :n'<j tlut c'jnuuands, and which vd
nmy bc propcrty inctudcd withm th< {)t'o\-iue(j of jut'i.<-})t'ndcucu.
Dut though tliuse, with ttic -iu caH'd laws .ut by opinion nnd
th'~ ')'jeet:i tnutaphori'~any tprnu.'J Ittws, iu'f the onty taws w))i'-)t
/«/ am uut cf'tantaud.s. th~'f aru eurtaitt ht\vs (pro~criy .o
(.'at!cd) which may ?<<; n~t itnpcmtivf. Aec<i)'<t!)t~)y, will
tnt'~in tt t'w t'umtH'ko npon btws of tht!; dubif~u~ chameter.
L Ttterc arc !a\s, it nmy Le ~aidt, w)tic)t </t«'~ cn'ute
7'< Ahd, Sfeiug timt ('v~'n' eouunaud unposf.s K 'y, taw.
of titis nature iu'e not uapoath't'.
Hut, as I hav; tutimatcd ulremly, and shall show com))!f;t'']y
ttcrMtftcf, titt'ru an: )n) laws M«'(7// <rfath)~ ?'<< TJtGh! :n'"
!aws, it istruc.which M'7.j/ch;ate'<'f.s; datins not c~n'etatt))~
with corrctatin.n t-i~hts. and w))if.')t, t))crcfoi'e may le styh'd "&M/
]~tt <ci'y !aw, ruany ('uttfm'rin;j' a ri~ht, i)n]<"scs uxj'rc~ty "r
taeitly a )'<<)< duty, ~r a dnty cut-n-tatu);~ with thé n~)tt. It'
it spm'it'y t)t<' KMcdy to )'e ~ivu, in case t)te ri~ht .sha!! ))<'
infrin~ud, it itaposM thu rutativ'; duty cx}'t'M.s)y. If thé reme'ty
to Le ~iv~u Le not spucifk'd, it n't'L't's taeitly tu pre-cxistin~ !aw,
:md c!uthcs thu right \v)tic)t it purputt.s to cruatc with a t'Ottcdy
})r')\'idt.'d Ly that iaw. Kv~ry )aw, rca))y cf'ttfct-t'i))~ a n~ht,
is,thf:rcf'jt'e, impt'Mtivu: :< itupt-nnivt'.as if its f<n!y ])tu'))"su
were thé creatiott of a duty, or as if thc rf)ati\'f ftaty. whi'Jt
it inevita)'Iy itap'Mes, Wfre mercty a)'sr')utt'.
Thé mcanin~i of titc t<;r)a <'< an' varioui; and ]K'rp!cxf;d
takoi with its propcr tacatti)~, it coutprisc.s ideas wfn~h tu''
ttumcrou. and cf)tnp!icatt;d; and thc SMHt])inK att'I fxtcnsi\
anaiysia, witich thf tf'rm, th'-refot'e, r'~quirc-i, woutd occopy n)0)'
r<ta thau coutd ).'e ~iv~n to it io the pr<;sent tcctui'c. lt i-.
not, how<ur, ncces.sary t!tat thu aua)y.is shuu)d be p''rf'u'tUfd
ht;re. 1 purpose, it) my 'ar)i';r i).'<tut' to dctt;rt))i))<; thc )')'
vinee at' jnrisprudeaeô; ot- t<~ dMtiM~ttbb thé hws e~abt~hed
by po!it!c:tl Mtptit'tors, from the ViU-ioH.t taws, projet- «nd intpropM',
with which thcy arc. ircquentiy confound~d. And thi.~ 1 )nay
accomptish cxactty <nough, without a nieu inquiry into thé
impart of thu tcnn /-<
Accordin~ tu au opinion whieh t must notice f'Mc<'(/tM<(t/
hère, thongii tllc subj~ct to whieh it n.atcs wit! Le tr~ittcd
~< het'eaft<;r, nM/(,M<fu-.</ ~««'.s ))tU'it
proposition that hws itt-c a sp(.'ci<< ~f <om))timds.'
bc cxpect(;!t from tite

i:y txany of the fn)n)i)-M)-.s ot' eu~totnat-y laws (and, ~i.~iaHy,


<f tttch' Uei'tnat) :t<huit'crs), thcy Hro thou~ht to oUi~f k-gfdh'
(iudt-punduutjyof t)ic .~ver~igu <jr statc;, &.««'.« tjtc citixens
or
.uhjects ))nvn obsct'v~d ur kcpt thejit. AgrccftDy tu this "pini")i,
t)~y are not the ewt~/v~ of thc scvo-ci~u or statc, a!thoug)t tjj~
sûvcrtiij.:)) ~r statc !uay abotish t)ie)n at p!ca.snn. A:~rcua).iy te
thi.-) opiniati, thuy are positive law (or hw, strictty
so <-ai!e(!).
masutuctt ft." they arc en)bi-e(;d t.y t))~ courts oi' justice !!ut,
t)mt notwitfi.stituding, thfy cxist ~.<.<7<'i'' /(;;<- by t))~ spot).
tnneous aftopti"u or tlie ,{0\-ctm:J, auJ uot Ly jjosition or
estaLti.htnent ott thé part of poUti~'al superioM. L'on.se'jucntiy,
cu.stotuary taws, consid~ret) us positive !:t\v, arc not eoM))t:un)s.
Au(), con.sc<ptcnt!y, custo;nary )aws, consi~rcd
as positive hw,
arc uot )aws o)' ruit.'s properly -;o caHc'.).
An opinion Ic.<s tny.stfriou. but sntitcwhat nHi~d to t]n.~ i~
not unconxnouly )t<j)d by the advcr- party by tht- party whicit
is strongty oppo-cd to eustohMu-y htw, and to aU taw Xtitdt.-
.judicii!]!y, or in thé way of judicial k'~i.-)atiou. Accotith)~ t~
the hut~r ophtiot), a!) jud~c-madu law, or ai! judgu-madc ]a\v
cstab!ished Ly .MA/t./ judge.s, is pure!y thc crf-aturM or t)t(- jud~i.i
t'y whom it i-! Mta)))h))ed intntfdi:ttM!y. To impute it to thc
<overci}ïn I~istaturf. or to suppo.s<; that it speaks thé wil! of thé
.ovcrci~n t~i.sJature, is oue of the foo]is)i or knavi.sh ~f<'<
with whieh !awyt;r.<, in cvcry at;c and natio)), hav~ perptcxm)
and darkt-n'jd thc sitnpL-st and (.-)c:ut"it truths.
1 think it will
a])pt'ar, on a moment' rctieetion, that ca'h
"f thu~' opinions is ~n-otmdlL"i that eustomary law is ~.f~
in the ];ropcr si~nineatiou ot' the term and that aU jud~c-ntadc
<'<
]aw is thc crcuturc of t)n' sovcrci~n
or state.
At its ori~in, a custom is a ru!u of condm't which the
.uovcrntid oh.servc spont.mcousiy, or not in pursuancc of !aw
a
<ft by a po)itieat superior. Thé eustom is transmut':d into
j'ositivc !aw, w])cn it is adopta! as suc)) by tlie courts ofjnstic'
and wt)en thc judiciid deci'.ion'i fasitioncd up~)n it are cnforced
bythe )MW6T of thé suttf. t~n beft*K' it i~ a'b~ted by thé
eotn't~, ttnd etothed with th<? h't =nwtMf!, it M mcrnty a. mif

"f p~itiv !tM'!()ny H ru!f ~em-r~Hy 't'Vt'd by tho citrixeut


or sut'ieets but derivix.n thé ")t!y force, whic!t tt ean )"' :Mid
to posse~s, front t!te ancrai dis:t{~prot'ation f:t)!i!t~ ')n tho~e who
tMh.~)'t'SS tt.
y"w wh'H .in't~'s tran'-nmt' a (.-ust'mi into a hi~at t'ulf 1:

tuak~ u k'~at rule ttot sn~'stc't t'y L'ustom), t!tc Ic~f)! m)''
which thcy cstnhthh is e.?r:thH'!hf't by t)M' <v'K !(";i"httu~
)

A subontinatc or suhjcct ju')~; is )u~K-!y i mmistur. Thu


pot'ti'm of thu sovelvinn f~wct' whieh lies ftt his 'U;,positi"u is
tUfr~ty d~~atcd. Tin' rule, \v)n<;h h<' tnakes dct'ivc their If~at
t'.n'eu ir"m tmtttunty i;i\'fn by the statt.- un nuthotity which the
.statc muy t.-cnft'r Gx~-ssty, Lut which it commouly nnpnrfi i)t
the way of acq'tif.sccucc. F'o', siucc t)te statu may tfver.sc t)t<i E

rules which hc makus, and y~t ~naits him to c'nforeu thetn by


tt~ p'jwft' of thé potitical cunnounity, its su\'ct-Gt~n wiU that
itis rules shaH oLtaitt its !aw is d~n-ty cviuccd by its conduet,
though not hy its expt'<"?'! dcchration.
The adtnit'cM of uu.st'~u:n'y law tovc to trick out th~-ir id"t
with Mystcri'~us and impo-iio~ attnLutcs. ~ut tu tix'sc wh"
ca)t sec thé diHcn;UM between positive law and momiity,
there
is uothiug of tnyst<;n' abuut it. Considered as rules of positive
tuomlity, custoutarytaw.s tn-isf ft'om t!)c consent 'jf t!)e ~o\'Mt'uud,
and not from thc po.sitiou of estaMishnMnt of political supcriors. t
But, considered as nMKtl rules turnfd into positive law. eustotn.
ary I~tWi are MtaUi.sh'id t'y thf state: cstablished by thé state d
dircctiy, when the customs at'u promu~ed in its statutcs;
estabtished by thé state circuitousiy, wt)ea th).: custon~ are
adupted by its tribuua!s.
Thé opinion uf ttte party which abhors judgc-madc taws,
sprints fr"m their itia~lequate conception of thé nature of
c'~nmand.
Like other significations "f désire, a <;Mn)nand is exprès-! or
tacit. If the de.sire be .i~itied by <«)-< (writtett ft- sp"ken), thé
t;"))Uuand is exprès- If thé désir*' bt- '.i~niHed by cr'nduct 'rby
any si~ns of de.sire whieh ar'' w"r<s), thé 'Otonand is taeil. )
Xow when cn.stouts are turned into je~at ruies by deci.si"n-:
of suhjeet jud~e. t)te le~at ru!es which ettter' from t]ie cnstoms
ore <«';<'< (i'jtmoand.sof thé sovcn'i~n )e~is!amre. The statc,
whi';h i.s able to abo)ish, permit~ its ministers t'
cnforee them
and it, therefore, si~nifie.-i its pteasure, t'y that its vohmtary
acquieseetice, that they shaH serve as a !aw to thé governed.'
4 My prcscut pm'jw~ is Htcrety thi. ta pt'~vu th~t. th~
positivf tttw ~yh'ft <M~~<~ (aud !<ti pMtth'K iitw tna')''
jndt'itdtyj M cstitUiiihed hy tim ~ntu dircetty m dt'cuimusiy,
imd, t)tGt'cf(j)'e, is <Hf/A/-«/f<'<. t mu htr frotu '!i';])Uth)~, Uiitt !aw
nM<te jufiteiftity (or itt thé w~y <tf itnpMpm- h~ishttiM)) und !aw
tufutt' hy statut'' (or ht thf pt~pct-Iy It'~Mhttive nKtttiter; af'
di<ti))~uis)m't by W(.'i~)tty diitft'MM~s. t shull itt<jtin'e, iu fntm't-
tcctures, what tim.sc di))'frt;n''cs:))'c; !t))d w!ty subj~ct jud~
wh« ure pro{)C~y hum~tets ~i ttt« htw, ha vu c'~mm'uty "hto~tt
with thé .'<ovf)'ni~!t in thé busiufss of makiuK it.
assuutu, thfu, t)mt thu oniy hnv.s wttich (u-< u'~t irnpemth't',
and which be)'n~ to thc su)'j~ct-)u!ttte[' oi' jm'ispt'udeuc~, ure t)t(;
t'ottowu)~1. J~'dat'atut'y !aws, or taws exphtinin~ t!ic impott
ot' existhig positive law. 2. Laws ftbro~i.ti))~ or rcpcalin~
existing positive taw. N. Itnperfect !aws, or !aws of ituperteet
obti~ation (with thc sense whet'ein thé cxprussioti M used by
thu Huntan jm'ists~.
But thé spftf; occupied in t)ic scieucc by thcte hnpt'opd
kwit t.~ Mmparatively han~w M)d insi~ttiftcattt..Aec~)it~ty,
although 1 sh'tH take t)ictu into acconut, s" 'jften a.s r~fet' t"
them directiy, 1 shaU throw them uut of aceount ou oth';r occa'
sions. Or (citan~it~ thu exptfssio))) 1 shalt H)uit thu term /f<M'
to laws which ure impffative, uuless 1 cxtcud it expres-'ity t"
laws which arc uot.

LJ-;CTLI:EII.
Ix )ny first lecture, 1 stat~d or sug~e.sted thé purpose aud thé
mann'T of tny attcmpt to dutertuim' thc pmviuce oi jm'i.s-
pt'udeuec: to distinguish positive !aw, tlie appntpriMc nMttet' 'f
jurisprudettee, fmtn thf various objocts to which it is re!:tt.t:d )n'
resouUance, and to which it is t-cttttcd, netU'ty or ronotch', bv
a stt'ong or stcudt'r anido~y.
In puMuaucu of that purposc, and agreeaUy to that tuaxner,
f stat<'d the essentials of a !nw or rule (tnkt'H with thc !:n'c'<t
sigttificatiott whictt eau be ~iven to t!te term ~-<)/")-).
J,
In pursuancti ot'that purpose.attd a~reMhh' to th.tt tnaun'n,
1 proceud to di.stit)~nis!t hnvs set t'y ut"u to n~tt from
Hivinc laws which aru thu ultimate t''st of ituman.
th'
Thé Oh-ixe taws, or t))6 taws "f Cod, arc htws .<et Ly Cod
to his htnnfUt ereature.s. As 1 h:t\'c iuthitatcd nit'cady, and
shalt .show more fu!!y hett.-af[<'r, thcy arc !aw. or ruics,
so (;alh'd.
~<
As tHstmguMKid from duties u~posed by huH~n !aws,
ttMtt~ MHpeaett by tha t~ivhte ~tWt MKty b& euttett M/~MW
~K<t'e&
As distin~uished fron viotations uf duties iinposed by
huntaM Iftws, vtotatMBs of retigiotH (httie:! ttrc styted ~<a.
As dist.iHguishe<t from sanctions anuexed tu inunatt Iawi',
thé sanctions annexed tu tho Divine taws may bo eitHud ~7<~<c<<
MM<<07M. Tht'y consist of thé cvits, or pains, which we ntay
su&et' hore or herettfter, by thé imtMmUate a.ppointtueMt. ot C!oJ,
aud o.s '««.«t/tt'M of brenki))~ !)is «.nnutttttdtufnts.
Of thc Uivine !nw, or thé Ittws of Cod, some Hre )'()'ff(/t</
or promuigtid, and othcrs are twn t'<-«/'< Such of thc taws of
<;rod us are uurevcated are not unfrequently deuoted by thé
t'otlowhtguMnesor phrases: thé Jawof nature;' 'naturat taw;'i'
titc !aw tuanifested tu man by thé light of natttre or reasun
thé iaws, prccepts, or dictâtes of uatural religion.'
Thc /-ttw<A. !aw of (~od, aud thc portion of thé !aw of C!od
which is «/<)-f~'c«/«/, arc toatiifHstfd tu )ue)) iu différent ways, "r
by dtiterettt Mis of si~tM.
With regant to thé !aws wh!ch God is pteased to M'«~, the
way wlterein they are ntanifested is easity conceived. They aK'
'.<M-! counuandii portions of thé «'M''< of Cod cotnnmnds
<i~ui(ied to inen throu~)) thé médium of humau langua~e an't
uttered by (!od directty, or by servante whom he seuds tu
announee thern.
Such of tt)G Divine Iaw.s as arc MMft'MfM are laws set hy
(~od to his human créatures, but not throu~h thé médium of
huMfHt language, or not expres.'ily.
Thèse are thé o))]y Jaws which he bas set to that portion of
mankind who are excluded from t)<e îi~itt of I!evetation.
Thèse )aws are bindit)~ upou us (who hâve acccss to the
truths uf Révélation), in so far as th': revt'aled law bas teft our
<[uties undctermined. For, thou~h his express déclarations are
thé clearest évidence of his will, we tnust !ook for ntany of ti)e
'tuties, which (~od bas imposed upMt us, to thé nmrk.s or signs
"f his pjea.-iure which are styied thé /< /'«/'<< t'. l'aley and
"ther divines hâve proved beyond a (toubt, that it was not thé
purpose of I!evelati"n tu disclose thé «'M<; of those duties.
Sf))n(j we could not know, without thé he)p of I{e\'f!ation; and
thèse thé reveaied !aw bas stated distinctty and precisety. Thé
rest wu juay know, if we will, by thc light of nature or reaso))
and thèse thé revea!ed !aw .supposes or nssumes. It pa.~s
thetu ovcr in silence, or with a brief nnd incidentat notice.
But if Gu(! httAgiwH tM t~ws which h<t bas not~yettled or
~ton)Mtgctt, h<w shaM we htrow them ? What
«tt* thosë Stgtis ot'
hMpIeasure,\dueh we styte the ~< </ ~f~ ttiid oppose,
by that ii~urative phrase, to express deciitratiou:, of tus wiU ?

Thé hypothèses or théories which attetnpt tu reso!ve this


question, nmy Le reduced, 1 think, te tw~.

Accot'diMg to Mne of them, there nre hnmttn nctions which


(tH UM))kiud itpprove, huttmn actions which aU ttfen disapp~vc
and thèse univcy.-ial sentiments arise ut thé th'~t~tt of titose
Metions, sp'~nta)teon.s!y,instantjy, and inevitably. Hciug Cf~nm<jn
tf) a!I tnaukind, imd insfipfu'aUe ifuta thé thon~hts of those
actions, thèse .sentiMieuts a('e marks M' si~Mt «f thé Diviue pica-
sure. They are pruot's that tJte actions which excite them are
enjoined or ibrLidden by tho Deity.
Thé rectitude or pravity of human eonduet, or its agreetnent
or disa~reonent with the Jaw.-i of God, is in.stantly infen-cd
tr'mt thèse sentiments, with~nt thc pos~ibitity of mistake. Jtc
itas resolved that uur hap);iuess shaU dépend on our keeping hi-,
t.-onnHandment. and it manifest!y con.si.sts with his tnanifest
wisdottt and ~ood)tes-=, that we should know them promptiy and
cc-rtaitily. Aceordingly, hc hn.~ not eorniuitted us to thé ~"id-
anee uf our s)ow aud falHote /-t'<M«<t. Jte ha.-i wisely endowed
us with /«7f'/t~, which warn us at every step aud pur.<UG us,
with their importunate reproaehes, wheti we wander frutu thu
path uf our dutics.
TItese simple or in.crutaUe fee]in~ t)a\'c bcen compan'd
to those whieit we dérive frotn thé outward sensés, and hâve
been referred to a peculiar faeulty c-aHed thé MM-'<< ~/t-w;
tt~ough, adniitting that thé feeling.s exist, and art- proofs of thé
t'ivine pieasure, 1 am unable to diseover t.]fe analo~y whieit
"u~ge~ted thé contparison and thé uante. Thé objeets or
appearattees whi'-h proper)y are pereeivcd thron~h the sensés,
are perceived immediately, or withuut an infert;nec of thé
understandin~. Aecordin~ to thé hypothesi!; which 1 hâve
brietty stated or su~ested, there is ahvay.s an infeMnee of thé
u[)derstandin.n, thou~h thé inference is short aud inevitabh.
Fron) fee!in;~s wiiich arisu witjtin us whett wu think uf certain
actions, we infcr that those actions are enjoined or forbiddeu by
ti<e Deity.
Thc hypotiiesis, however, of a MM'f</ x'-iis' is expressed in
other ways.
Th(.'l:t\vaofC:"d,towhichfh< f~'titt~infthfitXtcx.Mt.'
tft< M'
ehoM'tfm.
Mut ttHtMft~M(.!y UBttH.tt MMft/t' ~'<«'<!«.tJ ~~M&(<M
.«f~ ;«/ ,-t;<t; or ttn'yarc sai't to writtcn on our ht'art-,
)))'
by th< nn;~r of their ~'at Author, in broad and indfHbh'

C'fMMw -s«(w (t)K' )n" yichHnn and accommodatitt; ot


phnis~'s) ha.s bucu m'juld~d aud tittud to thc purpt~c «f expt'<s<-
itt~ t)K< hyputht'xis in '{m'stion. tu MÏÏ thfit' <)t;cisi"ns on thf
mcdttidu ut- pm\'ky ui' cuttdnct (i~ ~t'~UMUt. oï di~i~emcut.
with t)~ unt'cvfd'd taw),numkmd arc .Siti') to dctcrnuncd by
r</MM<w .««.«;: this sattu.' ''<M;M<~<t -st~.w )t)L'!H)U)~,itt thi't instance,
thé simple or insct'utitbte sumitufnt'! which 1 imyc endeavourud
to des'nbe. i
Consi<)''t'ud us att'ctiu~ t)m .sou), whun thf man tinnks
c'spceiatty of /<M fi'< e'~nttu<t, t))e«e .entiutents, fedin~), or
~nioti'jns, are frcqucntty .stytcd his <«/<.?'« «f.
AeeM'diu~ tu t)f othfr ut' thc adverse t!)c<M-ius or hypothèses,
ttn' taws oi' Cud, which arn not reveated or promue' tnust hc
~thcrcd Ly mau from thé ~oodmis:t of Uod, aud fmut ttM
tcndcneiM uf huinan actions. lu othcr wonts, thc bcnfvotfnct.'
ut' (!od, with ttt<' princij'tt' of genfrat utility, is our onty index
or ~uide to his unrcveat';d taw.
Uod designs thu happtuns.s uf aH his scntieut créature' r
Sottte htuuau actions forward that buucvolent purpose, or thcir
teudcncies are Lcuetieeut or us~t'ul. Othcr hunmu actions arc
adverse to that purpose, or ttteir tendent: are tuischievous or
pcndcious. Un; fortner, a~ prfjrnoting hi.-s purpose, Cod )tas t
"njoined. Tite latter. a'i oppo'!<~d to his purpose, God ha';
forbidden. Ile )ias giveu us thé i'acuhy of observing; of re-
mouberin~; ofreasonin~: and,bydulyapplyu)gthosefacu!ties,
wo tnay co)!eet thé ten'tencitM of our actiotts. Knowing thf
tendencies of our actions, and knowing his benevolent purpose,
we know his tacit command-
Such is a brief .-iummary of this cciehrated theory. 1 shouH
wander to a measurctuss distance front thc inain purpose of tny t
n'
tectures, if 1 .stattid idt thc cxptattatio)~ wit)) whi<;h that
summary nmst be ruccivftt. ilut, to obviait; thé principal
mi.sconceptions to which thf; theory is obnoxiou.'i, 1 ~iH subjoin ~i:

as many of thost' explanations a.-i )ny pm'j'osc and !i)nits will


adn)it.
Th(i theoty is this.Jnasmuch a-i thé ~oodncss of God i-
bonndtess and itapartia), ))'* designs the ~reatcst happine~s of ait
ttis scntiMnt creattues he wilts that t)tc ag~regate of thuir
oHJf'ytnottts &ha!t fmd no tMitrcr )imit' thmt thttt wM~h M Hteytt-
!tMy set ta it by thetr &t)itt; atnt trtr['crfppt nntnn?. Fronr th'

from tho tendcnci~s of Jtumau


~tt'
.}U;(tba.btM ciRiCtX Of OUr {tctiutt.~ U)t tt)M
étions
tKtpptHh.~ ~f tt!t,
ut- tu incrca.s'' or diminwh
that ag~M.'g:ttc, \vc may infer thc h\v.<! whidt ))c has ~v~-tt, but.
!(.<< ït'~t cxpfcssMd m' r<c!t)etL
Now thc ~«<~<cy uf it ttuuKin actiou (:t'< it.s t<;n')<;tt':y is thu~
mn.(Grstoo<t) M thé wh'jtc of its t~'t~cy thé sma uf hs pntbitb~
<;MtBeqnMtce9, tM f)U' as tJ~y nrf' i))tt"~taMt M' tH!<t<fi!t! th<* t
smu of its rcnMjtu aud coHttt<iKtt, as wc!i us uf ils dir~t
e~n.settuences.m su far as auyof it'i consc~uhnefis ntayinfhK'tK-e
thc geuemi happine.?:}.
Tt-yin~ to c'jih-'ct its tcndcncy (as its tendency is thus utid~i--
stood), we must nut considcr t)te action as if it werf Aw/~ and
;'<M!i/f<<M/, but must look at thé c/«.M of actions to whieh it
beloogs. Tim pt-obnb!c ~a'~ consequotecs of doiu~ that singtu
act, of forbcaring from tit~t sin~tc act, or of omittin~ that sinulc
act, nt'u uot t!tu objeet. of t)(e inquiry. Thé question to )~
sotved M thit :–If acts of thé c/fM~ ~wrp .~K<'?'< donc, m-
~'7<t~'«~ fortjot-ue or omittcd, what would be thé probaMu f;it'f<;t
nu t)te genemt happiness or good ¡
Considured by itself, a misc)nevou.s act may scptri tu be useful
or harmiess. Cottsidered hy itscif, a uscfui act tnay scem tu b~
pernicious.
For exaaipic. If n pool' Man stcal a handfui from thé heap
of his ricli neigtibour, thé act, considet'ed by it.<e!f, is harndp'
or positively good. Ont! mnn'.s [u-opcrty is assua~ed with thc
superf!uous weattit of anot!ter.
But suppose that thefts wcre ~neral (or that the u'icfu!
ri~ht of property were opeu tu fréquent invasions), aud ntark
the resuit.
Without sccarity for propcrty, there wm-c no induccment t"
suve. Wit)wut )mbitual savin;; on thu p.nt of propri''t<'r-.
thcre were no accumulation of éditai. Without accumuhttion
of capital, there were no fund ~r the paymGttt of wi~es, no
division of tabour, no elaboratu aud cost!y ntachin~s thm'~ wf-r''
none of thosc he!ps to labour which au~incnt its produetiv-
power, and, therefore, mu!tip!y thé enjoyntcnt'! of evcry indi-
vidual in the cornmunity. J''rc(tU(int invasions of propcrty
wouid bring thé rich to pov<-rty and, what wcre u grcater evi!,
w<udd ag~ravate thc poverty of thé pour.
If a sin~te and insu!atcd theft St-Mijt to b<; !iarm!e.ss or ~ood.1.
thé fattaeious appcarancc tncrdy arides frotu this that the vast
tH~nty nf th"së who Mf temptod t~ st~! absttMt):~'<tht mvtM.ion~
o~ p~perty; KHtt ths (t~rhnoHt ? spcKt'ity, whtch thé et!<{
pt0thn:ed by <t Mugis thoi't, wm-bt~H~d tnnt cMK'.<Mt!ed by thé
mass of weahh, thé accumutatiuu of w!tich is prudueed by
gênera! seeurity.
A~ptitt If i évade thé payment of a. tax ituposed by !t good
~oventuiftit, thti eit'eets ùf thé tuiscttMvous i'orbefu'fmef!
Np<'c</<c

!U'(t indisputHbty ttscfu!. F«r thc moncy witich t unduiy w!t!)-


huld M ~uvcttMttt tu wysetf; und, wKt~Hftt Wtttt t'ht* bntk "f
t)te public t'evenue, is a quantity too stnitH tu Le tnissed. But
thu )'<~uhu' ptymeut of taxes is necfssttt'y to thc existence of thc
'ovct'umMtt. Aud I, and thé rest '~f thé cumomuity, cnj(~y thé
security M'tiK'h it ~h'es, because t)t<j payment ot' taxes i.s Kn'c)y
m'mtcd.
In thé cases nuw supposed, thé act m- on)i.sst0)t is ~ood,
cottsidered as siu~h: or iusulated but, considered with the rest
~'t' it~ class, i.t evit. lu othcr ca.scs, au act or onusaion is uvil,
''un.'ddprcd as single or insutated but, eMtsidercd wit)) th<: rest
'~f h~ etas", i9 t;(Md. <
Fur exittnptc, A punishtuent, as a soHtary fact, is au uvi!
thé paiu int!i<;t'd un thé criminal bt;iug ad'd to thc tuisc-hict'
~f ttif crituc. J}ut, eonsidered as part ot' :t System, M puni.~h-
)nent is u<ei'u[ or bcneticent. Hy a 'kx~n or score of jjunish-
Ment- thun.<an')s of cruaes arc prfventfd. ~Vith thc sufterit)~
';t' thé ~uilty i'ew, thé security ut' thé tuany is purchased. ~y
thé luppiu~ of a p<:ceaut nt~tther, thé hody is saved iront decay.
It, theret'ure, i.-i true gGueraUy (tbr thé proposition adtnits of
.'xceptiom), t)<at, to détermine thé truc tcndency of an act,
t'orbearanee, or omission, we must re.~otve thé foHowin~ question.
–What woutd be thé probabtc e)!'eet on thé général happiaes.s
~r ~oud, it'Mtf7f«' acts, forbearances.or omission. were ~encrât
or fréquent ?
Such is thé <t~ to which we must usually resort, if we
would try ttie true <<;M<~t<-y of an aet, forbearance, or omission
MeaninK, by thé true /t</<:K' of an aet, forbearanee, or otnission.
thé sum of its prohab)e eitects on tho genend happiness or gocd,
~r its a~reement or disagreement wittt thé principle of ~enerfd
utility.
t!ut, if this be thé ordinary test for tryiï)~ the tendeneies nf
aeti"n' and if thé tendencies f'f actions bo tho index to the wi)t
~f Go't, it fo))ows that most tjf his commands are gênent! or
uni\ ersat. Thé useful acts which he enjoins, and thé pernicieux
acts whieh he prohibits, he enjoins or prohibits, for the mo<.t ')
!W~ Hot sît~ty,. tM by citées: uot by comtmwb which aro
t~ttMuï&f, ot- dn~cfett MMHttMtift e<t~; but by hwt
which !tre ancrai, (nnt (MuuMidy mitcxiblu. or rntf'~
tôt' ~X!Utip!e. Certaitt aet.<! arc pcmicious, cottsidered
as a
chMs or (in otJMf wor<)s) thé t')-fqt)ent K-petition of thé let
wft-o attvcrsc to tho ~u<~a! ))t(pttin< thou~h, in this
that instimcc, thc act nt~ht t).tul w t.arhttcss. I-'m-HtO-or
Sttc)t id-c thu tnutivcs or induccntaot.s to tim f.mt))issiot)
&f
nets of tho elass, UM).t, UM~s. wa w~t-e (tot«r)nim'd tu f~t-tM~mne"
by t!M fcftt- of pnuishtt~ot, thcy t<< b<- frequotHy c.j)unutt<).
Xow, if wc contbine t)tMG f/«~< with thc wi.~tfjnt nod ~oodut-s-
ot' God, we tuust infur that !.<' furt.ids snc)t acts. mtd' jbrhid.<
thutt) «-M««< M.<.<~«M. f,, thé tcttth,
or tho hundi-cdth case,
tite net )ni.a:ht hc u.-ieftti m tho xinc,
or thc uinety and nme,
thé act wou!d bc pcrttk-ious. H' t)tn act })'urn.itted
were or
to!ti)'un-<t iu thc Ktru and :mo)))!)).jus case, thé motiva
tu fori~ar
:n t))e otiters wou).) bc Wt..a)~und or destruycd. ht t)m hmi-v
and tmautt of Hutton, it is itar-t t.~ di.sth~uish jn.stty. l'o
~-asp
at.ptesent cujoyu~tt, aud tu tum fr&tu p~etit HnoMtn~ h
the Itat.ituat htctinatiuu of us aU. And thus, thro~h thé

our witts,
cutbt-actid
w<j shou)d
by thé rule.
frequently tlie
weakunss fjf om' jud~nent.s, and thc ttfore dangerons iniinuity
exception to
of
(..a<L'.s

Con-sequentty, wftere acts, t;<.ns:()c)~d as c)a.<s,


a aru usct'u)
or ]wrnieious, wc tunst conctude that )tf eujoins or forbids thon.
and by a )-!<~ which pro:t)~y i.s initexiDe..
8uch, 1 say, is thé concht.sio)) at w!tich
we tuust arrm-, tt
-sup))o.i)~ that thé i'~ar or puttishtnext be m'CGMat-y to incita
or rustmin.
For thu tundcney ci' an act i.s oxe thh~: the utility of
enjoinin~ or forhiftdin~ it is another thin~. Therc c]a.ses
of u.~ful act.s, which it wcre usdMs to en.juin atv cla-~es of ]'!i
tnischicvous acts, which it werc usctess to prohihit. Sanctions
were suporftuous. Wc are suOicMnth' prôneto thc useful, and )'"
!iuft)cie))t!y avo-se ft-om thé nusehievou.s act.s, wititout
thé
motivM which ar'j preseotfd to thé will by law~ivur. ~fotivt-.s !i
a
't«<t<}-«< or spontaucr.us (or motives o~o' that. titose whieh
':reatcd hy iojunetions and prohibitions) i)t))x-) us to action an;
i).
t)M onc case, and ho!d furbearanec in
us to thé other. In thL-
bn~oa~e of Mr. Loc)~ Thé tuischievon;! omi~ion or actiou
wou!d hrin~ down evits upon us, winch
or consequcHCM; and whieh, as H<~f~
its ~<<«/ pr..dK(.-ts
inconveniencM, (~)at(;
M-Mo«< « /«)<
Xow, if th~ measufc or t~t whic!t 1 haLve ëhucttvouteota
tMtttbtia bc thé ottttHttt-y tMCtt~M~ <n- t~~ fftt- tt'ytHg thc t~MtëncM't
<tf ~ur a~ious~ thé most cuu'em. mut Sfe'tou~ of t!)e objections,
which !'t'e 'itade tu thf theory of utiiity, is founded ht [

mistake, attd H open to triumphant r<'tnt«tion.


Thé UtfOt-y. ~f it a!w<ty) yuttMmbfn"), i< this
Om' muth'fs tu 'jboy thf taws whi~ti t-tod bas ~t\'eu us, :n'c
{):u-:nuuttnt to aH others. For tho tmnsicnt picasutt.'s whtctt we
i

Mttv itHtUch, m- t~e tmnsMttt. ptum winch w~ ma.y


shmi, Ly
vi-jtatini; thu dutifs whtctt ttK'y intpûse, M'u nothmg :)t com- t
pan.s'jtt with thé pams by whi<h t)tuse dutics M-e sanctioued.
Thé ~r~atest possiLk happitu.'s'} of fdt his St'tittent crcaturt's,
h thc purpose and ntt~ct of those htws. For the betMVuh-ocG
by whic)t they wcK pt'utnptcd, aud tlu' wisdunt with which they (

were planned, equat the ndght which unf"t'<;es thum.


Hut, smjin~ that auch is th''h- purposu, they ctubraetj- thé <

<f~t ûf our conduct so far, th.tt is, ft.'i our cunduet may pt'
tuotu or obstruct that purpose~ tmd so fat' as iojunctions aud1
ptohihttMtts are MCMaat'y to coMeet. um' d~u'ei*.
In su fiu- as thé laws of f!od ai-c c!ear!y ""d indi.sputabty
revcalcd, wu are bound tu guide our couduct by thé plain tueau-
iu~ of their tf)-u); In so far as they are not reveated, wu tnust

duct on that .</« /f<


rcsort tu anottu'r ~uide ua!ne!y, thé probable eHect of ouf con-
or which is thé objeet of thu
I~ivino Lawgiver )h aU his laws and coouuatKhncut'}.
lu eaeh of thcse cases ttte .~«<w of our duties is tlie satne
thou~h t)te ~'w/~ by whicit we hoow them are différent. Ti)e )

principle of ~uemi utitity is thé <~< tu tnany of thèse duties


but thepritieipleof général utilityis not their./c«K/f«'M or .~<<.
t'or duties or «bh~ation-i arise from eonunands and sauetions.
And eommands, it ia iuanifest, procecd not fron abstractions,
but front living and rational bein~s.
Admit thèse premises, and thé foHowing conclusion is in-
évitable.rite t't'~t- of our conduct should bc guided by thé L

pnneiptti of utiiity, in so far as thé conduct to be pursued !MS t

uot be~n determiued t'y Ke\-c]ati'n. For, to eonfonu to thé t


principte or nmxhn with w)tich a hw coineides, is equivatcnt tu
ubeyin~ that !aw.
Such is t)te theor)' which 1 hâve repeated in various forms,
and, t f.-ar, at tcdious !ct~th. in M-der that my youn~er )tearers
uii~ht (;f))tcei\'e it with due tUstinctne-;}.
Thc f un-ent and specious objection to which T hâve advertcd,
)nav be stated thus
:.t
PtM~HL'M and pain (or ~ad aud Mit) :u'e mseparaUy coH-
n~ct<Mt. Kvct'y ~t0~mv& act, ~n4 ~Vt~y t'wb';(t)'<tttf ~f wnistiott.
f') folhwed by hHtu';<.Untf!yor tcmot.e~ du-ueUy oc <;oi-
hth-r.dty, to our.sctvc?! or tu ouf fcH'tw-ercaturM.
Cons<m<))t!y, if w<* stt'tpc otn' comiHpt .;))!}t!y to thc pritt-
ctpk uf ~cttt't-.t! utiUty, Mv'fry c~cti'~ which Wf make t"'twccu

t'"H~\vinij{tr<M'<"M. /<
J'~htn ut- furbcarht{{ ftutn im act will b(j }~<<:d''d Ly t.h~
Wc~)(!()I<;onjecttu'Gthf'f")i.sfqufnc6.s
ut dm .n:t, aud itt~u thu cotMMtUcttCtjS (tf t.hb fut-~anmcu. ~'<M-
thf.~ oro thc 'ornputi))~ ~tcotcnt.-i of tjtttt ~<A</<<, whi')),
ttCcot-'Hng tu our ~ttidiog pt'iucipic, wc fu'u tjf~und to makc.
tS*Mo/t'y Wc simH cDmpfu-c th'j conscqucttces <jt' thé act with
tlie conscqtK'tiees ")'
thé i'ot-hGamnce, and <ktertuin<' thc set ~i'
eon<(;qucnces which ~n'c.s thé &<«' of adviUtta~c whicit
yifU.t the hn~er rMiduu of pro)jfth)<; good, or fadoptin~ a
j din'ct'unt, titott~h exactty c~uivatcut MXpru'ssiun) wltich k'uvc'j
thé stntdtcr residuc oi' pt~bitbtc cvi).
Xow let us suppose that we actuaHy tricll th!s procès~,
,t Lefum we arrived ut our te.'iflves. A)td Utftt let Ha mark the
ith.sm'd and tnisctticvou.~ cHucts which wou!d {nc\tabty f'jH'jw
our attempt~.
Ceucrany spcakin! the period fdtcwed for dG]ihMmtion is
brief: and to Jcn~thcrt du!tber:ttioh Lcyoud that !itnit<d period,
i-! <'<~tiva!ent to forLciu'anee of otnis-jiutt. Cu)).su<)ucut!y, if we
perfonned tins ctabomtu process cotn;'tetely and confcttv, we
shou!d "fteo dffcat its purpose. Wc shoujd ahstaiu front aetion
atto~thur, though utility t'equirbd us to act or thu occasion
for acting <«//v would stijj throu~)) uur fin~ers, whiJ.st \vc
wci~hcd, wittt anxiott'! s<;rupu!osity, t)~ merits of thé act auft
thé forhearanee.
Hut fHe!in}{ tlle necessity of rc.soh'ins pron)pt!y, wc shoidd
Mt~ pcrfonn thé proccss co)nptt-tc]y a)u) con'cctty. Wu .shonid
~ucM or conjecture hastity the cf)'L'f-t<! of thé act and thu for-
bfanmcc, aud cootp.m' thcir n'spc<:ti\'t; Gftcets with equ:d prc-
t-ipiuutcy. Ourprcmiscswxdd ocfnJ'.G'u' )tnp<rff'ct; ourt.-on'
ctusions, badty dcduccd. I.!t)n'u)!)~ to adjust ou)- c<j)tduct tu thf
pritK'ij'Ic ofKH)x.'rat utijity, wu s)iou)d work im'vitahif nti.<c))i(.'f.
And suc!t Wt;rc t])M e"ns(.;<tue))C(.'s of foH«wn)~ th<' principe
)) "f utitity, thou~h \ve sou~ht thu truc a))d thc u.ufui with
shnpticity aud i)t (-arncst. ttut, as wc t'ontmt.tdy prr'fc'r our
own to the httct't'st.s of oxr )'<d!ow-crcaturc' aod "ur owtt
ihnandiate to our own r<'mott; intcrt'st- it is ch'ar ttiat wc :thou!d
i. warp t)M prnx.-iptt; to seltisit aud sittistcr ends.
s,
~Tho finatcKHseorpHrjmseofthe~ïviMeJitws M thogonct'tt!
tiapptness. M ~ût)J. But tu tmea thc cMueE of MU' f)cduc~ «H
thc ~ctK'Kt! happincas or ~ood i.<! Mot thc \vny to ktiow them.
i!y consuttinn und obt'yin~ thti laws of Uod wo promotf our
own happinfiii àtild th~ httppincsit of our t'~Uow-cmutut' Hut
WH shoutd /<o<' consult his Ittws, we sitontd /f~ o)wy his taws,
aht), so i'itt' m ia us hty, wc shontd thwart theit' bum'vokn~
<tp.')i~n, if w<j nmde thé ~enerid )Ktppim'ss (~u- oh~ct <jy ~nd.
la n bt'<:at!t, we shoutd widcty doviate <~ <~r~ from thc pt'in-
cipte of ~cnm'al utility by titkittg it as thc y~<W<' of our cf~duct.'
Sud), t bflievo, is thc HK-anin~ of those-if thcy hâve a
)nc:t)m~–whu object to Lh~ p)'i)n'tt'!f ff utitity that tt wem a
</<t~<f<<.< principh' of conduct.'
A.st)tt' (')'jcet'n-s are ~(mernUy pft-son.s littio Mccustnmed tu
dcar and (~t~ruiiuatt.' tttiuki))~, 1 ata uot ~uite cm'taiu that 1
hâve cottCL'iYud the objt'ctiun t-'xactty. Hut f hayu cn'tcavourc~
with pcrt'uctty n~d t':m)t to undcrstand their ttK'ani))~, and as
t'urcihiy a'i t 'au to statc it, ur to statc thc tuost ratiunal tucan-
it)~ which t)icir wo)'d.< can ))n su~poscd to import.
It bas buctt sai(t, itt attswct' t" this "bjfctio)), that it involves
a cotttmdiction iu t':r!n.'). ~/iy'f is auothft' uatoe for ~'u~<&
;t<M'7it' And, suruty, wc hust av~rt thé pt'obabte miscincfs "f
uur couduct, hy eun.jccturing and cstitnatios its pn.'babte consf-
qucnccs. To say 'that the {n'iocipte of utility w~M a </M;)~<'M)<-<
ptiHciple of conduct,' is to say 'that it werc contfary to utility
to e'm'.utt utitity.'
Xow, thountt this is so bt-icf and l'ithy thttt. 1 heat-tiiy wish
it wcrt: conutusive, f must nced~ admit that it scarœly touetics thc
obj~cti~t), and t'aUs fat- short of a erushi)~ réduction to absurdity.
For the objoctiou obviousiy assutncs that wc c'<M?to< fot'tisce and
f~timatt' thc probable u)~t. of our eondact that ifwc attemptcd
to catcutate its nood and ils evil eonscqumice'i, our pt'csuntptuou;!
attMnpt lit catculati'~u would kad Uti to crror and .sin. What is
eontendnd i.s, that by thc attcmpt to act aeeordint; to utility, an
attempt which woutd not lie sucefssfu), wn shouh) duviate from
utitity. A proposition iuvotvin~ wl~'n fai)'!y statcd nothiu~ iikc
a contradiction.
But, thon~h this is not thc rcfntation, th~tt' M a réfutation.
And n~t, tf utitity be our on)y ind''x to thc tacitcomtaands
of thé t~fity, it is i'H(j to obj':t:t its imp';tt'ectio:M. Wu nmst
<ca taakc the most ot it.
If wo w'ro endowed with a Moiv</ .«:M.s<, or with a ''<:M«)'~t
<')<.«', or with te ~'(«;<t' ~w~Mi, wu -icarcety shou!d constrac his
eoHHn<MM!s by thé pHttciptcof générât utUity. If our soub w~
i'~mished eut with !?!«? ~'H~cM~ Mt<;t~,we s'.ttïech* shf'aM
rnad hit eomnmnds in thé tHtidcueics of hunMn nctiuus. i-'w, t<\
thé .suppositton, ]nau M'outd b<; ~iftcd wit)) a pceutmr or~ut for
acquiringo,ktio~'Icd~e of hta dutias. TtM dutn-:s mtpost'd by
the DMtty w<.)ukt bu subject~ of itttMtCtt!at<i ennsmxusH~ss, nnd
cotHpktciy exfjtuptcd f~ui ttM jun.~ieHMh«f tjhst.-t-YttH'jit aud in-
ductiMt). An attumpt tu disphme that invmdMe consL-tousuM.
aad tu thrust tlie pt'incip~ uf utili~' iMtu thé vacant .wat.
wunM be simp!y htipo.s:<ible aud )oanitu.st)\' aL.-m-d. Au ttttMtq't
to taste or suHill by ibt'cc of syn'~istn, w~ tt"t Icn itûpcf'tti o)
judtcMus.
Bot, if wc are uot ~ifted with thnt pecnjiar M-~m, wc ntust
take to thé pnuciptu ut' utiïicy, let it bf ncver so dcfcctiv~.
W(j tuust ~ath(;r uur dutif-s, ft. we enn, fmut t)~ tt-ndenci~ fj)
hutuitt) actiuu.s or rctuain, at our owu peut, ui i~uMtmc); oi
our dotics. Wc tnust j'ick our scubi~us way witi) thu h~p o)
a g!im)ucna~ li~ht, ar waudur m pt~found darkncss.
Whether thet'e bë any ~ruund fur ttt« hyp~th~t.-i ot' a M~f"' T~
.!tM~< M a question whit.-h 1 shall duly ux:mn))t- m a i'ntun-
!cctm-f, but which 1 shaH not pm-sue in thé ];i-u~ttt p]:(c- l-'or i"x
thc présent is a convenient phee ib!- thé httMducti'~) ut :)nothcr ~?'
topiu naMdy, that they wJM advanee thé ot~euon iu 'tUMti'a) '<
inisunderstand the theory wjtie!) thcy p~smttc tu itupu~t.
Tht'it- objection is foundcd ou tlie Mlowiu~ assuuipu-nt.
Tjiat, if Wt; '.(jjusted oui' conduct tu thé prht<;ip)M "f ~~nt-Kt)
utiIit),cvcrye!cctMn which wc umdM b~twucn d"i))~and iur-
bearin~ frotn au act wouLd bc pr~CM~d by n Mt/<'<«~(//t b\- utt
attcnipt to conjecture and eotnpari' th~ respectn'f prob~~f co;)-
scttuctmcs of {tctiMi and furbcaraucG.
Or (chtu~it~ tlie exprfssioo) thuir assMnption i.s
That, if wu adjusted our e'juduet t'
thi.
tbe principe oi' ~OK-ra!
utility, our conduct w<'u!d aJ~-ays b<; dctcntiittfd by an ituh~di-
ate ot' direct )-c.sf)rt to it.
And, grantitig their as.stnn~tioit, 1 ~KU)t thfir int'crcnct;. 1
grant that thé pri)tcip!e of utility w~M a h:duu~ aud purbHnd
guide.
Dut thcir assmmption M ~)und!ess. Thfy arc battcrir~
(attd most eHectua!ty) a mivMtception o)' their own. whitst tjtf.y
iancy thcy nrc h~rd nt wo);l: detxoiishin~ thé tht-ory which t!<cv
Itat~.
For, aceordio~ to th~t theory, our fondu't wou)d confot-u)
to )'t'~ infcrred t'rotu thf tenduncit-s of actions, but wou!d ])ot
be doteïMtned by tt ditect
tesort to thé ~Mncîpte of gancrat
HtHity. ÙttHtywonM b& thë tes~ o~ ow condnct, ultimutely,
bHtaotimmedMtely: thé immédiate t~tof the ruicstp winch
our eonduct would conform, but not thé immédiate test of
spécifie
or individual actions. Our m!es would be fashioned on
utility ]

our eonduct, on our ruiea.


Reeall the true test for trying thé tendency of an action,
and, by a short and cMy deduction, you will see that their c
tt3'}MmptioM i9 groundte!
If w<i try thé tendency of a spécifie or individuel
would
act, we muât not contemplate thé act as if it were single and
insulated, but must look at thé class of acts to which it belongs.
We must suppose that acts of the class were genemUy done or
omitted, and consider the probable effect upon thé général happi-
ness or good.
We must gués? the conséquences which would follow, if
acts of thé class were général and also thé consequences which
would follow, if they were genemlly onuttcd. We must then
compttre thé eonseqttenceaon thé positive and
négative sides, and
determine on which of the two thé &a~<Kee of advantage lies.
If it lie on the positive side, the tendency of the act is
expression)
good or (adopting a wider, yet exactiy equivalent
thé general happiness requires that arts of the c~<MS shall bo
done. If it lie on thé négative side, thé tendency of the act is
bad or (again adopting a wider, yet exaetly équivalent expres-
sion) tite general happiness requires that <!c<s of thé c/<MS shall
be forborne.
In a brenth, if we truly try thé tendency of a specific or
individual act, we try thé tendency of tlie class to which that
act belongs. Thé ~<M'<teK~M' conclusion which we draw, with
re<'ard to thé single act, implies a ~HC!'«< conclusion embracing
nll similar acts.
But, concluding that acts of ttte class are useful or pemi-
eious, we are foreed upon a further inference. Adverting to j
thé known wisdom and the known benevolcnce of thé Deity,
we infer that he
enjoins or fort'ds them by a général and
inuexible ~/<.
,S'Mc/~ is thé inference at whicl) we inevitably arrive,
supposing t
that tlie acts lie M<cA as to call for H.c interventionof a lawgiver.
To !'«/M thus infen-cd, and lodged in thé inemot-y, our eon-
duct would conforin MKM~M~y if it were truly adjusted to
utility. To eousider thé specifie conséquences of single or in-
dividual nets, would seldom consist with thnt ultimate principle.
Amt our conduet woHid. thetefoM~ ba gmth~d by ~-KC!coacta-
Mons, or (to speak more acearatety) by interred from thôse
eonetusiot~.
But, this being adrnitted, thé aecessity of pansue and cal-
cutating, which the objection iu question supposes, is an imaginitry
necessity. To prefitee each act or forbearanee by a conjecture
and comparison of consequences, were ctearty superftuous aud
inischievous. It were clearly supedtuous, inasmuch
as the
result of thttt proeess \voutd be cmbodied in a known Jt
were clearly niischievous, inasmuch as thé <MM resuit, would Le
expressed by that ruie, whikt thé proeess would probably be
faulty, if it were done on the spur of thé occasion.
Speaking generally, human conduct, ineluding the human
conduct which is subject to the Divine eommands, is ine~taUy i
guided by Miles, or by ~KCi~M or Mt<M'i'M&
s
If our expérience and observation of particulars were not
~MM'~Mcf~ our expérience and observation of particuiars would
seldom avail us in pr«f<<'M. To review on the spur of the
occasion tt host of particulars, and to obtain from those parti-
cuiars a conclusion applicable to the case, were a process too
slow and uncertain to meet the exigencies of our lives. The
inferences suggested to our minds by repeated expérience and
observation are, therefore, drawn into ~M<M, or compressed
into ~MM-:m& These we carry about us ready for ~so, and apply
to individual cases promptiy or without hésitation without
reverting to the process by which they were obtained or without
recaUing, and arraying before our minds, thé numerous and in-
trieate considérations of which they are handy abrid~tnents.
This is the main, though not the only use of <7< whieh
ignorant and weak peuple are in a habit of o~oMK~ to praetice,
but which is essential to praetice guided by expérience and
observation.
"Tis true iu <A<o~; but, then, 'tis false in ~<M<M< Such
is a common talk. This says Nood!e propounding it with
a
look of thé most ludicrous profundity.
But, with due and discreet déférence to this worshipfui and
wei~hty personage, that winch is truc in </<e<~ is «/.? true in
~<'«C<t('<
Seeing that a true thcory is a <-oH~cMf~'«m of particutar
truths, it is necessarity tme as appUed to particular cases. The
terms of thé theory are genernl and abstract, or thé particular
truths whicit thé theory hnpMes wou)d not be abbreviated or
condensed. But, untess it )'e true of particulars, and, therefore,
tntcrntpntctîee,ibtmi} no~A <tt aH. ~~isnhvnyspttrtt. :1
c).tln~ ttMtt~h ~K~wy H cotmnonîy ~ttCM~L Utdess tkc tuïiuit J
ot' a tht.ry can hc rcMh'cd into pat'ticuhii' tniths, tho thcbry is
nn't'u jargon cuil of th".w s~ttKfk'.ss abstractions which oftcn 1

eusumv thu uMf~'«c~ aud in whieh thu wit~ uf tha i~uuruut. tu'a ..{
cci'Utinty cau~'t "nd entttx~h'd.wheu they stir [rom thé tmekot' j
authority, inut vuture tu thm){ for di~m.sdvfs.
Tt)''y who talk ot' theory as if it w~-c thu antngonist ot ?
pNetict', or ot' n thm~ hein~ truc in </«~ but uot truc m
/ct, mcau (if t))t'y ha\'e a tufanit)}.:) thitt the theory in ques.
tion i.s fn!su that t!)c particutar tt'uths which it conect'us arc
tr~atfd impft-t'ectiy m' im'ut-ruct!y and that, if it Wfre appticd
in practicc, it uu'j.ht, thm-ufuM, unskad. They ~<~ that truth in
ttieury is uut tt'uth in p~acticc. T)tt-y //«'«? tliat tt fitlse t)~ot'y .¡-

is not a truc onc, aud uu~)tt Icad us tu practical GD~rs.


SpcakinK. ~'f". ~encmHy, inunau conduct is iuevitaUy ~uided
~<t'f/
by <'«/t'.f. or by or ~«u-<<A'.
Th~ hmnatt conduct winch i.-i .'iubjuc't tu thc Divine com-
tuauds, i.-} not oniy ~uidud Ly /'M/ but al:<o by ~«/ <!tK<<MO(~
a-foeiatu't with thosu t'utfs.
If L bfii~vo (tto tnatter why) titat acts of n class or <kserip-
tiuu are cnjomed or forbi'tdcu by thu i~ity, a murât sentintuat
or i'udiu~ (or a sentitntjnt or tculin~ of approbation or disappro-
batiou) is inscparabty comieeted in my mind with ttn' ttto~ht
or eonecptiou 'jf such acts. And by this 1 atn ur~ed to do, or
ru'itmiucd fro))). doi))~ sueh acts, akhoi~h 1 ndvcrt not to t)t'-
rcasou in witich my butict' ori~iu.ttfd, nor rccaH ttic J divine rule ;1
which t tiavc ini'ft'rcd from that l'ea.sou.
Xow, If thé reason in whie)i my buin-f orl.nioatcd bc thu
usefut or pcrntciou.'i t~nd~nL-y of aet.s of titG ctass, ttty conduct
i.~ truly- adjasted to tlie pnnciple of ~t-ncKtI utility, but
my
conduct is not detct'mined by a direct re<ort tu it. It is direetty
detertuincd by it.M<<Mt.<i/ associat':d with acts of the elass, aud
wit)< the rute which 1 hâve iutbt-t-cd from thdr teudcucy.
If tny couduct bu truly ad)ust<;d to thc prmcipk of ~nuMl
utility, !uy couduet i.-i ~uided ]'cntot(;)y by t'a~,M/'<t. But.
iuuuedifttcty, or at thc ntomeut of action, !ny conduet is deter-
tnined by .<'K~'M«/ 1 a)n swaycd t~y A'<Mt(M< ns imperiousty
as 1 ~M<~< be swayed by it, supposin~ 1 werc utt~rty unabh:
tu producc a reason for my couduct, and were rutcd by thc
capricious ft*etin~;i which are styler.l thé moral sen'se.
l'or exampte, ttcasons which are quite "atisfactory, but som-
what nuux'rous aud intricatc,convi)tcen)uthat thé miititutiou of
proppt-ty M necessary to thé ~etieral good. Cohvinced of titls,
rthefts
M& CMHvhteed t!Mt thJft* tM'e perhtMMtt. (.'MHvitt'd tttftt
are pernictous, 1 iuter that thé ~eky forbidx them. bv a
gênera! <md inftexibk ru)e.
New thé tmht of iuductioM :tHd rcttsonin~ by which ï nn'ive
at this ru!e, is sonewLat t~n~ nn't c~bomt'j. Uut 1 am Mot
cutnpeUcd tu repu~t thé pmeess, h<it'uM 1 ~m ku~w with cert!)inty
th<tt 1 .s!i~u!<t fM'beftt' from tftktt)~ yo~r purse. Throttsh
jny
prc\'Mu.t h~btts of ttiou~ttt ttad by my eduetttiun, <t ~<:M<t«t<~t~ «/'
«!<«yt hns btieutnc nssociated in My mind witii thc th'At~ht <jr
cfmccption of <t </<c/ And, without advcrti)~ to t!M rensons
whieh itave convineed Me that theff} M'e p<<nicious. M- without
ndvct'tin~ to thc nde which 1 hâve infen-ed from their perttiei'u-~
tendency, 1 am detenuiocd by that ready émotion to kecp nty
Angers from yonr purse.
To thiuk that tho theory of utility woutd .s«~<7K~' caleuta-
tiun for sentiment, is a gros.<) and Hagmut ct-ror the error of a
shtdtow, preeipitate uudet-staudt))~. Hu who <« catctdntion
and sentiment, opposes thé rnddet to thc saH, M' tu d~ brcMe
which sweHs the .sait. Calcuhtt!on is thé guide, and uot th''
auta~onist of sentihient. Sentiment without ea!cu!ation were
Hind nnd eapricious; but catculatiou without seutiniOtt WL't'c
iHert.
To cmsh thé mond seutimeuts, is not thé scope or purpose
"f thé true theory of utility. It seeks to Impress those sentimuut-s
with a just of beneficent direction to t'rec us of .'y<'o'<)f/M
hkings, aud from thé tymnny of sen.seless antipathies tu fix
uur love upon thé usefui, our hâte upon thé penticious.
If, then, thé principie of utility Wfre thé presidiog ])t'incip)e J
of ottt' cottdttct, our conduct wou!d be detertuined imtnediatciy i'
by Divine ?'K/M, or rather by moral ~~t'MtM~ as~oeiated witit .i
those rutes. And, coit.se(tuent!y,thé application of thc prittcipte
of utility to particutar or individua! cases, wou)d neither be r
nttcnded by thé en'or.s, nor foUowed by thé mi.=ichiefs, wj)ich thé
current objection in question supposes.
But thèse eondusions (!ike most conc!usio))s) must. lie taken t
with limitation: )
T))ere ccrtainly are ca.e.s (of connarativeh' rare occurrem:e)
<
witcrcin tha specHic considerati'tU.s b:dam;e or outwei~h th<i
genettd cases which (in thc lan~ta~e of Hacoo) an' innneMed
in matter:' casc~ perptexed with pecutiarities fx'm which it were i j
dan~eroos to abstmet them and to which our attention wo'dd
·
bo ttirected, if wc were true to our presiding pnncipk. It were
t
mischMVMM to départ from a rule whitth tegarded sny af these
caiMS, since cvery d~pMtum &um a rais tends to weaken its
authority. But sa important wcre tho .c~ conséquence!!
which wou!d follow our résolves, that thé evil of observing the
rulu might surpMS the uvil of bi~aking it. Looking at thé j
reasons from which we had infentid tho mie, it wero absurd to j
thiuk it in{!exib!c. We should, therefbre, dismiss thé TK~; resort
directly to the p~<M<t~(' upon which our rules wcre fushioued
tutd catcutato ~cc~c consequences tu tlie best of our knowledge
and nbitity.
I''or exampto. If wo take tho prineiple of utility as our index
to thé Divine commands, we must infer that obedience to
established government is enjoined generallyby thé Deity. For,
without obedience to thé powers which bo,' there were little
security and little enjoyment. The ground, however, of the
inference, is thé «<<y of government And if the protection
which it yieids be too cos</y, or if it vex us with ?:fc< restraints
and load us with K<'t'<MfM exactions, the principle which points
at subnt!ssion as uur générât duty may counsel and justify resist-
ance. Disobedicnce to au established government, let it be
never so bad, is an evil For the mischiefs inflicted by a bad
govemment are less than the mischiefs of anarchy. So moment-
ous, however, is the difference between a bad and a good goverm- .1
ment, that, if << w<M<M ~<t<< <o « good one, résistance to a bad one
would be useful. The anarchy attending the transition were an
extensive, but a passing ovil Tho good which would follow thé
transition were extensive and lasting. Thé peculiar good would
outweigh the generic evil: Thé good whicit would crown tite
change in the insulated and cccentric case, would more than
compensate thé evil which is inséparable from rébellion.
Witether resistance to government be useful or pemicious,
be consistent or inconsistent with the Divine pleasure, is, there-
fore, an aMoma/o«s question. We must try it by a direct resort
to the ultimate or presiding ~tMei~/c, and not by thé Divine
)')</<: which thé principlo elearly indicates. To consult thé ruie,
were absurd. For, the rule being gênerai and applicable to
ordinary cases, it ordains obedience to government, and excludes
the question.
The members of a political society who revolve this moment-
ous question must, therefore, dismiss thé rule, and caleulate
specific conséquences. They must measure thé mischief wrought
)~y the actual government the chance of getting a better, by
rcsorting to résistance thé evil which must attend resistance,
whettMTtt ptosper or tail; Md thé good wluch m&y tbHow
résistance, in case it be cpowned with suecess. And, then, by
comparing these, thé clements of their moral calculation, they
must solye thé question before them to thé best of their know-
ledge and ability.
And in this eccentrie or anonialous case, thé application of
thé principle of utility woutd probably be beset with thé difli.
cu!tMS which the current objection in question imputes to it
geneittUy. To measure and compare the evils of submissiou
and disobedience, and to deternune which of the two would give
the balance of advantage, would probably be a difficult and
uncertain process. The numerous and competing considérations
by which the question must be solvcd, might well perplex and
divide the wise, and the good, aud the bravo. A Mitton
or a
Hampden might animate their countrymen to résistance, but
a
Hobbes or a FtdHand would counsel obédience and peace.
But, thougli the principle of utility would afford uo certain
solution, the community would be ibrtunate, if their opinions
and sentiments were formed upon it. The pretensions of thé
opposite parties being tried by an intelligible test, a peace.
able compromise of their différence would, at least, be possible.
The adherents of the established government, might think it
the most ~ye<HeK<; but, as their liking would dépend upon
reasons, and not upon names and phrases, they might possibly
prefer innovations, of which they would otherwise disapprove,
to the mischiefs of a violent contest. They might chance to see
the absurdity of upholding the existing order, with a stiffness
whicit must end in anarchy. The party affecting reform, being
also intent upon «<<7: would probably accept concessions short
of their notions and wishes, rather than persist in thé chase uf
a greater possible good through the evils and the hazards of a
war. In short, if the object of each party were measured by
the standard of utility, each might compare the worth of its
object with the cost of a violent pursuit.
But, if the parties were led by their cars, and not by thé
principle of utility; if they appeated to unmeaning abstractions,
or to senseless fictions; if they mouthed of 'thé rights of man,'
or thé sacred rights of sovereigns,' of unalienable liberties,' or
'etemal and immutable justice;' of an original contract or
covenant,' or the principles of an inviolable constitution;' j'
neither could compare its object with the cost of violent
pursuit, nor would thé difference between them admit of a
peaceable compromise. A saered or unalienable right is truly
and indcKt <i't~Mt- .t"or, aëemg tluit it. means Mthing, there
is notniu~with wtueb it c<m b<~ ntcttstt~d. l~ttioatwho rest
ttieir prett-nsions un thé jargon to wluctt 1 Ituve adverted, muxt
inevitabh- push tu theh- objecta thruugh thiek and thin, titou~h
their ubject.s be str<tWt or feathcrs aa wei~hed in thé batance of
utility. Having bandied thci)' fusttat) pin'ases, (U)d !jaw!cd till
their lungs be speut,' they must ev~n take tu their weapons, <tHd
ti~ht their ditfft~nce out.

It really /.< impottant (tt)ough t fed thé audacity of tlie pam- ;<

dox), th~t tuen should think d)sttnct!y, and speak with a mcatiiu~.
la most et' thé domestie bi-oits which tiave a~tated civitixud
connaunitics, the result bas heen deteruuncd or set-iousty
at)ueted, by thé nature of the pruvalent ~«~- by tho nature of
thé topics or phra.sM whieh hâve figured in thé war of words.
Thc.~ tupics or phrases havu LHen more than pretexts: tnorc
thtui v.n-nish: mure than distin~ui.sfim~ coekades mounted by
thf oppositu parties.
J:'or cxtuupte, if thé bulk of the peoptu of Engtand ha(t
thou~ht and rcasoued with ~Ir. Burkc, had been imbued with
Un- spirit amt ttad scixed the scope of his arguments, her need-
less and disastrous war with her Anteriean colonies would havu
!weu stincd at the birth. The stupid and infuriate n]ajority
who rushed into that odious war, could perceive and discourso
uf nothin~ but the iKM'<A<y~ of thé mother country, and her
~o caUtid to tax her colonial subjeets. 1
nut, grantin~ that the ntother eountry wa.s properly thé
a,
soverei~n uf thé colonies, ~ranting that tho fact ofhersovereignty
was proved by invariable praetice, and ~ranti)~ her so called
'-<(< to tax hey colonia! subjects, this was har()!y a topic to
)n"vu an euii~ttened peopto.
1.~ it thé interest of En~and to insist
upon her soverei~nty ?3
fs it )ter intf'rest to exerciso her ri~ht without thé approbation
"f t)x. colonists ?1 For thé chante of a sli~ht revenue to )'e
wrun~ from )ter Amo-ican subjeets, and of a trining retief froM
thé taxation which now oppresses hcr:-e!f, shati she drive those
rf!uctant subject.s to assert their aiïe~'d independcncc, visit her n

"wn f.-hUdren with the evil of war, squandur her treasures and
.«)t')ier. in tryin~ to keep tifent down, and deso!ate tlie vety
re~i~'n iront which thé revenue mu.~t be drawn ?––Titese and
the )ike considérations wou!d jtave detennined t)te people of
!n};)and, if their doninant opininns and sentiments had been
tashioned on the principle of utitity.
AR~tf (hese and theiike eonsideratMns had detefïttHied
thé puMic tniHd, thé pHbtic wottM hftve dataned thé project
of taxing MMd cof~it)~ th~ ~toniM, and the govcrnrnent
wou!d hâve abitndoned thé pro}eet. For, it I. onty in thé
tgïtOMnce of thé peop!e, aud in their conséquent mental hn-
becitity, that governments or dema~ues catt nnd thé
menns of
tjusehief.
If these nud the like eon.'iidemttons had dutermiued thc
pub!!c tMiMd, thé expansé;} Md miseries of the war wouM JMve
been avoided the connectiou of En~iftHd with Anierica woutd
not itin'e been tom asunder and, in cai-e theh- e'jtamou iuterests
had !ed t!~m to dissolve it quietty,the rehtion of sovereign and
subject, or of parent and ehitd, would hâve beeH foUowed by
au
equat, but intnuate and la.stin~ aUiance. For thé interests of
the two nations perfectiy coiticide; nnd thé
open, and the
covert tiostilities, with whieh they ptague one tmother, arc thé
on'spring of a bestial antipathy begotteu by their oriKioal
quarret.
ttut arguments ftmwn from utitity wcre not to thé dull
taste of thé stupid and infuriate majority. Thé i-ahbte, gt'eat
and sma! wou!d Jtear of nothin~ but their /yA~. 'Tiiev'd
a
<-<y/!< to tax thé ccionists, and
tax 'en) they would Ay, //<«<
they wou!d.' Just as if a t-<y/<< were worth rush of itsclf,
a or
a !iomet!)ins to be cheri.shed an(t a~serted independently of th'~
~ood that it may bring.
Mr. Burke would hâve taught thon botter: woutd have
pur;:ed their muddied brains, and '!aid the fever in their sou).s/
witli thé heaUng princi]))<; of utility. H« asked them what
they would get, if thé project of coercion .sttouid succeed; and
in)p!ored titem to compare thé advantf~e with the haxard and
thc eust. J:ut thé sound practical )nen stiil insisted thé
'<< and sagaeiou.-dy .shook their heads at ]um, as a onrenner
and a theorist.
If a. serious diffen'nee shall ari.se betwecn OHrseh-M and
Canada, or if a serions différence shaH arise between "urselves
and Ireland, an attempt will probably be nmde to
cram us wittt
t)te saine stu~ But, such are thé mighty strides which
reason
bas taken in thé interva!, that 1 hope
wc AhaH not swallow it
with t]te rdish of our good ancestors. It wiH probabh-
oecur
to us to ask. whethcr s!te be worth keepin};, and wliether she bo
worth keepin~ at thc cost ot' a war ~–1 think therc is nothing
rotnantic in thé hope which 1 now express since an aunurabie
speech of Mr. ~ann~, advi.sin~ thé reiinquishnient of Canada,
was seoniingty ïëcMved, M few yem's agu, with goncMÏ a~~t.
(md approbation.~

Thcre are, then, case*), which are an'Hnatoui! or ceeentrie;i


aud to which thé amn, whase eonduct was fashioned on utility,
would upp!y that ultimatc principle imunidiatety or directly.
And, in tliese anonMtous or eccentrio cases, thé application of
the principe would probably be beset with thé dilliculties which
thé cut'tcnt objection in question imputes to it gencndty.
But, even iti these cases, the principle would afford au
intelligible test, and a likelihood of a just solution: a probability
of discovering tho conduct required by thé général good, and,
therefore, required by the commands of a wise and benevolent
Deity.
And thé anomaHes, after ait, are comparativcly fow. In
the great majority of cases, tho gênerai happiness requires that
~</M shall be observed, aud that ~K<tM«;H~ associated with rules
shall bc promptly obeyed. If our conduct were truly adjusted
to the principle of generKi uti!ity, our conduct would seldom be
determined by an immédiate or direct resort to it.

LECTURE III.
ALTHOUGH it is not the object of this course of lectures to treat
of the science of legislation, but to evolve and expound the
principles and distinctions involved in the idea of law, it was
not a deviation from my subject to introduce the principle of
utility. For 1 shall often have occasion to refer to that prin-
cipte in my course, as that which not only ought to guide, but
bas commonly in fact guided the Iegis!ator. Thé principle of
utility, well or ill understood, has usually been thé principle
consulted in tnaking laws; and 1 therefore should often be
unable to explain distinctiy and precisely tilc scope and purport
of a law, without having brought the principle of utility directly
before yon. 1 have thereforo done so, not pretending to expound
the principle in its various applications, which would be a
subject of suf!icient extent for mnny courses of lectures but
attempting to give you a general notion of thé principle, and to
obviato thé most specious of the objections which are commonly
made to it.
Thé )tt<«m<t~ of thc )!o.ea!M treated in more dotait in Lecture Yt.
rights of sovereign govemments is ;«u(.
ht mysecond lecture 1 exannned a caftent Tmd specious
objectiott to thé theory of gênera! utility.
Thé drift of tlie objection,
you undoubtedJ!y remembcr; and
you probably remember the arguments by which 1 attempted to
réfute it.
According!y, 1 mereiy résume that genend eonclusiorl
which 1 endeavoured to estaMish by the second of
my tw'~
aHswers.
Tlie coudtMion may be stated brief!y, in the Mlowh~
manNer.–If our conduct weM truly adjusted to the principe ot
gênera! utility, our conduct would eonform, for the most part,
to laws or ?-~M.- laws or rules which are set by thé Deity, and
to which the tendeucies of cAMM of actions arc the guide or
index.
But here arises a difHeulty which certainly is most perplex.
ing, and which scarcely admits of a solution that will perfectiy
satisfy the mind.
If the Divine laws must be gathered from thé tendencies of
action, how can they, who are bound to keep them, know them
fully and correctty ?3
So numerous are the classes of actions to which those taws
s
relate, that no single mind can mark thé whole of those classes,
and examine compieteiy their respective tendencies. If
every
single man must leam their respective tendencies, and thence
infer the rides which God bas set to mankind,
every man's
scheme of ethies will embraee but a part of those rules, and,
on
many or most of thé occasions which require him to act or for-
bear, he will be foreed on thé dangerous
process of calculating
specinc conséquences.
Besides, ethical, liko other wisdom, 'cometh by opportunity
of leisure And, sinee they are busied with earning thé
means
of tiving, the many are unable to explore thé field of ethics, and
to leam their numerous duties by leaming the tendencies of
actions.
If the Divine laws must be gathered from the tendencies of
actions, the inévitable conclusion is absurd and monstrous.
God bas given us laws which no man
can know completely, and
to which thé great bulk of mankind bas scarcely thé slightest
access.

The considérations suggestcd by this and thé next discourse,


may solve or extenuate thé perplexing dimculty to which I
hâve now adverted.
fa so Rtt' as hw <md Muriditv nro whnt thoy o~~ to be (or
m sf) tar :f! !nw and moraUty accofd with their ultuttatc ~ost, or
in so far n9 taw and moralîty accord with thé Divine connnands),
!es:d aud moral rutes httve been fashiuned ou thc prineiple of
HtiMty, or obtaiued by ob.tervatiou aud htduutiutt f~tH thé
teudfncMS ut' hmnatt ttctioos. Dut, though they Jtftvc bM'n
¡.
t'.tshioncd on t)to pnMcip!u of utility,
or obtained by observation
!md imhtctiott front thé tendeneiG.s <;(' tunuati actions, it i.<}
not
u~cpssary that ail wi)o)n they biu.t shuuld know or adv~rt to
the proeess titrou~h wltich they hâve been gott~u. If aM whotn
they bitid kcep or ob.scrve them, the cnd.~ to which they exist
arc suttieicutty aceompHshed. T]~ pnd~ to which th~y exist
arc su(Heicut!y aceotuplisht.-d, thou~h tnost of thosu who observH 1
thon bc uuab!c to percmw their cnd.s, and lie ignorant of t)tc
Ma~ns ou which they were fuuttd(;d, or of thé proofs from
which they wero iuftjrt'fd.
Aecordiug to the thcory of utility, tlie science of Et!ucs
nr
I~ontok~y (or thé .science of Law aud ~tondity, they ~KM
as
be, or <.M~< to be) M one of the sciences whieh
rest upon, obiier.
vation and induction. The science bas been fortned, through
K w
)o'~ succession of a~, by mauy and .eparate contributions
trum many and separate discoverers. Xo sing!o mind could
explore thé whote of the field, though each of its
nutnerous
-tepartnMtits has been explored by numerous inquirers. i'

If positive law and moraiity were exaetty what they tw.i<


to be (or if positive law and morality were exaetty fashioned to 1

utility), sumeient reasons tni~ht be ~ivot for eaeh of their


con-
stituent rutes, nn<t eaeh of titeir constituent ru)es wou!d i'M~:<~ f
hâve been fuundcd on those rcason- iiuti
no sinule nnnd coutd
hâve found the whotc of thèse ruh's, nor could
any single mind
'ompass the who!e of tiieir proofs. 'Jltou~h all the évidence
w"u)d be hnown, the severat parts of thé évidence wou!d be
known by différent men. Every siu~e man )ni}{ht master 1
a
y't~t~t tjf the évidence: a portion commensurate wit)) tlie j!
attention which he to thé science of cthies, and with thé
nientid pcrspicacity and v~our which lie brought to the study.
i!nt no single Man could nmster </<('<; t))an
a portion And i

)uany of t)te rutes of conduct. whic]) wcrc actuatty observed or


admitte'), woutd be taken, by thé most instructed~ f<i<«'< 'j
on
)'M«~ or /<'«~
In short, if a System of !aw and morality were exact!y
fashioned to utility, all its constituent <-<< mi~ht be known
by aiï or )nost. I:ut aU the numerous
<-<<~Mi.<, upon whieh tlie
system wouMrest.conMscnrcety b~cMnpasscd by:my: white

It
OtttCM.
most must Mmit thcir îuquMM.; io & ~w ~i' th~e mtmemtts
rcasons or, without an attoopt to cxanum; thé rca~ou.t, musL
rcœh'u thé whok uf thé r([!f~ n-om thé tc:tching
of
J~tt this ineonvMamceL. uu<,
aud t-xuhtbt~

peen)i:tr
exto)t).'< tu it)! t!M sciences, and tu atl thé
Mauy math'jfMMtical tt-nths a~ ).robab)y taken
an.s.
t' hm- attd moKtIttv.

upon tru.t
by deci) and scarchi)~ otathcmauciaiis Aud &t' th& t,h'~)MH.(s
who apply {ttithtnetie to daily and hourty
use, not one iM
tinndred ktMws ot- surmi.scs tit<- ycasons up-.n whif-h its ruics f(
itt-c
found~d. Of tiM tiuUions whu ti!! thc eatth a))d pjy th'; vari~u-
hatidicntfts, few are acquainted with the ~rounds of their
homely but i)))porta)tt arts, thou~it t))'"ie arts
arc Ht'nht'altv
practisfd with passaUc exp(;rt))c.ss and -.uecc"
Tfic power.<i ut' sin~c individuah
arc ft.-<-h]e nnd p..ur,
thougtt thc pow<;rs of <;<jnspirin~ numbcrs
nre ~i~antic and
admiraLIc. Litttc of any mau' knowlcd~c js ~(.ttctt hy
ongiual rescarc)). It H.ostty eous~b of i'M«/~
rcscarchcs ûf othcrs, and taken by himsch' upon /<~<H~/i/
~u.
),v t)~
And itt many dcpartmcttt~ of science
we may safejv rdv
upon tcstitnony: thou~h th<ikt)ow)ed.~ which w~thu-'oLtain
i.s ~sa satisthet'jry and u.scfut t~au that whicit
we wiu fut
oursch'cs by direct ('xatninati~tt of the pr<~jf<.
In thé nmtht'tnatieat aud phy.JKd .-ci(;ucf.-=, atM) m thc
art~
wldch arc fouudud upo); thcm, w~ )nay c'tfnnnnh'
trust thc
"'h..t.S.M.<M.jt.<!tf!)..[thi.i)os.t.UtM<:f-X).tCMhtiort)i(-).)tY.-iMh:f.h.]i-
MM<'intheh)t')wi)j~t'<i)m:Ti;t.rcMruti")!.<whiu))f'~t)a!f-th!-))t~'t]om~fl!h-
d<M)'t)t;!M)n!ttn'tMtht)t).t'i!"))<rnthshc!tve).h-hf).tK~r.-st.,u)..uncr)!Ujt;
w)tit.htHt:)K.-)it:Y<;tifj)<!mt)t')nty<;r(~(i- tt~x "f'/<< t'uc.'dfrotjt a:) tu.wtnu~-
tt)u)ty))yt)M~r't[t-t)<tf)t)f<;f)j!)'tii!u< )tU))))).-)<.)'u)~-rv:ni<.n.<Ui't:t\-anctv~t'
)h''m:t()Mtn:ttif;))<r))(h't)tf:ant)H.r n~t[)H')n:tti(;~t.'a!rn)!tti~tt<w!.i~h!t)'tt-r-
e:tnt)Ht)MYt'itt~n(t~tthu',i-)ty)~tin.[it;!t))t.tt<)y.t.~u)tM!)t.).Mit)tO:crMutt.ah.t
<'o))t:htsi')n'ior')~ht!;ti')Hsw)m;)t))t'rt!nn))\'t)u-))-<-f)fti)M"a-i!iUM:~tiuui,,h~<k.-
tu thc brunch of.-t:icnc~!t')!t~tn<je.c.L))t.d tt-itn.trt.r n~jjr~xitttatiMM. ~U
ptf/'<;ttNth';matic.'i.A.lhe)ttM))ti))t:~tt~ t)tM<;t';t)<;HL)tiunshftp)i.;ith'tt)~f.r
~Hrj)«rtot'.sMc)tr))tt):h:tun'ii.sM'Mujn !t.<~tmetht-j.nv~t~v)t't)in;t,!m.tthf-
0)t'«~;t[ya)~'r'-Lt:t)tie<t'nit)tMUt))nr.sM)M~
<)t<it')~'if)'C.).W!)i))KU)MhWhi~;h)h.-Y
f;n'MK't'f)ft)~t):tW~).mtMMithc
of t),f- .-ntitt- cith'tihti~i. cnM-
r~st,itw<))U.U)ritt'-r'-tyi~).tur'.mt~ttM- af~umcv
Li<)M)witht)mfin!tta~r''<;m''<ttut'M)~u-
n<ttti~iattt'ttak'!(h';t!)u)~htnht,~rt!)htth'ttwititut.-frvatifxi. Xow!j0..it<t-
)t)i''Vt!t))"n)M[~nt'tim'jhv. Uf'tivi.tu.t)ti')<ry.-nM)n~re<h;nmn
Th'mth"t'i)~ttM)):i<h~<rM))'tr.i.ti.))t:t))~)tf,t'ihi.<<.t-i.),)t. ();.t.,
')ou))tMt)yj)t'if, withr't~t.)a)! t!t);~aL!un)).tf")a[~tmw)to)j~')yiJ)n"
!iet<:))tiiioenM<;)n'.io)t.'iM);)nt)~t,)!)..tn!titr:t)if.)t. X't'.it~).'i)t.)ivi.!un)fMs<:x.
ph<:)t')m~h!t.a)~t))a!!<dmf<)no)Mn-:ttiu)js
Ih"!roolul'Ollt;:k~_ :1, ;tn in. :unnj~)mf.t.:t))ftn:tfr-tf:tir.;)ot't])'
l,ho:lI')III"11II.81111
"<tdMj;t!hun:ht. !wUftrtk't<!Utih. ~f;!t.)jwhMi.).).)..t)~)!-cun.i-f
!tt!nn:<'<)t)Cf<)'t)tc)~;st)<:nu\n)!t)ntmu;t !tMh~f.t!tt..u.tti))the\!tnt~n)'
wi.MyMt').t.f;)!t.m. Thf.uhihMt.. n)!<h;t.;t.!tt)t''rt)t-n-)tt\'Mr. Yf'tt)..
dcmu))'i(Mtt.tt)'<ft)tt.~(3))f~)~of 'M)tt)~t;)).!i.~t~nwi!)b.~in)ht).:t!v
f!Mvit!ttiu)t(f)rntt)K'rttn''tf-!ttM!tn'tiM) rt-i)~)'th\tr..n.~nt~~);M)~st)i.ut);"
otits(.<t'<]'ft~.<t'~]ntft'~ n:)vi~.ttor.R.C.
eohctnsions wMeh we take upoM anthority. For thé adepts m
thèse scie&ees fuut arts mostly agrée in. t~ëir restd~, auJ lie
under tto tûMptation to cheat thé ignorant with error. t ~rmty
betieve (for example) that tho earth moves round thé sun;
Utough I know not a tittle of the evidence ft'om which the
eonc!usio& is inferred. Aud my bdtef is ptirfcctty fatioua!,
though it rests upon mefo authority. For there M nothing in
thé aUeged fact, contrary to )ny expérience of nature whitst
aM who have serMthtixed the évidence eoncur in aHirmiag thé
fact; and have no eonceivaMe motive to assert and diffuse the
conclusion, but the liberal and boneficent desire of maintaining
and propagating truth.

But tho case is unhappily dinerent with the important


science of ethics, and also with thé various sciences-such as
tegislation, potitics, and political economy–which are nearly
related to ethics. Those w!to have inquired, or auected to
inqnire into etincs, have mrely been impartial, and, therefore,
hâve dincred in their resttits. Sinister intérêts, or pi'e}udices
begotten by such interests, have mostty determined them to
embrace the opinions which they have Jaboured to impress
upon others. Most of them have been advocates rather than
inquirers. Instcad of exanuaing thé evidence and honestty
pursuing its consequences, most of them have hunted for
arguments in faveur of yn~ conclusions, and have neglected or
purposely auppressed thé unbcnding and incommodions con-
sidérations which pointed at opposite iuferences.
Xow how ean thé bulk of mankind, who have little oppor-
tunity for research, compare tho respective merits of thèse
varying and hostile opinions, and lut upon those of thé throng
which accord with utility and truth ? Hère, testimony is not
to be trusted. There is not <!yr«!M< of
</«!< co?t<'«~t'Mc< o)'
KKMte~'otM «M~ <~KWM< ~~<«'MM, to which the most cautious
and erect understanding readily and wisely defers. Witit
regard to thé science of (jthics, and to aU thé various sciences
which are nearly rehted to ethics, invincible doubt, or Mind
and prostrnte lielief, would seem to lie thé doom of tho nmiti-
tude. Auxious)y busied with thé means of earniu; a preeariom 'i
livetihood, they are debarred from cvery opportunity of earefully
surveying thé '</tw-'< wintst every <n<~f<'t<< whereon they
inay hang their faith, wants that ntark of trustworthiness which
ju-stines rcHance on authority.
Accor<tit)g!y, the science of ethics, with aU thé various f
sciences whioh are nearly t'etated tô ethîes, !sg hehind th<

tion to these and


others. So fcw are thé 9tHcbt& iaqmrers whc tum their atten
so difficult is it for the multitude t(
perçoive thé worth of their labours, that thé advancement oi
thé sciences themaelves is comparativdy slow; whiist thé
mos<t
perspicuous of thé truths, with which they
at-e wcasionaUy
enriched, are either rejected by thé many
as wotthless or pe!
nicioMs paradoxes, or win their laborious
way to général assent
through a long and dubious strupglc with est&Hished an')
obstinate errors.
Many of thé légal and moral ru!es whieit obtain in thé
most civilized communities, rest upon brute custorn, and Hot
upon tNanty reason. They hâve been taken from preceding
geuerations without examiHation, and are deeply tinctured with
barbarity. They arose in early ages, and in the infancy of the
human mind, partly from caprices of the fancy (which
nearly omnipotent with barbarians), and partly from thé imper- are
fect appréhension of general utility whieh is thé
consequence
of narrow expérience. And so great and thé
numerous
obstacles to thé diffusion of ethical truth, that thèse are
monstrous
or crude productions of childish and imbecile intellect have
been cherished and perpetuatcd, through
âges of advaneing
knowledge, to the comparatively enhghtened period in which
is our happiness to live.
it
It were idle to deny the difticulty. The
ff~pa~mt~ ofethical truth are certaintyprevented
~K~ and thé
by great and peculiar obstacles.
or obstructed
But thèse obstacles, 1 am firmly convinced, will gradually
disappear. In two causes of slow but
sure opération,
clearly perceive a cure, or, at least, a palliative of thé we may
evil.
In every civilized community of thé Old and New Worid, thé
/f«<~ principles of thé science of ethics, and also of thé various
sciences which are nearly related to ethies,
arc gradually nndin"
their way, in company with other knowledge,
amongst thé great
)uass of thé people whiist those wlio nccurately study, and
who labour to advance these sciences,
are proportionallyincrcas-
ing in number, and waxing in zeal and activity. From thé
combination of these two causes we may hope for
a more rnpid
progrès both in the discove~ and in thé diffusion of morat
truth.

l'rofound knowledgc of thèse, as uf thé other sciences, will


always bë eottHncd to thc eontptunttwty few who stMfty them
!M)gftH(tn~MttOt)8ty. J~Ht th~ mttMtmtt} are MtyeotupetGht
to eum;ftv<* ihf /t<tf~~ ~<<c~< amt tu ~pp!y th'Mc teading' ¡
principics tu parth'uhr cit.-ifs. And, ifthey wcrc imbucd w!th
thosu principtes, aud were pmctised in thf art of apptying theni,
they \votdd tjo docitu to thc voiee of rcason, i)ttd attoed agaittst
sophi~try and t;t')'"r. t'i~M is a wi<t'; !md important din'o-enee
bctwccu i{;nonutcu of principle;! and i~tunmcn uf purticuhn's or
dutatts. Tho ntun who ia ignorant uf tHinciptf't, and unpmeti~cd
in n~ht n'astonin~, is iujjucnu as wc!I as i~not-ant. Thé tuan
who is shnpiy ignorant of partieutars ot- détail: ean reason
cun'ccUy trulli prc)ni.<c.< which are ~~«M tu ))i.s undct'standi)).

it.
aud eau jnstty ustintate th<j c'uscqucuccs n'hich nre dmwu frotu
thosu profiiscs by (.'th<M. If thé ntiods uf thu many wm-e
infonued nud invi~nttfd, .su far as thdr positi'Ht will perniit,
thcy eotdd disti)t~uis)< thé statcnMnts and t'easouin~s tjf theit' r

instrueted and judici<~)s ffi~nds, from thu lies and faHacies of


those who would use them to sinistcr purposc' aud fruni the
G'tuaHy pernicious nonscuse of their \n:ak and i~ttoraut well-
wishet's. i'u;i~u~.sud of din'ctit)~ principte.s, ab]u to n'aso) t'i~ittty, .¡1

heliled to thc ruquisitc pr~ttiiscs hy accnratc and eomprettensivf


in~uirers, t))~y coatd exannue and fathotu t!te questions w!)ic]i
it m'jst b(;)iovcs tt't'))) to undcrstand T)ioug)t tit<: leisurc- which
they eau snatch fruni tlieir caHitt~s is m'ccssaniy so tmutfd,
t))at thci)- opiniou.s upou nunim'ous <~mstiot). of subordinaU;
ituportanee would coittium' to Le takcn f~~a the hK't'e f<K~/<o<'<7.
of otitcrs. j.'

The shot'tcst and ctearcst illustratiom of this most checnn~;


truth, aK furni.sht.'d by thc incstitnaM~ scienct.' of political
econoniy, which i. so iutcrwovt'tt with (ivcry c<~)sidc!'ation
hclon~ing to momis, j'oHti' an't l'~isJittiot), thaï it is itopo&siblc
to treat auy onc of thcst: .sciences witLuut a eontittuat reft/tfae~
to
c~
Tite t'road or )eadin~ priocipics of thé .i'-npe of poHticat
cconohty, tnay bc mastcrud, wit)t moderate attention, in a sho't
period. With tth'so simple, but connnandin.K i'ritt<:ip!es, a
nutnbet-of important qu~-itiotts arc casityrt.-sotvcd. And if thé
xtuttimdc (as they can and will) s)taU t.'vcr understand titesc
prineipiM,
IJ1"IIIClP I): ilitiliy
ntany pernicious pn-judio-s
1¡C1'1I1CIOU.~ 1)1'1'.111( \1 lie
IC"Swin cxtirpatcd l'r0111
bc extirl-i-~iteg.1 front :j
l,
thé popuJar tnind, and trullis <jf inuHitb!~ toou~nt plautud in
<
thoir steald.
For MfunpiG, In many or aU countric~ (the least unciviHxcd
not <-Xt:<;ptcd), t))e prevalcut opinion.-i und scutitunuts of thc
~t:tBg~pteftrecet-ta:n!ynQteousisteHtwittt tt~cMMpIetc
seearity of property. Tu tho ~«~ ~~M-, thé ttM-qtKUitywhMt
inevitftMy foUows thé beneucott tnstimtmit uf pc~perty H
sarily invidious. TfMtt, they wi«) toit aud pt-oduce shoutdHM-M. tare
scantily. whi!st ot!tM~ who deh'e Mot.
nor spin,' batten on thé
fruits of tahour, secmi!, ta thé jaundiced
eyes of th.; poor and
thé ~uonutt, a moustrous statu of thin~:
!m :ti-nt)f!;f.m<.ttt
uphcld hy thc ÏMW nt thé M.~ of thc omt ttnth- ine.<usl.st.
ma!)y,
eut with thé bette vf))M)ttpm'j)osG3ui'l'i-)jvMH)tc&
A stMi~mett), <~ t!M ttuntcrous cvU. whit.-h f]ow i'roh] this
single préjudice, wou!d occupy
a volume. ]~;t thcy cast so
clear a )ight OH ti~ ousdncfs of poj~uiar i~toraneu, and .show
w (hstinct)y thé advanta~s of popular instruction, that 1 will
bnetiy toucit up&u a ft-w of titefa, thou~h at th~ t-i.<k oi' tinn"
your patieticc. °
lu the first ptae~, this préjudice Dinds thé people to ti~
cause of thcir sn<tt.nu~s, and tu thé only reniedy or palliative
which tho case wilt adtnit.
Want aud tubour spriu~ irout thé ui~M-dtinMS of
natnre,
and not frotu thé inequaJity which is coosequent
on thé institu-
tion of property. Thuse evils are inseparabk fron the condition
of man upon earth and are J~htened, not aggravated, hv this
useM, though invittious institution. Without M~< and t!te
arts which dépend upua capita!, t)te reward of tabour wo~td bu
far scautier than it i. and capital, with the arts which dépend
upon it, are créatures of thé institution of property. Thé
institution is good ibr thé ojany, wc!t
as as for thé few. T!te
pool- are not stripped by it of thé produce of their labour; but
K sivcs ti.em a part in thé enjoyntent of weahh witich
it caïïs
mto bein~. lu ef)ect, though not itt taw, thé labourers
arc
co-proprictors with t))e capitalists who iure their labour. Thé

from c~
reward which they ~et for their !abuur is principa!h' drawn
and they are jMt tess intercsted titan thé légal
owners in protecth~ the fund fron invasion.
It ts certainly to Le wished, that their rewat~
were ~-eatet-;
j and that they were reHeved fron] th.: incessant drud~ery
to
whie)i they are now condemued. l!ut thé condition 'of'
thé
working peo])!e (wj.ether their wages sha!! be iti~h ]ow theh-
labour, moderate or extrême) dépends or
upon their own wiH, and
not upon thé wiU of thé rich. în tite ~<- ~t-:M' ~K~/i~,
detected by thé saf!acity of ~Ir. ~fahitus, tftby
n.ust Jook for t!ie
cause and the remedy of their penury aud excessive toi!. There
t they may find thc means wl)ieh wouitt give thon
comparative
t~ttUMtco which woutd givo thom tho degrco of tei~re ncce~.
s<n'y to Ïtuowtëdga Mf! KiKtientdttt wbtdt \vuuld raisu Umm to
pet'Monat di~ntty nnd potitica! mfîuence, from grovo!!in~ <md
sontid subjection tu tho arbittary ruie of a few. i
And thèse tnutnentoua truths are dedueibte frmn plain
pmtctptcs, by short i~td obvious infel'eneea~ Hère, thM<i ia uu
need of iat~ and caretut t'csearc)), or of subtie nnd sustained
thtnkt))~. If tho peop]f undctstood distinetty ft ff'w indisputab!
ptupositt.utts, and were cap:tbte of ~oius con'ectiy thruu{;h au
easv process of reasonin~, their nuuds wou!d be purged of tho
t)rcjudi<e which binds them to thé cause of their sufferings, aud
th~y woutd see aud apply thé rouedy whtch is su~ested Ly tite
principle of puputation. Their rephnttg.'i at thé nOiuenco nt' thé
rich, would be appeased. Thoir tuurmurs at thé injustice of thé
t'iett, wou!d he sih'tx-'ed. They would scarcety break nMehinery,
ur (ire Lnrn.s and corn-ricks, to thé end of raisin~ wagcs, or tito
E

rate of parish retief. T))ey wou!d see that viotatioos of property


are mischievous to ~/<€Ht~'n.' t))at such victations wcakeh thé
r

motiva to accumulation, and, therefore,diministt thc fuud wttich


yieids thé !abourer his subsistenee. They wou!d see that they
are deep!y interested in ttte ~c)<)'y of property that, if thcy
nd)U;!ted their numbers to thé demand for their tabour, they
woutd share atjundantly, with their employers, in thé Uessings
of that tt.~efnl insututio)).
Another of t)ie numerous evils which ttow from thé préjudice
i n question, is the frequency of crimes. `

Xincteen oHences out of twenty, are offhnces a~ainst pro-


perty. And nMSt ofrence~ a~inst property may be imputed to
the préjudice in question.
Thé nuthors of such oH'ence.s are commonty of the poore)
~ort. For thé tuost part, poverty is thé incentive. And thi.-i
préjudice perpétuâtes povcrty atnon~st thé ~reat body of the
people, by b)indin~ thetn tu Ute cause aud thé remedy.
And whitst it perpétuâtes t!te ordinary incentive to crime,
it weakens thé rcstraints.
As a check or deterrin~ )noti\'e, as an induecment to abstain
frotn crime, thé fear of publit: disapprobation, wit)) its cotmtless
train of evils, is scarcety less effectuât than thé fear of teKat
punishment. To thé purpose of fonni))~ thé mora! charaetcr, of
rootin~ in thé soûl a prmnpt aversion from crime, it is intinitety
more eft~ctua!.
Thé hetp of ttte hangman and tho gao!cr woutd sc!don< be
catted for, if thé optHtOM of tttc gréât body of thé people were
cteMcd of the. préjudice in question, and, thereïore, fe!l h~vHy ]
upon &!1 oHetutet's agMU~t pM~tty. Ïf the~K<~ <~K~<M
wcre
thorough!yci"m'e'I of t!tat préjudice, k wouhi greatly we~keM
thé temptatiotts to erhnc, by its salutary iunuenee o)t thé mura!
ctmrKCter of thé muttitude Tho motivM whieh it would oppose
tu those temptaticHs, wonid Le .scat'c'~y !Ma eMceHt:d than thc
uiotives wllich are pM.seutcd by th~ Jaw Aud it woutd hci~htcu
thc ten'ors, attd stt'en~th<'n thé restraints of thé !aw, by u))"a~in"
a couHtks~ host of ca~er aud ucU\'n vutunt<:M~ in thx ~')'vk'e of
crihunat justice. If thu people saw distiuctiy thé tendencies of
offMices ttgaiust pt'operty if thé people saw distinetty thé tt:n.
deneics aud thé ~rounds uf thu p'uushn~uts and if thcv wcru,
theref<jre, bunt upon pursuin~ thé ct-inuoais to justice; thf Iaw.s
which pt~hibit thèse ottences wonid seidom lie brukeu with
itupunity, and, by c'm.st'quenec, woutd s<:ldom bc broken. An
Gtdighteued j~opio werc a bctter auxitiary to thc judgn thau ait
anuy of polieumoh
Hut, in conséquence of thé préjudice in question, thé i~iu' of
publie disa.pptoba.tiuu &cai'cely «peï&t~s upMt thé pt<or to thé pnd
of Tcstminiug thoa fmtu otfence. against ~he property of thé
wedthier classes. Fur every mnu's public is fonned of his o\a
class: oftttose with whom heas'iueiatcs: ~fthoMwhosefavmn'-
aMe or unfavoumbk opinion sweetens or ctabitters hi$ }ife. Thé
poor !uau's public is funned of thé pour. Aud thé crimes, which
affect nterely thé property of thé wcatthier classes. ai'e certMnIy
re~arded with little, or ritther with ne abhorrence, by thé indi~eut
aud ignorant portion of thé working pcop!e. Xot pereeivin"
that sueh crimes are perniciou.-i to «~ c!as;ies, but cunsidering
propertyto be a beHefit in which they ha\-e no share, aud which
is enjoyed 1Iy others at their expense, thé indigent and ignt'nmt
portion of thé workin{{ peopk' are prone to eonsider sueh crimes
as M~-Mft~ made upon usui~ers and em-mies. They regard thé
crhuinal with sympathy rttther ttian with indi~"ation. They
rathct' incline to fuYour, or, at lenst, to wiuk at his escape, than
to lend their hearty aid towards bringing itint to justice.
Those who have inquired into the causes of erimes, and into
tho meaus of lessening their nutnber, hâve connnon)y cxpected
nm~nineent results front an hnprovud systûm (jf ~«H!M!<M~.
And 1 admit that sometitin~; might be done by a judicious mitign-
tion of punishments, and by Temoving that fréquent inclination to
abet thé escape of a criminul which springs from their repu]sive
severity. Somcthing might also bu aeco!nplishe<t by itnprove-
nteuts in prison'disciplinc, at~t by providiug a refuge for criminels
who hâve jMt~f~ the!t ptnnshmeNtfh For thé stigma of tegat
pMnishmettt M coîttmonty Me!tMe;atnt, by de~trfing thé tm-
Mappy erimhMtt front thé )nea)H of Mving honestty, forées htm
o)t furtiler erhnes.
But nothing but </«: t/o~ of ~<)!c/ffAj'c <A?'M<~A ~Af ~'<
MCfM o/' the ~fc~e will go to thé root of tho evi!. Nothing but
this will cHt'e or aHeviat~ thu pove~y which ia thé ordinary

judices, aud cotTeet their momt will


incentive tu ci'mm. Notl)i)t~ but this will cxtirpatti thcir pré-
Lty thon under
thé rustNtnt'! which in'c impused t'y uoligiftcoed opinion, aud whieh
opefate so potcutty ou thé hi~her and tnot'u cuttivatcd classes.
Tho evi!s which 1 have now tnentiuncd, with mfmy which 1
pttss iu sileuee, ituw ffont une of thé préjudices which enslave
thé popular mind. T))e advantages at which 1 hâve pomtcd,
with nmny which 1 !eave unuoticed, woutd follow ti)e eHMttcipa-
tiot) of thé multitude from that .M'/t~c en'or.
Aud this, with other préjudice. might bo cxpeMed from
their uuderstaudings and aiiections, if they had mastered the
broa<! principles of thé science of political ecoHomy, aud could
nmke ttte easiest a~Iieations of thèse simple, though cotumand-
ing truths.
The functions of paper'money, thé incidence of taxes, with
other of thé i't!t'< points which are presented by this science,
thé multitude, it is probable, will never understand distinctty
and their opinions on sueh points (if ever they shaiï think of
them at aU) will, it is most likely, be aiway.s taken front f<M~/«M'y.
But thé importance of those nicer points dwind!es to nothin{f,
wtten they are compared with thé true reasons whieh call for
thé institution of property, and with thé effect of tho principle
of popuhttion on thé priée of Jabour. For if thèse (which arc
Mo/ dinicutt; were clearly apprehended by thé many, they would
be raised frou penury to eotnfort front thé necessity of toiling
tike cattte, to thé enjoyment of sunicient leisuro from ignorance
and brutishness, to knowtedgo and renuement from abject sub-
jec-tion, tu thé independcnce which <'t)MMM«<(<& respect.
if my litnits would permit me to dweH upon the topic at
Icn~h, 1 eou)d show, by many additiond axd pre~nant examples,
that thé multitude tni~ht c!ear!y apprehend t!te ~«~'My~Mt'
of ethics, attd also of thé varions science. which are nearly rclated
to ethies and that, if they had seii'ed thèse principles. and could
reason distinctiy and justly, atl thé more momentous of thé
derivative practieal truths woutd nnd access to their under-
staudin~-i and expel thé antagonist errors.
And thé muMhtde (m cMized sommsaittes) wonM
soonLKCt.Ht
tr
«pprehend thèse pnneip~, M!d wouM somi !M~u:t-e thé talent
of reas&ning distmetty and ju.y, if one of the wcighticst of thé
duties, which Hod bas laid upon ~overnmeuts,
were perfonned
with ndetity and xea!. For, if we mu:st eonstrue those duties
by the principes of ~c'ncral utility, it h uot !oss incujnboit
on
guventmeuts to fonva~ ttm diffustou of knowlcdge, thau to pt-o-
tcct their subjects fmm one another by a due administmtiou of
('
j~tice, to défend them hy n mititary force fiMu thc attack.s
of extcraal enenuM. A stnatt fraction of t)tc
smus witich arc
squandered in Mcdteso war, would pt-ovi'k cotuplete instmction
fur the workit~ people: woutd ~ivc this important ctass that
portiutt in thé knowkdgc of the âne, whieh cojsists witit thc
nature of their caUings, and with thé necessity of toiling for
Jivelihood. a

It appears, thcn, that the ignorance of thé multitude i-; uot


atto~ether invincible, thou~h the principiM of genend utility be
thé index to God' CMnnMnds, nnd, theretore, thé pr'jximate te.st:
of positive law and moranty.
If ethical science must be ~ottcn byconsu!tin~t))e principle
of utility, if it l'est upou observatMn and induction app!ied
t<.
thé tendencies of actions, if it he matter of aenuired knowled~e
and not of immédiate consciousness, mach of it (1 admit; will
ever be hidden from the multitude, 01- will evcr be taken by thé
multitude ou authority, testimony, or trust. Fot-
an inquh-y
into thé tendencies of actions embraces so spacious fietd, that
a
none but thé coMpamtivety few, who study thé science assidu-
ousiy, can app!y the prineipte extensiveh' to received positive
or
!'u!es, and détermine how iar t!tey accota with its ~enuine
sug-
gestions or dictâtes.
But thé multitude might ctearly undentand the eletncnts
or
~roundwork of thé science, together wit)i the More tnoinentous
of the derivative praetical truths. To that extent, they nu~ht
be t'reed frotn the dominion of authority: fron thé nécessité of
Hindiy persisting in hereditary opinions and praetices;
or of
turning and veering, for want of directing principles, with
everv
wind of doctrine.

Xor is this thé oniy advantage whieh would follow the


spread of those cléments amongst thc gréât body of thé peopk.
If thc déments of ethical science were widely
science would af~a<K'e with proportionate rapidity.
'«~, the
If thé mmdt of thé BMmy were mfwmed and iav!g')Htted,
it etmfst* antt sonttd pteaaurea~ and their atnptd inditfe-rpnce
their ï
about knowled~e, wauld bu supptantcd by ïonned imm.'MtaoHta,
and by Hbend curiusity. A nunierous hody of reernits front thé
i&wer of the midfHe cesses. ttnd even from thé higher classes of
thé workin~ peopte, woutd t!tieken the sicnder mnk.s of thé rend-
mK and rettectin~ public ths puMic whieh oecupius its teisuru
with tctters, sdpncf, and phitosophy; whusc opinion détermines
thu success tu- t'Mbuo et' t~~ka, ftnd who~ ttoUtt' tU)d tftvcmrnrc ~E

UtttumUy courtfd by the writers.


And untU that public ahitU bc mueh cxtendcd, shitH embraec
a cottsidet'ftMe portion of the middte and wotking peop!< thc
.eience of ethics, with ait thc various sciences whie)t ttre neM'!y
t'ftated to ethies, will ndvanec s!ow!y.
It WHs the opinion of Mr. Locke, and 1 fu!ty coneur in thé
"pini'~n, that tht.'rc is no pcculiar uneertainty in thc ~«&M-<
ur y/tff~t'?' of titesc sciences that thé ~rcat and extraordinary
diiticulti~s, hy whieh their «dvancemfnt is itnpcdud, ai-G <'A'/<-i'M-
& Me ~ppo~d hy .<,i)Mstey intei-ests, or by pr~udtpes whieh
tu'f thu ofÏ'sprin~ cf sueh interest.s that, if they w)t0 .<(;ek, or
ai&ct to seek thé truth, would pm~uc it with obstinate applica-
tion and with due't~t~)'t'Mc~ they tnight ft'equcntly hit upon
t)(c o))jfct whieh they profcss to look for.
Xow fuw of them K'<~ pursuc it with this requisitc indif-
ft-rency M- hnpartiaUty, so lon~ a.'i the bu)k of ttie pubHe,
witicft dMtermine.s the fatc of their tabours, shaU continue to
be t'ormed from thé classes whieh are elevated by rank or
opulence, and front thé pecnliar professions or catlings whicit
are distinguished by thé nanm of tiberat.'
In the science of ethies, and in a!t thé varions seieneea
whieh are ttearty related to ethies, your on!y sure nuide is
~Mf~ utitity. If thinker;; and writers woutd .stick to it
honMtty and c!ose!y, they would frequentty enrich thèse
sciences with additional truths, or wouM do them ~ood service 1

by weedin~ thein of nonsense and error. But, since the ~<'<:«~«- f


interests of particutar and nan'ow classes are atways soniewhat 1
adverse to the interests of thé gréât majority, it is hard!y to be
cxpccted of writers, whose réputation dépends upon such c-tasses,
that they should fear!ess!y treaft the pâtit which is indicated by
thc ancrât weH-bcing. Thé ~~<~t!'c/< in thé pursuit of truth
whieh is so carncsHy incuicated by Mr. Locke, is hardty to be
cxpectcd of writers who oecupy so base a position. Kuowhu;
that a fraction of the community can tnake or mar their reputa-
tMM,they UHCMisMuHstyor pm'pos&tyttceotMtHodntotheh- Mut. f
Mt'Mionn te thé préjudices of that murower pHhHc. Of, to
boïtow thé expressive I~ngua~M of thb ~'oatest und tx'st of
pftitosophers, they be~in with espousin.'j: thé tt-t~-n«/MC(~
opinions in fashion und, t)<en, seek arytments to show theh-
t'eauty, or to s'arni.th and dis~uise theh- dcforrnity.'

Thé treatise byDr. raky on Moral ax~ Pf.)!it!e~ Phnosophy ex-


MHtpHftesthoMaturattendMtcy ~f Hfttww ftm! '(~rMtneertnp'intt'rmt!?
to pt'rvcrt the com'su of inquh'y from its legitituatc purpo.~c.
As n~u go, this celebMted and inHuptitin! writo- wn'; n
wi'!c and H vh-tuous tonn. Hy th<' (;ua!iticf of hi.s h~ad and
h<'art, )'y the cast of his talents and affections, hc wns uttc~.t,
in a higtt de~rce, to 'icck for <jthic:d truth, und tu ~xpound it
.suecc~MIy to otiicrs. He had a clear and just und<rst.m.tir)~;
a hencty coutmnpt of paradox, Mtd of in~nious, but usc'k'fs
t'MfinchMnts no iastidious disdiun of thé workin~ j.copif', hut
.t
warm synipathy Yvith tht;ir homc:!y enjoymettt.s and suOt-rin~s.
Hc kuew tha*. they ate Htore !nnner"ui) than nH thf! r("<t of thc
connnunity, und h'; fc!t t)tat tta;y aM ntot'c important than a!l
thé rcst of thu connnunity to thé cyc of un'I'~uded reafou and
impartial hcnevolence.
~ut the sinister inituence of' the position wjtich he t)))htcki)y
occupied, cratnpfd his noterons a(Ï~ct.io))s, aud warp~d thé recti-
tude of his undet-standin~.
A stcady pursnit of t)te conséquences indicatcd by ~'y<f?v~
utitity, was uot the most obvions way to prof~ssionat advanee-
tuent, nor evcn t!te short eut to extensive reputatio)). For there
was no impartial puMic, fortned from thé cotunmnity at !ar~
to rcward and encourage, witit its approbation, an inOexibtf
adtxjrcnco to truth.
If thé bnik of thé connnunity had heeti instructcd, so far as
their position wiH pcrnnt, hû mi~ht hâve looked for a host of
rMdft-s from thé middte chsscs. He mi.t;ht hâve lookcd f"r a host
of readers from thosc classes of thc workin~ people, whose wa~es
are connuonty In~h, witose teisure is not inconsiderabte, and whose
mcntat powcrs arc calted into frcftucnt exercise by thé natures of
their occupations or ca!)ings. To rendors of thé tniddte ctasses, aud1
of a!t the hi~her classes of thé workin~ people, a we]t nmdf and
honest treatise on Momi and Politien! PhHosophy, in his clear,
vivid, downri~ht, JF/t~MA style, would hâve bcen the most easy
and attractive, as wen as instructive and uscfnt, of abstract or
seientinc hooks.
But those uunMtfoua classes of thf CMmMHMity wet'e c&Mt
tMOttiy Mtt coiH-M :Mtd i~MMttttt to
café fur honk~ of tho stM't.
Thé gre:n majoHty uf thé reader~ wh& w~'e Hkuty to look imo
hi-} b<juk, betongfd to thé e)as.<es wjuch
arc etevated by rank or
oputettee, and to thé peeutiar professions or caUin~ which are
t)i~it~ui.sh(id by Ut~ nfune of !ibcm! Aud thé character of
thti bouk witicit t)c wrote b<;trays thé position of thu writcr.
in ahnost every chnptet-, nn~ in a!tn<Mt cvct'y page, ht.-t R-a)- of
oUuudutg Uni pMjudi<:e&, contMuuty cMtft'tttitwd t'y aMch r<'af)cr",
p.t!pab!y suppt'us.sc.-i thc su~Mtions <jf his clear amt vigorou.-}
reason, and mastct-s thé better aiteetious which itK'lined hiot to
thé ~t ~t')'(!~ good.
He was oHe of thé greatt-st and bfst of thé gt-eat aud cxcet- t
!eut writcrs, who, by thé streft~t)) of thcir p))i!osop!iieal genius, d
or hy thch- !arg<' and to)eraut spirit, Itave givuu hnpurishMb!(;
lustre tu thc Churcit .'f Eu~tand, aud extingui.stmd or softcued
t))'* tiu-ititity ot' jmttty who reject iim' crecd. Ue tuay rattk wit!(
thu i!ft-ke!fy:! and Jhtt!uM, w:th thé Hurnets, Titiotsons and
Iluadiys.
Hut, !n spitu of thu esteem w!th which 1 regard his metuory,
truth compt'Is )nc to add that thé book is uowortJty of thé mau.
Fur there M tnach iguobiu tt-uckhng to thé dominant aud inttu-
entia! tew. Titere is a dea! of shabby sophistry in dcfcncp or
Gxtfttuatiou of abuaGS which thé fcw arc intere~ted hi upiioldin~. t
if t)tct-M WGM a rfading public tunneMus, disccmi)); and
~<t~~t<(/. thé science of cthi<;s, and att thé various .seieue<'s
whieit arc n~arty rctated to ethies, wou!d advanee with un-
Gxanipled rapidity.
i!y thé hope of obtaining thé approbation which it wou)d
bestow upon geimine merit, writer~ woutd be incited to thé
patient rescareh and rencetion, whieh are not less rcquisite to
thé hnprovemettt of cthica), than to thé advancement of mat))'
tnatical science.
Slight aud incohérent ttunking wout't bc reeeived wit)) c
gênera! eontempt, thongh it were cased in polished periods
studdett with brittiant metaphors. Etinc.') would be eonsidered
by reader.s, aud, t)ierefore, treated by writers, as thé matter or
'1
subjeet of a .M'-Hft as a subject for persevering and accurate
investigation, and not as a thème for ehiidish and babMing
rhetoric.
This général douand for truth (thongh it wero clotited in
hwne!y guise), and this gênera! contenipt of fabehood and
nonsense (thoug); they were decked with rhetoricat gtaces),
wottM hnpmve the tneUtttd aad thé sty!e of mqttMes !nt~ t
ethics, ftttd iitto the vnnons sciences which tHe ttearty ~hfed t~ `
ethie-h The writers tvonid ftttcnd M thé ~~estio))'} of Hobbes
and of Locke, and wunid httitate thf tnethod su su<'ce'ssfu)iy
pursued by gcorneters Ti)Qugh such {.s thé variety uf the
p['<i)ni.scs which soiue uf t!~h- inqun-tcs invutvu, and sue); arc
thé comptexity Mtd nmMgttity of some of t))u tenus, that they
wûu!d ot'ten iaH short of thu pcri'uct <;xa(tt)t~s.< and co)t!-)~ncy,
which the fcwncss ot' h:s pr~Ut! und thu shupticlty aud
dethuteness of his cxpiussions, fnabte t)tc gMon~tcr to !~ntt).
Hut, [hou! titoy would often fall short of ~conietricat
exact-
ness nnd cottut-oucy, thcy might aiways appt-oach, aud wou)d
uftcu Httain tu thé!)). Thcy wou)d nequire thé art aod th<j
habit of detining their leading tctms of st~adily adh'iri))K to
thé tncanhtt~ annomiecd Ly thc d~tinition.s; of carcfuHy examin-
ingmtddiiitiuctiy statua their premiscs; and of dcducinf th<
consequences ~f thuir prf;!ni.(.i wit)) lo~icai t'i-~our. \ithf.'nt
rcjcetiu~ ctnbcUMuueuts which hti~ht i~ppeu to full in thcir
~y, the only c'xcd!c))cic.=i of :,tyt(j fur whidt t!~y wou!d .sc~k,
aru précision, etearness, nnd eouci.sencss: thc first beins a)Mo-
tutety requisite to thé succMsftt! prosccutiou uf in'juit-y whi!.st
thé otttcM cnabk the reader to .seize thé meanhtg with certainty,
uud spare ititji ttnoecessat-y fatigue.
And, what i-i equ:dty hnportttnt, thé protection afforded by
t)tis public to diligent and iionest writer.-i, would inspire into
wnteM upou ethies, aad upon tiie neariy rflated scicucc.s, thé
spirit of dispassionatc in<~uiry t!m h)di(ferM)tcy
or itnpartiality
in thc pursuit of truth, which i.< just us rcquisite to thc détection
of truth as contiuu'jd and etûsc attentio;), or sincerity a))d
simpticity of pnrpose. IMyi~ ou thc disccrntnent and thé
justice uf a numerous and powerfut public, shietded by its
countmtance from thé shnfts of thc hypocrite and thc bi~ut,
iuditfurettt to the id!o whistth~ of that harndess stonn, they
woutd scrutiHize cstablishcd institutions, and eurrcnt
or reccivpd
opinions, f~rkssiy, but coo!iy; with the freedom which is
hnptriousty dcnianded by gênera! utility, but wititout thé
antipathy which is begotten by thé dread of persécution, and
whieh is scarcely less adverse than thé !ove of things ancient
to thé rapid advancemGtit of science.

This patience in investigation, this distinctness and accuracy


of method, this freedom and indinerency in the pursuit of the
useful and the truc, would thoroughiy dispcl the obscurity hy
whieh tho science isdoMdett) and woutd c!fin' !t fretin m'Mt of
M') tun'erttttttties. Thé wish, tb(t hopc, thé prédiction of Mr.
Lucke would. in tune. Le accomptished and ethic.~ wontd m~k
with thé science which arc <M/M~' < t~M(iM.<(<<'Mt.' Thé
adepta in cthicat. as weH as in niathcmatica! science, Wootft
connnoMly agrée in their resn!ts And, as thé .iar fjf <~<y con-
ctusîon-t ~mduttUy subaidcd, a budy of daett'tnc and authunty to
whieh thc M/t' tni~ht trust would CHterj. trotn thu existi))~
dtitoSt Thé dhect extUHioati'M) '.ti' th~ untkitnd~ w~tttt) futtv
extcnd tu thc cléments, aud to thé casier, th'~u~h more momentous,
"f thé derivative practical truths. J!ut nono of thoit' opiniutt!:
would be a'toptcd b!md!y, nor would any «t' their opinions bc
obnoxtous to -jronndtcss and caprieious ctiot~e. Thou~t) tnest
or tnany of ttieir opmion. woutd sti!! be takmt frum f<M</<o)-
the authority to which they wou!d trust tui~ht satisfy thu M)ust
.SCrUputuU. rMBSun. Itt //«' <'M«/ti'/«~<H < ~i<'7'f<~ t'WM(M< f~'
/i"M<t-<-«~ f<M</<m/~N-< <M'/<'«-<<, thuy woutd find t)tat mark of
trttst\vo)'thin'ss which justities t'(.'Iia)teti ott nutttoritv, whMrcvfr
we tn'ti dfbtu-red h-Mu the "ppot'tmnty of examtMin?; thc évidence
fur ouMc!c-
With regard, thcn, tu tho perptexin~ difticulty whieh 1 am
tryi)~ tu solve or ('xtenuate, the case stands thu.s
If utility be t)te proximate test of positive taw and morality,
it is shnpiy impc.-isibte that positive !aw and moratity .shoutd
be t'i'~û frotn dctfcts and cn'ors. Or (adoptin~ a dinht'ent, thou~h
cxactty t'quivatunt expression) if thé princip!e of ancrât utility
b): our suide to thé Divine commands, it is hHpossibîe that thé
rutes ofeonduct f«<««~f<'<«tK('w~«/«OM.~ j«f<M/'<M</ should accord
eompletely and correctty with thé !aws <&/M/«~ /'</ //< /). t<y.
Thc index to hi. will is impcrfect and uncertain. His laws are
si~niHed obscurely to those upon whotu they arc binding, and
are subject to inévitable and invohtntary nti~eonstruction.
For, positive law and mora!ity, fashioned on thé prin-
cipte of utility, are ~otten by observation an<t induction from
t))e tendencies of hnman actions from what can be known or
conjeetured, by ntcans of observation and induction, of thcir
uniform or customary eflects on thc gênerai happin'ss or ~ood.
Cunsequentty, ti!t thèse actions sha!I be marked and chssed with
pertect completeness, and their enects observed and ascertained
wit)t simitar <;omplett'nf'ss, positive !aw and ntorahty, fashioned
on thé pnnciple of utility, must he more or less defective, aud
more or tess erroneou.t. And thèse actions bein~ in<inite!v
varions, and their en'ects being innnitely diversincd, the work
ofdasaittgthem comptetety, amt of <&HecHn~ their cfK'ets e&m- t
p!ct<y, transcends thc Hmitmt faculties et' cre<t!<tt ahd tunte
bemga. A~ thé expérience of manMnd entames, thfy obwrve
as
mot-o Gxtensive!y aud aeeuratdy and reason more c!ose!y and
precisety, th~y may gmduaHy mend thé de~ct-s of th«ir !ept!
and moral ru!es, and nmy ~Jua!!y ekar their t-utM fr~tu thé
crroN and nonsense of their predecessoM. But, thou"h they
ntuy CM)stant!y approach, they œrtuin!y will N~-m- «tt~n to
tmtMess system of ctttics to a systen) pct-iectîy in uni.son a
witit
the dictâtes of gênerai utility, and, therefore, perfcttty in uni~u
with thé benevoteut wi.~hes of tha Hcity.
And,~K. if utiHty Le tho pr-jximate test of positive )aw
and ttwmtity, thé defects and
cn'oys of ~<~f!/fo- or <<;)- cthic.s
wm Mareely adtuit of a reMcdy. For, if ethical truth be
ntattcr
of science, (md Mot of inun~diate conseiousness, of t)M
ethicat maxims, wJtich novfnt thé sentiments of thétuost multitude,
must bc taken, without. exantination, from Jtuman authont~
Aud wherG is tiie /t~<K auttiority
upon which th<-y enn safc!v
M'ty ?i Whcrc h thé /M/t authority hfiu'i)~ such tnarks of
ti-ustwort))iucss, t))ttt thé ignorant
!n:tv ha)~ thMJr faith it
with rea.ot)ab!e assurance ?r .t{evicwin~ tite various ujton
t!te various natious of thc worid, rcvicwi)~ thé various a~ and
Mets
whieh hâve dividcd thé opiniuns of jnankind,
we find cunitictit~
Utaxi~s bn~ht with cquat cuntidt.nec, nnd ree.-ived with equa!
doeility. We tind the guides of thé multitude tnoved Ly sinister
mtcrests, or by préjudices whieh
are thf o(~pri))~'o( such
interests. We tind them stMing inquiry, in.-eontu~
to thé
measure oftheir means: Hpholdin~ with firf and 8Wf)rd, or with
sophistry, dcctanMtion and catumny, the theoh~ieat aud ethieat
dogmas which they impose
upon their prostrat~' di.ipk?.
Such is the ()ifHeu!ty.–Thc on!y sohttion of wjiich this
di)fieu!ty seems to admit, is su~ested Ly the rooarks
whieh 1
hâve atready submitted to your attention, and w])ieh 1 wiH
now
repeat in an inverted and compendious fonn.
lu the place, the <~MMM of bthica! science amenât
thé gréât btuk of mankind wiH gradua!Iy obstacle.
remove thé
which prevcnt or retard its ~)v<MCfH<fM~ Thu fie!d of human
conduct heing innnite or immense, it is impossible that human
understauding should embrace and cxp)oru it completely. Dut,
by the générât diHusion of knowledge
amon~t the sreat bu!k of
mnnkind, by the impulse and the direction which the diffusion
will give to inquir)-, many of the defects and in existing
law and momtity wii! in time be supplied and '-rrors
corrected.
t~

1
L~T.tM
~ï ~'<f)K~?y.- Though thf many
mustt: tHiat to authotity thf tt
ttmubet' of atttoKtIuate &-nths,ttK)y aM competem to exatutne
t!tt; ftftuenta whieh aro thf ~'omtdwot'k of t!t6 seMuee r
(itiucs.
ttud to itticr ths tttom muttK'ntous ot' thé derivative pt'aetieat
conxeqttuMccs.
Aud, //tu'< as the sciuucc ut' fth!cs n'tvfmcfs, nnd is denre'!
oi' obscurity nnd uncertamt~s, thuy who ttt'e dubtUTed front ,°

oppm-muitu's ot' ttxaMUHitt~ thé scMnee extonstvcly, will tind aa


authonty, wiK'ruott they may HttMUfdly i.'uly, iu du: untmimous
or gcnut'at a~ctMcut ot' scarching aod im~rtiat inquit-e~

LECTL'HHIV.
Il
:n-. t\'
LECT.tV Ix my !ast !ucHnv, 1 endcavoured tu answct-
nu objection which v
Thccoo.
e M.
t'~h
KectioMof
thtifuut'th "t' ~S
may be ur~ed M~ainst thé theory of utitity. And to the purpose
Bty ptt-scnt with my la.'it tecturc, 1 wiH )tùw restât~
~ttK. in a somt-what itbnd~cd '.hapf, ttmt
withth~ sunutmry et' thé objection
thint
~nft~M
[ure.
~t tl~ ~"swM- wit~ wtuctt 1 coticludcd my discoursc.
Thc ut~ection nMy bu put bnefty, itt thé foUowhtX
tnatmer.
If utility be thé proxtxmte test 'jf positive !aw attd rnot-ality,
it is itttpo.ss:b!e that thé rutM ot' conduct f<c<««//y ~~<i'M~/
f~o?~< 7<(f<M~<M~ shou!d accont co))tp!ete!y aud eon'cetty with
thé htws M<<!MM/<ff/ &y ~t; ~~y. Thé iudex to his witt is
inipeh'cct nnd uncertain. His taws are signiHed obscurely to
those u)K)n whorn they at-u binding, aud ai-e subjcct to iucvitaMe
a)td invohtutal'y nu.seoHstructio)).
Fot-< positive htwand !<fomlity, fashioued on the pnu. >

eip!e cf utility, are ~otten by observation aud induction frotn


thé t<jnd<'n<:iMs ot' human actions. Cons(;qu(;ntly, titi thèse
actions shaU bu markcd an(t claMed with perfect coinpteteness,
and theit- enect.s observed and ascct1:ained with shnihu' coniplete-
uM, positive
ness,
u juw and
~uainvu luw nMfatuy, i'astnone' on thé principle f)f
imn niomlity,
Thé cxt-erienee of thé thirty yMM MM view. An<tif)iomKtMnm))tioasof);ttm;<
which )<:tVe (.-h~Mcd since the fort-~oint!
~iMg aud potiU'at 'oo'ooy hâve in
t~cture WM wntteM <ioM not ix-on to<'ountry;)<;netrat'ttmr.;wMcty<())'t our tum
to )
juatity t)«' author'< M))g)tit)o of)ti.;ip:t. p:t. <)M').)y ttMtt tt ft-w yf.trt axo was :u.)m.
lion. of th': efr<:f;t.< of thé tipfcad of eduea.
~a. ttttt, t )x:)ieYc it )m.~ih)~ to ttx.'t-ft), in
tion Mto)))! th<- ~ojtte. But it mn;tt:bet))Mwrit)H);aorth').-icwho))avc)jet'u
be t
!t
observedth:tt, K.< little or no attellipt )fMmo.t!.uc<i.j,fM)i)tdifr:t.<iif<);t)tMt:))ow.
whtch hn cont(-nij))ate') (<H)'t ttpon which
)<
h<t!t
'wn t)t!nt<- to f;h-c thf- sort o(' ittfitntetit.n
i"n tunong thti )<.t).t)tac< K trace at
tch tmift nf Mr.H'itiM'.s inttttfnt.-e tn inOu.
alune his t-xpectatians n"it<ft), tMthittK
lit ~rian'-M wtth th)-.«; consohtton' viL'W!)
)t)K eMee titr more j~t-erfu),
M t <HM aiMxre.t
-W!t by thoiie <;OMV<rsaut \nith hH Hvtt))! tth-
<tn <M ittt<-rru<).–S. A. (JS/. 18'n'.) couMf, thttt can be Mtimated by tho!t<-
T)M histftty of even th~ few veaM convenant onty wit)< thé rettMins of his
w]n(;h hâte eta))'!<-(t since thé thtc !<tM of writiMgs.–K. C.
thé above note, itMpif)! a more hopefu) 'fut
.¡p
utHity, must
rnillgil be r. ïeM
"w.n ot-
Ma more .1.,1'a: and
t.,ri.: defëctîve, _&tMore or less en-oHeous.
Attd, thèse actîous benig MntMy v<n-~<M, mnd
thcjr ~ecm
~iu~ innnitety dive~ifk.d, t!<e work of classa UMm completetv
and of eonectin~ t!tcir GUt-cts cornp!ete!v, transcend.t thé !imited
ftteulties of cteated and iinito hcin~.
And~MMtf~,if utility be t!~ proxitnate test of positive law
and momUty, thé defects aud et-rors p~M~ or ,-«~ ~htM
will scat-ceiy adunt ~t' a rchK-dy. l'or if ethicat tiitth Le
matter
of seiencf, tmd uot of um~ditHe cMMcioust~ss,
et)ue:d mnxhus, which ~tim t)tG sentiment') ui' thc Multitude,
ht~t ~f th<.
must be takcu withmtt exantinitUon, frotn humau autitoritv.
Such is t)ie objection.–Thé o))!y
answct- of whicit thé
objection will nd)uit, is su~ested by the rcmarks w)nc]t 1 ofïered
iu )uy last !eetUM, nnd which 1 repcatcd at its close, aud hère
t'epcat in an invcrted and coinpcndiou.s form.
In the /<~ place, thé (~<Mi-<w ûf ethical seieuee
tho grcat bu!k of mankind wiU ~raduaUy
amenât
yemove thé obstacles
which prevent or t-et:u-d its ~M<HMM<<<. Thé field of humau
conduct being infirtitu or immense, it i$ mtpossiMe thab huwan
understandin~ shontd Gmbraec and explore it cotupletdy. Hut,
by thé gênera! dinusiou of knowledge amon~t thé
grcat butk
of mankmd, by the impul.se aud the direction winch thc diOusion
will ~ive to inquiry, niany of thé defects and
en-ors in existin~
!aw and tnorality wit! in time bc supplied and eon-ected.
<<-OH~; Though tite many must trust to autjtoritv for
a
munbcr of subordinate truths, they are compétent
to examine
the éléments whieh arc the groundwork of thé .science of ethies,
and to infer thé more monientous of the derivative practiea!
conséquences.
And, </tM/y, as the science of ethies advances, and is ckared
"f obscurity and uncertainties, they, who nre dcbarred fruin
opportunities of cxnminin~thé science extensiveh-, will find
authority wjiereon they tnay rationany rcly, in thé unnnintous an
or genend agreonent of searching and impartiat inquirers.
Hut this answer, it tnust he admitted, merdy <H(«~ thé he Thc.-icc'.n.)1
objection. It shows that taw and morahty f.ts]iioncd
on t)te).)())'
principle of utility nnght approach continu:d)y and indennit<v !v thf-orv
to absotutc perfection. But it ~-anb that !aw and moralitv
1
tv"y.
uf
MttttK~).
iashioncd on tho principe of utility is inevitahh- dt-fective and Mt
en-oneous: that, if thé laws MtaUished by thc ï~itv must be (~n
construed by the principle of utitity, t))e niost perfcet
svstem of
ethics which the wit of man couht concf-ivc,
were a partial and
inaccurate copy of the Divine original
or pattem.
?Xf/~1M~M<'<!<?/'

(i6 tnay ha tttged) <Mspmves tha thooty which


im~esAndthMthia
Luch tV
pnnc~tte of thé ifxtex to thé Mvine p!easnrc.
MtiH~y
For it cûtt~ts. tt~t Wtth thé known whdom and thé known
benevotence of thé tA'ity, that he sttoutd si~nny his commands
defeetivety tnnt obscarety t'~ those upon wttotn they m-e hindin~.
Ahtrthcr Dut aJtuittu~ thé huperfucH~n oi' Htitity as thé index tu thc
aoM'ortut" Divine pkasm-e, it is impossible
that to ur~'c, ft'oni this its admitted
secfmt imptirt'eeti~u, that utility is ~< thu index.'
ottjmtiutt.
011,
Owing to cau.sus whic)) m'e hidd~'n ft-om hmnan uudct'staod-
inn, ai! thc wurks uf thc Dtiity which arc opeu to humau obser-
vation atf aHoyud with im~rh-ction or evil. That the Dcity
slioutd si~nify )tis cotfnnand.s dMt'fetivfly and obscuruty,is strictty
in keepin~ oy unison with thé t'est ot' his inscrutabte wny.s. The
objeetiou now in question proves too nmch, and, therefore, is
untenabte. If yuu fu-~ue that thé pnncipte ot' utitity is ~M< thé
index to his laws, &<<-<tt<c thé principle of utitity were an ~/t-
~< ~<'< index to his laws,' you argue that ait hii! works
are
~<t-< exehtpt t'rotn evil, tfcctMt' itnperfection or evil is ineonsistent
witit his wisdont and ~oodue. Tho fortner of thèse argument:!
«/~<t. thé htfer, or is merely an application of thé sweeping
position to <<<' of innumerabie cases.
Accordingly, if the objection now in question will lie to thé
theory of utility, n sinntat- objection wiJI lie to ft'y theory of
ethies which suppose:! that any of our duties are set or imposed
by thé Deity.
Thc objection is founded on thé atle~ed inconsistency of evit
with his perfect wiadom and ~oodneM. But thé notion or idea
ûf evil or imperfection is invoh'ed in thé conneeted notions of
!uw, duty, and .sanction. For, sceing that every !aw imposes
a
re.stmint, overy law is an evit of itsetf: aud, uukss it Le thé
work of matignity, or proceed frotn consunnnate fo!)y, it a!so sup.
poses an evit whictt it is ttesigned to prevent or rcmedy. htw,
like medicine, is a préventive or remedy of t<'t7; and. if thc wortd
were free from evit, the notion and thé name woutd Le unknown.
That his taws are signified obseurety, if utitity be thé index
to tus taws,' is rather a presumptionin faveur of thé theory which
tnakes utility our gui(te. Analogy mi~ht Jead us tu expect
that they woutd be sig!)if!ed obseurety. For taws or commauds
suppose thé existence uf evils which they are desi~ned to remedy:
let thctn be signine't as they may, they remedy those evits int-
perfectty and thé imperfection which they are desi~ned to rcmetty,
and of which thé remedy partakes, might naturatty bc expected
to show itsetf in ttte mode by which they are manifested.
~MM~~M~wM~~ t43
My <tMswer
wer t~ thc onction
objection M the
thc very arfument wMdt
vet-y ar~MieHt
excelletlt Butter, in hî.<< adniimNe 'Ah~y; t,~ wi~dcd
w!ueh the d~ L~~ 1
in de.
fence of Christianity with t!te vigour and t!ie sktH of
:<. m~tec.
Consider<;d as a systetu of rutes for t))c guidnnce of
Jimnan
couduct, the Christian Kjigiou i.< def~tive. There
circumstanee~ re~ardiug the matiucr at- its p~mu!~ttiun whic).
are a~
JtunM!) reasoM VHih!y lubours to rccond~ with thé wisdM.i
aud
~ooduess of 0<A[. StiU it were a Lsurd to
ar~ne t !tHt thc yeii.'ion
is not of Uûd,~< t.hun..)~ion is det-Mtive.and is hat~t~v
revenkd to mankind.' !.M. thé oLjec-ti.m is found~d
thé
ath~d tuconsistency of evil with his p~rfcct w].s<to)u attdon"ood-
UM.s. And, siuce evil j~-vad~s thé universe, in ns"it
so far is
open to our inaction, a situil~r <.)-JMtiun wiU lie to fw-y system

f.
of reh~ou which ascribM thu uxi-tcneu uf the u!)ivcr~
tu (t wi~
and benevo!cnt Author. WhocYbr Ldi~-cs that tlic
uuiverse is
thé work- of Len~vol~nce and wisdon), is cooctuded,
or
by tus own reh~ious crccd, frohi takin~ ubj~eti-jtt
a), of thc kind
to t!M ci~fd M' sy.ste]a ofatioth~r.
Ana!«gy (as Hutkr iias siMwn~ ~-onl,l lead
u~ ta ex~ct dM
tmperfceti&tt u~n wftich the objection i.~ ibunded. Su).)btinn<.
of tite imjjerfection which runs through thc frame of thc
univers
would prot~bh' be fouud in a rev~iation ematmti))"
fr.jn) thJ
Author of thé uuivur.sc.
And Itère my solution of thé diMeutty n~cessarih-
contptete solution is rnani&st!y impossible. To reeoncilj
stop!
the
existence of e\-it with the wisdom aud goo~tnesa of C:od is
whie!) sut-passes the powers of a ta-ik
our han-ow aud feetde under-taud-
)ngs. Uns is a deep wJtieh
ot.r reason is too .s!«jrt t'. fathom.
From thé decided predotninanec of ~d whieit is cb.~rvabic in
thé ordcr of tlie worid, aud front thé tnanifoM marks
of wisdom
which t!~ o)\kr of thé worH exhibits,
wc nmy draw ti).. c))cer-
ing infcrence -that its Autitor is ~ood and wisc.' W)n.
titc
wor!d which he has made is not a!to~thcr pcrf.'et,
bexevoIeHt I)eity tolënne.-) thc exist..)~. or why a
of evil, .,r what (if I
may so express myscit; are thé ubstat-tM in t!~ wav of his
beuevoltince, are c~arly questions which it
wen.' imposable to
sotve, and whieh it werc id!e t.. agitât.- ahhou~) thev
admitted
a solution. It is enough for us tu know, that thé Deity is
perfectiy good and that, sinee he is perfeeth- good, he
wilis
thé happiness of Lis ercaturM. 7%M is a truth of thé
<wate<t
~-<!<-<M/ moment. For thé cast of thc afieetions,
winch we
nttribute to thé I)eity, détermines, for the
most part, the cast uf
our tuMftI sentuuents.
t~4 7~f/~M'<W<r<~
htM-.tV
h)!<T. !V
V' Ï ntttnit, theu,
] n<ttn!t, eomtamKts are
t!otra
thon, tht<t Hott'a m~erfeettyMgHtnett
are !m})erfeet!y
'thé hvpe. tn tnan, atmnosttï?
to tMiLH. must gathcr
sttpposiug wo mnst his cnntmanfh
suthcr hi~ cnmmand'! frorn thé
tetidencies of htunan actions. J<ut { deny thnt this imperfection
<h~h'"r«t<.tid<
M~~ htsive objection to thé theory whic)) makes t)te principto
is
M~<a con<
t
ut' utinty nur guide or index tu his wiit. Whoeveï wuuld dis-
brh-ttyiM- ut'Ut
truuttct:d.
prove the theory whiftt tnakes ntttity om' ~uide, Mtust produce
prov<
!Ht'Jt))pr pnndt'k thnt welf a sur(fr and a better ~ui'.k'.
!Ht'Jt)
Xo\v, If we r&)eut M<<<<<~ as thé index to God's eoummnds, .Il

wu inust assent tu thé theury ot- hypothcsis wiiich su~pos~s «


Wuï
n<~y«/
n<~y« ~?t«'. Une ot' thc advcMf tht'ori''s, which re~mt thé
nutut'u uf thitt ind~x, is ecrtaiuty true. Hc hus !<ift us to
nutu:
~-M«~<; ins cutaumuds ft'otn thu tundencics of tiumau actions, ttr
~~M
heh.
he bas given us n pecutiar .w'/t~ of which his conimands are thé r
objet
objecta. ,t

~t
'Amont
cuMttnott
iitn.se/'tt ~pu<
Ail thé hypot)t("it;.s, rc~ardin~ thé nature of that index, which
discal thu principte ot' utitity, arc btnit upou thc supposition of
o pueuUiU' or appropriatu .7M< Thé ian~m~e of cach of thèse
j

tnontM. j.t.t),, hyputin'ses


"'I~ diit't;rs front th~ Janguago of thé others, but the
~t."a
pnnt'ipk )tap<J itaport of cach resemUes the import of thé rest.
ttfrcttc. By « Miw«< ~tK~ with which my understanding is hu'-
tionut'oj))'
~k)Kv,' uish( nished, 1 discem thé hurnan actions whic)t thé Deity enjoins
~m. and
'apnnjtiM! <~d] forbids And, siuee you and the rest of the species arc
'it))Mte provided
prov with a like organ, it i.s clear that this seuse of tnine is
))ntt;ttL'a)
prin. 'thé <wMm<w sense of mankind.' By 'K ~!<'<'f!/ <<<y< with
't!'e
~ij)))M,' which the'Deity bas endowed me, 1 ani urged to some of thèse
~.)~e r]
'c~nnittt
M~O and am wanied to forbear from others.
actions, ~'t'oc~/t' <
pmctica)
~/&<io~ o' cw<<t)t<'f,' wiach Hutier assures me 1 possess, in-
)-<<M i
<'))<)<;s, fornis me of their rectitude or pravity. Or ~/K' t?u<ff/< ~~<e<t'c/<~
!'r
etc.~t. fOHU
('xpr.
~'<
~Mc~/f.< wltich Locke bas presumed to question, definc t)te
duties, which (tod bas hnposcd upon me, with iufaMible cluar-
.mnafor duth
W!t)h)t))f and eurtaixty.
imnM)ty)«- nuM
th<:<).<. Thèse and other pitrascs are varions but équivalent expres-
sions fur one and thé santé hypothesis. Thc oniy observable
sion'
diiference betwcen thèse various expressions consists in this
dii)'H: i'
that some dénote MM~t'/KtM/'i witich are excited by taunan actions, i;j
whitst others dénote thé ~MM< to whieh tbo.<e .'icntiments
whit
are thé
are) t index. r
'r)<hy[!('- Thé hypothesis of a morat sensé, or thé hypothesis which is v
th~i-im varioustysi~nitied by thèse varions but équivalent expressions, r,
.t.tio..
im-h-< i)~.(, involvcs two assmnptiuns.
m'oM' Thc iirst of thé two assurnptiona involved by thé hypothesis
KUOt~tMn.
TtMfirst inq i~~ question,
ri may be stated, in genemi expressions, thus:
f.fthKtwo r
L'crtain sentitoents or footings of approbation or disapproba-
fniitimp.
i
t
J~~<~< t~
Me
Mcoiapany
.Mther eSeeta
_ri~ il.
MtyQurcottcepttMM~CMtMRhtnBttaa~Mns.
our conceptions. certMn hamtta ariens, l'he~ Thev
of rettectioa upon thé t~deticies of thé action.
whtchexcttethem~norM-ettteyoftects~fettuMttiM.
~Ci-.tV ~~c

Aeoncep.
tion of any of thèse actions would be aecompauied by
ttte~ MMtimeats, although we had not adverted certain uf
to its good M
evtt teiMtoncy, nor knew thé opinions of other.s
with r~'aKt to
actions ai' t}M class. °
In a word, that portion of thé hypothesis in question
wjtieii
1 iun now statiHg is pu~y M~w. We
arc siited with mom!
sentimonts wJtich are <~«<<e <~c<-M~«&/t.~< whieh
«r nre
thé conséquences of Section the tendeucics
upon of i.uman
actions, which are uot thé
conséquences of thé éducation that
we rece.ve froM our fe))ow.men, which are thé consequences
or eneets of any antécédents or cause. placed within thé reach
of our inspection. Our conceptions of certain
actions are
accompanied by certaiu sentiments, and </<c is
knowfedge. an end of our
For thé saké of brevity, we
may say that thèse sentiment
are 'instinctive,' or we n~y oaU them momt instincts.'
l'or thé terms 'instinctive,' and instinct,'
y«~. are mereh-
expressions. They me~Iy denote iKHomne.
fhey mean that thé phenomena of w!,ieh our own
talking are not preceded by we happen to Le
causes whieh man is ab!e to her-
CMve. l'or example, The bird, it is cormnonly said,
hernest by 'instinct:' or thé ski!! which the bi..d buitd.
évinces in
the building of her ..pst, is conunonty styied
'instinctive.'
That is to say, It is not thé product of
experit.tents made bv
the bird herself; it !)M not been impartcd
to the bird ),v the
teachn~ orcxamp!e ofothers;
nor is it thé conséquence or
effect of any antécédent
or cause open to our observation.
The remark whichlhave nowmade
stmctive' and -instinct,' is not interposed upon thé tenn-t'in-
needless!y. For
though thetr true import is extremdy simple
and trivial, thev
are apt to dazz!c an<( confound us (uniess advert to it
steadily) with thé fa!se and cheatingappearaneewe
of a mysterious
and magmneent meaning.
In order t)tat wc may clearly apprehend thé
nature of the~e
esCTheforf.
mora! mstmcts,' 1 will descend from
nnagmary case.
genomt exp~ssions to an ~s
1 will not imagine thé
case which M fancied by Dr. PaJey .y. a-Humt)-
for 1 think it ilt ntted
to bring eut thé n.ean.ng sharplv Il'L'motifio)
will
n merety
mereiy take thé bon~i~ ins
tH.' liberty
I.berty of bor~win~ solitan- savane, a").!ait)(-.n.y
his solitarv sava. t i
child abandoned.
chdd abaudoned. in,
in. thé witdcrne.~
wUderness immediateh-
hnnMdiatdy after its 'birtil
Mrtil
tit,aHit)f!t~i)i-
vor_. r
LECT.tV and gt'owtngto
nud growtng thé ag& of mmhood in estrangement hom
hnmansociety.
hnmftn society.
Ht~vittg gotten my M~ec~ 1 proeeed t~ deal with bun after
Htwit)ggo< ?¡
myuwnfasinon.
my uWM fasino
1 imagine that the savttgo, as ho wanders in search of prey,
meets, for thé first time in his !ife, with a man. This man is
a huuter, and is carrying a deer which he bas kilkd. The
savage pounces upon it. Thé hunter hoids it fast. And, in
order that he may remove tbia o)Ntao!e to the satisfaction of his
gnawing hungcr, the savage seizes a stone, and knocks thé
hunter on thé head.–Now, according to tho hypothèse in
question, thé savage is affected wit!i ?'e~M'~ at tho thought of
thé deed which he bas doue. He is affected with more than
t
the cMH~«~M'M which is excited by thé sunenngs of another,
and which, considered by itself, amounts not to a moral senti-
ment. Ho is auëeted with the more complex emotion of
sc~-coM(~eM?t<t~'<M or Mm<M'~ with a eonsciousness of y:«7<
with tiie feeling that haunts and tortures civilized or cultivated
mon, whenover they violate rates whieh accord with their
notions of utility, or which they have learned from others to
regard with habituai veneration. He feels as you would feel,
in case you had committed a murder: in case you had kitled
another, in an attempt to rob him of his goods or in case you
had killed another under any combination of circumstances, [
which, agreeably to your notions of utility, would make the act
a pernieiou!! one, or, agrecaMy to the moral impressions which .)
you have passively rcceived from others, would give to tho act ]
of killing thé quality and the name of an tK;'K)'y.
Again: Shortty after thu incident which 1 have now
imagined, he meets with a second huntcr whom lie also knocks
on thé hend. But, in this instance, he is not thé aggressor.
He i.s attacked, beaten, wounded, without thé shadow of a
provocation and to prevent a deadty blow winch is aimed at
his own head.he kii!s thé wanton assaitant.–Now hère, accord- t
ing to thé Itypothesis, he is Mo< anccted with remorse. The
suiferingH of thé dying man niove him, perhap.-), to cût/~MMi'M!
but his coM.t'M<'<: (as thé phrase gocs) is tranquit. He fecis as
you would fée), aftc)' a justifiable hotuicide after you had shot
a hi~hwaYman in défonce of your ~ods and your life or after
you had kiUcd an'jther under <f/~ contbimttion of circumstances,
which, agrceab!y to your notions of utility, would render killing
innocuous, or, agrfcaUy to the current tnondity of your âge and
country, would render thé killing of another a just or tawt'u! action.
fhatg!M<ahott!d temoïse if yottkit! m an «tt~nptto (f t,ft't'.
t t\'
rob, and shoaM not be afteeted with rémora if you MU
tfMttd~rou.~ robber, M a di~rence whieh 1 readity accouht for
sit
r
without thé supposition of an instinct. The inw of
your
country distinguishes thé ca.~s aud thé current morfdity of
your country accords with tho !aw.
Supposing that you Iiavc never adverted to thé
rcusons of
that distinctioH, thé diHerence btitween your fcdin~ i.<i easily
expinined by imputing it to <<M~t'o~ mauiug, Ly t!m tenu
(~<ca<«w, the inHuence of authority and example
on opiuious,
sentiments, and habits.
Supposing that you havo ever adverted to thé
ycasons of
that distinction, you, of course, hâve been stmck with its
obvions uti!ity.–Genera!!y speakiug, thé tutentional killing of
another is au act of pernicious tendeney. If thé act
were
fréquent, it would annihilate that général security, and that
genefai feeling of security, whieh are, or should be, thé pnn-
cipal ends of political society and law. But to dus there
are
exceptions and the intentioual killing of a robber who aims at
your property and life, is amongst those exceptions. Instead of
being adverse to thé principal ends of law, it rather promotes
those ends. It answers the purpose of tite punistiment which
thé law inflicts upon tnurderers: and it aiso accomplishes
a
purpose whieh punisitinent is too tardy to reach. Thé death
innicted on thé nggressor tends, as his punishmeut would
tend, to doter from thé crime of murder and it also
prevents,
what his punishment would not prevent, thé compietion of
the murderous desi~ in thé spécifie or particuJar iustance._
Supposing that you have ever adverted to thèse and siiiiilir
Masons, tho différence between your feelings is easily expiaincd
by imputing it to a ~-(~iM o/' ~7)/. You sec that thé
tendencies of thé act vary with thé eircumstances of thé act,
and your sentiments in regard to thé aet
vary wit)t those
varying tendencies.
But thé différence, supposed by thé hypothesis, between thc
feelings of thé -Mt-f~, cannut bc hnputcd tu ~~«-«/j'f</<. I-'or thtj
.savage bas Uved in ('stran~ment frotn human soeiety.
Xor can thé supposed (HOerence be imputed to ~ow~ta,,
)<~7<7/iïe knoeks a man on thc hea<), t)i:tt he «may sati~fv
his gttawi)~ hunger. Ue kn~eks anuther
on thé h<-ad, that !h-
'nny escape from wounds and deat))..So far, then, as thcse
~merfnt actions cxch).sive!y tt~itrd hinMdf, they equa!)y
:od and so far ai! tht;s<j dinercnt actions regardarethé men
t4~ Z%Mw~<~
LKct. ÎV whom he Ht!s, they are equalty Lad,
whe tried by thé test of

<
ttttti
tttttity, <tM<~ <f<~ /M/A~ <t'A<t'& (A<t «<K< jMMe~~f Mo taotat
qualities of thé two mettons tu-e pteebety thé samc. If we sup.
pose it possible titat he adverts to considérations of utiHty, and
t!Mt his eentuHeuts in tvspect to thèse actions are detcrmined
by considérations of utitity, w« tnust iuH'r that ho t'etnembers
buth ut' t!mttt with sinutar i'tifHn~s with suuilar fee!tugs of
CMnptacfttcy,as tho ftctmns regttnt himsc!f with similar feelings
oi t~rut. as Umy tcg:n'd t!M su~nu~s ot tim shuu.
To tho social tuan the diffcrGnœ betwce!t thèse actions, as
tned by the test of utility, wcro immense.–Thé gênera! happi-
uess en' good dctnauds tho institution ot' pmperty: that thé
exclusive enjoynMmt coufen'ed by thé law npon thé owner shall
not be disturbed hy private aud unauthorised pcrsons that no
man shall take fron another thé product of jus labour or savhtg,
wititout thé penm.ssion of the owuer previousty signified, or
without thé authority of thé sovereign aeting for thé commou
wea!. Were want, howuvcr intense, an excuse for violations of
propotty could every mim who hungera takti from MMthe!' with
impunity, and s!ay thé owncr with impunity if thé owner stood
on hi;; possession; that benencent institution wouM become
nugatory, and ttte ends of government and law woutd be
defeated.–Aud, on thé other hand, the vcry prineipte of utility
which deniands thé institution of property requircs that an
attaek upon thé body s)MM Le repeUed at the instant that, if
thé impending evil canuot be averted otherwise, the aggressor
shaU be slain on thé spot by the party wttosu tife is iu jcopardy.
But thèse are considérations which would not présent thein-
selves to thé sontary savage. They involve a number of notions
wittt which his mind wou!d be unfurnished. They involve thé
notions of potitical soeiety of suprême govennnent of positive
law of légat right of tegat duty uf légal injury. Thé good
and the evil of thé two actions, in so far as thé two actions
wou)d af!ect thé innnediate parties, is ail that thé savage eoutd
perçoive.
Thé difference, supposed by the hypothesis, between the
feelings of thé savage, must, thcrefore, be ascribed to f< M«~
~i. or to <MK~<t: ~i'«c~'K</ ~'t~-t~/t'.t. Or (speaking in hontelicr
but plainer tanguage) lie wou!d regard the two actions with
-Ut~
<
'titt'erent sentiments, /f«'!t' K«< !'7~.
T)t<-)ir.<tf<f Thé nrst of thé two assumptions involved by thé hypothesis
th..tw.jin1!1 question is, therefore, thw.–Certain inscnttaMe sentiments
sumptl.,¡¡s
M))H]'H''tf!.
of approbation or disapprobation accompany our conceptions of
certain kuman aotioM. ThcyaretMtbegottsnbyïBlteetio!i Ml hKM-.tV
«pon thetenttcnciesof the actiotM which excite them,nor:tre b\-
thé h)--
th&y instiUed mtf~ our mihtb by ~«~ mtercoHrse with ottr fettow- )«'t);if m
men. They are simple e!emen.ts of our nature. They are 'MeMvre-
Mttimate tacts. They aro not thé effets of causes, or are nut ,(~t«M!)t
the consequents of antécédente which aru upM) to ttuntau MM);t'e.'niiuH<.
( observation.
Aud, thus far, thé hypothesM in question has Leen embraecd cd
by aeeptica as we!t as by rpHjrion! Fer exa!np!c, It is
supposed by David Hume, in his Essay on thé Prmci]'!e') of
~Iom!s, that <MM<' of our moral sentinicrits spring from f< ~c~-
~K o/' M<<~ but he a!so appears to imagine that «</t«-~ are
not to be analyzed, or be!ong cxclusively to the proviuce of
~f<t'. Sueh, 1 say, ~ws tn be his meaning. For. in this
essay, as in ail his writiugs, he is rathcr acute and ittgcnious
than cohérent and profuund: haudting detached topics wit!t
signal dextcrity, but evincing an utter inability to grasp his
subject a.s a whoJe. When hc spuaks uf M<M'a/ ~M~t/iO!~
belemging to the province of he may, pprhaps, bo adverting
to thé origin of ~cMCM/fMcc, or to thé ori~in of our .<y~f<</<.ywith
the pteasurcs and pains of others: a fueling that diners as
broadty as the appctite of hunier or thirst from the sentiments
of approbation or di.sapprobation which accompany our judg-
juents upon actions.
That thèse inserutable sentiments are signs of thé Divine T
will, or thé proofi! that thé actions whieh excite th~m
are '.t-hcm-u
enjoined or forbidden by God, is thé second of the two assump- n
!p-n.~i.<t)t-
tions involved by thé hypothesis in question. ~j
In thé language of the admirable Butter (who is thé ablest 'StthfM.'iHt
advocate of thé hypothesis), the huntan actions by which thc~e ~C)'.n.,ttY
fecling*! are excited are their direct and appropriate objects~<tat<;(l
just as things visible are the direct and appropriate objeets Of of
the sense of seein~
In homelier but ptainer langnage, 1 may put !<i.s mcaning
thus.A-s (ïod bas givcn us eyes, in or<h'r that wu may see
thercwith; so has he gifted or eudowed us with thé fudings
"r sentiments in question, in order t)mt we may (tistingui~h
directiy, by means of these fee!ings or sentintents, thé actions
which he enjoins or permits, from the actions wjtieh hc
pro-
hibits.
Or, if you !ikc it better, may put thé meaning thus.–
1
That these inscrutabte sentiments aro .sign~ of the Divine will,
an inCerence which we neeessarHy deduce from our considera-
!5o T~c/~wMffe'~
Lt:(*t'. !V t!on
LMt-.tv tMtt fti* ~'MH/ tf<M~.
&t'~M«<~ <MM~t Liko
T-ittn thé ~F our
MKtt. pf
tttM rest tmf ~ietitea
nt~~tit~Q or
ttM &vet'9MM~
thes<
these settttments wef6 (tcsigttc<t hy the Author of sur being to
answ(~'
auM an appMpriate ead. And tho 'anty pettinent end which
we can possibly ascribo to ttton, is thu end or final cause at
we
wbt( t hâve ttow pointed.
wbich
~'e.'"on
A'tth[-
<Ier L~1 tuottd
I1r01't
Now, supposing that the Dcity bas endowect us with a
SMUM ur ittstinct, wu arc tMM of thtj t!if)icu!ty to winch
tntt)td.t, we at-u
Wf!! il subject, if we nmst construc his iaws by thé principle of
tt)«cr.t) ~Monti utility, AccurdiMg to thé hypothesis in question, the
s<;t)scw<n' S~~
inserutaMc feuHn~s
!<s!ifat[ibk-{nge) which ara styled tho moral .senso anse

"s'
Omntht-
pnn~~ directiy
UttfttY.
IItl It~
"CC
objects.
obje(
attd iuevitabty with thé thou~hts of their appropt-Mte

to mtmkind,
p
ni
We cannot mistake tho !aws which God has prescribed
althou~h we may often bo seduced by thé bhmdish-
ments ùf présent advantage irom t))e plain path of our duties. The
tuen
understanding is never at a fault, a!thouglt thé will may be fraiL
und<
Butbtt~tt
,tU\' <
1
<v~

SU*t!tittth<-
Hut iiere anses a small questiot).–Is therc any cM~otec
that we are gifted with fceHngs of tj~e sortl
that
That this questtOH is possible, or is seriousjy asked and
h\'tMtiiMM

ti"
itt.('K-.<.
,t, agitated,
"gttt wonM seem of itsctf <t Mtftteient proof that wo arc not
1 endowed with such feehngs.–Accordiug to thé hypothesis of a
ettdc

&
U~
ThehvtM;' moral
qm'i.ti'~itGod'
h\' tlto
up~th-
'"°"
,T.M sensé, we are conscious of thé feelings whieh indicate
God's commands, as we are conscious of hunger or thirst. In
O~
other words, thé feelings which indicate God's commands are
ultimatc
ultit) facts. But, sincc they are ultimate facts, these feelings
staMufout-
'0)t)i'tOM.T
Or sentiments
or SI must be indisputable, and must also differ ob-
MC~. viously from thé other elements of our nature. If 1 were really
\'{ou!
!ft& with feelings or sentiments of thé sort, 1 could no more
Sifted
seriousiy question whether 1 had thcm or uot, and could uo
seno
tftore biend and confound thcm with my other feelings or senti-
tnorc
ments, timn I can seriousJy question thé existence of hunger or
ment
thirst,
thirs or can mistake thé feeling which affects me when 1 an)
hungry for the different feeling whieh affects me when 1 ani
huas
thirsty. AU thé parts of our nature which arc ultimate, or
thit's
incapable of analysis, are certain and distinct as well as in-
inca;
scrutable.
scrut We know aud discern them with unhesitating and
invincible assurance.
invir
T)tf:tw<~ Thc two current arguments in iavour of thé hypothesis in
curf'ota.s'u.M.t. question are raised on thé foUowing assertions. 1. The judg-
ments which we pass internatly upon thé rectitude or pravity
i)tt'av')ur"tn)et)<
ththvh'j-
theswfn of M~itlactions are immédiate and involuntary. In other words, onr
;t"tion, moral mota sentiments or feelings arise directiy and inevitably with
br~t))-
st~tci nttr conceptions of thé actions whictt excite them. 2. Thé
our
OUr
moro sentiments of aU men are precisely alike.
moral
bw~amtof
Now thé fimt of thèse veatmot~ {iaseïttons M! ao~ uttiwersatty
veatUMtMasseïttOBsisao~uttiwetsatty atty &Ecr.!V
&Ecr.!V
true. ïn num~rïesa cases, thé judgmemtjt whieh we pass P~s'fiJ~
MttornaHy ttpoM the reetitttde M' pravity of actions are he.?itatin~
dn'y "~nK'nt
and slow. And it not unirequentty !mppens that we cannot motof,)~
arrive at a conclusion, or are utterly at a !uss to détermine im<yt~is
whether wo shal! praise or btame.
And, granting that our moral sentiments are always in- .tUMM't.
stantaneons and inevitaNe, this will not detuonstrate that Our Mn-
moral sentiment') are instinctive. Sentiments which
are fac-
titious, or begotten in the way of association, are not less
prompt and involuntary than feelings which are instinctive or
inserutaMe. For example, Wc be~m by loving money for tho
sako of thé enjoyment which it purchases and, that enjoyment
apart, we care not a straw for money. But, in time, our love
of enjoyment is extended to money itself, or our love of enjoy-
ment becomes inseparably associated with thé thought of thé
money which procures it. The conception of money su~ests a
wish for money, although we think not of tho uses to whieh
we
shonld apply it. Again We begin by loving knowledge
as a
mean to ends. But, in time, thé love of thé ends becomes
inseparably associated with thé thought or conception of thé
instrument. Curiosity is instantly roused by every uttusuat
appearance, although there is no purpose which the solution of
thé appearance would answer, or although we advert not to thé
purpose which thc solution of thé appearance might subserve.
The promptitude and décision with which wo judge of
actions are impertinent to thé matter in question for
our moral
sentiments would be prompt and inevitable, although they arose
from a perception of utility, or although they were impressed
upon our minds by thé authority of our feHow.men. Supposin~
that a moral sentiment sprang from a perception of ntility,
or
supposing that a moral sentiment were impressed upon
onr
minds by authority, it would hardiy recur spontaneousiy until
it had recurred frequently. Uniess we recatled thé rffM~ whieh
had led us to our opinion, or unless we advcrted to thé <t!<~tM-)'~
which had determined our opinion, thé sentiment, at thé outset,
would hardly be excitcd by thé thought of the correspondingaction.
But, in time, thé sentiment wou!d adhere inseparablyto thé thought
of thé correspondingaction. Although we reeat!ed not thé ground
of our moral appMbation or aversion, thé sentiment wou!d
reeur
direetty and inevitablywith thé conceptionofits appropriuteo~ect.
But, to prove that moral sentiments are instinctive
or
inscrutaMe, it is bodily asserted, by thé advocates of thé
~Sz ?~~pMw<'<~
t.tM'.
t.tM'. tV hypethesis in oHëstion,
tV ttypethe~M
mfpMCMt~ynMko.
question, that the rnpmt ait men are
sentïmettts of aïi
mom! sentiments
tttt~YQUt'uf
tt~hyt)U* Thé argument, in thvour of thé !typothesis, which is raised.
tt~bmt.
tjtMstiutt, on this htH'dy assertion, may be statfd briefiy m thé Mlowing
fX.MutU);'t. manuet.No opinion or sentiment which is ?reeult of observa.
tion and induction is heM or felt by atl mankind. Observation
and induction, as apptied to the same subject, lead diir<jrent
uien to dinei-eut conclusions. But thé jw~ments which are
passed iutcrunHy upon the rectitude or pravity of actiot~
or
the tuoral scutimeut!! or t'eelings which actions excite,
are pre-
cise!y niike with aU men. Conseqm'ntty, our moral sentiments
'jr ieeiihgs were not gottea by our inductions from thé ten-
dencies of thé actions winch excite thetn: nor were thèse
St-ntitueuts or feelings gottcn by inductions of others, and then
itttpresstjd npon our minds by huinan authority aud exampie.
Consequc-utiy, our moral sentiments are instinctive or
are
u!tmtatcorinscrutab!efacts.
Xow, though the assertion were granted, thé argument
raised on thé assertion would hfndly enduïe examinatMn.
Though the moral sentiments of aH men were prceise!y alike, it
would hardiy foltow that moral sentiments aro instinctive.
But an attcmpt to confute the argument were supernuous
labour: fur thé assertion whereon it is raised is groundiess.
The respective moral sentiments of dinerent âges and nations,
aud of diu'erent men in tho same âge and nation, hâve dinered
to mfinity. This proposition is so notoriousiy true, and to
every instructed mind thé facts upon which it rests are so
famitiar, that 1 s]iou!d hardiy treat my !iearers witjt due respect
if 1 attempted to establish it by proof. 1 therefore assume it
without au uttctnpt at proof; aud t oppose it to the assertion
which 1 am now considering, and to thé argument which is
raised on that assertion.
But, bei'M'c 1 dismiss the assertion which 1 am now cou-
sidcrmg, 1 wi!I brieity advert to a diu)eu!ty attending thé
hypothesis in question which that untbundcd assertion naturally
.~uggests.–Assuming that moral sentiments are instinctive or
inscrutable, they are either dif!erent with différent men, or they
are alike wit)) aU men. To atnrm that t))ey are a!ike with ait
me)),' is mere!y to hazart! a bo!d a-~sertiott contradicted by
not-ious facts. If they are dînèrent with ditterent men, it
Mtows that Cod bas not set to men a '-«MMMt n~e. If they
are diU'erent with dîneront me)), thero is no c</Mm<Mt test of
hmuan conduct there is no test by which one man may try
th& conduot ûf ~other. ît
were Miy and pretumptionin me
t t& Mt i& jmtgmcat upon ymt, That which we~ pravtty itt ?<
1
tmy, for aught~ 1 ctm kn<tw, ho Mctitude m The mcrat
sense which ~« allège, may be just as good and genuine as
that of which /am conseious. Though ?< iMthtet points bne
way, yo!< may point another. There is no broad sun destined
tu illumine the worid, but evGt'y smg!e mnn must wa!k by his
own cand!e.
Now what ia thé tact whercon thé second argument in
i'avour of thu Itypothcsis in question is founded? TJte p!ain
and gtanng fact is this.–With regard to actions uf a few
classes, thé moral sentiments of most, though not of a!I men,
hâve been alike. J}ut, with re~tard to actious of other classes, i
their moral sentiments hâve dittered, through every shade or i
degree, from stight diversity to direct opposition.
And this is what might be expected, supposing that the:J
principle of gênerai utility is our onty guide or index to thé
!<
tacit commanda of thé Deity. The fact accords exactiy wit!*
that hypothesis or theory. For, first, the positions wherein t
men are, in différent nges and nations, are, in many respects,
widely diHerent whenc-û it inevitaUy follows, that nmch which
was useful there and then were uselcss or pernicious hère and
now. And, seeond!y, since human tastes are various, and since
human reason is fa!!iUe, men's mora! sentiments rnust often
widely diitet- cven in respect of thé circumstances wherein their
positions are alike. But, with regard to actions of a few classes,
thé dictâtes of utility are thé sanie at aU times and ptaces, and
are also so obvious that they hard!y admit of mistake or doubt.
And hence would naturn!Iy ensue what observation shows us is
thé fact namely, a général resernb!ance, with infinite variety,
in thé Systems of law and Moratity which ]mve actually
chtained in thé worid.
According to thé hypothesis which 1 hâve now stated and
examined, thé moral sense is our <M~/ index to thé tacit com-
mands of thé Diety. According to att intermediate hyputhesis, ta
conpounded of thé hypothesis of utility and thé hypothesis of a
morai sense, thé mora! sense is our index to .~M< of hi.< tacit com- ''<
mands, but thé principle of gênera! utility is our index to o<«r.<.
In so far as 1 can gather ]us opinion from his admirab!e
sermons, it would seeni that thé compound hypothesis was
embraced by Dishop Hnt!er. Dut of this 1 am not certain
for, from many passages in those sermons, we rnny perhaps
infer that he thought ttte morat sensé our unly index or guide.
'34
ty4 7%M~<~
Mct.tV
Met. !V Thé MHHpotmd
The hypothesis now ht qu~tioa
tompcumd hypothexts (HM~tioaN&tu!ttttyaro8e
na
f<M
froit thé ttMt to which-1 haro ftiready aftvcrte~–With regnrtt
to actions
tu of et ftt\v dusses, tha moral MntimeaMof m<Mt, though
.i(
not of a)t mon, hâve been atike. Witit regard to actions of
other einstes, thcir morttl sentiments have di(!ered, thron~h every
shade or degrue, from stight diversity to direct opposition.–ta
respect to thé dassea of nctioHs, with regard to which their
moral sentiments hâve agrecd, there was some show of reasou
for thé supposition of a mora) MMf. In respect to thé e}aase9
of actions, with regarct to which their moral sentiments have
dinered, thé supposition of a moral sense seemed to be exctuded.
But thé modified or mixed hypothesis now in question is
not less halting than thé pure hypothesis of a moral sense or
instinct.–With regard to actions of a few ctasses, thé moral
sentiments of WM< men hâve coocurred or agreed. But it were
imrdiy possible to indicate a single class of actions, with regard
m which f< men have thought and felt a!ike. And it is clear
to
that every objection to thé simple or pure hypothesis may be
t1.
urged,
U] wMt stight adaptations, agaitMt thé modified or mixed.
Thedivi- By modem writers on jurisprudence, positive !aw (or law,
tiionottMsi.
simply aud strictly so called) is divided into /<:w Ma<«ra~ and
ti~hw
M ~<M<<tM:. By thé classicat Roman jurists, borrowing from
intu~t'- ~«f
w<<<t<'f</
<m.[/«<c
t) Greek philosophers, ~M MC! (or positive law) is divided
thé
~«M<tK, in ~M ~tK<u«M and ~M civile. Which two divisions of positive
into
at)dt)n!
division
yM~Ctt'~
ct'law
t a are exactty equivalent.
By modern writers jurisprudence, and by thé classical
into~'tM
on
jjftit<<'<')«
Roman
T) jurists, positive n)ora!ity is also divided into !<f<<<()'<~ and
re
andy<M ~o~<i'c.
ne For, through thé fréquent confusion (to which 1 shaU
C!'t't7t,in~'
{)0!uri<t-~ advm't hereatter) of positive !aw and positive momlity, a portion
t'utveth'; oC of positive inorauty, as well as of positive law, is embracod by

t"
intemnxt-
iat~'hy.
whtc)i
i.9':M<H'
th1 ~«' M<!u'< of modem writers on jurisprudence, and by thé
thé
équivalent
eq y<M ~<:)(/<x/<t of thé classical Ifoman jurists.
By reason of thé division of positive law into ~M w<<i«v<<
t)«uud<t and ~!c ~<t!'< crimes
ofthehy. are divided, by modem writers on
ju
pothesis jurisprudence, into crimes which arc ma!a t'K ,«' and crimes
ofutititv which
<n.)th~ ) arc mala ~<M[ ~<~«.' By reason of thé division of
hyjtuthKJ.spo positive kw into y<M yeM<<<M and ./M et'ft'/e, crimM are divided,
ofomorid by
.'séné' 'J1 thé classical Homan jurists, into such as are crimes y<o'M
ye/t<K<tM and such as are crimes yrn'c n't'~t. Which divisions of
crimes,
er !ike the divisions of law wherefrom they are respective!y
derived, are exactiy équivalent.
de
Xow without a clear appréhension of thé hypothesis of
utility, of thé pure hypothesis of a moral sense, and of thé
)
modiBed or mixed hypothèse wbich M c&ntpoMndedof 'f thé
the MM-.tT
,~«t-
others, the distinction of positive law into tt«~M'«~ and j~t-
tive, with the various derivativa distinctions which rest upon itpon
i

tbat main one, ara utterly 'unitttel lisible. Assuming thc


hypothesis of utility, or assuming the pure hypothesis of a
momi sense, thé distinction of positive law into M«<«y-a/ and
~(M'<«'c is senseless. But, assmnin~ thé intermediate hypo.
thesis which is compounded of thé others, positive law, tUtd
also positive tnotfdity, is inevitably distinguished into M«<«~</
and ~o-M'~fe. In other worda, if thé modified or tnix~d
hypothesis bo founded in truth, positive human rM!es fall
into two parcols:–1. Positive human rutes which obtain
with ail mankind; and the confonnity of whicii to J~ivine
commands is, therefore, indicated by the moral sensé 2.
Positive human mies which do not obtain universally and
the confonnity of which to Divine commands is, therefore, not
indieated by that infalliblc guide.
When I treat of positive law as considered with référence
to its ~oM/fM, I shall show completeîy that the modifie J or
mixed hypothesis is involved by the distinction of positive
law into law natural and !nw positive. 1 touch upon thé
topic, at thé présent point of my Course, to the followinp
purpose namely, to show that tuy disquisitions on the hypo-
thesis of utility, on thé hypothesis of a moral sense, and on
that intermediate hypothesis which is compounded of thé others,
are necessary steps in a séries of diseourses occupied with thé
!'<!<t'OM«& cf jurisprudence. It will, indced,
appear, as 1 advance
in my projected Course, that many of thé distinctions, which
thé science of jurisprudence présents, cannot be expounded, in a
complète and satisfactory manner, without a previous exposition
of those seemingly irretative hypothèses. But the topic upou
which 1 bave touched at thé présent point of my Course shows
most succinctty thé pertinence of thé disquisitions in question.

Having stated thé hypothesis of utility, thé hypothesis of a T)


momi sense, and thé modified or mixed hypothesis which is
compounded of thé others, 1 will close my disquisitions on thé M'
index to God's eommands with an endeavour to clear the hypo- H',
thesis of utility from two current though gross misconceptions. ~<"
mn
cto
Of thé writers who maintain and impugn thé theory of
utility, three out of four fall into one or thé other of the fol-
lowing errors.–1. Some of them conibund thé M~M which
t&6 ?~7~~e/'
onght to detenn!no
t.)!t"t'.
t.)!t-f. tV
JV detennino ony conduct with thc
onr cotM!uct ptexitMte Meao«4f
t!<& ptexitm
utMity~
utMity of to which om' sheutd eontbrBt
om' coMjuct sheMJtd eontbfBt and by wM~h
iromtwo fm' conduct should ho tried.–2. Qth<i<3 CMtfoumt ttM </«w~
emTettt
thoo~h <(7!t'<w/ «/<7< with that </Mw~ M' A<«M's cûK~'fKM)~ <~e
gros< n)i<- <«/t<t <{/' ~teM~Mte whieh M brMtdcd by Us ignorant or (tis.
t'MttM')''
tions. ingenucus advetsaries wtth tto miakudmg unJ invidtous name
Thetwo ft' thé -tf~/M/t ~)<
tnm'"tt- Now these et-rofs ure sa palpable, that, perhaps, Y ought to
''Optt'MtS
<t'ttt!tt. conetudu with thé bare atatutticnt, M)d leave tuy h~trers to
supply thé con-ective. Hut, let th~m be never so palpable, they
hnvc itaposcd upon persons of ~nqnesttonable pcnch'atioM, and
ttMt~f'M'e may impose upon aU who will not pause to examine them.
Accordmgly, 1 will ckar thé theory of utility ftom these gross but
~m-rent uuseonceptions as cotnplete!y as my limits will permit.
1 will Hi'st examine thé error of coufonnding M(o<M to
conduct with thé proxinMto MWMto'c or /M< to which our conduct
-houtd couforni a~d by which our conduct should be tncd. 1

whieh is styled thé ~;</M~ .M.


c'
will theu examine thé error of coufouudh)~ thé </<eo~ o/' !«'<V!
with that //M'w~ û~' /t/o</tMM tMc<:<'<ttM~ </)< of &<'Mf!'o~e<~

ThottMt According to thé t)teory of utility, thé mensure or test of


tnMc'~n' humau conduct is thé law set by God to his human créatures.
('L'j)ti'nex-
ajuutt.'j. Xow some of his cotamauds arc revealed, whitst others are
unreveaied. Or (ehanging thé phrase) some of his commande
arc express, whiist othcM are tacit. The commamls which God
has rcveatud, wo mu.st gather from thé terms wheroin they are
prontu!ged. The coumiands which lie bas not rcvealed, we
must construo by thé principle of utility by thé probable
uttects of our conduet on t!tat gênerai happiness or goud which
is thé final cause or purpose of thé good and wise iawgiver in a]I
hiii laws and coMmaudments.
Strictiy speakiug, therefore, utility is not thé M<'Mi<?'<; to

source or .spring of our or


which our eonduct should eonibrm, nor is utility thé <M< by
which our conduct should lie tried. Jt is not m itsetf thé
paramount obligations, but
it guides us to thé source whence thèse obligations i!ow. It is
inM'ety thé <M<~<: to tho tneasure, t]te !'Mf/ to thé test. i!ut,
-iince we confonn to thc measure by foUowin~ thé suggestions
of thé index, ï may say with sufncient, though not wit!) strict
proprifity, that utility is thé measure or test ~'o.«a<'7~ or
'<«/«'~M<('/y. Accordingly, J style the Divine commanda thé
«/~M)~< nteasure or test but 1 style thé prineipte of utitity, or
the gênerai happiness or good, thé ~w:<mt<~ measurc to which
ot<r condHct should coHfbnm, or (~ ~wMM<!<e t~t by which our J
cMKtuctsbouMbett-ittL
New, though the gcumtti good M that p~ximate
mMm)'< M.
t!mugh tt.e gênera! good is titat proxintate ~<, it is
not iu «tt,
or even ia most caaes, thé M~M or <w<~<KM~ w!iic!t ought to
deterMine our conduct. If onr eonduct wcro aîwavs ..fetcnninej
by it considère) as a M' or ~«-<mM<, our conduct wou!tt
often 'UMgrce with it con-'idM~ as the ~w</(t~
or ~«MMn. If
our conduet wet-e alw~'i; detemttn<tt by it ponsMcrpd as a m~-
or <M~«-<-m<-7~,our conduet would often bti Hameable, rather thau
deservit~ of praïse, w)Mn tried by it as the test.
TiMugh thèse propositions may sound tike paradoxes, they
aro perfectly just. 1 should occupy more time t)ian t (.an
to thé disquisition, if 1 wejit throu~t the whole of thé proofs
wltich wouht Mtabti.sh titetu beyond eontmdictiott. But thé few
hints w!)ictt 1 shall Mow throw oui wiH sunicient!y
s~~est thf
cvidencc to those of tuy itearers who may not hâve re~cted
ou
the subject.

When 1 speak of thé public good, of the gênera! good,


or
1 mean tho a~gregate enjoyntents of thé sing!e
who
or individuat
persoHs compose that pubtic or ~.nera! to winch mv atteu.
tion is direeted. The good of tuankind, is t!te
aggregate of thé
pleasures winch arc rc.specti\-c)y enjoyed by ti.e iudividutds who
constitute thé Iiuman race. Thé good of Kttg!and, is thé
a~re-
gate of t]M ptuasures whic!t fall to thé ]ot of Ht)g)ishinen"con-
sidered individuany or smgty. Thc good of thé public in thé
town to whieh 1 be!ong, is thu a~regate of the pteasures whieh
t!te inhabitauts severaHy enjov.
Mankind,' country,' puUic,' are coneisG expressions for
:t
number of individua! persons considered co!!ecti\-e!y
whote. In case thé good uf those persons considered sin'dy or as a
htdividuaUy were sacriHced to thé good of those per.~J 01
sidered coUectiveiy or as a whole, thé générât good woutdeuh- bc
destroyed by the sacri<]M'. Thé sum of the particular ctijov-
ntents which constitutes thé gênerai good, wouM be sacrifiecd
to
the mère Marne by which that good is dt-notcd.
When it is stated strictly and nakediy, this truth is ptain
and paIpaNe that the statement is a!mo.<t laughabie. so Hut
penence sumcientiy évinces, that ptain and patpabte truths t.-x-
arc
pMne to s)ip from the monory that the neglect of phiu and
patpaMe truths is thé source of tn<Mt of thé
errors with which
the wortd is infested. For example, T)tat notion of thc pub!iL
t.t!<T. tV good
gpûd W whieh was cHtront in ttt& ancrent ropuNics supposes n.
negleet
neglect ùf thé H'uiatn to which 1 hâve ettUed your aMentioH.
~crrt'e~!] to that notion of thé public good, the happiness of
Agreeabty
thé individual citizens M sacrineed without scniple in order that
thé eommon weal «ttty witx aud prospcr. Tho oniy substantial
interests are the victims of a barren abstraction, of a sounding
but empty phrase.
Now (spc~kin~ genemUy) every individual pomoM is tho best
possible judge of his own interests of what will ftfteet himsetf
with thé gt'uatest pteasures and pains. Compared with his
itttimate cousciousness of his own peculiar interests, his know-
kdge of thé interests of others )!; vague conjecture.
Consequentty, tho principle of genernl utility imperiousiy
Jcmands that he connnonly shaU attend to his own mtlter than
to thé interests of others that he shaU not haNtualIy neglect
that which he knows aecumtely in order that ho may liabitually
pursue that which he knows itMperiect!y.
This is thé armngement which thé principle of général
utility manifestly requires. It is also thé arrangement which
thé Author of man's nature manifestly intended. For our self-
regarding affections are steadier and stronger than our social
the motives by which we are urged to pursue our peculiar good
operate with more eonstancy, and commonly with more energy,
than thé motives by which we are solicitod to pursue thé good
of our fettows.
If every individual neglected his own to tho end of pursuing

the
aud promoting thé interests of others, every individuat would
objectswith whieh ho is intimately aequainted to the
end of forwarding objects of which he is comparatively ignorant.
Consequentty,thé interests of every individual wouM be managed
unskitfuHy. And, since the générât good is an aggrcgate of
individual enjoyments, tho good of the générât or public would
diminish with thé good of thé individuats of whom that général
or public is constituted or cmnposed.
Hie principle of général utility does not demaud of us, that
we shall aiways or habitua!!y intend thé gênent! good though
thé principle of général utitity does demand of us, that we shaiï
ttcver pursue our own peculiar good by meant which are incon-
si.stent with that paramount object.
For example Thé man who delves or spins, doives or spins
tu put tnoncy in his purse, and not with thé purpoac or thought
cf pt'omoting thé général weH-bein~. Hut hy dciving or spinning,
)te adds to thé smu of eommodities and lie thereibre prum'jtes
that générât weU-beuig, whick is Mot, and ought Mot to be, hia
pmetical end. GeaM~t utiMty isr Mot tus motive to action. Bat tt
bu action contorms to utility considered as t!t<t shmdatd of con-
``~
t-
duct and when tried by utitity considered as the test of conduct,
hHtMtioudeservesappKtbation.
Again Cfa!I pteasures Lodi!y M' mental, thé pleasures of
mutuat love, cementcd by mutua! esteem, are thé must enduring
and varied. They titet-efore contribute targety to swell thé sum
of well-being, or they fonn au important. H.en) in thé accent of
human hapj~Hess. And, fM- that reasou, thé weU.wisher of the
gcnemt guod, or thé ad)terent ofthe principle of utility, mttst, in
that character, consider titem with mueh compiaccMcy. But,
though hc approves of love because it accords with his principle,
he is far from maintainin~ that thé général good ought to bo the
motive of thé lover. It was never contended or conceited by
a
sound, ût-thodux utilitarian, that thé lover should kiss his m~tress
with aH eye to thé common weal.
And by this last exantpic, 1 am uaturaUy condueted to this
further eonsidemtion.
Even where utility requires that benevolenee shall be owr
motive, it comMouIy requires that we shall be determined by
partial, rather than by general benevolence by thé love of the
narrower circle which is formcd of fa)ui!y or relations, rather
than by sympathy with the widtir circ1e which is forrned of
friends or acquaintance: by sympathy with friends or aequaint-
ance, rather thau by patriotism by patriotism, or love of couutry,
ratjter thanby thé larger humanity which embraces mankind.
In short, thé principle of utitity reqnires that we shall act
with thé utmost ei!ect, or that we sltall fio act as to produee thé
utmost good. And (speaking geueratly) we aet with thé utmost
eft'eet, or we so act as to produce thé utmost good, when our
motive or inducement to conduct is thé tnost urgent and stcady,
when thé sphère wherein we act is thé most restricted and thé
most familiar to us, and when thé purpose which we diroctly
pursue is thé most detenninate or précise.
Thé foregoing gênerai statement must, indeed, be received
with numcrous iitnitatious. Thé principle of utility not unfre-
<{ucnt!y requires that thé order at which 1 have pointed shall be
inverted or reversed that thé se!f-c.arding auections shaU yieH
to thé love of i'!Ut)i!y, or to syntpathy with friends or acquaim-
ance: that thé !o\'e of fnmily, or .syMpathy with friends or
acquaintnncc, shall vield to thé Jovf of country that thé !ove
of country .s!i~U yield to thé love of mankind that thé ~Oieral
t6o T~WM~C~
tjft-.n'bttppht
tttM-
~~aÏsobe
,t
t~Mf~.t~- or good, which
tt* httppim'ss
J
,.t. t)- test
-.tt.t..t. ht~ (tîwnya thé of our eonduct, shalt
t~~t ,.f
aÏso bc tha motive detetmmutK our contînt or sttati atso be thé
practical cm! tp which our eonduet is directet!.
practict)
('oothn'M lu order further to dissipât~ th'' contusion of idcns giving
ttthtbittt. rise
M.<.<of
to thé UHaconeeption last examiaed, 1 shatt here pause to
t'Hetot
aufttyxe thé expression 'good and bad motive~ and to show
m'~tiv~ auatyxe
iu what sensé it t'epreseuts n sound distiactiou.
Wu often say of a nm~ on any givcn occasion that his
motive was good or bad, aud in a certain .seusc wo may tru!y
say that some motives are butter than others inasmuch as
some motives are more likely thau others to lead to beMeiieial
couduet.
But, in another aud more extended sensé, no motive is good
or bad since there is no motive which may not by possibitity,
and which does not occasionatty in fact, kad both to bénéficiai
and to miscttievous conduut.
Thus in tho case which 1 have ah'eady used as an illustra-

the
tion, that of thé man who digs or weaves for his own subsist-
motive is self-te~rding, but. thé action i& beneScitt!.
The same motive, thé désire of subsistence, may !ead to
pernicious aets, such as steaUng. [Love of réputation, thongh a
self-reganUng motive, is a motive generaUy productive of
benencial acts and there are pet-sons with whom it is one of
thé ruost powerfui incentives to acts for thé public good. That
form of love of réputation catted vanity, on thé ot!ter hand,
implying, as it does, that thé aim of its possessor is set upon
worthiess objects, commonly leads to evil, since it Jeads to a
waste of energy, wjnch Mi~it ottterwise hâve been turncd to
useful ends. Yet if, as a motive, it be subordinate in thé
iudividual to other springs of action, and exist merety as a
latent feeling of setf-compiacency arising ont of considérations
huwever foolish or uosubstantia!, it may bo harmtess, or even
uscfui as tending to promote energy.] Benevoienco, on thé
other hand, and oven religion, ttiougii certaiuly unsetnsh, and
generatty esteemed good motives, may, when narrowed in their
aims, or directed by a pcrverted understanding, tead to actions
most pernicious. For instance, thé anection for ehitdren, and
thé conséquent desire of pushing or advancing them in thé
worM (a species of narrow benevotence), is with many pcrsons
more apt to lead to acts contrary to thé pubhc good than any
pure!y selfish motive and thé puHiation, which thé supposed
gMdness of the motive constitutes in thé eyes of thé public for
the pernicious aet, encourages men to do for thé sake of their
ctuHren, actions wMehtheywouMboashtnnedta daf~their t.ECT. t ÏV ]
a own direct iatetest. Kvca that 6tt!ttrgëd benevolenco vMchr
i
emhtMcs kumamty, may tead to action cxtrcmety mischievotts,
uniefts guided by n perfectiy sound judgment. Fcw will doubt,
forexample, that Saad and those other entitustasts in Germany,
whu hâve at différent times thought it right to assassmate those
pcrsons whom titey beHeved to be tymnts, havc acted in H
manner htghiy perniciou!; as regards thé gênerai ~ood. Of the
punty (aa it; i9 coMUMonty termed) of their moth-cs, 1 hâve not
thé ieast doubt that is to say, 1 am convhjeed that they nctcd
under the impulse of a most enlarsed benevolence; but 1 Jiave
as littte doubt that, by this benevotenee, t])ey were led to thé
commisMott of acts utterty inconsistent with that général good
at whieh t))cy aimed.
But, a!though every motive may lead to good
pre.enunentiy or bad, mme
] are likely to tead to good; behevolence, love
of réputation, religion. Others pre-emiueutty likely to lead to
bad, aud Jittie likely to lead to good e. thé anti'sociat
antipatby–partieu!ar or ~nerai. Others, again, are as likdy
to Icad to good as to bad; c. thé sdf-rejjarding. They are
thé origin of ]nost of thé steady industry, but a!so of ntost of
thé ofiences of jnen.
In this fjuatined sense, therefore, motives
tuay be divided
into such as are good, sueh as are bad, and such as are neither
good uor bad.
If an action is good that is, eonforming to gênerai utiJity
tite motive makes it more laudaMe. If not, uot. Hut it is
oniy secondarily that thé nature of the tuotive aHects the
quality of thé action.
[That the nature of the motive does nftcct thé quality of
thé action is évident front this considération. Acts are never
insutatud. And as their moral comptexion is u!ti)nate!y tested
by their confbnnity to the law having utility for its index, so is
that moral complexion immediately tcsted ))y thé nature and
tcndency of the course of conduct of which thé acts arc samples.
Xow, the conduct of au individua! is (spcakiug ~enerfdly) detcr-
inined partty by thé mc~')'(.< wl)ieh are his springs of action, and
partty by the <'M/(M<M/i, or thé state of his undcrstanding nt thé
instant of action, r~rding thé efiects or tt-ndency of bis acts
both being antécédent to thé M/i7<Mt by whieh thèse immediatch'
etnerge into act. Human eonduct i.s, in short, detennined by the
ntotiveswhich urge, as we!! as by thé intentionswhich direct. The
intention is thé uim act, of which the
aim of thé aet, thé motive
moth'c is thé
t!te fpri!M.]
sprin~.]]
T0!.t.tr.
VOt. M
162
<v~ 7~P~~
r. rv
t.ECT.!V
a
It M,
I)
tm
thc action
ct.r
a_ therefore, ~M_~h-
wîong td mtuntain at_~ i comp!exioa of
thitt the
tmtmty dépendit ott the complexiutt of tho motive.
It is cqtudiy wrou~ to nmintam that thé nattirc of thé moti-ve
Tt ie
does not, to & certain degree, détermine its eomptexion.
In this linHtcd sense, ther~fore, tho moral com))tcxion of tho
action is detennmed by thé motive. If thé intenti'Mt be goud,
tiie action i.') thé bettM' for bein~ prontpted by a social motive.
If the action be bad, it is less bad if pïompted by sociid one.
It is impM'tiUlt diat good dispositiMM shoutd be reeogmsed
and approvcd. But the gooduess of thé action dépends upon i
it-! eonfornnty to utitity [and even if jud~ed from thé narrow
point of view eommauded by t)te individu:)! w)to.se acts are in
questi'jn, dépends upon thé state of his understnnding as to tho
effets of thé action that is, upon thé intention, Mo less than
upon thé motive.]~
Dut to adjust thé respective claims of thé seinsh and social t
motives, of partial sympathy and général benevotence, is a task t
which beiongs to t!)e détail, rather than to thé principles of
cMtics: a task which c~uld h~T<Uy SH~Maplish Ht elear and
1
satisfactory tnanner, uuless 1 visited my hearers with a complète
f~t'~f~MK upou ethics, and wandered at uneonscionable len~th
from the appropriate purpose of my Course. Witat 1 have
sug~ested will suinee to conduct thé reHectinK to t))e foHowmg
conclusions. 1. Général utility considered as t!ie measnre or
test, difters from général utility considered as a motive or (
inducement. 2. If our eonduct were truly adjusted to the c
principle of utility, «ur conduet would conform to ruies fashioned
on thé principle of utitity, or our conduet wou!d be guided by t
sentiments associated with sueh rules. Hut, tins notwithstand-
in~, général utinty, or the général happiness or good, would not
be in al!, ur even in most cases, our motive to action or
forbearance.
The fécond Having touched gcaerally and briefty on the first of the
mMeom'cp-
tintf'-x- two miscouceptions, 1 will uow advert to thé second with the
aoincd. like ~eneraiity and brevity. ]

Thé for~K )<a~c, cotxttx'nciM~ i-utMtance in the


morf !t)n)<)e «tition of
!<tt!tKtu)t)t)t)it)';ofp.tOO,i<nat''ott-
t.<h<-w«rkwhh.-hht;)n~)itatMt;!tt!H-e
tM))fCt)in<)).-t<-xtuff:ith';t-<'ftht:))r!:i.'MU!!
)!!Vcn<urt''tt<)cotMtrt)';tthu!t);o\'MjNj)!,a~e
t'titir<n<! fit th<-iie )c-f'tur< rtparttyfromthcfrttjXtt'ntary notes
Thé pnrport t:t.st
hf)ti<))owevtr'-ottt:tinM[)Mrttytn.).S. <.)t~-)ttMn'~),u)h)t.:nt!vfrmn.).S.M.'9 'g
At.'i! ottCi! of th~ )'m<i! as <)n~inaHy yttotc'i..S<ttH)'nft))<'f)-)M'n't!trynotc-:)
<t''fivcr';d MM') jart!)' ))) the ft'!<t:tm't)t<
L'<t)mVt'Vf))t')r<ttoM)mntt.t-))t)wonr-
frotnthefmthor'iMS.pntttMtufth'
Miu!;todoi.ocmt),)!,t.-Mt)ywitht)«'].ur.
;)"«"< to ~)wrt"t't))<'r''<t(<rth'!iet'tun;& Th''
thé )!tiit édition. At it t)My b'*
t~)M.imge)i)!o.),:n).M!)i!)\j)<tar){':()
i))f''rrttt frotn tht-se fra{;tneHtt t)mt th~'
authw eoMtcmpIated inco~Mratin,; tht-if if hy thc use of ).ract:<;t.I!. C.
TLhoy whc Mt mt~ thia miaconecptiûtt are ~uMtyof
twM <a-M~. t~tCT~ !V
1. ihcy mMtah-e and tttsfoFt: thé hypothesis concenttng thé '9;
ori.'tM
!t<
oi' heaevolonee whM. atyted thé .-rc~A .<~f. p.T~y
M
-y
!nm~MG that that hypothc.sis, ttm.s mistak~n
as and dbtortfd,
is an essentm! or Heccss:try ingrcdieut iu thé ~<w~ M<,7<~
<
1 witt examine the twu
en~rs int.) which thé mist-um~ti'm
tuay be resotved, in th<' order wt~Mit) 1 have st:tted thon
1. Aceoifling to an Ityp.,thcsi.~ oi- Hart~y and uf Yari~n
uther wt-it~r- b<.n"v<nce or synipathy :< nut
an ulthnaic f~t
or j'i not unsu'ic<jj.tibh- oi' ana!ysis or msuinHon, ur i. n..t :t
simpte or inserutahk c)cm~nt of man's bein~ or nature. A~ordin"
tu their hypothesis, it crnanates from sett'-Iove, from tite .su!~
or
re~rdin~ a<fcction.<), thron~h that t'antiJMr
procès stvh.d thu
a~ciatiou of ideas; to wjuch 1 hâve bricttv adv<rt<jd in a
precedu~ portion of tny discoursu.
Xow it foUows paipabty from thé forc~oin~ concise
that t)tcse writeM dispute uot thé MM~w of disititer~stJ statemcnt
benevolencc or sympathy: that, assutning ti.e exist~f-f
of
'hstnterestt'd ~nevoteneo or sympathy, thcy ûu~avour
tu tracu
thé f~hn~. through its su])posed ~ucration, to thé simpjcr and
ultcnor fcelin~ of whiett thcy bciiuvc it tin; on's})rin~.
But, pfdpaUe as this conscqueuf.-c is, it i.~ faneied by
tuauy
opponents of thé thcory of utitity, and (what i.s iiiorc rcmarkabi~
by some of ils adhérents al.so, t))at the.~ wntcrs dispute thé
(.M~utt-t' of disinterestcd benevoluncti
or .<ytupaHn'.
Accon!ing to thé hypothesis in fjue'stion,
«~~ ~<<«/, we hâve no syntpathy, properly «.<caUcd, with the
<<.< ~<K
.o
pleasures and pains of others. T)Mt whic)i is .stykd .svinpathv,
"r t)iat which is stykd benevolenec, i.s provident r~ard to sdf~
Every ~ood 0~00 donc by man to man springs from ~r~~
of which se!f is the object. We pt-r~-ive that a dL.pend
we on
others for much of our own iiapphtess and, pereelvin~ that we
('') 'Thé ftrst of thèse mhtakM m~tt!
!"t<vt.fy)M[~t,!tnJ))!t!i)Xtt-itfor))Mc-
hyf:o.!win." Thc.seMn.thvt'.tj.-Y. <K<
FroMt Hpienrus and f.nert'tiu.<\t(Mn)
'y"fth~Mritf'r.swhf)!tt')j<trtu
toi'!t).yam)C:o(twin,Mr.)!)it)t:ttnis
~'sr~ectuti!ity.)u,i!)f;tf't,f.;nhr.tc(-it-
tft<))iiywrit)Tw))o)ta-i<'x;))ttih<[thi.
.).(..< (;i..<.r.)..S.u(..ca..).,hn..un, .-t.
h<hit.t.)non:mu!i). T)j~i~i.sthf
t.ubj~tM-ith<;it-!)ntt-<'i!n).hu~;nMry.
tfe
t'')Mt,indct.-d,th')ttt'<'ntor«t't)jttti.corv
ffry;<t.<u.fu). Th.-«/<7.i..th.t.
t't'Mi)ity«'th.)ti<!Ko)t)!).<tiM
tiMi-.<y).<-n)i"i.<i)jutw)ti..jtWuuM!HMwcr
)ntnMMM~-),buth6isthf'fir.tof:.))
:')'n)j)t..whM!t!t))tI<inistur))Un.o'i<M'
!'tti)o-u~h<:Hwh)h:(f<Yicwctitfr~ht
~htf~;f,,it,j<.
"K)Muirycot)e..mi~ro)iti.'atJustin.
i'<'f-rt.ti;j)\i)ui.ipat.:<,nn.]M-the)!~n<'ot'
t~y MiXiamGcdtvin.
"kiv.<;h.ii). M,t)~<'<,<i<j't-jj)(.Q)'j.
JanuMy.UM,
Ipn-~ain~tt~-sutthorMr<))~tt<.mu.t..t)'M-th-r)\-U).inf!.vot)rof
'.]ax.<e!.(!(.'twm!tm()ntf!.tt)t''a')h(-n-)tt.
!'t-<.th't))M)n-futi)itY~-it~,j;c,).c,~j~,
ofthetheot-yofutitity. Thiiiwntc-r tc-ra'Utf-rch'.t.–ti.C.'
!ïV depemtoMothM'itf~Mtttehof our owtt httpphtess,wc da good
anto others th~t. otho~ may d~ tt: unto t<f. Thé seenuugîy
dMMt~'<jst<it( s<'t-vi(i<'$ ~Mtt ftre wmt~ by Mftt t~ n~ett, tn~ thc
uitspriHg of t!te very ntotiv~s, aud are suvcfHed by the ver'y
pnndptcs, whieh cugettder amt regulatu ~'«A'.<~
2. Having thus nustakeu amt distorted tho so-canfd ~~A
~'<f<i'<, tHauy opponents of the </<tw</ o/' f~<7i7.y, togethcr with
sontc adhe~nts uf the satue thwry, imagine thut thf tbxnM', us
thus tfttstaken ant) distortcd, is tt ncccssnry portion of the tattcr.
And heneo it naturnUy foUow. that thé ad))UMuts of the theM'y
of utility are stykd by niatty uf its oppoueuts sdfiiih, soi-did,
and eotd-Uouded catcutatut's.'
('')Thf)K..t)i)!h!!y.stcH!,inthh!t!iiitfrat us to jfur.suti thé tKtvonbgt: ur bem.-Ët of
tt)t)Mrt,Mt)at)yi)tM)usnt<tttwithob)'ioU!) Othet)!.
facts, itMtt t)t';r''tur<) i< h:tr'))y 'k'-Mn'iM To ohvhte this ttnthii~tity, with thé
ot'.wriotHrt:fut!ttiuM. Wt.arMthtttyimH wreteht'dtjuibMitt~whMtithtgcts.Mr.
(1IIibhlill~ \l'hlef¡
honrtycti<Mfm«.'ofttL<inttrt:<tt;<tbuM<;vo'lit-litliatit
Hcnthatn )KM judicioudy dMmr(ttdtii-4car(ILd thé
311',
tt.UMorsyhijathy.orofwiitftiHgthe duM"H!) cxj'rc.~tox .M~A. Thé txoth-s
S'M'tofuthcrswtthoutregiUtttoonrwhich)fotictttMtopur9!Uet))c<Ktvantaf;<
uwn. tnth<rf.<)'tttw~'t(;)tM)(.'unttitio)t or gomt of othctn, h< fftytM M<-<a~. Thé
t'fhNmim!!<M<'ty,Munt!n'ûM:t)jtuart!tnuth'Mwhn.-huti~ltutopuMMoM
thfOM[H'tm[t;hvutM!itm<t'<wht:rtittt!)tO!itown attvattta~ or )~m), ho jjtytM iM~
tnentU'e~itN~.ttn't.suh~tbthuedn'<ty«n<f'/<y.
mtit<n<jftr!Uui)tt;n;c<-ivedbyM'itm<;tt Uttt, h<Mht<") thé mciiU an') !te)f.re)j!ttJ-
inthcit'youth.thtttthtfbettcvutenteuf it)K tuoth-e!), there are dMinterMteJ
MM.'itXMXWMtstheiutetuitytmJctt' tu<jtiv<N, or dixitttt'rMttd whhea, by
dtimncc which ore Mfjniixte tu th'ir nwn whM) we trf i)«tj<))e(( Ko~ite't to
htH't'tMe~MttdtuthehapjtiMt.'MofthcirvisitotheKM-ithevit.urThèse dMn-
Mtutv.~rMttur~. WithtuostHMtt.bt.-jn;. t<;rt!tt;d)jUt Mm)et'f)tMt))totn't-h<'
vo)'t)ef'or!!yt)))Mthyii)mthe)'&)Mrn;H sty)t;')<'«<t-<t~-<t/Whett t stytp a nM.
et)tutMnthttM!tiitrot)jj;aMt)'it<'at)yin<:<:n' tive of thé sort a f~t(<'<'«<«< tiiutift-,
tiv~toY)~r')u.')!tmt(-f)ici'ttt!K:ti<j)). apply t''e tpithf-t with thé tuc'anins
AhhoM!;hth'!)~-)in''or.«'ntinx;nt!t)r'-cts wh':r<:iht!t])j)tyittoM)~!)6Vot<;mtUtoth'e.
thtrn)ott<:u':Mou);h,tt)seM)t)<n)tdyfitit)<:d Sp<t)iiM){mt)ta)Mo)ut<:t)rt.-(;Mot)thu
att)t)!Mrt)tbyanta~ui.tfe<;fin~M' tu'ttiv<'i<uf)tdi<it)t<-r'stt([tn<itht-tca«:!
)!utto<tt:My,K-i<hifof))' fur,it)<'tt''h~ftht.'two't!.t;.s,t)h;mntt
s'-utiMtt.-ut.t.
fou'tH)~"rAf!tmttt-it)~th<:t.tMM.ufd<;sin'i reitef frum (t wisit ftttp'!rtu))i)f;{
)Mt''vu)<nt:e<;r.<y)t))at))Y,hr.ttht'ra hitn.'it;)f.
l', Hut,<xrej[)ti)t};th<;d'<ir)-ot'
wit'tp)ta')')X,)t!t~n)<:dutthewat)tutt-a refiff whit;h the wi.-ih n':<;cs.Mri)y int[))it;x,
nc.4..<it'.otirf.t)Mt)t)t'Miberat<:p')si' thé wi.<h, it) cach of thé caifcs, it ))nr':)y
tioftnfa)~i)'«o[)hM't-[Khthnttfit)t'i ')i"i))<fr'"<t~). Tht'end urobj~tto
!!))nn~<ot'<u)b[u';t. whirr))iturt;t-sth'))<tMiitth';);MM)f)r
Att')h<:r'ttm!tybt'i<:<)yr<-)n!)rk,t))itt<:vi)ofa))')th'-r,<utdn<)th)9«wn~h':m.
th';f!t)'rf-Mif<Mj'{/</<m;ti<tt«t«ù. t~<)!y it<ttit)t)HM t'< humatt Mturc
<iv'<.)t.t)!a)!trji"*(tn'tnn.nrowf'rtm'an- ()i!inft<:r<it<))n~!L.V!)ktj~(;fr.)~:ntitam
))<Taktttg th' fXj~-MhH M//MA with hMdr:mttU)")u))i)n!i'-t)thf;rc)'ro!)dK)-t
!t.< htr~-rtUt.-imitt~.K~ tn~ti~tiar' «7/M<. ofMftaittfntiM. )!))ti))imputin};tii)i-
t'or )-v':ty «jutiv; M a K'i.s)i at)~ cvery intcrc-stM) t))ah-v.,tc.))rt- tu humau tmturf,
wi'<)ti<!H~ittwhit;hM)rmt~am!m'i!< h(:i.<f~rfr<))n))<!i))~!ii)));n)ttf. Th<-f<n-t
!mdw))Mtttrp:(iiimtoM':kre)icf,))y is m)Mtitt<;J or os.sutMM) by Ari-itotte iux!
<ttta!ni)t); t)M u);j).-<;t wi.'ih'I'Mkit)~ )!Mt)cr,!H)d))ya))whohf<Vt<<;tu"-ty
tht:<!];))r.i'.if<)i'<</tt/twithit.<Mrrow:r exsnti))):)! thé xprit)}; tn')th-t: of
or
t'h .tttjhK. "'otiv- w)ti<;)) ar~- ~.7~/t )hU.<t duet. Attdt)Mf!tcti.m.si)vM~!tin<tcun.
)M.)hnt~U)<!ht4fnm)t<t')tivMw)tM)ate by thc !d).~rv.nt:t~ pn)tei)))e wLi.;h )..<
t-;<M<<:)t<M)rwi<,h<i fur hnf ow)) styM 'thf aMuciatiott of tJe~ ~i)i-
Ru')'), ffûtn our wish''< for thc ~ood of itttL~itcdtHat':vo)t-uc<:orfU)<:t<athy,tiku
ourn.:i,;t))'M)r:t!Mt)t".itMwhic)t itx[«;) ')Mint<;r'it~))x-tt<;vo)t-Mcf:orKYtn)Mth\
u.'it~~nr.o~&ur 'tWM~h'ant~e'jr
bcMttit, front thé <tt;sir):!t which .'i~)ieit re~r<tiMj{ att'ectiuttf!.
Nowthfj) ~Aeo!q~c~Mawtii~ 1 styîe tÎM~K~</w~<~ r&MT; tV
bas no neces-m'y couuuctioa with any <Ae~ </ ~~t'wA ït haa
}
? )? Hfcmsary connection with any theory or hypothe.tis whtch<
conceras thé nature w engin of benevotenee or sympathy.
Thé theory of utiuty wi!ï !toM good, witctiter benevotence
orr
¡ sympathy be truty a portion of our nature, or be nothing but
a
tnere namo fur pr'jvident regard to sc!f. Thé tl~nry of utility
wi!! !told good, whether Lenevut~ttCG
or sympathy Le a simple
or uMmntc fhct:, or be eng~nderud by thé principle of association
û)) thé sdf-regardi))~ afÏuetions.
Aecording tu thé theory of utility, thé prineiple of ~Mf)-f~
uti!ity is t)~ index to Cod's eonuuands, and is thcMfore thé
proxhnato tneasure of a!t human conduct. We are bound by the
awfui sanctions with which his eotnmands
are anned, to adjust
our conduct tu rules fonued on titat proxitnate nicasure.
TJiOUSh benevolence be notliing but
a name fur provident
i~ard to Stitf, we are rnoved by re~rd to setf, when we titink
of those awftu sanctions, to pursue thé generaHy u.sefu!, and to
forbcar from thé generaîty ptirnieious. Aceordin~Iy, thut is the
version of thé theory of utility wi)ie)i M rendered by Dr. l'aley.
He supposes t)tat .~fK<</ utility is thé proximate ~< of eonduct
but he supposes that nM thé ~«<)'t-M by which
our conduct is
detenuined are pure!y ~?v~~t\'y. And his version of thé
<AM!y o/' «<<7t7y is, nevertiietess, cohérent tboush 1 think that
his ~fM-y o/' Ni«~M is nnserabiy partial and sha!!ow, and that
mère regard to self, although it were never so provident, would
hin'dly perform thé ofnce of gennine benevotencc
or sympathy.
For if genuine benevolence or sympathy be not portion of
a our
uature, we hâve onty one inducemeutto eonsult thé gênera! good
nnmety, a provident regard to our own we!fare
or happiness.
nut if genuine benevotenee or sympathy be a portion of
our
Nature, wo hâve two distinct inducements to consuit thé gênera!
Suod natnely, thé same provident regar(t to our own welfare or
happiness, and a!so a disintercsted regar(t to thé wethre
or
happincss of ottters. If genuine benevolence sympathy
or were
not a portion of our nature, our motives to consutt thé gênerai
good would be more détective thaa they are.~

('*)

c
Cott/fMjMt

Syt,~tt).y is tht
</ ~)t~<</ty tef/A
).)cfMt)re
~nt<
or ~iu
"t
with mom] Mntin<entf! «et their onpn
it nny), often rutti: eounter to
As (..f/.) t)mt large syn.~thy
t))<-m.
wtnth WM M anothcr et)jo\ or with every Mhtitnt heittg, or at t~st
w)K-))
'utr~. tn common iMgHam it M M. with every hutnatt being, whieh is ta))c.t
M'v.teOtn". t)t)s M tottUy difR-Mot )mM)!mitvorb<'MeM)f))ec,inc)iMes)Mt')
~M tnorit) ap))ro)mtiuh or <ti.s3))proha. i.ytxjmthiM with th': )iu<r':ri)tg!! of thé
'MM, fttttt ttMteim of atw«ya cûiMciding entprit w))Me ;nt))ishn)e))t
we ap~rove.
'portitv
!<)!Ct.tV A~itt:As!)Hmin~th<t<!beneYo!enc~or~ympKthyi9tnt!ya
portion ofour nature, thctheoryofutiKtyhasttucMUtecUon
whatever
wtm) with any hypothcsis or theory which eonccrns th<'
urigia ot' thc Kmth'e. Whethct' benevokttce or sytnpftthy
simple or ultitnatu tact, or be engeudet'Md by thé pntMtp!~ uf
be n,
xssociatioM on thé scH'-n'~rding af&ctions, it M one of the motive-!
by which our eouduct is d''t<'n))ine~. Ant), on either of the
t:oni!ictiug suppositions, thé pt'incipte of utility, nnd Mot bette-
votHUCt) of sympathy, is thé Mt'<Mt<?'<; of of conduct For as
conduct tuay bc geuc)'nUy useM, thou~h thc hiotivu is self-
rc}{ardii)~ so jnay couduct bu ~nemlly pemicious, though thé

.j~
motive is purcty benevolcut. Accordin~y, iu ait his expositions
of the tt~ot-y of utitity, Mr. ])Gnthnni nssun~s or supposes t)m
cxisteucc: oi' disiutercstcd sytnpatlty, and scarculy adverts to
-t
thc hypothèses which regard the origin of thë feeMug.~
Liketh''paiu))!tndpka'iUrc9w))K'h ttftfrow and eontKK'tcd Letug that <;raw]t
j)nretyr<)'duurseh't'9,th''p«init!)U't th''t'!)rt)<Mat<;n)!t))w,t)K')'iot)
[)k:MUMot'syttn!:tthyMetj(;ttHt)rit! betWt'ftitt~'MXt.~whcMtxatte~int't
.sctttiMK'Hts,but ft'cfit)~ or tnotive.'iwhich, f~<Vt-,th<Mntot'!it.t.'taud[Mrty,itM!U'-
Mccohtiui; to thc justm-j ot' our mond row~trtuthm–!tUtb~M<!Mlik'y
f!t-ntUtt<')tts,<))«)'tNtct M)! H'r'))){{t<rtii:).t. t"mtstcadth<:jtu)~m.'utwthctMor:d
This !))t;<tthy )n«y b<; Nn uri~it~d in- 'i'nMM thé ))t)tt:)y;!t:U'-rt~t)~i)tK''))"
stinct, tiit'' our ajXfctitM, or )~ntte)t )'y tiutM;w)tMt,M)theoth<'rhtnh),thoH):)t
as.~x'istioM, tike (fi.~imd curio~ity, )ov~ oft<'nmi'i)<'tu[it)!t'K't<!Xt''ttt,
hf)HOtK-y,t'tc.(t!bhoj))!Mt)tr). t)K'cau!!t.-9off;w),pntmptmg)Mnto~U
)iut ou )!<it)K'r of thcrn hy[<ot)n't'!t is tnt)S"ndob!'eurM<;<f<'rt.–J/.S'MyMn~.
t)~- thmry whi''h dcnrt~ our mond <t)tti. t')l}ttth<rttwmtttM<:t)ytt;<Mrk,
t)n-n<ifruUittti)ity!tta))itt)'ctM). t)Mt,thoHK)<t)'ehyputh''iii.<ut'tf;trt)t-
T))'th';uryotutitityassumt"!sytn' ishoh(:c<;i.<ary!t)f;ttdit'ntinth<;th<;«ry
]Mt)ty,LtttniaimuiMst)N(f'ttrjm)f;m<;nt<uf~"<'ratntnit)',iti')!t))'sa)-yit).
of iMtiotj. ou);))t to h', atid iu a fjit.itt Ktt-L)iMtt(ifit);enutHnt')U)Mtt:<))it)
ttM:t.surMare, dt'rh'cd front our pweptiun cvfrymmdtiy.sttmoft.dm'ationor
otth~<'K«f(~'ott.*<«M)<:e.ot'a(.-tMtS;tminitt~. F")'t))<ia):<'t)fftnroM')))ii)]!-
i.t.notthL'it't«tUK:dM",Lutt))t-irre. ['t)K-M,andth<'ha)~)))<'MofN:tM!ow-
tnutc<-«n'!M)tten~s,.sup)'osi))jB;th<:)nM)i- w:)tnrL"t))<U'tMuo)')x')tt'vo)e))~
r<-)!'tl!'te!)))yM';ri)t-)mi{.!tw;!mdnot «r.'<YHt[<tthy.shou)')))'')itmt){{t)ntt'ite~h'
';tttythMr<;<tttS(:<)U(:n(:t!.upot)nMRch't"<,astmM)))te:tbrt)M))~h,Uhto<h);r)o'"
Lut ai~o Ujmo our r'ihtiottff, nnr Mt'nd-i, th's,itHmy)t'a'tH'!top<rni';iMMeu))-
<)Hr<;()Untry,ourM)<)W.)m:tt;withwhon), d<Mt,iti!i)'~s)iM)'<hau!uostttft)t<:
awntitffttottteth'jon'.K.'itumkr'.Mttd«t)t~tu!-M)m'H.<froK)t))<:n};t'tro:t<).
i X')H'if))t:ncvuk<Kcor.ym)~thy))t;
it.m:ttrt!hc)d)'y)MM').'ir)f)!yttt)Mthy;
whMt.thoH~htt'tt.fojtrmt~Mor.'iocott- )--)t~<;ttttf-fM[t)ythej!)'int:i)t)<:nt'!t.<tc).(-
Ntitnt as cmr tuft': r'-gart) to ourst'h'M, )!! ti')t),t))'fH'Kti''n)tmybc~h)ttcJat~[
jtMt !). nec<'s'-nry tu our owx K'f))-)wi))~. nnrtMrtt)))yt;thcatM)'))-tr:)i)t)t)f;. T)f
Sy)t))mthy,a.W-))!u))Mn:fi<-))'-)~v<).< tn)th"rf!th';h')'")')ft)t<;)ty)mth<i'i,to-
not!tmf;r:t)!i':)ttitt)ettt,bMt!t)'rit«lp)e ~t)t'rwi(ht))'')wt-«byw]tic)tth''
or moth'f to action eithfr b<-in~ )M))" at)'(L-tion)'!fi:<'t)<*rat~),~t'<:t)K'Mfnr<)b-
to~tstMr)<ottrt)mt.djm)~M~'t<t. tn'tt'ed jctt<'))'f!)-<'at)'N!-tic~mom<int,aud
a ttitrrow syntjKtthy x. itt sonK' tnihtt.f, weU dest-n'ing ot' close <md tnittttt~ cx-
M tyrtnMnm a< thJ iietf-tuve of thé tnoiit ntxinatiu)).
s LECTURE V.
ÏHK tcrm or thé tenu ~K'.it, is app!ied to thé M!owing
&<?, ing LKc-r. Y
&
objecta:–to laws proper or properly so call&d, and to laws t.aw9
pro.
hnpMper or itnproperly so caHed to objects which hâve ail thé
the [~r
esseutials of an imperative law or rute, and to objects w!iic~~ .).fy~
p< or pro.
M~ MtJed, tmd
are wantin~ m some of those essentiats, but to which the term
'rm laws
1~
of..Mo~'rot
is un'hdy extended either by reason of «M«/<~ or in thé way Mttn~r'HXitty
}~
Me<(îp/MT. so
Stnctiy speaking, «// improper !aws are to laws
<!MM~oMnvs
proper: and tiM term ~(«', as npptiMd to «ny of them, isi a
M(~/«M't'c«< or~yMW<t'M expression.
For every metapitor sprittgs front an analo~y: and every ery
aualogicat extension ~iven to a term is ft mctHphor or ifj.nu'e-of of
speech. Thé tenn is extended from the objects witieh it properly 'rly
si~nines to objcets of attûther nature to objects not of t]te c'hs.t
~S.t
whercin thé tonner are centaine'), ahhou~h they are aDied tu
the ibt'mer by that more distant re.semblance winch is usuaHy ~y
styled «Mf< But, takin~ thé expressions with thé nteaninKS "KS
whicli custont or usage bas cstnb!i.shed, thcre is a dif!ercnee [tCe
between an onpbytnent of a term analogieaUy and a metaphor. or.
Analo~y is a .species of ~-c~ ;/fMf</«'c. Thé word resemblance
ICC AtMJu~'
At
is hère taken in that !ar~e seuse, iti which a!! subjects which 't.ondtu't~'
"jt.t.ot-a.
hâve any property in common, are said to rest-mbtc. Hut besides .tcsu"ti"
u<.
this more extended aeeepttttion aecottUng to whieh resembJance tf'f)
']':tth)~
is a genus, and anab~y one of thé species inehnted thcrein, therf~t'fdctitftt).
't~
is another and a narrower sense, in which Ksc'mb)anf;e is opposediC-d
to analo~y. Two rcsembHns subjeets are said to ~:« ~Mc in thé
narrower meaniH~ of thé tcnn, witen tttey bot!) betong to sontt'
deterntinate ~euus or species exprcssty or tacit!y referred tu
when they both hâve every pMpet-ty, which belongs to aH tht.-
subjects inctuded in the class. Two rcsembHn~ subject.s aru
said on the contrary to be fnM/t)yoM.s, when M«' of them be!ongs
to some ctass exprcssiy or taeitly referred to, and thé f~/«T does
))<'< when one possesses a!I thé properties conmion to the e-!a-is
and thé other onty some of them. 1 choose, for in.stanc' on
aceount of a particutar conveuience, to range to~ether in one
c!ass a!l nni)na!s having feet. When 1 a)n speaking with refer-
ence to this class, thé foot of a lion and thé fout of a mau woutd
be said to resemMc in the narroweras weH as in the wIJer seuse
of the word. But the foot of a tabte, though it resemblea thc
foot of & lion and of a man in thé more enlarged sense, does
LEcr-Y aotfes
not resemUe theso in the Harï~wet seM(~ but te onty <HMt!oguu9
tothett
ta thêta. For ~«M possest thé who!o of the qM!t!itM$ bo!ong!ng
ntUversaUy
ntuveri: to the ctass, wh!te possesse~ ot~y ft ~rt of thé
samo qua!ities. If 1 were not htcitly refen'ing to a gentus, 1
:night say that all thé three objects resemble, but if thé genus
bc referred to, thc foot of thé lion and tho foot of thé man
fesetubte, thé ibot of thé table is on!y anniogous to them.
ResemMttuce is heuce ttn ambij~uous tenN. Wtten two things
K9etMb!e in thé nat'row sen.'te, that. is, when they both possesg
ail thé pt-operties which belong untvefsaUy to t)te class, thé
common namc (such as ~< m thé instance aboyé given), is
applied to both of them strictly and propcriy. When they are
amUogous,that is when thé one possesses nll, thé other only some
ut' thé properties whieh belong universa!!y to tho class, thé name
dénotes thé one properly, thé other improperty or aualogicany.
It is extremety important to fix our conception witl1 respect
to this atnbiguity, as thé words anatogy and analogous often recur
iu the science of jurispntdence, and by tho taxity with which
t~y are einptoyett involve it itt a searcety ponetraMo mist.
The nature of unwritten law, and thc principles of interprétation
or construction, are among thé most obscure of ail thé questions
whieh arise in jurisprudence. This obscurity springs, as is
usuutly thé case, from nonsense or jargon; which jargon, on
thèse questions, arises front hence, that nien talk profuse!y of
analogy and things analogous, without ascertaining thé precise
Hteaning of thoso terms, or taking pains to empby them with
any précise meaning. Protessor Thibaut of Berlin, in his treatise
on thé interprétation of thé Homan Law, is, as far as 1 know,
thé only writer who has seen this perptexity; and notwith-
standing my warm respect for that learned and discerning jurist,
it seems to me that even he has scarcely solved thé dimcu!ty,
though he has pointed out thé path by which we may arrive at
a solution.
A metaphor is thé transierence of a term from its primitive
signification to subjects to which it is applied not in that, but
in a secondary sense. An analogy real or supposed, is alwayss
thé ground of thé transference; henco every metaphor is an
ana!ogical application of a term, and every analogicat application
of a term is a metapttor. But a metaphorical or figurative
appHcation is scarceiy, in common parlance, synonymous with
an ana]ogica! application. By a metaphoncal or figurative
application, we usuaHy mean one in which thé analogy is faint,
the alliance between thé primitiveand thé derivative signification
fMnotet WtteMth<)<MMtBgyiftcte<tt,s<:t'OHg,aH<le!of)e;whenthe Ï.M Ï.M-t-.Y
& 8Mb)eet9 ta which thé term M deMected lie on thé confmesofF
the ctass pmperly donotctt by it, and bave ma&y of t.he pro-
pcrties connnon to thé class, we hardiy say that thé Matne isi
emp!oyed ngutativety or tnetaphoncat!y.
? In thc tanguage of !o~ie, objects which hâve a!! thc q~aUties
cotnposin{; thé essence of thé class, aiid all thé quatittes whiet)

"l'
at'e thé necessary consequences of those eomposin~ thé essence,
~t~~M~. WhMt an f~ject tto< Mot posfesa <tU thé essence of
thé class, but possesses many of thé qualities which compose
f thé essence, or ntauy of those which neccssarily resuit froin thé
essence, thé application of thé tMUue to that ohject will be said
to be anatogical and not a MGtaphor. TI)e din'ereuce between
tnetaphor aud analog)' b heuco a difterenee of denrée, and not
to bo .settled preeisely by dt'awing a strict Une between them."
Now a broad distinction obtains between laws improperly ty ~m
Laws :M).
so caUed. Sone are e/c.'«/y, others arc !'f~i«~<y analogous to to
~ttwo
as
laws propcr. Tite tenn ~'«' is extended to some hy a decision ~ttitj.t.'i.–
Mtj.)
of thé reasou or understandin~. The tet'm /f<w is extended to ,~l.JLtm's
ctost'fy
others by a tum or caprice of thé fancy.

1
xuatt
ttuatc~oM
In order that 1 may mark this distinction brieny and com- <ohW3 N
~ro))er.
!.<<

1
modiousiy, 1 avait mysetf of tho dif!erencc,established by eustoM
l~etrseen thé rnenr~in~s
or usa~e, between meanings of thé expressions «tM/o'/i'c~
tlre evluressicms
~n
crn!rly~irnl
and /.y!«'«<t'M'ï style Jaws of thc first kind /f!<M t/Mc/y Ntive.
Lawf!
.tncMjthori.
jto
"catorËgur-
"t!~
«KK/c~iM <o /«K's ~)'<'y."j'. 1 say that they are c:t]h:d ~«M by an n
«Ma/oyi'M~ extension of thé tcnn.1
style !aws ni' thé second .1
Mud /<t!M Mt<<e«/ or ~!«'f<<t'< I say that they arc cnlled d
~fnps by a m<< or /<~w<: of ~f'< c7<.
Now htws proper, with such improper laws as are closeh' y Dh'i!
Division of
analogous to thé proper, nre divisible thus. j~,
hwspm-
jwr.f'n~uf
Of laws properly so ea!!cd, some are set by God to his jjjHtchito-
human créatures, others are set by mon to mon. proper
!aw.<

Of thé laws properly so called which are set by mon to men,


J j
some are set by men as politieal snperiors, or by men, as private
~°'
:etoth<-
to th
)"'<'<
nimln
ctos-iy

persons, in pursuance of tegal ri~hts. Others may be described (1

T)M subject
-0
in thé fbitowin~ négative manner They are not set by inen as tS

H)d of these kcture~ W)ts impractie!t)))e but


of atMtogy witt ))e found
)note Mty treate't in say in otder to cnn'y out to MXiC extent thé
a sepamtt- c.ssay
or <.MMMtM prittttJ in thé secom! me, intention Mi~tc-t! by thé note now re-
votutoc,
Mt)f' one of thé MSS. coth-cted bv the thé f<-)T<) to, t hâve v<-ntut~t to te.stoM thé
htte Mtt. Austin after the author's th-ath.~th. a)MVf ja.);e (upon ~M)np)- and ))Mt:t-
!t app<'t)T! from a note to the edittût) of of t)h<')', <-û)nMt<-ndM}{ ût) p. 167) ft'o:n Mr.
tMt, that thé eathor had some intention ion J. S. ~tiU'.< n&tes of thé on)! !ecture.s,
of mserting thé essay in thé bo<ty uf whuM it i.'i tnueh )eiM con'teMMtt thMt thé
the )non! extendet) work which he medi' 'dt' con't-ipotMtmf pas~tge of thé tecturcs as
tattt!. To inseft it entire !n thé body xty fomKrty puMi~hed.–R.C.
170
'<* 2~Mf~
LM-. Y potttteat supenoïs, nor M~ they set by htMt, <? pMvate petsoas,
MtMtMMNttceofle~nght~
Thé taws improperty so caUed wtaeh nru closely ~a!o~ot~
tu thf proper, are Mtcrety opinmns or sentiments hcM or tett by
men in regard to imman conduct. As 1 shaU show hereitfter,
thèse opinions and sentiments are styted ~<n~, because they
(n'e
«H~««. to laws proj'friy su catIcJ tj(;eau!!C t!t<jy resemble taws
IH'opur)y so caUcd itt ~Mo of thch' prup<;t-ties or soMc of their
en~cts or cunsequeuces.
MstnbM. According'ty, I distribute taws proper, w!th such nn].(WpGt'
At
tiuttut'hwi).laws

<
rro~.iU.d~S"' as at-M dosdy analf~ous tu thé propcr, under three capital
ofifuchhu. classes.
t'Mt" The
,.<, first comprimes the !aws (pMpcr)y so caUed) whieti are
tawiituftn! v

set
~by
totut'pru.
tliret-
capital
set by Co~t to jus titunau créatures.
in second cMttprise.'i thé taws (property so caUcd) which are
Thé
set by men as poittieat superiors, or by met), as private persons,
ht put-:
pursufuiee of lo~d rinitts.
cta~ex.–

t
l.Thehw Thetiiird cotuprises law.~ of thé twoibnowin~species: 1.
'pt,

~tby
ofUod.or Thêta'
the 111\1'8 ut
2.1'oMth-<)Bpm'
The !aws (properly so catled) whieh are set by ruen to men, but
not loby men as p~itica! superiors, uor by Men, as prh'ate persous,
ht pursuance of legitt ri~hts: 2. Thé laws which are closely
Jaw.or anatogous tu litws proper, but are taerdy ophuons or sentiments
i'natogc
punitive
S.f'Mtttve
hetd~
hetd or felt by men in regard to human eonduct.t
put !a\v.
mnmHtv, otthes) species into a cotumou c!a.ss, aud 1 mark theui wit!i thé
of thèse
J!0.'1tI \'e
eomuton naine tu which 1 sh:t)I advert hnmcdiately, for thc
coiniuo
followin~ rcason. Xo luw of either species is a direct or circuit-
fullow])
tttora)itv,

",ural ous coiumand of a jnonareh or soverei~t number in thé character


n~ ofpolii
of potiticat snperior. ht other words, no law of either species
isttdi
.t.
is a direct or ch-cuitous eounnand of a monarch or soverei~n
nun)ber to a persMt or persons in !t state of subjection to its
author. Conséquente-,taws of both «peeie.s may be aptiy oppose'!1
to laws of thé second capital c!ass. Fur cvery law of that second
capital class is a direct or circuitous coimnand of a monarch or
soverci~n number in the character of politicat sujterior: that M
to say, a direct or eircuitous contmaud of a monarch or sovereign
number to tt person or personN in a state of subjection to its
author.
Laws cotnprised by thèse thrce capital classes I mark with
the foUowing names.
1 naine !aws of the nrst elass <A< ~«o or ~!M <
G'o~, or thc
-DtM/ie /aK:
or /««'&
For varions reasons which 1 shall produce immcdiately, 1
name laws of thé second ctass ~<M(~'M /~< or ~Ms~n- /<!«.-&
For thé same reasohs, Ï naine laws of thé tbiïd clasit ~<MtM~
MMt~ LMrr.V
V
MM~~y,y~~wwtMiR~y,M-w~wt~<-<~t-!<&&
My reasutM for usiHj.; thé two expressious 'p~t~t'e htw* f tmd
tUtd 1bigMsiih~
'M'M Mturatity,' are tl<e Mlowing.
There are two capital classes of hnman laws. Thé first sfirst~
comprise thé hnvs (properly so called) which me set by mon
i'
~n:)Sa,,j~
p

!uam:c~
political superiors, or by men, <ts prh'Ktu persous, iu pursuam:c (
as
l.
of Icgal n~hts. T!tt; second comprises thé laws (pt'~p~rrand and 1
ihtpmpcr) which belong to thé twu species mfution'id ou ~tthu
thu
pruetfdin~ pa~e.
As nterely distin~uished ft'otn thé second, the fit'st of thosu
capital classes tui~ht Le muned .simpiy /«! As mcrcly distiu-
~uishcd iront thu iir:!t, thé second of those capîtid classes nn~ht
bc Mittncd .shnpty MM'7' l!nt both must Le distinguishcd irom
thé !aw cf f:od and, for thc pm'po.St; uf distin~uMhin~ buth from
thé !:tw of (.'od, Wf mu.st <~ua!ify thé natucs /(!?' and !«<<
Accorttingty, style thé first uf those capital classes '~Mt~'f
!aw:' aud i style the second of t))ûsc capital choses'~(~<~
htoratity.' By thé cmmuon epithet ~~t' dénote that Loth
classas now from humau sources. Dy tliu di~uucth'e tiaines ~"«'
and M«i-H/j' i dénote thé diOercnce between thé huumn sources
from which thé two classes respccti\'e)y etnarmte.
Strietiy speak!n~, every law ])roperty s' eaUed is a ~M<<('t''
Ia\v. For it is ~"< or set by its individual or coHeetive author,
or it cxists by thé ~t'<<&M or institution of its individual or
coMective author.

'ft
But, as opposed to thé law of mture (meanin; th<* !aw of
Cod), ItUtuau law <jf thé first of those capital classes is styled by
writers "n jurisprudence !nw.' This application of thé
expression '~<M<<i't'c law was htauifestly tuade for the purpose
ot' obviating confusion; confusion of human law cf tl)e tirst 'jf
those capital classes with that Divine law which is thé measure
or test of human.
And, in order to obviatc similar confusion, 1 apply thé
expression *~M:'<tM morality to humau law of thf sceond capital
class. For thé Hame t/~)'ff/~y, wt)ea standing unqualined or
alone, may signify thé law set by Cûd, or human law of that
second capital class. If you say that an act or omission vio-
lates M!OM< you speak aml)iguous)y. You tnay rnean that
it violâtes thé law which 1 style */)M!t morality,' or that
ït violâtes thé Uivine law which is the meaisure or test of thé
former.
Again: Thé human laws or ruies whieh 1 style 'pM!c
t72 ?Xc~MWM~O~
Lcer. V mor<t!ity/ 1 mark with that oxpreseioa for thé
mottt!ity/ Mlowing additiotMt!
reason,
Ih~
1h&vestnd titat tit&HMHe MwaMy, when standing MtMtH<tMed
cr aloue, may si~niiy positive moratity, or may signify thé law
cr<ttoMo,
Gott. But thé Hnme M<o:'f<< whcn standing unoutdiBed or
ot'Gott.
of
a!one, i~ perpiexed with a further ambiguity. It may import
indiH'erentIy either of thé two fuUowing sensés.–1. Thé nanto
~MM/f' whcn standing unquaUficd or nlone, may signify positive
rnorality which ia ~ood or worthy ot' approbation, or positive
!nor:tUty as it wou!d bG if it were good or worthy cf approtjation.
lu other worcts, thc untne MM'a~y, wtten standing ut)~ua!ified
or atone, may si~nify positive rnoratity which agrces witit its
nteasut'e or test, or positive MMra!ity oa it w~'uM be if it agreed
with its tneasure or test. Thé name M<M'<< when standing
unquaHHcd or alone, )nay si~uity tho )nunMU laws, whieh 1 style
positive tnorality, as eousidered without regard to their goodness
or badness. For exampte, Sucii laws of thé class as arc pecu!iar
to a ~i\'cu âge, or such laws of thé class as are peculiar to a
~iven nation, we style the M«wf~<y of thnt yiven âge or nation,
whether we think thon good or dcem thcm Lad. Or, in case wo
tnean to inthnate that we approve or disapprove of them, we
natnc thetH thé M«x'f</<7~ of that given a~e or nation, aud we
qualify that name with the epithet ~</o~ or &f!<
Xow, by t!M name positive ttK'ratity,' 1 tnean thé human
laws whieh I mark with that expression, as considered without
regard to their goodness or badttess. Whether tnunan Jaws be
wurthy of praise or blâme, or whether they accord or not with
their measure or test, they are ru!es of ~(M!'<M.'<: morality,' itt thé
sense
"I{;U;~C
which r give to thé expression, if they bolong to either of
thetv
thé two species lastly mentioncd on p. 1 i 0. But, in consé-
quencc of that ambiguity which 1 hâve now attempted to explain,
quence
Icoul
1 could hardiy express my meaning with passable distiuctnes'!
the unquaHned name M<<<t'
t'y thé
E~~M. ~rf
From thé expression ~M~t'~t'e /f!tt' and thé expression ~OM'<
tM.ofthe,
toUmnng
)tf'o'«~t7~, I pass to certain expressions with which they are
exprM. closely
ClOSc!y connected.
sio;M:vix. Thé .<<'«:?<'<' of yM)'M'«~tM<'<' (or, simply and brieny, y~n's-
Tt
Mj'tMt'e/'
~/M~~ ~)'K~t/i is concerned with positive laws, or with laws strictiy
~t'K~e/tcf)
srieu.:e oj so) called, as considored without regard to thcir goodness or
/<tM badnes
badness.
M~t<t~; ï'oaitivo mornlity, as considered without regard to its
ir,
Mt<M«!<~
f~fe* & goodncss or badness, M~/t< be thé subject of a science closely
goodn<
f<<MtMOMM,
M~M~f an:t!og
analogous to jurisprudence. 1 say W)'y/(< be since it is onty
itt oae of itsbmaches (nMnely, thé lawof aations 6t taMt-
~~t
nattontf! t:tw}, that positive !Mor!t!ity, as eonsMerfid withcitt
regard to itit gtx~tttfft of badtK~'ha~ becM trestett by writersM tu
~<
:~lotlt j~Mjl7l(ttt41l~
m 'm4<ft'K'<t«'
E
[
a acientific or systematic ntanue~–For thé science of positive dtive `

moraUty, as considered without regard to its ~oodness or Ladness,


~MS,
current t'r estnb!hhcd lah~Uttge will hfn'dty afford us a uanM. mnM.
The name m<f< ot' ~<:K<'e < M(or«~, wouM deuot(.' it atubigu- hif'H-
ousty thé nattM /<< or j!c<i<;<' <
mM'<t/.<, bcins contnt'joly
applied (as 1 shati show immcdmtety) to a 'tepartment of ethics
or d<j0!itology. But, siuce thé scicucu of jurisprudence is uot
unfrcqucntly styled thé science of jfj'~<<'<t'<' !aw,' thé science iu
question might be styled anato~ical!y 'thé science of ~/Mt7«'t
ntoratity.' Thé departtneut uf thé science iu question whieh
relates to international law, JMs actually Leeu stykd by ~'on
~fartens, a récent writer of cetebrity, '~<M!t'M oder ~M«-<<<«<!
Votken-echt:' that is to say, '<n-t international law,' or
'~r«c<<cf</ interuationid law.' Had lit- nained t)iat duparttneot
of thé science '~MM'/M-c international MM'«/<7y/ thé naine would
have hit its import with perfcct precision.
~X(; ~<'fMM o/' c<AM-~ (or, in thé langua~e of Mr. Denthatu,
//n' SM'cMce o/' ~<'M:<o/o') may be defiued in the fbHowiug
tnanner.–It affects to determine thé test of positive law and
tuorality, or it afteets to detennine thé principles whereot they
must bu faahioned in order that they tnay merit approbation.
Inotherword.s.itaffeets to expound thon as theyshou)d be;
or it aft'ects to expouud theru M they ought to be or it fd!'eet.s
to expound them as they would be if they were ~ood or worthy
of praisc or it affects to expound thejM as they wouid be if
they confonned to an assutued measure.
The science of ethies (or, simply and briefiy, ethics) consista
of two departments one reiating speciaHy to positive luw, thé
otiter relath)~ .speeially to positive tuoraHty. Thé dep:tK)uettt
w!nch relates specially to positive law, is connnonty styled
.«'«MM o/' /<«<«/M, or, shnpty and bricth', /<M~<<M. Thé
department which relates speciaUy to positive Mûra!ity, is
commonly styled tlce ~c!«c<; of M</f'«~, or, shitply aud briefh',)y,
M<0)V<
fore~oing attempt to dt.'nne thc science of ethics natur-
Th~ tt'-M<:Mtit)f!of
ally leads me to ofter thé foHowing exptanatory remark.
When we say that a innnan law i.-i ~ood ur bad, or is worthyt\t-!tt.p)M.)
of praire or Marne, or is what it s)muld be or what it shouid
i.)
r

'"hM-. j
Jto~hntMn

not be, or is what it ought to be or what it ought not tn be, we


mean (uniess we inthnate otn- tnere liking or aversion) this
t~
'74 7%w~c<*o;
[~LKtï.y tttn.t~nlv. thnt
v MMMttty, thot thn Kgt'uaa with ut
thé Ittw tMrH'aa dittbts fNMn
ut' t)i(thfs
we tacMy refer it as to measttre (M'test.
from & aoBtettMng to
which
1
Fut' cxMuptû, Accordin~ to cither of thu hypothcsmwhich 1
stated
9 in preccdinfî lectures, a human taw is ~:oo<! or bad us it
agrées or 'tocs not H~rce with tho !aw of Ood that is tu say,
with the !aw of Cod as indicated by thé principh* of utility, or
with thé !aw ot' Uod as mdictttcd by thc momt sensu. To tho
mthurcnt ot' thf thuory of utHity, a humim hw is gùod if it ho
~f))fm!)y usftut, fmd & hmnMt htw t-i btt't it' it~ bo ~enM'itUy
pcrnicious. For, in /<M npiuion, it is eonsounut of uot witit thé
ht\v of Ood, iuastnueh as it is cousouatit or not with thé
principe of ~emjnd utitity. To thc iuthcrent of tho hypotheais
of a nioritt smiso, a hnmim tttw is if hc likes it he knows
uot why, and a humnn !(W is Lad it' he hâtes it he kuows not
whurfi'ore. For, in /t<< opinion, that his iucxp!icab!e fcclin~ of
tikin~ or aversiou show.s that thé htuuan law ptuases or oH<mds
the Deity.
To the athcist, a human taw is ~ood it' it bo gcneraHy useful,
and a human htw it bad if it be ~eHeraUy pemicious. For the
principle of gênerai utility would serve as a measure or test,
atthough it were not au index to an utterior Yneasuro or test.
Dut if he eati thé !aw a good oue without betieving it useful, or
if he call the taw a bad one without bdicvin~ it pernicious, tho
atheist simply intitnates his tuerG Hkin~ or aversion. For,
utdeM it Le thou~ht an index to the law set by thé Dcity, au
inexplicable t'f'eUng of approbation or disapprobation can hartUy
be considcnid a mea-sure or test. And, in thé opinion of thc
atheist, there i.-i no htw of God whieh his iuexpiicablu feeling
ean point at.
To the betiever in a suppoMd révélation, a human law is
good or bad as it agrées with or differs from the terms wiferein
the révélation is expressed.
ïn short, thé ~oodness or badness of a hunmn law is a
phrase of rotative and varyin~ import. A law whieh is ~ood
to one man is bad tu anothcr, in case they tacitty refer it to
(Hftercnt and adverse tests.
Thé Divine !aws may bu styicd ~ood, in ttic sense with
"whi<
MMnin~of
<j'< ~M a)'-
r
which thé atheist may app!y the epithet to hnman. We !nay
style thetn ~ood, or worthy of pmisc, inasmuch as they agrée
j.!i<i<)tothesty!<
fawofG~.
with utihty considcrcd a-} an nttimatu t~st. And this is the
oniy meaning with which we can app)y thé epithet to thé lawa
«f (tod. Uniess we refer thetn tu utility considered us an
uttintate test, we hâve no test by which we can try thcm. To
I. fitrispnmence (tetermmea.

i say
ï
say that they are good hecause they are set Uy tîw JX*ity, h to
that they are good as measured or triwl by themselves,
But tu say tliis is to talk absurdly for every object whieh is
| weasured, or every object whieh is brought to u test, is cuiupural
3 with a given object other tlmn itself. If the laws set by the
I Deity were not genemlly usefnl, or if they diil uot promote the
§ gênerai happiuess of his créatures, or if their «reat Author were
| not wise ami benuvoleut, they wotikl uot be «uotl, or worthy of
l praise, but were ttevilish and woFtliy of Mwmtiuit.
liefore 1 concluJe the présent ili^ressiou, 1 must subinit
,j this further reuinrk to the attention of the reader.
I 1 have iiitûnated iu the course of this digression, that the
j phrase tuw of nature, or the phrase natnml law, often signifies
| the law of God.
| iVutural lato ns thus understood, aud the uatund luv whieh
.1 îuentioiied in iny fourth lecture, are disparate expressions. The
=
mUural leur which I there mentioned, is a portion of positive law
and positive uorality. It eonsists of the huuuui rules, légal aud
l moral, whieh have obtained at ail tintes and Ol.ktitilled at »U places,
Accordiny to the compouud hypothesis whieh I mentioned
;i in iny fourth lecture, thèse huinan rules, légal aud niorul, hâve
' beeu fashioned on the law of Cîotl as indicuted by tht -moral
i sensé. Or, tidopting the language of the classical lionian jurists,
thèse huiuau rules, lujçal aud moral, hâve been fushiuued ou the
Divine law as ktiowii by -nul and ivmoit.
But, besides the humau rules which hâve obtaiued with all
mankind, there are human rules, le-zal and moral, which have
been limited to peculiar times, or limited to peculiar places.
Xow, according to the compouml hypothesis which 1 nien-
tioned in iny fourth lecture, these last hâve not been fushioncd

Being on
on the luw of God, or liave been fashioned on the law of God as
conjeeturod by the lijtht of utility.
the law of God as kuown by iin infallible
guide, huiuau rules of the lirst class are stylei.l th? litir of nulurv
For they are not of humau position purely <>r siniply, but arc
laws of God or Nature clothed with humau sanctions. As
obtaining at all times and obtaining at all places, they are styled
by the clnssicnl ^misis jus gntti uni, or jmt oMiiium yrntiuM,
But human rnles of the second cla.ss are stylell po&ttùr.
For, not Vieinji fashioned on thé law of God, or beiii» fashioned
on the law of God as merely conjectun;d by utility, they, cer-
taiuly or probably, are of purely liunian position. They are not
lftws of God or Nature clotheU with human sauclions.
i"}6 Tfie Province of
Lect. 17
LECF. V
" As T1 aiabjaA ia mmyv fatu'fclt
stated in fourth lecture, «ntl ahall
if'iïf.nrH mtd. utmw completely.
glmll «how
hereaitwv the distinction of hnraan raies into naturel and positive
herea:
Uivûlvus tue cojupound hypothesis which 1 tnoutioned in that
iuvoli
diseourse. I6
discoi
The cou.
The Positive laws, tho nppropriato mntter of jurisprudence, are
1'
1*
cou.
neetiou
neetioii
theprewntof of t
rolated in tho- way of rescmblancc, or by a close or reinote
riAat.
lClatt'
kfturo
witt.thc they
1..
analogy, to the followingobjects. 1. lu the way of resemblauee,
(th« liith) analo^
ÏSh*. t le~Vnare relatecl to thé laws of God. 2. In tho way of resemblance,
theye
ûrst, they (are related to those ruh» of positive moralhy which are
secoud,
third. laws
1
iaWS properly
] so called. 'A. By a close or strong analogy, they
sixtli.
i'ijurtli.atut m'y
sixtl~.
fclated to
arc lie those rules of positive morality whiclt are nierely
opinic or .sentiments held ur felt by men in regard to human
opinions
couduct. 4. By a remate or slender analogy, they are related
coudu
laws merely niutaphorieal, or laws sueruly figurative.
to lav
To distinguish positive laws from the objects now enume-
rated, is the purpose of the prcseut attempt to détermine thé
province oi" jurisprudence.
In purstiance of the purpose tu whieh 1 have now adverted,
1 stated, iu tny first lecture, the essentials of a lato or ruk (tfikei)
with the largest signification which can be given to the tenu
properlg).
),
In my second, third, and fourth lectures, I stated the marks
or characters by which the laws of God are distinguished front
other laws. And, stating thoso marks or charactura, I explained
the nature of the index to his unreveakd kws, or 1 explained and
exainined the hypothèses which regard the nature of that index.
1 made this explanation at a length which may seem dispropor-
tionate, but which I have dccmed necessary because thèse laws,
and the index by which they are known, are the standard or
mcasure to whieh all other laws should conforni, and the standard
measure or test by which they should be tried.
But before I eau complète the jmrpose to which 1 Imvo
adverted above, I must examine or discuss especially the follow-
ing principal topics (and must touoli upon other topics of
secondary or subonlinate importance).– 1. I must examine thé
marks or characters by witicit positive laws are distinguished
from other laws. 2. 1 must examine the distinguishing marks
19 The abovft (li^ri-ssion \vns in Imth it, onc of tltc iniiior {joints of ilassilî-
e,liliollS
tlic \,reviolls
the previous <;otn|>ri.snlwLïcLa
c-ilitious cOlIIl'ri~C1.1 mtiollccontaiucd
lit a cation ill
ontllinc,liu the represent
fint Lecture,
I.l:ctllre.1I
<li.«|uUiti»ti in tliu lurin of a note, whieh havu cmU-avoiir(.'>l to represent tin- Html
n[ii«nrs to lmvc bcen [«niiot bv tluê iut<'iitinu of thé ntitimr. Tlie plact- ut
nuthoraftfr somii [jortioii of thé original tin- intrusion is niarkeil by thé Uhc of
cilitiou was in the prrsa. iîy insc-rtiiig tlie wortl «ligivs sion in tho niargiuiil
iu the text tliu (p-catur jart of this note, note ut the coiuiiiencetiiulit of thu in-
«fier moilifying,in ndonlaiiw with tin: scrteJ jiassage (j;. 171 (mit). 1!. C.
.iuj;j;t.stious'eoiitain«>l in auotlier lart of
t
1
of those positive moral tûtes whleh ave law» pvopeily s<> ealled;
3, I imwt examine tho distinguishîng marks of those positive
| moral mie» whioh are styled /o-w$ or rule* by an aualogieal
] extension of the term. 4. 1 must examine tin; distinguisMn<£
1 marks of laws merely metaphorient, or laws merely figurative.
In order to an explanation of the marks which distingnîsh
positive laws, I must nnalyze the expression tovenignh/, tho
corrélative expression $uhjedion, and the inseparably connectud
? expression indépendantpolitmtl imiely. Vov th« esseutinl differ-
i once of a positive law (or the diflerence that severs it from a
• law which is not a positive law) may be stated thus. E'very
| positive lnw, or every law simply and strictly so called, is sut

[
that person or body is or
by a sovereign person, or a sovereign body of persons, to a
member or niembers of the independent ]>olitical society wherein
suprême. Or (cliauging thé
expression) it is set by a monarch, or sovereign number, tu n
person or persons in a state of subjection to its author.
But my analysis of those expressions occupies so large a
space, that, in case 1 placed it in the lecture which 1 nm now
delivering, tlie lecture which I am now delivering would run tu
insufierable length.
The purpose mentioned above will, therefore, be complcted
in the following order.
Excluding from my présent discourse niy analysis of tliose
expressions, 1 shall complete; in my présent discourse, the
purpose mentioned above, so for as 1 can complète it consistently
with that exclusion. In my present discourse, 1 shall examine
or discuss especially the folluwing principal topies namely, tlie
distinguishing marks of those positive moral rules which are
laws properly so ealled the distinguishingmarks of those {wsi-
tive moml rules which are styled Imcs or riths by an anulogical
extension of the tenu the distinguishing marks of the laws
which are styled latcs by n metaphor.
1 shall complete, in my sixth lecture,the purpose mentioned
above, by cxplaining the marks or characters which distinguish
positive laws, or laws strictly so ealled an explanation involving
au antilysis of tlie capital expression sovtrcyintg, the corrélative
expression subjuction, and the inseparably connected expression
ÎMlependctit political society.

Having shown the connection of my présent discourse with


foregoing and followiug lectures, 1 proceed to examine or dùcuss
its appropriate topies or subjects.
t. 178
'7o TAéProvmeecf
t.KCT.V In my firat lecture, 1 éndéâvoitted to vesolve a law '(tn'toir
Tlie wi
with the largest signification whieh can be giveu to tho tenu
ti<lls or Il praperly)
jB)'! into the ueeessary or essential démonte of which it is
hwpt'o- composed.
perly su C0;
tntik-ti, to- Now those essentiale of a law proper, together with certain
tain
ttether
withcL-r-

'll1"lIce.~
which
H
conséquences which
CC those essentials import, may be stated brielly
in the following manner. 1. Laws properly so called are a
species
Spi of commands. But, being a eommand, every law properly
thmf ei. 50 so called iiows from a delenaiuate source, or emanates ùoiu a
determinate author. In other words, the author from whom it
selltlal8
import. (Ici
proceeds
PP is a déterminait rational being, or a determinale body
or aggregate of rational beings. For whenever a command is
expressed or intimated, one party signifies a wish that another
shall do or forbear: and the latter is obnoxious to an evil which
the former intends to infliet in case thé wish be disregarded.
But every signification of a wish made by a single individual, or
made by a body of individuals as a body or collective wkole,
supposes that the individual or body is certain or determinate.
And every intention, asparpose held by a single iudividual, or held
by a body of individuals as a body or collective wlwte, involves
thé same supposition. 2. Every sanction properly so called
is an eventual evil annexed to a command. Any eventual evil
may operate as a motive to conduct but, unless the conduct be
commanded and the ovil be annexed to the command purposely
to enforce obedience, the evil is' not a sanction in the proper
acceptation of the term. 3. Every duty properly so called
supposes a command by which it is created. For every sanction
properly so called is an eventual evil annexed to a command.
And duty properly so called is obnoxiousness to evils of the
kind.
The laws Xow it follows from thèse premises, that thé laws of God,
ofGocl,nml and positive laws,
positive are laws proper, or laws properly so called.
lan-s, are The laws of God are laws proper, inasmuch as they are
express or tacit, and therefore omanate front a certain
laws jnrj- commaïuh
pcrlv so
callcU.. source.
Positive laws, or laws strictly so called, are established
directly or irnmediatclyby authors of threo kinds :-by monnrclis,
or sovereign bodies, as supreme political superiors
by men in a
state of subjection, as subordinato political superiors by subjects,
positive
as private persons, in pursuance of légal rights. But overy
law, or every law strictly so called, is a direct or circuitous com-
tnand of a monarch or sovereign number in the character of
political superior that is to say, a direct or circuitous command
of a monarch or sovereign number to a .jiërson. oi persona in a
state or siibjecïian to its autîior. And being a wmnanU (and
théreforé flowing from a tkUrminntt source), every positive law
is a law proper, or a law properly so called.
Besicles the huinau laws which 1 style positive law, tkere '0 Th'H.
1
are human laws wlncji I style positive morality, raies ïri<:
of positive *| ebar-
morality, or positive moral rules.
The generic character of laws of the class may be stated ,,1 moral
J.'
!U mies.
briefly in the following négative mariner. Xo law betouging to ;o
the class is a direct or circuitous command of a monarch or n-
sovereign number in the charaeter of political superior. Inn
other words, no law belonging to the class is n direct or circuitous 13
command of a monarch or sovereign number to a person or per-
Cl'
sons in a state of subjection to its author.
But of positive moral rules, some are laws proper, or laws \V3 Ofjiositivi'
o
properly so called others are laws improper, or laws improperly ~lY
.1
Mtom)
ruies,
lUonll
so called. Some have all the essontials of an imperalke law Or or "lie-
»< are
rule others are deficient in sorne of those essentials, and are !j'
ue per, lut
styled laws, or rules by an aualogical extension af the term. «"
The positive moral rules which are laws properly so called, j? iui-
laws
'Uj ]iropcr.
are distinguished from other laws by the union of two marks.The ])osi- ï
1. They are imperative laws or rules set by men to men. 2. 2. tiveJj moral
They are not set by nien as political superiors, nor are they set >et whieh
w are
by men as private persons, in pursuance of légal rights.
Inasmuch as they bear the latter of thèse two marks, they ey called,
« arc
are not commands of sovereigns in thé character of political °
winMUiuh.
suporiors. Consequently, they are not positive laws they are
not clothed with légal sanctions, nor do they oblige legally the
persons to whom they are set. liut heing commands (and there-
fore being established by rfe/«-»it««<«individualsor bodies), they
are laws properly so called they are armed with sanctions, and
impose duties, in the proper acceptation of the terms.
It will appear from the following distinctions, that positive
moi-al rules which are laws properly so called may bc reduced
to three kinds.
Of positive moral rules which are laws properly so called,
some arc established by men who are not subjects, or are not in
a state of subjection Aleaning by subjects,' or by men in a
state of subjection,' men in a state of subjection to a monarch
or suvereign number. Of positive moral rules which arc laws
properly so called, and are not established by men in a state of
subjection, some are establiîhed by men living in thé négative
state whieh is styled a state uf nature or a state of anarchy
t8o Th Province of
c ou
thiitt»wtoto myt
I,k»-t.v thiitt
f.K»;T. V Ijj'lue»
s»y,l>y lue»who ait}»«rf
wlioare »«rf the
iu iu thestate whi is styled
statewhieh
a stnte of govemment,or nre not mcmboro, sovereig» or subject,
ai iiiiy political soowty.– Of positive montl mie» whieh ftre lttw»
properly su ealled, ami are not established by men iu (i statu of
subjoction, others aro established by sovereigu individuals or
bodies, but nre not established by sovereigns iu thé clmraeter of
political stiperiors. Or a punitive moral rule of tins kiin.l may
be described iu the following nianner It is set by tt inonareli
or sovereign nwmber, birt not ta a person or persans in a stnte
of subjeetiou tu its uuthur.
Of laws properly so cnlled which nre set by subjects, some
aro set by subjects as subordinate political superiors. Mut of
laws properly so called which arc set by subjects, otheis are sut
by subjects as privatc persons Ifeauiug by privato persuus,'
subjects not in thé class of subontimite political superiors, or
subordinate politieal superiors uot considcred as aueli. Laws
set by subjects as subordinate political superiors, are positive
laws they are clothed with légal sanctions, aud impose légal
duties. They are set by soverei™ns or states in the charaeter of
political superiors,althotigh they arc set by sovereigns circuitously
or remotely. Although they are nmdu directly by subject or
suboi-dinate authore, they are ruade tlirough légal rights granted
by sovereignsor states, and lield by those subject authors as mère
trustées for thu grauters. Of laws set by subjects its privatu
persons, some are not established by sovereigu or suprême
authority. And thèse axa rules of positive inonility they are
not clothed with légal sanctions, nor do they oblige legally thé
parties to whom they are set. lîut of laws set by subjects as
private persons, others are set or established iu pursuauce of
logal rights rosiding iu the subject authors. And thèse are
positive laws or laws strictly so called. Althongh they are
ma(te directly by subject authors, they are madu in pursuance
of rights granted or couferred by sovereigns in thé cliomutur of
political superiors they legally oblige thé parties to whom they
are set, or nre clothed with légal sanctions. They are coiiimands
of sovereigns as political stiperiors, although they are set by
sovereigns circuitously or remotely.'1'

I.aws set (f) A law set by a su1>ject as a privato l.iw us viouvil fiom nue aspect, nml a
byineu, ass p«nou, but in iiiir.-unnc; of a lcgiil riglit rulc of positive nwtality as viewi-J from
priviiti; reHiiHi)^ iu thé ijiilijirt iiutlior, is i:itlu-r ;i aiiutlini'.
periàotis. îui iwisitivi: Imv i«ruly or «iiiiiily, or is <.otn- The in-rson who nrakvs thé Uw iit
pnr.suaiKv [wiiinle<l of « positive Inw ami a rule of y>iir.suan.:f of the lugal ri^ht, u cithi-r
of l'il jnMtivc iiioiafity. Or (iliruigiity tliu
c.v('rc-ssicn) it is eitlier a [iositir« l>uv
[.jully bon ml tu niake thé litn-, or lie ii
riglus. not. lu tha lirst ca.w, tlie law is a posi-
(iur«ly or siwply, or it M » positive tive Iaw puroly or siiuply. In thé «woinl
lt appeau» frem. th& ioregoin» distinction v tlmt positive I-kc
moral niJes whieh are laws pwperiy go called are of thwe fcinds.
1. Thèse whioU ave «et by we« livin» i» » st«te of iroture.
2. Those whieh are set by sovereigns, Lut not by soverei«iis as
political supeiiors. 3. Those which arc set by subjcets as private
persous, and are not set by the subject nuthors iu purstuuice of
légal rights.
To cite an example of rules of the first kind were superflwms
| labour. A man living in a state of nature may impose an im-
perative law thougli, since the mon « in a state of nature, he
cannot impose the law in thé chnmcter of sovereign, and carmot
î impose the law in pursuance of a légal right. And the law
being iutperative (and therefore procecding from n ddvnu imite
-_u__J.1L
case,
law and a positive moral rule.
§L*
.lt *»of a positive
the -1lnw is çompounded m
vuitunily 4 •
by tho sovereign, it mis
m sc-t or
e.vtabli^heil by the suve-feisu lit tlie
Fur exuiiiple, A j^uartiiuu may liavc a l'luasuru of tue subject nuthor. The
right over lus jmj»il or ward, winch lie master is not the instrumentof the aove-
is lefially bouud to excnUe, l'or the reign or Mate, but the sovureign or statu
Ijeiiefit or the pupil or ward, in il given i» rather the Jnatrunu-ut of the mautcr.
or spécifiée! tuaiiner. In othe-r wonlx, n Uefore I dismiss the subjwt of the
guarumu may U- clotln.il with a right, présent uote, 1 uiust uiakc two iciimrks.
ovur liis pujiil or ward, iu trust to exercise 1. Of laws made by tueu as private
thé salin-, fur thé tencHt ot° tlie pu]iil or pelsons, noms arofrei|ueutlystyleitMaw.s
\rdu\, in a given or si*ificil nmiuier. ruilviioiiiit.' Or it is freijueutly said of

are
Xow if, iu |)iirsmmee of lii.s right, aud ««me of thosc law.s, that they lire inacle
ngrecably tu bis duty or timt, he «ts a tlirough un acVorp/u'a ifsiilijifi i» the
luw or raie to the pupil or wani, tlit fou- subject authors. Xow laws aulunumie,
is tt positive luw pua-ly or simjily. It is or law.s made by sub-

tu
properly a law which thé state .-i-u tu jecta, iu jirivate pmons, iu ]iur.stiaiice
thv wanl through its ininistc-r or in- of le«al njjhts tlint is
strument the guurdian. It is not maile suance of li-gul rifîhts whieh they are
hy the guanlim of hit own spontniicuiis free to exercise or mit, or iu )ntrsliunc<;
in pur-

niovciiieiit,or is made in purstiaurc of a of légal rights which are uot saddled


ihity which the state lias iiuposc-J upon with trusts. A law of tlit kiud is «trlcd
htm. The position of thé ^tiardiau is < (iiitmionili:, bc-causu it is niade \>y its
clom-ly aualopous to thé position of sul,- author of his own spontiiiieous ilispusi-
cmliiiate political supenors; who liuhl tion, or llot in pursuance of n duty ini-
their dfk'K'iteil poweis of ilir.'i.t or jntii- Jiosed upon him by the state.
cinl législation as m«rc trustées for the It is clear, however, that the terni
xonn-i^n gr.iuttrs. aulonuinic is uot exdusivtly applicible
A^iiin thv. niTistcr lias lc^al ryhts, to laws of the kiud iu <juestioti. The
over or a^inst lii.1 slave, which are cou- term will ajijily to iv<-iy luw whieh is
fvrivil liy the stute upon the iimster for1 not made by its author in pur3iiance of
hi.i own bencfit. Ami, since they «Te « légal duty. It will sipply, for iii.stance,
conferreJ u|K>n him for hi» own Iwiicfit, to tvery law which i.i imide innncili.itely
lie is not Ii^'ully linuixt tu exercise or u.se or diri'i'tly by a inonnrrh or sovercigii
the-tn. Xow il, in pursuaiice of tliese iiudiIht: indfpendviiw of h-pd iluty
rights, lie sets n lnw to lii>- slave, the luw being of the «•ssciiev of sovereiguty.
U compounded of a positive law and a •i Ijiws vhii'h are positive law as
positive moral iule. licin^ niade l<y viewed from "lie a-spcit, but whii.li are
«ovcreiKn authority, and clutlivil hy the1 i insitivt murality as vit-wed from another,
sovereign with .sam-tiun», the law imi.lo I place simply «r absnlutily iu the first
I)V the iimster is proiicrly n positive law, of thosc capital classes. If, atletting
tint, silice it i* limita Ijy the mu.stcr of ex(|i:i.ito précision, I placeil theiii iu
hi.by
leis own S\'OllttllleOIlSlllovemollt,
sjjoiituneotismovenient, ofor u not <-ai:h of ilniso clnssc-s, I couM hardly
i.s letiml
nade by tue master in ptmustncu of a Icgal iiidiiate the bouudary by whieh those
iluty, it U properly n rule of positive mu- classes nn: sc-vered willtolit resortin^' to
rality, as well as a'p>sitive luw. ïliuu^h expressions of répulsive complexity and
the law set by thé master is sut tir- length.
:!»* The Province of
Lkct. v
.Uct. somïco) js
V sottiw)
sOWÏ
sove
js a, la-w pioperly
a law s« ealletb
pïoperly s« ealledf thoush,
though, tW
sovereign author ptnxiurate or remote, it
iW wiuit
wnnt of a
is not « positive law
but a rule o£ positive momlity.
An irnperntive law set by a sovereign to a sovereign, or by
one suprême government to another suprême governwtiut, is au
example
exar of rules of the second kind. Since no supremu govern-
ment is in a state of suhjection to auother, an imperative law
set by a soveruign to a sovereign is not set hy its author in the
ehantcter of political snperior. Nor is it set by its author in
pursuance of a légal right for every légal right is conferred by a
suprême government, and is conferred on a person or persons in
a state of subjection to tho granter. Consequently, an imperntive
law set by a sovereign to a sovereign is not a positive law or a
law strictly so called. But being imperative (and therefore pro-
ceeding from a déterminait source), it amounts to a law in the
proper signification of the terni, although it is purely or simply
a rule of positive morality.
If they be set by subjects as private persons, and be not
set by their authors in purmtanee of legal rights, the laws follow-
iug are examples of raies of the third kind namely, imperative
laws set by parents to children imperntive laws set by masters
to servants; imperative laws set by lenders to borrowers;
iraperative laws set by patrons to parasites. Being imperathv
(and therefore proceeding from dekrminale sources) the laws
foregoing are laws properly so called: though, if they be set by
subjects as private persons, and be not set by their authors in
pursuance of légal rights, they are not positive laws but rules of
positive morality. 1
Again A club or society of men, signifying its collective
pleasure by a vote of its assembled members, passes or makes a
law to be kept by its members severnlly under pain of exclusion
from its meetings. Now if it be made by subjects as private
persons, and be not made by its authors in pursuance of a légal
right, the law voted and passed by the assembled members of "

the club is a further example of rules of the third kind. If it


be made by subjects as private persons, and be not made by its L

authors in pursuance of a legal right, it is not a positive law or


a law strictly so called. But being an imperalive law (and n
the body by which it is set being therefore ilcttrminale), it may
be styled a law or rule with absolute précision or propriety,
although
aith< it is purely or simply a rule of positive morality.
The posi- The positive moral rules which are laws improperly so
tive moral1 called,
Cftijc are laws set or imposai hy gcntral opinion that is to say,
lzy
l>y tho genernl:.opinitin
the général opinion of;aüy n'y class
of !any elass or ««y saciety of persons.
any socrety persons.
For example, Some are set or imposed by tho genevat opinion of'f r raie»
persons. who are. members. of a profession or calling others, bya «
which nre
that of persons who inliabit a town or province others, by thutt jiroperlj'so
v
independent political society otliers, by that of,£ tftlk-d, aru
of a nation or jj

a larger soeiety formed of various nations.


A few species of thé laws whieh are set by general opinionjj«pinion. tjmeml

have gotten appropriate names. For example, There are lawsS


or rule» imposed upon gentlemen by upinions ouïrent awoujpt t
gentlemen. And these are usually styled the rules of honuur, orr
the laws or law of Iwnour.– There are laws or rules imposed d ]

upon people of fashion by opinions current in the fashionablee


world. And thèse are usually styled the law set by fashion.
There are laws which regard the conduct of independent politicalii
societies in their various relations to one another Or, rather,r
there are laws which regard the conduet of sovereigns or supreme
gov ernments in their various relations to one another. And
laws or mies of this species, which are imposed upon nations or
sovereigns by opinions current amongst nations, are usually styled
the law of nations or international law.
Now a law set or imposed by gênerai opinion is a law im- m- jiA law set
properly so called. It is styled a law or rule by au analogical ^"1 by{
général
extension of thé term. When we speak of a law set by general 1^1 opinion,
« is
opinion, we dénote, by that expression, thé following fact opiuiuH ( or
of
Some intermediate body or vncertain aggregate persons regards
J<5 S'iitimaU
J
of an indc-
kind of conduet with a sentiment of aversion or liking n Ot
Or terminale
a <
of
(changing the expression) that indeterminate body opines an-m, liody
J

favourably or favourably of a given kind of conduct. n


1is
SC- rcjtarJ
conse- i to a
that sentiment, or in conséquence of that opinion, it kind
r of
quenee of conduct.
likely that thoy or some of them will be displeased with a party
rty
who shall pursue or not pursue conduet of that kind. And, in
conséquence of that displeasure, it is likely that some party
(«/<«<

party being undetermined) will visit thé party provoking it with


some evil or another.
The body by whose opinion the law is said to be set, does
not command, expressly or tacitly, that conduct of the given
kind shall be forborne or pursued. For, since it is not a body
precisely determined or certain, it cannot, «« « hody, express or
intimate a wish. As a boiltf, it cannot signifi/ a wish by oral
or written words, or by positive or négative déportaient. Thu
so called law or ride which its opinion is said to impose, is
merely thé sentiment which it feels, or is merely the opinion
which it holds, in regard to a kind of conduct.
184
*r TlièPtvmicè ôf`
LEt7. V A detenuinato membcr of the body, who opines or feeïs
witli tfche bwly> nroy tlonbtless be moved or impelkti, by that
very opinion
very 0 or sentiment, tu wmtuand tbat conduct of the kind
slmll 1be forborno or pursued. But the commaml expressed or
sham J

rotiniateri by that determinate party is Hot a law or rule imposed <


by gênerai opinion. It is a law properly so ealktl, set by n
ik'tcnniuato autlior. For example, The so callud Iaw of nations
consists of opinions or sentiments eurrent amoiig nations
genemlly. It therefore i» not law properly so called. But o»e
suprême government may doubtless eommand another to forbear
frorn a kind of conduct which the law of nations condemns.
And, though it is fashioned on law which is law improperly so
called, this eommand is a law in the proper signification of the
terni. Speaking precisely, the eommand is a rule of positive S
morality set by a deterniinate author. For, as no suprême
government is in a state of subjection to another, the govern- 1

ment coiunuuuling does not eommand in its character of political


superior. If the government receiving tlie commaml were in a
state of subjection ta the other, the comnmnd, though fashioned
on the law of nations, would amount to a positive law.
The foregoing description of a Iaw set by gênerai opinion
importa the following conséquences that the party who will
enforce it against any future transgressor is never determinate
and assignable. The party who actually enforces it against an ><
actual trtmsgressor is, of necessity, certain. In other words, if
an actual transgresser bc harmed in consequence of the breach ;1!
l~
of the law, and in conséquence of that displeasure which the a
breach of the law has provoked, ho receives tlie liann from a
party, who, of necessity, is certain. But thnt certain party is
not the executor of a eommand proceeding from the uncertain
body. He lias not been authorised by that uncertain body to
enforce that so called law which its opiniou is said to establish.
He is not in the position of a minister of justice appointed by
the sovereign or state to execute commands which it issues, n
He harms the actual offeuder against thé so called law or (to
speak in analogical languuge) he applies the sanction annexed (
to it, of his own spontaneous niovenient. Conseqiiently, though
a party who actually enforces it is, of necessity, certain, tlw •

party who will enforce it against any future ofiender is never


pm
iletemiinate and assignable.
dct
Ahrit-f It follows from the foregoing reasons, that a so called Iaw
ttott-tnent
ul tla"
set by gênerai opinion is not a law in the proper signification
3et !j
atmiogy 'jf
of tlie tenn. It also follows from the same reasons, that it is 1
aofc aviflHtl with 10. JjKrf'V.
a sanction;. tutti dues not impose a. duty, iu the
proper acceptation of. tbe expressions. For a sanction properfy ty y,t~twwM it
so called i» an evii annexée! ta a conmiaiid. Àad duty praperly
f1 Ia
IatS' y!'uyel"
illitt U Î:1.\1'
so called is an obnoxiousness to evils of the kind. m
liut a so called law set by gênerai opinion is closely 1,>Ie..1.1,)'
ana- J"gellenl
I"
logous tu a law iu the proper signification of the term. Autl, (.1, o;
olittioli.
ljy conséquence, thu su culled sanction with whieh the former er
is arnied, and the so called dutv which the former imposes, are re
closely «nalogon» to a sanction and a duty ill thé proper accepta-
tion of the expressions
The analogy between a law in the proper signification of
the terni and a so called law set by gênerai opinion, may Le
stated briefly in the following manner. 1. In the case of a
law properly so ealled, the determinate individual or body by
whom tlie law is established wishes that conduct of a kind shall
be forborne or pursued. In the case of a law imposed by
gênerai opinion, u wish that conduct of a kind shall be forborne
or pursued is felt by the uncertain body whose «encrai opinion
impose» it. 2. If ft party obl»«eil by the law proper shall not
comply with thc wish of the determinate iudividual or body,
he probably will sufVer, in emwqucnce of his not coiuplying, the
evil or inconvenience annexed to tlie law as a sanction. If
a party obnoxious to their displeasure shall not comply with
tlie wish of the uncertain body of persons, he probably will
suffer, in cuiwjwncc of his nut complying, some evil or incou-
venience front some party or another. 3. By the sanction
annexed to the law proper, the parties obligea are inclined to
act or forbear agreeably to its injunctions or prohibitions. By
the evil which probably will follow thé displeasure of the
uncertain body, the parties obnnxious are inclined to act ov
forbear agreeably tu the sentiment or opinion which is styled
nnalogicAlly a law. 4. In conséquence of the law properly so
called, tlie conduct of the parties obliger! has a stcadiness,
constancy, or uniformity, which, without thé existence of the
law, their eonduet would probably want. In conséquence of
tlie sentiment ur opinion which is styled analogieally a law, thé
'conduct of the parties obnoxious has a steadiness, constancy, or
uniforiiiity, which, without the existence of that sentiment in
the uncertain body of persons, their eonduet would lianlly
présent. For they who are obnoxious to the sanction which
arms the law proper, commonly do or forbear from the acts
which thé law enjoins or forbids whilst they who are obnoxious
to the evil whieh will probably follow the displeasure of thé
? «incertain body of persons, couiiuouly do or fôrbear from the
acts which tlie twtty approves or disHkes. -Ma»y of fclte applica-
tions of thé terni law which ave, merely mstaphorical or figura-
tive, were probablysuggested (as 1 shall show hereafter) by that
uuiforiuity
umioru of conduct wbîoli is conséquent on a law proper.
Di$tiuv In the foregoing analysis of a law set by gênerai opinion,
a
tweeil
tW~~1t a
tl théle meaning
me of the expression inthlerminatc body of persons
rother thau explained. To complète my analysis of
iieterutia-• is indicated
indic
«le, uml an
iJjOtr. •a law set
ll s9 by gênerai opinion (and to abritlgo that analysis of (
iiùnate sovereh
sovereiguty which I shall place in my sixth lecture), I will hère
boiivof
iiisertaaa concise exposition of the following pregnant distinction
single or insert
individual namely, the distinction between a determinate, and an indeter-
ll namely
psmous. minute body of single or individual persons.-If my exposition
of the distinction
<
shall appear obscure and crabbcd, my hearers
hope) will recollect that the distinction could hardly be
(I hopt
{
expounded
expouni in lucid and flowing expressions.
I will first describe the distinction in gênerai or abstract
terms, and will then exemplify and illustrate the general or
abstract description.
If a body of persons be determinate, all the persons who
compose it are detennined and assignable, or every person who
belongs to it is dotermined and may be indicated.
But determinate bodies are of two kinds.
A determinate body of one of those kinds is distinguished by
the following marks. 1. The body is composed of persons deter- |
mined specifically or individually, or determined by characters or
descriptions respectively appropriate to themselves. 2. Though i
every individual member must of necessity answer to many
generic descriptions,every individual member is a member of the
determinate body, not by reason of his answering to any generic
description, but by reason of lus bearing lus spécifie or appropriate
character.
A determinate body ofthe other of those kinds is distinguished |
by the following marks.- 1. It comprises ail the persons who j
belong to a given class, or who belong respectively to two or
more of such classes. In other words, every person who answers
to a given generic description, or to any of two or more given »
generic descriptions, is also a member of thé determinate body.
2. Though every individual member is of necessity determined
by a specifie or appropriate character, every individual member
is a member of the determinate body, not by reason of his
bearing his spécifie or appropriate character, but by reason of
his answering to the given generic description.
If a body be mdetoriuinate, ail thé persons who compose itt tEii-r. V
assignable. Or (ehaiighig the expres-
are not detennined ami
sion) evtrif person who belongs ta it M uot detenuiued, and,
therefore, cannot bo indicated. For un indeterminate body con-
sists of somc of the persons who belong to another and )ftrger
aggregate. But how mnny of thm ptrims are members of the
indeterniinate body, or wkùh of those penom in jmrticvlar are
members of the indeterminate body, is not and cannot be known
completely and exactly.
For example, The trading firrn or partnership of A B and C
is a determinate body of the kind first described above. Every
ntomber of the firm is determined specifieally, or by a character
or description peculiar or appropriate to himself. And every
member of the finn belongs to the detemiinate body, not by
renson of his answering to any generic description, but by reason
of his bearing his specifie or appropriate character. It is as
being that very individual person that A B or C is a limb of
the partnership.
The British Parliament for the time being, is a determinate
body of the kind lastly described above. It comprises the mihj
person who answers for thé time being to the generic description
of king. It comprises mry person belonging to the class of
peers who are entitled for the time being to vote in the upper
house. It comprises every person belonging to the class of
commoners who for the time being represent the commons in
parliament. And, though every member of the British Parlia-
ment is of necessity determined by a spécifie or appropriate
character, he is not a member of the parliament by reason of
his bearing that character, but by reason of his answering to
the given generic description. It is not as being the individual
George, but as being the individual who answers to thé generic
description of king, thnt George is king of Britain and Irelnnd,
and a limb of the determinate body which is sovereign or
supreme therein. It is not as being the individual Grey, or
as being the individual Peel, that Grey is a member
of the
upper house, or Peel a member of the lower. Grey is a member
of the upper house, as belonging to the class of peers entitled
to vote therein. Peel is a member of the lower house, as
answering the generic descriptionreprésentative of the commons
in parliament.' The generic characters of the persons who
compose the British Parliament, are here described
generally,
and, therefore, iuaccurately. To describe those generic character
minutely and accurately, were to render a complete description
of the iritrieate nrid poéplexecl System vrlu'cb is styled tha Bvitish
11 Constitution.– A mftxim ofthat -Coitatibitïoit may illustrât» thé
Coùstitut
siibjt'et of thé présent paiagraph.. The ineiiniug of the uioxiin,
siibiect o:
thé king never dies/ may, I believo, be rendered iu thé following
mauner. Though au «ctnal occupnnt of tho kingly ofUce is
luimoa, murtal, and ttansient, the duration of the offlce itself
lias uo possible linùt which thé British Constitution
eau eon-
template. And on tho ilenth of nu aetual occupant, the office
instantly devolves to that iudividuol poison who bearo thé
geueric eharacter which entitles to take the crown: to that
individual person who is then hoir to the crown, aceording to
the generic description contnincd iu the Act of Sottlement.
To exumplify the foregoin» description of an indetermiimte
body, I will revert to the nature of a law set by »eneml opinion.
Where a so called law is set by gtiund opinion, must of thé
persons who belou» to a determinate body or class opine or feel
aliku iu regard tu u kiud uf conduet. JJut the miinber of that
îuujority, or the several individuals who compose it, cannot bu
nxod or assigucd with perfect fulnus»
or aecuraey. For example,
A law set or imposed by thé ycnenû opinion of
a nation, by
thé ytnemt opinion of a législative assembly, by thé gmmd
opinion of a profession, or by the gcncrnl opinion of n club, k
an opinion or sentiment, relating to conduct of a kind, which is
held or felt by mont of those who belong to that certain body.
But how nmny of that body, or which of that body in particulur,
hold or feel that «iven opiuion or sentiment, is not nnd cannot
be known completely and correctly. Cousequently, that inajority
jf the certain body forms n body uneertoin. Or (chau«ing thé
••xpression) the body which is fornicd by thnt inajority is
an
indeterininate portion of a determinate body or aggregate.
l Jeuemlly spenkinj?, thcrefore, an iniletenninate body is an
indeterininate portion of a body determinate or certain. But
a
body or chss of persons may also 1» indeterininate, because it
eonsists of persons of a vague «eneric eharacter. For example,
The body or class of gentlemen eonsists of individual
persons
whosu genuric character of gentleman cannot be described
pre-
cisuly. W'hether a given muu were
a gemiine gentleman or
not, is a question which différent nieii inight answer in diilerent
wnya. An iudeterminate botly may tliurcforu be indeterininate
atter a twofold nianner. It may eonsist r.f an uncertain portion
of an uncertain body or class. For example, a law set
or
imposed by the f/aimtl opinion of gentlemen is an opinion or
««Miment of mont of those who are coramouly deeincd gentle-
manly. But wlittï proportion of thé class holdltlw opinion m
i(tte»tioHï or wliat projHiitwn of the «Insu féels the senthneut ïtt
question, is not less indetemiinate tlutn the «^ucric clmmeter of
gentlemen. The body by whose opinion the so called law is set,
-is, therefore, an «incertain portion of au tinuertaîu body or
agsregate. And hère 1 nmy bvielly remark, that a certain
]jortiou of ii certain body is itself n body determinate. For
example, Tho persons whoanswur the geiieric description repré-
sentative of tlie eoiuuiûiis iu parliumeut,' are a certain portion
of the persons who answer the geuerie description comiiioiier
of the united kingdom.' A sélect comniittee of the représentative
brjdy, or any portion of thé body happening to form a house, is
a certain or determined portion of tlie représentatives of the
corutnons in purliainent. And, in any of thèse or similar
cases, the certain portion of the certain body is itself a budy
determinate.
A determinate body of persons is capable of coqiundi. con-
duct, or is capable, m « Lwly, of positive or négative deportiui'iit.
Whether it consist of persous. detenuiued by spécifie clmracters,
or uf persons deternuucd or defined by a character or eharactors
generic, every person who belon^s to it is determined and may
be indicated. In the lîrst case, every person who belon«s to it
may be indieated by lus specifie character. In the second case,
every person who belnngs to it h also knowable: For av/v/
person who answers to thé given generic description, or who
answers to any of the given jenerie descriptions, is therefore a
nieinber of the body. Consequently, tlie entire Ijody, or any
proportion of its mernbers, h cajiable, nt a M y, of p«jsitive or
négative déportaient As, for example, of meeting at determinate
times and places; of issuing expressly or tacitly a law or other
command of choosing and deputin«< îvprcseutatires to perform
its intentions or wishes of receiving obédience froni othei-s, or
from any of its own members.
But an indetermiuate body is incapable of corpumtc conduct.
or is incapable, <« « lody, of positive or négative déportaient.
An indetenninate body is incapable of corporate conduct, iuas-
mucli as tlie sevend persons of whoni it consists cannot be
known and indicated completely nnd correctly. In case n
portion of its members act or forbenr in concert, that jjiven
portion of its members is, by that very concert, a déterminât^
or certain body. For example, A law set or imposed by
the
ijuntml opinion of barristers condennis thé sordid proctiee of
hugging or caressing attorneys. And as those who.se opinion
""
v or sentiment sots tho so cttllud luw aro an indetenninitto part of
the
the déterminait;
détél
and inca
body of -botristew, they toi a feody uneMaih
incapable of corporate conduct. But in case a miïnber or
portion r that uncertaiu body assembled and passed a résolution
iiovt.inn of
to elieck the .pracliee of.huggiug, that uuiuUiv or portion uf that
uncertain body would be, by the very act, et certain body or
aggregate. It wonld form a detenuhuite body consisting of the
detenuiued individuals who assembletl and passed tho résolution.
A law imposed by gênerai opinion may be the cause of a law
in tho proper acceptation of the term. But the law properly so
called, whieh is the conséquent or effect, utterly differs from the
so called law which is the antécédent or cause. The onu is an
opinion or sentiment of an uncertain body of persons of a body
essentially incapable of joint or eorpomte conduct. The other
is set or established by the positive or négative deportment of
a certain individual or aggregate.
For tlie purpose of rendering my exposition as little iutri-
cate as possible, I hâve supposed that a body of persons, form-
ing a body determinate, either consists of persons determined
by specifie characters, or of persons determined or defined by a
generic description or descriptions. But a body of persons,
forming a body determinate, may consist of persons determined
by spécifie or appropriate characters, and also of persons deter-
nn'ued by a character or characters generic. Let us suppose,
for example, that the individual Oliver Cromwell was sovereign
or supreme in England or that the individual Cromwell, and
the individuals Ireton and Fleetwood, formed a triumvirat*.1
which was sovereign in that country. Let us suppose, more-
over, that Cromwell, or thé triumvirs, convened a house of
commons elected in the ancient rnanner and that Cromwell, or
tliu triumvirs, yielded a part in the sovereignty to this repré-
sentative body. Now the sovereign or supreme body formai
l>y Cromwell and the house, or tlie sovereign and supreme body
formed by the triumvirs and the house, would hâve eonsisted of
a person or persons determined or defined specifically, and of
persons determined or defined by a generic character or descrip-
tion. The luemburs of the housc of eommons would hâve
been members of tlie sovereign body, as answering thé generic
description représentatives of tlie commons in parliameut.'
But it is as being the very individual Croinwell, or as liuing thu
very iudividuals Cromwell, Ireton, ami Fleetwood, that lie or
they would have formed a limb of tho sovereign or suprême
body. It is not as answering to a given goneric description, ur
ns acquiring it part in the sovereignty by a given gemviv mode,
that lie or they wûuld havé sharëd the sovëreignty wfth"tlu»
body representingthe people.– -A body of" person»,. fonuing a
body deterrainato, may also consist of persons detenniiied
or
defined specifically, and dutermined or deiiued moreover by
a
character or character3 generic. A sélect eommittee of a body
represcuting a people or nation, consists of individual persons
naraed or appointed specifically to Bit ou that given committee.
But those specifie individuals could not be members of the
eonimittee, nnless they answered the geueric description
repré-
sentative of the people or nation.'
It follows from the exposition immediately preceding that
the one or the number which is sovereigu in an independent
political society is a (kkrviiiMte individual person or deter-
a
minate body of persons. If the sovereign one or number were
not determinate or certain, it could not command expressly or
tacitly, and could not be an object of obedience to the subject
members of the community. Inasmucli as this principle is
amply explained by the exposition immediately preceding, 1
shall refer to it in my sixth lecture, as tu a principle sufficiently
known. The intricate and difticult analysis which 1 shall place
in that discourse, will thus be somewhat facilitated, and not
inconsiderably abridged.
As closely connected with tlie matter of thé exposition
immediately preceding, thé following remark concerning
supreme
government may put be commodiously in the présent place.-In
order that a supreme govemment may possess much stability,
and that the society wherein it is suprême may enjoy much
tranquillity,the persons who take the sovereignty in thé way of
succession, must take or acquire by a given generic mode,
or by
given generic modes. Or (changiug thé expression) they must
take by reason of their answering to a given generic description,
or by reason of their respectively answering to given generic
descriptions. For example, the Roman Emperor3 or Princes
(who were virtually monarchs or autocrators) did not succeed
to thé sovereignty of the Homan Empire or World by a given
generic title by a mode of acquisition given or preonlained,
and susceptible of generic description. It \va3 neither lineal
as
descendant of Julius Cïesar or Augustus, nor by tlie testament
or other disposition of the last possessoi- of the throne, nor hy
thé appointment or nomination of the Roman iwople or senatë,
nor Ly tlie élection of a determinate Viody formed of thé niilitary
class, nor by any mode of acquisition generic and preordained,
N" Worll
that
Lew. v that every
aequirc
e successive. Emperor, or every successive Prince,
aequiretl thé viitimL sovereignty of thé Itomati Empire or
World. Every successive Emperor ocquir«d by a mode of auciuU
Warld.
sitiou which was purely tuioinulous or accklentul which Lad «ot
been predetermined by any law or ettstom, or by any positive
law or rnle of positive ututnlity. Kvcry aettial occupant of the
Impérial office or diyuity (whatevoi- niay hâve been thé îaauner
whereiu lie had gotten possession) was oboyed, for tho time, by
the bulk of the military elas»; wa» aeknowledged, of cour»»;, by
the impotcut and trenibling senatu and rcceived subniissiun, of
course, from the inurt and helpless mass wJùch inliabitcd the city
and provinces. By raison of thi.s irtvgulnrity in thé succession
to thé virtual sovwuignty, the duini.se uf au Emperor wns not
uncoimuonly followed by a short ur or longer dissolution of the
général suprême govermnent. Sinco no ono could clnim to
succecd by a given generic title, or as answering for thé time
being to a given generic description, a contest for the prostrate
sovereignty almost iuevitably arose between thé moi-u influcntinl
<>( thé actuul military diiefs. And till one of thé inilitary
candidates had vaii^uisiied and crushud his rivais, aud Imd forced
with au armed hand his way to thé vacant throne, the gcnerality
or bulk of thé ialiabitiuits in thé liouiau Eni]>iro or World
could hanlly render obédience to one and the same superior.
Hy ruason, also, of this irregularity in the succession to the
Impérial office, the «jeueral and habituai obédience to tui actual
occupant of thé office was always cxtremely precarious. For,
since lie was not occupant by a given generic title, or by reason
ut his having answered to a «iveu yeneric description, the title
of any rebel, who inight anyhow eject him, would not hâve
been less legithnate or less coustitutional than his own. Or
(speaking with greater précision) thons was 110 mode of acquirinj,'
thé office, which could be styled legitiuuito, or which could be
styled constitutional which was susceptible of generic descrip-
tion, and which had been predetennined by positive law or
morality. TJiero was not, in the IJonian World, any determinate
person, whom positive law or îuomlity lmtl pointeil out to its
iuhabitants as the excltuively appropriate object »f gênerai and
lmbitual obédience. The reasouing which npplies in thé case
of a monarchy, will also apply, with fcw variations, in thé case
of a govemment by a munber. l'nless thé uieinbers of thé
suprême body hold their respective stations by titles generic
and fixed, the given suprême govemment iiinst bo extremely
uustable, and thé given society wherein it is suprême must
ofteu bë tom by contesta far the possession of ehares
sovercigHty.
m tbe 1
v
the. y Z

Béions ï close, my analym of those laws improperlyf SO h


no Lawuset ?
called which are closely analogous to laws in the proper accepta-
V™ opinion, or
tion of the term, 1 must advert to a seeming caprice of current
rent opïnîonsbr
01
or established language. Jjj
A law set or imposed by (/encrai opinion, is an opinionil oror w**7"'k'
m
sentiment, regarding conduct of a kind, whieh is held or felt »y tfxtks, are
by the
« ouly I
au indetcrniinate.hody that i» to say, an indeterminateportionn of opini*»»"
°t
a certain or uncertain aggregate. w
tii
Now a like opinion or sentiment held or felt by an indmdital,
~Zr(6r«lgUttel! tlllt
or held or felt univcrsally by the members of a hody déterminait,
liame of
Mit; fait-*
la But
may be as closely analogous to a law proper as a so called law an "J °I'iuion
sent¡,
set by gênerai opinion. It may bear an analogy to a law in or meut
m lieM »
the proper acceptation of the term, exactly or nearly resenibling
ID °Jj
"^g or felt by
an ùuli.
the analogy to a law proper which is borne by an opinionl or vidual, »» or r;
sentiment of an indeterminate hody. Au opinion, for exaraple, P'"> by
î» ail
metnbep) thetlit f;

of a patron, in regard to conduct of a kind, may be a law or rule ofa«/


ot
of
to hia owa dépendant or dépendante, just as a like opiniona 01 gâte, '1
an indeterminate body is a law or rale to all who might suffer h may -=
~fîer cloyely
1:
by provoking its displeasure. And whether a like opinion be an
be analogous
ofa toalaw
v
held by an uncertain aggregate, or be held by evcry member of a t0
precisely determined body, its analogy to a law proper is exactly
Otly tïh
the
or nearly the same. °F
But when we speak of a law set or imposed by opinion, We we of au imle-
always or commonly mean (I ratlier incline to believe) a law set tenuinaU
{,*
b0liv.
or imposed by gênerai opinion that is to say, an opinion or or
sentiment, regarding conduct of a kind, which is held or felt by
an uncertain body or class. The term law, or law set by opinion,
is never or rarely applied to a like opinion or sentiment of a
precisely determined party that is to say, a like opinion or
sentiment held or felt by an individoal, or held or felt univers-
ally by the members of a certain aggregate.
This seeming caprice of current or established language
probably arose from the following causes.
An opinion, regarding conduct, which is held by an indi-
vidual person, or which is held universally by a small deter-
minate body, is commonly followed by conséquences of compara-
tively trifling importance. The circle of thé persons to whom
its influence reaches, or wliose desires or conduct it affect-s
or determines, is rarely extensive. The analogy which such
opinions ljear to laws proper, lias, therefore, attracted little
attention, and lias,
has, therefore, not gotten them the name of laws.
vol.
VOL 1. 0
The Province of
194

>mm '
LSCT". V -–An opinion hold «niversully by a large determinate body, is
<
ttot tess !«rgely iniluentiai,
flot or is more largely infliientittl, thfth
ail opinion ofan uncurtain portion of the saine certain aggregat».
an
But since thé determïnnte body is large or mimerons, au opinion

?j

huld by all its members can hardly bo distinguished from a» g


opinion hekl by mod of its membere. An opinion held univers- i
ully by the inembcrs of the body determinate, is, therefore, j
equivalent in pructice to a gênerai opinion of the body, and is, 'f
therefore, classed with the laws which gênerai opinion imposes. f
Deferring to this seeming caprico uf ourreut or established
language, 1 bave forborne from ranking sentiments of precisely
determined parties with the laws improperly so called which are
closely analogous to the proper. I have restricted that descrip- ;-i
tion to sentiments, regarding conduct, of uncertain bodies or
classes. My foregoing aualysis or exposition of laws of that \)il
description, is, therefore, an analysis of laws set by gênerai '((
opinion. i'

If the description ought to embrace (as, I tliink, it certainly


ought) opinions, regarding conduct, of precisely determined |
parties, my foregoing aualysis or exposition will still be correct 't
substantially. With a few slight and obvious changes, my fore. ;j
going aualysis of a law set by gcnml opinion will serve as an i
analysis of a law set by any opinion: of a law set by the opinion
of an indeterminate body, and of a law set by thé opinion of a
precisely determined party. '>
For the character or essential difference of a law imposed by
opinion, is this: that the law is not a command, issued expressly
or tacitly, but is merely an opinion or sentiment, relating to con-
duct of a kind, which is held or felt by an uncertain body, or by
a determinate party. A wish that conduct of the kind shall le
pursued or forborne, is not signified, expressly or tacitly, by that
uncertain body, or that determinate party nor does that body
or party intend to inflict an evil upon auy whose conduct may
deviate front the given opinion or sentiment. The opinion or
.sentiment is merely an opinion or sentiment, although it subjects
a transgresser to thc chance of a conséquent uvil, and may even ;
lead to a command regarding conduct of the kind.
Betwecn the opinion or sentiment of the imlutunninatebody, ,'
and the opinion or sentiment of the precisely determined party, ;.
there is merely the following différence.– -ïhe precisely deter- j
mined party is capable of issuing a command in pursuance of the
opinion or sentiment. But the uncertain body is not. For, j
being essentially incapable of joint or corpomto conduct, it can- î
,Ji
;1
Il
.r -Æ

not, idy, ter. Y


as a body, m»niïy a wish or désire, mut cannot, as a body,
ItoM an intention or pwrpôsé,
It appvars from the expositions in thé precwliiig portionJ of TUdlbif.
wy discourse, that laws j>roperly so called, with sueh improper
i
.pcr~
j
ital dflaw»
laws as are closely aualogous tu thu proper, art» of three capital
classes. 1. The law of God, or thé laws of God. 2. Positiveuf J"UC)¡
«
KTd tivo
law, or positive laws. 3. Positive morsility, rules of positive tive liupwiwr
i
1,
morality, or positive moral rules.
t!
It also appears from the same expositions, that positive tjve «lialoifUs
«
moral rules are of two speeies. 1. Those positive moral rules nies tu thebriefly vn-
lJer,
which are express or tacit commanda, and wjiicli are therefore fore ^*ljitu'·
int- 19t1'4.
laws in the proper acceptation of the terni. 2. Those laws im-
properly so called (but closely analogous to laws in the proper >per
acceptation of the tenu) which are set by geueral opinion, or or
are set by opinion which are set by opinions of uncertain tain
bodiesj or by opinions of uncertain bodies, and opinions) of
determinate parties.
The sanctions annexée! to the laws of God, may le styled fled The son»
rdigious. The sanctions annexed to positive laws, taay be styled,'1~ ~t-m'tt,
emphatically, leijal: for the laws to whieh they are annexed, xed, impi-oper,
are styled, simply and emphatically, laws or law. Or, as every 'elT tfiosc-laws
positive law supposes a wôXtç or civitus, or supposes a society ictV »»K«p'«t-
political and independent, the epithet pulitiutl may be liedh'd)'
applied Cil-
forcedjtlio
to the sanctions by which such laws are enforcecL Of j]le the .luties,pro-
and
sanctions which enforce compliance with positive moral rules, lies, lierinipmiier,
some are sanctions properly so called, and others are styled
“]“,< .1 winch

sanctions by an analogical extension of the terni that is to say,


some are annexed to raies which are laws imperative and
say, re^oct-
proper,
'r*-1' and
tnel-
aud others enforce the rule which are laws set by opinion. Sincc ince |»t;; tlic riglit»,
rules of either species may be styled positive morality, tbp t,
thete l'fperai»!
1l1I1'1'O!'er.

sanctions which enforce compliance with rules of either species >cies »«i«:i>
laws
11(~eeJII
ttlmsc
may be styled moral sanctions. Or (changing the expression) • _vrwirtct-
'ion)
l°n)
ws

wc may say of rules of either species, that they are sanctioned med ivi-ly <oii-
or enforced momllyfi)
The duties imposed Ly tho laws of God may be styled vieil
(s) TU« term iiiumlUy, mural, or >««• whjtl» thé sanctions are annexai, or by
!W//iw«//y,iinlim|H)ru or confevrej, are ]xisittve arc rules:
nlily, i'iitiiiu/(i/, ut
alil.y,i~.t",wrul,utirnmot<ill~,ru,dimlart3ar conferre,l, are posittvc tnortl rtiles
that tin; oljjtii-t to which it is a]>|>lû-d or rules hcitritig tin: Htiieri'. ohara^ter wlikli
rofvrrcd is nppravinl of by the speaker I liare statol amt exj)laiii«l nbure. If
or writer. Dut l>y tho terni Motality, 1 1 meau to jiraise or blâme a positive
merely dénote thu linnian mies which I human nik-, ur a ilnty or ritfht wlik-h
style positive morality.' Ainl by the thé rule imiuscs or conféra, 1 style it
turms uwml smotions,' rules "sano- counonant tu the law of Ood, or contrary
tionetl tiiaratti/ moraldtitii.s ur rights,' to the law of Goil. Or (what, in olfcct,
•.nul 'dutit-i »r îiglit.s siiiftioiiùil mu- is thé same lliiiig) I style it gênerai ly
fulty,' 1 nicrc-ly iiiiaii that tlie rules to Uscful, or gi-ntrnlly ]ieriiiciou$.
'°'
TW y'. 7-et
et*)
1 11e province qj
?¥%(««.– The dufîes imposed by nosittvu laws, may be styled,
eittplifttieally, kgtil ov, like tlie laws by which they are imposât,
tlicy
th(
posed
1~
may be said to be sauetioned légal/ 1/. :Of the duties. im-
by positive moral rules, some are duties properly so called,
and oUiera are styled dnties by an analogical extension of the
term that is to say, some arc créatures of rules which are laws
imperative and proper, and others are créatures of the rules
which are laws set by opinion. làke the sanctions proper and
iœproper by whieh they are respectively enforced, thèse duties
proper and improper may be styled moral. Or we may say of
the duties, as of the rules by which they are imposed, that they
are sanctioned or enforced viorally.
Every right supposes a duty incumbent on a party or parties
other than the party entitled. Through the imposition of that
corresponding duty, tlie right was conferred. Through the con-
tinuauce of that corresponding duty, the right continues to exist.
If that corresponding duty be the créature of a law imperative,
the right is a right properly so called. If that correspondu)»
duty be the créature of a law improper, the right is styled a righi
by an analogical extension of the term. Consequently, a right
existing through a duty imposed by the law of God, or a right
existing through a duty imposed by positive law, is a right pro-
perly so called. Wliere the duty is the créature of a positive
moral rule, thé nature of the corresponding right dépends uptai
the nature of the rule, If the rule imposing the duty be a law
imperative and proper, the right is a right properly so called.
If the rule imposing the duty be a law set by opinion, the right
is styled a rvjht through an analogical extension of the term.
Eights conferred by the law of God, or rights existing through
duties imposed by the law of God, may be styled Divine,
Rights conferred by positive law, or rights existing through
duties imposed by positive law, may be styled, emphatically,
légal. Or it may be said of rights conferred by positive law,
that they are sanctioned or protected Itgallt/. The rights proper
and improper which are conferred by positive morality, may be
styled moral. Or it may be said of rights conferred by positive
morality, that they are sanctioned or protected morally?*
(b) Hero I may brielly observe, that, supreme political superiore. Ami, for
in order to a complete cictcrmiiintioii of varions other reasons which will appear
tlio ajipropriatc province of jurispni- in my sixth lecture, the appro(iriatê
dence, it is uccessar^ to exnlain the im- province of jurisprudence cannot be tle-
port of thé term rujht, >or, as I liave Uueil completely, uniess an explanatiou
stated atready, numerous positive laws of the terni riqkt constitute a part of the
proceed directly from subjei.ts tlirough delitiition. But, in onter to an explaii».
rights conferntd upon thé authors by tion of right in abttract (or in or.li.-r to
fi'"

The body or aggregate of law» whioh uiny te styled the law tker, V '[
of God, tlse body <»v y^î TVlu^of
aggregate or laws which roay be stylett >î

positive law, and thé body or aggregate of laws whiéh mayy Ijé bé OoJ,
c )nsi-
styled positive morality, sometimes coïncide, sumetimes do ftol five law,
not iiudjHiii-
coïncide, and sometiraes conjlkt. t
when mlity,
One of thèse bodies of laws aàncùtes with nnotker, rtUMl soiiiftime»

j «"«*
s
acts, which are enjoined or forbidden Ly the former, are also also J
enjoined, or are also forbidden by the latter. For exemple, The souietiœes
î
do™i
kflling which is styled murder is forbidden by thé positive coinciile,
J law
of every political society it is also forbidden by a so called law
lawtimes
t evn-
which the general opinion of the society has set or imposed it JI: it
is also forbidden by the law of God as known through tl,p the
principle of utility. The murderer commits a crime, or he
violates a positive law he commits a conventional immorality,
or he violates a so called law which gênerai opinion has estab-
lished he commits a sin, or he violates the law of God. He is
obnoxious to punishment, or other evil, to be inflicted by
sovereign authority: he is obaoxious to the hâte and the spon-
ttineous ill-offices of thé generality or liulk of tlie society he is
obnoxious to evil or pain to be suffered hère or hereafter by the
irnmediate appointment of the Deity.
One of these bodies of laws does not coincide with another,
when acts, whieh are enjoined or forbidden by the former, are
not enjoined, or are not forbidden by the latter. For example,
Though smuggling is forbidden by positive law, and (speaking
generally) is not less pernicious than theft, it is not forbidden
by the opinions or sentiments of the ignorant or unreflecting.
Where the impost or tax is itself of pernicious tendency,
smuggling is hardly forbidden by the opinions or sentiments of
any And it is therefore practised by any without the slightest
shame, or without the slightest fear of incurring gênerai censure.
Such, for instance, is the case where the impost or tax is laid
upon the foreign commodity, not for the useful purpose of raising
a public revenue, but for the absurd and mischievous purpose of
protecting a dotnestic manufacture. Offences against the game

an cxpknation of the nature wliifii is ta détermine thé province of jurispra-


common to «// rights), 1 must pre- datée.
riou% exjilain the différences of the At i-very «tep which lu- takes o» liis
principal ktnds of riv'hts, with thé niean- long and sVahrous roail, » difficulty «imi-
liigs of various tirais which the tenu lur to that which 1 harcuon-eudeavournj
right imiilii-s. And as that ftrerionx ex- tn tu^gi-st oncoimtcis the expositor of
plaiiation cannot be çiren ^th cflwt, th* s'-ti-m*. Asftvcrj'departmeiit of tli>?
till positive law is ilistinguished from sciem-e is implicated" with every other.
thé ohiects to which it is wlated, it fol- any detavh«d exposition of a «iiigl* and
lows that an explanation of the exprès- separatc dejarttnent is int-vitably n fmg-
sion right cannot enter into thé atttmjit ment more or less imjftrfett.
y, law>
L^f-tow* aï» ttls» in point fer. thuy are uot t?ffeaccs against positive
raor
morality,«Ithough they «ire forDidclôn by positive law. A gcntlc
»«»» »s Hob tlwlioHtmrwl, or generally sîmnnetl by gentlemen,
uititi
though
thov ho shoots witliout n qualification. A peasant wlio wiies
Imres eseupes tho 'ccusuru <rf peasants, though thé squires, as
cloing justiueship, suml him to o the prison nml the tread-mttl.
One of thèse bodies of laws emifiieta with another, when
acts, which are enjoiued or forbidckui hy the former, are forbidden
or enjoineil by the lntter. ^For e.xample, In most of the nations
of modem Europe, the practice ofduelling is forbidden by positive
law. It is also at varianec with the law which is received in
most of those nations as having been set by the Deity in the
way of express révélation. But in spite of positive law, and in
spite of his relijjious convictions,a man of thé class of gentlemen
may be forced by the law of honour to give or to take a challenge.
If ha forebore from giving, or if he declined a challenge, he
might incur the gênerai contempt of gentlemen or men of honour,
and might meet with slights and insults sufficieut to embitter
his existettce. The négative légal duty which certainly is in-
cunibent upon him, and the negative religions duty to which he
believes himself sulyect, are thereforu mastered and controlled
by that positive moral duty which arises from the so-called law
set by the opinion of his class.
The simple and obvious considerations to which I have now
adverted, are often overlooked by legislators. If they fancy a
practice pernicious, or hâte it they know not why, they proceed,
without further thought, to forbid it by positive law. They
forget thut positive law may be superfluous or impotent, and
therefore may lead to nothing but purely gratuitous vexation.
They forget that the moral or the religious sentiments of thc
community may alrendy suppress the practice as completely as
it can be suppressed or that, if the practice is favoured by
those moral or religious sentiments, the strongest possible fear
which légal pains can inspire may be mastered by a stronger
fear of otlier and conllicting sanctions/0
ai1 Vf VYfiV'L 1i11U W/11111:4111·~· 3à4L11:1

Tlip Mt» (') ThTheto nru olassos of useful nets ct.s such classes arc tint enjoint or forbM-
and liieli it wtre usele*s {•> i-njuin, nul
for- wliù-li
>
nml den
i by the tan* of Cad tliut lie no more-
asses oof miscliievousnets whieli itt-re
bcaniiecs, classes wereenjoins
« or forbids nctx of tlie dusses in
wliii:h, ac- nwleiis
*le«s to t forbiil for we are sullkii-iitlv tlv question,
i ttinn Le enjoins or forbkls siicli
roii'-ti to the useful, an<l sulficieiitly
rnriliii^to prone tly faets as are genc-rally peroicious or useful. '>
tin- tliiivry iversefr
-•erse- fromtlie
tr iiiisfilnevfiitsaets, witliout
«it Thero are also classes of nets, j»i"iie-
of ntilityj tlie
m incentive!!
incci and rc-*tniints npplioit by rally
t useful or peniicious,wliich demand
are ïligious saiir-tionij, or by sanctions légal
objw.t. religion» gn\ iiH-Piitivc* or n-straiiit» applicd by
t(lie
«f th« hw "r moral.
mora And, nssmning thnt gi/iicral rai religion»
r sanctions, or by sanctions légal
off!o<l: titility i tlie index to thé Divine i;oiu-
ïility U ni- cor moral. Witliout the incentives ami j
amis, we may fiiirly infer tliat acts of restruims
îuands, t api>li«l by toligious sanctions,
I'
In consecyieaeo of tho fretjueut coïncidence of positive law *»
and morality, ami of positive law and the Inw of God, the trueî
nature and fountain of positive law is often absutdly mistakeui
by writers upon jurisprudence. Where positive law has been
fashioned on positive inorality, or where positive law hus been
fttsltioited on the law of God, they forget that the copy is the
créature of the sovereigu, and impute it to the author of the model.
For example Custommy laws are positive laws fmshicmed
by juilioial législation upon pre-existiiig custoius. Now, till
they become tho grounds of judicial decisions upon cases, and
are clothed with légal sanctions by the sovereign one or number,
the customs are merely rules set by opinions of the governed,
and sanctioned or enforced morally Though, when they become
the reasons of judicial décisions upon cases, and are clothed
with legal sanctions by the sovereign one or number, the customs
are rules of positive law as well as of positive morality. But,
because the customs were observed by the governed before they
were clothed with sanctions by the sovereign one or number, it
m fancied that customary laws exisfc «a positive Ime» by the
institution of the private persons with whom the customs origi-
nated. Admitting the conceit, and reasoning by analogy, we
ought to consider the sovereign the author of the positive
morality which is often a conséquenceof positive law. Where a
positive law, not fashioned on a custom, is favourablyreceived by

or applied by sanctions legal or moral,I, object of tho latter, la an objeet of the and the
wu are not sufficiently prone to those x law of Cod as construedby the priuciplc [pice acts and
which aro generally useful,and are not>t of utility. But the cirele embraced by forbear-
sufficientlyaverse from those which aree thé law of Cod, and which may be c-m- :-m- ances,
ity, which, ac-
generally pernteious. And, assumint*
that general utility îs thé index to thée la larger than tho circle which
Divine commands, all thèse classes oi>f embraced to advantage by positive law,
n
g liraced to mlvantage by positive inamlity,
be carding to
a\v. thé satne
usefnl, and ail these classes of ptrnicious is Iuasinuch as the two circles have oue theorj',
acts, are enjoincd and forbiddenrespect-t- and the same centre, thé whole of thé the ought to
ively hy thé law of God. région coinpritcd by the latter is alsoilso b» objecta
Being enjoined or being forbidden byy comprised by the former, liut the \vhlole oie respect.
the Deity, ail thèse classes of nsc-fiil, and
d of the région comprised by the fonner r is ively of
ull thèse classes of pemiciom acts, ought it not comprised by the latter.
to be enjoined or farbidden by positivev To distingimn thé acts ami forbear.»ar- morality
morolity that is to say, bv thé positivee auces that ought to bo objects of law,
consista
iw, and law.
morality which of opinions or>r from those that ought to be abandoned ned
sentiments, liut, this notwithstanJing, to the exclusive coguisance of morality, ity,
some of these elasses of acts ought not
it is, perhaps, thé lianltst of thé problème
•DIS
to be enjoined or forbidden by positivei: wluch tho science of ethics present.s. its.
law. Somc of thèse dusses of acts ought It The only «isting approach to a solutionion
not to be enjoin»! or forbiitden even byy of tho problem, may be fourni in thé ~1,
the positive morality which consists ofif writings of Mr. Bentham who, in mnst
iinnemtivc nile«. of the' departinents of the two great
Évcry act or forbeamnce that ought It bronches of ethics, lias a<tfomplished
to be an object of positivelaw, ouglit to be more for the ailvanccmcut of the science
an object of thé positive morality whichh than all his predecessors put figetln;r. •
consists of opinions or sentiment;. Every y Sec, in particular, hù l'riutipks of 3lornk
act or forlx-arance that onglit to be ann nui' législation, eh. xvii.
I.KCT.Y the
tho. govemed,
~ove~ and euforoeil by theré opinions or sentiments,, we
dee the sa callect law, set. by those opinions or sentiments,
must deeni
aa law
law ù»j
imperative and proper of thé awpremo political superior.
Agaû The portion of positive law vvhich is parcel of the
Again
law of nature (or, in the langimge of the olassical jurists, which
is parcel of the jus gtntiwm) is often stipposed to emanato, eveu
as positive law, from a Divine or Naturel source. But (admit-
ting the distinction of positive law into law natural aud law
positive) it is mnnifest that hw naturaî, considérée! as a portion
of positive, is the créature of hunrnn sovereigns, and not of the
Divine monarch. To say that it émanâtes, as positive law, from a
Divine or Natural source, is to confound positive law with law
whereon
wl it is fashioned, or with law whereunto it eonforn».10
The fore. The foregoing distribution of laws proper, and of such im-
goingdis. proper laws as are closely analogous to thé proper, tallies, in
tribution pr «,
of laws th main, with a division of laws which is given incidentally
the
and or
)lroper. by Locke in his Essay on Human Understanding. And sinee
b'l!
such im- th division of laws, or of thé sources of duties or obligations,
this
ls recommended by the grent authority which the writer has
proper islaws
as
are
justly
closely
ju! acquired, I gladly append it to my own division or ana-
analogous 1lyste.
to the pro- ™ The passage of his essay in which the division occurs,
per, tnllies, is
jg part of an inquiry into the nature of relation, and is there-
m the
main, with «01fore concerned indhectly with the nature and kinds of law.
a division With
W the exclusion of all that is foreigu to the nature and kinds
of laws
which is of law, with the exclusion of a few expressions which are
KH'<mn<.i-
£&&* obviouslyob redundant, and with the correction of a few expres-
by I«ocfce sic which are somewhat obscure, the passage containing the
sions
in his divisions may oe rendered in thej words following :(l5) :(k)
Buay on tln
Hunmn >' In J. S. M. 's notes of the lecture» from
fi being complète, and thé hnguage
l'nder- as originallydclivcred I lind a consider- in il which it b stated is often cxtremely
standing,
!>g. abh passage giring instances of thé tire- unapt.
able u It must, however, b«
vailiug
vail tendencyto thé confusionof ideas bered,
b that thé nature of relationremem-
genu-
above referred to. I hâve not venturctl rally n (ami not thé natures of Imo, with
on thé attempt to incorporate thé pus- its it iiriiK-iiMl kinds) is thé aiiprouriate
sage in thé ti-xt, presuming that thé abject o of his imjuiry. Allowingfor thé
author refmineil advisedly from hère defects, «1 which, thereforc, were nearly
pursuiiiK tha tojiic further, and tlmt he incvitable,
il his nnulysix is strikingly ac-
deçmeil nuch imtances les» suitalilu to a curate.
ci It évinces that matchless power
u'rittcti discourse than to an oral lecture, of ol précise and just thinkin^, with that
I tliink it, however, of some vaine to ruligious
n repru for gênerai utility und
Iire.wrvc this passage, lioth as calculatcd tmtii,
t» which niarkvd the incoui]iurable
to uid the sttiduiit in applying th« prin- mnn tu wlio emancipated lnunaii reason
ci|j]cs stateit in thé text, and also as from fr the yolce of mystery iind jargon.
illustrativc of thé author's mode, wlicn And A from this his incidental excursion
orally ttiiiiilifyinffin pn-sunceof hia class, into
in tlm lield of law aud moralitv, and
the lecture which in substance he nlwnys front fr other passages of his essay Wiicrein
had coininitted to writiug. The passage, lu he toucliPS upon them, wo may infer thé
In-ing inconrenieutly long to insert as a iu important serviceswhich ho woultl hâve
note here, I Imve placed iu tlu; fcinn of n reudt-red to the sti-iui-e of ethics, if, toin.
a note at tlie end ûf tliis lecture. R. C. iilyinf; with the instances of Molynoux,
)>1
(*) I.ocko's division or nnnlysis is far lit lie had examined thé subject exactly.
'The conformity or disàgreenient iiien's voïuirtaty notions
have to a ilule to whieh they are referréd, and by which thfey
arc judged of, is ft sort of relation whieh xnay be called moral
relation.
•Human actions, when with their various ends, objects,
manners, and circumstances, they are framed into distinct com.
plex ideas, are, as bas been shown, so many miuxd moiks, great
a
part whereof bave names annexed to them. ÏJius, supposing
gratitude to be a readiness to acknowledge and return kindness
received, or polygamy to be the having more wives thau